ML20213C708

Interim Storage Partners Llc'S Answer Opposing Fasken'S and Pblro'S Second Motion to Reopen the Record and Motion for Leave to File New Contention 5

ML20213C708
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	07/31/2020
From:	Bessette P, Lighty R, Matthews T Consolidated Interim Storage Facility, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
ASLBP 19-959-01-ISFSI-BD01, RAS 55747, WCS CISF 72-1050-ISFSI
Download: ML20213C708 (42)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: )

) Docket No. 72-1050 INTERIM STORAGE PARTNERS LLC )

) July 31, 2020 (Consolidated Interim Storage Facility) )

)

INTERIM STORAGE PARTNERS LLCS ANSWER OPPOSING FASKENS AND PBLROS SECOND MOTION TO REOPEN THE RECORD AND MOTION FOR LEAVE TO FILE NEW CONTENTION 5 Timothy P. Matthews, Esq.

Paul M. Bessette, Esq.

Ryan K. Lighty, Esq.

MORGAN, LEWIS & BOCKIUS LLP Counsel for Interim Storage Partners LLC

TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................... 1 II. PROCEDURAL HISTORY .................................................................................................... 6 III. THE COMMISSION SHOULD DENY THE MOTION TO REOPEN BECAUSE FASKEN HAS NOT SATISFIED THE COMMISSIONS STRICT REOPENING STANDARDS ......................................................................................................................... 9 A. Legal Standards for Motions to Reopen the Record .................................................... 9 B. The Motion to Reopen Fails to AllegeMuch Less, DemonstrateThat It Was Timely Filed............................................................................................................... 10 C. The Motion to Reopen Fails to AllegeMuch Less, DemonstrateThat It Raises a Significant Environmental Issue ............................................................................ 11 D. The Motion to Reopen Fails to AllegeMuch Less, DemonstrateThat the Board Would Have Reached a Materially Different Result ................................................. 13 IV. THE COMMISSION SHOULD DENY THE MOTION FOR LEAVE BECAUSE FASKEN HAS NOT SATISFIED THE COMMISSIONS STRICT STANDARDS FOR LATE-FILED CONTENTIONS ................................................................................... 14 A. Legal Standards for Motions for Leave to File New, Late-filed Contentions ........... 14 B. The Motion for Leave Fails to Identify Any New and Materially Different Information ................................................................................................................ 15

1. Faskens Arguments Regarding the 2008 Yucca FEIS Supplement and the Use of Representative Routes in the DEIS Transportation Analysis Fail to Identify Any New and Materially Different Information ....................... 16

2. Faskens Arguments Regarding the Costs of Emergency Response and Infrastructure Improvements Fail to Identify Any New and Materially Different Information in the DEIS ............................................................... 21

3. Faskens Other Miscellaneous Arguments Raise Untimely Challenges That Could Have Been Raised at the Outset of the Proceeding............................. 23 C. The Motion for Leave Is Untimely ............................................................................ 24 D. The Motion for Leave Fails to Present an Admissible Contention ........................... 25

1. Contention Admissibility Criteria ................................................................. 27

2. The Primary Arguments Fasken Seeks to Raise in Contention 5 Already Have Been Found Inadmissible by the Board or the Commission or Both ... 29

3. Faskens Other Untimely Challenges Are Variously Immaterial, Unsupported, Out-of-Scope, and Fail to Demonstrate a Genuine Dispute.... 31 V. CONCLUSION...................................................................................................................... 38

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: )

) Docket No. 72-1050 INTERIM STORAGE PARTNERS LLC )

) July 31, 2020 (Consolidated Interim Storage Facility) )

)

INTERIM STORAGE PARTNERS LLCS ANSWER OPPOSING FASKENS AND PBLROS SECOND MOTION TO REOPEN THE RECORD AND MOTION FOR LEAVE TO FILE NEW CONTENTION 5 I. INTRODUCTION Pursuant to 10 C.F.R. §§ 2.309(i)(1) and 2.323(c), Interim Storage Partners LLC (ISP) submits this Answer opposing Fasken Oil and Ranch, Ltd.s and Permian Basin Land and Royalty Owners (collectively, Fasken) Motion to Reopen the Record1 (Motion to Reopen) and Motion for Leave to File New and/or Amended Contention2 (Motion for Leave) (collectively, Motions). The former Atomic Safety and Licensing Board (Board) terminated the above-captioned adjudicatory proceeding on December 13, 2019, because no 1

Fasken Oil and Ranch, Ltd and Permian Basin Land and Royalty Owners Motion to Reopen the Record (July 6, 2020) (ML20188A390) (Motion to Reopen). This is Faskens second such motion. Fasken filed the first motion to reopen the record in January, 2020, (based on an ISP response to a Request for Additional Information from the U.S. Nuclear Regulatory Commission (NRC) Staff related to groundwater), which is still pending before the Commission. Fasken Oil and Ranch, Ltd and Permian Basin Land and Royalty Owners Motion to Reopen the Record for Purposes of Considering and Admitting an Amended Contention Based on New Information Provided by Interim Storage Partners in Response to NRC Requests for Additional Information (Jan. 21, 2020) (ML20021A384).

2 Fasken Oil and Ranch, Ltd and Permian Basin Land and Royalty Owners Motion for Leave to File New and/or Amended Contention (dated July 6, 2020, but filed and served via EIE on July 7, 2020, see Attachment 1 to this Answer) (ML20189A000) (Motion for Leave).

admissible contentions were pending.3 Faskens Motions ask that the Board4 reopen the record of the proceeding and admit a new Contention 5,5 which purports to challenge allegedly new information, in the NRC Staffs May 2020 draft environmental impact statement (DEIS),6 regarding transportation impacts and site selection. As explained below, the Motions must be rejected because they fail to satisfy the Commissions strict standards for raising new issues at this stage of a proceeding.

As a general matter and as discussed further below, the Motions could be diplomatically described . . . as less than optimally organized or articulated.7 In more direct terms, they are fairly described as repetitive, overlapping, misleading, and difficult to follow. Indeed, the Motions and associated attachments and enclosures are replete with incorrect citations,8 3

Interim Storage Partners LLC (Consol. Interim Storage Facility), LBP-19-11, 90 NRC __ (Dec. 13, 2019) (slip op.).

4 Fasken again improperly filed its Motions before the Board. As a matter of law, and as ISP and the NRC Staff have explained previously, the Boards jurisdiction has terminated and filings must be submitted before the Commission. See [ISP]s Answer Opposing Faskens and PBLROs Motion to Reopen the Record and Motion for Leave to Amend Contention Four at 2 n.4 (Feb. 18, 2020) (citing, e.g., Dominion Nuclear Conn., Inc.

(Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 120 (2009)); NRC Staffs Answer in Opposition to Fasken Oil and Ranch, Ltd. and Permian Basin Land and Royalty Owners Amended Contention 4 and Accompanying Motion to Reopen the Record at 4 n.16 (Feb. 18, 2020) (citing Va. Elec. & Power Co.

(N. Anna Power Station, Unit 3), CLI-12-14, 75 NRC 692, 701 (2012)).

5 Fasken styled its proposed contention here as New Contention No. 5. See, e.g., Motion for Leave at 11.

However, this is the sixth contention proposed by Fasken, which already proposed a Contention 5 earlier in this proceeding. See Interim Storage Partners LLC (WCS Consol. Interim Storage Facility), LBP-19-7, 90 NRC __, __ (Aug. 23, 2019) (slip op. at 104-05) (rejecting Faskens proposed Contention 5).

6 NUREG-2239, Draft Report for Comment, Environmental Impact Statement for Interim Storage Partners LLCs License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel in Andrews County, Texas at 3-9 (May 2020) (ML20122A220) (DEIS).

7 Crow Butte Res., Inc. (N. Trend Expansion Proj.), CLI-09-12, 69 NRC 535, 552 (2009) (citation omitted).

8 See, e.g., Motion for Leave, Ex. 2 at [PDF 16] n.60 (ML20189A002) (attributing a quote to DEIS page 4-22; the quote in fact appears on page 2-22); id., Ex. 2 at [PDF 7-8] n.28 (attributing a quote to DEIS page 3-7; the quote in fact appears on page 3-8); id., Ex. 2 at [PDF 8] n. 29 & 30 (attributing two quotes to DEIS page 3-8; those quotes in fact appear on page 3-9).

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misrepresentations of allegedly-quoted materials,9 and untrue assertions of controlling law10all of which only further support the already plentiful grounds on which to deny both Motions.11 Motion to Reopen To be granted, Faskens Motion to Reopen is required to demonstrate three things:

(1) that it was timely filed; (2) that it is based on the discovery of new and materially different information that paints a seriously different picture of the environmental landscape12; and (3) that the Board would have somehow reached a different conclusion in its earlier rulings.13 The Motion to Reopen generally acknowledges these standards,14 but, inexplicably advances no arguments that they have been satisfied here. The Motion to Reopen should be rejected for this reason alone.15 Moreover, even if the presiding officer or the parties were required to review the underlying documents and muster arguments that Fasken did not itself advanceand to be clear, 9

See, e.g., Motion for Leave at 21 n.64. (attributing a quote to an unspecified page of the DEIS regarding fluid induced fault slip; the quote does not appear anywhere in the DEIS); id., Ex. 2 at [PDF 9] n.34 (attributing a quote to DEIS page 13; the quote does not appear anywhere in the DEIS); id., Ex. 2 at [PDF 9-10] n.36 & 37 (attributing two quotes to DEIS page 3-20; the quotes do not appear anywhere in the DEIS); id., Ex. 2 at [PDF 10] n.38 (attributing a quote to DEIS page 15; the quote does not appear anywhere in the DEIS).

10 See, e.g., Motion for Leave at 13, 21-22 (claiming the DEIS is required by law to address potential terrorist attacks). The Commission has long held precisely the opposite. See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 128-29 (2007) (NEPA does not require the NRC to consider the environmental consequences of hypothetical terrorist attacks on NRC-licensed facilities.).

11 Cf. Entergy Nuclear Vt. Yankee, LLC, (Vt. Yankee Nuclear Power Station), LBP-06-5, 63 NRC 116, 122 (2006) (citing 10A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 2727 (3d ed. 1998) in the context of a motion for summary disposition) (The moving party fails to meet its burden . . . when there is an issue as to the credibility of the moving partys evidentiary material.).

12 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-06-3, 63 NRC 19, 28 (2006).

13 10 C.F.R. § 2.326(a); see AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 674 (2008) (The standards governing motions to reopen appear in 10 C.F.R. § 2.326.); see also Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-3, 75 NRC 132, 143 (2012) (All of the factors in [10 C.F.R. §] 2.326 must be met in order for a motion to reopen to be granted.).

14 Motion to Reopen at 3.

15 See Tenn. Valley Auth. (Watts Bar Nuclear Plant, Unit 2), CLI-15-19, 82 NRC 151, 155-56 (2015) ([T]he burden of satisfying the reopening requirements is a heavy one, and it rests with the party moving to reopen.)

(citing AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 287 (2009)); Oyster Creek, CLI-08-28, 68 NRC at 674 ([I]t is [petitioners] burden, through its motion to reopen and in its accompanying affidavit . . . to demonstrate that the motion should be granted.).

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neither the presiding officer nor the parties are required to do so16the Motion to Reopen still must be rejected. As explained below, Fasken obtained an extension of time to file its Motion for Leave, but not its Motion to Reopenwhich is decidedly untimely.17 Furthermore, neither Motion identifies any information that is both new and materially different (much less, any information that would remotely paint a seriously different picture of the environmental landscape). Finally, the Motions largely repeat arguments that were previously rejected by the Board. Thus, it is highly unlikelyand Fasken certainly has not demonstrated otherwisethat the Board would have reached a different conclusion. Ultimately, the Motion to Reopen must be rejected for any or all three of these reasons.

Motion for Leave Faskens Motion for Leave should be rejected for similar reasons. To be granted, NRC regulations specify that motions for late-filed contentions must do three things: (1) demonstrate that the filing is based on new and materially different information, (2) demonstrate that the motion is timely, and (3) present an admissible contention.18 The Motion for Leave does none of these things.

First, Faskens Motion for Leave purports to be based on new information presented in the Staffs DEIS that Fasken claims is materially different than information previously presented in ISPs Environmental Report (ER).19 More specifically and primarily, Fasken claims that the DEIS for the first time relies on and cites to data in the DOE Yucca 2008 16 See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-02-16, 55 NRC 317, 337 (2002) (The Commission refuses to sift through the parties pleadings to uncover and resolve arguments not advanced by the litigants themselves.) (quoting Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-99-4, 49 NRC 185, 194 (1999)).

17 Office of the Secretary, Order (May 22, 2020) (unpublished) (ML20143A239) (Order of the Secretary).

18 10 C.F.R. § 2.309(c)(1), (4).

19 ISP, Environmental Report, Rev. 3, Docket No. 72-1050 (Feb. 17, 2020) (ML20052E144) (ER).

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transportation analysis.20 In Faskens view, the allegedly new information pertains primarily to the use of a representative route methodology (rather than specific routes) to analyze transportation impacts in the DEIS.21 However, Fasken is incorrect that the representative route analysis is newthe ER also relied on this methodology. Fasken also raises several other arguments that it styles as new and significant omissions in the DEIS. But, as detailed below, the alleged omissions in the DEIS also were not presented in the ER. In other words, Fasken could havebut did notraise these same challenges at the outset of this proceeding. In fact, other petitioners (unsuccessfully) attempted to raise some of these same challenges at the outset.

Fasken fails to explain why it could not have followed suit. At bottom, Fasken fails to identify anything that is genuinely different (much less, materially different) between the ER and the DEIS. Simply put, Faskens challenges are unsupported and untimely by many months or years.

Second, since Fasken has not demonstrated the existence of any new and materially different information, it also has failed to demonstrate the timeliness of its Motion for Leave.

Furthermore, Fasken claims that its Motion for Leave is timely pursuant to an Order from the NRC Secretary which established a deadline of July 6, 2020, for filing such motions. However, Fasken filed its Motion for Leave on July 7, 2020after the Secretarys deadline. For either or both of these reasons, Faskens Motion for Leave is untimely and must be rejected.

Third, Fasken proposes a new Contention 5, which purports to challenge the DEIS analysis of transportation impacts and site selection. As explained further below, Faskens statement of the contention, and proffered bases for that contention, are confusing and not entirely clear. Generally speaking, however, Fasken raises numerous arguments that have 20 Motion for Leave at 6.

21 Id. at 14.

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already been rejected by the Board. For example, Fasken argues that the transportation analysis must consider specific transportation routes and must evaluate the potential impacts of terrorist attacks. Fasken fails to disclose, much less distinguish, extensive controlling precedent (including decisions from the Board below) that directly contradicts these arguments. Certain of Faskens arguments also conflate the DEIS (which documents the Staffs environmental review) with the NRCs safety regulations in 10 C.F.R. Part 72. Fasken also raises an assortment of miscellaneous arguments that are variously out-of-scope, immaterial, unsupported, and fail to demonstrate a genuine dispute with the DEIS. At bottom, the Motion for Leave must be denied for the additional reason that Fasken has not proffered an admissible contention.

A detailed enumeration of the multiple and various deficiencies in the Motions is provided below. Ultimately, both Motions should be denied.

II. PROCEDURAL HISTORY22 ISP submitted an environmental report (ER, Rev. 2) with its license application on July 19, 2018.23 As particularly relevant here, ER, Rev. 2 analyzed representative transportation routes in its evaluation of the potential impacts of transporting spent nuclear fuel (SNF) to and from the consolidated interim storage facility (CISF).24 In October 2018, Fasken filed a Petition for Intervention and Request for Hearing proffering five contentions.25 None of Faskens five contentions raised an issue related to transporting SNF to the proposed facility.

22 A detailed procedural history of the full proceeding is set forth in LBP-19-7 and LBP-19-9. ISP, LBP-19-7, 90 NRC at __ (slip op. at 6-12); Interim Storage Partners LLC (WCS Consol. Interim Storage Facility),

LBP-19-9, 90 NRC __, __ (Nov. 18, 2019) (slip op. at 2-4).

23 ISP, WCS CISF License Application, Rev. 2 (July 19, 2018) (ML18206A595).

24 ER, Rev. 2 § 4.2.

25 Petition of Permian Basin Land and Royalty Organization and Fasken Land and Minerals for Intervention and Request for Hearing (Oct. 29, 2018) (ML18302A412) (Petition).

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Following oral argument in Midland, Texas, on July 10-11, 2019, the Board ruled that while Fasken demonstrated standing, it failed to proffer an admissible contention.26 Although Fasken submitted no proposed contention on transportation issues, other petitioners did. For example, Sierra Clubs proposed Contention 4 claimed ISPs ER, Rev. 2 omitted a discussion of potential terrorist attacks or sabotage events.27 The Board rejected this contention as outside the scope of this proceeding.28 As another example, a group of Joint Petitioners challenged the use of a representative route methodology to analyze transportation impacts.29 The Board rejected this contention as well.30 The Board later terminated the adjudicatory proceeding because no admissible contentions were pending.31 Fasken appealed the Boards rejection of its contentions in September 2019.32 Faskens appeal remains pending before the Commission. On January 21, 2020, Fasken moved to reopen the terminated adjudicatory proceeding33 and for leave to file amended Contention 4.34 Fasken 26 ISP, LBP-19-7, 90 NRC at __ (slip op. at 18-20, 105).

27 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club at 31-43 (Contention 4) (Nov. 13, 2018) (ML18317A411) (Sierra Club Petition).

28 ISP, LBP-19-7, 90 NRC at __ (slip op. at 37, 49, 93) (the Commission has taken the position that the NRC is not required to consider terrorism in its NEPA analysis of licensing actions outside of those states encompassed by the United States Court of Appeals for the Ninth Circuit.).

29 Petition of Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Sustainable Energy and Economic Development Coalition, and Leona Morgan, Individually, to Intervene, and Request for an Adjudicatory Hearing at 41-49 (Contention 1) (Nov. 13, 2018) (ML18317A433) (Joint Petitioners Petition).

30 ISP, LBP-19-7, 90 NRC at __ (slip op. at 67-69) (holding that NEPA does not require speculation as to unknown details about a 20-year transportation campaign conducted by entities other than ISP and subject to future regulatory approvals that may be requested by those unknown entities).

31 ISP, LBP-19-11, 90 NRC at __ (slip op.).

32 Fasken and PBLROs Notice of Appeal of LBP-19-07 (Sept. 17, 2019) (ML19260J387) and Fasken and PBLROs Brief on Appeal of LBP-19-07 (Sept. 17, 2019) (ML19260J386) (Appeal).

33 Fasken Oil and Ranch, Ltd and Permian Basin Land and Royalty Owners Motion to Reopen the Record for Purposes of Considering and Admitting an Amended Contention Based on New Information Provided by Interim Storage Partners in Response to NRC Requests for Additional Information (Jan. 21, 2020)

(ML20021A384).

34 Fasken Oil and Ranch, Ltd and Permian Basin Land and Royalty Owners Motion for Leave to Amend Contention Four Regarding Interim Storage Partners New Description of Groundwater Located Below the Site and the Potential Impact the Site Will Have on the Groundwater (Jan. 21. 2020) (ML20021A385).

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filed these motions to challenge allegedly new information ISP provided in response to a request for information (RAI) from the NRC Staff regarding groundwater near the CISF site.35 These motions are also pending before the Commission.

On February 17, 2020, ISP submitted an updated version of its ER (i.e., Rev. 3) to reflect changes previously discussed in ISPs responses to the NRCs environmental RAIs.36 On May 4, 2020, the NRC publicly released its DEIS.37 Two weeks later, Fasken filed an unopposed motion to extend the deadline to file petitions to intervene, new or amended contentions, or hearing requests based on information in the DEIS (Motion for Extension).38 That motion was granted, and the deadline for late-filed contentions (but not motions to reopen) was extended to July 6, 2020.39 Fasken filed its Motion to Reopen on July 6, 2020, and filed its Motion for Leave shortly after midnight on July 7, 2020. Fasken provided no rationale for the late filing of its Motion for Leave.

35 Id.

36 Letter from J. Isakson, ISP, to NRC Document Control Desk, E-56071, Submission of Revision 3 of the Environmental Report for the WCS CISF, Docket 72-1050 CAC/EPID 001028/L-2017-NEW-0002 at 1 (Feb. 17, 2020) (ML20052E146).

37 See ADAMS profile information for Accession No. ML20122A220 (showing the DEIS was made publicly available 05/04/2020 08:30 AM EDT). The NRC published a notice seeking public comment a few days later. See Interim Storage Partners Consolidated Interim Storage Facility Project, Draft Environmental Impact Statement; Request for Comment, 85 Fed. Reg. 27,447 (May 8, 2020).

38 Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Unopposed Motion to Extend Deadlines Pending the COVID-19 National Emergency (May 18, 2020) (ML20139A226) (Motion for Extension).

39 Order of the Secretary at 1.

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III. THE COMMISSION SHOULD DENY THE MOTION TO REOPEN BECAUSE FASKEN HAS NOT SATISFIED THE COMMISSIONS STRICT REOPENING STANDARDS A. Legal Standards for Motions to Reopen the Record The Commission considers reopening the record to be an extraordinary action.40 As a result, the Commission imposes a deliberately heavy burden upon a participant seeking to reopen a closed record.41 To meet this burden, 10 C.F.R. § 2.326(a) requires a party seeking to reopen the record to show that its motion: (1) was timely filed, (2) concerns a significant safety issue or environmental matter, and (3) demonstrates that, had the newly proffered evidence been considered initially, the Board would have reached a materially different result.42 As to the second requirement, a movant must show the existence of evidence that (a) is new, (b) is significant, and (c) will paint a seriously different picture of the environmental landscape.43 Finally, section 2.326(b) requires the motion to be:

accompanied by affidavits that set forth the factual and/or technical bases for the movants claim that the criteria of paragraph (a) of this section have been satisfied. Affidavits must be given by competent individuals with knowledge of the facts alleged, or by experts in the disciplines appropriate to the issues raised. Evidence contained in affidavits must meet the admissibility standards of this subpart.

Each of the criteria must be separately addressed, with a specific explanation of why it has been met. When multiple allegations are involved, the movant must identify with particularity each issue it seeks to litigate and specify the factual and/or technical bases which 40 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-11-2, 73 NRC 333, 338 (2011)

(citation omitted).

41 Id. (quoting Oyster Creek, CLI-08-28, 68 NRC at 674). See also Oyster Creek, CLI-09-7, 69 NRC at 287 (citing La. Power & Light Co. (Waterford Steam Elec. Station, Unit 3), CLI-86-1, 23 NRC 1, 5 (1986)).

42 10 C.F.R. § 2.336(a). See also Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-3, 75 NRC 132, 143 (2012) (All of the factors in [10 C.F.R. §] 2.326 must be met in order for a motion to reopen to be granted.).

43 PFS, CLI-06-3, 63 NRC at 28; see also Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station)

LBP-11-23, 74 NRC 287, 301 (2011) (the Commission has indicated that the standard for when an issue is significant in the context of reopening a closed record is the same as the standard for when supplementation of an EIS is required, i.e., the new and significant information must paint a seriously different picture of the environmental landscape.) (quoting PFS, CLI-06-3, 63 NRC at 28).

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it believes support the claim that this issue meets the criteria in paragraph (a) of this section.44 As the Commission recently noted, [t]he level of support required for a motion to reopen is greater than that required for a contention under the general admissibility requirements of 10 C.F.R. § 2.309(f)(1).45 Bare assertions and speculation, even those supplied by an expert in an affidavit, do not supply the requisite support for a motion to reopen.46 The Commission has held that the burden of satisfying the reopening requirements is a heavy one, [and]

proponents of a reopening motion bear the burden of meeting all of [these] requirements.47 B. The Motion to Reopen Fails to AllegeMuch Less, DemonstrateThat It Was Timely Filed A motion to reopen must be timely.48 Faskens Motion to Reopen correctly identifies this requirement.49 However, Fasken otherwise articulates no specific argument (as it is required to do50) purporting to explain how this requirement allegedly is satisfied here.

The DEIS first became publicly available on May 4, 2020.51 Fasken clearly recognized that new or amended contentions under 10 C.F.R. § 2.309(c)(1) must be filed within a presumptive 30-day window (i.e., by June 3, 2020).52 Fasken anticipated that it would be unable to meet that deadline and, thus, filed its Motion for Extension.53 On May 22, 2020, the NRC Secretary issued an Order stating that [p]etitions to intervene, hearing requests, and 44 10 C.F.R. § 2.326(b).

45 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-17-7, 85 NRC 111, 116 (2017).

46 Oyster Creek, CLI-08-28, 68 NRC at 674.

47 Oyster Creek, CLI-09-7, 69 NRC at 287 (internal quotations and citation omitted).

48 10 C.F.R. § 2.326(a)(1).

49 Motion to Reopen at 3.

50 Oyster Creek, CLI-08-28, 68 NRC at 674-75 (the burden is on the movant).

51 See ADAMS profile information for Accession No. ML20122A220 (showing the DEIS was made publicly available 05/04/2020 08:30 AM EDT).

52 Motion for Extension at 5.

53 Id.

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motions to admit contentions challenging the ISP [DEIS] will be deemed timely if filed on or before July 6, 2020.54 Fasken claims that its Motion for Leave was timely filed pursuant to this Order.55 However, Fasken did not explicitly request an extension of time to file a motion to reopen; and the Secretarys Order explicitly declined to extend the deadline for such motions.56 Fasken and its counsel should have knownand indeed had actual knowledgeof the presumptive 30-day window.57 In other words, in the absence of an extension, any motion to reopen was due by June 3, 2020. Fasken did not file its Motion to Reopen until July 6, 2020.

Fasken is entirely silent as to its reason for the late filing. Accordingly, the Motion to Reopen should be rejected as untimely.

C. The Motion to Reopen Fails to AllegeMuch Less, DemonstrateThat It Raises a Significant Environmental Issue Any motion to reopen must address a significant safety or environmental issue.58 Faskens Motion to Reopen also correctly identifies this requirement.59 However, the Motion to Reopen articulates no argument purporting to explain how this requirement allegedly is satisfied here. Again, this is reason enough to reject the Motion to Reopen.60 The Motion to Reopen is accompanied by an affidavit from Faskens counsel (Kanner Affidavit). The affidavit purports to supply the factual and/or technical bases for the motion, as required by 10 C.F.R. § 2.326(b). However, the Motion to Reopen does not otherwise summarize, advance, or even cite to any particular statements in that affidavit. Neither the 54 Order of the Secretary at 1.

55 Motion to Reopen at 4.

56 Order of the Secretary at 1 (only extending the deadline for petitions to intervene, hearing requests, and motions to admit contentions challenging the DEIS, and noting that it does not affect requirements related to motions to reopen under 10 C.F.R. § 2.326.).

57 See Motion for Extension at 5.

58 10 C.F.R. § 2.326(a)(2).

59 Motion to Reopen at 3.

60 Oyster Creek, CLI-08-28, 68 NRC at 674-75.

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parties nor the presiding officer are under any obligation to scour affidavits or pleading attachments to identify support not otherwise advanced by the proponent in the pleading itself; that is the job of the proponent.61 The Commission cannot be faulted for not having searched for a needle that may be in a haystack.62 Moreover, the probative nature of an affidavit of counselwhich does little more than attest to the fact that counsel has read certain documents and (not surprisingly) agrees with his or her clients viewsis dubious, at best.63 Nevertheless, assuming arguendo the Kanner Affidavit was probative, and the presiding officer and the parties were required to somehow match its various statements to arguments in the Motion to Reopen, this document also fails to identify a significant environmental issue.

To make the required demonstration, a movant must show that it has identified new and materially different information that will paint a seriously different picture of the environmental landscape.64 This is the same standard used by the NRC to determine whether an EIS supplement is required.65 As explained below, the Kanner Affidavit presents two general arguments in this regardneither of which satisfies the applicable standard.

First, the Kanner Affidavit argues that, [b]y its very nature, information in the ISP DEIS implicates significant environmental, socioeconomic, transportation and safety related issues.66 61 See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC 393, 404 n.67 (2012) (The Commission should not be expected to sift unaided through earlier briefs or other documents to piece together and discern a partys argument and the grounds for its claims.) (quoting Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC 529, 534 (2009)).

62 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-89-3, 29 NRC 234, 240-41 (1989) (citations omitted).

63 10 C.F.R. § 2.326(b) requires that motions to reopen be accompanied by affidavits that present the factual and/or technical bases for the motion. The Kanner Affidavit fails to lay an appropriate foundation establishing that counsel has personal knowledge of any relevant facts, or is qualified to testify as an expert regarding relevant technical matters.

64 PFS, CLI-06-3, 63 NRC at 28 (internal citation omitted).

65 Id.

66 Kanner Affidavit ¶ 4 (emphasis added).

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In other words, Mr. Kanner asserts that one need only point to the DEIS, or some de minimis change to factual information therein, to identify a significant environmental issue. However, Mr. Kanner cites no support for this sweeping claim. More importantly, it is legally incorrect and contrary to settled law.67 Second, the Kanner Affidavit points to the arguments advanced in Faskens corollary Motion for Leave (and a declaration attached thereto from his clients in-house petroleum engineer, Tommy Taylor) as alleged support for his assertion that the DEIS is flawed. But, as explained in Section IV.B., infra, the Motion for Leave fails to identify any information that is both new and materially different from previously-available information. Thus, Fasken also has not satisfied the more stringent requirement applicable to its Motion to Reopen, requiring not only identification of new and materially different information, but requiring a further demonstration that such information is capable of painting a seriously different picture of the environmental landscape. Because neither the Motion to Reopen nor the Kanner Affidavit identify a significant environmental issue, the Motion to Reopen must be rejected pursuant to 10 C.F.R. § 2.326(a)(2).

D. The Motion to Reopen Fails to AllegeMuch Less, DemonstrateThat the Board Would Have Reached a Materially Different Result Finally, any motion to reopen must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.68 Faskens Motion to Reopen again properly identifies this requirement.69 However, neither the Motion to Reopennor the Kanner Affidavitadvance a single argument aimed at making this 67 PFS, CLI-06-3, 63 NRC at 29 (finding that claimed additional environmental impacts were not so significant or central to the FEISs discussion of environmental impacts that an FEIS supplement (and the consequent reopening of our adjudicatory record) is reasonable or necessary).

68 10 C.F.R. § 2.326(a)(3).

69 Motion to Reopen at 3.

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mandatory demonstration. Fasken utterly fails to engage with the Boards decision in LBP-19-7.70 In fact, Fasken does not even profess that a different result would be possible, much less does it demonstrate that a materially different result would be likely. Faskens silence as to this required element requires that its Motion to Reopen be rejected.71 IV. THE COMMISSION SHOULD DENY THE MOTION FOR LEAVE BECAUSE FASKEN HAS NOT SATISFIED THE COMMISSIONS STRICT STANDARDS FOR LATE-FILED CONTENTIONS A. Legal Standards for Motions for Leave to File New, Late-filed Contentions Commission procedure allows participants to file new or amended contentions based on draft environmental impact statements after the filing deadline if the contention complies with the requirements in [2.309(c)].72 Section 2.309(c)(1) states that good cause for granting a motion for leave to file a late-filed contention exists only if the petitioner can show: (1) the information upon which the amended or new contention is based was not previously available; (2) the information upon which the filing is based is materially different from information previously available; and (3) the filing has been submitted in a timely fashion based on the availability of the subsequent information.73 As particularly relevant here, the NRCs rules of practice require contentions to be raised at the earliest possible opportunity.74 Thus, 70 See generally supra Part II (discussing the Boards rulings in LBP-19-7 regarding contention admissibility).

71 Furthermore, given that Fasken has not identified any information that is both new and materially different, see infra Part IV.B., Fasken could not have made the required demonstration even if it had bothered to advance an argument as to 10 C.F.R. § 2.326(a)(3). Indeed, many of Faskens substantive claims already have been rejected by the Board or the Commission or both. See, e.g., infra Part IV.D.2. Thus, a different result is far from likely.

72 10 C.F.R. § 2.309(f)(2).

73 10 C.F.R. § 2.309(c)(1)(i)-(iii).

74 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-1, 81 NRC 1, 7 (2015). See also La. Energy Servs, LP (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 224-25 (2004), recons. denied, CLI-04-35, 60 NRC 619 (2004) (stating there would be no end to NRC licensing proceedings if petitioners could belatedly raise challenges that simply did not occur to [them] at the outset.).

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information in a DEIS that does not materially differ from that presented in an ER does not satisfy this standard; and late-filed contentions purporting to challenge such information are impermissibly late.75 Additionally, pursuant to 10 C.F.R. § 2.309(c)(4), a motion for leave also must proffer an admissible contention that satisfies all of the criteria in 10 C.F.R. § 2.309(f).

The movant always has the burden of demonstrating satisfaction of these requirements.76 B. The Motion for Leave Fails to Identify Any New and Materially Different Information Pursuant to 10 C.F.R. § 2.309(c)(1)(i)-(ii), to grant the Motion for Leave, the presiding officer must find that Fasken has affirmatively demonstrated that its arguments are based on information that is both new and materially different. Fasken asserts that its Motion for Leave satisfies this standard because the NRC for the first time relies on and cites to data in the DOE Yucca 2008 transportation analysis and discloses recently developed conclusions for the very first time in the ISP DEIS that significantly vary in material respects from information contained in ISPs license application documents.77 Fasken is correct that ISPs ER does not directly cite DOEs 2008 Final Supplemental Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada (DOE/EIS-0250F-S1) (2008 Yucca FEIS Supplement) in its analysis of transportation impacts. Rather, ISPs analysis relied on (among other sources of information) the NRCs more recent study of transportation impacts in NUREG-2125.78 However, Fasken fails to identify any specific information in the 2008 Yucca FEIS Supplement, or the Staffs DEIS, that is both new and 75 Fermi, CLI-15-1, 81 NRC at 7.

76 Oyster Creek, CLI-09-7, 69 NRC at 260-61.

77 Motion for Leave at 6.

78 ER at 4-13 (citing NUREG-2125, Spent Fuel Transportation Risk Assessment (2014) (ML14031A323)).

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materially different from the information presented in ISPs ER. Accordingly, the Motion for Leave must be denied.

1. Faskens Arguments Regarding the 2008 Yucca FEIS Supplement and the Use of Representative Routes in the DEIS Transportation Analysis Fail to Identify Any New and Materially Different Information Faskens primary and overarching argument throughout the Motion for Leave is that the use of representative routes in the DEIS transportation impacts analysis simply will not do.79 Fasken asserts that the DEIS improperly omits an analysis of specific transportation routes that will be used to transfer waste to the ISP CISF. More specifically, Fasken claims that the use of representative routes in the DEIS transportation analysis is deficient because it omits consideration of location-specific infrastructure impacts and seismic/geologic characteristics.

As detailed below, however, ISPs ER also used representative routes in its transportation analysis. In other words, the reliance on representative transportation routes is not new. Faskens opportunity to challenge this approach was at the outset of the proceeding.

Indeed, other petitioners did raise challenges on this pointand the Board rejected those challenges as inadmissible. Moreover, the Commission recently affirmed the rejection of similar contentions in the Holtec proceeding.80 At bottom, Faskens challenge here is untimely by nearly two years and contrary to recent, directly-relevant precedent. Thus, its Motion for Leave must be denied.

a. The Representative Route Approach The representative routes method of analysis clearly was not presented for the first time in the Staffs DEIS. For example, Section 4.2.6 of the ER notes that the transportation 79 Motion for Leave at 14.

80 Holtec Intl (HI-STORE Consol. Interim Storage Facility), CLI-20-4, 91 NRC __, __ (Apr. 23, 2020) (slip op.

at 52-53) (affirming the Holtec Boards rejection of a similar contention and affirming the use of representative routes in CISF transportation analyses).

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analysis used three sample rail routes to estimate bounding doses for normal (incident-free) transportation and potential accidents for both proposed rail shipments to the CISF, and for those from the CISF to a proposed repository. Likewise, in Section 4.2.7, the ER explains that Radiological impacts associated with transporting SNF from 12 decommissioned reactor sites to the CISF were analyzed. The ER also provides a table of these routes and their corresponding transportation modes and notes that [t]he routes represented in [the table] are a representative sample of routes that could be used and are not intended to include all routes that could be used for shipments to the CISF.81 And as noted above, the ER used information from the NRCs analysis of representative routes in NUREG-2125. Simply put, NUREG-2125, ISPs ER, the 2008 Yucca FEIS Supplement, and the DEIS all used a representative route methodology to evaluate transportation impacts. If Fasken desired to challenge the use of a representative sample of routes rather than all routes that could be used for shipments to the CISF, its opportunity to do so has long since expired.

This is further illustrated by the fact that other petitioners challenged the use of representative routes at the outset of the proceeding. For example, Joint Petitioners argued that the ER was deficient because it failed to divulge and analyze all specific transportation routes that may be used to transport casks to the ISP CISF.82 Notwithstanding the fact that it would have been similarly inadmissible,83 Fasken clearly could have raised a similar challenge at that time. Fasken cannot now conjure new information subject to challenge long after the adjudicatory proceeding has been terminated.

81 ER, tbl. 4.2-3 (emphasis added).

82 Joint Petitioners Petition at 41-49 (Proposed Contention 1).

83 See ISP, LBP-19-7, 90 NRC at __ (slip op. at 68-69) (rejecting Joint Petitioners Proposed Contention 1 as inadmissible); Holtec, CLI-20-4, 91 NRC at __ (slip op. at 52-53) (affirming the Holtec Boards rejection of a similar contention and affirming the use of representative routes in CISF transportation analyses).

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b. Specific Alleged Deficiencies Regarding the Use of Representative Routes Faskens specific criticisms of the ERs and DEISs representative route approach also do not identify any information that is both new and materially different. For example, Fasken asserts that the hypothetical representative routes analyzed in the DEIS fail to consider transportation infrastructure use in the area of the CISF by oil, gas, agricultural and ranching industries.84 Fasken claims that this omission is newly disclosed information.85 However, the DEIS and ER are aligned in that they both analyze transportation impacts using representative routes, but do not include the industry-specific impacts analysis Fasken demands.86 In other words, Faskens argument fails to identify anything new in the DEIS analysis. Thus, if Fasken wished to challenge this approach, it could have done sobut did notat the outset of this proceeding.

Likewise, Fasken claims that the DEISs use of representative routes and transportation analyses from other projects fails to consider more local geologic characteristics, such as seismicity, subsidence and sinkholes near the proposed CISF site.87 As noted above, the ER transportation analysis also used representative routes and analyses from other projects (i.e.,

did not include a separate, location-specific analysis of the alleged adverse impacts of seismicity, subsidence, and sinkholes on local transportation infrastructure near the CISF). This is not a new approach in the DEIS, and Fasken could have challenged it earlier.

84 Motion for Leave at 21.

85 Id.

86 Compare ER § 4.2 (transportation impacts analysis) with DEIS § 4.3 (same).

87 Motion for Leave at 20-21.

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Notably, Fasken does not even purport to identify any allegedly new information in the DEIS (or any other source) regarding subsidence or sinkholes that was not discussed in the ER.88 As to seismicity, the Motion for Leave mentions a magnitude 5.0 earthquake within the 50-mile radius of the proposed CISF in March 2020.89 Although one could argue that this specific seismic event from March 2020 is new, the information did not originate from the DEIS.90 Thus, any challenge based on this information is untimely.91 More importantly, the ER contains an analysis of regional seismicity, including explicit discussion of magnitude 5.0 earthquakes in the region of the CISF.92 Fasken offers no explanationand certainly does not demonstrate how recent seismic occurrences (much less, anything in the DEIS) somehow present information materially different from the analyses that have long been available in the ER.

c. DSEIS vs. ER Analysis of Representative Routes Fasken argues that its Motion for Leave satisfies the standard for late-filed contentions because the NRC for the first time relies on and cites to data in the [2008 Yucca FEIS Supplement].93 More specifically, Fasken claims that the NRCs use of the 2008 Yucca FEIS Supplement in evaluating representative or bounding routes applicable to a national SNF 88 E.g., ER § 3.3.5, Salt Dissolution and Sink Holes. A separate section of the Motion for Leave suggests subsidence could lead to possible derailment. Motion for Leave at 22. Again, Fasken fails to explain why it could not have raised a derailment challenge earlier, as other petitioners did. E.g., Sierra Club Petition at 31-43 (Proposed Contention 4). See also ISP, LBP-19-7, 90 NRC at __ (slip op. at 34-38) (rejecting Sierra Club Contention 4 as inadmissible for failing to challenge ISPs transportation accident analysis in ER § 4.2.8, which evaluates accident impacts regardless of the initiating event).

89 Motion for Leave at 20-21.

90 See id. at 21 n.63 (citing a newspaper articlenot the DEISas the source of the information). The DEIS does not reference this specific seismic event. See generally DEIS.

91 See Motion for Leave at 5 n.16 (Fasken acknowledging and citing case law noting that late-filed contentions are only timely if filed within 30, and sometimes even 60, days). The Motion for Leave was filed 103 days after the cited newspaper article was published. Compare id. at 21 n.63 (article published Mar. 26, 2020) with Attachment 1 (Motion for Leave filed July 7, 2020). Furthermore, the Secretarys extension of time for late-filed contentions only applied to challenges based on new information in the DEIS (not newspaper articles).

See Order of the Secretary at 1.

92 See, e.g., ER at 3-13 to 3-14 (discussing the magnitude 5.0 Rattlesnake Canyon earthquake).

93 Motion for Leave at 6.

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shipping campaign and the use of barges for sites not accessible by rail constitute material departures from previously-available information.94 Fasken is correct that ISPs ER does not directly cite the 2008 Yucca FEIS Supplement. However, Fasken fails to identify even a single difference between the ER analysis of representative routes versus the one in the DEIS on either point.

First, the DEIS analysis relied on routes such as those in Section 2.1.7.2 of the 2008 Yucca FEIS Supplement and those in the NRCs own transportation risk assessment in NUREG-2125,95 whereas the ER analysis relied primarily on NUREG-2125.96 To the extent there may be differences between the bounding routes considered in the two analyses, Fasken has not identified any. In other words, Fasken does not even attempt to identify (much less, actually identify with the requisite specificity) any information that may be new. More importantly, Fasken offers no explanation as to how any such unspecified differences somehow might present materially different information. To be clear, the burden is on Fasken to make these required demonstrations. It is not the job of the presiding officer or the other parties to dig through other documents to identify information that may support a movants request.97 Second, Fasken cites the NRCs reference (in the DEIS) to DOEs conclusion (in the 2008 Yucca FEIS Supplement) that barge and heavy haul transportation does not significantly change the minor radiological impacts from a national mostly rail SNF transportation campaign.98 Fasken suggests that this is new and material information, but offers no support for 94 Id. at 17-18.

95 DEIS at 3-9.

96 ER at 4-13.

97 Seabrook, CLI-89-3, 29 NRC at 240-41; Davis-Besse, CLI-12-8, 75 NRC at 404 n.67. Furthermore, Fasken may not attempt to cure this dispositive defect by presenting a fresh analysis and argument for the first time in its Reply pleading. See Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 6 & 7), CLI-17-12, 86 NRC 215, 225 (2017) (a petitioner cannot remedy a lack of support for its claims in its reply).

98 Motion for Leave at 18 (citing DEIS at 4-10).

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its conclusion. Had Fasken reviewed the corresponding discussion in the ER, it would have seen that ISPs analysis offers a nearly identical conclusion. More specifically, the ER states that its analysis showed that barge and heavy haul shipments were not major contributors to overall collective dose.99 In other words, the analyses of barge and heavy haul truck transportation in the ER and DEIS reach the same conclusion, and there clearly is nothing new presented in the DEIS in this regard.

In sum, Fasken has not identified any information in the DEIS that is both new and materially different, and its various challenges clearly could have been raised at the outset of the proceeding. Accordingly, the Motion for Leave should be denied.

2. Faskens Arguments Regarding the Costs of Emergency Response and Infrastructure Improvements Fail to Identify Any New and Materially Different Information in the DEIS Fasken argues that the DEIS presents new and significant information because it omits a proper analysis of the responsibility and costs for coordinating transportation, payments for needed infrastructure improvements and providing necessary emergency training for first responders in the case of an accident along the unknown transportation routes.100 However, the ER also did not present such analyses. Fasken offers no explanation (nor could it) as to why it was unable to raise this argument of omission at the outset of the proceeding based on the ER.

Accordingly, the Motion for Leave should be denied.

First, Fasken points to a statement in the ER acknowledging that the Federal government would be responsible for providing emergency training to state, local, and tribal first responders along SNF transportation routes if DOE is the shipper.101 It then points to a statement in the 99 ER at 4-11.

100 Motion for Leave at 15.

101 Id. (citing ER at 4-8).

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DEIS noting that, if DOE is not the shipper, these entities may incur costs for emergency-response training and equipment.102 To the extent Fasken is claiming that a similar statement should have been included in the ER, it clearly could have challenged this omission at the outset of the proceeding. In other words, the absence of a similar statement in the ER is not new.

Fasken then criticizes the DEIS for not quantifying these costs and purports to dispute this omission, which it characterizes as a significant change.103 Notably, Fasken offers no explanation whatsoever for this unsupported and conclusory characterization. To the extent Fasken is criticizing the DEIS for not including a detailed cost analysis, it could have raised this claim at the outset of the proceeding because the ER also did not contain such an analysis.104 In sum, the absence of a detailed quantification of emergency response training and equipment costs in the private-ownership scenario is not new, and Faskens challenge here is untimely.

Second, Fasken claims that, there are significant and material differences in conclusions

[between the ER and the DEIS] as to which entities would be responsible for payments to upgrade and improve rail and other infrastructure.105 Fasken then quotes portions of the ER and the DEIS that generally consider transportation infrastructure upgrades.106 However, none of these quotes even mention which entities would be responsible for the costs of such upgrades.

Thus, Faskens claimthat there are significant and material differences between the two documents on this pointis entirely baseless. Additionally, Fasken seeks to challenge the DEIS for failing to quantify potential infrastructure improvement costs.107 But, yet again, the ER also 102 Id. at 15-16 (citing DEIS at 4-74 and 4-75).

103 Id.

104 In fact, this omission is explicitly noted in the DEIS. See DEIS at 4-74 (ISP did not provide a detailed estimate of the additional training and equipment that would be necessary to respond to an incident at the proposed CISF project that are not currently available to first responders.).

105 Motion for Leave at 16.

106 Id. (quoting ER at 3-8; DEIS at 4-10).

107 Id. at 17 (These costs . . . must be accounted for.).

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did not present such a quantification; and Fasken could have raised this challenge at the outset of the proceeding.108 It did not. Ultimately, its untimely challenge here fails to identify any new information capable of sustaining the Motion for Leave.

3. Faskens Other Miscellaneous Arguments Raise Untimely Challenges That Could Have Been Raised at the Outset of the Proceeding The Motion for Leave contains several additional fragmented assertions that appear to contest information that was plainly available in ISPs ER and could have been raised at the outset of the proceeding. They certainly do not identify any new information that would justify granting the Motion for Leave.

First, Fasken claims that, [c]ontrary to statements in ISPs application documents, it is unlikely that a permanent repository will be built by 2048.109 Fasken, itself, acknowledges that this information was available in the application documents. Indeed, Fasken even provides a citation to this information in ISPs ER.110 Clearly it is not new.111 Second, Fasken complains about the omission of certain analyses in the DEIS. More specifically, Fasken asserts that the DEIS improperly omits consideration of the following:

a DOE integrated waste management system alternative (i.e., a government-owned CISF);112 how or if the Price-Anderson Act would cover liability for accidents in transit if the DOE does not take title and ownership of the nuclear waste;113 and 108 Compare ER at 4-9 with DEIS at 4-10.

109 Motion for Leave at 19.

110 Id. n.61 (citing ER, Attachments 1-1 and 1-2). See also ER at 1-5 (the earliest estimated time by which a permanent geologic repository could be licensed and operational is 2048.) (emphasis added).

111 Faskens related arguments regarding repackaging and a de facto storage solution are also untimely. Id. at 19, 23. In fact, other petitioners raised these exact arguments at the outset. See ISP, LBP-19-7, 90 NRC at __

(slip op. at 38-40, 56-59, 72-74, 84-87, 94-97) (rejecting contentions on repackaging and a de facto repository scenario).

112 Motion for Leave at 18 (citing DEIS at 2-22, and quoting from Section 2.3.1, Storage at a Government-Owned CISF the U.S. Department of Energy Operates).

113 Id. at 19.

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terrorist attacks and sabotage.114 However, none of these topics were addressed in the ER, either. Fasken could have, but did not, challenge these omissions at the outset of the proceeding. In fact, other petitioners did challenge the omission of an analysis of sabotage and terrorist attacks in the ER.115 Faskens challenges here are simply untimely.

Finally, Fasken complains that the DEIS improperly relies on reference radiation dosing which fails to consider elevated risks for children, elderly and expectant mothers.116 It is not entirely clear what Fasken purports to challenge, as the term reference radiation dosing does not appear in the DEIS. Nevertheless, Fasken identifies no delta between the ER and the DEIS on the topic of radiation protection standards (which, in any event, are governed by the NRCs codified safety regulations in 10 CFR Parts 20 and 72).

At bottom, Faskens desire to raise these various untimely challenges nowlong after the proceeding has been terminatedprovides insufficient grounds to grant the Motion for Leave.

C. The Motion for Leave Is Untimely Pursuant to 10 C.F.R. § 2.309(c)(1)(iii), a movant is required to demonstrate that its motion for leave to file new or amended contentions was submitted in a timely fashion based on the availability of new and materially different information. On May 22, 2020, the NRC Secretary issued an Order establishing a deadline of July 6, 2020, as the deadline for filing motions for leave to file new contentions based on new and materially different information in the DEIS. Fasken asserts that its Motion for Leave is timely pursuant to that Order. However, 114 Id. at 13, 21-22.

115 Sierra Club Petition at 31-43.

116 Motion for Leave at 13.

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as detailed above, Fasken has not identified any new and materially different information in the DEIS. Fasken could have raised the arguments presented in its Motion for Leave long ago because the information it seeks to challenge was first presented or omitted in ISPs ER. Simply put, Faskens challengesas presented in the Motion for Leaveare long overdue.

Furthermore, its Motion for Leave must be rejected on the additional ground that it was filed and served on the other parties on July 7, 2020117which is after the July 6, 2020 deadline established in the Secretarys Order. This procedural default alone suffices to justify rejection of [the filing] in its entirety.118 While the document was filed shortly after midnight on July 7, 2020, Fasken provided no explanation or justification for its procedural failureor for its decision to wait until the very last minute to make its filings. The Commissions general policy has been to enforce [filing deadlines] strictly.119 In fact, the Commission historically [has]

excused a failure to meet [filing] deadlines only in extraordinary and unanticipated circumstances.120 Even pro se petitioners are not excused from strict compliance with filing deadlines because they are basic procedural requirements that are simple to understand.121 Thus, the untimeliness of Faskens Motion for Leave, coupled with the fact that it was signed by five attorneys, and the complete absence of any extraordinary and unanticipated circumstances compels its rejection for failure to satisfy 10 C.F.R. § 2.309(c)(1)(iii).

D. The Motion for Leave Fails to Present an Admissible Contention The Motion for Leave also proposes a new Contention 5. Assuming arguendo that Fasken had satisfied the NRCs strict requirements for reopening and had affirmatively 117 See Attachment 1 to this Answer (showing the Motion for Leave was filed on July 7, 2020).

118 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 201 (1998).

119 Id. at 202 (internal citations omitted) (emphasis added).

120 Id. (citing Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-684, 16 NRC 162, 165 n.3 (1982)).

121 Id.

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demonstrated the existence of both new and materially different information and had filed its Motion for Leave in a timely mannernone of which Fasken has donethe Motion for Leave must be rejected for the additional reason that Contention 5 does not satisfy the admissibility criteria in 10 C.F.R. § 2.309(f)(1).122 Faskens statement of the contention argues that:

ISPs application fails to adequately, accurately, completely and consistently consider the cumulative impacts of transporting high-level radioactive waste and spent nuclear fuel to and the socioeconomic benefits of the proposed CISF project, which precludes a proper analysis under NEPA, and further nullifies ISPs ability to satisfy NRCs siting evaluation factors now and anticipated in the future and is in further violation of NRC regulations.123 The precise argument Fasken is attempting to convey in this sprawling assertion is not entirely clear. For example, Fasken alleges a violation of unspecified NRC regulations.

However, to the extent Fasken is seeking some enforcement action, such allegations are appropriately raised in the NRCs 10 C.F.R. § 2.206 process, not license application proceedings such as this one. Additionally, the contention purportedly was filed as a challenge to the DEIS an environmental documentwhereas this statement of the contention includes a claim regarding the siting evaluation factors in the NRCs safety regulations in Part 70.124 Fasken appears to erroneously conflate the two separate parts of the NRCs review. Moreover, Fasken repeatedly purports to challenge the cumulative impacts of transporting waste to the CISF site.

However, the DEIS evaluates those impacts as a connected action, not in the cumulative transportation impacts analysis (which considers transportation impacts from other unrelated 122 10 C.F.R. § 2.309(c)(4).

123 Motion for Leave at 11.

124 Id. at 24 & n.70 (referring to siting evaluation factors and citing the NRCs ISFSI safety requirements in 10 C.F.R. Part 70, Subpart E, Siting Evaluation Factors).

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actions). On balance, Fasken appears to fundamentally misunderstand the basic contours of the DEIS.

Nevertheless, as best ISP can understand the contention, Fasken is attempting to challenge the sufficiency of the transportation impacts analysis in DEIS Section 4.3.1, and claims this insufficiency renders inadequate the analysis of ISPs Site-Selection Process in DEIS Section 2.3.3. Faskens assorted claims, however, are variously immaterial, out-of-scope, unsupported, and fail to demonstrate a genuine disputeand many already have been rejected by the Board in this proceeding. Accordingly, Contention 5 is inadmissible.

1. Contention Admissibility Criteria 10 C.F.R. § 2.309(f)(1) establishes the basic criteria that all contentions must meet in order to be admissible.125 That section requires that each contention:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue . . . ; and (vi) Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.126 125 Entergy Nuclear Vt. Yankee, LLC (Vt .Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 572 (2006)

(internal citations omitted). See also USEC Inc. (Am. Centrifuge Plant), CLI-06-9, 63 NRC 433, 437 (2006)

(stating that the Commission will reject any contention that does not satisfy the requirements) (internal citation omitted).

126 10 C.F.R. § 2.309(f)(1)(i)-(vi).

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The Commission strictly applies these contention admissibility requirements in NRC adjudications.127 The hearing process is reserved for genuine, material controversies between knowledgeable litigants.128 These requirements are thus intended to focus litigation on concrete issues and result in a clearer and more focused record for decision.129 Failure to comply with any one of these criteria is grounds for the dismissal of a contention.130 Further, a petitioner must do more than assert generally that there are deficiencies in the application or environmental impact statement. A petitioner must identify all pertinent portions of the document it is challenging and state both the challenged position and the petitioners opposing view.131 To demonstrate a genuine, material dispute, the petitioner must address the specific analysis in the document and explain how it is incorrect.132 To show that a dispute is material, a petitioner must show that its resolution would make a difference in the outcome of the proceeding.133 As particularly relevant here, a petitioner must do more than provide an exhibit or attachment with a list of allegedly-challenged statements which they then do not cite or discuss in their pleading: providing any material or document as the basis of a contention, 127 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118 (2006)

(citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), recons. denied, CLI-02-1, 55 NRC 1 (2002)).

128 Davis-Besse, CLI-12-8, 75 NRC at 396 (quoting Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 219 (2003)).

129 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,202 (Jan. 14, 2004).

130 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999)

(internal citations omitted). See also Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016).

131 Millstone, CLI-01-24, 54 NRC at 358.

132 10 C.F.R. § 2.309(f)(1)(vi).

133 See Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 333-34 (1999)

(internal citation omitted).

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without setting forth an explanation of its significance, is inadequate to support the admission of the contention.134

2. The Primary Arguments Fasken Seeks to Raise in Contention 5 Already Have Been Found Inadmissible by the Board or the Commission or Both Faskens overarching argument is that the use of representative routes in the DEIS transportation impacts is invalid.135 Fasken asserts that an analysis of specific transportation routes is necessary to account for location-specific infrastructure uses and seismic/geologic characteristics,136 and that the exact number of shipments must be specified.137 However, other petitioners already unsuccessfully raised this challenge earlier in the proceeding. More specifically, Joint Petitioners challenged ISPs transportation impacts analysis because it failed to divulge and analyze the specific transportation routes (rather than a representative sampling of routes) that may be used to transport casks to the ISP CISF.138 The Board squarely rejected that argument as inadmissible.139 Moreover, Joint Petitioners raised the same argument in the Holtec proceeding, and the Board rejected it there as well.140 On appeal, the Commission affirmed the Holtec Boards ruling.141 The Motion for Leave fails to distinguish this controlling precedent.

134 Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-12-12, 75 NRC 742, 774 (2012) (quoting Dominion Nuclear North Anna, LLC (Early Site Permit for North Anna ESP Cite), LBP-04-18, 60 NRC 253, 265 (2005) (citing Fansteel, Inc. (Muskogee, Okla. Site), CLI-03-13, 58 NRC 195, 205 (2003)).

135 Motion for Leave at 14.

136 Id. at 19-21. Even if considered separately from Faskens challenge to the use of representative routes, these arguments fail to acknowledge or engage with the relevant discussions in the ER and DEIS, much less offer some reasoned explanation as to how they allegedly are insufficient. See supra Part IV.B.1.

137 Motion for Leave at 25 (emphasis added).

138 Joint Petitioners Petition at 43 (Proposed Contention 1) (there must be complete disclosure of all probable transportation routes.).

139 See ISP, LBP-19-7, 90 NRC at __ (slip op. at 68-69) (rejecting Joint Petitioners Proposed Contention 1 as inadmissible).

140 See Holtec Intl (HI-STORE Consol. Interim Storage Facility), LBP-19-4, 89 NRC __, __ (May 7, 2019) (slip op. at 115-16).

141 Holtec, CLI-20-4, 91 NRC at __ (slip op. at 52-53) (the Board correctly found that determining exact transportation routes is an issue outside the scope of this licensing proceeding, and the use of representative routes in an environmental-impacts analysis to address the uncertainty of actual, future spent fuel transportation routes is a well-established regulatory approach.).

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In fact, Fasken improperly failed to disclose this unfavorable precedent in its pleading.142 Notwithstanding, as a matter of law, Faskens challenge to the use of representative routes is inadmissible for the same reasons previously articulated by the Boards and the Commission.

Likewise, Faskens argument that the DEIS transportation impacts analysis must consider the possibility of terrorist attacks and sabotage contradicts longstanding Commission precedent (which Fasken, again, neither distinguished nor disclosed). Indeed, multiple arguments were advanced by other petitioners in this proceeding on this very issue. As the Board explained in rejecting those contentions, the Commission takes the position (as upheld by the United States Court of Appeals for the Third Circuit) that for all licensing actions outside the Ninth Circuit, NEPA does not require the NRC to consider the environmental consequences of hypothetical terrorist attacks.143 Corresponding arguments were raised and rejected in the Holtec proceeding, and the Commission affirmed those rejections, noting [t]he Board correctly applied our prior rulings.144 Here, Faskens challenge must be rejected as a matter of settled law for the same reasons.

Additionally, Fasken argues that the transportation impacts analysis must account for the possibility of repackaging [SNF], and the possibility that the CISF may become a permanent de facto storage solution because it is unlikely that a permanent repository will be built by 2048.145 Yet again, Fasken failed to disclose the fact that these arguments were raised by various petitioners earlier in this proceeding and the Holtec proceeding; that such arguments 142 See Pub. Serv. Co. of Okla. (Black Fox Station, Units 1 & 2), ALAB-505, 8 NRC 527, 532 (1978) (explaining that counsel appearing before NRC tribunals have a manifest and iron-clad obligation of candor that requires disclosing unfavorable law and facts).

143 ISP, LBP-19-7, 90 NRC at __ (slip op. at 93). See also id. at 37, 49 (explaining the same).

144 Holtec, CLI-20-4, 91 NRC at __ (slip op. at 54).

145 Motion for Leave at 19, 23. See also id. at 25 (purporting to challenge the omission of expected numbers of start clean/stay clean shipments (return to sender)).

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were found inadmissible by the respective Boards (largely because they present impermissible collateral attacks on the NRCs Continued Storage Rule); or that the Commission fully affirmed the Holtec Boards conclusions in this regard.146 Moreover, Fasken did not attempt to distinguish these prior rulings. These challenges are therefore inadmissible and must be rejected on the same grounds noted by the Boards and the Commission.

3. Faskens Other Untimely Challenges Are Variously Immaterial, Unsupported, Out-of-Scope, and Fail to Demonstrate a Genuine Dispute As noted above, the Motion for Leave contains numerous miscellaneous claims and passing assertions of DEIS inadequaciesoften without any corresponding explanation.

However, the NRC has long held that merely stat[ing] a conclusion (e.g., the application is deficient, inadequate, or wrong) without providing a reasoned basis or explanation is insufficient for an admissible contention.147 Not surprisingly, Faskens various conclusory statements regarding the DEIS fall far short of satisfying the admissibility criteria in 10 C.F.R. § 2.309(f)(1).

a. Government-owned CISF Alternative For example, Fasken concludes that the DEIS is deficient because the alternatives analysis omits a detailed consideration of a DOE integrated waste management system alternative (i.e., a government-owned CISF).148 However, Fasken offers no explanation as to how this omission purportedly could be material to the environmental analysis. As the NRC noted, the government-owned CISF alternative was eliminated from detailed consideration due to the speculative nature of such a facility and the complete absence of any siting, 146 See, e.g., ISP, LBP-19-7, 90 NRC at __ (slip op. at 38-40, 56-59, 69-70, 72-74, 84-87, 94-97); Holtec, CLI 4, 91 NRC at __ (slip op. at 17-20).

147 USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006).

148 Motion for Leave at 18 (citing DEIS at 2-22, and quoting from Section 2.3.1, Storage at a Government-Owned CISF the U.S. Department of Energy Operates).

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transportation, and facility design details that would be needed for a comparison of environmental impacts.149 Fasken neither confronts the NRCs reasoning nor offers any explanation as to how the speculative analysis it demands somehow could provide any meaningful information for the environmental review. Ultimately, the NRCs conclusion is fully consistent with NEPAs rule of reasonand Fasken does not even attempt to demonstrate otherwise. Thus, its unsupported and conclusory argument fails to satisfy 10 C.F.R. § 2.309(f)(1)(iv)-(vi).

b. Price-Anderson Act As another example, Fasken concludes that the DEIS is deficient because it omits a discussion of how or if the Price-Anderson Act would cover liability for accidents in transit if the DOE does not take title and ownership of the nuclear waste.150 However, Fasken fails to acknowledge (much less, engage with) the discussion in the DEIS on this topic. As the NRC noted, [t]he Price-Anderson Act provides accident liability for incidents (including those caused by sabotage) involving the release of nuclear material for SNF transportation.151 Notably, this statement is not limited to the DOE-ownership scenarioand Fasken offers no support for any suggestion to the contrary. To the extent Fasken asserts that the statement needs to be modified to explicitly state that it applies to both ownership scenarios, it offers no support and fails to explain why this is a material omission or how it presents a genuine dispute. Accordingly, this argument fails to satisfy 10 C.F.R. § 2.309(f)(1)(iv)-(vi).

149 DEIS at 2-22.

150 Motion for Leave at 19.

151 DEIS at 8-6.

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c. Barge and Heavy-Haul Truck Transportation Fasken also takes aim at the discussion of barge and heavy-haul truck transportation in the DEIS transportation impacts analysis.152 More specifically, Fasken contends that the NRC merely glossed over and did not fully evaluate the environmental impacts from transportation of SNF via barges or via heavy-haul trucks in the ISP DEIS.153 The DEIS relies on an external analysis regarding such impacts.154 That analysis concluded that such impacts were effectively bounded by the analysis of rail transportation impacts.155 The Motion for Leave fails to engage with the external analysisand it certainly does not identify, with specificity, any deficiencies therein. Furthermore, Fasken does not explain why it believes something beyond a bounding analysis is required (i.e., why the omission thereof somehow is material). Nor could it.

Accordingly, this claim fails to satisfy 10 C.F.R. § 2.309(f)(1)(iv)-(vi).

d. Infrastructure and Emergency Response Costs Next, Fasken argues that the DEIS transportation impacts analysis is deficient because it fails to quantify the precise costs of transportation infrastructure improvements and emergency response training and equipment along transportation routes.156 It also claims that the DEIS is required to disclose which entities would be responsible for the costs of infrastructure upgrades.157 But Fasken offers no basis for its conclusory assertion that this information is required to be presented in the analysis. In other words, it offers no support for its claim, and has 152 Motion for Leave at 18.

153 Id.

154 DEIS at 4-10.

155 Id. This conclusion is also supported by, and fully consistent with, ISPs separate analysis as presented in the ER (which Fasken did not challenge at the outset). See supra Part IV.B.1.c.

156 Id. at 15-16.

157 Id. at 16.

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not satisfied its burden to demonstrate the materiality thereof, contrary to 10 C.F.R. § 2.309(f)(1)(iv) and (v).

Furthermore, Fasken fails to engage with relevant content in the DEIS on these topics, and therefore fails to demonstrate a genuine dispute, contrary to 10 C.F.R. § 2.309(f)(1)(vi). For example, the DEIS notes that significant costs are unlikely because many government entities already have radiological emergency response capabilities in place due to existing radioactive materials commerce, and even if there were some costs, financial assistance necessary for training and equipment is available from Federal programs and other sources.158 Given these factswhich Fasken does not acknowledge or disputeit is entirely unclear how the omission of a specific quantification somehow could be material. More importantly, Fasken has not made (or even attempted) such a demonstration.

More broadly, given the uncertain and inexact transportation routes and timing, Faskens demand cannot be reconciled with NEPAs rule of reason. Indeed, Fasken does not even attempt to do so in its pleading. As the Board noted in rejecting an earlier contention demanding a quantification of transportation-related costs, if the petitioner fails to explain how such an analysis could plausibly affect the ultimate decision whether to license the proposed storage facility, and therefore fails to justify why this additional analysis must be performed, consistent with NEPAs rule of reason, then the contention must be rejected.159 So too here.

e. Reference Radiation Dosing Finally, the Motion for Leave includes other unconnected claims that are unexplained and provide an insufficient basis for an admissible contention. For example, Fasken states that the DEIS improperly relies on reference radiation dosing which fails to consider elevated risks for 158 DEIS at 4-74.

159 ISP, LBP-19-7, 90 NRC at __ (slip op. at 37).

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children, elderly and expectant mothers.160 As noted above, it is not entirely clear what Fasken purports to challenge; the term reference radiation dosing does not appear in the DEIS or the ER. Faskens failure to identify any particular portion of the DEIS it seeks to challenge, or to provide any explanation or support whatsoever for its assertion that the DEIS fails to properly account for children, elderly, and expectant mothers, renders its contention inadmissible pursuant to 10 C.F.R. § 2.309(f)(1)(v) and (vi). Indeed, radiation protection standards are governed by the NRCs codified safety regulations in 10 C.F.R. Parts 20 and 72 (and Fasken does not dispute ISPs compliance therewith), thus it is unclear how this unsupported claim could satisfy the materiality requirement in 10 C.F.R. § 2.309(f)(1)(iv). More importantly, Fasken makes no attempt to do so.

f. Fluid Induced Fault Slip As another example, the Motion for Leave states that [t]he ISP DEIS underestimates the potential risk for seismic events declaring the site has less than 10% risk of fluid induced fault slip.161 The quoted content is attributed to an unspecified page in the DEIS.162 However, this quote does not appear in the DEIS. It also does not appear in the ER. ISP has been unable to identify a source for this language. In any event, it is unclear how (or even if) this statement relates to the DEIS, much less how it somehow identifies a deficiency therein. Thus, it certainly cannot form the basis of an admissible contention.

g. Site Selection Process Fasken argues that ISPs site selection process (including its consideration of socioeconomic costs and benefits) is inadequate due to: (1) an inadequate transportation impacts 160 Motion for Leave at 19.

161 Id. at 21 (internal citation omitted).

162 Id. n.64 (purportedly citing ISP DEIS at (citations omitted)).

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analysis, and (2) a defective purpose and need statement in the ER.163 However, as explained below, Faskens claims lack an appropriate basis, as required for an admissible contention.

First, Faskens claim regarding the transportation impacts analysis primarily rests upon its (untimely) objection to the use of representative routes.164 As explained above, this overarching claim is unsupported, out-of-scope, and fails to raise a genuine dispute.165 Moreover, the Commission has affirmed the use of representative routes,166 and Fasken identifies no reason to depart from this controlling precedent. Furthermore, as explained throughout this Answer, Fasken identifies no other deficiencies in the DEIS transportation impacts analysis.167 Thus, the first purported basis for Faskens challenge to the site selection process is unsubstantiated.

Second, as to its claim that the purpose and need statement is deficient, Fasken does not even quote or engage with that statement, much less attempt to identify a specific deficiency therein. Instead, Fasken cites the Boards decision in LBP-19-7 for the proposition that a license applicant cannot artificially narrow the site selection process, and implies (without explanation) that ISP has done so here.168 However, Fasken omits the fact that the Board already has considered ISPs site selection process and concluded that ISP did no such thing.169 In fact, the Board held that ISPs site selection process was fully sufficient to permit a hard look at 163 Id. at 22.

164 See, e.g., id. at 23 (arguing that without definitively analyzing specific transportation routes, the DEIS lacks concrete evidence to reach a conclusion of SMALL impacts).

165 See supra Part IV.D.2.

166 See Holtec, CLI-20-4, 91 NRC at __ (slip op. at 52-53).

167 See supra Parts IV.D.3.a-f & infra Part IV.D.3.h.

168 Motion for Leave at 22 & n.68 (citing ISP, LBP-19-7, 90 NRC at __ (slip op. at 51), in turn, citing Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-90-8, 32 NRC 201, 206 (1991)).

169 ISP, LBP-19-7, 90 NRC at __ (slip op. at 51-52).

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alternative sites, in satisfaction of all NEPA and Part 51 requirements.170 Fasken neither discloses nor attempts to distinguish this prior ruling. Ultimately, this second purported basis for Faskens challenge to the site selection process is unsupported and fails to raise a genuine material dispute.

h. Safety Regulations and Miscellaneous Attacks Finally, the last substantive section of the Motion for Leave presents a meandering discussion in which Fasken accuses the NRC Staff of secrecy, obscurity, and rob[bing] the public of a meaningful opportunity to participate.171 Here, Fasken appears to summarize or recycle (in more inflammatory terms) its earlier unsubstantiated challenges to the DEIS transportation impacts analysis, which are inadmissible for the many reasons articulated above.

However, Fasken also extends those arguments to claim that the DEIS fails to satisfy various NRC safety regulations in 10 C.F.R. Part 72.172 What Fasken does not acknowledge is that the DEIS need not, and does not purport to, satisfy those regulations as part of its environmental review. Rather, the NRC considers safety issues as part of a separate safety reviewnot the environmental review.173 Faskens claims in this regard improperly conflate the two separate reviews. Ultimately, these claims are insufficiently explained, unsupported, immaterial to the DEIS, and obviously fail to demonstrate a genuine dispute therewith, contrary to 10 C.F.R. § 2.309(f)(1)(iv)-(vi).

170 Id. at 52.

171 Motion for Leave at 24-26.

172 Id. at 24 & n.70 (citing 10 C.F.R. §§ 72.90-108).

173 See, e.g., DEIS at 1-7 (The NRC staffs detailed technical review of ISPs license application is composed of both a safety review and an environmental review. These two reviews are conducted in parallel. The focus of the safety review is to assess compliance with the applicable regulatory requirements at 10 CFR Part 72. The environmental review has been conducted in accordance with the NRCs NEPA-implementing regulations at 10 CFR Part 51.).

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Ultimately, the Motion for Leave must be rejected for the additional reason that Contention 5 is inadmissible.174 V. CONCLUSION For the reasons set forth above, the Commission should deny Faskens Motions for failure to meet the strict requirements of 10 C.F.R. §§ 2.326 and 2.309(c).

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Timothy P. Matthews, Esq.

Paul M. Bessette, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5527 Phone: 202-739-5796 Email: timothy.matthews@morganlewis.com Email: paul.bessette@morganlewis.com Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5274 Email: ryan.lighty@morganlewis.com Dated in Washington, D.C. Counsel for Interim Storage Partners LLC this 31st day of July 2020 174 10 C.F.R. §§ 2.309(c)(4), (f)(1).

38

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: )

) Docket No. 72-1050-ISFSI INTERIM STORAGE PARTNERS LLC )

) July 31, 2020 (Consolidated Interim Storage Facility) )

)

CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Interim Storage Partners LLCs Answer Opposing Faskens and PBLROs Second Motion to Reopen the Record and Motion for Leave to File New Contention 5 was filed through the e-Filing system.

Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5274 Email: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC DB1/ 114938483

ATTACHMENT 1 From: Hearingdocket@nrc.gov <Hearingdocket@nrc.gov>

Sent: Tuesday, July 7, 2020 12:01 AM To: Emily.Krause@nrc.gov; Gary.Arnold@nrc.gov; nicholas.trikouros@nrc.gov; Bessette, Paul M.

<paul.bessette@morganlewis.com>; Krupskaya.Castellon@nrc.gov; Sheldon.Clark@nrc.gov; dcurran@harmoncurran.com; ian.curry@nrc.gov; dianed@nirs.org; hearing.docket@nrc.gov; Eskelsen, Grant W. <grant.eskelsen@morganlewis.com>;

stephanie.fishman@nrc.gov; joe.gillespie@nrc.gov; magolds@emory.edu; karendhadden@gmail.com; chris.hebner@sanantonio.gov; Jared.Heck@nrc.gov; Esther.Houseman@nrc.gov; a.kanner@kanner-law.com; Sara.Kirkwood@nrc.gov; Mauri.Lemoncelli-nrc.gov <Mauri.Lemoncelli@nrc.gov>; Lighty, Ryan K.

<ryan.lighty@morganlewis.com>; tjlodge50@yahoo.com; Matthews, Timothy P. <timothy.matthews@morganlewis.com>;

molly.mattison@nrc.gov; taylor.mayhall@nrc.gov; nicholas.moran@nrc.gov; Patrick.Moulding@nrc.gov; Brian.Newell@nrc.gov; ocaamail.resource@nrc.gov; monicap@forl.com; Kevin.Roach@nrc.gov; Carrie.Safford@nrc.gov; Stacy.Schumann@nrc.gov; clara.sola@nrc.gov; herald.speiser@nrc.gov; thomas.steinfeldt@nrc.gov; stefen@nealrgross.com; rebecca.susko@nrc.gov; wtaylorlaw@aol.com; Alana.Wase@nrc.gov

Subject:

Re: NRC Proceeding WCS CISF 72-1050-ISFSI

• • EIE Update** Due to certain NRC computer security enhancements the process to open submissions having more than one attachment has had to be changed. Now, after opening the link in the e-mail and validating their certificate, users will see a page with a button saying Download Attachments. Selecting that button will cause the attached .zip file to be downloaded to the users computer. Thereafter, the files can be opened using the normal protocol. **EIE Update**

MESSAGE FROM THE OFFICE OF THE SECRETARY, NUCLEAR REGULATORY COMMISSION Re: NRC Proceeding WCS CISF 72-1050-ISFSI The Office of the Secretary has received a Submission entitled FASKEN LAND AND MINERALS, LTDS AND PERMIAN BASIN LAND AND ROYALTY OWNERS MOTION FOR LEAVE TO FILE NEW AND OR AMENDED CONTENTION submitted by Allan Kanner who is affiliated with Kanner & Whiteley. It contains 3 attachment(s).

It is intended for inclusion in the referenced proceeding. It was submitted through the NRC Electronic Information Exchange (EIE) system and arrived on 07/07/2020 at 12.01 AM.

As a hearing participant, you are entitled to view and/or retrieve this Submission by visiting the following web link.

FASKEN LAND AND MINERALS, LTDS AND PERMIAN BASIN LAND AND ROYALTY OWNERS MOTION FOR LEAVE TO FILE NEW AND OR AMENDED CONTENTION -

https://eie.nrc.gov/eie/adj/downloadAttachmentPackage.eie?submissionId=55732 (418 KB)

If the submission contains 2 or more attachments, they will be delivered to you as a single compressed zip file from which you may open the attachments. The delivery model works best with the free download product named SecureZip. This is the product used in the screen shots in the Adjudicatory Users Guide. Other compression products will work but the access steps may vary.

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Receipt of this message constitutes completion of service of this filing.

PARTIES SERVED WITH THIS SUBMISSION: Arnold, Gary S.; Bessette, Paul Michael; Castellon, Krupskaya T.; Clark, Lloyd S.; Curran, Diane J; Curry, Ian R.; DArrigo, Diane; Docket, Hearing; Eskelsen, Grant W; Fishman, Stephanie B.;

Gillespie, Joe I.; Goldstein, Mindy; Hadden, Karen D; Hebner, Christopher James; Heck, Jared K.; Houseman, Esther R.;

Kanner, Allan; Kirkwood, Sara B.; Krause, Emily I.; Lemoncelli, Mauri T.; Lighty, Ryan K; Lodge, Terry J; Matthews, Timothy P; Mattison, Molly R.; Mayhall, Taylor A.; Moran, Nicholas P.; Moulding, Patrick A.; Newell, Brian P.; ocaamail, ocaamail; Perales, Monica; Roach, Kevin C.; Safford, Carrie M.; Schumann, Stacy M.; Sola, Clara I; Speiser, Herald; Steinfeldt, Thomas S.; Styrsky, Stefen; Susko, Rebecca A.; Taylor, Wallace; Trikouros, Nicholas; Wase, Alana M.