ML20220A662

International'S Brief in Opposition to Sierra Club'S Appeal of LBP-20-06

ML20220A662
Person / Time
Site:	HI-STORE
Issue date:	08/07/2020
From:	Gill W, Leidich A, Perkins K, Silberg J, Walsh T Holtec, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	NRC/OCM
SECY RAS
References
ASLBP 18-958-01-ISFSI-BD01, Holtec International, LBP-20-06, RAS 55755
Download: ML20220A662 (27)

Text

August 7, 2020 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

) Docket No. 72-1051 Holtec International )

)

(HI-STORE Consolidated Interim Storage )

Facility) )

HOLTEC INTERNATIONALS BRIEF IN OPPOSITION TO SIERRA CLUBS APPEAL OF LBP-20-06 William F. Gill Jay E. Silberg Kathryn L. Perkins Timothy J. V. Walsh HOLTEC INTERNATIONAL Anne R. Leidich Krishna P. Singh Technology Campus PILLSBURY WINTHROP SHAW PITTMAN LLP 1 Holtec Boulevard 1200 Seventeenth Street, NW Camden, NJ 08104 Washington, DC 20036 Telephone: (856) 797-0900 Telephone: 202-663-8707 W.Gill@holtec.com Facsimile: 202-663-8007 K.Perkins@holtec.com jay.silberg@pillsburylaw.com timothy.walsh@pillsburylaw.com anne.leidich@pillsburylaw.com Counsel for HOLTEC INTERNATIONAL 4820-4716-0002.v2

TABLE OF CONTENTS Page I. Introduction ................................................................................................................................1 II. Statement of the Case.................................................................................................................2 III. Standard of Review ....................................................................................................................4 IV. Argument ...................................................................................................................................5 A. The Board Correctly Ruled That Sierra Club Contentions 15, 16, 17, and 19 Are Inadmissible. ........................................................................................................................5

1. The Board Correctly Rejected Contention 15 As Inadmissible .....................................6

2. The Board Correctly Rejected Contention 16 As Inadmissible .....................................8

3. The Board Correctly Rejected Contention 17 As Inadmissible .....................................9

4. The Board Correctly Rejected Contention 19 As Inadmissible ...................................10

5. Sierra Club Has Failed to Show the Materiality of Contentions 15, 16, 17, and 19....11 B. The Board Correctly Denied Sierra Clubs Motion to Reopen and Motion to Admit Late-Filed Contention 30............................................................................................................12 V. Conclusion ...............................................................................................................................22 i

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TABLE OF AUTHORITIES Page(s)

Cases AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 N.R.C. 111 (2006)..............................................................................................4 AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station)

CLI-08-28, 68 NRC 658, 673 (2008).................................................................................16, 21 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3),

CLI-09-05, 69 NRC 115, 124 (2009).......................................................................................17 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 N.R.C. 631 (2004)..............................................................................................4 Duke Energy Corporation (Oconee Nuclear Station, Units 1, 2, and 3),

CLI-99-11, 49 NRC 328, 334 (1999).......................................................................................11 Georgia Inst. of Tech. (Georgia Tech Research Reactor, Atlanta, Georgia),

LBP-95-06, 41 NRC 281 (1995)................................................................................................9 Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2),

CLI-92-03, 35 NRC 63 (1992)...................................................................................................4 Holtec International (HI-STORE Consolidated Interim Storage Facility),

CLI-20-04, 91 NRC __ (slip op.) (Apr. 23, 2020) .......................................................2, 3, 5, 12 Holtec International (HI-STORE Consolidated Interim Storage Facility),

LBP-19-04, 89 NRC 353 (2019)................................................................................................2 Holtec International (HI-STORE Consolidated Interim Storage Facility),

LBP-20-06, 91 NRC __, slip op. (June 18, 2020)............................................................ passim Louisiana Energy Servs, L.P. (National Enrichment Facility),

CLI-04-35, 60 N.R.C. 619 (2004)..............................................................................................5 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),

CLI-10-27, 72 NRC 481, 496 (2010).......................................................................................21 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-00-21, 52 N.R.C. 261 (2000)..............................................................................................4 ii 4820-4716-0002.v2

Shaw AREVA MOX Services (Mixed Oxide Fuel Fabrication Facility),

LBP-08-11, 67 NRC 460, 493 (2008)......................................................................................20 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility),

CLI-07-20, 65 N.R.C. 499 (2007)..............................................................................................4 Tenn. Valley Authority (Watts Bar Nuclear Plant, Unit 2),

CLI-15-19, 82 NRC 151, 155-56 (2015) .................................................................................17 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2),

CLI-93-10, 37 N.R.C. 192 (1993)........................................................................................4, 10 USEC, Inc. (American Centrifuge Plant),

CLI-06-10, 63 N.R.C. 451 (2006)..........................................................................................4, 5 USEC Inc. (American Centrifuge Plant),

CLI-06-9, 63 N.R.C. 433 (2006)................................................................................................4 Rules and Regulations Code of Federal Regulations Title 10, Part 72........................................................................................................................19 Title 10, Section 2.309(c)(1) ..............................................................................................13, 20 Title 10, Section 2.309(f)(1) ............................................................................................ passim Title 10, Section 2.311 ...........................................................................................................1, 4 Title 10, Section 2.323 .............................................................................................................19 Title 10, Section 2.326 ..................................................................................................... passim Federal Register 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989)............................................................................9 iii 4820-4716-0002.v2

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

) Docket No. 72-1051 Holtec International )

)

(HI-STORE Consolidated Interim Storage )

Facility) )

HOLTEC INTERNATIONALS BRIEF IN OPPOSITION TO SIERRA CLUBS APPEAL OF LBP-20-06 I. Introduction Pursuant to 10 C.F.R. § 2.311(b), Holtec International (Holtec) submits this brief in opposition to Sierra Clubs Appeal 1 of the Atomic Safety and Licensing Boards (the Boards)

June 18, 2020 Memorandum and Order (Ruling on Remanded Contentions and Denying Motion to Reopen), LBP-20-06, 2 in the Nuclear Regulatory Commission (NRC or Commission) licensing proceeding for Holtecs proposed HI-STORE Consolidated Interim Storage Facility (CISF). On remand from the Commission, the Board properly denied Sierra Club Contentions 15, 16, 17, and 19 and late-filed Contention 30. 3 The Commission should reject Sierra Clubs Appeal because Sierra Club fails to identify any error or abuse of discretion in the Boards ruling.

The Appeal merely repeats claims made in Sierra Clubs earlier pleadings, and lacks substantive explanation or argument as to how the Board erred in determining that none of Sierra Clubs 1

Sierra Clubs Brief in Support of Appeal of Atomic Safety and Licensing Board Decision Denying Admissibility of Contentions in Licensing Proceeding (July 13, 2020) (NRC ADAMS Accession No. ML20195A163)

(Appeal").

2 Holtec International (HI-STORE Consolidated Interim Storage Facility), Memorandum and Order (Ruling on Remanded Contentions and Denying Motion to Reopen), LBP-20-06, 91 NRC __, slip op. (June 18, 2020) (NRC ADAMS Accession No. ML20170A558) (LBP-20-06).

3 LBP-20-06, slip op. at 2.

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remanded contentions is admissible under the standards set forth in 10 C.F.R. § 2.309(f)(1) and that the Sierra Clubs late-filed contention fails to meet the reopening standards of 10 C.F.R.

§ 2.326 and the contentions admissibility standards of 10 C.F.R. § 2.309(f)(1).

II. Statement of the Case The complete factual background and prior proceedings before the Licensing Board and the Commission are set forth in the Licensing Boards decisions in LBP-19-04 4 and LBP-20-06, and the Commissions decision in this proceeding in CLI-20-04. 5 Relevant here, on May 7, 2019, the Licensing Board issued LBP-19-04, which rejected all of the intervention petitions filed in this proceeding, including the intervention petition filed by Sierra Club, and terminated the proceeding. 6 Specific to Sierra Club, the Board ruled that none of Sierra Clubs proposed contentions was admissible. 7 Sierra Club then petitioned the Commission for review of the Licensing Boards decision in LBP-19-04, 8 which both Holtec and the NRC Staff opposed. 9 While Sierra Clubs petition for review was pending before the Commission, Sierra Club on October 23, 2019, filed a motion to admit late-filed Contention 30. 10 Missing from Sierra 4

Holtec International (HI-STORE Consolidated Interim Storage Facility), LBP-19-04, 89 NRC 353 (2019).

5 Holtec International (HI-STORE Consolidated Interim Storage Facility), CLI-20-04, 91 NRC __ (slip op.) (NRC ADAMS Accession No. ML20114E150) (Apr. 23, 2020).

6 Holtec, LBP-19-04, 89 NRC at 358.

7 Holtec, LBP-19-04, 89 NRC at 367.

8 Sierra Clubs Petition for Review of Atomic Safety and Licensing Board Decision Denying Admissibility of Contentions in Licensing Proceeding (NRC ADAMS Accession No. ML19154A129) (June 3, 2019).

9 Holtec Internationals Brief in Opposition to Sierra Clubs Appeal of LBP-19-04 (NRC ADAMS Accession No. ML19179A330) (June 28, 2019); NRC Staffs Answer in Opposition to the Sierra Clubs Appeal of LBP-19-04 (NRC ADAMS Accession No. ML19179A254) (June 28, 2019).

10 Sierra Clubs Motion to File a New Late-Filed Contention (NRC ADAMS Accession No. ML19297D142) (Oct.

23, 2019) (Sierra Club Motion to File Late-Filed Contention 30). Attached to Sierra Clubs Motion is late-filed Contention 30, which consists of eight un-numbered pages (hereinafter, Contention 30). Also included with Sierra Clubs late-filed Contention 30 are three additional documents: (1) the Declaration of Robert Alvarez in Support of Motion of Intervenor Sustainable Energy and Economic Development Coalition for Leave to File Late-Filed Contention (NRC ADAMS Accession No. ML19297D144) (Oct. 23, 2019) (the Alvarez Declaration); (2) the Notice of Filing of Curriculum Vitae of Robert Alvarez and Mr. Alvarezs resume (NRC ADAMS Accession No. ML18321A003) (Nov. 17, 2018) (Alvarez Resume); and (3) a report from the Nuclear Waste Technical 2

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Clubs filing was a motion to reopen the record and any attempt to meet the reopening standards.

Both Holtec and the NRC Staff opposed admission of late-filed Contention 30. 11 On April 23, 2020, the Commission affirmed the Licensing Boards rulings in LBP-19-04, with the exception of reversing and remanding for further consideration four Sierra Club Contentions (15, 16, 17, and 19). 12 In addition, the Commission remanded to the Board for an initial ruling on the admissibility of Sierra Club Contention 30. 13 On May 4, 2020, Sierra Club filed a motion to reopen the record purportedly to allow consideration of its late-filed Contention 30. 14 Both Holtec and the NRC Staff opposed Sierra Clubs Motion to Reopen. 15 On June 18, 2020, the Licensing Board issued LBP-20-06, which again ruled inadmissible Sierra Club Contentions 15, 16, 17, and 19.16 In addition, the Board denied Sierra Clubs motion to reopen the record to consider late-filed Contention 30, and denied Sierra Clubs motion to admit late-filed Contention 30. 17 There being no admitted Sierra Club contention pending, the Board again dismissed Sierra Clubs intervention petition in toto. 18 Review Board (NWTRB) entitled Preparing for Nuclear Waste e Addressed in Preparing for a Nationwide Effort to Transport Spent Nuclear Fuel and High-Level Radioactive Waste (NRC ADAMS Accession No. ML19297A235) (Sept. 2019) (the NWTRB Report).

11 Holtec Internationals Answer Opposing Sierra Clubs Motion to File Late-Filed Contention 30 (NRC ADAMS Accession No. ML19322D106) (Nov. 18, 2019) (Holtec Answer Opposing Contention 30); NRC Staff Answer in Opposition to Sierra Club New Contention 30 (ML19322D107) (Nov. 18, 2019).

12 CLI-20-04, slip op. at 1, 29.

13 CLI-20-04, slip op. at 32. The Commission also remanded to the Board a late-filed contention from another petitioner.

14 Sierra Clubs Motion to Reopen the Record (NRC ADAMS Accession No. ML20125A096) (May 4, 2020) (the Motion to Reopen) at 1-2. Included with the Motion to Reopen is the Affidavit of Wallace L. Taylor (May 4, 2020) (the Taylor Affidavit).

15 Holtec Internationals Answer Opposing Sierra Clubs Motion to Reopen the Record ) (NRC ADAMS Accession No. ML20135H323) (May 14, 2020 (Holtec Answer Opposing Motion to Reopen); NRC Staff Answer in Opposition to Sierra Clubs Motion to Reopen the Record (NRC Accession No. ML20134H962) (May 13, 2020).

16 LBP-20-06, slip op. at 2.

17 Id.

18 Id., slip op. at 22.

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On July 13, 2020, Sierra Club filed its Appeal.

III. Standard of Review 10 C.F.R. § 2.311 provides that a licensing board order wholly denying a petition to intervene or request for hearing is appealable by the requestor/petitioner on the question as to whether the request and/or petition should have been granted. 19 The Commission regularly affirm[s] Board decisions on the admissibility of contentions where the appellant points to no error of law or abuse of discretion. 20 As such, [p]ointing out the errors in the Boards decision is a basic requirement for an appeal, 21 and a mere recitation of an appellants prior positions in a proceeding or a statement of his or her general disagreement with a decisions results is no substitute for a brief that identifies and explains the errors of a Licensing Board in the order below. 22 A petitioner is limited to the contentions as initially filed and may not rectify their deficiencies through an appeal. 23 The Commission has explained that, absent extreme circumstances, [it] will not consider on appeal either new arguments or new evidence supporting the contentions, which the Board never had the opportunity to consider. 24 Such new claims on 19 10 C.F.R. § 2.311(c).

20 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 121 (2006)

(internal quotation marks omitted) (quoting USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 439 n.32 (2006)); see also Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 637 (2004) ([T]he Commission affirms Board rulings on admissibility of contentions if the appellant points to no error of law or abuse of discretion. (quoting Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-21, 52 NRC 261, 265 (2000)).

21 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499, 503 (2007) (regarding appeal of denied intervention petitions under 10 C.F.R.

§ 2.311) (citing AmerGen Energy, CLI-06-24, 64 NRC at 121).

22 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 NRC 192, 198 (1993)

(quoting Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), CLI-92-03, 35 NRC 63, 66 (1992)).

23 See USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006); cf. Louisiana Energy Servs.,

L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004) (In Commission practice, and in litigation practice generally, new arguments may not be raised for the first time in a reply brief.).

24 USEC, CLI-06-10, 63 NRC at 458.

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appeal are prohibited because [a]llowing petitioners to file vague, unsupported contentions, and later on appeal change or add contentions at will would defeat the purpose of [the NRCs]

contention-pleading rules. 25 Moreover, [t]he purpose of an appeal to the Commission is to point out errors made in the Boards decision, not to attempt to cure deficient contentions by presenting arguments and evidence never provided to the Board. 26 IV. Argument The Board again correctly dismissed Sierra Club from this proceeding because none of the remanded Sierra Club contentions is admissible under the standards set forth in 10 C.F.R.

§ 2.309(f)(1). 27 In addition the Board correctly denied Sierra Clubs motion to reopen the record to consider late-filed Contention 30 and motion to admit late-filed Contention 30. 28 Sierra Club has identified no error or abuse of discretion in the Boards rulings. Consequently, the Commission should uphold the Boards rulings here.

A. The Board Correctly Ruled That Sierra Club Contentions 15, 16, 17, and 19 Are Inadmissible.

The Commission remanded Contentions 15, 16, 17, and 19 to the Board for further consideration of their admissibility with respect to the site characterization, [w]ithin the context of the need to determine whether the groundwater concerns would affect the ultimate discussion of environmental impacts. 29 Specifically, the Commission remand requested an evaluation of whether any of the groundwater contentions contained a genuine issue apart from the claims that radioactive leaks from the canisters could contaminate the groundwater. 30 25 Id. (citing Louisiana Energy Servs., L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622-23 (2004)).

26 Id. at 458 (footnote omitted).

27 LBP-20-06, slip op. at 3.

28 Id. at 11.

29 CLI-20-04, slip op. at 29.

30 Id.

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On remand, the Board reconsidered these four contentions and correctly determined that they were all inadmissible. 31 Sierra Club appeals the Boards inadmissibility determinations on remand for Contentions 15, 16, 17, and 19, but fails to identify any error of law or abuse of discretion by the Board. 32 The Commission should affirm all of the Boards rulings and find that Sierra Club Contentions 15, 16, 17, and 19 are inadmissible.

1. The Board Correctly Rejected Contention 15 As Inadmissible.

On remand, the Board correctly determined that Contention 15 is inadmissible for failing to raise a genuine dispute with Holtecs license application in that Sierra Club failed to address the extensive data in Holtecs boring logs and the drilling Work Plan, and otherwise failed to dispute the adequacy of the Radiological Environmental Monitoring Program. 33 More specifically, the Board found that Sierra Club had posited that Holtecs analysis of water at the site is based entirely on the absence of water in a single monitoring well observed in 2007, an allegation which was not correct for the reasons set forth in Holtecs Work Plan. 34 As the Board found, Holtec drilled five groundwater monitoring wells, and as wells were drilled the borings were regularly monitored to determine the appropriate depth. 35 Thus, as reflected in Holtecs Work Plan, the personnel performing the geotechnical exploration were regularly monitoring for groundwater conditions encountered during drilling. The boring logs for Holtecs drilling in 2017 contain extensive data and observations supporting its conclusion concerning the absence of groundwater in the shallow alluvium. 36 The Board ruled that Sierra Club failed to address any of this 31 See LBP-20-06, slip op. at 3-9.

32 See Appeal at 6-12.

33 LBP-20-06, slip op. at 3-6.

34 LBP-20-06, slip op. at 4-5.

35 LBP-20-06, slip op. at 5.

36 LBP-20-06, slip op. at 5 (citing data from several boring logs provided in Geotechnical Data Report, Attachment C).

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information, and thus ruled Contention 15 inadmissible for fail[ing] to raise a genuine dispute with Holtecs license application. 37 On appeal, Sierra Club attempts to remediate the deficiencies in Contention 15 by claiming that Mr. Rice [Sierra Clubs affiant] explained why such a momentary observation of no water is not sufficient to determine that groundwater does not exist. It does not replace a properly sited monitoring well. 38 However, Mr. Rice only made that claim in regards to his belief that a single well (ELEA-1) was only checked for water in 2007, not in regards to the other wells drilled at the site. In addition, Mr. Rice clearly stated in his Comments that other wells installed at the site are completed entirely in the Dockum and [t]hus, they cannot be used to determine whether [any]

groundwater exists at the alluvium/Dockum interface. 39 As correctly determined by the Board, this summary assertion ignores the fact that the borings from these wells were monitored during drilling and that detailed information on the conditions in each well were set forth in the 2017 Work Plan. 40 As such, Sierra Club, and its affiant Mr. Rice, failed to address the specific data and conditions found in each of these wells, instead only making broad and general assertions, and thus failed to raise a genuine dispute with the information provided in the application. 41 To the extent that Sierra Club wishes to revise and clarify those claims now, it is improper on appeal.

Moreover, the Board also correctly rejected Contention 15 for another independent, and uncontroverted, reason. Sierra Club, and Mr. Rice, failed to address the Radiological Environmental Monitoring Program. 42 Under this program, samples of media and effluents, 37 LBP-20-06, slip op. at 5-6.

38 Appeal at 9.

39 See Rice Comments on Proposed Holtec Facility at 3-4 (included with Affidavit document accompanying the Sierra Club Petition to Intervene) (NRC ADAMS Accession No. ML18257A228).

40 LBP-20-06, slip op. at 5.

41 Id.

42 LBP-20-06, slip op. at 4.

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including gases and vapor, air particulates, soil, sediment, fauna, vegetation, surface water, waste waters, and groundwater, are and will continue to be collected and analyzed. To the extent that groundwater does exist, as alleged in Contention 15, the protection of that groundwater has already been considered and addressed in the Application. As such, the Board correctly determined that Sierra Club did not raise a concern that would affect Holtecs ultimate discussion of environmental impacts. 43 Sierra Club did even address this independent basis for rejecting Contention 15 on appeal, let alone identify any error or abuse of discretion.

2. The Board Correctly Rejected Contention 16 As Inadmissible.

On remand, the Board correctly found Contention 16 inadmissible for failing to raise a genuine dispute with the application because Sierra Club merely asked questions as to the potential presence of brine and failed to address the information in the application as to the actual location of brine and the groundwater gradient at the site. 44 In particular, as the Board found, the proposed CISF is located to the west and upgradient of known locations of shallow groundwater brine, and Sierra Club and Mr. Rice failed to provide any factual support for concluding that brine might exist below the proposed facility. 45 Thus, the Board ruled that Sierra Club failed to raise a genuine dispute with the application. 46 On appeal, Sierra Club does not controvert the Boards determination but instead merely asserts that since brine was found in the area, further investigation is warranted. 47 Sierra Club also argues that it is not the intervenors burden to conduct its own groundwater studies somehow 43 Id. at 3-4.

44 Id. at 6-7.

45 LBP-20-06, slip op. at 6-7.

46 LBP-20-06, slip. op. at 7.

47 Appeal at 10.

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in the 60 days an intervenor is given to file its petition to intervene. 48 It is, however, Sierra Clubs burden to read the pertinent portions of the license application, including the Safety Analysis Report and the Environmental Report, state the applicants position and the petitioners opposing view. 49 That would require Sierra Club to acknowledge information in the Application identifying the location of brine near the site, as described in the Environmental Report (ER),50 and the gradient of the site described in the Safety Analysis Report (SAR), 51 and explain why the information in the Application is in dispute. Sierra Club has fulfilled neither of these obligations. It is also Sierra Clubs burden to provide the technical analyses and expert opinion showing why its bases support its contention. 52 Yet, Sierra Club failed to meet its obligations here, causing the Board to appropriately reject Contention 16. The Commission should affirm the Boards ruling.

3. The Board Correctly Rejected Contention 17 As Inadmissible The Board also correctly found Contention 17 inadmissible for failure to raise a genuine dispute with the Application because Sierra Club failed to address the relevant information in the Application as to the presence of fractured rock beneath the site.

There is no dispute that Holtec acknowledged the presence of fractured rock in the Application. As the Board ruled, both the Holtec Environmental Report and Safety Analysis Report acknowledge that the water-bearing zone measured in well ELEA-2 consists of either 48 Id.

49 Final Rule, Rules of Practice for Domestic Licensing Proceedings Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989).

50 Holtec Internationals Environmental Report on the HI-STORE CIS Facility (rev. 6 May 2019) at 3-40 (ADAMS Accession No. ML19163A146) (hereinafter ER).

51 See Holtec Internationals HI-STORE CIS Facility Safety Analysis Report at 81 (Fig. 2.1.6(a)) and 146 (Fig.

2.4.7) (rev. 0F Jan. 2019) (ADAMS Accession No. ML19052A379) (hereinafter SAR).

52 Georgia Inst. of Tech. (Georgia Tech Research Reactor, Atlanta, Georgia), LBP-95-06, 41 NRC 281, 305 (1995) vacated in part and remanded on other grounds, CLI-95-10, 42 NRC 1 (1995), affd in part, CLI-95-12, 42 NRC 111 (1995).

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fractures or tight sandy loams between the depths of 85 and 100 feet. 53 And Sierra Club admits as much in its appeal. 54 Rather than show any error in the Boards ruling, Sierra Club instead attempts to change Contention 17 to require a determinative statement as to the existence and extent of fractured rock at the Holtec site. 55 However, the original Contention 17 claims that

[t]he ER makes no mention at all of the possibility of fractured rock, 56 that sources other than the ER and SAR document the presence of fractured rock in the area of the Holtec site, 57 and that neither reference [the ER or SAR] notes the presence or likely presence of fractured rock. 58 As correctly determined by the Board, these claims are incorrect and, as such, do not raise a genuine dispute with the Application. Sierra Clubs new arguments on appeal are not permissible 59 and fail to demonstrate an error or abuse of discretion in the Boards ruling.

4. The Board Correctly Rejected Contention 19 As Inadmissible The Board also correctly found Contention 19 inadmissible for failure to provide adequate factual support and failure to raise a genuine dispute with the application because the Contention impermissibly relies on speculation to infer that packer tests were improperly performed. Indeed, the Board found that the 2017 geotechnical work was performed under a nuclear quality assurance 53 LBP-20-06, slip op. at 7-8.

54 The only reference in the ER and SAR, and by the ASLB in its remand order, relating to fractured rock is the statement in the ER and SAR that the water-bearing zone in well ELEA-2 consists of either fractures or tight sandy loams. Appeal at 10. Of note, in addition to the ER and SAR, the 2007 Eddy Lea Siting report referenced in the ER provides more detail information on ELEA-2, (Eddy Lea Energy Alliance, ELEA Siting Study, Final Detail Siting Report, Vol.1 (2007) (ADAMS Accession No. ML17310A225)), as does the 2017 Geotechnical Data Report for the other wells, (GEI Consultants, Geotechnical Data Report, HI-STORE CISF Phase 1 Site Characterization (Dec. 2017) (ADAMS Accession No. ML18023A958)).

55 Appeal at 10.

56 Sierra Club Petition to Intervene 64-65.

57 Id. at 64.

58 Id.

59 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 NRC 192, 198 (1993).

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program, and the design of the field and laboratory program was based on NRC guidance. 60 In light of this information, the Board ruled that Mr. Rices mere speculation that acceptable procedures may not have been followed when the packer tests were performed does not raise a genuine dispute with the application. 61 On appeal, Sierra Club contends that it referenced the appropriate pages of the Application and cannot provide more support for its contention without discovery. 62 But Sierra Clubs plea to use discovery to form a litigable contention is not the identification of an error or abuse of discretion in the Boards ruling. In other words, Sierra Club wants to put the cart before the horse.

Sierra Club must proffer an admissible contention before it would be entitled to any discovery.

Adjudicatory hearings (that typically include discovery) are meant to be triggered only by those able to proffer at least some minimal factual and legal foundation in support of their contentions.63 Indeed, the rules are intended to prevent contentions that appear[] to be based on little more than speculation, 64 such as Contention 19. Sierra Club has provided no factual support for its claims and does not challenge the basis on which the Board made its rulings. The Commission should affirm the Boards ruling because Sierra Club has failed to identify any error or abuse of discretion in the Boards ruling.

5. Sierra Club Has Failed to Show the Materiality of Contentions 15, 16, 17, and 19.

On appeal, the Commission stated that [i]t is possible that, to the extent Sierra Clubs groundwater contentions are purely site-characterization disputes, they fail to show a material 60 LBP-20-06, slip op. at 9.

61 LBP-20-06, slip op. at 8-9.

62 Appeal at 11-12.

63 Duke Energy Corporation (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334 (1999).

64 Id.

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dispute with the application because they do not indicate how Sierra Clubs groundwater concerns would affect the ultimate discussion of environmental impacts. 65 That remains an alternative justification for the Commission to reject Contentions 15, 16, 17, and 19. Sierra Club has never explained the materiality of Contentions 15, 16, 17, and 19, aside from concerns about leaks from the CISF, which cannot be adjudicated in this proceeding. 66 This is especially the case in Contention 19, where there is no explanation as to the relevance of the packer tests or the importance of the purported inadequacies in performing those tests. While the Board rejected Contentions 15, 16, 17, and 19 on alternate grounds, we believe that Sierra Club also failed to identify any environmental impacts and has put forth contentions solely for the purpose of site characterization for the sake of site characterization. This is an independent reason to reject Contentions 15, 16, 17, and 19, in addition to the reasons set forth by the Board.

B. The Board Correctly Denied Sierra Clubs Motion to Reopen and Motion to Admit Late-Filed Contention 30.

Sierra Club appeals the Boards rulings denying Sierra Clubs motion to reopen the record and motion to late-file Contention 30. 67 But Sierra Club does not identify any error of law or abuse of discretion by the Board. Accordingly, the Commission should affirm the Boards rulings here.

Sierra Club late-filed Contention 30 asserts the Holtec Environmental Report fails to discuss 18 technical issues identified in a Report by the Nuclear Waste Technical Review Board (NWTRB), and therefore does not adequately evaluate the environmental impacts of transporting nuclear waste to the proposed Holtec CISF. 68 In its Answer, Holtec opposed admitting late-filed Contention 30 for multiple, independent reasons.

65 CLI-20-04, slip op. at 28.

66 CLI-20-04, slip op. at 25-26.

67 Appeal at 12-14.

68 Contention at 1.

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First, Holtec argued that Sierra Club failed to address (let alone meet) the standards for reopening a closed record, which failure was particularly egregious since Sierra Club had been on notice for months that such a showing was required following termination of the proceeding by the Board. 69 In addition, Holtec showed that, even if Sierra Club had addressed the reopening standards, it would not meet them. 70 Contention 30 was untimely and thus failed the first reopening criterion in 10 C.F.R. § 2.326(a)(1) because the information underpinning the contention has been available since the inception of this proceeding (if not years before it), 71 notwithstanding Sierra Clubs claim that the NWTRB Report was the first authoritative discussion from any source of the technical issues discussed in the report. 72 Holtec also demonstrated that all of the technical issues discussed in the NWTRB Report and specifically raised by Sierra Club and its witness Mr. Alvarez had been raised previously in earlier studies and reports, or otherwise could have been raised previously on its own, and in some cases had previously been raised as the subject of an earlier contention considered and ruled inadmissible by the Board. 73 Holtec also showed that Sierra Club had failed to raise an exceptionally grave (let alone significant) environmental issue, and had not demonstrated a likelihood of a materially different outcome in this proceeding. 74 Second, Holtec also demonstrated that Sierra Club failed to meet the standards for a late-filed contention under 10 C.F.R. § 2.309(c)(1) because none of the information in the NWTRB Report is new information or materially different than information previously available, and Sierra 69 Holtec Answer Opposing Contention 30 at 10.

70 Holtec Answer Opposing Contention 30 at 11.

71 Holtec Answer Opposing Contention 30 at 11.

72 Sierra Club Motion to File Late-Filed Contention 30 at 2.

73 Holtec Answer Opposing Contention 30 at 11-21.

74 Holtec Answer Opposing Contention 30 at 21-23.

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Club had provided no excuse (or any good cause) for its failure to timely raise the issues in Contention 30. 75 Third, Holtec showed that late-filed Contention 30 failed to meet the contention admissibility requirements set forth in 10 C.F.R. § 2.309(f)(1). In particular, Contention 30 sought to raise issues that were immaterial to the findings the NRC must make in this proceeding, namely with respect to Sierra Clubs claim that transportation of nuclear waste to the proposed Holtec CIS facility in the 20-year time frame [is] infeasible due to technical issues in the NWTRB Report. 76 As Holtec demonstrated, it does not need to prove, nor does the NRC Staff need to find, that the bounding assumption used in Holtecs Environmental Report (storing 100,000 MTU of spent fuel in 20 years) is feasible because this assumption is not intended to be a precise accounting of what will be stored at the site, but rather what may be stored at the site. 77 In addition, Holtec showed that Contention 30 sought to raise immaterial issues because there is no greater environmental impact to be analyzed in the ER if Holtec stores less than 100,000 MTU of spent fuel. 78 Holtec also demonstrated that Contention 30 failed to raise a genuine dispute on a material issue because the contention barely mentioned the Holtec Environmental Report, or otherwise explained with specificity how the Environmental Report was inadequate. 79 Indeed, as Holtec pointed out, the Declaration from Mr. Alvarez accompanying Contention 30 nowhere pointed to any specific portion of the Holtec license application, which was not surprising because both the caption and the title of the Alvarez Declaration stated that it was prepared not on behalf of Sierra 75 Holtec Answer Opposing Contention 30 at 23.

76 Holtec Answer Opposing Contention 30 at 24 (citing Contention 30 at 1).

77 Holtec Answer Opposing Contention 30 at 24.

78 Holtec Answer Opposing Contention 30 at 24.

79 Holtec Answer Opposing Contention 30 at 24-28.

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Club for the Holtec CISF proceeding, but on behalf of a different intervenor in a different proceeding altogether. 80 Sierra Club did not file a reply to Holtecs or the NRC Staffs answers opposing late-filed Contention 30. But on May 4, 2020, approximately seven months after moving to admit late-filed Contention 30, Sierra Club submitted its Motion to Reopen the Record to admit Contention 30.

Sierra Club based the timing of its Motion to Reopen on the Commissions April 23, 2020 remand of late-filed Contention 30 to the Board, asserting that the Commission clearly considered the reopening of the record a viable issue which the Board must now determine. 81 Included with the Motion to Reopen is the Affidavit from Sierra Clubs counsel, Wallace Taylor, which claims that Sierra Club has met the reopening criteria in 10 C.F.R. § 2.326(a). 82 In opposing the Motion to Reopen, Holtec argued that the Commissions remand in CLI-20-04 did not authorize (implicitly or otherwise) Sierra Clubs belated attempt to address the reopening standards, and that Sierra Clubs Motion to Reopen was unjustifiably late. 83 Indeed, Sierra Club and Mr. Taylor admitted that the NWTRB Report refers to prior information and refers to previous sources, 84 thus conceding that the issues raised in Contention 30 could have been raised earlier. Holtec also argued that Sierra Club did not raise an exceptionally grave issue (as would be required for an untimely motion to reopen) or any significant environmental issue for the same reasons stated seven months earlier in Holtecs Answer Opposing Contention 30Sierra Club failed to raise an issue material to this proceeding and in fact failed to establish that Holtecs 80 Holtec Answer Opposing Contention 30 at 28.

81 Sierra Club Motion to Reopen at 1.

82 Taylor Affidavit at ¶ 2.

83 Holtec Answer Opposing Motion to Reopen at 5-9 (NRC ADAMS Accession No ML20135H323).

84 Sierra Club Motion to Reopen at 2; Taylor Affidavit at ¶ 3.

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Environmental Report was required to address any of the issues raised in the NWTRB report. 85 In addition, Holtec showed that Sierra Club had failed to demonstrate that a materially different result would have been likely had Contention 30 been considered initially. 86 As established by Holtec, Sierra Clubs mere assertion that Contention 30 would have been admitted into the proceeding is not the correct standard to apply under 10 C.F.R. § 2.326(a)(3). 87 Sierra Club was required to show a likelihood that consideration of [its] contention would result in the denial or conditioning of Holtecs license application for the consolidated interim storage facility, which Sierra Club did not even attempt to do. 88 Finally, Holtec also demonstrated that Sierra Clubs Motion to Reopen failed to meet the independent requirements of 10 C.F.R. § 2.326(b), which require that a motion to reopen the record be accompanied by affidavits that specifically address the criteria of 10 C.F.R. § 2.326(a) and explain why each criterion has been met, and which affidavit must be given by competent individuals with knowledge of the facts alleged, or by experts in the disciplines appropriate to the issues raised. 89 Sierra Club submitted an affidavit from its attorney, Mr. Wallace Taylor, who is neither a factual witness nor an expert competent in the issues raised in Contention 30. 90 Nor was the affidavit requirement fulfilled by the declaration submitted by Mr. Alvarez, which does not address the requirements for a motion to reopen in 10 C.F.R. § 2.326(a), nor does it address specific portions of the Holtec Application. 91 85 Holtec Answer Opposing Motion to Reopen at 9-10.

86 Holtec Answer Opposing Motion to Reopen at 11-12.

87 Holtec Answer Opposing Motion to Reopen at 11.

88 Holtec Answer Opposing Motion to Reopen at 11-12 (quoting AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station) CLI-08-28, 68 NRC 658, 673 (2008) (emphasis added)).

89 Holtec Answer Opposing Motion to Reopen at 12.

90 Holtec Answer Opposing Motion to Reopen at 12-13.

91 Holtec Answer Opposing Motion to Reopen at 13.

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In LBP-20-06, the Board correctly rejected late-filed Contention 30 for failing to meet the requirements for reopening a closed record, for late-filed contentions, and for admissible contentions. 92 The Commission should affirm all of the Boards rulings here.

With respect to the requirements for reopening a closed record, the Board ruled that,

[w]hen it proffered Contention 30 in October 2019, Sierra Club did not address, much less satisfy, the requirements for reopening a closed record. Nor did Sierra Club submit the necessary affidavit demonstrating compliance, which alone is sufficient reason not to reopen the record. 93 Agreeing with Holtec and the NRC Staff, the Board correctly rejected Sierra Clubs argument that the Commissions decision in CLI-20-04 invited Sierra Club to submit, in May 2020, its Motion to Reopen, rather than when it submitted late-filed Contention 30 seven months prior. 94 As explained by the Board, and citing controlling Commission precedent, reopening the record is an extraordinary action that places an intentionally heavy burden on parties seeking to reopen the record. 95 The Board ruled that, were it the Commissions intent to permit a seven-months-late motion to reopen, the Commission would have said so explicitly given the controlling precedent that reopening a closed record is an extraordinary action.

Even if Sierra Club were allowed to move to reopen the record at this late date, the Board correctly ruled that it would deny the motion for the same reasons that Sierra Clubs original motion failed to demonstrate good cause for filing out of time. 96 The Board agreed with Holtec and the NRC Staff that the information in the NWTRB Report was either previously available or 92 LBP-20-06, slip op. at 11-18.

93 LBP-20-06, slip op. at 12 (citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-05, 69 NRC 115, 124 (2009)).

94 LBP-20-06, slip op. at 12.

95 LBP-20-06, slip op. at 11-12 (quoting Tenn. Valley Authority (Watts Bar Nuclear Plant, Unit 2), CLI-15-19, 82 NRC 151, 155-56 (2015)).

96 LBP-20-06, slip op. at 13.

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not materially different from information that was previously available because the NWTRB Report does not purport to document any new scientific or engineering research. 97 This is because the NWTRB Report relies on and cites approximately 150 earlier references and explicitly acknowledges that, in identifying the issues that its recommendations address, the NWTRB drew upon these earlier sources. 98 With respect to Sierra Clubs claim that Holtecs Environmental Report is deficient because it does not include the issues regarding transportation of nuclear waste that were presented in the NWTRB Report, the Board correctly ruled that these same issues were first presented at an NWTRB public workshop in 2013. 99 As the Board correctly concluded,

[b]ecause this information was publicly available years ago, Sierra Club fails to show good cause for failing to raise this aspect of Contention 30 earlier. 100 The Board also ruled that the Alvarez Declaration demonstrates that Sierra Club Contention 30 is based on facts and theories that were available long before the contention was filed because the Declaration itself cites information from years prior, including Mr. Alvarezs own work in 2013. 101 For all of these reasons, the Board correctly ruled that Sierra Club fail[ed] to demonstrate that Contention 30 is based on new and materially different information. 102 The Board also correctly ruled that Sierra Club fails to raise a genuine dispute with Holtecs application, as required by 10 C.F.R. § 2.309(f)(1)(vi) because the findings of the NWTRB Report do not contradict Holtecs plans. 103 The Board correctly found that, while the 97 LBP-20-06, slip op. at 13-14.

98 LBP-20-06, slip op. at 14-15.

99 LBP-20-06, slip op. at 14-15.

100 LBP-20-06, slip op. at 15.

101 LBP-20-06, slip op. at 15.

102 LBP-20-06, slip op. at 15.

103 LBP-20-06, slip op. at 16.

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NWTRB report concludes that some technical issues must be resolved before the nations entire inventory of spent nuclear fuel can be transported, the NWTRB Report does not support Sierra Clubs suggestion that 100,000 MTU could not possibly be moved to Holtecs facility within the first 20 years of operation. It 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. 104 The Board also correctly ruled Contention 30 as inadmissible to the extent that it raised any challenge to the safety of NRC-approved transportation packages, which is outside the scope of this 10 C.F.R. Part 72 proceeding, in contravention of 10 C.F.R. §2.309(f)(1)(iii). 105 On Appeal, Sierra Club identifies no error or abuse of discretion by the Board. With respect to the timing of Sierra Clubs Motion to Reopen, Sierra Club merely asserts that, if the Commission felt that Sierra Clubs failure to submit its Motion to Reopen at the time it filed its Motion to File Late-Filed Contention 30 precluded reopening the record, the Commission would have said so, and that Sierra Club it does not understand the timeliness of the motion to reopen to be an issue on remand. 106 Sierra Club nowhere challenges the Boards ruling that allowing Sierra Club to submit a motion to reopen the record seven months after it moved to admit a late-filed contention would run counter to the Commissions position that reopening a closed record is an extraordinary action, 107 and thus does not contemplate such delay.

Indeed, Sierra Clubs seven-month delay in filing its Motion to Reopen simply cannot be reconciled with any of the applicable filing deadlines provided for in the Commissions regulations. In general, motions must be filed within 10 days of the event that prompts the 104 LBP-20-06, slip op. at 16.

105 LBP-20-06, slip op. at 17-18.

106 Appeal at 13.

107 LBP-20-06, slip op. at 12.

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motion, 108 and motions to admit new or amended contentions must be timely filed, which typically means within approximately 30 days of the event that prompts the contention. 109 Absent an exceptionally grave issue 110 (circumstances not alleged by Sierra Club), reopening the record to admit a new contention would hardly be an extraordinary action were a petitioner permitted to move for such reopening seven months after the event that purportedly prompts the reopening, in contravention of the Commissions long-established, and well-understood filing deadlines.

In addition, Sierra Club identifies no error in the Boards denial of the Motion to Reopen for the same reasons that Sierra Clubs original motion failed to demonstrate good cause for filing out of time, i.e., that the information in the NWTRB Report was either previously available or not materially different from information that was previously available. 111 Sierra Club merely asserts on appeal that (1) it is not realistic for a petitioner to be aware of, understand and digest, and have expert support for every bit of information in the vast universe of possible sources of information . . . all [to] be done within 60 days of the initial notice for a request for hearing;112 and (2) the NWTRB Report was new information because it purportedly was the first source to put that information together in a way that informs the issues in this case. 113 Sierra Clubs assertions are contrary to the explicit requirement set forth in 10 C.F.R. § 2.309(c)(1)(i)-(ii) that a late-filed contention be based on information not previously available, and materially different from information previously available. Sierra Clubs assertions are also contrary to long established Commission precedent (cited by Holtec in its answer opposing the motion to file late-108 10 C.F.R. § 2.323.

109 See Shaw AREVA MOX Services (Mixed Oxide Fuel Fabrication Facility), LBP-08-11, 67 NRC 460, 493 (2008).

110 10 C.F.R. § 2.326(a)(1).

111 LBP-20-06, slip op. at 13-14.

112 Appeal at 14.

113 Appeal at 14.

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filed Contention 30) 114 that a document that collects, summarizes, and places into context the facts or previously available information does not make that information new or materially different, and that a petitioner has an iron-clad obligation to examine the publicly available documentary material . . . with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention. 115 The Boards rulings are entirely consistent with this well-established Commission precedent.

Sierra Club also claims on appeal that it would have met the third reopening criteria (demonstrating that a materially different result would be or would have been likely had the newly proffered evidence been considered initially) because Contention 30 would have been admitted for further consideration had it been submitted when the record was open. 116 Sierra Clubs claims here ignores the long-established Commission precedent in Oyster Creek (cited in Holtecs opposition to the Motion to Reopen 117) that a proponent of reopening the record must demonstrate that consideration of its contention would result in the denial or conditioning of a license application. 118 Merely asserting that a contention would likely have been admitted falls far short of such demonstration.

Sierra Clubs claims also fail to show any error in the Boards ruling that Contention 30 was inadmissible. Sierra Club asserts that the Board undertook to decide factual issues, placing the burden on Sierra Club [to] present evidence and rebut all of Holtecs allegations, which Sierra Club alleges is not the proper standard for contention admissibility.119 Sierra Club, however, 114 Holtec Answer Opposing Motion to File Late-Filed Contention 30 at 5-6.

115 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481, 496 (2010) (footnote omitted).

116 Appeal at 13.

117 Holtec Answer Opposing Motion to Reopen at 11-12.

118 Oyster Creek, CLI-08-28, 68 NRC at 673.

119 Appeal at 14.

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nowhere identifies which factual issues the Board improperly decided. Even a cursory review of the Boards decision reveals that the Board did no such thing. The Board ruled that Contention 30 was inadmissible because Sierra Club failed to raise a genuine dispute on a material issue with the Holtec license application because the NWTRB Report did not contradict Holtecs plans to store up to 8,680 MTU during the initial license term, or up to 100,000 MTU within the first 20 years of operation. 120 The Board also ruled Contention 30 inadmissible to the extent that it challenged the safety of NRC-approved transportation packages, which is outside the scope of this proceeding. 121 Sierra Clubs vague and unspecified assertion that the Board improperly decided factual issues does not withstand the barest of scrutiny.

For all of the foregoing reasons, the Commission should deny Sierra Clubs appeal of the Boards correct and well-founded ruling rejecting late-filed Contention 30.

V. Conclusion For the foregoing reasons, Holtec requests that the Commission deny Sierra Clubs Appeal.

Respectfully submitted,

/Signed electronically by Anne R. Leidich/

William F. Gill Jay E. Silberg Kathryn L. Perkins Timothy J. V. Walsh HOLTEC INTERNATIONAL Anne R. Leidich Krishna P. Singh Technology Campus PILLSBURY WINTHROP SHAW PITTMAN LLP 1 Holtec Boulevard 1200 Seventeenth Street, NW Camden, NJ 08104 Washington, DC 20036 Telephone: (856) 797-0900 Telephone: 202-663-8707 W.Gill@holtec.com Facsimile: 202-663-8007 K.Perkins@holtec.com jay.silberg@pillsburylaw.com timothy.walsh@pillsburylaw.com anne.leidich@pillsburylaw.com August 7, 2020 Counsel for HOLTEC INTERNATIONAL 120 LBP-20-06, slip op. at 16.

121 LBP-20-06, slip op. at 17-18.

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August 7, 2020 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

) Docket No. 72-1051 Holtec International )

)

(HI-STORE Consolidated Interim Storage )

Facility) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Brief in Opposition to Sierra Clubs Appeal of LBP-20-06 has been served through the EFiling system on the participants in the above-captioned proceeding this 7th day of August, 2020.

/signed electronically by Anne R. Leidich/

Anne R. Leidich 4820-4716-0002.v2