ML20203M560
| ML20203M560 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 01/29/1998 |
| From: | NRC ADVISORY COMMITTEE ON NUCLEAR WASTE (ACNW) |
| To: | |
| References | |
| ISFSI, NACNUCLE, NUDOCS 9803090093 | |
| Download: ML20203M560 (332) | |
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'$ 9803090093 980129 PDR ADOCK 07200022 y Q~ ' p B PDR epk N -
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L M 3 \A OFFICIAL TRANSCRIPT OF PROCEEDINGS LNUCLEAR REGULATORY COM. MISSION ADVISORY ' COMMITTEE ON NUCLEAR WASTE -
Title:
PRIVATE FUEL STORAGE, L.L.C. - PREIIEARING CONFERENCE Docket No.: 72-22-ISFSI
-Work Order No.: . ASB-300-117 yAd ii ii iiiliili il 11 th LOCATION: Salt IAe City, Utah DATE: Thursday, January 29,1998 PAGES: 505 - 835 ANN RILEY & ASSOCIATES, LTD.
1250 I Street, NW, Suite 300 7 (20 84 - 3 4 i Sg - ;
505 ; 1 UNITED STATES OF AMERICA P l 2 NUCLEAR REGULATORY COMMISSION NJ l 3 - - - - - - - - - - - - - - - -X
- 1 4 In the Matter of : Docket No. 72-22-ISFSI j
- ASLBP No. 97-732-02-ISFSI j 5 PRIVATE FUEL STORAGE, L.L.C. : :
- 1 6 (Independent Sptnt Fuel :
i Storage Installation) : ! 7 - - - - - - - - - - - - - -
-X 8 University of Utah College of Law 9 Moot Courtroom 332 South Street, 1400 East 10 Salt Lake City, Utah 11 Thursday, January 29, 1998 12 The above-entitled prehearing conference convenend at 13 9:00 a.m. pursuant to notice, before.
14
/~ THE HONORABLE G. PAUL BOLLWERK, III,
' (_)T 15 Administrative Judge, Atomic Safety & Licensing Panel Chairman 16 DR. JERRY R. KLINE, 17 Atomic Safety & Licensing Panel Board member 18 DR '. PETER S. LAM Atomic Safety & Licensing Panel Board member 19 PRESENT FOR THE NRC STAFF: 20 Sherwin Turk 21 Catherine Marco 22 PRESENT FOR THE STATE OF UTAH: 23 Denise Chancellor
- Diane Curran
- 24 Fred Nelson Marvin Resnikoff 25 Lawrence White Connie Nakahara
() ANN RILEY & ASSOCIATES, LTD. Court Reporters i 1250 I Street, F.W., Suite 300 i Washington, D.C. 20005 (202) 842-0034 l l
+
I 506 1 PRESENT FOR THE SKULL .aLEY BAND OF GOSHUTE INDIANS: I 2 Danny Quintana
\s Scott York 3
PRESENT FOR ONHGO GAUDADEH DEVIA: 4 Jean Belille 5 Robert Halstead 6 PRESENT FOR CASTLE ROCK LAND AND LIVESTOCK, L.C.: 7 Michael Later Bryan Allan 8 PRESENT FOR THE CONFEDERATED TRIBES OF THE GOSHUTE 9 RESERVATION AND DAVID PETE: 10 John Kennedy 11 PRESENT FOR PRIVATE FUEL STORAGE, L.L.C. 12 Jay Silberg Ernest Blake 13 Paul Gaukler 14
) 15 16 17 18 19 20 21 22 23 24 25 4 ANN RILEY & ASSOCIATES, LTD.
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507 1 PROCEEDINGS () 2 [9:00 a.m.) 3 CHAIRMAN BOLLWERK: Good morning everyone. We're 4 here this morning for the third session of our initial pre-5 hearing conference. I think we made good progress yesterday 6 in getting a good overview of what all these contentions are 7 about. I think the Board got a lot of very useful 8 information yesterday. We appreciate it. 9 We'll press on to day with the environmental 10 contentions and then finish up at some point with the 11 emergency planning contentions. 12 Anyone have anything procedural that they want to 13 bring to the Board's attention before we start? 14 MS, CURRAN: Yes, I would please, Your Honor. 15 Colonel Como has provided 10 copies of a map of the Dugway 16 area. 17 They've taken it from their GIS system, and have 18 developed a detailed map of the various activity of the 19 various areas at Dugway, and they have also provided a list 20 of abbreviations. 21- WE have 10 copies of this, and I'd like to distribute that 22 to everybody if that's acceptable to you. 23 CHAIRMAN BOLLWERK: Certainly. Anybody that wants 24 a copy, as far as I'm concerned, if you have one for them, 25 you're welcome to it among the parties certainly, ANN RILEY & ASSOCIATES, LTD.
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508-ic participants;.. () 2 3 MS. CHANCELLOR: Okay, I'll do that. CHAIRMAN BOLLWERK: Yo don't have to do it now. 4 If you want to wait till the break to do it -- 5 MS. CHANCELLOR: Right. 6 CHAIRMAN BOLLWERK: -- that's probably the best
- 7. -time.
8 MS. CHANCELLOR: That's just fine. 9 CHAIRMAN BOLLWERK: One other matter I just wanted 10 to be clear on. Mr -. Later, you'd mentioned yesterday that I ' 11 guess your contentions 20, 21, 22 and 23, you had an idea 12 about how to group those or about how to present them. 13 MR. LATER: Yes, I'd like to, if the Board agrees, 14 discuss 20, 21 and 22 together, a-d then deal separately 1E- with contention-23. 16 CHAIRMAN BOLLWERK: All right. AfterLwe talk with 17' Ms. Belille about OGD J, would you be prepared to do that?
- 18 -is that a good time to do that then?
.19 - MR. LATER: I would be happy to at any time.
20 CHAIRMAN BOLLWERK: Okay. 21 MS. CURRAN: Judge Bollwerk? 22 CHAIRMAN BOLLWERK: Yes. 23 MS. CURRAN: I'd also like an opportunity to make 24- a correction to an answer that we gave yesterday to a 25- question by Judge Lam. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 ____._.m.___._ _ _ _ _ -
509 1 CHAIRMAN BOLLWERK: All right. () 2-3 amend. MS. CURRAN: On further reflection we'd like to 4 CHAIRMAN BOLLWE3K: Go ahead, please. 5 MS. CURRAN: Okay. ;'m sorry. I don't remember 6- in what context it was, but yesterday you asked a question 7 in relation to a scenario involving spent fuel that was 8 degraded and a leaking canister. And you asked what would 9 be released from the canister into the environment. And the 10 answer that we gave was gases. 11- We reflected on that further, and we woula like to 12 clarify that we believe that what would be released into the 13 environment wou~.d be everything that is in the gap between 14 the pellets and the cladding, which would include gases but () 15 would also include small particulates of radionuclides such 11 6 as cesium and iodine and potentially other radionuclides. 17 DR. LAM: Thank you for the answer. I believe the 18 question was asked by Judge Kline. 19 MS. CURRAN: Oh, it was? I'm sorry. 20- DR. KLINE: Thank you for your answer. 21 MS, CURRAN: Things were going by pretty quickly 22 yesterday. 23 CHAIRMAN BOLLWERK: We're all interchangeable up 24 here. 25 You want to say-something, Mr. Blake? l ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
510 1 MR. BLAKE: Yeah, I also reacted I think in that ( 2 situation to-the question, and I don't want to leave any 3 doubt but what any gases from earlier fuel that had been 4 damaged or was leaking would long since have been gone 5 before this point in its journeys. 6 CHAIRMAN BOLLWERK: All right. Anything further 7 on that point? 8 MS. CURRAN: No. 9 CHAIRMAN BOLLWERK: If not, then let's turn to Ms. 10 Belille and let her talk about OGD contention J which deals-11 with I guess licensing and permits. 12 MS. BELILLE: The staff does not oppose the 13 admission of ~his contention except insofar as it seeks to 14 incorporate by aference OGD's contention A. OGD at this 15 time would withdraw any portion of the contention which 16 deals with contention A concerning potential accidents. 17 We disagree, however, with staff that the concept 18 of trust responsibility does not create a litigable issue 19 regarding this ISFSI application. Because the NRC has 20 responsibilities under the Trust Doctrine, we argue that the 21 standards that PFS must meet must be by necessity higher 22 than the protection of the general public safety and 23 welfare. 24 This trust responsibility requires more protection 25 for the members of OGD anf other tribal members regarding I \ ANN RILEY & ASSOCIATES, LTD.
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511 1 protection of the natural resources of the tribal people. () 2 3 This protection should be reflected in the environmental report. 4 PFS argues that this regulation poses no 5 obligation on the applicant in its environmental report. We 6 would counter that Part 10 C.F.R. 51(c) requires that the 7 draft EIS list all federal permits, licenses, approvals and 4 8 other entitlements which must be obtained. Part 10 C.F.R. 1 9 (d) requires an analysis of the impacts of those. 10 We would point out to the Board the language in 54 11 Federal Register which says that any license or permit 12 applicable -- or application subject to NEPA's impact 13 statement requirements must contain a complete ER which is 14 essentially the applicant's proposal for a DEIS.
/ 15 PFS makes two arguments regarding the trust 16 responsibility, and we'd like to just respond briefly to 17 those.
18 The first argument that they make is that the 19 trust responsibility is inapplicable to the NRC because the 20 Atomic Energy Act-does not provide for different sets of 21 standard to be used for any special group. I'll address 22 that first. 23 PFS is mistaken in claiming the trust 24 responsibility does not apply to the NRC. The roots of this 25 responsibility come not from statutes but from the unique O' ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 q
512 1 relationship between the' federal government and Indian f ( 2 nations. The case most often cited for this proposition is N 3 Seminole Nation v. 4 United States, which is found at 316 U.S. 286. This duty 5 applies to the government as a whole. 6 The United States acting through the Secretary of 7 Interior has charged itself with moral obligations of the 8 highest responsibility and trust. It's conduct as disclosed 9 in the acts of those who represent it int he dealings with 10 Indians should be therefore judged by the most ex, ting 11 fiduciary standards. That language is found in Pyramid Lake 12 Paiute TIibal Indians v. Morton. 13 And we would like you to note that this duty 14 applies to the United States not as might be suspected to (% ( ,)' 15 the Bureau of Indian Affairs. The trust responsibility thus 16 applies to all parts of the federal government. 17 Was the EPA requires to proceed in a trustee 18 capacity vis-a-vis the Crow Tribe? It is fairly clear that 19 any federal government action is subject to the United 20 States fiduciary responcibilities toward Indian tribes. 21 That's found in Nets v. Environmental Protection Agency, and 22 it's cite in Seminole Nation. - 23 Also, in Navajo Tribe of Indians v. United States, 24 it has been said that since the Department of Interior has 25 an obligation to safeguard the property of the Navajos when b
\'-
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513 1 they are dealing with third parties, it is clear that an () 2 even greater duty existo with the Department itself entered 3 into transactions with the Indians. 4 The second part of the -- the NRC is a sub-unit of 5 the United States Federal Government and thus subject to the 6 constraints of the trust responsibility as is other -- as 7 are other agencies of the federal government. 8 The second part of prJ' argument is that the trust 9 responsibility is attached ;-it is attached to the land is 10 only available as an argument by the tribe and not 11 individual tribal members. 12 The PFS argument about the applicability of the 13 trust responsibility is also without merit. In Martin v. 14 Ruiz, the supreme court directed the BIA to behave fr%
's_,) 15 responsibly in the termination of welfare payments with 16 respect to individual Indians. The trust responsibility was 17 not limited to application -- to the tribe.
18 Further, the cases cited by PFS to support their 19 notion that suits by individual Indians to enforce the trust 20 responsibility have been rejected, are inapplicable to the 21 issue at-hand. 22 In both Tesuque v. Mortin and Yazzie v. Morton the 23 courts are dealing with tribal sovereign immunity. The 24 tribal individuals in question were unable to sue the tribe 25 because the tribe had sovereign immunity from suit, much
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514 1 like the United States. The NRC cannot credibly claim that ( ) 2 a tribe's sovereign immunity from suit somehow absolves a 3 federal agency from its obligation to observe the trust 4 responsibility. 5 The trust responsibility applies to all members of 6 an Indian nation. While a contest between rivaling leaders 7 is going on in the New York Indian Nation, the court 8 observed in response to one rival's citing of the trust 9 Iasponsibility, the protection would not apply solely to the 10 plaintiffs but to all New York Oneidas, including the - 11 defendant intervenors. 12 In view of the well recognized responsibility of 13 the government to deal fairly with all Indians, the 14 Department's trust responsibility requires that it remain
) 15 neutral with regard to various Oneida factions. The 16 government must deal fairly with all New York Oneidas, not t 17 just the executive committee. The NRC thus owes the trust 18 responsibility to all members of the Goshute, not just the 19 tribal leaders.
20 That's all we have. 21 CHAIRMAN BOLLWERK: All right. Applicant. 22 MR. SILBERG: First of all, I'd like to note that 23 the contention deals with a requirement to list all permits, 24 licenses and approvals required for this facility. The 25 trust issue which OCD has discussed we believe is simply () ANN RILEY & ASSOCIATES, LTD. Co it Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
515 1 irrelevant to that neutral requirement; =There is nothing in () 2 the regulations that OGD has cited that would suggest that
'3 "one must get in to questions of-tribal law and relationships 4 between tribes and the United State Government. That is not 5 a permit. That is not an approval. .That is not a license.
6 So regardless of whether or not their view of the 7 trust responsibility is correct or whether our view is-8 correct, we believe it's simply irrelevant to any issue 9 which is pending before this Board. 10 I believe I heard OGD state that the NRC 11 regulation in question requires an analysis of the impacts 12 of these permits. I may have misheard, but that's what I 13 wrote down. 14- If that's what I heard I think that is not what the () 15 regulation calls for. 16 We obviously have looked at the impacts of the j 17 licensing action, but the impact of the permits is something , 18 that is not covered by the regulations in question. 19 With respect to the underlying issue, which even 20 though we believe it's: irrelevant, the idea that somehow NRC 21 -standards are higher for Indian tribes than they are for 22 others in the trust resp nsibility doctrine, we believe is-23 incorrect. And to-the extent it may be correct, it's a
-24 challenge to-the NRC regulations, because the NRC 25 regulations do not call for different standards depending on O ANN RILEY & ASSOCIATES, LTD.
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516 1 which groups of individuals are involved. Those standards () 2 3 embodied in NRC' regulations reviewed multiple times and blessed by the courts apply to all individuals, whether 4 they're Native Americans or not. 5 To the extent-that the argument is NRC must apply 6 different and higher standards, that is a challenge to the 7 regulations and again not properly before this Board. 8 With respect to the intricacies of the trust 9 doctrine, w believe the cases as we have described in our 10 brief clearly show that the party who is entitled to assert 11 the benefit of a trust ~9sponsibility is the tribe. And 12 while that trust responsibility may extend to all members of 13 the tribe, the entity that is entitled to assert that 14 benefit ic the tribe itaelf, rather than the individuals. () '15 CHAIRMAN BOLLWERK: Anything further? 3 16 MR. SILBERG: That's all I have. 17 CHAIRMAN BOLLWERK: Mr. Quintana. 18 MR. QUINTANA: The trust responsibility that 19 exists under federal law towards Indian tribes is certainly 12 0- _not going _to be violated by the building of this facility. 21 This facility complies not only with international standards 22 but certainly with all federal standards, and nothing that's 23 been said by OGD would-fit within 5170 Part C. 24 The trust responsibility is the responsibility 25 that the Executive Committee also has towards its own O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
517 1- members and is scmething that the Executive Committee has ( 2 scaght-at lengths to educate their members in the 3 surrounding communities about. The Executive Committee has 4 produced two films from visiting nuclear facilities in other 5 parts of the world, has produced numerous documentation, has 6 at all times been honest with the members in explaining to 7 them in detail what this facility would entail, and has 8 actually taken members to the Idaho National Engineering 9 Laboratory so that they could visit an actual facility-and 10 see for themselves this is what it's all about. 11 So the trust responsibility is not going to be 12 violated, and I believe this contention has no merit. It's 13 an attemot to delay the proceedings, and therefore we would 14 object to it. 15 CHAIRMAN BOLLWERK: Staff? 16 MR. TURK: Our response, Your Honor, we do not 17 challenge the ascertion-that-there's a trust responsibility. 18 We don't concede nor refute the point, because it's not
=19 relevant. What has to happen here is this f acilit; would 20 -have to_ satisfy the existing regulations and the statutory-21 requirements to the extent applicable. If the facility 22 satisfies those regulations, then the NRC may proceed-to 23 license the facility. And for that reason we do not think 24 that the issue of-whether there is-or is not a-trust 25 responsibility needs to be addressed.
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518 1 In short, even if OGD is correct that there is a () 2 trust responsibility, that would not entitle them to any 3 relief in this proceeding, because the sole thing that must ; I 4 happen here is that NRC regulations must be satisfied. 5 CHAIRMAN BOLLWERK: All right. Ms. Belille. 6 MS. BELILLE: The only thing that I would add is 7 that I believe that the trust responsibility adds a higher j 8 standard that the NRC must meet in its obligations to the ! 9 tribal people. Thank you. 10 CHAIRMAN BOLLWERK: All right. Why don't we then 11 turn to, excuse me, Castle Rock contentions 20, 21, 22 and 12 23, 13 These deal generally with questions about land use, access 14 and related matters. So we'll see what you have to say, Mr. 15 Later. 16 MR. LATER: Thank you, Your Honor. I will 17 continue our practice from yesterday. I will not repeat 18 arguments that are appropriately set forth in the written 19 materials. 20 CHAIRMAN BOLLWERK: I appreciate that. I didn't 21 say that this morning, but obviously I'd appreciate it if 22 everyone would continue to do that. 23 MR. LATER: And I hope I will set a good example 24 by being very brief. 25 Let me deal first with contention 20 which is our O- ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
. _ . . . . .- - . . - _ - . . - . _ . - -. _ _ - . . ~ - . .-. ~. - _ - . . - ~ . - -
i 519
- 1 objection to the analysis set forth on the selection of road
, ! 2 or rail access. . We have contended that the applicant
~
i 3 inappropriately fails to provide an explanation of the
'1 1
- 4 choice between a road or rail access. '
5 In contention 21 we claim thc': the applicant has 6 failed to identify the location of the propused reil spur, 7 as the applicant is required to do, j 8- And in contention 22 we contend that the applicant 9 has failed to identify authorizations that will be required is 10 for the transportation corridor along the way, 11 These are issues that are obviously extremely { .12 .important to the Castle Rock petitioners. The choice of the 4 13 transportation mode and transportation location will 14 inevitably affect their operations. It may affect their l() 15 facilities, which as this panel has seen are for the most 16 part located immediately adjacent to the roadway that is
- i. '17 located there, i
l 18 So it's quite important to my clients that the !. L19 applicant provide the required information'and analysis on l- 20- the selection of the transportation corridor, why that 21- selection is made, the evaluation of alternatives and the 22 evaluation of impacts resulting from that. Because these a 23 are all factors that will immediately ano probably primarily 24-.. affect my clients. 25 The one portion of the.se three contentions which 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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520 1 believe the staff has objected to is our contention that one (A) 2 of the authorizations that the applicant has failed to 3 describe and discuss is authorization to utilize Castle Rock 4 land which we believe will be required in any expansion of a 5 transportation corridor along the Skull Valley Road. We've 6 made that claim. We have -- it's our understanding that the 7 right-of-way along that road is quite narrow. It does not 8 allow for expansion and any expansion would have to be 9 accomplished along Castle Rock land. 10 The staff has objected that we haven't provided 11 sufficient detail or data on that. I think we have for 12 purposes of pleadings stating our understanding that we own 13 the land alongside that really very narrow right-of-way. 14 As I thought over that objection last night, my i 15 first thought was that perhaps this is an issue that maybe 16 something like an issue we discussed yesterday. It may not 17 require litigation between the parties. If we're right and i 18 we own the land, the applicant may be in a world of hurt as 19 far as transportation corridors go because they'll have a 20 problem to deal with. If they're right it won't matter. 21 But I think on further reflection it is probably a 22 significant issue, because I think the issues regarding 23 authorization and selection of corridor are problems the 24 applicant will encounter, are all potential issues that go 25 to the scheduling of this facility, its ability to be in ANN RILEY & ASSOCIA ES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
521 l1 operati'on_within the time frame that the applicant has " ( 2 proposed. And that issue may well affect the costs of the 3 facility. 4 It potentially affects the cost benefit analysis. 5 The applicant claims the need to get this facility up 6 because of concerns with storage fuel in its member 7 facilities. If it's not on line on the schedule that they 8 propose that may affect the ultimate utility of this 9 facility and the significance of alternatives to it. 10 For that reason I think probably this panel needs 11 to look closely at issues of the-transportation corridor, l 12 and access, and the applicant's ability.to actually secure 13 the kind of access that it needs. Because with respect to 14 all of those issues it's very clear that the applicant will t () _15 need to deal with governmental authorities aside from the 16 Goshute Band. It will need to deal with my clients I 17- believe, as well as-the State of Utah. Thank you. 18 CHAIRMAN BOLLWERK: All right. Applicant. 19 MR. BLAKE: With all due respect to the 20 observation _that-he_wouldn't repeat anything, I frankly , 21 didn't hear anything new, and 'fe'd stand on our written 22 responses. 23- CHAIRMAN BOLLWERK: All right, sir. Mr. Quintana. 24 MR. QUINTANA: No response. 25 CHAIRMAN BOLLWERK: Staff? 3 ANN RILEY & ASSOCIATES, LTD.
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522 1- MR. TURK: We'll rest on our pleadings as well,
- 2. Your Honor. We do not oppose two of these contentions, 20
[Gl 3 and 21. With respect to 22, the one objection we had is we 4 could see nothing in the presentation by Castle Rock which 5 - would indicate a reason to think that the existing right-of-6 way would be insufficient for transport along the Skull 7 Valley Road. There is nothing in the contention and nnthing 8 that Mr. -- 9 MR. LATER: Later. 10 MR. TURK: -- Later -- I was thinking Labor and I 11 kc w that wasn't right. 12 Nothing Mr. Later has said today contributes more 13 information along that line. And Mr. Later's statement that 14 he believes enough has been presented to satisfy the O(_j 15 pleading requirements is incorrect, because in order to 16 state an admissible contention there must be some showing of 17 a reason to believe that there is a genuine dispute, and 18 that has not been shown. 19 CHAIRMAN BOLLWERK: All right, sir. Mr. Later. 20 MR. LATER: We'll rest on what we said, Your 21 Honor. 22 CHAIRMAN BOLLWERK: All right. I have a 23 recollection yesterday that you mentioned to me that you 24 thought might best go down with cumulative other impacts. 25 Is that -- or do you want to talk about it now? ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
523 1 MR. LATER: I believe it was .7 we thought might O 2 -- 3 CHAIRMA11 BOLLWERK: Was it 17? Okay. 4 MR. LATER: -- go with cumulative and other 5 impacts. 6 CHAIRMAll BOLLWERK: I got the wrong one? 7 MR. LATER: m happy to deal with contention 23 8 now which is questione of existing land use. I'm not sure
- 9 it fits in this category, but --
10 CHAIRMAN BOLLWERf,: If you have a better one, I'm 11 glad to put it wherever you'd like it. 12 MR. LATER: I'm not sure that there is a better 13 one. 14 CHAIRMAN BOLLWERK: Okay, then let's do it. 15 MR. LATER: In contention 23 we have claimed that 16 the application does not provide the required evaluation of 17 regional impacts. The staff in its objections to this 18 contention simply said that the notion of required 19 evaluation of regional impacts doesn't require a detailed 20 property. The property evaluation doesn t require the level 21 of analysis that we have contended the applicant needs to 12 come forward with. 23 I think that in our presentation of this 24 contention we've identified a series of what v ce to 25 be important admissions. Primarily what the app; ,ut has ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005
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524 1 carved out and ignored are the set of impacts that will be () 2 3 imposed on the Castle Rock petitioners as a result of this facility. 4 Walking through those the past two days in terms of 5 potential groundwater imps.ct, the impact of the 6 transportation corridor, the impact on potential development 7 and use of this property, the ability of Castle Rock to 8 successfully continue, expand and develop their ranching and 9 agricultural activities in the presence of this facility. 10 These are all impacte immediately in the facility 11 that we think fairly fall within the language of the 12 requirement that the applicant evaluate those regional 13 impacts. They're things that should be in the application. 14 They're not there. And they are obviously things that are () 15 highly important to my clients that the applicant be-16 required to provide a clear, complete and accurate analysis 17 of just what that impact is going to be particularly on my 18 clients. 19 Thank you. 20 CHAIRMAN BOLLWERK: All right. 21 MR. BLAKE: I'm really in the same position on 22 this one that I was on the last one. I didn't hear anything 23 new that 1 need to respond to. He's emphasized points that 24 he's previously made in his written pleadings, and I don't 25 feel the need to emphasize ours. () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
525 1 CHAIRMAN BOLLWERK: All right, thank you, Mr. () 2 Blake. 3 Mr. Quintana. 4 MR. QUINTANA: The literature that is available 5 out there indicates clearly that when a nuclear facility is 6 built within NRC standards, the value of the surrounding 7 real estate increases, not decreases, and the value of your 8 clients' property would probably increase as a result of 9 this facility being built. 10 CHAIRMAN BOLLWERK: Staff? 11 MR. TURK: We really have nothing more to add to 12 our written response, Your Honor. 13 CHAIRMAN BOLLWERK: All right. Mr. Later. 14 MR. LATER: We have submitted as part of our reply () 15 here I'd like to note several letters from our clients that 16 I think would directly address the issue of impact of this 17 fa 'lity on the valuation of the tand, use of the land, and 18 the adverse impacts on their operations. So the panel does 19 have that in the record before them. 20 CHAIRMAN BOLLWERK: All right. 21 MR. LATER: Thank you. 22 CHAIRMAN BOLLWERK: Thank you, sir. 23 All right. Let's then move next to State 24 l contention U, subsequent impacts of on-site storage not 25 being considered. O, ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
i l i 526 i 1 This looked to be a stand alone to me unless someone sees
- ()
2 something else that relates to it that we haven't discussed 3 yet. i l ] 4 MS. CURRAN: Contention U has four bases that I'd i 5 like to address. ; i i ! 6 The first basis is in regard to failure to 1
- 7 consider the impacts of over-hearing casks due to the i 8 facility's inadequate thermal design. In response to this 9 the applicant points to an analysis of over heating that was
! 10 done in the environmental report. Our concern here is that i l 11 that analysis is not adequate to address this issue, because l 12 it only deals with the over heating of a single cask. l l 13 And the theory of contention H is that one of the l 4
- 14. inadequacies of the applicant's thermal analysis is that it ,
!() - 15 doesn't consider the interaction of the many casks that will 16 . be on site with each other and with the concrete pad on 17 which they will be stored. So this remains a valid and 18 viable concern.that has not been addressed by the applicant.
- 19 The second basis for the contention relies on 'the 20 factual material in contention J which relates to the i
! 21 inspection and maintenance of safety components, which is [ 22 adopted and incorporated by reference into this contention. 23 We will just stand on tha. basis that this is a reasonably i-i 24 foreseeable and credible event that should be dealt with in '
- 25 the-environmental report.
I 4 'O ANN RILEY & ASSOCIATES, LTL Court. Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 we n. wnm,, -ven- ,s-4 c--,--s ,w-wv-~*-e '
i 527 1 With respect to the third basis relating to the () 2 3 blockage of the cooling vents on the storage casks, again ] PFS and the staff refer us to an analysis done in the 4 applicant's material of the over heating of the cask for 5 four- or five-day period due to blockage of the vents. 6 We have two concerns about this. First, as I 7 previously stated with respect to basis one, this analysis 8 only considers the over heating of a single cask in 9 isolation and doesn't consider the effects of many casks 10 upon each other, the interrelationship between the storage
- 11 pad and also the ambient temperatures, as they all relate 12 together.
i-13 Second, we're concerned that the applicant's ! 14 analysis was for a period of four or five days. We have
- 15 heard in this pre-hearing conference about a chemical 16 release from the Dugway site which killed 6,000 sheep I 17 believe it was by nerve gas. It's a legitimate concern that 18 if there is some event at Dugway which causes contamination ,
- 19 of the casks that are on the PFS site it may take more than 20 four or five days to remove that contamination.
21 I'd just like to add if the heat of these casks 22 becomes too high as a result of the interaction of the casks 23 and the pad, this could lead to degradat ion of the concrete 24 which in turn could lead to higher gamma doses potentially 25 in excess of health standards. ' O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 l Washington, D.C. 20005 { (202) 842-0034 1 i
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- t 528 I
i J 1 Also,-if the interior of the cask gets too hot the ! j () 2 cladding can burst, causing gross cladding defects which l 3 would also degrade the radiation barrier to the environment. '
- 4' With respect to the last basis which concerns
- i i
{ 5 sabotage, the State has referred to that basis to be ' ) 6- material about sabotage that is contention-V. These two 7~ contentions are very much related. An environmental impact ] i 8 statement doesn't make artificial distinctions between 9 storage and transportation but looks at the overall risks.
- 10 The applicant cites the Limerick decision, l,
11 Commission's Limerickk decision, for the proposition that i I 12 sabotage is outside the scope of this hearing. It's quite ) . . .. j 13 clear that under NEPA that one cannot merely rely on a past t i 14 decision or regulation or a generic environmental impact 1 () 15 statement to say this NEPA issue is beyond the scope of this l 16 review. 17 NEPA is an action forcing statute. With each new major - L 18 federal action that the federal government undertakes, it's , [ 19 required to take a hard look at the environmental impacts of . 20- that action. That's well established in the case law. 21 Now, certainly the Commission is entitled to make
- 22 determinations that are binding on future cases, but it also
! 23 has to leave a way for new information and changed ) 24 circumstances to be evaluated. Otherwise NEPA becomes a 25 fossil which is what has been attempted here by the i
, ANN RILEY & ASSOCIATES, LTD.
Court Reporters c 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 - (202) 842-0034
529 1 applicant with respect to these NEPA issues relating to on-() 2 site storage and transportation. 3 In this case we have shown that there is new 4 information, there are new circumstances that warrant the 5 reexamination of the issue of sabotage. They include the 6 incidents of major terrorist attacks in the last several 7 years. They include the development of new weapons that are 8 easily accessible, easily transportable and much more 9 powerful than weapons that were evaluated in the past by the 10 writers of Table S4 and various environmental studies of on-11 site storage and transportation of nuclear waste. 12 I'd lik3 to go through the various rationales in 13 the Limerick decision and discuss why they are no longer 14 applicable to the circumstances that we have here. In
/ 15 Limerick the Commission said that at that time it was unable 16 to quantify the risk associated with sabotage. But we have a
17 provided evidence that there is a reasonably foreseeable 18 risk of sabotage that whether it is quantifiable or not, it 19 is certainly qualitatively subject to evaluation. 20 And this is not -- although the Commission 21 regulations do require that quantification be done if it's 22 possible, that if quantification is not possible, if a 23 qualitative evaluation is possible it must be done. And 24 this does not absolve the Commission of-the responsibility 25 to look at this if there is-a way to evaluate the risk. And () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
530 1 we submit that Tna have presented evidence showing that it
- () 2 3
is. , It's particularly important in this particular i 4 case to bear in mind that there is an issue here as to
- 5 whether the intermodal transfer station at Rowley Junction
- 6 constitutes part of the storage facility that should be l 7 subject to protection.
8 In fact whether or not it's considered a storaga l 9 or a transportation facility, that particular facility I 10 submit the Board can take official notice is vulnerable to
- 11 sabotage. It's within a stone's throw of an interstate l
12 highway. There's absolutely no room for even a buffer zone i l 13 between the railroad tracks and Interstate 80. This is i 14 something that is certainly capable of some kind of analysis () 15 as to the level of risk posed by the proximity of that site 16 to the interstate highway. I 17 CRAIRMAN BOLLWERK: Are there places along the 18- interstate highway where the train tracks come close to the i j 19 highway? .I mean what's the difference between Rowley 20 Junction and any place else along the highway with railroad , , 21 tracks? 22 MS, CURRAN: Well, that's certainly an important 23 issue.
- 24 And we have put this into two different contentions, one L
.25 dealing with storage and-one dealing with transportation.
( j () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 i Washington, D.C. 20005 (202) 842-0034
1 I 531 1 We submit that the fact that the railroad tracks go along () 2 the interstate highway anywhere is something that should be 3 subject to a NEPA analysis of the risk of sabotage caused by 4 that. 5 But also in this particular instance there is a l l 6 condition where a number of cars are likely to be sitting on 4 7 the side for periods of time which renders them even more 8 vulnerable than a railroad car is when it's traveling at , 9 some speed along the tracks. So I think the distinction is 10 it's a significantly increased risk but it's certainly on a 11 spectrum of risk that needs to be examined. i 12 In Limerick the Commission also held that the 13 intervenor had not shown how it could make a difference to 14 consider sabotage with relation to other severe accidents. 4 () 15 Well, here it's very clear that it's important for purposes 16 of analyzing mitigative measures and alternatives, which is 3 17 one of the key purposes of NEPA, to look at what are the 18 risks of someone being able to accomplish a sabotage 19 terrorist act as the PFS facility or at the Rowley transfer 20 station, and to take measures in order to mitigate or avoid 21 those kinds of risks. 22 So certainly there's great value in looking at the 23 risks of sabotage here, and it's peculiar to the nature of 24 the terrorist act. 25 Limerick also held that the security plans for the 4 () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
532 1 facility, the Limerick facility were adequate to address the () 2 problem of sabotage. However, Limerick was appealed to the 3 Third Circuit, and in that case the Third Circuit Court of 4 Appeals made it quite clear that merely by complying with 5 NRC safety requirements, the NRC doesn't end the NEPA 6 discussion. NEPA~is a separate statute that requires its 7 own examination of the risks of particular accidents and 8 methods to avoid or mitigate them. 9 So we would submit that the fact that there are 10 security plan regulations that govern this particular site 11 does not absolve the applicant or the agency from reviewing 12 the risks of sabotage and evaluating alternatives and 13 mitigative measures. 14 DR. LAM: Ms. Curran.
) 15 MS. CURRAN:- Yes.
16 DR. LAM: Would you be able to give us a reference 17 as to where in NEPA a requiremental consideration of 18 sabotage risk? Is there a citation somewhere? Is there a 19 reference? 20 MS. CURRAN: Well, the word " sabotage" doesn't 21 appear in NEPA, but NEPA requires the consideration of 22 significant impacts on the human environment. And that has 23 been interpreted by the courts to mean reasonably 24 foreseeable impacts that could have a significant effect on 25 the human environment. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
i 533 1 And the issue with respect to sabotage up until I 2 now has been whether these impacts are reasonably j 3 foreseeable. I don't think there's even been any dispute I j 4 that if a sabotage action were successful, the consequences 5 could be very severe. 6 DR. LAM: So it is your reading of the statute b 7 that cabotage and terrorist risks are part of the i 8 requirement.
- 9 That's your reading.
10 MS. CURRAN: Well, it's my reading that because ! 11 sabotage and terrorist acts are reasonably foreseeable J 12 impacts with significant potential consequences to the human l 13 environment, therefore under the statute they must be ' l 14 considered. 15 DR. LAM: Thank you, ) ' 16 CHAIRMAN BOLLWERK: Anything else? 17 MS, CURRAN: No. l 18 CHAIRMAN BOLLWERK: Applicant, Mr. Blake. , 19 MR. BLAKE: This in some ways is deja vu or a 20 second bite of the apple. These contentions, a couple of 21 them now in the environmental area, discuss rather precisely 22 and references back to contentions that we took up on the 23 safety side. So, you know, we argued some of these things, 24 and whether or not they're right, whether or not they're 25 wrong, whether or not it ought to be a contention sort of -- ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 , Washington, D.C. 20005 (202) 842-0034 --p _, . . , _ ~ . . . . _ _-_u...~, ._. - . . _ _ _ , . _ _ _ _ _ , . _ . . _ . . . _ _ _ _ _ _ _ _ . . _ _ . . . . _ _
534 1 CHAIRMAN BOLLWERK: Drafting any safety contention () 2 can often be made environmental. 3 MR. BLAKE: Well, and that's what's happened here. 4 So in some ways the argument is essentially a second bite of 5 the apple in the State's arguments here where they try to 6 improve _the arguments that were made yesterday. 7 Let me say one thing with respect to the thermal 8 design. This was covered at length in contention H in the 9 arguments yesterday. But I believe I said yesterday -- if I 10 didn't I will say so now, Take my second bite at the apple. 11 Holtec did consider, and it's described in their technical 12 SAR, they did do a nine-array multiple-cask thermal 13 analysis, and the State's had a copy of that for some time. 14 I think the specific cite is T-STAR 4.1-1, 15 With respect to Dugway and the events there, if we 16 learned anything from the tour on Monday with regard to 17 Dugway and the potential threats from Dugway, it is less now 18 than it was when the tragic event occurred that had been 19 reported and referred to a number of times in 1968. 20 But even whether it's more or whether it's less, 21 the way all of the State's arguments run is if. If there's 22 this and if there's that. And our argument continues to be 23 you've got to show a basis. You can't just postulate. You 24 can't just speculate. Y0u can't just imagine, and then say, 25 "Now, you ought to cope with what could be the ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
4 535 l 1 consequences." I continue to_believe it's speculative. () 2 That's even more important in this setting. If
- 3 NEPA requires snything, it requires a realistic assessment
! 4 to go along with.an agency's decision making, not 5 speculation, not unrealistic attempts that you must run
- 6 down. And all the law is replete with that. That's the i
7- basis really for the Limerick decision. That's why it's
- 8 been good law since 1985 and continues to be and should be i >
9 applied in this case. l 10 As to the references to transportation, that topic , 11 I think is more appropriately covered in the next contention l 12 of the State, and I'm sure it will'be the subject of some
- 13 arguments there, j 14 With respect to the references to the intermodal
() 15 facility, I note at the outset that the State's contention U ! 16' regards impacts during storage of spent fuel on the ISFSI
- 17 site.
I don't-know why we're talking at this point about- { 18 intermodal facility. But the other points that have been 19 made now a number of times about the intermodal facility. 20 would all apply equally _to the arguments here. 21; I have no other comments.
- 22. CRAIRMAN BOLLWERK: All right. Mr. Quintana.
- 23 MR. QUINTANA
- The State of Utah is trying to 24 require this facility to be built to withstand a direct hit i
.25 from'an-F-16 fighter plane, a cruise-missile, possibly a 1 .[ ANN RILEY & ASSOCIATES, LTD.
Court Reporters 1250 I-Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
536 1- meteorite, and now of course they want it built to withstand I() 2 all human acts of terrorism known to man. 3- Under this standard there isn't a facility on each 4 .which could be built, possibly with the exception of ; 5- Cheyenne Mountain:which is built to withstand a near hit i 6 from a hydrogen bomb. But that is not the law. ' 7 -Mere speculation alone and assertions without 8 scientific evidence are not enough, and is certainly not 9 required by NEPA or by NRC' rules, i 10 Furthermore, let's assume that there's a
\
- 11. worst-case scenario and there was an act of terrorism. This 12 facility is unlike-a chemical storage weapons facility. -
13 It's unlike a nerve gas facility. If the fuel is somehow through a major explosive one of these casks was ruptured, I () 15 think it's within the capability of humans to get geiger 16 counters, find every one of the spent fuel pellets, pick 17 them up and put them in a new container and repackage them. '
-18 CHAIRMAN BOLLWERK: Anything else, sir?
19 MR. QUINTANA: No. t
- -20 CHAIRMAN BOLLWERK: Just as a matter of -- I don't 21 think we've heard anything about meteorites have we?
22 h. CHANCELLOR: Only from Mr. QP ~tana. 23 CHAIRMAN BOLLWERK: Okay, I-just wanted to make 24 sure I wasn't missing something. 25 All right. Staff, please. ' O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street,_N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
l 537 1 MR. TURK: Your Honor, this essentially is a 2- bridge contention. There are four bases laid-out in the 3 contention. Three of them simply incorporate by reference ,
\
{ 4 other contentions. The only basis that sets out something ' 5 that does not depend upon another contention is item 3 which 6 talks about the risk posed by potential blockage of cooling 5 7 vents. We responded to that in our filing and we'll rest on
- 8 that.
I
- 9 With respect'to the risk of sabotage, I-think it's l l
j 10 best to address that when we address the next contention, ! 11 State V, which gets into that in more detail. i 12 DR. LAM: Mr. Turk, I'd like to hear your view. ! 4 j 13 Does NEPA require consideration of sabotage risk? ' i 14 MR. TURK: NEPA considers the -- requires the NRC 15 to consider potential impacts of reasonably foreseeable
- 16_ consequences of licensing. If sabotage is a reasonably 4
17 foreseeable impact, then the NRC would be required to 18- consider it in its EIS. The NRC has determined generically } 19 that the risk of sabo'tage does not present a reasonably i 7 20 foreseeable or a credible risk which needs to be considered. 21 And as we'll discuss in our comments on contention 22 V, this appears in nureg 0170 which is a generic study of 23 transportation impacts. It appears implicitly as well in -- 24 in fact explicitly in other generic statements, such as I 25 believe the license renewal generic impact statement.f O ANN RILEY & ASSOCIATES, UrD. Court Reporters 1250 I-Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
538 1 DR. LAM: So this opinion is primarily based on () 2 91. 4 5 (c) in which it is expressed. Am I right? 3 MR. TURK: I'd have to look at the regulation. Is 4 that the one that states the scope of NEPA? It's an 5 established NEPA doctrine that you look at reasonably 6 foreseeable impacts. 7 DR. LAM: My reading of 51.45(c) basical3y says 8 what you are saying. 9 MR. TURK: Yes. I don't believe -- I'm looking to 10 see the words " reasonably foreseeable." I don't know if ' 11 that appears in the regulation or in the case law. 12 DR. LAM: Well, they talk about "to the extent 13 practicable." I guess that's perhaps -- 14 MR. TURK: That may be another way of stating it.
) 15 The case law, the federal case law establishes that you look 16 at the reasonably foreseeable impacts of the federal action.
17 DR. KLINE: Mr. Turk, is my understanding correct 18 that if we were to review the security plan it would 19 disclose some form of design-basis threat to this facility, 20 or a defense against some sort of design-basis threat? 21 MR. TURK: You will not see in the security plan 22 or in the requirements for security plans any specific 23 design basis, except I believe the proposed rule which is up 24 for comment. It was published back in 1995. It did include 25 some design consideration. I\ 7dni RILEY & ASSOCIATES, LTD.
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539 1 DR. KLINE: Okay. 2 MR. QUINTANA: Your Honor? 3 CHAIRMAN BOLLWERK: Yes, sir. 4 MR. QUINTANA: It's important to note that the 5 reservation itself is off limits to the public and is not an 6 area where the general public frequents without permission 7 from the tribe itself. So and it's in an isolated area. 8 It's far enough removed from major population centers. That 9 there's going to be certainly on the reservation itself, not 10 necessarily at the intermodal transfer facility, but at the 11 reservation itself there would be plenty of advance notice 12 of any persons coming near it. 13 CHAIRMAN BOLLWERK: All right, sir. 14 MR. TURK: Incidentally, when I referred to the () 15 proposed rule, I'm not sure if I'm referring to what is out 16 for comment or what I've seen in the mark up of the proposed 17 rule after comments are received. But the design i 18 consideration that would appear there when the final rule is 19 published, it's my understanding that's not a design of the 20 facility itself but rather one aspect of the security 21 features for the facility. 22 MR. SILBERG: Excuse me. Was the question the 23 design basis as set forth in regulations or design of the 24 facility? 25 DR. KLINE: Well, I'm just trying to inquire if ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
1 5/.0 1 there is a design basis threat that appears anywhere. That 2 is, whether a -- I know I asked in the security plan, but 3 what I had in mind is that there is just in the regulations 4 at least for reactors a design-basis threat, is there not? 5 MR. TURK: Part 73. 6 DR. KLINE: Yeah, right. 7 MR. TURK: It defines it for all facilities. 8 DR. KLINE: And what this is leading to is a 1 9 question of why the State could not ask for an environmental 10 assessment of that to the extent that it exists. 11 MR. TURK: I think there may be a little confusion 12 in terms of Part 73. 13 DR. KLINE: Okay. 14 MR. TURK: It's the staff's position, as you'll 15 see in our response to the security plan contentions, that 16 what applies is 73.37. It is a different set of security 17 requirements that applies for reactors. 18 DR KLINE: Yeah, okay, 19 MR. TURK: There is in Part 72 a set of design 20 criteria with respect to structures which are important to i l 21 safety, 22 It's my understanding that that is not a radiological 23 sabotage standard but rather a structural standard, such l 24 that the f acility would be able to withstand various events 25 not specifically those which involve sabotage. It's my 2 ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I S t reet , N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
541 1 understanding that there is not a sabotage design basis for 2 an ISFSI. 3 DR. KLINE: Okay, that's what I'm trying to 4 ascertain. ) 5 CHAIRMAN BOLLWERK: Anyone want to say anything l 6 further on this point? l 7 DR. XLINE: Well, let me clarify with Ms. Curran 8 then. 9 Are you asking us to consider essentially a sabotage event 10 de novo, something that's not defined in the regulations or 12 that go beyond the regulations? 12 MS. CURRAN: I'm not sure I can answer that. What 13 we want, because we would need to compare the regulations to , i 14 the accidents that are discussed in the basis of our () 15 contention, and evaluate whether those accidents are the 16 same or one goes beyond the other. 17 But the point here is that this environmental 18 report says nothing about sabotage. And what we think needs 19 to be done is the applicant needs to assess what are the 20 reasonably foreseeable risks here and evaluate them. And if 21 they include the design-basis events, that seems pretty self 22 evident that's where you start, but it may go beyond that if 23 other things are also reasonably foreseeable.
'i t DR. KLINE: Doesn't it create new problems if it 25 goes beyond?
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l 542 1 MU. CURRAN: Does it create new problems? () 2 3 DR. KLINE: challenge to regulations. I mean as to admissibility or as to I mean to admissibility of the 4 contention 4 wouldn't it create a new problem? 5 MS. CURRAN: No, nn, because NEPA requires 6 consideratior. of ':easonably foreneeable risks, even risks 7 that are relatively small, 12 they're foreseeable. And 8 sometimes those relatively small probability events arv 9 considered to be outside the scope of NRC's safety 10 regulations but they're still recognized by NEPA. I'm not 11 helping you- I can tell. 12 MR. SILBERG: Excrae me. 13 DR. KLINE: We have to come up -- I mean if this 14 contention were to be admitted, and it's restricted to what 15 environmental consequencec might flow from sabotage, as 16 opposed to all the others, but just what environmental 17 consequences flow from it, we have to have some kind of a } 18 scenario to analyze. And the question is Does the 19 scenario go beyond what's int the regulations? Could we 20 consider such a scenario, or are you restricting it just to 21 whatever scenario exists in the regulations? 22 MS. CURRAN: Well, I think you have to remember 23 that NEPA is its own statute, and NEPA imposes requirements 24 on the agency that -- you know, NRC takes a while to do 25 ruling making and comes up with a rule, and then that stays ANN RILEY & ASSOCIATES, LTD.
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543 1 in effect for a while until they catch up with the next one. () 2 But NEPA requires the agency to look at things that may not l 3 have been considered in the rule that the agency hasn't
- 4 caught up with yet. Just because the agency has a rule l 5 about something doesn't mean the agency is exempt from 6 looking at some credible accident that is not addressed in 7 the rule.
8 DR. KLINE: We'll let somebody else chime in at 9 this point. 10 MR. SILBERG: Excuse me. If I could just clarify 11 the record. I think the staff was saying that there is in 12 the current rule no design-basis threat for an ISFSI. And I ! 13 think if you will read 73.1 you'll fine that the design-14 basis threat is specifically stated for all facilities, that ]() 15 there are certain exceptions in that design-basis threat for 16 Part 72 facilities. But the design-basis threat is one that 17 is laid out and current in NRC regulations. Maybe subject 18 to change of the rule, but it does exist today, 19 MS. CURRAN: Judge Kline -- e 20 DR. KLINE: Is it reasonable then, could the Board 21 entertain a demand to analyze environmental impacts that 22 might specifically flow from that design-basis threat I mean 23 if it were to come to pass? 24 MR. SILBERG: Yeah, I think you have to come back, 25 as Mr. Blake said, to the underlying premise of NEPA, that ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
544 1 you do not address which are remote and speculative. This () 2 Commission has determined that the consequences of a 3 sabotage event need not be considered for a variety of 4 reasons. One is that they are remote and speculative. 5 We have no evidence that there is such an event 6 that has occurred, and we certainly design against it, but 7 that doesn't mean that you have to evaluate the consequences 8 of something that has never happened, and the NRC has made a 9 decision that it's not likely to happen. 10 DR. KLINE: I take it that you would not agree 11 that the fact that it appears in the regulations at all is 12 an answer to the question of whether it's so remote and 13 speculative that it need not be considered. 14 MR. SILBERG: That's correct. 15 CHAIRMAN BOLLWERK: Anything further from Ms. 16 Curran in terms of your reply on the -- 17 MS, CURRAN: Yes. Also in answer to your 18 qaestion, I want to clarify that looking at the design basis 19 in 73.1, some of the accident scenarios that we have 20 described here do clearly go beyond that. For instance, 21 under 73.1(a) (1) , sub C, they discuss suitable weapons up to < 22 and including hand-held automatic weapons equipped with 23 silencers and having effective long-range accuracy. 24 And in our contention we discuss hand-held weapons 25 but much more powerful hand-held weapons that are now m ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
545 1 available, including for instance, a modern shoulder-fired () 2 anti-tank weapon. That's something that's not contemplated 3 in these regulations, but which we've provided a basis for 4 showing that this is something reasonably foreseeable that 5 should be considered. 6 MR. TURK: I'm becoming more confused than I was 7 when I spoke, and I was a little confused then. 8 CHAIRMAN BOLLWERK: I'm glad you said that. 9 MR. TURK: We' re talking about dif f erent t pes of , i 10 design basis. On the one hand, what I believe Ms. Curran is 11 referring to is her belief that the design basis for the 12 cask must be able to withstand certain types of armed 13 attack. 14 What I'm talking about when we talked about Part () 15 73 was the physical protection plan, not the cask structure. 16 The criteria for construction of the casks are set out in 17 Part 72, and those are generic standards. 18 What Ms. Curran is talking about now goes to what 19 -- I tnink what she's asserting is that casks have to be 20 hardened or be able to withstand certain events, and that is 21 not in the NRC's regulations. It's beyond what is in Part 22 72. 23 DR. KLINE: Well, let's try to clarify that then. 24 Because, for example, what would be wrong with simply 25 postulating a design-basis event, and then asking what are O' 5001 RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
546 1 the environmental consequences that flow from that. I mean () 2 3 this is not the safety side question. environmental side question. It's the Which I think in previous 4 environmental impact statements the NRC has in effect 5 postulated certain accidents and then analyzed what the 6 environmental impacts would be. 7 So the issue really is can she bring up 8 environmental impacts that would flow from any kind of 9 design-basis event, not to litigate the design-basis event 10 itself but only the environmental impacts that come from it. 11 Is that somehow prohibited? 12 MR. TURK: If something is a design-basis event, 13 then by definition it is within the bounds of events which 14 must be protected against, i.e., they're not so remote and
) 15 speculative that you would exclude them from consideration, 16 DR. KLINE: That was my point exactly. If it 17 appears in the regulation that one can hardly call it remote 18 and speculative, can you? I mean somebody thought it was 19 important to put in the regulation.
20 MR TURK: But which regulation? If we're talking 21 about Part 72 I would agree. ' 22 DR. KLINE: Yeah, okay, 23 MR. BLAKE: Our only reservation about or 24 limitation about it would be you've got to continue to apply 25 the basic philosophy -- O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 T Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
547 1 DR. KLINE: Yeah, I understand that. () 2 MR. BLAKE: -- of NEPA with regard to whether or 3 not there's been an adequate basis and justification given 4 which would lead you to say, "This ir a reasonable kind of 5 thing that we ought to take into account, and spend time 6 considering." DR. KLINE: Well, that's what I'm trying to 7 explore, whether the scenario goes beyond what appears in 8 the regulations versus a scenario that does appear in the 9 regulations. 10 MR. BLAKE: And I was going to give you an answer 11 to that from what I've heard, but Ms. Curran did. 12 DR. KLINE: Okay, yeah. 13 MR. BLAKE: And a good answer I think. 14 DR. KLINE: Okay, that's enough.
) 15 MR. TURK: If we come back to the matter of 16 transportation, which I believe is the specific contention 17 that would come before you in V which is incorporated by 18 reference in U, the question of radiological sabotage 19 affecting the transportation. The transportation of spent 20 fuel has been considered generically already, and that is in 21 0170; it's in other materials that we've referred to in our 22 response to that contention.
23 CHAIRMAN BOLLWERK: All right. 24 DR. KLINE: I've said enough. 25 CHAIRMAN BOLLWERK: All right, Ms. Curran. ANN RILEY & ASSOCIATES, LTD. O- Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
548 1 MS. CURRAN: I do have a few more comments.
-2 CHAIRMAN BOLLWERK: Okay.
_. 3 MS. CURRAN: I just want to clarify our position 4 that just because an accident scenario is beyond the design 5 basis, it does not mean automatically that it's remote and 6 speculative.. And it's-our pocition that we have described 7 scenarios that are reasonably foreseeable and that should be 8 evaluated. 9 I want to respond to something that I heard Mr. 10 Blake say about the thermal design issue. And please 11 correct me if I'm wrong. I thought Mr. Blake t 'i that 12 Holtec did consider-a 9-array multiple-cask thermal analysis 13 l and referred to page-4.1-1 of the SAR. We've looked at that 14 page of the SAR. We do not see a reference to more than one ( ) __15 _ cask on the SAR there. And even if there were nine casks, 16 we're talking about 4,000. So that still unes not satisfy = 17 our concern. 18 He also argued that we -- our concerns are based 19 on speculation and postulation. We don't give any factual 20 basis. I think that's contradicted by the very thorough 21 factual basis that we give for our concerns. 22 Finally, with respect to Nureg 170, and I know 23_ we'll probably get back to this again in contention V, it's 24 important to bear in mind that Nureg 170 was written over 20 25- years ago. It's 20 years old now. And a great deal has O #dm RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300
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l 549 1 happened since 1977. And so to say that based on Nureg 170 j () 2 the issue is closed is really, we think on its face, something that should be examined. 3 Okay. ! 4 CHAIRMAN BOLLWERK: That's it? Anything further? 5 MS. CURRAN:- Yes. 6 CHAIRMAN BOLLWERK: Nothing here? 7 Nothing? All right. 1' 8 DR. LAM: I have one question of Ms. Curran. 9 CHAIRMAN BOLLWERK: Oh, all right. l 4 10 DR. LAM: Ms. Curran, I'd like to hear your 11 response to Mr. Blake's comment about this is a second bite 1 t l 12 at the apple. Now I -- my understanding of his comment is ! 13 that he's thinkind that the State of Utah -- Mr. Blake, I i 14 correct me if I'm wrong- He's thinking about the State of " O) ' l \s, 15 Utah is litigating the same issue under the Commission's l l 16 regulation and under NEPA. I'd like to hear your response 17 to that. ! 18 MS. CURRAN:. Well, it's true, i j -19 (Laughter] l 20 MS. CURRAN: I'm not denying it, f 21 CHAIRMAN BOLLWERK: Right. 22 MR. BLAKE: Okay. Thanks. ! - 23 CHAIRMAN BOLLWERK: And there's -- 24 MR. BLAKE: But-I'm not as good as Mr. Silberg. i
- 25 MS. CURRAN
- It's the same facts, different legal j
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550 1 standard. () -2 3 DR.-KLINE: Yeah. MS. CURRAN: And I think it's perfectly 4 appropriate-to do it that way. 5 DR. LAM: Thank-you.
-6 MS. CURRAN: 13o we may have two bites, but the law 7 . entitles us to the bites.
8 _ CHAIRMAN BOLLWERK: You weren't suggesting it was 9 inappropriate; you were simply saying it was the same 10- l argument again? 11 MR. BLAKE: We'd never Juggest that Ms. Curran was 12 inappropriate. ' 13 MR. QUINTANA: Your Honor, I say this only in 14 jest, but given the governor's statement of over my dead () _ 15 body, we'll watch him closely. 16 CRAIRMAN BOLLWERK: All right. Anything further 17 on this?
-18 Ms. Curran, you're finished! Anything else from 19 the applicant?
. 20 No. All right. Contention V then, which we've 21 already had some reference to. 22 "O CURRAN: May I ask for a five minute break 23 before we get to V. It's a little after'10 and I think this 24 is' going to take a while. 25- CHAIRMAN BOLLWERK: All right. Why don't we take [-
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551 i -- let's be, well, reasonable. We'll take 10 minutes, ( o} 2 l How's that? 3 MS. CURRAN: Thank you. 4 CHAIRMAN BOLLWERK: But then we'll try to press on 5 till lunch. 6 [ Recess.) 7 CHAIRMAN BOLLWERK: Why don't we go back on the 8 record. 9 Before we get started again, I'd lika the record 10 to note that we've been given the map that Ms. Chancellor 11 mentioned. And we're going to consider that informational 12 material. I'm not going to put it into the record or 13 anything like that. It's sort of like the other items that 14 we got on part of the site tour. 7x (,) 15 MS. CHANCELLOR: Right. And every party received 16 a copy of that. That's the same thing that you received. 17 CHAIRMAN BOLLWERK: All right. Appreciate it very 18 much. 19' All right. I think we're ready to move on to 20 contention, State contention V. Deals with inadequate 21 consideration of transportation related radiological 22 problems. 23 MS. CURRAN: Okay. 24 CHAIRMAN BOLLWERK: And also let me just mention 25 that OGD C is one we identified that's related with this ['s ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
552 1 one. 2 ( ) All right. 3 MS. CURRAN: There are a number of issues here 4 that I think we need to address without going over 5 everything that's been briefed. 6 One of the key issues is what's the role of Table 7 S-4 in this. And we've already argued that in our view it's B not applicable here. 9 I'd just like to point out that the regulations 10 that govern environmental reports for ISFSIs are found at 10 11 C.F.R. 51.61, which refer the applicant to 10 C.F.R. 51.45, 12 There's no mention in either of those regulations of either 13 10 C.F.R. 51.52 or Table S-4, 14 I'd also like to point out what to us is kind of a O ( ,) t 15 point of confusion here, which is that the applicant, I 16 think rightly, makes the argument that under the 17 regulations, it's only required to consider regional impacts y 18 in an environmental report. We're presuming that means that 19 it'c the staff's job to consider the broader impacts. 20 But the data that the applicant relies on in Table 21 S-4 applied to national impacts of spent fuel 22 transportation. 23 So it's a little unclear to us what the applicant meant to 24 do when it used Table S-4 and basically did a generic 25 environmental impact analysis without looking at regional [)
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553 1 impacts. 2 The applicant asserts that, at page 300, that it s 3 used Table S-4 because taken together with Nureg 170 and 4 Nureg 1437, it is the best available data and information 5 that is approved by the Commission for use in a licensing 6 proceeding. And the applicant also cites a Federal Register 7 notice in which the Commission states that a generic EIS may 8 be incorporated by reference in an environmental report. 9 We would submit that this is not a requirement 10 ,that'a generic EIS has to be the sole basis for an 11 environmental report. It's something that may be included. 12 And as we've greviously stated, the standard here is whether 13 there are new changed circumstances or new information such 14 that that generic environmental impact statement no longer O( j 15 constitutes a valid basis on which to rely, 16 I just want to point out that that standard is 17 found in 10 C.F.R. 51.92. I'm not 100 percent sure whether 18 51.92 applies in a case like this. It has to do with when 19 an impact statement has been completed before the final 20 action is taken, whether a new impact statement has to be 21 prepared. 22 In this case, we have a generic impact statement followed by 23 a proposed action. 24 But that principle was also cited by the supreme 25 court in Marsh v. Oregon Natural Resources Council at 49 ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
554 1 U.S. 360, 109 Sup Ct 1851 and -- at page 1858 in 1989. () 2 3 written reply? MR. TURK: Is this -- may I ask, is this in the 4 MS. CURRAN: No. 5 MR. TURK: I don't think that we're moving towards 6 a clear record. It's certainly not helping me today, Your 7 Honor. 8 CHAIRMAN BOLLWERK: I don't see it either. 9 MS. CURRAN: Well, we -- 10 MR. TURK: It's going to -- may I say, it's 11 difficult enough to respond to new things that we hear in 12 oral argument for the first time. It's even more difficult 13 if we have to try to understand how this expands upon, or if 14 it does expand upon what's been stated already. And where () 15 the State has made an explicit lengthy written response, I 16 don't think we should have to respond to that as well as 17 another oral presentation. 18 MS. CURRAN: I believe it was in the staff's 19 response that the standard changed circumstances and new 20 information was raised. And I am elaborating on that, 21 citing the source for it. 22 MR. TURK: Without allowing -- 23 MS. CURRAN: I haven't done anything more. 24 MR. TURK: Without allowing anyone else an 25 opportunity to even see if the case is applicable. () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
555 1 MS. CURRAN: Well, I'll rest on 10 C.F.R. 51.91, 2 which is cited -- 3 MR. SILBERG: I'm sorry, did you say 91 or 92? 4 MS. CURRAN: 92, I'm sorry. 5 MR. TURK: 92. 6- MS. CURRAN: Okay. The staff agrees that, to the 7 extent the application may include elements beyond the-8 envelope of generic evaluations, more study may_be required. 9 And that's at page 62 of the staff's response. But aside 10 from sabotage, which the staff opposes, the staff doesn't 11 address the admissibility of any of the various subportions 12 of our contention. 13- This brings us to a concern that we have that we 14 are involved in something of a game of hide the peanut here. () 15 -I'm aware of a requirement, a regulatory requirement that if 16 the staff is undertaking some action that's relevant to 17 issues that are in contention before the licensing board, 18 the staff is required to bring those to the attention of the 19 licensing board. 20 Without any assistance from the staff, or without 21 acknowledgement from the staff in its response to our 22 pleading, we have discovered that the staff is in fact 23- undertaking a re-evaluation of Nureg 170. In part, it 24 appears in response to exactly the circumstances that are 25 presented here. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
556 1 Through the Freedom of Information Act, we have () 2 obtained a memorandum that was written by Carl Paperiello, 3 the director of the Office of Nuclear Material Safety and 4 Safeguards, to David L. Morrison, director of the Office of 5 Nuclear Regulatory Research, on February 20, 1996, which 6 discusses the, quote unquote, the revalidation of Nureg 170. 7 It states that: "Nureg 170 provides the 8 regulatory basis for issuance of the general license for 9 shipment of NRC certified packages under NRC -- 10 C.F.R. 10 Part 71." 11 MR. SILBERG: Excuse me. 12 Mr. Chairman, I really don't know where we're 13 going with all this. It seems to me so far afield from the 14 contention, which as I remember, reads something like the () 15 applicant's environmental report doesn't deal with 16 transportation related environmental impacts of the ISFSI. 17 I really think we're getting far afield. 18 MR. TURK: Oh, I'd like to hear. 19 MS. CURRAN: I will explain the relevance. 20 MR. TURK: I have no objection to Ms. Curran 21 making this attack. I look forward to responding. 22 CHAIRMAN BOLLWERK: All right. We'll -- then if 23 the staff is ready, we'll -- go ahead. 24 MR. TURK: In fact, I might just suggest that you 25 look at footnote 61 of our paper before you go on attacking I' ANN RILEY & ASSOCIATES, LTD.
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557 1 the staff. I\ d 2 MS. CURRAN: According to the staff: "Due to 3 recent changes in industry and government spent fuel 4 management strategies, the applicability of the EIS 5 assumptions and conclusions to these shipments should be 6 evaluated. In particular, new spent fuel shipment scenarios 7 are envisioned that were not considered when Nureg 170 was 8 prepared, including dual purpose and multi-purpose 9 canisters." 10 MR. SILBERG: Excuse me. Are you reading from the 11 footnote that the staff cited? 12 MS. CURRAN: I'm reading from a memorandum that 13 was written in February '96, 14 MR. SILBERG: Okay. Thank you, Just want to
) 15 understand what we're listening to.
16 MS. CURRAN: It states that the staff is going to 17 undertake this study: "To consider, at a minimum, the use 18 of larger capacity packages designed for storage and 19 transport, including MPC type containers, and the potential 20 non-radiological and radiological impacts of use of such 21 packages, shipment of older cooler spent fuel, and shipments 22 to and from a centralized facility." Now here the staff is 23 indicating that it believes it is time now to re-evaluate 24 Nureg 170. And yet in the staff's response to our 25 contentions, the staff does not express any opinion on O' ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
558 1 wnether the concerns that we raise in our convention are (( ) 2 valid or not. And we believe the staff should be forthright 3 about these concerns which it is addressing in its own 4 study. 5 In addition, we believe that this constitutes a 6 re- evaluation of the EIS which should be subject to the 7 NRC's procedural requirements for scoping and participation 8 of the public. And at this point, the way it appears to be 9 being handled is simply through the hiring -- the definition 10 of the scope of the issues by the staff; the hiring of the 11 contract -- of a contractor, Sandia Labs, to evaluate the 12 issues as defined by the staff; and then the results will be 13 presented to the public as a fait accompli. 14 And I see that Part 6 -- footnote 61 say: "The O) %, 15 staff notes that a partial reassessment of Nureg 170 is 16 currently in progress, conducted by the Sandia National 17 Laboratory under contract to the NRC related to the shipment 18 of spent fuel to a repository or central storage facility." 19 But why do we have to hunt in a footnote for a 20 representation of something that is so vital to this issue? 21 This is a 20 year old environmental impact statement which 22 -the staff is essentially defending in this proceeding, but 23 at the same time the staff has spent quite a few thousand 24 dollars to re-evaluate because apparently it does not have 25 confidence in it. ANN RILEY & ASSOCIATES, LTD. N Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 l
559 1 MR. TURK: Should we respond to that, or should we j 2 just wait our turn? 3 CHAIRMAN BOLLWERK: Let's wait. 4 Do you have anything else you want to say with 5 respect to contention B? 6 MS. CURRAN: Yes. I will continue. 7 CHAIRMAN BOLLWERK: Just realize that I see you've 8 got about, oh, eight, nine pages here on -- in your reply. 9 So let's stick to what's -- 10 MS. CURRAN: Okay. All right. I just want to go 11 through some of the individual points that PF made, PFS made 12 in response to the bases to our contention. 13 The first is that our contention that the SAR is 14 inadequate to supplement Table S-4. PFS, with respect to 15 intermodal transfer, PFS clarifies that it relies solely on 16 Table S-4 for the impacts of that operaticn. 17 But Wash 1238 has a very inadequate analysis of 18 intermodal transfer for this, the situation that we are 19 addressing in this particular case. It addresses transfers 20 of casks of much smaller size and weight. It doesn't 21 address the additional time needed to transfer casks of such 22 size and weight. That would incur additional occupational 23 doses. 24 It doesn't address the bottleneck effect, which we 25 previously discussed the general effect of stuffing an f ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 1 l l
560 1- elephant into a. mouse hole, as someone put it here. Again, () 2- something-that would increase the normal occupational doses 3 to workers. 4 Intermodal transfer also involves the use of heavy 5 haul-trucks, which are going to move very slowly back and 6 forth down Skull Valley Road. Of course Wash 1238 wouldn't 7 have any analysis of the slow movement of these casks down 8 .the road between the intermodal transfer site and the plant. 9 Contrary to PFS' argument at page 305, the impacts 10 of transfer of spent fuel at the original -- at the 11- originating site to the truck or rail carrier are not 12 outside the scope of this NEPA analysis. Now it's possible 13 they may be outside the scope of the regional analysis 14 required of PFS, but certainly not outside the scope of the () 15 NEPA analysis of the impacts of this proposal. 16- Like to make -- clarify something on the issue of
- 17. the return of the substandard or degraded casks. First of 18 all, PFS says that this is not contemplated in the SAR.
19 What we are talking about here is PFS' plan if it should 20 find that there's any problem with a cask such that it has 21 to return the cask, to put it back on the rails and ship it 22 back to the originating plant. That can be found at page 23 7.2-11 in Section-4.7; in Section 8.2.7.4 also. 24 And what we're concerned about here is principally 25 the normal releases that are incurred, or the normal -- the O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
561 1 releases related to normal operation. We are concerned 2 about accidents. But in addition, just the fact that x_- 3 additional casks are going to be transferred and the normal 4 exposures that occur as a result of that is something that 5 hasn't been considered in the environmental report. So PFS 6 is wrong in arguing that we're just concerned about 7 accidents. 8 PFS asserts that a cask drop accident involving 9 warping of the canister and other bases that we offer is not 10 credible. But I'd like to point out that cask or canister 11 warp is an issue that is being addressed by the staff right 12 now in its review of the Holtec and Safestore casks. 13 The staff has requested more information in a 14 letter of December 17, 1996 to Sierra Nuclear Corporation. r 15 The staff requented more information from Sierra Nuclear 16 about the possible deformation of the casks during a 17 tip-over, following a tip-over event. So until that review 18 is completed, there's really not a basis to say that warping 19 of the canister is not a credible accident. 20 We also have submitted a contention, contention 21 EE. 22 It's a proprietary contention, but it is related to possible 23 cask tip-over during an earthquake event. So we would 24 submit that also constitutes a basis for positing a canister 25 warping event which would prevent the placement of the O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
562 - 1 canister into a cask. () 2 3 PFS relies on Table S-4 for the proposition that the risks of transportation can't be quantified. There's a 4 -- footnote 4 explicitly states that. But the risk of a 5 transportation accident, I'm sorry, cannot be quantified. 6 That's at page 307 and 308. 7 This may have been true 25 years ago when Wash 8 1238 was written, but as we demonstrate in our contention, 9 it is no longer the case. The Commission now has available 10 to it the RADTRAN methodology, which is now in about its 11 fifth version, which allows the quantification of 12 transportation accident risks and other risks associated 13 with transportation. 14 It is commonly used by the Department of Energy r \ 15 and other federal agencies in their risk assessments. And 16 in fact, it's being used by the NRC's contractor in re-17 evaluating Nureg 170. So there simply is no longer any 18 basis for relying on the assertions in Table S-4 that 19 accident risks are not quantifiable. 20 With respect to human error, the applicant points 21 out that Wash 1238 does address human error. Wash 1238 22 states that human error is in the range of about 1 in 23 100,000 chance. Of course this was postulated 25 years ago 24 when there was very little experience with transportation of 25 spent fuel. I \ ANN RILEY & ASSOCIATES, LTD. s/ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
563 1 In the State's contention, the State points to () 2 3 four instances of human error in either the construction or the packaging of transportation casks. This is, considering 4 that there have been something in the neighborhood of 1,000 5 shipments of casks since the process began, this is 6 certainly a higher probability than 1 in 100,000. 7 With respect to criticality, again, the fact that 8 criticality is designed against under the NRC safety 9 regulations does not mean that the Commission does not need 10 to address the risk in an EIS. That was established in the 11 Third Circuit's decision in Limerick Ecology Action v. NRC. 12 In addition, we have in our contention presented 13 scenarios involving, for instance, a cask falling from a 14 railroad trestle into a rocky river in which the cask is () 15 penetrated and water entered the cask, enters the cask. 16 This could lead to a criticality accident. 17 Finally, with respect to sabotage. Again, both 18 the applicant and the staff argue that this is not litigable 19 in this proceeding. And I think that I have already 20 discussed the sabotage issue with retpect to contention U.
.t And I'd just leave it there and respond to anything new that 22 other parties may add.
23 CRAIRMAN BOLLWERK: All right. Mister -- 24 MS. CURRAN: Oh, I have one more. And that is 25 maximum credible accidents. At page 15-55, the State O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 l l l
564 1 describes the risks and costs of various severe accident () 2 scenarios with specificity and basis. The foreseeability of 3 these accidents and their significant consequences is 4 established in the contention and the documents cited by the 5 State. 6 PFS just argues that these accidents are not 7 credible. 8 But again, they are deemed incredible based on information, 9 based on Table S-4, which is now 25 years old and has been 10 supervided -- superceded by the new analyses cited by the 11 State. 12 The question is not whether Table S-4 or any other 13 generic determination would bar consideration of these 14 accidents, but whether we have demonstrated they're O) (, 15 foreseeable with reasonable specificity and basis. And that 16 is all I have. 17 CHAIRMAN BOLLWERK: All right. I'm just sort of 18 trying to figure out why you filed eight pages and then -- 19 should have just said we had lots to say, I don't know. 20 Okay. All right. Anyway, go on. 21 MS. CURRAN: Well, we -- what we did, and we were 22 pressed for time in trying to provide -- 23 CHAIRMAN BOLLWERK: I recognize that. 24 MS. CURRAN: -- written answer to this. And we 25 addressed the major legal issues and left the addressing of ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
1565 1 the factual bases for the prehearing conference. 2 CHAIRMAN BOLLWERK: All right. 3 Mr. Blake or Mr. Silberg. Oh, all right. 4 MR. SILBERG: I.think as the discussion before 5 indicated, it's awfully hard to listen to a lengthy 6 discussion and then try to compare that with what's been 7 said before and see what is new and what hasn't been 8 responded to and hear cases that are cited for the first 9 time. 10 Let me make a couple points with respect to the 11 written submission from the State. The State -- I'm sorry, 12 the State argues that S-4 is limited to construction permits 13 for nuclear power plants. The NRC case law is determinative 14' of that and is-to the contrary. 15 The State argues that, I take it from the 16 reference to the Calver Cliffs case, that individual 17 consideration of environmental impacts must be done in each' 18 case. The. supreme court has ruled to the contrary with 19 respect to these specific tables, S-3 and S-4, in the 20 Vermont Yankee and Baltimore Gas cases. 21 I won't comment on the statements on the top of 22 page 86 as to what the NRC staff does or doesn't concede, 23 -but it didn't square with my reading of the staff's 24 response, but I'll let them adopt that. 25 .The statement that the licensing -- that ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
566 1 preclusion from considering sabotage under Nureg 170 is, you 2 ( know,-is old. stuff and we should ignore it. Those 3- determinations are certainly been_ looked at more recently. 4 There have been obviously additional 5 environmental, generic environmental studies that the NRC 6 has done. There have been recent, more recent cases which 7 have adopted those analyses. You have Nureg 1437; you have 8 Nureg-0575; other studies that we've cited, 9 You have cases as recent as the New Jersey v, Long 10 Island Power Authority case in the Third Circuit that 11 certainly considered the applicability of Table S-4. The 12 risk of sabotage, the Limmer case, to my knowledge, has not 13- yet been overruled and is good law. 14 The statement that the Commission may not restrict () 15 the scope of a NEPA analysis to a geographic area that's 16 narrower than the actual area-of impact tells half the 17 story. It is clear that NRC -- that's a statement on page 18 87 of their written submission. 19 It is clear that NRC is entitled to deal with 20 these issues generically, which it has done. It is clear 21 under NEPA law that agencies are entitled to deal with these 22 issues generically through generic and programmatic impact 23 statements, which the commission has done. 24 And I would also note that every nuclear power 25 plant that will ship fuel to the private fuel storage site O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
567 1 has already evaluated these impacts in their own () 2 3 site-specific environmental impact statements, which do look at the transportation impacts of shipments from that reactor 4 to.other destinations, of spent fuel from that reactor to 5 other destinations. 6 And while the State may not like the fact that 7 Table S-3 is still a governing regulation, to the extent 8 that they don't like it, the right way to challenge that is 9 not before this licensing board but through a rule making 10 petition or a 2758 petj*4.on. 11 And I would also note on page 87, the State's 12 statement that NEPA determinations may not be insulated from 13 challenge, again flies in the face of the rulings of the 14 United States Supreme Court, which rulings make sense both 15 as a matter of law and as a matter of common sense. It just 16 makes no sense whatsoever to relitigate generic issues on a 17 case by case basis whenever that may come up. You do it 18 once and that -- you ought to be able to rest on that. 10 A couple comments. I can't be comprehensive 20 because there was just too much flying too quickly for me 21 even to take notes. 22 The State's criticality hypothesis of the cask 23 falling off the trestle, hitting a rock, being underwater or. 24 having water come in, does sound to me like the meteorite 25 which we discussed a little bit ago. Just to postulate ANN RILEY & ASSOCIATES, LTD. O- Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
568 1 these what ifs, what ifs, what ifs doesn't get you either O V 2 the basis for a contention, or certainly not the basis for a 3 NEPA requirement of reasonably foreseeable. 4 The examples of human error, I haven't gone back 5 to look at them, and I'm not sure which ones they're 6 referring to, but to my knowledge, there are no off-site 7 consequences for any of those. With respect to the risk of
-8 transportation accidents not being quantifiable, I think 9 those risks, the impacts f rom those are in fact quantified 10 in Table S-4 and in the subsequent studies. And that is 11 what in f act they do.
,- 12 With respect to the warping of the casks and the s 13 fact that the staf f may have asked additional information. 14 The obligation in this proceeding is for the State to come 15 up with a basis that meets the requirements. The fact that 16 the staf f may be asking questions does not excuse the 17 St, ate 's compliance with 2. 714. 18 With respect _ to the return of casks and the f act 19 that the State is concerned about normal releases, yeah, I 20 think we' re all concerned with normal releases. And Table 21- S-3 and S-4 deal with normal releases. And to my 22 recollection, so do all the other generic environmental 23 impact statements that the NRC has looked at. 24 The fact that the NRC staf f is undertaking a re-25 evaluation of Nureg 170. That was not a secret. It's been (
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569
-1 Hon -- in the-NRC's weekly information report. I'm sure that
() 2 the State or State's counsel has known about that for as-3 long as I've known about it. It's not a secret. 4 Fact that people are doing additional work to 5 . revalidate other studies certainly can't be a basis to 6 challenge existing rules, otherwise you create a 7 disincentive for anyone ever to try to use the most current 8 information. 9 All the studies to date have shown that while i 10- there are changes, that the data in Table S-4 is still a 11 bounding analysis. The fact that we may be using fuel with 12 higher burn-up than is covered by S-4 has been evaluated-by 13 -the NRC in the documents that we've cited, for example. 14 And notwithstanding that, the -- those NRC studies
-15 have concluded-that the values in Table S-4 are still 16- appropriate to use. So we see the fact that the NRC is i
17 going out to take another look at these not as something 18 that they.ought-to be criticized-fcr, or that they're- ' 19- playing hide the peanut, because I think the peanut's been 20 sitting out on the table for everyone to find, but rather, 21 something that I'm confident we'll show that the values 22 w4e're using still remain conservative. 23 If it turns out that some new document by the 24 staff shows that they're not, we'll deal with it at that 25 time. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
570 1 But until that happens, I think this Board is entitled and I) V 2 it's indeed obligated to use the values that are se. forth 3 in the Commission's rules and in their generic statements. 4 That's all I have. ,e 5 CHAIRMAN BOLLWERK: All right. I have one 6 question. 7 You mentioned about Table S-4 being a bounding rule. My 8 understanding from the contention is that there's questions 9 of truck weight and traffic density that seem to fall 10 outside the parameters of the rule. Am I misunderstanding, 11 or do you want to respond to that? 12 MR. SILBERG: No. I think the subsequent NRC 13 statements, subsequent NRC evaluations like Nureg 1437 have 14 looked at questions such as, you know, the assumptions in O)(, 15 Table S-4 and Wash 1238; and using current data, have , 16 concluded that those values are still appropriate to use. 17 Now with respect to a, you know, a specific-18 postulated traf fic jam or a specific, you know, postulated 19 transportation structure, I don't think those generic 20 statements are intended to deal with those other than to 21 make the generic determination that those bound what the NRC 22 ..ould expect to see on a national basis for all 23 transportation. 24 I'm sure ar.yone can postulate that there's going 25 to be a red light at this intersection, or there may be a ANN RILEY & ASSOCIATES, LTD. N-- Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 s (202) 842-0034
571 1 narrowing of a roadway at this particular location. The
.( [ 2 NRC's determination is that they need not look at those 3 because looking at these on a national basis, on an overall 4 basis, that they have properly characterized what the risks 5 are, what the impacts are, what the costs are 6 CHAIRMAN BOLLWERK: All right.
7 DR. LAM: Mr. Silberg, would you give me that 8 reference again? Specifically Table S-4 referred to a 9 truck, a weight limit of 100 tons per cask per rail car. 10 And the State of Utah is asserting the cask would weigh 140 11 ton. With that 40 percent difference, would you give ma a 12 reference as to what the staff analysis had concluded? 13 MR. SILBERG: Well, I believe, and I don't know if 14 I can find it right now, but I believe that 1437 looks at (O ,) 15 the current assumptions and determines that the Table S-4 16 values are still bounding. We refer to that at page 301 of 17 our brief. I don't know for sure, I can't tell you right 18 now, whether that includes the truck. I think it does. 19 DR. LAM: Okay. It's Nureg 1437; right? 20 MR. SILBERG: Yeah. 21 DR. LAM: Page 301 of your pleading? 22 MR. SILBERG: Right. 23 DR. LAM: Okay. Thank you. 24 CHAIRMAN BOLLWERK: All right. Anything further 25 from the Board? ['h ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 l
572 1- All right. Mr. Quintana. 2 MR. QUINTANA:: Once again, the contention from the 3 State of Utah is not supported by science, and-we would 4 therefore object. 5 We would also further object because in the -- 6- when the Tribe was in the MRS process, the Tribe wrote a 7 ' report. And in Chapter 6 of the report it addressed the 8 transportation-problems: municipal solid waste, hazardous
~9- and low level-radioactive wastes, as well as other waste.
10 And in there, the Tribe -- thereafter, the Tribe 11 wrote a letter to the governor asking if there was any 12- scientific or technical data.that the governor was aware of 13 on why a facility of this type shoulo not be built and 14 concerns that should be addressed. And that was several () 15 years ago and the letter was never responded to. 16= And now we see this response today, and.the 17 response _today of course, as well as the other contentions, 18 are not supported with any science. These contentions are 19 in bad faith and they're politically motivated, and we would 20 therefore challenge them.
-21 CHAIRMAN BOLLWERK: All right. Mr. Turk.
22 MR. TURK: The focus for this Board's inquiry has
~23 to be whether the applicant satisfies NRC requirements. I 24 will address that first.
25 I will come later to Ms. Curran's attack on the O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
573 1- staff as an attempt-to hide'the peanut, because I think that () 2 tries to change the whole tenor of this proceeding and 3 raises an issue-which is not appropriate for your 4 consideration here today. However, I cannot ignore it 5 entirely. 6 First, ems. Curran stated that she agrees with the 7 applicant that they are only required to evaluate regional
-8 impacts, but she expects the NRC staff will do more. If Ms, 9 Curran is correct that only regional impacts need be leaked 10 at, that will be the scope of the evaluation.
11 I don't know if she meant to bind herself with 12 that statement, but I believe they may in fact be bound. 13 And if only regional impacts need be evaluated, then that 14 would be the scope of both the environmental _ report as well
) 15 as the environmental impact statement.
1G Ms. Curran incorrectly stated that the_only aspect 17 of the contention which the staff cpposes has to do with 18 sabotage. That is another instance in which the State has 19 nischaracterized the staff's response. 20 In fact, at page 54 of the staff's written
'21 response to this contention, we indicated three objections 22 we had to it.
23 The first was our assertion that 'rable S-4 does in f act 24 aoply to this facility. We do not concede, as the State 25 suggests in its written reply, in their footnote 29, that O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
574 1 Table S-4 does not apply. () 2 In fact, as we indicate in the body of our 3 argument, Table S-4 has been interpreted to apply regardless 4 of whether the shipments are from a reactor to a 5 reprocessing facility or reactor to reactor. As has been 6 stated I believe by the appeal board in a decision cited in 7 our paper, it is the same fuel regardless of where it is 8 being transported. So we would accept reference to Table 9 S-4 as appropriate by the applicant. 10 Let me explain that last qualification. 10 C.F.R. 11 51.52 specifically states that "A reactor may use Table S-4 12 if it fits within certain parameters stated therein. But if 13 not, then in 51.52(b), it states that "A full description, a 14 detailed analysis of the environmental effects of
) 15 transportation of fuel and wastes should be presented." And 16 that is what we would look to here.
17 To the extent that there are differences between 18 the assumptions in Table S-4 and the factors which pertain 19 to transportation for this applicant, we will look to see if 20 those differences have been adequately evaluated. 21 The applicant in its environmental report relies 22 upon Table S-4 and then goes further by citing certain 23 generic studies which conclude that even for higher burn-up 24 fuel, and for greater mega watt day usage per ton of 25 material, the Table S-4 factors still apply. Il
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575 1 We will consider, with regard to this application, () 2 3 whether that is in fact a valid reference and reliance by the applicant. It would appear on its face to be 4 acceptable, but I will not make that merits determination 5 here. We will allow that to be reviewed by staff in its 6 review of the application. 7 The_one principle difference between us and the 8 State in this contention is the State would like you, a 9 licensing board sitting with respect to a particular i 10 proceeding, a particular facility, they would like you to 11 disregard generic studies by the commission and undertake in 12 an individual licensing action a matter which is most 13 appropriately considered by the Commission on a generic 14 basis. i 15 If there is a flaw in Table S-4, or if there is a 16' need for Nureg 0170 to be re-evaluated, that is something 17 that would apply and would be done in a generic context, 18 applicable to all radioactive material facilities, not just 19 this ISFSI. This board should not have to consider, and 20 it's improperly being asked to consider to do something
~21 which the' Commission should do on a generic basis, if at 22 all.
23 I'm getting close now to the discussion of Nureg
-24 0170.
25 In fact, the staff did mention in its brief, as I pointed ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
576 1 out during Ms. Curaan's argument, we did mention in a foot ( ) 2 note to our response that there is a limited reassessment 3 going on now with respect to Nureg 0170. That reassessment 4 is not being done because the staff believes Nureg 0170 can 5 no longer be relied upon. 6 However, there was a determination that perhaps 7 the parameters evaluated in Nureg 0170, which have changed 8 to some extent under current technology, simply need to be 9 looked at. The staff does not expect that there will be 10 greater environmental impacts associated with the new 11 parameters. The contrary may be true, that in fact the 12 environmental impacts may be even less than those stated in 13 Nureg 0170. 14 However, no determination has been made as to what (O) 15 the overall impact might be of new factors, and that is 16 being considered on a generic basia. We brought that to the 17 Board's attention, and Ms. Curran's expression of her 18 frustration with the staff is unfortunate. Because in fact 19 the staff's actions are never the subject of inquiry by the 20 licensing board in an individual proceeding, but rather are 21 matters, which if she has a problem with, she should bring 22 to the Commission's attention. 23 I want to respond to a few additional points, Your 24 Honor. 25 The State made reference to some correspondence [\
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577 1 between the NRC staff and Sierra Nuclear _regarding the () 2 deformation of casks following a tip-over event. As I 3 mentioned' yesterday in response to another argument by the' 4 State, that correspondence _ relates to cask certification. 5 That is-a matter which is being' considered with 6 respect to the acceptability of the casks for certification 7 and is not a roper subject for consideration in this I 8 proceeding. 9 To the extent that that may affect cask certification, it is 10 in the rule making proceeding that that matter will be 11 addressed. 12 May I have just a moment, Your Honor? 13 CHAIRMAN BOLLWERK: Sure. 14 MR. TURK: I would like to point out something () 15 that is stated explicitly in Nureg 0170. And this is at i 16 page IX, and I will quote: " Based on the above conclusions, - 17 the NRC staff has determined that the risks of succecsful 18 theft of a significant quantity of strategic special nuclear 19 material, or sabotage of radioactive materials in transit 20- resulting in a significant radiological release, are 21 insufficient small to constitute no major adverse impact on 22 the-environment," close quote. 23 That is a statement that has generic applicability 24 and it applies in this proceeding as well. 25 As we mentioned in our-written response, the O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
578 1 Commission has relied upon Nureg 0170 in determining that no I\ V 2 further rule making was required with respect to the 3 transportation of radioactise materials. And that matter .s 4 stated on page 61 of our written response and explicitly 5 referred to also in footnote 61 on that page. 6 In essence, the State's complaint with regard to 7 this contention is that more is required. Not just with 8 r(spect to this facility but in general, with respect to the 9 transportation of radioactive materials. That is a matter 10 which, if the State or Ms. Curran or Dr. Resnikoff wish to 11 pursue, they should pursue on a generic basis. They can l' request rule making; they can write to the Commission; they 13 can take whatever action they wish to on a generic basis. 14 But this proceeding is not the proper place to consider 15 whether to abrogate existing Commission rules and guidance. 16 CHAIRMAN BOLLWERK: Just so I understand, you've 17 indicated to me that you, or indicate to the Board I think 18 that you are actually going to look at questions about 19 higher burn-up fuel and greater mega wattage? 20 MR TURK: It's my understanding that that is a 21 matter that will be addressed in the Sandia reassessment. 22 CHAIRMAN BOLLWERK: In the, I'm sorry, the Sandia? 23 That's -- am I missing something here? 24 DR. KLINE: Have we heard about that before? 25 CHAIRMAN BOLLWERK: I don't know. I'm trying to t ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
l 579 1 figure out, what is the -- explain to me what the Sandia () 2 reassessment is. I'm sorry. 3 MR. TURK: The NRC staff has contracted with 4 Sandis. 5 CHAIRMAN BOLLWERK: 0kay. 6 MR. TURK: To do what-I understand to be a limited 7 reassessment of Nureg 0170 as it pertains specifically to a 8 -- 9 CHAIRMAN BOLLWERK: Okay. 10 MR. TURK: To the MRS or other central storage 11 facility. It is not an entire re-evaluation of Nureg 0170. 12 It is very limited in its scope. 13 CHAIRMAN BOLLWERK: All right. And that will deal 14 with the questions of higher burn-up fuel and greater mega (/ 15 wattage. Is that -- 16 MR. TURK: Yes. , 17 CHAIRMAN BOLLWERK: All right. 18 MR. TURK: Now in addition, nowever, I am not 19 f:aying that this applicant need not consider chose factors 20 when it tells us what are the environmental impacts of 21 transportation. However, to the extent that they're able to 22 rely on Table S-4 or other generic determinations by the 23 Commission, we believe that would be appropriate. 24 But we'll have to look to make sure that the 25 f actors t.:at af fect this f acility are bounded by Table S-4 () 70RJ RILEY & ASSOCIATES, LTD, Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
580 1 or the other generic determinations. () 2- DR. LAM: Mr. Turk, when you say the Commission is 3 now contemplating further rule making based on Nureg 0170, 4 when was that decision made? Is it a recent decision? 5 MR. TURK: That was in 1981. At-that time, there 6 had been consideration of whether fu.ther rule making was 7 required with respect to transportation risks. And in 1981, 8 the Commission withdrew the advanced notice of proposed rule 9 making. And that's found a Federal Register cite too back 10 in our responsive pleading at footnote 61. 11 CRAIRMAN BOLLWERK: Let me just ask one other 12 question. 13 j If the staff believes that this may need some individual 14 analysis, then why shouldn't the Board be looking at the () 15 same thing? 16 MR. TURE: The question I would have for you is to 17 what extend do you go beyond the existing rule and the 18 existing generic determinations. What the State would like 19 you to do is to go back and reassess entirely the 20 probability of a sabotage event and the consequences of such 21 an event. And we do not believe that there's any need for 22 that, or that there's any reason to set aside Table S-4. 23 .The only thing that would need to be examined here 24 is the type of analysis that's set forth in 51.52 (b), which 25' is.where a reactor does not, as stated in the rule, where a ANN RILEY & ASSOCIATES, LTD. O- Court Reporters 1250 I Street, N.W.,= Suite 300 Washingt on, D.C. 20005 (202) 842-0034 I
581 1 reactor does not meet the Table S-4 specific parameters, () 2 3 then lay out an evaluation of what the impacts are. To the extent that it's -- that the Table S-4 4 criteria or assumptions apply, then they should continue to 5 be relied upon. And that.is the risk of sabotage that is 6 considered in the rule making and in the generic studies is 7 no different for this facility or any other facility. The 8 generic determinations of those riska should continue to be 9 relied upon. The only thing that may ba different is the 10 size of the shipping cask, the amount of fuel in it, the 11 burn-up, the enrichment factor. And those are matters which 12 are extraneous, or which are beyond the parameter assumcd in 13 Table S-4 and generic studies. We think it's proper for 14 evaluation. () 15 CHAIRMAN BOLLWERK: By the staff, I take it? And 16 the Board? 17 MR. TURK: Yes. 18 CHAIRMAN BOLLWERK: So if I ask, because I asked 19 Mr. Silberg before. If the truch weight is different or the 20 traffic density is different and there's some showing of 21 that, then that's something wt should be looking at to see 22 if that maaes a difference? 23 MR. TURK: The traffic density. You mean with 24 respect to traffic on the roads, or the number of -- 25 CHAIRMAN BOLLWERK: Right. I'm not trying to play ()- ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300
. Washington, D.C. 20005 (202) 842-0034 l l
t 582 8 1 -- () 2 3 MR. TURK: No, I -- CHAIRMAN BOLLWERK: I'm not trying to play hide ! 4 the peanut here. 5 MR. TURK: I'm talking here -- 6 CHAIRMAN BOLLWERK: I'm talking about what, on the 7 contention page, 147 and 148. That's what I'm referring to. 8 MR. TURK: I'm looking at Table S-4, which sets 9 out certain assumptions. 10 CHAIRMAN BOLLWERK: Right. , 13 MR. TURK: That's where the 100 tons per truck -- 12 CHAIRMAN BOLLWERK: Right. 13' MR. TURK: I'm sorry, per cask per rail car exists 14 and the number of shipments -- 15 CHAIRMAN BOLLWERK: Right. 16 MR. TURK: -- per day. If those are different 17 here, then those differences should be evaluated. i 18 CHAIRMAN BOLLWERK: All right. I think as Judge 19 Lam pointed out, there seems to be at least a discrepancy of 1 20 40 tons. Am I right? Is that -- 21 DR. LAM: 40 ton. And as a matter of fact, Mr. ! 22 Silberg had given me a citation, you know, Nureg 1437 and
-23 page 301 of his pleading.
24 MR. SILBERG: And if I might, let me correct that 25 in part, because the issue of the higher weight trucks is 4 l ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D1 C. 20005 (202) 842-0034
1 583 1 1 specifically addressed in our environmental report at page () 2 4.7-3. And if I recall, it may be that we specifically 3 addressed it there because it was not specifically addressed 4 in Nureg 1437. But we did address it. { 5 CHAIRFMd4 BOLLWERK: All right. Anything further, 6 Mr. Turk? 7 MR. TURK: No, Your Honor. 8 CHAIRFUd4 BOLLWERK: All right. 9 Ms. Curran. i 10 MS. CURRAN: I think we lay out in laborious t 4 11 detail in our pleadings the ways in which Table S-4 is not i 12 bounding of the circumstances that are present here, the i 13 ways in which Nureg 170 and Nureg 1437 do not thoroughly 14 update Table S-4 in relation to the kinds of circumstances () 15 that we have here. 16 This includes issues like the weight of the trucks, which 17 could create additional significant safety hazards. 18 I want to make it also -- also make it clear that 3 19 Table S-4 does not consider the return of full casks from 20 the destination point back to the originating f acility. 21 That's another omission that needs to be clear. 22 Also, that in order to evaluate the impacts of 23 this facility, one cannot just multiply the effects that are 24 listed in Table S-4 by 19, for the 19 odd reactors that are
- 25 -- this fuel is being taken here by PFS, One needs to look i
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- 584 1 at the cumulative effects, the synergistic effects of taking
() 2 fuel from 19 locations around the country and focusing it on 3 a single facility, a single entry point to that facility at 4 Rowley Junction. It is not as simple as the applicant would 5 have it. 6 I'd like to respond to a few points made by the 7 NRC staff. I believe I heard Mr. Turk say that if the applicant only has to evaluate the regional impacts of this 8 9 proposal, then that would apply to the staff as wells that 10 the staff does not believe it has to evaluate any impacts 11 other than the regional impacts of this proposal.
! 12 We think that would be in violation of NEPA, which k
13 requires consideration of all foreseeable impacts. And that 14 would include impacts at the originating nuclear power
, 15 plant, which presumably is outside the region. It would 16 also include impacts related to the transportation of the
'l 17 fuel to its ultimate destination at a repository. 18 Because once this step is taken, then it triggers 19 other steps. And once of the purposes of NEPA is to insure 20 that all of the actions that will follow from the one that's f 21 being undertaken are looked at in one environmental impact 22 statement. 23 That was the purpose of Table S-4 in the first 24 place when these nuclear plants were being given their 25 construction permits, to try to figure out what could be the ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
d
- 585 4
1 consequences at the far end of the cycle when the fuel was '() -3 2 ultimately shipped off-site for reprocessing. We don't see anywhere in the regulations that
-4 Table S-4 is a regulation that has to apply in this 5 situation. Table S-4 is put into the regulations in 6 connection with Section 51.52. And there's no other l 7 regulation in Part 51 which references Table S-4. l 4
8 The applicant itself is indicated that it used j 9 Table S- 4 as the best available data that war approved by 10 the NRC. ! 11 But in fact as we demonstrate in our contention, there is 12 much better data available that could have been used, 13 including the RADTRAN calculations. 14 I just want to address this -- the staff's () 15 argument that we are here trying to get the licensing board 16 to order a new generic environmental impact statement for l 17 Nureg 170. 18 We want to make it clear that the State doesn't 19 believe it has control over how the licensing board or the 20 Commission addresses the manner in which the impacts of this 21 facility is addressed. But it is really clear that this 22 licensing board has to have some assurance that the 23 environmental statement for this facility is adequate to 24 address the environmental impacts. 25 And if the applicant and the staff are relying on
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586 1 generic analyses 20 years older and more, and older, that () 2 are -- have been superseded by significant new facts and 3 circumstances, then you won't have done your job under NEPA 4 unless you require a new environmental analysis.
- 5. It could be that a case specific environmental 6 impact statement is done, or it could be that the Commission 7 chooses to do it in a generic fashion. It really doesn't l 8 matter. What matters ic that there is some impact statement !
I 9 that fully takes into account the impacts of this facility. ] 10 DR. LAM: Now, Ms. Curran, my reading of the i 11 Commission's regulation on this is that the Commission 12 require the applicant to provide environmental impact 13 analysis, both quantitative and qualitative, to the extent
- 14 practicable. Now you seem to convey a different view on 4
() 15 that. And to me, the whole issue would be what is to the 16 extent practicable? I am specifically referring to l f 17 51.45(c). What is your view on this? 18 I mean the burden on the applicant is -- it's only i l 19 to the extent applicable. I mean practicable. If they 20 could quantity *be risk, they wouldi if they cannot, they 21 would not be required to. And of course the Commission i 22 further imposed the data should be of sufficient quality so ; l 23 that the Commission can make an independent analysis. 24 MS. CURRAN: Oh, are you -- oh, 51. 4 5 (c) , That's 25 what you're talking about? d 1 A O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
587 1 DR. LAM: Right, right. The Commission -- 2 MS. CURRAN: Yeah. 3 DR. LAM: -- clearly spoken on, you know, provided 4 guidance as to what the applicant's burden is. 5 MS. CURRAN: Well, my interpretation of that is 6 that that sentence relates to what is the obligation to 7 quantify the factors in an environmental analysis, not 8 what's the obligation to look at them. The obligation under 9 NEPA that really extends to the applicant here is to take a 10 hard look at the environmental impacts of a proposed action. 11 Then there's a question of to what extent can you quantify 12 those impacts. 13 And here, the Commission is saying to the extent 14 practicable you should quantify them, but you still have to () 15 look even if you haven't quantified them. 16 DR. LAM: Right. I'm not being an advocate for 17 any party here. What I'm saying is if I were the applicant, 18 what would preclude me from meeting my obligation to this 19 par of the regulation by saying aha, 1 look, I consider. 20 Now here's my qualitative analysis. It posed no significant 21 risk. What would be preventing me from doing that? 22 MS. CURRAN: Well, but what -- I guess the 23 question is what prevents you from getting away with it. 24 And what prevents that is that if the citizen intervenor 25 comes in and says -- and provides with reasonable basis and O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
588 1 specificity a showing that you could have done -- A) you () 2 could have done a better job; and B) the job you did isn't 3 adequate because there are significant risks that you 4 overlooked and this could be more dangerous than you say. 5 DR. LAM: Oh, I understand that. But then again, 6 the burden it's, it now shift to you. For example, to, in 7 your proposed scenarios, what would be the significant risk. 8 It would have a incremental risk. Now that's a big arena. 9 I mean, for example, you know, in your assertion you assert 10 the cask may hit a rock and open upi and therefore, water 11 would come in. There would -- leading to a criticality 12 accident.
-13 Now on its face, one would argue gee, this cask is 14 designed to withstand 63 G. Now that perhaps would be
() 15 related to a speed of, according to the staff who made that 16 answer on there. 63 G's is a lot of G's. You know, what 17 speed of the rail car would you be proposing that would be 18 leading to the acceleration exceeding that, and therefore, 19 leading to a failure? 20 MS. CURRAN: Thirty miles an hour into an 21 unyielding surface. 22 DR. LAM: And then of course, then the issue is 23- what is the official material inside the cask. 24 I am not trying to get into a debate of the 25 merits, and I think I've said enough. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
589 l 1 [ Laughter) 2 CHAIRt4AN BOLLWERK: All right. Anything further 3 on this contention? 4 14r. Silberg. 5 14R. SILBERG: The State has said that there is 6 significant risks overlooked. I don't think they've 7 provided any basis for that statement. They may quarrel 8 with some of the numbers. We have looked at the l 9 transportation risks. 10 They said we could have done a better job. NEPA i 11 law clearly says that perfection is not required. The 12 supreme court has often used the expression "Thou shalt not 1
- 13 fly speak an environmental impact statement." And what we 14 have here is a lot of fly specking going on.
15 The hard look that's required is one that is an 16 obligation on the agency and not on the applicant. We are 17 giving the agency what we think is the material they need to 18 take a hard look. , 19 The comment that RADTRAN is somehow better and 20 will show that Table S-4 is, you know, is grossly non-21 conservative. If you look at the State's description that 22 purports to support that on page 160, they say that "RADTRAN , 23 allows the users to enter parameters: the number of persons 24 at a rest stop, the stop time, the distance of onlookers 25 from the cask, number of stops per mile. The standard t ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 , (202) 842-0034
590 1 default assumption of RADTRAN is 50 persons at a rest stop," () 2 et cetera, et cetera. 3 Since our shipping is going to be by rail to 4 Rowley Junction, since there are no rest stops between 5 Rowley Junction and the facility, at least they have 6 provided no basis for suggesting that RADTRAN somehow will 7 give terribly more accurate results than that which is 8 already in Table S- 4. 9 In terms of we need to look at Rowley Junction, 10 we've down that. And the hypotheticals that the State is 11 postulating are nothing more than that. 12 With respect to the argument that Table S-4 13 doesn't consider the return of full casks. If one is 14 looking at the environmental impacts of shipping a full cask () 15 from a reactor to the ISFSI, you're going to have the same 16 impacts if it goes back the other way. Those numbers are 17 there. If you're talking about -- if the State is 18 postulating that some significant number of full casks are 19 going to be returning to the reactors, they simply haven't 20 provided a basis for that. 21 And with respect to the argument that somehow the 22 weight of trucks will create higher impact, again, we have 23 one of these verbal statements that is not support by 24 anything enough to generate -- to warrant the admission of 25 the contention. ANN RILEY & ASSOCIATES, LTD. O- Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
1 591 1 CHAIRMAN DOLLWERK: All right. Ms. Curran, I'll () 2 give you the last word. MR. TURK: Your Honor, I have a -- 4- CRAIRMAN BOLLWERK: Oh, Mister --
- 5. MR. TURK: -- brief reply to Ms. Curran's oral 6 response.
7 CHAIRMAN BOLLWERK: A13 right. ; 8 MR. TURK: I want to make sure the record is l 1 9 clear. I know that when I was discussing the question of i 10 regional impacts, I put it in the form of a statement that 11 if, if the licensee or if the State is correct in -- not the 12 licensee. 13 If the State is correct in stating that only regional ! 14 impacts need to be looked at by the licensee, then they () 15 would be bound by that and that would govern the staff's 16 look at impacts as w,'ll. 17 I did not state that the staff considers that only 18 regional impacts need to be looked at. I put that statement 19 in the form of an if statement. The -- and I did not 20 address the question of whether regional impacts or national 21 impacts need to be looked at.
.22 Reference has to be made to 51.45(c) again, which 23 states that the applicant's environmental report should 24 contain sufficient data to aid the Commicsion in its 25 development of an independent analysis. There is a b~ \-
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l 592 1 parallelism between what the applicant is required to tell ( 2 us and what we are required to consider in the EIS. 3 We do not go out and do independent EIS's without 4 regard to what is contained in the environmental report. So 5 to the extent that we will need to consider transportation 6 impacts, the licensee will be required, or I'm sorry, the 7 applicant would be required to address those same impacts in 8 its environmental report. 9 CHAIRMAN BOLLWERK: All right. Ms. Curran, you 10 have the -- 11 MR. TURK: And second -- I'm sorry. 12 CHAIRMAN BOLLWERK: I'm sorry. Go ahead. 13 MR. TURK: And second, M9 Curran characterized my 14 statements as stating that the Board would be asked by Ms. () 15 Curran to order a new generic _EIS. I never made that 16 statement. I was distinguishing between her request that 17 the Board consider in this proceeding a matter which would 18 have generic applicability versus what I believe is to be 19 proper, and that is to consider the impacts of this facility 20 in line with existing rules and generic evaluations. 21 CHAIRMAN BOLLWERK: All right. Anything else, 22 sir? 23 All right. Ms. Curran, you have the last word. 24 MS. CURRAN: Really having trouble understanding 25 these distinctions, but I guess I'll leave it to the briefs, b
\'-
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1 593 1 I'd just like to point out that we gave an example i 2 of how RADTRAN works with respect to bystanders along the , 3 road. 4 It's one example of how the risks are quantified by this 4 5 methodology. RADTRAN is a comprehensive methodology that 6 addresses other aspects of transportation. 7 In addition, Mr. Silberg just stated unequivocally 8 that the transportation is going to be by rail. And I think 9 I heard him say the other day that the applicant was 10 considering several alternative means of transporting the i 11 casks. 12 MR. SILBERG: That's not what I said, Ms. Curran. J 13 MS. CURRAN: At any rate, the bottom line is that i 14 the applicant had a choice of a method for evaluating the i () 15 risks of this facility. It chose to base it on Table S-4, 16 which we have demonstrated is outdated; and that there are 17 other meana which would fully address the significant 18 impacts which the applicants overlooked. 19 CHAIRMAN BOLLWERK: All right. Anything else? 20 MS. CURRAN:- No. I 21 CHAIRMAN BOLLWERK: All right. Ms. Belille, I 22 think we have OGD C, which raises sort of questions about 23 transportation impacts as well. 24 MR. SILBERG: Can I just -- 25 CHAIRMAN BOLLWERK: Oh. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
I i 594 1 MR. SILBERG: -- take a minute to switch books? 2 CHAIRMAN BOLLWERK: Yes, you can, j 3 [ Pause.] 4 CHAIRMAN BOLLWERK: All right. Go ahead. 5 MS, BELILLE: Your Honor, we would stand by what i 6 we submitted in our original contention, but we would like 7 to clarify four areas within that contention. 8 What we've tried to do is to redefine our , 9 definition of transportation activities. And we've divided 10 them into four phases: Phase A would be on+ site, 11 on-reservation transportation, either by rail or heavy haul 12 truck from the site boundary to the cask receiving building. 13 Phase B would be on-reservation transportation, ' 14 rail, by rail or heavy haul truck from the reservation
) 15 boundary to the site entrance.
16 Phase C would be local transportation by rail or 17 heavy haul truck from the main line rail connection to the 18 reservation boundary via Rowley Junction, the intermodal 19 transfer point, and heavy haul truck or via new rail access 20 spur. 21 And then finally Phase D, which would be national 4 22 regional rail from reactors and other origination to the 23 intermodal transfer facility or the rail access spur. 24 Because the PFS site is unlike all other ISFSI 25 sites by the Commission, that the Commission is considering, () ANN RILEY & ASSOCIATLS, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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595 1 it's being proposed solely for the purpose of storing spent () 2 3 fuel transported from PFS from distant reactors. transportation concerns are valid at least for those OGD's 4 transportation activities that occur between the rail 5 shipment, which are switched to a new rail access spur or 6 are transferred to heavy haul trucks until such shipments 7 enter the cask transfer facility at the site. Thus, Phase 8 A, B and C of the transportation activity shculd be 9 addressed in Part 72, license proceedings. 10 We acknowledge NRC's staff response that 11 transportation activities we designate as Phase D; that is, 12 transport from the originating reactors to the rail access 13 spur or the intermodal transfer point, are more 14 ' appropriately considered in a Part 71 licensing proceeding.
) 15 However, OGD expects NRC to address these regional and 16 national transportation issues as part of the EIS to be 17 prepared pursuant to NEPA.
18 The selection of a near site transportation 19 method, either direct rail shipment via a new rail access 20 spur or rail-to-rail transfer and heavy haul shipments via 21 Skull Valley Road, could have significant impacts for risk 22 and impacts to-OGD and the reservation. OGD believes that 23 all rail transportation would probably be safer; and 24' therefore, OGD has recommended that PFS adopt an all rail 25 strategy. ANN RILEY & ASSOCIATES, LTD. O- Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 , (202) 842-0034
i 596 l 1 OGD acknowledges that construction and operation () 2 of a new rail spur may, however, result in significant adverse environmental impacts.
)
3 OGD believes that the 4 potential trade-offs between accidental risks and 5 environmental impacts must be addressed by PFS in its 6 selection of a near site transportation method. 7 NRC staff has responded that OGD's contention C i 8 constitutes an impermissible challenge to the NRC safety 9 regulations in 10 C.F.R. *i l . OGD notes for the record that 10 the NRC representatives at various public meetings between 11 April and December of 1997 have stated that NRC itself is 12 currently re-evaluating spent fuel transportation risks 13 generally; and that specifically, applicability of Nureg 14 1070. () 15 Regarding the consequences of terroristic attacks 16 on spent fuel shipments, OGD notes that the Commission last 17 considered this issue in 1984, as documented in Exhibit-3, 18 which I believe is written by Halstead and Ballard, and is 19 noted in our exhibit. 20 There have been major changes since 1984 in the 21 matter of terroristic threat, weapons available to 22 terrorist, and shipping cask design changes. Taken 23 together, these changes suggest that the shipping cask used 24 for transporting spent fuel to PFS may be significantly more 25 vulnerable to terroristic threat -- attack than those used O 1000 RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
597 1 in the Commission -- when the Commissian published its last () 2 comprehensive statement on the issue. OGD believes that the 3 risk of terroristic attack is do significant that it must be 4 addressed in the licensing proceeding. 5 OGD finally stands by its conP,entions regarding 6 routine heavy haul operations along Skull Valley Road and 7 the potentially significant radiation exposures to members 8 of OGD and members of the general public during gridlock 9 incidents, 10 Neither the applicant is responsible nor NRC 11 staff's response counter OGD's contention that PPS' proposed 12 activity and the NRC'u current regulations would allow 13 persons caught in gridlock situations to receive doses of 10 14- to 40 milliram below the doses allowed by NRC regulations () 15 pet event. Such exposures could potentially cause adverse 16 health effects to certain individuals. Staff's response 17 that OGD has not demonstrated the probability of such events 18 is unreasonable because PFS has not specified what 19 inf rastructure upgrades, such as construction of slow 20 traffic lanes, or administrative controls, such as time of 21 day travel restrictions, would be required if the HT -- if, 22 at the intermodal heavy haul scenario as selected by PFS. 23 CHAIRMAN BOLLWERK: Anything further? 24 MS. BELILLE: No. That's all, Your Honor. 25 CHAIRMAN BOLLWERK: All right. Applicant please. O ANN RILEY & ASSOCIATES, LTD.
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( 598 1 MR SILBERG: . We would rest on our written 2 statement. 3 CHAIRMAN BOLLWERK: All right. Mr. Quintana. 4 MR. QUINTANA: We've previously addressed this. 5 And again, in the 50 year history-of nuclear power, there 6 -has never been a transportation accident anywhere in the 7 World where a leak of radiation from one of these casks ever 8 killed or injured anyone. At least that's what the 9 literature would indicate. 10 CHAIRMAN BOLLWERK: All right, sir. 11 Staff. 12 MR. TURK: We just have a few comments, Your 13 Honor. 14 First, I -- there was a statement in our written ( 15 response at the bottom of 79 to the top of page 80 which, in 16 which we indicated that issues pertaining to transportation 17 safety and shipping cask design are properly the subject of
=18 an application for a transportation license under the 19 pendency of our Part 71 and applicable DOT regulations. I 20 think that's the reference that Ms. Belille was referring 21 to.
22 in fact, that's probably a misstatement in our 23 written response. I don't anticipate that there would be a 24 specific licensing proceeding under Part 71. Rather, we 25 should have stated that an existing NRC licensee would have ANN RILEY & ASSOCIATES, LTD. C4 Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
599 1 a general license under Part 71. And that the Part 71 () 2 requirements and the DOT requirements are what would pertain 3 to transportation. So I wish to correct that misstatement. 4 Ms. Belille also referred to statements made by 5 NRC representatives concerning a reassessment of Nureg 0170. 6 I believe that's the same matter that we discussed in 7 connecticn *iith the State's contention V. The staff has not 8 stated that it is considering revoking or pulling Nareg 9 0170, or that Nureg 0170 may understate risk. That is not 10 what's going on. There is simply a desire to reconfirm 11 Nureg 0170's applicability in light of new technology and 12 changes in spent fuel character being shipped; that is, the 13 mega watt days of usage and the burn-up. 14 The staff does not consider and has not reached a 15 determination that Nureg 0170 should not apply. It 16 continues to be applicable. As we stated in our footnote 66 17 at page 80 of our response: "Although further consideration 18 of these issues may continue, it is clear that the 19 Commission's regulations in 10 C.F.R. Part 71 govern the 20 transportation of spent fuel at this time." That is a 21 correct statement, and we stand on that. 22 And beyond that, Your Honor, I have nothing 23 further to add. 24 CHAIRMAN BOLLWERK: All right. 25 MR. TURK: We would est on our written response. () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
600 1 CHAIRMAN BOLLWEFK: All right. Ms. Belille. () 2 MS. BELILLE: Your Honor, we would accept the 3 staff's clarification, and -- but we d'n't believe that it 4 requires any change in our statement. And that's all that 5 we have. 6 CRAIRMAN BOLLWERK: That's it? 7- You have a question? 8 DR. LAM: Yeah. 9 CHAIRMAN BOLLWERK- Sorry. 10 DR. LAM: Before we leave these two contention. 3 11 What I heard from the State counsel concerns me. Perhaps 12 I'm seeking some feedback from both the applicant and from 13 the staff. 14 My reading of the application is these casks are () 15 designed to withstand 63 G. And if the State counsel's 16 respond is correct, that would correspond to a 30 miles por 17 hour collision; and therefore, would subject these casks to 18 impact, risks. That concerns me. I like to hear from both 19 the staff and the applicant on that. 20 MR. SILBERG: Well, the one comment I would make 21 is that the State, I don't know whether it was advertent or 22 inadvert'eg, said it was a 30 mile collision with an 23 unyielding surface. Now the unyielding surface is a term of 24 ' art. It is not the side of a bridge, it is not falling off 25 a trestle into a creek and hitting a rock. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C..20005 (202) 842-0034
601 1 The NRC, as I recall, requirements for i () 2 transportation casks require that a cask withstand a drop
- 3 onto an unyielding surface. And as I remember the 4' description of that unyielding surface, it's a one foot 5 . thick steel plate anchored into a concrete block that goes 6 down to bedrock. I mean it's in-essence a non-physical i
'l 7 structure. ' 8 Now I don't know whether 30 miles into an j 9 unyielding surface of that type is in fact 63 G's. I would ! l l 10- tend to doubt it. But an unyielding surface is not a real l 11 physical object. It is a test object. { 12 DR. LAM: And I also like clarification on if 63 G 13 the failure threshold, is it. And if not, what is the
- 14 safety margin?
() 15 MR, SILBERG: I don't know. I'd have to consult 16 with the technical people, i 17 DR. LAM: Right. I'd like to hear'an answer on l 18 that. I 19 MR SILBERG: I understand that 63 G's is the 20 design for the cask. i 21 CHAIRMAN BOLLWERK: Anything -- you're waiting to l 22 hear from someone else. I'm sorry. 12 3 Anything you want to say, Mr. Turk?
- 24 MR. TURK
- Yes. I would simply provide the 25 staff's understanding of the matter.
l ANN RILEY & ASSOCIATES, LTD. 4 Court Reporters 1250 I Street, N.W., Suite 300 Washington,.D.C. 20005 (202) 842-0034
602 1 What would be required is that the cask be able to () 2 3 withstand a 30 foot drop to a totally unyielding surface. And I'm told there's no such thing in nature. It equates to 4 a 60 mile per -- I'm sorry, a 60 -- 5 This could equate to a 60 mile per hour collision 6 on a partially yielding surface, or even more. But the 7 standard is the 30 foot dropping onto a totally unyielding 8 surface, j 9 May I have just a minute, Your Honor? , 10 CHAIRMAN BOLLWERK: Let me just ask a procedural 11 question while we're waiting hele. 12 The next thing we're coming to is cumulative and 13 other impacts, which is Utah W. You have about a paragraph.
- 14 Do you have -- how much time were you thinking you're going
) 15 to need to discuss this?
16 MS. CHANCELLOR: Not very long, Just three or 17 four minute, a couple minutes. 18 CHAIRMAN BOLLWERK: All right. Then we're 19 supposed to go to Castle Rock 9, 14 and 17. What are we 20 looking at there, do you think? 21 MR. TURK: I do have one more statement I should 22 make, Your Honor. 23 CHAIRMAN BOLLWERK: Okay. 24 MR. TURK: If I -- just in response to Judge Lam's 25 question. I'm told also that the question of how many G's, I ANN RILEY & ASSOCIATES, LTD.
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603 1 how many gravitational force pulls apply. That relates to () 2 the tip-over stress that the cask would have, which I 3 believe the applicant is saying they would have to -- they 4 intend to be able to withstand. And that would be a Part 72 5 design basis issue rather than a Part 71 transportation 6 collision issue. 7 And with respect to Part 72, I believe the staff 8 replies, the SAME, A-S-M-E code allowed those stresses. 9 DR. LAM: Right, right. Because the way I was 10 getting at is if what the State of Utah counsel statement is 11 true, then if 30 miles an hour pose a risk to the cask, that 12 would be a concern. 13 MS. CURRAN: Since this originated with me -- 14 CRAIRMAN BOLLWERK: All right.
) 15 MS. CURRAN: Just say that yes. Thirty miles an 16 hour would be falling to bedrock. If it was not bedrock, we 17 think that it would be somewhat higher, but not necessarily 18 60 miles an hour.
19 CHAIRMAN BOLLWERK: All right. Anything further 20 on the subject? 21 All right. Mr. -- I'm sorry, Mr. Later. I was 22 asking you. You had -- we then had the way that you had
.23 these grouped, Castle Rock 9, 14 and 17 Do you anticipate 24 -a lot of discussion as you --
25 MR. LATER: What I would propose to the panel, if D'
\-
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604 1 acceptable, is that we deal with 9 and 14 -- 2 CHAIRMAN BOLLWERK: Okay. 3 MR. LATER: -- together. If the State takes about 4 what they projected, we could probably do 9 and 14 before 5 lunch. 6 And then I would be prepared to address number 17 just after 7 lunch. I don't think any of them will take a long time. .8 CHAIRMAN BOLLWERK: All right. 9 MR. LATER: I'm going to experiment with the 10 theory that brevity is indeed the soul of wit. 11 CHAIRMAN BOLLWERK: Okay. 12 MR. LATER: And try and be quick. 13 CHAIRMAN BOLLWERK: I won disabuse you with 14 that. 15 And then '. guess we have OGD P, which would be the 16 third one we -- another one we deal with on this. 17 Okay. Why don't we go ahead then and see if we 18 can get this done before lunch, at least up as Mr. Later has 19 outlined it. Utah W please. 20 MS. CHANCELLOR: Utah W. Utah W basically goes to 21 the scope of the environmental impact statement. If I heard 22 Mr. Turk correctly, he said that NRC does not intend to do 23 anything additional to what it expects the applicant to do. 24 NRC staff has opposed this contention, primarily because it 25 says that the State has no basis. And it refers to ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 hashington, D.C. 20005 I (202) 842-0034
605 1 incorporation by reference and seems to think that () 2 incorporation by refei*ence doesn't provide a basis. l 3 Some of the cumulative impacts-that we-think need 4 to be addressed in this contention are those of credible I l 5 accidents. And we incorporate contention K by reference, i 6 And K deals with the safety analysis of credible accidents. 7 Here we're talking about the environmental effects 8 under NEPA of credible accidents: the F-16 crashes, the 120 9 over flights a month, the hanging bombs that pass the area, 10 the TOCDF air facility where 43 percent of the nation's 11 stockpile of chemical weapons is stored. To think that NRC l 12 is going to license this facility without looking at the ! 13 cumulative impacts of such dangerous activities that occur I 14 in this region, we believe, would be a dereliction of NRC's
- 15. duty.
16 Also, the transportation corridor. As you saw, 17 the road is very narrow. Skull Valley, I mean Castle Rock 18 herd their cows on that road. It's used for access to 19 Dugway. 20 When there are national guard exercises and other exercises 21 at Dugway, that -- the traffic on that road swells quite 22 considerably. 23- The other area that we address in this contention 24 is flooding. And we, again, we incorporate by reference our 25 safety contentions. Again, I don't think it's legitimate O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
606 1 for NRC staff to oppose those incorporations by reference. ( 2 The only one I really want to focus on that PFS 3 says that it addresses is the visual impacts. At the e n 4 page 2.2-3, the applicant does list certain recreational 5 activities that occur in the area. And it talks about 6 hiking trails, bird watching, nature studies, fishing, 7 waterfowl hunting, off-road vehicle use. 8 However, in its analysis of the visual impacts of 9 their license activities, including construction, the casks 10 being transported along the road, et cetera, et cetera, they 11 -- in ER 4.1-19 the applicant states that "In this barren 12 landscape," and they are the words that the applicant uses. 13 "In this barren landscape, the presence of 14 construction equipment will naturally draw attention to the () 15 viewers -- will draw the viewers's attention to the 16 temporary focal point." However, they go on to conclude that 17 that's only going to be a temporary activity, and that there 18 really are inconsequential visual imy:rcts from this 19 licensing action. 20 Well, these Eastern utility companies may consider 21 Skull Valley a barren landscape. We in Utah don't. And we 22 think that the visual impact of what is occurring under 23 these license activities needs to be addressed under NEPA. 24 That's all I have. 25 CRAIRMAN BOLLWERK: All right. Applicant. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
'I 607l l
g MR. BLAKE: This is, by and large, another bite of
\ 2 the apple kind of contention with respect to just portions
[O 3 of it. Some of it is just -- I won't -- some of it's 4 inappropriate. Because when they quarrel with whether the 5 staff is going to take various impacts into account and 6 cumulatively look at them, it -- they're misusing the term 7 cumulative. 8 Cumulative is with narrowly focused, directed 9 kinds of activities which together, collectively, have one 10 particular impact. The wide ranging kinds of impacts which 11 might occur here will be taken into account cumulatively in 12 that they'll be discussed in one environmental impact 13 statement, not because they need tu ce determined as a 14 cumulative impact thsmself.
) 15 With respect rn $b colorful language about the 16 beauty of Skull Valley and '11. . It is true, and we all 17 observed that on Monday, this area and the people that live 18 in it.
19 And I'm sure they enjoy it and respect it, as do the 20 utilities that want to make this use of it. 21 That doesn't fill the void of whether or not they c 22 provided an adequate basis in a contention, or nor does it 23 contradict the fact that we have taken into account visual 24 impacts and we have addressed them in the ER. And the staff 25 I'm sure will as well in its environmental impact statement. ANN RILEY & ASSOCIATES, LTD. h'd Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
608 1 CHAIRMAN BOLLWERK: All right. Mr. Quintana. 2 MR. QUINTANA: Very briefly. If the State of Utah is interested in giving the Goshutes back Skull -- Park City 4 and Heber Valley and Salt-Lake Valley and Ogden Valley, and 5 some of the other lands that have been taken from the tribe, 6 then perhaps we should talk. 7 CHAIRMAN BOLLWERK: Staff.
-8 MR. TURK: I want to address only a few of the 9 oral comments made by Ms. Chancellor.
10 I don't know how she managed to get this 11 interpretation of staff statements. But the staff did not 12 state, aithar in writing or here today, that we don't intend 13 to do mo;n chan the applicants. What I was discussing was 14 .the-parallelism required for an environmental report and an () 15 environmental impact statement. 16 The same issues are addressed. To the extent that 17 the staff needs further information to support its 18 environmental impact statement, we routinely get that 19 information from the applicant. Where other sources bring 20 information to us which we believe to be important, we will
-2: consider that information and we will probably ask the 22 applicant to address that information.
23 So I did not say that we do not intend to do more 24 than the applicant. The staff.does have an obligation, as 25 an arm of the Commission, to prepare a good environmental O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
609 1 impact statement consistent with requirements of NEPA, and ( 2 we will do that. 3 Secondly, with respect to staff's -- the staff's 4 statements in its written response. We did not say in our 5 written response that you do not have to look at the impacts 6 of vtrious kinds of operations in the area or environmental 7 pollution. Repeatedly in our response to this contention, 8 at page 63 and 64, we use the word "further." We stated 9 "The State has not shown that further consideration ir 10 required by the applicant in its environmental report." 11 We did not say that these issues are not fair for 12 consideration. But what we were addressing was the State's 13 obligation in its contention to provide a reason to believe 14 that more is needed than what appears in the environmental
) 15 report. We said that on three different occasions on that 16 limited discussion which appears on those two pages.
17 And what is required at this time is that a 18 determination be made as to whether the contention provides 19 the basis needed to challenge the environmental report 20 statements made by the applicant. 21 CHAIRMAN BOLLWERK: All right. Ms. Chancellor. l 22 MS. CHANCELLOR: We believe we have brought e 23 additional information to the NRC staff and they appear not 24 to be going to address that, and that's our major concern. 25 With respect to -- I just can't let Mr. Quintana's (') ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
610 1 comments, whether they're gratuitous or not, I just can't () 2 3 let all of them go unanswered. take any lands from the Goshute Indians. The State of Utah did not , It was the federal 4 government who took certain lands from the Indian tribes. 5 And quite frankly, it's getting a little insulting sitting 6 here listening to such comments. 7 CHAIRMAN BOLLWERK: I think we need to keep this 8 on a professional level -- 9 MR. QUINTANA: I apologize. 10 CHAIRMAN BOLLWERK: -- for everyone; all right? 11 Whatever problems there were in the past, in that regard, is 12 not going to be solved in this case. That's certainly the 12 case. So -- 14 I just had one question. I'm looking through my O ( ,/ 15 papers here again. I had the impression, at least from one 16 of my notes, that the Private Fuel Storage did find part of 17 this contention admissible. Is that correct? That's what 18 I'm trying to -- I may have misread it. Sometimes I was 19 doing these kind of late at night, and that happens. d 20 DR. KLINE: They did not object to -- 21 CHAIRMAN BOLLWEkK: They didn't object to part of 22 it, the seismic portion? 23 DR. KLINE: Wait a minute. Never mind. 24 CHAIRMAN BOLLWERK: That's what I -- I have a 25 note. Is that -- O' ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 __ - - - ______- _ l
611 l' (Pause.) () '2 MR. BLAKE: The way_we subdivided the contention 3 was to go through -- have subdivisions A through F. With 4 respect to E, which is addressed on page 321 in our answer ,- 5 --
'6 CHAIRMAN BOLLWERK: Okay. Let me just --
7 MR. BLAKE: We said see the applicant's response 8 to Utah contention L. 9 CRAIRMAN BOLLWERK: Right. 10 MS, CHANCELLOR: And if I may add, they did not 11 oppose contention L. 12 CHAIRMAN BOLLWERK: That's my question. They 13 _didn't oppose contention L, which -- would that -- is that 14 -- am I to take that that they don't oppose the admission of I 15 at least that portion of this contention? That's what I'm 16 trying to understand, 17 MR. BLAKE: Yes, sir. 18 CHAIRMAN BOLLWERK: That's correct then? Okay. 19 And let me just ask them, since-the staff did not 20 oppose the admissibility of contention L, are they in the
- 21. same status with respect to this?
22 MR. TURK: No , I would oppose the admission of 23 that subcontention. That subissue appears on page 163 of 24 the State's contentions. It consists of a very brief 25 statement that says: "The site chosen 37 one with complex O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 1
612 1 seismicity, capable of-faults and potentially unstable 2 soils. 3 See contention L, whose basis is incorporated
- 4. herein by reference, The impact of placing 4,000 casks over 5 such a site is not fully assessed," That's it. Now there's 6 no reference in there to the applicant's environmental-
.7 report, which a contention is required to do in order to 8 satisfy 10 C.F.R.
9 2.714 (b) (2) (III) . So we believe that also is insufficient 10 to support the admission of this contention. 1 11 That is different from saying that contention L is 12 admissible. Contention L raised a safety issue rather.than 13 an environmental one. So we opposed the reference here. We 14 did not, I believe we did not oppose contention L. 15 CHAIRMAN BOLLWERK: All right. 16 MS CHANCELLOR: If I may. I think the staff is 17 looking at form over substance. I mean we incorporated 18 contention L into our NEPA contentions. We could have done 19 a cut and paste and put everything in L into, what one are 20 we dealing with? W. And if the applicant doesn't oppose 21 this, I submit that there is something to look at in the 22 environmental report and that this contention should be 23 admitted. 24 CHAIRMAN BOLLWERK: All right. And -- 25 DR. LAM: The question to staff is this. If the O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
l 613 1 State of Utah did in fact paraphrase everything they said in () 2 3 contention L, would that be acceptable to the staff? MR. TURK: In L, there are repeated references to 4 the SAR. Page after page there are references to that. So 5 for L, there was a valid contention stated. 6 DR. LAM: Right. But what I'm saying is if the 7 State of Utah did cut and paste everything, verbatim, 8 putting L in there, would that satisfy the staff? 9 MR. TURK: May I have a moment? I want to take a 10 look at the enviror. mental report. 11 CHAIRMAN BOLLWERK: Okay. 12 (Pause.] 13 MS. CHANCELLOR: While Mr. Turk is looking, I la think contention L addresses why the site is unstable. And () 15 we back that up with expert testimony and references to 16 technical data. And that if the site is unstable for the 17 safety of the casks, that should also be looked at for 18 purposes of NEPA in determining the scope of the impacts 19 from siting such a facility in what may be an earthquake 20 prone area. And to say that you don't need to look at that 21 under NEPA, I believe -- 22 If the only thing that Mr. Turk is looking for is 23 to see whether we cited the ER in contention L, I believe 24 that that misses the point. 25 MR. TURK: The -- we continue to oppose it, Your ANN RILEY & ASSOCIATES, LTD.
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614 1 Honor. () O 2 Even if you assume that the matters stated in the safety 3 analysis are -- I'm sorry, in a safety analysis report 4 contention, contention L are correct, where does that tie 5 into the discussion of environmental impacts of a facility 6 stated in the environmental report? 7 I would say that inasmuch as contention L has not 8 been opposed by the staff, I believe neither by the 9 applicant, as a safety contention, that's where it should be 10 litigated. ' 11 If the contention wins on a safety basis, that's enough to 12 affect licensing. There is nothing in the environmental 13 report that's been challenged. And therefore, as an 14 environmental contention, it fails. 15 MS. CHANCELLOR: The contention itself says: "The 16 environmental report does not adequatelyconsider the adverse 17 impacts of the proposed ISFSIand does -- and thus, does not 18 comply with NEPA and 10 C.F.R. 40 -- 51.45(b)." 19 That's the basis of the -- that is the contention. 20 MR. TURK: Again then, I -- 21 CHAIRMAN BOLLWERK: Wouldn't an environmental 22 impact statement otherwise consider the impacts that would 23 flow from a seismic event? Am I correct in stating it that 24 way? 25 MS. CHANCELLOR: Yes, it should. And that's -- ( ) ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
615 1 CHAIRMAN BOLLWERK: And I guess your point is that () 2 there are -- you raised a contention that indicates that 3 there is essential seismic impacts here. I mean, or 4 potential seismic problems here than those impacts would be 5 assessed? 6 MS. CHANCELLOR: I think if you, you know, just 7 stop and think about this practically. If there's an 8 earthquake out there, there are many, many dangerous 9 activities. And the impact of what is going to occur if an 10 earthquake happens in terms of evacuating various other 11 facilities should be taken into account. So the 12 environmental consequences of the instability of the site 13 has to be addressed. 14 DR. KLINE: This kind of comes back to the issue I O) (_ 15 was raising yesterday about making assertions of inadequacy 16 without. more. And the -- as the matter stands now, I can't 17 tell if the applicant simply said nothing about 18 environmental impacts, because you haven't cited anything in 19 the environmental report, or if what he said just didn't 20 satisfy you. I just don't know the difference. And so what 21 is it you want to litigate there? 22 I mean I'm not saying you shouldn't point out 23 deficiencies. I'm saying we are asking you to go further 24 and say well, the ER is inadequate. And give us the 25 citation to where it's inadequate, and then give us some ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
616 1 . reason to think that there's an environmental impact out () 2
'3 there that's gone unnoticed.
MS. CHANCELLOR: Well, the -- 4 DR. KLINE: You have experts here. I think we 5: have to have some kind of concreteness. 6 MS. CHANCELLOR: The environmental report refers 7 us back to the SAR. The environmental report on page 2.6-7 8 refers us back to the SAR. 9: DR. KLINE: No. As -- 10 MS CHANCELLOR: As -- for purposes of -- 11 DR. KLINE: For the -- 12 MS. CHANCELLOR: -- describing the site 13 stratigraphy and the geology of the site. 14 DR. KLINE: No. But I want to know what does the () 15 ---does the ER, is the ER silent on the matter of what
- 16. environmental impacts flow from a seismic event?
17 MS. CHANCELLOR: Yes. Yes, it is. 18 DR. KLINE: It is totally silent on it. Is that 19 your-assertion? 20 MS. CHANCELLOR: That's our assertion. 21 DR. KLINE: Okay.
=22-MS. CHANCELLOR: Totally silent to meet NEPA.
23 DR. KLINE: Does the applicant agree with that, or
'24 --
25 MR. BLAKE: We'll get you an answer to that, O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
617 1 Doctor. A () 2 DR. KLINE: Okay. 3 MR. BLAKE: But let me add one other related, 4 unfortunately not clarifying, but I think I need to point it 5 out to the coard, citation here. 6 Footnote six in our answer to Utah contention CC, 7 which appears at page 36 of the filing in which we addressed 8 CC. 9 CHAIRMAN BOLLWERK: All right. That's cost 10 benefit analysis; correct? 11 MR. BLAKE: Yes, it is. 12 CHAIRMAN BOLLWERK: Okay. 13 MR. BLAKE: Would appear to have us taking the 14 opposite position. So I have some sympathy to Mr. Turk's 15 position. 16 I apologize for not, as I say, clarifying or helping. But 17 it is, and it should be taken into account as well in the 18 Board's determination. 19 CHAIRMAN BOLLWERK: All right. Well, I guess 20 that's what we're here to resolve. 21 MR. TURK: I think I heard Mr. Blake saying that 22 he's retracting his position, although he didn't say -- 23 MR. BLAKE: Well, it ic. 24 CHAIRMAN BOLLWERK: Or he's looking -- I think 25 maybe he's looking at us to resolve his conflict. I'm not ( ANN RILEY & ASSOCIATES, LTD. N Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
618 1 sure which one, but --- 2 MR. BLAKE: It's inconsistent. To the extent I'm 3 able to at this point, this is the later position that-the 4: applicant filed.and,the one that we adopt. And-I can only 5 apologize for the inconsistency, which we didn't really
-6 observe until this was brought to our attention today by ,
7 this discussion. And I apologize. 8 CHAIRMAN BOLLWERK: Okay. 9 MS, CHANCELLOR: I think what this points out is ' 10 that there really is a dispute here. The applicant may 11 agree, may not agree, but I think that there is actually a 12 factual dispute. 13 CHAIRMAN BOLLWERK: Okay. And I guess we need to 14 look -- MR. TURK: May I add something, Your Honor? 16 CHAIRMAN BOLLWERK: Yes, sir. 17- Go-ahead, I'm sorry. 18- MR. TURK: All right. I'm looking at 10 C.F.R. 19- 2. 714 (b) (III) , which says that: "A contention must provide 20 sufficient information to show that a genuine dispute exists 21 with the applicant, a-material issue of law or fact. 22 Thisshowing must-include references to the specific portions 23 of the application, including theapplicant's environmental 24 report and_ safety report, that the petitioner disputes, and 25 '
' a supporting reasons for each dispute. Or if the ANN RILEY & ASSOCIATES, LTD.
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619 1 petitioner believes that the application fails to contain 2 information on a relevant matter as required by law, 3 identification of each failure and the supporting reasons 4 for that belief. On issues arising under the National 5 Environmental Policy Act, the petitioner shall file 6 contentions based on the applicant's environmental report." 7 Now there's nothing in this contention with 8 respect to seismic matters that references anything specific 9 in the enviror, mental report. 10 I'm not going to represent to you that the 11 environmental report is complete with respect to the 12 consequences of seismic events, because that would go to the 13 merits. But I will note that in the environmental report, 14 Chapter 5, the environmental effects of accidents are 35 discussed. And there is a discussion in there of the 16 consequences of man-made as well as na.tural causes. 17 Specifically stated on page 5.1-3 is the word 18 " earthquake." Now is that sufficient or not? I don't know. 19 Is the applicant's discussion sufficient or not? I don't 20 know. But the contention had to address whether or not the 21 environmental report is adequate, and the contention did not 22 do that. 23 DR. LAM: So are you saying the State's assertion 24 that the environmental report -- the applicant's report was 25 silent on seismic event is incorrect? ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300
"""" 2 "i d i
620 1 MR. TURK: That it's certainly incorrect. Now 2 () 2 whether the discussion is adequate is another question. But 3 the contention doesn't show a reason to believe it's 4 inadequate. 5 DR. LAM: Right. Because we just heard the State 6 counsel saying it -- the report did not have it. 7 MS. CHANCELLOR: We'll stick by our cut and paste 8 argument and the fact that the ER refers you back to the 9 SAR. 10 CHAIRMAN BOLLWERK: All right. Anything further 11 from the applicant on this point? ? 12 (Pause.] 13 CHAIRMAN BOLLWERK: I think, Mr. Later, we're 14 probably going to talk with you this afternoon. 15 MR. BLAKE: Maybe I can help, at least on this 16 one, since I didn't help on the last. 17 Mr. Paderk has pointed out an instance in the 18 environmental reports where the term " earthquake," the word 19 appears. And the State is taking the position that there's 20 no discussion of impacts associated with seismic events. 21 They're both right. And there's an obvious reason for that. 22 We don't believe there's any impacts associated 23 with seismic event. So we have no discussion of it and 24 that's our position. 25 Now you could allow the contention, and then we'd ANN RILEY & ASSOCIATES, LTD. n%' Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
621 1 say that's why we don't have any discussion. There are no () 2 ' impacts. But I think I'd prefer that you adopt our other 3 position and disallow it. Thank-you. 4 CHAIRMAN BOLLWERK: That it -- I'm sorry, that it 5 is? 6 MR. BLAKE: I say I hope -- I'd prefer that you 7 adopt our position that I took earlier, which is in view of 8 the inconsistencies, the later position, we don't think it's 9 appropriate, and you would disallow this aspect of the 11 0 contention as well. 11 CHAIRMAN BOLLWERK: Okay. 12 All right. Why don't we go ahead and take our 13 luncheon break then. Let's come back at -- right. 1:30 14 please. 15 (Recess.] 16 CHAIRMAN BOLLWERK: Why don't we go back on the
- 17. record.
18 We're here for our afternoon session. Let me check and see 19 at this point any procedural matters anybody wants to take 20- up quickly? 21 All right. If not, I think we were ready to hear 22 from Mr. Later about Castle Rock 9 and 14 and then 17. 23 MR. LATER: Let me deal with contentions 9 and 14 24 initially together. I think they raise a set of issues that 25 are sufficiently related. I can say what I need to say as a ANN RILEY & ASSOCIATES, LTD. O- Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
622 1 group. The contentions deal with regional and cumulative () 2 impacts of the facility. 3 In contention number 9 we have noted that the 4 application does not provide consideration of the impact of 5 other nuclear facilities and the cumulative impact of 6 nuclear facilities that are near the proposed site. The 7 dispute, as I understand it from the staff and applicant's 8 response is first that they need only consider facilities 9 within a five-mile radius. And in any event, they see no 10 foreseeable impact from any of the other nuclear facilities 11 that are a greater distance. 12 In quick response let me note that there is 13 currently the Envirocare low-level nuclear waste facility, 14 and there is just recently a proposed Laidlaw low-level s_) 15 _ facility which Laidlaw proposes to place in proximity to 16 this facility which would fall within the ambit of this 17 concern. 18 We think that the five-mile limitation is 19 artificial and not mandated by the regulations. The 20 regulations simply require the applicant to consider other 21 nuclear facilities that are near, and that the standard for 22 that should be if there are foreseeable impacts, as we 23 believe there are, and the scenario as presented by both the 24 State and Castle Rock have shown potential scenarios for 25 cumulative impacts among those facilities that should be
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623 1 considered. () 2 The EPA NEPA requirements also require 3 consideration of regional impacts, and in that regard we 4 believe a showing has been made of the potential and 5 foreseeable and viable potential for accidents at the other 6 hazardous facilities which we have enumerated which are in 7 the vicinity, and that accidents at those facilities could 8 impact the operation of the PFS facility potentially 9 requiring its evacuation leaving the facility unmonitored, 10 unmanned and subject to its own resulting accidents. 11 That those scenarios need to be considered and are 12 not in the ER. 13 And finally in contention number 14, we have 14 raised the failure to consider impacts on groundwater
) 15 contamination and_resulting food source contamination. And 16 I think this raises an issue which I would characteri=e not 17 as a second- bite issue but simply as a failure of the 18 applicant's approach to this facility that impacts not only 19 safety considerations but environmental considerations as 20 well, and that is the treatment for potential groundwater 21 contamination.
22 The applicant has staked out the position the 23 facility will be designed that there will be no releases. 24 The conclude that theretore there will not be any releases 25 and therefore they need not plan for any releases, and ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
624 1 therefore need not consider the impacts of any such , 2 releases.
\_/
3 The critical step in there is that tnere is no 4 foreseeable reasonable potential for any releases 5 irrespective of what is planned. We've gone over that 6 ground, and we think we've shown there is an issue of fact 7 as potentiali'.y of releases irrespective of the design 8 conditions of that facility. And if there are releases, 9 there needs to be planning or handling those releases, as 10 well as anticipation of the consequences of those releases. 11 I think in particular the potential for 12 contamination of food sources, contamination of livestock is 13 one that should be particularly attended to in light of the 14 applicant's position that it will do no monitoring of the
) 15 groundwater in the event of any releases. So simply 16 contamination could exist for a significant period of time 17 in the absence of any measures to detect and remediate.
18 So we think in those two contentions we have 19 stated a sufficient basis for a reasonable identification of 20 issues for litigation. Thank you. 21 CHAIRMAN BOLLWERK: All right, sir. Mr. Blake, I 22 see you picking up the microphone. 23 MR. BLAKE: Yes, sir. This response to these two 24 points out the difficulty we've had in preparing to react 25 here. This is 9. It had a couple of pages of response. () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
625 1 Fourteen had on the reply none, and yet here we are. I'll ( ) 2 do my best. 3 With respect to 9 and the pages that have been 4 already put in where this is our first opportunity to react, 5 Castle Rock argues that the five-nile radius around the 6 proposed ISFSI site is really too small to take into account 7 the cumulative impacts and that we should do something more. 8 We did do something more, and we did look at 9 facilities outside, and we did look at them to the extent 10 that they might have impacts on us, or that we might have 11 impacts on them. And we don't get credit for that. 12 To the extent they also believe that we should 13 take into account the cumulative impacts of these events, I 14 read the cases that they cite, Thomas and pre-ISFSI cases, x) 1 15 and they simply don't apply to our situation. Those cases 16 were -- in one case concerning timber sales and logging 17 within specific water shed and whether or not more would be 18 allowed. And in another case concentrated housing 19 development in a sensitive shoreline area around West 20 Galveston, Texas. 21 In each of those the decision maker was faced with 22 collective impacts on a specific area. We simply don't have 23 that here. You keep saying over and over again the impacts 24 are more facility -- they could be very limited. We hear 25 that there's the potential for others, but we never see the ANN RILEY & ASSOCIATES, LTD. O Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
o 626 1 basis. We never see the factual discussion. We never see () 2 the expert opinion to support that there in fact is a real 3 basis for off-site impacts of the kind that are raised only 4 as a potential. It simply isn't enough. Potential is not 5 enough. 6 With regard to what we've heard from Castle Rock 7 today orally, the first reference I beliew was to 8 Envirocare facility, which is some 20 miles away without any 9 showing of crossed impacts we would have on Envirocare and 10 Envirocare would have on us. It's simply not good enough. 11 The final reference was to livestock and tnc 12 potential for impacts of livestock. We went by there. Even 13 all the cattle which had been moved down closer to our 14 facility for purposes of our tour on Monday, did not to me n ( ,) 15 seem in any way to be impacted or could be impacted by 16 having this very quiet and silent facility sitting next to 17 them. I don't understand the impact on the cows. 18 I do understand that there are hypotheticals for 19 water or others all of which we've addressed in our papers, 20 and none of which do they take on. It's not the basis -- I 21 said it I don't know how many times, Judge. Every time it 22 comes up I think we have to react again. There's not a 23 sufficient basis with specificity to allow a contention of 24 this type. 25 CHAIRMAN BOLLWERK: All right, sir. Mr. Quintana. , ANN RILF & ASSOCIATES, LTD.
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627 1 MR. QUINTANA: I think this have been stated () 2 previously. So I'll reiterate it again briefly. There is 3 no scientific basis for this contention, and therefore the 4 tribe would object. 5 CHAIRMAN BOLLWERK: Staff? ' 6 MR. TURK: Thank you, '.'our Honor. The staff has 7- opp. sed both of these contentions on the principal ground 8 that there is a lack of basis shown to support it. 9 I'd like to rely upon those submissions, but then 10 respond also to a few of the comments made by Mr. Later. 11 In particular Mr. Later stated that both the 12 applicant and the staff limit regional impact analysis 13 to five miles. That's not correct for the staff. Whatever 14 may be the extent of the applicant's analysis, we will q_)' 15 follow the requirements in 72.98 which requires us to 16 consider regional impacts. 17 And I would note that the definition of " region" 18 in 10 C.F.R. 72.3 is not limited to a five-mile area, but 19 rather it's defined as the geographical area surrounding and 20 including the site which is large enough to contain all the 21 features related to a phenomenon or to a particular event 22 that could potentially impact the safe or environmentally 23 sound construction, operation or decommissioning of an 24 ISFSI. 25 So we will consider the regional impacts. Whether i g ANN RILEY & ASSOCIATES, LTD. A Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
628 1 that would be limited to five miles or two miles or ten (( ) 2 miles will really depend upon the particular impact and the 3 regional impact that might be expected. So we are not going 4 to limit it to five miles. 5 I would add also that when you look at the 6 assertion of cumulativa impact, nothing has been provided in 7 support of this contention which would lead you to believe 8 that this facility will have a combined impact when 9 considered in conjunction with the impacts at any other 10 facility that requires consideration here. 11 There was another proceeding which both Mr. Blake 12 and I were involved back in the early 1980s in Waterford in 13 which a contention was raised that there would be a 14 synergistic effect between the radiation emitted from the
) 15 effluent stream of a nuclear reactor when combined with "
16 chemicals present in the Mississippi River. There were 17 studies submitted in support with that contention. The 18 contention was admitted. By the way, that was before the 19 rules were amended in 1989. I doubt that that contention 20 would be admissible today. 21 However, that was an assertion of a combined 22 impact. 23 Nothing of that nature has been submitted to you here to 24 warrant consideration of this alleged cumulative impact 25 that's set forth in contention 9. ('- ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
629 1 CHAIRMAN BOLLWERK: If we do not admit this [ 2 contention or these contentions in dealing with -- I guess 3 the regional -- the question of regional coverage, regional 4 impacts, and ' hen the staf f decides later it's 50 miles, is 5 that cause for a late file contention then or how does it -- 6 I mean obviously then there is not -- you and the outcome 7 are now all on the same page at least to a degree. 8 MR. TURK: The existence of some fact which can be 9 known today would establish the timeliness of the contention
- s 10 filed later. For instance, if the staff's EIS came up with 11 some information which was in existence today but which the 12 intervenors and the applicant did not cite, that wouldn't 13 make it any less the responsibility of intervenors today to 14 be aware of that information or to cite it in support of the O
(s ,/ 15 contention. 16 On the other hand, if the staff comes up with 17 something that could not have been foreceen through 18 available information today, that could-constitutes grounds 19 for a new contention later. I don't know that that would 20 happen though. 21 CHAIRMAN BOLLWERK: And I take it when the staff 22 makes a determination on what the region is they give their 23 reasons for doing that -- 24 MR. TURK: The staff -- 25 CHAIRMAN BOLLWERK: -- in terms of how they define I f' ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
630 1 'the region,--what went into their thoughts about that?
- 2 MR. TURK: Typically the staff would request 3- information from the' applicant to-support the applicant's
- 4. submission of what the regional impacts would be. And the 5; staff through inquiry and through further discussions which 6 would be part of the public record would then determine 7 whether that's appropriate or whether additional factors 8 .have to be taken into consideration.
-9 CHAIRMAN BOLLWERK: And if it decided that 10 additional factors needed to be there, they would discuss ;
11 those I take it? 12 MR. TURK: Yes, that would be in the
-13 correspondence.
14 CHAIRMAN BOLLWERK: Any other questions?
) 15. MR. TURK: As well as in the staff's safety 16 evaluation and possibly in the environmental impact. '
17 statement if they expected those to have an environmental 18 impact. 19 CHAIRMAN BOLLWERK: All right. Mr-. Later. 20 MR. LATER: Very quickly. If I have tarred the 21 staff with the same-brush used on the applicant on the 22- . standard radius I apologize for that. I think-the standard 23 Tis articulated by Mr. Turk, as I listened to it, as the one
- 24. that we propose here. I think where we differ from both the 25 applicant and the staff is on the issue of whether we have O ANN RILEY & ASSOCIATES, LTD.
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__n_-.. 631 1 shown through these proceedings foreseeable scenarios of () 2 3 accidents:or events at other facilities in Tooele County that we have referred to,.i'_pacting this facility. 4 I think we're simply asked to look at that 5 proffer. 6 And_ hopefully in light of the early stage of these 7 proceedings except that it has raised issues of fact that in 8 fact make this fair ground for litigation on that issue. 9 As far as the impacts that we've referred to on 10 groundwater, I guess I wish that I were clever enough to 11 have thought to move all the cattle down next to the 12 facility for purposes for its tour. Unfortunately I wasn't. 13' I guess I ought to take the credit if it's offered. 14- The impact we referred to is groundwater impact. .- . 15- I think we've shown that in detail our concerns about the 16 contamination of groundwater, and the water that those 17 cattle drink comes from that groundwater as well as the water that human inhabitants use. We think that is clearly 19 demonstrated scenario of impacts that is not addressed by 20 the applicant. Thank you. 21 CHAIRMAN BOLLWERK: All right, sir. Then I guess
- 22 --
- 23 MR. BLAKE: Well, I think I need to say at least, 24 Judge Bollwerk, that I believe no one had seen so many 25 cattle so close to the road that we took at recent t.mes.
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632 1 CHAIRMAN BOLLWERK: All right. I have.no basis () N 2 for saying one way or the other,-other than-I know cattle 3 wander around. 4 MR. TURK: I need to reply to one of Mr. Later's 5 comments just now. 6 CHAIRMAN BOLLWERK: All right. 7 MR. TURK: There is a regulation, and we discuss 8 it and the contention mentions it as well. It's 72.122 9 which deals with the combined impacts of nuclear facilities. 10 This contention would seek to expand the regulation to 11 require more than just a consideration of combined effect of 12 nuclear facilities. And there is no regulatory basis tor 13 that. 14 That is discussed in our papers. (G,) 15 So to the extent that Mr. Later is,now referring 16 to groundwater impacts, the combined effect oE nuclear 17- facilities would be subject to that regulation. 18 DR. LAM: I'd like to hear Mr. Later's response. 19 CHAIRMAN BOLLWERK: Yes, I'm coming to that. I 20 was just looking at-Judge Kline. Sort of done some 21 environmental impact statements in his day. I wanted to see 22 if he had anything to say. 23 Go ahead. 24 MR. LATER: I believe some of that is a product of 25 .my trying to bundle together separate issues. We're aware 7NN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
633 1 that the first standard we' relied on in contention number 9 () 2 3 does refer to nuclear facilities and cumulative impacts there. I 4 Also in part of number 9 we refer to the need requirements 5 requiring need regional analysis. And then in contention 6 number-14 I believe we invoke different regulatory authority 7 in consideration of the groundwater impacts. 8 So I think if you look at those contentions I 9 believe that you will see that we have appropriately sorted 10 out the authority under which we're raising the contention, 11 and we're not trying to bundle it all together under the 12 cumulative impacts of nuclear facilities. 13 CHAIRMAN BOLLWERK: All right. Anything further 14~ on that one?
) 15 MS. MARCO: I would just like to know from Mr.
16 Later what 'the status is of that Laidlaw facility. Isn't it 17 true that it's not built yet? Isn't it true there's 18 . potential litigation for that? 19 MR. LATER: The Laidlaw facility does exist and is 20- built. I'm sure additional construction would be required 21 if it were licensed to handle low-level nuclear waste. It's 22 currently before the state legislature seeking legislation 23 fast-track licensing procedure. I'm not aware of any 24 litigation that's currently under way regarding that 25 facility. I know that -- or at least I read in the O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
634 1 newspapers that Laidlaw counsel threatened litigation if A; ( 2 their license efforts are they believe unfairly thwarted. 3 Mr. Nelson may have better authority -- 4 MR. NELSON: May I just make a comment on that? 5 CHAIRMAN BOLLWERK: Sure. 6 MR. NELSON: The Laidlaw facility exists. It is a 7 hazardous waste disposal facility run by Laidlaw. The 8 proposal is to change it to a low-level and include 9 receiving low-level waste. It is that part of it that is in 10 the process of going through State approval, but the 11 hazardous waste facility exists, and it's operational. ' 12 CHAIRMAN BOLLWERK: All right. Thank you, sir. 13 Anything further? 14 All right. I think T. hen we have Castle Rock 17. (O s_ ,/ 15 MR. LATER: We do have number 17. And as 16 applicant's counsel pointed out to me, it might be 17 appropriate to group our contention number 18 dealing with 18 health impacts on public health. And we have bundled 19 together our reply on those two. 20 CHAIRMAN BOLLWERK: All right. 21 MR. LATER: So if the panel is agreeable, I will 22 deal with those two together. 23 CRAIRMAN BOLLWERK: Certainly, sir. 24 MR. LATER: Contention number 17 raises the issue 25 of the applicant's consideration of land impacts. The ['N ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
l 635 1 staff, as we read it, does not oppose this contention. We () 2 3
- raised the contention under 10 C.F.R. 72.98 which requires consideration of present and future uses of land and water 4 within the region.
5 We are particularly concerned of course of the 6 impact of this facility on Castle Rock property and its 7 potential. 8 And I think that some of this should be graphically brought D home to the panel as a result of our tour through Skull } 10 Valle) at the first of this week. 11 T '. is easy to understand why the Goshutes should 12 re attracted to the Private Fuel Storage far'lity. I think 13 all of us ca.1 understand the paucity of opportunities in 14 development that have existed in that valley in the past, h 15 and it's hard to fault the temptation of money from Private 16 Fuel Storage. 17 But the panel has also seen the potential for 18 dynamic and substantial development in that area. I hope 19 the panel has observed the development plans and activities 20 that Castle Rock currently have under way there. And as we 21 drove west out of the almost full Salt Lake Valley into the 22 now-the valley Tooele, you can see the pace of development 23 movf.ng west and the opportunities that soon will exist in 24 Skull Valley both for my client as well as others. The 25 development of agriculture light industry, residential ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 t
636 1 development. () 2 We are concerned, and we believe we have presented 3 evidence to this panel that the Private Fuel facility will 4 potentially close the door on development in that +ialley, 5 For a period of time that this applicant cannot even 6 credibly tell us or give us a maximum extension for. It 7 will clearly close it for the lifer.imes of my clients' 8 owners, lifetimes of everyone who are here. 9 At the very least my clients are entitled to an i 10 analysis of what those real impacts are done in a realistic 11 and credible manner, and that is an issue that is 12 appropriate for litigation before this panel. We think we 13 clearly have raised serious issues of fact as to what is the 14 potentially devastating impact on the future of Skull Valley () 15 from this facility. We take this contention very seriously. 16 Thank you. 17 CRAIRMAN BOLLWERK: Anything else? 18 MR. LATER: No, Your Honor. 19 CHAIRMAN BOLLWERK: All right. Mr. Blake. 20 MR, BLAKE: I take it that when he said 'this 21 contention" he meant "17" and "18" both, 22 MR. LATER: That is correct. 23 CHAIRMAN BOLLWERK: Okay, I was wondering the same 24 thing. Thank you for pointing that out. Go ahead. 25 MR. BLAKE: There's a basic problem between Mr. (s- ANN RiLEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
637 ; _h 1 Later's view of impacts and the applicant's view of impacts. 1 () 2 And it's pointed out pretty graphically with respect to 3 these contentions and even the cases that he cites. I urge 4 the Board to look at the cases that are cited here with 5 regard to impacts and which are obviously the best cases 6- that Mr. Later believed would be supportive of his position. 7 The first one he cites is the Forked River case. 8 I tried that case. Mr. Later probably didn't realize it, 9 but I did. And there were impacts there, but we're talking 10 about physical impacts. We're talking about holes in wood 11 piers and pilings downstream =of a plant, and that led to 12 economic woes of the owners of those pilings and piers with 13- holes in them. 14 We're talking here about the potential for some 15 kind of concern of people surrounding, but there are no 16 holes in wood, and there are no holes in pilings, and 17 there's nu off- site contamination. We do not -- there are 18 not those physical impacts on the property which 19 appropriately would take into account in that situation in 20 New Jersey. 21 It's not the same thing to have people potentially
'22 have a concern about it, a psychological concern. That case 23 again was a case I did at Three-Mile Island. It went to the 24 supreme court. The determination is it can't take into 25 account the potential psychological concern that a nuclear 1
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638 1 power facility might bring or even, in my view, that case's () 2 3 application here to a much more docile facility than a nuclear power plant. That's the law. 4 . You might not like it as the owner of the land or 5 representing clients that want to develop the land in the 6 future, but that's the law, and I urge the Board to apply 7 it. 8 CRAIRMAN BOLLWERK: All right, sir. I haven't 9 disappeared on you. Here I am. Anything further? 10 MR. BLAKD: No. 11 CHAIRMAN BOLLWERK: Mr. Quintana. 12 MR. QUINTANA:- Very briefly, the nuclea.r 13 f acilities that we visited in other parts of the world, 14 including the one at Oscarsham in Sweden, was located next 15 to their most plush summer resort. Some of the power plants 16 that we visited, in talking with the local residents, the 17 value of their real estate increased, not decreased. It 18 .will just depend on how this f acility is constructed and the 19 manner in which it is operated. 20 If it is operated as a world-class facility for 21 the storage of spent nuclear fuel, and the money is used by 22 the tribe to build new housing and provida health care, and 23 to improve the lives of the people, and increase their land 24 base and nreserve their language, then the value of the 25 surrounding real estate will go up. If the money is used O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 4
639 1 for dividends and just used by the members in a manner () 2 that's a detriment to themselves and to others, then I 3 suppose the value of the real estate will go down. 4 CHAIRMAN BOLLWERK: All right. Staff? 5 MS. MARCO: The staff did not oppose contention 6 17 7 CHAIRMAN BOLLWERK: All right. But you did oppose 8 18, 9 I'm sort of wondering what -- 10 MS MARCO: We did oppose 18, because it did not i 11 provide sufficient information to show a genuine dispute, as 12 is required by 2714. 13 CHAIRMAN BOLLWERK: Let me ask one question. 14 There's a statement in here about a 50-mile radius at one
) 15 point, and contention 17 is part of the basis. And I'm 16 wondering does that have any impact on what you already said 17 about cumulative impacts in terms of where those have to be?
i 18 Or the regional impacts I should say. I'm sorry. 19 MR. TURK: Do you have a page reference for that? 20 CHAIRMAN BOLLWERK: Yes, I'm sorry, page 56 and 57 21 of the contentions of Castle Rock. Is that 50-mile radius 22 for a different purpose? I just want to make sure I'm not 23 misunderstanding. 24 MS. MARCO: Can we have a minute, Your Honor? 25 CHAIRMAN BOLLWERK: Surely. () IJR4 RILEY & ASSOCIATES, LTD. 1250 I Street, N.W., Suite 300 Court Reporters Washington, D.C. 20005 (202) 842-0034
] 640 1 MR.- TURK - As we understand what the contention is () '3 2 asserting, Your Honor, it's really a merits' issue as to how l broad an area-needs to be evaluated. 4 MR. LATER: I think that's a fair reading of what l 5 we're saying there.
- 6 DR. KLINE
- Mr. Turk, 7 Moderstood you in one of j 7 your earlier statements as sort of revAsting defining an 8 arbitrary area that has to be evhluated, and instead citing
- 9. us something that said you would in a since follow the j- 10 impact. If something reached out 50 miles you'd go that I
11 far, but if it didn't you wouldn't. And is that a fair
- 12 understanding of what_you told us betore? i 13 That.is to say that if one does an assessment say l 14 of an effluent and finds that it goes one mile, that you d
() 15 _ wouldn't necessarily look for it 50 miles out. Is that i
-16 correct?
17 MR. TURK: That's true. 18 DR. KLINE: Yeah. That you would follow the i 19 impact, not set in an arbitrary radius. 20 MR. TURK: Yes. f l 21 DR. KLINE: Okay. 22 MR. TURK: And by comparison also, if there's 23 deposition into a stream of running -- fast-moving stream of . 24 ranning water that was deposited 100 miles away that would i 29 be an impact -- i 4 I
^
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641 1 DR. KLINE: Okay. () 2 3 MR. TURK: DR. KLINE:
-- which would not --
It would be just helpful -- I mean if 4 we could sort of add something concrete to the word " impact" 5 which is a kind of abstract thing that really doesn't help 6 us a whole lot. It seems like NEPA really asks us to look 7 at what's happening to air, water and land, you know, in 8 this project. And the things that happen normally are like 9 an effluent reaches out and gets deposited, or something 10 gets dissolved in water. 11 And this is -- it would be more illuminating to 12 the Board to hear what your real problem is. It isn't 13 helpful just to say, " Hey, I think there's an impact." 14 Well, like what? What's the effluent? What's the emission?
) 15 What's the hole? What is it that is the impact? So that 16 that abstract term isn't very illuminating to us.
17 And in order to evaluate a contention we need to 18 know what your problem is. Well, what's happening to air, 19 water and land as a result of this project or life thereon? 20 You know, I mean -- 21 MR. LATER: Let me respond, if I may, 22 DR. KLINE: Yeah. 23 MR. LATER: First I think the standard we are 24 operating under is one that speaks of requiring 25 consideration of present and future uses of land and water O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
642 1 within the region, and that's what we say isn't there. () 2 In terms'of immediate tangible impacts, we have 3 recited the potential contamination of groundwater, a 4 serious concern. Effluent -- that clearly'if there's 5 contamination of groundwater it will extend on our property.- 6 That's the nature of the gradient. 7 There are the concerns of traffic on that road. 8 You've seen that's a road that's used by our property. It's 9 the lifeline of our property. It's used for moving cattle 10 up and down, which means letting the cattle out on the road 11 and having them walk down so that they can move from the 12 south end of the property to the north end or wherever the 13 grazing is appropriate.
-14 We are concerned with the impacts construction
_15 activity: dust and noise. 16 We are concerned and believe that the regulation 17 property addresses the legitimate concerns the potential of 18 radiation releasen, the impact of zug accident on another 19- facility that may result in contamination of that property, 20 all of which will result in making it unsuitable for the 21 kinds of future land uses that my owners project for that 22 property as described.
.23 For example, their efforts to market their beef as 24 beef grown in a particularly range-fed market would simply 25 be blocked-by the fact that it's beef that's grown adjacent O
ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 I
643 1 to a nuclear waste storage facility. The potential of () 2 3 groundwater contamination, it ceases to be marketable. submit to you that that is a legitimate limitation and We 4 impact on the future use of that land that this Board should 5 consider. 6 Those are the kinds of impacts I think we've 7 described in enough detail that I hope the Board can get 8 your hands on -- 4 9 DR. KLINE: Okay, thank you. 10 CRAIRMAN 30LLWERK: Yes, Mr. Turk. 11 MR. TURK: I should probably just point out while 12 we're on this discussion that the standard review plan for 13 spent fuel dry storage facilities, noreg 1567, specifies at l 14 page 2-6 that current population data and projections should () 15 be presented. A sector map of population should be included i 16 in the area within an 8-kilometer 5-mile radius of the site 17 is divided into concentric circles. 18 And I'm sure there's another reference somewhere 19 too in staff guidance as to a 50-mile circle. And I don't 4 20 find that in front of me now. i 21 CHAIRMAN BOLLWERK: I understand. What you're 22 saying is both of those are staff-drawn circles and are 23 suggested guidance in terms of -- 24 MR. TURK: m sure the five-mile circle is -- as 25 I sit here I can't find the reference to the 50-mile circle. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 i
644 1 But it's really a staff guidance as to what is necessary in () 2 3 order to show compliance with the regulation. CHAIRMAN BOLLWERK: All right. 4 MR. LATER: And we think both-in contention number 5 9 as well as in these contentions that the appropriate area, 6 whatever that_ kind _of1 rule of1 thumb of the staff is, is that 7 you_look to the area where there are impacts wherever that 8 may lie. 9 MR. TURK: If I may also add -- I know I'm a 10 little bit out of turn here. Before we were talking about 11 the impacts of other facilities. On that same page of the 12 nureg 1567, page 2-6, there's a statement that locations of 13 nearby nuclear industrial, transportation and military 14 installations should be indicated on a map which would () 15 include all facilities within an eight-kilometer five-mile 16 radius, as well as facilities at greater distances as 17 appropriate to their significance. 18 CHAIRMAN BOLLWERK: All right. Anything.further 19 on that? 20 MR. LATER: I believe we'll submit it on that 21 record. 22 CHAIRMAN BOLLWERK: All right. We also have OGD 23 P. 24 Ms. Belille. 25 MS. BELILLE: Your Honor, contrary to NRC staff () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
645 1 response, OGD specifically identified those aspects of the () 2 PFS routine operations which would adversely impact the 3 ability of the members of OGD to pursue a traditional 4 Goshute lifestyle. Visual intrusion, noise, traffic, 5 presence of strangers, transportation activities, especially 6 very large, heavy haul trucks, the potential for accidents, 7 and most importantly the physical presence of a dangerous 8 waste storage facility on their ancestral home lands. 9 OGD did not challenge the specific portions of the 10 environmental report dealing with such impacts as NRC staff 11 asserts OGD should have done. The reason was the 12 environmental report completely ignores this issue. OGD 13 acknowledges that the environmental report adequately 14 addresses what are considered generally referred to as k 15 standard socio-economic impacts. And those are found in ER p 16 4.111 to 4.118, 4.25 to 4.29, 4.38 to 4.39, 7.21 to 7.24. 17 However, OGD finds no reference in the 18 environmental report to potentially adverse cultural impacts 19 generally nor any reference to adverse impacts on the 20 ability of OGD members or other members of the tribe to 21 pursue a traditional Goshute lifestyle, i 22 Contrary to NRC staff assertion that OGD provided 23 no basis to support this contention, CGD submitted 24 affidavits signed by four members of the Skull Valley 25 Goshute Tribe, all of whom reside on the reservation within ANN RILEY & ASSOCIATES, LTD. O- Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
646 j 1 two to three miles of the proposed PFS site, all of whom () 2 3 testified to their concerns about potential adverse impacts on their ability to pursue a traditional lifestyle. See 4 Exhibits 16, 17, 18 and 19. 5 Since these affidavits are part of the record in 6 this proceeding they need not be cited extensively today in 7 oral argument. These affidavits document tribal members' 8 concerns ranging from specific issues such as adverse 9 impacts on traditional activities such as plant gathering, 10 to a generalized fear that the land of their ancestors will j 11 not be the land of their tribe's children's children because 12 of the nuclear waste that will be brought upon the land and 13 made forever tainted. 14 The OGD affidavits also refute NRC staff assertion
) 15 that OGD has failed to show that a genuine dispute exists
! 16 with the applicants. PFS' environmental report identifies 17 no significant adverse impact on tribal members in contrast 18 to potentially great economic benefits. Those are found in 19 the environmental report 7.23 to 7.24. 20 The affidavits show that some members of the tribe 21 oppose the PFS project in spite of its promised economic 22 benefits, because of safety concerns, because of potentially 23 adverse impacts on traditional Goshute lifestyles, and 24 because of potentially adverse impacts on the reservation 25 itself, ( ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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647 1 Finally, OGD challenges the NRC staff's assertion () 2 that issues such as community or individual loss or sense of 3 well being are improper for consideration in NRC proceedings 4 under NEPA. 5 When the NRC dockets an application for a facility i 6 such as the site on an Indian reservation, the Native : 7 American people affected by the agency's actions have a 8 right to expect consideration of cultural impacts. The fact 9 that members of the Skull Valley Goshute Tribe are divided 10 over the proposed facility does not excuse the NRC from 11 consideration of cultural itopacts in the licensing process. 12 Thank you. 13 CHAIRMAN BOLLWERK: All right. Mr. Blake or Mr. 14 Silberg. 15 MR. SILBERG: We would rest on our written 16 submissions. i 17 CHAIRMAN BOLLWERK: All right. Mr. Quintana. 18 MR. QUINTANA: We agree with OGD that there is a 19 division within the band on whether or not this facility 20 should be built. 21 We disagree that from a scientific standpoint that 22 there would be any radiological danger or other dangers to 23 the band members. 24 The building of any facility on the reservation is 25 going to have an impact on this small reservation. The
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648 1 building of the rocket test facility had an impact. The () 2 3 building of the tribal store. If the proposed reservoir is built that will have an impact. The current sheep 4 investigation on the sheet burial site is obviously having 5 an impact. 6 All of these things will have an impact but we 7 disagree that it's going to disrupt the culture or adversely 8 affect the band. 9 CRAIRMAN BOLLWERK: All right, sir. Staff? . 10 MR. TURK: We'll rest on our written submission. 11 And I would simply note that where there is a perceived 12 impact upon Native American historic sites or religious 13 practices or a gathering, that would be-an impact to 14 consider. The only thing mentioned in this contention is () 15 that there is a fear that those activities would be 16 impacted. 17 We do require consideration of environmental 18 effects, such as radiation, effluent will affect on the 19 nearby area, transportation impacts which Ms. Belille 20 discussed, the noise impacts. All of those things are the 21 proper subject for the environmental report and the 22 environmental impact statement. But this other broader
.23 concern is really one of psychological well being and 24 psychslogical impact, and that is improper for consideration 25 in our proceedings.
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i 649 4 1 CHAIRMAN BOLLWERK: All right, sir. ) Any response 2- from OGD? 1 t 3 MR. KENNEDY: Your Honor, during this hiatus might 4 I just mention while the staff might think that
- 5- psychological impacts are not worthy to be considered, they 6 certainly are a reality. And if you think that grandmothers 7 are going to bring their children to play on the reservation l
8 in a neighborhood of a nuclear storage facility such as 9 this, you're wrong. And if you think that people are going i 1 l 10 to want to bury their dead in an area like this, you're !
- - 11 wrong.
12 There clearly is an impact. 4 13 And if this process that we're going through i i 14 doesn't take that into account, then the process is faulted, 15 and somehow that needs to be considered and evaluated. i 16 MR. TURK: j- Our-response at page 99 then, I believe 17 this is referred to by the applicant as well, cites a j 4
! 18 Supreme Court decision, Metropolitan Edison Company v.
4 19 People against Nuclear Energy. The citation was given in our 20 paper at page 99. I 21 It has been held at the level of the Supreme Court i l 22- that the assertions of= psychological impact are not matters 23 which raise concrete and lit. gable issues, and therefore are i [ 24 improper for consideration in NRC proceedings. It's on that ; 25- -basis that we oppose the admission of'that kind of an issue. 1 i 2 () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 t Washington, D.C. 20005 (202). 842-0034 , i.
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650 j 1 MR. KENNEDY: I'm not disagreeing with your () 2 interpretation of the law necessarily. I'm just saying if 3 that's what the law in, it's seriously flawed in this 4 4 regard. 5 CHAIRMAN BOLLWERK: All right. 6 MS. BELILLE: Your Honor, I have one more comment. 7 CHAIRMAN BOLLWERK: Go ahead. 8 MS. BELILLE: I just want to stress that the affidavits that were cited as evidence in this contention 4 9 l 10 cites specific concrete activity that the tribal members l 11 believe is going to be impacted, the impact that it's going
- 12 to have on them. And we would like to call to the attention l 13 of the staff that there is a specific allegation that plant 14 gathering is going to be one of those impacts.
() 15 DR. LAM: Mr. Turk, to go back to what you were
- 16 saying, are you saying that the NEPA impact on culture and 17 lifestyle are appropriate?
18 MR. TURK: Impacts upon aesthetic effects have 19 been looked at. Impacts upon food gathering to the extent 20 that there may be contamination of toods, thac would be , 21 looked at in the environmental report. But not a matter 22 such as a perception that this plant somehow presents 4 23 members to be afraid, presents concerns whlch people are 24 afraid of. That is not looked at. 25 CHAIRMAN BOLLWERK: Anything further on this? f
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651 1 MS. BELILLE: Yes. Your Honor, the only other () 2 3 thing that we would add is that the affidavits would bring to the attention of the Board that perceived risk that 4 others may have on the -- of the famility would be an impact 5 on the members of the Goshute Tribe. 6 CHAIRMAN BOLLWERK: All right. 7 MR. QUINTANA: Very briefly, I do need to bring to 8 the Board's attention that in the first phase of the 9 nerve-gas contaminated sheep case the sheep were actually 10 found, and it was determined that it was nerve agent DX that 11 killed the sheep. 12 In the second phase which we're going to undertake 13 this year, the plan is to do an environmental analysis of 14 all of the plants and anim71s and everything that exists on () 15 the reservation to determine whether there has been any 16 other effects from the nerve and biological releases from 17 Dugway Proving Grounds, and that is in phase two. 18 But based upon the scientific research and our 19 review of the scientific literature that exists out there. 20 there is at least to the best of the knowledge of the Tribal 21 Executive Committee no scientific basis for believing that 22 there would be a radiological impact or releases from this 23 storage facility. 24 CHAIRMAN BOLLWERK: All right, sir. Anything else 25 you want to say, Ms. Belille? ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
652 1 MS. BELILLE: No, Your Honor. () ~2 CHAIRMAN BOLLWERK: All right. Let's then look 3 next at Utah contention X, need for the facility. And I 4 don't think I found one that was -- although some of the 5 other contentions were in the same area, this one seemed to 6 be the one-that presented this question most directly,-so -- 7- MS. CRANCELLOR: The applicant addresses this on 8 ER -- 9 MR. SILBERG: Excuse me. Could you just -- 10 MS. CHANCELLOR: Oh, sorry. 11 CHAIRMAN BOLLWERK: Switch books hera. Now the 12 paper. 13 MS. CHANCELLOR: I was going to give Mr. Blake 14 credit. but I guess it's Mr. Silberg. 15 The ER addresses the need for the facility on ERP 16 -- it starts on page 1,2 1. However, all of the discussion 17 deals with what are the pros of signing this facility, such 18 as the economic advantage to the utility companies, the 19 ability to decommission. 20- Under 51.45 (e) , there's a requirement that the 21 adverse -- that all adverse information be presented. And 22 we believe this has not been done. For example, there's no 23 discussion of why dry r,torage should not take place at the 24 reactor as opposed to the environmental consequences of 25 transporting this-fuel halfway across the country. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005
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653 1 If part of the reason for the need for this () 2 facility is so that nuclear power plants can decommission, 3 there should be a discussion of what's going to happen to 4 the spent nuclear-fuel that leaks that needs to be sent back 5 to the originating reactor. 6 This gets to some of our other contentions, but 7- also in terms of need for the facility, that is PFS' 8 primarily plan for dealing with leaking and contamination 9 casks. And there's no discussion of that in the need for 10 the facility. I think we need to step back and remember what we 11 12 discussed on day one. That is, this should be a national
-13 decision. This is something that we believe is not 14 authorized by statute. And that this national decision
!() 15 should be a decision that's made by Congress, 16 I believe -- 4 17 DR. LAM: Ms. Chancellor, do you want this Board 18- to tell Congress what to do? 19 MS, CHANCELLOR: No , I want Congress to tell this 20 Board what to do. 21 I think I'll rest on that. 22 CHAIRMAN BOLLWERK: All right. Anything from the 23 applicant? 24 MR. SILBERG: First let me make a few brief 25' comments with respect to the State's written response to O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
654 1 this. () 2 First, the State says that we made an unsupported 3 assertion that there's a need. Well, the environmental 4 report Section 1.2 provides that support. 5 Second, the State cites on the bottom of page 89 6 that HEPA requires an affirmative description and 7- demonstration of need, not an unsupported assertion. And it 8 cites CQ regulation Section 1502.10. 1502.10 describes the 9 standard format for an EIS. It says nothing about the need 10 for an affirmative description and demonstration of need. I 11 don't know if that's a typographical error or I'm unaware of 12 any CQ regulation that makes such a statement. 13 I would note that CQ regulation Section 1502.13 14 says that the EIS shall briefly, their words, specify the 15 underlying purpose and need. Well, all that one must do to 16 meet the CQ regulation, not the one that they cited by a 17 different one, is to make a brief description of the purpose 18 and need, and we have certainly done that. 19 I'd also note on page 90 their reference to their 23 Exhibit 9 which is an excerpt from a Northern States Power 21 home page which they say has now been deleted so it doesn't 22 exist electronically, but they have captured it forever and 23 ever on paper. 24 They say that the representations in that home 25 page support the State's contention that need is not ANN RILEY & ASSOCIATES; LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
I 655 1 accurately discussed. Tha. paper which I think they also () 2 included in their original contention, indicates that the 3 existing Prairie Island dry-storage facility is physically 4 big enough to take a lot more fuel than is stored there now. 5 -That's not the question. That's not the issue in terms of 6 their ability to store fuel, at least at that plant.
! 7 The questions there deal with limitations that are 8 imposed by state legislation and state regulatory 4
9 restrictions. 10 With respect to the concept that the need analysis i 11 has to consider sending leaking fuel back to a reactor, and i 1 12 therefore we can't consider decommissioning as part of the ' l l i 13 need, we have discussed in our application other 1 14 alternatives in the event that there's leaking fuel. That () 15 is not the only alternative. 16 And the idea that there's a constant stream of
- 17= leaking fuel that's going to be heading back to keep j 1E reactors from ever shutting down I think is another
-19 unsupported what if from the State.
20 And' finally with resect to the argument that there j 21 -- should be a national decision to go forward with this 22 project and that we should put to Congress, that simply has i i =23 no relevance whatsoever to this contention. And I think 24 we've covered that amply in previous days. 25 That's all. i 1
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655 1 accurately discussed. That paper which I think they also ( 2 included in their original contention, indicatec that the 3 existing Prairie Island dry-storage facility is physically 4 big enough to take a lot more fuel than is stored there now. 5 That's not the question. That's not the issue in terms of 6 their ability to store fuel, at least at that plant. 7 The questions there deal with limitations that are 8 imposed by state legislation and state regulatory 9 restrictions. 10 With respect to the concept that the need analysis 11 has to consider sending leaking fuel back to a reactor, and \, 12 therefore we can't consider decommissioning as part of the 13 need, we have discussed in our application other 14 alternatives in the event that there's leaking fuel. That () L15 is not the only alternative. 16 And the idea that there's a constant stream of 17- leaking fuel that's going to be heading back to keep 18 reactors from ever shutting down I think is another 19 unsupported what if from the State. 20 And finally with resect to the argument that there 21 should be-a; national decision to go forward with this
- n ._ \
22- project and that we should put to Congress, tnat simply has 23 -no relevance whatsoever to this contention. And I think 24 we've covered thht amply in previous days. 25 That's all. N.v. O ANN RILEY & ASSOCIATES, LTD. Court Reporterd;y 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 i
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655 1 accurately discussed. That paper which I think they also " 2 included in their original contention, indicates that the 3 existing Prairie Island dry-storage facility is physically j 4 big enough to take a lot more fuel than is stored there now. 5 That's not the question. - That's not the issue in terms of ! 6 their ability to store fuel, at least at that plant. 7 The questions there deal with limitations that are 8 imposed by state legislation and state regulatory , 9 restrictions. , 10 With respect to the concept that the need analysis 11 has to consider sending leaking fuel back to a reactor, and \ 12 therefore we can't consider decommissioning as part of-the l 13 need, we have discussed in our application other 14 alternatives in the event that there's leaking fuel. That 15 is not the only alternative. 16' And the idea that there's a constant stream of 17 leaking fuel that's going to be heading back to keep ' 18 reactors from ever shutting down I think is another 19 unsupported what if from the State. 20 And finally with resect to the argument that there 21 should be a, national decision to go forward with this g, ; 22 project and that we should put to Congress, that simply has : 23 no relevance whatsoever to this contention. And I think 24 ,we've covered that amply in previous days. 25 That's all. O ANN RILEY & ASSOCIAT(S, LTD. Cou* Reporter &, 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 ( s
656 1 CHAIRMAN BOLLWERY, All right. Mr. Quintana. () 2 MR. QUINTANA: Well, very briefly, the fact that 3 Congress has not properly acted with this issue, and because 4 it's been politicized is why we don't have centralized 5- storage at Oakridge, Tennessee or in-some other place. 6 The previous program known as the MRS Program, was 7 killed after the_Goshutes agreed with the federal government 8 to build the facility. This facility could literally be 9 built anywhere. It could literally be built just right next 10 to Washington D.C., and there would be no physical danger to 11 anyone. But because it's been politicized it has not been, 12 and it's forced the utility companies to seek other 13 alternatives, 14 And since the utility companies to the tribe, the () 15 tribe didn't go to the utility companies, and the tribe had 16 previously studied the issue, the tribe voted on it and felt 17 that it was warranted. 18 This contention that the State brings does not 19 have a basis in fact. There's no expert opinion supporting 20 it, and therefore-we would ob 3 ect to it. 21 CHAIRMAN BOLLWERK: All right, sir. Staff? 22 MS. MARCO: The staff opposes Utah contention X. 23 We're going to rest on our pleading, 24 CHAIRMAN BOLLWERK: All right. Ms. Chancellor. 25 MS. CHANCELLOR: Just a couple of things. O~ ANN ~RILEY &_ ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
657 1 The CEO regulation cite, it does -- 150210 is the , () 2 3 table of contents that's required for an environmental, EIS. an 4 And then later on Mr. Silberg is correct. 150213 discusses 5 need of the facility. 6 With respect to the Northern States Power home 7 page, we don't kn6w if it was our pleadings or what that 8 prompted them to change their home page, but at the time we 9 looked at the Internet site it did say that they had 10 adequate space, on-site storage space to store the 11 containers, all the storage space that the plant will need, e L 12 I think this points out with the way you should 13 site Internet home pages. I guess we should have put the 14 date and the time or something to that effect. But at the
) 15 time we looked at it that was certainly a legitimate 16 citation to what was actually there on that home page.
17 I think I would just like to stress that NEPA 18 requires that we look at the need for the facility, and this 19 facility is going to be a national facility. So under NEPA 20 ve would assert that the national need for this facility = 21 must be evaluated in the environmental report. 22 CHAIRMAN BOLLWERK: All right. 23 MS. CHANCELLOR: That's all I have. 24 CHAIRMAN BOLLWERK: Anything further? 25 MS. CHANCELLOR: No. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 _ _ _ _ i
658 1 CHAIRMAN BOLLWERK: All right. Next contention () 2 3 then is contention Z which is the no-action alternative. And I notice on my sheet, Mr. Later, I've listed Castle Rock 4 13 number both no-action alternative and site selection 5 alternative. So I'll give you the choice. You can argue 6 wherever you'd like to. 7 MR. LATER: I thought you'd adopted the two 8 bite-of- the-apple rule there. 9 CHAIRMAN BOLLWERK: That was just -- 10 MR. LATER: I can argue it under either one. 11 Perhaps since ours is cumulative it would appropriately come 12 after State AA since it appears that both of those are 13 concentions dealing with alternatives consideration. 14 CHAIRMAN BOLLWERK: Okay. Then for purposes of
)
15 the order, we'll deal with Utah Z, OGD 0 or 0, excuse me, 16 sed Confederated Tribes D. Utah Z, please. 17 MR. NELSON: Utah Z, the contention is is that the 18 environmental report does not meet the requirements of 19 adequately discussing a no-action alternative. 4 20 There is no specific _ mention of no-action l 21 alternative in the NRC rules. i 22 The CEQ rules are specific in that regard at 40 C.F.R. 23 1502.14, sub-paragraph 2. Again those rules are expected by 24 the agency to be -- that the rules that they adopt should 25 comply with those CEQ regulations. And we believe that the 4 O' - ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 4
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659 1 reference to the Nuclear Regulatory Commission rules () 2 requiring a discussion of alternative also requires a no-3 action alternative be discussed. 4 We cited a number of cases. The applicant attacks 5 those cases on the basis that in those cases a no-build 6 alternative was not even considered. And we have cited to 7' Section 8.1.2 of the environmental report that purports to 8 be a discussion of the no-build alternative. 9 And if you look at that section and you eliminate 10 pages, it endo up being -- if you eliminate the introduction 11 and the summary paragraph it ends up being four double-12 spaced paragraphs which we have specifically commented on, 13 we do not believe to be adequate. 14 The applicant then says, "Go read chapters _four, () .5 five and seven and-ipso facto you will find the answer to 16 your questions." We don't believe that that's met by -- 17 that NEPA's purpose is met by that, that it requires a 18 specific discussion in the environmental impact statement. , 19 And on that basis we feel it's deficient. 20 I would add one comment or two comments. And that 21 is, Judge Kline has discussed the question of adequacy. And 22 in this particular case th.s points out the issue of 23 adequacy as well as we can perhaps define it. And that is 24 if nothing was said, if there was no paragraph 1.8.1.2 we 25 would say that it hasn't been considered. () _ _ _ _ _ _ . . ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
660 1 By simply putting a few sentences in, we believe () 2 that that is also not adequate. You can't just add a few 3 centences and then call that adequate. There is a line 4 demarcation that you have to look at. S And we would refer the Board to specifically 6 looking at that section. Look at the specific issues that 7 have been raised by the State, and it will be obvious that a 8 good faith effort has not been made -- or probably a good 9 faith effort was made. An adequate discussion has not been 10 mada on the no-build alternative. 11 Finally, in two places in applicant's responses on 12 page-13 and page 17 of the reply, the applicant cites some 13 cases and some langu6ge which seems to infer that because 14 they are a private facility and asking for a license, that 4 () 15 somehow that diminishes the standard or the requirements 16 under NEPA. 17 And the case law is clear that the license that is being 18 considered is no different than if this were a government 19 action constructing this facility for purposes of NEPA. 20 That's all I have. 21 CHAIRMAN BOLLWERK: All right. Mr. Silberg. I 22 don't want to put the burden on you if it's not your burden. 23 MR. SILBERG: No. It's our burden. We would ask 24 that the Board read the material that we've cited. I 25 suspect that no matter how many pages we wrote on the ANN RILEY & ASSOCIATES, LTD. ) Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 I __m._ _
l 661 1 no-build alternative that the State would say it is () 2 inadequate. 3 their descriptions of inadequacy we think don't meet the 4 tests for inadequate contention as we've spelled out. 5 The cases that we have cited are the most recent ? 6 cases on point with respect to an agency's entitlement to 7 , credit the choices that a licensed applicant or a private 8 applicant has made. I believe it's in a later ccntention 9 that the State has set forth some earlier cases which they 10 claim would undermine the authority of the cases that we've 11 relied on. Their cases date back 20 years or more. And 12 contrary to the NRC's analyses of transportation which have 13 not been superseded by subsequent NRC analyses, their cases 14 in fact have been superseded by subsequent U.S. Court of () 15 Appeals' cases. 16 That's all I have to say on this. 17 CHAIRMAN BOLLWERK: All right. Mr. Quintana. 18 MR. QUINTANA: No comment. 19 CHAIRMAN BOLLWERK: Staff? 20 MS. MARCO: Your Honor, staff did not oppose this 21 contention. i . 22 CHAIRMAN BOLLWE7K: All right. Anything further 23 that the State would like to say? 24 MR. NELSON: Just one comment in response to the 25 outdatedness of the State's cases that are cited. I would ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
662 + 1 refer the Board to page 170. The Tenakee case is a 1990 ) 2 Ninth Circuit case. Bob Marshall case is 1988 Ninth Circuit 3 case. The Van Abbema case is a 1986 Circuit case. Those 4 are not 20-year-old cases, and we believe they're good law. 5 CHAIRMAN BOLLWERK: All right. 6 MR. SILBERG: Excuse me. If I might. Those I 7 believe are cases in which there was no discussion of the 8 no-build alternative. We're not facing that issue here. 9 MR. NELSON: We take issue on that. We believe 10 that in one of those cases specifically there was the 11 failure to discuss the no build. 12 DR. LAM: I would like to hear 1 rom Mr. Nelson. 13 The applicant had demonstrated if. Okay, that's a big if, 14 there's a genuine need for a facility where would that put 15 these no-action alternative contentions? 16 MR. NELSON: The demonstration of need does not 17 eliminate the requirement that you consider the no-action 18 alterna..ve. NEPA requires that the decision maker be 19 presented with options in order to make a decision. And 20 clearly one of those actious that has to be considered is no 21 action, and in the environmental impact it should be c 22 considered. 23 MR. SILBERG: My comment on that, Judge Lam, to a 24 great degree the need issue under no-action analysis are 25 mirror images. What happens in the event of a no action in ll ANT ~ILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
663 1 large part was avoiding the need addressed. () 2 DR. KLINE: More clearly, I think isn't 't the 3 case that in past NRC practice, in any event, one considers 4 the no-action alternative, and that the applicant may use 5 the need analysis as a kind of defense against an assertion 6 that he should take no action. In other words, an answer to 7 the nc-action alternative is, "Yes, but we need the 8 facility." MR. SILBERG: Yes, that's correct. ;r 9 DR. KLINE: Isn't that correct? They are mirror 10 imagas in that case, yeah. 11 MR. SILBERG: Doing a cost benefit of the 12 no-action alternative, the cost of taking no action is what 13 you -- 14 DR. KLINE: Yeah, yeah. I mean in reactor cases, 15 for example the Appeal Board once ruled that in the question 16 of whether one should consider no action in building a 17 reactor, a demonstration of need for power was an adequate 18 answer to that question. So that you needn't consider the 19 no-action alternative beyond that assuming that the 20 demonstration was adequate. 21 MR. SILBERG: Correct. 22 DR. KLINE: But in that light I was Nondering 23 given that these are sort of mirror images of ane another, 24 why the staff accepts this one and rejects the previous one. 25 M3. MARCO: It really came down to whether we felt ANN RILEY & ASSOCIATES, LTD. O Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
664 1 that the -- () 2 CHAIRMAN BOLLWERK: Just let me clarify. When you 3 said a " previous one" you mean X which was the need for the 4 facility. 5 DR. KLINE: The need, yes. 6 CHAIRMAN BOLLWERK: .Which is actually two 7 contentions back, but -- 8 DR. KLINE: Yeah, right, okay. 9 MS. MARCO: Whether the requirements of 2714 were 10 met, and we believe they were. 11 MR. TURK: We should also add thou9h that the 12 environmental report does consider the no-build alternative 13 glancing at page 8.1-2 and going up to 8.1-4. So we don't 14 agree with the assertion that there is no discussion of 15 that. We just saw this as a merits' issue as to whether 16 that discussion was sufficient. 17 DR. KLINE: Right, yeah, I understand that, 18 uh-huh. 19 CHAIRMAN BOLLWERK: Anything further on this one? 20 All right. Then we have OGD 0 -- I'm sorry -- OGD 21 O. 22 Excuse me, not zero, O, the letter O. 23 MS. BELILLE: Your Honor, OGD did not perform a 24 complete benefit cost analysis of the no-action alternative, 25 because thia is the applicant's responsibility, not the , ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 i 1 1
665 1 responsibility of OGD or other petitioners. 2 Applicant's response to OGD contention O found on h 3 page 601 and 605 raises several issues to which we will 4 respond regarding comparative environmental impacts. The 5 applicant's analysis in the environmental report Section 6 8.1.2 only addresses the cost of the no-build alternative. 7 Assuming that the Department of Energy meets its 8 responsibility v' ,er the Nuclear Waste Policy Amendment Act j 9 to accept spent fuel at a repository currently scheduled for 10 the year 2010, as applicant should have assumed in its 11 analysis, applicant failed to address potential benefits of 12 storing spent fuel on site until opening of the repository. 13 OGD outlines only a few of the transportation 14 benefits which applicant should have addressed. 15 One, under the no-build alternative spent fuel 16 would only need to be handled for transit and -- 17 MR. SILBERG: Excuse me. I hate to interrupt. 18 I'm a little confused. OGD contention O is environmental 19 justice. 20 CHAIRMAN BOLLWERK: It is, but there's also -- a 21 significant portion of it I think goes into this question as 22 well. 23 MR. HALSTEAD: Your 601, 605. 24 CHAIRMAN BOLLWERK: Right. 25 MR. SILBERC: Oh , so you broke it down to respond ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
666 1 then. () 2 MS. BELILLE: Yeah. 3 CHAIRMAN BOLLWERK: Right. And I should have made 4 that clear, and that's my fault. Why don't you or ahead and 5 discuss what you're discussing now. We'll come back to the 6 enviroamental justice portion of it when you get to that. 7 MS. BELILLE: Okay, all right. 8 CHAIRMAN BOLLWERK: I think though the Castle Rock 9 ones are close enough to this general subject that you can 10 pick your choice in terms of which one you want to discuss 11 it in. 12 I'm sorry. That was my fault. Go ahead, Ms. Belille. 13 MS. BELILLE: All right. OGD outlinas only a few 14 of the transportation benefits which applicant should have 15 addressed. 16 One, under the no-build alternative spent fuel 17 would only need to be handled for transport and transported 18 once directly from current storage locations to the 19 repository reducing costs and risks. 20 Two, under the no-build alternative U.S. DOE is 21 financially responsible for all costs of transportation to 22 the repository from the utility storage sites. 23 And three, under the no-build alternative spent 24 fuel would be aged an additional 8 to 12 years on average 25 before off-site shipment allowing for a considerable f ANN RILEY & ASSOCIATES, LTD. N Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
l I l 667 1 additional decay in the spent fuel fission products which () 2 3 are a major driver of re.diological risk. An 8-to-12-year-delay in shipment would therefore reduce the routine 4 radiological exposures resulting from shipment, and also 5 reduce the expected radiologica consequences in an accident 6 or transit incident resulting in loss of cask shielding or a 7 release of radioactive material. 8 That would be all that we have su that. 9 CHAIRMAN BOLLWERK: All right. Any response from 10 the applicant if I haven't 'otally confused you? 11 MR, SIi JRG: 2'm confused only partially. 12 For the most part we rest on our response. I 13 would note that the so called benefits of increased on-site 14 storage have not been quantified. I don't believe that OGD 15 has made any showing that the increased decay will cause any 16 significant diminution in normal exposure to transportation 17 or indeed accident of exposure should they occur during 18 transportation. 19 In any event, all these issues are we believe 20 bounded by to pay less for regulation, and we I think 21 discussed that. 22 CHAIRMAN POLLWERK: All right. Mr. Quintana. 23 MR. QUINTANA: No comment. 24 CHAIRMAN BOLLWERK: Staff? 25 MR. TURK: We'll rest on our pleading, Your Honor. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
f 668 1 Essentially we did not oppose the contention except as
\_
2 stated in our response to the_ psychological fears impacts as 3 not having been supported with sufficient basis. 4 CHAIRMAN BOLLWERK: All right. And anything 5 further, Ms. Belille? 6 MS. BELI!LE: We would just add that we were 7 simply responding to the assertion that we should have dole 8 a complete cost benefit analysis. 9 MR. TURK: I would like to note one thing, Your 10 Honor. 11 That is, the contention does try to bring in a lot of 12 different issues under the panoply or under the protective 13 cover of environmental justice label. 14 CHAIRMAN BOLLWERK: Yes.
) 15 MR. TURK: We point out on page 97 of our paper 16 that a lot of these issues do not seem to be related to 17 environmental justice. So we don't see how those can be 18 litiga* ' as part of this contention.
19 CHAIRMAN BOLLWERK: Well, that in fact you 20 emphasize a point which I made by giving them a separate 21 argument on both. And it may well be that if that were to 22 come in we'd have to do some rearranging of that to make the 23 title at least reflect exactly what was involved. 24- All right. You understand the distinction he's 25 making. () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
f 669 1 MS. BELILLE: Yes, I do. () 2 CHAIRMAN BOLLWERK: I mean you've combined several 3 things. That's something the Board may well have to take 4 care of in terms of if we were to admit the contention. All 5 right. 6 MS. BELILLE: Yes, I understand that. 7 CHAIRMAN BOLLWERK: All right. Then we have 8 Confederated Tribes D. 9 MR. QUINTANA: Your Honor? 10 CHAIRMAN BOLLWERK: Yes. 11 MR. QUINTANA: On the environmental justice issue, 12 were you planning on covering the separate portion of the 13 environmental justice, so my understanding on this is 14 correct, the argument that this was environmental racism f% ( ,) 15 separately from the cost benefit? 16 CHAIRMAN BOLLWERK: Yes, that's correct; that's 17 correct. 18 MR. QUINTANA: Okay, thank you, Your Honor. 19 CHAIRMAN BOLLWERK: We'll get to that in a while 20 anyway. 21 Confederated Tribe D. 22 MR. TURK: May I ask a question on that last 23 comment? 24 CHAIRMAN BOLLWERK: Sure. 25 MR. TURK: My understanding of how environmental () ANN RILEY & ASSOCIATES, LTD. Court Reporters , 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
670 1 justice issues are to be addressed is they are considered as
-( ) 2. part of the NEPA cost-benefit balancing. So it's not wholly 3 apart from that, but it's just one of the factors that's 4 considered.
5 CHAIRMAN BOLLWERK: We're talking about labeling 6 here I think, unless I'm -- given the way.that these are
-7 divided out, I mean there's different ways to put these 8 under different headings. If the time comes and there' a 9 question about the way the Board labels them or has to 10 divide this up, if the parties have a problem with it let us 11 know about it and we'll sort it out at that point. That's 12 assuming that we do admit any portion of the contention.
13 MR. SILBT . I would-assume that the ' 14 sub-contentions that we juet discussed are not truly () -15 environmental justice contentions, but rather generic l 16 general 1 cross-benefit issues. 17 CHAIRMAN BOLLWERK: That's correct. 18 MR. KENNEDY: The staff'has not objected to the 19 State's contention or to most of OGD's contention regarding 20 this matter. We believe our statement is virtually the same 21 as the others. 22- And with respect to the specific points that the 23 State and OGD have made, without repeating those specific 4 24 points here and just prolonging the record, we would concur 25 with what they have said. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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671 1- With respect to this matter, either the applicant () '2 has adequately discussed this no-action alternative or not. 3 "We think that the Board certainly can review the statement 4 and make that< determination. 5- Concerning Judge Kline's comment that a mere 6 description of need supplants the necessity of showing all 7 . aspects of the no-action alternative, if that's what the 8 judge said I think we would respectfully disagree with that. 9 We think that there is more that needs to be done merely
- 10 f-a stating the need. An analysis needs.to-be made of what 11 wuuld happen if nothing was done, and that goes a lot 12 farther than we think or further than the statement of need. I 13 That's all I have.
14' CHAIRMAN BOLLWERK: All right. Anything from the
) 15- applicant?
16 MR. SILBERG: Yes. And I guess this may be a 11 7 little repetitive. But if you look at the entire contention 18 of Confederated Tribes you will see zero basis. -You will
-19 see zero specificity. You will see zero' reference to the 20 application, the environmental report er any other document.
21 This contention, if it were standing on its own, 22 would clearly not come close to meeting the requirements of 23 2 714. 24 And I think what Confederated Tribes' counsel was - 25 saying is that you should look at the basis and the ' O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
672 1 contentions of all the other parties and let me adopt them () 2 by reference. Well, at some point, Your Honor, I believe 3 that if you adopt that approach you wipe out the requirement 4 that each party submit at least one adequate contention to 5 be entitled to participate in this proceeding. 6 And clearly with respect to this contention, and I 8 7 think as we've said with respect to the other contentions, 8 this contention does not meet the grade, and Confederated ( 9 Tribes cannot bootstrap their way into an acceptable 10 contention by seeking to borrow the work that the other 11 petitioners have done. 12 CHAIRMAN BOLLWERK: Nothing further? Mr. 13 Quintana. 14 MR. QUINTANA: I have no comment on the Goshutes' x ,,/ 15 contentions. 16 CHAIRMAN B:'LLWERK: Staff? 17 MS. MARCO: Stati opposes as set forth in our 18 pleading. 19 C?' -CRMAN BOLLWERK: All right. Mr. Kennedy. 20 MR. TURK: May I -- 21 CHAIRMAN BOLLWERK: Oh, sorry, Mr. Turk. 22 MR. TURKi The whole of the contention is a 23 paragraph, the contention and the basis. There's maybe 24 eight lines to the whole thing. And we oppose it for lack 25 of basis. ANN RILEY & ASSOCIATES, LTD. [\-) Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 I 1
673 1 In particular,.the basis says that-there is no () 2 discussicn of the no-action alternative. And as we point 3' out-in our response, in fact that does appear in.the c 4 environmental report. And this is something that we 5 discussed also with respect to the State's contention where 6 we said we find-something in-the environmental report on no 7 action, and we read this as a challenge to the adequacy of 8 that statement which was a merits' determination. This 9- contention by contrast says that there's nothing in the ER, 10 That's simply wrong as a matter of fact.
-11 Also, with respect to Mr. Silberg's comment on the 112 necessity for each intervenor to have one admissible 13 contention at a minimum, that is a standing requirement in 14 order for an intervenor to be admitted. In the event that 15 the Board upon reviewing all of the contentions of the 16 Confederated Tribes determines that none of their 17 contentions are_ admissible by themselves, then that should 18 lead to a determination to exclude the Confederated Tribes i 19 from participation as an-intervenor.
20 I would note that there's one case that seems to 21- .go against that principle. That's the Sequoia = Fuels case in 22 which-Ms. Curran was an advocate. That case stands contrary 23 to every existing cat' in Commission practice. There was a 24 requirement first for the intervenor to have an admissible ( 25 contention. After that perhaps there would be other [ \ ANN RILEY & ASSOCIATES, LTD.
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674 1- intervenora' contentions as a co-sponsor, but first'they () 2 have to show a contention on their own. 3 CHAIRMAN BOLLWERK: All right. Sequoia Fuels is 4 an enforcement case though; is that correct? Are we talking 5- about the same case? 6 MR. TURK: Yes. 7 CHAIRMAN BOLLWERK: I think I had something to do 8 with that. I think-I know about that one. 9 MR. TURK: Was that your case? 10 CHAIRMAN BOLLWERK: I believe it was, yes. 11 MR. TURK: I need to see a transcript. 11 2 MR. SILBERG: Your Honor would know better than me 13 what factors there were. 14 CHAIRMAN BOLLWERK: Nobody needs a dissertation on 15 that case at this point. So okay. 16 Mr. Kennedy, anything further you want to say? 17 MR. KENNEDY: Well, just a couple comments. First 18 of_all, I didn't realize the sun was that bright that we 19 would have sun burned faces like we have here already. 20 But the well-reasoned Sequoia case needs to be 21 kept -- 2 2 =- CHAIRMAN BOLLWERK: That may or may not help you, 23- sir. 24 MR. KENNEDY: I think Mr. Nelson put it aptly when 25 he said earlier that when you have an inadequate response () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 i
675 1 there's not a lot that you can say about the basis. We () 2 3 think that our caption or description of our contention is inadequate discussion of r -action alternative. And we 4 state that they have failed to satisfy the NEPA requirement 5 becaure they do not adequately discuss the alternatives. 6 And as I said before, I think that's a very simple 7 decision for this Board to make by just looking at it. And 8 as I think Mr. Nelson indicated, if they said nothing at all 9 what would you say? 10 So beyond that I think I'd just point out that we 11 do have at least one contention that comes to mind that the 12 staff hasn't objected to, and that involved the wild fire 13 issue. So I don't know that everything turns on this 14 particular issue. But we do feel that it's adequately () 15 stated, and we would submit it. 16 CHAIRMAN BOLLWERK: All right. Let'r see. We're 17 at the end of the alphabet but not at the end of the 18 contentions. Utah AA, how much do you think you have to say 19 on that subject? 20 MR. NELSON: Not a lot. 21 CHAIRMAN BOLLWERK: All right. Wh, t we go 22 ahead and try to do that one and Castle Rock 13. Then we'll 23 take a break. 24 MR. NELSON: Utth contention AA is related to 25 contention Y. The NEPA requirement in this case is a b \'- ANN RILEY & ASSC _'IATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 841-0034
676 1 requirement that is listed in two different places in the ( 2 act which emphasizes the importance. It requires that 3 alternatives to a proposed action be discussed, and 4 additionally it specifically requires the stud , fdevelopment 5 and description of appropriate alternatives to recommend 6 courses of action in any proposal which involves unresolved 7 conflicts concerning alternative use of available resources. 8 And that language is brought into the regulation in Section 9 51.45. 10 The discussion revolves around Chapter 8. The 11 State contends that Chapter 8 is not adequate. It is a 12 siting and design alternative description which does not ' 13 meet the intended scope of NEPA, other kinds of 14 alternativec, a locally built alternative, the no-action C) ( 15. alternative which has been discussed, other feasible 16 locations have not been specifically addressed. Those kinds 17 of alternatives must be addressed in order to meet this 18 requirement. 19 The staff indicates that it does not oppose the 20 admission of this contention limited to the single issue 21 raised by the State in its basis, the applicant 1 evaluation 22 of alternative sites in its ER. We think that t'.L 3 23 contention is not limited to simply an evaluation of 24 alternative sites, that it involves other alternatives of 25 locally-built alternatives, other feasible locations, and ANN RILEY & ASSOCIATES, LTD. N/ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
I 677
- 1. the information that supports the specific concerns which I h 2 Chapter 8 are listed, and I don't believe I'll go through V
3 _.those. 4 And I think that's all I need to say on this. 5 CHAIRMAN BOLLWERK: All right. Mr. Silberg. 6 MR. SILBERG: I guess I'm really confused now. I 7 read the State's contention, and I read their response, and 8 all I see in it is a criticism of our alternate siting 9 analysis and methodology. I may have missed it, but I 10 didn't see any reference to other feasible locations. I 11 didn't see any reference to locally-built alternatives, and 12 I don't even know what that means. And certainly I haven't 13 seen anything in which the State provides any suggestion 14 that there are such that we haven't considered. D) (, 15 And certainly to add in a new concept as vague and 16 unspecific as these two are at this late stage of the 17 process seems to me totally out of line. If I've missed 18 something in the write up I apologize, and I'm sure Mr. 19 Nelson will call that to our attention and then we can-20 discuss it, but I simply don't know where that is covered. 21 Let me make a few comments on the State's written 22 -- excuse me -- on the State's written response. 23 On page 96 the State asks the rhetorical question 24 that surely PFS is not arguing that the environmental report 25 constitutes an adequate NEPA IES. I thin that's obvious ANN RILEY & ASSOCIATES, LTD, C'\ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
678 1 because the NEPA EIS has to be a federal document and not (qf 2 one prepared by an applicant. 3 The State then goes on to say that nowhere does 4 the State argue that PFS is required to send questionnaires 5 to all 38 site owners as claimed by PFS. That's not what we 6 said, and I would suggest that if the Board is interested to 7 look at what the State actually said at page 173 where they 8 said there's no mention of whether the applicant sent 9 questionnaireJ to all 38 site owners. 10 With respect on page 97 to the statement that NRC 11 cannot undtly restrict the range of alternatives considered, 12 we agree, and the key word there is " unduly." And I think 13 if you look at the cases we've cited you'll see that the 14 case law, the modern case law would suggest would hold that ( ! 15 2 our approach is not an undue restriction of the range of 16 alternatives to be considered. 17 The cases that I was referring to before as being 18 20- year-old cases are the ones that the State cites on the 19 bottom of page 97. For those purposes I would suggest that 20 the more recent cases we have pointed out, including cases 21 by the same court of appeals that's cited here but 20 years 22 later, have superseded the positions that the State is 23 relying on. 24 And therefore, the statement on the bottom of page 25 97 which they draw from those cases, that courts have not h\- ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
679 1 been willing to accept an applicant's project definition as n 2 a basis for narrowing the range of alternatives is clearly 3 incorrect. 4 The two cases that they cite, Van Abbema -- I'm 5 sure I'll butcher that name as well as I did the Puyallup 6 case yerterday -- does not stand for the proposition that 7 they cite. Merely that case says that the agency has c^ 8 take a hard look at alternatives and not a, quote, blind 9 reliance, the court's term, on the applicant's position. 10 And with respect to this Sierra v. Marsh case, 11 what that case holds is that what is required, and I'm 12 reading from page 574 of that decision. I'm sorry. Yes, 13 that's right. What is required is information sufficient to 14 permit a reasoned choice of alternatis~ so far as
) 15 environmental aspects are concerned.
16 And finally, the last sentence in their response 17 it states that CQ clearly points out that NEPA does not 18 provide any justification for dual ctandard, and it quotes 19 Federal Register CEQ guidance. 20 I think that quote is clearly incorrect. And if 21 the Board is to look at the decision actually on the same 22 page that's cited there where the court discusses the 23 Roosevelt Capabellum case, a First Circuit 1982 decision, 24 the 'urt and the CEQ specifically adopted the ability of an 25 agency to choose agency's choice of sites to be focused by ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 l
680 1 the applicant's primary objectives. And that is clearly () _2 what we have done here, and that is what'we would hope that 3 the staff in its environmental impact statement would do at 4 the appropriate time. That's all I have. 5 -CHAIRMAN BOLLWERK: All right. Mr. Quintana. 6 MR. QUINTANA: I have nothing on this contention. 7 CHAIRMAN BOLLWERK: All right. Staff?
- 8. MS. MARCO: The staff does not oppose, but it does 9 look like the contention only addresses alternative-sites 10 and siting. And so we believe it should be limited to that.
11 CHAIRMAN EOLLWERK: So it should be limited the-12 way you've discussed it and Mr. Silbe: s's discussed it, I 13 take it.then? 14 MS. MARCO: Correct, yeah.
) 15 CHAIRMAN BOLLWERK: You're in sync then in terms Hi-6 of what you think the contention is aimed at. You just 17 disagree on its admissibility, I take it?
18 MS. MARCO: That's right. 19 CHAIRMAN BOLLWERK: All right. Mr. Nelson. 20 MR. NELSON: I don't know what definition they're 21 using for alternative sites. If they're using the 22 definition that was used in the ER of well, we'll put it 23 here or here or here on the reservation within a couple a 24 hundred feet of each other, or however far that distance 25 was, that is not what we intended when we used the term ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I. Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
681 1 " alternative site." Alternative sites being a location here I'l
%J 2 at this reservation or other sites that the applicant looked 3 at, or leaving the materials in place at the site that it is 4 currently located at, with alternative sites being that site 5 too.
6 The -- it's very difficult, we have heard several 7 criticisms and objections to the State bringing up new a information. It's very difficult to respond to an assertion 9 that 20 year old cases have been replaced without any 10 " ferences or sites. And if the information could be 11 ubmitted, we would evaluate it and give you a response. 12 MR. SILBERG: Those cases are cited on our 13 response on page 17, 14 MR. NELSON: I have no other comments, 15 CHAIRMAN BOLLWERK: All right. 16 MR. SILBERG: If I could just add one more quick 17 comment. 18 The idea that leaving spent fuel at an existing 19 site is an alternate site analysis, I think is turning 20 alternate sites on its head. That's the no action 21 alternative. 22 That's amply covered in other contentions, but it's not an 23 alternate site issue. 24 And with respect to the statement that sites a 25 couple hundred feet from each other are the alternate sites O. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 i Washington, D.C. 20005 (202) 842-0034
682 1 that we considered, I would urge the Board to read our () 2 alternate site evaluation where we talk about 38 sites that 3- were considered all over the country, narrowed down through 4- a phased process, and ultimately the site was chosen. 5 CHAIRMAN-BOLLWERK: All-right. And I take it that 6 is what the staff.is talking about when they -- 7 MS. MARCO: Yes. 8 CHAIRMAN BOLLWERK: All right. Anything further, 9 .Mr. Nelson? 10 MR. NELSON: Excuse me. Could I ask for -- you're ( 11 talking, the staff is talking about the alternative, the 38 12 alternative sites? 13 MR. TURK: The entire discussion of alternative 14 sites.
) 15 MS. MARCO: Yes.
16 MR. TURK: We've not opposed that issue. 17- MR. NELSON: And that includes the 38 sites? 18 MR. TURK: Whatever is the adequacy of the 19- alternative sites -- 20 MS. MARCO: That includes the 38 sites, yes. 21 MR. TURK: Whatever-is the adequacy of the 22 alternate site evaluation, we are saying that's a merits 23 issue. We don't oppose litigation of the issue. 24 MR. NELSON: No other comments. 25 CHAIRMAN BOLLWERK: All right. Any questions from ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
683' 1- the Board?- () 2 All right. 3- DR. LAM: Now -- 4 CRAIRMAN BOLLWERK: Go ahead. 5 DR. LAM: Mr. Turk, you'mean while you're not 6 opposing this issue,_you want to restrict it to the 38 site 7- that was in the applicant's analysis? 8 MR. TURK: I'm not saying that, Your Honor. 9 DR. LAM: Oh, you're not? 10 MR. TURK: The contention they -- the one sentence 11 statement of contention says that the environmental report 12 fails to evaluate the range of reasonable alternatives to
-13 the proposad action. But there's nothing in the basis that 14 discusses anything except alternate sites.
15 So when we did not oppose admission of this. 16 - contention, we said all right; the basis talks about _17 alternate sites. 18 That's what the contention is all about. We don't oppose 19 that-issue.
- 20. We would oppose it at a broad alternate range, a 21- range of alternatives other than consideration of the
-22 alternate site issue, because there's no basis for anything 23 in this contention beyond consideration of alternate sites.
24 Whatever is-the appropriateness of the 38 sites 25: being_the ones which_the applicant considered, that gets to ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
684 1 the merits; did they do a good job with listing those or () 2 noti did they appropriately select down from those 38 or 3 not. 4 That's -- that goes to the merits. We would look at that as 5 part of our evaluation. 6 DR. LAM: That's good. 7 CHAIRMAN BOLLWERK: So you're saying that because 8 it just simply said reasonable alternatives, you felt that 9 it, what it really meant was reasonable -- well, alternative 10 sites? 11 MR. TURK: Alternate sites. 12 CHAIRMAN BOLLWERK: Okay. 13 MR. TURK: Because there's nothing else in the 14 basis except a discussion of site. 15 CHAIRMAN BOLLWERK: Right. 16 All right. Why don't we go with Castle Rock 13 17 and then we'll take our break. 18 MR. LATER: Thank you, Your Honor.
'9 Let me start by doing something that may be 20 relatively unheard of; I was trying to agree with some other 21 partieF.
22 We tax the applicant for failing to consider as an 23 alternative pending legislation before congress. The staff 24 objects to that. We're persuaded by the staff's arguments 25 and would withdraw the contention to that extent on that -- ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
685 1 for that basis. () 2 We recite as one of the failures to consider 3 impacts and alternatives; again, the costs and risks of 4 transporting waste and storing waste at this site during the 5 2002 Olympics. As I understood the applicant to say earlier 6 when we were talking about sabotage potential and risks, 7 that it is their intention that there would be no waste 8 transported to the site or stored at the site prior to or 9 during those games. And certainly if the applicant agrees, 10 would agree to that as a condition of licensure, those I 11 believe would cease to be issues for us as well. 12 The staff further objects to our raising as an 13 alternative that needed to be considered utilization of and 14 compliance with the existing provisions of the Nuclear Waste ( ,) 15 Policy Act. That one unfortunately we can't agree to 16 withdraw. We think that the basis we made those arguments 17 in our first four or five contentions is well taken. We 18 think that those are things that are certainly available to 19 the applicant; i, fact bind the applicant to this procedure,
-20 and should be considered as alternatives.
21 We have also raised as an issue within this scope 22 the consideration of all alternatives, not simply citing 23 alternatives. The staff again has suggested that our 24 contention should be limited simply to citing alternatives. 25 I would note that in our submission to the contention we e
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686 1 recited as points that needed to be considered, and in fact () 2 were not considered, the environmental benefits of the 3 combination of expanded on-site storage and regional IFSFIs 4 as opposed to a national centralized approach; to the 5 benefits of government sponsored, monitored retrievable 6 storage as prescribed by the NWPA. 7 We think that we have in fact brought forward as I 8 part of the basis of our contention recitation of 9 alternatives other than simply site selection alternatives, 10 We think it's appropriate that the applicant, as part of its 11 consideration, be required to consider alternatives in 12 addition to simply just different sites. We think we fairly 13 raised that as well. Thank you. 14 CHAIRMAN BOLLWERK: All right. Applicant. ( 15 ( Mr. Silberg. 16 MR. SILBERG: Yes. In the spirit of good 17 friendship and inter-party agreements, we can make that 18 stipulation. 19 Schedule was not intended to have spent fuel on-site by the 20 time of the Olympics. 21 With respect to the other issues, I think we've 22 covered them more than adequately in our written submittal. 23 We will rest on that. 24 CHAIRMAN BOLLWERK: All right. So let me just 25 understand. Does that mean that the portions -- there was ANN RILEY & ASSOCIATES, LTD. \ Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
687 1 two contentions that dealt with the Olympics then would be () 2 -- 3 MR. LATER: There are two contentions in which we 4 have raised issues relating to the Olympics, terrorism 5 risks, and consideration-of the risks of transportation 6 And both of those bases of contention we would withdraw. 7 There are portions of each contention of course that remain. 8 CHAIRMAN BOLLWERK: Right. 9 MR. LATER: Not the entire contention goes away. 10 But those specific bases we would withdraw. 11 CHAIRMAN BOLLWERK: All right. Mr. Quintana. 12 MR. QUINTANA: I have no comment on those 13 contentions. 14 . CHAIRMAN BOLLWERK: All right. Mr. Turk or Ms. 15 Marco. 16 MS. MARCO: We did not oppose this contention. 17 With respect to the Nuclear Waste Policy Act 18 issue, we've_ addressed that in our response to Utah 19 contention'A. 20 And we don't.see any support for the alternative 21 technologies issue that is a part of this contention. 22 CHAIRMAN BOLLWERK: So let me, just so we're clear 23' about what parts you are and_aren't objecting to. I have to 24 admit to some degree I've used the applicant's sort of 25 breakdown, and maybe you can --
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688 1 14S. MARCO: We'll just rest on the pleading, Your
- ( f 2 -Honor. .
3 CHAIRMAN BOLLWERK: All right. I hope that's 4 clear enough. 5 Let's do this. Maybe we can take -- why don't we 6 take our break. And let's make sure we're clear on what -- 7 MR. LATER: Your Honor, may I make one last point? 8 CRAIRMAN BOLLWERK: Sure. 9 MR. LATER: I'm sorry to do that. I know 10 T everybody-wants to go on a break. 11 CHAIRMAN BOLLWERK: That's all right. 12 MR. LATER: But I would-just like to note, and 13 this may be a good point, that with respect to contention 14 13, we don't agree on that contention and several others 15 with the applicant's rephrasing of that. In fact, in our 16 reply, we've restated what we believe is an appropriate 17- reworking of that. We continue to work with the applicant 18 trying to narrow the range, and we hope to be able to 19 present, as far as we can, a coherent set. 20 CHAIRMAN BOLLWERK: All right. 21 MR. LATER: But on this one, we don't agree with 22 the rewrite. 23 CHAIRMAN BOLLWERK: Okay. My only concern, if the 24 staff simply wants to rest on their pleading, that's fine. 25 I just want to make sure that it's clear to us what, because i. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
609 1 that had a number of different subparts, at least as Mr. () 2 silberg broke it out. And some of them weren't specifically 3- addressed. 4 So I'm -- if you think it's clear enough to us 5 where you ar< at in terms of the type of analysis he laid 6 out, I vill look through it and deal with it that way. If 7 you want to take a second to look at it and maybe come back 8 to the board and tell us a little more -- 9 MR. LATER: We'll do that over the break, Your 10 Honor. 1 11 C" 'RMAN BOLLWERK: All righa. 12 Wr. lon't we take then a break until 3:30. And I 13 need to see one counsel from each party up at the bench real lo quick.
) 15 MR. TURK: May I ask a quastion also?
16 CHAIRMAN BOLLWERK: On the record? 17 MR. TURK: On the record. 18 CHAIRMAN BOLLWERK: Please. 19 MR. TURK: Judge Lam had asked a question before 20 as concerning the 38 sites. I believe my answer tried to 21 set out what the staff would evaluate when it does its 22 environmental impact statement. 23 My reading of the contention -- tnis goes back to 24 State AA. My reading of the contention is that it 25 essentially attacks the siting evaluation after the=38 sites () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
690 1 were identified. So I don't mean to expand upon the State's () 2 contention. 3 We, the staff, will consider the entire process. 4 But it seemed to me that the 3 tate was really getting 2.t , 5 whether the selection criteria applied to that slate of 38 6 sites was effectively and appropriately done. But I don't 7 see them as challenging issues beyond the adequacy of the 8 site selection process up to the point of the 38 sites chat 9 were selected. 10 CHAIRMAN BOLLWERK: All right. The question is 11 why do they choose -- how did they choose among those 38 12 then, as you cee their contention? 13 MR. TURK: That's how I -- 14 CHAIRMAN BOLLWERK: All right, f 15 DR. LAM: Thank you for the clarification. 16 CHAIRMAN BOLLWERK: And that is what you're saying 17 you believe is admissible? 18 MR. TURK: As a contention in the proceeding, yes, 19 CHAIRMAN BOLLWERK: Yes. All right. 20 All right. Why don't we go ahead ano take our 21 break then till 3:30. And if I could just see one counsel H Y 22 from each party. 23 (Recess.) 24 CHAIRMAN BOLLWERK: Back on the record. 25 And Judge Kline wanted me to note that his O IJRi RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
691 1 recollection is the Sequoia Fuels case was affirmed by the 2 Commission. 3 So it may be the only one, but it's the right one as far as l 4 4 the Commission is concerned, I guess. l 5 MR. SILBERG: Shows what they know. 6 MR. TURK: I don't think anyone appealed the 7 question of admissibility. 8 CHAIRMAN BOLLWERK: I thought somebody dif.. Maybe 9 they didn't. Well -- 10 , MR. TURK: In terms of admissibility on 11 contention. I 1 coked at that as -- are we on the record? ! 12 CHAIRMAN BOLLWERK: Yeah, we are. Well, that's 13 all right. 14 MR. TURK: I -- Your Honor, I look at that as 15 different procedural posture, where there was an existing 16 intervenor with admitted contentions. The Cherokee Indians 17 came in later and said we'll adopt on the regular merit, as 18 opposed to this posture where everyone's coming out for the 19 first time -- 20 CHAIRMAN BOLLWERK: First time. 21 MR. TURK: -- presenting contentions. 22 CHAIRMAN BOLLWERK: Right. 23 DR. LAM: And also for the record, two member of 24 this licensing board sat on that case, and I'm not one of 25 them. O. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D-.C. 20005 (202) 842-0034
692 1 [Laughtei ) () 2 3 problem. CRAIRMAN BOLLWERK: So if it's wrong, it's not his 4 DR. KLINE: Not his problem. 5 CHAIRMAN BOLLWERK: We all stick together here. 6 You can tell. 7 All right. I guess briefly say something about 8 the contention, Castle Rock 13 we're talking about, in terms 9 of the staff and admissibility of any portions of the bases 10 or things they had problems with in the bases. 11 MS, MARCO: Okay. The staff went through and i 12 looked at the applicant's rewrite of contention 13. And we 13 decided that subpart A is what we do not oppose. We do not 14 oppose subpart B. We oppose subpart C. And D was dropped () 15 out; and also, there is a portion of C that was dropped out. 16 And this is -- 17 CHAIRMAN BOLLWERK: So you had no problem with A 18 or B, you object to C? 19 MS MARCO: Correct. And D was withdrawn. 20 CHAIRMAN BOLLWERK: Withdrawn. 21 MS. MARCO: But understand we both, the applicant 22 and the staff filed at the same time, so we didn't have 23 this. 24 CHAIRMAN BOLLWERK: I recognize that. 25 MS. MARCO: Okay. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
( 693 1 CHAIRMAN BOLLWERK: And that's why I wanted to, () 2 you know, you can't -- right. You wouldn't know what they 3 were going to say, obviously, so -- 4 Okay. And again, the Olympics portion of that is 5 gone, as well as the legislative portion. So as long as 6 that's clear. 7 Okay. All right. Let's then turn to, I believe 8 that takes care of the site selection alternatives. Let's 9 turn thcn to Utah BB, which is an envi?.onmental justice 10 question. 11 Also, OGD letter 0, which, a portion of it which deals with 12 the same thing, and Confederated Tribes C. 13 MS. CRANCELLOR: Ready, Mr. Silberg? < 14 MR. SILBERG: Yeah.
) 15 CHAIRMAN BOLLWERK: Got the right book? Okay.
16 MR. SILBERG: Before we do that -- 17 CHAIRMAN BOLLWERK: Yes. 18 MR; SILBERG: Let me just, on the record, note a 19 few minor corrections to our response that might help, or 20 maybe hinder, but they're -- 21 CHAIRMAN BOLLWERK: To your response on BB? 22 MR. SILBERG: On BB. 23 CHAIRMAN BOLLWERK: Okay, 24 MR, SILBERO: On page 22, at the bottom of the 25 page, the little i in parenthesis should be a small b in O ANN RILEY & ASSOCIATES, LTD. Court Reoorters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
694 1 parenthesis. You know, instead of being a subpart of A () 2 above, should be a new subpart. 3 MS. CHANCELLOR: It's all now cryutal_ clear. 4 MR. SILBERG: I want to wait for the chairman to 5 get his -- 6 CHAIRMAN BOLLWERK: All right. 7 MR, SILBERG: On the bottom of page 22, the -- 0 CHAIRhDJJ BOLLWERK: 20? 4 DR. LAM: 22, 10 MR. SILBERG: Page 22. It's our response to BB. 11 CHAIRMAN BOLLWERK: Okay. 12 MR. SILBERG: The supplemental response. 13 CHAIRMAN BOLLWERK: Ah, all right. You're right. 14 I'm looking at the wrong -- I'd forgotten that. is DR. KLINE: It's a separate filing. 16 MR. SILBERG: The subtitle that is now little i. 17 Roman i, italic i, should be small b, evaluation of siting 18 process for racial discrimination should be b, close parens. 19 CHAIRMAN BOLLWERK: All right. 20 MR. SILBERG: On page 23, the subtitle little ii 21 should be single i. And on page 26, the subtitle little 3, 22 lii, NEPA, should be double i. 23 CHAIRMAN BOLLWERK: O!ay. 24 MR. SILBERG: And then finally on page 29, what is 25 now subtitle b, applicant site selection process, should be () IJRJ RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 _ ___ _ _ _ J
695 1 c, small c, applicant site selection process. ! () 2 3 Ana G.cn finally, I'm sorry, wrong order, the first line on page 29, what is now little Roman 4, iv , 4 should be triple i, iii. 5 CHAIRMAN BOLLWERK: All right. 6 MR, SILBERG: Sorry, but that was the confusion 7 anyway. 8 CHAIRMAN BOLLNERK: Does that help you, Ms- > 9 Chancellor? 10 MS. CHANCELLOR: Oh, heaps (laughs). 11 BB of the State's contentions is titled " Site 12 Selection and Discriminatory Effects." First of all, I want 13 to recognize that no, the State was not using investigation 14 as apparently NRC uses the term of art. And I think we 0) (, 15 acknowledge that in our reply. 16 In PFS' answer, they state that "It ic well 17 established that executive orders lacking statutory" -- oh, 18 this is on page 25 of their answer. 19 "It's well established that executive orders 20 lacking a statutory basis or some other congressional 21 delegation of authority cannot create enforceable rights or 22 obligations." 23 And PFS mainly conteads that the executive order 24 cannot create any sort of obligation on them to look at 25 discriminatory effects under the environmental impact O ANN RILEY & ASSOCIATES, LTD.
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696
-1 statement. However, NEPA itself provides for such a
() 2 3 requirement. Under Section 101, 101 (b) (1) of HEPA: "The 4 purposes of NEPA are to assure, for all Americans, safe, 5 healthful and productive and aesthetically and culturally 6 pleasing surroundings." 7 That is to all Americans, so it's both individual, 8 to individuals and groups. 9 And under 1.01, 101(c) of NEPA: " Major federal 10 action must address actions significantly infecting -- 11 affecting the quality of the human environment." And this, 12 we submit, requires that the NRC look at the discriminatory, 13 any discriminatory effects in site selection. And one 14 method of complying with that NEPA requirement is to use the () 15 executive order. There may be other ways of doing it, but 16 we submit that the executive order is ene way in which they 17 can do that. 18 On page 31 of the answer, PFS maintains that the 19 decision to locate the proposed ISFSI cn the Skull Valley id Reservation was a lawful determination by the Skull Valley 21 Band. If that were the case, then we question why OGD is 22 here. 23 There are certain potions of the band that 24 certainly do not agree with or are in favor of this 25 proposal. And that the procedural protections, or the ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D,C. 20005 (202) 842-0034 l
, 697 1 procedural measures for the protection of the human : () 2 environment should apply to everybody, not those who are 3 merely in favor of it, but also to those that are opposed to I l 4 it. 1 5 And I think in our contention we discuss why we 6 believe that ther e could be discriminatory ef fects, { 7 especially where you have 38 sites and all of a sudden it i 8 goes down to two sites which are contiguous, one a little l 9 closer to Hickman Knolls than the other. I think that's all 10 I have for the moment. Thank you. 11 CHAIRMAN BOLLWERK: All right. Applicant. 12 MR. SILBERG: Let me respond to the oral comments 13 first. 14 NEPA simply doesn't provide a basis for analysis
) 15 of whether or not siting is discriminatory. If it did, you 16 would have seen cases in the 28 years, think that's right, 17 that environmental impact statements have been written. '
18 There are none. There is no basis in NEPA for singling out 19 individuals based on ethnic or racial or economic status. 20 NEPA does say you protect the environment for all
- 2. Americans, not better for some or worse for others. The 22 idea that you can read into protecting the human environment 23 the idea that we have to look for racial, economic, ethnic 24 divisions and treat people differently is pimply at odds 25 with any sensible reading of those provisions.
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698 1 And further, I'd note that neither of those () 2 3 provisions deal with the environmental impact statement, which is in Section 1022(c) of NEPA, not 101(b) (1) or 4 101(c). And I don't believe either of those are judicially 5 enforceable. 6 Those are motivational, if you will, statements, statements 7 of purpose. But the provision that this Commission is 8 operating under under NEPA is 1022(c). 9 So a method of complying with NEPA, the executive 10 order isn't one. 11 We go in great detail in our written response, and 12 I won't go over it again here, why discrimination in any 13 event is not part of the direction, such as it is, for the 14 -- that the executive order purports to direct towards 15 agencies. 16 And to the extent that the State is relying on the LES 17 decision, that decision, as the Board knows, is under appeal 18 before the Commission. We were certainly hoping that we , 19 would have a Commission decision on that before this 20 prehearing conference, but unfortunately that hasn't been 21 the case. 22 The legal analysis that we set forth, we believe, 23 is the correct analysis of the discrimination aspects of the 24 executive order. I will note that there is nothing in the 25 State's contention which deals with that provision o the O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
699 1 executive order which calls for certain activities () 2 concerning, think it's high or adverse environmental impacts 3 on low income populations and minority populations. The 4 State's contention is simply limited to the discrimination 5 in the siting process. 6 If the State looks at the environmental report, I 7 think they will see, and we hope the Board will see, that 8 the movement from 38 sites to 2 sites within a short 9 distance of each other on the Skull Valley Reservation was 10 not something that occurred by magic. It occurred b" a 11 process. That process is described in the environmental 12 report and it is clearly not one which was discriminatory. 13 With respect to the statement that the Skull 14 Valley site, referring -- and I lost the page. I guess it's
) 15 on -- towards the end of our response. The State was taking 16 issue with the statement that the Skull Valley siting 17 decision was a legal activity, an action by the Skull Valley 18 Band. And the fact that there are certain members of the 19 band who may not agree somehow entitles the State to raise 20 an issue on discriminatory siting is a total bootstrap 21 aberration.
22 To the txtent that there are individuals within 23 the Skull Valley Band who had an opposing view, the Skull 24 Valley Band had its own governance; made the decision to 25 proceed.
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700 1 And it would be grossly improper for this Commission to () 2 3 second-guess that decision in any way. And with respect to the comment that the 4 procedural protections for the human environment should 5 apply to everyone, including the opponents of the project, 6 we would completely agree with that. However, that doesn't 7 udvance the State's cause an inch. And the opponents of the 8 project have no better or worse environmental protection 9 than the proponents of the project, and NEPA requires 10 nothing more. 11 That's all I have. 12 CHAIRMAN BOLLWERK: All right. Mr. Quintana. 13 MR. QUINTANA: The State's contention should be 14 defeated for several reasons.
) 15 First is they lack standing to argue this 16 contention.
17 The State does not have jurisdiction on the reservation. 18 And for them to argue about the rights of a completely 19 separate jurisdiction smacks of state paternalism once 20 aaain. 21 Furthermore, this decision does not have a basis 22 in fact, as required by 2.7142. The, as the State is well 23 aware, the Skull Valley Band of Goshutes has, for the lac 24 eight years, been carefully studying this issue. 25 Initially, the reason the Skull Valley Goshutes O' ANN RILEY & ASSOCIATES, LTD. Court Reporters 3250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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701 1- got a Phase 1 grant from the Department of Energy is when () 2 3 David Leroy circulated the petition around to have the proposed storage of spent nuclear fuel on reservations, we 4 wanted to gather the data, slam dunk the proposal, because 5 we believed there was a conspiracy on the part of the 6 Department of Energy and the utility companies in this area. 7 After the investigation took place in Phase 1, we 8 found out there was not a conspiracy. The utility companies 9 and the Department of Energy hate each other. ' 10 (Laughter.) 11 MR. QUINTANA: The utility companies -- 12 CHAIRMAN BOLLWERK: We'll let that note that's 13 your characterization. 14 MR. 00INTANA: The utility companies -- k 15 CHAIRMAN BOLLWERK: You want to speak to that, Mr. 16 Silberg? I'll let you now. 17 MR. SILBERG: No, I'll let the record speak for 18 itself. 19 MR. QUINTANA: The utility companies feel that 20 they have been somehow mistreated by the federal government, 21 to which the executive committee started laughing, given the 22 experience of Indian tribes and their dealings with the 23 federal government. 24 So in Phase 2, because there is no trust of the 25 federal government, the Skull Valley Band of Goshutes O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 ,
702 1 Executive Committee decided to visit nuclear storage () 2 facilities in other countries and see exactly what and how 3 these facilities came about, and exactly how they were run 4 and managed, and if in fact this was a safe proposal to 5 undertake. 6 In that regard, the Skull Valley Band of Goshutes 7 developed two films. The films were to explain to not only 8 tr3bal members but to the public as a whole how this project 9 worked, and what was expected and what the dangers were. 10 Well, the Skull Valley Band of Goshutes Executive 11 Committee visited nuclear facilities at Laab, LaHaig in 12 France, met with Andra in France, with Cogima. And from 13 France, visited with the British nuclear fields at 14 Southfield, and then went to Sweden and visited interim () 15 storage at Oscarsam and met with the Swedish scientists and 16 with their government representatives, as well as with peace 17 groups, with anti-nuclear gr ups. 18 In Japan, the Skull Valley Band of Goshutes 19 visited the Tokai Reprocessing facility and went up north to 20 the Amborg Peninsula to visit the proposed rtorage facility 21 there, and mit with Japanese scientists and ,udied on 22 exactly what the relation of the Japanese economy is and 23 their expertise in this area to spent nuclear fuel. 24 In this country, the Skull Valley Band of Goshutes 25 has visited Idaho National Engineering Laboratory, Yucca O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 j
703 1 Mountain, Rancho Secco in Sacramento, the Hanford facility () 2 in Washington. Some have visited Prairie Islands Nuclear #' 3 Power Plant; Surrey, Virginia; West Palm Beach, Florida's 4 nuclear facility. Some have gone down and visited the 5 Barnwell facility in South Carolina, as well as attended the 6 high level waste conferences and talked with scientists from 7 all over the world. 8 The Skull Valley Band of Goshutes did a 9 comprehensive comparison of Utah's waste facilities to the 10 proposed high level nuclear facility, a copy of which was 11 provided to the governor and -- 12 MS. CRANCELLOR: Objection. There's nothing in 13 the record as to this effect, Your Honor. ? 14 MR. QUINTANA: I'll be brief, Your Honor. 15 CHAIRMAN BOLLWERK: I'd appreciate it. 16 MR. QUINTANA: So in terms of other than obtaining 17 physics degrees, which the executive committee has not done, 18 the Skull Valley Band of Goshutes has done everything 19 humanly possible to educate their members and the 20 surrounding communities as to exactly what this project is, 21 its effects, and whether or not it should proceed. 22 I think that's all the First Amendment can 23 possibly require. We have recently met with some of the 24 world's top physicists and they have too given a 25 recommendation that it's safe. () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
704 1 Environmental justice is allowing communities to () 2 properly study issues of science, of law, or any area, and 3- make informed decisions, informed decision, that will 4 withstand the scrutiny of the First Amendment. If this 5 facility is not built because it does not withstand the 6 scrutiny of the First Amendment, that's justice. And I can 7 live with that. But for the paternalism and the blatant 8 rhetoric that somehow a group of Native Americans cannot 9 make an informed decision on their future, on their own 10 land, smacks not only of paternalism, but also its blatantly 11 racist. It's wrong. 12 Of course the Band is divided on this issue. The 13 Band's divided on many, many issues. There is some issues 14 that some Band member are in favor of and others that 15 they're against, but that is the Band's absolute right. It 16 is not the State's right to interfere within tribal matters. 17 CRAIRMAN-BOLLWERK: Anything further? 18 MR QUINTANA: I think that's enough. 19 CHAIRMAN BOLLWERK: Staff? 20 MR. TURK: We do not oppose the admission of this 21 contention. I would note that I share Mr. Silberg's view 22 that NEPA does not establish a separate requirement apart 23 from the executive order for consideration of environmental 24 justice. The staff will look at environmental justice 25 issues and will, as I said before, consider it as part of ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
l 705 1 the NEPA cost benefit balancing. () 2 But I would also note, again as stated in our 3 papers, and Mr. Silberg referred to it, the LES decision is 4 on appeal before the Commission now. And we would suggest 5 that that decision was wrongly decided, in part because it 6 effectively established a right for a group contrary to the 7 express provision in Section 6-609 of the executive order, 8 which states that the executive order does not create any 9 right, benefit, trust, responsibility, substantive or 10 procedural, with respect to the matters of race in the 11 executive order, 12 CHAIRMAN BOLLWERK: All right. Ms. Chancellor. Il MS CHANCELLOR: In answer to one of Mr. Silberg's 14 points, he seems to think that we're relying solely on the () 15 purposes section, 101. And he mentioned 101(c). It was -- 16 I didn't mention 101(c), but apparently he thinks I relied 17 on 101(c) . 18 What we're relying on is 102 (c) , which is the 19 trigger mechanism for NEPA. Maybe we should go over this. 20 Under 102, congress authorizes and directs that: 21 "To the fullest extent possible: "1) The policies. 22 regulations and public laws of the United States shall be 23 interpreted and administered in accordance with the policies 24 set forth in this chapter; and "2) All agencies of the 25 federal government shall," And I'll skip down to c: ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
706 1 " include in every recommendation or report on proposals for () "
. legislation and other major federal actions significantly 3 affecting the quality of the human environment, a detailed 4 statement by the responsible official.r 5 We believe that the key words here are " major 6 federal action," which triggers an EIS, "significantly i
7 affecting the human environment." And the human environment 8 in this case is the right to be free from discrimination. 9 And here, we contend that it's -- that there is -- that the 10 discrimination in the siting process is what we rhink that 11 the environmental impact statement should address. 12 The applicant says that it has addressed its site 13 selection process. Well, I've looked at their rendition of 14 how they selected the sites. I think if you look at the ER
) 15 on pages 8.1-4, 8.1-5, they talk about how they have these 16 38 sites, but nowhere do they say how they whittled down 17 those 38 sites and arrived at the two sites on the Goshute 18 Reservation, one on Section 6 and one directly south on 19 Section 7.
20 Furthermore, we believe that regardless of the, 21 whether or not there is a willing site, the EIS still must 22 address whether there are discriminatory effects in the 23 siting process. And I certainly do not intend to address 24 any other of Mr. Quintana's comments. 25 CHAIRMAN BOLLWERK: All right. We also have O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
707 1 contention OGD letter O. l () 2 MR. SILBERG: And if I could -- I'm sorry. If I 3 could just respond for a second. 4 I'm sorry if I misheard you when -- if you said 5 102 (c) originally. I heard you say 101(c). But to say that 6 the human environment means the right to be free from 7 discrimination is simply inventing words in a way that no 8 one has ever done. 9 The CEQ regulations, which you've taken great 10 credit, which the State has taken great credit for, nowhere 11 mention this discrimination aspect as part of the NEPA 12 process. And it is inappropriate to reinvent this statute 13 in the lignt of an executive order which simply doesn't mean 14 what the State says it means. 15 CHAIRMAN BOLLWERK: Anything further? 16 MS. CHANCELLOR: We have a disagreement. 17 CHAIRMAN BOLLWERK: All right. OGD O.
.8 MS. BELILLE: Yes, Your Honor. We have a few 19 comments.
20 First of all, the staff does not oppose the 21 admission of this contention except so -- except for insofar 22 as OGD asserts th-c the psychological fear of living in 23 proximity to this facility must be considered and that the 24 cumulative impacts of the facility must be considered. 25 The first issue that I we'd like to address is our O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1.150 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
708 1 reliance on the executive order. And we would just draw the () 2 attention of the Court, and it's already been mentioned, to 3 the LES case. 4 As far as the disparate impacts issue, we would 5 also rely on hES. And as far as the negative economic and 6 sociological impacts of native communities of Goshute ' l 7 Indians, OGD's assertion is basically that the applicant's I 8 environmental report does not adequately describe or weigh 9 the various social and economic aspects of the proposed 10 site. As part of that, OGD also asserts that this -- that 11 disparate impact should be considered. I I 12 The Board also says that "Where environmental and i 13 NEPA issues are involved, care must be taken in applying tne 4 14 Commission's general burden of proof." First of all, let me O ( ,/ 15 -- I just was citing from the Louisiana Energy case, where 16 the Board said that it is an agency responsibility. 17 "To the greatest extent practicable and permitted 18 by law, each federal agency sh il make achieving ! 19 environmental justice part of its mission by identifying and 20 addressing, as appropriate, disproportionately high and 21 adverse human health or environmental effects of its i 22 programs, policies, and activities on minority populations 23 and low income populations in the U.S." The Board also goes 1 24 on to say that: "Where environmental and NEPA issues are 25 involved, care must be taken in applying the C<mmission's () 7JRi RILEY K ASSOCIATES, LTD. Court I' porters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
709 1 general burden e' proof rule because the NRC, not the () 2 applicant, has the burden of complying with NEPA." 3 Accordingly, because the Commission's regulations 4 require the applicar.t to file an environmental report and 5 prescribes its contentions, the applicant has the burden on 6 the contentions or portions of the contentions inserting 7 deficiencies in the ER. Therefore, OGD would submit that 8 the arguments made by PFS regarding the disproportionate 9 impacts, as well as the requirement of NEPA, are withcut 10 merit. 11 PFS further argues that this subcontention must be 12 dismissed for lack of a basis. Contrary to this assertion, 13 OGD has provided several bases upon which this contention is 14 based. OGD also asserts that it has asserted basis for the 15 assertion made in the contention; that therefore, this 16 portion of the contention should be approved. 17 PFS states that it has addressed the topies of 18 sociological and economic impacts on native communities by 19 stating that the ISFSI would be located on the Skull Valley 20 Indian Reservation. And that's a quote from their response. 21 And that they have analyzed the persons living within the 22 five miles of the site by counting the approximately 30 23 members of the Skull Valley Band of Goshute Incluns living 24 on the reservation. 25 I don't believe by simply stating that the site () ANN RILEY & ASSOCIATES, Lit . Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
I 710 1 will be located on an Indian reservation and that the site () 2 -- and that by analyzing the persons living within three to 3 five miles of the approximately 30 members of the Skull 4 Valley Band of Goshutes the applicant has made -- has met 5 its burden of identifying negative economic or sociological 6 impacts on the native Goshute community. We believe that 7 this section of the contention should be approved. 8 On page 605 of PFS' reply, PFS argues that the 9 subce"*ention regarding disproportionate impacts must be 10 dismissed for lack of a factual basis. OGD asserts that it 11 has provided a factual basis in identifying nine toxic 12 release inventory sites, six comprehensive environmental 13 response compensation and liability sites, two national 14 pollution discharge elimination sites, and 40 resource f (_) 15 recovery act sites, all within 35 miles of the proposed 16 site. Further, OGD has identified hundreds of different 17 chemicals in the facilities around the Goshute Reservation. 18 OGD would again turn to Louisiana Energy, in which 19 disproportionate impacts on two black communities were 20 considered and it was found that there had been no attempt 21 to award -- to avoid or mitigate the disparate impacts of 22 the facility on the minority community. 23 PFS argues that a petitioner is obligated to 24 provide the technical analysis and expert opinion or other 25 information showing why its bases support the contention. ( ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
711 1 When the Commission amended the rules governing () 2 admissibility of the contentions in 1989, the Commission did 3 not require that an intervenor or a petitioner prove its 4 case prior to the admission of its contentions. 5 The licensing board in Pacific Gas and Electric 6 Company has stated that: "In reviewing the petitioner's 7 proposed contentions, it will keep in mind both the j 8 upholding of the purpose of the rule and the need to 9 interpret it as not foreclosing reasonable inquires into the 10 licensing action." 1
.1 In the legislative history of the amended rules, 12 the rule makers make it clear that the petition need only 13 make a minimal showing that material facts are in dispute, 14 thereby demonstrating that an inquiry in depth is 15 appropriate. OGD asks that this contention be admitted in 16 its entirety.
17 CHAIRMAN BOLLWERK: All right. Anything from Mr. 18 Silberg? 19 MR. SILBERG: Just very briefly. 20 First, to the extent that OGD takes credit, seeks 21 to take credit for the various hazardous waste sites that 22 it's identified around the reservation as forming the basis i 23 for admitting this contention, I have not heard nor I've 24 seen any suggestion that somehow the operations of this 25 facility are linked to the operations of these other
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712 1 facilities which are owned and operated by entirely () 2 3 different entities at great distances from this site. There's just no connection between the two. So those 4 facilities can't possibly form any sensible basis for this 5 contention. 6- With respect to the argument that there's been no 7- _ attempt to mitigate, there certainly has< The, at least 8 between the Tribe and the PFS is such a mitigation attempt. 9 The burden of identifying negative impacts is not a burden 10 of proof here. I fully agree that the burden of proof when 11 the issue, when any issue comes to litigation is on the 12 proponent. We're here talking about the burden of 13 establishing an appropriate contention. And the LES comment 14 is simply inapposiee with respect to what we're dealing with 15 now. 16 With respect to the other irims, I would just rely 17 on our written submission on this issue, and on the previous 18 one as well. 19 CHAIRMAN BOLLWERK: All right. Mr. Quintana. 20 MR. QUINTANA: I think enough's been said to 21 divide the tribe by the various parties and I will seek not 22 to do that any further in this proceedings. I respect the 23 views of counsel. 24 CRAIRMAN BOLLWERK: All right. Mr. Turk? 25 MR. TURK: One limited statement, Your Honor. We O ANN kILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
713 1 do not oppose the admission of the environmental justice () 2 issues. However, I think Ms. Belille was mistaken. We 3 oppose not just the issue of psychological fear, but also 4 the assertion in this contention of cumulative impacts. So l 5 we would rest on our written submission. i 6 CHAIRMAN BOLLWERK: All right. Ms. Belille, i 7 anything further? 8 MS. bet,ILLE: No. Just that we did understand 9 that they did oppose that part of it. 10 CHAIRMAN BOLLWERK: All right. So in terms of O
- 1. then, the only thing you have no objection to is the 12 environmental justice portion of it. Is that -- make sure l 13 I'm -- we're on the same page here, terms of your position.
14 DR. LAM: I had a question for Mr. Quintana.
) 15 When the Skull Valley Band make the decision to 16 actively welcome the facility, is this a simple majority of
~ 17 the members, or is it -- can you share with us the extent, 18 the degree of majority view? 19 I understand there dissent within the members of 20 the Band. Is it a simple majority decision of two-third 21 majority? 22 MR. QUINTANA: There is a strong majority decision
- 23 that supports this businees with private utility em.ipanies.
24 And it has been circulated to all Band members. And the i 25 ones that have opposed it have been vocal in their ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 l (202) 842-0034 _ = , , _ _ _ . _ . _ _ , . . . . . _ . , _ _ , _ , . _. ~ . . - . . . _ _ , . , - _ . ~ . . _ _ . , . , . - - - - , . - - -
714 1 opposition, and the ones that have supported it have been () 2 vocal in their support. l 3 DR. LAM: Do you have some number for the report? 4 I understand there are more than 100 members of the Band. 5 MR. QUINTANA: The adult voting members over the l 6 age of 18. I believe there are -- I believe that there are 7 60 adult voting members, and the overwhelming majority 8 approved of it. l 9 DR. LAM: What do you mean by " overwhelming"? l 10 MR. QUINTANA: I think there are eight opponents. 11 DR. LAM: Over? 12 MR. QUINTANA: Of the -- on the tribe as a whole. l 13 DR. LAM: One undred? l 14 MR. QUINTANA: Of the 60 voting members.
) 15 DR. LAM: Oh, 50. I see. I see.
16 MR. QUINTANA: Minor children, children under 18 17 don't vote. 18 DR. LAM: Yeah. 19 MS. BELILLE: Your Honor, may I say something? 20 CHAIRMAN BOLLWERK: Yes. 21 MS. BELILLE: I would just like to say that there 22 is a dispute about the number of people that were in favor 23 and the number that were opposed. 24 CRAIRMAN BOLLWERK: All right, Are you -- 25 MR. TURK: You had posed a question to me as to f () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
715
- 1 which parts of the contention we oppose.
() 2 3 CHAIRMAN BOLLWERK: no objection to. Yes. Or which parts you had I'll put it that way. 4 MR. TURK: All right. 5 CHAIRMAN BOLLWERK: Either way. 6 MR. TURK: As an environmental justice contention, 7 we don't see that the issues of need and cast are part of 8 that contention. 9 CHAIRMAN BOLLWERK: All right. 10 MR. 1VRK: So initially in our written response, 11 we had made the statement that we don't see how those are 12 related. 13 That implied that we would oppose those subissues as being brought up in this contention. 15 CHAIRMAN BOLLWERK: All right. 16 MR. TURK: Now the other further question is do ve 17 think that a separate contention can be carved out of this 18 in order to address the issues of need and the cost benefit 19 balance. 20 CHAIRMAN BOLLWERK: Okay, 21 MR. TURK: I don't think it's the Board's 22 responsibility to do that for this intervenor. The Board 23 has to look at the contention itself and admit it to the 24 extent that it's supported by bases. 25 The contention is an environmental justice O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
l 716 i i contention. () 2 That's what has to be ruled upon. So I would exclude the 3 consideration of those otuer matters as irrelevant Lo this 4 issue and ask you to rule simply on whether the 5 environmental justice contention is admissible. 6 DR. KLINE: Mr. Turk, this environmental justice 7 contention has in it what appears to be significant legal 8 disputes as to its applicability. And the applicant han 9 asserted in his reply that this -- that the environcantal -- 10 that the executive order doesn't confer any rights on 11 anybody and that -- 12 MR. TURK: That's a correct statement. 13 DR. KLINE: -- it really doesn't even belong in 14 the case.
) 15 MR. TURK: That's not correct.
16 DR. KLINE: Well, no. I mean he has aaserted 17 that. I don't know if it's correct or not, but -- 18 MR. TURK: I'm disagreeing with his argument then. 19 DR. KLINE: Yeah. 20 MR. TURK: If that's his assertion. 21 DR. KLINE: Okay. So then you're confirming that 22 there is a legal dispute then. Is this something that we 23 would set for summary disposition then if it were admitted, 24 or -- 25 I don't know if we'd set it. But once LES gets 1 (- ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
L 717 _ decided,_somebody might file it. 1 So -- () 2- Well, it isn't. clear to me how you'd handle this 3 contention if it-got in. Because another assertion is that 4 it sets burdens on the staff to perform certain-analyses, 5 but the staff -- the adequacy of the staff performance isn't > 6 going to be known for years. So what do we do with this 7 contention now if it comes in? 8 MR.-TURK: Well, I don't know if this is going to 9 be a direct-enough response to you, but I want to give you 10 my understanding of how the environmental justice issues
-11 will be analyzed.
12 DR. KLINEi Okay. Yeah, I would -- that would be 13 helpful. IL4 - MR. TURK: The executive order creates a f ~ 15 - responsibility for the NRC. 16- DR. KLINE: Yeah, 17- MR. TURK: .Not for the applicant,.but for the
-18 federal agency.
19 DR. KLINE: Right. 20 MR. TURK: To consider whether federal actions or 21- activities, I think the word activities is used in the 22 executive order, federal activities and programs; consider 23 whet: - those things have negative environmental justice 24 effects. We have to consider and address t.S.at in the -- in 25 our decision as -- I'm sorry. In our documents concerning O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
718 1 the licensing of the facility. i O) 2 We will do that in the environmental impact 3 statement. 4 DR. KLINE: Yeah, I understand. 5 MR. TURK: The executive order also, however, 6 indicates quite clearly that it does not create any 7 procedural or substantive right for a party who may be 8 affected, such as here, OGD or other persons.who may assert 9 that they're going to be environmentally discriminated 10 against. So it is an executive order that requires our . 11 consideration of effects, but does not result in rights for 12 other parties. 13 LR. KLINE: Yeah. 14 MR. TURK: Now coming back to your first question
- 15. as to whether the issue should be set for summary 16 disposition.
17 I'd have to look very closely at the wording of the 18 contention. 1 19 DR. KLINE: Let me -- 20 MR. TURK: It may be that the applicant does not 21 disagree with my characterization. 22 DR. KLINE: Well, look at page 24. The applicant 23 asserts, at the top of the page, that the executive order 24 prohibits discrimination in any program or activity 25 receiving federal assistance; and that to the extent that () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
719 1 there is no federal assistance in this program, it doesn't (O j 2 even apply. Is that -- 3 MR. TURK: That's only one portion of the 4 executive order. 5 DR. KLINE: Okay. 6 MR. CURK: I was referring more to the general 7 statement at the beginning of the executive order, which 8 places this overall responsibility on federal agencies to 9 consider the impacts of their actions. Tho 's a different 10 section from the one that the applicant discusses there. 4 11 DR. KLINE: Okay. 12 MR. SILBERG: There is a significant, as I think 13 you-recognize, a significant legal proa em with applying the 14 executive order in this case. Because the execu.'ve order, ks 15 I believe at Section 601 -- 16 609, specifically says that this executive order 17 creates no judicial rights, no rights that are enforceable 18 in court. And it's difficult to see how you can litigate an 19 issue and then not have judicial rights arising from it. 20 DR. rJ4INE : Well -- 21 MR. SILBERG: But that's getting into the merits 22 of the legal issues, which we've really briefed. 23 DR, KLINE: But the -- I'm still confused as to 24 how we handle this contention, because the contention itself 25 alleges a deficiency on the part of the performance of the () ANN RILFY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 1
720 1 applicant. l ? MR. SILBERG: Right. 3 DR. KLINE: And the -- and whether or -- however y 4 we consider it, it is apparently going te turn on the 5 performance of the staff. And one of the -- is there any 6 duty of the applicant to -- 7 MR, SILBERG: None whatsoever. 8 DR. KLINE: Well, that's what I'm trying to 9 understand. 10 CHAIRMAN BOLLWERK: Except as my understanding, 11 the staff asks for them to -- 12 DR. KLINE: The staff believes that there is a 13 duty-of the applicant to do something here? 14 CHAIRMAN BOLLWERK: To make it part of their 15 environmental report. Is that not correct, or is that -- 16 MR. TURK: In order to support our evaluation of 17 effects, it is likely -- 18 DR. KLINE: Okay. 19 MR. TURK: -- that we will send inquiry to the 20 applicant asking for information. 21 DR. KLINE: Yeah. 22 MR. SILBERG: The issue, typically phrased, aside 23 from the discrimination aspect, which is really a mrate 24 aspect of the environmental -- of the executive order. The 25 issue that was litigated as a factual matter in the LES ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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721 1 case, and Ms. Curran can talk in much greater firsthand n (} 2 detail about that, was whether there were disproportionately 3 high and adverse human health or environmental effects 4 caused by the licensing action. 5 And in that case, the licensing board found two 6 such effects. And in that case, they litigated whether 7 there were such disproportionately high and adverse human 8 health environmental effects. That is one way, at least the 9 LES board, saw fit to deal with litigating this issue, 10 DR. KLINE: Well, if I read the contention 11 correctly, the State is asserting that the applicant has 12 failed to perform some duty under the executive order. And 13 the applicant _is saying we have no such duty under the 14 executive order. Doesn't that frame a legal issue? () 15 MS. CHANCELLOR: That's not quite our contention. 16 We're saying the applicant site selection process does not 17 satisfy the demands of the executive order or NEPA, and the 18 NRC staff must be directed to conduct a thorough and in-19 depth investigation of the applicant site selection process. 20 We're saying that the applicant site selection 21 process is deficient; and therefore, the NRC staff cannot 22 comply with what is required by the executive order or NEPA. 23 And our concern is if we do not raise these issues now and 24 want to challenge them when the final EIS comes out, both 25 the applicant and the staff will say waiver, that we should ANN RILEY & ASSOCIATES, LTD.
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722 1 have brought them up at this stage. () 2 3 DR, '.iLINE : But we can't read the citation to the executive or6er out of it, because we understand there's a 4 <leparate NEPA obligation to undertake an alternative site 5' analysis. You don't need the executive order to assert 6 that. 7 MS. CHANCELLOR: No. 8 DR. KLINE: When you site the executive order, 9 you're citing some special requirement, which the, 10 apparently the applicant disagrees that he has. And I'm -- 11 it isn't clear to me at all how this cantention gets 12 handled, I mean given what we've heard so far. 23 MR. SILBERG: Well, our - = 14 DR. KLINE: It seems like there's a legal dispute b ( ,/ 15 here. 16 MR. QUINTANA: Your Honor. 17 DR. KLINE: Yean. 18 MR. QUINTANA: The reason for my objection is we 19 believe that the decision made by the majority of the Tribe 20 is an informed decision which complies with the executive 21 order. It is because the Tribe has gone to such great 22 lengths and efforts, including going through the entire 23 federal process under the MRS and the program being canceled 24 out from under it, that this would comply. 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 l _ _ - _ - - - _ _
t 723 1 MR. QUINTANA: I think to allow this contention () 2 3 would Le to muddy the issues and bring on unnecessary delay and litigation. 4 DR. KLINE: Well -- 5 MR. SILBERG: I think there are two issues that 6 the Board needs to face at this stage of the process. 7 First, is there a legal issue to be -- is the contention 8 legally acceptable. 9 DR. KLINE: Yeah. 10 MR. SILBERG: We think it isn't. We've briefed 11 that. 12 DR. KLINE: I understand that. 13 MR. SILBERG: Second, even if -- 14 DR. KLINE: And you think it is. Doesn't that
) 15 frame a dicpute?
16 MR. SILBERG: Well, then the Board -- 17 DR. KLINE: You say yes, it is ; you si , no, it 18 isn't*t 19 MR. SILBERG. And the Board can make that -- and 20 the Board can reach that decision and decide 21 DR. KLINE: Yeah. All right. 22 MR. SILBERG: -- either to admit the contention or < 23 not to admit it. 24 DR. KLINE: Yeah. 25 MR. SILBERG: If they take our view of what the () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 r, (202) 842-0034 l
724 i executive order means, we think the appropriate thing would ( ) 2 be to exclude the contention avonitio. 3 Second, assuming that the Board reached the 4 conclusion that legally this contention was correct, that 5 there is, under the executive order, an obligation under 6 NEPA to look at discrimination notwithstanding the fact no 7 one's ever done it before in all the years of NEPA. Then 8 you get to the factual issue. Has the State set forth an 9 adequate basis -- 10 DR. KLINE: Yeah. 11 MR. SILBERG: -- to show that there's 32 discrimination to raise this issue to the level sufficient 13 to bring it as a contention. That's wholly apart from what 14 the staff --
) 15 DR. KLINE: Yeah, 16 MR. SILBERG: -- has to do in the environmental 17 impact statement.
18 DR. KLINE: Okay. 19 MR. SILBERG: So we're really talking three 20 issues. 21 DR. KLINE: All right. 22 MR. SILBERG: One, staff hasn't met obligations. ' 23 Board has to make a legal cut first, is this legally, you 24 know, within the scope. And second, has the State met its 25 burden under 2714 for an admissible contention on the () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
725 1 non-legal side of it. () 2- DR. LAM: -And final,-isn't it also true, my 3 reading of the contention, the State is not seeking any 4 relief through the action of the applicant. The State is 5- on1" seeking to compel he staff to do something. So on its 6 face, the applicant is not involved here, on its face. 7 MS. CHANCELLOR: But the NRC staff says that it 8 is, because if it needs to do anything, it will go back to 9 the applicant. 10 DR. LAM: Sure, sure. But right-now, the 11 contention as it reads right now, you're only seeking to 12 compel the staff to do something. 13 MS. CHANCELLOR: That is correct. Because we 14 believe -it would be illegal for NRC t.o put its imprimatur on 15 a site that was chosen that has discriminatory effects. 16 DR. LAM: So maybe it would not even involve the 17- applicant. 18 MR. SILBERG: Yeah, I don't have a problem with 19 the way the contention is phrased as to whether it's the 20 applicant's problem or the staff's problem. I think the two 21_ issues that the Board needs to focus-on are, one, the legal 22 issue, and second, have they met the 2714 standards. 23 MS. CHANCELLOR: I don't believe you can leave the 24 applicant out of the loop, because we need to look at what 25 the applicant.has done, either through discovery or if () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
-726 1 there's not enough.in the application, as to how it chose 2 the site.
3 CHAIRMAN BOLLWERK: That is exactly what_the LES 4 _ board did, to leave it at that. ! 5 DR. KLINE: Is there any legal clarification? G CHAIRMAN BOLLWERK: Yes? 7 MR. TURK: You know, in considering this, the 8 contention, looking back again-at State's contention BB, 9 there is a part of it that I should have objected to, and I 10 would' note that now. 11 CHAIRMAN BOLLWERK: The -- I'm sorry. Which 12 contention now are you objecting to? 13 MR. TURK: The State's -- 14 CHAIRMAN BOLLWERK: We're dealing with 0, but 15 you're now'back to BB? 16 MR. TURK: Yes. -Because we've-just been talking-17 about the State's contention -- 18 CHAIRMAN BOLLWERK: All right. 19 'lMR. TURK: -- that deals with environmental 20 justice. 21_ __ CHAIRMAN BOLLWERK: And we haven'; forgotten about 22 you, Mr. Kennedy. We're getting -- coming to you. All 23 right. 24 MR. TURK: That's their contention BB. 25 DR. LAM: BB. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Nashington, D.C. 20005 (202) 842-0034
727 1 MR. TURK: The words of the contention itself are () 2 partially objectionable, because at the tail end, after 3 saying that the site selection process doesn't satisfy the 4 executive order, they then say, quote, "The NRP staff must 5 be directed to conduct a," I suppose it should say a 6 " thorough and in-depth investigation of the applicant's site 7 selection process." That request for direction from the 8 licensing board is improper here, because there's 9 established case law which says that the licensing board is 10 not to authorize to direct the staff in the conduct of its 11 activities. When we did not object to the contention we 12 overlooked the wording, and considered the substance rather. A 13 But I would object to those words. If the contention was 14 admitted, it should exclude those words. f 15 CHAIRMAN BOLLWERK: All right. In thaory, what 16 the LES board simply said to the staff, the EIS is 17 inadequate. To make it adequate, you have to do something 18 else. And that not a direction as such, it's simply a -- 19 MR. TURK: And what's typically done in NEPA cases 20 is to whatever extent the record supports it, the EIS would 21 thereby be supplemented. 22 CHAIRMAN BOLLWERK: Right. 23 MR. TURK: By the decision itself. 24 CHAIRMAN BOLLWERK: Correct. Although in that 25 instance, the Board decided, to my understanding, decided O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
728 1 not to make the supplementation itself but left it to the () 2 3 staff to do further, do whatever the staff thought was appropriate. 4 M.s . TURK: Yeah. They cort of dropped it back in 5 the staff's lap. But that gets you also to the question of 6 what does NEPA require. We're not required by NEPA to take 7 certain action based upon potential impacts. We're required 8 by NEPA to consider -- l 9 DR. KLINE: Consider. 10 MR. TURK: -- the costs and benefits and reach a 11 decision after having done that. 12 CHAIRMAN BOLLWERK: All right. 13 MR. TURK: And the balance as to how much 14 quantitatively you assign to 7e impact versus another, 15 that's not something tb- .A assigns responsibility for us 16 to do. 17 CHAIRMAN BOLLWERK: All right. Anything further 18 in terms of either BB or O that anybody wants to say? 19 All right. Mr. Quintana, I'm sorry. 20 MR. QUINTANA: Well, the only thing that I want to 21 reiterate is we can't even get to that threshold level of 22 decision on this contention because the State does not have 23 standing to bring that. This isn't the State's members. 24 CHAIRMAN BOLLWERK: Anything you want to say about 25 that, Ms. Chancellor? O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
729 1 MS. CHANCELLOR: Totally disagree with that sort 2 _of analysis. 3 CHAIRMAN BOLLWERK: All :.ight. Mr. Kennedy, this 4 would be Confederated TribG C. 5- MR. KENNEDY: It's actually just part of C, but I 6 would likelto maybe start with the last point. I believe
!?_ all of the Tribe's members, or-at least the vast majority of 8 them, are citizens of the state of Utah. So I'm not quite 9 sure I understand Mr. Quintana's distincti n there as to the 10 __ State's interest.
11- And I think the State started off this proceeding 12 by saying that they recognize the sovereignty of the Skull i 13- Valley Band and they didn't wish to challenge that a 14 sovereignty. And'I assume that extends to my clients and 15 other_ Indians here in the state. L But I think nonetheless,
'16 'the applicant has come here for the approval of this Board, 17 and Mr. Quintana and his client are of course supporting 18-- -that.
19__ And I think as they participate in this kind of a-20- proceeding it represents an acknowledgement that although a 21- tribe may be a sovereign entity, like any sovereign nation, 22- you are not alone. You have neighbors. And you cannot 23- ignore the interests at your neighbors. And I think that 24 that's the issue that is being discussed here and that's of 25 ' concern here, in large part. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
730 1 And I think as the Board reviews these issues it's () 2 certainly appropriate that the Board carefully and fully 3 consider the impacts on the culture and the community that's 4 involved. I would just call attention to a couple of the 5 things that occurred during our site visit. 6 One was a representation that the majority of the 7 Band members who actually live on the reservation, the \ 8 majority of those families were opposed to this project. 9 Now I think that's an issue of fact. Maybe true, may not be 10 true, but that's an issue of fact. 11 There was another important representation made at 12 that site visit, and that was that tribal leaders have used 13 financial incentives or disincentives to influence support 14 or non-support of the project. We've heard a lot about, you () 15 know, this is what the people want, et cetera. And if 16 that's at all relevant, then I think the question of what 17 kinds of actions are being taken to influence those 18 decisions are entirely relevant. They certainly reflect an 19 impact on the community, if nothing else. 20 And I think, also I think it can be said it 21 reflects an impact on their culture. If our contention is 22 allowed, we would present evidence that would show that 23 i grandmothers who are bringing their children to the area 24 now, if this project were approved, would not do that 25 anymore. People who are burying their dead there now would ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
731 1 not do that anymore; people who are participating in ( ) 2 religious ceremonies there would not do that anymore. And I 3 think those are cultural impacts. 4 Whether the motivation is something that's 5 important or relevant, I don't know. I mean I'm not sure 6 that there has to be a connection And whether the fear is 7 rationally based, whether it's based on fear or some other 8 concept, I don't know. But I still think that there would 9 be cultural impacts. And whatever the motivation, I think 10 those need to be taken into account. 11 I think the Board ought to be able to verify these 12 things with respect to the representations that have been 13 made, and I think those are legitimate inquiries regardless 14 of the sovereign status of the Skull Valley Band. And I'd (_j 15 leave it at that with the written submission we've already 16 made. 17 CHAIRMAN BOLLWERK: All right, sir. 18 Anything from the applicant? 19 MR. SILBERG: Yes. 20 I think what we've heard just now is perhaps the 21 best example of late filed, late submitted new contentions, 22 new bases, new everything, with no support whatsoever. I 3 23 think what I just heard reported was not what I heard on the 24 reservation. I heard no one say that a majority of Band 25 members living on the reservation opposed the project. I 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
732 1- think that's a flat-out misstatement. () 2 3 The allegation that tribal members used dollars to influence support of a project, first of all, is irrelevant 4 to this contention or to any contention, and I think is an 5 inappropriate subject for this Board even to listen to, let 6 alone to take action on. 7 Whether that discussion that we heard and what we 8 satw on our visit to the reservation reflects an impact on 9 the community I think misstates what the executive order 10 purports to do, which is to look at effects on human health 11 and the environment. E 9ther or not we heard anything that 12 reflects an impact on culture, I think culture is < at 13 the environment and ought to be considered. But we've had 14 no evidence whatsoever that supports that. 15 To the extent that Confederated Tribes is saying 16 that grandmothers will not bring their children to the 17 project if it's built, I think has jrat totally wiped out 18 whatever standing this petitioner had hoped to accomplish. ' 19 Because if indeed the children, the chi d has been brought 20 to the .eservation will no longer be brought to the 21 reservation, then they have no standing. There's no 22 possibility of injury if that child never comes to the 23 reservation. 24 We've heard speculation about burial of people, 25 burying dead, religious ceremonies. Again, statements by () I ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 j Washington, D.C. 20005 (202) 842-0034
733 1 counsel, not appropriate as the basis for a contention. () 2 I think we've already discussed the fact that the 3 supreme court is the ultimate arbiter of the law of the 4 land. And thus, while Confederated Tribes might say that 5 it's irrelevant that a fear is rationally or irrationally 6 based, supreme court has resolved that in Metropolitan 7 Edison v. People Against Nuclear Energy. 8 And we simply don't have a shred of evidence that 9 supports allowing this contention to come in on the question 10 of disparate impact, even if the legal issues that we've 11 raised are resolved against us. And we would of course urge 12 the Board to consider those legal issues. 13 I would also note that this contention contains 14 five other allegations besides environmental justice. None
) 15 of them contain a shred of basis. They're merely a sentence 16 or two that alleges a failure to assess, a failure to 17 discuss, issues all of which are discussed in the 18 environmental report. There's no indication that the 19 Confederated Tribes have made any effort to discuss let 20 alone evaluate --
21 MR. KENNEDY: Your Honor, I haven't addressed 22 those= issues yet, and I think it's not appropriate to be 23 discussing those now. I think they're coming up. 24 CHAIRMAN BOLLWERK: All right. If he apparently 25 wants to discuss them in, I guess the next portion where we ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
734 1 talk about cost benefit. So why don't leave it for that. () 2-3 MR. SILBERG: Oh, I'm sorry. CHAIRMAN BOLLWERK: That's all right. Not a 4 problem. 5 MR. SILBERG: Well, on environmental justice at 6 least, that's all I have to say. 7 CHAIRMAN BOLLWERK: All right. Mr. Quintana. 8 MR. QUINTANA: Well, one, Mr. Kennedy represents 9 the Confederated Goshutes. That is a completely separate 10 reservation. And assuming he has standing, which we do not 11 believe that he does, this is an informed decision by the 12 cribe that has gone to probably greater efforts than any 13 other similar community in the United States. 14 And I think that if this facility is not built, it () 15- would be environmental racism. Because when an informed 16 decision is made by a minority group, or any group, on a 17 hard science issue, and after carefully examining that issue 18 other people can throw stones and say they're not smart 19 enough to make their own decisions, that's environmental 20 racist. 21 CHAIRMAN BOLLWERK: All right. Staff? 22 MR. TURK: Your Honor, I'll address only the 23 environmental justice portion of the contention, although 24 I'm going to start with a statement that applies to all of 25 it. The contention lacks specific reference to the ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
\ 73F l i 1 environmental report to show you that there's a specific () 2 disagreement, there's a genuine dispute of material fact 3 between the Confederated Tribes and the applicant's 4 submissions. 5 In particular, with respect to environmental 6 justice, the only basis that appears in the contention to
- 7. support that is on page six, where there is a, I believe a what's referred to as an ipse dixit type of insertion; that 9 the ISFSI will have a dramatic economic and sociological 10 impact on the minority community residing at the Skull 11 Valley Reservation. And then it concludes by saying no 12 assessment of the impacts upon Indian religious ceremonies 13 or visits by Indians to the Skull Valley burial ground has 14 been made.
,Q
( ,) 15 Well, in fact there is a dircussion in the 16 environmental report commencing at page 2.7-7 Section [ 17 2.7.3 is the entire section that addresses potential 18 environmental justice impacts. We referred to that 19 erroneously in our response at page 130, 20 We stated that the tribes had not addressed the 21 discussion in Chapter 7. That's a title. It should have 22 been Chapter 2 of the environmental report. So we see 23 nothing in the contention or its basis that would support 24 admission of environmental justice issues in this 25 contention. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202, 842-0034
736 1 CHAIRMAN BOLLWERK: All right. () 2 3 MR. TURK: And everything that the Confederated Tribes have referred to today as to potential effects of 4 what people may or may not do in the future, L;.:*a 's no 5 svidence for that. There's nothing submitted with the 6 contention to support that. 7 And it's unreliable in any event because given the 8 heated nature of this proce ling and the positions taken by 9 vario'is persons and parties, statements as to what may or 10 may not happen in the future really are unreliable and fail 11 to give you a concrete issue to litigate. 12 CHAIRMAN BOLLWERK: All right, sir. 13 Mr. Kennedy. 14 MR. KENNEDY: Concerning Mr. Silberg's statement () 15 that what I said was, quote, "A flat-out misstatement," I 16 just turned to Margene dullcreek, who is here, who made the 17 statement, and as-I said it just a few minutes ago, nodded 18 in agreement. So I would say Mr. Silberg's statement is the 19 flat-out misstatement. And I think there are at least four 20 or five others that are here in the hearing room today that 21 would confirm what I had said. T 22 For Indian people, being able to go to a 23 reservation or to their homeland is a benefit. It's a 24 positive thing. 25 Being not able to go is a negative thing. It's an injury. O
\/
ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 c (202) 842-0034 1
-737 So-if you think that we would lack standing
() 2 3-because someone would want to' stay away because'of the contamination, or their vision of'the contamination of this
-4 area by the construction of something like this, I guess I 5 just have to disagree with you . That's not the way it.is 6 seen in Indian culture. And.I don't think that in any way.
7 diminishes-the standing. In fact, if anything, it would 8- increase it. 9 I don't know~how to separate the supreme' court's 10 comments about fear versus impact on culture. I guess if 11 the supreme court says that an impact on culture that occurs 12 because of fear is to be disregaroed. then so be it. But I 13 don't think that's what the supreme court said. And I think
- 14. cultural impacts are important, and I don't think the
(~~)\
\_ 15 . motivation or the cause of those, the immediate cause of 16 those impacts-is relevant:in a situation like this.
.17 We would jusc say that1 brevity-is the soul of wit.
18 And if we can avoid prolonged identification of lack of s 19 -information, that that's fine. And that's -- that ought not 20- to be discouraged, but ought to be rewarded. And if a
' 21- contention says there is no information, we ought not to 22 have to go through and_-say_on line six there is no 23 information,-on line 10 there is no information, and so 24' forth. And I think again goes back to what Mr. Nelson said 25- earlier. .That's all I had to say.
() ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
738 1 CHAIRMAN BOLLWERK: All right. Next contention () 2 3 would be CC, which' deals with cost benefit analysis, There's-also-Castle Rock 15. 4 That's all right. State CC, Castle Rock 15, 5 Confederated Tribes C. 6 MP LATER: Your Honor, I need to correct the 7 record on at arlier matter. 8 CHAIRMAN BOLLWERK: Okay,
.9 MR. LATER: Maybe this is an appropriate time for 10 just a moment, since we're speaking misstatements.
11 Earlier I maintained that we-had rejected the 12 epplicant's restatement of our contention 13. I was in 4 13 error in that. We in fact do accept that. I've caused 14 consternation with Mr. Blake in that regard for which I 15 express profound apologies. 16 CHAIRMAN BOLLWERK: Take it you two have been 17 talking about it-and he wasn't prepared for that statement, 18 I take it. E19 MR. LATER: He was not' prepared for it. He was l 20 clearly distraught at this. So I hope that I have remedied
.21 this matter.
22 The serious issue though is that clearly through 23 these proceedings there's a profound decline in my mental 24 faculties -- 25 (Laughter.] O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202)'842-0034
739 1 MR. LATER: -- which this panel may need to () 2 evaluate as a additional impact in the application. 3 MR. BLAKE: I appreciate very much his statement. 4 I have been working with all the parties on rephrasing and 5 I'll still have my report for the Board. 6 MR. LATER: All right. 7 MR. BLAKE: Maybe 9:00 or whenever we get that to 8 them. 9 CHAIRMAN BOLLWERK: All right. The Board 10 appreciates your efforts, sir. 11 All right. Utah CC. 12 MR. NELSON: Utah CC goes to the issue of whether 13 or not the environmental report meets the requirements of 10 14 C.F.R. 51.45(c). This is the section which requires that a (,j/ 15 quantification of various factors and environmental impacts 16 be included in the environmental report. And that where 17 there is not an ability to quantify, that the qualitative 18 and qualitative terms of those impacts be assessed. 19 The review of the environmental report by the 20 State focused on Chapter 7 because it was Chapter 7 that we 21 were able to find some quantification of numbars. The 22 applicant, in their response, points to Chapters 4 and 5; 23 not identifying any specific provisions in 4 and 5, but 24 indicating that those sections on environmental effects and 25 accidents constitute part of their meeting this requirement. () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 u
l i 740 1 We have reviewed 4 and 5, do not find the quantification nor I 2 an explanation an to why quantification was not done. 3 The applicant also points to the one page 4 description of no build alternative, in which there is no 5 cost quantificationc on environmental impacts. In Chapter 6 7, Chapter 7 consists of four pages. And in -- and a table, 7 two tables I guess. And in reviewing those provisions, we iE 8 do find some quantification. 9 There is a quantification on page 722 which says 10 that recent estimates place the savings to utilities and 11 their customers of a centralized interim storage facility 12 over construction of additional on-site storage facilities 13 for spent fuel at 1.758 billion. We assume that that means 14 that the savings would occur if the federal govern:aent, if O) (_ 15 the Department of Energy were to take responsibility for 16 those wastes. 17- If it does not, we are confused then, because on 18 page 731 the statement is made, under " Costs," and this is 19 the other section that includes a specific cost number. The 20 total life cycle cost for the facility and its operation 21 over its projected 40 year operating life is 1.536 billion. 22 The numbers are somewhat equivalent. And as we 23 read that, what we don't understand in part is why that is 24 considered to be a savings by building this facility if the 25 cost is approximately equivalent to the savings if DOE would ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
741 1 have taken it over. () -2 3 The table then that_is attached, 7.3-1, is the only other place we could find quantitative numbers. And 4 'those' list generalized numbers for capital cost,-interest, 5- expense, operating erjenses and -environmental costs, saying 6 that the environmental-costs are negligible, and just 2
- 7. summing all of the rest of the costs. The contention is is 8 that that table and that chapter do not meet the
-9 requirements of 51.45(c).
10~ The common. error that is often made under NEPA 11 when'you do a cost benefit analysis is you fail to quantify, 12 when you can, environmental costs. And the State has 13 pointed out-in several circumstances where those costs could 14 be quantified, and I won't repeat those. They're listed in k) _15__ the State's_ comments. But I would call attention to one 16 specific request for cost which the applicant. replied to. 17 We requested that the costs, emergency response 18 costs, be quantified. And the' applicant responded that if 19 you look at Table: 7.3-1, that they're quantified, because 20- they're-included within the operating expenses-costs of. 21 976,000 and 1,244,000. We do not see in that table _any H22 breakdown on that cost number. And it's that kind of-
-23 limited cost analysis that forms the basis for our 24 contention.
25 CHAIRMAN.BOLLWERK: All right, sir. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 642-0034
742 1 Mr. Gaukler, I see you are up. Is that -- () 2 3. MR. GAUKLER: First of all, I'm confused. Yes, Your Honor. The contention as 4 originally drafted did not just talk about quantification. 5- That's how come we referred to other sections of the 6 environmental report which discussed and evaluated the 7 impacts. The contention had ctated that the applicant 8 failed to provide an adequate balancing of the costs and 9 benefits of the proposed project, or to quantify factors 10 that are amenable to quantification. They refer to, in this 11 regard, they criticised in their written reply, which I'd 12 like to refer to, *he brief discussion of 7.3. But that 13 Section 7.3 just refers to the cost of the facility, and has 14 as its background, the description in 4 and 5 where we () 15 evaluate all of the different environmental impacts. 16 Also in terms of the written reply, the State 17 . claims that we're trying to shift the burden to them. 18 That's not correct. It's the State's burden to come up with 19 an acceptable contention. 20 In the same vein, in their written reply they go 21 beyond quantification by saying that 5145(c) is not limited 22 to accidents, taking issue with our response and reference 23 in our reply to Chapter 5, which is the environmental 24 effects of accidents. We reference Chapter 5 in our reply 25 because the State's basis was limited to accidents. They () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
743 1 referred to their contentions, I believe H through P, which () 2 3 are safety contentions related to accidents or other safety factors. " 4 Other parts of the environmental report do address 5 other environmental effects, including radiological effects , 6 from normal operation, which is set forth in section at page 7 4.2-9 of the environmental report. 8 Turning to the issue that was focused on in the 9 oril response here, quantification. 5145 does not require 10 quantification in all instances, only to the fullest extent 11 practical. And also, as set forth in the cases that we cite 12 in our reply, quantification is not a ultimate goal or 13 objective of NEPA. 14 The cases that we set forth there says that NEPA 4 15 requires such information as appears to be reasonably 16 necessary under the circumstances for the evaluation of the 17 project. And we claim that we have set forth that 18 information in the environmental report. We have quantified 19 costs to the extent practicable. 20 With respect to the particular claim on emergency 21 costs that -- emergency planning costs that was referred to 32 just by counsel for the State, if we had broken down that 23 number, they should have asked for more detail. In effect 24 that's a request for discovery and isn't appropriate at the 25 contention phase. h' ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 , Washington, D.C. 20005 (202) 842-0034
744 1 I have no further comments. I NJ 2 CHAIRMAN BOLLWERK: All right. Mr. Quintana. 3 MR. QUINTANA: No comments. 4 CHAIRMAN BOLLWERK: Staff. 5 MR. TURK: Your Honor, I believe we made an error 6 in our response to this contention. In fact, we would 7 oppose the entire contention, 8 The only thing we did not oppose in our written 9 response was -- well, here's what we stated. We said, "The 10 staff does not oppose the admission of portions of this 11 contention to the extent that the staff does not oppose the 12 admission of Utah contentions H and P" -- I'm sorry -- "H 13 through P." In fact, however, the contention lays out no 14 basis which would support the admission of an environmental 15 contention. And regardless of which of the contentions H [ 16 through P, we ao not oppose separately there, that will not 17 give rise to a new co. ention here in the absence of any 18 basis to support it. 19 So we would oppose the admission of the entire 20 contention, and we would rest on our written response with 21 respect to other matters. 22 CHAIRMAN BOLLWERK: Any questions? No? 23 All right. Mr. Nelson. ~ 24 MR. NELSON: Just a couple of points. Our 25 contention is not limited to H and P. We're very specific () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
745 1 that we point those out s part of examples of failures. The () 2 case law -- to simply ignore the case law of NEPA requices 3 to the excent practical quantification is not far act.ng. 4 We disagree with that reading of the law. 5 And finally, to assume that we would ask for more 6 detail because we simply ask for a basic number on what 7 accident emergency response costs are and were refused by 8 not having that environmental report because there is no 9 , breakdown, is an assumption that's not part of the record. l 10 i We think that it's important that at least basic facts be J 11 provided to a decision maker in making a decision under 12 NEPA. And those kinds of basic facts are important. 13 We *3tand in the same position regularly with thia 14 ftpard of hav).ng someone continually asking for more , ( 15 information, never being satisfied, not adequate. This is a 16 circumstance we're nimply asking for that information. That 17 basic information fits the requirement of adequacy. 18 MR. TURK: Later in the proceeding we may hear the i 19 L applicant raiae the same objection to the staff. We keep 20 asking them for more information without end. We hau a't 21 haard that yet. 3 22 CHAIRMAN BOLLWERE: Is thera something you want to 23 say? 24 DR. KLINE: No. 25 CHAIRMAN BOLLWERK: No? All right. Castle Rock h l[ ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 k
746 1 15 then, please. () 2 3 MR. GAUKLER: Just give me a second, please. CHAIRMAN BOLLWERK: All right. 4 MR. LATER: I will. Our contention number 15, 5 like the State raises issues regarding cost benefit analysis 6 provided oy the applicant, and we agree with the arguments 7 and positions set forth by the State. We have asked to 8 adopt those. 9 Our contention number 15 focuses on a more 10 parochial aspect of the cost benefit analysis, and that is 11 the analysis costs in the area adjacent to the facility, 12 specifically the analysis costs as they affect my clients, 13 Castle Rock petitioners. 14 And let me emphasize again we endorse the State's
) 15 arguments. When you compare the portions of the cost 16 benefit analysis that are subject to the State's contention 17 with those that are the subject of our contention 13, they 18 are stunning in their detail provided by comparison.
19 The cost benefit analysis or the cost analysis 20 portion of that that relates to near area impacts is as 21 follows: The indirect costs which are derived from ' 22 socio-economic and environmental impacts of the facility are 23 minimal due to the remote location and small size of the ( 24 actual storage area, period, end analysis. The analysis is 25- -not quantitative. O' ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
747 1 The analysis does not identifv specific costs addressed, () 2 3 assessed or considered. One cannot consider it an analysis. In our response we identify what we believe to be 4 the significant costs omitted, the costs that will be 5 impacted on these petitioners. We received of course the 6 objection, "You didn't provide enough detail." Given the 7 analysis that we had to work with, we believe that we met 8 our burden simply pointing out that there was ene, no 9 quantification of the costs, two, no identification even of 10 the costs that were to be considered, or analysis of those 11 qualitative or quantitative. 12 But in fact in our reply we went beyond that and 13 did a good portion of the work, or at least a big first step 14 that the applicant should have done, and it was the () 15 applicant's burden. Which was providing an identification 16 of the kinds of : . cts that the Castle Rock petitioners 17 will suffer an pect te suffer in terms of their 18 economics, their farming operations, potential groundwater 19 impacts, and the limitations cn1 development of that 20 property, none of which were assessed, none of which are set 21 forth in the applicant's cost benefit analysis. 22 To the extent there is any analysis there th?.t 23 alleges those costs ate minimal, we dispute that. We 24 believe we've provided a substantial factual basis that 25 creates an issue appropriat e - for litigation as to the O' ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005
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748 1 consideration of those costs. Thank you. 2 CHAIRMAN BOLLWERK: All right. Applicant. 3 MR GAUKLER: Yes, I would note, first of all, 4 that in terms of least ef fective contention 15, Castle Rock 5 -had no reply with respect to our response of Castle Rock 15. 6 I figure he's referring to other parts of his response which 7 we have referred to before, and have pointed out that they 8 lack sufficient bases to it forth a sufficient contention 9 with respect to those other contentions, and by the same 10 token would lack a sufficient basis for contention 15 as 11 well. 12 I would like to briefly make two other points, 13 maybe three. 14 First, again the statement in Section 7.3 of the 15 environmental report on which Castle Rock refers to is 16 backed up by the extensive analysic in chapter four and five 17 of-the environmental report where v1 set forth the analysis 18 that Gopports the stat 3 ment that the costs are negligible. 19 There's no reason to quantify costs which are viewed to be 20 negligible, and therefore there's no reason to quantify 21 those costs. 22 Second, I could point out what I think is a 23 generic deficiency with respect to this contention and 24 others. The petitioner Castle Rock ends this contention by-
- 25_ saying that,_" Petitioners intend to offer evidence with-i ANN RILFY & ASSOCIATES, LTD.
O- Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
4 4 749 f 1 respect to the true costs of the proposed facility." That j.( ) 2 is an insufficient basis for a contention. The Connission's ; 3 requirements require to come forth witt. facts at the 4 contention stage to support your contention. Castle Rock l 5- has not'dene that, and we feel this contention should be ! ! 6 dismissed, i 7 , CHAIRMAN BOLLWERK: All right. Mr. Quintana. 1 l 8 MR. QUINTANA: No comment. ; l 9 CHAIRMAN BOLLWERK: Staff. i 10 MS, MARCO: The staff opposes this contention, i 11 because it does not provide sufficient information, and it i 12 does not meet 2714(b) standards. That's set forth in our i i :13 brief, i 4 14 CHAIRMAN BOLLWERK: All right. Mr. Later. 15 MR. LATER: Thank you, Your Honor. I would-expect 16 from the panel and in these proceedings an even-handedness l 17 of treatment really as we look at these. And if you look at i
- - -18 the portion of-chapter 7 that is the point of our criticism j -19 here, and compare the adequacy of that statement with the
. 20- depth of our analysis in our first submission and what.we 21 had.to work with, I think you need to make thet kind of i
22 comparison in the problems that we had in coming to grips 23 with an issue and presenting a contention that.is I 24 appropriate for litigation. 25 And perhaps an even more pointed example, it's ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
750 1 true that we simply ran out of time and ability to respond () 2 to contentions, and some of them we didn't get the 3 opportunity to draft responses to. We believe in ou reply 4 in the letters that we submitted we provided exactly the 5 factual information that is complained about for its absence 6 here. 7 And the answer we get to that is, "Ah, but you ' 8 didn't reference that in your reply to contention number 15. 9 Therefore, it can't be considered. You have to wipe it out 10 of your mind." But in the very next sentence the applicant 11 says to you, "Well, but if you look at our provision in 12 chapter 7 here, of course that's backed up by chapter 4 of 13 the document. It's not referenced there, but you should 14 incorporate it by reference there." There needs to be an 15 even-handedness of treatment hcre hopefully in order that
- 16 this Board can get to the substance of the issues and truly 17 deal with have we presented material in this very 18 accelerated process that'now presents a reasonable issue for 19 litigation. I think we've done that, 20 I think we've met the standards, and that the Board should 21 consider the materials that we've presented. Tnank you.
22 CHAIRHAN BOLLWERK: All right. Let me have 23 Confederated Tribe C. 24 MR. KENNEDY: Thank you. I think this does -- 25 MR. SILBERG: Excuse me. Before we start can we () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
751 1 have a little -- 2 CHAIRMAN BOLLWERK: Okay. And just let me say, 3 sir, that I recognize your contention C covered a number of 4 different things. If there's anything else you want to say 5 about it, obviously feel free. I'm not trying to -- as I 6 said, this is not an attempt to limit the scope of your 7 contention, but simply to try to organize things. 8 MP. KENNEDY: Thank you. 9 MR. SILBERG: Excuse me. And did we finish the 10 other aspects of contention D, the non-environmental justice 11 aspect? 12 CHAIRMAN BOLLWERK: Of C? 13 MR SILBERG: Of D. 14 CHAIRMAN BOLLWERK: I think we're dealing with C, 15 aren't we? 16 MR. SILBERG: I know, but we had talked about his 17 contention D that have the environmental justice issue in 18 it. 19 CHAIRMAN BOLLWERK: I think it was C. I think 20 we're dealing with C. 21 MR. SILBERG: Okay, I got it; I got it. Thanks. 22 CHAIRMAN BOLLWERK: Right. And that's I think 23 what I just told him that if he needs to say anything about 24 C, feel free to do so at this time. That's what we would 25 deal ith. I) ANN RILEY & ASSOCIATES, LTD. -' Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
752 1 MR. SILBERG: I'm sorry, late in the day. 2 CHAIRMAN BOLLWERK: All right.
; 3 MR. KEaNEDY: I guess the concern that we have in 4 this cost benefit analysis really arises one step before the 5 beginning of the State's analysis. And that is in order to 3
6 have a cost benefit analysis that means anything you have to i
- 7 know what the costs are.
8 Our submission here is that there is an inadequate, and in some cases totally 1rcking application i 9 10 with respect to the costs. 11 For example, the staff says I think at page 128, a 4 12 329 of their response that you don't have to consider the 13 impacts of decommissioning after the expiration of the lease 14 period under the regulations, and then they cite one of the () 15 regulations. 16 MR, TURK: Could you -- 17 MR. KENNEDY: 128, 129, bottom of 128 and 129, top 18 of 129. Well, the lease here actually deals with i 19- decommissioning and requires denommissioning. The lease has 1 20 to be approved by the Bureau of Indian Affairs. That's 21 because it's on trust property, and it's part of the 22 requirements of the federal regulations under 25 C.F.R. 23 Approving the lease by_the Bureau of Indian Affairs is a l 24 federal action, and that triggers NEPA. 25 So it is a federal action in this instance that ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 l l 1
753 1 requires -- or that invokes NEPA at least in part with the () 2 approval of this decommissioning process. NEPA requires 3 consideration of reasonably foreseeable consequences of the 4 federal action, and under this lease decommissioning is a 5 reasonable consequence. So regardless of what the 6 regulation the staff has cited, NEPA still requires that the 7 decommicsioning costs be evaluated. They haven't been. It 8 hasn't been done. 9 In fact, because of the withholding or maybe even 10 the lack of information on costs, there just can't be a 11 reliable cost benefit analysis. And we're in a position 12 here and ultimately the Board and the staff will be in the 13 position where they just don't have the information that's 14 essential for tnis analysis. () 15 They have argued that they have presented the 16 costs. 17 But we would submit that the basic cost of the lease has not 18 been presented. It's certainly a very essential part of the 19 project. What is the cost of the lease? Nobody knows what 20 the cost of the lease is. 21 We have suggested that with the lack of this 22 information that decommissioning costs have been under P2 estimated, because that component isn't included. 24 I think there's a yiddish proverb, and I modify it 25 slightly, that says, "They have given us air. Now give us /~N () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 i
754 1 money, or give us some of that-financial detail." And then () 2 I would just like to make a note on the record of one matter 3 relating to a number of objections that the staff have made, 4 and I just want to have the record reflect that we don't 5 agree with this point. And that is that they challenge or ) 6 object to a number of the contentions on the basis that the 7 various contentions, and I think almost all of the 8 petitioners have raised these points and they've made this 9 r,rgument for virtually everybody, that certain objections 10 constitute impermissible challenges to the regulations. 11 And I would just note that if a regulation is 12- contrary to law, that it ought to be challenged at the 13 various earliest part of the proceeding. And if we have 14 done that, if staff thinks it's impermissible, I would
) 15 suggest that ve still ought to be ab]e to make those 16 challenges and preserve the record on it, which we do.
17 That's all I have to say. 18 CHAIRMAN BOLLWERK: All right. Applicant, any 19 response? 20 MR, SILBERG: Yes. I guess I'm not sure what I 21 said about this before. So with your leave I'll probably 22 say -- 23 CHAIRMAN BOLLWERK: You basically said it had no 24 basis, if 1 remember correctly. 25 MR. SILBERG: I'm going to say it has no basis. I ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington,-D.C. 20005 (202) 842-0034
755 1 don't think'I've changed my mind on that. () 2 3. CRAIRMM4 BOLLWERK: categorically said this has, but that it was all the came I think you listed it j 4 _ point I think, j 5 MR. SILBERG: Well,-I won't go down through them j 6 again, but if you'll read them you'll see none of them-have 7 a basis, t , 8 With respect to the lease approval by the BIA, BIA 9 does need to agree with the lease. In fact, it har approved 10 the lease subject to the NRC NEPA review to which BIA will 11 be a cooperating agency. That's simply not an issue here or 12 relevant at all to this contention. 13 The statement by Confederated Tribes that NEPA is 14 supposed to deal with the reasonably foreseeable
) 15 consequences, we would agree. In. fact many of our 16 objections to other contentions were that they were trying
- 17 to deal with-the unreasonably unforeseeable consequences.
18 But in any event, decontamination costs, decommissioning l 19 costs which counsel said have-not been evaluated,_are 20 evaluated. They're laid out in Appendix B to the license i 21 application, chapter 4, and the environmental report 4.6.3. l 22 - And this contention does not reflect -- does not refer to i 123 them,-nor did the oral presentation by counsel refer to . 24 them.- 4 25 Whether the basic cost of the lease hasn't been 5 1
~
ANN RILEY & ASSOCIATES, ITD. Court Reporters 1250 I Street,-N.W., Suite 300 Washington, D.C. 20005 , (202) 842-0034
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756 1 presented, the lease is a commercial document which is not () 2 3 relevant. Tnis project is being evaluated. applicant's project, and it's the cost benefit of the It is the 4 applicant's project which is being evaluated here, not cue 5 lease which has already been looked at by the Bureau of 6 Indian Affairs whose job it is to make sure that the 7 interests of the Skull Valley Band are protected. 8 With respect to Mr. Kennedy's yiddish proverb, I 9 was in the courtroom when Judge Ginsberg stated that yiddish 10 proverb, and to borrow a phrase from Senator Lloyd Bentson, 11 "I know Judge Ginsberg, Mr. Kennedy, and you're no - "' 12 MR. KENNEDY: Thank goodness. 13 MR. SILBERG: I have nothing further. 14 MS. MARCO: First of all -- 15 CHAIRMAN BOLLWERK All right. Mr. -- 16 MS. MARCO: Oh. 17 CHAIRMAN BOLLWERK: Mr. Quintana. 18 MR. QUINTANA: The contention of the Confederated 19 Goshutes who do not have standing does not meet the 20 requirements of 2.71422. How much money are the Skull 21 Valley Band of Goshutes getting? Well, I'm not going to 22 tell you. 23 CHAIRMAN BOLLWERK: I think that's become clear. 24 Anything else? Nc? 25 Staff, please. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
1 757 1 MS. MARCO: First of all, the staff contends that () 2 3 this contention does not meet the 2714 (b) requirements. And in addition, if the Confederated Tribes wish 4 to challenge the Commission's regulation, the proper vehicle 5 to do that is through '758 (b) petition. 6 In addition -- that's it. We stand on our 7 pleadizag. 8 CHAIRMAN BOLLWERK: All right. l 9 MR. TURK: May we confer for a minute? 10 CHAIRMAN BOLLWERK: Yes, certainly. 11 MR. TURK: I j"st sant to add one thing, Your 12 Honor. I don't mean to double team this, but rather than 13 take the time to explain to Ms. Marco what my thought are, I 14 thought I would address it directly. O) (,, 15 When I heard Mr. Kennedy say that the staff is not 16 considering decommissioning costs on the basis of 10 C.F.R. 17 51.61, I thought to myself what a terrible omission and 18 error we must be making, because we should consider 19 decommissioning costs. But if you look at our pleading, the 20 reference to 51.61 was made with respect to sub-part 1 of 21 the basis of the contention, which addressed the need to 22 consider long-term storage beyond the life of the facility. 23 In fact, later in the basis for the contention 24 there was an assertion that decommissioning costs had not 25 -been properly evaluated. We oppose that on the grounds that ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
758 1 insufficient basis has been shown to support that issue. () 2 I would note that I'm not going to argue to the 3 merits or whether the applicant has adequately considered 4 decommissioning costs, but I would note that Mr. Silberg has 4 5 referred to Section 4.6 of the environmental report which 6 discussed decommissioning asets. I 7 And I would then point cut that in the
- 8 environmental report, chapter 7, a table is presented, table l
9 7.3-1, which indicates the various costs of the facility in 10 a note number two, that operating expenses which are set 11 forth, quote, include decommissioning costs, close quote. ., 12 So with respect to decommissioning costs, the 1 - 13 contention lacka basis and it fails to address the 14 environmental report, there's explicit discussion. Adequate
) 15 or not I'm not going to say here, but the contention fails 16 to present the basis needed to support its admirsion.
17 CHAIRMAN BOLLWERK: All right. Let's see. 18 Mr. Kennedy. 19 MR. KENNEDY: Page 128 at the bottom of their 20 response to contentions, the staff says: The staf f opposes 21 this basis, because it constitutes an impermissible attack 22 upon the Commission's regulations which provide in part 23 that, quote, no discussion of tne environmental impact of 24 the storage of spent fuel at an ISFSI beyond the term of the 25 license is required in an environmental report submitted by t ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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759 1 an applicant." () 2 My point is that NEPA requires that the 3 foreseeable event that is part of the government's action 4 here, namely approval of a lease that's going to end and has 5 a provision in it that requires decommissioning, has to be 6 evaluated. 7 That cost nas to be evaluated under NEPA. And I don't know 8 what -- you know -- irrespective of what the regulations say 9 that you've cited -- 10 MR. TURK: We're not hearing each other, I'm not 11 disputing the need to censider decommissioning costs. What 12 we meant and what we stated in our response, if you look on 13 page 128, at the bottom it says: " Confederated Tribes make 14 six separate assertions in support of this contention. The 15 tribes first assert that the applicant fails to discuss the 16 environmental impacts caused by storage of a large amount of 17 radioactive waste in which no realistic disposal options 18 currently exist." 19 And then we said the staff opposes this, and let 20 me underline this basis, because it constitutes an attack by 21 Commission regulations in 51 -- 22 MR. KENNEDY: Okay, and I'm saying we're not 23 attacking the regulations. What we're saying is that 24 regardless of what the regulations say, you still need to 25 consider the costs of the long-term storage. We're not ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
760 1 saying that you have to disregard the regulations. We're () 2 3 saying that NEPA requires you have to consider the long-term costs, ar.d that has not been done. 4 MR. SILBERG: Mr. Chairman -- 5 CHAIRMAN BOLLWERK: Let Mr. Kennedy finish. 6 .MR. KENNEDY: I've got a number of other points 7 here-that I'd like to make, and then, Jay, you can go unless 8 you want to jump in. 9 MR. SILBERG: Please finish. 10 MR. KENNEDY: Okay. We think that - they say 11 they have evaluated those, but it has been demonstrated 12 during this hearing that they have not, and in fact cannot, 13 because there is no where that they can say that these 14 items, this waste is going to go. So how are they going to () 15 calculate the costs to do it? 16 And we talked about whether it's going to be 17 Southern Nevada or Tim Buck Two. There would be a big . 18 difference in the cost. That has not been done. 19 In addition, as I've pointed out, the lease is a 20 cost. 21 And we don't know what the decommissioning costs in the 22 lease are going to be, because we don't have that before us. 23 That's one of the things that's been withheld or hidden from 24 all of us. 25 Now, Mr. Quintana says, " Don't tell me" -- or he ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
761 1 says, "I'm not going to tell you, Mr. Kennedy, what this () 2 cost is." And I guess my answer is, " Don't tell me, but tell 3 the people because they don't know either. They have no 4 idea. 5 That has been withheld from their own people." Finally, I 6 guess it really doesn't make a lot of sense to have to have 7 a separate proceeding to challenge if there la an improper 8 regulation or something that is invalid. It doesn't make 9 sense to have a separate proceeding to challenge it when 10 we're all here. It's just not judicial economy. 11 MR. TURK: May I responi very briefly? I'm sorry. 12 CHAIR!RN BOLLWERK: '4 es . 1? MR. TURK: In addition to 51.61, I would call the 14 Board's attention to 10 C.F.R. 51.23(b) which says, () 15 "Accordingly as provided in," and I'll skip over to the 16 51.61: "No discussion of any environmental impact of spent 17 fuel storage in an ISFSI" -- And I'm skipping the irrelevant 18 words. 19 "
...for the peribd following the term of the 20 reactor, operating license or amendment, or initial ISFSI 21 license or amendment for which application is made is 22 required in any environmental report, environmental impact 23 statement," et cetera. So I believe our assertion . tat 24 there is a challenge to the regulations is correct. And 25 that aspect of the basis for the contention shculd be O ANN RILEY & ASSOCIATES, LTD.
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l 762 1 rejected accordingly. 2 CHAIRMAN BOLLMERK: All right. Anything further, 3 Mr. Kennedy? 4 MR. KENNEDY: Nc . 5 MR. SILBERG: If I could make three very brief. 6 points. 7 First, long-term storage as a NEPA issue is 8 3averned by the NRC's NEPA regulation on the waste 9 confidence rule. 10 That's an NRC ruling, and NRC is allowed to make generic 11 rules ths.t ~0'?Orn its NEPA performance. Decommissioning 12 costs not being in the lease, decommissioning costs are in 13 the environmental report and the license application for all 14 to see. The lease costs are included-in the direct costs of () 15 the facility. We say that in the environmental report page 16 7.3-1. It's in there. 17 CHAIRMAN BOLLWERK: All right. Anything further, 18 Mr. Quintana? 19 MR Ql'"~ '.NA : I believe there is continuing NRC 20- jurisdiction ove chis facility, including up to the time of 21 decommissioning, and if the decommissioning costs change I 22._ suppose that the NRC can impose its will and say that those
.23 decommissioning costs will be taken care of. Therefore, we 24 would again_ object to this contention.
25 CHAIRMAN BOLLWERK: All right. Mr. Kennedy, last O- ANN.RILEY'& ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
763 1 word. () 2 MR. KENNEDY: I guess I'm confused on Mr. 3 Silberg's argument, e.nd maybe even the staff's argument with 4 respect t the scope of the NEPA review that's required here. 5 Are you both saying that because this is an NRC proceeding 6 that you don't have to consider costs that are incurred- i 7 after the term of the lease or after the term of the license 8 expires? l 9 MR. SILBERG: The NRC rules are what they are, Mr. I 10 Kennedy. Il MR. KENNEDY: Well, I'm asking what your argument 12 is. 13 MR. SILBERG: I've explained it. I mean I'll be 14 happy to talk with you off the record about it, but I think
) 15 --
16 MR. KENNEDY: Well, if that's what you're saying, J 17 then I would assere that because the Bureau of Indian 18 Affairs is involved here, and the Bureau of Indian Affairs 19 is the one that is taking federal action in approving the 20 lease, that their action may be subject to ultimate approval 21 by this Commission, but it doesn't change their obligation 22 to comply with NEPA, which I think requires them to consider 23 those long-tenn costs which the information is not in front 24 of us. 25 CHAIRMAN BOLLWERK: All right. Mr. Turk. () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
764 1 MR. TURK: Very briefly, NEPA requires us to () 2 consider reasonably foreseeable impacts. The Commission has 3 determined generically that there is reason to believe that 4 there will be a facility available for storage of fuel in 5 the future. It has established by rule in 51.23, also 51.61 6 that in NRC licensing proceedings that generic determination 7 that such storage will be available -- I'm sorry -- such 8 disposal will be available is not subject to attack. 9 And that's all I can say. 10 CRAIRMAN BOLLWERK: All right. Anything further? 11 MR. KENNEDY: Well, if it is available then could 12 you please tell me what the costs are going to be, because 13 that's what we're-talking about here-is costs. And I don't 14 think you can, because no one knows, including the generic 15 determination, where it is. 16 CHAIRMAN BOLLWERK: All right. Anything further? 17 Just let me say I've let this discussion go on, 18 but I hope in the future you'll kind of direct your comments 19 to the Board and not to each other; all right? 20 MR. TURK: Apologize, sorry. There was a question 21 as to whether the Board is -- 22 CHAIRMAN BOLLWERK: We . , I think in this context 23 it's "aluable that he have an understanding of at least your 24 position on what these matters are, and I don't have a 25 problem with that, but remember we are up here on occasion. ANN RILEl & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
765 1 Let's -- just so you know, we're about to take a 2 break. 3 By my count we have four -- excuse me -- f5 :ontentions 4 left, two dealing with the general matter o ecology and x N 5 endangered species, Utah DD and Castle Rock .o. We.could 6 also I think put in there the Confederated Tribes' E which 7 talks about impacts on the historic district, sort of a 8 related one. 9 Then I think that concludes our discussion of 10 environmental contentions, and we then would move onto 11 emergency planning. We have two there, Utah R and OGD B. 12 Let me also say that if parties ought to take a 13 final look over their contentions. If for some reason we've 14 grouped something in a position where it was discussed, but O(_/ 15 there's some portion of your contention you feel you didn't 16 get an adequate opportunity to say something about because 17 of the way we grouped it, let us know now because we're 18 coming it looks like to the end of this, and it's sort of 19 speak now or iorever hold your peace. All right? . a 20 But again if you feel we grouped it wrongly and 21 you didn't get a chance to discuss something, let us know. 22 Okay, why don't we take a 10-minute break till 23 about 5:30. 24 (Recess.] 25 CHAIRMAN BOLLWERK: Let me just alno mention or (h
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ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
766 1 amend my statement, as well as if we've forgotten a portion () 2 of anybody's contention, if we've forgotten somebody's 3 contention entirely, let me know that as well, although I I 4 think we've kept -- I've kept pretty careful records, and I 5 think we've gotten -- by the time we finish this list we'll 6 have gotten everybody. But if you find that you think we've 7 omitted one of your contentions, let us know that as well. 8 Obviously we don't want to do that. 9 Let's go in *- the final then environmental area, 10 which I'm calling " ecology" based on Utah contention DD, 11 Castle Rock 16, and why don't we also hear about 12 Confederated Tribes E which deals with impacts on historic 13 district. So Utah DD, please. 14 MS. NAKAHARA: This contention is another () 15 contention that we assert the applicant failed to adequately 16 assess, and adequately assess the ecology and species in the 17 region as required by 72.100(b), 72.100(a) and NEPA. 18 Inasmuch as the environmental report generally 19 identifies the flora and fauna for species known to have 20 existed at Skull Valley from literature-searches and 21 provided to show characteristics on some of those spec.'es, ' 22 the applicant makes some analysis to activities and 23 generally concludes uhat there's a minimal or no impacts-by 24 this proposed licensing action. 25 However, there was no discussion on -- there's no A ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.h., Suite 300 Washington, D.C. 20005 (202) 842-0034
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767 1 detailed discussion on how the applicant reaches that () 2 conclusion, nor is there a discussion on cumulative impacts. 3 In this sense I mean impacts in the ecological system. Like 4 if there's an impact on one species, but what do other 1
.5 predators or preys up and down the -- prey up and down the 6 chain, what kind of impact does that address for them?
7 And it does not address long-term impacts. And in j 8 this sense I don't mean beyond the licensing period but even 9 within the licensing period up to 40 years. 10 For example, on page 4-1-6 c.nd -7 the 11 environmental report states that peregrine falcons are 12 nesting in the Timpie Springs water fowl -- in the Timpie 13 Springs protected area. Sorry. And that the peregrine , 14 falcons typically hunt in an area in a small radius but may 15 travel up to 18 miles. 16 The proposed ISFSI is 24 miles away from the
- 17 facility, but it does not address any issues that would draw 18 the peregrine falcons outside of the typical area into the 19 ISFSI area. For example, on page five of Appendix 2B, the l 20 environmental report lists typical prey for the peregrine 21 falcons, which include song birds, shore birds and ducks.
22 And also in the environmental report on page 4-2-2 23 the applicant indicates that certain sp cies, in particular l l 24 birds, could be attracted to the casks during colder months l 25 because of the heat dissipated. And because of the ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
l 768 1 attraction of the birds that may nest in the ISFSI area, l () 2 whether additional birds -- the accumulation of birds in 3 that area would attract peregrine falcons out of their ' 4 normal hunting range should at least be cons d iered. I mean 5 this is just an example, and this is using the data that 6 they've provided, 7 And one thing I'd like to submit is that NEPA 8 requires a balancing of reasonably foreseeable impacts and 9 not to separate the inipr ets out in assessing whether there's 10 a substantial impact or not. And that's one of the 11 assertions we have in this contention is that there is no 12 comprehensive look or accumulation of impacts that's 13 addressed. And that they need to look at how impacts are -- 14 what kind of impacts apply to the facility or are-caused by () 15 the facility, and what type of inter-dependent impacts would 16 be a result of initial impacts. 17 And that's all I have. Thank you. 18 CHAIRMAN BOLLWERK: Anything further? 19 MS. NAKAHARA: No. 20 CHAIRMAN BOLLWERK: Is that it? All right. 21 Mr. Blake. 22 MR. BLAKE: I want to know what happened to our 23 deal of we stand, you stand, which was I thought -- 24 CHAIRMAN BOLLWERK: The Board is certainly not 25 standing in your way, so if you can -- I \ ANN RILEY & ASSOCIATES, LTD. \'- Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 2000' (202) 842-0034
769 1 MR. BLAKE: I don't think I heard anything new I () -2 think we have coped with each of the points she made with 3 one exception. And she may have misstated or I may have 4 misheard. She talked about an 18-mile hunting terrain for 5 the peregrine falcon. I think our environmental report 6 we've heard 10. And I frankly can't remember the 18 or 7 where it came up from. 8 MS. NAKAHARA: You did say a smaller radius and I 9 couldn't remember what that was. 10 MR. BLAKE: Okay, 10 miles was what it was. 11 MS, NAKAHARA: And you said they may go outside 18 12 miles. 13 MR. BLAKE: So you'll need to take that into 14 account in her argument as you read it, if you would please.
) 15 The only thing =I feel I need to respond to are 16 some points made in their written reply which were not 17 necessarily covered here, and otherwise I just can't let 18 them lie.
19 The first had to do with a concern that we were 20 inconsistent in our envircnmental report with regard to our 21 language about temporarily disturbing wildlife species for
-22 the construction activities, and then referring to a 20-year 23 construction period.
24 What I want the Board to understand is that both 25 of those are accurate, and there's obviously a substantial () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
770 1 difference between the amount of construction which has to () 2 go on initially at this facility with what goes on 3 thereafter with adding pads on a periodic basis, these 30-4 by-60-foot concrete pada, which is the extent of 4 5 construction as years go on. The environmental report l
- 6 clearly distinguishes between the impacts associated with 7 those different kinds of activities.
l 8 The State in its written reply then went on to 9 contend that there was a significant issue of potential for 4 10 contaminated ground or surface water. I don't know what 11 bits this is out of the poor apple but it's about gone. We 12 simply don't agree that the State has addressed a credible 13 scenario, and therefore no basis. 14 With regard to the peregrine falcon -- Mr. Gaukler " () 15 has pointed out to me that you may indeed remember 16 correctly, because on page 416 the statements made in our 17 environmental report that the falcons may travel more than 18 18 miles to hunt for food. However, a 10-mile radius around 4 19 the nest is an average hunting area. So you're 18 miles was' 20 not your wrong doings; it was ours. 4 21 The complaint that the State had in their written 22 reply with regard to our look at the peregrine falcon was a
- 23 characterization that the one nesting area that we were i
24 aware of up near the intermodal facility was in the Timpie 25 Springs water fowl management area. And we have said it
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771 1 wasn't located in the vicinity of the transfer station. () 2 3 They point out that, " Gee, that management area is right next to it, and therefore it certainly sounds like 4 that's going to be" -- 1 guess it's just words. The one 5 station, nesting area that we were alerted to by BLM 6 documentation, no one had seen it, would place it 7 approximately a mile away. And so it's a question of 8 whether or net it's in the vicinity or it isn't. 9 Finally in their written response they talk about 10 the potential impact of spills or discharges en the Great 11 Salt Lake. Again there's no credible mechanism that has 12 been described to us that would lead to that kind of 13 contamination, and we don't think therefore it's an 14 appropriate basis for admissibility of the contention.
) 15 That's it.
16 CHAIRMAN BOLLWERK: All right. Mr. Quintana, 17 MR. QUINTANA: Once again the State's contention 18 has no basis in science and is not properly before this 19 Licensing Board as required by the rules. But more 20 imporsantly, they have another judicial remedy available to 21 them. 22 Let's assume that what they're saying in fact was 23 true. 24 Let's assume the facility was built, and then after the fact 25 you find that birds are nesting on the casks and it's , O ANN RI'EY & ASSOCIATES, LTD. Jourt Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
772 1 causing some long-term effects because there was some basic () 2 3 science at that point to support their contention. that point I think that they would be eligible to file an Then at 4 independent action in a court of law to seek injunctive 5 relief.- But I don't think now is the proper time to gec , 6 pre-injunctive relief on total speculative facts.
, And on that basis we would object to this 8 contention.
9 CHAIRMAN BOLLWERK: All right. Staff. 10 MS. MARCO: The staff, we did not oppose two 11 aspects of this contention, the issue pertaining to the 12 peregrine falcon or the livestock, but the rest of it we did 13 oppose and we'll rest on our brief for that. 14 CHAIRMAN BOLLWERK: All right. I'm sort of
) 15 interested why is the peregrine falcon different from some 16 of the rest of the things in here or the -- what were the 17 other things?
18 I'm trying to see here. 19 DR. KLINE: High-interest plants. 20 CHAIRMAN BOLLWERK: High-interest plants. 21 MR. TURK: I'm sorry. =I didn't hear your 22 question. 23 CL.2RMAN BOLLWERK: I guess we're trying -- there 24 were a number of things that were mentioned in here. And 25 the staff soit of -- for instance, pocket gopher mounds and O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
l 773 1 different things. The staff looks I guess at the peregrine () 2 falcons and also the high-interest planto as being 3 admissible. I don't want -- am I misstativj that? I want 4 to make sure -- I guess you do not feel, at least to this 5 contention, that the high-interest plants was admissible, 6 although you did say that with respect I think to the next 7 contention. Am I correct about that? 8 MR. TURK: I'm looking at pages 71 through 75. 9 CHAIRMAN BOLLWERK: Right. Let me clarify. I've 10 confused things here. You said two things are admissible
.1 here: the peregr'ne f alcon and I guess questions about
;2 private domestic animals, livestock and farm produce. Am I 13 correct in that?
14 MR. TURK: Livestock and . arm animals.
) 15 CHAIRMAN BOLLWERK: Yes.
16 MR. TURK: Not true. The contention -- 17 DR. LAM: It's livestock and farm animals in the le staff's brief. 19 CRAIRMAN BOLLWERK: Okay, not domestic farm 20 produce? 21 DR. LAM: No. Page 71 of the staff's brief. s 22 CHI.IRMAN BOLLWERK: That's my fault. 23 MR. TURK: No. This related to domestic species 24 of the sub-section of the contention, on page 184 of the 25 contention. f)
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774 1 CHAIRMAN BOLLWERK: But only livestock, not 2 domestic produce. 3 MR. TURK: I'm trying to find it. 4 CHAIRMAN BOLLWERK: Farm animals. Okay. No 5 problem. 6 I see. 7 DR. LAM: I found it for you, Mr. Chairman. 8 CHAIRMAN BOLLWERK: He's got it. It was my fault. M-9 Okay. The question I guess is: Why do you find 10 those different than, for instance, the high-interest plants 11 that are talked about, at least with respect to this 12 contention? 13 MR. TURK: It must be late. I'm trying to find -- 14 CHAIRMAN BOLLWERK: It is that, but -- 15 MR. TURK: I don't believe we addressed the 16 domestic produce at any other point in our response. So I 17 would have tn say that our response meant to include produce 18 within what we did not oppose. 19 CHAIRMAN BOLLWERK: You want to look at that and 20 come back to me? I don't want -- I just want to get things 21 clear here. 22 MR. TURK: Thank you. We'll do that next. 23 CHAIRMAN BOLLWERK: All right. W3'll com3 back to 24 that perhaps after we've spoken with Ms. Nakahara. 25 MS. NAKAHARA- Brief response. In regards to the i h ANN RILEY & ASSOCIATES, .D. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 342-0034
775 1 contaminated groundwater, surface water and contamination of () 2 .the Great Salt Lake, we would submit that to the extent that 3 you admit contention O which we adopted by reference here 4 and found-that we adequately described a genuine dispute, 5 that-you would admit that portion in this contention, also. 6 And in response to Mr. Quintana's remarks, one of 7 the purposes for licensing, a licensing procedure and-a NEPA 8 assessment is to assess the impacts to prevent detrimental 9 actions. And in that sense the assessment is-critical up 10 front before you issue the license. 11 And not knowing what Mr. Turk's response would be, 12 I would just draw the Bcard's attention to our original
-13 contention at page 181 and -82 which cites NRC Guide 4.2, 14 and it describes species as important that should be
() 15 considered in en assessment, and it goes beyond federally 16 threatened or endangered species. 17 And that's all I have. Thank you. 18 CHAIRMAN BOLLWERK: And in part maybe the 19 confusion here is coming over the fact I put this under a 20 category that the applicant had listed as " private domestic
- 21 animals and farm produce." And maybe that's why I'm putting 22 words in your mouth. I'm not trying to do that. I just 23 want to make sure that --
24 MR. BLAKE: If there's a mistake there it was not 25 Mr. Silberg's. () ANN RILEY & ASSOCIATES, LTD. Court Report:4s 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 (
776 1 CHAIRMAN BOLLWERK: I notice you going around from ' 2 table to table, Mr. Silberg. If you're taking up a 3 collection for the Board we still can't accept it, even if 4 it's from all the parties. 5 MR. SILBERG: Flowers are on the way. 6 CHAIRMAN BOLLWERK: Well, leave them with the 7 school. 8 DR KLINE: My question for the State .s that in 9 looking at the paragraph related to important species, it's 10 prefaced by a statement referring to a specific causal link 11 Ncw, this is -- the species is important if it meets all 12 LLesu crittric and thcrc ic ; cpccific caucal link between 1 13 the project and the species. 14 Now, it doesn't appear to me that you've asserted 15 the specific causal link. I mean, you know, the fact that 16 there's an endangered species somewhere around Rowley 17 Junction is only part of the assertion that's needed. What 18 impact are you asserting? How does Rowley Junction reach 19 out and touch the peregrine falcon is what we need to know 20 if we're going to have an admissible contention. 21 MS. NAKAHARA: That's where we get back to -- we 22 would assert that that's the applicant's burden is to show 23 that there is no causal link. I mean they're proposing the 24 action that it could possibly bring impacts to the ecology 25 or the species. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 84?-0034 l i
, o
777 1 DR. KLINE: Let me point out when we, you know, () 2 finally go to work on these contentions, we are going to 1 3 have to study the underlying documents and determine if they 4 support the contention. That's one of the tasks that we'll 5 have to perform. And the question is: If we then go to the 6 environmental report, are we going to find there that the 7 applicant has briefly said, "We looked at it and didn't find 8 anything"? 9 MS. NAKAHARA: Yes. 10 DR. KLINE: Is that what we're going to find? 11 Isn't it -- I think -- I don't know. I haven't seen it, but 12 the problem I'm having is the continual assertion that you 13 have to find impacts. Now, it's impermissible I mean just 14 generally under NEPA to look and not find. That is to say
) 15 that you say, "I looked for an impact and I didn't find 16 any." Now, if you disagree with that, you got to give us 17 something.
18 MS. NAKAHARA: We wouldn't disagree that there's 19 any problem with looking and not finding anything, but when 20 they reach a conclusion without describing a basis -- 21 For example, I can't say the page, but the 22 applicant describes road kill that may increase becaust 23 the increased traffic on Skull Valley Road. They make the 24 assertion that the impacts will be minimal, because the 25 animals or the species in the area will change their habits () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005
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778 1 and they won't frequent the road. Typically that's not what g 2 happens. 3 And I don't know if we needed a biological expert 4 to say that, but most people that live by wildlife know that 5 when deer like to cross, cegardless of inhabitation, they 6 continue to cross those roads. 7 And in another statement they made that it may D 8 increase the population of carrion-eating predators, but it s 9 doesn't say anything about whether the carrion are 10 contaminated or they're expected to be contaminated and 11 whether that has any impact on these carrion-eating wildlife 12 and what impact that would have. I mean what we're trying 13 to assess or assert is that the results could be that there 14 is no impact, but we don't believe that therets an adequate
- (,st 15 assessment here that satisfied NEPA, 16 DR. KLINE: Well, I understand that you disagree.
I 17 and that's why we're setting an adversarial proceeding here. 18 But I think the requirements of 2714 are that if you do 19 disagree you set forth the factual basis or expert opinion 20 that leads us to believe there's a dispute of a material s 21 fact. 22 And it's not impermissible in NEPA to look and not 23 find, if that's what they did. I don't know. And if you do 24 disagree, here's your chance to tell us what the faccual 25 basis for that disagreement is. ' () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
779 1 Let's focus, for example, on the peregrine falcon () 2- which I understand is on the endangered species list. What 3 is the causal link between that species and the facility at 4 Rowley Junction? 5 MS. NAKAHARA: In my example I used the data that 6 they provided that said that there could be an increast of 7 birds that would inhabit the area of the ISFSI casks. And 8 if that was true there could be -- I mean they didn't say 9 this part. 10 We would assert that there could be an impact if the small 11 birds continued to live next to the casks. 12 There is a permissible amount of radiation that's 13 allowed to radiate from the casks. And whether these birds 14 accumulated it into their system, and the large accumulation
) 15 -- I shouldn't say large, but if there's a larger 16 accumulation of birds over this area because of the warmth, 17 would that attract the peregrine falcons down to the ISFSI 18 area?
19 And these are just -- we would assert our facts 20 that would question the adequacy of their assessment. 21 DR. LAM: Are these assertions supported by 22 experts, or are you asserting they are facts? 23 MS. NAKAHARA: No. I mean we're relying on their 24 facts that they provided in their literature search, and 25 we're providing scenarios that would question the adequacy () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
780 1 of their assessment. We did not get to see how they came to () 2 the conclusion that there are no impacts, as well as they 3 did not address any cumulative impacts or comprehensive 4 impacts of how the entire ecological chain is impacted off 5 of one species. 6 CHAIRI*.AN BOLLWERK: Anything further? 7 DR. KLINE: Nothing further. 8 MR. BLAKE: I want to add another problem at this 9 juncture, and that is we're here today at the end of 10 January, and the contention's and itr bases were due 11 November, and there's no good cause for showing even the 12 statements today couldn't have been raised then. 13- DR. KLINE: I understand. That's a separate 14 problem. O) (_ 15 CHAIRMAN BOLLWERK: Right. Let me go back to Mr. 16 Turk a second here. Maybe I can be clear. My question to 17 you before was considerably less than clear, and let me try 18 to clarify what I meant. 19 On page 184 of the contention, one of the basis 20 talks about domestic species, and it mentions both livestock 21 and domestic plants, farm produce. And there is a 22 discussion then about some calves, and there's also a 23 discussion about crops, and then it indicates that there may 24 be adverse impacts on livestock and plants from several 25 different pollutants or differer.c items. () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 942-0034
781 1 And I guess your response to the contention () 2 indicated that you had no problem with it in terms of the 3 livestock. 4 And I'm wondering why you would draw a distinction between 5 the livestock and the plants. That's my question. 6 MR. TURK: I think that's just an easy way of 7 characterizing that subsection of the contention. 8 CHAIRMAN BOLLWERK: Okay. 9 MR. TURK: If we -- and what I was doing in the 10 interim while you were discussing the contention with the 11 other parties, I was looking at the environmental report. I 12 could not find there a discussion of domestic livestock on 13 private lands, which I understand to be what is raised in 14 this subsection of the contention. 15 CHAIRMAN BOLLWERK: Okay. 16 MR. TURK: It seems to be based upon the Castle 17 Rock petition intervene in which statements are made 18 concerning the private uses of land in the area-involving 19 grazing as well as crops. 20 Now, my own understanding of that crop production, 21 based on statements made during our site tour, was that that 22 is for the purposing of feeding the livestock. But I do not 23 find in the environmental report a discussion of that 24 private land use in detail. 25 CHAIRMAN BOLLWERK: So I guess my question is: [ ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
782 1 Are you now making a distinction between livestock and () 2 crops,-or are'you simply saying that this basis is 3 sufficient as it's stated here? 4 MR. TURK: Yes, as stated. It would include the 5 crop production within that private land-. 6 rdAIRMAN BOLLWERK: All right. Probably a minor 7 matter, but I thought we ought to clarify that anc make 8 sure. 9 MR. TURK: May I have just a minute? 10 What I find in the environmental report is a 11 discussion on page 2.2-3 which talks about land use outside.
- 12. the boundaries of the Skull Valley Indian Reservation which 13 is regulated by Tooele County zoning. That indicates that 14 there are some multiple-use districts for human habitation,
() .15 and the remainder of the privately-owned land is 16 agricultural. 17 Mr. Silberg is providing me with some other page 18 references. Mr. Silberg is pointing out to me discussions 19 at pages 2.3-3 to 2.3-4 of the environmental report which 20 talks about grazing. 21 CHAIRMAN BOLLWERK: My purpose here is not to get 2 22 you to change your position, but simply to find out what it 23 is. 24 That's all I'm trying to do. Or to find out the scope of 25
- it. I'll.put it that way.
I ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
783 1- MR.iTURK: Our non-opposition would include () 2 domestic produce for purposes of feeding the -- 3 CHAIRMAN BOLLWERK: Okay, very good. 4 MR. TURK: It's a sub-contention. 5 CHAIRMAN BOLLWERK: Anything else, Ms. Nakahara? 6 MS. NAKAHARA: Just one statement. -We have a 7 factual dispute on the peregrine falcon in our reply, which 8 the applicant indicates that they're not located in-the 9 vicinity. And we already discussed this, but we just want 10 to point that out. 11 CHAIRMAN BOLLWERK: All right. 12 MS. NAKAHARA: Thank you. 13 CHAIRMAN BOLLWERK: All right. Then the other one 14 we have on ecology-is Castle Rock 16. And I think one of 15 the questions'the Board has is: What-is a high-interest-16 ; plant? 17 - I'll tell you that up front. So how is that different from 18- what we understand-are generally-I mean the things to look 19 for under the Endangered Species.Act? < 4 20 MR. LATER: You may be talking to the wrong person 21 on--that particular question. 22- CHAIRMAN BOLLWERK: Well, maybe we'll ask Mr. 23 Silberg then T guess. 24 MR. LATER: And I will look forward to his answer. 25 MR, SILBERG: Anything above five percent. t O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
s 784 1 MR. LATER: When we received the applicant's D () 2 responses to our contention in this matter I discovered that 3 the applicant had objected to every sub-part of every 4 contention that we proposed, and therefore found that there 5 were no questions we had raised that the applicant deemed 6 worthy of answering in these proceedings. This disappointed
- 7 me.
8 I have used all reason and rhetoric I can over the 9 past three days to try and change the applicant's mind 10 somevhere along the way and have failed at each juncture. 11 So this is my last contention, and I'm under enormous 12 pressure. 13 The staff accepts our contention on ecological 14 impacts with respect to the Pohl's milkvetch. I'd line to 15 speak up here as well for the peregrine falcon, pocket 16 gopher and high-interest plants, whatever they may be, as 17 well. 18 I think the analysis in many respects in this 19 portion of the application as we read it, has proceeded 20 along the assumption of determining the location of 21 endangered species, high-impact plants in terms of the 22 proximity in which those can be located to the facility. 23 And determining if they cannot be located within a certain 24 proximity, which appears to be somewhat arbitrarily chocen, 25 that they don't warrant further consideration because there ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
.785 1 is unlikely to be an impact.
() 2 3 And I-think our respon=e to what appears to-be that approach.is to challenge the conclusion that the 4 species cannot be identified within that' proximity or to 5 challenge the assumption of the range of proximity chosen by 6 the applicant, since it appears to be the applicant's 7 approach that-if a species can't be identified within'a 8 certain zone of the facility, an impact wi.ll not be 9 presumed. l 10 And so I really think in part that may be an 11 answer to Judge Kline's question about how do you show an 12 impact. I think that both the stages I understand it, and 13 certainly we have followed for the period to be the R14 applicant's methodology in saying if it's within a certain () 15 ' zone it merits further consideration. If it's outside a p 16 I certain zone, then our approach has been to attack the 17 assumption or the showing in the application as to whether' 18 or not species exist in that zone.
-19 I think my comments I would like to limit to a 20 [ articular point which is that the transportation corridor 21 for this facility remains a matter of substantial mystery as 22 to its ultimate location, it ultimate size, its ultimate 23 nature. I believe that issue creates a substantial question 24 in the application as to where it will be, and therefore 25 places the burden on the applicant to treat a sizeable area
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786 1 and the areas surrounding the facility, anywhere that may () 2 potentially be impacted by the transportation corridor, 3 wherever that may be, to the assessment of impact on 4 endangered spccles, protected plants. 5 The fact that that may create a substantial burden 6 and require the applicant to assess a significant area isn't 7 a matter that Castle Rock has created State of Utah has 8 created. It's a matter of the applicu .. 's choice. The 9 applicant has chosen not to specify what its transportation 10 corridor is and commit to that. And in the failure of 11 having done that, the applicant should be required to make 12 the required assessment throughout the entire region. 13 Thank you. 14 CHAIRMAN BOLLWERK: All right. Mr. Blake. () 15 MR. BLAKE : First, I agree generally with Later's 16 remarks regarding the fact that we do take a keener interest 17 and analyze and evaluate more closely with those things 18 where we think we might have some impact. And I would hope 19 that that's viewed as a logical approach. 20 I can't agree with the second one though. The 21 fact that we are studying transportation alternatives, that 22 we would be penalized into considering now all of 23 northwestern Utah I hope will not be the outcome. I hope 24 there's some lesser and again more logical and sensible < 25 approach. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 I
787 1 We have described a couple of alternatives to I V) 2 date. We have assessed those alternatives, not in all 3 parties' views sufficiently, but in our view sufficiently. 4 And if those -- as those transportation plans progress, we 5 will alert the Board and partien to our planning. And if in 6 the event -- if that requires additional consideration of 7 some area that we haven't put that adequately to date, we'll 8 take that look. 9 All of these things will progress, but I would 10 hope that for the state of disclosure that we've been able 11 to make so far based on our planning, our penalty would not 12 be that indeed we need to do all of the northwestern Utah or 13 greater because we haven't yet told you for sure where we'll 14 run the fuel. O) (_ 15 We do suffer a risk in not having identified that 16 yet, and I understand that ritk. And that risk is that 17 later on as we do progress, and as we do have more 18 -information, and as we rcoke that available, somebody will 19 say, "You should have done it earlier, and here's our 20 contention." And I understand that risk. But the risk is
'l not the one hopefully that Mr. Later has laid out.
22 Incidentally, I think high interest is a Utah 23 state designation of some of its -- of its interest in 24 certain fauna, flora. 25 DR. KLINE: Well, I would just observe taat I was () AtIN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
788 1 the author of.the passage cited for reg. guide 4.2 some'25 ' 2 . years 1ago,.and-ILfear that I left something out at this late 3 date. i L
- 4 CHAIRMAN BOLLWERK: All right. Anything else, Mr.
i .
-5 -Blake?
6 Mr._ Quintana? 7 MR. QUINTANA: The1 contention as cited is asking I' 8 the applicant to prove a negative on the facts. It is not L ! 9 supported by -- and because of that it fails, but it is not [ 10 ' supported by expert opinion. Now, there's been ample 11 opportunity to obtain expert opinions in these areas and-12 submit those expert opinions of simply a biologist or an > 13 ecologist or someone of that nature.
- 14 Using this standard I don't think any facility
() 15 could be built. So I'd ask the contention-fail. l 16 CHAIRMAN.BOLLWERK: All right. Staff. i 17. MS. MARCO: Staff'does not oppose the admission of 18- this contention limited to the discussion regarding the L
- -19. Pohl's milkvetch, l-20 And the staff would also like to state that if-21 there's a selection of a transportation corridor that's nct 22 -identified in the environmental report, that would create l- 23 grounds for a late-filed contention.
j 24- CHAIRMAN BOLLWERK: All right. Mr.'Later, t
- H2 5 - anything further?
l () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 i Washington, D.C. 20005 4 (202) 842-0034 f
f 789 1 MR. LATER: A quick response comment. I will () 2 acknowledge that perhaps the requirement of an examination 3 throughout northwestern Utah may be a bit exubtrant. I 4 don't think that undercuts the fundamental point. 5 And there is I believe a serious problem in this 6 kind of promise of a blank check, "Let us go ahead. We'll 4 7 get back to you on that one when we decide what we're going 8 to do on transportation." As I understand this process, it 9 involves issuance of a license for construction and a 10 subsequent license for operation. And I don't think that 11 kind of open-ended promise, "We'll get back to you on that 12 one" should be acceptable in this circumstance to allow an 13 applicant to proceed, subsequently change its transportation 14 corridor, and then do the required ecological analysis.
) 15 I think that where the applicant has created this 10 kind of problem by leaving that uncertainty in the areas in 17 which it will create impact, it simply has created that 18 burden on itself to assess all of those areas that may be 19 potentially impa :ted. It has clearly not done that. Thank 20 you.
21 CHAIRMAN BOLLWERK: Do you want to find anything 22 about high-interest plants? 23 DR. KLINE: No, I found out -- 24 CHAIRMAN BOLLWERK: Is there anything Ms. Nakahara 25 wants to tell us if it's a State's designation?
^
() ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 ~ .
l 790 1 MS. NAKAHARA: It is a State's designation. 2 CHAIRMAN BOLLNERK: Okay. Go ahead. 3 DR. KLINE: What is the significance of it? Does 4 that entitle them to any special protection? 5 MS. NAKAHARA: It's not a specifically protected 6 plant -- or species, but I guess it's an identification that 7 alerts people that it may move to a higher protected area. 8 I guess I said that wrong. If it's not protected, that 9 would move it to a protected area. And so the State is 10 concerned with types of activities that would impact these 11 species that would move it to a protected area. 12 CHAIRMAN BOLLWERK: Is it sort of like a 13 threatened -- is it less than -- I mean there's generally 14 endangered, threatened, and then I don't know if there's (O _,) 15 anything under that in the federal statute, but is there -- 16 MS. NAKAHARA: And that's basically where it 17 falls, after the thr atened. 18 CHAIRMAN BOLLWERK: After threatened. So it's a 19 State designation. All right. 20 MS. NAKAHARA: Yes. 21 CHAIRMAN BOLLWERK: All right. I guess then we 22 have Confederated Tribes E which deals with historic -- 23 -impact on historic sites. 24 MR. KENNEDY: I don't have anything to add other 25 than to just note sort of I guess in response to the staff's O' ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
791 1 comment about the distance, 10 miles being too great to be [Q)I 2 of concern. I think our site trip showed that 10 miles out 3 there is really not very much, and that you can easily see 4 across that valley which is probably more than 10 miles. 5 And I think the location of the Pony Express route being 6 within 10 miles approximately certainly is impacted. 7 That's all I'd say. 8 CHAIRMAN BOLLWERK: All right. Mr. Blake. 9 I guess I have a question here. Why is the Pony 10 Express Trail not a regional cite and wasn't considered? I 11 guess that's my -- that's a note I had to myself. 12 MR. BLAKE: Well, there is a reference to the Pony 13 Express Trail as the basis for Confederated Tribes' 14 contention E. And as we described already in our answer, my O(_,/ 15 understanding is it's some 10 miles south of the facility, 16 without any impact that we're aware of by the site of this i 17 facility here, or even any of the transfer routes, all of 18 which would be north of the facility to the main rail line. 19 So that's the reason. Wc didn't see cny impact. Although 20 our application and the environm report did in fact 21 discuss this topic of historic 22 CHAIRMAN BOLLWERK: All right. Mr. Quintana, 23 anything? 24 MR. QUINTANA: No comment. 25 CFBIRMAN BOLLNERK: Staff. I ANN RILEY & ASSOCIATES, LTD.
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792 g 1 MR. TURK: We'll have to rest on our pleading. I () 2 would just. note, however, that although the contention 3 appears to be broad, the only specific basic provided for in 4 the contention is the Pony Express Trail. And'our response 5 would indicate that no basis was provided to show that there 6 is a reason to think it would be impacted at that location. 7 CHAIRMAN BOLLWERK: All right. Is there anything 8 further, Mr. Kennedy? 9 MR. KENNEDY: No. I think I made the point. 10 CHAIRMAN BOLLWERK: All right. We're finished 11 then with the envircnmental contentions unless anybody has 12 any others they wcat to discuss-that we haven't talked about 13 adequately. 14 Let's move lastly to emergency planning. We have
) 15 two contentions, Utah R and OGD B.
-16 MS. CRANCELLOR: This is our last contention.
17 CHAIRMAN BOLLWERK: Did you save-the best for 18 last? 19 MS. CHANCELLOR: The NRC staff opposes this 20 contention primarily based on the conception that our
-21 . contention deals with off-site emergency planning, and that
-22 we rely on inapplicable regulatory requirements. And we do 23 admit that we initially cited the wrong regulation, but in 24 the main discussion of the contention we do refer to 72.32.
25 However, the staff says reg, guide 3.67 is not O- ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
793 1 applicable to ISFSIs. However, that belies what nureg 1567, () 2 3 Appendix C1, which is what NRC says is applicable. If you go to nureg.1E67, Appendix C1, it states: " Reg, guide 3.67, 4 standard format of content for emeroency plans and fuel 5 cycles and materials f acilities constitutes t ae principle 6 (sic) guidance on the preparation of emergency plans for an 7 ISFSI or MRS installations." 8 We'd note that this is a P-R-I-N-C-I-P-L-E, and 9 we're glad to see that NRC does have some principles. 10 CHAIRMAN BOLLWERK: Well, that's the problem with 11 Spell Check sometimes. 12 MS. CHANCELLOR: They have no principles. 13 The State's contention does deal with actual 14 activities that do occur at the facility, and that's under 15 basis one of our contention. 16 I guess our main gripe with the applicant on this 17 one is that they have total reliance on Tooele County. That 18 they feel that they are the only resources that they will 19 need in case of as response that they can't handle. 20 You've seen the site out there, and you know the 21 activities that occur around the site. We're wondering if 22 the applicant is in a little over its head on this one. To 23 think that Tooele County is the only response organization 24 that would be able to -- that the applicant would call on in 25 the case of an emergency is I believe short sighted to see, ANN RILEY & ASSOCIATES, TJD. 50w Court Repcrters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 l
794 1 to put it kindly. () 2 PFS refers to a Ncrthern States Power case on page 3 228 of its answer. I believe this case was a 2.206 petition 4 for an ISFSI at Florence Township in Goodhue County in 5 Minnesota. There the -- quite frankly we're puzzled why NRC i 6 actually made this decision. The license application was 7 suspended and then revoked and withdrawn, officially 8 withdrawn. After it was withdrawn this 2.206 petition was 9 decided. 10 And in that decision the applicant asserts that 11 whoever they decide should be the response organization that 12 they need to call on, that's all that the NRC ec'#f 13 basically needs to consider. 14 First of all, this decision is guit .ce , and is F () 15 not binding on the Board. $ 16 Secondly, we believe that it would be 17 inappropriate of NRC staff to take the applicant's assertion 18 at face value that the only response that they need is from 19 Tooele County. 20 When you consider that 43 percent of th' nation's 21 stockpile of chemical weapons is in that area, and ull the 22 other activities that occur, and the sophisticated emergency 23 response system that the State has coordinated through its 7 comprehensive emergency management department public safety 25 with the Army, for the applicant to not even have approached () AJRi RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
795 1 the State at any stage until they put the application on our () 2 desk when they submithed it to NRC certainly gives us cause 3 for concern as to what sort of coordination is going to l 4 occur in that area in the event of an emergency. 5 Another area that we address in our reply is cask l-6 tip over and the ability to get a capable crane to the site. 7 And I won't belabor this point, but just to -- you've been 8 up there. The idea of actually getting a crane out there 9 within 48 hours, which is part of the design of the casks, 10 the passive ventilation system, and currently they need to 11 be up righted within 48 hours, this is an area where casks 12 -- or cranes are not readily available in that area. 13 And to actually get one out there within 48 hours we believe 14 is something that cannot be left to procedures that they're (I 15 going to develop later on. We think that this goes to 16 whether the plan can be implemented. 17 Another area that we have concern about is the 18 availability of water for fighting fires. I think the 19 discussion on permits required and the sufficiency of water 20 to fight fires was brought to your attention during that 21 discussion. What PFS intends to have is two bright new 22 shiny fire trucks. However, if there's no water to satisfy 2; the needs for fire fighting, a fire truck is not going to be 24 very useful. 25 I won't get into the Winters doctrine and reserve O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
i 796 1 water. rights, and whether the -- the-quantification of water () 2. to the tribe, suffice to say that there's a legitimate 3 _ concern about water needs. 4 And quite frankly, we don't understand why the 5 staff opposed some of these contentions. I don't believe 6 thh? they oppose the ability to fight fires that the 7 Confederated Band introduced. Maybe they just over looked 8 this one, I don't know. But I'd certainly be interested to
- 9. know why the staff opposes this portion of our contention.
10 I believe that's all I have. 11 CHAIRliAN BOLLWERK: All right. Applicant? 12 MR. BLAKE: Just a couple comments. I 13 One with regard to Tooele County reliance, 114~ .obviously we believed that that was sufficient, that's the () 15 reason, and that's t'le only people that- we had to go to 1 16 - before, as laid out in our answer. 17 A number of arguments were made about whether or-18 not it is adequate, whether or not wei ll have adequate fire 19 fighting or responsive capability. They sounded to me frankly like merits rather than providing a basis for a 21 content. ion at this point. 22 _On the question'of the crane and the cask tip,_I 23 think there may be a fairly obvious reason why we didn't 24 address the crane or the availability of the crane. We 25 don't think the casks are going to tip, and all of our O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
797 1 analyses say it's not going to tip. Now, to the extent () 2 ultimately we are wrong or ultimately somebody shows us in 3 some analysis that we should have that capability -- 4 We all drove down there from Salt Lake City which 5 is a very large city with a lot of equipment available. 6 That's where the cranes would come from on that point. And 7 I'm told that it's not such a trick to get a large crane to 8 a site from a major city like that. 9 With regard to water availability, it's been 10 touched upon before. 11 And that's the end of my comments. 12 CHAIRMAN BOLLWERK: All right, sir. Mr. Quintana. 13 MR. QUINTANA: Very briefly, we would object to 14 this contention as not having a basis in fact or in science. O i
\ ,/ 15 It is purely speculative. And if there was a force of such 16 sufficient magnitude, namely an earthquake, as to knock over 17 one of these very, very heavy casks, I think that the last 18 thing we would be concerned about is picking the cask up, 19 since most of Salt Lake Valley and Tooele would be 20 destroyed.
21 The water has already been touched upon. 22 And I think that will do it. 23 CHAIRMAN BOLLWERK: Staff. 24 MR. TURK: There is a significant dirference in 25 the requirements for emergency planning for ISFSIs that are () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 ll
798 1 located away from a reactor and reactors. There are 2 differences between the emergency planning requirements for 3 an ISFSI such as this which do not plan to handle spent fuel 4 apart from the cask, and ISFSIs that do plan to do that. 5 And those differences are laid out in Commission regulations 1 6 dealing with emergency planning. 7 I need to make a correction at page 42 of our I 8 response. 9 Somehow we messed up the citation to 10 C.F.R. 72.32. This 10 appears about 11 lines down. We say rather 73.22. That 11 should be of course reference to 72.32. L 12 And again on the next page, on page 43, 10 lines 13 down there's a citation that says, " Compare 10 C.F.R. S 14 70.32" with another regulation. That citation should have 15 been, " Compare 10 C.F.R. S 72.32." That is the regulation 16 that applies here, and that is what we rely upon. 17 With respect to the State's reliance on the reg. 18 guide, we're aware of the statement in Appendix C of nureg 19 1567 which states that reg. guide 3.67 constitute the 20 principal guidance on preparation of emergency plans for 21 ISFSI and MRS installations. 22 Nonetheless, what we pointed out in our response 23 to the State is all they did was cite to Section -- to reg. 24 guide 3.67. They ignoied the lengthy discussion, the 25 lengthy guidance provided in Appendix C of nureg 1567. And ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
799 1 that is the more appropriate citation. () 2 Except for one reference to the nureg document,-no 3 other mention is made ci Appendix C, and that was something 4 that we pointed etit in our response. 5 Also, in the' State's written reply to our paper, 6 at page 6o of their reply they contest the staff's assertion 7 that there's no requirement for description of equipment 8 necessary to restore the site to a safe condition. I would 9 point out that when the Commission adopted the regulations 10 in 72.32 they omitted the comparable requirement in the Part 11 70 emergency planning regulations which have required a 12 description of equipment. 11 3 And as the Board may be aware, when 72.32 was 14 adopted it was adopted by comparison with emergency planning
'r0 (1,/ 15 requirements in Part 70. And a determination was then made 16 as to exactly what has to be specified for emergency ;
17 planning by an ISFSI. And that's how 72.32 evolved. That 18' reference to the description of equipment was specifically 19 omitted in Part 72. 20 That's all I have, Your Honor. 21 CHAIRMAN BOLLWERK: All right. 22 DR. LAM: So, Mr. Turk, so the essence of the 23- staff's objection to this contention is that the Commission 24 had imposed no requirements on emergency planning? 25 MR. TURK: Not at all. The Commission does impose () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
800 1 emergency planning requirements on ISFSIs. But there's no 2 off-site component, unlike reactors, or even ISFSIs that (O\ 3 plan to handle spent fuel. ISFSIs such as this which are 4 merely intended to store spent fuel do not have to include 5 an off-site component. 6 DR. LAM: So the key word here is off-site? 7 MR. TURK: That's right. There must be an on-site 8 emergency plan. And the requirements for that are set out 9 in Part 72, Section 72.32, but there is no off-site 10 component. 11 DR. LAM: Thank you. 12 MR. TURK: And we addressed the reasons for that ~ 13 in our written response. 14 CHAIRMAN BOLLWERK: All right. Ms. Chancellor. O) (_/ 15 MS. CHANCELLOR: The applicant maintains that a 16 crane would be readily available from Salt Lake. All we're 17 asking is show me. I r an weather conditions out there may 18 change that factor. We don't know whether a crane is 19 available in Salt Lake City or not. 20 And with respect to the Mr. Turk's point that 21 there's no need for a description of equipment on the site, 22 the reg guide that he has worded to, 1567, at C.4.5.3 says 23 "The emergency plan should describe the on-site equipment 24 and facilities designated for use during emergencies." 25 .However, what we're after is whether a crane can -- is ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 l (202) 842-0034 '
801 , 1 capable of getting out there and uprighting the casks within () 2 a 48 hour period, because that's part of the applicant's 3 design basis for these casks. This passive design system 4 for dissipating heat breaks down after they have been tipped 5 over for a 48 hour period. So we think that that is a i
- q. G legitimate safety concern.
- ? Oh, all of Mr. Turk's corrections to his reply 8 just points out the fact how easily it is to make mistakes 9 when you're trying to put together these voluminous 10 pleadings.
11 And te note that we need to correct one of the references in j 12 our reply, k 13 CHAIRMAN ' +LWERK: I should note that the Board
$ 14 understands that there's been a lot of paper filed here and (h 15 people under time deadlines. And I think I can speak for 16 all of us and say that overall, the quality of the work here 17 has been very good and we really appreciate your efforts in 18 that regard. And we understand obviously the pressures ycu 19 were under.
20 MS. CHANCELLOR: Thank you. 21 We've actually gone through and done a redline 22 version and compared reg guide 1567 with 3.67. *nd except 23 for one or two areas, they're very, very similar. 24 Last point. And I won't belabor you with going 25 through point by point to show you where they are different, L () ANN RILEY u ASSOCIATES, L D. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005
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A i 802 1 especially at tPis hour at the night. () 2 3 Last point deals with the firefighting capability and the availability of water. Mr. Blake seems to suggest 4 that that goes to the merits. We maintain that there is 5 sufficient information in our contention to show that there 6 is a factual disputet that we have shown sufficient basis ( t 7 for admittance of this, certainly of this portion of the 8 contention. We showed that the rainfall was low in the 9 area, the risk of-fire is serious, that the firefighting
'0
.. . capability that they're going to rely on is on-site, and 11, that -- and quote to the relevant portions of the emergency 12 plan.
13 Also, there are substantial other water needs that 14 the applicant is going to call on: potable water, water for
) 15 the concrete batch plant, water for the asphalt plant, water 16 for construction activities. So it's not just fitefighting 17 water needs that they need t , rely on.
18 - So we believe that there is a sufficient basis-for 19 admittance of this portion of the contention and the 20 contention as a whole. That's all I have. 21 CHA11 MAN BOLLWERK: Anything further on this 22 point, this contention? 23 MR. TURK: I may want to come back to the 24 equipment issue ( aickly, but I'd rather just pass to the 25 next contentior.
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803 1 CRAIRMAN BOLLNERK: All right- Why don't we go to () 2 Ms. Belille and then we'll come back if there's something 3 you want to say about that. OGD -- 4 MR KENNEDY: Before we do that, Your Honor, could 5 I just drop a footnote quickly to the endangered crane 6 problem that you've been discussing. 7 (Laughter.) 8 MR. KENNEDY: Just noting if Mr. Quintana's 9 scenacio is correct, that those casks won't fall over unless 10 there's a major earthquake, which would impact Salt Lake 11 City. I think that weuld definitely create a problem in 12 getting a problem from Salt Lake City to this site. Those 13 cranes are going to be used here locally, as opposed tc 14 being carried out to the reservation, s_) 15 So I don't think that solves the problem. I think 16 4t increases or enhances the problem of this endangered 17 species here. 18 MR. BLAKE: The footnote to the footnote is there 19 is -- that'L a beyond design basis accident, the tip-over. 20 That's the starting point. 21 CRAIRMAN BOLLWERK: All right. Anything further 22 about State Utah R? 23 Move on to I think the last contention, OGD B. 24 MS. BELILLE: We just have a few brief comlaents, 25 Your Honor. () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, J.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
804 1 In this subcontention, PFS has s&id that "This is () 2 an impermissibi.e collateral attack on the Commission's rules 3 for abdicating stricter requirements than those imposed '- ' 4 the regulations." OGD argues that the license application, 5 specifically the emergency plan submitted with the license 6 *pplication, fails to address the safety provisions made for 7 '.le individuala living outside of the facility within a five 8 mile radius of the facility. The emergency plan does not 9 address a warning eystem such as would be implemented to put 10 the residents on notice of an accident. 11 PFS cites Northern States Power Company for the t? proposition that an applicant such as PFS' proposed site is 13 not required to have an off-site component to its emergency 14 plan. I think Northern States Power can be distinguished ( 15 from the instant situation because Northern States Power was 16 only storing 1,920 spent fuel assemblies, and was held by 17 the Minnesota legislature to only forecast the possibility 18 of four additional casks if they reached certain other 19 requirements. 20 In the emergency planning license requirements for 21 indapendent spent fuel storage facilities and monitored 22 retrievable storage facilities found at 60 Federal Reg. 23 32430, the NRC, in the supplemental information, makes a 24 distinction between normal ISFSI sites and those with a 25 broader scope of activities. s () 7dDi RILEY & ASSOC 1ATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 S Washington, D.C. 20005 s (202) 842-0034 1
-805 1 As one example cited in the supplementary g 2 information, the NRC, or the Commission speaks of an ISFSI f 3 site that.may be a large industrial facility equipped to 4 handle the loading and unloading ind decontantination of a 5 large r. amber of spent fuel shipping containers arriving by 6 both truck and rail.
7 The Cotrnission gnes on to say that storage 8 canisters have increased in capacity; and that given the
-9 uncertainties in the design, the Commission believes it 10 prudent to plan and provide for an enhanced level of
-11 off-site emergency planning at-an MRS or as well as-an--ISFSI 12 that conducts similar operations because of the broader 13 scope of the activities which could be performed at such 14 facility.
15 Because of the unique nature of the facility 16 . proposal, OGD would urge that this Board require off-site 17 planning that would notify members of OGD of an accident so 18 that t:ey might take action to minimize any possible harmful 19 consequences. Thank you. 20 CHAIRMAN BOLLWERK: All right. Applicant. 21 MR. BLAKE: Let me react quickly to a couple 22 -things. 23 One, I don't want to be distracted by the Northern 24 States case,-which we also think is supportive. The more important determination-is that-by the Commission with INN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.N., Suite 300 Washington, D.C. 20005 s (202) 842-0034 j
806 1 regard to ISFSIs and whether or not there's a need for off-() 2 site emergency planning. It's the Commission determination, 3 and we've cited it in our answer, which is more important 4 and applies to this facility. 5 There is a distinction between facilities, but the 6 distinction is not with how many casks. The distinction is 7 with the kind of business which is done at these facilities. 8 And therefore, the kind of risk in operations; and 9 therefore, the potential for the need for off-site emergency 10 planning. 11 Our facility is not of the higher risk type. The 12 higher risk types are those where there's processing or 13 repackaging of spent fuel; where there are activities which 14 could have a greater potential for some off-site () 15 consequence. That's not true here. Our application makes 16 that clear. And therefore, there's not a need technically. 17 Nevertheless, we have outlined in our emergency 18 plan the kinds of off-site notifications we'd make even if 19 we got into an alert situation. Not requiring off-site 20 emergency level response, but nevertheless alerting people 21 off-site so that there'd be no doubt about any higher level 22 of conccrn on-site. I'll leave it at that. 23 CHAIRMAN BOLLWERK: All right. Mr. Quintans. 24 MR. QUINTANA: I think we've probably killed
- 25. enough trees and beat enough horses. No more.
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807 1 CHAIRMAN BOLLWERK: All right. Staff? () 2 MR. TURK: We have nothing t.o add beyond our 3 written response. 4 CHAIRMAN BOLLWERK: All right. 5 MR. TURK: And I want to note that I've been 6 looking for something in the statement of consideration for 7 the emergency planning rules in Part 72 that would address 8 the equipment issue. I cannot find it as I sit here now. 9 CHAIRMAN BOLLWERK: Okay. 10 MR. TURK: And I recognize that the Nures 1567 11 description of equipment that should be set forth in the 12 plan does differ from my representation that that regulation 13 was specifically omitted from Part 72.
.14 CHAIRMAN BOLLWERK: Okay.
15 MR. TURK: The omission of the regulation is 16 clear. 17 If one compares Part 70 with Part 72, you'll find that the 18 specific equipment requirement that's stated in Part 70 is 19 not stated in Part 72. But I cannot find, as I rit here 20 today, that the -- a statement explaining that emission as 21 compared to what Nureg 1567 suggests should be in an 22 emergency plan. 23 DR. LAM: It's not really an omission, isn't it? 24 It's the Commission's deliberate decision to delett that 25 requirement. t A!?N RILEY & ASSOCIATES, LTD.
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808 1 MR. TURK: Yes. I was looking for a specific () 2 discussion. The Commission stated when it dropped the Part l 3 72 regulations for emergency planning that it did so based 4 upon a comparison of what was in Part 70 with what it 5 believed to be necessary for an ISFSI under Part 72. So it 6 took most of the Part 70 requirements for emergency planning 7 and incoroorated them into Part 72, Section 72.32. But that 8 specific one, equipment, was omitted. And as I sit here, I 9 was looking for the rationale to explain that, and I cannot c-10 find it as I sit here. 11 CHAIRMAN BOLLWERK: You think such a rationale 12 exists, or you just can't find it right now, or you're not 13 sure? 14 MR. TURK: I'm not sure at this point, but I'll
) 15 undertake to look for that. And if I find something, I'll 16 bring it to your attention then, as well as the attention of 17 the parties.
18 CHAIRMAN BOLLWERK: All right. { 19 MS. CHANCELLOR: If I could just have one final 20 word. 21 I'd just like to note that the Part 72 emergency plan 22 regulations were amended in Jur.e of '95. Nureg guide 1567 23 manuscript completed October 1996, which is after the date 24 that the Part 72 rules were amended. 25 CHAIRMAN BOLLWERK: All right. Anything further, () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 t
809 1 Ms. Belille? '() 2 3 MS. BELILLE: No. ! CHAIRhDW BOLLWERK: No? 4 All right. We've cotae to the end of our 5 discussion of contentions. And I guess there's one further 6 subpart we need to deal with in terms of our agenda, which 7 was scheduling and administrative matters And we hope to J 8 have us out of here by 7:00, so let's be -- we'll be quick 9 about this. 10 MR. SILBERG: If I could address the scPeduling [ 11 issue quickly. 12 CHAIRMAN BOLLWERK: All right. 13 MR. SILBERG: We have talked -- I've talked with 14 all the parties. The parties believe that the best way to
) 15 proceed at this point in terms of future schedules is to 16 wait until the Board issues the prehearing conference order.
17 The parties will then, within a week or so after that, 18 consult amongst each other to try to develop an agreed 19 schedule. 20 If we do that, if we ca" do that, we will present 21 it to the Board. If we're unable to do that, we'll let the 22 Board know, and request that the Board promptly schedule a 23 teleconference at which we can present our views and the 24 Board can make a determination. 25 CHAIRMAN BOLLWERK: All right. And in terms of t ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
810 1 that schedule, what might it include, just so I'll have some /~'N ( j 2 idea. 3 MR. SILBERG: I wouldn't want to guess at that 4 right now. 5 . CHAIRMAN BOLLWERK: All right. 6- MR. SILBERG: Certainly, you know, the next phase 7 is discovery, but I don't know how far out we would go. 8 CHAIRMAN BOLLWERK: All right. Let me just 9 reiterate for everyone that I appreciate your efforts in 10 that respect. 11 Was that what you were circulating about? All right. I 12 appreciate that, Something we needed to know. 13 Just to reiterate, we have some dates that we set. 14 And I'll probably issue an order on Monday when we get back
) 15 into the office. But just so you know: Monday, February 16 2nd, Mr. Wilson's and the Atlantic Legal Foundation's 17 amended petition is due.
1 18 Wednesday, February lith, to accompany the 19 security contention admissibility reply that the State has 20 due is a pleading addressing the use of proprietary 21 information to prepare contentions EE and GG, and also a 22 time line for contentions EE and FF. 23 Friday, February 33th, any responses to the -- 24 MS, CHANCELLOR: EE and GG; right? Not EE and FF. 25 CHAIRMAN BOLLWERK: I believe there's already a () Al.N RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
811 3 time line for GG. I could -- () 2- MS. CRANCELLOR: Oh, that's right. You're right, 3 you're right. Beg your pardon. 4 CRAIRMAN BOLLdERK: If I'm wrong about that -- 5 MS. CHANCELLOR: No. No, there is no. 6 CHAIRMAN LJLLWERK: It was a time line Ms. , 7 Nakahara promised us. 8 Friday, February 13th, responses to the Wilson 9 Atlantic Legal Foundation amended petition. 10 Wednesday, February 18th, responses to Castle 11 Rock's rule waiver petition that's pending. 12 Monday, February 23rd, PFS and the staff are going 13 to be filing responses to the State's February lith filing 14 regarding use of proprietary information and time line. () 15 And all those should be same day filings. By tnat 16 I mean simply provided us by e-mail or fax except for the 17 security and proprietary information, which is next day 18 mail, next business day. 19 Okay? Any questions about any of that? As I say, 20 I'll memorialize that in an order when I return to the 21 office. 22 In terms of future scheduling, as you'd mentioned, 23 I think we were working off the same page, we probably would 24 have a video conference if there's some problem in terms cf 25 scheduling. I think that's maybe the best way to handle it. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 , (202) 842-0034 i
812 1 One thing I will express the Board's concern () 2 about. I guess we've bee:1 talking as well about the filings 3 that were made, about scheduling. One thing that wasn't 4 clear to me from the filings was, t hc. staff was saying that 5 they generally wouldn't present witnesses and, or the 6 witnesses and the SER would -- it sounded to me like they 7 would be one -- they'd come at the same time. But I take it 8 if we began to do the contentions, the witnesses might be 9 available before that.Is that correct? 10 MR. TURK: Yes. And I need to distinguish between 11 the SER and the EIS. 12 CHAIRMAN BOLLWERK: Okay. 13 MR. TURK: We would not be able to present 14 witnesses on environmental contentions uncil the EIS is out. 15 CHAIRMAN BOLLWERK: All right. 16 MR. TURK: With respect to the SER, I don't see 17 any reason why, if the staff's review of an item is 18 sufficient, is complete to the point where they can come and 19 testify, why we couldn't do that before the SER is out. 20 There is no restriction on that, unlike the environmenta) s 21 area 22 CHAIRMAN BOLLWERK: All right. 23 MR. TURK: So I woul,' imagine that we could go to 24 hearing prior to issuance of the SER. And if the SER 25 differs from what the staff says in the hearing, then that - b \# ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
813 1 - CHAIRMAN BOLLWERK: That's a problem, potentially, 2 or not. 3 MR. TURK: Then we'd have to examine whether that 4 gives rise to additional rights. 5 CHAIRMAN BOLLWERK: Right. In any event, it would 6 be dealt with. That'd have to be dealt with, 7 All right. One question I guess the applicant had 8 raised, what is the possibility of issuing the SER in parts? 9 And I know it's supplemented from time -- there generally is 10 one major document with supplements. Is there anything in 11 terms of issuing it as particular sections are finished as 12 opposed to waiting and bringing out one big document? 13 MR. TURK: I don't know that that's ever been 34 done.
) 15 There are instances where certain limited areas are still 16 left open and those are tne subject of supplementation.
17 CHAIRMAN BOLLWERK: Right. 18 MR. TURK: But I would expect that the bulk of the 13 staff's review would have to be complete before they issue 20 their first document. 21 CHAIRMAN BOLLWERK: All right. Well, again, the 22 applicant made that suggestion. That's a staff matter, but 23 might be something you might consider. 24 MR, TURK: We'd want to be sure that therc's no 25 inter- relationship that's been overlooked. () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 1
- , a
___.-.___.m_ _ . . _ _ _ _ _ . __..___.__ _ _ _ _._ _ __
- 814 1 CHAIRMAN BOLLWERK
- I can understand that. But to
() 2 the degree there was something that was separate and that 3 was finished, think about issuing it. I mean it certainly 4 woulo let -- give everybody here an idea where the staf f
- 5 stood, and that's going to be important I suspect.
6 MR. TURK: All right. Incidentally, your order 7 inquired as to whether you could issue a final decision in 8 the case prior to those documents being issued. 9 CHAIRFUd1 BOLLWERK: Yes. , 10 MR. TURK: And that's what we addressed 1 11 specifically. 12 That's a different question before they even start going 13 into hearing. 14 CHAIRMAN BOLLWERK: I recognize that. There's -- 15 MR. TURK: And even with respect to environmental IC issues, other parties could conceivably go to hearing bef ore 17 the staf f document is out. I'm not recommending that as an i 18 approach, but that's not legally prohibited. 19 CHAIRbVd1 BOLLWERK: Right. ~1 ell, obvdously, I
- 2) mean the problem is, I think we probably all would 21 recognize, As that the staff documants come out. If they've 22 already been hearings, then we face late file contentions, 23 motions to reopen depending on what's the status of the 24 record, all kinds of things. So that's something we prefer 25 to avoid, but we'll have to deal with it as it comes up.
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815
- 1 All right. I just wanted to clarify that, and
() 2 make sure I understood what you were saying. And I take it 3 that's something that will be taken care -- taken into 4 account as you plan your, or you have your discussions. 5 All right. Let me tell you now that in terms of 6 discovery, you may all want to take a look at the Yankee 7 Rail case that we did several, about a year ago, 44 NRC at 8 38 and 41. There will undoubtedly be some provisions in any 9 discovery orders we issue. We will expect folks to have 10 informal discovery conferences before they begin formal 11 requests. 12 This is part of the federal rules. I think it's a 13 useful thing to do, to sit down and talk to each other, 14 exchange as many documents as you can, even let individuals 15 talk to people who are potential witnesses without having a 16 deposition to get information. And let's focus the 17 discovery, the formal discovery that we need. 18 The process seemed to work relatively well there. 19 I -- it's something you can just about count on seeing. All 20 right? And you may want to take that into account in terms 21 of any plans that you make in terms of schedules. 22 In light of that, there will undoubtedly -- there 23 will likely be a limitation on interrogatories and 24 depositions, so that's why, another reason why the informal 25 discovery becomes important. And the Board expects the ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
F 816 1 informal discovery to be extensive and to be open. If () 2 there's no objection to a document, let's exchange it among 3 another -- among one another informally rather than having 4 La file interrogatories or production requests for it. All 5- right? 6 I will also expect that with respect to discovery 7 motions, that before filing a discovery tootion, by that I 8 mean a motion to compel or a motion protective order, that 9 there will be a presubmission conference between counsel to 10 talk about what the problems are. If that motion -- if that 11 conference hasn't happened and the motion is filed, we will 12 simply reject it. 13 So you need co talk about it, critical question 14 being what do you really want. Again, counsel should talk () 15 to each other before they begin filing motions. 16 And again, we'll talk about this a little more 17 when we get -- as things come alcug. I'm assuming t. 18 there will probably be, well, we'll see. We haven't done 19 anything yet. 20 But assuming there are parties admitted and their 21 contentions admitted, all this will obviously go into effect 22 then. And we'll set that out in more detail. 23- Also, be aware that from henceforth, there is a 10 24 page limitation on motions and responses, absent preapproval 25 of the Board. That does not apply to any documents that O ANN ! LEY & ASSOCIATES, LTD. Court Reporters 1250 1 Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
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817 1 we've already discussed or filings that have already been () 2 agreed upon to be due. ' 3 So that would be any new motions, 10 page. And we 4 need to know 48 hourc beforehand if you're going to need to 5 file more than 10 pages, and that you've talked to the other 6 parties and they have no objection or they do object. All
- 7 right?
8 Also, same day courtesy service will continue to 9 keep in effect. 10 MR. SILBERG: And thi. does not apply to the 11 response to 2758? 12 CHAIRMAN BOLLWERK: No. Anything that's been 13 scheduled up to this point, in terms of the dates that I 14 just gave you, those are not subject to this limitation. C 15 Any future motions that are filed or future responses that 16 come in, we'd like to see them 10 pages or less. All right? 17 And again, if you have a problem with that, let us 18 know and we'll look at it. But I'm hoping we can keep 19 thingc, keep the paper down somewhat on both sides. All 20 right? 21 In terms of settlement, just let me say I think 22 there's been some a.1 ready movement back and forth. The 23 Board encourages any settlement you can reach on any 24 contention, any issue. If we can help you in that, we're 25 more than happy to do so, although the Commission's policy
+
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I 818 1 generally makes us unavailable to get too deeply involved in 2 those sorts of things. sitt if you feel that in particular 3 instance we can help, or we can -- the appointment of a 4 settlement judge would help, we'll be g'ad to approach Chief ! 5 Administrative Judge Cotter and get him to appoint someone 6 that can-sit down and talk with you about any given 7 individual, any individual issue, or range of issues. 8 I think it's important that you talk to one 9 another. t 10 There are things here that may well be able to be worked 11 out, there may well be some things that cannot. venerally ) 12 sounds to me like there are some fundamental issues here i 13 that people have fairly strong views about, but maybe even l 14 those can be worked on. ' 15 So at this point I'm not going to require any ' 16 formal, kind of formal settlement discussions or anything 17 like that, but I just want to up front encourage that and !
-la let you know that we'll be talking about that from time to
-19 --time. And if there's-anything we can do to help you in that 20 respect, you abould let us know immediately.
21 Anything the other two Board members want to add? 22 I jusc want to say that I -- we, you know, we've , (- 23 been here for three days. Everyone has worked extremely 24 hard and the Board appreciates that. I think quality of, as 25 I said, of the written presentationa and the oral l ANN RILEY & ASSOCIATES, LTD. Court. Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 I' , ..
819 1 presentations endar difficult circumstances with time () 2 deadlines has been over -- been uniformly excellent. The 3 Board appreciates your efforts. We've gotten good input. 4 We have a lot of work to do now. All this paper now has to 5 be funneled through and something has to come out on the 6 other end. 7 I do want to thank again the State for providing 8 the bus for the site tour. I think it made the experience a 9 much better one for all of us. 10 The Skull Valley Band again for luncheon. We 11 appreciated that out at the site. It made things mu: h 12 easier, and it was a very good lunch I sheuld say. 13 Also, the University of Utah. I don't know if 14 there's anybody here from the school, but they've been very
) 15 kind to us, providing us what we needed to do to pull this 16 off in the best, I think, under some difficult circumstances 17 with the number of parties we have.
18 Whether we'll be meeting here again I have no 19 idea. 20 We've been looking at other places in the area. It's a 21 possibility there may be_some others, and we'll let you know 22 as t hat comes up. And we do hope to use some 23 teleconferencing from time to time. All right? 24 MS. CHANCELLOR: Judge Bollwerk? 25 CHAIRMAN BOLLWERK: Yes. ANN RILEY & ASSOCIATES, LTD. t Court Reporters 1250 I Street, N.W., Luite 300 Washington, D.C. 20005 (202) 842-0034 J
820 1 MS. CHANCELLOR: I have a couple of housekeeping ( 2 things. 3 CHAIRMAN BOLLWERK: Sure, absolutely. 4 MS. CHANCELLOR: Mr. Blake and I got together and 5 agreed on rewriting some contentions, what ones we accepted. 6 And either we accepted the rewrite in our reply as the 7 applicant wrote it or noted a distinction, or else we L addressed it at -- during the conference. Those ones that 9 we could reach agreement on, and ? can't be specific as to
.0 which ones we accepted as-is, which ones we didn't, but the l
11 ones that we have reached agreement on -- 12 CHAIRMAN BOLLWERK: Okay. 13 MS. CHANCELLOR: -- State B, C, H, M, 0, P, S, T, 14 V, W, CC, D, DD --
) 15 CHAIRMAN BOLLWERK: D. D or --
16 MS. CHANCELLOR: No, sorry. 17 CHAIRMAN BOLLWERK: DD?
$ 18 MS. CHANCELLOR: Not D, DD.
19 CHAIRMAN BOLLWERK: All right. 20 MS. CHANCELLOR: Did I say R? 21 CHAIRMAN BOLLWERK: You did not. You said B. 22 MR. BLAKE: I think you said -- 23 MS. CHANCELLOR: R. 24 MR. BLAKE: -- S rather than R. 25 CHAIRMAN BOLLWERK: That's -- ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
821 1 MR BLAKE: R was correct. () 2 MS. CRANCELLOR: Let ma go through them again. 3 CHAIRMAN BOLLWERK: All right. That's fine. Go 4 ahead. 5 No problem. 6 MR. BLAKE: Would you let me lo it, maybe? 7 MS. CHANCELLOR: Yes, absolutely. 8 MR. BLAKE: Okay. 9 MS, CHANCELLOR: And I'll -- 10 [ Laughter.) 11 CHAIRMAN BOLLWERK: Then it's your problem. 12 MS. CHANCELLOR: I'll check you. 13 MR. KENNEDY: Wouldn't it be better just to do 14 this in writing, so that -- 15 MR. BLAKE: Frankly, you were the only one that I 16 ,, didn't reach any agreements with. And I'd like to put it on 17 the record wit.h respect to the others in one spot here. 18 MR. KENNEDY: Okay. 19 MR. BLAKE: I think I can do it fairly quickly. 20 CHAIRMAN BOLLWERK: Go ahead. Real quick. 21 MR. BLAKE: With respect to State, Utah B, where 22 the State accepted our rewrite on it; Utah C, where we 23 accepted the State edit in our rephrasing. This is all in 24 the paperwork. 25 CHAIRMAN BC AERK: All right. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 j
822 1 MR. BLAKE: Utah H, where the State did not object () 2 to our rephrasing of the contention; Utah M and 0, which 3 earlier Ms. Chancellor rea'l into the record the exact 4 wording of those. So that's already a matter of record. 5 Utah P, where we accepted the State's rewording of the where the State accepted our rewrite; 6 contention; Utah R, 7 Utah T, where the State did some editing on our rewrite and 8 we've accepted thati Utah V, Victor, where the State edd.ted 9 a portion of our rephrased contention and we've accepted it; 10 and Utah W, where the State accepted our rewrite; Utah CC, 11 where the State accepted our rewrite; and Utah DD, where the 12 State revised -- provided some editing of our rephrase and 13 we've accepted it. 14 CHAIRMAN BOLLWERK: All right.
) 15 MR. TURK: I'm not sure I heard what happened with 16 Utah P as in Paul.
17 CHAIRMAN BOLLWERK: They accepted the State. Have 18 I got that right?
-19 MR. TURK: Is that right?
20 MR. BLAKE: On -- 21 MR. TURK: Thank you. 22 MR. BLAKE: On V. 23 MR. TURK: As in as in Victor? 24 MR. BLAKE: Yes. 25- MR. T! IRK: All right. ( [' ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
823 1 MR. BLAKE: The -- there is a rewrite which () 2 doesn't appear in any of the wording yet, so I want to 3 articulate what, on the record here, what that is. It's 4 simply a numbering. 5 MR. TURK: Okay. 6 MR. BLAKE: In subcontention D of our rewrite, 7 which appeared at page 293 in our answer. I've agreed with 8 the State that in that subcontention, little d, after the 9 first sentence, which reads "New information shows that 10 Table S-4 grossly underestimates transportation impacts." 11 That would be the end of the lead-in to a long list of Roman 12 numerals, beginning little Roman numeral i with the language 13 " Wash 1238," which is the basis for S-4, et cetera. 14 All of the rest of the paragraphs in that
) 15 subcontention which were previously numbered little Roman 16 numeral i to little Roman numera.1 ix, nine, one through 17 nine, would now be renumbered to he little Roman numeral 11, 18 two, through x, ten.
19 CHAIRMAN BOLLWERK: All right. And if for some 20 reason I get back to Washington and that's not clear, I'll 21 let you know. 22 MR. BLAKE: Yeah. 23 CHAIRMAN EOLLWERK: But -- 24 DR. LAM: Now, Mr. Blake, you intend to resubmit 25 all these to the Board; right? ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 1
824 1 MR. BLAKE: No. All_of the language is precisely () 2 available to you now, Dr._ Lam, from the preceding 3 submittals. 4 CHAIRMAN-BOLLWERK: Right.
-5 MR. BLAKE: Where it isn't, I'll try to make that 6 very clear.
7 DR. LAM: That's fine, that's fine. 8 MR. BLAKE: Let_me say with respect to Castle 9 Rock, we reached agreement on a large number of_the 10 rephrased contentions. Castle Rock has agreed to the PFS 11 rephrasing which appeared in our answer to numbers 2, 10, 12 11, 12, the infamous 13, 14, 15, 18, 19, 20, 21 and 23.
-13 We have agreed to Castle Rock's rewrite in their 14 reply to our answer with respect to contentions 5, 7 9, 16 15 and 17. That leaves no agreement between us where the Board 16 will have to decide what the contention is. 1 3, 4, . 6, 8, 17 22, and 24.
18 With respect to OGD's contentions, the star *ing 19 point was OGD's redraft which appeared in their reply to 20 answer. 21- CHAIRMAN BOLLWERK: All right. 22 MR. BLAKE: We have agreement on OGD A, with one 23- inserted word, the wort " accident" before the word " impacts" 24 in basis number two. 25 We have agreement on their_I) write of OGD B; We () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
825 1 have agreement on OGD C, again, their rewrite, with the () 2- following changes in the wording: In subcontention two, in 3 the second line insert the word " shipping" before the word 4 " Casks." 5 In subcontention four, in the second line, after 6 the wo:d "information," insert the words "about the 7 radiological characteristics of the spent fuel to be 8 shipped." 9 We have agreement on OGD E, echo, with the 10 following insert, which appears in subcontention one. At 11 the end of one you would add the words "that may leak or 12 become contaminated." 13 We have agreement -- we accept OGD's--rewrite of- - 14 their contention F; we accept their rewrite of contention G. 15 They dropped H. We accepted their rewrite of contention I, 16- We have agreement on OGD L. And I'm going to read 17 it to you. 18- "The contention as redrafted by OGD is acceptable 19 to us with the subbasis one reading as follows: 'The license 20 application does not meet the requirements of 10 C.F.R. 21 -72.327, in that persons being trained on the job will not be 22 -able to carry out their responsibilities under 10 C.F.R. 23 72.32 (a) (7) . ' " 24 MR. TURK: Your Honor, I appreciate the effort to 25 put on the record all the agreements. I think it's a good O ANN RILEY &-ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
826 1 idea. () 2 3 But I think it's also a good idea that after all this is done, the applicant submits it in writing, just so we're not 4 confused. 5 CHAIRMAN BOLLWERK: Right. 6 MR. TURK: But I think it's a good idea to put it 7 on the record new so there's no disngreement later. 8 CHAIRMAN BOLLWERK: Richt. Well, let me put it 9 this way. When you look at the -- take a look at the 10 transcript and make sure the transcript is accurate. If the 11 transcript isn't accurate -- 12 MR. BLAKE: Certainly we will. 13 CHAIRMAN BOLLWERK: -- let me know that. 14 MR. BLAKE: And I'm looki.19 at my compatriots with () 15 the hope that if I've misspoken -- 16 CHAIRMAN BOLLWERK: Right. 17 MR. BLAKE: -- they'll speak up now. 18 CHAIRMAN BOLLWERK: Yeah, I suspect everybody 19 better review the transcript and make sure there's no 20 mistakes in it. 21 How many more of these do we have, just out of 22 interest? 23 MR. BLAKE: I think there's only one more, but I 24 have loct my place. 25 CHAIRMAN BOLLWERK: Oh, sorry. O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
827 1 MR. TURK: Be glad to assist any time. () 2 3 CHAIRMAN BOLLWERK: that helps any. The last one you did was L, if 4 MR. BLAKE: We have agreement on OGD M with simply 5 an insert of "a" in parentheses in the subcontention one. 6 So that the citation to the C.F.R. would read 10 C.F.R.
, 72.32(a), the insert, (2).
8 I say, I was not able to reach agreement, Mr. 9 Kennedy did not want to reach agreement on any of them -- 10 CHAIRMAN BOLLWERK: All right. 13 MR. BLAKE: -- for the Confederated Tribe. 12 CHAIRMAN BOLLWEnd: All right. We -- 13 MR. BLAKE: And I appreciate the indulgence of the 14 Board, and I'm sorry that it took us a couple minutes past 15 7. 16 CHAIRMAN BOLLWERK: Not a problem. I appreciate 17 the efforts of the parties because it's obviously important 18 to us to have the language in front of us of the contention 19 as you have agreed to it. 20 All right. Anything further? 21 MS. CHANCELLOR: Yes. 22 CHAIRMAN BOLLWERK: Mrs . Chancellor, go ahead. 23 MS. CRANCELLOR: Just a quick thing to get it on 24 the record. 25 We would like to understand the process by which O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
828 1 the staff is going to keep everybody appraised of what's () 2 going on. For example, the status of the staff safety 3 review and copies of correspondence that go, and questions 4 that go back and forth to the -- between the applicant and 5 staff. Will such correspor.dence be served on the parties? 6 The same question for NEPA review. Has that begun 7 yet and when will scoping start, schedule for the same. 8 Also, the correspondence. 9 Another area -- do you want me to go through all 10 of these all at once, or do you want me to pause between 11 each one? 12 CHAIRMAN BOLLWERK: I don't know. Is the staff 13 going to answer any of these questions or not? 14 MS. CHANCELLOR: I have about -- I have four.
) 15 MR. TURK: Sure. There's a simple answer. That 16 is that the parties to the proceeding, once there's a ruling 17 on who the parties are, they'll be placed on the staff's 18 technical service list. I say that as opposed to the legal 19 service list. So that correspondence between the staff and 20 the applicant concerning the safety evaluation and the 21 environmental report and staff's impact statement, you'll be 22 receiving copies of that.
23 The staff does not routinely serve that kind of 24 information on the Board, however. We only' serve the Board 25 with that kind of information when something is -- rises to O - ANN RlLEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
s 8 ?.9 the level of Board notification. 2 MS. CHANCELLOR: h So that will be any
. 3 cnrrespondence.
4 , And questions and answers going back and forth once a person ' 9 5 is admitted as a party, would that -- B MR. TURK-6} i Correspondence between the staff and 7 the applicant -- 8 MS. CHANCELLOR: Okay. 3 9 MR. TURK: -- will be served upon you. , 10 MS. CHANCELLOR: What about cask manufacturers,
~11 such as Holtec and representatives of the applicant? Is 12 that --
13 MR. TURK: I don't believe that would go to yo.u, 14 because that's part of the ru3 e making. However, that 15 c.aterial would be subjact to your review in the public 16 document room. 17 MS. CHANCELLOh. Right. What we're trying to 18 avoid is late "iled contentions. If we have to rely cr. the 19 public docutient room, frequently there's at least a two week 20 delay, and maybe even longer, coming here to Utah. So 21 that's what we're trying to avoid. ( 22 MR. TURK: Well, we have established a local 23 public document room here in Salt Lake, 's you know. 24 MS. CHANCELLO"- Right. 25 MR. TURK: The rule making on the cask, that is h ANN r'~aEY & ASSOCIATES, LTD.
^7urt Reporters 1250 I Street, N.W., Suite 3L Washington, D.C. 20005 (202) 842-0034
830 1 something which has generic applicability. Although you're () 2 3 a party in this proceeding, there may be numerous other proceedings at some time in the future. And we don't put e parties to individual licensing prouaedings on our generic , 5 rule making. G MS. CHANCELLOR: Okay. Well, we'll -- g 7 MR. TURK: But it wouldn't be a bad idea for you
- 4 m? 8 i just to routinely check the LPDR.
S MS. CHANCELLOR: We'll make a diligent effort, but 10 realize that if something is delayed getting to the PDR, it 11 may result in late filed contentions. 12 MR. TURK: And I have to say I'm not sure at this 13 point whether the rule making dockets en those cask 14 certification requests are in the LPDR as of yet. But when 15 we go back to Washington we'll ascertain whether or not they 8 16 are and we'll try to get them ia. 17 MS. CHA?;CELLOR : Well, if there's any way for you ' 18 -- 19 MR. TURK: And I would expect we'll be able to. 20 MS. CHANCELLOR: If there's any way for you to 21 expedite what goes into the PDR and L_DR we'd certainly , 22 a,'preciate that. r 23 CHAIRMAN BOLLWERK: All right. Anything further? 24 MR. SILBERG: We Jill also -- 25 CHAIRMAN BOLLWERK: Go ahead, sir. ANN RILEY & ASSOCIATES. LTD. Court Reportert 1250 I Street, N.W., Suite 300 Waehington, D.C. 20005 (202) 842-0034
831 1 MR. SILBERG: We will also put parties, after () 2 people are designated as parties, on service lists for all 3 of our correspondence from PFS to the NRC staff. 4 MS. CHANCELLOR: Okay. 5 MR. SILBERG: Of course to the extent that it 5 6 doesn't involve proprietary information. 7 MR. TURK: And I guess I should have been clear on 8 that. The staff does not serve upon you correspondence 9 received from the applicant. We serve upon you the staff's 10 outgoing correspondence. So Mr. Silberg's clarification of i 11 his intent in the future should give you a complete set of j 12 correspondence. i 13 Something elsc? 14 MS. CHANCELLOR: Just a couple. () 15 With respect to (laughs), with respect to any l 16 meetings between the staff and the applicant, is it possible 17 to get a week's notice, say by e-mail or fax of those , 18 meetings, so that, if necessary, we could hav9 somebody 19 attend? Assume they're open to the public. 20 MR. TURK: I understand that meetings between the 21 staff and the applicant will be the subject of 22 correspondence or netice, which is issued approximately two 23 weeks before the meeting. 24 MS. CHANCELLOR: Oh, two weeks. Good. In the 25 Federal Register, or -- a () 7dRJ RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 l
C32 1 MR. TURK: Not -- no, usually not in the Federal
- () 2 . lister, usually just in the correspondence of the docket.
3 MS. CHANCELLOR: Would that be sent to the 4 parties? 5 CHAIRMAN BOLLWERK: My understanding is once 6 you're designated as a party, then it goes to you. Is that 7 -- am I correct? 8 MR. TURK: You'd be a recipient of the staff's 9 correspondence. 10 CHAIRMAN BOLLWERK: Right. 11 MR. TURK: I'm told that there's also a list of 12 such meetings in the -- on the Internet, but ! don't want 13 you to rely on that necessarily. I think the better 14 reliance would be upon correspondence. Meetings of a very 15 significant nature would be in the Federal Register. 16 MS. CHANCELLOR: Okay. And I'm not sure how long 17 the panel will take to decide when peop]e will be -- 18 MR- TURK: And I have - I'm sorry. 19 MS. CHANCELLOR: -- admitted as parties. A 20 MR. TURK: I'm sorry I cut you off. When I said 21 that, what I was thinking of is if there im something that 22 has general public applicability, .much as if there is a p 23 public meeting held with the app) nt that we consider to 24 be of great public interest, we would do that. We would put 4 25 that notice in the Federal Register. Most meetings would () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034 l
. .. _____-__ l
833 1 not be noticed, however. l 2 MS. CRANCnLLOR: But there would be a two week 3 notice on the -- on your home page? 4 MR. TURK: That's the general predure. ! 5 MS 2HANCELLOR: Okay. 6 MR. TURK: Now there may be times when that's not 7 possible, but tile staf f will do whatever it can to make sure 8 that you get timely notice. 9 MS, CHANCELLOR: Okay. Just very, very quickly. 10 We have in the application a conceptual description o' the 11 facility. Can you give us any idea of when there will De a 12 detailed design that will be subnitted to you? That 13 question is either for the applicant or the staff. 14 MR. SILBERG: I don't know if we need to take this i 15 time now, and I don't know the answer to that. 16 CHAIRMAN BOLLWERK: All right. Anything else? e 17 MR. SILBERG: Depends in part on what additional 18 information the staff needs. 19 MS. CHANCELLOR: I think I better quit. 20 CHAIRMAN BOLLWERK: Okay. Just let me ask one -- 21 although there's no -- the application is not, quote 22 unquote, before us as an exhibit, I guess at this potnt the 23 Board would De interested in getting an electronic copy or a 24 hard copy. Can someone give us a hand with that? We have 25 actually one that's on microficne I think, but -- ll TNN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
834 1 MR. TURK: You're asking about the application, or 2 the -- 3 CHAIRMAN BOLLWERE: The application itself. 4 MR. TURK: -- safety analysis report, the 3 environmental report? , 6 CHAIRMAN BOLLWERK: We've, up to this point, have, 7 I shouldn't say resisted, but we just haven't wanted to put, 8 you know, blow back 2,000 pages of fiche, or how:ver long it 9 is, I don't know. But -- 10 MR. TURK: I'm not sure that we have extra copies. 11 I would see if the applicant can make those available. 12 MR. SILBERG. Well, if the staff doesn't, we will 13 get you a copy. 14 CHAIRMAN BOI.LWERK: All right. And we could take 15 an electronic version if you had that. I don't know how you 16 -- what you have it in, but s'hatever is convenient for you. 17 DR. KLINE: You have something that was 18 searchable, it would be -- 39 CHAIRMAN BOLLWERK Right, yeah. If we had 20 something searchable, that's even better, as Judge Kline t 21 points out. 22 So -- 23 All right. Anything else then? 24 All right. Again, we've done a good job. We got 25 done a half day early. And the reward for those of you that h ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
835 1 live in Salt Lake City is you have to go to the office 2 tomorrow. h 3 For those of us from Washington, I guess we'll be 4 traveling back. 5 Again, I aopreciate your efforts. Yoa'll be 6 hearing from us. And we stand adjourned. Thank you. 7 [Whereupon, at 7:10 p.m., the prehearing 8 conference was concluded.) 9 10 11 12 13 14 15 16 17 18 e 19 20 21 22 23 24 25 ANN RILEY & ASSOCIATES, LTD. Court Reporters 1250 I Street, N.W., Suite 300 Warhington, D.C. 20005 (202) 892-0034
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 DOCKET NUMBER: 72-22-ISFSI E PLACE OF PROCEEDING: Salt Lake City, Utan 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 wypewriting by me er under the direction of the court recorting company, and that the transcript is a true and accurate record cf the foregoing proceedings. AA4 "J/- ' i Rcxanne M. Markoff g() Official Reporter Ann Riley & Associates, Ltd. l O 1}}