ML20216D146
| ML20216D146 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 05/13/1998 |
| From: | Allen B AFFILIATION NOT ASSIGNED |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#298-19090 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9805200188 | |
| Download: ML20216D146 (10) | |
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f?b90 DOCKETED USNRC l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RULEWW
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ADJUD!CAiN aiAFF In the Matter of:
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Docket No. 72-22 l
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Private Fuel Storage, L.L.C.,
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(Independent Spent Fuel Storage
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ASLBP No. 97-732-02-ISFSI Installation)
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CASTLE ROCK LAND & LIVESTOCK, L.C. AND SKULL VALLEY CO., LTD.'S l
RESPONSE TO MOTION FOR RECONSIDERATION INTRODUCTION Pursuant to the Licensing Board's Memorandum and Order dated May 8,1998, Castle l
Rock Land and Livestock, L.C. and SI:ull Valley Co., Ltd. (collectively, " Castle Rock") file this response to the Applicant's Motion for Reconsideration and Clarification (the " Applicant's l
Motion") filed by Private Fuel Storage L.L.C. ("PFS" or the " Applicant") on May 6,1998. For the reasons discussed below, the Applicant's Motion must be denied to the extent it affects Contentions filed or adopted by Castle Rock.
A.
Subpart 7 of combined Utah Contention E/ Castle Rock 7/ Confederated Tribes N
F ("Subpart 7") Must Be Admitted Because Evidence of a Market For PFS's Services Is Necessary to Provide Reasonable Assurance of Adequate Funding.
As admitted by the Board, Subpart 7 provides:
the Applicant has failed to demonstrate that it is financially qualified because..
. [t]he applicant must document an existing market for the storage of spent nuclear fuel and the commitment of a sufficient number of Service Agreements i
to fully fund construction of the proposed ISFSI. The applicant has not shown that the commitment of 15,000 MTUs is sufficient to fund the Facility including operation, decommission and contingencies.
I o...c\\casign\\reconsid.op2 9805200188 980518
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PDR ADOCK 07200022
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(Memorandum and Order, LBP-98-7, dated April 22,1998 (the " Order"), App. A, at 3). The Applicant requests that the Board reconsider the portion of Subpart 7 which claims that the j
" applicant must document an existing market for the storage of spent nuclear fuel." (Applicant's Motion, at 6). The Applicant's request is based on a purported similarity between this proceeding and Imuisiana Enerev Services. L.P. (Clairborne Enrichment Center), CLI-97-15, l
46 NRC 294 (1997) ("Clairborne"), in which the Nuclear Regulatory Commission (the
" Commission") determined that, under the particular circumstances of that case, the applicant l
l appeared to be financially qualified even though the application materials did not contain firm contractual commitments from customers sufficient to fund all costs of constructing and operating the proposed uramum enrichment facility.
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The portion of Subpart 7 requiring the Applicant to demonstrate an existing market must l
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be admitted because documentation of a market for spent nuclear fuel is necessary to provide reasonable assurance that PFS can obtain the funds necessary to cover construction, operation, and decommissioning of the proposed Private Fuel Storage Facility (the "PFSF"). Section l
72.22(e) of 10 C.F.R. requires an applicant for an ISFSI license to show that it possesses, or that it has a " reasonable assurance" of obtaining, all funds necessary to cover construction costs, l
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operating costs over the planned life of the ISFSI, and decommissioning costs. (Id.). Tb Applicant's skeletal budget for the proposed PFSF estimates construction costs at $100 million and operating costs for the planned 40 year life in excess of $1.8 billion (License Application
(" Application"), at 1-5,1-6). The Application represents that $48 million of the posited $100 l
million cost of constructing the PFSF will be funded by equity contributions from PFS members.
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This means that a majority of tiie costs of construction, and all of the in excess of $1.P billion in operating costs, must be funded through customer services agreements. (M.)
The Application contains no evidence that PFS has obtained customer commitments sufficient to fund construction and operation of the proposed PFSF. In fact, the Application does not contain evidence of any customer commitments, or even a form of the proposed service agreement. Aware that it has failed to provide evidence of its ability to obtain the $1.9 billion necest.ary to construct and operate the PFSF, the Applicant offers a vague commitment not to commence construction unless service agreements for a "significant quantity of spent fuel storage have been signed" and suggests 15,000 MTU as a target quantity (M. at 1-5). The Application does not specify precisely what it means by a "significant quantity" of spent fuel storage. To the extent it is suggesting 15,000 MTU would be a significant quantity, the Application nonetheless contains no firm commitment to abandon the project if service agreements for 15,000 MTU of spent fuel have not been signed.
In addition, the Application fails to demonstrate that commitments with respect to 15,000 MTU (or some other amount) of spent fuel are sufficient to fund construction, operation, and decommissioning of the PFSF.
Documentation of an existing and adequate market for the storage of spent nuclear fuel l
is essential because, without such documentation, the Application lacks any evidence that the I
Applicant has, or can reasonably obtain, any more than $48 million' of the $1.9 billion dollars I
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'In fact, because the Applicant has failed to fully disclose the identity and financial status
, the constituent members, it has not even demonstrated its ability to provide the initial $48 adiion in equity contributions.
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required to construct and operate the PFSF.2 The Application does not describe or document l
any definitive funding com nitments from customers and lacks even draft copies of marketing l
materials and agreements PFS proposes to use in obtaining such commitments. Having failed 1
to obtain dermitive funding commitments at this stage, the Applicant's duty to provide
" reasonable assurance" of its ability to fully fund the PFSF requires, at a minimum, that it demonstrate through market surveys that there is sufficient interest in its service, at its proposed l
offering price, that one may reasonably expect the revenues from spent fuel services to exceed the ever $1.9 billion estimated cost of constructing, operating, and decommissioning the prorased PFSF.
The Commission's decision in Clairborne is inapposite because, unlike PFS, the applicant in Clairborne expressly committed that it would not commence construction absent binding commitments sufficient to fund all construction and Operating costs. As claimed by PFS, the panel in Clairborne did not require the applicant to demonstrate that it had firm commitments to fund construction and operation of the proposed uranium enrichment facility on the theory l
that, if the project proved a failure in the marketplace, no facility would be built and no harm done to the public. (Clairborne, at 308). However, such decision rested expressly on a factor absent in this case. The applicant in Clairborne had expressly committed that it "will not proceed with the project unless it has in place enrichment contracts with prices sufficient to cover both construction and ooerating costs, including a return on investment." (Id. at _, _)
2 Moreover, in (among other places) subparts 6, 9, and 19, of Utah E/ Castle Rock 7/ Confederated Tribes F, Castle Rock, the State of Utah, and the Confederated Tribes have questioned the accuracy of PFS's costs estimates for constructin;. i operating the facility. The l
amount required to construct, operate, and decommission the facuay is bound to far exceed the approximately $1.9 billion estimate provided by PFS.
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(emphasis added). In stark contrast to the Clairborne applicant, PFS has not made a firm commitment not to commence construction absent contractual commitments sufficient to fund all construction and operating costs.' In fact, PFS is not even willing to commit to a concrete lesser threshold. Absent a binding commitment by PFS similar to that in Clairborne, the
" reasonable assurance" requirement in Section 72.22(e) dictates that PFS provide market surveys demonstrating that there is, or will be, sufficient demand for private spent fuel storage to fund the PFSF over its entire proposed operating life.
B.
Castle Rock Contention 17, Subparts b. and e. Must Be Admitted Because the Environmental Repod (the "ER") Provides an Incomplete and Misleading Description of the Population Potentially Affected by the PFSF and the j
Impact the PFSF Will Have on the Deseret Peak Wilderness Area.
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As admitted by the Board, Castle Rock Contention 17 provides, in relevant part, that the j
l application violates NRC regulations and NEPA because...
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The ER paints a misleading picture of the area population by ignoring a l
majority of the Salt Lake Valley; the ER fails to discuss the impact of placing a spent fuel storage areas e.
near a national wilderness area.
(Order, App. A, at 10-11).
Subpart b of Contention 17 ("Subpart B") should be admitted because the ER misleadingly accounts for only a small portion of the population of the Salt Lake Valley (the
" Valley").
Sections 72.90(e) and 72.98(c) of 10 C.F.R. require that an applicant's i
environmental report describe the potential for radiological and other environmental impacts i
3 Moreover, in Clairborne, no party disputed the accuracy of the applicant's cost projections--a factor that is absent in this case. (ld.)
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l caused by the construction, operation, and decommissioning of a proposed ISFSI in light of the characteristics and distribution of the present and future population in the region. (10 C.F.R.
i 72.90(e), 72.98(c). The relevant " region" is not defined in Part 72 but presumably includes any surrounding area that may be impacted by the proposed facility. As indicated by Figure 1
2.2.-3, a portion of the Valley is within 50 miles--the distance suggested by NUREG-1567 for population impact analysis--of the proposed PFSF site. Although the Valley is subdivided into numerous cities, towns, and suburbs, these different political units function as an integrated business, social, transportation, and environmental unit. Section 2.2.3.3 and Figure 2.2-3 d,? cuss portions of the Valley in terms of smaller political units or in terms of a partial geographic unit lying within a certain distance from the proposed PFSF, despite the integrated I
nature of the Valley. By arbitrarily excluding the vast majority of the Valley's population that liesjust outside of the 50 mile area and by referencing the Valley's distinct political units--rather than the Valley as a whole--the ER distorts the size and nature of the population potentially affected by the PFSF. Accordingly, Subpart B must be admitted.
Subpart e of Contention 17 ("Subpart E") must be admitted because the ER fails to acknowledge or discuss the impact the ISFSI will have on the Deseret Peak National Wilderness
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I Area (the " Wilderness Area"). Section 72.90(e) requires that the siting of proposed facility be evaluated in light of "the regional environs, including its historical and aesthetic values." (10 C.F.R. 6 72.90(e). Similarly, sections 72.98(c)(2) and 72.100(b) require consideration of the effect of any proposed facility on regional land use and the environment.
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Motion, PFS suggests that it has examined the effect of the proposed PFSF on the Wilderness Area because the ER " recognizes that off-road vehicle use, dispersed camping and hunting l
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activities take place in the areas around the ISFSI site and it specifically addresses the impacts that the ISFSI... might have on the view from the wilderness area." (Motion, at 18 (citing ER at 2.2-3,4.2-7)). Although the ER does acknowledge the existence of the Wilderness Area approximately six miles from the proposed PFSF site, (ER at 4.2-7), it fails to accurately portray the effect the PFSF would have on the aesthetic value and use of the Wilderness Area.
First, the inadequacy of PFS's investigation and evaluation of the PFSF's impacts on the Wilderness Area is revealed by the suggestion in the Applicant's Motion that references in the ER to regional "off-road vehicle use" in the areas around the proposul PFSF apply to the Wilderness Area. Motor vehicle use is strictly prohibited in the Wilderness Area.
Moreover, the ER suggests that the PFSF would not affect the Wilderness Areas because, it claims, " recreation access... is from tne eastern side of the Stansbury Mountains," and "no primary view areas or scenic viewpoints are located with the 5-mile radius." (ER, at 4.2-7).
Contrary to these claims, numerous roads lead from Skull Valley to the western boundary of the Wilderness area (not inside because motor vehicle traffic is prohibited), and such roads are coinmonly used to facilitate access on horse or by foot. Furthermore, although no view area is located within five miles of the proposed area, from the 11,031 foot summit of Desert Peak, and numerous other peaks and ridges within the Wilderness Area, the proposed ISFSI would be very I
visible--and the aesthetic impact of such visibility is far from negligible. The attractiveness and beauty of the Wilderness Area stems from the fact tha' it, and the ever-visible Skull Valley, are pristine, untrammeled, and devoid of a significant industrial presence. This unsullied quality of the Wilderness Area will be severely impacted by the presence of the nation's largest nuclear o...rWisige\\reconsilop2 7
'I waste storage facility six miles from its border in the adjacent valley floor. The ER fails to acknowledge or describe this impact.
The ER omits a complete and accurate portrayal of the uses of and access to the Wilderness Area.
Moreover, it omits any discussion of the importance of a visually uncontaminated Skull Valley to the enjoyment and aesthetic integrity of the Wilderness Area.
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Commission rules governing the admissibility of contentions provide that where the applicant l
l has filed incomplete documents or failed to supply necessary information be sufficient l
l for the intervenor to explain why the application is deficient." 54 Fed. Reg. a3,168, 33170 l
(1989); 10 C.F.R. f 2.714(b)(2)(iii)(providing that "if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons" is sufficient). Consistent with the requirements of 10 C.F.R.
l 6 2.714(b)(2)(iii), Castle Rock has identified omissions and distortions of relevant information l
l with respect to the Wilderness Area; therefore, Subpart E should be admitted.
l Dated this 13th day of May,1998.
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Respectfully submitted, e
Mistfa'el M. Later, USB #3728 Bryan T. Allen, USB #7127 PARR, WADDOUPS, BROWN, GEE & LOVELESS Attorneys for Petitioners l
185 S. State Street, Suite 1300 L
P.O. Box 11019 l
Salt Lake City, UT 84147-0019 l
Telephone: (801) 532-7840 Facsimile: (801) 532-7750 E-Mail: karenj@kimballparr.com o...e\\casign\\reccosid.op2 8
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00CKETED USHRC Certificate of Maihne I hereby certify that I caused to be sent by E-Mail and regular mail (exc%t aEthhig :15 indicated) a copy of the foregoing RESPONSE TO MOTION FOR RECONSIDERATION to the following:
OFFICE OF SE' Rim RULa# 2 m.aD Dr. Jerry R. Kline Dr. Peter S. Lam ADJUDUsLMS STAFF Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board l
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission l
Washington, D.C. 20555 Washington, D.C. 20555 l
E-Mail: jrk2@nrc. gov E-Mail: psl@nrc. gov G. Paul Bollwerk, III, Chairman Office of the Secretary l
Administrative Judge ATTN: Rulemakingsand AdjudicationsStaff l
Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, D.C. 20555 (U. S. Mail only) l E-Mail: gpb@nrc. gov l
James M. Cutchin Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D.C. 20555-0001
' E-Mail: jmc3@nrc. gov Attn: Docketing & Services Branch Diane Curran, Esq.
Secretary of the Commission Harmon, Curran, Spielberg & Eisenberg U.S. Nuclear Regulatory C.ommission 2001 S Street, N.W., Suite 430 Mail Stop: 016G15 Washington, D.C. 20009 11555 Rockville Pike One White Flint North E-Mail: DCurran.HCSE@zzapp.org Rockville, MD 20852-2728 (original and two copies - U.S. Mail only)
Jay E. Silberg, Esq.
Shaw, Pittman, Potts & Trowbridge Sherwin E. Turk, Esq.
2300 N Street N.W.
Catherine L. Marco, Esq.
Washingotn, D.C. 20037-8007 Office of General Counsel Fax: (202) 663-8007 l
U.S. Nuclear Regulatory Commission E-Mail: jasilberg@shawpittman.com i
Mail Stop: 0-15 B18 Washington, D.C. 20555 Jean Belille, Esq.
Fax: (301) 415-3725 Land and Water Fund of the Rockies E-Mail: set @nrc. gov; clm@nrc. gov 2260 Baseline Road, Suite 200 l
Boulder, Colorado 80302 Fax: (303) 786-8054 E-Mail: landwater@lawfund.org I
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l Danny Quintana, Esq.
John Paul Kennedy, Sr., Esq.
i Danny Quintana & Associates, P.C.
1385 Yale Avenue j
l 50 West Broadway, Fourth Floor Salt Lake City, UT 84105 Salt Lake City, UT 84101 Fax: (801) 581-1007 3
Fax: (801) 363-7726 E-Mail: john @kennedys.org E-Mail: quintana @Xmission.com i
Connie Nakahara, Esq.
I Denise Chancellor Utah Dept. of Environmental Quality Assistant Attorney General 168 North 1950 West Utah Attorney General's Office P. O. Box 144810 P. O. Box 140873 Salt Lake City, UT 84114-4810 Salt I.ake City, UT 84114-0873 Fax: (801) 536-4401 Fax: (801) 366-0292/0293 E-Mail: cnakahar@ state.ut.us E-Mail: dchancel@ state.ut.us Dated this 13th day of May,1998.
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DeAnn Thompson l
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