ML20310A445

Fasken Land and Minerals, Ltd.'S and Permian Basin Land and Royalty Owners Motion for Leave to File New Contention No. 3

ML20310A445
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, RAS 55853, Holtec International
Download: ML20310A445 (44)

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 FOR LEAVE TO FILE NEW CONTENTION NO. 3

Table of Contents I. INTRODUCTION............................................................................................................................... 2 II. PETITIONERS HAVE STANDING ............................................................................................. 6 III. LEGAL STANDARDS ................................................................................................................... 7 A. Petitioners Have Good Cause to File New Contention No. 3. ......................................................... 7 B. New Contention No. 3 is Admissible.................................................................................................. 9 IV. CONTENTION NO. 3 .................................................................................................................. 15 A. Basis for New Contention No. 3 ........................................................................................................ 15 B. Facts Petitioners Intend to Rely on To Further Support New Contention No. 3 ............................ 19 C. Petitioners Raise Genuine Disputes of Material Fact and Law ....................................................... 20

i. Recent Public Comments Highlight Material Misrepresentations and Glaring Omissions Regarding Land Use Rights and Land Use Restrictions at and Around the Proposed Site Precluding Proper Cumulative Impact Analyses and Assessment of Siting Evaluation Factors and Highlighting the Absence of an Independent Investigation by the NRC into the Reliability of Such Information................................................................................................................................................ 20

1. Previously Undisclosed Dominant Estate of Oil and Gas Lessee(s) at and Around the Proposed Site ..22

2. Previously Undisclosed Lack of Restrictions or Agreements as to Drilling Depths Directly Below CISF Site .................................................................................................................................................... 25 ii. The NRC Failed to Conduct an Independent Investigation into the Reliability of Information in the Holtec DEIS, Failed to Collaborate and Consult State and Local Agencies, and Failed to Consider Major Viewpoints of Interested Parties in Violation of NRC and NEPA Regulations and Contrary to Recommendations for Consent Based Siting..................................................................... 28

1. Failure to Involve Oil and Gas Lessees ............................................................................................. 29

2. Senator Steinborn, et al Letter to the NRC ....................................................................................... 32

3. New Mexico Environmental Department Letter to the NRC............................................................ 32

4. New Mexico Energy, Minerals and Natural Resources Department Letter to the NRC ................. 34

5. New Mexico Governor Michelle Lujan Grisham Letter to the NRC ............................................... 35

6. New Mexico State Land Office Letter to the NRC ............................................................................ 36

7. Texas Governor Greg Abbott Letter to the NRC ............................................................................... 39 V. CONCLUSION ................................................................................................................................. 39 i

Table of Authorities Cases Balt. Gas & Elec. v. Nat. Res. Def. Council, Inc., 462 U.S. 87 (1983)....................................................... 13 Fansteel, Inc. (Muskogee, Okla. Site), CLI-03-13, 58 NRC 195 (2003).............................................. ...9, 10 Fla. Power & Light Co. (Turkey Point Units 6 & 7), LBP-17-6, 86 NRC 37, affd, CLI-17-12, 86 NRC 215 (2017) ................................................................................................................................ 6 In the Matter of Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-12-21, 76 NRC 491 (2012) ................................................. ..6, 8 Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989) ................................................................................ 13 Nextera Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-17-07, 75 NRC 301 (2017) ................... 9 Oconee, CLI-99-11, 49 NRC at 333-34 (1999) .................................................................................... ..9, 10 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142 (1998) ........ 9 Shaw AREVA MOX Services (Mixed Oxide Fuel Fabrication Facility), 67 NRC 460 (2008) ................ ..7, 8 U.S. Dept of Energy, CLI-09-14, 69 NRC 580 (2009) .............................................................................. 10 Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519 (1978) ........................... 13 Statutes The National Environmental Policy Act of 1969, 42 U.S.C. § 4321 ................................................... passim 43 U.S.C. § 4332(2)(c) ......................................................................................................................... 12, 18 Other Authorities Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46, 562 (Aug. 3, 2012) ..................................................................................................................................... 6 ASLB Memorandum and Order LBP-19-4 at 17 (May 7, 2019)

(ADAMS Accession No. ML19127A026) ......................................................................................... 6 Blue Ribbon Commission on America's Nuclear Future, Report to the Secretary of Energy (Jan. 2012) .............................................................................................................................. 4, 17, 28 ii

Environmental Impact Statement for the Holtec Internationals License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel and High-Level Waste, Draft for Comment, NUREG-2237 (March 2020) (ADAMS Accession No. ML20069G420) ................................. passim Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (Jun. 5, 1996) ................................................................................................... 12 Correction, 66 Fed. Reg. 39,277 (Jul. 30, 2001) ............................................................................... 12 NUREG-1567 § 2.4.2 ..................................................................................................................... 12, 18, 21 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33, 168, 33, 170-71 (Aug. 11, 1989) ........................................................................... 10 Regulations 10 C.F.R. § 2.309(f)(1) .................................................................................................................1, 9, 10 10 C.F.R. § 2.309(c)(1) ..1, 6, 7, 9 10 C.F.R. § 2.309(c)(4)................................................................................................................................. 6 10 C.F.R. § 2.309(d) ..................................................................................................................................... 6 10 C.F.R. § 45(c) ........................................................................................................................................ 12 10 C.F.R. § 51.104...................................................................................................................................... 14 10 C.F.R. § 51.23(c) ..................................................................................................................................... 3 10 C.F.R. § 51.70(b) ............................................................................................................................. 13, 28 10 C.F.R. § 51.71(b) ................................................................................................................................... 13 10 C.F.R. § 72.11.......................................................................................................................................... 4 10 C.F.R. § 72.11(a)11, 16 10 C.F.R. § 72.12.......................................................................................................................................... 4 10 C.F.R. § 72.24(a) ...12, 17, 23, 24 10 C.F.R. § 72.40(a)(2)..11, 17, 21 10 C.F.R. § 72.90-10811, 17, 21 10 C.F.R. § 72.90(a)..4, 23 10 C.F.R. § 72.90(b)..12 10 C.F.R. § 72.90(d) ..................................................................................................................................... 4 10 C.F.R. § 72.94.12, 23 10 C.F.R. § 72.98 .4,23, 24 10 C.F.R. § 72.98(c)(2)............................................................................................................................... 24 10 C.F.R. § 72.1004, 12 10 C.F.R. § 72.103(f)(2) ............................................................................................................................. 24 40 C.F.R. § 1508.7...................................................................................................................................... 16 iii

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 FOR LEAVE TO FILE NEW CONTENTION NO. 3 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) for leave to file new Contention No. 3 in the above-captioned matter, filed concurrently with Petitioners Motion for Leave to Reopen the Record, and in support of their Motion for Leave to File New Contention No. 3, state as follows:

I. INTRODUCTION Pursuant to 10 C.F.R. §§ 2.309(c)(1) and (f)(1), Joint Petitioners seek leave to file new Contention No. 3 based on new and materially different information relating to interference with existing oil and gas lease rights disclosed by XTO Energy, Inc. 1 (XTO) in recently submitted public comments in opposition to the proposed Holtec International (Holtec) consolidated 1

See Public Comment in Opposition to the Holtec DEIS from XTO Energy, Inc. (D. Archuleta) (Sept. 22, 2020)

• uploaded to ADAMS on Oct. 5, 2020 (ADAMS Accession No. ML20268C261), herein after XTO Letter, attached hereto as Ex. 1.

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interim storage facility (CISF) project and the Holtec draft environmental impact statement (DEIS). 2 XTO, a subsidiary of ExxonMobil Corporation, importantly with regard to this: grants it significant drilling and exploration rights at and around the site on which Holtec seeks a license to store a never-before-seen amount of spent nuclear waste for up to 120 years (and likely longer). 3 There are no drilling depth restrictions directly beneath and around the proposed site; There is no ability to proscribe oil and gas operations in and around the site; and XTO has superior rights to utilize the surface rights and property within the proposed boundary for the duration of its lease.

This newly disclosed and highly pertinent information reveals serious misconceptions regarding present and future land use and land rights at, below and around the proposed site that directly contradict information provided by Holtec in its Safety Analysis Report (SAR) 4 and Environmental Report (ER) 5 which the U.S. Nuclear Regulatory Commission (NRC) 6 relied upon to support its conclusions in the Holtec DEIS. This important information, first and foremost, highlights the unsuitability of the proposed site and also gives rise to numerous unaddressed technical and integration issues that the NRC must resolve to properly review and analyze the 2

See Environmental Impact Statement for the Holtec Internationals License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel and High-Level Waste, Draft for Comment, NUREG-2237 (March 2020)

(ADAMS Accession No. ML20069G420), herein after Holtec DEIS.

3 See Ex. 2 Facts Petitioners Intend to Rely On (Facts), New Mexico Senator Steinborn et al. Letter to the U.S.

Nuclear Regulatory Commission (Sept. 22, 2020) (ADAMS Accession No. ML20275A333 (stating the scope of the DEIS fails to adequately and reliably assess the risks of this unprecedented proposed project and the many technical variable that exceed national experience).

4 Holtec International, Licensing Report on the HI-STORE CIS Facility, Rev. 0J, Docket No. 72-1051, (Oct. 21, 2020)

(ADAMS Accession No. ML20295A24), herein after Holtec SAR.

5 Environmental Report on the HI-STORE CIS Facility. Rev. 8, Docket No. 72-1051, (Aug. 31, 2020) *official release date Oct. 21, 2020 (ADAMS Accession No. ML20295A485), herein after Holtec ER.

6 See Holtec International, HI-STORE CIS License Application Responses to Requests for Additional Information (RAI) - Part 6, Response Set 2 (Oct. 21, 2020) (ADAMS Accession No. ML20260H139), RAI Responses (ADAMS Accession No. ML20260H141); herein after RAIs.

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environmental impacts and ensure that spent nuclear fuel (SNF) and high-level radioactive nuclear waste can be safely transported to, and stored at, the proposed Holtec CISF in Lea County, New Mexico over the entire course of the license term. 7 The NRC cannot ignore the unresolved issues this new information brings to light which in and of itself demonstrates the infeasibility of granting a license to store nuclear waste in an area where active drilling rights supersede those of Holtec. To the extent the NRC wishes to meaningfully consider this new information, Fasken should be involved by admitting proposed Contention No. 3. If the NRC were to conclude that the licensing process should continue forward at this location, despite XTOs rights to oil and gas exploration and drilling beneath the site and other oil and gas lessees rights directly adjacent to the site, this information must be appropriately analyzed and fully disclosed in the Holtec DEIS and final Environmental Impact Statement (EIS), and resolutions and risk-mitigation strategies delineated and implemented within the Holtec SAR with proper public notice given, as this implicates important legal issues, safety risks and environmental impacts relating to the construction and operation of the proposed CISF project.

In addition to the proposed project interfering with oil and gas leases within and adjacent to the Holtec project area and the NRCs complete lack of investigation into the reliability of Holtecs assertions as to land use and land restrictions on this already questionable site, additional recently submitted public comments demonstrate an absence of consultation and collaboration with State and local agencies on the part of the NRC in completing the Holtec DEIS, in violation 7

Consistent with 10 C.F.R. § 51.23(c), the Holtec DEIS serves as the site-specific review conducted for the construction and operation of the proposed CISF for the period of its proposed license term. See Holtec DEIS at 1-5.

The initial proposed license term is for a period of 40 years, but Holtec has indicated that it intends to seek to renew the license for two additional renewal periods of up to 40 years each for a total of up to 120 years. Id. at 2-2. The NRC Staffs cumulative impact analyses in the Holtec DEIS alleges to have considered these expansion phases in its impact analysis. . .and carries forth those impacts into the description of cumulative impacts. . . so as to conduct a bounded analysis for the proposed CISF project. Id. at 5-9.

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of NRC and the National Environmental Policy Act (NEPA) 8 regulations. The vast majority of public comments further reveal an overwhelmingly strong regional opposition to the proposed project from State senators and representatives, the governor, State and local agencies, communities and tribal organizations and violations of the basic concepts of consent-based siting recommended by the Blue Ribbon Commission for nuclear waste management facilities. 9 Holtec, as the applicant, was not forthcoming and did not provide complete and accurate information in connection with its application, 10 raising further doubt about its ability to operate the facility consistent with NRC rules. In clear violation of NRC regulations, Holtec fraudulently misrepresented, purposefully omitted and/or calculatingly shielded vital information regarding property rights, land use and land restrictions at and around the proposed site from the NRC (and the public). 11 In turn, the NRC failed to conduct an independent investigation into the reliability of this information to ensure its accuracy and completeness, allowing Holtec to delay its responses to requests for additional information (RAIs) relating to oil and gas and mineral extraction operations for nearly a year, officially releasing its responses on October 21, 2020 (nearly a month after the deadline for public comments on the Holtec DEIS). The NRCs release after the close of the DEIS comment period underscores the importance of this new contention. Relying on inaccurate and incomplete information, not based on the current state of knowledge, as to land uses 8

The National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., herein after NEPA.

9 Blue Ribbon Commission, Report to the Secretary of Energy (Jan. 2012).

10 Violation of 10 C.F.R. § 72.11 ( [i]nformation provided to the Commission by. . .an applicant. . .must be complete and accurate in all material respects and must notify the Commission . . . of information. . .having, for the regulated activity, a significant impact for public health and safety or common defense and security.)

11 Violation of 10 C.F.R. §§ 72.11; 72.12; 72.98 (requiring identification of regional extent of external phenomena, man-made or natural, that are used as a basis for design of the ISFSI); 72.90(d) (siting evaluation factors, under NRC regulations, require the [p]roposed sites with design basis external events for which adequate protection cannot be provided through ISFSI or MRS design shall be deemed unsuitable for the location of the ISFSI or MRS); 72.90(a)

(Site characteristics that may directly affect the safety or environmental impact of the ISFSI or MRS must be investigated and assessed.); 72.100 (Defining potential effects of the ISFSI or MRS on the region) 5

and industry operations eliminate any opportunity for a proper site evaluation as required by NRC regulations and result in a wholly deficient DEIS that lacks transparency and robs the public of a chance to meaningfully comment on the project in violation of NEPA regulations.

Fasken has demonstrated standing, has good cause to file Contention No. 3, and it is being timely filed based on the recently disclosed public comments that directly conflict with or were not considered at all in the Holtec DEIS and that starkly contrast with the information provided by Holtec to the NRC in its recent responses to NRC-issued RAIs (information the NRC itself deems necessary in review of Holtecs license application). 12 II. PETITIONERS HAVE STANDING The location of the proposed Holtec CISF is in the Permian Basin, a vital petroleum resource for the nations energy, security and independence. PBLRO consists of 12 entities with substantial operations and leases throughout the Permian Basin in southeast New Mexico and Texas. It has been drilling and extracting oil in the region for over 80 years. Members of PBLRO have mineral leases beneath and surrounding the proposed CISF site and graze cattle within 5-miles of the site.

As set forth in the Affidavit of Tommy E. Taylor (Vice President of Fasken Management, L.L.C., which is the general partner of Fasken Land and Minerals, Ltd.), Fasken is a member of the PBLRO, 13 which is an association of oil and gas producers, ranchers, and royalty owners formed specifically in response to the proposed Holtec CISF project.

Fasken owns and/or leases property related to oil and gas activities located approximately 2 miles from the Holtec site. Faskens acreage (over 2,000 acres) are located directly west and 12 Jose Cuadrado (NRC Project Manager) Letter to Kim Manzione (Holtec Licensing Manager) re First Request for Additional Information, Part 5 dated November 14, 2019, (ADAMS No. ML193322C260).

13 Affidavit of Tommy E. Taylor, Nov. 5, 2020 attached hereto as Exhibit 3.

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adjacent to the proposed Holtec CISF site and has four producing wells on this acreage. 14 Fasken employees frequently visit the region for work related purposes, including routine checks and maintenance on oil and gas production equipment and monitor well operations. Additionally, Fasken owns grazing property and operates significant agricultural operations nearby consisting of 160,000 acres. This property has been in the Fasken family for over one-hundred years.

If a petitioner has already satisfied the general standing requirements under 10 C.F.R. § 2.309(d), in the same proceeding for which a new contention is filed, the petitioner does not need to do so again. 15 On May 7, 2019, the ASLB held that Fasken has demonstrated standing in the current proceeding. 16 Thus, Petitioners have standing to bring New Contention No. 3.

III. LEGAL STANDARDS A. Petitioners Have Good Cause to File New Contention No. 3.

New or amended contentions submitted after the initial date for hearing requests must meet the requirements of 10 C.F.R. § 2.309(c)(1). To do so, a party must demonstrate good cause by showing the following three conditions are met:

(i) The information upon which the filing is based was not previously available.

(ii) The information upon which the filing is based is materially different than information previously available. 17 14 Id.

15 10 C.F.R. § 2.309(c)(4).

16 See ASLB Memorandum and Order LBP-19-4 at 17 (May 7, 2019) (ADAMS Accession No. ML19127A026)

(Fasken has demonstrated standing.).

17 The Commission has stated that materially different information is that which differs significantly. . . from the information in the applicants documents. Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46, 562 at 46, 572 (Aug. 3, 2012). See also, Fla. Power & Light Co. (Turkey Point Units 6 & 7), LBP-17-6, 86 N.R.C. 37, 48, affd, CLI-17-12, 86 N.R.C. 215 (2017) (in the context of late-filed contentions, materially different concerns the type or degree of difference between new information and previously available information).

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(iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information. 18 Petitioners New Contention No. 3 satisfies the requisite three conditions for good cause set out in 10 C.F.R. § 2.309(c)(1). The terms of XTOs lease, XTOs intent in terms of oil and gas development at and around the proposed Holtec site for the next 120 years and Holtecs lack of any third party agreement with XTO prohibiting or limiting in any way its oil and gas operation activities on the lease were not disclosed or reasonably publicly available prior to the NRCs publication of XTOs comment on October 5, 2020. 19 XTO disclosing its lease rights to the dominant subsurface mineral estate owned by the State which legally cannot be encumbered by an after-the-fact approval of a surface use like Holtec seeks here 20 is new and materially different information when compared to the moving target of lies and misrepresentations Holtec has made to the NRC regarding property rights and control of subsurface operations at the site. This includes mischaracterizations of anticipated drilling and restrictions in its most recent RAI responses, officially released and made publicly available on Oct. 21, 2020. 21 Also raises XTOs rights of access to surface within secure proposed Holtec site. The recently revealed property right information is also materially different than speculative misrepresentations in the Holtec DEIS that the active well on the proposed site operates at a minimum production to maintain mineral rights 22 and complete silence as to potential interference with oil and gas lessee at or around the 18 See In the Matter of Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-21, 76 N.R.C. 491, 491 (2012) (noting that although timely is not expressly defined by months or days in [NRC] regulations. . . typically [] 30 to 60 days from the initiating event [is considered] a reasonable deadline for proposing new or amended contentions.); Shaw AREVA MOX Services (Mixed Oxide Fuel Fabrication Facility), 67 N.R.C. 460, 493 (2008) (30 days held as presumptive time frame for timeliness of late-filed contentions).

19 XTO Letter.

20 Id.

21 See e.g., Holtec ER, Holtec SAR, the Holtec DEIS and RAIs. See also XTO Letter at Exhibit A (New Mexico State Land Office Letter (A. Biernoff) to U.S. Nuclear Regulatory Commission (Sept. 22, 2020) (ADAMS Accession No. ML20269A003). State Land Office de-bunking misrepresentations about a speculative contract with Intrepid over potash mining - there are no drilling depth restrictions and the agreement with Intrepid has not yet been approved).

22 Holtec DEIS at 3-7.

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proposed site. The XTO comment forming the basis for New Contention No. 3 was not available prior to publication of the letter by the NRC on October 5, 2020. As discussed infra, information in the XTO letter, in addition to dozens of other public comments, including those from New Mexico Senator Jeff Steinborn on behalf of senators and representatives and regional communities, the New Mexico Environment Department (NMED), the New Mexico Mineral Rights and Resources Division (NMMRD), and the State Land Office (SLO) in opposition to the proposed Holtec CISF make clear that the NRC did not reach out to State and local agencies or consider major viewpoints in opposition to the proposed Holtec CISF project. Information disclosed in their oppositions, only recently published by the NRC on October 5, 2020, also vary in material respects from information contained in Holtec licensing documents. Given the voluminous amount of public comments and thousands of pages received in opposition to the Holtec DEIS, the NRC was forced to delay and stagger its production in making these comments reasonably available to the public on its website. 23 The comments forming the basis for Contention No. 3 were all published by the NRC on or after Oct. 5, 2020. Petitioners have good cause to file and have timely filed the foregoing Motion to admit New Contention No. 3 within the NRCs presumptive 30-day reasonable time frame. 24 B. New Contention No. 3 is Admissible 23 See Ex. 2 Facts (listing some but not all of the substantive opposition comments submitted to the NRC on 9/22/2020 but not made reasonably publicly or posted to the NRCs website until Oct. 5, 2020).

24 See In the Matter of Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-21, 76 N.R.C. 491, 491 (2012) (noting that although timely is not expressly defined by months or days in [NRC] regulations. . . typically [] 30 to 60 days from the initiating event [is considered] a reasonable deadline for proposing new or amended contentions.); Shaw AREVA MOX Services (Mixed Oxide Fuel Fabrication Facility), 67 N.R.C. 460, 493 (2008) (30 days held as presumptive time frame for timeliness of late-filed contentions).

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In addition to meeting the requirements of 10 C.F.R. § 2.309(c)(1), new or amended contentions must also satisfy the basic standards for admissibility under 10 C.F.R. § 2.309(f)(1).

This section requires that each contention:

i) Provide a specific statement of the issue of law or fact to be raised or controverted; ii) Provide a brief explanation of the basis for the contention; iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; 25 v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issuetogether with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; 26 and vi) Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief. 27 25 Requires a significant link between the claimed deficiency in the application and the agencys ultimate determination whether the applicant will adequately protect the health and safety of the public and the environment. Nextera Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-17-07, 75 NRC 301 (2017) (citing Private Fuel Storage, LLC (Indep.

Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 179-80 (1998), Affd, CLI-98-13, 48 NRC 26 (1998)). See also, Oconee, CLI-99-11, 49 N.R.C. at 333-34 (to show that a dispute is material a petitioner must show that its resolution would make a difference in the outcome of the licensing proceeding).

26 However, at the contention admissibility stage, petitioners are not required to prove their case on the merits.

Fansteel, Inc. (Muskogee, Okla. Site), CLI-03-13, 58 N.R.C. 195, 203 (2003).

27 See, U.S. Dept. of Energy, CLI-09-14, 69 NRC 580, 588 (2009) (demonstrating a genuine dispute of fact or law requires a petitioner to show specific ties to NRC regulatory requirements, or to safety in general); Nextera, LBP-17-07, 75 NRC 301 (finding sufficient information to demonstrate a genuine dispute to require inclusion of references to specific portions of the application that a petitioner disputes and for deficient applications, identification of alleged areas of deficiencies with supporting beliefs).

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10 C.F.R. § 2.309(f)(1)(i-vi).

A contention may state an issue of law or fact. A purely legal issue contention need not necessarily address every requirement of 10 C.F.R. § 2.309(f)(1), such as the requirement to provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue. 28 To satisfy basic contention admissibility requirements, a petitioner must proffer at least some minimal factual and legal foundation in support of their contentions. 29 Although a petitioner need not prove the merits of contentions at this stage, mere notice pleading of proffered contentions is insufficient. 30 Rather the NRC requires a petitioner read the pertinent portions of the license application, state the applicants position and the petitioners opposing view, and explain the disagreement. 31 As discussed supra, Petitioners New Contention No. 3 identifies substantial legal and factual errors in the underlying assumptions and material and substantial omissions regarding the land uses, land rights and restrictions at and around the proposed Holtec site that implicate important legal issues, safety risks to the proposed CISF and environmental impacts, which preclude any reasonable or proper analyses under NRC and NEPA requirements. Remarkably, this highly relevant information as to property rights at the proposed site was only recently disclosed through public comments and is without a doubt germane to the NRC license proceeding, as the subject of NRC issued RAIs deeming such information necessary to its review, and invaluable 28 10 C.F.R. § 2.309(f)(1)(v). See U.S. Dept of Energy, CLI-09-14, 69 NRC 580 at 588-91.(We agree, for example, with the Boards view in this proceeding that requiring a petitioner to allege facts under section 2.309(f)(1)(v) or to provide an affidavit that sets out the factual and/or technical bases under section 51.109(a)(2) in support of a legal contentionas opposed to a factual contentionis not necessary.)

29 Oconee, CLI-99-11, 49 N.R.C. at 334.

30 Fansteel, Inc., CLI-03-13, 58 N.R.C. 195 at 203.

31 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg.

33, 168, 33, 170-71 (Aug. 11, 1989).

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/ indispensable information in terms of evaluating the (un)suitability of the proposed location in the middle of one of the nations largest and most productive oil hubs, assessing siting evaluation factors under NRC regulations, as well as a secure facility design and layout, consideration of safety structures and components and potential environmental impacts, including obvious impacts on land use. However, this vital information was improperly withheld by Holtec and improperly excluded from the NRCs consideration. This information raises genuine disputes and serious deficiencies with not only the conclusions in the Holtec DEIS, but also Holtecs October 21, 2020 responses to NRC issued RAIs (material and within the scope of the proceeding) and accompanying set of revisions to both its ER and SAR. Holtecs untimely and delayed responses and revisions, notably after the public comment period for the DEIS, punctuate the impropriety and Catch-22 nature of Commission proceedings.

A. NRC and NEPA Legal Standards Holtec has a duty and responsibility to provide truthful information. Indeed, above all else, it is imperative under NRC regulations and when dealing with the management of highly-radioactive waste that information provided by a license applicant to the Commission is complete and accurate in all material respects. 32 The NRC may only issue a license after conducting an independent assessment of Holtecs material representations and upon a finding that the proposed site complies with NRC siting evaluation factors. 33 Generally, [s]ite characteristics that may directly affect the safety or environmental impact of the ISFSI or MRS must be investigated and assessed. 34 More specifically, NRC regulations require that proposed sites be examined with respect to the frequency and the severity of external natural and man[-]induced events that could 32 10 C.F.R. § 72.11(a) (emphasis added).

33 See 10 C.F.R. §§ 72.40(a)(2), 72.90 - 72.108.

34 10 C.F.R. § 72.90(a).

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affect [] safe operation. 35 Important potential man-induced events must be identified and information collected and evaluated for reliability, accuracy and completeness based on the current state of knowledge about such events. 36 Additionally, the NRC requires that each site be evaluated with respect to the effects on the regional environment taking into account both usual and unusual regional and site characteristics. 37 NRC regulations implementing NEPA reflect amendments designed to improve regulatory efficiency in environmental reviews and to provide for more focused and therefore more effective NRC NEPA reviews by focusing on significant case[-]specific concerns. 38 The purpose of an EIS is threefold: (a) identify all potential environmental impacts; (2) quantify and monetize all impacts that are significant; and (3) identify ways to mitigate significant environmental impacts. All three purposes are clearly stated in 10 C.F.R. § 45(c), but the third gets much less attention than it should. 39 NEPA mandates that federal agencies prepare an EIS before undertaking any major Federal actions significantly affecting the quality of the human environment. 40 The preparation 35 See 10 C.F.R. § 72.90(b); see also 10 C.F.R. § 72.24(a) (requires applicants to provide a description and safety assessment of the site on which the ISFSI is to be located, with appropriate attention to the design bases for external events.); NUREG-1567 § 2.4.2 (requires applicants to identify products or materials produced, stored, or transported by nearby industries, and discuss any potential hazards to the ISFSI from activities or materials produced by nearby industries).

36 10 C.F.R. § 72.94.

37 10 C.F.R. § 72.100(b).

38 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (Jun. 5, 1996);

id., 61 Fed. Reg. 66,537 (making minor clarifying and conforming changes and adding text omitted from Table B-1);

Correction, 66 Fed. Reg. 39,277 (Jul. 30, 2001) (making further corrections to Table B-1).

39 10 CFR § 45(c) concerns the environmental report, a document license applicants prepare and upon which NRC relies to produce the EIS: The environmental report must include an analysis that considers and balances the environmental effects of the proposed action, the environmental impacts of alternatives to the proposed action, and alternatives available for reducing or avoiding adverse environmental effects (emphasis added).

40 43 U.S.C. § 4332(2)(c) (Including a detailed statement by the responsible official on (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of mans environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.)

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of an EIS is meant to ensure that federal agencies will not act on incomplete information, only to regret [their] decision after it is too late to correct. 41 NEPA requires agencies to take a hard look at environmental consequences of the proposed action, and imposes a duty upon the agency to both consider every significant aspect of the environmental impact of a proposed action and inform the public of its analysis and conclusion. 42 Pursuant to NRC regulations, a draft EIS must state how alternatives considered in it and decisions based on it will or will not achieve [NEPA][] requirements, 43 . . . identify any methodologies used and sources relied upon, . . . be supported by evidence that the necessary environmental analyses have been made . . .[and that] [t]he NRC staff [] independently evaluate and be responsible for the reliability of all information used in the draft [EIS]. 44 In completing a draft EIS, the NRC is encouraged to cooperate with State and local agencies and include consideration of major points of view concerning the environmental impacts of the proposed action and the alternatives, and contain an analysis of significant problems and objections raised by other Federal, State, and local agencies, by any affected Indian Tribes, and by other interested parties. 45 Additionally, a draft EIS must include discussion of the cumulative effects for a proposed project, defined as the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.46 41 Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 371 (1989) (emphasis added).

42 Balt. Gas & Elec. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97, 103 (1983) (quoting Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 553 (1978)).

43 Specifically, sections 101 and 102(1) of NEPA and of any other relevant and applicable environmental laws and policies.

44 10 C.F.R. § 51.70(b) (emphasis added).

45 10 C.F.R. § 51.71(b).

46 40 C.F.R. § 1508.7 (emphasis added); Council on Environmental Quality (CEQ) Regulations.

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Cumulative effects, synonymous with cumulative impacts, can result from individually minor but collectively significant actions taking place over a period of time.

Draft and final EISs are government-sponsored documents that will subsequently be issued to other federal agencies, state agencies, and the public. Because the government stands by the reliability of the information and conclusions in its EISs, they are often used as references for a broad array of decisions. To casually include information that has not been independently verified for its reliability and completeness by the NRC would violate both NRC regulations and NEPAs fundamental purpose of informing the public about environmental issues.47 Moreover, to protect the inclusion of information in an EIS from challenge in a licensing proceeding would violate NRC regulations governing public participation requirements. 48 IV. CONTENTION NO. 3 The Holtec DEIS, ER and SAR inappropriately rely on misleading and speculative information and assertions and glaring material omissions as to land use, land rights and land restrictions at, under and around the proposed site; lack any independent investigation and analysis by the NRC, which preclude proper assessments under NEPA and NRC regulations, including but not limited to siting evaluation factors presently and in the foreseeable future; and fail to incorporate the major opposing viewpoints of State and local agencies and communities, contrary to the principles of consent-based siting.

A. Basis for New Contention No. 3 Petitioners file New Contention No. 3 to address recently publicly published comments by the lessee of subsurface mineral rights directly below and adjacent to the proposed Holtec site filed in opposition to the Holtec DEIS that reveal substantial flaws and fundamental deficiencies in the 47 TVA, Intervenors Reply to Responses in Opposition to Motion for Leave to File Contention 4 (Inadequate Discussion of Environmental Impacts of Spent Nuclear Fuel Pool Fires) and Contention 5 (Impermissible Discussion of Energy Alternatives and Need for The Proposed SMR), Docket No. 52-047-ESP (June 22, 2018), (ADAMS Accession No. ML18174A075) (emphasis added).

48 10 C.F.R. § 51.104.

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description and underlying assumptions incorporated in environmental, safety and technical issues relating to land use rights and land use restrictions below and around the proposed Holtec site.

These comments, disclosed for the very first time on October 5, 2020, contain significantly diverge from information and conclusions contained in the Holtec DEIS, as well as Holtecs ER and SAR, and clearly demonstrate there are presently no drilling depth restrictions beneath and around the proposed site (and technologies continue to improve to allow drilling), the absence of any agreement or ability to proscribe oil and gas operations beneath and around the site pursuant to XTOs lease terms, as well as XTOs superior rights to utilize the surface area within the proposed project boundary for the duration of its lease. Not considering this fundamental information in analyses of legal issues, environmental impact or with respect to safety risks is negligent at best and reckless in the context here.

Moreover, recent comments from the State Land Office also disprove the existence (or effectiveness) of any alleged Holtec agreement with Intrepid that would purportedly limit potash mining in and around the site for the duration of the proposed project, 49 as well as its misleading claims of prospective future land use restrictions and the imposition of drilling depth restrictions 50 emphasizing that [r]elying on statements made by Holtec in the DEIS have led to determinations based on incorrect information and unfounded assumptions. 51These comments directly contradict information initial representations made by Holtec in its SAR and ER that it had proscribed all oil and gas and mineral extraction beneath the site, directly contradict Holtecs 49 New Mexico State Land Office Letter (A. Biernoff) to U.S. Nuclear Regulatory Commission (Sept. 22, 2020)

(ADAMS Accession No. ML20269A003) (Holtec claims that it is in discussions with the New Mexico State Land Office regarding an agreement to retire potash leasing and mining within the proposed. . .project area, DEIS at 4-4, 5-24. This is false.) (emphasis added).

50 Id. (the DEIS simply assumes without discussion that no shallower development can occur now or in the future.

State Land Office oil and gas leases, whose terms are prescribed by the New Mexico Legislature, do not impose any depth restrictions on oil and gas development.) (emphasis added).

51 Id.

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subsequent misrepresentations that all drilling would be limited to greater than 5,000 feet, and further contradict information and conclusions in the Holtec DEIS and Holtecs most recent RAI responses and revisions to its SAR and ER that the cumulative impacts to land use would be SMALL 52 Reliance on false and speculative information in the review of Holtecs license and the Holtec DEIS as to property rights, prospective land uses and restrictions at and around the proposed site cannot reasonably form the basis or serve as underlying assumptions for any proper analyses of safety risks or environmental impacts under either NEPA or NRC regulations. 53 Information regarding present and reasonably future oil and gas and mineral extraction directly beneath and adjacent to the proposed site cannot be ignored or glossed over when assessing impacts to land use, geology and soils and most importantly interference with the construction and operation of the CISF itself. Further, given these industries are primary drivers of local economies in the region, any adverse impacts to same must be evaluated in any cost-benefit analyses, risk assessment and in the consideration of alternative actions or site locations.

In addition to the glaring inaccuracies and material omissions as to property rights pointed out by XTO (and the risks presented to the CISF facility by such drilling), additional public comments made in opposition to the Holtec DEIS demonstrate that the NRC failed to conduct an independent review and investigation into the reliability of the speculative information provided by the applicant and also failed to consider major viewpoints or engage with State and local agencies, as well as interested parties, in violation of NRC and NEPA regulations. This type of 52 Holtec DEIS at 4-6 (The proposed CISF would have no impact on oil and gas exploration and development in the proposed project area because extraction will continue to occur at depths greater than 930 m [3,050 ft]. Therefore, the NRC staff concludes that the land use impacts during the construction stage for the proposed action (Phase 1) would be SMALL, and potential impacts for 24 Phases 2-20 would also be SMALL.)

53 Inaccurate and misleading statements in the Holtec DEIS further violate NRC regulations requiring an applicant provide information to the Commission that is complete and accurate in all material respects. 10 C.F.R. § 72.11(a).

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investigation and analyses (or lack thereof) runs contrary to the fundamental principles of consent-based siting recommended by the Blue Ribbon Commission for nuclear waste management facilities. 54 The strong opposition by local communities, cities, the governor, senators, representatives and tribes in the region in recently disclosed comments show a lack of consent-based siting.

Further, the NRCs refusal to hold in-person meetings around the country for the CISF project, which proposes to transport nuclear waste, not once but twice, also violates consent-based siting principles. Not only has the NRC failed to consider the major viewpoints of the lessee with dominant property rights at and around the site, it has also substantially undervalued the overwhelming regional opposition to the project and unjustly and severely limited the opportunity for meaningful nationwide public participation, suppressing the voices of opposition from those located along the undisclosed transportation routes where the high-level radioactive nuclear waste will travel.

The foundation to any siting evaluation should begin with determining property rights, land use and geophysical conditions at and around the site, yet Holtec has been hiding the ball on this essential information thus far and the NRC has not yet found it. Such substantial and material omissions as to land use and property rights results in flawed underlying assumptions and inappropriate extrapolations, cannot possibly satisfy NRC regulations for site assessment or NEPAs hard look at cumulative impacts of the proposed project on land use or rationally justify the Holtec DEIS finding no impact on oil and gas exploration. 55 54 Blue Ribbon Commission, Report to the Secretary of Energy (Jan. 2012).

55 Holtec DEIS at 4-6. See 10 C.F.R. §§ 72.40(a)(2), 72.90 - 72.108; see also 10 C.F.R. § 72.24(a) (requires applicants to provide a description and safety assessment of the site on which the ISFSI is to be located, with appropriate attention to the design bases for external events.); NUREG-1567 § 2.4.2 (requires applicants to identify products or materials produced, stored, or transported by nearby industries, and discuss any potential hazards to the ISFSI from activities or materials produced by nearby industries); 55 43 U.S.C. § 4332(2)(c) (NEPA requires a detailed statement 18

B. Facts Petitioners Intend to Rely on To Further Support New Contention No. 3 The NRC reviews Holtecs ER and SAR in evaluation safety and environmental concerns and heavily relies on an applicants responses to NRC issued RAIs in its analyses. According to the Holtec DEIS, potential cumulative impacts for the proposed CISF project are based on publicly available information about existing and proposed projects, information in Holtecs ER and SAR, and Holtecs responses to the [NRCs] requests for additional information [RAIs]. 56 For the proposed Holtec CISF project, other past, present and future actions considered in cumulative analyses include potash mining, oil and gas production, other nuclear facilities, and wind and solar farms. 57 Recently public disclosed comments, as well as Holtecs nearly year-long delayed responses to RAIs, reveal numerous fundamental falsehoods and deficient underlying assumptions relating to the status of present and foreseeable future oil and gas and mining extraction operations, which precludes any appropriate analyses of safety concerns and cumulative environmental impacts at and around the proposed CISF. In addition to the NRC glaringly omitting major viewpoints of lessee to dominant property rights, it also abandoned it responsibility to consult with and incorporate major viewpoints of State and local agencies, including but not limited to the NM ED and the State Land Office, as well as the interests of those impacted by such exclusions.

The NRCs review of Holtecs license is based on inaccurate, incomplete, unreliable, inconsistent and/or material omissions, including but not limited to those in attached Exhibit 2. 58 by the responsible official on (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of mans environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.)

56 Holtec DEIS at 5-1.

57 Id.

58 Petitioners reserve the right to amend and/or supplement same as additional relevant information becomes available.

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C. Petitioners Raise Genuine Disputes of Material Fact and Law

i. Recent Public Comments Highlight Material Misrepresentations and Glaring Omissions Regarding Land Use Rights and Land Use Restrictions at and Around the Proposed Site Precluding Proper Cumulative Impact Analyses and Assessment of Siting Evaluation Factors and Highlighting the Absence of an Independent Investigation by the NRC into the Reliability of Such Information Recent public comments from the oil and gas lessee with subsurface mineral rights, and actively engaging in oil and gas exploration in the southwest portion of the proposed CISF site expose inaccuracies and misconceptions in the information relied on in the Holtec DEIS, and provided by the applicant in its ER, SAR and Holtecs recent responses to RAIs. The recent XTO comments belie and negate statements in the Holtec DEIS claiming there would be no impact on oil and gas exploration and development in the proposed project area because extraction will continue to occur at depths greater than 930 m [3,050 ft], that [f]uture oil and gas development (e.g., drilling and fracking) beneath the proposed project area will likely continue to occur at depths greater than 930 m [3,050 ft] 59 and the proposition that the area of land disturbance for construction of the CISF would not encompass an operating oil or gas well or former decommissioned wells. 60 To the contrary, XTO has valid and valuable property rights, unencumbered by drilling depth restrictions, including future development rights and attendant surface property rights directly below the proposed storage site that would be impinged by the construction and operation of Holtecs project. 61 Holtec has long been aware that the State Land Office does not impose drilling depth restrictions, after having unsuccessfully tried to lobby the State Land Office for a negative 59 Holtec DEIS at 4-6 and 4-7.

60 DEIS at 4-4 (none of [] oil and gas wells are located within the 135.5-ha [330-ac] storage and operation area or where any land would be disturbed by construction activities.)

61 XTO Letter.

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easement at the site that might disturb or conflict with the proposed CISF project, but it chose not to apprise the NRC of this significant development. What is new and materially different, that could not have been known prior to XTOs recently published comments, is that Holtec also unsuccessfully attempted to elicit agreements with oil and gas lessees, with superior property rights at and around the site, to limit and/or restrict drilling that might disturb or conflict with the proposed CISF project. Holtec was not forthcoming with the NRC (or the public) about these vital facts and its failed efforts to impede and restrain industry operations, which economically benefit the region. Holtec instead opted to provide the NRC with pure speculation as to future not-yet-executed or approved agreements as to land use and land restrictions to form the basis for its Holtec DEIS conclusions. Speculation will not suffice when dealing with nuclear waste management.

Holtecs October 21, 2020 responses to NRC-issued RAIs, and its most recent revisions to its ER and SAR, also contain new and materially different from the previous information it had provided to the NRC (and the information and conclusions drawn from same that the public had a chance to comment on in response to the Holtec DEIS). After nearly a year long delay in responding to the RAIs, in late October, Holtec revised its earlier statements to indicate that the shallowest oil and gas deposits in the area are in the Yates/Seven Rivers formation and that all future wells near the site would be on drill islands. 62 However, this is also deceiving because vertical drilling need not necessarily be done from drilling islands, and Holtecs recent RAI responses and newly revised ER and SAR indicate for the very first time that minerals beneath the proposed CISF site are present in the Yates Formation which usually requires vertical drilling.63 Therefore, drilling from within the Holtec CISF is possible and well within the rights of 62 Ex. 2 Facts, Holtec Response to RAI 2-8.

63 See Ex. 3, Affidavit of Tommy E. Taylor (Nov. 5, 2020).

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XTO/Exxon and any other mineral owner. The mineral owner is dominant and the surface owner is servient; and the surface owner must accommodate the mineral owner.

A proper assessment of cumulative impacts on land use, geology and soils and cost-benefit analysis cannot be done without accurate and complete information as to the present and foreseeable future oil and gas and mineral extraction operations directly below and adjacent to the proposed site. It is hard to imagine how the NRC could adequately assess or evaluate important safety issues and environmental concerns impacting the safety design and structure, facility design and layout, build-out phases, negative socioeconomic impacts of restricting or prohibiting extraction operations without this essential information. In other words, risks interact with other risks and cannot be properly assessed in isolation. The XTO issues impact (1) site integrity (2) future geophysical changes (3) site security given XTOs right of access. The absence of considerations here violates NRC regulations requiring an assessment of man-made and natural phenomena impacting the project, as well as general siting evaluation factors, and further violates NEPA regulations requiring consideration of alternative actions. 64

1. Previously Undisclosed Dominant Estate of Oil and Gas Lessee(s) at and Around the Proposed Site Contrary to the ever-changing misrepresentations and inconsistencies Holtec has proffered regarding Holtecs control over subsurface extraction operations or Holtecs speculation as to agreements made with third-parties to proscribe extraction activities at and around the proposed site, XTO asserts in its recent comment that it has superior and superseding land use rights.65 According to XTO these are valuable property rights and as long as XTO properly holds the 64 See 10 C.F.R. §§ 72.40(a)(2), 72.90 - 72.108; see also 10 C.F.R. § 72.24(a); NUREG-1567 § 2.4.2; 42 U.S.C. § 4321 et seq.

65 Ex. 1, XTO Letter.

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Lease by production, [it] has the right to produce all the oil and gas from the Lease area, including correlative use of the surface as necessary, and that right may not be unreasonably limited by Holtec. 66 XTO claims Holtecs land use rights are subservient to XTOs mineral development and surface use rights and it may not unreasonably interfere with XTOs right of use, 67 further stating the surface owner cannot constrain an oil and gas lessees ability to produce its oil and gas by any means including directional or horizontal drilling. 68 This is a stark contrast to statements made by Holtec in its recent RAI responses, ER and SAR and information relied on by the NRC in the Holtec DEIS.

While the DEIS does recognize that [t]here is one active oil/gas well on the southwest portion of Section 13 that operates at minimum production to maintain mineral rights, it does not indicate this is XTO. The DEIS also improperly suggests that no oil and gas wells would be located within the proposed CISF pads or where land would be disturbed. The DEIS fails to consider future development rights of the dominant property right lessee for the land directly below and at the surface area of the proposed CISF. Instead the DEIS improperly shortchang[es] impacts to XTOs paramount lease rights to both produce subsurface oil and gas and utilize the surface as necessary for such development. Impingement of XTOs lease rights were not adequately considered (or even considered at all) in the Holtec DEIS or its conclusion of minimal cumulative impacts to land use.

As noted in the recent XTO comment, these assertions as well as the NRCs conclusion in the Holtec DEIS claiming the proposed project would have no impact on oil and gas 66 Ex. 1, XTO Letter.

67 Id. at 4.

68 Id.

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development contain critical legal and factual errors. 69 It is clear from XTOs recent comment that it has superior property rights and valuable interests in development at the proposed site and that [b]ecause XTOs rights extend for the life of the Lease, i.e. as long as production is ongoing, it does not matter for the purposes of the DEIS when production occurs, the construction and operation of the proposed CISF would impinge XTOs future production and adversely impact its existing Lease rights. 70 This directly contradicts the DEIS conclusion of no impact.

The future development rights of oil and gas lessees is also grossly underestimated and overlooked in the DEIS and Holtecs RAI responses, and which are at odds with XTOs recent comments which disclose no intent to cease operations at the site. In its RAI responses Holtec mistakenly asserts that all active and formerly producing wells in the southwest corner of the facility will be located within Section 13 however all of these structures described will either be removed prior to construction . . .or remain outside the footprint of the facility. 71 But this ignores the fact that XTO has lease rights even if currently undeveloped - and these lease rights exist within the boundary of the proposed CISF site. 72 In response to an RAI inquiring as to the complete lack of information provided by Holtec as to what happens to . . existing structures at the site during construction and operation phases of the proposed facility. . . .[i.e.] a producing oil/gas well, Holtec misleading responds that such structures are not within the footprint of the HI-STORE facility [and are] . . .not being removed will have no impact on construction, which ignores future development and dominant property rights of the oil and gas lessee. 73 69 Id.

70 Id. at 4-5.

71 Ex. 2, Facts, Holtec Response to NRC RAI 2-3 (ML20153A779). According to the NRC, this information is necessary to determine compliance with 10 CFR §§72.24(a), 72.90(a) through (d), 72.94, and 72.98.

72 Ex. 1, XTO Letter.

73 Ex. 2, Facts, Holtec Response to NRC RAI 2-5 (ML20153A779). According to the NRC, this information is necessary to determine compliance with 10 CFR §§72.24(a), 72.90(a) through (d), 72.94, and 72.98.

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XTO asserts that [n]either the NRC nor Holtec has legal authority to unilaterally restrict production from XTOs existing oil and gas Lease to certain depths where XTO has not agreed to such a limitation. 74 This is new and materially different information and underlying assumptions relied on, but not fact-checked by the NRC in the Holtec DEIS. And it is information that directly and effectively discredits the veracity of Holtecs recent responses to RAIs stating [f]uture vertical drilling near the site. . .can only occur within permitted drill islands, 75 The NRC deems this information material and within the scope of the proceeding, stating This information is necessary to determine compliance with 10 CFR 72.98(c)(2) and 72.103(f)(2)(ii). 76 Recently disclosed information directly contradicts Holtecs response and conclusions in the DEIS related to same.

2. Previously Undisclosed Lack of Restrictions or Agreements as to Drilling Depths Directly Below CISF Site XTO claims Holtec has [n]o legal authority. . .to decide how XTO may develop its lease. 77 This runs contrary to Holtecs initial assertions that it had complete control over the site and had proscribed all mineral extraction activities, runs contrary to falsehoods in Holtecs ER and SAR and the Holtec DEIS alleging that drilling would be restricted and/or assumed to occur below 3,050 feet. Holtecs recent responses to RAIs also misleadingly attaches limitations and restrictions that simply do not exist under the terms of XTO lease. In response to an NRC issued RAI seeking additional information on oil and gas exploration and production activities near the proposed facility, Holtec falsely claims that the risks of new wells near the CISF, and all future wells near the site would be on drill islands and [a]ll drill islands are outside the site boundary 74 Ex. 1, XTO Letter at 4.

75 Ex. 2 Facts, RAI 2-25.

76 Ex. 1, XTO Letter.

77 Id.

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pursuant to Order 3324. 78 Holtec also incorrectly states in its recent responses that all drilling would be either be assumed to occur below 3,050 feet or somehow be restricted or limited to below 3,050 feet. 79 XTOs recent comments resoundingly deny these drilling depth assumptions and/or restrictions, stating [n]either NRC nor Holtec has legal authority to unilaterally restrict production from XTOs existing oil and gas Lease to certain depths where XTO has not agreed to such a limitation. 80 As made clear in the recently disclosed XTO comment, it has not entered into any such agreement, and any such agreement must necessarily involve the State Land Office. 81

[T]he DEIS incorrectly assumes that should oil and gas activities occur, they will not interfere with the project because oil and gas resources will be accessed through off-site drill islands and at depths below 3,000 feet. DEIS at 3-8, 4-5. While it may be true that targets exist at depths between 3,000 and 16,000 feet and the Belco Tetris Shallow and Belco Deep drill islands could provide an offsite location for wells, there is no assurance that this would occur. The State Land Offices oil and gas lease terms are set by statute and do not contain any depth limitations. By law and contract, oil and gas lessees are able to explore and develop resources at any depth.

Even assuming the State Land Office desired to restrict mineral development to certain depths, it would be subject to potential lawsuits for conflict with the statutory lease. . .Additionally, the DEIS does not consider what environmental and safety impacts might reasonably manifest if oil and gas operations did occur at shallower depths. 82 Contrary to speculation by Holtec and blind acceptance of such assumptions in the Holtec DEIS, recently information disclosed by XTO establish there are presently no land use restrictions on drilling depths imposed on oil and gas operations below and in the region of the proposed site.

78 Ex. 2, Facts, Holtec Response to RAI 2-8.

79 See Holtec DEIS, Holtec ER, Holtec SAR and RAIs.

80 Ex. 1, XTO Letter at 4.

81 Ex. 1, XTO Letter attaching Exhibit A, New Mexico State Land Office Letter (A. Biernoff) to U.S. Nuclear Regulatory Commission (Sept. 22, 2020) (ADAMS Accession No. ML20269A003). (emphasis added).

82 Id. (indicating that State Land Office had no intent to impose drilling depth restrictions and emphasizing the importance of oil and gas royalties and socioeconomic impact on public education).

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This is material information, not considered in the NRCs review of Holtecs application that Petitioners dispute and that implicate important legal, safety and environmental issues.

Additionally, as stated in the Affidavit of T. Taylor, extraction at shallower depths in the Permian Basin is presently occurring and a real possibility beneath the Holtec site. 83 While Holtecs recent responses state that the minimum horizontal drilling depth has been revised throughout the SAR to reflect the shallowest oil and gas deposit in the area being 3050 below the surface. . .[h]orizontal drilling activities, including hydraulic fracturing (fracking),

beneath the site will be a minimum of 3050 deep, this is still categorically false and directly at odds with the recent XTO comment stating it has not agreed to such a limitation and neither is one imposed. 84 The materiality of drilling depths and extraction below and adjacent to the proposed site is also evidenced by Holtecs unsuccessful attempt to lobby the State Land Office for a negative easement to impose such a land use restriction and prohibition on horizontal drilling beneath the site thatand its admission that it believes this may disturb or conflict with Holtecs use of the site. 85 Information as to the specifics of XTOs lease and lack of any agreement(s) made with Holtec to impinge on its dominant surface property rights at the proposed site, and were not previously publicly available prior to XTOs comments (published on October 5, 2020). Prior misrepresentations and speculation as to land use rights and land use restrictions and drilling 83 See Ex. 3, Affidavit of T. Taylor (Nov. 5, 2020) (Although Holtec claims that drilling shall only occur from currently existing drilling islands located outside the perimeter, this would not apply only to horizontal wells. If minerals beneath the Holtec site are present in the Yates formation, which usually requires vertical drilling, drilling from within the Holtec CISF is possible and is the right of XTO/Exxon and any other mineral owner. The mineral owner is dominant and the surface owner is servient. The surface owner must accommodate the mineral owner.)

84 Holtec SAR.

85 Letter from Stephanie Richard, New Mexico Public Lands Commissioner, to Krishna Singh, President of Holtec International (June 19, 2019) (ADAMS Accession No. ML19183A429, published on July 2, 2019) 27

depths have been disproven and clarified by the recent information provided in XTOs comment, which is materially different from information contained in the Holtec DEIS, Holtecs most recent October 2020 responses to RAIs, and revisions to its ER and SAR. To comply with its own regulations, NEPA, as well as other state laws and regulations, the NRC is tasked with certain responsibilities of due diligence in reviewing a license application to store highly radioactive waste. As such, it must address these material disputes as they implicate important legal, safety and environmental issues. The NRC has to make an independent review as a matter of law, but it did not here.

ii. The NRC Failed to Conduct an Independent Investigation into the Reliability of Information in the Holtec DEIS, Failed to Collaborate and Consult State and Local Agencies, and Failed to Consider Major Viewpoints of Interested Parties in Violation of NRC and NEPA Regulations and Contrary to Recommendations for Consent Based Siting In addition to the fundamental misrepresentations as to land use rights and land use restrictions at the proposed site, recently disclosed comments from State and local agencies, and others, expose the NRCs failure to conduct an adequate independent investigation into the reliability of information under its review and blatantly ignored major viewpoints of interested parties as required by the NRCs NEPA-implementing regulations. 86 Instead of collaborating and cooperating with State and local agencies and communities, the NRC simply accepted, without independent review, the veracity and accuracy of Holtecs representations. It is negligent at best for the NRC to rely on information provided by a party with vested interest. The NRC ignored its responsibilities under NRC and NEPA regulations resulting in faulty, flawed and unreliable conclusions. And the NRC further failed to consider and incorporate the major viewpoints of 86 10 C.F.R. § 51.70(b).

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NMED, the State Land Office, the NM Mineral Development Division, and other entities with extensive and superior regional knowledge of the proposed site in violation of NEPA, and improperly discounted the overwhelming opposition by the governor of New Mexico, senators and representatives, tribal nations, counties and cities of the region. Statements made in the XTO letter with superior property rights at the proposed site also assert that oil and gas lessees were not appropriately involved or considered in the Holtec DEIS. This is unacceptable and violates the primary principles of consent-based siting mandated by Blue Ribbon Commission.87

1. Failure to Involve Oil and Gas Lessees The oil and gas industry is the cornerstone of New Mexicos economy with the Permian Basin is one of the most productive and active oil hubs in the world. Despite international standards strongly advising against placing nuclear facilities above valuable mineral resources, 88 Holtec is seeking to construct and operate the largest nuclear waste storage facility ever proposed in the history of the U.S. overlaying and adjacent to extensive oil and gas operations in the middle of the Permian Basin.

Given its ill-advised location choice, the viewpoints of oil and gas lessees in the region must be taken into account, especially those with dominant property rights in close proximity to the proposed site. It is hard to imagine more relevant or significant interested parties. Yet, the NRC has largely ignored oil and gas lessees viewpoints and rights, taking Holtecs speculation and mischaracterizations of their collective land use and alleged land use restrictions at face value, 87 Blue Ribbon Commission, Report to the Secretary of Energy (Jan. 2012).

88 See, IAEA Safety Standards for Protecting People and the Environment, Disposal of Radioactive Waste -

Requirement 9: Isolation of Radioactive Waste at 27 (2011)(website url: https://www-pub.iaea.org/MTCD/publications/PDF/Pub1449_web.pdf) (hereinafter IAEA Article)(The disposal facility has to be located away from known areas of significant underground mineral resources or other valuable resources.)

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without conducting any independent review as to the reliability, accuracy or completeness of such highly relevant information. This is unacceptable.

As disclosed in recent oppositions to the Holtec DEIS, several oil and gas lessees beneath and adjacent to the proposed site confirm they have not entered into any agreement(s) to restrict their land use rights or any limitations or restrictions as to drilling with Holtec and/or the NRC at or around the proposed Holtec CISF site and they strongly oppose the proposed CISF project given the NRCs shortfalls and the paucity of data and studies to determine the impacts to industry:

• The DEIS omits the SLO and all oil and gas lessees in the area from the long list of agencies and entities with which NRC consulted during preparation of the DEIS or to which NRC distributed the DEIS for review. (citing DEIS at 1-6, 1-7, 11-3). The DEISs analysis suffers as a direct result. 89

• The DEIS is also tainted by its heavy reliance on Holtecs submissions to the NRC, which similarly ignore or discount existing oil and gas lease rights. Previously, NRC appeared to blindly accept Holtecs erroneous assertions that Holtec controls the entire project site.

Specifically, Holtec misrepresented to NRC and the SLO that Holtec had entered into third-party agreements to proscribe oil and gas extraction in Holtecs project area. In reality, neither XTO nor any of its affiliated entities has an agreement with Holtec to prohibit or limit in any way oil and gas operation activities on the Lease. To be clear, XTO would not enter into such an agreement with a third party without first securing the SLOs approval and appropriate amendments to the terms of XTOs Lease to avoid any risk of breach, termination, or cancellations. 90

• Until and unless Holtec conducts scientific studies and provides data supporting its proposed use of the subsurface without negative impact to Conchos current and future operations underneath its oil and gas lease, Concho is unable to support Holtecs proposal. 91

• To date, EOG has not engaged in any discussions with Holtec about its proposed operation in New Mexico, nor has EOG entered into any agreements with Holtec. Without the benefit of any such discussions or reviewing the studies and analyses upon which Holtec made its determinations about the potential impact of its operations on oil and natural gas development, EOG is unable to provide a detailed response to the Holtec proposal. 92

• EOG is generally concerned about Holtec siting the facility in a portion of New Mexico with a high level of oil and natural gas development and could reasonably expect that such 89 Ex. 1, XTO Letter at 2.

90 Id.

91 Ex. 4, New Mexico State Land Office Letter (A. Biernoff) to U.S. Nuclear Regulatory Commission (Sept. 22, 2020) (ADAMS Accession No. ML20269A003), at Exhibit A.

92 Id., at Exhibit B.

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siting would impact operations as well as future drilling and development in Eddy and Lea Counties, New Mexico. 93 These entities represent significant sources of revenue for the region, a major source of employment and fund indispensable services, like housing, public education and transportation infrastructure in the region. 94 As such, their viewpoint and opposition to the Holtec CISF project represent a significant group impacted and potentially irreversibly damaged by the construction, operation, decommissioning and decontamination of the proposed CISF project. There are inherent risk trade-offs, socioeconomic trade-offs, competition for use of infrastructure and resources with nearby oil and gas lessees that cannot be overlooked. Their collective actions and concerns about the lack of any studies, data or analyses to determine the impact on oil and gas development speak volumes about the opposition in the region and must be integrated in any proper site assessment under NRC regulations and analyzed in cumulative impacts on land use and cost-benefit analyses under NEPA regulations.

Cannot rely on infrastructure and improvements financed by oil and gas industries on the one hand, and then on the other, claim that placing a nuclear waste storage site of unprecedented proportions to any other, including Yucca with additional safeguards and deep geologic repository, will have only a minor or SMALL impact on land use and that the proposed site will bring MODERATE and only beneficial economic impacts to the region. Without any mitigation measures, the proposed Holtec CISF will impede on production ability of oil and gas lessees in the region, impinge on land use rights of oil and gas lessees in and around the site and reduce royalties for public education as well as other resources.

93 Id.

94 Ex. 4, New Mexico State Land Office Letter (A. Biernoff) to U.S. Nuclear Regulatory Commission (Sept. 22, 2020) (ADAMS Accession No. ML20269A003), at Exhibit A.

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2. Senator Steinborn, et al Letter to the NRC 95 Noting the lack of adequate community outreach for the DEIS, the absence of a permanent disposal site, and significant risks and emergency liability to local communities, recently published comments from Senator Steinborn et al. also make also clear that the proposed Holtec CISF project faces substantial regional opposition, whose major viewpoints have not been considered or been steeply discounted and undervalued in the NRCs licensing process:

• We write to express our opposition to the proposed [Holtec] [CISF] and concerns about the . .

.DEIS[]. This project creates unreasonable health, economic and national security risks for New Mexico and its residents. It would expose many communities to risks during the transportation and storage of high-level radioactive waste. We believe that the scope of the DEIS fails to adequately and reliably assess the risks of this unprecedented proposed project and the many technical variables that exceed national experience. Furthermore, given the impacts of shipping high-level radioactive waste across the country to New Mexico, we are very disappointed by the [NRCs] lack of appropriate adequate outreach and public engagement opportunities required by law.

• Not only do many New Mexico communities oppose the proposal, Steinborn et al also notes significant opposition from the governor, the commissioner of public lands and a majority of New Mexicos congressional delegation, local governments representing close to 50% of the population have passed resolutions opposing the [Holtec CISF] or the transportation of high-level radioactive waste through their communities. . . 96 The lack of transparency and recent comments evidencing a lack of support from State and local entities is in stark contrast the BRCs recommendations for consent-based siting of CISFs.

3. New Mexico Environmental Department Letter to the NRC 97 Similar to other State and local agencies whose major viewpoints have been largely disregarded, the NM ED opposes the Holtec CISF project, objects strongly to the recommended action of approving the . . .[its] [l]icense and demands the No-Action Alternative. Given the 95 See Ex. 4, New Mexico Senator Steinborn et al. Letter to the U.S. Nuclear Regulatory Commission (Sept. 22, 2020) (ADAMS Accession No. ML20275A333) *posted to NRC website on Oct. 5, 2020.

96 Id. (citing numerous communities in opposition to the proposed Holtec CISF).

97 See, Ex. 4, New Mexico Environment Department Letter to John Tappert, NRC (Sept. 22, 2020) *posted to NRC website on Oct. 5, 2020.

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unlikelihood of a permanent repository in near future, the NM ED feels the proposed site is unsuitable for SNF storage over a period of decades when only burying highly radioactive and toxic SNF to a depth of. . .50 feet in an area that is underlain by shallow groundwater and subject to concerns about ground subsidence and sinkhole development.

Acknowledging that NM ED is the expert on environmental impacts in the region and has highly specialized knowledge of hydrology, geology and local biology, the NRC entered into a Memorandum of Understanding with NM ED to consult and collaborate on the Holtec DEIS, yet their substantive comments and major viewpoint has largely been ignored by the NRC as disclosed in their recently published opposition to the Hotlec DEIS (noted below). Surprisingly, it was only recently in its October 21 released responses to NRC issued RAIs that Holtec first disclosed of its intent to file a notice with the NM ED to obtain a stormwater discharge. 98 Meaning, the State agency was not fully apprised on consulted with respect to this permit or of Holtecs intention, nor was the public able to comment on same in the Holtec DEIS. The lack of consideration of NM EDs comments in opposition, especially given the necessity of obtaining a permit from the agency, is concerning.

• New Mexico has grave concerns about the inadequacy of the technical analysis in the draft EIS.

The inadequate conceptualization of the geologically unsuitable site, the preclusion of a thorough evaluation due to vast technical deficiencies, the lack of inclusion of all applicable state regulatory oversite and environmental impact controls, and the omission of a full assessment of environmental justice concerns all contribute to a draft EIS that negligently fails to meet the requirements [of NEPA].

o There are at least 18 abandoned and plugged wells located on the property that could contribute to the formation of sinkholes if the casing on these wells has been compromised. There is one plugged saltwater disposal well located north-east of the property boundary that could contribute to sinkhole formation and potential subsidence. Additionally, ground subsidence related to potash mine workings, as has been documented in the region, must be evaluated in greater detail as a potential risk to the stability of the CISF facility.

o The sources used for the seismicity section of the draft EIS should include more recent research including the updated model of the reference used for the seismic hazard map and current seismic 98 Ex. 2, Facts, Holtec Response to ER-GEN-2.

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monitoring by the Texas Bureau of Economic Geology TexNet project and the New Mexico Tech Seismological Observatory.

o Any release of contaminants to shallow groundwater at the proposed Holtec CISF site is significant with regard to the potential for contaminants to migrate into water supply wells, springs and playas in the area. . .[and the Holtec DEIS] does not contain any provision for groundwater monitoring.

This is a critical omission given that shallow groundwater exists at the site; this groundwater must be monitored for any evidence of a release into the subsurface. (citing DEIS, 2017 ER, and SAR, Rev. H17 - all acknowledging the presence of discontinuous and variable-depth groundwaters at the proposed CISF site and the potential for shallow groundwaters in the vicinity that may be controlled by playa lake levels - such playas are regulated surface waters of the state and subject to NMAC 20.6.4 (New Mexicos Water Quality Act)).

o The draft EIS makes repeated, yet unsubstantiated, assertions that the Proposed Action will result in no disproportionately high and adverse human health and environmental effects. Given the geologic unsuitability of the proposed site, and the numerous other technical deficiencies as discussed above however, the draft EIS fails to demonstrate that residents of New Mexico, including vulnerable populations, will be adequately protected from exposure to the radioactive and toxic contaminants that could be released to air and water by the Proposed Action.

o Holtec not included or proposed in Section 4.3.1.3 on Decommission and Reclamation Impacts any surety and warranty proposal to the State of New Mexico to ensure that site reclamations will be funded to the fullest extent. If Holtec should experience financial challenges or unplanned setbacks, this could require New Mexico to fund and direct any remaining decommissioning and reclamation needed to protect its citizens and to restore the environment. 99

4. New Mexico Energy, Minerals and Natural Resources Department Letter to the NRC 100 Rounding out the substantial oppositions from State and local agencies and disregarded viewpoints, the EMNRD recently submitted public comments supporting the No Action Alternative and criticizing the Holtec DEIS and NRC analyses for not complying with NEPA and its multiple failures, including failing to incorporate or even consider impacts to the oil and gas development in the areas and the substantial state revenues (nearly 40% of all New Mexico revenues) generated from oil and gas production taxes. 101 Other failures noted in the EMNRD 99 See, Ex. 4, New Mexico Environment Department Letter to John Tappert, NRC (Sept. 22, 2020) *posted to NRC website on Oct. 5, 2020 (emphasis added).

100 See, Ex. 4, Letter from New Mexico Energy, Minerals and Natural Resources Department (C. Bada) to the U.S.

Nuclear Regulatory Commission (Sept. 22, 2020) *posted to NRC website on Oct. 5, 2020 (ADAMS Accession No. ML20268C296).

101 According to the Permian Basin Petroleum Association, the proposed site would threaten executed contracts with the United States for operators who have invested in leasing the area for mineral exploration and development for oil and gas production 34

recent comments include: failures in adequately describ[ing] the geological site, its failures in conduct[ing] a thorough evaluation because of numerous technical deficiencies and most importantly, in its failures in includ[ing] all applicable state regulatory oversight and environmental impact controls as well as its failure to adequately assess environmental justice concerns and recent increased seismicity concerns in the region.

The NRC neglected its obligation to the public by not including the facts and data it used to determine that the impacts of storage at a government-owned CISF, alternative design and storage technologies, an alternative location, and an alternative facility layout would either not meet the purpose and need of the proposed project or cause greater environmental impact than licensing the Holtec facility.

o States and regional groups have consistently supported moving the fuel only once - from current locations to a national permanent repository. Moving spent nuclear fuel multiple times increases the likelihood of accidents within the State of New Mexico and elsewhere.

o States and regional groups have consistently supported moving the fuel only once - from current locations to a national permanent repository. Moving spent nuclear fuel multiple times increases the likelihood of accidents within the State of New Mexico and elsewhere.

o The NRC completely failed to address known safety issues associated with transportation of spent nuclear fuel . . .[and also] did not consider the technical challenges in transporting spent nuclear fuel in any of the GAO reports, the work the NRC engaged in with states and tribes in the Ad Hoc Working Group, or the work conducted by the Western Interstate Energy Board (WIEB) High Level Radioactive Waste Committee (HLRW).

o The Holtec DEIS also fails to recognize that the acts of terrorism and sabotage do not simply impact the transportation safety of future shipments, but have huge liability impacts to communities, the environment, and soci[o]economic factors that should be included in the analysis. 102

5. New Mexico Governor Michelle Lujan Grisham Letter to the NRC 103 102 See, Ex. 4, Letter from New Mexico Energy, Minerals and Natural Resources Department (C. Bada) to the U.S.

Nuclear Regulatory Commission (Sept. 22, 2020) uploaded to ADAMS on Oct. 5, 2020 (ADAMS Accession No. ML20268C296).

103 See, Ex. 4, New Mexico Governor Michelle Lujan Grisham Letter to U.S. Nuclear Regulatory Commission (John Tappert) (Sept. 22, 2020) (ADAMS Accession No. ML20269A025) (emphasis added).

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Noting the NRCs failure to address significant environmental and economic concerns, likelihood of a permanent de facto facility, and the geological unsuitability of the proposed site given it is underlain by concerns for sinkhole developments and shallow groundwater, a precious resource in [the] state, make the proposed Holtec project untenable. The governor further notes that, contrary to the fundamentals of consent-based siting, New Mexicans, tribes and local governments overwhelmingly oppose Holtecs. . .proposal and the issuance of an NRC license given the unfunded mandates on local communities.

6. New Mexico State Land Office Letter to the NRC 104 Like the many other State and local agencies that the NRC failed to collaborate and consult with and the major viewpoints left by the wayside in the NRCs review of Holtecs license and its conclusions in the Holtec DEIS noted above, the State Land Office was not properly consulted. As pointed out in recent comments, had the NRC conducted its own investigation, the State Land Office could have easily corrected and clarified the record. But neither the NRC nor Holtec attempted to meaningfully engage with the State Land Office. Quite to the contrary, they have repeatedly and consistently ducked their heads in the sand and ignored the State Land Office and its opposition to the proposed CISF project, urging the NRC to adopt the No-Action Alternative and to not issue the proposed license to Holtec. 105

• Had the State Land Office been properly consulted as part of this process, it would have provided NRC staff with accurate information relating to the project site and existing and potential mineral estate activities.

• Holtec claims that it is in discussions with the New Mexico State Land Office regarding an agreement to retire potash leasing and mining within the proposed project area, DEIS at 4-4, 5-

24. This statement is false.

• Holtec has not been forthcoming about the possible conflict between nuclear waste storage and current or future oil and gas development at the Site. The International Atomic Energy Agency 104 See, Ex. 4, New Mexico State Land Office Letter (A. Biernoff) to U.S. Nuclear Regulatory Commission (Sept. 22, 2020) (ADAMS Accession No. ML20269A003).

105 Id.

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appears top share my and State Land Office lessees concerns about the interaction between nuclear waste storage and preexisting oil and gas development on the very same tract of land. In a 2007 publication, that agency explained that [a]ny potential site will require an adequately controlled single-use land area to accommodate storage facilities, and that potential waste disposal sites should avoid land with exploitable mineral and energy resources. International Atomic Energy Agency, Selection of Away-From-Reactor Facilities for Spent Fuel Storage: A Guidebook, IAEA-TECDOC-1558 (Sept. 2007) at 3.2.2 (pp. 23-24) (emphases added). Despite Holtecs assurances, it does not appear that the company - or the NRC, through the DEIS - has undertaken a thorough and critical analysis of the potential conflicts between nuclear waste storage and the vital economic activities that are already taking place on the Site.

• In addition to exercising control over mineral resources at the Site, the State Land Office is entitled to access and utilize surface lands to facilitate mineral development; [a]s holder of the dominant estate, a mineral owner has the right to use the land, both surface and subsurface, absent an express limitation, as is reasonably necessary to enjoy its property rights. XTO Energy, Inc. v.

Armenta, 2008-NMCA-078, ¶ 10, 144 N.M. 212. The DEIS does not take any of these considerations into account, particularly the State Land Offices (and its lessees) right to access and utilize the Sites surface for mineral development purposes.

• In addition, the proposed location, in one of the worlds top producing oil and gas regions, could have an adverse impact on one of New Mexicos key economic engines.

• The DEIS does not capture the full potential costs of the proposed project. It fails to consider the economic cost to the state and region if there were an accident that impacts the ability of companies to work in one of the most productive oil producing regions in the world. Any production decline related to a work stoppage could be hugely detrimental to the states finances, which is heavily dependent on oil and gas taxes and revenues, as well as local economies. It also fails to recognize the potential negative revenue impact to the states public schools if restrictions were put in place limiting mineral extraction at the Site.

• Holtec has falsely claimed to have secured agreements from oil and gas operators at or around the site to restrict these activities, specifically assuring the NRC that oil and gas drilling will only occur at depths greater than 5,000 feet. However, there are no such agreements containing these restrictions in place with oil and gas lessees at the project site or the State Land Office. One agreement has been made with Intrepid Mining LLC, a potash mining company, but that agreement has not been approved, as required by that companys lease terms, by the New Mexico State Land Office (State Land Office).

• Additionally, the DEIS does not consider the potential serious legacy costs of an accident. If the mineral estate were to become contaminated, the ability of the State Land Office to generate revenue from the Site and nearby areas could be severely limited or rendered impossible. A radioactive mineral estate could also result in vast remediation costs, which could fall on taxpayers and trust land beneficiaries.

• NRC should be aware that Holtec consistently has misrepresented its prospective ownership and control of the Site. The DEIS incorrectly states that the proposed project area is privately owned by the Eddy-Lea Energy Alliance LLC. DEIS at 2-2. While the surface estate is privately owned, the mineral estate remains the property of the State of New Mexico, held in trust and managed by the State Land Office. 1061 This is not a technicality; there are real consequences that follow from 106 The DEIS elsewhere acknowledges that [l]and surrounding the proposed project area is either privately-owned or owned by the BLM or the State of New Mexico . The State of New Mexico owns the subsurface property rights within the proposed project area. DEIS at 3-2. The DEIS conclusions, however, are based on the incorrect 37

Holtecs misrepresentations; despite the fact that the Site mineral estate is owned and held in trust by the State Land Office, the agency was not consulted by the NRC. See DEIS at iii, 2-29. Instead, the DEIS relies on incorrect and misleading statements made by Holtec that the State Land Office previously noted in its June 19, 2019 letter to the company and NRC (attached as Exhibit B).

o Holtec claims that its nuclear waste facility will have no impact on oil and gas exploration and development in the proposed project area because extraction will occur at depths greater than 930 m [3,050 ft]. DEIS at 4-6. While oil and gas production frequently takes place in deeper formations, the DEIS simply assumes without discussion that no shallower development can occur now or in the future. State Land Office oil and gas leases, whose terms are prescribed by the New Mexico Legislature, do not impose any depth restrictions on oil and gas development.

o NRCs actions to approve Holtecs nuclear waste facility, as contemplated by the DEIS, thus could directly impair both the State Land Offices enjoyment of the full benefit of its mineral rights as well as contractual rights afforded to its oil and gas lessees.

o Holtec does not own, lease, or have any control whatsoever over the development of the mineral estate. The State Land Office has active oil and gas leases in the project area, which contain provisions that are intended to facilitate the extraction of oil and gas resources and generate royalties for the public schools.

o Oil and gas operations are conducted as deemed appropriate by the lessees, as long as the activities are in accordance with the lease terms, State Land Office rules and Oil Conservation Division regulations. These leases are held by production and may remain active for decades to come.

o The State Land Offices oil and gas lease terms are set by statute and do not contain any depth limitations. By law and contract, oil and gas lessees are able to explore and develop resources at any depth. Even assuming the State Land Office desired to restrict mineral development to certain depths, it would be subject to potential lawsuits for conflict with the statutory lease. (See Exhibit A). Additionally, the DEIS does not consider what environmental and safety impacts might reasonably manifest if oil and gas operations did occur at shallower depths.

o Relying on statements made by Holtec, the DEIS finds that construction of the proposed CISF would not have an effect on oil and gas operations within the proposed project area and that the company has no plans to use any of the plugged and abandoned wells. DEIS at 4-4. This determination is based on incorrect information and unfounded assumptions.

o As the DEIS notes, potash mining is a major part of the Eddy and Lea County economies. DEIS at 5-24. Potash deposits in the immediate vicinity of the Site are considerable. Potash extraction takes place at depths shallower than 3,000 feet, DEIS at 3-9, so the DEIS conclusion that mineral development at the Site will not be impaired by the nuclear waste facility because such development will occur deeper than 3,000 feet, DEIS at 4-6, does not logically follow.

o The DEIS recognizes that the project proposal may interfere with potash mineral extraction activities at the Site but views the impact as minor considering that there are other available resources in the region. This conclusion fails to consider that the State Land Office, as the trustee of the mineral estate, is obligated to get revenue from the mineral estate that it owns for the trust beneficiary assigned to that specific tract of land, in this case the states public schools. It does not matter that resources exist elsewhere, because the State Land Offices federal and state mandate is to generate money from all the lands it manages. The DEIS notes that potash demand is likely to increase over time with increased mining over the next 20-30 years, DEIS at 5-2, and with the potential potash resources at the site worth millions of dollars, abandoning the opportunity to develop these resources would result in a significant loss of revenue for public schools.

assumption that Holtec (through Eddy-Lea Energy Alliance LLC, with whom it may have an agreement not disclosed in the record) controls the Site.

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o Additionally, the EIS found that Holtec has entered into an agreement with Intrepid to relinquish certain potash mineral rights to the State of New Mexico. DEIS at 4-4. This statement is misleading in several respects. First, any agreement to relinquish a State Land Office lease for the benefit of a third party would require the approval of the Commissioner. NMAC 19.2.3.18. This has not occurred. Second, if the lease were simply relinquished by Intrepid back to the State Land Office, the potash resource would again be subject to leasing by another company. Regardless, the approval of the Commissioner is legally required. As such, the safety and environmental assessments that have been conducted so far rely on the mistaken assumption that future potash leasing will not occur in the project area. 107 NRCs conclusion that Holtecs proposal will have no meaningful impacts on potash development at the Site thus is premised on incorrect or incomplete assumptions.

o State Land Office control of the Sites mineral estate is not limited to oil, gas, and potash, but encompasses all mineral resources, including caliche, sand, gravel, and other substances. See DEIS at 3-6 (Mineral extraction in the area of the proposed project area consists of underground potash mining and oil and gas extraction, and noting active State Land Office mineral leases). As the DEIS notes, the Site is located in an area of dense caliche deposits, DEIS at 3-4, 3-18, and nearby there is active sand, gravel, and quarry stone mining for various purposes, including roads and other infrastructure to support renewable energy projects in the area. DEIS at 5-24, 5-25. 108

7. Texas Governor Greg Abbott Letter to the NRC 109 In a recent November 3, 2020 letter, the Texas Governor shared similar sentiments opposing the placement of another proposed CISF project in Andrews County, Texas in the middle of the Permian Basin. After consulting with numerous state agencies, Governor Abbott noted the significance of the economic and natural resources in the region, expressing concerns that the proposed facility would be a prime target for attacks by terrorists, sabetours, and other enemies and concluded [t]his location could not be worse for storing ultra-hazardous radioactive waste. 110 V. CONCLUSION 107 See, e.g., DEIS, Section 5.4, Geology and Soils, noting that because Holtec has entered into an agreement with Intrepid and previously discussed a leasing restriction with a prior Commissioner of Public Lands, the risk of soil subsidence from potash mining was low.

108 Id. (emphasis added).

109 See, Ex. 4, Texas Governor Greg Abbott Letter to the U.S. Nuclear Regulatory Commission (Nov. 3, 2020).

110 Id.

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Holtec has presented the NRC with myriad of misrepresentations, which the NRC failed to substantiate/ investigate, leading to faulty underlying assumptions and flawed conclusions, and failed to collaborate with State and local agencies, as such, the proposed project faces substantial political opposition in the region, which directly contradicts consent based siting, and which further violates NRC siting evaluation factors and preclude a proper EIS under NEPA. Also, the NRC Staff is trying to duck their heads in the sand over these material and genuine disputes of legal and factual issues The new and materially different information forming the basis for Contention No. 3 presents genuine disputes about material legal and factual issues within the scope of the Holtec license proceeding that directly contradict previous information and assertions by Holtec and the NRC. This information could not have been known prior to the publication of XTO comments and others comments in opposition to the Holtec DEIS. Petitioners have good and cause and have timely filed Contention No. 3 based on the availability of this information. As such, Faskens Motion for Leave should be granted.

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 40

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 for Leave to File New Contention No. 3 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