ML20203M536
| ML20203M536 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 01/27/1998 |
| From: | NRC ADVISORY COMMITTEE ON NUCLEAR WASTE (ACNW) |
| To: | |
| References | |
| NACNUCLE, NUDOCS 9803090040 | |
| Download: ML20203M536 (245) | |
Text
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- R 3 N A'_
e . OFFICIAL TRANSCRIPT OF PROCEEDINGS R) NUCLEAR REGULATORY COMMISSION ADVISORY COMMITTEE ON NUCLEAR WASTE
Title:
PRIVATE FUEL STORAGE, L.L.C. -- PREIIEARING CONFERENCE 4 Docket No.:- 72-22-ISFSI-I q Work Order No.: ASB-300-117 Q
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ch Il ll lllIllll llll LOCATION: Salt Lake City, Utah DATE: Tuesday, January 27,1998 PAGES: 1 - 244
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ANN RILEY & ASSOCIATES, LTD. V2 '> # 12501 Street, NW, Suite 300 Washington, D.C. 20005 ( (202) 842-0034 1 f, $0h 2 <
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1: -UNITED STATES OF AMERIC. i () -2' 3
-NUCLEAR REGULATORY COMMISSION
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4 In the Matter of : Docket No. 72-22-ISFSI
- ASLBP No. 97-732-02-ISFSI 5 PRIVATE FUEL STORAGE, L.L.C. :
6 (Independent Spent Fuel : Storage Installation) :
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University of Utah 9 . College of Law Moot Courtroom 10 332 South Street,-1400 East Salt Lake City, Utah 11 Tuesday,. January 27, 1998 12 13 The above-entitled prehearing conference convenend at 10:00 a.m. pursuant to notice, before: 14 () 15 THE HONORABLE G. PAUL BOLLWERK, III, Administrative Judge, , 16 Atomic Safety & Licensing Panel Chairman 17 DR. JERRY-R. KLINE, Atomic Safety &' Licensing Panel Board member- , 18 DR. PETER S. LAM 19 Atomic Safety & Licensing-Panel Board member 20 PRESENT FOR THE NRC STAFF: 21- -Sherwin Turk Catherine Marco
~22 PRESENT FOR THE STATE OF UTAH:
23 Denise Chancellor 2 4 -- Diane Curran Fred Nelson 25 Connie Nakahara r ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 w __-
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.2 1 PRESENT FOR THE SKULL VALLEY BAND OF GOSHUTE INDIANS:
.2- Danny Quintana Ob Richard Wilson-3- Scott York 4 PRESENT FOR ONHGO GAUDADEH DEVIA: l 5 Jean Belille
. Robert Halstead 6
PRESENT'FOR CASTLE ROCK LAND AND LIVESTOCK, L.C.: 7 Michael Later 8 Bryan Allan 9 PRESENT FOR.TRE CONFEDERATED TRIBES OF THE GOSHUTE RESERVATION AND DAVID PETE: 10 John Kennedy 11 Genevieve Fields 12 PRESENT FOR PRIVATE FUEL STORAGE, L.L.C. 13 Jay Silberg Ernest Blake 14 Paul Gaukler () 15 16 17 18 19 20 21 22 l 23 1 24' 25 ! ANN RILEY & ASSOCIATES, LTD. ,' Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
4 3 4 1 -PROCEEDINGS () 2-3- CHAIRMAN BOLLWERK: (10 : 00 a .m) Why don't we go on the record 4 please, l 5 _ Good morning everyone. Today we're here to cond'tet an
- 6 initial prehearing conference in the Private Fuel Storage, 7 L.L.C. proceeding. In response to a notice of opportunity 8 for hearing published in the Federal Register on July 31, 9 1997, found in volume 62 of the Federal Register at pages 10 41,099 to 41,100, petitioners' State of Utah, Ohngo Gaudadeh 11 Devia, the Confederated Tribes of the Goshute Reservation 1
12 and David Pete, and Castle Rock Land and Livestock, L.C., 13 Skull Valley Co., Ltd., and Ensign Ranches of Utah, L.C., 14 have requested a hearing to challenge the June 20, 1997 l() 15 application of Private Fuel Storage, L.L.C. for a license f 16 'under 10 C.F.R., 10 Code of Federal Regulations, Part 72, to I 17 possess and store spent nuclear reactor fuel in an I 18 independent spent fuel storage installation, also known as
- 19 an ISFSI, located in the-Skull-Valley Goshute Indian 20 Reservation in Skull Valley, Utah.
21- In addition, the Skull Valley Band of Goshute Indians 22 and, very recently, a group of individuals and the Atlantic 23 Legal Foundation have filed petitions to intervene in this 124 proceeding in support of the application. 25 We scheduled this prehearing conference to provide the O INN RILEY & ASSOCIATES, LTD. w- Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 e i
4
< 4 1 participants with an opportunity to make oral presentations l
() l 2 on the issues of the petitioners' standing to intervene and 3 .the. admissibility of their 90 proffered contentions. 4 Before vna begin hearing the parties' presentations on i
- 5, these matters, I would like to introduce the members of the
- 6 Atomic Safety and Licensing Board.
7 To my right is Dr. Jerry R. Kline. Dr. Kline, an 8- environmental scientist,-is a full-time member of the Atomic 9 Safety and Lic.ensing Board Panel. 30 To my left is Dr. Peter Lam. Dr. Lam, who is a nuclear 11- engineer, 71so is a full-time member of the Panel. 1 l 12 My name is Paul Bollwerk. I'm an attorney, and I'm i 13 chairman of this Licensing Board, 14 At this point, I'd like to have the representatives or () 15 counsel for the_ parties identify themselves for the record. ! 16- Let's go ahead and start with the representatives for the 17 various petitioners and then move to counsel for the 18 rpplicant Private Fuel r*nrage, and finally to NRC staff ! 19 counsel. , 20 Why don't we just start at this side of the room, if we 21 could.
- 22 MS. BELILLE
- My name's Jean Belille, and I'm 23 representing Ohngo Gaudadeh Devia.
24' MR. LATER: Michael Later, representing the Castle Rock 25 petitioners. ( ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
5 1 MS. CRANCELLOR: Denise Chancellor'. Diane Curran on my () -2. 3
'left, Fred Nelson on my right, representing the State of Utah.
4 CHAIRMAN BOLLWERK: Next we're on this side of the 5' room. 6 DR. WILSON: Richard Wilson representing a group of ad-7 hoc super scientists. 8 MR. QUINTANA: Danny Quintana for the Sku:* ' alley, Band 9 of Goshutes. , 10 MR. KENNEDY: John Kennedy on behalf of the 11 Confederated Tribes of the Goshute Reservation. 12 CRAIRMAN BOLLNERK: All right. 13 MR. SILB5RG: Jay Silberg. With me, Ernest Blake and 14 Paul Gaukler, representing Private Fuel Storage, L.L.C. () 15- Also here today is the chairman of the board of-managers of 16 Private Fuel Storage, John Parkyn; project manager Scott 17 Northard,-and the project. director, John-Donnell. 18 MR. TURK: Good morning,-Your Honor. Sherwin Turk for 19 the NRC staff. 20 To my ria'? is Mn. Catherine Marco, alsa-representing-21 :the staff. And we have with'us today the-project _ manager, 22 Mark Delligatti, and other persons from the NRC staff. 23 CRAIRMAN BOLLWERK: Let me just check with our court 24 reporter. Are we getting everything all right in terms of 25 volume? O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
- 6 1 Okay.- Make sure you speak into the microphones; all
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( j)- 2 right? If we need.to, you may need to point that a little 3 bit your direction. 4 MS. CHANCELLOR: Judge, I forgot to mention to you, and _ 5 I'm sorry. Dr. Nelson, the head of the Department of 6 Environmental Quality.
- 7 CHAIRMAN BOLLWERK
- All right, i'
- _ 8 MR. QUINTANA- Your Honor?
- 9 CHAIRMAN B,OLLWERK: Yes. ! 10 MR. QUINTANA: I'd also like to introduce the Honorable 11 Leon Bear, the chairman of the Skull. Valley Band of i 12 Goshutes, and some of his assistants. 13 CHAIRMAN BOLLWERK: All right. [ 14 I would note that the presentations to the Board during
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15 this prehearing conference will be limited to the 16 participants that have just identified themselves. t-17 If any of thece petitioners subsequently is found to 18 have standing, and to have submitted one or more litigable 1
- -19 contentions, the Board will issue a notice of-hearing that, 20 in accordance with 10 Code of Federal Regulations S 21 2 ~715 (a) , will afford-members of the public an opportunity 22 .tx) provide written, or as appropriate, oral limited 23 appearance statements on the issues. The Board will issue a 1
24 further notice outlining the-times, places, and conditions
-25 of-participation in the event the Board provides an f ANN RILEY & ASSOCIATES, LTD.
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- 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
7 1 opportunity for oral limited appearance statements. [GD 2 I would also note that yesterday the Board conductqd a 3 visit to various places in the area that the participants 4 have identified as relevant to this proceeding. The Board 5 found the site visit very informative. We would like to 6 express our thanks to the various participant 7 representatives who made presentations explaining the 8 significance of the sites we visited; to Colonel Como and 9 the staff of the Du3way Proving Grounds for providing an l 10 informative tour of the English Village; to the State of 11 Utah for arranging transportation for the group; and to the 12 Skull Valley Band of Goshute Indians for providing cur group 13 with what was a very tasty luncheon. 14 As to the order of presentation by the participants in () 15 this prehearing conference, unless the participants have 16 some other suggestion, in accordance with our January 21, 17 1998 memorandum and order, we propose to begin by discuseing 18 the issue of standing, specifically the standing of the 19 petitioners Confederated Tribes and Mr. Pete, which still is 20 being contested. 21 Because the burden wrists -- rests rather with the 22 petitioner on the issue of standing, we first will let the 23 counsel for the Confederated Tribes and Mr. Pete briefly 24 address this issue, followed by counsel for the applicant, 25 counsel for the Skull Valley Band, which, at least according (/ ) ANN RILEY & ASSOCIATES, LTD.
\- Court Reporters 1250 I Street, N.W., Suite 300 i
Washington, D.C. 20005 (202) 842-0034
i 8
- 1 to the last filing we received, still opposes the 2- intervention petition of the Confederated Tribes and j (}
3 Mr. Pete, and finally ste'.t counsel. Counsel for the 4 Confederated Tribes and Mr. Pete will then be afforded a ! 5 short opportunity for reply. Thereafter, we will discuss i 6 briefly some other standing issues. 7 We would then move on to the petitioners' proposed l 8 contentions, using the same order of presentation, with 9 initial commen,ts by. counsel for the petitioner that } I 10 sponsored the contention. As the participants are aware, 11 the Board has provided a listing that groups the various 12 contentions into four subject matter areas: safety, 1 13 environmental, emergency planning, and other. 14 This grouping was not intended to limit the scope of
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15 any participants' contention, but rather to try, based on 16 what we perceived as the contention's primary focus, to [ 17 gather related contentions so that we etn deal with the same
- 18 subject matter at one time and gain a better understanding 19 of the similarities and differences between the petitioners' 20 contentions.
21 As we noted in the January 21st issuance, within each j 22 general category we will first go through the State of , 23 Utah's contentions in the order they have presented them, 24 .with the understanding that counsel for the other 25 petitioners will, following presentations on an individual i l ANN RILEY & ASSOCIATES, LTD. Court Reporters 1 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 J
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9 1 State contention, be prepared to identify and discuss any
/~ 2 related contentions they may have and identify for the Board L )T 3 how their contention is similar to or different from the 4 State's contention.
5 It also should be noted that we will not be discussing 6 the substantive claims of the State of Utah with regard to 7 the adrissibility of its contentions EE through GG, and its 8 nine contentions regarding the Private Fuel Storage facility 9 physical security plan, matters that likely would involve 10 the discussion of non-public proprietary or protected 11 safeguards informatien. Instead, the State will be given 12 the opportunity to file a written reply regarding the 13 substance of the admissibility of those contentions. , 14 With respect to those contentions, however, assuming it
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(_) 15 does not require the discussion of proprietary or safeguards 16 ~information, we will er.tertain arguments on two procedural 17 issues that have arisen, the State's compliance with the 18 five late filing factors of 10 Code of Federal Regulations 19 S2. 714 (a) (1) relative to its contentions FF through GG, and 20 the credentials of William J. Sinclair to support the 21 State's security plan contentions. 22 Do any of the counsel representatives have any comments 23 on this order of presentation? 24 All right. Hearing none, then we'll use that as our 25 basic framework and work with it as we go along. ANN RILEY & ASSOCIATES, LTD.
\_ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
10 El All righ*, Let's then-begin with'the presentation by , e
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) 2 counsel for .ne Confederated Tribes and Mr. Pete regarding
- '3- their standing.
l 4 MR. KENNEDY: Thank you. 5 Might I just say with respect to the site visit i 6 yesterday, we actually did not visit the site. The site was ! 7 located approximately two to three miles from the highway. 8 We viewed the site from the highway. The visibility was 9 excellent, but we could not actually get to the site. And I
- 10 think that that's an important distinction, 11- My name is John Kennedy. I'm here on behalf of the 4
, 12 Confederated Tribes of the Goshute Reservation and David 4 13- Pete, who is the chairman of that tribe. , 14 We have submitted to all counsel and to the Board and i () 15 to staff a statement of our belief that we have standing. l 16 There have been responses submitted by interested parties 17 and tiare have been supplementations made to the original 18 filings. 19 My observation, Your Honor, is that all parties are 20 reading and studying these documents thoroughly. In the 21 interest of time, I would be available to answer questions 22 from the panel as well as other counsel, but we would stand 23 on our submissions. 24 CHAIRMAN BOLLWERK: All right, sir. 25 Anyone have any questions of Mr. Kennedy? ANN RILEY & ASSOCIATES, LTD. s_ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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- 1 All right. Perhaps when we come back to the reply'we
() 2 may have some questions given the statements by the other 3 parties. Okay? 3 4 Let's see, I think, Mr. Silberg, did I mention you 5 next? 6 MR. SILBERG: We don't believe that the Confederated i 7 Tribes have made an adequate showing that they have standing 8 in this proceeding. They have a tenuous chain of 9 participation,.if you will, through the organization, the 10 tribe. I 11 They have a member who states to be the legal guardian 12 of a three year old who occasionally visits the Skull Valley 13 Band. Both_the child and the guardian live on the 14 Confederated-Tribes Reservation some 70 miles away. We () _15 believe that this chain of causation is too tenuous; that 16 the visits are not frequent and regular enough. We 17 understand that the child has not visited the reservation-18 since late October of this year. There is no indication of 19 when the child will next visit the reservation. 20 Under the Supreme Court cases on standing, the Lujan 21 case which we have cited, the fact that people have visited 22 projects, the area of projects in the past, as the Supreme 23 -Court said, proves nothing. 24 "The affiant's profession of an intent to return to the 25 places they visited before is simply not enough." I'm O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
12 1 quoting from page 564, 504 U.S. Reports, Lujan v. Deisnders [~ ) 2 of Wildlife. V 3 "A plaintiff claiming injury from an environmental 4 damage must use the area affected by the challenged activity 5 and not an area roughly in the vicinity of it." Also from 6 that same case. 7 We think that the chain of causality, as the Supreme 8 Court said, has becu stretched beyond the breaking point; 9 .and we simply don't see that prior occasional visits and i 10 none in the last three months, to our knowledge, are 11 adequate for standing in this case. i 12 CHAIRMAN BOLLWERK: All right, sir. 13 Mr. Quintana, 14 MR. QUINTANA: Your Honor, we challenge standing in t () 15 thi 1 case for a variety of reasons, all of which have been 16 noted in the pleading, the small pleading that we filed. 17 The reservations that exist under federal law are, in 18 this instance, completely separate and identifiable 19 governments. The Skull Valley Band of Goshutes has e 20 separate federal tax number, ID number rather, than the il Confederated Goshutes. 22 And if I could submit this map for part of the record 23 from the map from this exhibit that I would like to submit, 24 the reservations are a substantial distance apart. In 25 addition to three mountain ranges, there is a major desert O)
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l 4 13. 1 between them and a federal facility. To travel by highway ( 2 is at least 180 miles. l~ 3 The' reservations, the two governments are independently 4 elect 6d of each other. Members of one reservation do not i 4 5 vote in the internal matters of the other reservation. Both j 6 report to separate agencies within the Bureau of Indian 7 Affairs.
- 8 In addition, previously the Confederated Goshutes 9 acknowledged t, hat the rights of the Skull Valley Goshutes 10 did not apply to rights in the Confederated Goshutes, and 4
11 cited a Mr. Leon Bear and his brother for a hunting 12 violation on the other reservation. Reciprocicy being what i 13 it is if rights do not apply on one reservation, then 4 14 certainly they do not apply on another one, tO 15 . ( ,/
- In this instance, to allow the standing of a tribe that i 16 is separate and identifiable as a government from another i 17 tribe and is very far away, would create a precedent where 18 challenges to nuclear facilities, to licensing facilities, 19 and challenges to administrative facilities could be brought 20 by the most tenuous of claims.
21 The political motivations for filing for intervention i 22 in this instance I think speak for themselves. I think that i 23- if the affidavits cf the Confederated Goshutes are closely 4 , 24 scrutinized, and those individuals are examined, I think 25 this honorable body will find that those affidavits will i 4 l 4 () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
14 1 :probably not be held up. () 2. There are eight reservations in Utah, and'there are --
~
3 they are all separate and identifiable governments. The Ute 4 tribe, which is in the northeast section, has_not applied 5 for intervention herein, nor.have the Paiutes or the 6 Northwestern Shoshones. 7 For historical reasons, mostLof the tribes in a C geographic' area are related somewhat by language and at 9 times by blood, but they are still separate governments 10 nonetheless. And because of the sovereignty of each l 11 government and the need for having internal control in the 12 land of each government, I would ask this honorable body to
-13 not allow standing to the Confederated Gocnutes.
14 ' AIRMAN BOLLWERK: All right. Let me just check. Are k) 15 there any other intervenors who hava anything they want to 16 say? If not, I'm going to go to the_ staff. 17 MS. CHANCELLOR: The State would, Your-Honor. . 18 First, a point of procedure. We understood that this 19 was an oral presentation to the Board,_and Mr. Quintana has 20 suggested that an exhibit be introduced. 21 CHAIRMAN BOLLWERK: Right. 22 MS. CHANCELLOR: And that has -- 23 CRAIRMAN BOLLWERK: I just, I'd speak to that. We have 24- a number of maps in the record already that show the 25 relationship of all the different, the tribes. If it's not O- ANN RILEY & ASSOCIATES, LTD. Court Reporters. 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
* , a
15 1 really necessary, we'd probably not want to add that. It's () 2 3 up to you, sir. If you insist, we'll take it, but I don't think it's really necessary. 4 MR. QUINTANA: That's fine, Your Honor. 5 CHAIRMAN BOLLWERK: Given the state of the record. 6 Does that take care of that problem? 7 MS. CHANCELLOR: That's fine. We were just concerned 8 with not having it served on us. 9 CHAIRMAN B.0LLWERK: Sure. 10 MS. CHANCELLOR: Secor4dly, we support the petition of 11 the Confederated Tribes of the Goshute Reservation. We 12 believe that they have made their arguments with respect to 13 standing. And in any event, the Board has the discretion to 14 allow the Confederated Band in as intervenors. I think that (_j 15 they would be able to raise issues that would.not be raised 16 by the other petitioners. So the State does support their 17 petition. 18 CHAIRMAN BOLLWERK: All right. 19 Anyone else? 20- Mr. Turk, I'm sorry. I kind of slipped one in there, 21 but it's your turn this time. 22 MR. TURK: No , that's fine. Thank you, Your Honor. 23 The staff would like to begin first of all by noting 24 that there has been a succession of pleadings addrecsing the 25 standing of the Confederated Tribes and Mr. Pete. Let me I
) ANN RILEY & ASSOCIATES, LTD. ~/ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
4 1 16 1 address one-narrow issue before addressing the broader and- !O 2 'more difficult issue. ! V 3 Never,-in all of the filings-by the Confederated Tribes ll' and Mr. Pete, was Mr. Pete's individual standing-addressed ' e 5 or established. So we'd like to separate that out as an
-6' issue that can be easily addressed and dealt with by the
.7 Licensing Board.
In the absence of any showing of individual standing by
~
8
- 9 Mr. Pete, and there has been none, he clearly does not have-10 standing to participate on an incividual basis, and his i 11 petition should be denied without any question.
12 Coming to the question of the Confederated Tribes, l 13 initially a petition was filed by the Confederated Tribes, 14 with Mr. Pete also, in August of '97, to which the staff.and >
.- ( ) 15 applicant responded. A further filing was made by the 16 Confederated Tribes in October of '97, to which the 17 applicant and staff responded. And then again in December,-
18 .following the filing of those responses, a further 19- supplemental memorandum was filed by the Confederated 20 Tribes. 21 In the first two filings-by the Confederated Tribes, 22_ there was no showing whatsoever that the tribes, as 23- organizations, had standing to participate-in this 24 proceeding. As Mr. Quintana has stated and as the Board is 25 aware, the tribes are physically separated by a distance of i 4 l ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 \ . , .
_ _ . . _ _ . . _ _ - _ _.__.. ~ .. 17 1 some_60 or 65 miles. They are separately chartered and () 2 3' recognized Indian tribes. accrue to the other tribe. The rights of one tribe do not 4 The Confederated Tribes initially.made a claim that 3 5_ there was an aboriginal right which established their 6 standing on the grounds that they had at one time roamed the 7 entire section of Utal which encompasses both the Skull l 8 Valley Tribe as well as a much broader area. 1 9 That, we b,elj.ve, is easily dealt with by the l- 10 recognition that they are now separately recognized tribes 11 by act of the U.S. Congress. Each has its own reservation,
. 12 - and it is on those reservations that their rights are
- l. 13 established.
2 14 The only basis upon which the Confederated Tribes may () 15 establish their standing here today is in a representational f 11 6 capacity. And that is they would have to show that there ; 1 17 was some member of their organization who has standing and 18 who has authorized them to represent his or her interests in 19 the proceeding. 20 In the last filing of December of '97 they attempted to 21 make that showing. And what they relied upon were the 22 I affidavits of two individuals, Chrissandra Reed and 23 Genevieve Fields. 24 The Fields affidavit was nonspecific, and did not 25 establish that she has interests which could be affected by e ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N W., Suite 300 Washington, D.C. 20005 (202) 842-0034
18 1 the proceeding. () 2 The Reed affidavit, on.the other hand, established that 3 Ms. Reed is the grandmother of a little girl who stays with 4- relatives on the Skull Valley Reservation from time to time. 5 I'll come back to that. issue in a second. 3md also that 6 Ms. Reed herself drives the little girl to the 7 Confederated -- I'm sorry, to the Skull Valley Reservation, - 8 and from time to time herself is present at the Skull Valley 9 Reservation. , 10 In addition, Ms. Reed states that she makes the drop-11 offs of the little girl at a location close to the Rowley 12 Junction inter-transfer point, and is present at that 13 location on various occasions. 14 The sole issue that is before you now with respect to f() 15 standing for Confederated Tribes is whether the contacts 16 which have been established by Ms. Reed and-her 17 granddaughter, whom she represents to be her-legal ward; she 18 states that she is the legal guardian for the little girl. 19 You have to determine whether those. contacts are sufficient R20 to establish standing for either the little girl or the 21 _ grandmother. And if so, look to see whether there is 22 authorization. And then if there.is authorization for the 23 tribe to represent the individuals, you can reach a finding. 24 of standing for the tribes on a representational basis.
-25 There is not a clear and convincing statement of l
ANN RILEY & ASSOCIATES, LTD. O# Court Reporters f 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 ( (202) 842-0034
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-1 standing on behalf of either the little girl or Ms. Reed.
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2 On oalance, however, as we stated in our responses of j 3 January 14, 1998, we think the balance has tipped so that 4 you-can find standing for both the grandmother and the l 5 granddaughter. l l 6 I would note, however, that as we pointed out in our [ 7- pleading, the contacts which are described by Ms. Reed-in 8 her declaration are contested in the declaration of her i k 9 cousin, Arlene,Walsh, who is a member of the Goshute Tribe.
- -10 So you must look at the evidence presented by both the
'~ 11 Confederated Tribes and by the Skull Valley opposition to
- -12 determine if the contacts are substantial.
13 In sum, what those contacts show is that either 14 approximately 8 to 10 times a year, as stated by the 15- Confederated Tribes, or 3 or 4 or more -- and that's not. j 16 defined, the-"or more" is not defined; either the 8 to 10 or 17 the 3 or 4 or more times is the number of times that the i 18 little girl stays at the Skull Valley Reservation. 19 Similarly, you have a conflict of evidence-right now in 20 these two conflicting affidavits or. declarations as to the 21 number of times that Ms. Reed herself comes to the Skull 22 Reservation. She makes a statement that it's a larger 23 number of instances. That is disputed by the declaration of 24 Ms. Walsh. 25 On balance, if you look at the statements by Ms. Reed ANN RILEY & ASSOCIATES, LTD.
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20
- l- and you give them credence, we believe that you can find
() 2- standing for the Confederated Tribes. But there is that
- 3 conflict of evidence, and that is something that would have 4 to be resolved by the Board.
5 CHAIRMAN BOLLWERK: All right. Is that it, Mr. Turk? 6 Nr. Kennedy.- 7 MR. KENNEDY: Thank you, Your Honor. 8 I think the representations made by counsel seem to me 9- to be generally accurate. There are some things that I i 10 think we ought to comment on, however. 11 First of all, with respect to no visits having been i < 12 made since October. I believe that is true. They happen -- 13 the cut-off of the visits was by the folks at Skull Valley 14 following the filing of the initial declaration in this O V_ 15 matter. 16 We believe that the fact that, as a-litigation tactic, 17 the Skull Valley people may have, or the individual involved 18 may have terminated the visits shouldn't be relevant as far 19 as the -- this proceeding and the petition to intervene. 20 We have sort of glossed over, I think also, the entire 21 history and long-standing interrelationship of these two 22 groups. And we've tried to focus, I think, on some rather-23 specific current events that are taking place. And we siould 24 submit that it's important for the Board to consider the 25 long-standing interrelationship of these two groups. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
21 1- lAnd the fact that they have, I think as was said during () 2 3-the site visit yesterday by one of the individuals speaking, common grandmothers in-instances, there-have been 4' representations about burial' grounds on the reservation that 5 are used and visited; there have been representations made 6 in the affidavits regarding religious practices that have
-- 7 taken place on both reservations, participated in by both 8 people. -t 9 Also, we've pointed out the constitutional provisions 10 that existed with the Confederated Tribes until relatively 11 recently, in the last 10 years or so, where members of the 12 Skull Valley Band were in fact allowed to enroll at Goshute.
13 The aboriginal area, which includes both reservations 14- and the site and significant territory surrounding this -- () 15 both reservations, according to the Indian Claims 16 Commission, was taken from the Indian people back in the 1870 time frame.
~
17 I might point out, however, that people in 18 both tribes don't-recognize the fact-that their lands were 19 taken. Legally that may have happened, but I think that 20 people from-a day-to-day standpoint do not recognize that. 21 And I have personally had conversations with 22 Mr. Quintana, who is a member, or who is the counsel for the 23 Skull Valley Band, regarding efforts to establish hunting 24' and fishing rights beyond-the reservation boundaries. 25 So I think that all of these matters, taking into O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street,-N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
22. j -1 consideration the long-standing interrelationship, the blood ' () .2 3 relationships and so forth between these people, support our petition to intervene.
}-
d 4 Chrissandra Reed is a member of the tribal council. She 5 is the person who has been referred to as the grandmother _in h 6 this instance. She attended.the site visit yesterday and 7- has participated in all the discussions and so forth 8 regarding this matter, and has pointed out.that when she has 4 9 taken her grandchild to the reservation, or when the child 't i 10 has been picked up at Rowley Junction, that those. visits 11 aren't just shorts visits; that they may be for one or two 1 12 days or longer periods of time, up to a week or longer even. 4 13 So we'would submit that there is significant contact there F 14 and that it ought to be sufficient to establish our efforts 15 to intervene. 7 16 =With respect to Mr. Pete, ta has asked to intervene as-2 17 chairman of the tribe. And-that is his role, not i 18' individually but as chairman in thc- -capacity. And that 19 would be my response. Thank you. 20 CHAIRMAP BOLLWERK: Okay. Does the-record indicate ll 21- -this in any way. Has the granddaughter been seeing her-22' mother since October? I don't, I mean I understand she's 23 nt' been -- what I've heard is that she's not been allowed ' 24 onto the Skull Valley Reservation. Has.-- 25 MR. KENNEDY: Your Honor, I don't believe it's her i () ANN RILEY & ASSOCIATES, LTD. Court Reporters-1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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23 1 mother. I believe she stays there with another relative.
'2
( CHAIRMAN BOLLWERK: Another relative, I'm'sorry. 3 MR. KENNEDY: That's-right. 4 CHAIRMAN BOLLWERK: Has the other relative gone to the 5 Confederated Tribes area to see the young woman, or -- {_ 15 MR. KENNEDY: I have no knowledge of that. I would
.7 suspect not, Your Honor.
t 8 CHAIRMAN BOLLWERK: Okay. 9 MR. KENNED.Y: But I have no knowledge. 10 MR. SILBERG: fJudge Bollwerk? 11 CHAIRMAN BOLLWERK: Yes. d 12 MR. SILBERG: Excuse me. I would like to make a few ^ 13 comments on Mr'. Kennedy's statement, if I could do it now or 14 at another appropriate time. I don't know what your order '( 15- of proceeding is at this point. 16 CHAIRMAN BOLLWERK: Can you make it short? 17 MR. SILBERG: Make it very short. l R18 - First, as to dis'cretionary intervention -- 19 CHAIRMAN BOLLWERK: I saw you, Mr. Quintana, by the a l 20; way, so --
;. 21 MR. SILBERG: Yeah. The Confederated Tribes have made l-: 22 no showing that they comply with the standards of the j 23 Pebble Springs case in their own plee. dings, and I don't 24 think that the State of Utah can raise that on their behalf.
4-25- With respect to the alleged cut-off of visits by the 1 I \-h- ANN RILEY & ASSOCIATES, LTD.
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24 1 Skull- Valley people, my understanding lis t.'.at is a false 2 statement. And_we would be prepared.to put on,.as a witness ( 3 on this issue right now, a member of'the' Skull Valley Tribe 4- who previously-gave a declaration in-this matter to state l 5 that for the record. 6 The child has-not.been brought to the Skull-Valley 7 . Reservation, but that is not'because those visits have been 8 terminated by the Skull Valley Band or any member of the-1 i 9 Skull Valley Band. 10 CHAIRMAN BOLLWERK: All right. Anything else?
-11 I don't think we need to get a witness.
12 Mr. Quintana. 13 MR.-QUINTANA: My client would not use children for
-14 -political purposes or to gain an advantage in_ legal
() 15- positions, and I_ resent the implication that this child, 16 _this very_ minor child, was used for-that purpose. It is-17 blatantly not true. , 18 CHAIRMAN BOLLWERK: All right. Mr. Kennedy, ._I'll give 11 9 you one last word, briefly, sir, if you want to say 20 anything. 21 MR. KENNEDY: No, nothing further, Your Honor. ! CHAIRMAN BOLLWERK: Okay. 23 All right. We'll take it under advisement and we'll
!24- issue a ruling on that in due course.
25; MR. TURK: May I make one last comment, Your Honor? O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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-1. CHAIRMAN BOLLWERK: Sure.
2 ;MR. TURK: I'm sorry to intervene in your order of 3 proceeding. 4 -One thing that we didn't address is the question of 5 burden of proof. As the proponent of standing, it is 6 incumbent upon the Confederated Tribes to establish it. 7 Here you do have conflicting information with respect to the
- 8. rundaer of visits by the -little girl to the reservation, as 9 well a5 with respect to the number of timec that Ms. Reed 10 herself comes to the reservation.
11 In your decision on standing, you'll have to consider 12 whether the burden itself has been satisfied by the 13 Confederated Tribes, i 14 DR. KLINE: Mr. Silberg, is it your view now that, as .4, g) 15 to the future, there will be future visits likely by the 16 child to Skull Valley Reservation? 17 MR. SILBERG: On our knowledge and belief, it is our 18 information that the member of the Skull Valley -- of the 19 Confederated-Tribes has-indicated that the child will not be 20- visiting, but that was a not -- that was not a decision by a 21 member of the Skull Valley Band. 22 CHAIRMAN BOLLWERK: It sounds like we're really outside 23 the record here, so I -- Mr. Kennedy, I still want to offer 24 you the last word, if you have anything you want to say in 25 response to Mr. Silberg. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
26 1 MR. KENNEDY: That was not my understanding. My -[~ 2 understanding is that the grandmother has taken the child to
\-.
3 the reservation whenever the grandmother has been out of 4 town on tribal business. And that would be her intent in 5 the future, as well as in the past. 6 I think the fact that Chrissandra Reed from the Skull -- 7 from the Goshute Reservatien filed the affidavit that she 8 did created some animosity on behalf of the skull Valley 9 person and they have to resolve that problem. But the 10 intent would be to continue those relationships as they have 11 in the past. 12 CHAIRMAN BOLLWERK: All right. I think we'll take that 13 issue under advisement and we'll, as I say, issue a ruling 14 in due course,
,O
( ,/ 15 The other. standing issue that I'm aware of, my 16 understanding is that there was no objection to the standing 17 of any of the other parties. Is that correct? 18 MR. TURK: That's correct. 19 CHAIRMAN BOLLWERK: With the exception, I should say, 20 the objections of Mr. Wilson we'll deal with in a second. 21 We haven't really talked about any. But is that -- am I 22 understanding correct in that regard? 23 MR. TURK: Yes, sir. 24 CHAIRMAN BOLLWERK: In terms of the State and OGD and 25 Castle Rock and the -- all right. b
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ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
1 i 27 1 1 Mr. Wilson, the petition that your group filed came in )( 2 last week, I believe, by -- WS received a copy by e-mail. ; 3 That's how I heard. And it came to my office, the Secretary j 4 didn't received it. It's been officially received and ) 5 docketed back in Rockville, so you're now -- your petition 1
- 6 is officially before the Board.
7 7 The normal order of proceeding would be allow other ' 4 i 8 parties to file answers to that petition. You've already 1 j 4 9 filed at least,one amended version of that petition. Do you j 10- have any $J<'in3 or intent to amend thac petition at any
- 11 other point before we would have answere filed by the other i l 12 parties at this point?
{ 13 DR. WILSON: Yes, Your Honor. There are two things I l 14 would like to say right now. 15 There was a -- in view of the fact we've only been l i 16 ~ aware of this particular department, at least I've oaly been l 17 aware of this particular der *trtment moderately recently, and j 18 the Atlantic Legal Foundation has only been approached L l 19- recently, although one of the problems with a Jroup of
- 20 people is finding out whether there was conflict of i
21 interest, i i 22 One of the initial petitions is Mr. Manning Muntzing, [ 23 has found in sn obscure part of his law firm there's a 24 possibility of conflict of interest. So he was having to 25 withdraw from that petition. There are one t two other i . ANN RILEY & ASSOCIATES, LT '
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i i 28 1 -people who have been searching for conflict of interest and () 2 3 have now agreed to be on the petition, and I will provide you with a list of that very shortly. l
- 4 And in particular, there are several people still in !
a 5 the state of Utah. And it's quite obvious chat anyone in 1 6 the state of Utah.is quite-likely to be -- who has any l 7 professional competence, to be involved in some conflict ! C way. And they are searching for that, for that particular j 9 matter, and I',11 know by the end of the week. 10 And so I've not been able to provide the names of those 11 people. And -- in that matter. But otherwise, we have no 12 particular desire to amend the petition any particular way. 13 The Atlantic Legal Foundation will be the formal legal { 14 representation. l() E 15 Atlantic Legal Foundation has been involved for the
- 16 last six years in the role of making sure that accurate 17 science in the courts has been involved, including six 4
- j. 16 amicus briefs before the Supreme Court.
19 This will be amended no later than the end of the week. 20 CHAIRMAN BOLLWERK: End of the week. What I'm trying l 21 to avoid is having the parties start shooting at a moving
- 22 target here.
23 DR. WILSON: I understand that, Your Honor. ' 24 CHAIRMAN BOLLWERK: So it sounds like by the end of the
- 25 week, let's say, we'll just be generous here and say Monday?
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2 , 29 4 1 DR. WILSON: Monday morning.- That will be a proper, () 2 3 accurate list of petitioners. that's delivered at the executive's office. And I will make sure that
- 4 CHAIRMAN BOLLWERK
- Okay. Now do you, sir, are you going to be -- you're going to be filing this from -- you're 5
! 6 from Boston. Is that correct?
; 7 DR. WILSON: Well, I'm nct quite sure which would be 4
j- 8 particularly most apposite for the Board. I will be the 9 person who is ,the spokesman from the group, but the Atlantic 10 Legal Foundation will be formally legally involved. 11 CHAIRMAN BOLLWERK: Right, i 12 DR. WILSON: And whether it is-quite proper for the 13 Board for the legal foundation to be involved or myself to e4 be the formal filer, for that I would seek, I would have to () 15 seek guidance. ) 16 CHAIRMAN BOLLWERK: I guess my question is how and when l 17 are we going to receive a copy of this petition? I guess 18 that's the bottom line here. You're saying what, by Monday, 19 by at least e-mail, as fou did before, we will all receive a 20 copy of that? 21 DR. WILSON: By'e-mail, almost certainly by the end of 22 -- by Sunday night by e-mail. If people haven't consulted
' 23 their conflict of interest by Sunday, they'll obviously no 24 ' longer ~ add to the petitioners and there's no other change in 25 j petitioners as well.
l 4 LO ANN RILEY & ASSOCIATES, LTD. l Court Reporters 1250.I Street, N.W., Suite 300
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re--- ~,,.--.e -,-w
.; ' . 30 ! 1 CRAIRMAN BOLLWERK: All right. Let's say this then. J () 2 3 That by 4:30 Eastern time on Monday you will have in our hands and in the hands of the other parties here, by e-mail, 3
- 4 or fax if for some reason e-mail doesn't work, a copy of j 5 your amended-petition with -- listing whomever your 6 -individual petitioners are, as well as the Atlantic Legal i
- 7- Foundation.
l 8 -DR.-WILSON: Definitely. ! 9. CHAIRMAN BOLLWERK: I would also appreciate it if the l 10 Atlantic Legal Foundation would enter a notice of appearance j 11 in terms of their counsel., It's in the rules and they need l 12 to do that so we know what attorney we're dealing with.
- 13 DR. WILSON
- That we can do. That we can do.
14 CHAIRMAN BOLLWERK: All right. And that would be a < ( 15 good idea if that were done Monday as well. 16 DR. WILSON:- That will be done at the same time.
- 1 17' CHAIRMAN BOLLWERK: All right. And of course you still l'
l- -18 have to. comply with the rules in terms of filing a paper 19 copy with the Office of the Secretary and serving everybody ., 20 else. 21 DR.~ WILSON: Yeah. They will be -- I will make sure *
. 2:2 those are hand-delivered to the Office of the Secretary on 23- Monday morning.
I- 24 CHAIRMAN BOLLWERK: Okay.
.25- DR WILSON: Because one of our petitioners, as you I /~' ANN RILEY & ASCOCIATES, LTD.
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31 , . 1 know,-is in a Washington law firm. 2 CHAIRMAN BOLLWERK: Okay, 4 3- MR. QUINTANA: The Skull Valley Band of Goshutes would
- 4 stipulate to the standing, and encourage the admission and 5 acceptance of the intervention of the Atlantic Legal !
6 Foundation and these nobel laureates and prominent 7- scientists.- 8 CHAIRMAN BOLLWERK: Okay. Well, there's one yes, but 4 9 we have a lot of other peop'e we have to hear from. 10 The -- assuming that everybody has a copy of this by 11 COB Monday, what-are we looking at in terms of response s i 12 times? t i 13 I take it you're basically talking about adding names? . 14 DR. WILSON: Adding names. And hopefully I won't j 15 subtract any more. 1
- 16 CHAIRMAN BOLLWERK
- Okay. One thing I've noticed in 17 the petition is we don't have many addresses. Is.that a.
18 problem for people in terms of -- f
- 19 DR. WILSON
- I will make sure the addresses --
i-
- 20. CHAIRMAN BOLLWERK
- Because I think we'll --
21
~
DR WILSON: - -will-be all on there. 22 CHAIRMAN BOLLWERK: - - at least in terms of the 23 individuals -- I don't want to start arguing your case for 24 you here, but in terms of the individuals, that may have
- 25~ . some significance to people. Am I correct in that respect?
i I \ ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 >
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! k t MR BLAKE s - Yes,'Your Honor. l () W 2 CHAIRMAN BOLLWERK: Okay. So why don't you make sure ' j- 3 that we get a list, the people that you list, they also have i 4 their residence where they -- all right, so-we know where *
- 5 they're at. Because you mentioned there's someone from i j 6 Utah. Now I don't even know who that is. I don't think i
I 7 there's ever been a listing of the address, so -- all right? .
- 8 Then in terms of response time, how much time does
{ 9 anyone else ne.ed? Ten days, two-weeks? Ten days enough !
- 10- time?
1 i 11 MR. SILBERG: More than enough. l 12 CRAIRMAN BOLLWERK: If we look at Monday. How about 13 Thursday the 12th? Any problem? Too much time? i
- 14 MR. LATER
- Your Honor, we would request two weeks,
() 15 just for some caution, because we haven't seen the petition. l i
- 16. We don't know what's there or that we'll have to respond to, 17 one way or the other.
3 i l 18 MR. SILBERG: Judge Bollwerk? , i < 19 CHAIRFUdi BOLLWERK: Yes.
- 20 MR. SILBERG
- I guess there's an initial question, is who has the right to respond since none of the other 21 i
j 22 petitioners are yet parties. i j 23 CHAIRMAN BOLLWERK: There, at this point, we've been 2 24 allowing answers basically for and against any petition , 25 that's come in. So why don't we proceed-on that. Anyone [v ANN RILEY & ASSOCIATES,-LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 , wpr-.-e,->c.r - - - --- ,v.-,s-py..y.y-, , , - - - --yr 1- v me w rv ~ vvw-+'rw-wr-W.* v-ve-o-we-- vv-+- -97m-= -w w--v'* www-=v+-= ' T-- ***v-1 ------'vv'-v--v = ' ' -' - - - v'----w- v wwe
33 1- that wants to file a response to this petition, feel free to 2 do so. We'll be glad to hear from you. Although obviously 3 just -- we'll just accept answers from anybody in response 4 to them; all right? 5 MS. CHANCELLOR: I think we would like two weeks too, 6 Your Honor, because we have some other contentions we need 7 to respond to. 8- CHAIRMAN BOLLWERK: You have some time scheduled on the 9 liths right? . 10 MS. CFANCELLOR: That's right. 11 CHAIRMAN BOLLWERK: All right. Why don't we make it 1 12 the 13th then. Le*'s also make that a close of business 13 date so that we get e-mail or fax by that, copy whatever 4 1 14 responses you have in favor or opposed to the petition 15 Mr. Wilson's going to be providing us on Monday. All right?
- 16 ~Any questions about that?
17- Okay. And again, sir, the -- better to get the 18 Atlantic Legal Foundation, I suggest you probably file
- 19 earlier rather than later.
20 DR. WILSON: Yeah, they'll be formally filed. 21 CHAIRMAN BOLLWERK: Okay. 22 Anyone else have anything they want to raise on the ' 23 issue of standing? 24 Okay. Why don't we go ahead then and move to the 25 question of contentions. And as I mentioned before, we have ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202)'842-0034
j 34 1 90 some contentions, although we're going to be hearing () ? 3 arguments, I think at least in terms of substance of them, only on about 80 of them. 4 MS. CHANCELLOR: Your Honor, if I may interject. Are 5 we going to do adrissibility of contentions, in terms of the 6 legal standard? Are we going to address that?
- 7. CHAIRMAN BOLLWERK: In terms of an overview of the 8 legal standard? I think we can deal with that on a 9 contention-by-contention basis.
10 MS. CRANCELLOR: Oh, okay. I misunderstood the order. 11 CHAIRMAN BOLLWERK: I think we understand pretty well, ' 12 you know, the basic background and legal standards to get a 13 contention in, unless somebody has something in particular 14 they want to say on that subject. ( 15 MS, CRANCELLOR: I guess I'm a little unclear on 16 adoption by reference, and also rewriting the contentions. 17 CHAIRMAN BOLLWERK: Okay. Let's address that question 18 here. Let me-just say something up front as well. 19 We mentioned in the order that we issued that we have 20 read all the pleadings here. So it's-not necessary to sort 21- of go-over the same ground as we go through these. It would 22 be a good idea to try to stick to new matter and emphasize 23 things if we can, because we would like to move this along, 24 as I'm sure all of you would as well.
- 25. In terms of the redrafting of the contentions, I ANN RILEY & ASSOCIATES, LTD.
Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
35 [ 1 know -- we'll use the State as an example. Some of the () 2 3 redrafts you have seemed to agree to, others you do not. guess it's our feeling that if there's no objection to I 4 having -- to the redraft, that we're willing to accept that. ' 5 If there's an objection, then we'll simply stand on what was 6 originally filed. 7 Now I think it was with OGD, you all filed some -- I 8 think you redrafted a number of your contentions? 9 MS. BELILL.E Yes, Your Honor. 10 CHAIRMAN BOLLWERK: And again, I would say that if 11 people have redrafted them and you have an objection to 12 that, I suspect we're just going to stick with the original 13 contention at this point, unless they insist on it. But I 14 take it you are willing to stand on your original () 15 contention? 16 MS. BELILLE: Yes, we are willing to stand on our 17 original contentions. 18 CRAIRMAN BOLLWERK Okay. 19 MR. TURK: And we would object to the reformulation 20 .because it would require us to go to a comparison of the two 21 documents to try to figure out want the differences are. 22 We'd prefer-to rest with their original filing. 23 CRAIRMAN BOLLWERK: Okay. Now the-State, for instance, 24 accepted some of Mr. Silberg's redrafts. Do you have a 25 problem with those? ANN RILEY & ASSOCIATES, LTD. I Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
36 4 1 MR. TURK: I won't object to that. () 2 CHAIRMAN BOLLWERK: Okay. 3 All right. So what we would propose to do then, unless i i 4 anybody has a problem with it, is if there's been some 5 agreement on a redraft of a contention that's been submitted 6 by Private Fuel Storage, we'll accept that. If there's been 7 any objection to it, we'll simply go with the contention as 8 originally drafted. ] 9 MS. CRANCELLOR: Your Honor, in terms of acceptance of 10 the redraft, we would want it understood that the contention 11 as a whole stands as submitted. 12 CHAIRMAN BOLLWERK: Okay. 13 MS, CHANCELLOR: That we aren't just relying on I 14 Mr. Silberg's redrafts. That for purposes of admissibility, () 15 the entire contention and its basis should be reviewed as l 16 submitted. 17 CHAIRMAN BOLLWERK: Now you're going back to saying 18 your contention as drafted is what you want. You know, I -- 19 MS. CHANCELLOR: Well -- 20 CHAIRMAN BOLLWERK: You have to -- you can -- let me 21L just see if Mr. Silberg wants to say something and I'll go 22 back to you. 23 MS CHANCELLOR: _Okay. 24 MR. SILBERG: Yeah. I don't have a problem with 4 25 certainly accepting any redrafts. The reason we attempted i ] ' , ANN RILEY & ASSOCIATES, LTD. Court Reporters , 1250 I Street, N.W., Suite 300 i Washington, D.C. 20005 (202) 842-0034 m,-r. , , - . - - -- - - - ,,,y ,y .3.,,,,-.-,,-, 7n ,, , c -p.,,,,,_-., -
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k 37 4 to do that, and.it was a very labor-intensive process as you 1 j () 2 know, was because we think that many of the contentions as
! 3 written are so vague and so general as to be virtually l 4 unlitigable. And we have tried honestly to take the bases i
j 5 as stated and reformulate them into an understandable j 6 specific contention which we think meets the' requirements i ! 7 set forth in the Commission's rules of practice. L 8 If the parties are not willing to accept'those 1 i 9 redrafts, then obviously a lot of our criticisms as to the 10 vagueness and lack of support for the extraordinarily broad 11 statements that the contentions make will have to be [ 12 considered by the Board. We were trying to make this ) 13 process a lot more sensible, a lot more easy to -- as we i 14 proceed down the road, so we know what the issues are and !() 15- we're not left with a contention-that says you haven't i 16 considered accidents, when the bases may list three or four 17 specific accidents. , 18 If you go to the much broader issue, we can be here 4 19 forever. And while that may be the aim of some of the 20 parties, I don't think it's the aim of the Commission when
- 21 it created-the rules of practice, j 22 CHAIRMAN BOLLWERK
- All right.
- 23 MS. CHANCELLOR
- If I may. We understand that the 24 contention is limited by the basis that we present. And t 25 Mr. Silberg has, in some instances,.merely outlined the ANN RILEY & ASSOCIATES, LTD.
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38 1 basis and suggested that that should be the contention. () 2 What we are saying is that the contentions that we have 3 submitted should be viewed in terms of the contention and 4 the bases as a whole. 5 CHAIRMAN BOLLWERK: Well, the bottom line, I guess, for 6 the Board is we have to have something that is stated as a 7 contention. And the question is do you want us to look at t; 8 contention, the word -- the language of the contention as 9 you originally, filed it as your contention, or do you accept 10 Mr. Silberg's redraft of that language as the contention and 11 which you want to us to consider? 12 MR. SILBERG: We -- 13 MS. CHANCELLOR: Go ahead. 14 MR. SILBERG: We also think that the Board has the () 15 power to reformulate the contentions to meet the rules of 16 practice consistent with the bases as laid out by the 17 parties in their pleadings. 18 CHAIRMAN BOLLWERK: Right. And we may well do that in 19 some instances. But I'm just trying to get a handle around 20 exactly what she wants us to consider at this point. 21 MS. CHANCELLOR: Well, frequently there is factual 22 basis, factual information in the basis that props up and 23 supports the contention. So our concern is whether some of 24 that factual information has been taken out of context and 25 put into the contention. And we make a great effort to set ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250-I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
39 1 out why we think something doesn't meet the requirements of 2 the rule. And to have that brought up into the contention I 3 think is a little misleading. 4 4T think we could agree that where we have not 5 opposed the rewrite of the contention, we would stand by 6 that, provided that the contention and the basis are treated 7 as a whole. 8- CHAIRMAN BOLLWERK: Well, let me make it clear to-you-9 what I'm going,to do. 10 MS CHANCELLOR: Okay. 11 CHAIRMAN BOLLWERK: And then you tell me how you would 12 like that. 13 MS. CHANCELLOR: Okay. 14 (Laughter) 15 MS, CHANCELLOR: Good idea. 16 CHAIRMAN BOLLWERK: When we list these contentions 17 there, we're going to have a thing that says contention and la we will talk about the bases. In the instances, at least as 19 I understand it now, where Mr. Silberg has redrafted the 20 : contention, and you've not objected to it, I -- when it says 21 l the word " contention," what-is going to be there is the 22 lcontentionwiththesubpartstoit. That is how your 23 j contention will read, and that is what -- the contention 24 l that would be admitted if we were to do so. 25 So if you're comfortable with that, that's what we'll ANN RILEY & ASSOCIATES, LTD. d Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
40 i stick with. If not, we'll go back to the original language (} 2 3 that you submitted as.your contention. MR. SILBERG: We will also try to work, during this 4 week ~and maybe even beyond, to see if we can't agree amongst i 5 the parties. I don't know whether that's possible or not. l 6 CHAIRMAN BOLLWERK: All right. 7 MR. SILBERG: But we will -- 8_ CHAIRMAN BOLLWERK: I have to say that this, the point 9 of making these issues as focused as possible, is important 10- to everyone here. We want to know what you want to 11 litigate. And I really encourage you to work on that. It's 12 important that -- I recognize everyone wants to keep their 13 options open here, but we have to know what's important to 14 you all and what you want to litigate. () 15 MR. SILBERG: Okay. Well -- 16 MS, CURRAN: Maybe I could help a little. My 17 understanding of what Mr. Silberg tried to do was to take 18 out of the basis assertions that, you know, there's a 19 general statement in the contention that X requirement isn't 20 met. And then there are various statements in the bases
.21 .that detail ways-in which-the requirement isn't met and then 22 support that subassertion with fa';ra.
23 What I think Mr. Silberg did sAs took the various 24 subassertions and put them into the contention part of it. 25 I mean every contention has two parts, the contention and O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
l P 41 ; } 1 the basis. And to me, it didn't seem like a big' problem to j f() 2 move those subass6rtions up. But you can't just read that ! j 3 firsc.part of the contention. You have to also read the i 4 factual support for those assertions. l 5 So that's why we're saying our contentions are going to i i 6 have to stand as a whole, even though if it's helpful to you j 7 to-use those-assertions that he drafted as kind of a summary 8 of what the contention is alleging, but one still needs to j 9 reac the factual basis for those assertions. 10 CHAIRMAN BOLLWERK: So in other words, what you would { 11 have us do is take his language and stick-it on top of what ; i 12 you listed as the bases,-and we consider the -- 1 13 MR SILBERG: Let me make one more shot at it. , 14 CRAIRMAN BOLLWERK: All right. , () 15 MR. SILBERG: Then perhaps we can do some of this off-16 line. 17 What we tried to do was take out, from the supporting ' 18 material, what the specific issues were that the parties , 19 wanted to litigate, all of which fell within the very broad. 20 language, sometimes extremely broad language of the, quote, 21- contention-itself. For some-of those subissues there were ' 22 factual matters. And for the most part, at least, we tried 23 not to put those into the contentions.
-24 The Commission's rules require that you have a specific 25 contention. It also requires, in addition to that, that O--
ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington,- D.C. 20005 (202) 842-0034 l
1- that contention be supported by bases, by facts, by () 2 opinions. The facts and opinions don't need to be in the , 3 contention because those do not define what is the issue
- 4 which is to be litigated. .
j 5 However, the contention and the subcontentions do i 1 6 define what it is that we will be litigating during the ' , 7 course of this process. And unless we make that j 8 distinction, I think we're going to wind up with issues to l
- 9 litigate that.we're going to be arguing about forever as to j 10 what is their true scope. And our attempt was to define i 11 that scope up front, at a time oefore we've all invested a l
12 lot of opportunity in discovery and testimony. ' L 13 CHAIRMAN BOLLWERK: It would be my supposition, [ , 14 wouldn't it, that once discovery starts, and if there are () 15 any amended contentions, then one of the first questions is
- 16 going to be what is the scope of your -- and obviously the ,
- 17 Board is going to be very interested in looking at that if 1
it comes to a question later of what was the scope of this 4 18 ' l 19 contention. So let me put you on notice of that right away. ] 20 MR. SILBERG: That is exactly why we went through this 21 effort. ! 22 CHAIRMAN BOLLWERK: Okay. Well, we'll come back to you 'I
- 23. ' one last time. I just -- you have -- then I take it you ,
r 24 have no objection if we consider the contentions that you 25 have not objected to as being the statements that he has i i ' ANN RILEY & ASSOCIATES, LTD. l'- Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
- g. . w e r n- --,..--vn ,.,mr,-.,,r,,,,,v - ,n,,m.,m.,.. ,,,,,,,m,,,v,,,, , , , _ , , , , - , - , , , . , , ,,,.,,,.,,,,,,,,,-,w,-..,w,,,,,,,- w, ,, .
43 1 provided with the subparts then? Those are what you want us () 2 3 to look at as your contentions, with the understanding that what you've listed then as your bases we should look at as 4 well. Is that -- 5 MS CURRAN: Right. We -- I mean we don't necessarily 6 want you to do it that way. We agreed to that as a 7 reasonable way. It seems to me not to make a whole lot of 8 difference, because the case law says your contentions are 9 limited to wha.t's stated in your bases. So ths two parts 10 are very closely related. ; 11 But if it would make it any easier for the Board to 12 distinguish the issues -- it's just very important not to 13 completely divorce the contentions fror their bases. 14 CHAIRMAN BOLLWERK: All right. So we'll then take, the () 15 ones you've agreed to, we will take those statements as 16 your contention, with the understanding that we need to look 17 as well at the information that you set out in the bases of 18 the original filing. All right? 19 Judge Lam, did you want to say something? 20 DR. LAM: Yeah. I have a remark on redrafting. 21 If everybody agreed to a redraft, the Board certainly 22 doesn't have any problem with that. But if there is an 23 objection, it's my view that that would create an 24 unnecessary controversy that does not advance the case here. 25 CHAIRMAN BOLLWERK: All right. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I-Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
t 44 1 Anyone then have any other comments on at least the () 2 3 language of these contentions? we're going to do? We're clear then on what 4 MR LATER: Your Honor, I'd like to make one note, that 5 we would join with the State in their position. We have 6 tried to indicate where we thought that the redrafts by 7 Mr. Silberg's office were reasonable, but we've also 8 indicated in some cases where we disagreed with those 9 redrafts. And in those instances, we certainly would expect 10 to stand on our contention as originally presented. 11 CRAIRMAN BOLLWERK: All right. That would be my 12 understanding. If you objected to the contention .s.s you 13 wish to stand on the original language, then that's what we 14 will do. () 15 MS. CHANCELLOR: In some -- 16_ CRAIRMAN BOLLWERK: -- at this point. 17 MS. CHANCELLOR: Excuse me. In some instances, I think le we were silent whether we accepted it or not. And I think 19 that we would like silence to say that we oppose the 20 rewrite. 21 CHAIRMAN BOLLWERK: All right. I will not take silence 22' as assent then. 23 MS. CHANCELLOR: Thank you. 24 CRAIRMAN BOLLWERK: All right. Anything else you want
-25 to say?
O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250-I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
i 45 i 1 All right. In terms of the question of incorporation
- 2 by reference, let's deal with that whan we get down to the
{ ; { 3 contentions under the other issues that we've actually -- i 4 wc'll deal with that in a couple minutes, I think. 5 I guess at this point, why don't we go ahead and start 6 with, I think the first ones I listed here. And we're going 7 to start with other issues, then we'll move on to safety 8 issues, then environmental issues and emergency planning < 9 issues. . l 10 Anybody have a problem with proceeding that way? That } 11 seemed reasonable. l 12 And again, when we put these, as I mentioned earlier, 13 when we put these in a category, you are not necessarily 14 trying to narrow your contentions, you're simply getting a () 15 primary focus of, you know -- if you feel your contention 16 has both envirenmental significance, you can -- I think most 17 of you have made that fairly clear in some of the filings
! 18 that we've gotten.
19 In terms of -- let's start with Utah. Contention A, 20 question of the statutory requirements. i 21 I guess -- let me just make a preliminary comment. I t 22 have little doubt that you nave stated a legal contention 23 for the point. I don't think there's any question about , 24 that. I think the question the Board needs answered is when
?G wa consider it, is this something that's included under the O IdR4 RILEY & ASSOCIATES, LTD.
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- j 46
)
1-l-coles. And I guess that's what I would like you to focus on l V ; 2]inyourpresentation. _ 3 MS. CHANCELLOR: Your Honor, I believe that the Board i 4 l -- this is a fundaraental question of whether this proceeding i f 1 5 inould-go forward, whether NRC has the authority to license 6 this facility. # 4 7 If tM BC@6d feels that it does ner. have authority to ' j- 8 address this question, we request that the f.asue be set ' i 1 9 aside and sent,to the Commission for resolution. There's l 10 absolutely no sense in proceeding if NRC does not have the 11 rdatt;tery authority to license the f acility. We believe 12 there's adequate Npport in our contentions to show that NRC i 13 does not have such authority. 14 CHAIRMAN BOLLWERK: Would your argument be the same to 15 us i,f the notico, the Statement of-Considerations, the Part - i 16 72 when it was revised and adopted, had dealt with this ; 17 particular issue explicitly? Did it? I don't - - no one's i 18 ever said that to us. I don't know that it -- so let's say 19 the Commission -- if this comment was made, exactly the
- 20 point that you're making, had been made by a comment to the 4
21 rule,'would we -- would you be making the same arguttent to l 22 us in terms of our ability to consider this issue? 23 MS. CHANCELLOR: No. Because I believe that at the
- 24 time that the rule was adopted in 1980, 1980 -- yes, 1980 25 -- that this sort of a facility, a private national 4,000 4 O ANN RILEY & ASSOCIATES, LTD.
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47 1- MTU f acility was not contemplated. () 2 Assuming for argument's sake that such a facility were 3 to be constructed and the Commission did agree that it did 4 have the authority, at that stage, there may be an argutuent 5 l that the Commission had considered that issue. However, 6 before a real live issue is presented, there's no opportunity for the state affected to have any say in such a 8 decision by-the Commission. So we believe that this issue 9 is ripe; that.it is something that the Board should 10 consider. 11 CRAIRMAN BOLLWERK: So you're saying we can consider 12 this basically because the record at this point on this 13 particular point is -- has not been addressed by the 14 Commission? () 15 MS. CHANCELLOR: That is correct. 16 CRAIRMAN BOLLWERK: Okay. Anything else you want to 17 say on that point? 18 MS. CHANCELLOR: Not on that particular point. I'd 19 just like to go cver a couple of other things with respect 20 to the legal issues. 21 CRAIRMAN BOLLWERK: I don't know that'that's going to 22 be useful, because as I stated, I think you stated a legal 23 issue- I think the only question is can we consider it. 24 MS. CHANCELLOR: Yes, I believe you can, 25 CHAIRMAN BOLLWERK: Okay. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
48 1 All right. Mr. Silberg, anything you want to say on () 2 this subject? 3 MR. SILBERGt With respect to the State's response to 4 our answers, I think there are embedded in there a large 5 number of legal errors in the various factual statements. 6 In light of the fact that I think this Board is looking as 7 to whether the Commission-has precluded considering those I 8 issues, I think the single issue is that Part 72 says what 9 it says. . 10 There is no limit in 10 C.F.R. Part 72 that would 11 prohibit an applicant from licensing, from seek'ing a license i 12 for a 40,000 metric ton facility or a 20,000 metric ton i 13 f acility, or a 10,000 metric ton f acility, or a 2 metric ton 14 facility. Part 72 is open-ended with respect to the size of
) 15 the_ facility.
16 There was no indication that the Commission sought to 17 impose any restrictions on the size of the facility in terms 18 of the tonnage of said fuel that could be stored there, or 19 how large an area it might cover, or which reactors it might 20 cover, or any other limitations of those sort. The State 21 has pointed to nothing in 10 C.F.R. Part 72 which this size 22 facility would violate simply as a matter of size. 23 I think the legal basis that they have laid forth which 24 said -- which attempts to argue that the Nuclear Waste 25 Policy Act somehow revokes the authority that the Commission O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
49 1 already had and already had exercised is simply wrong. And () 2 their reliance on provisions in the Nuclear Waste Policy Act 3 to say that the NRC no longer had that -- excuse me, no 4 longer had that authority is simply in error, and they are 5 misconstruing provisions in the Nuclear Waste Policy Act. 6 The Nuclear Waste Policy Act does not limit the 7 authority in the Atomic Energy Act. And the provision that 8 they cite, 42 U.S.C. 10155(h), I believe it is, says that 9 notwithstanding anything in this act, that there shall be no 10 reliance on federal or private interim storage. It's the 11 reliance on this act that I think clearly shows that the 12 Atomic Energy Act's authority which pre-existed the Nuclear 13 Waste Policy Act continues after that. 14 As we pointed out in our brief, repeals by implication () 15 are disfavored. And there's clearly no indication that the 16 Commission intended to retract on the aut!ority that they 17 had already exercised when they issued Part 72. 18 CHAIRMAN BOLLWERK: So you're arguing that basically as 19 the plain language says, makes it clear that the 20 Commission's already considered this and therefore this 21 Board cannot? 22 MR. SILBERG: Right. It is clearly a challenge to the 23 regulations. What the State wants, I believe, would be 24 appropriate in a petition for rulemaking. They could 25 certainly petition the Commission to amend Part 72 to limit (- ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
50 1 its size to 339,999 metric tons or some other number. That () 2 3 is a remedy which is -- which exists for them under the Commission's regulations. But this hearing is not the 4 appropriate place to challenge those regulations or to ask 5 this Board to impose new ones. 6 CHAIRMAN BOLLWERK: Mr. Silberg, the limitations 7 cited in the contention, though, didn't refer so much to 8 size as to ownership, i.e. the State contended that the ! 9 Nuclear Waste. Policy Act assigned the ownership in federal 10 ownership as opposed to private. Would you address that? 11 MR. SILDERG: The Nuclear Waste Policy Act certainly 12 creates a program for the Department of Energy to build a 13 permanent repository, a monitored retrievable storage 14 facility, and a federal interim storage facility. There is O ( ,) 15 nothing in the Nuclear Waste Policy Act that suggests that 16 the Commission, which has pre-existing authority, cannot 17 license a private centralized int.erim storage facility of 18 that size or any other size. l 19 In fact, if you look at the purposes clause in, I think 20 it's Section 111 of the Nuclear Waste Policy Act, it 21 specifically provides -- let me get it for you. 22 Section 111(a) (5) says that, "The generators and owners 23 of spent nuclear fuel have the primary responsibility to 24 provide for and the responsibility to pay for the costs of 25 the interim storage of such waste and spent fuel until such d 4 O' ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
51 1 -waste and spent fuel is accepted by DOE." It doesn't say () 2 interim storage at reactor sites, it says intt.im storage. 3 So clearly Congress, when it passed the Nuclear Waste 4 Policy Act, was not repealing the existing authority that 5 the Nuclear Waste -- that the Nuclear Regulatory Commission 6 already had. 7 CRAIRMAN BOLLWERK: Is there anything that you can 8 point to in the Statement of Coasideration of Part 72 9 that -- where the Commission explicitly addressed the 10 argument that Ms. Chancellor is making? 11 MR. SILBERG: Part 72 by definition is aimed at private 12 centralized interim spent fuel storage facilities. That's i 13 what it's about. It was not until after Part 72 was enacted 14 that the MRS provisions were added once Congress passed the () 15 Nuclear Waste Policy Act. From its very start, it was aimed 16 'at interim spent fuel storage facilities. Some of those 17 were at reactors, some of those were away from reactors. 18 As we cited in our brief, the Commission had licensed 19 and has amended nine times the license for the G.E. Morris 20 facility, which is an away from reactor spent fuel storage 21 facility which has fuel from a number of different reactors 22 all over_the country. That is an existing Part 72 license 23- which the Commission has amended as-recently as, I believe, 24 1995, clearly indicating that the Commission believes that 25 it has the jurisdiction to do exactly what we have asked for O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 , 1
52 1 in this case. () 2 3 want to say? CHAIRMAN BOLLWERK: Anything else at this point you 4 MR, SILBERG: Oh, one other point. With respect to the 5 request that this issue be certified to the Commission, I 6 don't believe that the State has met the tests for 7 certification under 2.718. That is a discretionary step 8 which should only be taken in the most compelling 9 circumstances,.as the Appeal Board said in Palo Verde Alab 10 742, and where a party -- and it shw 6 only be issued where 11 a party is threatened with immediate and serious irreparable 12 impact which can't be later remedied or which affects the 13 structure of this proceeding in a pervasive or unusual 14 manner. (O
,,/ 15 Certainly, any time a conte _ ion is excluded, it affects 16 a proceeding. However, excluding this contention at this 17 time in no way affects this proceeding in a pervasive or 18 unusual manner. So I don't believe that they've met --
19 CRAIRMAN BOLLWERK: Unless Ms. Chancellor is right. 20 Then the proceeding is over, isn't it? 21 MR, SILBERG: If it's right? 22 CHAIRMAN BOLLWERK: That's pervasive. 23 MR. SILBERG: The Commission has already made that 24 determination. And this Board, as any licensing board, is 25 not entitled to second-guess the decisions which the ANN RILEY & ASSOCIATES, LTD. O~ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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i I 53 '. 1- Commission has made, both in its regulatory decisions and - ( 2 its adjudicatory. decisions. And that's true not only on 3 -this issue, but in any other issue, i 4 CHAIRMAN BOLLWERK: That's correct, assuming the t 1 5 Commission has addresced it. 6 MR. SILBERG Correct.
- 7 Dr. Lam.
I 8 DR. LAM: I have a question for Mr. Silberg. In his l 9 contention, the State has asserted that there are 10 fundamental differences between Part 72 and the Nuclear 11 Waste Policy Act. 12 For example, the State asserts that the Nuclear Waste 13 Policy Act requires a meaningful role ascribed to the 14 safety, but Part 72 is silent on that. And the State will 15 - provide another example. 16 What is your response to that, sir? 17 MR SILBERG: That is a congressional determination. 18 Congress included many provisions in the Nuclear Waste 19 Policy Act, and those were put in for a variety of reasons. 20 Some of them because Congress felt it was the right thing to 21- do, some of them may have been the right political 22 compromises, some of them may have been the moral and 23 correct result. For whatever reason, Congress has spoken. 24 ! And this Board I don't think is entitled to say 25 because Congress has included these items with respect to i l l
-( ) ,
ANN RILEY & ASSOCIATES, LTD. Court Reporters l 1250 I Street, N.W., Suite 300 5
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54 1 Facility A and these other items with respect to Facility B, () 2 that a licensing board can second-guess that determination > 3 and move those various factors from one column to another. 4 There are many requirements in the Nuclear Wacte Policy 5 Act which apply to projects run by the Department of Energy. 6 Whether that's because congress felt the Department of 7 Energy needed more or less limitation than a private 8 applicant, you know, one can speculate. But the fact is 9 that Congress has said what Congress has said, and this 10 Board and me and the State of Utah are all subject to those 11 statutory determinations. 12 DR. LAM: So are you saying this is the basis of what 13 you just earlier stated, that this -- you consider this 14 assertion a challenge to the rule? (k 15 MR. SILBERG: Yes. And if the State is saying that the 16 Commission has no authority to issue a Part 72 license to 9 17 this facility because the Department of Energy has to do 18 Items A, B, C for a monitored retrievable storage facility, 19 then they're clearly seeking to impose new requirements on 20 the Commission which Congress did not see fit to impose, and 21 that is a challenge to the regulations as much as anything 22 else. 23 CHAIRMAN BOLLWERK: All right. Anything -- thanks. 24 Anything further from the Board? 25 Mr. Turk? I O'- ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 J
( 55 1 MR. TURK: Ms. Marco will address this. ( ) 2- CHAIRMAN BOLLWERK: 'All right. Ms. Marco. . 3 MS. MARCO: It is the staff's position that the 4 Commission's authority to license private away-from-reactor 5 fuel storage comes from the Atomic Energy Act and that
- 6 nothing in the Nuclear Waste Policy Act impinges or limits 7 the Commission's authority.
8 The State has made several assertions in its reply , which I would like to address. 9
=
110 First, the State takes issue with the applicant's 4 4 11 reference to Siegel v. Atomic Energy Commission, a 1968 D.C. i 12- Circuit Court decision. The staff agrees with the applicant ) j 13 that Siegel describes the regulatory scheme authorized by 14 the Atomic Energy Act as being virtually unique in the !-( ) a 15 degree of authority the Commission has in achieving its l' 16 statutory objectives. L
- 17 The. State asserts that'Siegel applied to'the AEC and 1
18 that as a result of later events, Siegel no longer aptly 19 describes the NRC's authority. However, courts continue to 20 rely on the language of Siegel as authority for the 21 Con 1 mission's broad regulatory latitude. 22 For example, as recent as 1992, t?.e D.C. Circuit Court 23 of_ Appeals, in Nuclear Information Resources Service v. NRC, 24 quoted Siegel-and commented that "The Atomic Energy Act has 4 25 been consistently read as it was written, to give the 4 ANN RILEY & ASSOCIATES, LTD.
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56 l' Commission broad regulatory-latitude." ( ) 2 The State additionally asserts that the' Nuclear Waste 3 Policy Act does not delegate policy decisions to the NRC.
- 4. The State's reference to Kelly v. Selin,~however, does not
- 5. stand for the proposition that the Nuclear Waste Policy Act 6 does not delegate policy decisions-to the NRC.
- 7. First, it's the_ staff's assertion, as we addressed in 8 our brief, that the Nuclear Waste Policy Act does not apply 9_ to'the CommissAon's authority to license private 10 away-from-reactor storage.
11 In addition, in Kelly v. Selin, the court addressed one 12 policy that Congress had explicitly decided in the-Nuclear 13 Waste Policy Act, and that policy was to allow the NRC to 14 go ahead and approve various dry storage. technologies on a () 15 generic basis without site-specific hearings. And the court 16 stated that those who wanted those site-specific hearings 17 had to appeal to Congress and not the NRC. Kelly v. Selin, 18 therefore, does'not support the State's assertions that the 19 NRC is not free to decide issues of policy. 20 The State also makes the assertion that the history.of 21 Section 53-A of the Atomic Energy Act does not support its 22 use as authority for the NRC to license private 23 away-from-reactor storage. The State asserts that the 1967 24 -amendment 25 to Section 53-A was meant to clarify the Commission's O \m/ ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
-l 57 1 authority to license ownership of special. nuclear material,
() 2 3
-in addition to its possession and use, because special nuclear material was no longer a scarcity in '68 -- '67.
4 However,_the result of the 1967 amendment was to add to 5 the Commission's licensing authority'for special nuclear 6 material. It added ownership as an activity the Commission 7 could license, in addition to-what already was there for 8_ possession and use. 9 This appli, cation, as described in the Federal Register 10 Notice, is to possess spent fuel and other radioactive il materials associated with spent fuel storage in an 12 independent spent fuel storage installation. .The Atomic 13 Energy Act,' including Section 53-A, authorizes the 14 Comaission to license the possession and use of these () 15 materials. j 16 The State also makes the assertion that the
.17 - Commission's rationale for issuing Part 72 calls into 18 question _that claim that the Atomic Energy Act's byproduct 19 and source material provisions also authorize it to license 20 away-from-reactor ISFSIs. This, they say, is because 21 Part 72 is to provide a more definitive regulation for spent 22 fuel storage in place'of Part 70, the special nuclear 23 material regulations.
24 However, the Commission's authority section for Part 72 25 indicates that Part 72 was promulgated pursuant to the O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
58 ' 1 Atomic Energy--Act, Sections 62, 67 and 65. Those pertain to () 2 source materials; Section 81, which pertains to byproduct. 3 materials; as well as the provisions pertaining to special 4 nuclear material. 5 The Commission has specified a broader range of
-6 authority in further defining the regulations pertaining to 7 spent fuel storage. And the Commission in Part 72 states 8 that spent fuel includes byproduct storage of source and 9 special nuclea.r material.
10 The State also in its reply poses the question, and 11 this is their question; they say "NRC already had authority 12 under the AEA to license private storage facilities at the 13 site of a reactor or away from reactor.- Why did Congress, 14- in'the Nuclear Waste Policy Act, authorize private storage () 15- of spent fuel.only at reactors?" - 16 And the answer to that is that under the scheme of the 17 Nuclear Waste Policy Act, in order for a utility to enter
'18 into a contract to have DOE store its fuel, it must first 19 make'a: showing of need. And then, in addition, the utility 20 must first attempt various methods of on-site reactor 21 storage and as well as-trans-shipment of fuel to other 22 -reactors before it can contract with DOE.
23 Therefore, the provisions of the Nuclear Waste' Policy ' 24 Act addressing storage at reactor sites do so-in the context 25 of conditions placed on utilities prior to contracting with ANN RILEY & ASSOCIATES, LTD. O- Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
i 59 ' 1- DOE for-fuel storage.
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2 _ CHAIRMAN BOLLWERK: Let me just -- let me-interrupt 3 you. This kind of-seems to me to be going to the merits of 4 the contention. I-guess-our concern, unless you can clarify 5 it for me, is has'the Commission said, and.I_ask 6 Mr. Silberg, where has the Commission said or where can we 7-look to see if the Commission'has dealt with this issue that 8 Ms. Chancellor has raised so that there's nothing for this 9 Board to say on the matter? 10 MS..MARCO: It is part of Part 72. The overall scheme 11- of Part 72 provides for this and there's nothing that 12 . explicitly prohibits it. 13 CHAIRMAN BOLLWERK: So -- all right. So we_ basically 14 look at<the language of the regulation. I guess your answer () 1 15- is the same as Mr. Silberg's then. 16 MS. MARCO: Yes. 17 CHAIRMAN BOLLWERK: Okay. I don't need to look at the. 18 -Statement of Consideration to1see an argument that's been 19- made and responded to like it's been framed here then. 20 You're basically-saying the language of the regulations 21 takes care of it. 122 MS. MARCO: That's right. 23 CHAIRMAN BOLLWERK: Okay. A question. If the 24 Commission, for whatever reason, were to decide to pass a 25 regulation that allowed them to regulate FM radio stations,- O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
4 l 60
- 1 if someone were to come in to apply for an FM radio station
( ) 2 and someone_else would come in and say "That's not within 3 the Commission's authority," is that something the Board can 4 consider? j 5 MS. MARCO: It would be unclear as to whether the Board-6 -could consider it. Something that would probably have.to be 7 addressed under 2758(b), where the Board acts as a first 8 tier and let a commission look at that issue, i 9 CHAIRMAN BOLLWERK: All rioht. Anything else you want ' 10 to say on this subject?
- 11 MS. MARCO
- Nothing.
i n 12 MR. TURK: We have one procedural matter that we -- 1 13 CHAIRMAN BOLLWERK: Okay. 14 MS. MARCO: Oh, that's right, yes. We had filed an i () 15 errata letter as a result of this contention. And when we 16 did so, it looked like the first-two lines that we had 1 17 really wanted to be in were left out. So what I'd like to 18 do is circulate the proper page, if that's all right.
- 19. CHAIRMAN BOLLWERK: All-right. Your -- let's see. You 20 have a --
21- MS. MARCO: Yes. What --_a while ago, after we had 22 filed --
-23 CHAIRMAN BOLLWERK: Right. I remember receiving the 24 errata letter.
25 MS. MARCO: Okay. And what happened was that page was ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
61 1- not correct, because what happened was a portion of it was () 2 deleted and it bumped the whole thing-down on the page, on 3 the computer, and the first two lines got dropped. And we 4 meant to have them there and we'd like just to correct the 5 record. 6 CHAIRMAN BOLLWERK: So the errata letter was then 7 not --
-l 8 MS, MARCO: Yeah.
9 CHAIRMAN BOLLWERK: I just want to make sure I 10 understand. I'm not giving you a hard-time. 11 MS. MARCO: No, you're right. That's -- you're right. 12 CHAIRMAN BOLLWERK: Okay. You want to distribute that 13 to the parties? Is that what you -- 14 MS. MARCO: Yes, I'd like to -- 15 CHAIRMAN BOLLWERK: Okay. 16 MS, MARCO: -- add the new page to the record. 17 CHAIRMAN BOLLWERK: Have you sent a copy to the Office 18 of the Secretary? 19 MS. MARCO: We will. 20 CHAIRMAN BOLLWERK: I appreciate it. Or if that's 21 acceptable, you can simply serve it that way, in the normal 22 course of business. I don't know if'there's -- 23 MR TURK: May I suggest that we-bind it into the 24 record, Your Honor? 25 CHAIRMAN BOLLWERK: If you think it's important. I, i () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
62 1 you know, I'm not necessari.ly in favor of binding things () 2 into the record. 3 MR. TURK: We'll see the letter after they -- 4 CHAIRMAN BOLLWERK: Okay. Why don't we do that. 5 Why don't we consider this service on everybody; is 6 that all right? And then we'll disallow it and file it with 7 the Office of the Secretary, after giving a copy to 8 everyone. 9 MS. CHANCELLOR: Can I ask for clarification? Is this 10 the -- does this change the substance of the errata? 11 MS. MARCO: No , it doesn't. 12 MS. CHANCELLOR: So what you're saying is that you're 13 not -- 14 MS. MARCO: This merely, the two original lines that O) \s , 15 had nothing to do with why we're trying to -- and so this is 16 just to correct it. 17 CHAIRMAN BOLLWERK: All right. Ms. Chancellor. 18 MS, CHANCELLOR: I believe what this errata letter says 19 is that the NRC is retracting that this is a challenge to 20 the regulations. What it is is a challenge to the 21 Commission's statutory authority to make the rules. It is 22 not a challenge to the rules. 23 Clearly the Commission has authority to license an MRS 24 under Part 72, that's explicit in the Nuclear Waste 25 Policy Act. Also explicit in the Nuclear Waste Policy Act O) i ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 )
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2 v 63 l 1 .are that there are impact costs associated with -- that are 2 costs-3; to' state and local-governments -- that are associated with i
- I think it's clear that'when Congress made
~ 4 licensing.MRS's. l 4
's a policy choice, when there were_large centralized national I
1; 6 facilities, that they would pass through certain costs to 7- the-state. 4 8~ In addressing Siegel, that was a technological choice.
- 9 In that case,.the argument was whether comething could be 10 decided -- whether technology issues could be decided i
11 generically. .Here we're dealing with policy choices. This 12 is indeed pervasive on the proceedings if the Board does not
- 13 certify it, in terms of the Board certifying it for the
, 14 Commission.
) 15 The State has spent enormous resources up to this point 16 'to~get basically its. foot in the door and to continue on i .
j- 17- when this Board may not have authority to issue the license, ~ l- 18 I believe, is-a fruitless exercise, and either the Board l; 19; should address this issue or certify it to the Commission. I20 Thank-you.
- 21 CHAIRMAN BOLLWERK
- All.right, i
22- MR. SILBERG: Can I make one responsive comment to . ~23 that? l 24 CHAIRMAN BOLLWERK: Recognize every time you say j- 25 something -- . -i i f. e () ANN RILEY & ASSOCIATES, LTD. Court Reporters
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64 1 MR. SILBERG: Right. () 2 CHAIRMAN BOLLWERK: -- she's probably going to get 3 another chance. So -- 4 MR. SILBERG: Right. Just two points. 5 First, I'm not sure whether I heard right. The State 6 is saying that this is not a challenge to Part 72 but it is 7 a challenge to the Commission's statutory authorization, in 8 which case it's still not within the scope of this Board, 9 The Commission has spoken. 10 With respect to the Siegel case, the Sie5wl case did not 11 involve a policy choice. The Siegel case involved whether 12 the Commission should consider attacks from Cuba on the l 13 Turkey Point Nuclear Power Station. The Commission made a 14 decision not on technology, but rather that that was an item
/~)N
(_ 15 which was outside their authority. And as the staff noted, 16 Siegel has been cited multiple times, most recently in 1996 17 in a case that Ms. Curran and I were both involved in. - 18 The question of authority, I, think is clearly one that 19 this Board is bound by the statements of the Commission, by 20 the regulations of the Commission. And like any other 21 contention, you know, if it's out, it's out. And it may 22 have ramifications down the line, but one doesn't stop the 23 proceedings midpoint. 24 CHAIRMAN BOLLWERK: Anything you want to say? 25 MS. CHANCELLOR: I think I've said it all. ( ) ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-003'
_ _ _ .__._._._.m. _ . - . . _ _ _ _ _ _ . _ . _ . . _ _ _ . _ . _ . _ _ . , 1 65 1 CHAIRMAN BOLLWERK: All right. Very good. l [J
~'i 2 3~
Now, sir, Castle Rock 1, 2 and 3. similar to'me. Let's talk about those. They look pretty 4 MR.~LATER: I think No. 1 is pretty similar, Your 5 ' Honor.- -I think 2-and 3-we've tried to phrase in a way-that 6 addresses the_ question of whether or not the task of the 71 Commission has authority and regulations. 8 Let me talk about No. 1 a little bit. I think 9 number one is ,the closest to the State contention. I think 10 we get some arguments that perhaps have not-been phrased-11 directly by the State, although I think they are probably [ 11 2 inclusive in the State's argument. 2 l 13 As I understand the parameters of what the panel has 14 asked for us, it is to deal with the first of two questions; () 15: the first question being, is this something that you folks 16 can address at all or are you prohibited from dealing with 17 it; the second question being, is the contention, in fact, 718 well founded. { 19 As we have argued, I think there are two. ways in which 20 'this panel can successfully get at this question, which'is 21 indeed fundamental. The first of them we would argue is 1 {' 22 that this is a proceeding-that was not fairly raised within 23 ~the scope of Part 72 regulations, and, therefore, our
-24: objection and contention is timely. And I think that issue
- 25- comes down to the question that although the bare language i
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66 1 of the regulations would not of itself preclude such an application, it is manifest that those regulations were not ('w 3 prepared in contemplation of any such facility, nor has any 4 such facility been presented to the Commission previously. 5 But, in fact, Part 72 is the regulations contemplated 6 small facilities tied directly to particular power plants, 7 not the facility intended as a substitute or make way 8 permanent national repository, and that such a proposal , 9 could not have.been considered or peer reviewed when those 10 regulations were adopted and, hence, challenged on that 11 basis. It could not have been presented at that time, and 12 therefore, our challenge is, at this time, timely. 13 I think the second method by which this panel can get 14 at this fundamental and all important issue is simply () 15 exercising the authority to either deal with it as 16 appropriate or to certify that question through the , 17 Commission. We presented a petition to that effect to this 18 panel. We think it's very clear that we meet the standard 19 for such a certification. 20 There is nothing more pervasive in the nature of these 21 proceedings than whether or not the Nuclear Regulatory 22 Commission has authority to license such a facility. And if 23 it has not such authority, everything that happens here from 24 this point on will be a waste of time. It is the most 25 fundamental question that this panel can either address or [ \ ANN RILEY & ASSOCIATES, LTD.
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67 1 get guidance on from the NRC. () 2 So we would suggest to you, on those first questions, we 3 think that there are twc routes by which this panel can 4 reasonably raise and resolve that fundamental question, 5 and -- 6 CHAIRMAN BOLLWERK: Why can't you determine the case and 7 the question about -- do you think those are interrelated? 8 We think the Commission has already dealt with this question 9 and we can't 1.ook at it. Why should we send a question up 10 that we've already dealt with? 11 MR. LATER: I guess you can reach that question and 12 truly make a conclusion that yes, in fact, the Commission 13 has addressed this. We know their answer. You're probably 14 right. There's no since sending it up to the Commission if i () 15 you're going to get the same answer. I don't think you've 16 got a record that suggests that, in fact, the Commission 17 ever contemplated those regulations as encompassing such a 18 facility and including and in comparing this facility with 19 those regulations, with the provisions of the Nuclear Waste 20 Policy Act, and seeing if, in fact, there is a harmonious 21 way for which this facility can be licensed in view of the 22 Nuclear Waste Policy Act. I simply don't believe that there 23 is such a record. I don't think I've seen an argument that 24 demonstrates that either from the applicant or from the 25 staff.
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68 1 But I would have to agree with you. If you reach that (} 2 conclusion that you know what the Commission's answer is 3 already going to be and you're comfortable that they have 4 already addressed that question, I would agree with you. 5 It's probably pointless to certify the question. 6 CHAIRMAN BOLLWERK: Briefly, let's look at 2 and 3 and 7 tell us how they're different, so that we don't need to deal 8 with them separately. 9 MR. LATER:, No. 2 we tried to raise hopefully with a 10 little bit of craft. Some of the same sets of questions of 11 what we had suggested there is we have tried to frame the 12 issue as saying what is involved is an appropriate I 13 construction of the regulations and try and phrase those 14 issues. This is a facility, an application that has never () 15 been seen before. 16 How should the regulations be construed to 17 appropriately apply, if at all, to such a facility, and 18 particularly in light of the Nuclear Waste Policy Act? I 19 think it's the obligation of the Commission and this panel 20 to apply the regulations before it in a manner that is 21 harmonious not simply with the Atomic Energy Act, but with 22 all of the congressional mandates under which the Nuclear 23 Regulatory Commission operates. And we have tried to argue 24 in our second contention that this panel can appropriately 25 utilize its authority in construing those Part 72 O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 _a
a 69 1 regulations in a way that-tries to harmonize-the statutory. 2 authority it_ operates under in viewing this application. 3 Our conclusion on that, of course, is that when you try 4 and do that, this application can't be fit under a 5 reasonable and fair interpretation of those regulations . 6- viewed in the light of the appropriate statutory authority. 7 That's the nature of the second contention, Your Honor. e 8 CHAIRMAN BOLLWERK: I think it's interesting your first
- 9 word should no.t be coming -- your first argument is -- your-4 10 first contention basically says the statute doesn't 11 authorize us no matter what the regulation says.
! 12 MR. LATER: Correct. 13 CHAIRMAN BOLLWERK: The second argument is, in' fact, the regulations were consistent with your interpretation of the 14 () 15 statute and staff simply misconstrued the regulations. , 16- MR. LATER: That the regulations must be construed . 17 consistent with the statute, can be construed consistent 18 with the statute and that the staff has read them
-19 over-broadly.
20- CHAIRMAN BOLIWERK: By accepting the application. 1 21 MR. LATER: That is correct. 22 CHAIRMAN BOLLWERK: No. 3 then, in terms of the topic of 23 DOE viewing problems, how are they different and what is the 24 implication to No. 2? 25 MR. LATER: I think that No. 3 probably embodies
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70 1 parts of No. 1 and No. 2, that there are portions of (V) 2 it I think that probably you can only reach if you address 3 the question of the Nuclear Waste Policy Act. And I think 4 it raises some of the same sorts of chr.11enges of standing 5 as you get in the first contention. 6 CHAIRMAN BOLLWERK: If we were to find -- if we were to 7 deal with the issue in 5 and, in fact, the staff and the 8 Commission has dealt with this application consistent with 9 the Waste Policy Act, that this is a license that the 10 Commission could issue, then No. 3 would go by the wayside. 11 MR. LATER: I think that's a fair reading of it, Your 12 Honor. 13 CHAIRMAN BOLLWERK: All right. Mr. Quintana, what would 14 you like to say? () 15 MR. QUINTANA: Well, brieflyr it appears to me a motion 16 for summary judgment on the part of the State of Utah and 17 Castle Rock, which at this point is probably premature in 18 this proceeding based on the summary judgment. 19 CRAIRMAN BOLLWERK: Well, I would say that if this issue 20 came in, it probably would be premature. You're correct in 21 that respect. 22 MR. QUINTANA: Current management. And if their 23 contention is correct that there is no authority to issue a 24 license, then I suppose then that no license would be 25 required, and I guess we could dispense with these ANN RILEY & ASSOCIATES, LTD. O(> Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
71 proceedings'and we could proceed with construction. 1 [ ) 2 But since the--Atomic Energy Act requires a license in 3 this instance, I think that federal law would in this 4 instance govern and that these proceedings should go - 5 forward. 6 CHAIRMAN BOLLWERK: All right. Mr. Silberg, do you 7 have anything you want to say on Castle Rock's assertions on 8 1, 2 and 3? 9 MR. SILBERG: Yes. First, with respect to their 10 impermissible challenge, number one, the-cases that they-11 cite on the timeliness of the review are all cases that go 12 to the issue of when reviews are timely in the judicial i 13 arena and not in this arena. In this arena, challenges to 14 rules are governed by 2.758. Castle Rock has submitted such () 15 a petition. One of the things I think we need to do before 16 the end of this pre-hearing-conference is to establish a 17 schedule responding to that. I'm not right now prepared to 18 offer a date, but we ought-to make it -- review that before 19 - - - 20 CHAIRMAN BOLLWERK: Repeat-that again. 21 MR. SILBERG: Castle Rock has filed a petition under 22 2.758 and I think -- 23 CHAIRMAN BOLLWERK: You're absolutely correct. 24 MR. SILBERG: -- one of the things we ought to do is 25 establish a schedule. And I think that is the appropriate O ANN RILEY & ASSOCIATES, LTD. Court Reporters l 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
72 mechanism, but I think they have correctly recognized that
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- 1 2 it is a challenge to the regulations.
(} 3: Their argument-is that it's not an impermissible , 4 challenge and I'm not sure I understand why their cases on 5 the timeliness of judicial review are at all relevant to a 6 challenge in this particular forum. 7 They said that Part 72 ought to be interpreted as . 8 license -- providing for licensing only of small facilities 9 tied to nuclear power plants. I think that reading is 10 flat-out inconsistent with the clear and unambiguous words
- 11 of i
j 12 Part 72. Part 72 clearly includes provisions for licensing 13 away from reactor interim storage facilities, not just ones 14 at nuclear power reactors. O g ,f 15 The argument that Part 72 doesn't count when it's a
- 16- large facility I think I addressed before. Part 72 simply .
17 has no provisions. .And if one would argue that it.doesn't 18 provide for a 40,000-metric ton facility, it also doesn't 19 provide for a 1,000 metric ton facility or neither one 20 metric ton facility. L 21 Castle Rock also refers to provisions in the Nuclear 22 Waste Policy Act which it believes prohibit-the NRC from 23 licensing this facility under Part 72. Unfortunately, they 1 24 have misquoted the statute when they say that establishing z. 25 the federal responsibility and a definite federal policy for i l j { ANN RILEY & ASSOCIATES, LTD. v Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 j
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k 73 l' the disposal of such waste and' spent fuel is the law of the 2 Nuclear Waste Policy Act.- 3- Whatlthe-statute actually says is -- that quote is + 4 actually_a. correct quote, but it didn't talk about a 5 _ definite federal policy for the storage of spent fuel. It 6 said for the disposal of spent fuel. " Spent fuel disposal" 7 is specifically defined _in theLNuclear Waste Policy Act as 8 something other than storage. 9 Furthermor,e, when they talk about the provision in the 10 Nuclear Waste Policy'Act on not authorizing the private use 11 of storage facilities, 42 U.S.C. 101557,_they ignore the 12 fact that the wording that they quote that says "Nothing in 13 this chapter shall be construed to authorize," the word 14 " chapter" refers not to the Atomic Energy Act or to all () 15 federal statutes, but only to the Nuclear Waste Policy Act. 16 So that the authority which the Commission has under the 17 Atomic Energy Act is in no way cut back by the subsequent 18 provisions in the Nuclear Waste Policy Act, 19 Congress did, in fact, restrict what DOE could provide 20_ in the way of interim storago, and the 1900 metric ton 21 capacity which they talk about is-clearly restricted to a 22 DOE program. There is nothing in the act which says that 23 that program was meant to supersede all other private 24- efforts which the State -- which this applicant or other 12 5 applicants may proceed with. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
74 1 With respect to contentien 2, there simply is no -- 2 again, no basis for needing to construe Pc : 72 in a way 3 which restricts the Atomic Energy Act and the NRC's 4- authority, because to make at harmonious with the Nuclear 5 Waste Policy Act, the Commission has already done that when j 6 it amended Part 72 to add the mondtored retrievable storage 7 provisions,'which it did in 1983. There is nothing 8 inharmonious with Part 72 and the. Commission providing for l 9 the licensing of a private facility when the Nuclear Naste , 10 Policy Act provides for federal facilities and does not 31 contain any language which prohibits a private facility 12 licensed under other provisions of law. 13 There's one other point which I'd like at least to note 1 14 for the record, and it didn't occur to me when I read Castle ( 15 Rock's petition' initially. 16 The first five contentions of Castle Rock are the only' 17 contentions which the third member of the Castle Rock 18 trilogy supports. There are three parties to the Castle 19 Rock petition; Castle Rock, Skull Valley and Ensign.
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And 20- it v 1 interesting.when I noted that Ensign only supports 21 the first five contentions. 22 I would note that all those entities are essentially 23 owned by the same group. - They are represented by the same 24 party. I think the attempt is to provide for an early run 25 to the Court of Appeals and the Commission if this Board ANN RILEY & ASSOCIATES, LTD. O. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
75 1 were to deny those contentions and thereby deprive Ensign of 2 its standing. And I think it's just something the Eoard 3 ought to be aware of, because it isn't obviously flagged in 4 the pleadings that Castle Rock has submitted. 5 CHAIRMAN BOLLWERK: All right. I noticed that. It's M 6 an interesting observation. I noticed it myself, and you 7 know, what follows follows. That's -- okay, 8 Anything else? 9 All right.. Ms. Marco? Do you have any comment on the 10 hypothetical I posed, Ms. Marco, .about the Commission 11 passing a regulation on the licensing effort? Is that 12 something this Board could consider, has authority? 13 MR. SILBERG: I think this Board could not consider it 14 other than to treat it under the provisions which the 15 Commission has created for such regulatory challenges, h i.e. 16 10 C.F.R. 2.758. 17 CHAIRMAN BOLLWERK: Ms. Marco. 18 MS. MARCO: The staff believes that Castle Rock's 19 contentions 1, 2 and 3 are a direct challenge to the 20 regulations. Castle Rock would read into Part 72 an 21 exclusion of off-site facilities. This exclusion does not 22 exist in Part 72. 23 In addition, Castle Rock, with contentions 2 and 3, 24 would read into Part 72 requirements on an off-site 25 applicant that are simply not there. Castle Rock, in its G ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
76 1 brief, asserts that the regulations must harmonize with the 2 implementing statute and we address this in our response 3 that Part 72 does harmonize with the AEA and with the 4 Nuclear Waste Policy Act, where that Act applies. 5 That also -- Part 72 also addresses MRS facilities as 6 well. 7 With respect to Castle Rock's reply with its first 8 contention, Castle Rock makes the assertion that the Nuclear 9 Waste Policy A.ct is a comprehensive and exclusive program 10 for the storage of spent nuclear fuel. There's no support 11 for this statement. In fact, as the Ninth Circuit stated in 12 State of Ohio v. DOE, the interim storage provisions of the 13 Nuclear Waste Policy Act are not comprehensive and 14 exclusive. f~'h 15 And, therefore, Castle Rock is incorrect in its G 16 assert /on that the Nuclear Waste Policy Act is Congress' 17 comprehensive and exclusive program for the storage of spent 18 nuclear fuel. 19 Castle Rock claims that the NRC's reliance on the State 20 of Idaho -- I'm sorry -- Idaho -- is misplaced because it 21 concerns the effectiveness of a pre-existing DOE contract. 22 However, like here, the State of Idaho case addressed the 23 storage of waste. That was not the subject of a contract 24 for interim storage entered into pursuant to the Nuclear 25 Waste Policy Act. And like Castle Rock, the State of Idaho p, ANN RILEY & ASSOCIATES, LTD. tj Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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.1 contended that the interim storage provisions of the Nuclear 2 Waste Policy Act would be violated if the wastes were
, 3 stored. 4 The court's analysis of the Nuclear Waste. Policy Act is S applicable here because the private storage proposed by the d 6 applicant is an alternative to the storage under the scheme 7 of the-Nuclear Waste Policy Act. The court stated: 8 "Each of the Act's various requirements concerning t 9 interim st.orage are specifically limited to 10 contracts entered into pursuant to 11 Section 101.55A(1) (a) . " ! 12 And the court further stated that: 13 "The Act's restrictive language limits the 14 requirements to the specific step of remedial () 15 16 storage agreements authorized by the Act itself." Juni the Act does not preclude -- therefore, does not
- .17 preclude private storage options.
18 1CRAIRMAN BOLLWERK. Sir, it's your turn. Just let me 19 ask one question before you go into your response. 20 The applicant has raised a question-about contention 4. 7 21 How is that different than what you have in here as well?
- 22 MR. LATER: The contention 4 I think raises an entirely i
23 different question. And what we have suggested is we 24 believe the evidence supports a finding that DOE, either l 25 explicitly or tacitly, is offering with the applicant to ANN RILEY & ASSOCIATES, LTD. 4.O
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78 1 secure the statutory and regulatory scheme in a manner 2
) that's not intended and that this Commission should in no '
3 fashion, whether or not the application would otherwise be 4- appropriate, assist in such an activity. 5 CHAIRMAN BOLLWERK: I guess my question goes back to 6 one that I asked you earlier with respect to No. 3. If the
-7 Board were to determine that the Commission has authority, 8 would No. 4 go out, as well?
9 MR. LATER:. I don't think so. I think, Your Honor, L 10 that even if the application was otherwise well taken, if it L 11 was a result of an improper agreement between the Department 12 of Energy and the applicant, that the NRC would be 11 3 appropriate and, in fact, should reject the application 14 simply on that basis. () 15 16 CHAIRMAN BOLLWERK: You think the DOE has the authority to do what it's doing? What then is our authority to look 17 into whatever basis they decided to move forward or the 18 applicant decided to move-forward? 19 MR. LATER: 'We suggest that the basis of that finding 20 would be-that DOE did not have the authority, in fact, to 21 enter into any such tacit or explicit agreement with the 22 applicant. And that kind of a fundamental of that 23 contention is finding that the Department of Energy has 24 violated or failed to carry out its obligations under the 25 Nuclear Waste Policy Act, and that this application was a ANN RILEY & ASSOCIATES, LTD. I Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
79 1 result of an agreement between the Department of Energy, 2 either tacit or explicit, and this applicant to allow DOE to 3 escape-lrom the consequences of that failure. 4 I think that's a different argument, a different basis 5 than the first three contentions, and.it does not confront 6 or attack any of the regulatory basis of the NRC. 7 Let me go on, if that addresses your question, and 8 respond to some of the things that have been said. 9 CHAIRMAN B.0LLWERK: Let me ask Mr. Silberg here. Do 10 you have anything you want to say on the point that he's 11 made in terms of.the application on number 4? 12 MR. SILBERG: Well, 4 I just found to be almost 13 humorous. To argue that the utilities, which is -- and I
- 14. personally have spent the last decade through the Department
() 15 16 of Energy to meet its obligations under the Nuclear Waste Policy Act -- are somehow in the league with DOE to help it 17 avoid its obligations is really,-frankly, ludicrous. 4 18 There's no shred of evidence, other than some very creative. 19 legal libel, to support that. I think it's totally 20 baseless. 21 CHAIRMAN BOLLWERK: All right. Anything staff wants to 22- say on that point? Mr. Quintana? Let me go to Mr. Quintana 23 first. 24 MR. QUINTANA: Very briefly, the Skull Valley Goshuter 25 went through the federal process under the Nuclear Waste
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80 1 Policy Act to build a monitored retrievable storage
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2 facility. They signed and negotiated an agreement with , 3 Washington to build a facility, and the next day the entire 4 federal program was cancelled. 5 Prior-to entering into an agreement with Washington to , 6 try to build this facility, the Skull Valley Goshutes 1 7 briefed at length the State of Utah and the surrounding l 8 communities on all aspects of what was proposed, which is 9 virtually quite similar to what is being proposed now. , 10 At that time, there were no technical objections, no 4
- - 11 engineering, no scientific objections made by the State of
'12 Utah and by other surrouncing communities.
- j. 13 MS. CHANCELLOR: Objection, Your Honor.
j 14 CHAIRMAN BOLLWERK: What's the objection? () 15 MS, CHANCELLOR: He's making expressions as to what we 16 asserted were for purposes of the MRS, but didn't object to 17 that. I don't think there's anything in the record that 18 establishes that. -On the Goshutes we're proposing an MRS on 19 He made the assertion that the State the reservation. i 12 0 didn't raise any objections to that. , 21 CHAIRMAN BOLLWERK: Right. Mr. Quintana, let's do one 22 thing. Let's keep this to the question of whether these 23 contentions should come in. Some of what you're saying 24 sounds to me that it is going a little bit to the merits. 25 MR. QUINTANA: In terms of whether his contention i i ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 i Washington, D.C. 20005 (202) 842-0034
- 81 a-r i should~come in,'the position of Skull Valley is it should
/ 2' .not come in.-
3 CHAIRMAN BOLLWERK: Does staff want to say anything on 4 contention 4? a 5 MS. MARCO: The staff believes it should not come in 6 bece'tse there's no support for it and.it really wouldn't 7 entacle Castle Rock to any r? lief in this proceeding. l 8 CHAIRMAN BOLLWERK: Anything else? I've added one
- 9 there, but I'll let you have all four now.
10 MR. LATER: Okay. Thank you,. Your Honor. .I think that 11 there is, in the responses that we have received, what seems . 12 to me to be a curious mixture of the procedural argument !. 13 which lapses into an argument on the merits of the 14 contention. It makes it very difficult in some ways to 15 respond to and to sort out those arguments. 16 I would suggest that some of the confusion is ! 17 engendered simply because the-point that it is so important 18 for this panel to reach this contantion is simply 19' undeniable and that there are procedures by which this 20 panel can either itself reach that question or certify it to
'21 the Nuclear' Regulatory Commission.
22- That principle seems.to me to be virtually 23 unchallengeable. You cannot argue that the ccatention is ,J. l 24 not absolutely fundamental to these proceedings. It is j 25 clear that it is a contested issue, and we can have all j l O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 i Washington, D.C. 20005 i (202) 842-0034
82 1 kinds of interesting discussions about what is the scope of 2 the Nuclear Waste Policy Act. 3 For this stage in the proceeding, it ought to at least 4 be a point of agreement that that is a question that should 5 he resolved before the parties proceed, before the rest of M 6 the effort is potentially wasted, before the parties incur 7 enormous expenses proceeding down the road. Certainly for 8 the Ensign Ranches' petitioner, if it elects to dismiss 9 those first fi.ve contentions, that constitutes an 0 10 irreparable injury to that petitioner who no longer would 11 have standing before this body. And that alone would 12 justify a certification of this issue to the Nuclear 13 Regulatory Commission. 14 Now, let me make hopefully three and potentially four ) 15 questions, the fourth dealing with the fourth one of those 16 contentions, four responses to what I have heard. 17 The first is the set of cases that we have raised and 18 cited to this panel that stand for the proposition that a 19 where a facility or an application such as this was not 20 fairly within the scope of the original regulation, it is 21 appropriate for a petitioner to raise a challenge as to the 22 applicability of those regulations and that such a challenge 23 is timely. 24 Mr. Silberg has pointed out that those cases involve 25 judicial challenges. I think perhaps one of them or more G ANN RILEY & ASSOCIATES, LTD. 1250 I Street, N.W., Suite 300 Court ReporteLs Washington, D.C. 20005 (202) 842-0034
83 1 may deal with the timeliness and challenge to the agency. I 2 would suggest in any event that the rationale is appropriate 3 in either case; that in either case, this panel, as a court, l 1 4 must consider whether the challenge is timely and 5 appropriate, l 1 And under the standard we've set forth from 6 those cases, it is clear that this challenge is both timely 7 and appropriate. { B The second point I'd like to make in response deals 9 with the scope,of the Part 72 regulations. And the 10 discussion I think that has gone on between the parties is 11 that the applicant has taken the position that whatever is 12 permissible within the language, whatever you can drive a 13 truck through in the regulations is allowed. . 14 And we have suggested to this panel that interpreting () 15 those regulations, as any regulatory body, that the 16 interpretative standard must be one ot rationality and - l 17 y fairness of the regulations for their intended purposes 18 rather than a simple blind and mechanical application af i 19 those regulations when their scope and intent is unclear. 20 And we would suggest that under a standard that a fair 4 21 and rational reading, that the application presented here is 22 being put under set of regulations for which it was never 23 intended; the regulations were never contemplated to apply 24 to a facility of this scope, size and potential durationi 25 and, that it is entirely appropriate for this body to look 4 1 ANN RILEY & ASGOCIATES, LTD. Court Reporters 1250 I Street, N.W,, Suite 300 Washington, D.C. 20005 (202) 842-0034
, -_ _ - - __ ._ _, _ .._ .-_ ,_.. _ ._ _ . , ~ . _ -
84 1 at the application and its regulations in a rational and 2 fair light to make that judgment, and that to apply those 3 regulations mechanically is neither warranted nor 4- appropriate. 5 The third point I'd like to make, since I have very 6 dutifully resisted in all that I have said before dealing 7 with the merits of whether or not the Nuclear Waste Policy 8 Act does, in fact, govern aid limit the application that's 9 . before this body, is simply to take a moment and direct this 10 panel's attention to Section M-151 of the Act dealing with 11 interia storage. 12 - The congressional findings first, the act recites that 13 l "The persons owning and operating civilian nuclear power I 14 reactors have the primary responsibility-for providing ) 15 l interim storage of spent nuclear fuel from such reactors." l - 16 li That language has been cited to this panel earlier today, 17 l And it goes on to say as part of that congressional I , 18 finding, "by maximizing to the extent practical the 19 effective use of existing storage facilities at the cite of 20 l each civilian nuclear power reactor and by adding new on-I !. 21 l site storage capacity in a timely manner, where practical." 1 I The second congressional finding recites that, "The 22 l ! 23 lfederalgovernmenthastheresponsibilitytoencourageand 24 ! . expedite effective use of existing storage facilities and f 25 the addition of needed new storage capacity at the site of 4 O ANN RILEY & ASSOCIATES, LTD. Court Reporters J-1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 l 3
-,,4,, I,.,, 4 ,,,..,,,,,-..,.r., ,._,,-.,~n--., , , - . - , - . ~ . - . , , , . , _ , , , - - - , . . . - , _ _ , . . _ . , . - - , , , , - , , , ,-,,-,-,,,..c
85 1 each civilian nuclear power reactor," and, finally, provides
)
2 a congressional finding that the federal responsibility is 3 to provide a facility -- provide allowing for not more than 4 1900 metric tons of capacity for interim storage. 5 These are provisions, congressional findings with
- 6 respect to interim storage as part of that comprehensive 7 statute. I would suggest that these are provisions that 8 apply as much to this panel, to this application as to any 9 actions of the. Department of Energy.
j 10 And, finally, my last comment, on the fourth of the 11 contentions that we have submitted. If, in fact, this 12 application is a result of an agreement, tacit ar express, 13 whereby the Department of Energy attempts to escape and 14 subvert its responsibilities, it would be inappropriate for ]() 15 the Nuclear Regulatory Commission to approve the 16 application, even if it were otherwise and on its own , 17 appropriate, and we would, therefore, be entitled to the 18 relief we seeh. 1 19 And as far as evidence goes, I would suggest that 1 20 Mr. Quintana's comments provide an initial basis of evidence 21 where the Department of Energy, in fact, sought this site, 22 sought it for a monitored retrievable storage facility, was 23 denied that and the program was closed down, and finds 24 itself now in the position to recover it through a back 25 door. ANN RILEY & ASSOCIATES, LTD. A Court Reporters 1250 I Street, N.W., Suite 300 Washington,.D.C. 20005 (202) 042-0034
86 1 The contention is appropriate for discovery. We've 2 outlined the bases which provide a factual basis sufficient 3 for the conduct of discovery, and we would be entitled to 4 relief under that contention. Thank you. 5 CHAIRMAN BOLLWERK: Mr. Lam, discussion? 6 DR. LAM: Yes. I have listened to Castle Rock. Are you 7 saying in contention No. 4 that the Department of Energy is 8 intending to evade its statutory mandates? 9 MR. LATER:, Yes. Yes. In fact, it's already failed its 10 statutory candates. That question is no longer even l 11 debatable. 12 DR. IAM: I am talking about intentions. 13 MR. LATER: Yes. 14 MR. KENNEDY: Mr. Hearing Officer. 15 CHAIRMAN BOLLWERK: 6ir? 16 MR. KENNEDY: I tried to make a comment earlier and 17 because I'm over on the side, I think I'm beyond the 18 peripheral vision. 19 CHAIRMAN BOLLWERK: I apologize. Raise your hand and 20 I'll acknowledge you. You are over on the side. I'm 21 missing you, you're right in the middle, but, please, pound 22 on the table or something. 23 MR. KENNEDY: Thank you. I just wanted to speak to the 24 condition of the tribes with respect to both the State's 25 conter4tions and Castle Rock's contentions on these items ANN RILEY & ASSOCIATES, LTD. N, -Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
87 I that we've-been discussing here over the last hour or so. () 2 3 MR. SILBERG: Excuse me. Mr. Chairman, if I may? think the Board's order indicated that only the parties that I l 4 were proffering the contentions were going to be addressing ; 5 them. 6 CHAIRMAN BOLLWERK: That's right, and that's what I 7 intend to do. Do you intend to address the merits of the 8 issues? 9- MR. KENNED,Y: We have adopted, by reference, these 10 contentions. And as I understand it, the panel has not yet 11 moved on that aspect of the proceeding. 12 CHAIRMAN BOLLWERK: Well, maybe they'll finance us and 13 we'll move to that right now. My feeling is that -- let me
~14 put it_this way. We're not going to -- I don't think we're
() 15 16 prepared at this point to rule necessarily on incorporating by reference. We're dealing with the question of the 17 procedure under which we'll conduct this. I think that we 18 are satisfied to learn -- well, what we'll be hearing, we 19 need to be hearing about the contention from the person that 20 actually put the-contention forth. I don't think we feel 21 it's going to add anything to have all the parties here 22 incorporated by reference. If we do allow incorporation by 23 reference, it's a part of the case that you would be 24 permitted to litigate, although I should also add that ! 25 we would then -- it's the situation between the intervenors. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 , Washington, D.C. 20005 (202) 842-0034
88 1 We're not going to have every intervenor here litigating () 2 3 every issue. Even if incorporation by reference, there will be a direction that certain intervenors take the lead on in 4 a particular contention. To some degree, that's what we're
-5 doing now. We're saying that the party that adopted -- not 6 adopted, but proposed the contention or put forth the bases, 7_ that's the party we want to hear from.
8 MR. KENNEDY: My understanding is that Skull Valley has 9 been heard from. Did they put forth this contention? 10 CHAIRMAN BOLLWERK: Skull Valley, they are opposing the 11 contention. Mr. Quintana does not want this to happen; is 12 that correct, sir? 13 MR. QUINTANA: That's correct. 14 CRAIRMAN BOLLWERK: He's in the same position as the 15 other one. 16 MR. KENNEDY: Well, we would like to support the 17 contention, then, in that regard. E18 CRAIRMAN BOLLWERK: If you said that you wanted it 19 admitted -- all I'm saying is that my assumption is that you 20 want it_ adopted by incorporating it by reference, you 21 certainly can support that. All we're saying is that for 22 purposes of procedure here, we can argue that we're going to 23 hear from the party that posed the contention and put forth 24 the contention in their pleading and put forth the bases. 25 MR. KENNEDY: We submit for the record that that's what 1 O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
1 i 89 1 we've done by. adopting it by -- 2 CHAIRMAN BOLLWERK: I understand your position on that. [ 3 What I'm simply saying is for the present purposes, all , j 4 we're going to hear from is the party that actually put the 5 contention in. 6 MR. KENNEDY: Thank you, 7 CRAIRMAN BOLLWERK: Okay. Any questions about that? 8 Have I made myself clear? 9 MS. CHANCELLOR: Are we addressing the entire issue of 10 incorporation by reference? 11 CRAIRMAN BOLLWERK: If you have something you want to
- 12 say, go ahead.
13 MS. CHANCELLOR: Okay. Our concern is if any of the
- 14 parties. drop out,-what is the ability.of those remaining in-() 15 to adopt the contentions of the parties that drop out. So 16 that's our primary concern of incorporation by reference.
17 CRAIRMAN BOLLWERK: Definitively, I think the problem -- ' 18 frankly, one could say -- although I don't want to get too 19 much into the merits here -- that the main advantage of 20 incorporation by reference is that if the party does drop 21 out, that the contention is still there. You know, if the 22 incorporations by reference are not permitted, then clearly 23 it could become a real bomb there. I mean, that would be 24 the main distinction. 25 Even if the Board does allow incorporation by O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
90 1 reference, we will, in all likelihood, be working toward an [} 2 intervenor situation with the contentions. So that, you
- 3 know, other parties have an opportunity for input, but we'd 4 be looking for one party specifically particularly on any 5 given contention, which we would advise you of and get your G comments.
7 MR. LATER: Your Honor, if I may add one point on that. 8 We also have a concern, I think, if it's appropriate to 9 allow incorporation by reference. I think as we go into 10 discovery, there may be instances where, although an 11 original proponent of a contention would certainly take the 12 lead, that other parties may have additional viewpoints. 13 They may be able to contribute to discovery, and really 14 contribute usefully to the process. And we would suggest an () 15 appropriate way for the panel to handle the concerns about 16 duplication of effort is really to address the coordination 17 of discovery and having another party take the lead, but not 18 barring others from contributing to that discovery process, 19 CHAIRMAN BOLLWEkha I would understand and, you know, 20 assuming they would agree with that, you would agree. You 21 would have to work that out, obviously. But I would accept 22 the intervenor, obviously, talking to other people about 23 incorporating that contention and talking about what they 24 want to ask. If there's something the two of them can work 25 out, then maybe the matter should be brought to the Board's (~' N ANN RILEY & ASSOCIATES, LTD. _ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
91 1 attention. But that's something we can work out as they
)
2 come along, but I'm giving you a little preview of what we 3 sort of have in mind, assuming we would permit this. 4 Did anyone want to say anything else about incorporation 5 by reference? I think it's been addressed in the pleadings, 6 My understanding of the staff position, if you could help 7 me, Mr. Turk. 8 MR. TURK: Our understanding of the case law, Your l 9 Honor, in that.when a party seeks to incorporate by 10 reference someone else's contentions, in effect, they become 11 a co-sponsor of the contention, and that has been permitted 12 in other proceedings. 13 CHAIRMAN BOLLWERK: That's correet. 14 MR. TURK: What we opposed here was the setting forth of () 15 a separate contention which says, "I hereby incorporate by 16 reference other contentions." That statement does not by 17 itself constitute a litigable issue. 18 So, for instance, I believe it was OGD -- I'm sorry -- 19 Confederated Tribes G and H that tried to incorporate by 20 reference. We oppose the contention itself, but we don't 21 oppose the adoption as - - 22 CHAIRMAN BOLLWERK: If they wish to. 23 MR. TURK: There is something else to be considered. 24 Where a party has filed a contention, they may not wish to 25 have a co-sponsor. They may wish to litigate it O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
92 1 independently. And that's something that I think the party 2 that filed the contention must be heard on. 3 CHAIRMAN BOLLWERK: All right. I Saven't heard any , 4 objections on that respect, but Mr. Turk has a point. l l L5 Anybody that doesn't want help? Have I stated your problems 6 correctly? ' 7 MR. TURK: Well, it might be a problem for one of the
'8 parties.
9 CHAIRMAN B,OLLWERK: I don't hear anything at this ; 10 point. If that becomes a problem and we do adopt 11 incorporation by reference, you will know that immediately, i 12 MR. TURK: And there is something fur' aer, Your Honor, 13 in terms of the procedure to follow once you do have a 14 ruling on contentions. Your statement _to the parties, I () 15 believe, is consistent with all the cases I have seeni that ; 16 when there is a multitude of parties and-a multitude of t 17 issues, it is appropriate to establish lead parties for 18 various contentions. And where there is a lead party, that 19 -party is expected to coordinate its efforts with any other 20 party which has a share or a role in putting that contention 21 forward. So the burden will be upon the lead party to
~
22 assure that he coordinates -- ha or she coordinates with the
~23 other parties about the contention.
24 CHAIRMAN BOLLWERK: That's what the Board has found. 25 Mr. Blake, do you want to say.anything on this issue? , O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
93 1 MR. BLAKE: I would point out that when we proposed [) 2 incorporation by reference in our answer to the contentions, 3 that no one took on the arguments to be made. There simply 4 is no answer to what we're saying. 5 We do, however, point out, alternatively, that the I 6 Board, as itself has recognized, has ample authority to 7 combine and let the intervenors go ahead. No one seems to 8 object to that. So it appears this one may not be a 9 problem. , 10 CHAIRMAN BOLLWERK: Let me just say one thing while 11 we're on incorporation by reference. If it's something that 12 you think is really important for us to know, we'll listen 13 to it on the given contention. But if all you want to say 14 is you support it, I understand that you support it. It's () 15 not necessary for you to repeat that. If it's something 16 different, radically different from what we heard, not -- I 17 don't want to -- We can't simply have every party repeating 18 that they agree with what is said. That's what I'm trying 19 to avoid. 20 Let me just ask one procedural question here, and then 21 we're going to break for lunch. 22 If the Board were to set this major issue down as you've 23 described, in summary disposition, would you all be prepared 24 to file jointly? 25 MR. LATER: We would do whatever the Board preferred on O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300-Washington, D.C. 20005 (202) 842-0034
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I i 94 l l 1 that. I'll tell you, frankly, I think it probably takes , () 2 3 longer to write a joint brief than it does to write two separate briefs. And if it's a question of page l j- 4 limitations, you might set appropriate page limitations. It j 5 might be easier for us to divide up. 6 CHAIRMAN BOLLWERK: That's all basically very -- I mean, 7 almosc identical, at least the main issues. - 4 8- MS. CHANCELLOR: I guess Castle Rock and the State have l a r ] 9 filed separate. contentions, and I think we may have a little ) l r j- 10 different opinions on some issues, especially the way in j 11 which the State is effective. And while we would be willing i 12 to coordinate, I think I agree with Mr. Later that it would J 2 13 be easier to write separate briefs rather than to try to 1 14 intermesh the two arguments. But we'll do whatever you
) 15 want, of course.
16 CHAIRMAN BOLLWERK: All right. How much time do you all 4
- 17 need? If you were talking about cross-motions, what are we .
1 l_ 18 looking at, where one party prefers to start? 1
- 19 MR. SILBERG
- Before we move to that assumption, if 20 we're talking about these issues, I think that what has
, 21- been set forth in the pleadings already is more than 3 22 adequate. I think the Board is in a position to decide on 23- the' admissibility of the contentions on the papers as they 1- 24 stand, and I don't know that we need yet another round of ' a 25 briefs of these. T ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 j I
l 95 1 CHAIPhudi DOLLWERK: I think, if I understand what () 2 Mr. Silberg is saying, it's that he feels that if we simply 4 3 move some of these contentions without any further thought 4 and simply take those forth, that he feels, I guess, it 5 addresses the merits adequately to decide the issue. 6 MR. SILBERG: I think that's right. You know, our 7 first position, I think, is that the contentions shouldn't 8 be admitted. 9 CHAIRU N BOLLWERK: I understand. 10 MR. SILBERG: They are clearly legal issues, and I 11 think legal issues are decided on the briefs. I think the 12 parties have filed the briefs, and I think we're prepared to 13 rest with what's on the pleadings. 24 MS. CHANCELLOR: Yes, definitely a response. We want () 15 the contention for purposes of admissibility of the 16 contentions along w:..th other contentions. In terms of . 17 summary disposition, we believe that we should have the 18 opportunity to present additional information to brief this 19 issue in its entirety. I think there's a difference between 20 summary disposition and admissibility of the contention. I 21 think that the Board would be assisted by additional briefs 22 in this case. 23 CHAIRMAN BOLLWERK: All right. Anything else? 24 MR. TURK: One thing on a procedural point, Your Honor. 25 Where the Board finds that a conLention does constitute a O IJDJ RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
'6 1 challenge to the regulations or that the contention, even if
() 2 3 found in favor of the proponent, they might entitle the proponent to relief and there's no reason to go a further 4 step. So the contention should be denied at tha outset. 5 But if it's unclear whether there's a challenge to a 6 regulation or if you find that the contention does not , 7 challenge the regulation or might be entitle the petitioner i 8 to relief, then it would be appropriate to admit it and move 9 for summary di.sposition on briefs. 10 To the e:<t ent that other parties feel they need to 11 brief, we're going to oppose the need for further briefing, 12 once yov find the contention is admissibit 13 CHAIRMAN BOLLWERK: If the Board were to allow 14 briefing, would you prepace your cross-motion or be the () 15 party to go first? 36 MR. SILBERG: I believe since the contention in this 17 case is one that is supported by State counsel, I think they 18 ought to go first. 19 CRAIRMAN BOLLWERK: All right. Would you have any 20 objection to that? 21 MR. LATER: We would have no objection. 22 CRAIRMAN BOLLWERK: All right. Would staff then, I take 23 it, respond at the same time as Mr. Silberg? 24 MR. TURK: Either the same time or afterwards, at your 25 pleasure. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (702) 842-0034
_.--_._._._.___..._._...__...__-._.___________.___m.____.m i 97 l 1 CHAIRMAN BOLLWERK: I'm not saying we're going to admit l 2 *the contention. I just wanted to make that clear. 3 How much time would you need to prepare your brief? 4 Is 20 days adequate? I 5 MS CHANCELLOR: Twenty days, you mean from today? 6 CHAIRMAN BOLLWERK: No,-no, no, no. We're trying to 7 prevent another set of phone calls-to the Board. 8 MR LATER: Your Honor, I assume you're talking about-9 what is essent.ially the first contention of both Castle Rock ! 10 and the State. 11 CHAIRMAN BOLLWERK: Given your indication to me is that 12 2 and 3 are very likely going to go the same way, if we were 13 to rule one way or the other, then you'd answer that as yes, 14 with that understanding. 15 MR. LATER: I think my position would be different on + 16 No. 4 as far as discovery goes on that.- 17 CHAIRMAN BOLLWERK: That's right. You've made that 18 clear. Twenty days? 19 MS CHANCELLOR: Why not? You haven't given us 20 anything else to do. 21 CHAIRMAN BOLLWERK: Would you all be able to respond? 22 Will that be enough time for you? I guess you figure you already filed everything you want to say anyway. It will 24 take an opportunity for us to review them.
- 25 Again, on future hypothetical, we're just trying to O ANN RILEY & ASSOCIATES, LTD.
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98 1 avoid future scheduling problems, if we were to decide to do ( ) 2 that. All right. 3 Anything from the Board members? All right. We have 10 4 after 12:00. Why don't we take our lunch break at this
- 5 point?- Let's try to get back by 1:30. That is about an 6 hour and 20 minutes.
7 MR. SILBERG: Can we leave things in the room? 8 CRAIRMAN BOLLWERK: Yes, we can leave things in the 9 room. , 10 And when we get back, let me switch the order of 11 presentation a little bit. Let's deal with Castle Rock No. 12 5, because it's dealing with the same sort of questions. 13 (Whereupon, at 12:10 p.m., the conference was recessed, to 14 reconvene this same day at 1:30 p.m.) 15 16 17 18 19 20 21 22 23 24 25 ANN RILEY & ASSOCIATES, LTD. Os Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
99 1 AFTERNOON SESSION 2 ([) 3 CHAIRMAN BOLLWERK: All right. We're back for our 4 afternoon session. 5 Just for planning purposes, I think we went about two 6 hours today, which is a long time without a break. I'll try 7 not to go quite that long this afternoon. We'll probably 8 take two brief breaks, one around 3:00, one maybe around 9 4:30. Don't hold me to that precisely, but we'll work them 10 in there so everybody gets a chance. It is all right to use 11 the restroom or whatever you need to do. 12 It is our intention to go till 6:00 tonight. And maybe 13 toward the end of the day we can talk about the schedule for 14 further into the week. I know there's been at least one () 15 alternative proposal which I'm glad to talk with people 16 about. Our point is that, you know, we want to press 17 forward here and got -- be as efficient as possible while 18 we're here, because we do want to get done this week. I 19 don't think it's in anybody's interest to have to extend 20 this any further than this week. 21 I don't see Mr. Wilson here. And I'm going to go ahead 22 and -- 23 MR. QUINTANA: We can proceed without him. 24 CHAIRMAN BOLLWERK: Without him. I'm going to go ahead 25 and proceed without him, with the understanding that I -- he ANN RILEY & ASSOCIATES, LTD. O' Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
100 1 hasn't said anything about how often he is or isn't going to () 2 3-be here, so -- MR. QUINTANA: Just today. After today he's got some 4 business at Harvard he has to take care of. j 5 CHAIRMAN BOLLWERK: All right. 6 I also want.to make clear to Mr. Kennedy that, again, 7- if you have something to say on a contention you didn't 8 sponsor, and you think it's-very important and nobody else 9 has said it, I.'m more than happy to hear from you, sir. But 10 if it's -- if you can't fall within those confines, and I 11 understand you support their contentions, then that's where 12 we'll let off. All right. 13 MR. KENNEDY: Thank you, Your Honor. I just wanted to 14 say that it seems to me that when people talk about () 15 authority, they're talking about jurisdiction. And it seems 16 to me that the panel has the ability. It's -- I think it's 17 black letter law to raise the issue of jurisdiction by 18 itself or consider the issue raised by a party at any time 19 during the course of the proceeding. And we think that it 20 certainly is a fundamental point and going to the very heart 21 of this proceeding. So that's all I wanted to say. l 22 CHAIRMAN BOLLWERK: All right. Thank you, sir. 23 'All right. This afternoon I'm going to switch the 24 order alightly. .Why don't we deal with Castle Rock 5, if 25 you don't mind, first. It deals with the application for a O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
101 1 current repository, which sor*, of is in the same subject ( 2 matter that we were talking about. And then we'll go back
}
3 over and talk about Utah's B, which deals with the licensing i 4 issue for the intermodal transfer point. All right? So 5 we're talking about sort of hiqh level waste matters and 6 that sort of thing. 7 MR. LATER: Thank you, Your Honor. 8 Let me begin. I think that this breaks down again into 9 two issues the panel needs to consider. One is, and the 10 contention is, that the application is, in fact, an 11 application for what will be a de facto permanent 12 repository, and, therefore, is inappropriately brought under 13 the NCFR Part 72 regulations and more appropriately 14 considered under the set of regulations provisions governing () 15 the Nuclear Waste Policy Act, 16 I think the two issues raised by that is, again, one, is , 17 this an issue that this panel appropriately can consider. 18 Ar.d in that regard, this contention runs into the face of 19 the Commission's waste confidence decision. 20 I think as I looked at that and analyzed it, although 21 there are perhaps some ingenuous sorts of arguments by which 22 one might attempt to argue that this is not -- our 23 contention does not conflict with the waste confidence 24 decision, reality is that we are challenging that waste ' 25 confidence decision. We are calling upon this panel to O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
102 1 either revisit that issue or decertify ';he question to the 2 NRC. 3 We think that's particularly appropriate given the 4 nature of that Commission regulation, which is, as the 5 Commission has noted, by way of a prediction, the 6 Commission has made a point of stressing that it is a 7 decision that the Commission is ready to revisit in the i 8 light of changing circumstances. And it is a decision that 9 I think was fundamentally adopted for purposes very 10 different than this panel faces in this hearing. 11 I am sure that the NRC considers, on a regular basis, 12 extensions, changes, amendments-to interim waste storage 13 facilities that are appropriately licensed under 10 CFR 14 Part 72. And the burdensomeness of reconsidering the entire () 15 16 panoply of policy behind the Nuclear Waste Policy Act in every one of those was clearly something that it was not 17 sensible to do. But in none of those cases has the 18 Commission been faced with a facility that was, in reality, 19 a replacement for or a significant portion of the nation's 20 nuclear waste disposal program and policy. 21 That by itself constitutes, we submit, a sufficient 22 changed condition to justify the Nuclear Regulatory 23 Commission and/or this panel in reconsidering the waste 24 confidence decision. 25 There are in addition, we believe, a host of changed O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
._ ~ _ . . _ . _
b 103 i 1 events of a significant nature that impact the rationality () 2 3 and basis of that decision that have occurred since the adoption of the waste confidence decision. And let me 4 briefly enumerate what is, at best, a partial list, and by 5 no means exhaustive. 6 You have an applicant before you that has, quite i 7 candidly, acknowledged the failure of the Nuclear Waste 8 Policy Act in responding to our contentions and acknowledged 5 9 that they have brought this application before this panel 10 because of the failure of the Nuclear Waste Policy Act. And 11 that admission is at page 342 of the applicant's responses 12 to the contentions. 13 You havo before you an application that dramatical4y 14 affects the structure of the Nuclear Waste Disposal Program. () 15 You have before you years more of continuation of DOE 16 failure to implement the programs that are mandated under 17 the Nuclear Waste Policy Act. And simply the passage of 18 those years without visible progress being made in the 19 location and construction of a permanent repository calls
-20 into question the rationality of the waste confidence 21 decision. !
22 You have before you the spectacle of the Department of 23 Energy acknowledging the failure of its implementation of ' 24 that program before the D.C. Circuit Court of Appeals, and 25 the Department of Eneigy being sufficiently uncertain of its ANN RILEY & ASSOCIATES, LTD. O' Court Reporters 1250 I Street, N.W.,-Suite 300 Washington,-D.C. 20005 (202) 842-0034
104 1 ability to implement that program that it has refused in
)
2 that litigation to commit to any time frame in which it will 3 be able to accept waste. Ne s , that certainly is change in i 4 circumstances from the time wnen the waste confidence 5 decision was adopted. 6 And you have in response to that the D.C. Circuit Court 7 of Appeals finding the Department of Energy to be in default 8 of its obligations under the Nuclear Waste Policy Act. You 9 have, in addition, continuing and mounting series of 10 technical questions regarding the suitability of the Yucca 11 Mountain site, distance of earthquakes, some evidence of 12 groundwater flows through the location of the site, that i 13 calls into question the suitability of the only site under 14 consideration for a high level waste repository. And you () 15 16 have the continuing political obstacles to location of a i permanent repository. 17 All of those together, we submit, justifies the Nuclear 18 Regulatory Commission in revisiting, as it has expressly 19 indicated it would, if there are significant changed 20 circumstances. And in light of the program, an application 21 that comes before you as a significant variation from the 22 haclear Waste Policy Program, we submit that it is 23 appropriate for this panel to either revisit that waste 24 confidence decision or to certify it to the Commission as 25 appropriate. O ANN RILEY & ASSOCIATES, LTD.
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_ -._ _._._ _ _ -- -~ - _ _ . _ . - - _ _ _ _ _ - - i l 105 1 CHAIRMAN BOLLWERK: I-take it this relates to your [) 2 application or your rule-making petition that you filed. , 3 MR. LATER: It does. That is included as well within 4 our petition. We believe that circumstances simply exist on i 5 their face in the contentions to justify this panel in 6 taking'up that issue and resolving it without even reaching 7 the petition. Finally -- F 8 CHAIRMAN BOLLWERK: This is a rule waiver petition, x ! 9 actually. It',s not a rule-making petition. l 10 MR. LATER: That's correct, Your Honor. 11 Finally, if you look at kind of the face of the I 12 application, and look at the schedules that are in place, it 13 is -- it's pretty clear that even if a permanent repository 14 was up and running by the end of the first quarter-of the () 15 next century, it would not be capable of receiving the 16 proposed waste to be stored at this facility by the end of 17 its license period. 18 On the face of the application, we believe you can
.19 determine that this facility cannot be retired, either 20 within its original application term or within a 20 year 21 extension of that term. And, therefore, on its face, the 22 waste confidence decision can't be satisfied here.
23 CHAIRMAN BOLLWERK: Is there anything that precludes 24- the Commission from extending the license for another 20 i 25 years beyond that? O ANN RILEY k ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 ' Washington, D.C. 20005 (202) 842-0034 ,
106 1 MR. LATER: I'm unaware of anything that would, Your
~
2 Honor. But I think when you get out to a time frame of a 60 3 year interim repository, that this panel shculd then be 4 looking at whether or not you were dealing with something 5 that truly fits the criteria of being interim and whether 6 this panel needs to visit whether this is something that's 7 appropriately licensed under 10 CFR Part 72, whether you 8 need to be looking at a much broader range of safety, 9 environmental,. economic concerns given the time frame that 10 that facility would ev.ist. I l 11 So that, I think, is the first issue that the panel 12 faces here. I will be candid with you. I think we do 13 conflict with the waste confidence decision. I think that 14 there is a compelling case for revisiting that decision. () 15 16 The econd piece of it is our contention is when you look at this creature and you remove all labels from it, 17 look at it in reality, in light of the politics and the 18 condition of the Nuclear Waste Repository Program, you 19 cannot help but conclude that this is, for the foreseeable 20 ; future, the only waste repository this nation will have, 21 and that if you do that, it is no longer appropriate to 22 consider it as an interim facility, but as what, in reality, 23 it will become, which is a permanent repository. And as 24 such, it has to be evaluated as a permanent repository. 25 CRAIRMAN BOLLWERK: All right, sir. Thank you. O DJM RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
107 1 Mr. Silberg. ' $ 2 MR. SILBERG: I would agree that this contention is a 3 clear challenge to the rule and, therefore, I think for the 4 reasons that we've talked about before, it would be wholly 5 inappropriate for the Board to admit it. The proper process 6 is to treat it under 2.758. And to the extent that Castle t ] 7 Rock's petition covers that, you know, that's something that j 8. will be dealt with when we brief that issue.
- 9 The other, alternate for Castle Rock if they want to -
10 challenge a rule is to file a rule-making petition under
- 11 2.802, 1 think it is. So I think everyone agrees that this 12 is an inappropriate contention in this proceeding.
13 With respect to the specifics of Castle Rock's 4 14 argument, to say that Part 72 was adopted for purposee very 15 different from this facility, I think, is reading into 16 Part 72 something that isn't there. Part 72 was adopted for
- 17. interim spent fuel storage facilities,-both at reactors and 18 away from reactors. It does have in it license terms of 20 19 years except for the MRS, which, for reasons unknown to me, 20 was granted a 40 year license. But for the 20 year 21 licenses, those are subject to renewal. As the chairman 22- indicated, not necessarily only once.
23 With respect to whether there are -- have been 24 significant changed events since the waste confidence
-25 decision, I think Castle Rock has misread the reference that ANN RILEY & ASSOCIATES, LTD.
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108 1 they cited. Page 342 of our brief did not say that there 2 was a failure of the Nuclear Waste Policy Act or, if it 3 did, I don't_see it on those pages. 4 What it does say.is that subpart -- subtitle B of the 5 Nuclear Waste Policy Act is now defunct, and t hat is a very 6 small portion of the provisions of the Nuclear Waste Policy 7 Act. Those are the provisions providing for interim spent ' 8 fuel storage by the government, limited to 1900 metric tona, 9 limited to uti,lities who entered into contracts by 1990. 10 That is not the entire programi that is not the entire 11 interim storage program for all parties. That was one 12 subpart, if you will, of the Nuclear Waste Policy Act. 13 Has DOE acknowledged a failure in implementing Nuclear 14 Waste Policy Act? Certainly DOE has acknowledged that 15 they're not going to make the 1998 deadline. I don't 16 consider that to be a failure in implementation of the 17- Nuclear Waste Policy Act. It is simply a failure of one 18 porti7n, one very important deadline. 19 As the Board I'm sure knows, DOE remains on track in 20 terms of doing its site viability study for the Yucca 21 Mountain site. They have promised thst that will be 22 released in September of 1998. They have said publicly that 23 there are no shaw-stoppers. The repository is a long way, 24 we will all admit, from being licensed or built. But there 25 is no failure in implementation of the Nuclear Waste Policy ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
b
- 109 2 j; 1 Act as a whole.
t ( 2 With respect to DOE's refusing to commit to any time ! 3 frame, DOE has never committed to a time frame. Congress 1 4 committed to a time frame on DOE's behalf and we have sued 5 to enforce that time frame, but DOE has never committed to a 6 time frame, now or at any other point in the process. So i 7 there is no change in DOE's position from the time the rule 8 was adopted. 9 The Conmission certainly was aware of the f act that we 10 would not likely have a repository in 1998. And indeed, ; 11 that's why the waste confidence rula states the Commission's t 12 confidence that there would be a repository up and running 33 sometime in the first quarter in the 21st century. And there is no -- nothing that has been put forward by Castle 14 () 15 Rock or anyone else that that date will not be met. 16 As to whether the technical questions on suitability 17 are sufficient changed circumstances to warrant the 18 Commission, let alone this Board, from reopening the waste 19 confidence proceeding, certainly there's no new information. 20 And there's even a question as to whether this kind of bases l21 is appropriate at these -- at this time. These were not 22 issues that were raised initially, I believe, by Castle 23 Rock, and one cannot add late bases without good cause, 24 But put that aside for the moment. Earthquakes, 25 groundwater motion are things that have been known for many 5J34 RILEY & ASSOCIATES, LTD. [)\
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110 1 years at. Yucca Mountain. Those are things which are being l () i 2 sthJied. That is not new information to the C stission. It 3 is not new information, I suspect, to this Board. It is not ! 4 new information to Private Fuel Storage. 5- Whether continuing political obstacles somehow is a 6 brand new event that requires the Commission to reconsider
, 7 the waste confidence rule, certainly political obstacles
- 8 have been with us since the beginning of the program. The i
9 Nuclear Waste Policy Act is structured in light of j 10 everyone's awareness that there were those political ' t i 11 obstacles. There's simply no new information there, f- 12 Do any of these justify the NRC in revisiting this t
- l. 13 rule? We think not. Do they justify certifying the
- 14 question to the Commission under 2.718? We think not for 4
() 15 the reasons that I expressed befort. g 16 Castle Rock then went on to argue that even if a 17 repository were running by 7325,- that it wouldn't be capable 18 of receiving waste by the end of the license. I think 19 Castle Rock's calculations on page 28 of their response l 20 filing are simply wrong. When they multiply out a waste
! 21 acceptance rate of 900 metric tons per year times 44 years, 1
22 they're simply making up numbers, j 23 The only place that that 900 metric ton number comes 24 from is from the capacity report, which is Exhibit 1 to j 25 their filing. And if they will read at the bottom of page 4 ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250-I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
[ 111 1 three and page four, top of page four of their filing, j 2 they'll note that that 900 metric ton rate is based on an 3 MRS receivable rate prior to repository operations, nd it , 4 says it's a nominal rate that's based on legal constrictions 5 that apply now and ore unrelated to the repository. 6 The acceptance rate that they talk about also totally 7 ignores the role that the MRS would play. So their 8 hypothetical that somehow on its face an interim storage 9 license for this facilitj can't be justified because of the 10 receiving rate simply has no basis in law, fact or anywhere 11 else. 12 With respect to the timing, whether 60 years is the 13 right number or 40 years is the right number, the fact is 14 that the back -- the Statement of Consideration supporting () 15. the waste confidence rule clearly demonstrates the ic Commission's belief that, from a safety standpoint, interim 17 storage for a period of 100 years or more is safe and K 18 adequate. 19 So again, we're getting into speculation on 20 speculation, none of which justifies the acceptance of this 21 contention, the certification of this contention, or the 22 revisiting of it b1 the Commission. 23 With respect to their final point that this facility is 24 really a permanent repository because there will be waste 25 there for the foreseeable future, if this facility is not O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
112 1 built, the waste -- and if the hypotheticals which Castle * () 2 3 Rock has spun out come to pass, the fuel wii.1 remain where it now-is at reactor sites. And if their speculation and 4 their legal theories are correct, then each reactor will 5 become a repository. 6 I think that analysis shows the frailty of that 7 hypothetical that they have created and why it's not a basis 8 for accepting this contention or certifying it to the 9 Commission, on for the Commission revisiting the waste l 10- confidence rule. 11 DR. LAM: Mr. Silberg, hypothetical. At the end of the 12 facility's license, what are the disincentives for the 13 applicant to walk away from the facility? 14 MR. SILBERG: I'm sorry, what are the disincentives? () '15 DR. LAM: Disincentives. 16 MR. SILBERG: Aside from the operation of law and the 17 fact.that you would be violating a license, you would be in
.18 civil enforcement space and criminal enforcement space; 19 aside from the contractual obligations; aside from our 20 obligations to the Goshute Skull-Valley Band; and acide from 21 the fact that DOE has the ultimate responsibility set by 22 contract, set by statute, and interpreted by the U.S. Court 23 of Appeals in the D.C. Circuit, I guess I can't think of 24 any.
25 DR. LAM: So you are saying if they want to walk away, I O ANN RILEY & ASSOCIATES, LTD.
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_ u l 113 i 1 there aremany obstacles the applicant misc overcome? 4 2' -MR. SILBERGi- Absolutely. This Commission has not V[~3 3- looked kindly on thel one: case that I can: recall where ~Eul 4 applicant tried to walk away.from a licensed facility. 5 CHAIRMAN BOLLWERK: 'All right. 1 6 I'll need,;Mr.-Quintana,_unless I see some motion 4 7 from you, you to-move to the back, if you don't have '- anything to say. 9 MR. QUINTANA:- Very briefly,
; 10 What will occur in technology over the next two decades
- 11 is something that is totally unforeseeable, nvt only by this 12 licensing board, but by any court. I think this Court can 13 take -- this-hearing panel can take judicial notice that 14 - decisions cannot be made based upon speculation. And it's
+
() 15- sheer speculation, at its very, very highest, to presume 16 that the fuel is going to be there in a permanent repository . 4 17 mode. 18 This contention is objected to.by the Skull Valley Band 19 of Goshutes. There is no intent' whatsoever for this 20 - facility to be a= permanent facility. That is absolutely 21 crystal clear not only between the utility companies and the
-22 lessor, Skull Valley Band of Goshute, but-under federal law 23 the Goshutes cannot own the spent fuel nor can it remain 24 there.
25 I think that at the end of 20 years, given the changes 4 4 i 4 ANN RILEY & ASSOCIATES, LTD. Court Reporters I
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114 1 and the research that's occurring internationally on , () 2 solutions to what to do with the spent fuel, both with 3 transportation technology and otherwise, and if this country 4 decides to reprocess its spent fuel, those acsemblies cost 5 about a million dollars apiece, and you can recover about 40 6 percent of the energy if you reprocess it. 7 Given the changes that will occur over the next few 8 centuries as the Internet becomes more predominant in terms 9 of the sharing of scientific information, I would object to 10 the characterization of this facility as a permanent 11 facility. 12 CHAIRMAN BOLLWERK: All right, sir. You raised your 13 hand, before I go to the staff. 14 MR. KENNEDY: In response to the Court's question ('Oj 15 regarding whether there's any reason why it could not be a 16 60 year facility. My understanding of the regulations is 17 that there is a 20 year limitation with the option to renew 18 for an additional 20 year period on Indian trust land. I 19 think that's found in 25 CFR, I believe it's Part 151. 20 Don't hold me to that part number, but it's the section that 21 deals with leasing on Indian trust land, i 22 So they have, as I understand it anyway from I 23 representations chat have made, they've got a lease for 20 29 years and an option for an additional 20 years, which would 25 be the maximum amount allowable by law. l .\ ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
115 1 There is a provision under 25 USC which identifies 2 specific reservations that are permitted to have leases of 3 longer dutation, but the Skull Valley Band is not included 4 in that list. 5 MR. SILBERG: If I can make one correction. I think
- 6 it's 25 years plus 25 years, Mr. Kennedy.
7 MR. KENNEDY: I think it's 20 plus 20. 8 CHAIRMAN BOLLWERK: All right. Well, we'll haul out 9 the regulations sometime. How's that? 10 MR. KENNEDY: Yeah. 11 CHAIRMAN BOLLWERK: It's in there. It should be 12 anyway. 13 All right. Staff. 14 MS. MARCO: Staff believes that Castle Rock's h 15 contention 5 is an impermissible attack n the Commission's 16 waste confidence decision and, as such, is barred as a 17 matter of law from this proceeding, unless there's a 2758(b) 18 peticion. 19 Your Honor, the staff also wants to inform the parties 20 and Board that the Commission does periodically review its 21 waste confidence decision. It -- I'm not sure when the next 22 review is, but it is done on a periodic basis, so it's not 23 set in stone. 24 CHAIRMAN BOLLWERK- All right. Let's nook back to you, 25 sir. And just ao you know, I'm probably going to ask you 9 ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
116 1 about Utah Alliance, to see if they have some related 2 information.- 3 MR. LATER: Sorry, Your Honor, I didn't -- 4 CHAIRMAN BOLLWERK: I'm just telling Mr. Quintana I'm 5 probably going to ask about Utah Alliance.
-6 MR. LATER: Let me start by something that really 7 doesn't tie into the regulations that I think is important 8 pertaining to this panel.
9 And that is one of the reasons that this panel, I 10 presume, is out here, has been through this process, is to 11 provide confidence in people whose lives will be affected if 12- this facility is built; that they have appropriate 13 protections, assurances; that their questions have been 14 answered. And as I've listened to the news reports and () 15 watched Private Fuel Storage's spokesmen, they have asked 16 the people of Utah-through tre media to wait, don't judge 17 this facility, let your questions be answered in these 18 hearings. 19 I have to tell this panel, probably one of the primary 20 questions people in this state, certainly this corner of the 21 . state are going to be asking by this is going to be is this, 22 in fact, a temporary facility;-is it a 20 year facility, is 23- it a 40 year, is it a 60 year, is it a 100 year facility; 24 how long will the people of this state live with that. And 25 lit will be a real tragedy if this panel does not find a way O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
117 1 to
) 2 address that. And I think there are clearly questions.
3 If we run up and down the table here, everybody's got a 4 guess about how long they think this might last. And not 5 very many of them are within the period described by the 6 waste confidence decision. l 7 CHAIRMAN BOLLWERK: All right. 8 MR. LATER:- And today we would celebrate -- I'm sorry. 9 CHAIRMAN B.0LLWERK: I'm sorry. Go ahead. 10 MR. LATER: Today we would celebrate, or this year, the 11 opening by law, under the Nuclear Waste Policy Act, of the 12 first permanent repository. We don't have an approved site 13 for a permanent repository. I'm told that DOE's current 14 projections are sometime around 2010. The Government () '15 Accounting Office more realistically says 2023 now. Reality 16 is probably no one knows whether or when a repository will 17 be built. ! 18 The Nuclear Waste Policy Act describes the disposal of 19 nuclear waste as a national problem requiring a national 20 solution, in which all parties to this nation join in. To 21 create an ad-hoc facility without the participation of 22 people who will be burdened by it would be a travesty of
-23 that. national-commitment.
24 Let me cite to you Private Fuel's language that 25 Mr. Silberg and I disagree as to just what they said and let O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
4-i 118 1 the panel decide. Page-342 of their responses, Private I- 2 Fuel's:
- 3 " Applicant agrees that DOE has failed to execute 4 its responsibilities in a number of respects under 5 the NWPA.
- Applicant agrees that the PFSN will
- 6 relieve some of the consequences of DOE's failure.
7 Indeed, that is the intent of the PFSN." 8 That language alone, I submit, justifies this panel in
.9- revisiting the, waste confidence decision and making a i
10 rational decision about just what kind of commitment the d A 11 people of Utah are being asked to undertake with respect to 12 this facility. 13 Because the reality is whatever the license term of l 14 this facility, once the waste is removed from where it is at () 15 and put in Utah, if there is not another facility that will l 16 be a permanent repository, it will be there, because no one 17 else will step up and volunteer to take this. j 18 The reason we're here today is because of the enormous 19 political resistance-to acceptance of the waste, even for a
- 20 permanent repository. The
- reason this application is made 21 is because people in the states where the waste is now
- 22 stored want it out of there. They're not going to take it 23 back. -
t 24 This panel needs to make a rational, realistic 3 i '25 determination of just what it is they are licensing and just 4 i ANN RILEY & ASSOCIATES, LTD. Court Reporters ~ 1250 I Street, N.W., Suite 300 l Washington, D.C. 20005 i (202) 842-0034
119 1 what it is they're asking the people of Utah undertake. And () 2 there is sufficient evidence of the failure of the NWPA 3 program that this panel needs to revisit the reality of the 4 assumptions that are set forth in the waste-confidence 5 decision. Thank you. 6 CHAIRMNN BOLLWERK: All right, sir. 7 Let's change the proceeding's direction here and deal 8 with the only other petition. How long do you need to 9 respond to tha.t? I'm sorry, there's only one other 10 petition. 11 MR. SILBERG: I, frankly, haven't had a chance to look 12 at it yet. I would think, you know, depending on what other 13 things-we find ourselves obligated to, you know, three weeks 14 after the close of the hearing. It might be sooner, I just, () 15 without having had a chance to look at it, I don't want to 16 hazard a guess. We could probably send it over one of the 17 night freights, take a quick look at it and make some 18 judgment. 19 CHAIRMAN BOLLWERK: All right. Staff have any idea how 20 long they need? 21 MR. SILBERG: Why don't we get back to you tomorrow. 22 CHAIRMAN BOLLWERK: What's that? 23 MR. SILBERG: If I could get back to--you tomorrow with 24 an estimate. 25 CHAIRMAN BOLLWERK: All right. Well, we can do that. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
i 120 ' 1 Let's make sure we bring this up again, though, so we can f'} v 2 set 3 a date; all right? 4 Yes. 5 MR. SILBERG: If I could just address a few of the 6 points. And I know this is never-ending, but hopefully 7 the -- the points that counsel for Castle Rock has made are 8 certainly politically interesting points. There is a 9 national probl.em that deserves a national solution. The two 10 leaders involved in Private Fuel Storage have been battling 11 for 10 years to make sure that DOE meets its obligations. 12 Oddly enough, the State of Utah has not seen fit to 13 participate in that process to make the DOE program meet the 14 schedule that it's supposed to. r^ ( )x 15 But putting that aside, the issue here is under the 16 rules that this Board is obligated to function under, is 17 this Board the proper forum to have a national hearing on 18 the state of the DOE program? I think that it isn't. 19 The Commission by rule has gone through, I think it's 20 twice, or maybe three times, the waste confidence 21 rule-making. It's just done, in response to a decision by 22 the 23 U.S. Court of Appeals for the D.C. Circuit, the case's name 24 is Minnesota v. NRC, and in that case, the question was 25 raised about how long will these sort of facilities, how ANN RILEY & ASSOCIATES, LTD. \ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
121 1 -_ long vill spent. fuel stay at individual power reactors. [) 2~ The Commission respondedito that court decision by I 3 overly generic rule-making, in which many parties 4 participated. Many of the environmental groups were 5 parties. DOE was a party, NRC was a party, utilities were-a 6 party. That rule-making, extraordinarily detailed record, 7 has been reopened on, I believe, .two occasions. And that is 8 the right forum for these kinds of questions to.be 9 addressed, not,before them, not for an application on a 10 single facility. 11 I think it's also interesting to note that while Castle 12 Rock says that Private Fuel Storage is going to send -- will 13 store spent fuel indefinitely into the future, at the same 14- time, arguing that we don't need the facility because of () 15 pending government-sponsored storage sites -- that's on page 16 37 of their response -- seems to me that Castle Rock can't 17 have it both ways. Either they can say we need the facility 18 or they can say there are no alternatives, then, in which 19 case, we are once again bound by Commission rules. But they 20 can't in one breath say that the fuel will be there forever 21- and in the next breath say that we don't need the facility 22 because we have all these pending government-sponsored 23 sites. 24 CRAIRMAN BOLLWERK: Thank you, sir. 25 You get the last word, so don't breathe. ANN RILEY & ASSOCIATES, LTD. O- Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 j
. - - . _ .. ~. _ . . - .. .-. _
122 1 MR. LATER: I just want to see if I can say it in one
/~') 2 breath, QJ 3 This is obviously an unpleasant process. When the heat 4 ic on and there has to be a solution, then the nation will 5 find a solution. It will be one that will be political. If 6 this facility is licensed, that removes the incentive from 7 the nation to do the difficult task of finding an '
8 appropriate facility that's done with the kind of input and 9 participation.that the Nuclear Waste Policy Act 10 contemplates. That's why it's of deep concern. i 11 CHAIRMAN BOLLWERK: All right, sir. 12 Let's talk then about Utah Alliance. 13 MR. NELSON: Can you just let us -- 14 CRAIRMAN BOLLWERK: Sure. You want a discussion? I () 15 16 don't know, are we going to consider all of Utah right now or just as it relates to this? 17 MR. NELSON: Is everything -- 18 CHAIRMAN BOLLWERK: Would you agree with me that I 19 guess a portion of it is related to the technical -- would 20 you have a problem with discussing the technical claiins? 21 Anybody else have an objection to that? 22 All right. Why don't we do that then. 23 (Pause) 24 CHAIRMAN BOLLWERK: Everybody on the same page? 25 Go ahead, Mr. Nelson. ('s
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123 1 MR. NELSON: This contention is related in that under 2 the National Environmental Policy Act, the law that requires 3 that there be prepared for the decision-maker an 4 environmental impact statement. The question arises as to 5 the scope of that environmental impact statement as it 6 relates to any connected actions. 7 The State's contention is that the environmental { 8 report chat was prepared in conjunction with the initial 9 phase of beginning the process of preparing the 10 environmental impact statement is deficient because of the 11 very limited scope in dealing with connected actions. 12 The issue that has been just described of the 13 relationship with the Nuclear Waste Policy Act and the scope 14 of that Act can be considered in two respects. The first () 15 being that one could say, under NEPA rules, that a 16 programmatic or revisit of the overall program should be 17 appropriate here because of the effect that this site could 18 have and probably will have if it is licensed on the 19 overall disposal of waste. 20 Even if you don't go to that extent of saying the EIS 21 must be a programmatic statement, you, at a minimum, muet 22 consider the effect and environmental effects of the 23 specific action on that national program. And that is the 24 basis for this contention. 25 If I could digress just a minute to discuss an ANN RILEY & ASSOCIATES, LTD. f~Ns) Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
124 1 important point with respect to the rules that apply in this circumstance. 3 The NRC staff have commented and used the term 4 " guidelines" consistently with respect'to the Council on 5 Environmental Quality Regulations. When NEPA was passed, 6 congress set up the Council on Environmental Quality as the i 7 supervisory agency and they did initially promulgate L 8 . guidelines. President Carter, in.an executive order, 9 specifically mandated that those be established as rules. l ~10 So when we talk about CEQ guidelines and the 11 relationship to these proceedings, that is an incorrect 12 statement. Those are CEQ regulations. And while they are 13 advisory to this Board, they are more important and more 14 significant than simply a guideline in that if there is ( 15 inconsistencies with those established regulations, it is 16- something that this Board would have to deal with, in our= 17 opinion. 18 Now, the CEQ regulations-are very' specific in
-19 .Section 1502.4 in stating that "Any proposal or parts of :
20 proposals which are related to each other closely-enough to 21' be and, in effect, a single course of action,.shall be 22 considered and. evaluated in a single impact statement." f 23- At a minimum, the effects of this proposal-on-the 24 federally-established Nuclear Waste Policy Act program must 25 be considered. The applicant has attempted to limit the O ANN P.ILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
125 1 scope to a very narrow consideration of the environmenthi () 2 3 effects and-consequences in the region, in the Skull Valley area. 4- The staff, the nature -- the NRC staff respond to our 5 argument by sayir.g that the Nuclear Waste Policy Act and 6 specific provisions are inconsistent with the State's 7 position, and say, therefore, that the CEQ regs don't need 8 to be followed. 9 If you look at the Nuclear Waste Policy Act, there are 10 three separate provisions that govern the development of an 11 environmental impact statement. The first is the provision. 12 that affects a federal interim facility. And there are 13 certain exemptions provided under the act for interim 14 facilities and the preparation of an impact statement. () 15 The second provision is a provision dealing with 16 permanent repository. And again, there are some specific 17 exemptions from the EIS process. 18 Thirdly, there are specific provisions that deal with 19 an MRS facility. And likewise, there is a set process 20 outlined for the EIS preparation. There is nowhere in the 21 Nuclear Waste Policy Act a specific section that deals with 22 the preparation of an impact statement for a national 23 . private storage site.
- 24. It's our contention, therefore, that in preparation of 25 the environmental report, it is necessary for the applicant, O,- ANN RILEY & ASSOCIATES, LTD.
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4 126 1 'and appropriately, in~ follow-up to that,-necessary for the ( 2 Nuclear Regulatory Commission to prepare an environmental 3 . impact statement that considers connected actions and 4 those' connected actions, as has just been discussed,-are 5 directly related to the national program, and specifically ' 6 referring to the provisions that Mr. Later has just cited-7 and quoted from the applicant. 8 If I can mention just one particular case that was i 9 . cited by the applicant, the Savannah River case, as support j 10 for the fact that connected actions may not need to be i , 11 considered here. They cite the Savannah River case at.page 12 333 of their brief. 13 I would point out to this panel that that case involved F
- 14 a very small number of caps. And there was already a
() 15 location for those caps that had been -- that was available.
.16 There were 409 -- I'm sorry, not caps -- 409 spent fuel rods 17 was at issue there. We are not talking here about 409 spent 1
18- -fuel rods. 19 And that case-is not support for the argument that 4 20 we're making, and that is that a carefully prepared 21 environmental report that considers impacts on the program 22 as it relates to the national program is necessary in order + 23 to comply with NEPA. ! 24 CHAIRMAN BOLLWERK: Mr. Silberg. 25 MR. SILBERG: The question is what is a connected
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127 1-action and is this the connected action? We think it'c [) 2 not. CEQ guidelines, regulations are not regulations that 3 are binding on this Board in any event. Even if they were, 4 this is not a-connected action. 5 The analysis on defin.ing that concept that :u's the 6 Savannah River case that the State was referring to lays out 7 four tactors. None of them are met in this case. Our 8- proposal does not automatically trigger any DOE actions. 9 It's not dependent on any DOE actions taking place 10 .beforehand and it's not -- ar.d it's a dependent part of the 11 DOE program. I'm sorry. If I said four criteria, I meant 12 three. 13 Are we part of the DOE program? 4, ' Is there anything 14 in Nuclear Waste Policy Act that governs how an EIS or an () 15 16 environmental report for our facility should be working? No, Is that surprising? No. Because the Nuclear Waste 17 Policy Act simply does not govern our facility, so it's not 18 at all surprising that it shouldn't identify how to write an f. 19 environmental impact statement for this project. 20 Is there an impact that this facility will have on the 21 l DOE program? Will the storing of spent fuel here reduce the i 22 j need for a repository? There's no evidence to that effect. 23 As a legal matter, it's clearly-incorrect. 24 Will it reduce DOE's legal obligation to cake our fuel 25 l starting on Saturday of this week? That legal obligation ANN RILEY & ASSOCIATES, LTD. Os Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
i 128 1 7 remains. What our remedies will be~have yet to be-
.( 2. determined. '
3 CHAIRMAN.BOLLWERK:' Is the bill in the mail, is that 4-- the question?
- 5. 14R , SILBERG: As the panel asked DOE's counsel when we 6 argued the first case, and as.you'll need to compare their.
7 position with a Yiddish proverb that the judge's mother had' 8 told him, "Give us air. Now give me money." 9 We fought ,that battle, and we're continuing to fight 10 _it, but the DOE program is-not on the schedule that we would 11 like, but it is not defunct, as some of the people here 12 .today would say. 13- But in any event, what we are doing will not change one 14' iota DOE's legal obligation or the nature of its program. ( 15 There's no evidence, there's no indication that DOE's-16 nuclear waste fund budget has changed-because we have a 17 project out there. There's no indication, there's no 18- evidence that DOE is. changing its program plan because of 19 this facility. 20 The argument is one that's being made up out of whole 21 cloth and simply-isn't there. And whether the CEQ
- 22. provisions, guidelines, regulations, call them what they 23 will, require a consideration of connected actions, this 2
.4 ain't one.
25 CHAIRMAN BOLLWERK: Let me ask you a question, and I'll i ANN RILEY & ASSOCIATES, LTD. [~'/
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129 1 ask the same question to staff. You've mentioned several ( } 2 times about the law. Why isn't it a legal issue, as some 3 say, for some of these positions in terms of whether this is l 4 a connected action? l 5 MR. SILBERG: Because I don't think they've met the 6 burden for showing contentions.
-7 CHAIRMAN BOLLWERK: Okay.
8 MR. SILBERG: If this is a challenge to the 9 regulations, then I think it should be treated as such. If 10 it comes in, it is clearly a legal issue, but I don't 11 frankly know how it comes in given the rules that the l 12 Commission has set forth. 13 CHAIRMAN BOLLWERK: All right. 14 Mr. Turk. 15 MR. TURK: By the way, Your Honor, just for your 16 information, we've divided up the contentions in responding 17 in writing. 18 CHAIRMAN BOLLWERK: Okay. 19 MR. TURK: And we're going to be dividing ~them as well 20 in our oral arguments. 21 CHAIRMAN BOLLWERK: All right. 22 MS. MARCO: Staff opposes this contention because it 23 asserts that the staff needs to consider this proposal and 24 other high level waste proposals together in a single 25 statement. ANN RILEY & ASSOCIATES, LTD. l)\
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I 130 1- This proposal does not need to be considered with the () 2 3-other high level waste programs. _ Act provides that the environmental impact statement for the The Nuclear Waste Policy #
- - 4- -high level waste repository does not need to consider 5- alternatives. Therefore, the proposed facility and the high 6 level waste facilities do not need to be considered 7 together,
,- 8 And the Nuclear Waste Policy Act provides the same for L
- 9 the MRS, too..Therefore, these disposal options do not need 10 to be considered in a single comprehensive impact statement.
11- Also,-the staff notices that the CEQ regulations are 12' not binding on-the Commission, although they are entit3ed to i 13 substantial deference.
-14 And finally, the staff notices -- the staff wishes to (I 15 state that if the State has an independent utility, then it 16 would not foreclose the Commission's ability to withhold l: 17 approval of or.her waste disposal and storage options that
, 18 come before it in the future. 19 And for these reasons, this contention should not be
-20. admitted.
_21- CHAIRMAN BOLLWERK: All.right. , - 22 DR. LAM: Ms. Marco, I had a question for you on your 23 plea' ding. 24 Just exactly what does expressively doubt mean? When 25 you say " Commission," it is not an expressively, and not the ORJ RILEY & ASSOCIATES, LTD. Court Reporters 4
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131 1 CEQ regulation. What does that mean?
~2 MS. MARCO: It means that the -- it's not --
it is not 3 binding in proceedings. 4 DR. LAM: Right,:right. I understand your argument. I 5 If.it's not expressly, then it's not binding. So do you 6 mean the Committee does not expressively, explicitly incorporate the CEQ in the regulations? 8 MS. MARCC: Right. That's correct. 9 DR. LAM: .That's what you meant? 10 MS. MARCO: Yes. 11 DR. LAM: All right, l. 12' CRAIRMAN BOLLWERK; l' Nelson, any last word? 13 MR. NELSON: NEPA requ res that a decision-maker for 14 any major federal action be given the necessary facts in () 15 order to make an informed substantive decision, _ To argue 16- that one need not consider the effect of this licensing . 17 action on related programs does not give the decision-maker 18 ~t he necessary information and, therefore,-is in violation 19 of NEPA. 20 We could argue as to what the effective rules are here. 21 The Commission has not specifically adopted the CEQ rules. 22 However, they do specifically note, in Section 10 CFR 5110, that-the Commission's announced policy takes into 24 -account the. regulations of the Council on Environmental
-25 Quality, voluntarily subject to certain conditions.
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132 1 I know of no condition that the Commission has (~') 2 established that would preclude or argue for or eliminate V 3 the need to consider the effect, the environmental effect of 4 this action on the related programs on the federal level. 5 The -- Mr. Silberg has commented there is no relationship, 6 and yet, on the same hand, says that there is a reason for 7 doing this facility because of those restrictions and 8 processes that have happened on the federal program. 9 It is the same basis that are involved in both 10 programs. It is part of the same program. It is a 11 connected action. The underlying reason for NEPA is to make 12 sure that a decision-maker understands fully the impact of 13 different alternatives and what those impacts are on related 14 federal actions. And this is clearly a connected action () 15 16 andit's something that, it is the State's position, that has to be considered as part of the impact statement. 17 CHAIRMAN BOLLWERK: All right, sir. 18 Last word. Second to last word. 19 MR. SILBERG: The cases clearly say that if two actions 20 cannot proceed without eacn other, they're connected. But 21 that if one action has utility independent of the other, 22 then for NEPA purposes, they're not connected. I would cite 23 Western Radio v. Dickman, 123 F.3rd 1"89. _ 24 The point here is not that we are ignorant of what DOE 25 is doing or that we aren't interested in what DOE is doing, O'
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133 1 or that our reasons for proceeding with this project are () 2 3
. totally apart from what has happened in the past with the DOE program. But this project will go ahead independent of 4 where the DOE project is, and that makes them unconnected g 5 for NEPA purposer.,
i 6 CHAIRMAN BOLLWERK: All right. Anything further, 7 Mr. Nelson? 8- Let's move back then to Utah E, to the question about 9 licensing. That comes from another category, I think. 10 MS. CHANCELLOR: I think Mr. Silberg -- 11 MR. SILBERG: Yeah. 12 CHAIRMAN BOLLWERK: I would add that, you know, I have 13 lists up to my knees of my policies. If someone doesn't 14 read something, doesn't say something -- I thought this () 15 seemed to be something that needed to be discussed together, 16 And I would also say that if someone had something, if 17 I don't raise something you think that needs to be raised, 18 please feel free to chime in and we'll have go ahead and 19 discuss it now. 20 Got any ideas regarding subject matters, talking about 21 the same thing at the same time. So -- 22 MS. CHANCELLOR: I'm just waiting for Mr. Silberg. 23 MR. SILBERG: It's all yours. 24 MS. CHANCELLOR: Okay. Right now, think Rowley 25 Junction. It's a stone's throw from I-80, even closer to O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 j
134 1 the Alpine. The cask storage at Rowley Junction will ( } 2 certainly present a security risk, the no-danger theory. 3 For example, trucks exiting I-80, coming off the off-4 ramp north may not make that corner in icy conditions and 5 could go crashing into the facility. 6 More seriously, people traveling on the highway could 7 create terrorist problems and launch themself on a moving 8 vehicle. 9 There's no, buffer zone between the -- between where PFS 10 wants to locate its facility and the freeway. In fact, 11 there's no -- it's not even certain whether there's room to 12 put such a facility at that location. 13 If you look at Figure, in the FAR, 4.5.3, there's a 14 diagram of the intermodal transfer. There it shows that (3 15 ( j the width of this building is 80 feet. The distance from 16 the center of the main line tracks that Union Pacific owns, 17 their right-of-way goes from center of the main line tracks 18 100 feet to the south of the main line. There are already 19 two rail sidings there. So I am not sure, I don't see how 20 PFS can actually locate this facility there. 21 And with respect to movement of easks into and through 22 Rowley Junction, it will ot be smooth at all. Casks will 23 arrive in a very staggered and bunched up way. The pier -- 24 the Union Pacific rai road program is a mess. One of the 25 exhibits to our petition to intervene, Exhibit 3, shows the i h
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135
.1 problems with Union Pacific; rail accidents, people being
() 2-3 killed,- military tanks abandoned. To say that this is all
' going to be a smooth flow of casks into Rowley Junction is 4 not credible, 5- NRC's response to how casks will be coming into Rowley
- 6. Junction is that the Part 70, not the-Part 51, licensee will 7 coordinate these activities. Now, we're dealing with casks 8 that are coming in from a multitude of facilities.
9 In additio.n, 73.26, the safeguards regulations, 10 requires that casks should -- that, for security purposes, 11 that you should. avoid storing casks in excess of 24 hours. 12 How that will occur is indecd a mystery. 13 PFS intends to transfer the casks to a heavy haul truck
-14 'and then drive down Skull Valley Road and off-load them at
() 15- their facility. In the SAR, at Table 5.1.2, are-the 16 procedures for unloading these casks. 17 The total time, excluding a-48-hour testing period, is 18 21 hours from the time of receipt till the connected cask 19- temperature installation. Basically until they've taken the 20 casks, inspected them, taken them from the: truck, put them 21 with the -- taken them, hooked up the shipping cask. With
-22 all those procedures it's going to take 21 hours. So the 23 actual operation of casks coming in to Rowley Junction, 24 being transferred Skull Valley Road, a ?1-hour period to get 25 the casks inside the facility gate and out onto the pad, O ANN RILEY & ASSOCIATES, LTD.
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e , e 136 l 1 .will certainly mean that' casks are going to back up and be s
-2' stored at RowleyfJunction. -
3' CHAIRMAN BOLLWERK:' If I could anticipate what 4- Mr. Silberg is going to say. He's going to' basically say 5 this-has been subject to the rule. This could happen at any
- . 6 number of transfer points anywhere in the_ country. What is -
7 your response to that? [- 8 MS. CHANCELLOR: My response is why bother unloading the l 9 casks. There is a difference between a transportation 4 10 regulation, and I recognize that there is in-transit storage 4 11 for the transportation regulations. But there is some point ' l 12 at which in-transit does meet up with the security and l 13 protections that are required for the Rowley Junction j 14 fhcility. () 15 If the casks are stored at Rowley Junction, there is no 16 -buffer zone, there is no boundary. There are no -- the-i 17 emergency response regulations don't have the same effect as 18 if they are stored at -- 19 , CHAIRMAN-BOLLWERK: Well, but how do we know this is-l- 20 different than any other transport-point in the country,
- 21 - whether it's from barge to rail or-however? Wculdn't that
, - 22 be a problem anywhere? I guess I'm again offering the 23 question what the rule covers. 24 MS CHANCELLOR: I think the difference is in the I 25 scope. We ha"e 200 casks that we have coming into this i-i Q
\,)
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137 j-L 1 point from all over the nation. The casks are going to back
)
i
- 2 up and be stored there. The sure shipments that Mr. Silberg
^ (G 4 3 referred to, that lists 33 large shipments over an eight 4 month period from'one reactor to another reactor, or from 5 one s: e to another site, two points only. This would drop 4
- . 6 down into a national network of casks being shipped.to
- 7 Rowley. Junction, i
j 8 NRC recognizes that additional measures other than 9 those for NRC,,other than NRC and DOE regulations may apply 10 to the operation of Rowley Junction. On page 19, footnote 9 ! 11 in their. response, they clearly state that these additional 12 measures need to be considered. 13 Moreover, this is not the first time that NRC has 14 . raised this issue. When the applicant came to NRC prior to () 15 submitting its license, in an open public meeting on l 16 March 19, 1997,-the NRC staff said that the-plans for ). . 17 transferring casks from the railway to a truck gave them 18 particular concern. So this is,something that NRC staff is 19 -concerned about. 20 Even though they object to our contention, I think that 21 footnote 29 states their concern of how Rowley Junction fits 22 into the regulatory scheme and how the transportation
- 23 regulations and the safeguards under Part 73 are not t-
- 24 satisfied by the propoq l facility at Rowley Junction.
- 25 You've seen Rowley Junction. It's accessible to I-80.
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138 l 1 I mean, how can we fence -- how can we have any buffer zone 2 or fence around that facility? 3 DR. LAM: Why not, Ms. Chancellor? You say the 4 applicant could not possibly build a fence? 5 MS. CHANCELLOR: The -- if you remember, you have the 6 Union Pacific tracks and then there's a 100-foot right-of-7 way, and that abuts directly against a 100-foot right-of-way 8 that the Utah Department of Transportation holds, which is 9 contiguous with the Union Pacific right-of-way and the 10 freeway and the access road. So -- and we're trying to 11 squeeze an 80-foot facility into -- provided we don't even l 12 know whether Union Pacific will allow PFS to use their 13 right-of-way. 14 Assuming for argument purposes that they can use that
-{) 15 right-of-way, you've got the main line track, you've got two l 16 sidings, and-then you've.got an 80-foot facility. Where are j 17 you going to put a fence within a 100-foot right-of-way with 18 any sort of buffer zone? There's just no room. l 19 The - casks will have to -- more than one cask will be 20 there. We. don't know whether there's more than one truck 21 that will be there. There is moving. In order.to be able 22 to safely manipulate these casks and have position and have
-23 sufficient turning radius for the casks, there does not 24 appear to be room within that existing right-of-way.
25 Moreover, if PFS is going to try to get the casks out
.O ANN RILEY & ASSOCIATES, LTD. \s / Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
l l 139 l 1 of there, that crestes additional safety concerns. 2 CRAIRMAN BOLLWERK: What I hear you saying is, does the {} l 3 need for a license depend on the safety concerns that are 4 involved. I mean, I guess -- 5 MS. CHANCELLOR: No. 6 CHAIMUdi BOLLWERK: If the facility didn't have this 7 list, laundry list that you've given us, would you need a e license then? 9 MS. CHANCELLOR: We believe that Rowley Junction is a 10 different animal then a siting in the middle of the 1 11 midwest, where you might transport one track to another 12 track, from one locomotive to another. This is an integral 13 part of the existing operation. Those casks would not be 14 cccc :g into Rowley Junction and being stored at Rowley () 15 Junction unless the ISFSIs were tha a. And the amount of 16 tim 9 that the casks will be located at Rowley Junction is a 17 function of how the ISFSI operates, how much time it takes 18 to unload the casks, a cask, so that they can turn around 19 real fast and get get another cask. So it is an integral 20 part of the Part 72 licensing operation.
- 21 DR. KLINE
- If it is an integral part, why isn't the 22_ potential to be fenced -- can't they consider the facility 23 license application?
24 MS, CHANCELLOR: What we are saying is there has to be 25 some sort of regulation of Rowley Junction. If you wieh to i O ANN RILEY & ASSOCIATES, LTD. Court' Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
140 1 do it under Part 72, then we would not object to doing it
) 2 under -- as part of the Part 72 process. But there are not 3 any license conditions that put in place the same type of 4 safeguards, procedures, fencing, Dolcinells, those types of 5 things.
6 DR. KLINE: That changes the contention. I mean, the 7 contention says you need a separate license. And it isn't 8 clear why this is so, even from the argument, and why one 9 couldn't consider any potential defenses under the principal 10 application, facility application. 11 MS. CHANCELLOR: Our contention states that PFS' 12 application should be rejected because it does not seek 13 approval for receipt, transfer and possession of spent fuel 14 at Rowley Junction, in violation of 72.51. We would not () 15 object to including this as part of this Part 72 license 16 application or having -- or requiring PFS to get an 17 additional license. 18 DR. KLINE: Then perhaps the other parties would, and 19 particularly the staff, would comment on the staff's 20 authority, say, under at least NEPA authority, to consider 21 auxiliary construction tacilities that aren't underway at 22 site, but nevertheless connected to the principal 23 application. 24 Because I had in mind, in the licensing of reactors, 25 for example, by analogy, the staff has asserted jurisdiction ANN RILEY & ASSOCIATES, LTD. O' Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
_ .... _._ _ _ _ ._._ _ _ _ . _ _ ~ . _ _ _ _ . _ _ . . i 143 1 over transmission core -- 2 MS. CHANCELLOR: Right. 3 DR. XLINE: -- off-site. And I just wonder why ! 4 construction or environmental attacks at least of this j 5 facility wouldn't be included at least and reach an analysis j i 6 of the application before'us. ! i i i 7 MS, CHANCELLOR: I believe that the staff should -- , t 8 does have jurisdiction, or the NRC does have jurisdiction to 9 look at the NEPA issues. But I-think the whole Rowley 1 10 Junction facility is symptomatic,of NRC not having authority l 11 to license such a national facility. And Rowley Junction is ! $ 1 l 12 symptomatic of that problem. 6 j 13 I mean, the transportation regulations, Part 72 5 '
- 14 regulations, even Part 73 regulations do not contemplate an
() 15 intermodal transfer facility. It's just not -- it's not 16 like moving fuel from one reactor to another reactor, 17 RDR . LAM: But^in your contention it is specifically 18 stated this application is a violation of 10 CFR 72.6(c), 19 Part 1. Now, I don't know what is intended in there, with 20 10 CFR 72. 6 (c) (1) . 7 don't know what -- how does this 21 application violate 72.6 (c)-(1) ? ? 22 MS; CHANCELLOR: :lell, our argument-is that here they
- I 23- are in possession and receipt of spent fuel when it arrives 24 at Rowley Junction. PFS would like to have receipt of the 25 . fuel and possession of the fuel when it gets to their front F
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142 1 gate at the reservation. What we are saying is possession 2 and receipt occur and storage, for purposes of -- for more 3 than purposes of in-transit, occurs at Rowley Junction, and, 4 therefore, need a specific license. 5 DR. LAM: But (c) (1) doesn't read the way you are 6 saying; It reads -- (c) (1) reads "Except as a'athorized in a 7 specific license,a and in a general license, and this is Bob 8 Cahill, his partner, if you violate -- so how does the 9 licensee application arrive at this point? 10 MS CHANCELLOR: Because they are receiving spent fuel 11 for the purposes of storage at Rowley Junction, not as the 12 ISFSI. I mean, the Part 72 license, if issued, would 13 allow them to receive possession of spent fuel at the ISFSI. ; 14 But the license, unless it addresses Rowley Junction, does 15 not allow t;em to acquire, receive and possess spent fuel at 16 Rowley Junction, which we are saying needs to be addressed 17 other than through existing regs, Part 71 or Department of I 18 Transportation regulations. ! 19 DR. LAM: I see. So -- 20 MS. CHANCELLOR: NRC -- the staff and PFS argued that 4 21 they do not need any additional licenses, other than Part 22 71, their Part 72 license that is issued here, and then
=23 the DOT regulations. That's all that they believe is 24 required for Rowley Junction.
25 What we are saying is that is not enough. And that the O ANN R! LEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 042-0034 _ _ _ _ . _ _ . _ _ _ _ . . _ . - - _ _ . ~ . _
143 1 72. 6 (c) (1) does not authorize them to possess and receive () 2 3 spent fuel at Rowley Junction, which we assert is what they will be doing. 4 DR. LAM: But that's why you turn the pese to 5 72.6 (c) (1) ? 6 MS. CHANCELLOR: That's correct. 7 CHAIRMAN BOLLWERK: Possession begins at Rowley 8 Junction? 9 MS. CHANCELLOR: Exactly. 10 CHAIRMAN BOLLWERK: Okay. 11 MS. CRANCELLOR: And whether the applicant says that it 12 is going to possess fuel when it gets to the gate, we 13 believe that that, in reality, is not the case, and that 14 they should not be able to throw that off onto a common () 15 carrier and say that they aren't going to receive and 16 possess the fuel at Rowley Junction, because it's integral , 17 to their operation. 18 It is absolutely a certainty that the casks are going 19 to back up and that they are -- there is always going to be 20 a cask there. Not just occasionally, but for the 20-year 21 term of the license. They expect shipments of fuel to come 22 in every year for the entire license term and then hopefully 23 they're going to turn around and send that fuel back out. 24 CHAIRMAN BOLLWERK: You're saying possession depends on 25 how long they have it, whether they have it for a second or , ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
144 1 20 minutes or 20 hours. Is that -- () 2 3 MS. CHANCELLOR: there comes a point -- I think it's constructive. I think 4 CHAIRMAN BOLLWERK: I mean, put it right on the truck 5 and away it goes. It's just there for five minutes. Then > 6 that's possession, or I mean -- 7 MS. CHANCELLOR: No, I don't think that is, but I think 8 there's a spectrum. At ' Cr 3 point, I mean, if you park a 9 car in a parking lot and . f. 4,t sit there for six months, 10 that's not in-transit storage. And the same thing here. 11 There comes a point at which the activities at Rowley 12 Junction are no longer covered by the DOT regulations. 13 And from the little information that is contained in 14 the application, from what we can glean, it is apparent that () 15 they have -- that spectrum certainly gets closer to storage 16 than it does to in-transit. 17 CHAIRMAN BOLLWERK: Okay. Mr. Silberg. And in 18 answering or addressing this, I'd like to know who's then 19 exactly going to run what parts. I recognize the railroad 20 track coming in is obviously common carrier. In terms of 21 the off-load, who's responsible for that? I take it Union 22 Pacific is not, or whoever the railroad is. That's actually 23 you haul -- taking it up off the rail truck, put it onto the 24 rail car, and putting it onto the truck. Is that it? 25 MR. SILBERG: First, let me just make sure we understand ANN RILEY & ASSOCIATES, LTD. (- /) Court Reporters 1250 I Street, N.W., Suite 300 ) Washington, D.C. 20005 (202) 842-0034
, 145 1 that the intermodal transfer is one of the two options f 2 that's identified in the application. [)
; 3 Second, the personnel who would be doing the off-load 4 might be PFS personnel, might be other -- might be another 5 entity that's doing the transportation. I don't know that I 6 can answer that right now, and I don't know whether that 7 decision has been made yet. l
.8 CHAIRMAN BOLLWERK: The question is where do common I 9 carriers start,and end.
I 10 MR. SILBERG: Yeah, I think it's common and contract i 11 carriers. 4 12 CHAIRMAN BOLLWERK: All right. 4 13 MR. SILBERG: So I think it's both. And, you know, it 14 depends how it's been structured, and I don't know that that () 15_ decision has yet been made. 16 I would. note that the NRC regulations specifically 17 provide for a general license for storage incident to 18 transportation. That's in Part 70, 74.20 (a) . And I think i 19 the position that'the State is expressing is directly ] 20 contrary to that regulation. , 21 What the State is saying is that by off-loading the 22 casks, the shipping casks at Rowley Junction from rail car n 23 onto heavy haul truck, some shipping casks, not storage 24- casks, that now we are in the storage mode because the i 25 provision that their contention says we're in violation of 4 ANN.RILEY & ASSOCIATES, LTD. O 1250 I Street, N.W., Suite 300 Court Reporters Washington, D.C. 20005
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146 i 1 deals with storage. (c) (1) says -- and I can't find it, _but [} 2 it talks about storage of spent fuel. And we're not in the 3 storage mode at Rowley Junction. You are allowed and 4 regulations contemplate that this transfer need not be in a 5 scintilla universe. You don't have to move it, you know, , 6 the first second it arrives there. And DOT regulations l 7 specifically allow for storage of up to 48 hours. 8 To the extent that 10 CFR 73.26 refers not a f 9 prohibition against storing for more than 24 hours, but it 10 says you should plan to avoid storage in excess of 24 bours, i 11 there's certainly nothing in the record that would indicate 12 that we will noc meet that requirement. We are indeed 13 obligated to meet all the regulations. 14 However, I would note that that regulation doesn't () 15 apply to spent fuel, because 73.6(b) has an exemption for 16 the kind of radioactive material that is spent fuel from ; 17 that particular regulation. 73.6(b) exempts from'73.26 such 18 limited material which is not readily separatable from other 19 radioactive material which has a total external radiation 20 dosey in_ excess of 100 rem per hour at a distance of three 21 feet from any accessible surface without intervening shield. 22 And I think you can take notice that spent fuel is falling 23 in that description. 24 So even if the 24 hours in 73.26 was the regulatory 25 standard, which it isn't, it wouldn't apply. But we do have O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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l 147 1 other regulationu which we have to meet, the DOT regulations
/ 2 that we cite in odr brief, and I don't think this Board is 3 entitled to assume and nor is the State entitled to assume
- 4 that we will operate in violation of our regulations.
5 I would also note that a lot of the discussion which 6 the State has just put on the record is really a different 7 contention. When they argue that we don't have enough room 8 in the existing right-of-way, we don't have a buffer zone, I 9 we don't have ,a fence, it's only 80 foot list, those may be
! 10 interesting contentions, but they're not the contention that i
11 we're talking about here. 12 The contention that we're talking about here is a legal 13 issue essentially, and that is whether or one must have a 14 license for an interraodal f acility of the type we're having () 15 16 at Rowley Junction. And-the answer, we think, is clearly that no license is required. 17 The Commission's precedent reflects that. The Shore and 18 Limerick Shipping, which is reflected in both the Director's 19 decision, and the admission decision which recognized the 20 intermodal transfer, and the lack of any licensing 21 requirement for that intermodal transfer is clearly on 22 point. 23 The fact that there were 33 shipments in the period of 24 a year versus 200 shipments in a period of a year is a 25 factual issue. It doesn't go to the question, the legal O ANN RILEY & ASSOCIATES, LTD. Court Reporters
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148 1 question as to what the NRC regulations require. And to / 2 comment that Part 71, 72 and 73 do not contemplate 3 intermodal transfer, I think that's clearly incorrect. The i 4 Commission has approved intermodal transfer, has rejected ' 5 challenges that would enable transfer based on those very 6 regulations. And we have cited to those regulations and 7 those decisions in our brief. 8 To the extent that the State argues that Rowley 9 Junction is no.t temporary storage incident to 10 transportation, but rather an integral part of the PFS ! 11 complex, that logic would mean that the entire 12 transportation system is also an integral part of the PFS 13 ISFSI complex, 14 It is certainly part of the operations of this entire () 15 project, but it is not fully in the license. And I don't 16 believe that the State has put forth any basis to show that 17 the existing NRC regulations require or contemplate that. 18 CHAIRMAN BOLLWERK: All right, sir. 19 DR. KLINE: Mr. Silberg, the State doesn't appear to be 20 arguing that Rowley Junction is just any kind of intermodal 21 transfer point. Rather, they're asserting that it's 22 something in the nature of a choke kind of, the fuel 23 arriving from several.different places all funneling into 24 one place. Does that in any way change the situation, in 25 your mind? 7J04 RILEY & ASSOCIATF.S, LTD. O\ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
i i 1 149 l l
! 1 MR. SILBERG: I think the rules speak for themselves.
() 2 3 DR. KLINE: reference to. Well, that's what I'm asking you in 4 MR. SILBERG: Yeah. And co the extent that it's not --
]
5 that whether or noc this is a choke point, and I think we've 6 heard some interesting speculation, but certainly not enough 1 7 to justify a factual basis for a contention. There's no 8 reason why scheduling cannot accomplish the absence of a d 9 choke point. . 3 l a 10 And there's no reason why it takes 21 hours to move a 11 cask, assuming, as the State seems to do, that there's only i 12 one truck in the world that will move this cask and you have 13 to wait for that truck to go and come back before you can 14 load the next one. There's just no basis for these kinds of j i () 15 speculations. They're interesting, but they're not' factual. l 16 .The one point I did want to_make, since you got me off 17 to address the question you made, and that is NEPA. We do
- 18 address the NEPA consequences of transportation, including ,
! 19 intermodal. That's not the issue here. 20 DR. LAM: Now, I do see the State, thet if the cask is 21 there for an extended period of time, somewhat of a storage l'
- 22. choke point, that happens. Now what is the range estimate 23 that you can have? How long could the cask sit there?
L 24 MR. SILBERG: Well, we are obligated to operate within i l 25 'the existing. regulations and the DOT regulations. As I i 0 [ .. 7004 RILEY & ASSOCIATES, LTD. Court Reporters
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150 1 understand them, it would require a maximum of 40 or would (} 2 prohibit storage at that location beyond 48 hours. 3 You could have the same, you know, delay at lots of 4 points in a transportation network, but that doesn't make it 5 a licensing action. I don't -- I can check. I don't know 6 off the top of my head whether our transportation planning 7 has reached the point yet where we can tell you what is an ' 8 average turnaround point, turnaround time and the specific , 9 day-to-day operational details.
- 10 Frankly, I don't think our planning is yet at that 11 point But we do have to operate within the existing 12 regulations, and those regulations contemplate, if any 13 storage, if there's any delay at that point, that it will 14 not exceed 48 hours.
() 15 CHAIRMAN BOLLWERK: Your assurance is there's not 16 ambivalence here to show there is a choke point. If we 17 found that those, in fact, foundationally, then the 18 contention comes in? 19 MR. SILBERG: No. I think we still have the legal 20 issue, which is, I think, what they have presented, which 21 is whether intermodal transfer, you know, requires 22 licensing. 23 CHAIRMAN BOLLWERK: And that's a legal issue. 24 MR. SILBERG: I believe it is.
"c MR, QUINTANA: Skull Valley would object to the O ANN RILEY & ASSOCIATES, LTD.
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151 s 1 contention that's been proposed by the State of Utah. i 2 Transportation has its problems with spent fuel, but we 3 don't believe that the intermodal mode that's been proposed 4 j 4 here by Private Fuel Storage would present numerous attacks j 5 such that it would require a separate licensing procedure. 6 Transport of spent nuclear fuel has been done 7 worldwide, and the Skull Valley Goshutes have gone to great 8 lengths to study the transportation problem. So they deal 9 with it fine j.ust in Sweden, Japan, Great Britain, France, 10 as well as throughout the United States and looked et a 11 numerous transportation studieJ.
- 12 It's important that be part of the record because the 13 decision made by the Skull Valley Goshute government was a 2
j 14 well informed decision. And -- 15 MS, CHANCELLOR: Objection. 16 MR. QUINTANA: - .:b1 terms of the transportation and 17 che contention that's being proposed here by the State. For 18 those reasons, we'd object. 19 CHAIRMAN BOLLWERK: All right. I think there was an 20 objection. 21 MS. CHANCELLOR: Okay, 22 CHAIRMAN BOLLWERK: Staff. 23 MR TURK: Thank, Your Honor. Let me focus first of 24 all on what the contention itself intends to do, because 25 that really goes to the heart of the decision.
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152 1 I believe the judges are correct in understanding the 2 contention to be an assertion that the ITP, the intermodal 3 transfer point must be licensed as a facility. In fact, 4 that appears explicitly in the basis explaining the 5 contention on page 14, after going through a number of 6 reasons why they believe a license has to be issued for this
*/ facility, they say 8 "As a result, the ITP will constitute a de facto 9 interim spent fuel facility as defined in 10 CFR ,
10 Section 72.2." 11 And they go on to say: 12 "Accordingly, TFS should not be granted a license unless 13 it improves possession of spent fuel at the ITP." 14 And they go on after that at the bottom of page 14 and into () 15 page 15 to argue that all of the Commission's various 16 regulations relating to ISFSI, such as the security plan, 17 the emergency plan, the dose analysis, the design, that all 18 of those requirements, all of those criteria that are 19 established for ISFSI must also apply to intermodal transfer 20 point. That's the heart of the contention, and we oppose 21 that because it's not correct. 22 *the essence of the Commission's regulatory scheme is 23 that the site at which this installation will exist must 24 meet the Part 72 criteria. 25 On the other hand, inter-transfer modal point, transfer O ANN RILEY & ASSOCIATES, LTD. k_) Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
t 153 1 station interchange point, all of the other points in [} 2 transit are coming under a different regulatory scheme, and 3 that is under Part 71 and DOT regulations governing , 4 transportation. 5 So on that basis the contention must be rejected. 6 There are a number of sub-issues that have been raised 4 7 both in the pleadings as well as the before Your !!onors 8 today. Judge Kline asked whether or not NEPA, the NRC's 1
- 9 NEPA analysis must consider all the transportation impact, 10 and, in fact, they do. The impact of licensing will be 1
11 considered in an environmental impact statement with respect i 12 to environmental matters. 13 That's different from saying that the safety criteria 14 set forth in Part 72 have to be satisfied at various points ( 15 in transit. 16 I believe Judge Lam's question about 72.6 (c) (1) is very 17 telling. The contention does specifically assert that that 18 regulation is not satisfied, because as the State says 19 today, possession begins at Rowley Junction. And we believe 20 it's clear that the site that has sought the license here 4 21 is the site 24 miles distant from Rowley Junction transfer 22 point. It is that 24-mile distant site which will be the 23 subject of licensing here today. 24 CHAIRMAN BOLLWERK: What is the -- the reservation -- 25 all you're doing is taking the casks, putting them on the O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
154 1 truck and driving down the road to the reservation between () 2
-3 two rocks. Does that make any difference? The whole timo yor encompass within the road, and intermodal transfer, Is 4 it 24 miles - is.it an additional 24 milos?
5 MR. TURK: It's a separate place. It's a separate 6 location. 7 CHAIRMAN BOLLWERK: When - a truck has to take - 8 possession, the question is where does that happen? If you , 9 said 24 miles.-- 10 MR. TURK: My understanding of their application is 11 that the point at which they will take possession is at 12 their site. Now, a different question is raised as to 13 whether they themselves operate the crane at Rowley 14 Junction, does that constitute constructive possession. () 15 CHAIRMAN BOLLWERK: Well, it's a question aoout who's 16 the common carrier here is, i 17 MR. 1URK: There is no requirement that transportation 18 be done by a common carrier. It could be a contract 19 carrier. I don't know, frankly, what their plans are. 20 CRAIRMAN BOLLWERK: Let's say they decide to use 21 employees off-load this, does-it make any difference to you? i 22 MR. TURK: I can't answer that question I'd have to 23 understand what the legal scheme was to enforce them. 24 MR. SILDERG: I might mention also that w,7at 72.6 (c) (1) 25 states is that no one may receive or transfer s9ent fuel O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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155 1 unless they have a license under Part 72. That would apply [) 2 to -- this applicant would not be allowed to receive or 3 transfer spent fuel as an entity unless it first had an , l. 4 ISFSI license, but-that license would govern the ISFSI site. 5 It would not govern what happens at the intermodal transfer 6 point.- t
- 7. MR. TURK: Your Honor, there was reference made by
- 8 Mr. Silberg to DOT regulations which contain a 48-hour j 9 limitation on, storage. My understanding, in consultation
{ 10 with the transportation expert who is with us today, is that 11 the 48-hour limitation would not apply here. That would d 12 apply where there would be scheduled service from one 13 carrier delivering to another carrier. Here, because it 14 .would be delivered to a contract carrier, we do not see that 4 I () -15 that regulation applies. 16 So I'm not aware of any specific time limitation in DOT 4 17 regulations which would govern how long the spent fuel could 18 remain at Rowley Junction. ! 19 There are more general statements in DOT regulations, 20 however, which require that radioactive materials be 21 forwarded promptly or without. delay, but I'm not aware that 22 there's a time limitation in those regulations. 23 The State, in its written reply to the staff's response, 24 there is a footnote that appears in the staff's written f 25 pleading. In our written pleading, we laid out what we i ] . ANN RILEY & ASSOCIATES, LTD.
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156 1 believed to be the regulatory scheme, that is the site
) 2 that's controlled here and the intermodal transfer points 3 are a part of the transportation part of the regulatory 4
4 scheme. 5 We put in a footnote said that if we determine that 6 something more is required beyond what is in NRC 7 regulations, we would advise the Board and parties by way of 8 Board notification. What we meant by that is not that we're
- 9 troubled by the assertion that the regulations are 4
10 unsatisfactory. We're not. We believe the regulatory 4 11 scheme is clear, at least to the rejection of this 4 12 contention. . 13 However, what we're leaving open is that if, during the 14 course of our review, we determine that there may be & need () 15 for additional requirements beyond what the regulatory 16 scheme requires today, we will review that condition. 17 Unless that happens, and at this point I'm not aware that 18 that will happen, we feel the existing regulations must be
- 19 followed, and that requires a rejection of the contention.
20 CHAIRMAN BOLLWERK: Are you talking about putting 21 conditions on the license of ISFSI as opposed to some of the 22 licenses -- 23 MR. TURK: That's one possibility. There's also the 24 possibility that the staff could determine there's a need 25 for further rule-making. There's a number of options that ANN RILEY & ASSOCIATES, LTD.
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157 l 1 are possible. We have not determined anything more is ; () 2 3 necessary at this time, because there is no reason to go beyond the regulations. The regulations must control the I i 4 outcome here. 5 MR. KENNEDY: But you're appropriate rule is what is the l 6 thrust of the legal question, which is why do you have to
- 7 have a separate license? There are substantive potential 8 troubles. The question is, are these potential' troubles l
t 9 going to revie,wed in the existing license application before : 10 us or does the staff have to come to us before they can even , 11 consider those potential troubles, or can't they, in the 12 normal course of their review -- 13 MR. TURK: The staff will consider them during the 14 normal process. The application mentions the Rowley () 15 Junction transfer point. It mentions the type of 16 equipment that will be present there. In the course of 17 the staff's questions to the applicant, I am sure that there 18 will be questions concerning those issues, 19 MR. KENNEDY: The staff, in considering Rowley Junction
- i _
20 or the connecting road is a matter of law. Isn't it
- I j 21 normally in the application? I'm concerned.
t- 22 MR. TURK: You're correct. > t. i 23 MR. KENNEDY: Am I correct?
- 24. MR. TURK: Yes.
25 DR. LAM: He's also saying the applicant's application i ANN RILEY & ASSOCIATES, LTD. Court Reporters l-1250 I Street, N.W., Suite 300 Washington, D.C. 20005 l- (202) 842-0034 . l _ _ . _ _ - _ - _ _ _ ._..__c._~_., _.___.._.._..__._._.,_.......a.__._ -
158 1 does not necessarily -- 2 MR. TURK: I'm saying more than that, Your Honor. I'm
)
3 saying there is no violation. The failure of this 4 applicant to come in and say we want an intermodal 5 transfer point to be part of the Part 72 license facility, 6 that is not an error on their part, because it's a transfer 7 point that's not an-on-site element, and, therefore, it's-8 not subject to the Part 72 requirements. 9 DR. LAM: .So you disagree with the State's 10 interpretation of that. ' t 11 MR. TURK: Yes. 12 CHAIRMAN BOLLWERK: I thought I heard you say as long 13 as they don't unload the casks, right? 14 MR. TURK: I'm sorry? () 15-
'16 CHAIRMAN BOLLWERK:
as they don't unload the casks. I said, I thought you said as long 17 MR. TURK: Right. I'm not ruling out the possibility 18 that they might be the ones to unload the casks. What I 19 said is I'd like to understand what the legal framework for 20 that is. 21 Have they set up a separate company, transportation
.22 company? Are they contracting with the transportation :
23 company? Is there something going on in their receipt of 24 that casks which would give you reason to think that that 25 is, in fact, the time at which they are taking possession as O ANN RILEY-& ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 ~ . . - - - - . - - - . - . . . _ _ _ - _ .-._ -. - - - - . - . - - - . . -
159 1 opposed to simply trhaps letting some entity which 2 contracts with them to do the transportation to their door. [ 3 CHAIRhDW BOLLWERK: So in other words, when they say 4 are they.a common carrier contract, they give the stuff to 5 them. 6 MR. TURK: That's something I don't understand yet. I 7 don't know what their arrangement would be for 8 transportation. 9 CRAIRMAN B.0LLWERK: Well, if they're setting it up on 10 that particular scenario, the question is did they set up 11 something that looks like a separate common carrier or 12 contractor is, in fact -- isn't that their entity? They -- 13 separate them out or keep them out as being -- you know, 14 keep them out there -- () 15 MR. TURK: At this point I couldn't say without seeing 16 what they actually set up. 17 CRAIRMAN BOLLWERK: All right. Ms. Chancellor. 18 MS. CHANCELLOR: Well, what we know is we don't know 19 very much. It's obvious that there is not enough in the ' 20 application to make a complete analysis of what's under that 21 contention. And for example, we have no facts to support 22 the contention and, for example, we -- not just one truck to 23 move these casks. We would be delighted to know how many 24 trucks they would have and we'd be delighted to know some 25 sort of shipping program, some sort of factual basis for t' ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
1 160 i i developing our contention. f
)
2 So I think it is disingenuous of him to use the falsity ; 3 of information in the application and throw that against us , i 4 for failing to support our contentions. We have tried to 5 give him the information that is available. And I don't ! { 6 believe when the Commission amended its regulations in 1989 7- it intended the applicant to be allowed to not provide the 8 information that's necessary. 9 I think we have here something that walks like a duck, ' 10 looks like a duck and that the activities that occur at 11 Rowley Junction certainly are unique. The transportation 12 regulations, if we have to rely on those, what they say, 49 13 CFR 174.14 says.that Department of Transportation 14 regulations require all shipments of hazardous material to ' () 15 be forwarded promptly, and highway shipments are to be i 16 transported without unnecessary delay. 17 These really do not provide any sort of safeguards for 18 what's going on at Rowley Junction, Whether PFS can get 19 casks out of there within 48 hours or not, there are always
- 20 going to be casks at Rowley Junction.
21 The staff, I believe, begs the question by saying, Jhis
~
22 is not on-site." The applicant says, "We're going to 23 receive the casks at the reservation." 24 We believe that either the Rowley Junction facility 25 should either be licensed as a separate entity or else as O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite-300
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161 1 part of the general Part 72 license. It cannot go simply 2 relying on DOT transportation regulations and Part 71 [ 3 regulations. 4 Whether PFS is going to employ a common carrier or not 5 _to do the work, from the application, PFS says that it will 6- build a building, own the building and own the crane. So 7 they are -- so we believe that whether they contract out the 8 work or not, the actual facility, it's a staggered facility. 9 The facility will be owned and under control of PFS. 10 And, again, I want to stress that this is integral to 11 the operation of ISFSI. And how the casks move into and out 12 of Rowley Junction will be a function of how the operation 13 at the ISFSI in terms of checking the casks when they come 14 in, or off-loading them, or storing them at the time when () 15 the heavy haul trucks come around would be a function of the 16 operation of the ISFSI. 17 DR. LAM: Ms. Chancellor, I see a new twist in your 18 argument. Your contention originally stated that on the 19 applicant's application -- and I hear you saying perhaps if 20 _the regulation is silent, all of the -- the people in
- 21. intermodal transport. Are you saying that?
2
.2 MS, CHANCELLOR: Our contention.is that PFS violates 23 72. 2 (c) if it intends to just use the transportation 24 regulations for Rowley Junction. If their license 25 solely addresses what occurs on the reservation, then the O ANN RILEY & ASSOCIATES, LTD.
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162 1 possession of fuel at Rowley Junction is not covered by that 2 Part 72 license, and it should be. If it is not covered by
)
3 that Part 72 license, c different license should be issued. 4 This is a problem of trying to squeeze this facility 5 into regulations that weren't promulgated for this purpose. 6 You're trying to squeeze an elephant into a mouse hole, and 7 it just won't fit. 8 CHAIRMAN BOLLWERK: All right. It's 3:15. Why don't 9 we go ahead and take a break till 3:30, and then we'll 10 reconvene. 11 (Recess from 3:15 p.m. to 3:30 p.m.) 12 CRAIRMAN BOLLWERK: I understand -- I was told at the 13 break that Mr. Silberg and Mr. Turk have something to say 14 briefly on this. I think it's delayed on the subject we () 15 16 were just discussing, and obviously, Ms. Chancellor, if you have something in response, we'll take that and then we'll 17 move on. 18 MR. SILBERG: Yes. I just wanted to clarify, I didn't 19 hear it, but other people did, that there was some 20 discussion about transfer of ownership. Ownership of the 21 spent fuel does not transfer at all. In terms of 22 possession, the application states that possession will not 23 transfer until after the cask is at the ISFSI, it is opened 24 and determined not to be contaminated. Only at that time 25 does possession transfer. If it's determined to be Q (,,/ ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
163 1 contaminated, the application and the service agreement will 2 state that the shipping cask is closed up and it's sent back 3 home. 4 But possession is really irrelevant to the issue. Even 5 if possession of the fuel transferred at the reactor sites. 6 The issue of the licensing of the ISFSI is a totally 7 different question unrelated to possession. 8 CHAIRMAN BOLLWERK: All right, is that it? Mr. Turk. 9 MR TURK: .Your Honor, this is a brief reply to 10 something which I'm told was in Ms. Chancellor's reply. I 11 didn't hear it, but I'm told that she had argued that there 12 was no licensing authority in effect over the spent fuel at 13 Rowley Junction. I just wanted to clarify that. In fact, l 14 as we stated in our written response, the common carrier and () 15 the shipper are subject to Part 73 requirements. So that 16 physical protection will be requirad at Rowley Junction of 17 the common carrier and shipper. 4 18 CHAIRMAN BOLLWERK: All right. Ms. Chancellor, 19 anything you want to say about any of those two comments? 20 MS. CHANCELLOR: We stick by our comments that this is 21 a staging area and it should be regulated other than unler 22 the regulations for Part 71 or DOT. 23 CHAIRMAN BOLLWERK: All right. Let me just make one 24 brief comment about scheduling. We're having -- you know, 25 in terms of absolute numbers we didn't get a lot of progress i p/ (_ ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
164 1 in the last couple of hours. We only got through three [ 2 contentions, although we talked about some very important 3 issues, so it concerns me a little less. Let me make it 4 clear I don't want to set absolute time limits on these 5 discussions, but I fully will intend to do that if we begin 6 to run in to problems. 7 So_ recognize again that we've read the briefs. If 8 you've already said it in the brief, it's not necessary to 9 keep reiterating. We understand what you said. Let's keep i 10 to the main points here and move along. Because if we 4 11 don't, we could be here till past the snow and into next 12 summer. So we really need to keep our focus here and move 13 along. Because we want to hear from everybody, but we also 14 have time constraints. () 15 16 All right. Yes, sir. MR. KENNEDY: It's at 25 CFR 162.8. And, as usual, 17 Mr. Silberg is correct. It's 25 years with a 25-year 18 renewal. 19 CHAIRMAN BOLLWERK: All right. You saved me from 20 reading the regulation. Appreciate, sir. 21 All right. I wanted to say something to Mr. Quintana 22 about his contention, but he's not here right now, 23 MR. YORK: He had to run Professor Wilson to the 24 airport, but his vehicle is back. So I don't know. 25 CHAIRMAN BOLLWERK: Well, we'll come back to that when i ANN RILEY & ASSOCIATES, LTD. s Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 I
165 ! I he returns. Not a big problem. : i 2 All right. That concludes the discussion we have of Let's go on and move in to safety issues . 3 the other issues. : 4 now. And the first one of those is Utah contention C which 5 deals with a failure to demonstrate compliance with NRC dose
- 6 limits.
- 7 MS. CURRAN
- I'm going to be addressing contention C, 4
8 Bearing mind what the Chairman just said, I'm not going to l 9 repeat things that were said in our written pleadings,
- 10 except perhaps for emphasis and clarification.
11 I would like to correct a typographical error on the 4 o a
, 12 bottom of page 21 of our reply pleading. In the middle line 13 of that bottom paragraph it should say, "And therefore the l 14 Board need not address the question of whether the accident i
() 15 is credible," rather than it says "needs to address."
- 16 This contention is somewhat technical, and I've asked 17
[ i Dr. Resnikof to sit with me, as he is the expert that is ) 18 helping us with this contention, and on whose expert opinion i. 19 the contention is based, and on his testimony we intend to 20 rely for these allegations of fact and opinion. 21- I think it warrants a bit of perhaps more clarification 22 of the issue with respect to the mixing of data that we are 23 concerned about with respect to the accident dose 24 calculations.
- 25 NUREG-1536 apparently provides data on the release i
1 ANN-RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 , (202) 842-0034
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166 1 from the fuel pellets into the space between the pellets and ( ) 2 the cladding which is also known as the plana. And the 3 applicant used that particular data out of a NUREG, but 4 then went to a separate report for what in our reply we 5 referred to au steps two and three of their calculation of 6 the loses, which was to take data from a Sandia accident 7 analysis, a transportation accident analysis, which assumes 8 that only 10 percent of the release actually escapes into 9 the cask, and ,then further go on to assume a respirable 10 fraction of that of five percent. 11 And our concern here is that they're mixing apples and 12 oranges, that the NUREG-1356 accident is a different 13 animal, a different type of an accident that uay not have 14 the characteristics that are similar and applicable for the () 15 Sandia type accident. And that the consequences -- if the 16 data for either type of accident were uniformly applied, 17 that the consequences are likely to be more severe. 18 And also that if a sabotage accident were examined, 19 which we believe would be of greater consequences than the 20 accident that's looked at, the consequences would be even 21 more severe. So that is the essential thrust of that 22 contention, that particular basis for that contention. 23 Then the contention goes on to question the failure to 24 calculate doses to children, to calculate ingestion doses 25 and. ground-shine doses, and also the failure to use the most ANN RILEY & ASSOCIATES, LTD. O_ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
167 i up-to-date guidance for making the calculation which is 2 ICRP-60. 3 The applicants claims that, and I believe the staff, 4 also, that the applicant is not required to consider doses 5 to children, but as we point out in our pleading, the 6 regulations speak of doses to an individual and don't limit 7 the consideration to an adult or an adult male. And we have 8 provided factual basis for asserting that children should be , 9 taken into consideration, because the actual doses for them 10 are higher given their body characteristics. 11 And, in fact, ICRP-60 provides a methodology for doing 12 that, as well as an improved methodology for considering 13 lung doses. And although the applicant says that we don't 14 provide any expert opinion for that assertion, we do make 15 that factual assertion in our pleading, and it is supported 16 by an expert affidavit. So we have met the pleading 17 requirements under 10 CFR 2.714. 18 Another argument that the applicant makes is that it is 19 not required to consider ground-ehine doses and ingesticn 20 doses, because the regulatory guidance calls for the 21 evaluation of instantaneous impacts. 22 Now, whatever the regulatory guidance is that the 23 applicant is relying on, it's clear that the regulation 24 itself talks about doses resulting from the exposure, which 25 would include dosec incurred after the exposure. And e ANN RILFY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 9 _
-168 ,
1- because there's no plan in this design for the evacuation of f.
)
2 people from the area, it would seem particularly important 3 in this case to look at what the doses are going to n* in 4- the-aftermath of such an accident. 5 That's it for now. 6 CHAIRMAN BOLLWERK: -All right. Thank you very much. 7 Mr. Silberg. 8 MR, SILBERG: Mr. Blake. 9 CHAIRMAN B,0LLWERK: Mr. Blake. 10 MR. BLAKE: Like the staff, we're splitting up 11 some of the contentions. 12 CHAIRMAN BOLLWERK: Whatever is comfortable for you 13 all. 14 MR. BLAKE: My response will Le a little bit' longer, ( 15 because not only do I have to respond to the oral 16 observations-by the State, but as well the written ceply, 17 This is really our first' opportunity to respond. So I will 18 be'taking on some additional topics. 19 The first point I want to address is that the State 20 contends that the ISFSI can't be licensed until the casks 21 a:e approved by the agency in their separate generic 22 licensing proceedings. 23 I want the Board to understand that our position is 24 that that's a separate proceeding. It's going forward. 25 That generic licensing may well occur. But there are a ANN RILEY & ASSOCIATES, LTD. ( Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 y
169 1 couple points about whether or not that plays a role in the 2 timing of our approval here. 3 One is that that regulation, generic licensing, really 4 doesn't apply here. It applies to the authorization to 5 allow ISFSIs at individual reactor sites, and we at least 6 don't believe it will necessarily apply to us. 7 But beyond that, the reason that we've included all of 8 the information on theJe casks and will continue to, and 9 there may well,be contentions and a lot of discussion about 10 them, is because we're authorized here -- we're allowed here 1 11 under the NRC regulations to get a specific license for the 12 use of these casks at this facility. And therefore, it's 13 really just a parallel fact. We don't think ie're linked. 14 The second point I want to address by the State is that Ii LJ 15 the State complains that the applicant's and staff's 16 arguments that the Halstad report is inapplicable because it 17 relates to the transportation accident, we're now taking 18 that position, and that the storage cask is even -- is 19 likely to be even more vulnerable to sabotage than a 20 transportation cask. 21 FirEt, the State has substantially augmented its 22 argument and basis. I would refer the Board to the sole 23 sentence that the State had on this topic in its original 24 petition at 18. It's one sentence. It didn't make any 25 argument along these lines. It only said, "The applicant's O i ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 j (202) 842-0034 '
170 1 assertion of loss is not credible, is contradicted by 2 studies showing the credibility of sabotage-induced 3 accidents that meets the loss of confinement area," citing 4 Halstad. 5 The State's original petition didn't provide any basis 6 to connect the transportation analysis in Halstad's report 7 to spent fuel storage casks that we're talking about here. 8 Its new attempt to connect them is a new basis, in our 9 view. . 10 Second, the State's new basis that the applicant must 11 consider the use of anti-tank missiles in sabotage is a 12 clear challenge to the Commission's regulations. As we 13 discussed in our earlier answer, we den't think anti-tank 14 missiles have a place here and they're beyond the scope of h 15 the design basis threat that we have to cope with and 16 protect against with the ISFSIs. 17 I was going to react, but I appreciate the 18 clarifications that were made on the language. But I, 19 frankly, just didn't understand their contention before, but 20 now I do, and I don't have a comment. 21 The question of the use of NUREG-1536 and SNDO-80.'1.24 e 22 came up both in their written reply and just now in their 23 oral comments. Our explanation is a fairly simple one which 24 we laid out in our response. We used 1536 to the extent 25 possible because it was recommended by the staff G ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
171 1 specifically for the evaluation of releases from dry cask 2 storage. And where it didn't provide data, then we used the 3 SNDO-80.21.24 as a secondary source, because it was, in 4 fact, relied on and cited in NUREG-1536. 5 While I think she's right, Ms. Curran is right that 6 1536 may not have data from a Sandia type accident, the 7 Sandia accident was a transportation -- high velocity 8 transportation accident, not a dry-cask storage accident 9 that we're talking about here. We simply think it's the 10 preferreo, the more applicable, that which is recommended by 11 the staff and, therefore, a better choice. 12 The State has asserted that the releases could be much 13 larger if a sabotage event took place, because not just < 14 radio nuclides within the gap, but a percentage of the fuel 15 itself might be released. h Our reaction to that is, first, 16 that the State's proposal that the Commission should base 17 its design basis accident for radionuclide releases from the 18 ISFSI on a sabotage event is a new basis to us and, 19 therefore, not proper at this point. 20 Second, the State's recommendation, what it believed 21 should be the design basis accident for spent fuel storage, 22 we think, is a collateral attack on the Commission's 23 regulations, the sabotage thing. 24 Third, we don't this. the State has shown any 25 deficiency in the .taff's guidance on radionuclide releases 9 ANN RTLEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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172 1 which should be used in dry cask storage system settings 2 such as this one. We don't think that the State's undefined 3 sabotage event belief that it could yield higher - 4 radionuclide releases is a sufficient basis. 5 With regard to the topic of whether 'r not non-6 respirable nuclides, radionuclides can be deposited in the 7 ground and lead to direct gamma or food ingestion dose 8 pathways, we think we responded to this before, but let me 9 hit a couple of points. 10 First, direct gamma is considered in our dose studies 11 by dose from the radiouclides in the cloud around the dose 12 recipient. We don't see why the same radio nuclides'on the 13 ground would increase the dose. 14 Second, the staff has recommended bounding dose h 15 analysis in 1536, and it assumes an instantaneous dose where 16 the hypothetical individual is conservatively assumed to be 17 right at the closest point of the CAB, the controlled area 18 boundary, and remains stationary for the entire time the 19 radionuclide plume passes by. That entire dose is assumed 20 to be imparted instantaneously. 21 The staff has recommended this kind of hypothetical, a 22 very conservative and bounding approach to evaluating the 23 dose'. And we believe it does bound any real-world doses. 24 We don't believe that the State has provided a basis for 25 thinking otherwise or to allow a contention to consider G ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
, 173 1 otherwise. 2 The State's argume t that we need to include in *.le 3 calculation of doses for individuals the ingestion pathway, 4 we believe, is similarly coped with by the approach that 5 we've taken. Again, we've taken the conservative bounding 6 approach of assuming a hypothetical individual in the worut 7 possible location, totally consumed by the cloud, and that
- 8 that pathway more than adequately copes with what a real 9 individual of f, site through the ir- stion pathway of 10 vegetation or livestock which could conceivably provide by 11 way of pathway, particularly in this situation.
12_ We don't th4 .at the State has provided a basis for 13 challengin; the NRC's typical approach and particular 14 approach in the case of this incident. () 15 16-With regard to children, it's really the same answer. We agree that children are individuals, and there's no legal 17 argument about it. But the fact is with the conservative 18 assumptions and bounding analysis that the staff has 19 recommended that's accepted throughout the industry and is 20 aptly applied here, we think we have more L.an coped with 21 any realistic doses for children who might receive doses 22 by variety of pathways off site. 23 Finally, I think with respect to ICRP-30 and 60, 24 which I think was the last topic addressed, the State, while 25 it relies on Dr. Resnikoff's opinion that 60 would be
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174 1 preferable to 30, we don't believe has provided a sufficient 2 basis for an admissible contention. It's provided no 3 indication why the applicant is required to use the dose and 4 ethodology in 60 or why 30 is insufficient to meet the 5 Commission's regulations. 6 We don't think that going with 60 is a regulatory 1 7 requirement. We think we've met the staff's guidance. We 8 think that 30 continues to be applicable in that recommended 4 9 by the NRC staff, and that it ought to be appropri ate and 10 sufficient here. 1 11 We don't think, even though there may be a difference 12 in opinion by Dr. Resnikoff, that given the fact that 13 there's no regulatory requirement to go with 60 versus 30, 14 that there is a material dispute or issue here to be (A
~_J
) 15 allowed in the proceeding.
16
- hope I've covered the various things that Ms. Curran 17 hit this afternoon, and I tried to reduce what I otherwise 18 planned to say.
19 CHAIRMAN BOLLWERK: Okay, thank you, sir. 20 Mr. Turk. 21 MR. MARCO: That's me. I'd like to address two 22 clarifications it looks like the State makes with respect to 23 their contention. This may actually streamline my argument. 24 So first, in its reply the State clarifies its 25 assertion concerning cask certification. The State asserts 4 (% ANN RILEY & ASSOCIATES, LTD.
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e 175 1 in its reply that it contends that because the design of the 2 ISFSI proposed by PFS depends on the use of those particular 3 casks, it cannot be licensed until casks are approved by the 4 agency. 5 This is consistent with the staff's approach in which 6 its review schedule depends upon completion of certification 7 of casks. Therefore, as far as the staff is concerned, it 8 really does not have any dispute with this issue with the 9 State. . 10 The other matter concerns the credibility of the 11 hypothetical loss of confinement barrier accident. And as I 12 just heard now from Ms. Curran, the sentence would now read: 13 "In any event, as the applicant recognizes, the 14 loss of confinement accident is analyzed in the l 15 application, and, therefore, the Board needs not to 16 address the question of whether the accident is 17 credib;e." 18 Therefore, it looks like this is not really an issue 19 anymore, from what I understand from the State. 20 So then just to move on to what the staff opposes. Is 21 that correct? 22 MS. CURRAN: Yes. 23 MR. TURK: For clarification, let me just ask, which 24 page was the correction made to? 25 MS. CURRAN: It was page 21. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
176 1 .MR. TURK: Twenty-one? f 2 MS.- CURRAN: -Page 21-of the reply. 3- MS. MARCO: Yeah. 4 MR. TURK: Thank you. 5 MS. MARCO: In the State's reply, the State asserts that
- 6. the applicant-shoulo have' considered doses to children. The 7 -State. claims that-the standards in Part 72 and Part 20 place 8: uno limitations on the calculations.
9 The State asserts that the standards prescribe dose 10 limits for individuals outside the controlled area, and, .in 11 Part 20, individual members of the public. It should be 12 noted, though, in the statements of consideration for Part 13- 20, the Commission responded to a commenter who requested to i 14 delete a tab' from Appendix B.which applied to the () 15 assessment and doses to the public. And the Commission,-in 16 its response to that commenter -- well, let me just read 171 briefly from the comment that was posed. 18 "NRC should consider-deleting table two from 19 Appendix B. The concentration limits in Appendix B 12 0 do not provide adequate protection of children and 21 infants because they do not take into account age 22 dependency." 23 The Commission responded to this by saying: 24 "The use of effective dose equivaleat concept 25 reduces the importance of age dependent intake to ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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, 177 1 dose factors." ' 2 And that basically it.had considered age dependent factors 3 'i n its table itself. It was built in. So this 10 one ' 4 instance where the Commission does not mean that any l5 ' individual necessarily includes children. 6 MR. CURRAN: Can you give the citation for -that? 7 MS. MARCO: Sure. It's the statement of consideration. { 8 for Part 20, and it's -- one second. Mine does not have a 9 citation. Twenty, statement of consideration 34, but l 10 September 29th, 1995, I believe. I'm trying to get a 1 Federal Register cite for you.
;2 MR. TURK: That's in reference to the NRC's loose-leaf 13 regulations.
14 MS. MARCO: Well, anyway, while you're looking for , 13 that, the State also asserts that ICRP-30 is outdated for 16 dose calculations, and that-ICRP-60 is more~ accurate for 17 human dose, radiation doses. However, the expert does not 18 explain where ICRP-30 is deficient, other than the fact that 19 it does not calculate doses to children. And, in fact, the-20 statements of consideration in Part 20 do talk.about 21 ICRP-30. And on that same page, which we're getting the
.22 cite for, the Commission recognizes that the ICRP-26/30 23- system evaluates the doses to the major organs and the six 24 -remaining organs that received the next highest doses. This 25 is also in response to one of the comments.
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178 1 And it goes n to say: 2 "The concentration limits for members of tiae ' 3 public were based on a reference dose, 4 incorporated an additional factor of tt'o reduction 5 for age dependency and combined air and water intakes. 6 Thus, the concentration limits for the public 7 reflect a reduction in their basis from whole body 8 annual dose. These changes are reflected in ICRP 9 Publication 30. However, these changes are a 10 result of changes in the scientific techniques." 11 I'm just skimming, i l 12 Well, anyway, there are several places where ICRP-30 12 is recommended or at least relied upon by the Commission. 14 MR. TURK: The Federal Register citation is 56 Federal () 15 Register 23360. This appears in the May 21, 1991 volume. I 16 can't give you an exact page reference. It's approximately 17 25 pages inte that Federal Register -- 18 MS. CURRAN: C(.1 you do any better than that? 19 MR. TURK: -- citation. Well, you'll find it when you 20 look at the -- the comments are numbered, so -- 21 MS, MARCO: No , they're not, 22 MR. TURK: They're not? 23 PIS . MARCO: I don'.t think so, not in this case. 24 MR. TURK: They're not numbered, but you should be able 25 to find it with the quotation given. [] ( ,/ ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
179 1 MS. CURRAN: I just wonder if we could build in some 2 opportunity for the staff to show me, if we can compare our 3 documents, that I could actually -- 4 MR. TURK: We'll hand you the page; all right? 5 MS. CURRAN: Okay. 6 CHAIRMAN BOLLWERK: I'll tell you what. Why don't we 7 take -- while you're looking at that, let me talk to 8 Mr. Quintana about his contention, and we'll try to work it 9 that way. . 10 The contention you have is -- and we're talking about 11 this was the only contention you had, was -- it was a broad 12 one, basically saying that you support the application. Am 13 I correct in that? I don't think I misstated that in any . 14 way, have I? 15 MR. QUINTANA: That's correct. 16 CHAIRMAN BOLLWERK: One thing I should make you aware 17 of, I have to say that the Commiscion's, I want to say, 18 practice dealing with contentions like this, because people 19 come in to support the application, is not very clear. But 20 one thing I would expect is when the time comes and we 21 begin to get a little more focused in terms of the 22 contentions or whatever, we will be asking you to specify 23 fairly clearly what contentions you want to talk about. We 24 have that req.4rement certainly for anybody that comes in as 25 an interested state or interested governmental entity. And 9 ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
180 1 simply being there, we're going to want a little more 2 information from you about what you plan to do, how you plan 3 to participate other than simply to kind of be there. All 4 right? I just want to put you on notice. 5 MR. QUINTANA: That's fine, Your Honor. 6 CHAIRMAN BOLLWERK: You know, that contention doesn't 7 really tell us anything about what your problems are other 8 than you support the application. So it may come to the 9 point where we.'re going to ask you to be a little more 10 specific about where you are on each issue, any problems you 11 have, and witnesses, those sorts of things. Just want to 12 make you aware of that. 13 MR. QUINTANA: Thank you, Your Honor. 14 CHAIRMAN BOLLWERK: All right. Any luck, Ms. Curran? 15 MS. CURRAN: h It's going to take just a minute more. 16 CHAIRMAN BOLLWERK: Okay. Just so you know, the next 17 one we have is number D, which is facilitation of 18 decommissioning. 19 MS. CURRAN: That's mine, too. 20 CHAIRMAN BOLLWERK: I'm sorry? 21 MS. CURRAN: So if you give me 30 seconds. 22 CHAIRMAN BOLLWERK: I know that. I recognize that. 23 I'm just moving along to let people know where we're going. 24 I'm not putting you off. 25 And I just wanted to say that it looked to me like on 9 ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 042-0034
181 1 this contention, one of the things it dealt with is a need ()
~
2 for a hot cell, and also OGDA may have had some relationship 3 with this contention. So to int you on notice about that. 4 And actually this question about a need for a hot cell was 5 also brought up in Utah J. So that may be something we need 6 to talk about at the same time. 7 MR. TUPK: Your Honor, may I make a procedural inquiry? 8 CHAIRMAN BOLLWERK: Sure. 9 MR. TURK: ,Given the fact that there are so many 10 contentions to address in these next few days, I wondered if 11 the parties might be able to come to an agreement and l 12 perhaps jointly propose to you that the only real argument 13 we'll have today is allowing the applicant and staff to 14 address the written replies, and then to respond to any () 15 Board questions on additional contentions. And to the 16 extent that there's an oral statement, allow other parties 17 to respond to an oral statement. But it seems there really 18 shouldn't be any reason to restate positions that we took in 19 our pleadings already. 20 CHAIRMAN BOLLWERK: So let me understand what you're 21 proposing. 22 MR. TURK: I wanted the other pat, 3 to agree to this. 23 but I suggest that we just limit or.al argument to addressing 24 written replies on the assumption that everything else is 25 already before you, everything you need. O ANN RILEY & ASSOCIATES, LTD. Ccart Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 s.
182 1 CHAIRMAN BOLLWERK: Right.
)
2 MR. TURK: And also addressing any Board questions that 3 you have. 4 CHAIRMAN BOLLWERK: I certainly don't have a problem 5 with that, obviously. If that's something that you think 6 you can get agreement on, that's fine. As I say, again, we 7 read the pleadings, and I'm beginning to hear a lot of the 8 same statements as we said in this or we said in that. And 9 when you say that, that indicates to me you're basically 10 telling me what you've already written down. 11 MR. TURK: Yeah. There are only two written replies by j 12 Castle Rock and by the State of Utah. OGD made a written l 13 reply but it didn't address specific contentions. 14 CHAIRMAN BOLLWERK: Right. {I) V 15 MR. TURK: So I would think that the only thing that 16 needs to be heard today are all responses to those written 17 replies and allowing those parties also to respond to those 18 oral comments. 19 CHAIRMAN BOLLWERK: Again, I don't have a problem with 20 that. 21 MS. CHANCELLOR: We'd have a problem with that, because 22 we couldn't address the whole scope, especially with 23 Mr. Silberg's wordy answer. We couldn't address all issues 24 in our reply, and we feel like we would be limited. But we 25 will make a concerted effort not to address things that are
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l 183 1 already addressed in our brief. (') V 2 CHAIRMAN BOLLWERK: Okay. Again, the thing that 3 concerns me when I hear references back to pleadings that 4 have already been filed, then that tells me you're telling 5 me something that's in the document, and I can go back and 6 read the document. If nothing else, just tell me what page 7 it's on, and I'll go back and read it again. But no need to 8 explain if you've said it once. That's the point. 9 MR. TURK: ,I'm sure that I recall that the State did on 10 several occasions say that they'll address something further 11 in the oral argument. 12 CHAIRMAN BOLLWERK: All right. 13 MS. CURRAN: Okay. I don't mean to preclude that. 14 CHAIRMAN BOLLWERK: All right, go ahead. () 15 MS. CURRAN: It seems like we're in agreement-with the 16 staff that the basic issue about the licensing of the 17 Holpeck and transfer cask is just that the license shouldn't 18 be granted for this facility until the NRC has done its 19 review of whatever data the license -- the applicant is 20 relying on in Holpeck and transfer application. We don't 21 want to fall between the cracks is what we're concerned 22 about. If the NRC isn't reviewing that data in this 23 particular proceeding and is reviewing -- but it stated it 24 relied on for this specific design, then we want to make 25 sure that no license is issued until such time that review ANN RILEY & ASSOCIATES, LTD. ()T (m Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
184 1 is done. That's the concern of that part of the contention. I) V 2 CHAIRMAN BOLLWERK: Anything you all want to say about 3 that point? 4 MS. MARCO: I think that's consistent. I believe 5 that's consistent with our position. 6 CHAIRMAN BOLLWERK: All right. 7 MR. TURK: We can't guarantee, however, that in the 8 rule-making, every one of the State's concerns will be 9 addre .ed explicitly, but that would be that separate 10 proceeding. 21 CHAIRMAN BOLLWERK: All right. 12 MS. CURRAN: I'm not going to address the credibility 13 issue because we've addressed it in our pleadings, and I 14 really think that the parties agree at this point it's a
,O
() 15 non-issue. 16 I'd like to address PFS' argument about the Sandia 17 report being something that was reasonable for PFS to rely 18 on because it's referenced in the NUREG. What we needed 19 to do to gain admissibility of this contention was raise a 20 factual basis for a concern about whether the Sandia data is 21 appropriate to be used in the same scenario as the data used
- 22 in NUREG-1536, and this we did. There are two different
't 23 kinds of accidents that are being analyzed, and the 24 applicant hasn't demonstrated why it's appropriate to leap 25 from one accident scenario and its associated data to
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185 1 another and combine those two. 2 We think that if one were to try to develop the data 3 for an accident where the lid was taken off the canister, 4 which is this loss-of-confinement accident, that it would be 5 very unreasonable to assume that 90 percent of the inventory 6 is contained in a cask and doesn't escape. 7 .And although it might be reasonable to assume a five 8 percent respirable fraction, that you can't just arbitrari!y 3 9 impose those v,arious formulas on different accident 10 scenarios. 11 MR. KLINE: While you're on that subject, we haven't 12 had an opportunity to review, or at least I haven't, Sandia 13 2124. But it's been asserted that that accident analyzed 14 was a high-energy or high-impac" argument or accident. 15 What I haven't heard you address is why this doesn't 16 set'an upper bound on dispersal. I mean, even if it's 17 wrong, why is it that dispersal from a static situation 18 could exceed that from a high energy situation. 19 MS. CURRAN: All right. I'm going to venture into some 20 technical territory. 21 DR. KLINE: You have your expert. 22 MS. CURRAN: I've instructed my expert to pinch me if I 23 make a mistake. But my understanding is that in a high-24 velocity impact accident that one of the factors is a great 25 deal o anergy and heet which may affect -- create O ANN RILEY & ASSOCIATES, LTD. Coul.t Reporters 1250 1 Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
186 1 circumstances in which the radionuclides would plate, and 2 that also the fuel would break into large chunks which would 3 not necessarily be respirable. 4 And the scenario that's evaluated by PFS or by NUREG-5 1536 involves -- it doesn't say how it happens, but the 6 opening of the canister, where that circumstance isn't 7 present. So there's a difference there. 8 DR. KLINE: But it doesn't -- I'm just looking for a 9 basis now. An.d the question, on what basis is there to 0 10 think that that static situation would have a higher energy 11 of dispersal? I mean, assuming you remove a lid, what gg 12 disperses it from there? {]} 13 MS. CURRAN: Well, I think there's two different 14 factors that you have to look at. One is the amount of 15 radionuclides that are released and the other is the 16 amount that's respirable. In the cace that's evaluated by 17 PFS, the amount that's in the plenum is all gas and it 18 would be reasonable to assume that it's all respirable. 19 DR. KLINE: Okay. 20 DR. LAM: In addition to Judge Kline's question, Ms. 21 Curran, why would this issue be material? 22 MS. CURRAN: Because the dose -- the point of this 23 exercise that PSF did is to calculate the dose to the public 24 at the boundary of the facility. And the dose could be 25 significantly higher than is estimated by PFS. 4 ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 l' Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
187 1 And the consequence of that would be possibly to 2 require off-site emergency planning or possibly to deny the 3 license. 4 DR. LAM: So you are asserting that the difference in 5 modeling could lead to a significantly higher dose. 6 MS. CURRAN: Yes, a dose in excess of the regulatory 7 standard. 8 CHAIRMAN BOLLWERK: Anything else? 9 MS. CURRAN,: I'd just also like to make sure that the 10 issue of -- we did assert that we think sabotage is a 11 credible accident, but it is also important to note that our 12 gg contention deals with the accident that was -- it also deals 13 with the accident that was evaluated in the SAR. And that 14 one of the things we want to focus on here is assuming that 15 one uses the maximum credible accident chosen by PFS, that h 16 even that analysis is inadequate. 17 I'd like to address the argument that the dose 18 calculation was conservative because it considered direct 19 gamma radiation from the plume during the instantaneous 20 release. That is not the same factually as the ground shine 21 from radionuclides that are deposited on the ground during 22 an accident and which may affect people after, any aftermath 23 of the accident. 24 Same principle for the ingestion pathway. The 25 ingestion pathway concept includes doses that one receives e ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
188 1 after the accident from deposition of radionuclides on 2 food, on food sources. 3 PPS has said here that they have coped with doses to 4 children, attempted to cope with them in whatever way they 5 could. In our view, that represents the factual issue here. 6 Well, did they or did they not address the issue of doses to 7 children? The regulation, the statement of considerations 8 for Part 20, in our view, does not preclude the 9 consi6eration ,of doses to children. In the statement that 10 was read by NRC counsel, the Commission says -- responds to 11 an argument that the concentration limits in Appendix B do 12 not provide adequate protection of children and infants, 13 because they do not take into account age dependency in a 14 proper manner. 15 Compliance with dose limits rather than with these 16 concentration limits should be required. The Commission 17 responds that -- one of their responses is there is a lack 18 of detailed age dependent metabolic data f'or all but the 19 most common radionuclides that will inhibit such attempts 20 to increase the precision of the dose estimates. 21 Well, to us, what the Commission is saying here is that 22 ICRP-30 is all we've got right now and that it doesn't 23 contain enough information to allow us to calculate doses to 24 children. But ICRP-60 has updated that. In 1989, the ICRP 25 issued a report, Annuls of the ICRP Publication 56, in which 9 ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
189 1 it set out its goals for ICRP-60 which was to -- included (} 2 modeling doses for adults of both sexes, infants, children 3 and different racial groups, as well as workers. And this 4 is something that, as we have stated in our contention, 5 ICRP-60 does. 6 So it is our position that at this point the Commission 7 has what it needs in order to look at doses to children. 8 The language of the regulation certainly contemplates 9 looking at dos.es to individuals, and that is not just the 10 adult male. 11 CHAIRMAN BOLLWERK: That it? 12 MS, CURRAN: Furthermore, the Commission, in their 13 regulations, has made a dose -- an exception with respect to 14 doses to embryos and women workers, which I think is stated (Oj 15 in our reply. That's all. 16 CHAIRMAN BOLLWERK: Okay, thank you. 17 All right. Let's move on to State D. As I mentioned, 18 it looked to me like there was also some discussion about 19 the hot cell question in Utah J and also GDA. If you don't 20 agree with them, we'll move on from there. But I promised 21 to deal with State D first. 22 MS. CURRAN: Okay. I'll again try not to go over 23 ground that's already been plowed. 24 CHAIRMAN BOLLWERK: All right. 25 MS. CURRAN: But I do want to point out that the ANN RILEY & ASSOCIATES, LTD. O's/ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 l l
190 1 regulation that's being cited in this contention governs the 2 facilitation of decommissioning, not decommissioning itself. 3 So it's important to keep that in mind. In our view, 4 facilitation of decommissioning encompasses removing the 5 fuel so that the remainder of the activities can be 6 completed in a timely way. 7 PFS argues that the State has no grounds for seeking 8 more -- a better description of the compatibility of these U 9 casks with DOE, specifications. But in one of the documents 10 that PFS itself cites, DOE imposes some requirements that 11 are not addressed by PFS. And I'm referring to the standard 12 contract for disposal of spent nuclear fuel and/or high 13 level radioactive waste, which is included in the Code of 14 Federal Reculations. lh 15 PFS is correct that DOE has agreed to accept spent fuel 16 in whatever condition it's in, but there are some 17 limitations on that particular agreement. 18 For instance, that if there is failed fuel, then it 19 needs to be either previcusly encapsulated and it also has 20 to be visually inspected for evidence of structurni 21 deformity or damage to cladding or spacers which may require 22 special handling. 23 'So one of our concerns here is that PFS has no means 24 for inspecting the fuel before it goes to the ultimate 25 destination. It appears that if the purchaser, which is O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
191 1 the main -- in the contract gives to whoever is sending the 2 fuel to the repository. If the purchaser is unable to 3 verify the condition of the fuel, that this could result in 4 a delay in DOE accepting the fuel, and that these 5 arrangements have to be worked out in advance. 6 So in our view, if PFS isn't able to verify the 7 condit.4on of this fuel before it goes off to the repository, 8 that could cause a substantial delay in DOE being able to 3 9 accept the fuel. 10 An argument was raised by PFS about shipping back to 11 the utility. Regarding the safety of shipping damaged fuel 12 back to the utility, as we pointed out, it's not clear at 13 al] that the original licensees are going to be around when 14 this fuel needs to be shipped back to them, h 15 And also we'd like to point out a regulation at 10 16 CFR 71.63 (b) which requires that plutonium in excees of 17 20 curies per package must be packaged in a separate inner 18 container placed within outer packaging that meets the 19 requirement of subparts E and F of this part for packaging 20 of material in normal form, i.e. a canister. And it's my 21 understanding that the fuel that would be shipped from the 22 PFS facility would meet this threshold requirement. In 23 other words, if a canister were damaged and found to need to 24 be replaced, the fuel would have to be put in a new canister 25 before it could be shipped out having that much plutonium in G ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
192 1 it.
)
2 There's also a requirement in 10 CFR 72.122 (1) that 3 licensees must have the capability to retrieve radioactive 4 wastes for further processing or disposal, and that 5 capability is not present at this facility. 6 DR. LAM: Ms. Curran, do you mean retrievable? In this 7 instance, do you mean open up the canister, reach inside and 8 retrieve the material inside? Is that what you meant? 9 MS. CURRAN: Right. To be able to ratrieve the fuel 10 from the canister. 11 DR. LAM: Right. 12 MS. CURRAN: Retrieve the fuel, right. 13 DR. LAM: Right. You mean opening up the cap and 14 reach inside and retrieve the material inside. That's what C 15 you meant. 16 MS. CURRAN: Right, right. 17 CHAIRMAN BOLLWERK: Anything else? That's it? 18 MS. CURRAN: That'a it for the moment. 19 CHAIRMAN BOLLWERK: All right. Mr. Blake or 20 Mr. Silberg. 21 MR. SILBERG: The State says that we haven't addressed 22 issues of compatibility, such as thermal design, size, 23 weight, and capacity of the casks, on page 30. They also 24 say that some criteria are already available. Those 25 criteria that they cite, however, are not available, and i ANN RILEY & ASSOCIATES, LTD. ( )] Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 I
193 1 they. don't cite anywhere where it says that they are.
. / 2 Indeed, the standard contract does provide cartain
- O) 3 limitations, and it says that if there's failed fuel, it 4 does 5 have to be encapsulated, that, in fact, the fuel that comes 6 to private fuel storage is encapsulated. It's encapsulated 7 at the reactors. It's visually inspected at the reactors.
8 The . purchase: is not PFS, as defined'in the standard l 9 contract. Rather the purchaser is the utility, and it's the L 10 utility's obligation to perform those visual inspections and 11 1 encapsulations. So it's a foney argument. 12 In terms of two new regulations which the State has 13 cited,.one of them was cited in their response, 72.122(1) on 14 retrievability. They did not cite it in their original () 15 filing, and,=therefore,-it's a late basis and improper, 16 And in any event,_ we do deal with retrievability. Fuel 17 is in a canister. It is retrieved in the canister at 18 private fuel' storage, and transferred from the storage cask 19 to-a shipping cask from whence it will be sent to the DOE 20 for disposal.
-21 l In terms of the other reference to the 71.63(b), the 22 plutonium regulation, that too is a new late basis. That 23 one wasn't even cited in their response, let alone in their 24 initial contention. So we would argue that that is a late 25 basis and not something which ought to be considered at this O \ ,,/
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194 1 point,-even if it applies. Juul right now I'm not in a 4 position to say whether it does or doesn't, not having had
~() 2 j 3 'any previous notice that they were going to be raising that 4- issue.
5 The quotations'that they provide-in the bottom of 30-6 and the top of 31 with respect to inspections, those 7 quotations are not applicable because those are given in the 8- context of the VSC-24-cask which is not a dual-purpose '
- 9- cask. We are dealing with dual-purpose casks in this 10 proceeding in which the fuel will be in a cr. lister, sent to
- 11 a facility in a shipping cask, transferred to a storage l
12- cask. So it's simply not relevant. I 13 The State also-states, on page 32, that we haven't 14 explained how fuel fermented and failed will be encapsulated () -15 in the absence of a hot cell. The answer is it comes to
- i. 16 this facility-encapsulated. And as I mentioned before, as
- 17 stated state in the application, if, when that canister 18 arrives in the facility, if the canister is contaminated, it 19 does not get accepted and is sent back. And to the extent 40 that they're saying the reactor won't be there anymore, that 5
- 21 would indicate that the reactor has disappeared within a j 22 week or two, and that's not likely to happen.
! 23 The State also says that fuel should be inspected and 24 repackaged, the DOE repository may not have that b 25 capability. No basis for that statement, because they )
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195 1 know -- they sheuld well know every document that DOE hhs () 2 3 put out with respect to the repository says that the DOE facility w;11, in fact, have that capability. 4 And to the extent that they say that shipping of failed 5 fuel creates safety hazards, this is again on page 32, that 6 as & direct challenge to Part 72, 7 They then esntradict that statement two lines later by 8 saying the issue concerns preparation for transportation, 9 not transportation itself, and is thus inadmissible. I 10 don't know how you square that with a statement that talks 11 about the safety -- the significant alleged safety hazards 12 of shipping of failed fuel. 13 With respect to 10 CFR 72.112(h), which they also 14 cite, it provision is met in our case because we are () 15 not -- a are dealing with the canning of unconsolidated 16 assemblies which is one of the confinement barriers that's
?.7 specified in that regulation.
18 CHAIRMAN BOLLWERK: All right. Mr. Turk or Ms. Marco? 19 I'm sorry. 20 MS. MARCO: That's okay. The State, in its reply, 21 asserts that the decommissioning plan regulations in 7230 22 govern decommissioning itself, and that, therefore, 72.130 23 governs the facilitation of decommissioning. However, 24 decommissioning is understood to exclude the disposal of 25 spent fuel, and further the decommic.rioning plan O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 l
196 1 requirements of 7230 which the State claims are inapposite, 2 restates that requirement that the applicant discuss those 3 design features and facilitate its decontamination and 4 decommissioning at the end of its useful lite. So it's all 5 to be read together. 6 Compatibility with DOE criteria is going to be 7 addressed in the rule-making prorteding for the rtorage 8 casks. The regulations for the cask certification 9 statement, to.the extent practical in the design of storage 10 casks, consideration should be given to compatil'111ty with 11 ultimate disposition by DOE. The Commission recognized that 12 specific design criteria may not be available until a 13 repository design is approved. 14 In addition, State, in its reply, asserts that the () 15 retrievability of fuel is required at ISFSIs, and the 16 regulations do state that storage systems must be designed , 17 to allow ready retrieval of spent fuel or high lovel 18 radioactive waste for further processing and for disposal. 19 The statements of consideration for approval of the 20 VSC-24 casks which are found at 58 Federal Register 17948, 21 (1993) address this issue of retrievability. The Commission > 22 recognized that many licensees would be able to return the 23 fuel' to the reactor pool in an accident. Again, this deals 24 with a generic license. 25 But the Commission did go on to also recognize that ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
197 1 licensees will have other options to deal with the accident, 2 such as temporary storage and spare storage casks or use of [) 3 an existing certified transportation cask. The State does 4 not show why the applicant's system fails to accomplish 5 this. 6 In addition, the State points to regulations at 7163. 7 Ilowever, the casks are exempt from 7163 because as it says 8 " Solid plutonium in the following forms is exem} 9 from the r.equirements of this paragraph. */ umber 10 one, reactive fuel elements." 11 And so, therefore, these portions of thic contention 12 should be denied. 13 CHAIRMAN BOLLWERK: Anything else? 14 All right. I'll let you all have a brief reply to () 15 16 that. Then I'm going to want to know how this contention is different from your J, I believE it was, which also talks 17 about hot cells. 18 MS, CURRAN: I just wondered. I notice it's 25 of i 19 5:00. This would be an ideal time for me to take that break 20 you promised. 21 CRAIRMAN BOLLWERK: I'll tell you what. Why don't you 22 finish your reply, and then I'll givs *" a break, We'll 23 put off J until after the break. 24 MS. CURRAN: PFS argues that we make a phony argument 25 with respect to the DOE contract for acceptanch of fuel. O ANN RILEY &' ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
198 1 There's a provision in that contract that requires failed 2 fuel to be encapsulated. 3 I think rhis argument gets to the heart of what we see 4 as one of the major problems with this application, which is 5 that it assumes that nothing is going to go wrong at the PFS 6 facility. No problems are going to be discovered. They're
]
7 . going to be discovered, if at all, by the previous licensee, 8 the licensee '.o's shippirg the fue.' to PFS. So that if the l 9 fuel has failed, then it will already be encapsulated. 10 Well, our concern is what if that is not disecceref 11 until the fuel arrives at PFS, until the fuel has been in 12 storage at PFS for some years, and the original licensee no 13 longer has a facility to which to return the fuel, and it 14 has to be encapsulated somehow and sent to the DOE. Those 15 are the kind of questions that aren't answered at all in ( 16 this application. 17- CHAIRMAN BOLLWEkK: All right. ! 18'
- MR. SILBERG: Could I make a brief response to that?
19 CHAIRMAN BOLLWERK: If you're willing to -- go ahead, 20 yes. . 21 MR. SILBERG: The fuel is encapbulated. It is already +
-22 encapsulated. And as we set forth in our application, if it ;
23 needs to be shipped off site, even if the canister were to - ! 24 be damaged, you can ship it off site in compliance with NRC 25 and DOT regs, by sending it off in a transportation cask. d ANN RILEY & ASSOCIATES, LTD. O Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
199 4 1 It is not an issue. 2 CHAIRMAN BOLLWERK: And I will give you the last word. 3 MS, CURRAN: And I think, as we have demonstrated in our 1 4 pleadings, that the cladding is considered one of the 5 barriers to release of radionuclides from a spent fuel i 6 cask. 7 And if the fuel has failed, that means the cladding has 8 failed. And I think the rule-making documents that we have 9 cited speak for themselves, that it is not considered d 10 sufficient to use the cask as the sole barrier to releases 11 to the environment in that ever.t. I 1 12 The Commission does not contemplate fuel being shipped l 13 all over the place, failed fuel with solely a cask for 14 protection. 4 () 15 CFAIRMAN BOLLWERK: All right. Then why don't we go 16 and take a 10-minute break. We'll come back at five till 17 5:00. And I'll ask you -- 18 MS. CURRAN: Did you think I was finished?
! 19 CRAIRMAN BOLLWERK: Were you finished?
20 MS. CURRAN: No. 21 CHAIRMAN BOLLWERK: You weren't. All right. Go ahead. 22 You said you wanted a break. I figured that you were done, 23 MS. CURRAN: Well, I do, but I'd like to be able to 24 finish. 25 CHAIRMAN BOLLWERK: All right, go ahead. I T ANN RILEY & ASSOCIATES, LTD. A Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
, 200 ' 1 MS. CURRAN: As far as we know, there is no basis for 2 an argument that the only kind of a cask that would need to ( 4 3 have the capability of retrievability is a single-purpose 4 cask. There's no -- there's nothing in any of the NRC's 5 regulatory statements that indicate that if one has a dual-6 purpose cask one can do away with the need to retrieve the 7 fuel, as appears to have been suggested by the NRC staff. 8 Hone of the other options, besides putting it in a spent 9 fuel pool or a. hot cell that were suggested by the staff, 10 are, to our knowledge, licensable means of actually 11 retrieving fuel safely. 12 I'd also like to note, in a letter that was mentioned 13 earlier, a March 24, 1997 memorandum from William Cane of 14 the NRC to Mark Delligatti, of a meeting summary of a () 15 March 19, '97 meeting, that the NRC staff summarized, in 16 their summary of this meeting, they say: 17 "The staff indicated that PFS's plan to place a 18 damaged cask into a transportation cask could only 19 be considered a temporary solution." 20 There was an argument made here that decommissioning 21 has nothing to do with removal of spent fuel. But in the 22 regulations it talks about decommissioning following the 23 removal of spent fuel. If you want to facilitate 24 decommissioning, you have to facilitate the removal of spent 25 fuel or you never get to decommissioning. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
l 201 1 So this is an element of facilitating it, which is to 2 make sure that the process for removing this material from [ 3 the site can go about in an expeditious and efficient way, 4 which hasn't been done here. 5 DR. LAM: Could the applicant remove the cask with the 6 spent fuel in it elsewhere for decommissioning? Would you 7 accept that possibility? 8 MS. CURRAN: I'm not sure I understand your question. 9 DR. LAM: Hell, can the applicant ship the cask away 10 from the site, elsewhere, and the.n, therefore. removing 11 everything? 12 MS. CURRAN: Oh, well -- 13 DR. LAM: Then you proceed with decommissioning on 14 site. Would that be a possibility? () 15 MS. CURRAN: Well, theoretically, but from what we've ' 16 seen here, it's very difficult to find any place to ship it 17 other than back to the original site, which may no lonper
-18 exist, or to the ultimate repository. And if the fuel or 19 the canister is damaged in an accident or found to be 20 ' damaged, then it cannot be shipped in that' condition, 21 DR. LAM: So your scenario of decommissioning is for 22 the applicant to either open up all the casks in situ and 23 initiate decommissioning in the hot cell, quote-unquote, or 24 they are compelled to open up the cans because.of prior 25 damaged spent fuel inside. So that's the scenario that you O ANN RILEY & ASSOCIATES, LTD.
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202 i 1 are thinking. Am I correct? t 4 () 2 3 MS. CURRAN: If the fuel is damaged and the canister is damaged, .then the NRC requires double containment before it 4 can be shipped. j 5 DR. LAM: Okay. So it's possible there is damage to the 6 cask, as-well as the spent fuel inside. That's one of the
!: 7 scenarios.
8 MS. CURRAN: Damage to the canister. That is a 9 scenario. Or if it is discovered through other inspections . l 10 or through some information that PFS gets that the fuel
- 11 _inside a given cask is damaged, then this needs to be 12 addressed. We're not arguing that every cask has to'be 13 opened up before it can leave the site for decommissioning, 2.4 but if a problem is discovered --
() 15 DR. LAM: Oh, I -- 16 MS. CURRAN: -- or found, then tnere has to be a way to 17 address it before the fuel is shipped off-site, i 18 DR. LAM: Right. I'm not addressing the merits of your 19 argument. I'm just trying to understand what scenario you 4 20- -are proposing. ' 21 MS. CURRAN: Okay. 1 22 Just one more. Can't find that one. 23 'I'd like to just address the question of the 24 ' applicability of 10 CFR 71.63(b). It is true that we d13 25 not cite _this previously in our contention or our reply. We T O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 . Washington, D.C. 20005 (202) 842-0034
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203 1 discovered this -- we've been in the process of reviewing () 2 3 mountains of information and regulations, and trying to bring it to the Board's attention as quickly as possible. 4 And it often feels like, in an NRC proceeding, that you're 5 late when you get up in the morning. 6 And we did find a letter that wcs written September 15, 7 1997 from Mark Delligatti of the NRC staff to Gary 8 Tjersland, T-J-E-R-S-L-A-N-D, who is a director of licensing 9 and proouct de.velopment at Holtech International. And 10 Mr. Delligatti's letter has a number of requests for 11 additional information of Holtech. 12 And one of its requests are -- is " Explain how the 13 double containment requirements of 10 CFR 71.63(b) 14 are being implemented for transport of damaged spent fuel." () 15 That's on page two of the attachment to the letter. 16 The staff believes that the exemption from this , 17 regulation is only applicable to spent fuel rods with intact 18 clatting, i.e., with no defects greater then hairline crachs 19 or pinhole leaks. So it appears to us that as -- that where 20 the fuel is damaged, that this 71.63(b) does apply, and that 21 this is a matter of concern to the staff. 22 CHAIRMAN BOLLWERK: Is that it? 23 MS. CURRAN: That's it. 24 CHAIRMAN BOLLWERK: All right. 25 Ten minutes. We'll be back at five. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
209 1 MR. LATER: Your Honor, one small housekeeping 2 question. , 3 CHAIRMAN BOLLWERK: All right. 4 MR. LATER: This morning we had raised the question of 5 our ability to leave materials here overnight. 6 CHAIRMAN BOLLWERK: Right. j 7 MR. LATER: Do we have an answer?
- 8 CHAIRMAN BOLLWERK: I need to talk to Mr. Wettstein 9 about that. He's --
10 MR. WETTSTEIN: Yes. Yes, you can leave them i 11 overnight. The room will be locked. 32 CHAIRMAN BOLLWERK: All right. 13 MR. LATER: Thank you. 14 CHAIRMAN BOLLWERK: All right. Why don't we go off. () 15 Let's take a 10 minute break. Be back at 5:00. 16 (Break from 4:50 to 5:00 p.m.) - 17 CHAIRMAN BOLLWERK: The question I posed, I guess, 18 although the relationship is not correct necessarily, but 19 there's discussion in both this contention and contention J,
-20 Utah J, about hot cells. Is it close enough that we can-21 talk about this one as well at this point?
22 MS. CURRAN: Yes. 23 CHAIRMAN BOLLWERK: All right. Let's do it then. 24 MS. CURRAN: Okay. Once again, I'm not going to repeat 25 what was said in our pleadings, but there was an argument O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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I 205 l 1 made by PFS that, in the effort to respond to the great (} 2 volume of material that we were unable to get to, and that 3 is the issue of the ability to inspect for smearable 4 contamination. 5 As we stated in -- 6 CHAIRMAN BOLLWERK: Excuse me one second. I'm having a l 7 little trouble hearing over that. Okay? 8 Appreciate it. Thank you. 9 Go ahead. , 10 MS. CURRAN: As we stated in the contention, it was cur 11 concern that when, at the facility, at the nuclear power 12 plant, when the fuel is loaded into the cask, that, or the 13 canister, that the canister itself, the outside of the 14 canister will become contaminated in the spent fuel pool, () 15 that this is something that commonly happens. 16 And that then a canister is taken out of the pool, put 17 in a cark, shipped to the storage facility, and poses a risk 18 of contaminating the facility and the workers who work at 19 the facility. Not just through inhalation, but through 20 getting it on their clothing, their bodien, ingesting 12, 21 The applicant's proposed method of detecting smearable 22 contamination is to take samples from the lid of the 23 canister. But it isn't the lid of the canister that goes 24 into the spent fuel pool at the power plant when the 25 canister's loaded, it's the canister itself. So that that ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
206 , 1 is not going to provide a representative sample of the
- 2 contamination on the canister. And that is why there needs
[ 3 to be some method of-detecting whether the canister itself I 4 'has been contaminated. 5 Also, PFS claims to have analyzed the effects of 6 contamination and found that they really would not be i 7 significant at all, and it's a no, never mind. But there's 8 two aspects of that analysis that really undermine that 9 assurance. . 10 One is that they, according to the SAR, and this is at 11 page 8.1-17, they're looking at inhalation doses, not,.fer 12 instance,' doses that one might get on one's skin or ingest. 13 And they're also looking at doses at the fence post. And 14 we're talking about contamination that workers could () 15 16 actually get on themselves or ingest, which would be significantly more serious doses. 17 That really -- that is also related to the hot cell 18 .iusue, because, in our view, what you need is either a spent 19 fuel pool or a hot cell or some kind of-facility where you 20 -can actually get at the canister and inspect it and see what 21 kind of contamination is on the-canister. 22 With respect to the requirement for -- the general
~
23 -requirement for being able to inspect the condition of the 24 fuel and the cladding and the canicter, our conte? . ion 25- relies principally on the NRC regulations that relate to O ANN RILEY & AOSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 1
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j 207 1- inspection and maintenance of safety components of nuclear ( ) 2 power -- of spent fuel storage facilities, which we argue 3 include the canister and the cladding, which are there to 4 protect the safety and integrity of the storage facility. , 5 In addition, we also wish to add to that basis the > 6 requirement in 10 CFR 72.122 (1) , which is the requirement 7 for retrievability'of spent fuel, which we mentioned in our 8 reply. PFS has made an argument in its application that it 9 is able to retrieve the spent fuel by various means, none of 10 which it has actually committed to. But we have addressed 11 those means and demonstrated that none of them satisfy the 12 kind of safety standards that the NRC has for performing ' 13 this kind-of an exercise. 11 4 _ Oh, okay. I think both parties have referred to () 15 NUREB-1092, which is the Commission's 1984 environmental 16 assessment for licensing requirements for the independent 17 storage of_ spent fuel and high level radioactive waste. And 18 we have cited that-for'the proposition that the Commission 19 bases its determination regarding the-low impacts of spent 20 fuel storage on the assumption that licensees have the , 21 - . ability to retrieve spent fuel, and repair it and inspect 22 it. 23 But I'd also like to mantion that in Table 2.2.4-1, the 24 Commission sets forth postulat;ed accidents for surface cask 25 -storage of canistered fuel. And in the sequence of events , O ANN RILEY & ASSOCIATES, LTD, Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
208 1 for a moderhte accident, the Commission describes an 2 accident in which the canister fails in storage. 3 The canister containing a PWR assembly fails in storage 4 due to corrosion and one PWR rod has a pinhole leak. That's 5 the scenario. 6 The second step in the sequence of events is that gases 7 are released. 8 The third step is that the leaking canister is detected 9 and removed to.a canning facility, which apparently is some 10 kind of a hot cell or spent fuel pool. 11 And then four, the overpacked canister is returned to 12 the surface cask. 13 So this is just the type of thing that the Commission 14 envisioned in NUREG-1092 when a problem is discovered, when () 15 16 a canister fails during storage, that the licensee has the means to inspect that, to retrieve it, and to repair it. 17 MR. SILBERG: Excuse me. What was the document you 18 were just referring to? 19 MS. CURRAN: NUREG-1092. 20 MR. SILBERG: That's-1092? Okay. 21 MS. CURRAN: Table 2.2.4-1. Th".'s all I have for the 22 moment. 23 ' CHAIRMAN BOLLWERK: All right. 24 Mr. Silberg. 25 MR. SILBERG: First, a lot of what we've heard is new. AJRJ RILEY & ASSOCIATES, LTD. O Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
209 1 In fact, they just admitted it was new information, new 2 bases. Not particularly new in terms of its existence, but
)
3 new in terms of being put forward as the basis for this 4 contention. And therefore, we believe it's inappropriate. 5 That same discussion appears in their response on page 6 50 and 51, where there's a lengthy discussion of 72.122(1). 7 Again, new basis, not in their initial contention; no 8 showing. 9 With respe.ct to the ability to inspect, there simply is 10 no basis that's put forward for how this contamination is 11 going to occur. As we state in our application,.these will 12 be inspected at the reactor before they're put in the 13 shipping container. 14 There is no physical way that a canister could be () 15 preferentially contaminated at its bottom by spent fuel pool 16 water, since water in the spent fuel pool is reasonably 17 uniform water. And if it's going to be contaminated at the 18 bottom, it's going to be contaminated at the top. And 19 therefore, it will show up when one inspects it at the PFS 20 facility. So they have shown no basis for why the 21 inspection process that we have proposed is inadequate. 22 And we're also not talking about failed fuel, because 23 the failed fuel, as we show in our application, it's our 24 page 10.2-2, any failed fuel is going to be put in a 25 container before it's put in the canister, which ANN RILEY & ASSOCIATES, LTD. \ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
210 1 is before it's put in the transportation cask. So at all 2 times we have multiple barriers. ( 3 That's about all. 4 CHAIRMAN BOLLWERK: All right. 5 Staff? Mr. Quintana, I see you reading something. 6 Have anything you want to say on this one? 7 MR. QUINTANA: No , I'll pass, Your Honor. 8 CHAIRMAN BOLLWERK: All right. Thank you. 9 Mr. Turk or Ms. Marco, who's ever -- 10 MR. TURK: I think I'll take this one, Your Honor, if I 11 may. 12 The State did not allege, in its basis or in the 13 contention itself, that the applicant fails to satisfy 10 14 CFR 72.122 (1) . That appears for the first time in its () 15 reply to the staff's response to the contention. And the 16 State admits this on several place -- in several places in 17 their written reply, as well as today. The State asserts 18 they want to add this as a new basis. 19 There has been no showing as to why that could not have 20 been raised earlier. It is a late assertion. No good cause 21 has been shown. And the contention should not be allowed to 22 be amended late at this time. 23 With respect to what that regulation requires, as the 24 staff stated, and this -- I apologize. The staff will be 25 examining retrievability of systems. There is -- I'm sorry, O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
211 1- retrievability of fuel. There is nothing in the regulations 2 that requires a hot cell specifically. [) 3 The applicant, in its safety analysis report at page 4 8.2-42, indicates that dry cask handling systems could be 5 hrought to the site if necessary. That has not been 6 addressed by the State in its contention. 7 As I understand what the -- what that refers to, is 8- that refers to the mechanical systems for handling a fuel 9 canister. It would equate, when placed in an appropriate 10 building, would equate to a hot cell. That -- those 11- statements have not been addressed by the State in the 12 contention, 13 CHAIRMAN BOLLWERK:- Anything else, sir? _l 14 MR. TURK: No. I'm sorry, I was -- thought you were -- () 15 16 I was waiting for you and you were waiting for me. CHAIRMAN BOLLWERK: Okay. 17 Ms. Curran. 18 MS. CURRAN: Okay. With respect to 72.122(1), frankly, 19 we weren't aware of that requirement when we wrote the 20- _ contention, although we tried to review all the
-21 _ requirements. And it was pointed out to us by the NRC staff H22 in their response on this contention. So we looked at what 23' the NLC had cited and we saw that this is a relevant .
24 regulation. And so we have cited it. 25_ We-think that it's important, too, at this stage of the ANN RILEY & ASSOCIATES, LTD. Court Reporters-1250 I. Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 __ _ __ ; , _ _ ; . -_ _ _ --- =
t 212 1 1 proceeding, which is very early in the proceeding. This is [ 2 the prehearing conference. And it was before the prehearing 3 conference that we had sought to amend this to add this ; 4 additional citation, which is a very basic citation to what 5 is required here. 6 It is not prejudicing any other party, especially not 7 the staff, who is -- staff has decided that it needs to look 8 at this issue and hasn't even reviewed it yet. This is not 9 a case where some review has already taken place and now 10 we're claiming that a new analysis has to be done. This is 11 an initial issue that is being raised very early. 12 We did, in our reply to PFS, address the various . 13 arguments that PFS makes in Section 8 of the SAR as to how 14 it might achieve retrievability of casks. There are a () 15 number of strategies set forth in Section 8. 16 The only one that is actually committed to is the 17 strategy of returning the fuel to the originating facility 18 if a problem is found. And as we lay out in our contention, 19 that is not a viable solution years down the road after the 20 initial facility has closed. 21- It's also not a viable solution to take fuel that a 22 licensee knows is damaged and put it back on the railroad 23 tracks and send it hundreds or thousands of miles back to 24 where it started. It's required by the NRC, and assumed 25 here in NUREG-1092, that the problem is addressed before v O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
i 213 1 the fuel is shipped off-site. ( 2 With respect to whether smearable contamination is 3 properly detected by the applicant's method, we have 4 provided a basis in our contention for asserting that the 5 entire canister needs to be examined for contamination, and 6 we stand on that basis. 7- CHAIRMAN BOLLWERK: All right. l 8 DR. KLINE: Mr. Turk, I guess we haven't reviewed 9 72.122 either., But in your comments, you appeared to 10 concede that there was some form of retrievability that 11 might be required. 12 MR. TURK: Yes. 13 DR. KLINE: Is that right? 14 MR. TURK: Yes. () 15 16 DR. KLINE: MR. TURK: Okay. But our report -- 17 DR. KLINE: Without regard to the question of lateness,. 18 but just intrin'sically. 19 MR. TURK: Yes. But that doesn't necessarily mean that 20 they have to have a hot cell.
-21 DR. KLINE: Yeah.
22 MR. TUP": For instance. just now, in her reply to me,- 23 Ms. Curran argued that the applicant would not be allowed to 24 ship -- 25 DR. KLINE: Yeah. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250-I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
214 1 MR. TURK: -- damaged fuel off-site. That's not 2' correct. 3 DR. KLINE: Well, in the -- 4 MR. TURK: In fact, there are means for overpacks, 5 there are transportation overpacks in which if there is a 6- damaged canister or fuel, that could be loaded into some 7 other cask and shipped off-site. 8 DR. KLINE: Yeah. 9 MR. TURK: .There are exemptions to Part 71 that could 10 be obtained when necessary under emergency conditions in
- 11. order to ship --
12 DR. KLINE: Right. 13 MR. TURK: -- damaged fuel back to the reactor or to 14 some other facility. 15 DR. KLINE: How -- 16 MR. TURK: So those are options as well. 17 DR. KLINE: On page 53, the State responds to the 18 applicant's proposed rephrasing of contention J, and there 19 clarifies that the contention i not limited to the 20 assertion that a hot cell is needed. That what they're
-21 really seeking is a reasonable and safe means for i 22 inspecting, maintaining and retrieving fuel. Does that 23 alter your view at all? I mean I think they're not narrowly 24 pressing for a hot cell alone, but just as --
25 MR. TURK: It doesn't alter my view of_the_ contention, O ANN PTLEY & ASSOCIATF.S, LTD. (curt Reporters 1250 I Street, N,W., Suite 300 Washington, D.C. 20005 (202) 842-0034
215 1 because what the State had to do in the contention was point [} 2 to something in the application or the safety analysis 3 report that was deficient. 4 DR. KLIN3: Uh-huh. 5 MR. TURK: And they haven't done that. Instead, what 6 they've said is, well, you haven't shown us that you'll have 7 a hot cell or something comparable. And that is not -- 8 DR. KLINE: Well, here's -- 9 MR. TURK: ,That is not a requirement. 10 DR. KLINE: Yeah. 11 MS. CURRAN: I don't -- 12 DR. KLINE: As I understood, the basic assertion that 13 some form of retrievability is needed is actually 14 consistent with your own view, isn't it? () 15 16 MR. TURK: Yes. That there will be some means of retrievability, yes. 17 DR. KLINE: Some means. And they themselves are saying 18 yeah, all we're really preesing for is some means, not 19 narrowly focused on a hot cell alone. 20 MR. TURK: But if you look at the contention, you'll 21 see that while it cites many articles extraneous to the 22 application, it may cite NUREGs, it may cite other 23 opinions by other persons. They don't goint to the -- to a 24 deficiency in the application. 25 DR. KLINE: I see. ANN RILEY & ASSOCIATES, LTD. Os Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
216 ! 1 MR. TURK: And that they had to do in order to present 2 a supportable contention.
)
3 DR. KLINE: Okay. All right. 4 MS. CURRAN: May I respond to that? 5 MR. TURK: The only reference that I can see is on page 6 63, which was a very terse statement quoting a statement in 7 the SAR which says that "All casks are expected to be 8 properly packed, and any defective or contaminated cask will 9 be returned to,the originating shipper." And they go on 10 from there to say, well, you need more than that, but they 11 don't apply -- they' don't address other aspects of the 12 application in which handling -- not handling, but the 13 ability to deal with damaged fuel casks, canisters or casks 14 is addressed. () 15 16 DR. KLINE: MS. CURRAN: All right. Well -- 17 CHAIRMAN BOLLWERK: Go ahead. 18 MS. CURRAN: Can I respond? As far as we're concerned, 19 by identifying a portion of or a section or two of the 20' regulations which the applicant has not complied with and 21 has not demonstrated that it meets that requirement, that is 22 the expression of a valid contention and material dispute 23 with the applicant. 24 It is also incorrect to state that we have not 25 addressed the proposed measures that PFS sets out. They are
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217 1 addressed one by one in our reply, in response to the 2 argument that was made by, I think it was the NRC staff, 3 that this retrievability issue is addressed in the SAR. So 4 we looked at the SAR and we addresed it. ! 5 And, you know, we had not seen that particular section. 6 But when it was pointed out to us, we looked at it and it 7 did not resolve our concerns. Our concerns remain valid. ! 8 And as a matter of fact, what PFS, the only thing that 9 is added to in Section 8 of the SAR is to propose some 10 possible ways of dealing with the issue. The only really 11 concrete proposal that PFS has is to put it back in the cask 12 and ship it back to the originating facility, which, in our 13 contention, we demonstrate is adequate. ; 14 And so all the other things that PFS suggests it might () 15 16 consider are really in, a sense, irrelevant to this license application. There's no commitment to implement those f 17 things. Why should we need to have a conversation about 18 what PPS speculates it might do? We're here to address what 19 PFS proposes to do.- 20 CHAIRMAN BOLLWERK: All right. Anything else on the 21 contention? 22 Sir, you're jumping into the void here. Go ahead. 23- MR. KENNEDY: First of all, the retrievability 24 contention does not require that fuel be removed from the 25 canister. If it's retrieved from the storage cask, it is O ANN RILEY & ASSOCIATES, LTD. Courc Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
l 218 , 1 retrieved from the facility, it can be shipped off-site in a () 2 3 transportation cask, which is perfectly acceptable under NRC regulations. 4 In terms of the NUREG, the NUREG is not a regulation. 5 The Commission, subsequent to the NUREG, certified spent 6 fuel storage cask systems with double seal welded canisters, 7 and it did not require that the canisters be inspected. It 8 required that the casks be inspected. The Commission has 9 thereby, I think, set to rest the argument that somehow 10 NUREG-1092 is a requirement that must be followed in this 11 case. We have met the regulations. 12 CHAIRMAN BOLLWERK: Okay. That it? 13 I think he's -- I'm hearing the same thing that I think 14 I heard beftre. Do you have a reply to whatever -- 15 ids . CURRAN: We're not saying that NUREG-1092 16 establishes a requirement. It {Jtablishes the assumption on 17 which the NRC bases its conclusion that spent fuel storage 1 18 is safe. And there's nothing in the regulations that 19 somehow exempts this facility from that particular 20 assumption. 21 I just have one other point that I want to make. 22 CHAIRMAN BOLLWERK: Make it quick. I will give you one 23 minute. 24 MS. CURRAN: And that is that the regulations that deal 25 with inspection of safety components don't say -- they're O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
219 1 not restricted to inspection of the cask. They deal with ! () 2 3 inspection of safety components. defiend as a sfaety component in the regulations. And the cladding is l e 4 CHAIRMAN BOLLWERK: All right. 5 Okay. Ms. Belille, we haven't heard anything from you n .
- 6 today. Do you want to say something, or --
7 MS. BELILLE: Yes. Yes, I just have a few comments i 8 that I would like to meke. 9 CHAIRMAN B.0LLWERK: Okay. 10 MS. BELILLE: First of all, I'd like -- 11 CHAIRMAN BOLLWERKi - This relates to your_ contention A? 12 MS. BELILLE. Yes, it does. It's one section of our 13 contention A. 14- First of all, I would like to say that I have () 15 16 Mr. Robert Halsted here. He is an expert that has helped with the drafting of our contentions. t 17 I have just a few comments to maxe. There-are two 18 kinds of accidents which could require a hot cell. There's 19 transportation accidents and there's storage accidents. 20 Each type of accident identifies subsets which identify , 21 . visible damage to the exterior of the cask or whether the 22 containment may not be sufficient to determine whether the 23 spent fuel has been damaged. 24 Regarding incoming damaged casks in transport, which the 25 regulations appear to prohibit receipt of such casks at the O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 - Washington, D.C. 20005 (202) 842-0034
220 I facility, we are not convinced that receipt of a damaged l( ) 2 cask would be precluded in all cases. An example of that 3 would be severe accidents or terroristic incidents causing 4 breach of the cask in transit between Rowley Junction and 5 tho storage site. 6 Secondly, we are not convinced about the applicant's 7 assertions in the SAR that a low drop accident during 1 8 canister -- during a canister drop accident is not a 9 credible event.. With our without a loss of electrical 10 power, we believe that such an event could occur as a result 11 of operator error or insider sabotage. 12 The lack of detail in SAR 5.1.4.2 and SAR 8.1.1 13 prevents us from determining whether the lift height 14 involved would be sufficient to breach a canister or damage () 15 the fuel inside absent a compounding human error or insider 16 sabotage. Therefore, we reject the assurances' offered in 17 8.2.7.4 of the recovery plan. 18 However, a low drop accident is sufficiently credible 19 in conjunction with insider sabotage or human error that we 20 conclude that a prudent facility design must include a fully i 21 equipped hot cell, both for diagnostic purposes and any 22 necessary repairs or repackaging. 23 ' CHAIRMAN BOLLWERK: All right. Is there anything else 24 you want to say about that contention? 25 MS. BELILLE: No, that would be all. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
1 221 2 CHAIRMAN BOLLWERK: All right. 2 MR. SILBERG: I guess my only comnment would be is that 3 sounds lik all new information that wasn't in the initial 4 contention and isn't responding to anything in our response.
, 5 To me, this is new basis and is inappropriate.
6 With respect to the discussion autween transportation < 7 accidents and storage accidents, we dealt with that in our 8 application by saying that the casks, incoming canisters, 9 incoming don't, meet our specifications, they're not accepted 10 and they're sent back. It's not a question of needing a hot 11 cell at the facility to process it. They return to the 12 reactor from which they originated. 13 The low drop accident, as far as I knew, new stuff. 14 And I'm not prepared to discuss that now because I don't () 15 16 even know what it's relating to. CHAIRMAN BOLLWERK: All right, sir. 17 Mr. Turk, anything? 18 MS. MARCO: We had the same commen that this was all 19 new information for us. And to the extent it's not, we're 4 20 just going to stand on our pleading. 21 CHAIRMAN BOLLWERK: All right. You want to say 22 something, Mr. Quintana? 23 MR. QUINTANA: In one paragraph or less. These 24 scenarios that are being developed, we would object to these 25 contentions, because these scenarios that are being ANN RILEY & ASSOCIATES, LTD. O Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
222 1 developed are so far removed and so speculative, and there 2 is, in terms of the literature that's out th , in terms of 3 actual events that have occurred at nucler; power plants . 4 worldwide, it's stretching the limits of reality to find the l 5 scenarios that have been developed in these contentions 6 here, and we would object. 7 CRAIRMAN BOLLWERK: All right. Ms. Belille. 8 MS. BELILLE: Your Honor, we would want to respond to 9 that. We are aware of a document that exists which we have 10 not been able to get at this point regarding an insider . 11 sabotage incident that would be relevant to this analysis. 12 We would ask that we be allowed to get this at a later date. 13- We also would like to reiterate that our contention 14 talks broadly about risk assessment and those kinds of () 15 16 accidents that might happen in our basis regarding the comprehensive risk assessment. 17- The SAR would be deficient because it did not_ broadly 18 address the range of accidents, and it only dealt with a few 19 specific examples. 20 CHAIRMAN BOLLWERK: All right. Anything else you want 21 to say? 22 MR. SILBERG: We've covered it. 23 CHAIRMAN BOLLWERK: All right. We have about a half an 24 hour here. I'm going to set us -- this may be a daunting 25 task. The next one is Utah E which is financial ANN RILW & ASSOCIATES, LTD. O Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
223 1 qualification. You also have Castle Rock 7 and Confederated
/~N 2 Tribes F. ' We'll leave when we finish those. So let's move 3 forward.
4 MS. CRANCELLOR: Shall I go? 5 CHAIRMAN BOLLWERK: Yes, please. 6 MS. CRANCELLOR: We won't reiterate what is in our 7 conte.ntions about this limited liability company without any 8 track record or assets. However, what we would like to 9 mention is that PSP takes vague and generalized information 10 in its application for cost estimates and other deficiencies 11 that we point out and ties these deficiencies in to a 12 defense against this contention. 13 PFS does not counter our challenge to citations to the 14 license application. Over and over again in its 15-page (x ( ) 15 response, it says that we have provided no factual basis for 16 ( our claim, that the information provided does not allow a 17 reasonable evaluation of financial qualifications. 18 There's only two references to the license application 19 in PFS' answer to our contention. 20 In discussing service agreements and debt financing, 21 PFS refers to the application. Cn page 80, 81 of PFS' 22 answer, it says: 23 "No construction will proceed until service 24 agreement committing for a significant quantity of 25 spent fuel have been signed." l ("N 3 ANN RILEY & ASSOCIATES, LTD. (_/ Court Reporters ) 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 11
223 1 qualification. You also a. ave Castle Rock 7 and Confederated 2 Tribes F. We'll leave when we finish those. So let's move 3 forward. 4 MS. CHANCELLOR: Shall I go? 5 CRAIRMAN BOLLWERK: Yes, please. 6 MS. CHANCELLOR: We won't reiterate what is in our 7' contentions about this limited liability company without any 8 track record or assets. However, what we would like to 9 mention is that PSF takes vague and generalized information - 10 in its application for cost estimates and other deficiencies 11~ that we point out and ties these deficiencies in to a 12 defense against this contention. 13 PFS does not counter our challenge to citations to the 14 license application. Over and over again in its 15-page () 15 16 response, it says that we have provided no factual basis for our claim, that the information provided does not allow a 17 reasonable evaluation of financial qualifications. 18 There's only two references to the license application 19 in PFS' answer to our contention. 20 In discussing service agreements and debt financing, 21 PFS refers to the application. On page 80, 81 of PFS' 22 answer, it says: 23 "No construction will proceed until service 24 agreement committing for a significant quantity of 25 spent fuel have been signed." ANN RILEY & ASSOCIATES, LTD. s Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
k 224 1 And on 82, PFS says that it retains the opt' ion to fund. 2 .certain construction costs or debt financing, and, if [
- 3 -necessary, customers will be required to provide additional u
4 financial assurances.
-5: We believe that the LES case that was recently decided 6' on appeal, which we agree with staff is guidance, that that 7 is something that this Board may wish to follow, and that 8 these cammitments that PFS-has made should be made as 9 license conditions.
- 10. In the LES case the license conditions stated that:
11 "There must be an unequivocal ccar.itment not to 12 proceed with construction until funding is fully 13 committed. The project is not to proceed unless it has long-term contracts sufficient to cover () 216 15 - both construction and opera';ng costs." Slip opinion at 2526. 17 In the.PFS application LA page 1-5 it , .ys: 18- "No construction will proceed unless service 19- agreements committing for a-significant quantity 20: of spent fuel have been signed." 21 _W e may disagree what that significant quantity is, but we 22 believe that this should be a license condition. 23- Also, on LA page 1-6: 24 "As with direct financing from customers, no
.25- construction will-take place without the O ANN RILEY & ASSOCIATES, LTD.
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225 1 commitment from service agreements for a 2 significant quantity of spent fuel." 3 Unless PFS L.L.C. members and non-members have committed to 4 significant quantities of storage, construction of the PFSS 5 will not begin. Again, we believe that these should be maue 6 license conditions. 7 The staff does not oppose this contention, and we 8 believe it should be admitted. 9 CHAIRMAN BOLLWERK: All right. Let me also amend what I 10 just said. I' believe that also OGDF has to do with 11 financial qualifications as well. You might take a look at 12 that and we'll talk about it in a second. 13 CHAIRMAN BOLLWERK: All right. Mr, Silberg. 14 MR. SILBERG: First of all, LES is guidance. I know Ms.
/'N 15
(
} Curran lost the case below, so she's stuck-with the law the 16 Commission made. But the commitments that were imposed in 17 that case were imposed after there was a contention. You 18 can't bootstrap your way into a contention by asking for a 19 license commitment. So in that case, commitments that were 20 imposed on LES were, in fact, volunteered by LES. That's 21- certainly premature at the very least in this case.
22 The rule, I think, is fairly clear in LES for Part 70 23 licensing and Part 70 financing qualifications. Part 72, 24 which is.the provision that we're deal ng with here, is even 25 more remote from Part 50 and Appendix C to Pr't 50. And [~T ANN RILEY & ASSOCIATES, LTD.
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226 1_ therefore,_any guidance that the State seeks to divine from
)
2 Part 50, Appendix C for a Part 72 license is clearly 3 inapplicable.
-4 The State also says that it.must have a reasonably 5- detailed cost estimate. There is no requirement. This is 6 not an NBA case study. One is to provide the information 7 that is necessary to show how much money need be raised.
8 And then the question is, does the State have some basis
- 9- for challenging that overall number and does the State 10- have some basis for challenging our ability to raise that 11 number?- If we provided one level of breakdown, they would 12 undoubtedly ask for three more levels of breakdown. There's' 13 simply no requirement to provide the detailed kind of cost
( 14 estimate that they've asked for. () 15, They also say that we should be penalized because we ] 16: failed to supply _such basic information as the 17 identification:of the participants in the project. I think 18 the State knows well who they are. If they don't, for the l19' record, ~ it 's Nortliern- States Power, Genoan Fuel- Tech, 20 American Electric. Power, Con Edison, Illinois Power, GPU an6 21- Southern Nuclear. So that basis to your contention I think 22 disappears. 23- 'With respect to your citation on the Wisconsin Electric 24 case on the top of 36, where the reasonable specificity was ; 25 required, an additional -- a contention was adopted, was
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227 1 admitted on those grounds. It's interesting to note as that 2 decision states at page 856, that the applicant's total ( 3 filings on which contentionc had to be based were six pages 4 as oppe, sed to the thousands of pages which you have in this 3 case. 6 And to the extent that you say it's self-evident that 7 reasonable cost estimates, allocation of financial 8 responsibility are indispensable, that is nothing more than 9 a circular argument. There is no regulatory basis cited for 10 that. 11 With respect to the challenge, the claim that PFS is 12 applying to build a facility that is unique, and the only 13 other contemplated centralized interim spent fuel storage 14 facility is DOE's unsuccessful MRS, that clearly ignores the () 15 existing license for the MRS facility. 16 I'll rest on what we've laid out in our response for 17 the rest of our arguments. 18 CRAIRMAN BOLLWERK: All right. Mr. Quintana, anything? 19 MR. QUINTANA: Very briefly, our objection to this 20 coatention, as well. This industry group has only $50 21 billion in combined gross revenues, and certainly you have 22 the combined wherewithal to adequately fund a limited 23 liability company to engage in this venture. Once this 24 project gets through the licensing procedure, it'e obvious 25 that they could bond the project or use the whole host of G (m,/ ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 l v> ' )
228 1 mechanisms to properly fund it.
')
2 If the Skull Valley Goshutes believed that they didn't 3 have the adequate financial resources to pursue this 4 project, we wouldn't have entered into this lease agreement 5 with them. A due diligence check was made on these 6 companies, and it would obviously be fraud if these 7 companies were trying to put together a deal and didn't have 8 the adequate financing to do it. 9 CHAIRMAN DOLLWERK: All right, sir. i Ms. Marco and Mr. 10 Turk. l 11 MS. MARCO: We didn't oppose this. 12 CHAIRMAN BOLLWERK: You did not oppose any part of this, 13 I take it. 14 All right. Just one question relative to the LES. I'm () 15
~
sort of -- the Commission there said that they were not 16 going to apply Part 50 except as they wished to. Does that 17 tell us what we need to do here? 18 MR. SILBERG: I think that says that the Commission, if 19 3.t chooses to. 20 CHAIRMAN BULLWERK: That's correct, but where does that 21 leave us? Are we supposed to ask the Commission what they 22 want to do in this case? 23 MR. SILBERG: I think the Commission has the obligation 24 to speak if it believes that in the circumstances additional 25 requirements are necessary. I think if you compare the ANN RILEY & ASSOCIATES, LTD. Q'\_/ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
229 1 situation in LES, where you have limited liability company 2 that was relying on project financing, a very similar 3 situation to the one we have here, that the Commission in 4 that case deemed that the requirements of Appendix C to [3 5 Part 50 were not required. And I think any comparison 6 between those two sets of circumstances would be enough to 7 demonstrate that reliance on Appendix C was not appropriate 8 in this case. 9 CHAIRMAN BpLLWERK: Well, you have to say that the 10 Part 72 financial qualifications regulations are somewhat 11 more specific than the Part 70 are, which only talks about 12 reasonable assurance, and that's obviously a somewhat broad 13 standing. Here we have something more to look at. 14 MR. SILBERG: That's correct. 15 CHAIRMAN BOLLWERK: All right. 16 DR. LAM: I'd also like to hear from the staff of the 17 staff's rationale of not opposing this contention. 18 Ms. Marco? Mr. Turk? 19 MR. TURK: It really comes down to a question of 20 whether we feel the contention satisfies the 2.714 21 requirements for stating the contention in a clear and l 22 concise manner and providing a basis that satisfied 23 2. 714 (b) (2 ) . 24 DR. LAM: So we're addressing merits without the burden 25 of the rule. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
230 1 MR. TURK: Yes. 2 CHAIRMAN BOLLWERK: All right. Anything the State of 3 Utah wishes to say about what you've heard? 4 MS. CHANCELLOR: Yes, Your Honor. In the LES case it (($ 5 says: 6 "We by no means suggest that the Commission is 7 precluded fron, applying Part 50 standards to a 8 Part 70 applicant if particular circumstances 9 warrant this approach." 10 And what we suggested was that circumstances in this 11 case warrant this approach. 12 We're still confused as to who the participants are in 13 this venture. I don't believe Mr. Silberg mentioned 14 Southern California Edison. But in any event, the name of a l 15 company is insufficient to establish what the relationship 16 is between the members of the company, how the service 17 agreements will work, whether there will be adequate 18 financing. 19 And in terms of the thousands of pages of information 20 that was submitted, there is very, very little on actual 21 construction costs. There are a few pages scattered here or 22 there. And I don't think it is unreasonable to require a 23 breakdown. 24 This is an example: total construction costs of $100 25 million, including site preparation, construction and access O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.N., Suite 300 Washington, D.C. 20005 (202) 842-0034 _ _ . . . J
. . _ . - - - .._... ~ . . _ . - . - . - - - - - - . . -. - -.- - - - _ . _ _ ~ .
231 1 road, administration buildings, visitor center, security and () 2 3 physics building, operations ~and maintenance building, canister transfer building and storage, procurement of: l 4 transport and -- transfer and transport equipment, the f
- 5 transportation corridor construction. All these things are 6 lumped under the heading of "$100 million." There is 7 absolutely no rational basis for that $100 million estimate.
8 There's no way we can adequately evaluate.these construction 9 activities based on this $100 million cost,.and nowhere 10 else is this broken down thac we have been able to find in . 11 'the license application.
-12 And PFS has not responded to any citations to the 13 application to show where these construction costs are 14 further broken down into some sort of reasonable numbers
() 15 -that we can evaluate. 16 MR. SILBERG: If I could just - =I did omit Southern 17 Cal. Edison,-but obviously the fact that Ms. Chancellor knew 18- the name of it indicates-that this was not a real issue. 19 With respect to -- 20 CHAIRMAN BOLLWERK: Anybody else you need to mention 21 here at this point? Sounds like everybody -- well, y;u're 22 set at least at this point. 23 MR. SILBERG: I just wanted to confirm that they were a 24 party. 25 CHAIRMAN BOLLWERK: All right. Anything else? ANN RILEY & ASSOCIATES, LTD. O. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
232 1 MR. SILBERG: That's all. 2 CHAIRMAN BOLLWERK: All right. Why don't we look -- (} 3 MS. CRANCELLOR: I just have one -- 4 CHAIRMAN BOLLWERK: I'm sorry. 5 MS. CHANCELLOR: I just want to emphasize that this is 6 a newly established entity with no track record. It is very 7 similar to the LES case. And that we do need adequate 8 information, and it's demonstrative of the shortcomings in 9 the application, Mr. Silberg's omission of Southern 1G California Edison. 11 CHAIRMAN BOLLWERK: Castle Rock, do you want to say 12 anything in terms of differences in your case? You have a 13 financial qualifications contention as well. ' 14 MR. LATER: We do. And there are some differences. I () 15 will not repeat areas where I think there are similarities. 16 I will deal very quickly with those areas where I think we 17 are somewhat different. 18 We have focused in part upon the corporate 19 organization, Private Fuel Storage, as a source of concern 20 and a source particularly of financial responsibility. Its 21 organization is a limited liability company, emphasis on 22 limited liability. 23 'The response we have received to that from Private 24 Fuels is essentially, " People who live in glass houses 25 shouldn't throw rocks. Castle Rock is a limited liability s ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
. __o
233 1 company. How can you complain? We're just like you guys." 2 I think the comparison is useful. I think it highlights 3 some of th sources of our concerns. The capacity -- 4 CHAIRMAN BOLLWERK: I bet I know where this is going, 5 but 90 ahead. 6 MR. LATER: Well, At was my hope you'd know where it 7 might be going. 8 Castle Rock's capacity to cause mischief is severely 9 limited. Its necessity for licensing and providing 10 public assurances is likewise similarly limited. It faces 11 no such requirements as the NRC regulations for financial . p 12 responsibility placed upon it. 13 And finally, for whatever mischief it causes, it has a 14 number of assets, as this body has seen yesterday, that are h 15 available to satisfy in answer for whatever mischief it 16 causes, none of v' Jan be said about Private Fuel . 17 Storage, wb4 a brand new entity. It does not place its 18 member assets at risk. The $50 billion Mr. Quintana 19 references is specifically shielded by the quorum of 20 organization of the entity that these utilities have chosen 21 to conduct this activity through. 22 We have very little information, as the State has 23 noted, on the financial sources and sets of guarantees that 24 are there to assure funding. And the fact of the matter is, 25 if Private Fuel Storage fails, Private Fuel Storage causes G ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 1
234 1 mischief or jajury to others, there are no assets available
i 2 to satisfy the injury or mischief that it causes. All of (O
3 that, unlike my clients. 4 And those are questions properly raised and to which we 5 deserve answers. 6 The second basis, one that's been touched on in part by 7 the State, is the potential for snortfalls. We believe that 8 that is emphasized and accentuated by the extreme degree of 9 uncertainty of,the life span of this facility. As we 10 understand it, the cost of decommiss.oning, the potentials 11 for shortfall and the potentials for unexpected expenses are 12 all things that grow in magnitude and likelihood as the life 13 span of the facility increases. 14 And we've had very little that's been presented to us (% () 15 by Private Fuels as to what is the realistic life span of 16 this facility. We're entitled to answers as to the 17 financial stream that can guarantee the viability of this 18 facility through its life span, whatever that may be. 19 The same with the no: routine expenses and the 20 potential liabilities. We've presented, we believe, 21 sufficient evidence as to the range of potentials that are 22 there, potentials for accidents that we are entitled to 23 know, whether the financial arrangements that assure that . 24 non-routine expenses can be met by this entity. 25 Now, as to all of those contentions, the NRC staff, as O. ANN RILEY & ASSOCIATES, LTD. (- / Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
'235 1 we' understand'it, have not objected. As to one portion of
() 2 3 our contention, the NRC-staff has objected, and that is that we have requested that we be provided financial information 4 regarding the relationship between the Goshute Tribe and 5 PFS, and the position of the Goshute Tribe to stand as a
--6' responsible party in this instance. And we believe that 7- that's appropriate information and warranted under these 8 circumstances, because of the limited-liability nature of 9 . Private Fuel S.torage and if Private Fuel Storage ceases to 1 J
10 be viable, ceases to be in existence, and we are left with 11 simply the landlord of that facility as the party 12 responsible, what is its willingness and ability to stand 713. responsible for that facility in the absence of its limited l 14 liability leesee. And that's why we believe that A{j ( 15 information is appropriate in these proceedingt, as well. 16 CHAIRMAN BOLLWERK: Anything you want to say about 17 that, Mr. Silberg? 18 MR, SILBERG: 'Yes. First of all, the question is not 19 whether we are or not a limited liability corporation or 20 some other form. The question is whether we meet the 21 regulatory standards, and we believe we have. The LES 22 decision clearly says that project finance is appropraate. 23 While there may not be the kind of assets that Castle Rock 24 - today has, if this facility goes forward,~the mechanisms-25 which we've laid out in our application, those assets will ANN RILEY & ASSOCIATES, LTD. O. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
236 1 be there. We have specifically laid out how much in the way ( ) 2 of decommissioning costs we will set up and the mechanism 3 for collecting those. 4 The extreme degree of uncertainty, and the life span, 5 and the requirement for a showing of a stream of revenues is 6 all information that the Commission has not required. It 7 was not required .in the LES case for a similar project. 6 In terms of the position of the tribe as a responsible 9 party, there's.no mechanism for the tribe to be left, as < 10 Castle Rock suggests, holding the bag. The NRC, as we 11 mentioned before, does not allow licensees to walk away from 12 their facilities.
- 13 And the dollar amounts that we have laid out in our 14 application and the mechanism for collecting that money in
() 15 advance and setting aside decommissioning funds in advance 16 provides reasonable assurance that PFS will be the 17 responsible operator of that facility. 18 And I would remind that we are not asking for absolute 19 financial assurance. The statute and the regulations 20 require reasonable financial assurance. 21 CHAIRMAN BOLLWERK: Anything else? Mr. Quintana, 22 anything you want to add? 23 MR. QUINTANA: The research that my office did indicates 24 it costs about $6 million a year to operate a wet spent 25 fuel pool and about $2 million a year to operate an off- , 1 FT ANN RILEY & ASSOCIATES, LTD. k/s- Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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-237 1 site dry-cask storage facility. The industry's own 2 estimates are that'they'll save about $8 billion by having 3 one centralized storage facility / nationally. If they didn't 4 have the money to do the deal, it probably wouldn't be in 5- anyone's best interest to go forward. I'm here to make sure 6 that everybody remains honest in this whole venture and that 7 I can watch all of the players.
8 If our utility company is going to walk away from the , -9 spent fuel at .the end of the day, over my dead body. 10 CHAIRMAN'BOLLWERK: Ms. Marco. 11 MS, MARCO: We don't oppose this except for the 2 12 reservation,. the Skull Valley Band lease agre .nt,
. and that 13 information is set forth in our brief.
14 CHAIRMAN BOLLWERK: All right. Any reply on anything-15- you've heard? 16 MR. LATER: A single-small one. As Mr. Silberg i 17 indicated, the NRC obviously does not take lightly to its
-18 licensees walking away-from facilities. In the case of 19 utilities, it has a great deal of leverage to prevent them 20 from walking away from facilitieb. -Private Fuel Storage is 21 maru.f estly non-utility.- It is not its members. It is a 22 separate entity, and it has very little stake to continue 23 its existence when times get tough and very little to-keep i 24 it from banishing whatever the NRC thinks about it.
25 I think those points make it particularly important we
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238 1- -receive-appropriate' financial information and that this , 2 - panel receive appropriate financial assurances, which we 3 don't have yet. 4 CHAIRMAN BOLLWERK: Mr. Kennedy, do you have a similar i 5 contention?.-Address it in-terms of the similarities, 6 differences, or anything else you'd like to say about it. 7 MR. SILBERG: Will you identify -- 8 CHAIRMAN BOLLWERK: I'm sorry. It's Confederated 9 Tribes F, I believe; is that correct? 10 MR. KENNEDY: Correct. 1 [ 11 MR. TURK: Your !ionor, may we make reference to one = 12 brief matter in response to that latest comment by Castle 13 Rock? 14 CHAIRMAN BOLLWERK: All right. () 15 16 MR. TURK: And-that is how I refer you to 10 CFR 72.54 which deals with the expiration and termination of E 17 licenses. And in there you will see that under subsection, 18 B, that the Commission has the authority to order a licensee 19 to take some action, regardless of the fact that there's an 20 expiration date. And the same with respect to subsection.C, 21 that indicates that the license continues in effect even 22 beyond the expiration date if necessary to permit certain . 23 acti'ons to be taken. 24 CHAIRMAN BOLLWERK: Going to read the regulation?
.25 MR. LATER: No. Well, it's nice that NRC can order all
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239 1 of;those things, but if the licensee has ceased to exist, 2' gone into bankruptcy or otherwise fled town, I'm not sure it 3 makes a lot of difference. And that's the concern of the 4 nature of the entity. 5 MR. SILBERG: Criminal violations and civil penalties 6 still exist. 7 CHAIRMAN BOLLWERK: Mr. Kennedy. 8 MR. KENNEDY: Thank you. We would just submit-what 9 we've already filed in writing. I would just add a couple 10- of comments. 11 First of all, I think what's been said by the State and l 12 Castle Rock also applies to what we've contended here. I'm 13 a little concerned with'Mr. Quintana's personal 14 representations on at least two occasions relating to these () lLS matters, especially in light of what was said yesterday
-16 during our field visit; namely, that they -- the Skull .
17 Valley Dand has experienced serious financial problems on 18 other projects, despite Mr. Quintana's, quote, due 19- diligence, et cetera. 20 It seems to me that maybe Skull Valley has been given 21 information to satisfy what they think is necessary for due 22 diligence, but that information has been refused in large 23 part to the intervenors or-the petitioners for intervention 24 here. And that's what we're seeking to get. We're trying 25 to do our due diligence through this process, and so far ANN RILEY & ASSOCIATES, LTD. Os Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
240 1 we've been refused-theLinformation that we sought.
/ 2 That's all I have to say..
3 CHAIRMAN BOLLWERK: All right. Any comments you have 4 about that? 5 MR. SILBERG: Just one comment, that the contention is 6 not an appropriate opportunity for discovery. One has to 7- meet the standards for admissibility before one gets a chance to do discovery and due diligence. We don't think
-9 this contention meets the standard, regardless of whether 10 the other contentions do. This contention should be looked 11 at on its own, as should all contentions, and it should be 12- rejected.
! 13' CHAIRMAN BOLLWERK: Anything else, Mr. Quintana? No? 14 MR. QUINTANA: No. 15 CHAIRMAN BOLLWERK: Mr. Turk or Ms. Marco? 16 MS. MARCO: We didn't oppose. 17 CHAIRMAN-BOLLWERK: Yes, that's the last one I'm going 18 to come to, OGD number -- 19 MR. KENNEDY: May I respond to that? 20 CHAIRMAN BOLLWERK: Oh, absolutely. I'm sorry, sir. 21 Go ahead.
.22 MR. KENNEDY: I'd just say, in answer to Mr. Silberg,.
23 that we would have expected not to have to deal with this 24 through discovery had it been included in the application, 25 basic information as we identified. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
241 1 CHAIRMAN BOLLWERK: OGDM. 2 MS. BELILLE: We just have one short statement.
) First 3 of all, we made the argument that the license poses an undue 4 risk on public health and safety because it fails to make 5 clear provisions for a finding of estimated construction 6 costs, operating costs and decommissioning costs.
7 The one thing that we are concerned about, and as B representing members -f P.he tribe, they are very concerned 9 about the lack.of information as far as the financial 10 information goes. And that would be all that we will say at 11 this time. 12 CRAIRMAN BOLLWERK: Ali right. 13 MR. SILBERG: It doesn't meet the standard. Should be 14 rejected. [J s_ 15 CHAIRMAN BOLLWERK: Anything to say? 16 MR. QUINTANA: I think enough has been said. 17 MS. MARCO: The staff agrees. 18 CRAIRMAN BOLLWERK: Anything further you want to say? 19 All right. I think we'll adjourn for the day. We'll start 20 tomorrow -- hold on one second. 21 MR. SILBERG: Could you give us a run down of the order 22 that you would like to take specifically tomorrow so we can 23 prepare? 24 CRAIRMAN BOLLWERK: Well, again I'm not trying to force 25 anybody to do anything, but I haven't heard any objections ANN RILEY & ASSOCIATES, LTD. x_/ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
242 1 at this point. I'm still trying to move down the State's 2 intentions in order, more or less. I see, at least as we 3 start, dealing with -- let's see, the next issue would be 4 the State's letter F, which is inadequate training and 5 certification. And it looks to me like there's 6 also a GDL which relates to that. We have a quality 7 assurance contention. Just one second here. I don't think 8 there's 9 any that's qui,te like that one, but don't hold me to that. 10 I discovered something. Inadequate thermal design, again, I 11 don't see anything on that one as well. 12 I guess also it's Part I. That looks to me like 13 that's one that's by itself. 14 I think we'll go down this far. In terms of inadequate () 15 16 consideration of credible accidents, which is K, it looks to me like Castle Rcck 6, OGDM and Confederated Tribes B all 17 contend have some relationship to each other or talk 18 about the same sort of issues. 19 MR. SILBERG: I'm sorry. Castle Rock 6? 20 CHAIRMAN BOLLWERK: Castle Rock 6, OGDM and 21- Confederated Tribe B. 22 DR. LAM: For planning purposes, I'd like to remind the 23 parties of my estimation. I was looking at the scheduling 24 with Judge Bollwerk and Judge Kline. I see that we have 25 some 60 contentions remaining. And with the ccheduled time, A ANN RILEY & ASSOCIATES, LTD.
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243 1 that means that this proceeding, we'll probably need to see
)
2 a resolution of contention at the rate of four per hour, 15 3 minutes per contention. It means about two minutes per 4 party. 5 CHAIRMAN BOLLWERK: No objection. Hopefully, there is 6 some er nomy to scale we can give you as we go along. I 7 don't t .nk we did badly today. I hope we can do better 8 tomorrow. Put it that way. 9 MR. TURK: ,Can we discuss the schedule for the evening 10 session? 11 CHAIRMAN BOLLWERK: Yas. Why don't we go off the 12 record and do that. I'll just talk with each counsel. Is 13 there anything anyone wants to bring up before we adjourn 14 for the afternoon? [ \ 15 MR. SILBERG: Do you have any other pairings that V -- 16 CHAIRMAN BOLLWERK: Well, I have some here, but I 17 haven't gone down that far. Let me do this. Let me tonight 18 look at and actually mark them a little bit better in terms 19 of the actual ones. I'll have them under subject matter 20 rather than actual contention. I'll give you a little bit 21 better idea. 22 Again, I hope you all are looking at these as well. If 23 you see something I missed, I did the best I can, but there 24 are a lot of contentions here. So at this point why don't 25 we adjourn. We'll go back in session tomorrow morning at ('s ANN RILEY & ASSOCIATES, LTD. ( Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 ; i
244 1 9:00.
,G 2 (Whereupon, at 6:00 p.m., the prehearing U 3 conference was recessed to reconvene at 9:00 a.m.,
4 Wednesday, January 28, 1998.] 5 6 7 8 9 . 10 11 12 13 14 ( 15 16 17 18 19 20 21 22 23 24 25 s ANN RILEY & ASSOCIATES, LTD. s Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
REPORTER'S CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of: NAME OF PROCEEDING: PRIVATE FUEL STORAGE, L.L.C. -- PREHEARING CONFERENCE DCCKET NUMBER: 72-22-ISFSI PLACE OF PROCEEDING: Salt Lake City, Utah were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and thereafter reduced to typewriting by me or under the direction of the court j reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
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