ML20300A530

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Answer in Opposition to Fasken and Pblro Appeal of LBP-20-10
ML20300A530
Person / Time
Site: HI-STORE
Issue date: 10/26/2020
From: Gill W, Leidich A, Perkins J, Silberg J, Walsh T
Holtec, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:
NRC/OCM
SECY RAS
References
ASLBP 18-958-01-ISFSI-BD01, RAS 55841, Holtec International
Download: ML20300A530 (29)
v • d • e


Text

October 26, 2020 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

) Docket No. 72-1051 Holtec International )

)

(HI-STORE Consolidated Interim Storage )

Facility) )

HOLTEC INTERNATIONALS ANSWER IN OPPOSITION TO FASKEN LAND AND MINERALS, LTD.S AND PERMIAN BASIN LAND AND ROYALTY OWNERS APPEAL OF LBP-20-10 William F. Gill Jay E. Silberg Kathryn L. Perkins Timothy J. V. Walsh HOLTEC INTERNATIONAL Anne R. Leidich Krishna P. Singh Technology Campus PILLSBURY WINTHROP SHAW PITTMAN LLP 1 Holtec Boulevard 1200 Seventeenth Street, NW Camden, NJ 08104 Washington, DC 20036 Telephone: (856) 797-0900 Telephone: 202-663-8707 W.Gill@holtec.com Facsimile: 202-663-8007 K.Perkins@holtec.com jay.silberg@pillsburylaw.com timothy.walsh@pillsburylaw.com anne.leidich@pillsburylaw.com Counsel for HOLTEC INTERNATIONAL 4822-6130-1967.v4

TABLE OF CONTENTS I. Introduction ............................................................................................................................... 1 II. Statement of the Case................................................................................................................ 2 III. Standard of Review ................................................................................................................... 4 IV. Argument .................................................................................................................................. 5 A. Faskens Arguments Regarding the Timeliness and Admissibility of Contention 2 and the Adequacy of the Motion to Reopen Should Be Dismissed for Failing to Challenge LBP-20-10........................................................................................................................... 6

1. Fasken Does Not Demonstrate Clear Error or Abuse of Discretion in the Boards Determination that Its Claims Are Late ........................................................................ 7
2. Fasken Does Not Demonstrate Clear Error or Abuse of Discretion in the Boards Determination that Its Claims Are Inadmissible ......................................................... 11
3. Fasken Identifies No Error or Abuse of Discretion in the Boards Rejection of Its Motion to Reopen .................................................................................................. 15
4. Faskens New Arguments at Oral Argument and on Appeal Should Be Rejected as Improper ...................................................................................................................... 15 B. Faskens Legal Arguments Regarding Calvert Cliffs and the Oral Argument Are Inconsistent with Controlling Precedent and Practice ...................................................... 18
1. Faskens Argument Regarding the Boards Alleged Failure to Follow Calvert Cliffs Should Be Dismissed Because Calvert Cliffs is Not Controlling Precedent .............. 18
2. Fasken Is Not Entitled to a Hearing or to Present Expert Testimony at the Contention Admissibility Stage of the Proceeding ..................................................... 20 V. Conclusion .............................................................................................................................. 23 i

4822-6130-1967.v4

TABLE OF AUTHORITIES Page(s)

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

CLI-06-24, 64 NRC 111 (2006).................................................................................................4 Baltimore Gas and Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2),

CLI-98-25, 48 NRC 325 (1998).........................................................................................10, 18 Calvert Cliffs 3 Nuclear Project, LLC and Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3),

LBP-10-24, 72 NRC 720 (2010)..................................................................................18, 19, 20 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349 (2001)...............................................................................................13 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-04-36, 60 NRC 631 (2004).................................................................................................4 Duke Power Co. (Catawba Nuclear Station, Units 1 & 2),

CLI-83-19, 17 NRC 1041 (1983)...............................................................................................9 Duke Energy Corp. (Oconee Nuclear Station Units 1, 2, and 3),

CLI-99-11, 49 NRC 328 (1999)...............................................................................................14 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),

CLI-12-10, 75 NRC 479 (2012).....................................................................................7, 16, 20 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3),

CLI-08-07, 67 NRC 187 (2008)...............................................................................................21 Exelon Generation Company (Dresden Nuclear Power Station, Units 2 & 3),

LBP-14-04, 79 NRC 319 (2014)..............................................................................................17 Exelon Generation Company, LLC (Oyster Creek Nuclear Generating Station),

CLI-19-06, 89 NRC 465 (2019)...............................................................................................21 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 6 & 7),

LBP-17-02, 85 NRC 14 (2017)................................................................................................21 Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit 1),

ALAB-893, 27 NRC 627 (1988) .............................................................................................18 Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2),

CLI-92-03, 35 NRC 63 (1992)...................................................................................................5 ii 4822-6130-1967.v4

Holtec International (HI-STORE Consolidated Interim Storage Facility),

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

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

LBP-20-10, 91 NRC __ (Sept. 3, 2020)........................................................................... passim Holtec International (HI-STORE Consolidated Interim Storage Facility),

LBP-20-06, 91 NRC __ (June 18, 2020) ..............................................................................2, 3 Louisiana Energy Servs., L.P. (National Enrichment Facility),

CLI-04-25, 60 NRC 223 (2004).................................................................................................5 Louisiana Energy Servs., L.P. (National Enrichment Facility),

CLI-04-35, 60 NRC 619 (2004).................................................................................................5 Luminant Generation Co. LLC (Comanche Peak Nuclear Power Plant Units 3 and 4),

CLI-12-7, 75 NRC 379 (2012)...................................................................................................4 Nuclear Management Co. (Palisades Nuclear Plant),

CLI-06-17, 63 NRC 727 (2006)...............................................................................................17 PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2),

CLI-15-08, 81 NRC 500 (2015)...............................................................................................14 Paina Hawaii, LLC, LBP-06-4, 63 NRC 99 (2006)..................................................................................................13 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-00-21, 52 NRC 261 (2000).................................................................................................4 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility),

CLI-07-20, 65 NRC 499 (2007).................................................................................................4 Tennessee Valley Authority (Clinch River Nuclear Site),

LBP-18-4, 88 NRC 55 (2018)..................................................................................................21 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2),

CLI-93-10, 37 NRC 192 (1993).................................................................................................5 USEC, Inc. (American Centrifuge Plant),

CLI-06-10, 63 NRC 451 (2006).................................................................................................5 USEC, Inc. (American Centrifuge Plant),

CLI-06-9, 63 NRC 433 (2006)...................................................................................................4 iii 4822-6130-1967.v4

Entergy Nuclear Vermont Yankee LLC (Vermont Yankee Nuclear Power Station),

CLI-11-2, 73 NRC 333 (2011).................................................................................................20 Virginia Electric and Power Company (North Anna Power Station, Unit 3),

LBP-08-23, 68 NRC 679 (2008)..............................................................................................21 Rules and Regulations Code of Federal Regulations Title 10, Section 2.306 ...............................................................................................................1 Title 10, Section 2.309(c)...................................................................................................19, 20 Title 10, Section 2.309(f) ................................................................................................. passim Title 10, Section 2.309(f)(1) ............................................................................................ passim Title 10, Section 2.309(f)(2) ....................................................................................................19 Title 10, Section 2.311 ...........................................................................................................4, 5 Title 10, Section 2.326 .....................................................................................................2, 6, 16 Title 10, Section 2.341 .....................................................................................................1, 4, 11 Federal Register 51 Fed. Reg. 19535, 19358 (1986) ..........................................................................................16 69 Fed. Reg. 2182, 2202 (2004) ..............................................................................................13 75 Fed. Reg. 14474 (2010) ......................................................................................................23 75 Fed. Reg. 21368 (2010) ......................................................................................................23 77 Fed. Reg. 46562, 46566 (2012) ..........................................................................................19 83 Fed. Reg. 18354 (2018) ......................................................................................................23 85 Fed. Reg. 16150 (2020) ........................................................................................................3 Other Authorities Blacks Law Dictionary (11th ed. 2019)........................................................................................21 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998)...........................................................................................13 iv 4822-6130-1967.v4

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

) Docket No. 72-1051 Holtec International )

)

(HI-STORE Consolidated Interim Storage )

Facility) )

HOLTEC INTERNATIONALS ANSWER IN OPPOSITION TO FASKEN LAND AND MINERALS, LTD.S AND PERMIAN BASIN LAND AND ROYALTY OWNERS APPEAL OF LBP-20-10 I. Introduction Pursuant to 10 C.F.R. § 2.341(b), Holtec International (Holtec) submits this answer in opposition to Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners (collectively Fasken) appeal 1 of the Atomic Safety and Licensing Boards (the Board)

September 3, 2020 Memorandum and Order (Denying Motions to Reopen and for Leave to File),

LBP-20-10, 2 in the Nuclear Regulatory Commission (NRC or Commission) licensing proceeding for Holtecs proposed HI-STORE Consolidated Interim Storage Facility (CISF).

The Board properly denied Faskens late-filed Amended Contention 2. The Commission should reject Faskens appeal because Fasken fails to identify any error or abuse of discretion in the Boards ruling. The Appeal therefore offers no real basis for overturning the Boards ruling and should be denied.

1 Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Combined Notice of Appeal and Petition for Review of Atomic Safety Licensing Boards Denial of Motion for Leave to File Amended Contention and Motion to Reopen the Record (Sept. 29, 2020) (ADAMS Accession No. ML20273A001) (Appeal).

2 Holtec International (HI-STORE Consolidated Interim Storage Facility), Memorandum and Order (Denying Motions to Reopen and for Leave to File), LBP-20-10, 91 NRC __, slip op. (Sept. 3, 2020) (ADAMS Accession No. ML20247J549) (LBP-20-10).

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II. Statement of the Case The complete factual background and prior proceedings before the Board and the Commission are set forth in the Boards decisions in LBP-19-04, 3 LBP-06-10, 4 and LBP-20-10, and the Commissions decision in this proceeding in CLI-20-04. 5 On May 7, 2019, the Licensing Board issued LBP-19-04, which rejected all of the intervention petitions filed in this proceeding, including the intervention petition filed by Fasken, and terminated the proceeding. 6 Fasken then petitioned the Commission for review of LBP 04. 7 While its petition for review was pending before the Commission, Fasken on August 1, 2019, filed a motion to raise a new Contention 2, relating to oil, gas, and mineral extraction at the site. 8 In violation of 10 C.F.R. § 2.326, Fasken failed to accompany this filing with the required motion to reopen the record. Eventually, on September 3, 2019, Fasken belatedly filed a motion to reopen. 9 Nine days later, on September 12, 2019, Fasken inexplicably withdrew this motion to reopen. 10 The Board on June 18, 2020, nevertheless consideredand ultimately rejected Faskens late-filed Contention 2, finding that Fasken not only failed to address the requirements 3

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

4 Holtec International (HI-STORE Consolidated Interim Storage Facility), Memorandum and Order (Ruling on Remanded Contentions and Denying Motion to Reopen), LBP-20-06, 91 NRC __, slip op. (June 18, 2020)

(ADAMS Accession No. ML20170A558) (LBP-20-06).

5 Holtec International (HI-STORE Consolidated Interim Storage Facility), CLI-20-04, 91 NRC __ (slip op.)

(ADAMS Accession No. ML20114E150) (Apr. 23, 2020).

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

7 Following Faskens filing of its appeal, Holtec cross-appealed the Licensing Board determination that Fasken had adequately demonstrated its standing. See Holtec Internationals Brief in Opposition to Fasken and Permian Basin Land and Royalty Owners Appeal of LBP-19-04 at 14-19 (Jun. 28, 2019) (ADAMS Accession No. ML19179A328).

8 Fasken Oil And Ranch And Permian Basin Land And Royalty Owners Motion For Leave To File A New Contention (Aug. 1, 2019) (ADAMS Accession No. ML19213A171) (August 1 Motion).

9 Fasken Oil and Ranch And Permian Basin Land and Royalty Owners Motion for Leave to Reopen and Incorporate Contention Filed August 1, 2019 (Sept. 3, 2019) (ADAMS Accession No. ML19246B809).

10 Fasken And PLBROs Withdrawal of Their Motion for Leave to Reopen and Incorporate Contention Filed August 1, 2019 (Sept. 12, 2019) (ADAMS Accession No. ML19255G616).

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for reopening the record, but also failed to show how its Contention met the requirements for filing out of time. 11 Prior to the Boards decision in LBP-20-06, Fasken on May 11, 2020, submitted an Amended Contention 2 along with a second motion to reopen the record. 12 Fasken stated that its Amended Contention 2 was filed in response to the Staffs publication of the NRC Staffs Draft Environmental Impact Statement (DEIS) concerning the CISF. 13 Fasken claimed that its Amended Contention 2 was intended to contest newly disclosed and highly pertinent information, and challenge differences between the CISF Application and the DEIS. 14 On September 3, 2020, following oral argument, the Board rejected Faskens Amended Contention 2. The Board found that Fasken failed to meet its burden to reopen the record because its Amended Contention 2 was not based on new information unavailable prior to publication of the DEIS, but was based on information that was publicly available in Holtecs application materials much earlier. 15 In fact, as the Board noted, Faskens Amended Contention 2 [b]y its terms . . . allege[s] deficiencies in Holtecs application and does not even mention the DEIS. 16 The Board also rejected Faskens claim (raised for the first time at oral argument) that its Amended Contention 2 raised an exceptionally grave issue, 17 and found that 11 LBP-20-06, 91 NRC at __ (slip op. at 19-21).

12 Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Motion to Reopen the Record (May 11, 2020) (ADAMS Accession No. ML20132E724) (Motion to Reopen); Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Motion for Leave to File Amended Contention No. 2 (May 11, 2020) (ADAMS Accession No. ML20132F019) (Motion for Leave).

13 See Holtec International HI-STORE Consolidated Interim Storage Facility Project, 85 Fed. Reg. 16,150 (Mar. 20, 2020); see also NUREG-2237, Environmental Impact Statement for the Holtec Internationals License Application for Consolidated Interim Storage Facility for Spent Nuclear Fuel and High Level Waste, Draft Report for Comment (Mar. 2020) (ADAMS Accession No. ML20069G420) (DEIS).

14 Motion for Leave at 1-2.

15 LBP-20-10 at 8.

16 Id. at 9.

17 Id. at 15.

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Fasken failed to demonstrate good cause for filing out of time. 18 Finally, the Board found that irrespective of these deficiencies, Faskens Amended Contention 2 did not meet the admissibility requirements in 10 C.F.R. § 2.309(f)(1). 19 On September 29, 2020, Fasken filed its appeal with the Commission. 20 III. Standard of Review

[T]he standard for review of contention admissibility determinations is the same, whether an appeal lies under section 2.311 or 2.341 - [the Commission] will disturb a licensing boards contention admissibility ruling only if there has been an error of law or an abuse of discretion. 21 The Commission give[s] substantial deference to [Licensing] boards determinations on threshold issues such as standing and contention admissibility. 22 The Commission regularly affirm[s] Board decisions on the admissibility of contentions where the appellant points to no error of law or abuse of discretion. 23 As such, [p]ointing out errors in the Boards decision is a basic requirement for an appeal, 24 and a mere recitation of an appellants prior positions in a proceeding or a statement of his or her general disagreement with 18 Id. at 16-17. Notably, Fasken recognizes that its appeal falls under Section 2.341, see Appeal at 2, but fails to comply with the page limits set forth in the rule. Compare 10 C.F.R. § 2.341(b)(2) (A petition for review under this paragraph may not be longer than twenty-five (25) pages), with Appeal at 28.

19 Id. at 17.

20 Per the NRC Electronic Information Exchange System, Fasken filed their Appeal at 12:04 AM on September 29, 2020. Pursuant to 10 C.F.R. § 2.306, the cut off for document filing is 11:59 p.m. Eastern Time for a document served by the E-Filing system. 10 C.F.R. § 2.341(b)(3) provides that Holtec's response is due within 25 days of service of Fasken's Petition, making the due date in this instance Saturday, October 24 (and thus Monday, October 26 by the weekend filing rules).

21 See Comanche Peak, CLI-12-7, 75 NRC at 386.

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

23 Id. (internal quotation marks omitted) (quoting USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 439 n.32 (2006)); see also Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 NRC 631, 637 (2004) ([T]he Commission affirms Board rulings on admissibility of contentions if the appellant points to no error of law or abuse of discretion.) (quoting Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-21, 52 NRC 261, 265 (2000)).

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

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

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a decisions results is no substitute for a brief that identifies and explains the errors of a Licensing Board in the order below. 25 In addition, a petitioner is limited to the contentions as initially filed and may not rectify their deficiencies through an appeal. 26 The Commission has explained that, absent extreme circumstances, [it] will not consider on appeal either new arguments or new evidence supporting the contentions, which the Board never had the opportunity to consider. 27 Such new claims on appeal are prohibited because [a]llowing petitioners to file vague, unsupported contentions, and later on appeal change or add contentions at will would defeat the purpose of [the NRCs]

contention-pleading rules. 28 Moreover, [t]he purpose of an appeal to the Commission is to point out errors made in the Boards decision, not to attempt to cure deficient contentions by presenting arguments and evidence never provided to the Board. 29 IV. Argument The Appeal merely repeats claims made in Faskens earlier pleadings, and generally lacks substantive explanation or argument as to how the Board erred in determining that Faskens Amended Contention 2 (1) is inadmissible under the standards set forth in 10 C.F.R.

§ 2.309(f)(1), (2) fails to meet the contention admissibility standards of 10 C.F.R. § 2.309(f)(1),

and (3) fails to meet the reopening standards of 10 C.F.R. § 2.326. Moreover, on the occasions when Fasken does address the Boards decision, such as its claims regarding the Calvert Cliffs decision and the August 5, 2020 oral argument, it applies the wrong legal standards.

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

(quoting Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), CLI-92-03, 35 NRC 63, 67 (1992)).

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

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

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

28 Id. (citing Louisiana Energy Servs., L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622-23 (2004)).

29 Id. (footnote omitted).

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For all of these reasons, Fasken has done nothing on appeal to demonstrate an error of law or abuse of discretion in the Boards decision, and Faskens Appeal should be dismissed.

A. Faskens Arguments Regarding the Timeliness and Admissibility of Contention 2 and the Adequacy of the Motion to Reopen Should Be Dismissed for Failing to Challenge LBP-20-10 Throughout its Appeal, Fasken summarily argues that contrary to ASLB conclusions, Fasken has good cause to file Amended Contention No. 2 and it is admissible. 30 Fasken then simply lists a series of claims in support of its argument that it reiterates throughout the Appeal without any further explanation and often only one repeated sentence (or clause) on point. 31 This random and scattershot approach to briefing creates a distinct disadvantage in organizing a response to the Appeal. Thus, a catchall is necessary: when Fasken merely reargues its original filings without a direct reference to LBP-20-10, those arguments should be rejected for failure to establish any alleged error or abuse of discretion in the Boards decision.

The Board correctly determined that Contention 2 was both inexcusably late, 32 failed to meet the contention admissibility standards, particularly as to the requirement to raise a genuine dispute with the application on a material issue of fact or law, 33 and failed to meet the standards to reopen the record. Fasken argues that the Board was wrong but fails to identify any error or abuse of discretion in LBP-20-10.

In addition, the bases for Contention 2 set forth for the first time in oral argument or on appeal (including Faskens claims as to remote imagery studies and exceptionally grave issues) should be rejected as raised for the first time in reply, as described further below.

30 Appeal at 5-6, 14-16.

31 One example is Faskens twice-repeated reference to remote imagery studies that includes no DEIS reference and no apparent link to the decision in LBP-20-10. Id. at 6, 19.

32 LBP-20-10 at 8-17.

33 Id. at 17-23.

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1. Fasken Does Not Demonstrate Clear Error or Abuse of Discretion in the Boards Determination that Its Claims Are Late Faskens Amended Contention 2 was filed twenty months after the deadline for submitting hearing requests and contentions challenging the Application, and twelve months after the Board initially closed the record and terminated the proceeding. Fasken attempted to justify its late filing by claiming that amended Contention 2 was based on the recently released DEIS.

However, the Board correctly found that much of the information Fasken alleged was new in the DEIS (such as its claims regarding subsurface mineral rights), had previously been discussed in the Application. For the few differences that remain, the Board correctly found that the DEIS statements that Fasken relied upon did not materially differ from the information included in Holtecs Application. Indeed, Fasken never explained how or why any of these differences between the DEIS and the Application would be material. Fasken argues the Board is wrong for suggest[ing] that materiality should be judged from the perspective of the potential intervening parties. 34 However the Board is correct: potential intervening parties must raise their objections to an application at the outset of the proceeding, and alleged shortcomings that are not new today cannot sustain a late-filed contention. 35 On appeal, Fasken fails to establish that the Board erred in deciding that it could have raised its claims at the outset of the proceeding, and Faskens disagreement with the governing rules is not an error of law or abuse of discretion by the Board.

34 Appeal at 18.

35 See LBP-20-10 at 12; Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 492 (2012).

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a. As the Board Correctly Found, the DEISs Conclusion as to Moderate Impacts Is Neither New Nor Materially Different Than the ER Fasken first claims that the DEISs characterization of certain impacts as moderate should be litigated simply due to a perceived difference between the Application and the DEIS. 36 However, a mere difference between the two documents (if such a difference even exists) is not enough to sustain a contention by itself: the contention must also be material to the Staffs analysis. If Fasken wanted to argue that the impact were greater than moderate (and thus establish materiality), then it could have, and should have, made that argument based on the Applications characterization that the impacts were minimal.

In any event, there is no real difference between the DEIS and the Application on this point. Fasken appears to be mistaking the DEISs conclusion regarding cumulative impacts from all regional activity with the impact from the CISFthe DEIS concluded that, when the small impact from the CISF was added to the already-existing overall moderate impact from all other regional activity, the overall impact would remain moderate. 37 Thus, as the Board noted, the DEIS described the CISFs impact as small while the Application (in the Environmental Report ER) described the CISFs impact as minimal. Fasken does not show how a difference in the phrasing between minimal and small is material. 38 Indeed, the Board correctly found, it surely does not appear that any difference [between moderate and small]

could be material to Fasken, which had the opportunity to challenge Holtecs characterization of minimal impacts in September 2018, but did not. 39 36 Appeal at 18. For the record, Fasken is misrepresenting the impacts described in the DEIS. As the Board correctly noted, the impact on geology and soils is minimal in the DEIS, which is no different than the ER.

LBP-20-10 at 11.

37 DEIS at 5-11.

38 LBP-20-10 at 11-12.

39 Id. at 12.

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b. As the Board Correctly Found, the DEISs Information as to Drilling Depths Is Not Materially Different Than the ER The same can be said of Faskens claims related to drilling depths. 40 If Fasken claims that drilling can occur at depths shallower than the 3,050 foot depth stated in the DEIS, then it certainly could have argued the same about the 5,000 foot depth stated in the ER. As the Board correctly found, If Faskenwhich has been drilling and extracting oil in the region for over 80 yearsnow asserts that petroleum activities might occur even closer to the surface than 3,050 feet, why did it not timely challenge Holtecs initial representation they would occur no closer to the surface than 5,000 feet? 41 If there were an alleged deficiency in the ER, Fasken should have a raised a contention against the ER in September 2018. An intervenor cannot sit on its hands and defer filing its contention simply to wait for the Staffs analysis in the DEIS. 42 Yet, on appeal Fasken does not even address this clear deficiency. 43
c. As the Board Correctly Found, Many of the Other Sub-Arguments in Contention 2 Are Inexcusably Late These are only some of the many grounds why Faskens contention is simply and inexcusably late. Fasken also claims that use of a 6-mile radius versus a 50-mile radius to evaluate land use cumulative impacts 44 is somehow new in the DEIS. But, as the Board correctly found, this radius was based on the land use description in Holtecs ER and is not new 40 See, e.g., Appeal at 6, 19, 20 & n.68, 21, 22 (briefly referencing differences in drilling depths).

41 LBP-20-10, at 13 (citations omitted).

42 Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 17 NRC 1041, 1049 (1983).

43 See generally Appeal.

44 Appeal at 6.

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at all. 45 The same can be said of the description of mineral rights and potash mining: 46 as the Board correctly found, the DEIS merely echoes information previously provided by Holtec. 47 Similarly, the statements disputed by Fasken regarding information relating to oil and gas operations in the region, 48 are not new, as apparently acknowledged by Fasken when it attempted to claim on appeal that the Staff did not perform an independent analysis. 49 In sum, Fasken does nothing to demonstrate the Board was in error or abused its discretion by finding that the information in Contention 2 is not new. Nor does Fasken adequately support a finding that it could only have raise its claims based on the DEIS. In fact, as the Board correctly pointed out, Fasken throughout this proceeding has conflated its references to the DEIS with the Application and has supported the timeliness of its filing with only vague and non-specific references to allegedly new information. 50 On appeal, Fasken continues this trend by bundling the DEIS and ER together as if they are the same document, 51 only further obscuring the untimeliness of its claims. Such imprecision cannot be sufficient for an intervenor to meet their burden to demonstrate the timeliness of a late-filed contention. 52 45 LBP-20-10 at 12 (Another example is Faskens claim that a six-mile radius for assessing the cumulative impacts on land use was applied for the first time in the Holtec DEIS. However, Holtecs Environmental Report uses a six-mile radius to describe land uses surrounding its proposed facility and a larger, 50-mile radius for its cumulative impact analysis. The information on which the DEIS relies is merely a subset of the information in Holtecs Environmental Report.).

46 Appeal at 6.

47 LBP-20-10 at 9 (Faskens fundamental argument is that statements in the DEIS continue to misrepresent information that Fasken claims was misrepresented or wrongfully omitted from Holtecs Environmental Report and other application documents.); LBP-20-10 at 10-11 (Repetition in the DEIS of information similar to that in Holtecs Environmental Report does not qualify.).

48 Appeal at 19.

49 Id. at 17.

50 LBP-20-10 at 9-10.

51 Fasken repeatedly claims that it considers the Holtec DEIS to be encompassed in Holtecs application since the Holtec DEIS (and final EIS) are required to issue a license under the agencys applicable rules and regulations.

Appeal at 6 n.21, 13 n.51, 15 n.58.

52 Baltimore Gas and Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 347 n.9 (1998).

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2. Fasken Does Not Demonstrate Clear Error or Abuse of Discretion in the Boards Determination that Its Claims Are Inadmissible Even aside from timeliness, the Board appropriately rejected Faskens Contention 2 for failing to meet the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1). In particular, the Board found that Fasken failed to demonstrate that the claims underlying Contention 2 show that a genuine dispute exists with the Application and that the dispute is on a material issue of fact or law (i.e., material to the findings the Staff must make or an alleged environmental impact). 53 On appeal, Fasken fails to show that this Board decision was clear error, let alone any error, or an abuse of discretion.
a. As the Board Correctly Found, Faskens Claims as to Mineral Rights Ownership, Drilling Depths, and the Age of Cited Studies Fail to Raise a Genuine Dispute on a Material Issue On appeal, Fasken again summarily argues that it has raised material facts, 54 on a variety of allegedly false statements, including those related to mineral rights ownership.

However, Fasken does not point to any dispute with the description of sub-surface rights in the DEIS (which acknowledges ownership by the State of New Mexico), 55 nor does it point to how this is material to the findings that the NRC Staff must make (i.e., an environmental impact) alleged across any of its pleadings. 56 Therefore, Fasken puts forth no valid challenge to the Boards correct determination that Fasken failed to raise a genuine dispute with the Application or allege a change in the Staffs environmental impact analysis. 57 53 LBP-20-10 at 19-23.

54 Appeal at 7.n.22, 20-23. Fasken cites 10 C.F.R. § 2.341 to support its arguments regarding material facts; however, 10 C.F.R. § 2.341 sets the standard for a petition for review after a final decision. It is not the standard for a review on contention admissibility, nor does it have any relation to the materiality standard in the admissibility requirements.

55 LBP-20-10 at 20.

56 See generally Appeal.

57 LBP-20-10 at 20.

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Fasken also claims (summarily) that [n]o one disputes the materiality of local oil and gas drilling depths because it was the topic of an RAI and at oral argument. 58 On the contrary, the Board explicitly determined that Fasken does not explain how the existence of wells at any depth is material to the NRC staffs assessment of environmental and cumulative impacts. 59 In claiming that materiality is undisputed, Fasken simply ignores the Boards decision in its appeal, which cannot be enough to show error or abuse of discretion.

As another example, Fasken claims that the DEIS has a new and unjustified reliance on a 1978 historical reference to support evaluation of past, present and reasonable future drilling operations in the Permian Basin. 60 However, Fasken does not challenge any of the facts in this 1978 reference but instead summarily challenges the reference as too old. As the Board explained, Fasken does not explain why advancements in drilling technologies impact the 1978 studys conclusions about the depths of oil and gas deposits in the vicinity of the site. And Fasken simply ignores the fact that the DEIS did not base its conclusions solely on the 1978 study, but also relied on the 2007 ELEA study.

Fasken must show some reason why resolution of the dispute would make a difference in the outcome of the licensing proceeding. For example, as discussed supra, Faskens petroleum geologist, Mr. Pollock, asserts that recent technological advances make drilling at shallower depths and revisiting existing wells a real possibility. But Fasken does not explain how the existence of wells at any depth is material to the NRC staffs assessment of environmental and cumulative impacts. Therefore, Fasken does not satisfy the requirements of 10 C.F.R.

§ 2.309(f)(1)(iv) and (vi). 61 Fasken does not even attempt to show that this finding was in error, and only claims (without citation) that [its] underlying briefs and expert declarations illustrate in multiple ways how these 58 Appeal at 21-22.

59 LBP-20-10 at 22.

60 Appeal at 6.

61 LBP-20-10 at 21-22 (internal citations omitted).

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statements, information and conclusions are false and misleading 62 after launching into vague rhetoric alleging an agency captured presumably by the parties it regulates. 63 Fasken misses the point. The Commission has rejected the rules of notice pleading for contention admissibility. It is not enough to summarily declare that information is wrong, misleading, or even that it will change in further revisions of the ER. 64 The contention pleading requirements of 10 C.F.R. § 2.309(f) are meant to focus litigation on concrete issues and result in a clearer and more focused record for decision. 65 Accordingly, contention admissibility is strict by design, 66 and Fasken has the burden to show that its Contention meets the admissibility requirements. 67 Fasken does not explain how the age of a study, or the depth of drilling, translates into environmental impacts. Thus, Fasken has failed to meet the admissibility requirements of 10 C.F.R. § 2.309(f)(1).

b. As the Board Correctly Found, Faskens Claims as to Mere Existence of RAIs Fails to Raise a Genuine Dispute on a Material Issue Faskens continued attempt to challenge the Boards rejection of its reliance on outstanding RAIs also fails. On appeal, Fasken continues to claim that the mere existence of RAIs creates a material issue justifying admission of its Contention. 68 However, as the Board 62 Appeal at 22-23.

63 Id. at 22 (Such inconclusive and contradictory statements . . . suggest[] a captured agency with predetermined outcomes, unwilling to independently verify let alone analyze data and information, or an agency that may or may not do the work if not pointed out by interested parties.).

64 See Appeal at 23-24.

65 Paina Hawaii, LLC, LBP-06-4, 63 NRC 99, 108 (2006) (quoting 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004)).

66 Paina, LBP-06-4, 63 NRC at 108 (quoting Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), petition for reconsideration denied, CLI-02-1, 55 NRC 1 (2002)).

67 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998).

68 Appeal at 14 n.55 (proferring the NRCs issuance of RAIs as support for Faskens proposition that its motion raises important safety and environmental issues); Appeal at 16 (Holtecs outstanding responses to NRC issued RAIs . . . improperly shield information and preclude the public and interested parties from meaningfully participating in the proceedings, contrary to the primary purpose of a DEIS.).

13 4822-6130-1967.v4

correctly found (based on controlling precedent), the issuance of RAIs alone does not establish deficiencies in the application or that the staff will find any applicant responses unsatisfactory. 69 Fasken has done nothing to demonstrate that the Boards decision to follow precedent was error or abuse of discretion. Accordingly, Faskens challenge to the Boards decision fails.

c. Faskens Catchall Claims as to Inaccurate Information Are Insufficient to Challenge LBP-20-10 Finally, Fasken claims that the Board incorrectly found that Fasken does not. . . identify any statement in the DEIS that is inaccurate or misleading, or explain how any alleged inaccuracies might affect a material issue. 70 Fasken then alleges that its underlying briefs painstaking[ly] detail the materially false, incomplete, unreliable and incomplete misrepresentations, which span a breadth of topics, in the Holtec DEIS and application. 71 However, Fasken fails to identify any specific alleged misrepresentations in the DEIS that are not already addressed by the Board as otherwise inadmissible or untimely. In addition, Fasken itself provides the explanation as to why the Board had difficulty identifying specific references to the DEIS in Faskens pleadings: Fasken apparently considers the DEIS part of the Application and refers to it as such. 72 69 LBP-20-10 at 23 (citing PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2), CLI-15-08, 81 NRC 500, 506 n.47 (2015) (quoting Duke Energy Corp. (Oconee Nuclear Station Units 1, 2, and 3),

CLI-99-11, 49 NRC 328, 336 (1999))).

70 Appeal at 21.

71 Id.

72 See, e.g. Appeal at 6, 13, 15 (Fasken considers the Holtec DEIS to be encompassed in Holtecs application since the Holtec DEIS (and final EIS) are required to issue a license under the agencys applicable rules and regulations.).

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3. Fasken Identifies No Error or Abuse of Discretion in the Boards Rejection of Its Motion to Reopen Finally, Fasken does not identify any reason to overturn the Boards rejection of the Motion to Reopen. The Board correctly rejected Faskens attorney affidavit, 73 and Fasken provides no legal basis for challenging this decision. 74 In addition, among its other deficiencies, the Board also found that Fasken failed to demonstrate that, if the Motion to Reopen were granted, a materially different result would be likely. 75 In addition, the Motion did not even address a significant safety or environmental issue. 76 Fasken does not challenge these decisions on appeal. Instead, Fasken improperly presents, for the first time on appeal, a summary list of potential materially different results 77 and ignores that its original Motion never presented a significant safety or environmental issue. Thus, either of these deficiencies remains as an independent justification to reject Faskens Motion that Reopen and to reject Contention 2.
4. Faskens New Arguments at Oral Argument and on Appeal Should Be Rejected as Improper Fasken also attempted to present new arguments in support Contention 2 during the August 5, 2020 oral argument before the Board and continues to make new claims on appeal.

However, neither oral argument nor appeal is an appropriate time to raise new arguments that should have been set forth in an initial contention or in the initiating motion. As a result, both should be rejected outright by the Commission.

At oral argument Fasken claimed, for the first time, that its Contention raised exceptionally grave issues, and argued its Contention should be admitted pursuant to the 73 LBP-20-10 at 7-8.

74 See Appeal at 27.

75 LBP-20-10 at 16.

76 Id.

77 See Appeal at 28.

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Boards discretionary authority under 10 C.F.R. § 2.326(a)(1). 78 Faskens basis for this claim is not entirely clear. However, it appears that Fasken believes that the volume of spent fuel that might be stored at the CISF 79 and the CISFs location in the Permian Basin 80 both somehow elevated its contention to one that is exceptionally grave. Fasken continues this argument on appeal, urging the Commission exercise its broad discretion to grant review of the Boards decision. 81 Fasken fails, though, to show why its Contention is exceptionally grave or to even claim that the Board might have abused its discretion in rejecting the Contention under Section 2.326(a)(1). First, Fasken labors under the mistaken assumption that it is the nature of the facility that determines whether a contention is exceptionally grave. 82 However, it is the issues raised by the contention that determines whether the contention is grave enough to justify reopening. 83 The exceptionally grave criterion is intended to be used only in truly extraordinary circumstances. 84 As the Board found, 85 Fasken failed even to proffer an admissible contention, 78 See Hearing Transcript of Holtec International (August 5, 2020), Tr. at 423; LBP-20-10 at 15.

79 See Tr. at 422 ([O]n the grave concern issue, weve outlined the hazard, all the nations high-level nuclear waste

-- I mean, thats a pretty grave matter. The threat could be greater than any threat that -- that the Agency would have to deal with.).

80 See Tr. at 422-23 ([I]f all that oil and gas becomes radioactive, you know, it would impact national defense. The Department of Defense and Department of Energy recognize Permian Basin is essential for energy security. So, to that extent -- and I believe its very grave, Your Honor.).

81 Appeal at 27-28.

82 See, e.g., Appeal at 6-7 (exceptionally grave . . . given the proposed site location in the Permian Basin); Appeal at 14 (Given the proposed Holtec site location in the middle of the Permian Basin, these issues are exceptionally grave); Appeal at 27-28 ( Such exceptionally grave issues relating to the proposed Holtec site in the Permian Basin encompass national economics and security, regional employment, sinkholes subsidence and seismicity.).

83 See, e.g., Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19535, 19358 (1986)

(Reopening will only be allowed where the proponent presents material, probative evidence which either could not have been discovered before or could have been discovered but is so grave that, in the judgment of the presiding officer, it must be considered anyway.).

84 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI 10, 75 NRC 479, 497 (2012).

85 LBP-20-10 at 15.

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and so there is no way that its non-admissible contention could raise an exceptionally grave issue.

In addition, the Board correctly rejected Faskens exceptionally grave claim because it was raised for the first time at oral argument. 86 This is impermissibly late. It is well established that a petitioner cannot raise new arguments in support of a deficient contention for the first time on reply, 87 let alone at oral argument, and Fasken does not address how the Board erred in applying these well-established rules.

Beyond its new claim at oral argument, on appeal, Fasken claims for the first time that the DEIS (without citation) includes a new reliance on remote imagery studies to support conclusions as to subsidence in the region. 88 Given that the Motion for Leave to File Amended Contention 2 and related documents make no reference to remote imagery studies, this is a new claim on appeal and thus also completely improper.

This is not the only claim presented by Fasken for the first time on appeal. Fasken also claims that the DEIS has new reliance on information to support seismicity evaluations and present and reasonable future subsidence. 89 Aside from the fact that these claims do not point to any particular information in the DEIS and are so vague as to be meaningless, they do not match any of Faskens prior Contention 2 allegations, and thus must also be rejected as improperly raised for the first time on appeal.

86 Id.

87 Id. (citing Nuclear Mgmt. Co. (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006); Exelon Generation Co. (Dresden Nuclear Power Station, Units 2 & 3), LBP-14-04, 79 NRC 319, 330 (2014)).

88 Appeal at 6, 19. Notably, there is no apparent discussion of remote imagery studies in the DEIS. To the extent that this is a reference to the ELEA 2007 report, first referenced in the ER, Fasken again should have challenged the report at the outset of this proceeding, not for the first time in reference to the DEIS and certainly not for the first time on appeal.

89 Appeal at 6,19.

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B. Faskens Legal Arguments Regarding Calvert Cliffs and the Oral Argument Are Inconsistent with Controlling Precedent and Practice

1. Faskens Argument Regarding the Boards Alleged Failure to Follow Calvert Cliffs Should Be Dismissed Because Calvert Cliffs is Not Controlling Precedent Fasken argues, at length, that the Board decision should be overturned for ignoring the alleged governing precedent of Calvert Cliffs. 90 As Fasken argues, [t]he ASLB decision improperly places form over substance and misapplies precedent by mandating reliance on new information under the good cause standard 10 C.F.R. § 2.309(f) and largely ignoring the governing precedent of Calvert Cliff[s]. 91 According to Fasken, the Board misconstrues the legal standard and improperly describes the dispositive issue [to] not [be] whether there are differences between Holtecs [ER] and the DEIS, but whether Fasken Amended Contention No.

2 is based on new facts not previously available. 92 However, contrary to Faskens assertions, the Calvert Cliffs decision referenced by Fasken 93 is not governing precedent. This Licensing Board decision was not reviewed by the Commission. It is well established NRC jurisprudence that unreviewed Board rulings do not constitute binding precedent. 94 Thus, the Calvert Cliffs relied on by Fasken, is not (and was never) governing precedent, and Faskens lengthy legal argument based on that assumption is unfounded and incorrect.

90 Appeal at 16.

91 Id. at 16.

92 Id. at 16 (emphasis in original).

93 Calvert Cliffs 3 Nuclear Project, LLC and Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), LBP-10-24, 72 NRC 720, 729-730, (2010).

94 Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 343 n.3 (1998) ([U]nreviewed Board rulings do not constitute precedent or binding law at this agency. citing Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit 1), ALAB-893, 27 NRC 627, 629 n.5 (1988))).

18 4822-6130-1967.v4

More to the point, the analysis in Calvert Cliffs (quoted by Fasken) has been superseded by a change in regulations. The Calvert Cliffs analysis is based on the proposition that Section 2.309(f)(2) . . . provides, however, that a petitioner may amend those contentions or file new contentions if there are data or conclusions in the NRC draft or final environmental impact statement, environmental assessment, or any supplements relating thereto, that differ significantly from the data or conclusions in the applicant's documents . . . The use of the disjunctive phrase [in 10 C.F.R. § 2.309(f)(2)] [indicates a] contention may therefore challenge a DEIS even though its ultimate conclusion on a particular issue. . . is the same as that in the ER, as long as the DEIS relies on significantly different data than the ER to support the determination. 95 To be clear, the disjunctive phrase from Calvert Cliffs (relied upon by Fasken) no longer exists in the rule. 96 In 2012, the Commission modified the late-filed contention rules to simplify and combine them (there used to be two separate rules in 10 C.F.R. §§ 2.309(c) and (f)) and to place the emphasis on new information. As the NRC stated when promulgating the new rule, a contention that challenges a new NRC staff conclusion must, in addition to meeting the other

§ 2.309(c)(1) factors, still demonstrate that new information encompassed in the new conclusion is materially different from information that was previously available. 97 Fasken would have the Board turn back time and ignore this subsequent rulemaking in favor of the now-deleted language in 10 C.F.R. § 2.309(f)(2), relied on in Calvert Cliffs. But, obviously, the Board is bound by the language of the current rule. 98 In addition, Fasken is clearly incorrect when it claims that the Board erred in mandating reliance on new information under the good cause standard 10 C.F.R. § 2.309(f). 99 The current rules, in fact, still mandate 95 Calvert Cliffs, LBP-10-24, 72 NRC at 729-730 (citing the previous version of 10 C.F.R. § 2.309(f)(2)) (emphasis added).

96 The previous 10 C.F.R. § 2.309(f)(2)(i) was also moved and is now 10 C.F.R. § 2.309(c)(1)(i). Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46562, 46566 (Aug. 3, 2012).

97 Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46562, 46566 (Aug. 3, 2012) (emphasis added).

98 See 10 C.F.R. § 2.309(c)(1).

99 Appeal at 16.

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new information. 100 In addition, the more recent Commission decisions cited by the Board in this proceeding also mandate new facts not previously available. 101 Thus, Faskens arguments based on Calvert Cliffs should be summarily rejected.

2. Fasken Is Not Entitled to a Hearing or to Present Expert Testimony at the Contention Admissibility Stage of the Proceeding Fasken also argues that the Board abused its discretion in denying Faskens experts an opportunity to address discrepancies and disputes at the August 5, 2020 hearing and Holtecs alleged ability to update its ER after publication of the Holtec DEIS constitute prejudicial procedural errors. 102 In support of this argument, Fasken references a letter filed with the Commission shortly after the oral argument, in which Fasken claimed that the Board violated its right to a fair hearing by only allowing attorneys to speak, which Fasken alleges severely curtailed [its] ability to present the prepared defense of [its] motions. 103 In addition, Fasken claimed that it was somehow led to believe that its technical experts would be allowed to address the Board because the Board informed all the parties to be prepared to respond to the Boards questions on any aspect of the pleadings. 104 Contrary to Faskens claims, the Board never suggested that it expected presentations other than from counsel. The Boards Order established an oral argument. 105 An oral argument consists of [a]n advocates spoken presentation before a court (esp. an appellate court) 100 10 C.F.R. § 2.309(c)(1).

101 LBP-20-10 at 12 (citing Pilgrim, CLI-12-10, 75 NRC at 493 n.70 (2012)). See also Entergy Nuclear Vermont Yankee LLC (Vermont Yankee Nuclear Power Station), CLI-11-2, 73 NRC 333, 344 (2011) ([t]he tardy filing of a contention may be excusable only where the facts upon which the amended or new contention is based were previously unavailable.).

102 Appeal at 23.

103 Appeal at Exhibit 3 (Letter from M. Perales to NRC Chairwoman K. Svinicki (Aug. 12, 2020)) (ADAMS Accession No. ML20273A004) (Letter).

104 Letter at 1 (quoting Holtec International (HI-STORE Consolidated Interim Storage Facility), Order (Concerning Oral Argument) (July 20, 2020) (ADAMS Accession No. ML20202A053) (Order).

105 See Order (Concerning Oral Argument).

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supporting or opposing the legal relief at issue. 106 By its very nature, an oral argument is not one for technical experts. In addition, Fasken cannot plausibly claim that it was unaware that the Board would limit speaking roles to its attorneys, as the Board took the same stance at the January 2019 oral argument at which Fasken previously participated. 107 Fasken has no right to a fair hearing with expert testimony and evidence at this stage of the proceedings. As one Board previously explained, this is not the stage of the proceeding for evidentiary hearings. 108 Instead, the sole purpose of oral arguments at this stage is to hear legal argument on whether contentions satisf[y] the admissibility criteria of 10 C.F.R. § 2.309(f),

and thus could serve as the basis of a future evidentiary hearing. 109 Nor does Fasken even have a right to an oral argument at this stage. As the Commission has held, [o]ral argument on contention admissibility is not a right. 110 Indeed, contention admissibility determinations are often decided on the written pleadings without any form of hearing. 111 If oral argument is not a right at this stage of the proceeding, there is no basis for Fasken to claim that it has an additional right to have its technical experts heard at oral argument. Nor would that be consistent with Commission precedent prohibiting the presentation of new evidence in oral arguments at this stage. 112 Fasken must rest on the evidence provided in 106 Oral Argument, BLACKS LAW DICTIONARY (11th ed. 2019).

107 See Hearing Transcript of Holtec International (January 23-24, 2019) Tr. at 131-132:3-4 (CHAIR RYERSON:

As long as you are speaking to us and not your clients, thats fine.); id. at 365:7-9 (CHAIR RYERSON:

Actually, its clear in our order that today we're only hearing from people who have filed appearances with the NRC.).

108 Virginia Electric and Power Company (North Anna Power Station, Unit 3), LBP-08-23, 68 NRC 679, 683 (2008).

109 Id. (emphasis added).

110 See Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-08-07, 67 NRC 187, 191 (2008).

111 See, e.g., Florida Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7), LBP-17-02, 85 NRC 14 (2017); Exelon Generation Company, LLC (Oyster Creek Nuclear Generating Station), CLI-19-06, 89 NRC 465 (2019); Tennessee Valley Authority (Clinch River Nuclear Site), LBP-18-4, 88 NRC 55 (2018).

112 See Indian Point, CLI-08-07, 67 NRC at 191 (as this Board cautioned in its orders scheduling oral argument, a petitioner may not offer additional evidence or arguments during such an oral presentation.).

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its Contention, it cannot introduce new evidence through an expert at oral argument. 113 Fasken had multiple opportunities to present all the information it wanted to the Board. 114 It should not be allowed to wait until the end of the process to put forward yet more information to the detriment of the rights of Holtec and the NRC Staff.

Nonetheless, Fasken argues that this Board policy, somehow puts Fasken at a serious disadvantage because Holtec intends to revise its Environmental Report after publication of the DEIS. 115 If Fasken wished to argue that an ER cannot be updated after the publication of the DEIS, then it should have made this argument in its initial filings and should have been prepared to make this argument at the hearing. As it stands, there is nothing in NRC policy, practice, procedure, or rules that bars amending an ER once the DEIS is issued, nor is there a practical reason for such a limit given that the DEIS is a draft document. In fact, it is not unusual for 113 Fasken argues that it should have been permitted to identify which wells were allegedly missing from a graph in the DEIS at the oral argument. Appeal at 24. On the contrary, if Fasken wanted to allege that specific wells were missing from the DEIS, then it should have specified that information in its contention. To raise such factual claims for the first time at oral argument would be fundamentally unfair and would deprive both Holtec and the NRC Staff with an opportunity to respond.

114 See, e.g., Motion of Fasken Land and Minerals and Permian Basin Land and Royalty Owners to Dismiss Licensing Proceedings for HI-STORE Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility (Sept. 14, 2018) (ADAMS Accession No. ML18257A330); Reply of Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners to Holtec Internationals Response to Motion to Dismiss (Sept.

28, 2018) (ADAMS Accession No. ML18271A239); Reply of Fasken and PBLRO to Holtecs Answer Opposing Movants Motion to Dismiss/Petition to Intervene (Dec. 10, 2018) (ADAMS Accession No. ML18344A682);

Motion for Permission to File Supplemental Standing Declaration of Tommy E. Taylor (Dec. 10, 2018) (ADAMS Accession No. ML18344A681); Motion by Petitioners Beyond Nuclear and Fasken to Amend Their Contentions Regarding Federal Ownership of Spent Fuel to Address Holtec Internationals License Application (Feb. 6, 2019)

(ADAMS Accession No. ML19037A127); Fasken Oil And Ranch And Permian Basin Land And Royalty Owners Motion For Leave To File A New Contention (Aug. 1, 2019) (ADAMS Accession No. ML19213A171); Fasken Oil and Ranch And Permian Basin Land and Royalty Owners Motion for Leave to Reopen and Incorporate Contention Filed August 1, 2019 (Sept. 3, 2019) (ADAMS Accession No. ML19246B809); Fasken And PLBROs Withdrawal of Their Motion for Leave to Reopen and Incorporate Contention Filed August 1, 2019 (Sept. 12, 2019) (ADAMS Accession No. ML19255G616); Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Motion to Reopen the Record (May 11, 2020) (ADAMS Accession No. ML20132E724); Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Motion for Leave to File Amended Contention No. 2 (May 11, 2020) (ADAMS Accession No. ML20132F019); Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Combined Reply to NRC Staffs and Holtec Internationals Oppositions to Motion for Leave to File Amended Contention and Motion to Reopen the Record (June 11, 2020) (ADAMS Accession No. ML20163A728).

115 Appeal at 25.

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licensees to update an ER after the DEIS is issued. 116 Fasken provides no reason to deviate from that practice.

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

Respectfully submitted,

/Signed electronically by Anne R. Leidich/

William F. Gill Jay E. Silberg Kathryn L. Perkins Timothy J. V. Walsh HOLTEC INTERNATIONAL Anne R. Leidich Krishna P. Singh Technology Campus PILLSBURY WINTHROP SHAW PITTMAN LLP 1 Holtec Boulevard 1200 Seventeenth Street, NW Camden, NJ 08104 Washington, DC 20036 Telephone: (856) 797-0900 Telephone: 202-663-8707 W.Gill@holtec.com Facsimile: 202-663-8007 K.Perkins@holtec.com jay.silberg@pillsburylaw.com timothy.walsh@pillsburylaw.com anne.leidich@pillsburylaw.com October 26, 2020 Counsel for HOLTEC INTERNATIONAL 116 Compare Clinch River ER, Rev. 2 (March 26, 2019) (ADAMS Accession No. ML19030A478) with Clinch River DEIS, 83 Fed. Reg. 18354 (April 26, 2018); compare Virgil C. Summer, Units 2 & 3 ER, Rev. 2 (August 13, 2010) (ADAMS Accession No. ML101930231) with Virgil C. Summer Units 2 & 3 DEIS, 75 Fed. Reg. 21368 (April 23, 2010); compare South Texas Project, Units 3&4 ER, Rev. 12 (May 7, 2015) (ADAMS Accession No. ML15124A512) with South Texas Project, Units 3&4 DEIS, 75 Fed. Reg. 14474 (March 25, 2010).

23 4822-6130-1967.v4

October 26, 2020 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

) Docket No. 72-1051 Holtec International )

)

(HI-STORE Consolidated Interim Storage )

Facility) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Answer In Opposition To Fasken Land And Minerals, Ltd.s and Permian Basin Land and Royalty Owners Appeal of LBP-20-10 has been served through the EFiling system on the participants in the above-captioned proceeding this 26th day of October, 2020.

/signed electronically by Anne R. Leidich/

Anne R. Leidich 4822-6130-1967.v4

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