ML20220A688
| ML20220A688 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 08/07/2020 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| ASLBP 18-958-01-ISFSI-BD01, Holtec International, NRC-1004, RAS 55756 | |
| Download: ML20220A688 (86) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Holtec International Docket Number: 72-1051-ISFSI ASLBP Number: 18-958-01-ISFSI-BD01 Location: teleconference Date: Wednesday, August 5, 2020 Work Order No.: NRC-1004 Pages 387-471 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
387 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + + + + +
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5 + + + + +
6 HEARING 7 -------------------------x 8 In the Matter of: : Docket No 9 HOLTEC INTERNATIONAL : 72-1051-ISFSI 10 : ASLBP No.
11 (HI-STORE Consolidated : 18-958-01-ISFSI-BD01 12 Interim Storage Facility):
13 -------------------------x 14 Wednesday, August 5, 2020 15 16 Teleconference 17 18 BEFORE:
19 PAUL S. RYERSON, Chairman 20 NICHOLAS G. TRIKOUROS, Administrative Judge 21 DR. GARY S. ARNOLD, Administrative Judge 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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388 1 APPEARANCES:
2 3 Counsel for Holtec International 4 Jay Silberg, Esq.
5 Anne Leidich, Esq.
6 Timothy Walsh, Esq.
7 of: Pillsbury Winthrop Shaw Pittman LLP 8 1200 17th Street NW 9 Washington, DC 20036 10 jay.silberg@pillsburylaw.com 11 anne.leidich@pillsburylaw.com 12 timothy.walsh@pillsburylaw.com 13 14 On Behalf of the Nuclear Regulatory Commission 15 Rebecca Susko, Esq.
16 Joseph I. Gillespie, Esq.
17 of: U.S. Nuclear Regulatory Commission 18 Office of the General Counsel 19 Mail Stop O-14A44 20 Washington, DC 20555-0001 21 rebecca.susko@nrc.gov 22 joe.gillespie@nrc.gov 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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389 1 Counsel for Fasken Land and Oil and Permian 2 Basin Land and Royalty Owners 3 Allan Kanner, Esq.
4 Conlee Whiteley, Esq.
5 of: Kanner & Whiteley, LLC 6 701 Camp Street 7 New Orleans, LA 70130 8 a.kanner@kanner-law.com 9 c.whiteley@kanner-law.com 10 11 Monica R. Perales, Esq.
12 of: Fasken Oil and Ranch, Ltd.
13 6101 Holiday Hill Road 14 Midland, TX 79707 15 monicap@forl.com 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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390 1 C O N T E N T S 2 Mr. Kanner for Fasken . . . . . . . . . . . . . 396 3 Mr. Silberg for Holtec . . . . . . . . . . . . 404 4 Ms. Susko for NRC . . . . . . . . . . . . . . . 413 5
6 REBUTTAL 7 Mr. Kanner for Fasken . . . . . . . . . . . . . 418 8 Board questions . . . . . . . . . . . . . . . . 423 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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391 1 P R O C E E D I N G S 2 12:58 p.m.
3 JUDGE RYERSON: So good afternoon. We're 4 here in the matter of Holtec International's 5 application to construct and operate a consolidated 6 interim storage facility for nuclear waste in Lea 7 County, New Mexico.
8 I'm Judge Ryerson. I'm trained as a 9 lawyer, and I chair the particular Atomic Safety 10 Licensing Board that the NRC has assigned to this 11 proceeding. And also on the line and a member of the 12 Board is Judge Trikouros, who is a nuclear engineer.
13 And the third Board member is Judge Arnold. Dr.
14 Arnold is also a nuclear engineer.
15 Before we take formal appearances, I'd 16 like to go over a few ground rules and administrative 17 matters. Most importantly, we would be grateful if 18 everyone would remember to identify yourself before 19 speaking. It will make it easier for all of us, and 20 it will make it much easier for the reporter.
21 This proceeding is being transcribed, and 22 a transcript will be available in a few working days 23 on the NRC website after this proceeding closes today.
24 We've also made available listen-only telephone lines 25 so that interested members of the public and the press NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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392 1 can follow the proceedings in real time if they wish.
2 For anyone who is listening, primarily by 3 way of background, this is an adjudicatory proceeding 4 that was closed on May 7, 2019. Two joint petitioners 5 in the original proceeding, Fasken Land and Minerals 6 Limited and the Permian Basin Land and Royalty Owners, 7 which collectively we're just going to call Fasken, I 8 think, recently moved to reopen the record and for me 9 to file an amended contention that challenges the NRC 10 staff's recent draft environmental impact statement, 11 or DEIS.
12 Both Holtec and the NRC staff have opposed 13 Fasken's motions, and the purpose of today's call is 14 to help the Board to decide Fasken's motions. We have 15 a scheduling order out that indicates how we will 16 proceed, which will be first with opening statement by 17 Fasken, up to 20 minutes. And I should mention to all 18 counsel, perhaps in vain, but you don't really need to 19 use all of your time. We have read your briefs.
20 Second, Holtec will proceed with up to 15 21 minutes, and third, the NRC staff will have up to 10 22 minutes. I think that probably will consume almost an 23 hour2.662037e-4 days <br />0.00639 hours <br />3.80291e-5 weeks <br />8.7515e-6 months <br />, so we'll take a short, very short, break at that 24 point and then begin with the Board's questions. When 25 we get to the questions, we will proceed in a more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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393 1 structured way than we might otherwise normally do.
2 I will begin with questions. Then Judge Trikouros 3 will ask any questions he has. Judge Arnold will ask 4 any questions he has. And we will go through that 5 order, if need be, more than once to ensure everybody 6 has a chance to ask questions that may come up as the 7 proceeding carries on.
8 In general, when a Judge has a question, 9 he will say which participant or participants he wants 10 to answer the question. But we're going to be 11 relatively informal. If you feel it's important to 12 respond to a question that you are not asked, just say 13 so at an appropriate point, and we will probably 14 recognize you.
15 If the questions go on for more than an 16 hour1.851852e-4 days <br />0.00444 hours <br />2.645503e-5 weeks <br />6.088e-6 months <br />, and I expect they will not, we will take another 17 short break.
18 Judge Trikouros, anything to add before we 19 take appearances?
20 JUDGE TRIKOUROS: No. I think you've 21 covered it.
22 JUDGE RYERSON: Thank you.
23 Judge -- Judge Arnold, anything to add?
24 JUDGE ARNOLD: Nothing to add, no.
25 JUDGE RYERSON: Okay. Thank you. All NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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394 1 right -
2 MR. TAYLOR: This is -- this is Tommy 3 Taylor. I need to add that we have two more people in 4 the meeting for Fasken. It's Ron Bianco, our --
5 JUDGE RYERSON: Yeah. We'll go -- we'll 6 go through with appearances, actually, right now.
7 What I'd like to do is take the appearances from all 8 parties before we begin the opening statements, and 9 then we'll -- then we'll go to the opening statements.
10 So, first, who -- who will be taking the 11 lead for -- for Fasken?
12 MR. KANNER: This is Allan Kanner. I'll 13 be taking the lead on the argument. We'll work as a 14 team to make sure we can provide full and complete 15 answers to the Panel.
16 JUDGE RYERSON: Okay. And is -- is 17 everyone who's on a speaking line having interferences 18 in this proceeding?
19 MR. KANNER: I think Tommy wanted to 20 introduce a couple of new people who have come in.
21 (Simultaneous speaking.)
22 MR. KANNER: But here in -- in my office, 23 we have Conlee Whiteley and Annemieke Tennis.
24 JUDGE RYERSON: Hello?
25 MR. KANNER: Yes?
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395 1 JUDGE RYERSON: Hello?
2 MR. KANNER: Can you hear me?
3 JUDGE RYERSON: Now I can. Yes.
4 MR. KANNER: Oh. Okay. So we have Allan 5 Kanner, Conlee Whiteley, and Annemieke Tennis here in 6 New Orleans. And I think Tommy would like to 7 introduce some people who are with him.
8 MR. TAYLOR: Yes. It'd be myself, Monica 9 Perales, Ron Bianco, and Stonnie Pollock.
10 JUDGE RYERSON: Okay. Thank you. Welcome 11 to all of you.
12 And for Holtec, Mr. Silberg, will you be 13 leading the team?
14 MR. SILBERG: Yes, I will. I have with me 15 in Washington Tim Walsh and Anne Leidich. And at 16 Holtec's offices, William Gill, the Vice President and 17 Corporate Counsel; Katherine Perkins, Corporate 18 Counsel and Head of Contracts; Joy Russell, who's the 19 Senior Vice President and Chief Strategy Officer; Ed 20 Mayer, the Program Director for HI-STORE; and Kim 21 Manzione, the licensing manager. And also listening 22 in is John Heaton, a member of the Board and former 23 Chair of the Eddy-Lea Energy Alliance.
24 JUDGE RYERSON: Okay. Thank you. Welcome 25 to all of you.
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396 1 And, finally, we have the NRC staff. Is 2 that Ms. Susko?
3 MS. SUSKO: Yes. Good afternoon. This is 4 Rebecca Susko on behalf of the NRC staff. Also on a 5 separate speaking line is my co-counsel, Joe 6 Gillespie. And we have several members of the 7 technical review team on listen-only lines.
8 JUDGE RYERSON: Hello? At least on my 9 line, you cut out.
10 MS. SUSKO: Hello? Can you hear me?
11 JUDGE RYERSON: Yes, I can.
12 MS. SUSKO: Okay. This is Rebecca Susko 13 on behalf of the NRC staff, and also on a speaking 14 line is my co-counsel, Joe Gillespie. And we have 15 several members of the technical review team on 16 listen-only lines.
17 JUDGE RYERSON: Okay. Thank you and 18 welcome, again, to all of you.
19 Well, let's begin, then, with Fasken, I 20 take it Mr. Kanner. You have up to 20 minutes.
21 MR. KANNER: May I reserve five?
22 JUDGE RYERSON: Yes, you may.
23 MR. KANNER: Thank you. And thank you for 24 hearing us.
25 Fasken believes we've presented admissible NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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397 1 contentions relating to grave and vital deficiencies 2 in the characterization of regional drilling and 3 mineral extraction activities, seismicity, and the 4 potential for subsidence, sinkholes, and karst 5 development that collectively and cumulatively impact 6 the geology and soils as well as the ongoing land-use 7 impacts now and for 40 and possibly 120 years in the 8 future.
9 Petitioner's contention meets the good-10 cause standards as well as reopening standards as they 11 relate to serious and important safety and 12 environmental issues that the NRC must consider in its 13 findings and review of Holtec's application pursuant 14 to both NRC regulations and NEPA regulations, which we 15 discussed in our briefs.
16 I think it's important to start with just 17 the magnitude of this project, which I think 18 distinguishes it from almost any other project you've 19 had to look at in the past. What is being proposed 20 here is that the nation's high-level nuclear waste and 21 spent fuel be shipped from around the country to this 22 piece -- to -- to New Mexico, where it will 23 cumulatively be used to store amounts of nuclear waste 24 greater in excess of even what was previously proposed 25 for the permanent repository at Yucca Mountain. And NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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398 1 then there's going to be a second transporting if --
2 if there ever is a permanent repository.
3 So what's important to note is that we are 4 sitting -- how stable is this area? You have to look 5 at issues like both the size of the project but also 6 the geology. You've got to look at subsidence and 7 sinkholes. We've shown that the -- that Holtec in its 8 ER relied on some older studies with respect to 9 subsidence and sinkholes.
10 New information was provided in the DEIS, 11 both using satellite imagery, which was not a part of 12 the Holtec ER, as well as more recent references, such 13 as Zhang in 2018, about subsidence.
14 I would note that both the State of New 15 Mexico has filed comments to the DEIS -- they did that 16 in December. We didn't learn until the publication of 17 the draft EIS that they basically ignored a lot of the 18 concerns raised by the State with respect to the 19 integrity, the site characterization that occurred, 20 and what that means for the integrity and stability of 21 -- of this process.
22 We also raised in an affidavit from 23 Stonnie Pollock a discussion of abandoned wells. Two 24 things are important. We gave a big -- we did a lot 25 of research and put a lot of wells down on the table, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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399 1 explained where they had been over time. One reason 2 you care about wells, not the only reason, they're a 3 vehicle for transport.
4 Another reason you care about wells is 5 because sinkholes develop in those areas. And that's 6 fairly significant. It also goes to future activities 7 that I'll talk about a little bit later with respect 8 to possible fracking at very shallow levels.
9 But the point is -- so we've also 10 introduced some new evidence about the instability of 11 the site. We also talked about how it's very hard to 12 identify all the abandoned wells just using public 13 record and gave, I thought, a very useful example of 14 that, to give a site in an important location, 50 feet 15 down where we store the nation's hazardous waste, 16 high-level radioactive waste, and there hasn't been a 17 full examination. State of New Mexico gave extensive 18 comments. And just on July 28th, 2020, the Governor 19 of -- wrote to the President of the United States 20 again going through the issues of the -- why this site 21 is geologically unsuitable and why cumulative impacts 22 weren't taken into account.
23 These are -- these are, I think, 24 fundamental issues to be considered. And so there --
25 there's the issue of -- we've updated the information NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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400 1 on subsidence and sinkholes, and we've talked about 2 how abandoned wells can actually turn into sinkholes, 3 which raises the question why they haven't fully 4 characterized that.
5 Second, we've -- there's a lot more 6 information on seismicity. Holtec in the DEIS -- the 7 Holtec DEIS -- I'm sorry -- refers to three 8 earthquakes with magnitude 5.0 or above. The ER talks 9 about two earthquakes. The reality is that four 10 earthquakes with magnitude 5.0 or greater have 11 occurred within 200 miles of the proposed site, 12 including March 2020 earthquake roughly 50 miles away.
13 Significant additionally in the last two 14 months, there have been approximately 20 earthquakes 15 of magnitude 2.5 or greater that have occurred within 16 25 miles of the site. That also is very significant 17 and a disturbing trend because the earthquakes are on 18 a different -- in some cases, different locations on 19 the east versus the west side of the property.
20 That also is new information that's 21 materially significant to -- 40 or 120 years is pretty 22 long-term storage at that location. We also have an 23 issue with the potash mining. We did get information 24 that -- in the DEIS -- that there was a potential 25 subsidence from past and active mining activities, but NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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401 1 that the mining was going to be closed as a practical 2 matter.
3 Interestingly, it ignored the fact that in 4 the ER, they talked about potash and having control of 5 potash and all oil and gas activities in the future.
6 The DEIS does not deal with oil and gas activities, 7 and the omission of that information itself is 8 significant. As was pointed out in the Pollock 9 affidavit, there have been oil and gas at a higher 10 formation. The technology of fracking has evolved 11 dramatically since the '80s, '90s, and currently.
12 There is no control of the mineral rights 13 in this area, and our understanding is that people can 14 still go in and drill. And the land commissioner 15 whose letter, I guess, started this whole thing with 16 us filing our first contention, which is now the 17 amended contention, talked about the fact that she had 18 no information to stop oil and gas activities, which 19 is a powerful economic engine, as well as agriculture, 20 in this part of the state.
21 So that's another area, the potash mining 22 and its past consequences. The oil and gas future 23 operations are totally -- the fact that the staff 24 feels comfortable not having fully buttoned that down 25 is itself troubling. By the way, we have referenced NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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402 1 in our brief the RAIs, you know, the additional 2 requests for additional information that have been 3 unanswered. And we think that they corroborate our 4 concerns.
5 We were told by staff in their brief, oh, 6 that's just safety, has nothing to do with 7 environmental, which -- we believe it's environmental 8 and safety. But to the extent that the staff is now 9 saying, we have concluded that we are not going to 10 consider any of that new information for environmental 11 purposes, is itself a conclusion that warrants 12 additional proceedings.
13 On the mineral resources below the site, 14 there really is very little good information. The 15 Holtec ER at -- talks about -- they say the -- the 16 resources would be unavailable for exploitation during 17 the life of the project. We are told now that there 18 is going to be some limitations within the 330 acres 19 only and no -- as I said before, no -- no discussion 20 of oil and gas exploration, no -- no meaningful 21 discussion of oil and gas.
22 You know, deciding evaluation factors and 23 site characterization and cumulative impact are issues 24 of great concern at both the NRC level and at the NEPA 25 level because of the severe environmental consequences NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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403 1 that can happen if this -- if there was a -- something 2 bad happened at the site, an earthquake or whatever.
3 In addition, I would say -- let's see.
4 Oh, you had asked us four questions, but I think I've 5 used most of my time. Or do I --
6 JUDGE RYERSON: You have -- let me see.
7 You have -- you have a couple minutes still, plus the 8 five.
9 MR. KANNER: Okay. Let me address -- at 10 least start the process of addressing your four 11 questions. As we said, we rely on -- when you say 12 there are five briefs, Calvert Cliffs is really the 13 most important thing to look at -- case to look at.
14 There are two ways in which you can amend contentions 15 under 10 CFR 2.309(f)(2). If you fail in those 16 regards, you may still -- you may still go forward at 17 2.309(c). And we believe we qualify under -- under 18 all of those.
19 But I -- I wanted to say the one -- one 20 big takeaway from Calvert Cliffs and from these 21 different standards for bringing in late contentions 22 is a commitment by the NRC to public participation.
23 And what's deeply troubling to me in this case is that 24 this monumentally significant decision is -- not a 25 single contention has been accepted.
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404 1 I don't know if that's ever happened 2 before. I've been told that it has never happened 3 before at NRC proceedings. Not a single public 4 contention has come forward. Given our substantial 5 stake in this area, we obviously want to participate, 6 believe we ought to participate.
7 We believe that, as Calvert Cliffs tells 8 us, all we have to show is that the data or 9 conclusions, which are disjunctive, differ 10 significantly from those in the Applicant's licensing 11 documents. I think we've demonstrated that on 12 numerous points and believe that, that warrants our 13 ability to go forward under 2.309(s)(2). There is a 14 good cause -- there's also a showing of good cause, 15 and then there's the 2.309(c) standard.
16 We believe we've been timely with these, 17 primarily because, one, the DEIS came out in March and 18 we timely raised our -- our issues related to that.
19 We provided a lot of new information, and Calvert 20 Cliffs says that after a DEIS comes out, it's 21 perfectly appropriate to raise new contentions.
22 One thing we do know is that the work on 23 this issue has not been done or fully completed. If 24 you look at the RAIs, what's very troubling about the 25 unanswered RAIs, if we just focus on it for a second, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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405 1 is that staff has now allowed Holtec to not answer 2 until November, well after the time for filing 3 comments on the draft environmental impact statement 4 -- or the environmental impact statement.
5 So there's going to be a whole new set of 6 information coming in down the road. It's -- to the 7 extent we could be allowed to intervene on this issue, 8 I don't see it delaying anything. I see it improving 9 the quality of the decisions ultimately being made 10 here, and it's only fair that the Applicant put all of 11 their information, relevant information, now before 12 the public. They haven't done that before. And 13 they're seeking some benefit from it.
14 As an overview, I believe that we would 15 like the record to be reopened. We'd like to have our 16 amended contention heard. And thank you.
17 JUDGE RYERSON: Okay. Thank you, Mr.
18 Kanner. You're saving five minutes for rebuttal.
19 MR. KANNER: Thank you.
20 JUDGE RYERSON: So we turn to Mr. Silberg 21 for Holtec.
22 MR. SILBERG: Thank you, Mr. Chairman.
23 In order for the amended contention to be 24 admitted, Fasken has to demonstrate that it meets the 25 criteria to reopen the record, the standards to admit NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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406 1 a late file contention, and the contention 2 admissibility requirements.
3 Our June 5 answer describes in detail how 4 Fasken has not met any of these requirements, and we 5 note that the burden for satisfying those requirements 6 rests with Fasken and not with the NRC staff, nor with 7 Holtec.
8 Probably the most obvious shortcomings of 9 Fasken's motions center around their untimeliness.
10 But first I'd like to point out some of the other 11 deficiencies with the motions, any one of which 12 warrants the rejection of the contention.
13 Motions to reopen are an extraordinary 14 action that place an intentionally heavy burden on 15 those who seek to reopen the record. Fasken 16 acknowledges that reopening requires a significant 17 safety or environmental issue, but there's nothing in 18 the motion to support that conclusion.
19 Fasken acknowledges that it must 20 demonstrate that a materially different result likely 21 -- would be likely. But, again, nothing in the motion 22 supports such a finding except stating that as a 23 conclusion. Under well-established Commission 24 precedent, Fasken must show the likelihood that 25 consideration of contention would result in the denial NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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407 1 or conditioning of the application.
2 Fasken concedes that the motion has to be 3 accompanied by an expert affidavit, but it isn't. The 4 affidavit must set forth the factual and technical 5 bases for satisfying the reopening criteria, with each 6 criterion being separately addressed and with a 7 specific explanation of why each has been met. And 8 the affidavit must be by a competent individual with 9 knowledge of the facts alleged or by experts in the 10 disciplines appropriate for the issues raised.
11 With no respect to Fasken's attorneys, his 12 affidavit -- Mr. Kanner's affidavit -- provides only 13 legal argument. He is neither a factual witness nor 14 an expert competent in the issues raised.
15 Even if the Board were to overlook 16 Fasken's failure to meet these opening criteria, the 17 amended contention must be rejected because it's 18 untimely under both the standards for a late-filed 19 contention and those for reopening the record. The 20 amended contention purports to meet the time limit --
21 time limits requiring -- requirements by relying on 22 the March 10 publication of the DEIS.
23 Fasken acknowledged that it was filing 24 these contentions based on the DEIS in its April 2nd 25 motion. But its May 11 filing includes virtually NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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408 1 nothing that's based on the DEIS or could not have 2 been filed in September 2018 when contentions were 3 due.
4 Fasken has failed to point to information 5 in the DEIS that is newer material or to information 6 from other sources that was not readily available to 7 Fasken at least since the time that Holtec filed its 8 application.
9 It's first worth recalling that Fasken 10 filed no contentions when contentions were due in 11 September 2018, but only a motion to dismiss the 12 application on jurisdictional grounds. This standard 13 came despite the fact that the NRC regulations of 14 309(f)(2) require that contentions be filed based on 15 the application and on the other documents and 16 information available to the Petitioner at that time.
17 Specifically, for environmental issues, contentions 18 must be based on the Applicant's environmental report.
19 It was not until August 2019, almost a 20 year after the contention deadline and after the Board 21 had terminated the proceeding, that Fasken first 22 attempted to late-file a contention on the 23 application. That was the initial Contention 2.
24 Contention 2 was initially submitted so as 25 to raise issues concerning control over mineral rights NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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409 1 beneath the site, but as the Board's June 18th 2 decision correctly ruled, Contention 2 was untimely 3 because it was based on information that was 4 previously available in Holtec's environmental report 5 and Holtec's responses to the NRC staff's RAIs long 6 before Fasken moved for leave to file the amended 7 contention.
8 The amended contention should be ruled 9 inadmissible for essentially the same reasons as the 10 Board rejected its first Contention 2. Fasken claims 11 that it filed the amendment contention based on 12 information in the DEIS, but the information that 13 Fasken refers to is not new but was available to 14 Fasken well before the DEIS was published.
15 And to the extent that Fasken refers to 16 issues which were ostensibly omitted, like references 17 to seismology, subsidence, and sinkholes, Fasken is 18 simply incorrect. These topics were not omitted.
19 Rather, Fasken failed to address what the application 20 had to say about them, and all of those issues were 21 described in the application.
22 So, too, are Fasken's claims regarding 23 control and ownership of subsurface mineral rights, 24 status of industry operations, geologic 25 characteristics of the region, largely the same claims NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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410 1 that were previously ruled untimely by the Board.
2 These are not issues that show up in the DEIS for the 3 first time. As the Board had noted, these -- these 4 issues are not new.
5 Given the 70 years that Fasken has been 6 drilling wells in the Permian Basin and the 40-plus 7 years it's been drilling in the vicinity of the Holtec 8 site, it's not credible that Fasken hasn't known for 9 years the information which it now says is new and 10 which it learned only from the DEIS.
11 For example, Fasken presents in the 12 amended Pollock declaration a map of well bores in a 13 six-mile radius of the project area but never tells us 14 when it first learned of the information or where --
15 even where that information came from. None of the 16 information is new, and I doubt that any of it is new 17 to Fasken. In fact, it's available to anybody on the 18 Bureau of Land Management's website and from the State 19 of New Mexico and the information cited in Holtec's 20 SAR.
21 In fact, Mr. Pollock refers to wells 22 drilled as far back as 1937. He also refers to, 23 quote, recent technological advances in drilling, as 24 if those just recently happened. A similar example is 25 Fasken's criticism of the six-mile radius used in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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411 1 DEIS to analyze oil and gas operations, suggesting 2 that a larger radius should be used.
3 But Fasken's filings ignore the fact that 4 it's cited to a five-mile radius in its August 1 5 motion and in Mr. Pollock's July 31, 2019, affidavit 6 to explain -- and fails to explain why a six-mile 7 radius is inappropriate. In fact, Mr. Pollock's 8 amended declaration repeatedly uses a six-mile radius.
9 Nor does Fasken explain why it failed to raise that 10 issue, the issue of the appropriate radius, back in 11 September 2018.
12 Another example of Fasken's claimed new 13 information is the DEIS statement that drilling 14 wouldn't occur closer to the surface than 3,050 feet.
15 Well, the environmental report gives the number as 16 5,000 feet. Fasken's claim seems to be that drilling 17 that dips shallower than 3,050 feet is possible and 18 wasn't analyzed.
19 But Fasken could have and should have 20 raised that issue at the outset of this proceeding.
21 If drilling at depths shallower than 3,050 feet at the 22 site was possible, then drilling shallower than 5,000 23 feet was obviously possible. And if that were the 24 case, Fasken should have raised the issue in September 25 2018 based on the information in the environmental NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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412 1 report.
2 Fasken certainly hasn't alleged, let alone 3 established, that the technological advances that made 4 shallower drilling feasible were developed after 5 September 2018. So the fact that the DEIS and ER may 6 use different minimum depths is neither material nor 7 justifies Fasken's late filing. If the claims on 8 minimal drilling depths on which Fasken relies are 9 true now, they were equally true at the outset of the 10 proceeding, and Fasken should have raised them then.
11 Finally, it's obvious that the DEIS does 12 not provide a basis to justify the amended 13 contention's untimely raising of its many safety-14 related issues. This includes Fasken's claims related 15 to the staff's pending RAIs, which all pertain to 16 safety issues.
17 The mere existence of an RAI has been 18 established in Commission law as insufficient 19 justification to support a contention in any event, 20 and Fasken's attempt to raise a contention on the 21 subject of RAIs, and even more for an RAI on safety 22 issues, is also extremely and unjustifiably late.
23 The bottom line is that any of the issues 24 Fasken seeks to raise in the amended contention could 25 have been raised at the outset of the proceeding, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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413 1 Fasken has failed to provide any justification why it 2 did so at this time.
3 For these reasons and the more detailed 4 explanations that we set out in our answer, we 5 respectfully would ask that the Board reject Fasken's 6 motion to reopen and its motion for leave to file the 7 amended Contention 2.
8 Thank you, and we're happy to answer any 9 questions that the Board may have. And I would ask 10 leave of the Board to allow Mr. Walsh and Ms. Leidich 11 to address the issues as appropriate.
12 JUDGE RYERSON: That would be the 13 questions -- Mr. Silberg, you're going to have 14 questions later?
15 MR. SILBERG: Yes, sir.
16 JUDGE RYERSON: Okay. All right. Thank 17 you.
18 So I think we can move on to the NRC 19 staff. Is that Ms. Susko?
20 MS. SUSKO: Yes. Good afternoon. And, 21 may it please the Board, it's the NRC staff's position 22 that Fasken has not satisfied the criteria for 23 reopening the record, that Fasken has not shown good 24 cause for amending its Contention 2, and that amending 25 Contention 2 does not meet the contention NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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414 1 admissibility requirements.
2 Accordingly, the Board should deny both of 3 Fasken's motions. Arguments supporting the staff's 4 position are explained in detail in the staff's 5 pleading, so I'll not repeat those arguments here.
6 But I would like to briefly address two points.
7 First, I'd like to reiterate what triggers 8 the clock to begin running for the purposes of 9 determining whether a contention is timely if it's 10 filed after the initial deadline, and second I'd like 11 to address the exceptionally grave issue exception to 12 the reopening requirements.
13 On the first point of timeliness, in its 14 reply on page 5, Fasken states that the mere 15 publication of the staff DEIS is the triggering event 16 that starts the clock for determining the timeliness 17 of its filing under the good-cause requirements in 10 18 CFR 2.309(c)(1). But the analysis for timeliness 19 under that regulation is more nuanced than that.
20 In -- in this context, timeliness depends 21 on when the information that supports the basis for 22 amended Contention 2 became available. This, 23 therefore, requires an analysis of the specific issues 24 raised in amended Contention 2 for a determination of 25 whether the facts and information supporting those NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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415 1 specific issues was previously available and, if so, 2 when. The point at which that new information became 3 available is the correct triggering event that begins 4 the clock on timeliness for the purposes of 5 2.309(c)(1).
6 At this stage in the proceedings, when the 7 DEIS has been published, it is Fasken's burden to 8 demonstrate that the DEIS actually contains new data 9 or conclusions in order to satisfy the timeliness 10 requirements. Publication of the DEIS on its own does 11 not provide a blanket opportunity to submit new or 12 amended contentions.
13 And here, as outlined in the staff's 14 pleadings, all of the information on which amended 15 Contention 2 is based is information that was 16 available long before the DEIS was published, meaning 17 that Fasken could have raised these issues earlier in 18 the proceeding as a challenge to Holtec's 19 environmental report, and yet Fasken did not do so.
20 That alone is sufficient reason to reject amended 21 Contention 2.
22 Now, turning to the exceptionally grave 23 issue exception, to reopen a closed record, it is the 24 Petitioner's heavy burden to show that its motion to 25 reopen is timely, that it addresses a significant NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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416 1 safety or environmental issue, and that it 2 demonstrates that a materially different result would 3 have been likely.
4 It's the staff's position that Fasken has 5 not satisfied any of those requirements, and it's 6 particularly relevant here that Fasken has not 7 raised a significant environmental issue.
8 Nevertheless, the reopening standards do include an 9 exception for an untimely file motion to reopen if the 10 Petitioner has raised an exceptionally grave issue.
11 However, it's important to note that under 12 Commission case law, specifically CLI-12-21, the 13 exceptionally grave issue exception is a narrow one, 14 and it should be granted only rarely and in truly 15 extraordinary circumstances. In its pleading, Fasken 16 neither acknowledges this exception nor addresses 17 whether amended Contention 2 raises an exceptionally 18 grave issue.
19 And the statements made by Fasken today in 20 its opening remarks are inadequate to meet this heavy 21 burden of showing that extraordinary circumstances do, 22 in fact, exist here. This is so because Fasken's 23 remarks have not demonstrated that the harms 24 identified are tied to any specific environmental 25 concern related to the proposed facility or that such NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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417 1 harms are reasonably likely to occur.
2 Therefore, Fasken hasn't presented 3 sufficient information either in its pleadings or in 4 its remarks today to support finding that it has 5 raised an exceptionally grave issue. Because Fasken 6 has not raised even a significant environmental issue, 7 let alone an exceptionally grave one, Fasken has not 8 satisfied the requirements for reopening the record 9 and does not otherwise meet the narrow exception for 10 exceptionally grave issues.
11 Accordingly, the motion to reopen should 12 also be denied. That concludes my opening remarks, 13 and I look forward to answering any questions from the 14 Board. Thank you.
15 JUDGE RYERSON: Thank you, Ms. Susko.
16 Mr. Kanner, you have five minutes. And I 17 -- I would suggest that it would be appropriate to --
18 to address in your five minutes this -- this question 19 of whether you are, in fact, asserting an 20 exceptionally grave issue exception to timeliness.
21 You did use the word grave. I caught it 22 earlier in your discussion. But I -- I agree with Ms.
23 Susko. I didn't see that argument in any of your 24 pleadings. So it would be helpful if you could 25 include -- include addressing that in your five NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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418 1 minutes.
2 (Pause.)
3 JUDGE RYERSON: Mr. Kanner?
4 MR. KANNER: Oh. Yes, Your Honor. Sorry.
5 I was on mute. I apologize for that.
6 I'm just going to say -- yes, I will get 7 to grave concerns. Before I -- I get to that, I'd 8 like to just say something about staff's comments and 9 -- and, frankly, comments of Holtec.
10 Their theme seems to be, you could have 11 known this before. Taken to its logical extreme, you 12 would have almost nobody -- no contention would be 13 upheld, as -- as has happened in this case except for 14 this last contention.
15 Did we know about fracking near the 16 surface? Yes. Why did we not comment on it? Because 17 Holtec said they had control of all the mineral 18 extraction under their site. So had we come forward 19 and said, oh, but, you know, people can -- can do 20 fracking within hundreds of feet of the surface, they 21 would have said, well, it's not relevant because we 22 have control.
23 But it turns out that, that was a lie.
24 They didn't have control. I mean, we're -- we're 25 dealing with a moving target, here, frankly, from the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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419 1 beginning till now. And we are trying to be 2 responsible and acting when we think it's appropriate.
3 Look. Fasken, we're not repeat players 4 in, you know, the NRC licensing process. We're just 5 trying to do what's right for our -- our family, our 6 company, this industry. You're putting all this 7 nuclear waste on top of the Permian Basin, one of the 8 most important natural resources the United States 9 has. And there's a risk of a possible jeopardy there.
10 And if somebody comes in and says, I want 11 to build a facility there but I control everything, 12 you know, that's going to -- to me, I don't think we 13 should be criticized and say, well, you didn't come 14 forward with your relevant information at that time, 15 when -- when it's obvious that it became relevant when 16 the DEIS specifically showed that there was not going 17 to be -- you know, they -- they just were discussing 18 the potash but not mineral rights. And they moved 19 from three to five -- from 5,000 to 3 feet.
20 Yes, it seems like a very relevant thing 21 to bring up, like why 3,000? Because we've already --
22 at that point, they'd given up the control of 23 minerals. And we timely respond to that. I -- I say 24 that as an example because there are so many in this 25 case. But Counsel for Holtec says, oh, this is all NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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420 1 safety. RAI 2-25, justify the basis for the 5,000-2 foot minimum depth of oil-drilling or fracking 3 activities. That would seem to me to be more than 4 just a safety issue.
5 But turning to the -- the Board has broad 6 discretion because we do value public participation 7 and because not everybody is a repeat player. So, 8 with respect to your questions -- and -- and I'll --
9 I'll get up to the grave issue in a moment -- are we 10 limited to only newly disclosed information? No.
11 Under NRC standards -- in particular, 12 2.309(f)(2) provides that the Petitioner may amend 13 contentions based on an Applicant's environmental 14 report or file new contentions if there are data or 15 conclusions in the NRC draft or final environmental 16 impact statement or assessment that differ 17 significantly from the state or conclusions in the 18 Applicant's documents. And I think we've shown that 19 here on numerous occasions.
20 Calvert Cliffs tells us, quote, this 21 provision tempers the restrictive effect of the 22 Agency's requirement -- tempers the restrictive effect 23 of the Agency's requirement that NEPA contentions be 24 filed based on the ER by allowing petitioners or 25 interveners to challenge significantly different data NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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421 1 or conclusions that appear for the first time in the 2 NRC staff NEPA document.
3 The use of data conclusions means it's 4 sufficient that it's either data or conclusions.
5 Likewise, Petitioner may file a contention to 6 challenge significantly different conclusion in the 7 DEIS even though it is based on the same information 8 or data cited in the Applicant's licensing documents.
9 And as far as I understand, Calvert's 10 still a good law, or you've got the good cause issue, 11 10 CFR 2.309(f)(2), which we believe we -- we also 12 meet for the filed contention requirement. We show 13 that the information is new, or we -- we showed that 14 the information of our amended contention is based on 15 not previously available information. Such 16 information is materially different than information 17 previously available, and the amended or new 18 contention has been submitted in a timely fashion 19 based on the availability of subsequent information at 20 that point out.
21 We -- we timely answered -- filed the 22 amendment within 30 days of the release, and we do 23 believe it's a grave concern. And it runs throughout 24 our -- with respect to the grave concern issue, I --
25 I have already suggested that -- sorry. Let's see.
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422 1 Okay. So, on -- on the grave concern issue, we've 2 outlined the hazard, all the nation's high-level 3 nuclear waste -- I mean, that's a pretty grave matter.
4 The threat could be greater than any threat that --
5 that the Agency would have to deal with.
6 The danger is profound. Since the 7 beginning of time, and including the International 8 Atomic Energy Commission -- has always talked about 9 storage in terms of, you know, put it deep in the 10 ground. No seismic activity. Bury it places like 11 Yucca Mountain, though I understand Yucca Mountain 12 didn't qualify for permanent repository.
13 So the concept -- there are not even 14 regulations for ISPs, though there -- there are for --
15 for certain types of interim storage. But most of 16 those are associated with an existing nuclear power 17 plant.
18 Here, you cannot -- you know, there's got 19 to be some higher standard for making sure that this 20 site, the cumulative impact of this site, will not 21 jeopardize that amount of radiation on top of one of 22 the nation's most precious natural resources, the 23 brown water that the agricultural industry relies upon 24 and the Permian Basin.
25 I mean, if all that oil and gas becomes NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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423 1 radioactive, you know, it would impact national 2 defense. The Department of Defense and Department of 3 Energy recognize Permian Basin is essential for energy 4 security. So, to that extent -- and I believe it's 5 very grave, Your Honor.
6 JUDGE RYERSON: Okay. We'll -- we'll get 7 to questions later. But just -- just so I'm clear 8 what you're saying, you are arguing that amended 9 Contention 2 raises an exceptionally grave issue as 10 that term is used in 10 CFR 2.326(a)(1)? Is that 11 correct?
12 MR. KANNER: Yes, Your Honor.
13 JUDGE RYERSON: Okay. But you -- you 14 acknowledge that you did not make that argument 15 explicitly in your pleadings. Is that also correct?
16 MR. KANNER: That is correct, Your Honor.
17 JUDGE RYERSON: Okay. All right. Well, 18 unless you have something further, why don't we take 19 a five-minute break? And we'll go through the 20 questions. Let's plan to reconvene promptly at 1:50.
21 (Whereupon, the above-entitled matter went 22 off the record at 1:46 p.m. and resumed at 1:50 p.m.)
23 JUDGE RYERSON: This is Judge Ryerson.
24 We're back on the record. I think we have everyone.
25 Let me just suggest, too, at least for me, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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424 1 the discussion was breaking up from time to time. If 2 anyone is rustling papers near a speakerphone, that 3 sometimes cuts you out. So we should try to watch for 4 that.
5 Let me make sure we have our other Board 6 members.
7 Judge Arnold, are you on?
8 JUDGE ARNOLD: I'm on.
9 JUDGE RYERSON: And Judge Trikouros?
10 JUDGE TRIKOUROS: I'm on as well.
11 JUDGE RYERSON: Excellent. Excellent. We 12 have several parties, so I assume that someone will 13 let us know if a -- a necessary lawyer is not on.
14 Let me begin, Mr. Kanner, with some 15 questions for you.
16 MR. WALSH: Judge, excuse me. Judge 17 Ryerson? Pardon for the interruption. This is Tim 18 Walsh from Pillsbury. Mr. Silberg and Ms. Leidich got 19 disconnected, so they are dialing back in, if you 20 could pause for one moment.
21 JUDGE RYERSON: Okay. We'll wait a 22 moment, then. Thank you.
23 MR. WALSH: Sorry about that.
24 MR. SILBERG: Yeah. We've dialed back in.
25 Sorry. We had a technical issue here.
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425 1 MR. WALSH: Okay. We're good to go, then.
2 JUDGE RYERSON: Okay. You're back in?
3 MR. SILBERG: Yes.
4 JUDGE RYERSON: Okay. And I -- I said 5 earlier, just for your benefit as well, at least for 6 me, occasionally the discussion was cutting out. And 7 sometimes that happens when someone rustles papers 8 near a sensitive speakerphone. So that's something to 9 -- to be alert to as we proceed.
10 The -- the first question I have is -- is 11 for Mr. Kanner, and that's actually what your 12 contention says. Your contention is obviously in 13 response to the DEIS, but you set it forth in your 14 words on page 10 of the motion for relieve -- for 15 leave. And what does it say? It says Holtec's 16 application fails to adequately, accurately, 17 completely, and consistently describe the control and 18 so forth.
19 It doesn't say anything about the DEIS.
20 And was that intentional, or was that an oversight?
21 MR. KANNER: It was probably -- we 22 probably should have mentioned the DEIS at that time, 23 but I think our brief is abundantly clear on the 24 issue.
25 JUDGE RYERSON: Oh, yeah, it's clear that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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426 1 you were addressing the DEIS. I was just curious when 2 you formulated the actual contention in response to 3 2.309(f)(1)(I). You didn't mention it. It just 4 struck me, but no, clearly your supporting documents 5 refer to the DEIS.
6 One other thing that confused me is on the 7 very next page, page 11 of your motion, footnote 38, 8 you say inaccurate and misleading statements in the 9 Holtec DIS further violate NRC regulations requiring 10 an applicant provide information to the Commission 11 that is quote, complete and accurate in all material 12 respects, closed quote, citing 10 CFR 72.11(a).
13 I mean obviously the DEIS is a product of 14 the government. It's prepared by the NRC staff, and 15 so I'm a little confused when you say that misleading 16 statements in the DEIS violate NRC regulations 17 requiring an applicant to provide information. Could 18 you clarify what you mean there?
19 MR. KANNER: I agree that 10 CFR 72.11(a) 20 refers to the obligation of the applicant to provide 21 the Commission with information that's complete and 22 accurate in all material respects, not for the 23 Commission, but -- and maybe the reference should have 24 just been to the applicant, but it is the job of the 25 Commission to make sure that it is complete and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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427 1 accurate in all material respects, and I think that's 2 why they issued the RAI that we've been talking about 3 today.
4 JUDGE RYERSON: Okay.
5 MR. KANNER: But yes, it refers to the 6 license applicant, not to ---
7 JUDGE RYERSON: Right.
8 MR. KANNER: -- the NRC.
9 JUDGE RYERSON: Not to the staff, okay.
10 MR. KANNER: Correct.
11 JUDGE RYERSON: Now you ---
12 MR. KANNER: The staff has obligations, 13 obviously, under NRC regulations, but not as it 14 relates to that point.
15 JUDGE RYERSON: Right, but I mean the 16 general way this works is that the purpose -- and this 17 I think is spelled out in Calvert Cliffs. The purpose 18 of the environmental report that the applicant must 19 file is to assist the NRC, and initially the NRC 20 staff, in preparing a document that complies with 21 NEPA, but the document is ultimately the 22 responsibility of the NRC staff. Do you agree with 23 that?
24 MR. KANNER: Yes, the DEIS, yes.
25 JUDGE RYERSON: Okay, now I think you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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428 1 filed both of these motions, what, maybe 11, the 2 motion to reopen and the motion for leave, and that 3 was in advance of our decision. It must have been in 4 June in LBP-20-06, and I daresay perhaps you didn't 5 anticipate that decision.
6 What is your view --- and let's assume for 7 the sake of argument that that decision is correct and 8 the Commission will ultimately perhaps tell us whether 9 it is or not, but for the moment, assuming that's 10 correct, what is the effect of LBP-20-06 on the 11 motions that are in front of us right now?
12 MR. KANNER: Well that was the April 23 13 order, the April 23 --
14 JUDGE RYERSON: No.
15 MR. KANNER: -- 2020?
16 JUDGE RYERSON: No, that's the CLI.
17 That's the Commission decision, I believe.
18 MR. KANNER: Okay.
19 JUDGE RYERSON: Subsequent to the 20 Commission decision, the Commission remanded a few 21 things to us, including your original contention two, 22 which we rejected.
23 MR. KANNER: Yes.
24 JUDGE RYERSON: And so you have filed the 25 pending motions. You filed them prior to our NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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429 1 rejecting the original contention two, and I just 2 wondered if you would like to comment on the 3 significance of any of that on the pending motions?
4 In other words, when you wrote these 5 motions, you had not presumably anticipated that we 6 would reject the original contention two. We had not 7 done that yet, and so --
8 MR. KANNER: Yes.
9 JUDGE RYERSON: -- I'm asking what is your 10 position on the significance of your pending motions 11 in light of LBP-20-06?
12 MR. KANNER: I think the issue today is 13 the amended contention.
14 JUDGE RYERSON: I agree with you on that.
15 (Simultaneous speaking.)
16 JUDGE RYERSON: But you, at one point in 17 your papers, for example, you rely on the Richard 18 letter in support of the original contention two as 19 one of the indicia of new information, and we have 20 ruled in LBP-20-06 that it was not materially new 21 because it repeated information that was in Holtec's 22 application and in its response to an RAI.
23 And I think Holtec has even more recently 24 pointed out some additional information that frankly, 25 we may have been aware of, but didn't recite in that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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430 1 decision to the effect that I believe Mr. Taylor had 2 written to the NRC at one point a year ago with 3 information that was similar to Ms. Richard's letter.
4 So I take it that, at least assuming we 5 are right in our decision, that that is kind of off 6 the table as an indication of new information. Would 7 you agree with that?
8 MR. KANNER: Standing alone as new 9 information, yes, but here, it occurs -- we referenced 10 it in the context of identifying differences between 11 the DEIS and the ER, which Calvert Cliffs says would 12 be appropriate.
13 The fact that it corroborates what we saw 14 in the argument that it was helpful because there, you 15 know, we did mention it, and ultimately, I think that 16 one of the reasons that the staff in the DEIS 17 concluded that they should not just not talk about the 18 oil and gas issues was because of that letter and the 19 high level of uncertainty associated with that.
20 And indeed, they don't even affirmatively 21 state that there is a done deal for the life of this 22 project or what its parameters are with respect to the 23 potash, which is very significant in terms of the 24 overall understanding of the cumulative impact issues 25 as it relates to this site, and especially the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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431 1 engineering significance of all of those issues.
2 I mean what if those storage packs started 3 to collapse because of potash activity that was going 4 on or had gone on in the past?
5 JUDGE RYERSON: Okay, I think I lost the 6 end of that.
7 MR. KANNER: I believe that it's relevant 8 to our claims in the DEIS to talk about it. I mean if 9 -- yeah, had I had your decision, I probably, I might 10 have written that passage a little bit differently, 11 but I still believe, even after your decision, that 12 it's certainly appropriate.
13 And it also underscores something I said 14 in my opening comments, which is, you know, the 15 Governor is now writing to the President talking about 16 the grave situation out there.
17 You know, we finally get the New Mexico 18 comments on the DEIS, which we didn't know at the time 19 in December would be basically ignored by staff in the 20 DEIS. I mean I think what New Mexico has been 21 communicating is significant.
22 JUDGE RYERSON: Yeah, of course. Now the 23 comments on the DEIS, that's a separate process, and 24 clearly the communications between the Governor or the 25 President are not within our chain of command as it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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432 1 were.
2 MR. KANNER: Let me put it this way. I 3 believe you can rule in favor of reopening the record 4 and allowing our contention despite your earlier 5 decision, despite you finding that one letter not to 6 be materially new.
7 (Simultaneous speaking.)
8 JUDGE RYERSON: I think I understand your 9 position. Let me ask you though -- let me get to your 10 affidavit in support of the motion to reopen, and 11 first, this is going to be really, kind of sound like 12 almost a nitpicking comment because no one has raised 13 it but me, but is this a proper affidavit under 14 Louisiana law?
15 You state that you're under oath, but I 16 don't see any indication of anybody giving you an 17 oath. There's no indication that a notary was giving 18 you an oath or anything like that.
19 MR. KANNER: Well actually in Louisiana, 20 if you get a bar card, you're automatically a notary 21 public, but I was relying on the fact that, you know, 22 I'm an officer of the court, whether it's 23 administrative, or civil, or --
24 JUDGE RYERSON: I'm sorry, that cut out.
25 I didn't hear that.
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433 1 MR. KANNER: Yes, in Louisiana, you 2 actually get -- you become a notary -- well it costs 3 another $5. At least it did 40 years ago. I haven't 4 looked at what they charge now -- when you pass your 5 bar exam and get sworn in.
6 But I was relying on the practice of a 7 lawyer in filing anything with a court, which is an 8 affidavit by an attorney of record. It's presumed to 9 be honest. I mean --
10 JUDGE RYERSON: Okay --
11 (Simultaneous speaking.)
12 MR. KANNER: -- the bar for making a false 13 representation to the court, not that I'm suggesting 14 anything like that.
15 JUDGE RYERSON: No, I was wondering 16 whether you were relying on 28 USC 17.46, which this 17 doesn't really seem to comply with, but in any event, 18 no one has raised it.
19 So there were other concerns about the 20 appropriateness of a lawyer's affidavit in these 21 circumstances, but no one challenged the technical 22 sufficiency of your affidavit, but in any event, let 23 me get to --
24 MR. KANNER: We have non-lawyer affidavits 25 also, I mean that we have attached to our brief.
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434 1 JUDGE RYERSON: No, I understand that.
2 I'll get to that. Those are styled declarations, not 3 affidavits, but anyway, let me get to the substantive 4 point.
5 MR. KANNER: Okay.
6 JUDGE RYERSON: You say in your affidavit 7 the information forming the basis of amended 8 contention two was not available prior to the 9 publication of the Holtec DEIS. So that is your flat-10 out statement, that the basis for amended contention 11 two was not available to you until the DEIS came out, 12 and then let me find your pleading.
13 Page 15 of your motion for leave, you say 14 Holtec's application fundamentally misrepresents past, 15 present, and potential for future oil and gas 16 operations in the six-mile region and flat-out ignores 17 operation at any further increments of distance.
18 And I guess I'm asking, are you 19 representing to me, to us, to the NRC, that prior to 20 the DEIS, Fasken was not in a position to make that 21 statement, in other words, based on the environmental 22 report or other aspects of the original application?
23 Fasken knows a little bit about drilling in the 24 Permian Basin, correct?
25 MR. KANNER: They know a lot about NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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435 1 drilling in the Permian Basin.
2 JUDGE RYERSON: They know a lot about it.
3 They've been drilling there, at least collectively, 4 the whole group has been drilling there for 80 years.
5 MR. KANNER: Right, but --
6 JUDGE RYERSON: They've been drilling near 7 this facility for 40 years.
8 MR. KANNER: But what was different with 9 the DEIS is the shift to the six-mile radius and the 10 focus on that, and we then went out and got new 11 information about the locations of all of the wells 12 that we could find, attached that new information 13 which was not publicly available, and we submitted it, 14 as well as with Stonnie Pollock's affidavit to 15 illustrate, based on our own actual experience, that 16 it's even more complicated than that.
17 That is both new information to us that we 18 affirmatively had to seek out that was not publicly 19 available, and we added information because for the 20 first time in the DEIS, Holtec -- the staff was 21 saying, okay, that's our area of concern, so at least 22 we were trying to be responsive to that.
23 So I believe that my affidavit and my 24 statement at page 15 are consistent, especially given 25 that I think my mindset at the time was really sort of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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436 1 Calvert Cliffs, and okay, the DEIS significantly 2 raises new information.
3 You know, from minimal impact to moderate 4 impact was a big change. The drop down to a six-mile 5 radius was a big change, and new information, as I 6 said earlier, sort of the avoidance of oil and gas.
7 Because the ER said everything was under 8 control, so would it have been appropriate to file 9 stuff relative to the ER when they've already 10 represented, presumably under oath as well, that they 11 have it all under control?
12 I think we were attempting to focus on, 13 focus our comments on the lead that the NRC has been 14 giving us, and I think the comments were appropriate.
15 JUDGE RYERSON: Okay, let me ask you about 16 Mr. Pollack's affidavit, and again, I'm going to be a 17 stickler here because it's not called an affidavit.
18 It's called a declaration, which suggests 19 to me that it is purporting to rely on 28 USC 17.46, 20 but there's magical language in that statute that says 21 instead of an affidavit, you can submit a declaration 22 under penalty of perjury. Those are the magic words, 23 and I don't see that in this declaration. Am I 24 correct there is no such statement in this 25 declaration?
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437 1 MR. KANNER: That is correct. The 2 omission, I apologize, would be inadvertent. We 3 probably should have caught that, Your Honor, but if 4 you want it to be re-executed, I'm happy to do that.
5 JUDGE RYERSON: Okay, I don't think --
6 that won't be necessary, but I just was curious about 7 that. Let me again get to more substance. Now Mr.
8 Pollock works for Fasken. He's not an independent 9 consultant. Is that correct?
10 MR. KANNER: Mr. Pollock is a very 11 accomplished senior geologist, but yes, he does work 12 for Fasken, and probably is more knowledgeable about 13 this area than any other human being.
14 JUDGE RYERSON: Okay, well that's sort of 15 my point, that -- I'm looking at his resume as 16 attached to his declaration, and it appears that Mr.
17 Pollock is employed by Fasken as a senior geologist, 18 and he has been for about 17 years, which appears to 19 be, based on his school record, virtually his entire 20 professional career.
21 And I'm not suggesting a bias at all.
22 What I'm suggesting, and tell me if I'm wrong, is that 23 don't we need to ascribe to Fasken all of Mr.
24 Pollock's knowledge, because he has knowledge clearly 25 and he works for Fasken, and has worked for them for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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438 1 17 years? And so if he has information about wells in 2 the Permian Basis, isn't that information we have to 3 ascribe to Fasken?
4 MR. KANNER: I think that you would have 5 to ascribe that information to Fasken, but in this 6 context, we were responding to an ER that says all of 7 the mineral issues were under control. So why would 8 Fasken then say, oh, we have a contention that there 9 is all of these wells everywhere, and here is our 10 analysis?
11 And again, for purposes of the attached 12 map, which is really the essence of this submittal, 13 that was not information that he had. This would be 14 precise. That was information that he purchased for 15 this specific project.
16 So I don't know that you could say he's 17 walking around with all of this knowledge in his head, 18 or the Fasken organization had all of this knowledge 19 in this chart that we've attached.
20 But I would ask, had we submitted the 21 contention that -- had we submitted this as part of a 22 contention when there was just an ER, they would have 23 said what's the point of this?
24 JUDGE RYERSON: All right, does Mr.
25 Pollock's declaration identify anywhere when he NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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439 1 acquired the information that's in the declaration?
2 MR. KANNER: No, my understanding is we 3 asked him to put this together as we were drafting the 4 brief that it's attached to, and that during the 5 drafting period, likely 30 days before or possibly two 6 weeks before is probably -- oh, it says May 11, 2020.
7 I guess it would have been shortly before that.
8 JUDGE RYERSON: Yeah, the date of the 9 declaration is the same as your filing date, I think.
10 MR. KANNER: Yeah, I know that this was 11 something, you know, this was something that I 12 requested one of the lawyers in my office to speak to 13 him about, putting a declaration together about that 14 specific piece of information.
15 JUDGE RYERSON: Okay, so that would have 16 been subsequent to the publication of the DEIS. Is 17 that correct?
18 MR. KANNER: Yeah, that's the prompt, as 19 I've been trying to say. I mean once we got that, we 20 had to sit down, look at the material differences that 21 we thought would be recognized as material 22 differences, and we had to think what information 23 could we add relative to those areas, and in that 24 context --
25 Because now it seemed like oil and gas was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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440 1 up for grabs, or there was a jump ball about control 2 there, which also, I mean you know, that ties back 3 into the land commissioner's letter obviously, but it 4 didn't reiterate it. I think that that would be the 5 time to do it under NRC rules.
6 JUDGE RYERSON: All right, let me simplify 7 some things. At least, I hope it simplifies them, 8 just so I understand your position and give you a 9 couple of hypotheticals.
10 Suppose you, Mr. Kanner, lived one mile 11 from Holtec's proposed facility in New Mexico, and the 12 environmental report comes out and it says the nearest 13 residence is five miles, and maybe you weren't reading 14 the Federal Register that day.
15 I don't know. The reason doesn't matter, 16 but you didn't challenge that, okay? You are an 17 individual who lives a mile away, and you don't 18 challenge the ER where it says nobody lives within 19 five miles.
20 Next, the DEIS comes out, and you still 21 live a mile away. No facts have changed, but the DEIS 22 says, oh, there's no residence within three miles.
23 Does that allow you to challenge that statement when 24 you didn't challenge the five-mile statement?
25 MR. KANNER: Yes, I think it would. It's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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441 1 a material difference between the DEIS and the ER, and 2 I think that to add at that point that you're at one 3 mile would be appropriate.
4 JUDGE RYERSON: Okay, even though it's, 5 from your standpoint, not as wrong as the 6 environmental report was?
7 MR. KANNER: Well it would also -- you 8 know, when you -- I love hypotheticals, by the way, 9 okay? I taught law for 19 years, so I like 10 hypotheticals, but you always have to remember the 11 context.
12 And for example, following up on your 13 question earlier, I mean somebody who is one mile from 14 the facility is that you would probably say, well that 15 comes pretty close to being exceptionally grave, at 16 least for you and your family, depending on the 17 associated risks that are also identified at that 18 point in time.
19 And so you want to put it in context, but 20 I absolutely could see that information being allowed.
21 I think it would -- I would think that the --
22 JUDGE RYERSON: Okay, you're complicating 23 my --
24 (Simultaneous speaking.)
25 MR. KANNER: -- have to be considered.
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442 1 JUDGE RYERSON: You're complicating my 2 hypothetical, which I was trying to strip from some of 3 the related issues. Let me give you a third and last 4 hypothetical.
5 You're still one mile from the facility, 6 but the DEIS says just as the ER did. The DEIS says 7 there's no one living within five miles. Now can you 8 come in then? Isn't that exactly what the Commission 9 says you can't do?
10 MR. KANNER: That's wrong. Remember, the 11 law is facts or conclusions. If they're relying on 12 different facts and reach the same conclusion, or 13 relying on the same facts, different conclusion, I 14 mean I think the case law -- I think Calvert Cliffs 15 addressed that in great detail. So my answer is it 16 would depend.
17 JUDGE RYERSON: Let me turn to Mr. Silberg 18 for a second. What about this facts versus conclusion 19 distinction? Do you agree with that?
20 MR. SILBERG: Well I don't think he's 21 shown either one. Putting that aside, there aren't 22 any conclusions in the DEIS that are different from 23 those in the environmental report, point one.
24 Second, I think the examples you gave are 25 quite apt, and I think by switching over to this so-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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443 1 called exceptionally grave, we're moving away from the 2 question that you're trying to pose, but I don't think 3 that there are any conclusions in the DEIS that are 4 significantly different or different in any material 5 respect from the conclusions in the environmental 6 report.
7 If, for instance, the environmental report 8 said the sky is blue and that's a minimal impact, and 9 the DEIS said the sky is blue and that's a grave 10 impact, that would be a significant difference in the 11 conclusions, and if that were a relevant issue, then, 12 you know, you could use that as the basis for a 13 contention, but there ain't none of those here.
14 JUDGE RYERSON: Okay, all right, thank 15 you, Mr. Silberg. Back to you, Mr. Kanner, you have 16 an Exhibit 2 to the motion for leave that lists 17 various statements that you challenge, and some of 18 those statements are in the DEIS and then some are in 19 the SAR, and are you challenging SAR statements based 20 on information that you couldn't have had available to 21 you when the SAR was initially filed?
22 MR. KANNER: As I said earlier, we are --
23 just one -- before I answer that question, I just 24 wanted to note I think it's significantly different to 25 say a moderate impact instead of a minimal impact of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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444 1 cumulative activity. I don't think that that's small 2 potatoes.
3 It indicates a conclusion that's different 4 than the applicant. It indicates that there are 5 reasons for that different conclusion. I guess we're 6 saying they didn't go far enough in looking at the 7 impacts and characterizing the site conditions.
8 JUDGE RYERSON: Yeah, actually I think the 9 difference is between minimal and small, and then once 10 you get to small, then you get to cumulative and 11 moderate, but I think that's set out in the briefs in 12 any event.
13 MR. KANNER: Yeah, we -- with respect to 14 the attachment in Exhibit 2, it is -- you know, our 15 goal there is to just show -- well we have a number of 16 goals, but one of them is to show the materiality of 17 different issues. Is there something about the SAR 18 references that are different than the ER point that 19 was made?
20 I'm happy to answer a specific question 21 about that, but I believe that Holtec, while it did 22 have a change in story over time and this has been 23 kind of a moving target, this is designed primarily to 24 support our arguments on admissibility.
25 JUDGE RYERSON: Okay, all right, well I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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445 1 think those are all of the questions I have for the 2 moment. Judge Trikouros, do you have some questions?
3 Hello?
4 JUDGE TRIKOUROS: Pardon me, I was muted.
5 Can you hear me now?
6 JUDGE RYERSON: Yes.
7 JUDGE TRIKOUROS: I do have one question.
8 It's a bit long perhaps, but --
9 MR. SILBERG: Excuse me, Your Honor. This 10 is Jay Silberg. I'm having trouble hearing Judge 11 Trikouros. Could you possibly speak up?
12 JUDGE TRIKOUROS: I can try.
13 JUDGE RYERSON: Judge Trikouros, I'm 14 having difficulty too. Are you close to a speaker?
15 JUDGE TRIKOUROS: I am. I am right next 16 to one actually. Can you hear me now?
17 JUDGE RYERSON: You're kind of faint, but 18 I can make you out.
19 JUDGE TRIKOUROS: Is that any better?
20 JUDGE RYERSON: That is better, at least 21 for me.
22 JUDGE TRIKOUROS: Okay, I increased your 23 volume. Yes, I didn't think it would affect mine.
24 Can everybody hear me now?
25 JUDGE RYERSON: Yes.
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446 1 MR. SILBERG: Yes, Your Honor.
2 JUDGE RYERSON: Yes, that's better.
3 JUDGE TRIKOUROS: All right, well I guess 4 it worked. All right, I was saying that I basically 5 had one question that might have a couple of parts, 6 but it's essentially the same question, and it relates 7 to the issue of drilling depth.
8 And in the Fasken motion on I believe it 9 was page 17, it pointed out that there are 10 inconsistencies in, you know, acceptable drilling 11 depths to fundamentally avoid issues of subsidence 12 being one of them, between the SAR, the ER, and the 13 DEIS.
14 I pulled all of those out and looked at 15 them, and indeed, without reading from them right now, 16 it appears that the DEIS does, in fact, identify 3,050 17 feet and below as acceptable, whereas the SAR and the 18 ER both seem to just make the same exact statement.
19 It's one paragraph, and it's exactly the 20 same between the ER and the SAR indicating that with 21 respect to an agreement they have with the Intrepid 22 Mining Company, they will only -- there will be 23 restrictions on drilling beneath the actual site such 24 that the drilling or the extraction activities would 25 occur below 5,000 feet, and they say that that's in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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447 1 order to avoid subsidence.
2 It isn't entirely clear to me that the 3 3,050 feet identified in the DEIS relates to beneath 4 the site. That is not clear. It says project area.
5 Can someone explain if that means beneath the site as 6 well as around the site, or just around the site? How 7 about I'll ask Holtec first and then we can go on from 8 there?
9 MR. SILBERG: Yeah, Anne Leidich will 10 address that.
11 MS. LEIDICH: Yes, I think there were 12 several parts to that question, but I'll try and go 13 through sort of in a series that makes sense to me.
14 The question in terms of where drilling would occur in 15 the area is in regards to the depths of the Salado 16 formation.
17 So the Salado formation beneath the site 18 in that geologic area is where the potash is located, 19 and the oil and gas is beneath the Salado formation.
20 So it's not a question of -- the restriction related 21 to Intrepid Mining is that Intrepid has the rights for 22 the potash, not for oil and gas.
23 So the restriction is related to whether 24 or not anyone is going to be taking potash from the 25 site, and that's an agreement between the parties, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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448 1 that's specifically related to the potash formation, 2 but the question then is at depths below the potash 3 formation, where might oil and gas drilling occur, if 4 that answers your question. So it's a question of 5 geologic formations. There's actually --
6 JUDGE TRIKOUROS: Well it doesn't quite 7 answer my question. The 3,059 feet, does that --
8 could there be drilling beneath the site in the depths 9 from 3,050 and below?
10 MS. LEIDICH: Yes.
11 JUDGE TRIKOUROS: So the conclusion in the 12 DEIS that below 3,050 feet, you're safe with respect 13 to subsidence concerns seems to directly contradict 14 the ER and the SAR, which would state explicitly that 15 5,000 feet would be necessary to avoid subsidence 16 concerns. Am I reading that correctly?
17 MS. LEIDICH: I would say that the -- it's 18 not quite as simple a link between the depths of 19 drilling and subsidence.
20 The ER analysis for subsidence is actually 21 based on a detailed analysis that was performed in the 22 ELEA 2007 report which is referenced in the ER, and 23 that incorporated the historical drilling that 24 occurred in the area.
25 So it wasn't specifically limited to a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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449 1 depth of 5,000 feet or a depth of 3,050. There was an 2 analysis of whether or not subsidence had occurred 3 given the drilling that had previously occurred in 4 that area, and it was a conclusion that subsidence had 5 not occurred and that there was no evidence of 6 subsidence in that area. Again, that's in the ELEA 7 2007 report, and that was referenced in the ER.
8 So the reference to 5,000 in the ER was a 9 reference to where they thought drilling would occur.
10 We are going to change that in the future. It's going 11 to be changed to 3,050, but in terms of subsidence, 12 the ELEA analysis still stands and it's regardless of 13 what that specific number is.
14 JUDGE TRIKOUROS: I understood the 15 subsidence analysis that was done. It was historical, 16 and I believe that the contention on page 17 is 17 looking at future activities, so I took those as two 18 separate items. Is that incorrect?
19 MS. LEIDICH: I don't believe that Fasken 20 addressed the existing subsidence analysis. I believe 21 they simply said that there might be future subsidence 22 without actually addressing or otherwise dealing with 23 the existing subsidence analysis that was referenced 24 in the application.
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450 1 Trikouros, if I might. This is Jay Silberg. Just to 2 note that if drilling was only to be tolerated below 3 5,000 feet under the surface and that was okay, then 4 by definition drilling that's 3,050 feet below the 5 surface ipso facto is going to be okay.
6 And therefore, if Fasken wanted to 7 challenge the depth of drilling, they should have 8 challenged it with the greater number because if that 9 wasn't a risk, then, you know, why didn't they 10 challenge it earlier?
11 JUDGE TRIKOUROS: Well maybe I'm reading 12 this wrong, but it seems to me that if I were to drill 13 at 3,200 feet, that there might be a subsidence issue 14 there, but not if I drilled below 5,000 feet. Is that 15 correct, or am I looking at this upside-down?
16 MS. LEIDICH: Your Honor, if you look at 17 the ELEA report, there is reference to wells that are, 18 at the shallowest, approximately 3,000 feet, and those 19 were historical wells, and they would have been 20 incorporated within the historical subsidence 21 analysis.
22 JUDGE TRIKOUROS: So if the -- hang on.
23 Let me get the reference. I guess it would be the 24 state land office. If the state land office were to 25 issue a lease to someone to do drilling, what depth NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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451 1 would they tell them they have to drill below, or 2 would they not even specify?
3 MS. LEIDICH: Is this for oil and gas?
4 JUDGE TRIKOUROS: For oil and gas or 5 potash, but let's say oil and gas.
6 MS. LEIDICH: Hold on a second. I have a 7 question that I'm trying to -- in that area, oil and 8 gas drilling typically actually happens through the 9 BLM on drill islands, of which there are several in 10 the area, and that's because it's a special potash 11 area and they're trying to make sure that the oil and 12 gas does not interfere with the potash.
13 So I'm not certain and I'm trying to -- we 14 could answer this question in writing potentially, but 15 I'm trying to confirm if the state land office has the 16 ability to even approve an oil and gas well. Yes, all 17 oil and gas islands in that area are on drill islands 18 through BLM.
19 JUDGE TRIKOUROS: Well let me then ask the 20 question with respect to these drill islands. I guess 21 the drill islands are there to coordinate potash and 22 oil and gas interference, right? Is that the idea?
23 MS. LEIDICH: That's correct, because the 24 Salado formation is where the potash is located.
25 JUDGE TRIKOUROS: What would be the drill NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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452 1 depth that would be specified for drilling in one of 2 these drill islands?
3 MS. LEIDICH: It would have to be, at the 4 very least, at a location where oil and gas exist, so 5 not in the Salado formation, and I don't know if we 6 can specifically get a depth for you, but it would 7 have to be at least below the Salado formation.
8 MR. KANNER: Judge, this is Allan Kenner 9 for Fasken. I just want to add that there are these 10 drilling islands, but you drill laterally into this 11 area from those islands.
12 And we submitted an affidavit from Mr.
13 Pollock who said that the historical wells were not 14 even 3,000 feet, indicating that there was 15 petrochemicals at a higher level, and if you want, 16 we're happy to amplify that in writing.
17 But with respect to the potash, what the 18 DEIS also did was ignore the impact of that oil and 19 gas activity on the stability of the potash and what 20 its ecological or ecosystem effects might be.
21 JUDGE TRIKOUROS: The inconsistency that's 22 identified is what I'm trying to understand. The 23 3,050 number appears to be associated with the project 24 area, which I assume would include these islands, the 25 drill islands and the Salado formation, but not the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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453 1 site necessarily itself, whereas the 5,000 feet in 2 both the SAR and the ER seems to be more related to 3 potash and more related to beneath the site.
4 So I was just trying to understand how 5 those relate to each other and how that integrates in 6 with either the Bureau of Land Management or the state 7 land office issuing a lease to someone to do drilling.
8 It's not clear to me what the safe drilling depth is, 9 and I'm just trying to understand what that is.
10 MR. KANNER: This is Allan Kanner. And 11 related to that very legitimate concern is that 12 Holtec, today at least, hasn't really explained what 13 potash rights it, in fact, controls or doesn't 14 control, and what that means today, tomorrow, 40 15 years, 120 years in the future. Thank you.
16 JUDGE TRIKOUROS: Yeah, if you look, for 17 example, at Holtec's answer on, I believe it's page 18 43, it says in the middle of the first full paragraph, 19 it says, however, it says, regardless of the depth 20 that is listed, Fasken has not challenged the ultimate 21 conclusion that drilling will occur at sufficient 22 depth to avoid subsidence issues, and that's very 23 nebulous. I mean it doesn't say what that depth is, 24 and I couldn't find anything that does.
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454 1 Leidich representing Holtec. I think we would say 2 that there has been no evidence of subsidence at this 3 site, even with all of the drilling activity that has 4 occurred for the last 70-plus years, I believe, up to, 5 in fact, since the 1940s as is described in the ELEA 6 report.
7 This includes some drills that were 8 roughly just above 3,000 feet, and we don't -- there 9 is no evidence, and Fasken has not provided any 10 evidence that drilling for oil and gas produces 11 subsidence in this area, and they have not --
12 (Simultaneous speaking.)
13 MS. LEIDICH: -- challenged the existing 14 analysis.
15 MR. KANNER: Allan Kanner for Fasken. I 16 believe that we have challenged some characterization, 17 but I would refer Your Honor to the Holtec DEIS at 3-18 27 entitled subsidence and sinkholes.
19 And it relies on recent studies imploring 20 satellite imagery citing a 2016 article by Kim and SMU 21 Research of 2018, identifying movement of ground 22 surface across approximately 4,000 square miles in 23 west Texas experiencing as much as 40 inches of 24 subsidence over a 2.5 year time frame. So just think 25 about what that would do to a concrete slab, and so NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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455 1 we're relying on data they came up with.
2 They also mentioned the Zhang, Z-H-A-N-G, 3 2018 study about significant subsidence within potash 4 mining areas close to this site. So I think that 5 there is evidence in the record for us to raise these 6 concerns.
7 JUDGE TRIKOUROS: Yes, my issue is not 8 with respect to historical, but more with respect to 9 this, and there seems to be some contradiction and I'm 10 trying to get it resolved.
11 For example, what I just read you with 12 this ---
13 (Telephonic interference.)
14 JUDGE TRIKOUROS: -- which Holtec 15 dismissed the question of 3,050 versus 5,000 by saying 16 what I just read you, that regardless of that 17 controversy, drilling will occur at sufficient depths 18 to avoid subsidence issues, but that is not -- I 19 couldn't understand what that was from the file. All 20 right, well --
21 MS. LEIDICH: Your Honor, this is Anne 22 Leidich again from Holtec. I mean I think we would 23 say that there has been no evidence of subsidence from 24 oil and gas drilling, and the oil and gas drilling 25 would occur below a depth of 3,000 feet or -- we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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456 1 initially stated 5,000 feet, but we intend to revise 2 that in the environmental report.
3 The subsidence that petitioners have 4 referenced, I believe, and I wasn't able to turn to 5 the page of the DEIS quickly enough, but it was from 6 potash mining.
7 Potash mining is very different than oil 8 and gas drilling, and the potash mining in that area 9 at this point, due to the presence of BLM drill 10 islands near this site, actually cannot occur for most 11 of the CISF facility site.
12 JUDGE TRIKOUROS: Okay, all right.
13 MR. KANNER: Your Honor, this is Allan 14 Kanner. I just wanted to -- two things if I might.
15 I think everybody agrees that the subsurface of this 16 area is complex and interconnected, and for them to 17 take one fact and say that that explains everything or 18 they make one change, they would have to really tie it 19 into everything else.
20 But if I might, with the indulgence of the 21 court, I think Mr. Pollock is available and would like 22 to address this issue. He's a geologist knowledgeable 23 in the area.
24 JUDGE RYERSON: Yeah, if he hasn't entered 25 an appearance as counsel, I'm afraid we don't really NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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457 1 allow that.
2 MR. KANNER: Okay, well if there's an 3 opportunity to submit something in writing, we would 4 like that opportunity as well.
5 JUDGE RYERSON: At the end, we've had at 6 least two offers for some further filings. I think it 7 will depend on whether Judge Trikouros wants to pursue 8 his questions or not, so why don't we deal at the very 9 end with what, if any, additional filings will take 10 place?
11 MR. KANNER: Thank you.
12 JUDGE RYERSON: Judge Trikouros, did you 13 have more questions?
14 JUDGE TRIKOUROS: Well I guess a little 15 more follow up. You're saying -- Holtec is saying 16 that basically they will be amending the environmental 17 report or updating this environmental report to change 18 the 5,000 to 3,050? Is that what I heard?
19 MS. LEIDICH: That is correct.
20 JUDGE TRIKOUROS: When is that happening?
21 MS. LEIDICH: I believe it will happen 22 after the RAI responses.
23 JUDGE TRIKOUROS: All right, well I'm 24 going to end my questioning at that point.
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458 1 Trikouros. Judge Arnold?
2 JUDGE ARNOLD: Yes, this is Judge Arnold 3 and I do have questions. My first question is for 4 Fasken. Now on page 5 of your motion to file amended 5 contention, you argue that you fill the requirements 6 for good cause stating, quote, the information forming 7 the basis for amending contention two was not 8 available prior to publication of the Holtec DEIS, and 9 "Holtec DEIS significantly varies in material respects 10 from information contained in Holtec's license 11 application documents."
12 That's a good start. What I looked for 13 and I didn't see anywhere in either of your motions 14 was when -- I was looking to see where you identified 15 new material upon which the contention is based, 16 identified any related old information, identified the 17 difference between the new information and the old 18 information and show how that difference is material, 19 and then finally, show that your contention was based 20 on that difference.
21 Now there's no strict requirement for you 22 to be that explicit in your motions, but we have to 23 see in order to find that the good cause has been 24 satisfied. So could you take me through one example 25 of where you've identified new information, compared NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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459 1 it to the old, shown that the difference was material, 2 and showed that your contention is based upon that 3 difference?
4 MR. KANNER: Yes, I can give you more than 5 one example. Wait, hang on. Let me just find -- I'm 6 just looking in my notes for a second for that 7 example.
8 Okay, so cumulatively, there's the minimal 9 to moderate risk under the cumulative impact I thought 10 was significant, but there are a number of building 11 blocks.
12 So for example, under subsidence and 13 sinkholes, the Holtec ER at 3-19, Section 3.3.3 14 entitled salt dissolution and sinkholes, it relies on 15 a 2007 study.
16 The DEIS at 3-27, the section entitled 17 subsidence and sinkholes relies on different, more 18 current information that I mentioned earlier, the 19 satellite imagery for example, the Kim study, the SMU 20 Research, and the Zhang 2018 study, I think, is one 21 good example.
22 But then we also go into seismicity, you 23 know, in terms of the risk of earthquakes. You have 24 the DEIS at 3-23, that's the Section 3.44 where they 25 talk about the number of earthquakes, and you know, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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460 1 that's different from the ER at 3-17, Section 3.3.2.1 2 on earthquake activity, and as we noted, in the last 3 60 days, there have been 20 more earthquakes in the 4 broader area.
5 The updated information on the potash 6 mining, that's the DEIS at 5-24 versus the Holtec ER 7 at 3-2, and we have updated information or different 8 -- I say updated, different information on mineral 9 resources, and we spoke to that both in the Pollock 10 affidavit, but the DEIS 9-2, Table 9-1, the summary of 11 environmental impact for land use, Holtec's ER at 7-6, 12 Section 8.1.3, unavoidable adverse environmental 13 impacts.
14 I think there are a lot of places that 15 we've identified differences, and I think that those 16 are material issues, and we talk about that in our 17 brief. That is the brief and the reply brief that we 18 ultimately submitted to the panel. Is that responsive 19 to your question, Your Honor?
20 JUDGE ARNOLD: I was looking for one 21 example, and let's go back to the first one, the salt 22 dissolution. How was the new information different, 23 materially different than the previous information?
24 Did it come up with the same conclusion, or did it 25 lead to a different conclusion?
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461 1 MR. KANNER: I think it led to -- well it 2 led to a different conclusion. The problem is more 3 pervasive than acknowledged in the ER, which is 4 probably one of the reasons they went from limited 5 impact to moderate overall impact on the location.
6 JUDGE ARNOLD: But where did they change 7 that impact? Can you cite to that?
8 MR. KANNER: Yeah, yeah, I'm going to just 9 -- I have -- I'm just -- yes, I can cite to it. I 10 just need to flip through my documents, just one 11 second. Hang on. Okay, I'm sorry.
12 Okay, page 12 of our brief, the original 13 brief, Your Honor, we cite to Holtec's ER found 14 minimal potential for any cumulative impact to geology 15 and soils from the proposed Holtec CISF project, and 16 then the cite is footnote 42, the Holtec ER at 5-3.
17 Quote, impacts to geology and soils would 18 be minimal, and it goes on to say that, and then we go 19 back to the text. By contrast, the Holtec DEIS 20 recently concluded that the project would have a small 21 cumulative impact to geology and soils, which when 22 combined with regional activity, would result in 23 overall moderate cumulative impact.
24 This constitutes new and material 25 information that is significantly different. It also NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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462 1 raises a question about whether enough study has been 2 done.
3 JUDGE ARNOLD: Okay, let me ask staff, 4 since this is your DEIS, do you agree with that 5 assessment, that there is a significant difference in 6 the cumulative impact going from minimal to moderate?
7 MS. SUSKO: This is Rebecca Susko. No, 8 Your Honor. I would not agree with that 9 characterization. The ER states that facility would 10 have a minimal impact on geology and soil. And the 11 staff equally determined that the incremental impact 12 to the proposed facility would be small.
13 Fasken hasn't shown how that information 14 and the conclusion differs at all from what was in the 15 ER. The determination of a moderate impact that 16 Fasken has pointed to relates to the overall 17 cumulative impact determination.
18 The ER did not present an overall 19 cumulative impact determination. So to the extent 20 that Fasken believes that this overall cumulative 21 impact determination, which is based on other past, 22 present and reasonably foreseeable future actions 23 surrounding the proposed facility, speaks to that. If 24 Fasken believes that should have been included in the 25 ER, Fasken could have raised that argument at the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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463 1 outset of the proceeding.
2 MR. KANNER: Your Honor, this is Allan 3 Kanner. I just want to note we believe the 4 conclusions are different. But also for completeness, 5 they are each relying on different data, which goes to 6 our concern about the integrity of the overall study.
7 JUDGE ARNOLD: Okay. I think I 8 understand. Another question for Fasken. On page 13 9 of your Motion to File Amended Contention, you state:
10 "Contrary to statements in Holtec's application 11 documents and the most recent Holtec DEIS and 12 previously highlighted by Petitioners, Holtec does not 13 own the mineral rights below the site."
14 Now can you tell me where in the DEIS it 15 is stated that Holtec does own the mineral rights 16 below the site?
17 MR. KANNER: I think what I had said 18 earlier was that Holtec represented they controlled 19 the mineral rights in their ER, which was a false 20 statement in the DEIS. I don't think staff accepted 21 that.
22 JUDGE ARNOLD: Well I'm not interested in 23 control. I'm wondering why you say that the Holtec 24 DEIS says that they own the mineral rights below the 25 site because I could not find that in the DEIS.
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464 1 MR. KANNER: I'm just taking a look at the 2 DEIS for a second, Your Honor.
3 JUDGE ARNOLD: Okay.
4 MR. KANNER: All right. Yes. First, the 5 footnote goes to the land -- footnote 45 goes to the 6 land and refers to the land commissioner letter. What 7 I was intending to say in that sentence was they had 8 made this false representation in the ER. And we 9 believe it's false, and that nobody subsequently has 10 agreed with them on their position relative to the 11 control of all the mineral rights.
12 Maybe I could have said it better for Your 13 Honor. But I was not suggesting that there was an 14 affirmative statement in the DEIS, but rather you 15 couldn't go to it to corroborate what was said in the 16 ER, which frankly I think that they couldn't reach a 17 conclusion on that speaks volumes.
18 JUDGE ARNOLD: Okay. Next question. Mr.
19 Pollock in his declaration provided a count of 527 20 well bores within six miles of the facility. And he, 21 you know, gave numbers for the different types of 22 bores. He concludes the DEIS fails to accurately 23 describe past, present and ongoing oil and gas 24 production.
25 Well I'm looking at Figure 3.2-7 and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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465 1 that's on DEIS page 3-6. And let's see. Current and 2 past wells are in that figure. And it shows an awful 3 lot of wells. It shows the oil, gas, saltwater and 4 injection wells, both active and plugged in the area 5 around the Holtec site.
6 Is it your contention that this map is 7 incorrect, that it contains wrong information or is 8 missing some information?
9 MR. KANNER: You're on 3-6 of the DEIS?
10 JUDGE ARNOLD: Yes.
11 MR. KANNER: Okay. What we're saying is 12 that it is not comprehensive. So it is missing 13 information. I don't think we spoke to -- I don't 14 think the affidavit specifically says if they were 15 wrong except impliedly to say they were incomplete.
16 JUDGE ARNOLD: Okay. Do you have an 17 instance of a missing well on this figure?
18 MR. KANNER: Do you want me to tell you 19 whether the wells that were identified by Mr. Pollock 20 -- what?
21 JUDGE ARNOLD: I'm wondering if you have 22 a factual evidence that there's something missing here 23 rather than just a belief.
24 MR. KANNER: Give me one second. I just 25 want to take a look at that. Yes. Could I have the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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466 1 question again please?
2 JUDGE ARNOLD: I would like to know if you 3 have factual support in the form of an example of a 4 well missing from that figure?
5 MR. KANNER: I would have to ask my 6 technical expert that exact question. I believe that 7 -- we believe that Fasken believes this is a more 8 comprehensive list than appears there. But I was told 9 I couldn't really ask him that question or ask him to 10 speak to that question earlier.
11 JUDGE ARNOLD: Okay. That satisfies me.
12 Now I have some questions for Holtec having to do with 13 DEIS Figure 2.2-2 on page 2-4. Who is going to answer 14 that? Would that be Mr. Silberg?
15 MR. SILBERG: It depends what the question 16 is, sir.
17 JUDGE ARNOLD: Do you have the figure?
18 MR. SILBERG: Yes, we do.
19 JUDGE ARNOLD: I just want to make sure 20 that I understand it correctly. The little black 21 rectangles, are those the actual concrete pads that --
22 MR. SILBERG: Yes, sir.
23 JUDGE ARNOLD: Okay. Is that the final 24 configuration or just this license?
25 MR. SILBERG: I think that includes the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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467 1 entire build-out.
2 JUDGE ARNOLD: Okay. And there's a 3 rectangle that surrounds the pads. It's close to the 4 pads. Is that like a fence there?
5 MR. SILBERG: I believe that's correct.
6 JUDGE ARNOLD: And that looks to be about 7 300 feet from the pads?
8 MR. SILBERG: 400 feet.
9 JUDGE ARNOLD: 400, okay. And then the 10 site boundary looks like it's another 600 feet out?
11 MR. SILBERG: It depends which direction.
12 JUDGE ARNOLD: Right, right. But the 13 closest would be?
14 MR. SILBERG: Let me see if I can get that 15 answer.
16 JUDGE ARNOLD: I don't need an exact 17 answer.
18 MR. SILBERG: Okay.
19 JUDGE ARNOLD: But it's 500 to 600 feet.
20 So when Mr. Pollock says the drilling could occur as 21 close to 300 feet from the property boundary, that 22 would then put it on the order of 1,200 to 1,300 feet 23 from any stored fuel?
24 MR. SILBERG: I think that would be about 25 right.
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468 1 JUDGE ARNOLD: Okay. I just wanted to 2 make sure that I understood the picture. That ends my 3 questions.
4 JUDGE RYERSON: Thank you, Judge Arnold.
5 I really don't have any more questions at this point.
6 I think at the end we should discuss again what if, 7 any, supplemental filings are necessary.
8 I think it was really you, Judge -- first 9 of all, Judge Trikouros, are you going to have some 10 further questions now or not?
11 JUDGE TRIKOUROS: No, I don't.
12 JUDGE RYERSON: Judge Trikouros, are you 13 on mute?
14 JUDGE TRIKOUROS: I am not on mute. Can 15 you hear me?
16 JUDGE RYERSON: I can hear you now.
17 JUDGE TRIKOUROS: Okay.
18 JUDGE RYERSON: Do you expect to have 19 further questions at this point?
20 JUDGE TRIKOUROS: No. I don't think so.
21 JUDGE RYERSON: Okay. Well then the 22 question I have for -- really I think it's primarily 23 for you, although Judge Arnold, if you think something 24 further is required by all means weigh in. Do any of 25 the questions that you raised, Judge Trikouros, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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469 1 require further filings by either party?
2 JUDGE TRIKOUROS: Well the fact that the 3 ER is starting to be updated adds a bit of confusion 4 to the process. And I'm not sure what we can do about 5 that. Would it be possible for the Board to think 6 about that and issue an Order regarding any 7 supplemental information?
8 JUDGE RYERSON: We can do that. We can 9 decide whether we need any further information. And 10 if so, we can issue an Order and obviously invite both 11 sides to comment.
12 So let's leave it at that. Nobody is 13 under an obligation to do anything further at this 14 point until we decide if we do that we want to direct 15 a few further questions to folks in an Order.
16 Okay. And Judge Arnold, I take it you are 17 satisfied at this point?
18 JUDGE ARNOLD: Yes, I am.
19 JUDGE RYERSON: Okay. Well I guess I 20 should take a moment just -- I did say at an 21 appropriate point if anyone felt they needed to 22 respond to a question they weren't asked. Does anyone 23 feel that need right now or is everyone pretty much 24 done?
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470 1 pretty much done, Your Honor.
2 JUDGE RYERSON: Okay. And I think, 3 Fasken, we're the ones who asked you the most 4 questions so I assume that you're done.
5 MR. KANNER: Yes. I'm ready to go for 6 another hour, Your Honor. What's the hold-up? Thank 7 you for your -- listen, I want to thank the entire 8 panel. You guys were very thorough and asked a lot of 9 questions, you know, and we appreciate your attention 10 to this vitally important matter.
11 JUDGE RYERSON: Okay. Thank you. And 12 again, the NRC staff, do you have anything further?
13 MS. SUSKO: Nothing further. Thank you.
14 JUDGE RYERSON: Okay. Thank you. All 15 right. So I guess that concludes what we hoped to 16 accomplish today. And our job now is to take the 17 information we've learned today as well as, of course, 18 the pleadings, and reach a decision on Fasken's 19 motions.
20 The Commission has some milestones for us 21 for things like that. And we're expected to issue a 22 decision within 45 days, which I think takes us to 23 September 21. If we're not going to meet that, we 24 would have to, or should issue, an Order saying when 25 we will issue a decision. I expect that we would be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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471 1 able to issue a decision by September 21.
2 I think on behalf of the Board, I'd like 3 to thank all counsel for their presentations today.
4 They've been very helpful, and they were all done very 5 professionally.
6 Judge Trikouros, anything else before we 7 adjourn?
8 JUDGE TRIKOUROS: No. Thank you.
9 JUDGE RYERSON: Judge Arnold?
10 JUDGE ARNOLD: No. I have nothing 11 further.
12 JUDGE RYERSON: Okay. Well we stand 13 adjourned. Everyone stay safe.
14 (Whereupon, the above-entitled matter went 15 off the record at 3:08 p.m.)
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