ML20310A442
| ML20310A442 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 11/05/2020 |
| From: | Kanner A, Tennis A, Whiteley C Fasken Land & Minerals, Ltd, Kanner & Whiteley, Permian Basin Land and Royalty Owners |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| ASLBP 18-958-01-ISFSI-BD01, Holtec International, RAS 55852 | |
| Download: ML20310A442 (7) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY LICENSING BOARD IN THE MATTER OF Docket No. 72-1051 HOLTEC INTERNATIONAL November 5, 2020 (Consolidated Interim Storage Facility)
FASKEN LAND AND MINERALS, LTD.S AND PERMIAN BASIN LAND AND ROYALTY OWNERS MOTION TO REOPEN THE RECORD Now comes Fasken Oil and Ranch Ltd. (Fasken) and Permian Basin Land and Royalty Owners (PBLRO) (collectively Joint Petitioners), by and through undersigned counsel, who respectfully move the Atomic Safety Licensing Board (ASLB) to reopen the record in the above-captioned matter. The facts and evidence supporting Faskens foregoing Motion are set forth in its accompanying Motion for Leave to File New Contention No. 3 and the Affidavit of T. Taylor attached thereto,1 and in support of same state as follows:
- 1. On May 7, 2019, the ASLB denied all petitions to intervene in the above-captioned matter and terminated the proceeding.2 Regarding Fasken, the Board held that Fasken had demonstrated standing but had not submitted a proposed contention that met the requirements of 10 C.F.R. § 2.309(f)(1).3
- 2. On June 3, 2019 Fasken appealed the Boards decision.4
- 3. On August 1, 2019, Fasken filed a Motion for Leave to File Contention No. 2.5 1
Fasken Motion for Leave to File New Amended Contention No. 3 (Nov. 5, 2020), herein after Motion for Leave; Ex. 3, Affidavit of T. Taylor (Nov. 5, 2020).
2 ASLB Memorandum and Order, LBP-19-04, 89 NRC 353, 358 (2019).
3 Id. at 135-36.
4 Fasken and PBLRO Notice of Appeal and Petition for Review (June 3, 2019) (ADAMS Accession No. ML19154A455).
5 Fasken Motion for Leave to File a New Contention (Aug. 1, 2019).
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- 4. On April 23, 2020, in response to appeals, the U.S. Nuclear Regulatory Commission (NRC) reversed in part and remanded several of the Boards rulings for additional consideration, including the admissibility of Faskens original Contention No. 2.6
- 5. On May 11, 2020, in compliance with the NRC Secretarys Order7 for filing contentions relating to the Holtec DEIS, published in March of 2020, Fasken timely filed its Motion for Leave to File Amended Contention No. 2 along with its Motion to Reopen the Record.8
- 6. Subsequent to Fasken its filing Amended Contention No. 2, on June 18, 2020, the Board denied Faskens Initial Motion for Leave to file Contention No. 2.9 In its decision, the ASLB indicated that it would separately address Faskens Amended Contention No. 2. Faskens instant appeal relates solely to its Amended Contention.
- 7. On June 25, 2020, the Board issued an order establishing an August 5, 2020 teleconference hearing and oral argument for the parties to further address issues relating to Faskens Motions.10 Thereafter, on July 20, 2020, the Board issued list of questions and topics to be covered.11 During the August 5, 2020 the Board-issued topics, as well as others raised, were discussed. Faskens expert geologist was on the call and counsel requested that the Board allow him to speak in response to technical issues raised, but the Board denied the request. During the hearing both parties, Fasken and Holtec, offered to submit additional filings from their respective technical experts. Following the hearing, it was left an open question 6
Holtec Int'l (HI-STORE Consolidated Interim Storage Facility), CLI-20-04, (slip op. at 1, 23-29) (Apr. 23, 2020) 7 NRC Secretary Order (Granting Motion for Extension of Time to File), Docket No. 72-1051 (Apr. 7, 2020)
(ADAMS Accession No. ML20098F515) (granting an extension of approximately 30 days due to the COVID-19 public health emergency). See also, ALSB Memorandum and Order (Denying Contention), (Sept. 3, 2020) at 17 (Board does not dispute that Fasken Amended Contention 2 was timely submitted in the sense that it was filed within the timeframe prescribed by the Secretary for contentions challenging the DEIS.)
8 Fasken and PBLO Motion for Leave to File Amended Contention No. 2 (May 11, 2020) (ADAMS Accession No. ML20132F019); Fasken and PBLRO Motion to Reopen the Record (May 11, 2020) (ADAMS Accession No. ML20132E724).
9 ASLB Memorandum and Order (Ruling on Remanding Contentions and Denying Motion to Reopen) (ADAMS Accession No. ML20170A558), LBP-20-06 (June 18, 2020).
10 ASLB Order (Scheduling Oral Arguments), (June 25, 2020) (ADAMS Accession No. ML20177A577).
11 ASLB Order (Concerning Oral Argument) (July 20, 2020) (ADAMS Accession No. ML202A053).
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as to whether or not additional briefing on such topics or any further submissions by the parties would be necessary (or even considered) by the Board in its decision-making process.
- 8. On September 3, 2020, the ASLB issued an Order and Memorandum rejecting Faskens Motion for Leave, finding Amended Contention No. 2 inadmissible, and further denying Faskens associated Motion to Reopen.12 Fasken has filed an appeal to this decision which remains pending.13
- 9. Concurrently with this Motion to Reopen the Record, Petitioners filed a Motion for Leave to File New Contention No. 3 based on the U.S. Nuclear Regulatory Commission (NRC)
October 5, 2020 publication of multiple public comments submitted in opposition to the Holtec International (Holtec) draft environmental impact statements (DEIS).14 Contention No. 3 is largely based on a letter, made publicly available for the first time on October 5, 2020, from an oil and gas lessee, XTO Energy, Inc.,15 claiming superior property rights at the proposed Holtec consolidated interim storage facility (CISF) site located in Lea County, New Mexico and Holtecs responses to NRC-issued requests for additional information (RAIs), officially released on October 21, 2020 along with accompanying revisions to its Environmental Report and Licensing Report.16
- 10. 10 C.F.R. § 2.326 sets forth the requirements for reopening the record: (1) a motion to reopen the record must be timely; (2) the motion must address a significant safety or environmental issue; and (3) the motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially. The foregoing is also accompanied an expert affidavit attached hereto.17 12 ASLB Order.
13 Fasken 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. 28, 2020).
14 See generally Motion for Leave.
15 Id. at Ex. 1, XTO Letter.
16 Id. at Ex. 2 Facts.
17 Id. at Ex. 3 Affidavit of T. Taylor.
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- 11. Hearings may be reopened, in appropriate situations, either upon motion of any party or sua sponte. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 3 ALAB-124, 6 A.E.C. 358 (1973). A Board may reopen the record when it becomes aware, from any source, of a significant safety issues or of possible changes in facts material to the resolution of major environmental issues. See generally Commonwealth Edison Co. (LaSalle County Nuclear Station, Units 1 & 2), ALAB-153, 6 A.E.C. 821 (1973); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 A.E.C. 358 (1973); Georgia Power Co. (Vogtle Nuclear Plant, Units 1 & 2), ALAB-291, 2 N.R.C. 404 (1975) (hearing may be reopened when a significant environmental issue is involved).
Where factual disclosures reveal a need for further development of an evidentiary record, the record may be reopened for the taking of supplementary evidence. Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-463, 7 N.R.C. 341, 352 (1978). Reopening has been ordered where the changed circumstances involved a hotly contested issue. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), CLI-74-39, 8 A.E.C. 631 (1974).
- 12. Petitioners present New Contention No. 3 and have filed this Motion to Reopen in a timely fashion. The information forming the basis for New Contention No. 3 was not publicly available prior to the NRC posting the information to its website on October 5, 2020 and October 21, 2020 respectively. As discussed in Petitioners Motion for Leave, the terms of XTOs lease, XTOs intent and future development rights in terms of oil and gas development at and around the proposed Holtec site and the lack of any third party agreements with Holtec by oil and gas lessees prohibiting or limiting in any way its oil and gas operation activities in and around the proposed site were not disclosed or reasonably publicly available prior to the NRCs publication of comments in opposition to the Holtec DEIS.18 Likewise, Holtecs long-awaited RAI responses and updated ER and SAR revisions were officially released by the NRC on October 21, 2020.19 18 See generally Motion for Leave, Ex. 1 XTO Letter, Ex. 2 Facts, Ex. 3, Affidavit of T. Taylor and Ex. 4.
19 Id.
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- 13. The proffered evidence concerns not only significant environmental impacts and potential safety risks, left by the wayside in the recent Holtec DEIS analysis, but also implicate potential legal issues as to property rights at and in the vicinity of the proposed CISF site. The foundation to any siting evaluation should begin with due diligence and determining property rights, land use and geophysical conditions at and around the site. This is exceedingly true here, when proposing to place a nuclear waste storage facility of unprecedented proportions to any other, including Yucca Mountain with additional safeguard and in a deep geologic repository, in the middle of the Permian Basin, one of the nations most productive oil producing hubs. As stated in the overwhelming number of oppositions filed challenging the Holtec DEIS, there are grave concerns about the inadequacy of the technical analysis, especially given the lack of inclusion of all applicable state regulatory oversite and environmental impact controls.20 The NRC licensing proceeding cannot move forward without resolving these issues, which violate both NEPA and NRC regulations as outlined in Faskens Motion for Leave.
- 14. Had Holtec been forthcoming and/or this information been brought to light earlier, it would have affected the outcome in terms of the site selection process or opting for the No Action Alternative, but at the very least taking a hard look at the impacts and implementing mitigation strategies.
- 15. Oil and gas industries are the cornerstones of regional economies within the Permian Basin. Despite international standards strongly advising against placing nuclear facilities above valuable mineral resources, Holtec is seeking to construct and operate first of its kind nuclear waste storage facility for 120 years (and likely longer) amongst extensive oil and gas and mineral extraction operations. This site is not geologically suitable for the proposed CISF project.
20 See Motion for Leave, Ex. 4.
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Dated: November 5, 2020 /electronically signed by Allan Kanner Kanner & Whiteley, LLC Allan Kanner, Esq.
Conlee S. Whiteley, Esq.
Annemieke M. Tennis, Esq.
701 Camp Street New Orleans, Louisiana 70130 Phone: (504) 524-5777 Fax: (504) 524-5763 Attorneys for Petitioners Fasken Land and Minerals, Ltd. and PBLRO 6
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY LICENSING BOARD IN THE MATTER OF Docket No. 72-1051 HOLTEC INTERNATIONAL November 5, 2020 (Consolidated Interim Storage Facility)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I Allan Kanner certify that, on this 5th day of November, 2020, true and correct copies of Faskens Motion to Reopen the Record was served upon the Electronic Information Exchange (the NRCs E-Filing System) in the above-captioned proceeding.
Dated: November 5, 2020 /electronically signed by Allan Kanner Kanner & Whiteley, LLC Allan Kanner, Esq.
Conlee S. Whiteley, Esq.
Annemieke M. Tennis, Esq.
701 Camp Street New Orleans, Louisiana 70130 Phone: (504) 524-5777 Fax: (504) 524-5763 Attorneys for Petitioners Fasken Land and Minerals, Ltd. and PBLRO 7