ML20220A574

NRC Staff'S Answer in Opposition to Sierra Club'S Appeal of LBP-20-06

ML20220A574
Person / Time
Site:	HI-STORE
Issue date:	08/07/2020
From:	Joe Gillespie, Sara Kirkwood, Rebecca Susko NRC/OGC
To:	NRC/OCM
SECY RAS
References
ASLBP 18-958-01-ISFSI-BD01, Holtec International, RAS 55754
Download: ML20220A574 (26)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of HOLTEC INTERNATIONAL Docket No. 72-1051 (HI-STORE Consolidated Interim Storage Facility)

NRC Staffs Answer in Opposition to Sierra Clubs Appeal of LBP-20-6 Joe Ivy Gillespie III Rebecca Susko Sara B. Kirkwood Counsel for NRC Staff August 7, 2020

TABLE OF CONTENTS Introduction ................................................................................................................................ 1 Background................................................................................................................................ 2 Discussion ................................................................................................................................. 4 I. Applicable Legal Standards ................................................................................................ 4 A. Interlocutory Review of Petitions to Intervene Under 10 C.F.R. § 2.311 ............................. 4 B. Legal Requirements for Contention Admissibility ............................................................. 5 C. Motions for Leave to File New or Amended Contentions ................................................. 5 D. Requirements for Reopening the Record......................................................................... 6 II. The Board correctly found that Sierra Clubs proposed contentions were inadmissible ........................................................................................................................ 6 A. Sierra Club Contentions 15, 16, 17, and 19 did not show a genuine dispute with Holtec on a material issue of law or fact. ......................................................................... 6

1. Contention 15 (Shallow Groundwater) ......................................................................... 8

2. Contention 16 (Brine Flow) .........................................................................................10

3. Contention 17 (Fractured Rock) .................................................................................. 11

4. Contention 19 (Hydraulic Conductivity) .......................................................................13 B. The Commission should affirm the Boards finding that Sierra Club Contention 30 was inadmissible ....................................................................................................... 14

1. The Board correctly determined Sierra Clubs motion to reopen the record was untimely and that the original motion for a new contention did not satisfy the reopening standards ..................................................................................15

2. Sierra Club has not demonstrated that the Board erred in its findings on good cause and admissibility ......................................................................................16 Conclusion ................................................................................................................................20 ii

TABLE OF AUTHORITIES Judicial Opinions Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978)................................................................................................................ 19 York Committee for a Safe Environment v. NRC, 527 F.2d 812 (D.C. Cir. 1975).................................................................................................. 19 Commission Legal Issuances AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 NRC 111 (2006)................................................................................................. 5 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 NRC 235 (2009) ................................................................................................. 5 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349 (2001) ........................................................................................... 5, 18 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2),

CLI-03-14, 58 NRC 207 (2003) ............................................................................................... 5 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 NRC 631 (2004) ............................................................................................... 9 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3),

CLI-08-17, 68 NRC 231 (2008) ........................................................................................... 4, 15 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3),

CLI-09-5, 69 NRC 115 (2009) .................................................................................................. 6 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2),

CLI-17-7, 85 NRC 111 (2017) ................................................................................................... 15 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2),

CLI-03-17, 58 NRC 419 (2003) ............................................................................................... 17 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),

CLI-10-22, 72 NRC 202 (2010) ............................................................................................... 12 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2),

CLI-16-5, 83 NRC 131 (2016) ................................................................................................... 5 Fansteel, Inc. (Muskogee, Oklahoma Site),

CLI-03-13, 58 NRC 195 (2003) ............................................................................................... 13 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1),

CLI-12-8, 75 NRC 393 (2012) .................................................................................................. 5 iii

Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

CLI-15-25, 82 NRC 389 (2015) ............................................................................................... 18 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7),

CLI-17-12, 86 NRC 215 (2017) ........................................................................................4, 11, 18 Holtec Int'l (HI-STORE Consolidated Interim Storage Facility),

CLI-20-4, 91 NRC __ (Apr. 23, 2020) (slip op.)............................................................... passim Int'l Uranium Corp. (White Mesa Uranium Mill),

CLI-01-21, 54 NRC 247 (2001) ................................................................................................. 4 La. Energy Servs., L.P. (National Enrichment Facility),

CLI-04-25, 60 NRC 223 (2004) .............................................................................................. 17 Luminant Generation Co. (Comanche Peak Nuclear Power Plant, Units 3 and 4),

CLI-11-9, 74 NRC 233 (2011) ...................................................................................................11 N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),

CLI-10-27, 72 NRC 481 (2010) ................................................................................................ 17 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-12-5, 75 NRC 301 (2012).................................................................................................. 18 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-99-10, 49 NRC 318 (1999) ................................................................................................ 5 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-05-1, 61 NRC 160 (2005) .................................................................................................. 9 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3),

CLI-10-9, 71 NRC 245 (2010)................................................................................................... 4 Shaw AREVA MOX Servs., LLC (Mixed Oxide Fuel Fabrication Facility),

CLI-09-2, 69 NRC 55 (2009).................................................................................................. 18 USEC Inc. (American Centrifuge Plant),

CLI-06-9, 63 NRC 433 (2006) ................................................................................................. 5 USEC Inc. (American Centrifuge Plant),

CLI-06-10, 63 NRC 451 (2006); .............................................................................................. 13 Va. Elec. & Power Co. (North Anna Power Station, Unit 3),

CLI-12-14, 75 NRC 692 (2012)................................................................................................ 18 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station),

CLI-96-7, 43 NRC 235 (1996) ............................................................................................ 4, 16 iv

Atomic Safety and Licensing Board Decisions Entergy Nuclear Vt. Yankee, LLC (Vermont Yankee Nuclear Power Station),

LBP-06-14, 63 NRC 568 (2006) .............................................................................................. 5 Holtec Int'l (HI-STORE Consolidated Interim Storage Facility),

LBP-19-4, 89 NRC 353 (2019) ........................................................................................ passim Holtec Intl (HI-STORE Consolidated Interim Storage Facility),

LBP-20-6, 91 NRC __ (June 18, 2020) (slip op.) ............................................................. passim PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2),

LBP-07-4, 65 NRC 281 (2007) ............................................................................................... 10 Regulations 10 C.F.R. § 2.309 ............................................................................................................... passim 10 C.F.R. § 2.311 ...................................................................................................................... 1, 4 10 C.F.R. § 2.326 ...........................................................................................................1, 6, 15, 16 Other Authorities Changes to Adjudicatory Process, 69 Fed. Reg. 2181 (Jan. 14, 2004) .................................. 17, 18 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004) ...................... 5 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 12,034 (Mar. 19, 2018) ...................................... 2 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018) ....................................... 2 v

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of HOLTEC INTERNATIONAL Docket No. 72-1051 (HI-STORE Consolidated Interim Storage Facility)

NRC Staffs Answer in Opposition to Sierra Clubs Appeal of LBP-20-6 INTRODUCTION Pursuant to 10 C.F.R. § 2.311(b), the U.S. Nuclear Regulatory Commission Staff (NRC Staff) submits its answer opposing Sierra Clubs petition for review of LBP-20-6. 1 In LBP-20-6, the Atomic Safety and Licensing Board (Board) ruled on the admissibility of Sierra Clubs five remaining proposed contentionsContentions 15, 16, 17, 19, and 30which the Commission in CLI-20-4 had remanded for the Boards consideration. 2 The Board determined that none of the five proposed contentions met the contention admissibility requirements of 10 C.F.R.

§ 2.309(f)(1). 3 It found Contention 30 inadmissible on the additional grounds that it did not meet the requirements of 10 C.F.R. § 2.326 for reopening the record or the good cause requirements of 10 C.F.R. § 2.309(c) for contentions filed after the initial intervention deadline. 4 Because Sierra Club has not demonstrated that the Board committed an error of law or abused its discretion, the Commission should affirm the Boards decision.

1 Holtec Intl (HI-STORE Consolidated Interim Storage Facility), LBP-20-6, 91 NRC __ (June 18, 2020)

(slip op.).

2 Holtec Int'l (HI-STORE Consolidated Interim Storage Facility), CLI-20-4, 91 NRC __ (Apr. 23, 2020)

(slip op.).

3 Holtec Intl, LBP-20-6, 91 NRC __, __ (slip op. at 22).

4 Id.

2 BACKGROUND This proceeding concerns Holtec Internationals (Holtec) HI-STORE license application to construct and operate a consolidated interim storage facility (CISF) pursuant to the NRCs regulations in 10 C.F.R. Part 72. On March 30, 2017, Holtec submitted its application, including a Safety Analysis Report, Environmental Report, and Proposed License, requesting that the NRC grant a license to Holtec for the construction and operation of a CISF for spent nuclear fuel. 5 The proposed CISF would be located in Lea County, New Mexico. In its license application, Holtec requests authorization to store up to 8,680 metric tons of uranium in up to 500 canisters for a license period of 40 years. 6 The NRC published a notice in the Federal Register regarding the acceptance and docketing of the Holtec CISF license application, followed by a notice of opportunity to request a hearing and to petition for leave to intervene. 7 In response, Sierra Club submitted a petition to intervene and requested a hearing. 8 On May 7, 2019, the Board issued its initial decision, finding that Sierra Club had demonstrated standing but that none of its proposed 29 contentions was admissible in accordance with 10 C.F.R. § 2.309(f)(1). 9 Sierra Club appealed the Boards 5 Holtecs application materials are available at: https://www.nrc.gov/waste/spent-fuel-storage/cis/holtec-international.html. Unless otherwise specified, all the NRC Staffs citations to the Environmental Report are to Revision 7 (ADAMS Accession No. ML19309E337), all citations to the Safety Analysis Report are to Revision 0H (ML19163A062), and all citations to the Proposed License are to Revision 0A (ML17310A223).

6 Proposed License at 1.

7 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 12,034 (Mar. 19, 2018); Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018).

8 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Sept. 17, 2018)

(ML18257A226 (package)); NRC Staff Consolidated Response to Petitions to Intervene and Requests for Hearing (Oct. 9, 2018) (ML18282A567); Holtec Internationals Answer Opposing Sierra Clubs Petition to Intervene and Request for Adjudicatory Hearing on Holtec Internationals HI-STORE Consolidated Interim Storage Facility Application (Oct. 9, 2018) (ML18282A500); Sierra Club's Reply to Answers Filed by Holtec International and NRC Staff (Oct. 16, 2018) (ML18289B064).

9 Holtec Int'l (HI-STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC 353 (2019).

3 decision. 10 After filing its appeal, but before the Commission ruled on it, Sierra Club also submitted new proposed Contention 30. 11 Shortly thereafter, the Commission issued its decision, affirming the Board in part and reversing and remanding in part. 12 With respect to Sierra Club, the Commission largely affirmed the Boards conclusion that Sierra Club had failed to proffer an admissible contention; however, it reversed and remanded for further consideration the Boards determinations on Sierra Clubs proposed Contentions 15, 16, 17, and 19, in which Sierra Club had asserted claims related to the characterization of groundwater at the site. 13 In its decision, the Commission also remanded proposed Contention 30 for an initial determination on whether the contention satisfied both the reopening and contention admissibility standards. 14 Following the issuance of CLI-20-4, Sierra Club for the first time submitted a motion to reopen the record to admit Contention 30. 15 On June 18, 2020, the Board held that each of the five remanded contentions was inadmissible and that Sierra Club did not satisfy the reopening and good cause standards for 10 Sierra Club's Brief in Support of Petition for Review of Board Decision Denying Intervention (LBP-19-4) (June 3, 2019) (ML19154A166); NRC Staffs Answer in Opposition to the Sierra Clubs Appeal of LBP-19-4 (June 28, 2019) (ML19179A254); Holtec International's Brief in Opposition to Sierra Club's Appeal of LBP-19-4 (June 28, 2019) (ML19179A330).

11 Sierra Club's Motion to File a New Late-Filed Contention and Contention 30 (Oct. 24, 2019)

(ML19297D141 (package)); NRC Staff Answer In Opposition To Sierra Club New Contention 30 (Nov. 18, 2019) (ML19322D107); Holtec International's Answer Opposing Sierra Club's Motion To File Late-Filed Contention 30 (Nov. 18, 2019) (ML19322D106).

12 Holtec Int'l, CLI-20-4, 91 NRC __ (Apr. 23, 2020) (slip op.).

13 Id. at __ (slip op. at 23-29).

14 Id. at __ (slip op. at 31-32).

15 Sierra Club's Motion to Reopen the Record (May 4, 2020) (ML20125A096); NRC Staff Answer in Opposition to Sierra Club's Motion to Reopen the Record (May 13, 2020) (ML20134H962); Holtec International's Answer Opposing Sierra Club's Motion to Reopen the Record (May 14, 2020)

(ML20135H323); Sierra Club's Joint Reply to Holtec's and NRC Staff's Answer to Sierra Club's Motion to Reopen the Record (May 18, 2020) (ML20139A165).

4 Contention 30. 16 Sierra Club now appeals the Boards ruling with respect to each of the proposed contentions. 17 DISCUSSION I. Applicable Legal Standards A. Interlocutory Review of Petitions to Intervene Under 10 C.F.R. § 2.311 The NRCs regulations at 10 C.F.R. § 2.311(c) provide an appeal as of right on the question of whether a petition to intervene or request for hearing should have been granted. On threshold matters such as standing and contention admissibility, the Commission gives substantial deference to board rulings unless the appeal points to an error of law or abuse of discretion which might serve as grounds for reversal of the boards decision. 18 The Commission has maintained that [r]ecitation of an appellants prior positions in a proceeding or statement of general disagreement with a decisions result is not sufficient. 19 Rather, a valid appeal must point out the errors in the [b]oards decision. 20 In addition, an argument made before the board but not reiterated or explained on appeal is considered abandoned. 21 Finally, the Commission will not entertain an argument that is raised for the first time on appeal. 22 16 Holtec Intl, LBP-20-6, 91 NRC __ (slip op.).

17 Sierra Club's Notice of Appeal of Atomic Safety and Licensing Board Ruling Denying Intervention (July 13, 2020) (ML20195A161 (package)).

18 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231, 234 (2008).

19 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7), CLI-17-12, 86 NRC 215, 219 (2017) (citations omitted).

20 Id.

21 Int'l Uranium Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 253 (2001); see Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI-10-9, 71 NRC 245, 265 (2010).

22 See, e.g., Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 260 (1996) (rejecting an argument raised for the first time on appeal, which did not satisfy the factors for admission of late-filed contentions, on that basis alone).

5 B. Legal Requirements for Contention Admissibility 10 C.F.R. § 2.309(f)(1) establishes the basic criteria that all contentions must meet in order to be admissible. 23 The Commission has strictly applied these contention admissibility requirements in NRC adjudications. 24 Failure to comply with any one of these criteria is grounds for the dismissal of a contention. 25 The requirements are intended to focus litigation on concrete issues and result in a clearer and more focused record for decision. 26 The hearing process is reserved for genuine, material controversies between knowledgeable litigants. 27 C. Motions for Leave to File New or Amended Contentions New contentions submitted after the initial date for hearing requests must meet the requirements of 10 C.F.R. § 2.309(c)(1). To do so, a petitioner must demonstrate good cause by showing that the information upon which the filing is based was not previously available, that the information upon which the filing is based is materially different from information previously available, and that the filing has been submitted in a timely fashion based on the availability of the subsequent information. 28 The petitioner has the burden of demonstrating that any new contention meets this good cause standard. 29 23 Entergy Nuclear Vt. Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 572 (2006); see also USEC Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 436-37 (2006)

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

24 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), petition for reconsideration denied, CLI-02-1, 55 NRC 1 (2002)).

25 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999); see also Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016).

26 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).

27 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC 393, 396 (2012) (quoting Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2),

CLI-03-14, 58 NRC 207, 219 (2003)).

28 10 C.F.R. § 2.309(c)(1).

29 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 260-61 (2009).

6 D. Requirements for Reopening the Record Pursuant to 10 C.F.R. § 2.326(a), a petitioner seeking to open a closed record must show that its motion (1) is timely; (2) addresses a significant safety or environmental issue; and (3) demonstrates that a materially different result would be or would have been likely had the newly proffered evidence been considered initially. 30 Additionally, 10 C.F.R. § 2.326(b) requires supporting affidavits from experts or otherwise competent individuals accompany the motion that set forth the factual and/or technical bases for the movants claim that the criteria of

[§ 2.326(a)] have been satisfied. The affidavits must address each criterion of § 2.326(a) separately with a specific explanation of why it has been met. 31 The Commissions rules of practice also make clear that the reopening standards, as well as the standards to file a new contention after the deadline, must be met when an entirely new issue is sought to be introduced after the proceeding has been terminated. 32 II. The Board correctly found that Sierra Clubs proposed contentions were inadmissible A. Sierra Club Contentions 15, 16, 17, and 19 did not show a genuine dispute with Holtec on a material issue of law or fact.

Sierra Clubs proposed Contentions 15-19 related to potential impacts from the proposed facility on groundwater at the site. 33 As the Commission noted, the Board, in its initial decision, rejected each of these contentions for failure to demonstrate a genuine material dispute because Sierra Club did not address how contamination from a canister could impact the groundwater. 34 The Commission upheld the decision in part, finding that to the extent the contentions relied on the presumption of a leak from the HI-STORM UMAX system, the 30 10 C.F.R. § 2.326(a).

31 Id. § 2.326(b).

32 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 124 (2009) (citing 10 C.F.R. § 2.326(d)).

33 Sierra Club Petition to Intervene and Request for Hearing, at 60-67 (Sept. 14, 2018) (ML18257A228)

(Sierra Club's Petition to Intervene); Holtec Int'l, CLI-20-4, 91 NRC at __ (slip op. at 23).

34 Holtec Int'l, CLI-20-4, 91 NRC at __ (slip op. at 24).

7 contentions constituted a challenge to a design previously approved in an NRC rulemaking and were therefore inadmissible absent a waiver. 35 However, because the Board had rested its determinations solely on the failure to challenge Holtecs no-leak conclusion, the Commission remanded Contentions 15, 16, 17, and 19 to the Board for further consideration as to whether they raised an otherwise admissible concern with respect to Holtecs hydrogeological site characterization. 36 The Commission emphasized that this admissibility determination was for the Board to make in the first instance, though it further observed that [i]t is possible that, to the extent Sierra Clubs groundwater contentions are purely site-characterization disputes, they fail to show a material dispute with the application because they do not indicate how Sierra Clubs groundwater concerns would affect the ultimate discussion of environmental impacts. 37 On remand, the Board examined the proposed contentions to determine whether they satisfied the admissibility requirements of 10 C.F.R. § 2.309(f)(1). The Board determined that each of the contentions in question remained inadmissible, finding that each of the contentions did not meet the requirement to raise a genuine dispute with the application and that Sierra Club did not provide a sufficient factual basis to support the claims in Contentions 16, 17, and 19. 38 Sierra Club, in its appeal, claims that the Board erred in each of its findings on the proposed contentions. 39 As explained for each of the individual contentions below, Sierra Club has not identified an error of law or abuse of discretion by the Board, and as a result, the Commission should affirm the Boards decision.

35 Id. at __ (slip op. at 25-26).

36 Id. at __ (slip op. at 26-29).

37 Id. at __ (slip op. at 28).

38 Holtec Int'l, LBP-20-6, 91 NRC at __ (slip op. at 2-9).

39 Sierra Club's Brief in Support of Appeal of Atomic Safety and Licensing Board Decision Denying Admissibility of Contentions in Licensing Proceeding, at 4 (July 13, 2020) (ML20195A163) (Sierra Club Appeal).

8

1. Contention 15 (Shallow Groundwater)

In Contention 15, Sierra Club claimed that the Environmental Report did not adequately determine whether shallow groundwater exists at the site in order to assess the impact of a radioactive leak on the groundwater. 40 In its original decision, the Board found Contention 15 inadmissible because Sierra Club failed to dispute Holtecs conclusion that the facility would not release pollutants into groundwater during any credible event. 41 The Commission directed the Board on remand to determine whether the contention was admissible apart from claims that radioactive leaks from the canisters could contaminate the groundwater. 42 In LBP-20-6, the Board therefore considered whether the contention had raised an admissible issue regarding the adequacy of the Environmental Reports hydrogeologic site characterization, and the Board again found Contention 15 inadmissible for failure to raise a genuine dispute with the application. 43 Specifically, the Board found that Sierra Club did not challenge multiple relevant portions of the Environmental Report and Holtecs conclusions therein. 44 Fundamentally, Sierra Club has not demonstrated that the Board erred in its finding that the original petition did not provide a genuine dispute with Holtec on a material issue of law or fact. 45 Regardless of whether leaks could occur from a storage canister at the proposed facility, the Board found that Sierra Club did not dispute or acknowledge Holtecs Radiological Environmental Monitoring Program, which serves as a primary confirmation of the adequacy of 40 Sierra Club's Petition to Intervene at 60; Holtec Int'l, LBP-19-4, 89 NRC at 403.

41 Holtec Int'l, LBP-19-4, 89 NRC at 404; Holtec Int'l, CLI-20-4, 91 NRC at __ (slip op. at 24-25).

42 Holtec Int'l, CLI-20-4, 91 NRC at __ (slip op. at 29).

43 Holtec Int'l, LBP-20-6, 91 NRC at __ (slip op. at 3-6).

44 Id.

45 10 C.F.R. § 2.309(f)(1)(vi).

9 the active operational controls and passive engineering controls for preventing releases beyond the design basis for the facilities. 46 Accordingly, even if Sierra Club had shown a dispute with the Environmental Report regarding whether shallow alluvium is likely non water-bearing at the Site (and the Board concluded it had not), because Sierra Club failed to acknowledge or challenge the adequacy of Holtecs programmatic controls to detect and protect against potential releases (and in turn minimize any potential environmental impacts), it did not explain how further characterization of groundwater beneath the site could materially alter the outcome of the licensing proceeding. 47 And in its initial petition, aside from a general statement that the Environmental Report must thoroughly evaluate the affected environment and that Holtec must assess the impact of a radioactive leak, Sierra Club provided no explanation as to how further characterization of the groundwater is material to any ultimate discussion of the impacts of the facility on the environment, especially in light of the Boards determination that leaks will not be assumed to occur. 48 Accordingly, the Board correctly determined that Sierra Club had not demonstrated a material dispute with the application.

On appeal, it is incumbent on the appellant to controvert each of the findings relied on by the Board. 49 Here, Sierra Club neither acknowledges nor disputes this element of the Boards rationale for finding that the contention was inadmissible because it raised no concerns that 46 Environmental Report at 4-52 to 4-53 (ML19309E337); Holtec Int'l, LBP-20-6, 91 NRC at __ (slip op.

at 4).

47 Holtec Intl., LBP-20-6, 91 NRC at __ (slip op. at 4) ; see Holtec Int'l, CLI-20-4, 91 NRC at __ (slip op.

at 28-29, n.147) (identifying past Board findings that balance the need for further site characterization with the potential impact on the ultimate agency decision).

48 Sierra Club's Petition to Intervene at 60-62.

49 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 638 (2004) (finding that failure to address each ground for a decision was sufficient justification to reject petitioners appeal); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 166 (2005) (finding that the Commission is free to affirm a Board decision on any ground finding support in the record).

10 affect Holtecs ultimate discussion of environmental impacts. 50 For that reason, the Commission should affirm the Boards decision.

2. Contention 16 (Brine Flow)

Contention 16 asserted that Holtecs Environmental Report did not contain information as to the presence and flow of brine at the Holtec site. 51 On remand, the Board found the contention inadmissible both because it lacked adequate factual support and because it did not provide sufficient information to show a genuine dispute with the application. 52 The Board found that Sierra Clubs accompanying declaration from George Rice relied solely on a 2007 Eddy Lea Siting Study to support the contentions claim that brine might be present in shallow groundwater below the proposed facility but that Sierra Club and Mr. Rice failed to identify or controvert the statements in the Environmental Report that already acknowledged the presence of brine saturations. 53 The Board also observed that both the Environmental Report and the Siting Study identify the brine as being located on the eastern side of the site, but the proposed facility would be located on the western side of the site, upgradient from the locations where brine had been observed. 54 The Board noted that Sierra Clubs declaration in support of the contention simply asked questions about the presence and impact of brine beneath the site, and merely asking questions does not raise a genuine dispute with a license application. 55 In its appeal, Sierra Club does not directly rebut either prong of the Boards reasoning but merely reasserts its belief that since brine was found in the area, further investigation is 50 Holtec Int'l, LBP-20-6, 91 NRC at __ (slip op. at 4).

51 Sierra Club's Petition to Intervene at 62-63; Holtec Int'l, LBP-19-4, 89 NRC at 405-07.

52 Holtec Int'l, LBP-20-6, 91 NRC at __ (slip op. at 6-7); 10 C.F.R. § 2.309(f)(1)(v)-(vi).

53 See Holtec Int'l, LBP-20-6, 91 NRC at __ (slip op. at 6) (finding the Rice Declaration relies solely on a 2007 Eddy Lea Siting Study and noting that Environmental Report, in two locations, identifies the location of the brine and acknowledges its presence).

54 Id. at __ (slip op. at 6-7).

55 See id. at __ (slip op. at 7) (citing PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2), LBP-07-4, 65 NRC 281, 324 (2007)).

11 warranted. 56 However, Sierra Club has not identified any error. As discussed above, the Board found that the proposed contention and declaration failed to acknowledge the relevant statements in the Environmental Report. Sierra Club did not explain why brine movement was likely or even what material difference it would make if it did exist, and the Board correctly determined that simply opining on the potential presence of brine beneath the facility and asking questions on what impacts brine could have on the facility did not present a genuine dispute with the application. 57 If a petitioner believes more detail should be provided in an application, it is the petitioners burden to demonstrate where an application is lacking by clearly articulating its bases and providing specific references to the portions of the application that are in error. 58 Here, as the Board found, Sierra Club has not done so, and on appeal, Sierra Club has not shown any error in the Boards rationale. Therefore, the Commission should affirm the Boards decision that Contention 16 was inadmissible.

3. Contention 17 (Fractured Rock)

In Contention 17, Sierra Club argued that the application did not discuss the presence and implications of fractured rock beneath the Holtec site, claiming that the fractures could allow leaks from the facility to enter groundwater or for brine to corrode containers. 59 On remand, the Board found the contention inadmissible both because it did not provide sufficient factual support and did not demonstrate a genuine dispute with the application. 60 The Board 56 Sierra Club Appeal at 10.

57 See Turkey Point, CLI-17-12, 86 NRC at 226 (finding generalized speculation by an expert insufficient to support a proposed contention). And if the contention were understood as attempting to raise a safety rather than environmental concern, Sierra Club likewise included no explanation as to how the potential presence of brine could affect any analysis or conclusion from the Safety Analysis Report.

58 Luminant Generation Co. (Comanche Peak Nuclear Power Plant, Units 3 and 4), CLI-11-9, 74 NRC 233, 243-44 (2011).

59 Sierra Club's Petition to Intervene at 63-65; Holtec Int'l, LBP-19-4, 89 NRC at 407-08.

60 Holtec Int'l, LBP-20-6, 91 NRC at __ (slip op. at 7-8).

12 determined that the Environmental Report and Safety Analysis Report, along with two docketed studies, note the presence of fractures beneath the site. 61 The Board observed that although some of these details were acknowledged in Sierra Clubs expert declaration, Sierra Club articulated no actual dispute with these statements by either explaining what was mischaracterized or what potential impacts were not discussed, aside from the asserted potential for canister leaks that the Board (and Commission) previously found inadmissible. 62 On appeal, Sierra Club claims that the Board erred because the [Environmental Report]

and [Safety Analysis Report] do not discuss the nature and extent of the fractures. 63 However, as the Board recognized, given the lack of dispute about the potential presence of fractures, Sierra Club failed to explain why any further discussion about the nature and extent of the fractures was required or why further analysis would plausibly affect the applicants analysis of the associated environmental impacts or safety conclusions. 64 Additionally, the contention as originally pled claims that the application documents do not discuss the presence and implications of fractured rock beneath the Holtec site. 65 On appeal, Sierra Club makes the conclusory assertion that the applications discussion is insufficient, but it has not identified any statements in the petition that were overlooked by the Board and that would demonstrate a material dispute with Holtecs discussion in its application of fractured rock. 66 61 Id. at __ (slip op. at 7-8).

62 Id. at __ (slip op. at 8).

63 Sierra Club Appeal at 11.

64 Id.; see Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC 202, 208 (2010) (noting that [a]n environmental impact statement is not intended to be a research document) (citations omitted).

65 Sierra Club's Petition to Intervene at 63. Additionally, while in its original contention Sierra Club asserted that both the Environmental Report and the Safety Analysis Report are deficient, Sierra Club did not explain how its stated concerns could affect the safety of the facility, since the only concerns raised in the petition and declaration are that fractures could rapidly convey contaminants to underlying groundwater.

66 Sierra Club Appeal at 10-11. Beyond Sierra Clubs unsupported implication that more site characterization regarding fractures is required, the sole issue raised in the original contention and associated declaration is that fractures are a potential pathway for contaminants to migrate to

13 As a result, because Sierra Club has not shown an error in the Boards findings, the Commission should affirm the Boards determination that the contention is inadmissible.

4. Contention 19 (Hydraulic Conductivity)

Contention 19 concerned two sets of packer tests that Sierra Club claims were not conducted properly. 67 On remand, the Board determined the proposed contention was inadmissible because Sierra Club did not provide adequate facts to support its claim and did not demonstrate a genuine dispute with the application, finding that the claims in Mr. Rices declaration constituted mere speculation that acceptable procedures had not been followed. 68 In its appeal, Sierra Club disputes the Boards finding, claiming that Mr. Rices declaration controverted the information that was available from Holtec and that the Board has placed an unjustified burden on Sierra Club. 69 The Commission should affirm the Boards conclusion, as the Board correctly concluded that Sierra Club failed to provide adequate factual support and to demonstrate a genuine dispute with the application. As the Board found, speculation, even by an expert, is insufficient to support a contention. 70 Sierra Club may wish for more information to be included in the application. Here, however, Sierra Club failed to identify any requirement for the application to underlying groundwater. Sierra Clubs Petition to Intervene at 65. The Board specifically acknowledged this argument in its decision, noting that it had previously found (and the Commission affirmed) that Sierra Clubs claims about leaks from the proposed facility are inadmissible. See Holtec Int'l, LBP-20-6, 91 NRC at __ (slip op. at 8); Holtec Int'l, CLI-20-4, 91 NRC at __ (slip op. at 25-26).

67 Sierra Club's Petition to Intervene at 66-67; Holtec Int'l, LBP-19-4, 89 NRC at 410-11.

68 Holtec Int'l, LBP-20-6, 91 NRC at __ (slip op. at 8-9).

69 Sierra Club Appeal at 12.

70 Holtec Int'l, LBP-20-6, 91 NRC at __ (slip op. at 9); see USEC Inc. (American Centrifuge Plant),

CLI-06-10, 63 NRC 451, 472 (2006); Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203-04 (2003).

14 describe the packer tests and procedures to its desired level of detail, much less any basis to infer from the absence of a more detailed discussion that the tests were improperly performed. 71 Further, even assuming Sierra Club were correct that the tests in question deviated from the procedures in the referenced Field Manual, Sierra Club does not explain why these potential deviations would have any effect on the ultimate determination of the environmental impacts. 72 Both the petition and the Rice Declaration characterize the packer test methods as recommendations, and the Rice Declaration itself further emphasizes that even when done properly, the values obtained [from the packer tests] are only semi-quantitativewithin an order of magnitude of the actual value. 73 Because Sierra Club did not explain how the asserted departures would ultimately have significance for any analysis or conclusion in the Environmental Report, Sierra Club has not demonstrated an error in the Boards finding that the contention does not identify a material dispute with the application. Consequently, the Commission should affirm the Boards determination that the contention is inadmissible.

B. The Commission should affirm the Boards finding that Sierra Club Contention 30 was inadmissible In proposed Contention 30, Sierra Club asserted deficiencies in the Environmental Report based on a report published by the Nuclear Waste Technical Review Board (NWTRB). 74 The report discussed technical and integration issues that the Department of Energy will need to address in order to conduct nationwide transportation of spent nuclear fuel and high level waste 71 Contentions based on the presumption that quality assurance programs will not be followed are inadmissible, absent additional facts. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 138-39 (2004).

72 Holtec Int'l, CLI-20-4, 91 NRC at __ (slip op. at 28).

73 Sierra Club's Petition to Intervene at 67; Sierra Club Standing Declarations and Expert Declarations in Support of Petition to Intervene, at 31, Declaration of George Rice, at 8-9 (Sept. 13, 2018)

(ML18257A229).

74 Sierra Club's Motion to File a New Late-Filed Contention, at 5 (Oct. 23, 2019) (ML19297D142).

15 to a permanent nuclear waste repository. 75 The Board denied the proposed contention because Sierra Club did not submit a timely motion to reopen the record in accordance with 10 C.F.R.

§ 2.326, did not meet the good cause requirements of 10 C.F.R. § 2.309(c), and did not meet the contention admissibility requirements of 10 C.F.R. § 2.309(f), each of which is an independent ground to deny admission of the contention. 76 In an appeal from a decision denying a petition or a motion to reopen the record, it is the appellants burden to demonstrate an error of law or an abuse of discretion by the Board. 77 As a threshold matter, Sierra Club has not specifically acknowledged or controverted each of these individual bases for denial including, most notably, the Boards specific findings on the 10 C.F.R.

§ 2.309(f) standards. 78 And for those portions of the decision that Sierra Club did challenge, it has not demonstrated an error by the Board. Accordingly, the Commission should affirm the Boards dismissal of Contention 30.

1. The Board correctly determined Sierra Clubs motion to reopen the record was untimely and that the original motion for a new contention did not satisfy the reopening standards The Board found that Sierra Club was not timely in filing its motion to reopen the record.

On appeal, Sierra Club claims that the Board erred by not interpreting the Commissions decision as sanctioning Sierra Clubs subsequent motion to reopen the record. However, the 75 Attachment to Sierra Club's Motion to File a New Late-Filed Contention and Contention 30 - Nuclear Waste Technical Review Board Report, at 2 (Sept. 30, 2019) (ML19297D146) (In this report, the Board has focused on identifying and evaluating the full range of technical and integration issues that DOE will need to address as it evaluates options for a transportation program.).

76 Holtec Int'l, LBP-20-6, 91 NRC at __ (slip op. at 10-11).

77 See Millstone, CLI-08-17, 68 NRC at 234; DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2),

CLI-17-7, 85 NRC 111, 115 (2017).

78 Sierra Club Appeal at 12-14.

16 plain language of the Commissions decision contradicts Sierra Clubs premise, as the Commission directed the Board to determine whether the reopening standards are met. 79 As the Staff noted in its answer to Sierra Clubs motion to reopen the record, Sierra Club conflated the timeliness standard in 10 C.F.R. § 2.309(c) with the timeliness requirement for reopening the record in 10 C.F.R. § 2.326, two separate and independent requirements, both of which Sierra Club was obligated to meet when it filed the new contention. 80 And while now, on appeal, Sierra Club attempts to explain why it did not believe it was necessary to address the reopening standards initially, it fails to demonstrate that its original contention provided the necessary information in the required form of an affidavit. 81

2. Sierra Club has not demonstrated that the Board erred in its findings on good cause and admissibility Even if the Board had found the motion to reopen the record was timely, it additionally determined the contention would not have met the good cause and contention admissibility requirements of 10 C.F.R. § 2.309(c) and (f)(1). Sierra Club has failed to show error in either conclusion. 82 Fundamentally, Sierra Club argues that the report by the NWTRB represents new information, and that the Board interpreted the good cause standard for new and amended contentions under 10 C.F.R. § 2.309(c) in an overly restrictive manner. Neither assertion demonstrates Board error.

79 Holtec Int'l, CLI-20-4, 91 NRC at __ (slip op. at 32); NRC Staff Answer in Opposition to Sierra Club's Motion to Reopen the Record, at 4 (May 13, 2020) (ML20134H962). The motion before the Commission at the time was titled Sierra Clubs Motion to File a New Late-Filed Contention.

80 NRC Staff Answer in Opposition to Sierra Club's Motion to Reopen the Record at 5-6.

81 Holtec Int'l, LBP-20-6, 91 NRC at __ (slip op. at 12); see also Yankee Atomic, CLI-96-7, 43 NRC at 260 (finding arguments first raised on appeal inadmissible).

82 Holtec Int'l, LBP-20-6, 91 NRC at __ (slip op. at 12).

17 (a) Sierra Club did not demonstrate good cause for its new contention As the Commission has repeatedly made clear, it is paramount for litigants to adhere to [NRC] pleading standards and for the Board to enforce those standards. . . . 83 Thus, while the contention admissibility standards are strict, they serve an important purpose by focusing litigation on concrete issues and were intentionally designed to support an early NRC determination whether there are issues that are appropriate for and susceptible to NRC resolution for an action. 84 On appeal, Sierra Club offers only a cursory reiteration of its original claim that the NWTRB report represented new information that was previously unavailable. But as the Board found, the information relied upon in the report was available publicly long before the report was issued. 85 The Commission has made clear that a new compilation of previously available information is not, by itself, enough to meet the requirement that information be new under 10 C.F.R. § 2.309(c). 86 And while Sierra Club claims that it is difficult to formulate and discover relevant information at the outset of the proceeding, that is an insufficient reason for failure to meet the timeliness requirement.

As a result, independent of whether the motion to reopen the record was timely filed, the Board did not err in finding that Sierra Club failed to meet the good cause requirements in 10 C.F.R. § 2.309(c).

83 La. Energy Servs., L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004). See also Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419, 428-29 (2003)

(emphasizing the importance of discipline and preparedness on the part of petitioners in order to resolve issues in a timely manner).

84 Changes to Adjudicatory Process, 69 Fed. Reg. 2181, 2202 (Jan. 14, 2004).

85 Holtec Int'l, LBP-20-6, 91 NRC at __ (slip op. at 14).

86 See N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481, 495-96 (2010) (reversing admission of an untimely contention based on publication of a safety evaluation report because it would permit delays for contentions until a document becomes available that collects, summarizes and places into context the facts supporting that contention.).

18 (b) Sierra Club failed to show error in the Boards contention admissibility findings.

On appeal, Sierra Club has made no specific challenge to the Boards determination that proposed Contention 30 did not satisfy the requirements of 10 C.F.R. § 2.309(f)(1)(iii), (v),

and (vi). Instead, it offers only a general claim that the Board improperly plac[ed] the burden on Sierra Club [to] present evidence. 87 This failure to address the Boards contention admissibility findings is dispositive, because statement[s] of general disagreement with a decisions result is not sufficient to show reversible error. 88 Even assuming that Sierra Club intended these vague and generalized challenges to encompass each of the Boards specific findings on contention admissibility, Sierra Club does not accurately characterize the requirements in 10 C.F.R. § 2.309(f). Sierra Club recites general principles from various NRC cases, ostensibly to demonstrate that the Board inspected its claims too closely for the contention admissibility stage of this proceeding. But NRCs contention admissibility requirements are strict by design and are intended to avoid past practice that resulted in protracted paper litigation over ill-defined issues and the resulting development of an unnecessarily large, unfocused evidentiary record. 89 Furthermore, the Commission has repeatedly stated that the Board is the agencys expert for determining fact-specific questions of contention admissibility. 90 Because Sierra Club fails to engage with the Boards reasons for 87 Sierra Club Appeal at 14. In context, it is unclear whether Sierra Club is directing its arguments in Section F of its appeal to Contention 30 or more broadly to its appeal as a whole. For that very reason, these generalized criticisms regarding the burden placed on petitioners are insufficiently specific to articulate an error in the Boards reasoning in LBP-20-6.

88 Turkey Point, CLI-17-12, 86 NRC at 219; see Shaw AREVA MOX Servs., LLC (Mixed Oxide Fuel Fabrication Facility), CLI-09-2, 69 NRC 55, 65 (2009) (characterizing the 10 C.F.R. § 2.309(c) standards as strict and the reopening standards as even stricter).

89 Changes to Adjudicatory Process, 69 Fed. Reg. 2181, 2202 (Jan. 14, 2004); Millstone, CLI-01-24, 54 NRC at 358.

90 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-15-25, 82 NRC 389, 405 (2015); see also Holtec Int'l, CLI-20-4, 91 NRC at __ (slip op. at 3); Va. Elec. & Power Co.

(North Anna Power Station, Unit 3), CLI-12-14, 75 NRC 692, 702 (2012); NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 326-27 (2012) (declining to second-guess the Boards evaluation of factual support for the contention, absent an error of law or abuse of discretion).

19 finding Contention 30 inadmissible, it provides no basis to reverse the Boards factual or legal determinations. 91 Finally, with respect to the specific findings made by the Board, Sierra Club misinterprets the applicability of the NWTRB report to this proceeding. As the Board made clear, the application before the NRC is for an interim storage facility licensed under Part 72. 92 And while an estimate of the environmental impacts of transportation of material to and from the facility was included in the Environmental Report and the now-published Draft Environmental Impact Statement, Sierra Clubs attempts to more broadly challenge the adequacy of the NRCs and the Department of Transportations regulations for transporting spent nuclear fuel are outside the scope of this proceeding, contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(iii). 93 And as the Board identified, the findings of the NWTRB Report do not contradict Holtecs plans and the report most certainly does not support the conclusion that 8,680 MTU could not be moved during the term of the license Holtec is initially requesting. 94 Thus, the Board correctly found that Sierra Clubs claim relies on an inaccurate reading of the NWTRB report, determining that Sierra Club failed to show how the results of a report on the Department of Energys future plans actually contradict Holtecs plans.

91 Sierra Club includes passing reference to holdings from both the United States Supreme Court and the D.C. Circuit Court of Appeals. Neither case has any bearing on a showing of error in the Boards ruling. The passage Sierra Club cites from Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 554 (1978) reflected that the Atomic Energy Commissions contention admissibility standards at the time were within agency discretion. Additionally, the dicta cited in York Committee for a Safe Environment v. NRC, 527 F.2d 812, 815 n.12 (D.C. Cir. 1975) was in relation to a specific burden-shifting scenario with respect to numerical guidelines on an as low as practicable standard.

Neither of these holdings calls into question the NRCs contention admissibility standards, let alone how the Board applied them in this case.

92 Holtec Int'l, LBP-20-6, 91 NRC at __ (slip op. at 17).

93 Id. at __ (slip op. at 18).

94 Id. at __ (slip op. at 16); see also NRC Staff Answer In Opposition To Sierra Club New Contention 30, at 13 (Nov. 18, 2019) (ML19322D107) (discussing the reports Technical Issue #13 which specifically acknowledges that many dry-storage casks and canisters can be transported currently).

20 Accordingly, because Sierra Club has not acknowledged, let alone controverted, the fundamental findings made by the Board on Contention 30, the Commission should affirm the Boards decision.

CONCLUSION Because Sierra Club has not demonstrated that the Boards decision contained an error of law or an abuse of discretion, the Commission should affirm the Boards decision.

/Signed (electronically) by/

Joe Ivy Gillespie III Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9184 E-mail: Joe.Gillespie@nrc.gov Executed in Accord with 10 CFR 2.304(d)

Rebecca Susko Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-0032 E-mail: Rebecca.Susko@nrc.gov Executed in Accord with 10 CFR 2.304(d)

Sara B. Kirkwood Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9187 E-mail: Sara.Kirkwood@nrc.gov Dated in Rockville, MD this 7th day of August 2020

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of HOLTEC INTERNATIONAL Docket No. 72-1051 (HI-STORE Consolidated Interim Storage Facility)

Certificate of Service Pursuant to 10 C.F.R § 2.305, I hereby certify that copies of the foregoing NRC Staffs Answer in Opposition to Sierra Clubs Appeal of LBP-20-6, dated August 7, 2020, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 7th day of August 2020.

/Signed (electronically) by/

Joe Ivy Gillespie III Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9184 E-mail: Joe.Gillespie@nrc.gov Dated in Rockville, MD this 7th day of August 2020