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 UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION 2
+ + + + +
3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4
+ + + + +
5 HEARING 6
x 7
In the Matter of: : Docket No 8
HOLTEC INTERNATIONAL : 72-1051-ISFSI 9
- ASLBP No.
10 (HI-STORE Consolidated : 18-958-01-ISFSI-BD01 11 Interim Storage Facility):
12
x 13 Wednesday, August 5, 2020 14 15 Teleconference 16 17 BEFORE:
18 PAUL S. RYERSON, Chairman 19 NICHOLAS G. TRIKOUROS, Administrative Judge 20 DR. GARY S. ARNOLD, Administrative Judge 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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388 APPEARANCES:
1 2
Counsel for Holtec International 3
Jay Silberg, Esq.
4 Anne Leidich, Esq.
5 Timothy Walsh, Esq.
6 of:
Pillsbury Winthrop Shaw Pittman LLP 7
1200 17th Street NW 8
Washington, DC 20036 9
jay.silberg@pillsburylaw.com 10 anne.leidich@pillsburylaw.com 11 timothy.walsh@pillsburylaw.com 12 13 On Behalf of the Nuclear Regulatory Commission 14 Rebecca Susko, Esq.
15 Joseph I. Gillespie, Esq.
16 of:
U.S. Nuclear Regulatory Commission 17 Office of the General Counsel 18 Mail Stop O-14A44 19 Washington, DC 20555-0001 20 rebecca.susko@nrc.gov 21 joe.gillespie@nrc.gov 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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389 Counsel for Fasken Land and Oil and Permian 1
Basin Land and Royalty Owners 2
Allan Kanner, Esq.
3 Conlee Whiteley, Esq.
4 of:
Kanner & Whiteley, LLC 5
701 Camp Street 6
New Orleans, LA 70130 7
a.kanner@kanner-law.com 8
c.whiteley@kanner-law.com 9
10 Monica R. Perales, Esq.
11 of:
Fasken Oil and Ranch, Ltd.
12 6101 Holiday Hill Road 13 Midland, TX 79707 14 monicap@forl.com 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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390 C O N T E N T S 1
Mr. Kanner for Fasken.............
396 2
Mr. Silberg for Holtec 404 3
Ms. Susko for NRC...............
413 4
5 REBUTTAL 6
Mr. Kanner for Fasken.............
418 7
Board questions................
423 8
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 P R O C E E D I N G S 1
12:58 p.m.
2 JUDGE RYERSON: So good afternoon. We're 3
here in the matter of Holtec International's 4
application to construct and operate a consolidated 5
interim storage facility for nuclear waste in Lea 6
County, New Mexico.
7 I'm Judge Ryerson. I'm trained as a 8
lawyer, and I chair the particular Atomic Safety 9
Licensing Board that the NRC has assigned to this 10 proceeding. And also on the line and a member of the 11 Board is Judge Trikouros, who is a nuclear engineer.
12 And the third Board member is Judge Arnold. Dr.
13 Arnold is also a nuclear engineer.
14 Before we take formal appearances, I'd 15 like to go over a few ground rules and administrative 16 matters. Most importantly, we would be grateful if 17 everyone would remember to identify yourself before 18 speaking. It will make it easier for all of us, and 19 it will make it much easier for the reporter.
20 This proceeding is being transcribed, and 21 a transcript will be available in a few working days 22 on the NRC website after this proceeding closes today.
23 We've also made available listen-only telephone lines 24 so that interested members of the public and the press 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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392 can follow the proceedings in real time if they wish.
1 For anyone who is listening, primarily by 2
way of background, this is an adjudicatory proceeding 3
that was closed on May 7, 2019. Two joint petitioners 4
in the original proceeding, Fasken Land and Minerals 5
Limited and the Permian Basin Land and Royalty Owners, 6
which collectively we're just going to call Fasken, I 7
think, recently moved to reopen the record and for me 8
to file an amended contention that challenges the NRC 9
staff's recent draft environmental impact statement, 10 or DEIS.
11 Both Holtec and the NRC staff have opposed 12 Fasken's motions, and the purpose of today's call is 13 to help the Board to decide Fasken's motions. We have 14 a scheduling order out that indicates how we will 15 proceed, which will be first with opening statement by 16 Fasken, up to 20 minutes. And I should mention to all 17 counsel, perhaps in vain, but you don't really need to 18 use all of your time. We have read your briefs.
19 Second, Holtec will proceed with up to 15 20 minutes, and third, the NRC staff will have up to 10 21 minutes. I think that probably will consume almost an 22 hour2.546296e-4 days <br />0.00611 hours <br />3.637566e-5 weeks <br />8.371e-6 months <br />, so we'll take a short, very short, break at that 23 point and then begin with the Board's questions. When 24 we get to the questions, we will proceed in a more 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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393 structured way than we might otherwise normally do.
1 I will begin with questions. Then Judge Trikouros 2
will ask any questions he has. Judge Arnold will ask 3
any questions he has. And we will go through that 4
order, if need be, more than once to ensure everybody 5
has a chance to ask questions that may come up as the 6
proceeding carries on.
7 In general, when a Judge has a question, 8
he will say which participant or participants he wants 9
to answer the question. But we're going to be 10 relatively informal. If you feel it's important to 11 respond to a question that you are not asked, just say 12 so at an appropriate point, and we will probably 13 recognize you.
14 If the questions go on for more than an 15 hour1.736111e-4 days <br />0.00417 hours <br />2.480159e-5 weeks <br />5.7075e-6 months <br />, and I expect they will not, we will take another 16 short break.
17 Judge Trikouros, anything to add before we 18 take appearances?
19 JUDGE TRIKOUROS: No. I think you've 20 covered it.
21 JUDGE RYERSON: Thank you.
22 Judge -- Judge Arnold, anything to add?
23 JUDGE ARNOLD: Nothing to add, no.
24 JUDGE RYERSON: Okay. Thank you. All 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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394 right -
1 MR. TAYLOR: This is -- this is Tommy 2
Taylor. I need to add that we have two more people in 3
the meeting for Fasken. It's Ron Bianco, our --
4 JUDGE RYERSON: Yeah. We'll go -- we'll 5
go through with appearances, actually, right now.
6 What I'd like to do is take the appearances from all 7
parties before we begin the opening statements, and 8
then we'll -- then we'll go to the opening statements.
9 So, first, who -- who will be taking the 10 lead for -- for Fasken?
11 MR. KANNER: This is Allan Kanner. I'll 12 be taking the lead on the argument. We'll work as a 13 team to make sure we can provide full and complete 14 answers to the Panel.
15 JUDGE RYERSON: Okay. And is -- is 16 everyone who's on a speaking line having interferences 17 in this proceeding?
18 MR. KANNER: I think Tommy wanted to 19 introduce a couple of new people who have come in.
20 (Simultaneous speaking.)
21 MR. KANNER: But here in -- in my office, 22 we have Conlee Whiteley and Annemieke Tennis.
23 JUDGE RYERSON: Hello?
24 MR. KANNER: Yes?
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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395 JUDGE RYERSON: Hello?
1 MR. KANNER: Can you hear me?
2 JUDGE RYERSON: Now I can. Yes.
3 MR. KANNER: Oh. Okay. So we have Allan 4
Kanner, Conlee Whiteley, and Annemieke Tennis here in 5
New Orleans. And I think Tommy would like to 6
introduce some people who are with him.
7 MR. TAYLOR: Yes. It'd be myself, Monica 8
Perales, Ron Bianco, and Stonnie Pollock.
9 JUDGE RYERSON: Okay. Thank you. Welcome 10 to all of you.
11 And for Holtec, Mr. Silberg, will you be 12 leading the team?
13 MR. SILBERG: Yes, I will. I have with me 14 in Washington Tim Walsh and Anne Leidich. And at 15 Holtec's offices, William Gill, the Vice President and 16 Corporate Counsel; Katherine Perkins, Corporate 17 Counsel and Head of Contracts; Joy Russell, who's the 18 Senior Vice President and Chief Strategy Officer; Ed 19 Mayer, the Program Director for HI-STORE; and Kim 20 Manzione, the licensing manager. And also listening 21 in is John Heaton, a member of the Board and former 22 Chair of the Eddy-Lea Energy Alliance.
23 JUDGE RYERSON: Okay. Thank you. Welcome 24 to all of you.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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396 And, finally, we have the NRC staff. Is 1
that Ms. Susko?
2 MS. SUSKO: Yes. Good afternoon. This is 3
Rebecca Susko on behalf of the NRC staff. Also on a 4
separate speaking line is my co-counsel, Joe 5
Gillespie. And we have several members of the 6
technical review team on listen-only lines.
7 JUDGE RYERSON: Hello? At least on my 8
line, you cut out.
9 MS. SUSKO: Hello? Can you hear me?
10 JUDGE RYERSON: Yes, I can.
11 MS. SUSKO: Okay. This is Rebecca Susko 12 on behalf of the NRC staff, and also on a speaking 13 line is my co-counsel, Joe Gillespie. And we have 14 several members of the technical review team on 15 listen-only lines.
16 JUDGE RYERSON: Okay. Thank you and 17 welcome, again, to all of you.
18 Well, let's begin, then, with Fasken, I 19 take it Mr. Kanner. You have up to 20 minutes.
20 MR. KANNER: May I reserve five?
21 JUDGE RYERSON: Yes, you may.
22 MR. KANNER: Thank you. And thank you for 23 hearing us.
24 Fasken believes we've presented admissible 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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397 contentions relating to grave and vital deficiencies 1
in the characterization of regional drilling and 2
mineral extraction activities, seismicity, and the 3
potential for subsidence, sinkholes, and karst 4
development that collectively and cumulatively impact 5
the geology and soils as well as the ongoing land-use 6
impacts now and for 40 and possibly 120 years in the 7
future.
8 Petitioner's contention meets the good-9 cause standards as well as reopening standards as they 10 relate to serious and important safety and 11 environmental issues that the NRC must consider in its 12 findings and review of Holtec's application pursuant 13 to both NRC regulations and NEPA regulations, which we 14 discussed in our briefs.
15 I think it's important to start with just 16 the magnitude of this project, which I think 17 distinguishes it from almost any other project you've 18 had to look at in the past. What is being proposed 19 here is that the nation's high-level nuclear waste and 20 spent fuel be shipped from around the country to this 21 piece -- to -- to New Mexico, where it will 22 cumulatively be used to store amounts of nuclear waste 23 greater in excess of even what was previously proposed 24 for the permanent repository at Yucca Mountain. And 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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398 then there's going to be a second transporting if --
1 if there ever is a permanent repository.
2 So what's important to note is that we are 3
sitting -- how stable is this area? You have to look 4
at issues like both the size of the project but also 5
the geology. You've got to look at subsidence and 6
sinkholes. We've shown that the -- that Holtec in its 7
ER relied on some older studies with respect to 8
subsidence and sinkholes.
9 New information was provided in the DEIS, 10 both using satellite imagery, which was not a part of 11 the Holtec ER, as well as more recent references, such 12 as Zhang in 2018, about subsidence.
13 I would note that both the State of New 14 Mexico has filed comments to the DEIS -- they did that 15 in December. We didn't learn until the publication of 16 the draft EIS that they basically ignored a lot of the 17 concerns raised by the State with respect to the 18 integrity, the site characterization that occurred, 19 and what that means for the integrity and stability of 20
-- of this process.
21 We also raised in an affidavit from 22 Stonnie Pollock a discussion of abandoned wells. Two 23 things are important. We gave a big -- we did a lot 24 of research and put a lot of wells down on the table, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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399 explained where they had been over time. One reason 1
you care about wells, not the only reason, they're a 2
vehicle for transport.
3 Another reason you care about wells is 4
because sinkholes develop in those areas. And that's 5
fairly significant. It also goes to future activities 6
that I'll talk about a little bit later with respect 7
to possible fracking at very shallow levels.
8 But the point is -- so we've also 9
introduced some new evidence about the instability of 10 the site. We also talked about how it's very hard to 11 identify all the abandoned wells just using public 12 record and gave, I thought, a very useful example of 13 that, to give a site in an important location, 50 feet 14 down where we store the nation's hazardous waste, 15 high-level radioactive waste, and there hasn't been a 16 full examination. State of New Mexico gave extensive 17 comments. And just on July 28th, 2020, the Governor 18 of -- wrote to the President of the United States 19 again going through the issues of the -- why this site 20 is geologically unsuitable and why cumulative impacts 21 weren't taken into account.
22 These are -- these are, I think, 23 fundamental issues to be considered. And so there --
24 there's the issue of -- we've updated the information 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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400 on subsidence and sinkholes, and we've talked about 1
how abandoned wells can actually turn into sinkholes, 2
which raises the question why they haven't fully 3
characterized that.
4 Second, we've -- there's a lot more 5
information on seismicity. Holtec in the DEIS -- the 6
Holtec DEIS -- I'm sorry -- refers to three 7
earthquakes with magnitude 5.0 or above. The ER talks 8
about two earthquakes. The reality is that four 9
earthquakes with magnitude 5.0 or greater have 10 occurred within 200 miles of the proposed site, 11 including March 2020 earthquake roughly 50 miles away.
12 Significant additionally in the last two 13 months, there have been approximately 20 earthquakes 14 of magnitude 2.5 or greater that have occurred within 15 25 miles of the site. That also is very significant 16 and a disturbing trend because the earthquakes are on 17 a different -- in some cases, different locations on 18 the east versus the west side of the property.
19 That also is new information that's 20 materially significant to -- 40 or 120 years is pretty 21 long-term storage at that location. We also have an 22 issue with the potash mining. We did get information 23 that -- in the DEIS -- that there was a potential 24 subsidence from past and active mining activities, but 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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401 that the mining was going to be closed as a practical 1
matter.
2 Interestingly, it ignored the fact that in 3
the ER, they talked about potash and having control of 4
potash and all oil and gas activities in the future.
5 The DEIS does not deal with oil and gas activities, 6
and the omission of that information itself is 7
significant. As was pointed out in the Pollock 8
affidavit, there have been oil and gas at a higher 9
formation. The technology of fracking has evolved 10 dramatically since the '80s, '90s, and currently.
11 There is no control of the mineral rights 12 in this area, and our understanding is that people can 13 still go in and drill. And the land commissioner 14 whose letter, I guess, started this whole thing with 15 us filing our first contention, which is now the 16 amended contention, talked about the fact that she had 17 no information to stop oil and gas activities, which 18 is a powerful economic engine, as well as agriculture, 19 in this part of the state.
20 So that's another area, the potash mining 21 and its past consequences. The oil and gas future 22 operations are totally -- the fact that the staff 23 feels comfortable not having fully buttoned that down 24 is itself troubling. By the way, we have referenced 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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402 in our brief the RAIs, you know, the additional 1
requests for additional information that have been 2
unanswered. And we think that they corroborate our 3
concerns.
4 We were told by staff in their brief, oh, 5
that's just
- safety, has nothing to do with 6
environmental, which -- we believe it's environmental 7
and safety. But to the extent that the staff is now 8
saying, we have concluded that we are not going to 9
consider any of that new information for environmental 10 purposes, is itself a conclusion that warrants 11 additional proceedings.
12 On the mineral resources below the site, 13 there really is very little good information. The 14 Holtec ER at -- talks about -- they say the -- the 15 resources would be unavailable for exploitation during 16 the life of the project. We are told now that there 17 is going to be some limitations within the 330 acres 18 only and no -- as I said before, no -- no discussion 19 of oil and gas exploration, no -- no meaningful 20 discussion of oil and gas.
21 You know, deciding evaluation factors and 22 site characterization and cumulative impact are issues 23 of great concern at both the NRC level and at the NEPA 24 level because of the severe environmental consequences 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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403 that can happen if this -- if there was a -- something 1
bad happened at the site, an earthquake or whatever.
2 In addition, I would say -- let's see.
3 Oh, you had asked us four questions, but I think I've 4
used most of my time. Or do I --
5 JUDGE RYERSON: You have -- let me see.
6 You have -- you have a couple minutes still, plus the 7
five.
8 MR. KANNER: Okay. Let me address -- at 9
least start the process of addressing your four 10 questions. As we said, we rely on -- when you say 11 there are five briefs, Calvert Cliffs is really the 12 most important thing to look at -- case to look at.
13 There are two ways in which you can amend contentions 14 under 10 CFR 2.309(f)(2). If you fail in those 15 regards, you may still -- you may still go forward at 16 2.309(c). And we believe we qualify under -- under 17 all of those.
18 But I -- I wanted to say the one -- one 19 big takeaway from Calvert Cliffs and from these 20 different standards for bringing in late contentions 21 is a commitment by the NRC to public participation.
22 And what's deeply troubling to me in this case is that 23 this monumentally significant decision is -- not a 24 single contention has been accepted.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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404 I don't know if that's ever happened 1
before. I've been told that it has never happened 2
before at NRC proceedings. Not a single public 3
contention has come forward. Given our substantial 4
stake in this area, we obviously want to participate, 5
believe we ought to participate.
6 We believe that, as Calvert Cliffs tells 7
us, all we have to show is that the data or 8
conclusions, which are disjunctive, differ 9
significantly from those in the Applicant's licensing 10 documents. I think we've demonstrated that on 11 numerous points and believe that, that warrants our 12 ability to go forward under 2.309(s)(2). There is a 13 good cause -- there's also a showing of good cause, 14 and then there's the 2.309(c) standard.
15 We believe we've been timely with these, 16 primarily because, one, the DEIS came out in March and 17 we timely raised our -- our issues related to that.
18 We provided a lot of new information, and Calvert 19 Cliffs says that after a DEIS comes out, it's 20 perfectly appropriate to raise new contentions.
21 One thing we do know is that the work on 22 this issue has not been done or fully completed. If 23 you look at the RAIs, what's very troubling about the 24 unanswered RAIs, if we just focus on it for a second, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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405 is that staff has now allowed Holtec to not answer 1
until November, well after the time for filing 2
comments on the draft environmental impact statement 3
-- or the environmental impact statement.
4 So there's going to be a whole new set of 5
information coming in down the road. It's -- to the 6
extent we could be allowed to intervene on this issue, 7
I don't see it delaying anything. I see it improving 8
the quality of the decisions ultimately being made 9
here, and it's only fair that the Applicant put all of 10 their information, relevant information, now before 11 the public. They haven't done that before. And 12 they're seeking some benefit from it.
13 As an overview, I believe that we would 14 like the record to be reopened. We'd like to have our 15 amended contention heard. And thank you.
16 JUDGE RYERSON: Okay. Thank you, Mr.
17 Kanner. You're saving five minutes for rebuttal.
18 MR. KANNER: Thank you.
19 JUDGE RYERSON: So we turn to Mr. Silberg 20 for Holtec.
21 MR. SILBERG: Thank you, Mr. Chairman.
22 In order for the amended contention to be 23 admitted, Fasken has to demonstrate that it meets the 24 criteria to reopen the record, the standards to admit 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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406 a
late file contention, and the contention 1
admissibility requirements.
2 Our June 5 answer describes in detail how 3
Fasken has not met any of these requirements, and we 4
note that the burden for satisfying those requirements 5
rests with Fasken and not with the NRC staff, nor with 6
Holtec.
7 Probably the most obvious shortcomings of 8
Fasken's motions center around their untimeliness.
9 But first I'd like to point out some of the other 10 deficiencies with the motions, any one of which 11 warrants the rejection of the contention.
12 Motions to reopen are an extraordinary 13 action that place an intentionally heavy burden on 14 those who seek to reopen the record. Fasken 15 acknowledges that reopening requires a significant 16 safety or environmental issue, but there's nothing in 17 the motion to support that conclusion.
18 Fasken acknowledges that it must 19 demonstrate that a materially different result likely 20
-- would be likely. But, again, nothing in the motion 21 supports such a finding except stating that as a 22 conclusion.
Under well-established Commission 23 precedent, Fasken must show the likelihood that 24 consideration of contention would result in the denial 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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407 or conditioning of the application.
1 Fasken concedes that the motion has to be 2
accompanied by an expert affidavit, but it isn't. The 3
affidavit must set forth the factual and technical 4
bases for satisfying the reopening criteria, with each 5
criterion being separately addressed and with a 6
specific explanation of why each has been met. And 7
the affidavit must be by a competent individual with 8
knowledge of the facts alleged or by experts in the 9
disciplines appropriate for the issues raised.
10 With no respect to Fasken's attorneys, his 11 affidavit -- Mr. Kanner's affidavit -- provides only 12 legal argument. He is neither a factual witness nor 13 an expert competent in the issues raised.
14 Even if the Board were to overlook 15 Fasken's failure to meet these opening criteria, the 16 amended contention must be rejected because it's 17 untimely under both the standards for a late-filed 18 contention and those for reopening the record. The 19 amended contention purports to meet the time limit --
20 time limits requiring -- requirements by relying on 21 the March 10 publication of the DEIS.
22 Fasken acknowledged that it was filing 23 these contentions based on the DEIS in its April 2nd 24 motion. But its May 11 filing includes virtually 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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408 nothing that's based on the DEIS or could not have 1
been filed in September 2018 when contentions were 2
due.
3 Fasken has failed to point to information 4
in the DEIS that is newer material or to information 5
from other sources that was not readily available to 6
Fasken at least since the time that Holtec filed its 7
application.
8 It's first worth recalling that Fasken 9
filed no contentions when contentions were due in 10 September 2018, but only a motion to dismiss the 11 application on jurisdictional grounds. This standard 12 came despite the fact that the NRC regulations of 13 309(f)(2) require that contentions be filed based on 14 the application and on the other documents and 15 information available to the Petitioner at that time.
16 Specifically, for environmental issues, contentions 17 must be based on the Applicant's environmental report.
18 It was not until August 2019, almost a 19 year after the contention deadline and after the Board 20 had terminated the proceeding, that Fasken first 21 attempted to late-file a
contention on the 22 application. That was the initial Contention 2.
23 Contention 2 was initially submitted so as 24 to raise issues concerning control over mineral rights 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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409 beneath the site, but as the Board's June 18th 1
decision correctly ruled, Contention 2 was untimely 2
because it was based on information that was 3
previously available in Holtec's environmental report 4
and Holtec's responses to the NRC staff's RAIs long 5
before Fasken moved for leave to file the amended 6
contention.
7 The amended contention should be ruled 8
inadmissible for essentially the same reasons as the 9
Board rejected its first Contention 2. Fasken claims 10 that it filed the amendment contention based on 11 information in the DEIS, but the information that 12 Fasken refers to is not new but was available to 13 Fasken well before the DEIS was published.
14 And to the extent that Fasken refers to 15 issues which were ostensibly omitted, like references 16 to seismology, subsidence, and sinkholes, Fasken is 17 simply incorrect. These topics were not omitted.
18 Rather, Fasken failed to address what the application 19 had to say about them, and all of those issues were 20 described in the application.
21 So, too, are Fasken's claims regarding 22 control and ownership of subsurface mineral rights, 23 status of industry operations, geologic 24 characteristics of the region, largely the same claims 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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410 that were previously ruled untimely by the Board.
1 These are not issues that show up in the DEIS for the 2
first time. As the Board had noted, these -- these 3
issues are not new.
4 Given the 70 years that Fasken has been 5
drilling wells in the Permian Basin and the 40-plus 6
years it's been drilling in the vicinity of the Holtec 7
site, it's not credible that Fasken hasn't known for 8
years the information which it now says is new and 9
which it learned only from the DEIS.
10 For example, Fasken presents in the 11 amended Pollock declaration a map of well bores in a 12 six-mile radius of the project area but never tells us 13 when it first learned of the information or where --
14 even where that information came from. None of the 15 information is new, and I doubt that any of it is new 16 to Fasken. In fact, it's available to anybody on the 17 Bureau of Land Management's website and from the State 18 of New Mexico and the information cited in Holtec's 19 SAR.
20 In fact, Mr. Pollock refers to wells 21 drilled as far back as 1937. He also refers to, 22 quote, recent technological advances in drilling, as 23 if those just recently happened. A similar example is 24 Fasken's criticism of the six-mile radius used in the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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411 DEIS to analyze oil and gas operations, suggesting 1
that a larger radius should be used.
2 But Fasken's filings ignore the fact that 3
it's cited to a five-mile radius in its August 1 4
motion and in Mr. Pollock's July 31, 2019, affidavit 5
to explain -- and fails to explain why a six-mile 6
radius is inappropriate. In fact, Mr. Pollock's 7
amended declaration repeatedly uses a six-mile radius.
8 Nor does Fasken explain why it failed to raise that 9
issue, the issue of the appropriate radius, back in 10 September 2018.
11 Another example of Fasken's claimed new 12 information is the DEIS statement that drilling 13 wouldn't occur closer to the surface than 3,050 feet.
14 Well, the environmental report gives the number as 15 5,000 feet. Fasken's claim seems to be that drilling 16 that dips shallower than 3,050 feet is possible and 17 wasn't analyzed.
18 But Fasken could have and should have 19 raised that issue at the outset of this proceeding.
20 If drilling at depths shallower than 3,050 feet at the 21 site was possible, then drilling shallower than 5,000 22 feet was obviously possible. And if that were the 23 case, Fasken should have raised the issue in September 24 2018 based on the information in the environmental 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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412 report.
1 Fasken certainly hasn't alleged, let alone 2
established, that the technological advances that made 3
shallower drilling feasible were developed after 4
September 2018. So the fact that the DEIS and ER may 5
use different minimum depths is neither material nor 6
justifies Fasken's late filing. If the claims on 7
minimal drilling depths on which Fasken relies are 8
true now, they were equally true at the outset of the 9
proceeding, and Fasken should have raised them then.
10 Finally, it's obvious that the DEIS does 11 not provide a
basis to justify the amended 12 contention's untimely raising of its many safety-13 related issues. This includes Fasken's claims related 14 to the staff's pending RAIs, which all pertain to 15 safety issues.
16 The mere existence of an RAI has been 17 established in Commission law as insufficient 18 justification to support a contention in any event, 19 and Fasken's attempt to raise a contention on the 20 subject of RAIs, and even more for an RAI on safety 21 issues, is also extremely and unjustifiably late.
22 The bottom line is that any of the issues 23 Fasken seeks to raise in the amended contention could 24 have been raised at the outset of the proceeding, and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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413 Fasken has failed to provide any justification why it 1
did so at this time.
2 For these reasons and the more detailed 3
explanations that we set out in our answer, we 4
respectfully would ask that the Board reject Fasken's 5
motion to reopen and its motion for leave to file the 6
amended Contention 2.
7 Thank you, and we're happy to answer any 8
questions that the Board may have. And I would ask 9
leave of the Board to allow Mr. Walsh and Ms. Leidich 10 to address the issues as appropriate.
11 JUDGE RYERSON: That would be the 12 questions -- Mr. Silberg, you're going to have 13 questions later?
14 MR. SILBERG: Yes, sir.
15 JUDGE RYERSON: Okay. All right. Thank 16 you.
17 So I think we can move on to the NRC 18 staff. Is that Ms. Susko?
19 MS. SUSKO: Yes. Good afternoon. And, 20 may it please the Board, it's the NRC staff's position 21 that Fasken has not satisfied the criteria for 22 reopening the record, that Fasken has not shown good 23 cause for amending its Contention 2, and that amending 24 Contention 2
does not meet the contention 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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414 admissibility requirements.
1 Accordingly, the Board should deny both of 2
Fasken's motions. Arguments supporting the staff's 3
position are explained in detail in the staff's 4
pleading, so I'll not repeat those arguments here.
5 But I would like to briefly address two points.
6 First, I'd like to reiterate what triggers 7
the clock to begin running for the purposes of 8
determining whether a contention is timely if it's 9
filed after the initial deadline, and second I'd like 10 to address the exceptionally grave issue exception to 11 the reopening requirements.
12 On the first point of timeliness, in its 13 reply on page 5, Fasken states that the mere 14 publication of the staff DEIS is the triggering event 15 that starts the clock for determining the timeliness 16 of its filing under the good-cause requirements in 10 17 CFR 2.309(c)(1). But the analysis for timeliness 18 under that regulation is more nuanced than that.
19 In -- in this context, timeliness depends 20 on when the information that supports the basis for 21 amended Contention 2 became available. This, 22 therefore, requires an analysis of the specific issues 23 raised in amended Contention 2 for a determination of 24 whether the facts and information supporting those 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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415 specific issues was previously available and, if so, 1
when. The point at which that new information became 2
available is the correct triggering event that begins 3
the clock on timeliness for the purposes of 4
2.309(c)(1).
5 At this stage in the proceedings, when the 6
DEIS has been published, it is Fasken's burden to 7
demonstrate that the DEIS actually contains new data 8
or conclusions in order to satisfy the timeliness 9
requirements. Publication of the DEIS on its own does 10 not provide a blanket opportunity to submit new or 11 amended contentions.
12 And here, as outlined in the staff's 13 pleadings, all of the information on which amended 14 Contention 2 is based is information that was 15 available long before the DEIS was published, meaning 16 that Fasken could have raised these issues earlier in 17 the proceeding as a
challenge to Holtec's 18 environmental report, and yet Fasken did not do so.
19 That alone is sufficient reason to reject amended 20 Contention 2.
21 Now, turning to the exceptionally grave 22 issue exception, to reopen a closed record, it is the 23 Petitioner's heavy burden to show that its motion to 24 reopen is timely, that it addresses a significant 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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416 safety or environmental
- issue, and that it 1
demonstrates that a materially different result would 2
have been likely.
3 It's the staff's position that Fasken has 4
not satisfied any of those requirements, and it's 5
particularly relevant here that Fasken has not 6
raised a
significant environmental issue.
7 Nevertheless, the reopening standards do include an 8
exception for an untimely file motion to reopen if the 9
Petitioner has raised an exceptionally grave issue.
10 However, it's important to note that under 11 Commission case law, specifically CLI-12-21, the 12 exceptionally grave issue exception is a narrow one, 13 and it should be granted only rarely and in truly 14 extraordinary circumstances. In its pleading, Fasken 15 neither acknowledges this exception nor addresses 16 whether amended Contention 2 raises an exceptionally 17 grave issue.
18 And the statements made by Fasken today in 19 its opening remarks are inadequate to meet this heavy 20 burden of showing that extraordinary circumstances do, 21 in fact, exist here. This is so because Fasken's 22 remarks have not demonstrated that the harms 23 identified are tied to any specific environmental 24 concern related to the proposed facility or that such 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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417 harms are reasonably likely to occur.
1 Therefore, Fasken hasn't presented 2
sufficient information either in its pleadings or in 3
its remarks today to support finding that it has 4
raised an exceptionally grave issue. Because Fasken 5
has not raised even a significant environmental issue, 6
let alone an exceptionally grave one, Fasken has not 7
satisfied the requirements for reopening the record 8
and does not otherwise meet the narrow exception for 9
exceptionally grave issues.
10 Accordingly, the motion to reopen should 11 also be denied. That concludes my opening remarks, 12 and I look forward to answering any questions from the 13 Board. Thank you.
14 JUDGE RYERSON: Thank you, Ms. Susko.
15 Mr. Kanner, you have five minutes. And I 16
-- I would suggest that it would be appropriate to --
17 to address in your five minutes this -- this question 18 of whether you
- are, in
- fact, asserting an 19 exceptionally grave issue exception to timeliness.
20 You did use the word grave. I caught it 21 earlier in your discussion. But I -- I agree with Ms.
22 Susko. I didn't see that argument in any of your 23 pleadings. So it would be helpful if you could 24 include -- include addressing that in your five 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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418 minutes.
1 (Pause.)
2 JUDGE RYERSON: Mr. Kanner?
3 MR. KANNER: Oh. Yes, Your Honor. Sorry.
4 I was on mute. I apologize for that.
5 I'm just going to say -- yes, I will get 6
to grave concerns. Before I -- I get to that, I'd 7
like to just say something about staff's comments and 8
-- and, frankly, comments of Holtec.
9 Their theme seems to be, you could have 10 known this before. Taken to its logical extreme, you 11 would have almost nobody -- no contention would be 12 upheld, as -- as has happened in this case except for 13 this last contention.
14 Did we know about fracking near the 15 surface? Yes. Why did we not comment on it? Because 16 Holtec said they had control of all the mineral 17 extraction under their site. So had we come forward 18 and said, oh, but, you know, people can -- can do 19 fracking within hundreds of feet of the surface, they 20 would have said, well, it's not relevant because we 21 have control.
22 But it turns out that, that was a lie.
23 They didn't have control. I mean, we're -- we're 24 dealing with a moving target, here, frankly, from the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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419 beginning till now. And we are trying to be 1
responsible and acting when we think it's appropriate.
2 Look. Fasken, we're not repeat players 3
in, you know, the NRC licensing process. We're just 4
trying to do what's right for our -- our family, our 5
company, this industry. You're putting all this 6
nuclear waste on top of the Permian Basin, one of the 7
most important natural resources the United States 8
has. And there's a risk of a possible jeopardy there.
9 And if somebody comes in and says, I want 10 to build a facility there but I control everything, 11 you know, that's going to -- to me, I don't think we 12 should be criticized and say, well, you didn't come 13 forward with your relevant information at that time, 14 when -- when it's obvious that it became relevant when 15 the DEIS specifically showed that there was not going 16 to be -- you know, they -- they just were discussing 17 the potash but not mineral rights. And they moved 18 from three to five -- from 5,000 to 3 feet.
19 Yes, it seems like a very relevant thing 20 to bring up, like why 3,000? Because we've already --
21 at that point, they'd given up the control of 22 minerals. And we timely respond to that. I -- I say 23 that as an example because there are so many in this 24 case. But Counsel for Holtec says, oh, this is all 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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420 safety. RAI 2-25, justify the basis for the 5,000-1 foot minimum depth of oil-drilling or fracking 2
activities. That would seem to me to be more than 3
just a safety issue.
4 But turning to the -- the Board has broad 5
discretion because we do value public participation 6
and because not everybody is a repeat player. So, 7
with respect to your questions -- and -- and I'll --
8 I'll get up to the grave issue in a moment -- are we 9
limited to only newly disclosed information? No.
10 Under NRC standards -- in particular, 11 2.309(f)(2) provides that the Petitioner may amend 12 contentions based on an Applicant's environmental 13 report or file new contentions if there are data or 14 conclusions in the NRC draft or final environmental 15 impact statement or assessment that differ 16 significantly from the state or conclusions in the 17 Applicant's documents. And I think we've shown that 18 here on numerous occasions.
19 Calvert Cliffs tells us, quote, this 20 provision tempers the restrictive effect of the 21 Agency's requirement -- tempers the restrictive effect 22 of the Agency's requirement that NEPA contentions be 23 filed based on the ER by allowing petitioners or 24 interveners to challenge significantly different data 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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421 or conclusions that appear for the first time in the 1
NRC staff NEPA document.
2 The use of data conclusions means it's 3
sufficient that it's either data or conclusions.
4 Likewise, Petitioner may file a contention to 5
challenge significantly different conclusion in the 6
DEIS even though it is based on the same information 7
or data cited in the Applicant's licensing documents.
8 And as far as I understand, Calvert's 9
still a good law, or you've got the good cause issue, 10 10 CFR 2.309(f)(2), which we believe we -- we also 11 meet for the filed contention requirement. We show 12 that the information is new, or we -- we showed that 13 the information of our amended contention is based on 14 not previously available information.
Such 15 information is materially different than information 16 previously available, and the amended or new 17 contention has been submitted in a timely fashion 18 based on the availability of subsequent information at 19 that point out.
20 We -- we timely answered -- filed the 21 amendment within 30 days of the release, and we do 22 believe it's a grave concern. And it runs throughout 23 our -- with respect to the grave concern issue, I --
24 I have already suggested that -- sorry. Let's see.
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422 Okay. So, on -- on the grave concern issue, we've 1
outlined the hazard, all the nation's high-level 2
nuclear waste -- I mean, that's a pretty grave matter.
3 The threat could be greater than any threat that --
4 that the Agency would have to deal with.
5 The danger is profound. Since the 6
beginning of time, and including the International 7
Atomic Energy Commission -- has always talked about 8
storage in terms of, you know, put it deep in the 9
ground. No seismic activity. Bury it places like 10 Yucca Mountain, though I understand Yucca Mountain 11 didn't qualify for permanent repository.
12 So the concept -- there are not even 13 regulations for ISPs, though there -- there are for --
14 for certain types of interim storage. But most of 15 those are associated with an existing nuclear power 16 plant.
17 Here, you cannot -- you know, there's got 18 to be some higher standard for making sure that this 19 site, the cumulative impact of this site, will not 20 jeopardize that amount of radiation on top of one of 21 the nation's most precious natural resources, the 22 brown water that the agricultural industry relies upon 23 and the Permian Basin.
24 I mean, if all that oil and gas becomes 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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423 radioactive, you know, it would impact national 1
defense. The Department of Defense and Department of 2
Energy recognize Permian Basin is essential for energy 3
security. So, to that extent -- and I believe it's 4
very grave, Your Honor.
5 JUDGE RYERSON: Okay. We'll -- we'll get 6
to questions later. But just -- just so I'm clear 7
what you're saying, you are arguing that amended 8
Contention 2 raises an exceptionally grave issue as 9
that term is used in 10 CFR 2.326(a)(1)? Is that 10 correct?
11 MR. KANNER: Yes, Your Honor.
12 JUDGE RYERSON: Okay. But you -- you 13 acknowledge that you did not make that argument 14 explicitly in your pleadings. Is that also correct?
15 MR. KANNER: That is correct, Your Honor.
16 JUDGE RYERSON: Okay. All right. Well, 17 unless you have something further, why don't we take 18 a five-minute break? And we'll go through the 19 questions. Let's plan to reconvene promptly at 1:50.
20 (Whereupon, the above-entitled matter went 21 off the record at 1:46 p.m. and resumed at 1:50 p.m.)
22 JUDGE RYERSON: This is Judge Ryerson.
23 We're back on the record. I think we have everyone.
24 Let me just suggest, too, at least for me, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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424 the discussion was breaking up from time to time. If 1
anyone is rustling papers near a speakerphone, that 2
sometimes cuts you out. So we should try to watch for 3
that.
4 Let me make sure we have our other Board 5
members.
6 Judge Arnold, are you on?
7 JUDGE ARNOLD: I'm on.
8 JUDGE RYERSON: And Judge Trikouros?
9 JUDGE TRIKOUROS: I'm on as well.
10 JUDGE RYERSON: Excellent. Excellent. We 11 have several parties, so I assume that someone will 12 let us know if a -- a necessary lawyer is not on.
13 Let me begin, Mr. Kanner, with some 14 questions for you.
15 MR. WALSH: Judge, excuse me. Judge 16 Ryerson? Pardon for the interruption. This is Tim 17 Walsh from Pillsbury. Mr. Silberg and Ms. Leidich got 18 disconnected, so they are dialing back in, if you 19 could pause for one moment.
20 JUDGE RYERSON: Okay. We'll wait a 21 moment, then. Thank you.
22 MR. WALSH: Sorry about that.
23 MR. SILBERG: Yeah. We've dialed back in.
24 Sorry. We had a technical issue here.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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425 MR. WALSH: Okay. We're good to go, then.
1 JUDGE RYERSON: Okay. You're back in?
2 MR. SILBERG: Yes.
3 JUDGE RYERSON: Okay. And I -- I said 4
earlier, just for your benefit as well, at least for 5
me, occasionally the discussion was cutting out. And 6
sometimes that happens when someone rustles papers 7
near a sensitive speakerphone. So that's something to 8
-- to be alert to as we proceed.
9 The -- the first question I have is -- is 10 for Mr. Kanner, and that's actually what your 11 contention says. Your contention is obviously in 12 response to the DEIS, but you set it forth in your 13 words on page 10 of the motion for relieve -- for 14 leave. And what does it say? It says Holtec's 15 application fails to adequately, accurately, 16 completely, and consistently describe the control and 17 so forth.
18 It doesn't say anything about the DEIS.
19 And was that intentional, or was that an oversight?
20 MR. KANNER: It was probably -- we 21 probably should have mentioned the DEIS at that time, 22 but I think our brief is abundantly clear on the 23 issue.
24 JUDGE RYERSON: Oh, yeah, it's clear that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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426 you were addressing the DEIS. I was just curious when 1
you formulated the actual contention in response to 2
2.309(f)(1)(I). You didn't mention it. It just 3
struck me, but no, clearly your supporting documents 4
refer to the DEIS.
5 One other thing that confused me is on the 6
very next page, page 11 of your motion, footnote 38, 7
you say inaccurate and misleading statements in the 8
Holtec DIS further violate NRC regulations requiring 9
an applicant provide information to the Commission 10 that is quote, complete and accurate in all material 11 respects, closed quote, citing 10 CFR 72.11(a).
12 I mean obviously the DEIS is a product of 13 the government. It's prepared by the NRC staff, and 14 so I'm a little confused when you say that misleading 15 statements in the DEIS violate NRC regulations 16 requiring an applicant to provide information. Could 17 you clarify what you mean there?
18 MR. KANNER: I agree that 10 CFR 72.11(a) 19 refers to the obligation of the applicant to provide 20 the Commission with information that's complete and 21 accurate in all material respects, not for the 22 Commission, but -- and maybe the reference should have 23 just been to the applicant, but it is the job of the 24 Commission to make sure that it is complete and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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427 accurate in all material respects, and I think that's 1
why they issued the RAI that we've been talking about 2
today.
3 JUDGE RYERSON: Okay.
4 MR. KANNER: But yes, it refers to the 5
license applicant, not to ---
6 JUDGE RYERSON: Right.
7 MR. KANNER: -- the NRC.
8 JUDGE RYERSON: Not to the staff, okay.
9 MR. KANNER: Correct.
10 JUDGE RYERSON: Now you ---
11 MR. KANNER: The staff has obligations, 12 obviously, under NRC regulations, but not as it 13 relates to that point.
14 JUDGE RYERSON: Right, but I mean the 15 general way this works is that the purpose -- and this 16 I think is spelled out in Calvert Cliffs. The purpose 17 of the environmental report that the applicant must 18 file is to assist the NRC, and initially the NRC 19 staff, in preparing a document that complies with 20
- NEPA, but the document is ultimately the 21 responsibility of the NRC staff. Do you agree with 22 that?
23 MR. KANNER: Yes, the DEIS, yes.
24 JUDGE RYERSON: Okay, now I think you 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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428 filed both of these motions, what, maybe 11, the 1
motion to reopen and the motion for leave, and that 2
was in advance of our decision. It must have been in 3
June in LBP-20-06, and I daresay perhaps you didn't 4
anticipate that decision.
5 What is your view --- and let's assume for 6
the sake of argument that that decision is correct and 7
the Commission will ultimately perhaps tell us whether 8
it is or not, but for the moment, assuming that's 9
correct, what is the effect of LBP-20-06 on the 10 motions that are in front of us right now?
11 MR. KANNER: Well that was the April 23 12 order, the April 23 --
13 JUDGE RYERSON: No.
14 MR. KANNER: -- 2020?
15 JUDGE RYERSON: No, that's the CLI.
16 That's the Commission decision, I believe.
17 MR. KANNER: Okay.
18 JUDGE RYERSON:
Subsequent to the 19 Commission decision, the Commission remanded a few 20 things to us, including your original contention two, 21 which we rejected.
22 MR. KANNER: Yes.
23 JUDGE RYERSON: And so you have filed the 24 pending motions. You filed them prior to our 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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429 rejecting the original contention two, and I just 1
wondered if you would like to comment on the 2
significance of any of that on the pending motions?
3 In other words, when you wrote these 4
motions, you had not presumably anticipated that we 5
would reject the original contention two. We had not 6
done that yet, and so --
7 MR. KANNER: Yes.
8 JUDGE RYERSON: -- I'm asking what is your 9
position on the significance of your pending motions 10 in light of LBP-20-06?
11 MR. KANNER: I think the issue today is 12 the amended contention.
13 JUDGE RYERSON: I agree with you on that.
14 (Simultaneous speaking.)
15 JUDGE RYERSON: But you, at one point in 16 your papers, for example, you rely on the Richard 17 letter in support of the original contention two as 18 one of the indicia of new information, and we have 19 ruled in LBP-20-06 that it was not materially new 20 because it repeated information that was in Holtec's 21 application and in its response to an RAI.
22 And I think Holtec has even more recently 23 pointed out some additional information that frankly, 24 we may have been aware of, but didn't recite in that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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430 decision to the effect that I believe Mr. Taylor had 1
written to the NRC at one point a year ago with 2
information that was similar to Ms. Richard's letter.
3 So I take it that, at least assuming we 4
are right in our decision, that that is kind of off 5
the table as an indication of new information. Would 6
you agree with that?
7 MR. KANNER: Standing alone as new 8
information, yes, but here, it occurs -- we referenced 9
it in the context of identifying differences between 10 the DEIS and the ER, which Calvert Cliffs says would 11 be appropriate.
12 The fact that it corroborates what we saw 13 in the argument that it was helpful because there, you 14 know, we did mention it, and ultimately, I think that 15 one of the reasons that the staff in the DEIS 16 concluded that they should not just not talk about the 17 oil and gas issues was because of that letter and the 18 high level of uncertainty associated with that.
19 And indeed, they don't even affirmatively 20 state that there is a done deal for the life of this 21 project or what its parameters are with respect to the 22 potash, which is very significant in terms of the 23 overall understanding of the cumulative impact issues 24 as it relates to this site, and especially the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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431 engineering significance of all of those issues.
1 I mean what if those storage packs started 2
to collapse because of potash activity that was going 3
on or had gone on in the past?
4 JUDGE RYERSON: Okay, I think I lost the 5
end of that.
6 MR. KANNER: I believe that it's relevant 7
to our claims in the DEIS to talk about it. I mean if 8
-- yeah, had I had your decision, I probably, I might 9
have written that passage a little bit differently, 10 but I still believe, even after your decision, that 11 it's certainly appropriate.
12 And it also underscores something I said 13 in my opening comments, which is, you know, the 14 Governor is now writing to the President talking about 15 the grave situation out there.
16 You know, we finally get the New Mexico 17 comments on the DEIS, which we didn't know at the time 18 in December would be basically ignored by staff in the 19 DEIS. I mean I think what New Mexico has been 20 communicating is significant.
21 JUDGE RYERSON: Yeah, of course. Now the 22 comments on the DEIS, that's a separate process, and 23 clearly the communications between the Governor or the 24 President are not within our chain of command as it 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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432 were.
1 MR. KANNER: Let me put it this way. I 2
believe you can rule in favor of reopening the record 3
and allowing our contention despite your earlier 4
decision, despite you finding that one letter not to 5
be materially new.
6 (Simultaneous speaking.)
7 JUDGE RYERSON: I think I understand your 8
position. Let me ask you though -- let me get to your 9
affidavit in support of the motion to reopen, and 10 first, this is going to be really, kind of sound like 11 almost a nitpicking comment because no one has raised 12 it but me, but is this a proper affidavit under 13 Louisiana law?
14 You state that you're under oath, but I 15 don't see any indication of anybody giving you an 16 oath. There's no indication that a notary was giving 17 you an oath or anything like that.
18 MR. KANNER: Well actually in Louisiana, 19 if you get a bar card, you're automatically a notary 20 public, but I was relying on the fact that, you know, 21 I'm an officer of the
- court, whether it's 22 administrative, or civil, or --
23 JUDGE RYERSON: I'm sorry, that cut out.
24 I didn't hear that.
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433 MR. KANNER: Yes, in Louisiana, you 1
actually get -- you become a notary -- well it costs 2
another $5. At least it did 40 years ago. I haven't 3
looked at what they charge now -- when you pass your 4
bar exam and get sworn in.
5 But I was relying on the practice of a 6
lawyer in filing anything with a court, which is an 7
affidavit by an attorney of record. It's presumed to 8
be honest. I mean --
9 JUDGE RYERSON: Okay --
10 (Simultaneous speaking.)
11 MR. KANNER: -- the bar for making a false 12 representation to the court, not that I'm suggesting 13 anything like that.
14 JUDGE RYERSON: No, I was wondering 15 whether you were relying on 28 USC 17.46, which this 16 doesn't really seem to comply with, but in any event, 17 no one has raised it.
18 So there were other concerns about the 19 appropriateness of a lawyer's affidavit in these 20 circumstances, but no one challenged the technical 21 sufficiency of your affidavit, but in any event, let 22 me get to --
23 MR. KANNER: We have non-lawyer affidavits 24 also, I mean that we have attached to our brief.
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434 JUDGE RYERSON: No, I understand that.
1 I'll get to that. Those are styled declarations, not 2
affidavits, but anyway, let me get to the substantive 3
point.
4 MR. KANNER: Okay.
5 JUDGE RYERSON: You say in your affidavit 6
the information forming the basis of amended 7
contention two was not available prior to the 8
publication of the Holtec DEIS. So that is your flat-9 out statement, that the basis for amended contention 10 two was not available to you until the DEIS came out, 11 and then let me find your pleading.
12 Page 15 of your motion for leave, you say 13 Holtec's application fundamentally misrepresents past, 14 present, and potential for future oil and gas 15 operations in the six-mile region and flat-out ignores 16 operation at any further increments of distance.
17 And I
guess I'm
- asking, are you 18 representing to me, to us, to the NRC, that prior to 19 the DEIS, Fasken was not in a position to make that 20 statement, in other words, based on the environmental 21 report or other aspects of the original application?
22 Fasken knows a little bit about drilling in the 23 Permian Basin, correct?
24 MR. KANNER: They know a lot about 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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435 drilling in the Permian Basin.
1 JUDGE RYERSON: They know a lot about it.
2 They've been drilling there, at least collectively, 3
the whole group has been drilling there for 80 years.
4 MR. KANNER: Right, but --
5 JUDGE RYERSON: They've been drilling near 6
this facility for 40 years.
7 MR. KANNER: But what was different with 8
the DEIS is the shift to the six-mile radius and the 9
focus on that, and we then went out and got new 10 information about the locations of all of the wells 11 that we could find, attached that new information 12 which was not publicly available, and we submitted it, 13 as well as with Stonnie Pollock's affidavit to 14 illustrate, based on our own actual experience, that 15 it's even more complicated than that.
16 That is both new information to us that we 17 affirmatively had to seek out that was not publicly 18 available, and we added information because for the 19 first time in the DEIS, Holtec -- the staff was 20 saying, okay, that's our area of concern, so at least 21 we were trying to be responsive to that.
22 So I believe that my affidavit and my 23 statement at page 15 are consistent, especially given 24 that I think my mindset at the time was really sort of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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436 Calvert Cliffs, and okay, the DEIS significantly 1
raises new information.
2 You know, from minimal impact to moderate 3
impact was a big change. The drop down to a six-mile 4
radius was a big change, and new information, as I 5
said earlier, sort of the avoidance of oil and gas.
6 Because the ER said everything was under 7
control, so would it have been appropriate to file 8
stuff relative to the ER when they've already 9
represented, presumably under oath as well, that they 10 have it all under control?
11 I think we were attempting to focus on, 12 focus our comments on the lead that the NRC has been 13 giving us, and I think the comments were appropriate.
14 JUDGE RYERSON: Okay, let me ask you about 15 Mr. Pollack's affidavit, and again, I'm going to be a 16 stickler here because it's not called an affidavit.
17 It's called a declaration, which suggests 18 to me that it is purporting to rely on 28 USC 17.46, 19 but there's magical language in that statute that says 20 instead of an affidavit, you can submit a declaration 21 under penalty of perjury. Those are the magic words, 22 and I don't see that in this declaration. Am I 23 correct there is no such statement in this 24 declaration?
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437 MR. KANNER: That is correct. The 1
omission, I apologize, would be inadvertent. We 2
probably should have caught that, Your Honor, but if 3
you want it to be re-executed, I'm happy to do that.
4 JUDGE RYERSON: Okay, I don't think --
5 that won't be necessary, but I just was curious about 6
that. Let me again get to more substance. Now Mr.
7 Pollock works for Fasken. He's not an independent 8
consultant. Is that correct?
9 MR. KANNER: Mr. Pollock is a very 10 accomplished senior geologist, but yes, he does work 11 for Fasken, and probably is more knowledgeable about 12 this area than any other human being.
13 JUDGE RYERSON: Okay, well that's sort of 14 my point, that -- I'm looking at his resume as 15 attached to his declaration, and it appears that Mr.
16 Pollock is employed by Fasken as a senior geologist, 17 and he has been for about 17 years, which appears to 18 be, based on his school record, virtually his entire 19 professional career.
20 And I'm not suggesting a bias at all.
21 What I'm suggesting, and tell me if I'm wrong, is that 22 don't we need to ascribe to Fasken all of Mr.
23 Pollock's knowledge, because he has knowledge clearly 24 and he works for Fasken, and has worked for them for 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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438 17 years? And so if he has information about wells in 1
the Permian Basis, isn't that information we have to 2
ascribe to Fasken?
3 MR. KANNER: I think that you would have 4
to ascribe that information to Fasken, but in this 5
context, we were responding to an ER that says all of 6
the mineral issues were under control. So why would 7
Fasken then say, oh, we have a contention that there 8
is all of these wells everywhere, and here is our 9
analysis?
10 And again, for purposes of the attached 11 map, which is really the essence of this submittal, 12 that was not information that he had. This would be 13 precise. That was information that he purchased for 14 this specific project.
15 So I don't know that you could say he's 16 walking around with all of this knowledge in his head, 17 or the Fasken organization had all of this knowledge 18 in this chart that we've attached.
19 But I would ask, had we submitted the 20 contention that -- had we submitted this as part of a 21 contention when there was just an ER, they would have 22 said what's the point of this?
23 JUDGE RYERSON: All right, does Mr.
24 Pollock's declaration identify anywhere when he 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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439 acquired the information that's in the declaration?
1 MR. KANNER: No, my understanding is we 2
asked him to put this together as we were drafting the 3
brief that it's attached to, and that during the 4
drafting period, likely 30 days before or possibly two 5
weeks before is probably -- oh, it says May 11, 2020.
6 I guess it would have been shortly before that.
7 JUDGE RYERSON: Yeah, the date of the 8
declaration is the same as your filing date, I think.
9 MR. KANNER: Yeah, I know that this was 10 something, you know, this was something that I 11 requested one of the lawyers in my office to speak to 12 him about, putting a declaration together about that 13 specific piece of information.
14 JUDGE RYERSON: Okay, so that would have 15 been subsequent to the publication of the DEIS. Is 16 that correct?
17 MR. KANNER: Yeah, that's the prompt, as 18 I've been trying to say. I mean once we got that, we 19 had to sit down, look at the material differences that 20 we thought would be recognized as material 21 differences, and we had to think what information 22 could we add relative to those areas, and in that 23 context --
24 Because now it seemed like oil and gas was 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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440 up for grabs, or there was a jump ball about control 1
there, which also, I mean you know, that ties back 2
into the land commissioner's letter obviously, but it 3
didn't reiterate it. I think that that would be the 4
time to do it under NRC rules.
5 JUDGE RYERSON: All right, let me simplify 6
some things. At least, I hope it simplifies them, 7
just so I understand your position and give you a 8
couple of hypotheticals.
9 Suppose you, Mr. Kanner, lived one mile 10 from Holtec's proposed facility in New Mexico, and the 11 environmental report comes out and it says the nearest 12 residence is five miles, and maybe you weren't reading 13 the Federal Register that day.
14 I don't know. The reason doesn't matter, 15 but you didn't challenge that, okay? You are an 16 individual who lives a mile away, and you don't 17 challenge the ER where it says nobody lives within 18 five miles.
19 Next, the DEIS comes out, and you still 20 live a mile away. No facts have changed, but the DEIS 21 says, oh, there's no residence within three miles.
22 Does that allow you to challenge that statement when 23 you didn't challenge the five-mile statement?
24 MR. KANNER: Yes, I think it would. It's 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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441 a material difference between the DEIS and the ER, and 1
I think that to add at that point that you're at one 2
mile would be appropriate.
3 JUDGE RYERSON: Okay, even though it's, 4
from your standpoint, not as wrong as the 5
environmental report was?
6 MR. KANNER: Well it would also -- you 7
know, when you -- I love hypotheticals, by the way, 8
okay? I taught law for 19 years, so I like 9
hypotheticals, but you always have to remember the 10 context.
11 And for example, following up on your 12 question earlier, I mean somebody who is one mile from 13 the facility is that you would probably say, well that 14 comes pretty close to being exceptionally grave, at 15 least for you and your family, depending on the 16 associated risks that are also identified at that 17 point in time.
18 And so you want to put it in context, but 19 I absolutely could see that information being allowed.
20 I think it would -- I would think that the --
21 JUDGE RYERSON: Okay, you're complicating 22 my --
23 (Simultaneous speaking.)
24 MR. KANNER: -- have to be considered.
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442 JUDGE RYERSON: You're complicating my 1
hypothetical, which I was trying to strip from some of 2
the related issues. Let me give you a third and last 3
hypothetical.
4 You're still one mile from the facility, 5
but the DEIS says just as the ER did. The DEIS says 6
there's no one living within five miles. Now can you 7
come in then? Isn't that exactly what the Commission 8
says you can't do?
9 MR. KANNER: That's wrong. Remember, the 10 law is facts or conclusions. If they're relying on 11 different facts and reach the same conclusion, or 12 relying on the same facts, different conclusion, I 13 mean I think the case law -- I think Calvert Cliffs 14 addressed that in great detail. So my answer is it 15 would depend.
16 JUDGE RYERSON: Let me turn to Mr. Silberg 17 for a second. What about this facts versus conclusion 18 distinction? Do you agree with that?
19 MR. SILBERG: Well I don't think he's 20 shown either one. Putting that aside, there aren't 21 any conclusions in the DEIS that are different from 22 those in the environmental report, point one.
23 Second, I think the examples you gave are 24 quite apt, and I think by switching over to this so-25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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443 called exceptionally grave, we're moving away from the 1
question that you're trying to pose, but I don't think 2
that there are any conclusions in the DEIS that are 3
significantly different or different in any material 4
respect from the conclusions in the environmental 5
report.
6 If, for instance, the environmental report 7
said the sky is blue and that's a minimal impact, and 8
the DEIS said the sky is blue and that's a grave 9
impact, that would be a significant difference in the 10 conclusions, and if that were a relevant issue, then, 11 you know, you could use that as the basis for a 12 contention, but there ain't none of those here.
13 JUDGE RYERSON: Okay, all right, thank 14 you, Mr. Silberg. Back to you, Mr. Kanner, you have 15 an Exhibit 2 to the motion for leave that lists 16 various statements that you challenge, and some of 17 those statements are in the DEIS and then some are in 18 the SAR, and are you challenging SAR statements based 19 on information that you couldn't have had available to 20 you when the SAR was initially filed?
21 MR. KANNER: As I said earlier, we are --
22 just one -- before I answer that question, I just 23 wanted to note I think it's significantly different to 24 say a moderate impact instead of a minimal impact of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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444 cumulative activity. I don't think that that's small 1
potatoes.
2 It indicates a conclusion that's different 3
than the applicant. It indicates that there are 4
reasons for that different conclusion. I guess we're 5
saying they didn't go far enough in looking at the 6
impacts and characterizing the site conditions.
7 JUDGE RYERSON: Yeah, actually I think the 8
difference is between minimal and small, and then once 9
you get to small, then you get to cumulative and 10 moderate, but I think that's set out in the briefs in 11 any event.
12 MR. KANNER: Yeah, we -- with respect to 13 the attachment in Exhibit 2, it is -- you know, our 14 goal there is to just show -- well we have a number of 15 goals, but one of them is to show the materiality of 16 different issues. Is there something about the SAR 17 references that are different than the ER point that 18 was made?
19 I'm happy to answer a specific question 20 about that, but I believe that Holtec, while it did 21 have a change in story over time and this has been 22 kind of a moving target, this is designed primarily to 23 support our arguments on admissibility.
24 JUDGE RYERSON: Okay, all right, well I 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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445 think those are all of the questions I have for the 1
moment. Judge Trikouros, do you have some questions?
2 Hello?
3 JUDGE TRIKOUROS: Pardon me, I was muted.
4 Can you hear me now?
5 JUDGE RYERSON: Yes.
6 JUDGE TRIKOUROS: I do have one question.
7 It's a bit long perhaps, but --
8 MR. SILBERG: Excuse me, Your Honor. This 9
is Jay Silberg. I'm having trouble hearing Judge 10 Trikouros. Could you possibly speak up?
11 JUDGE TRIKOUROS: I can try.
12 JUDGE RYERSON: Judge Trikouros, I'm 13 having difficulty too. Are you close to a speaker?
14 JUDGE TRIKOUROS: I am. I am right next 15 to one actually. Can you hear me now?
16 JUDGE RYERSON: You're kind of faint, but 17 I can make you out.
18 JUDGE TRIKOUROS: Is that any better?
19 JUDGE RYERSON: That is better, at least 20 for me.
21 JUDGE TRIKOUROS: Okay, I increased your 22 volume. Yes, I didn't think it would affect mine.
23 Can everybody hear me now?
24 JUDGE RYERSON: Yes.
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446 MR. SILBERG: Yes, Your Honor.
1 JUDGE RYERSON: Yes, that's better.
2 JUDGE TRIKOUROS: All right, well I guess 3
it worked. All right, I was saying that I basically 4
had one question that might have a couple of parts, 5
but it's essentially the same question, and it relates 6
to the issue of drilling depth.
7 And in the Fasken motion on I believe it 8
was page 17, it pointed out that there are 9
inconsistencies in, you know, acceptable drilling 10 depths to fundamentally avoid issues of subsidence 11 being one of them, between the SAR, the ER, and the 12 DEIS.
13 I pulled all of those out and looked at 14 them, and indeed, without reading from them right now, 15 it appears that the DEIS does, in fact, identify 3,050 16 feet and below as acceptable, whereas the SAR and the 17 ER both seem to just make the same exact statement.
18 It's one paragraph, and it's exactly the 19 same between the ER and the SAR indicating that with 20 respect to an agreement they have with the Intrepid 21 Mining Company, they will only -- there will be 22 restrictions on drilling beneath the actual site such 23 that the drilling or the extraction activities would 24 occur below 5,000 feet, and they say that that's in 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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447 order to avoid subsidence.
1 It isn't entirely clear to me that the 2
3,050 feet identified in the DEIS relates to beneath 3
the site. That is not clear. It says project area.
4 Can someone explain if that means beneath the site as 5
well as around the site, or just around the site? How 6
about I'll ask Holtec first and then we can go on from 7
there?
8 MR. SILBERG: Yeah, Anne Leidich will 9
address that.
10 MS. LEIDICH: Yes, I think there were 11 several parts to that question, but I'll try and go 12 through sort of in a series that makes sense to me.
13 The question in terms of where drilling would occur in 14 the area is in regards to the depths of the Salado 15 formation.
16 So the Salado formation beneath the site 17 in that geologic area is where the potash is located, 18 and the oil and gas is beneath the Salado formation.
19 So it's not a question of -- the restriction related 20 to Intrepid Mining is that Intrepid has the rights for 21 the potash, not for oil and gas.
22 So the restriction is related to whether 23 or not anyone is going to be taking potash from the 24 site, and that's an agreement between the parties, and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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448 that's specifically related to the potash formation, 1
but the question then is at depths below the potash 2
formation, where might oil and gas drilling occur, if 3
that answers your question. So it's a question of 4
geologic formations. There's actually --
5 JUDGE TRIKOUROS: Well it doesn't quite 6
answer my question. The 3,059 feet, does that --
7 could there be drilling beneath the site in the depths 8
from 3,050 and below?
9 MS. LEIDICH: Yes.
10 JUDGE TRIKOUROS: So the conclusion in the 11 DEIS that below 3,050 feet, you're safe with respect 12 to subsidence concerns seems to directly contradict 13 the ER and the SAR, which would state explicitly that 14 5,000 feet would be necessary to avoid subsidence 15 concerns. Am I reading that correctly?
16 MS. LEIDICH: I would say that the -- it's 17 not quite as simple a link between the depths of 18 drilling and subsidence.
19 The ER analysis for subsidence is actually 20 based on a detailed analysis that was performed in the 21 ELEA 2007 report which is referenced in the ER, and 22 that incorporated the historical drilling that 23 occurred in the area.
24 So it wasn't specifically limited to a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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449 depth of 5,000 feet or a depth of 3,050. There was an 1
analysis of whether or not subsidence had occurred 2
given the drilling that had previously occurred in 3
that area, and it was a conclusion that subsidence had 4
not occurred and that there was no evidence of 5
subsidence in that area. Again, that's in the ELEA 6
2007 report, and that was referenced in the ER.
7 So the reference to 5,000 in the ER was a 8
reference to where they thought drilling would occur.
9 We are going to change that in the future. It's going 10 to be changed to 3,050, but in terms of subsidence, 11 the ELEA analysis still stands and it's regardless of 12 what that specific number is.
13 JUDGE TRIKOUROS: I understood the 14 subsidence analysis that was done. It was historical, 15 and I believe that the contention on page 17 is 16 looking at future activities, so I took those as two 17 separate items. Is that incorrect?
18 MS. LEIDICH: I don't believe that Fasken 19 addressed the existing subsidence analysis. I believe 20 they simply said that there might be future subsidence 21 without actually addressing or otherwise dealing with 22 the existing subsidence analysis that was referenced 23 in the application.
24 MR. SILBERG: One other point, Judge 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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450 Trikouros, if I might. This is Jay Silberg. Just to 1
note that if drilling was only to be tolerated below 2
5,000 feet under the surface and that was okay, then 3
by definition drilling that's 3,050 feet below the 4
surface ipso facto is going to be okay.
5 And therefore, if Fasken wanted to 6
challenge the depth of drilling, they should have 7
challenged it with the greater number because if that 8
wasn't a risk, then, you know, why didn't they 9
challenge it earlier?
10 JUDGE TRIKOUROS: Well maybe I'm reading 11 this wrong, but it seems to me that if I were to drill 12 at 3,200 feet, that there might be a subsidence issue 13 there, but not if I drilled below 5,000 feet. Is that 14 correct, or am I looking at this upside-down?
15 MS. LEIDICH: Your Honor, if you look at 16 the ELEA report, there is reference to wells that are, 17 at the shallowest, approximately 3,000 feet, and those 18 were historical wells, and they would have been 19 incorporated within the historical subsidence 20 analysis.
21 JUDGE TRIKOUROS: So if the -- hang on.
22 Let me get the reference. I guess it would be the 23 state land office. If the state land office were to 24 issue a lease to someone to do drilling, what depth 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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451 would they tell them they have to drill below, or 1
would they not even specify?
2 MS. LEIDICH: Is this for oil and gas?
3 JUDGE TRIKOUROS: For oil and gas or 4
potash, but let's say oil and gas.
5 MS. LEIDICH: Hold on a second. I have a 6
question that I'm trying to -- in that area, oil and 7
gas drilling typically actually happens through the 8
BLM on drill islands, of which there are several in 9
the area, and that's because it's a special potash 10 area and they're trying to make sure that the oil and 11 gas does not interfere with the potash.
12 So I'm not certain and I'm trying to -- we 13 could answer this question in writing potentially, but 14 I'm trying to confirm if the state land office has the 15 ability to even approve an oil and gas well. Yes, all 16 oil and gas islands in that area are on drill islands 17 through BLM.
18 JUDGE TRIKOUROS: Well let me then ask the 19 question with respect to these drill islands. I guess 20 the drill islands are there to coordinate potash and 21 oil and gas interference, right? Is that the idea?
22 MS. LEIDICH: That's correct, because the 23 Salado formation is where the potash is located.
24 JUDGE TRIKOUROS: What would be the drill 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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452 depth that would be specified for drilling in one of 1
these drill islands?
2 MS. LEIDICH: It would have to be, at the 3
very least, at a location where oil and gas exist, so 4
not in the Salado formation, and I don't know if we 5
can specifically get a depth for you, but it would 6
have to be at least below the Salado formation.
7 MR. KANNER: Judge, this is Allan Kenner 8
for Fasken. I just want to add that there are these 9
drilling islands, but you drill laterally into this 10 area from those islands.
11 And we submitted an affidavit from Mr.
12 Pollock who said that the historical wells were not 13 even 3,000
- feet, indicating that there was 14 petrochemicals at a higher level, and if you want, 15 we're happy to amplify that in writing.
16 But with respect to the potash, what the 17 DEIS also did was ignore the impact of that oil and 18 gas activity on the stability of the potash and what 19 its ecological or ecosystem effects might be.
20 JUDGE TRIKOUROS: The inconsistency that's 21 identified is what I'm trying to understand. The 22 3,050 number appears to be associated with the project 23 area, which I assume would include these islands, the 24 drill islands and the Salado formation, but not the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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453 site necessarily itself, whereas the 5,000 feet in 1
both the SAR and the ER seems to be more related to 2
potash and more related to beneath the site.
3 So I was just trying to understand how 4
those relate to each other and how that integrates in 5
with either the Bureau of Land Management or the state 6
land office issuing a lease to someone to do drilling.
7 It's not clear to me what the safe drilling depth is, 8
and I'm just trying to understand what that is.
9 MR. KANNER: This is Allan Kanner. And 10 related to that very legitimate concern is that 11 Holtec, today at least, hasn't really explained what 12 potash rights it, in fact, controls or doesn't 13 control, and what that means today, tomorrow, 40 14 years, 120 years in the future. Thank you.
15 JUDGE TRIKOUROS: Yeah, if you look, for 16 example, at Holtec's answer on, I believe it's page 17 43, it says in the middle of the first full paragraph, 18 it says, however, it says, regardless of the depth 19 that is listed, Fasken has not challenged the ultimate 20 conclusion that drilling will occur at sufficient 21 depth to avoid subsidence issues, and that's very 22 nebulous. I mean it doesn't say what that depth is, 23 and I couldn't find anything that does.
24 MS. LEIDICH: Your Honor, this is Anne 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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454 Leidich representing Holtec. I think we would say 1
that there has been no evidence of subsidence at this 2
site, even with all of the drilling activity that has 3
occurred for the last 70-plus years, I believe, up to, 4
in fact, since the 1940s as is described in the ELEA 5
report.
6 This includes some drills that were 7
roughly just above 3,000 feet, and we don't -- there 8
is no evidence, and Fasken has not provided any 9
evidence that drilling for oil and gas produces 10 subsidence in this area, and they have not --
11 (Simultaneous speaking.)
12 MS. LEIDICH: -- challenged the existing 13 analysis.
14 MR. KANNER: Allan Kanner for Fasken. I 15 believe that we have challenged some characterization, 16 but I would refer Your Honor to the Holtec DEIS at 3-17 27 entitled subsidence and sinkholes.
18 And it relies on recent studies imploring 19 satellite imagery citing a 2016 article by Kim and SMU 20 Research of 2018, identifying movement of ground 21 surface across approximately 4,000 square miles in 22 west Texas experiencing as much as 40 inches of 23 subsidence over a 2.5 year time frame. So just think 24 about what that would do to a concrete slab, and so 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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455 we're relying on data they came up with.
1 They also mentioned the Zhang, Z-H-A-N-G, 2
2018 study about significant subsidence within potash 3
mining areas close to this site. So I think that 4
there is evidence in the record for us to raise these 5
concerns.
6 JUDGE TRIKOUROS: Yes, my issue is not 7
with respect to historical, but more with respect to 8
this, and there seems to be some contradiction and I'm 9
trying to get it resolved.
10 For example, what I just read you with 11 this ---
12 (Telephonic interference.)
13 JUDGE TRIKOUROS:
which Holtec 14 dismissed the question of 3,050 versus 5,000 by saying 15 what I just read you, that regardless of that 16 controversy, drilling will occur at sufficient depths 17 to avoid subsidence issues, but that is not -- I 18 couldn't understand what that was from the file. All 19 right, well --
20 MS. LEIDICH: Your Honor, this is Anne 21 Leidich again from Holtec. I mean I think we would 22 say that there has been no evidence of subsidence from 23 oil and gas drilling, and the oil and gas drilling 24 would occur below a depth of 3,000 feet or -- we 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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456 initially stated 5,000 feet, but we intend to revise 1
that in the environmental report.
2 The subsidence that petitioners have 3
referenced, I believe, and I wasn't able to turn to 4
the page of the DEIS quickly enough, but it was from 5
potash mining.
6 Potash mining is very different than oil 7
and gas drilling, and the potash mining in that area 8
at this point, due to the presence of BLM drill 9
islands near this site, actually cannot occur for most 10 of the CISF facility site.
11 JUDGE TRIKOUROS: Okay, all right.
12 MR. KANNER: Your Honor, this is Allan 13 Kanner. I just wanted to -- two things if I might.
14 I think everybody agrees that the subsurface of this 15 area is complex and interconnected, and for them to 16 take one fact and say that that explains everything or 17 they make one change, they would have to really tie it 18 into everything else.
19 But if I might, with the indulgence of the 20 court, I think Mr. Pollock is available and would like 21 to address this issue. He's a geologist knowledgeable 22 in the area.
23 JUDGE RYERSON: Yeah, if he hasn't entered 24 an appearance as counsel, I'm afraid we don't really 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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457 allow that.
1 MR. KANNER: Okay, well if there's an 2
opportunity to submit something in writing, we would 3
like that opportunity as well.
4 JUDGE RYERSON: At the end, we've had at 5
least two offers for some further filings. I think it 6
will depend on whether Judge Trikouros wants to pursue 7
his questions or not, so why don't we deal at the very 8
end with what, if any, additional filings will take 9
place?
10 MR. KANNER: Thank you.
11 JUDGE RYERSON: Judge Trikouros, did you 12 have more questions?
13 JUDGE TRIKOUROS: Well I guess a little 14 more follow up. You're saying -- Holtec is saying 15 that basically they will be amending the environmental 16 report or updating this environmental report to change 17 the 5,000 to 3,050? Is that what I heard?
18 MS. LEIDICH: That is correct.
19 JUDGE TRIKOUROS: When is that happening?
20 MS. LEIDICH: I believe it will happen 21 after the RAI responses.
22 JUDGE TRIKOUROS: All right, well I'm 23 going to end my questioning at that point.
24 JUDGE RYERSON:
Thank
- you, Judge 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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458 Trikouros. Judge Arnold?
1 JUDGE ARNOLD: Yes, this is Judge Arnold 2
and I do have questions. My first question is for 3
Fasken. Now on page 5 of your motion to file amended 4
contention, you argue that you fill the requirements 5
for good cause stating, quote, the information forming 6
the basis for amending contention two was not 7
available prior to publication of the Holtec DEIS, and 8
"Holtec DEIS significantly varies in material respects 9
from information contained in Holtec's license 10 application documents."
11 That's a good start. What I looked for 12 and I didn't see anywhere in either of your motions 13 was when -- I was looking to see where you identified 14 new material upon which the contention is based, 15 identified any related old information, identified the 16 difference between the new information and the old 17 information and show how that difference is material, 18 and then finally, show that your contention was based 19 on that difference.
20 Now there's no strict requirement for you 21 to be that explicit in your motions, but we have to 22 see in order to find that the good cause has been 23 satisfied. So could you take me through one example 24 of where you've identified new information, compared 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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459 it to the old, shown that the difference was material, 1
and showed that your contention is based upon that 2
difference?
3 MR. KANNER: Yes, I can give you more than 4
one example. Wait, hang on. Let me just find -- I'm 5
just looking in my notes for a second for that 6
example.
7 Okay, so cumulatively, there's the minimal 8
to moderate risk under the cumulative impact I thought 9
was significant, but there are a number of building 10 blocks.
11 So for example, under subsidence and 12 sinkholes, the Holtec ER at 3-19, Section 3.3.3 13 entitled salt dissolution and sinkholes, it relies on 14 a 2007 study.
15 The DEIS at 3-27, the section entitled 16 subsidence and sinkholes relies on different, more 17 current information that I mentioned earlier, the 18 satellite imagery for example, the Kim study, the SMU 19 Research, and the Zhang 2018 study, I think, is one 20 good example.
21 But then we also go into seismicity, you 22 know, in terms of the risk of earthquakes. You have 23 the DEIS at 3-23, that's the Section 3.44 where they 24 talk about the number of earthquakes, and you know, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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460 that's different from the ER at 3-17, Section 3.3.2.1 1
on earthquake activity, and as we noted, in the last 2
60 days, there have been 20 more earthquakes in the 3
broader area.
4 The updated information on the potash 5
mining, that's the DEIS at 5-24 versus the Holtec ER 6
at 3-2, and we have updated information or different 7
-- I say updated, different information on mineral 8
resources, and we spoke to that both in the Pollock 9
affidavit, but the DEIS 9-2, Table 9-1, the summary of 10 environmental impact for land use, Holtec's ER at 7-6, 11 Section 8.1.3, unavoidable adverse environmental 12 impacts.
13 I think there are a lot of places that 14 we've identified differences, and I think that those 15 are material issues, and we talk about that in our 16 brief. That is the brief and the reply brief that we 17 ultimately submitted to the panel. Is that responsive 18 to your question, Your Honor?
19 JUDGE ARNOLD: I was looking for one 20 example, and let's go back to the first one, the salt 21 dissolution. How was the new information different, 22 materially different than the previous information?
23 Did it come up with the same conclusion, or did it 24 lead to a different conclusion?
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461 MR. KANNER: I think it led to -- well it 1
led to a different conclusion. The problem is more 2
pervasive than acknowledged in the ER, which is 3
probably one of the reasons they went from limited 4
impact to moderate overall impact on the location.
5 JUDGE ARNOLD: But where did they change 6
that impact? Can you cite to that?
7 MR. KANNER: Yeah, yeah, I'm going to just 8
-- I have -- I'm just -- yes, I can cite to it. I 9
just need to flip through my documents, just one 10 second. Hang on. Okay, I'm sorry.
11 Okay, page 12 of our brief, the original 12 brief, Your Honor, we cite to Holtec's ER found 13 minimal potential for any cumulative impact to geology 14 and soils from the proposed Holtec CISF project, and 15 then the cite is footnote 42, the Holtec ER at 5-3.
16 Quote, impacts to geology and soils would 17 be minimal, and it goes on to say that, and then we go 18 back to the text. By contrast, the Holtec DEIS 19 recently concluded that the project would have a small 20 cumulative impact to geology and soils, which when 21 combined with regional activity, would result in 22 overall moderate cumulative impact.
23 This constitutes new and material 24 information that is significantly different. It also 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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462 raises a question about whether enough study has been 1
done.
2 JUDGE ARNOLD: Okay, let me ask staff, 3
since this is your DEIS, do you agree with that 4
assessment, that there is a significant difference in 5
the cumulative impact going from minimal to moderate?
6 MS. SUSKO: This is Rebecca Susko. No, 7
Your Honor.
I would not agree with that 8
characterization. The ER states that facility would 9
have a minimal impact on geology and soil. And the 10 staff equally determined that the incremental impact 11 to the proposed facility would be small.
12 Fasken hasn't shown how that information 13 and the conclusion differs at all from what was in the 14 ER. The determination of a moderate impact that 15 Fasken has pointed to relates to the overall 16 cumulative impact determination.
17 The ER did not present an overall 18 cumulative impact determination. So to the extent 19 that Fasken believes that this overall cumulative 20 impact determination, which is based on other past, 21 present and reasonably foreseeable future actions 22 surrounding the proposed facility, speaks to that. If 23 Fasken believes that should have been included in the 24 ER, Fasken could have raised that argument at the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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463 outset of the proceeding.
1 MR. KANNER: Your Honor, this is Allan 2
Kanner. I just want to note we believe the 3
conclusions are different. But also for completeness, 4
they are each relying on different data, which goes to 5
our concern about the integrity of the overall study.
6 JUDGE ARNOLD: Okay. I think I 7
understand. Another question for Fasken. On page 13 8
of your Motion to File Amended Contention, you state:
9 "Contrary to statements in Holtec's application 10 documents and the most recent Holtec DEIS and 11 previously highlighted by Petitioners, Holtec does not 12 own the mineral rights below the site."
13 Now can you tell me where in the DEIS it 14 is stated that Holtec does own the mineral rights 15 below the site?
16 MR. KANNER: I think what I had said 17 earlier was that Holtec represented they controlled 18 the mineral rights in their ER, which was a false 19 statement in the DEIS. I don't think staff accepted 20 that.
21 JUDGE ARNOLD: Well I'm not interested in 22 control. I'm wondering why you say that the Holtec 23 DEIS says that they own the mineral rights below the 24 site because I could not find that in the DEIS.
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464 MR. KANNER: I'm just taking a look at the 1
DEIS for a second, Your Honor.
2 JUDGE ARNOLD: Okay.
3 MR. KANNER: All right. Yes. First, the 4
footnote goes to the land -- footnote 45 goes to the 5
land and refers to the land commissioner letter. What 6
I was intending to say in that sentence was they had 7
made this false representation in the ER. And we 8
believe it's false, and that nobody subsequently has 9
agreed with them on their position relative to the 10 control of all the mineral rights.
11 Maybe I could have said it better for Your 12 Honor. But I was not suggesting that there was an 13 affirmative statement in the DEIS, but rather you 14 couldn't go to it to corroborate what was said in the 15 ER, which frankly I think that they couldn't reach a 16 conclusion on that speaks volumes.
17 JUDGE ARNOLD: Okay. Next question. Mr.
18 Pollock in his declaration provided a count of 527 19 well bores within six miles of the facility. And he, 20 you know, gave numbers for the different types of 21 bores. He concludes the DEIS fails to accurately 22 describe past, present and ongoing oil and gas 23 production.
24 Well I'm looking at Figure 3.2-7 and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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465 that's on DEIS page 3-6. And let's see. Current and 1
past wells are in that figure. And it shows an awful 2
lot of wells. It shows the oil, gas, saltwater and 3
injection wells, both active and plugged in the area 4
around the Holtec site.
5 Is it your contention that this map is 6
incorrect, that it contains wrong information or is 7
missing some information?
8 MR. KANNER: You're on 3-6 of the DEIS?
9 JUDGE ARNOLD: Yes.
10 MR. KANNER: Okay. What we're saying is 11 that it is not comprehensive. So it is missing 12 information. I don't think we spoke to -- I don't 13 think the affidavit specifically says if they were 14 wrong except impliedly to say they were incomplete.
15 JUDGE ARNOLD: Okay. Do you have an 16 instance of a missing well on this figure?
17 MR. KANNER: Do you want me to tell you 18 whether the wells that were identified by Mr. Pollock 19
-- what?
20 JUDGE ARNOLD: I'm wondering if you have 21 a factual evidence that there's something missing here 22 rather than just a belief.
23 MR. KANNER: Give me one second. I just 24 want to take a look at that. Yes. Could I have the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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466 question again please?
1 JUDGE ARNOLD: I would like to know if you 2
have factual support in the form of an example of a 3
well missing from that figure?
4 MR. KANNER: I would have to ask my 5
technical expert that exact question. I believe that 6
-- we believe that Fasken believes this is a more 7
comprehensive list than appears there. But I was told 8
I couldn't really ask him that question or ask him to 9
speak to that question earlier.
10 JUDGE ARNOLD: Okay. That satisfies me.
11 Now I have some questions for Holtec having to do with 12 DEIS Figure 2.2-2 on page 2-4. Who is going to answer 13 that? Would that be Mr. Silberg?
14 MR. SILBERG: It depends what the question 15 is, sir.
16 JUDGE ARNOLD: Do you have the figure?
17 MR. SILBERG: Yes, we do.
18 JUDGE ARNOLD: I just want to make sure 19 that I understand it correctly. The little black 20 rectangles, are those the actual concrete pads that --
21 MR. SILBERG: Yes, sir.
22 JUDGE ARNOLD: Okay. Is that the final 23 configuration or just this license?
24 MR. SILBERG: I think that includes the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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467 entire build-out.
1 JUDGE ARNOLD: Okay. And there's a 2
rectangle that surrounds the pads. It's close to the 3
pads. Is that like a fence there?
4 MR. SILBERG: I believe that's correct.
5 JUDGE ARNOLD: And that looks to be about 6
300 feet from the pads?
7 MR. SILBERG: 400 feet.
8 JUDGE ARNOLD: 400, okay. And then the 9
site boundary looks like it's another 600 feet out?
10 MR. SILBERG: It depends which direction.
11 JUDGE ARNOLD: Right, right. But the 12 closest would be?
13 MR. SILBERG: Let me see if I can get that 14 answer.
15 JUDGE ARNOLD: I don't need an exact 16 answer.
17 MR. SILBERG: Okay.
18 JUDGE ARNOLD: But it's 500 to 600 feet.
19 So when Mr. Pollock says the drilling could occur as 20 close to 300 feet from the property boundary, that 21 would then put it on the order of 1,200 to 1,300 feet 22 from any stored fuel?
23 MR. SILBERG: I think that would be about 24 right.
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468 JUDGE ARNOLD: Okay. I just wanted to 1
make sure that I understood the picture. That ends my 2
questions.
3 JUDGE RYERSON: Thank you, Judge Arnold.
4 I really don't have any more questions at this point.
5 I think at the end we should discuss again what if, 6
any, supplemental filings are necessary.
7 I think it was really you, Judge -- first 8
of all, Judge Trikouros, are you going to have some 9
further questions now or not?
10 JUDGE TRIKOUROS: No, I don't.
11 JUDGE RYERSON: Judge Trikouros, are you 12 on mute?
13 JUDGE TRIKOUROS: I am not on mute. Can 14 you hear me?
15 JUDGE RYERSON: I can hear you now.
16 JUDGE TRIKOUROS: Okay.
17 JUDGE RYERSON: Do you expect to have 18 further questions at this point?
19 JUDGE TRIKOUROS: No. I don't think so.
20 JUDGE RYERSON: Okay. Well then the 21 question I have for -- really I think it's primarily 22 for you, although Judge Arnold, if you think something 23 further is required by all means weigh in. Do any of 24 the questions that you raised, Judge Trikouros, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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469 require further filings by either party?
1 JUDGE TRIKOUROS: Well the fact that the 2
ER is starting to be updated adds a bit of confusion 3
to the process. And I'm not sure what we can do about 4
that. Would it be possible for the Board to think 5
about that and issue an Order regarding any 6
supplemental information?
7 JUDGE RYERSON: We can do that. We can 8
decide whether we need any further information. And 9
if so, we can issue an Order and obviously invite both 10 sides to comment.
11 So let's leave it at that. Nobody is 12 under an obligation to do anything further at this 13 point until we decide if we do that we want to direct 14 a few further questions to folks in an Order.
15 Okay. And Judge Arnold, I take it you are 16 satisfied at this point?
17 JUDGE ARNOLD: Yes, I am.
18 JUDGE RYERSON: Okay. Well I guess I 19 should take a moment just -- I did say at an 20 appropriate point if anyone felt they needed to 21 respond to a question they weren't asked. Does anyone 22 feel that need right now or is everyone pretty much 23 done?
24 MR. SILBERG: For Holtec, I think we're 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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470 pretty much done, Your Honor.
1 JUDGE RYERSON: Okay. And I think, 2
Fasken, we're the ones who asked you the most 3
questions so I assume that you're done.
4 MR. KANNER: Yes. I'm ready to go for 5
another hour, Your Honor. What's the hold-up? Thank 6
you for your -- listen, I want to thank the entire 7
panel. You guys were very thorough and asked a lot of 8
questions, you know, and we appreciate your attention 9
to this vitally important matter.
10 JUDGE RYERSON: Okay. Thank you. And 11 again, the NRC staff, do you have anything further?
12 MS. SUSKO: Nothing further. Thank you.
13 JUDGE RYERSON: Okay. Thank you. All 14 right. So I guess that concludes what we hoped to 15 accomplish today. And our job now is to take the 16 information we've learned today as well as, of course, 17 the pleadings, and reach a decision on Fasken's 18 motions.
19 The Commission has some milestones for us 20 for things like that. And we're expected to issue a 21 decision within 45 days, which I think takes us to 22 September 21. If we're not going to meet that, we 23 would have to, or should issue, an Order saying when 24 we will issue a decision. I expect that we would be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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471 able to issue a decision by September 21.
1 I think on behalf of the Board, I'd like 2
to thank all counsel for their presentations today.
3 They've been very helpful, and they were all done very 4
professionally.
5 Judge Trikouros, anything else before we 6
adjourn?
7 JUDGE TRIKOUROS: No. Thank you.
8 JUDGE RYERSON: Judge Arnold?
9 JUDGE ARNOLD: No. I have nothing 10 further.
11 JUDGE RYERSON: Okay. Well we stand 12 adjourned. Everyone stay safe.
13 (Whereupon, the above-entitled matter went 14 off the record at 3:08 p.m.)
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