ML21181A062

6-25-21 Petition for Review (DC Cir.)(Case No. 21-1147)

ML21181A062
Person / Time
Site:	HI-STORE
Issue date:	06/25/2021
From:	Kanner A, Perales M, Tennis A Fasken Land & Minerals, Ltd, Kanner & Whiteley, Permian Basin Land and Royalty Owners
To:	NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit
References
1904236, 21-1147
Download: ML21181A062 (109)

Text

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 1 of 109 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT FASKEN LAND AND MINERALS, LTD. and PERMIAN BASIN LAND AND ROYALTY OWNERS, Petitioners, Case No. 21-1147 v.

UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

PETITION FOR REVIEW Pursuant to 42 U.S.C. § 2239, 28 U.S.C. § 2344, 5 U.S.C. § 702, 42 U.S.C. § 10139, Fed. R. App. P. 15(a), and D.C. Cir. Rule 15(a), Petitioners Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners (Fasken or Petitioners), through undersigned counsel, hereby petitions for review of the following orders by the United States Nuclear Regulatory Commission (the NRC):

• Order of NRC Secretary (unpublished) issued on October 29, 2018 (Secretarys Order) (attached hereto as Exhibit A);

• NRC Memorandum and Order CLI-20-04 issued on April 23, 2020 (CLI 04) (attached hereto as Exhibit B); and

• NRC Memorandum and Order CLI-21-07 issued on April 28, 2021 (CLI 07) (attached hereto as Exhibit C).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 2 of 109 Petitioners seek review of the foregoing agency actions on the grounds that the NRC abused its discretion, acted arbitrarily and capriciously, in excess of statutory jurisdiction, and in violation of the Nuclear Waste Policy Act (NWPA),

U.S.C. §§ 10222(a)(5)(A) and 10143, the Atomic Energy Act (AEA), 42 U.S.C.

§§ 2011 et seq., the Administrative Procedure Act (APA), 5 U.S.C. §§ 706, the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and/or NRCs own regulations and policies when it denied Petitioners a meaningful opportunity to participate in the process.

Specifically, Petitioners contend that the Secretarys Order violated the NWPA and the APA by refusing to dismiss an administrative proceeding that contemplated issuance of a license permitting federal ownership of used reactor fuel at a commercial fuel storage facility and disregarding the unambiguous provisions of the NWPA. Petitioners also contend that the NRC violated the NWPA and the APA in CLI-20-04 by ruling that the application under review in the proceeding was lawful and by refusing to grant Petitioners a hearing on the question of whether the NRC is prohibited by the APA from issuing a license that contains provisions that would violate the NWPA if implemented.

Finally, Petitioners seek review of CLI-21-07 on the grounds that the NRC wrongfully applied the NWPA, AEA, APA, NEPA and/or its own regulations when it ruled that Petitioners site-specific contentions relating to inaccurate, insufficient 2

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 3 of 109 and inconsistent characterizations of property rights, land-use and subsurface mineral rights in the vicinity of the proposed location for the commercial fuel storage facility were inadmissible.

Petitioners respectfully request that this Court review, reverse and vacate CLI-20-04 and CLI-21-07; alternatively, and/or cumulatively, order the dismissal of the license application under review; and grant any other additional remedies that may be warranted by law and equity.

Venue is proper in this Court pursuant to 28 U.S.C. § 2343.

Dated: June 25, 2021. Respectfully submitted, KANNER & WHITELEY, LLC

/s/ Allan Kanner Allan Kanner, Esq.

Annemieke M. Tennis, Esq.

701 Camp Street New Orleans, Louisiana 70130 (504) 524 - 5777 a.kanner@kanner-law.com a.tennis@kanner-law.com Monica Renee Perales, Esq.

6101 Holiday Hill Road Midland, TX 79707 Phone (432)687-1777 monicap@forl.com Counsel for Petitioners 3

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 4 of 109 Exhibit A

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 5 of 109 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

)

In the Matters of )

)

)

HOLTEC INTERNATIONAL ) Docket No. 72-1051

)

(HI-STORE Consolidated Interim Storage )

Facility) )

)

)

INTERIM STORAGE PARTNERS LLC ) Docket No. 72-1050

)

(WCS Consolidated Interim Storage Facility) )

)

_________________________________________ )

ORDER On July 16, 2018, the NRC provided notice in the Federal Register of Holtec Internationals application to construct and operate a consolidated interim storage facility for spent nuclear fuel.1 Separately, on August 29, 2018, the NRC provided notice in the Federal Register of Interim Storage Partners application to construct and operate a consolidated interim storage facility for spent nuclear fuel.2 On September 14, 2018, Beyond Nuclear, Fasken Land and Minerals, and Permian Basin Land and Royalty Owners filed motions to dismiss both the Holtec and Interim Storage Partners applications.3 These groups argue that the NRC cannot, as a threshold matter, issue 1 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018).

2 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018), corrected, 83 Fed. Reg. 44,608 (Aug. 31, 2018) (noting that the correct deadline to file intervention petitions is October 29, 2018). Interim Storage Partners is a joint venture of Orano USA and Waste Control Specialists.

3 Beyond Nuclear filed its own motion to dismiss. Beyond Nuclear, Inc.s Motion to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility for Violation of the Nuclear Waste Policy Act (Sept. 14,

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 6 of 109 licenses to Holtec or Interim Storage Partners because both applications are contrary to the Nuclear Waste Policy Act (NWPA). Specifically, the groups argue that both applications contemplate the storage of Department of Energy-titled spent fuel in violation of various NWPA provisions.

The NRCs regulations allow interested persons to file petitions to intervene and requests for hearing in which they can raise concerns regarding a particular license application.

These regulations do not, however, provide for the filing of threshold motions to dismiss a license application; instead, interested persons must file petitions to intervene and be granted a hearing. I therefore deny both motions to dismiss on procedural grounds, without prejudice to the underlying merits of the legal arguments embedded within the motions.

Beyond Nuclear also filed hearing petitions in the Holtec and Interim Storage Partners proceedings that incorporated by reference the NWPA arguments that it raised in its motion to dismiss and identified those arguments as proposed contentions.4 I am separately referring these hearing requestsas well as other hearing requests challenging the applicationsto the Atomic Safety and Licensing Board Panel (ASLBP) for the establishment of a Board to consider all hearing requests in accordance with the hearing procedures set forth in 10 C.F.R. §2.309.

And, in accordance with 10 C.F.R. § 2.346(i), I am referring the motion from Fasken Land and 2018) (ADAMS Accession No. ML18257A318). Fasken Land and Minerals joined with Permian Basin Land and Royalty Owners to file a motion to dismiss that is substantially similar to Beyond Nuclears motion. Motion of Fasken Land and Minerals and Permian Basin Land and Royalty Owners to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility (Sept. 14, 2018) (ML18257A330). Both the NRC Staff and respective applicants filed oppositions to the motions, and Beyond Nuclear, Fasken Land and Minerals, and Permian Basin Land and Royalty Owners then filed replies.

4 Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Sept. 14, 2018)

(ML18257A324) (Holtec docket); Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Oct. 3, 2018) (ML18276A242) (Interim Storage Partners docket). Fasken Land and Minerals and Permian Basin Land and Royalty Owners have not filed related hearing petitions in either docket.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 7 of 109 Minerals and Permian Basin Land and Royalty Owners to the ASLBP for consideration under

§ 2.309.

This Order is issued under my authority in 10 C.F.R. § 2.346(c), (g), (i), and (j).

IT IS SO ORDERED.

For the Commission NRC SEAL /RA/

Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 29th day of October 2018

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 8 of 109 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

) Docket No. 72-1051

)

HOLTEC INTERNATIONAL )

)

)

(HI-STORE Consolidated Interim Storage )

Facility) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER OF THE SECRETARY have been served upon the following persons by Electronic Information Exchange (EIE).

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop - O-15 D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Sarah Ladin, Law Clerk Patrick Moulding, Esq.

E-mail: sarah.ladin@nrc.gov E-mail: patrick.moulding@nrc.gov Joseph McManus, Law Clerk Sara B. Kirkwood, Esq.

E-mail: joseph.mcmanus@nrc.gov E-mail: sara.kirkwood@nrc.gov Taylor A. Mayhall Mauri Lemoncelli, Esq.

E-mail: taylor.mayhall@nrc.gov E-mail: mauri.lemoncelli@nrc.gov Office of Commission Appellate Christopher Hair, Esq.

Adjudication E-mail: christopher.hair@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Joseph I. Gillespie, Esq.

E-mail: ocaamail@nrc.gov E-mail: joe.gillespie@nrc.gov Krupskaya T. Castellon, Paralegal E-mail: krupskaya.castellon@nrc.gov Holtec Counsel Pillsbury Winthrop Shaw Pittman LLP OGC Mail Center: Members of this office have 1200 Seventeenth Street, NW received a copy of this filing by EIE service.

Washington, DC 20036 Jay Silberg, Esq. Dont Waste Michigan E-mail: jay.silberg@pillsburylaw.com 316 N. Michigan Street, Suite 520 Toledo, OH 43604-5627 Timothy J. Walsh, Esq. Terry J. Lodge, Esq.

E-mail: timothy.walsh@pillsburylaw.com E-mail: tjlodge50@yahoo.com Anne Leidich, Esq. Sierra Club E-mail: anne.leidich@pillsburylaw.com 4403 1st Avenue SE, Suite 402 Cedar Rapids, IA 52402 Michael Lepre, Esq. Wallace L. Taylor, Esq.

E-mail: michael.lepre@pillsburylaw.com E-mail: wtaylor784@aol.com

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 9 of 109 Docket No. 72-1051 ORDER OF THE SECRETARY Harmon, Curran, Spielberg & Eisenberg LLP Hogan Lovells LLP 1725 DeSales Street NW 555 13th Street NW Suite 500 Washington, DC 20004 Washington, DC 20036 Sachin S. Desai, Esq.

Diane Curran, Esq. E-mail: sachin.desai@hoganlovells.com E-mail: dcurran@harmoncurran.com Allison E. Hellreich, Esq.

E-mail: allison.hellreich@hoganlovells.com Robert V. Eye Law Office, LLC Law Office of Nancy L. Simmons 4840 Bob Billings Parkway 120 Girard Boulevard SE Lawrence, KS 66049 Albuquerque, NM 87106 Robert V. Eye, Esq. Nancy L. Simmons, Esq.

E-mail: bob@kauffmaneye.com E-mail: nlsstaff@swcp.com Timothy J. Laughlin, Esq.

E-mail: tijay1300@gmail.com Turner Environmental Law Clinic Eddy-Lea Energy Alliance 1301 Clifton Road 102 S. Canyon Atlanta, GA 30322 Carlsbad, NM 88220 Mindy Goldstein, Esq. John A. Heaton E-mail: magolds@emory.edu E-mail: jaheaton1@gmail.com City of Carlsbad, NM City of Hobbs, NM 1024 N. Edward 2605 Lovington Highway Carlsbad, NM 88220 Hobbs, NM 88242 Jason G. Shirley Garry A. Buie E-mail: jgshirley@cityofcarlsbadnm.com E-mail: gabuie52@hotmail.com Eddy County, NM Lea County, NM 101 W. Greene Street 100 N. Main Carlsbad, NM Lovington, NM 88260 Rick Rudometkin Jonathan B. Sena E-mail: rrudometkin@co.eddy.nm.us E-mail: jsena@leacounty.net

[Original signed by Brian Newell]

Office of the Secretary of the Commission Dated at Rockville, Maryland, this 29th day of October, 2018 2

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 10 of 109 Exhibit B

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 11 of 109 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Kristine L. Svinicki, Chairman Jeff Baran Annie Caputo David A. Wright In the Matter of HOLTEC INTERNATIONAL Docket No. 72-1051-ISFSI (HI-STORE Consolidated Interim Storage Facility)

CLI-20-04 MEMORANDUM AND ORDER Today we address five separate appeals of the Atomic Safety and Licensing Boards denial of requests to intervene in the proceeding regarding Holtec Internationals application to construct and operate a consolidated interim storage facility (CISF) in Lea County, New Mexico.1 For the reasons described below, we affirm the Board in part and reverse and remand in part. We also remand to the Board two contentions filed after the deadline.

I. BACKGROUND Holtec submitted its license application in March 2017.2 The proposed license would allow Holtec to store up to 8680 metric tons of uranium (MTUs) (500 loaded canisters) in the 1 See LBP-19-4, 89 NRC 353 (2019).

2 See Letter from Kimberly Manzione, Holtec International, to Michael Layton, NRC (Mar. 30, 2017) (enclosing application documents including safety analysis report and environmental report) (ADAMS accession no. ML17115A431 (package)). By the time the Board ruled, Holtec had updated its application documents. The application revisions referenced in the Boards

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 12 of 109 Holtec HI-STORE CISF for a period of forty years.3 Holtecs safety analysis currently encompasses only the canisters and contents approved under the generic docket 72-1040 for the HI-STORM UMAX canister storage system.4 According to its application, Holtec plans up to nineteen subsequent expansion phases over the course of twenty years, with each expansion requiring a license amendment.5 Holtecs environmental report (ER) anticipates operation of its proposed facility for up to 120 years (a forty-year initial licensing period plus eighty years of potential renewal periods) with up to 100,000 MTUs stored after all expansions.6 The Staff published a notice of opportunity to request a hearing on Holtecs application in July 2018.7 Petitions to intervene were filed by Sierra Club; Beyond Nuclear, Inc. (Beyond Nuclear); Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners (together, Fasken); Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, and Nuclear Issues Studies Group (together, Joint Petitioners); Alliance for Environmental Strategies (AFES); and NAC International Inc. (NAC).

The Board heard oral argument on January 23 and 24, 2019.

decision are: Environmental Report on the Holtec International HI-STORE CIS Facility, rev. 5 (Mar. 2019) (ML19095B800) (ER); and Holtec, Licensing Report on the HI-STORE CIS Facility, rev. 0F (Jan. 31, 2019) (ML19052A379) (SAR). References in this decision refer to the same revisions unless otherwise noted.

3 See Proposed License for Independent Storage of Spent Nuclear Fuel and High-Level Radioactive Waste SNM-1051, at 1 (ML17310A223) (Proposed License).

4 SAR § 1.0 at 1-2; see 10 C.F.R. § 72.214 (list of approved spent fuel storage casks).

5 See ER § 1.0.

6 Id.

7 See Holtec Internationals HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 13 of 109 The Board rejected all the hearing requests for either lack of standing, failure to offer an admissible contention, or both. The Board found that three petitionersBeyond Nuclear, Sierra Club, and Faskenhad demonstrated standing but had not offered an admissible contention.8 The Board concluded that Joint Petitioners and NAC had neither demonstrated standing nor offered an admissible contention.9 The Board did not rule on AFESs standingwhich it found to be a close callbut rejected AFESs petition because the organization had not proposed an admissible contention.10 All petitioners except for NAC have appealed. The Staff and Holtec oppose the appeals, as described below.

II. DISCUSSION A. Standard of Review Our regulations allow a petitioner whose hearing request has been wholly denied to appeal as of right.11 We generally defer to the Board on matters of contention admissibility and standing unless an appeal demonstrates an error of law or abuse of discretion.12 Similarly, we generally defer to the Board on questions pertaining to the sufficiency of factual support for the admission of a contention.13 8 See LBP-19-4, 89 NRC at 358.

9 Id.

10 Id. at 358, 370-71.

11 10 C.F.R. § 2.311(c).

12 See, e.g., Crow Butte Resources, Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 13-14 (2014); Strata Energy, Inc. (Ross In Situ Uranium Recovery Project), CLI-12-12, 75 NRC 603, 608-13 (2012).

13 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-16-9, 83 NRC 472, 482, Crow Butte, CLI-14-2, 79 NRC at 13-14.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 14 of 109 B. Beyond Nuclear/Sierra Club Contention 1/Fasken Beyond Nuclear and Fasken each proposed a single contention, and Sierra Club proposed its Contention 1, all questioning whether it is lawful to issue the proposed license at all.14 These petitioners contend that the application must be rejected outright because it contemplates storage contracts with the U.S. Department of Energy (DOE) and such contracts would be illegal under the Nuclear Waste Policy Act (NWPA).15 Holtec envisions that its customers will either be nuclear plant operators or DOE, depending on which entity holds title to the spent nuclear fuel.16 Beyond Nuclear, Fasken and Sierra Club all argued that it would violate the NWPA for DOE to take title to spent nuclear fuel before it builds a permanent geological repository.

Section 123 of the NWPA provides that DOE will take title to the spent fuel when the Secretary 14 See Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Sept. 14, 2018), at 10-17 (Sierra Club Petition). Fasken entered this proceeding through a motion to dismiss the licensing proceeding filed directly before us relating to this facility and another CISF proposed in Texas. See Motion of Fasken Land and Minerals and Permian Basin Land and Royalty Owners to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility (Sept. 14, 2018). Beyond Nuclear filed a similar motion, which it attached as an exhibit to its hearing request and petition to intervene.

See Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Sept. 14, 2018) (Beyond Nuclear Petition); Beyond Nuclear, Inc.s Motion to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility for Violation of the Nuclear Waste Policy Act (Sept. 14, 2018). Beyond Nuclear also submitted a letter after filing its appeal. See Letter from Mindy Goldstein and Dianne Curran, Counsel for Beyond Nuclear, to the Commissioners (Apr. 7, 2020). The letter does not affect our analysis below.

15 See Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C §§ 10101-10270 (2012).

Because our regulations do not provide for a motion to dismiss an application, the Secretary of the Commission referred Beyond Nuclears and Faskens motions to be considered as hearing requests and as proposed contentions in each licensing proceeding. See Order of the Secretary (Oct. 29, 2018) (unpublished) (issued in this proceeding and in Interim Storage Partners, LLC (WCS Consolidated Interim Storage Facility)).

16 See, e.g., Proposed License at 2, ¶ 17 ([T]he construction program will be undertaken only after a definitive agreement with the prospective user/payer for storing the used fuel ([DOE]

and/or a nuclear plant owner).).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 15 of 109 of Energy accepts delivery of it.17 Section 302 of the NWPA provides that the Secretary of Energy will enter contracts with the spent fuel generators (nuclear power plant owners) that shall provide that the Secretary will take title to the spent fuel following commencement of operation of a repository.18 And a repository is defined in the NWPA as a system intended for permanent deep geological disposal of high-level radioactive waste and spent nuclear fuel.19 During oral argument on the petitions, Holtecs counsel acknowledged that the NWPA would prevent DOE from taking title to spent nuclear fuel and therefore (except for a relatively small quantity of waste it already owns) DOE could not be a CISF customer.20 Holtec also acknowledged that it hopes Congress will change the law to allow DOE to enter into temporary storage contracts with Holtec.21 But Holtec argued that because the application also contemplates that nuclear plant owners might be potential customers, the petitioners have not raised a litigable contention.

The Board rejected the argument that the mere mention of DOE renders Holtecs license application unlawful.22 The Board observed that Holtec is committed to going forward with the project by contracting directly with the plant owners.23 The Board held that whether that option is commercially viable was not an issue before the Board.24 And it noted that 17 42 U.S.C. § 10143.

18 Id. § 10222(a)(5)(A).

19 Id. § 10101(18).

20 Tr. at 249-50.

21 Tr. at 248, 250.

22 LBP-19-4, 89 NRC at 381.

23 Id.

24 Id. (citing Louisiana Energy Services, LP. (National Enrichment Facility), CLI-05-28, 62 NRC 721, 726 (2005); Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, N.M. 87174) CLI-01-4, 53 NRC 31, 48-49 (2001)). In Hydro, we observed that the NRC is not in the business of regulating the market strategies of licensees. Hydro, CLI-01-4, 53 NRC at 48-49. In Louisiana

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 16 of 109 Holtec had committed not to contract unlawfully with DOE.25 The Board further pointed to DOEs publicly taken position that it cannot lawfully provide interim storage before a repository is operational.26 The Board found that the NRC can safely assume that DOE would not enter unlawful contracts because federal agencies enjoy a presumption of regularity that they will act properly in the absence of evidence to the contrary.27 The Board concluded that Holtec seeks a license that would allow it to enter into lawful customer contracts today, but also permit it to enter into additional customer contracts if and when they become lawful in the future.28 Beyond Nuclear argues that the NRC cannot issue the proposed license because the Administrative Procedure Act prohibits agency action that is not in accordance with the law or in excess of statutory jurisdiction, authority, or limitation.29 Beyond Nuclear frames the question as whether the NRC may approve a license application containing provisions that would violate NWPA if implemented.30 Similarly, Sierra Club argues that the Holtec project cannot be licensed if there is a possibility that the financial arrangements would be illegal.31 Fasken argues that Holtecs license application is outside of the ASLBs and the NRCs Energy Services, we denied review of the Boards decision to reject a portion of a contention that questioned the commercial viability of the proposed project, and we held that the license applicant did not have to demonstrate the potential profitability of the proposed facility.

Louisiana Energy Services, CLI-05-28, 62 NRC at 725.

25 See LBP-19-4, 89 NRC at 381.

26 Id. at 382.

27 Id. (citing United States v. Armstrong, 517 U.S. 456, 464 (1996); United States v. Chem.

Found. Inc., 272 U.S. 1, 14-15 (1926)); see also FCC v. Schrieber, 381 U.S. 279, 296 (1965).

28 LBP-19-4, 89 NRC at 382.

29 Beyond Nuclears Brief on Appeal of LBP-19-04 (June 3, 2019), at 7 (Beyond Nuclear Appeal)

(quoting Administrative Procedure Act, 5 U.S.C § 706(2)(A), (C)).

30 Id.

31 Sierra Clubs Petition for Review of Atomic Safety and Licensing Board Decision Denying Admissibility of Contentions in Licensing Proceeding (June 3, 2019), at 5 (Sierra Club Appeal).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 17 of 109 subject-matter jurisdiction because approval would authorize a facility that violates the NWPA.32 The Staff and Holtec oppose the appeals.33 The three appellants characterization largely restates arguments already advanced to the Board.34 As the Board observed, Holtec seeks a license that would allow it to enter into lawful customer contracts today, but also permit it to enter into additional customer contracts if and when they become lawful in the future.35 The proposed license would authorize Holtec to take possession of the spent nuclear fuel in its CISF; the license itself would not violate the NWPA by transferring the title to the fuel, nor would it authorize Holtec or DOE to enter into storage contracts.36 Holtec and DOE acknowledge that it would be illegal under NWPA for DOE to take title to the spent nuclear fuel at this time, although Holtec states that it hopes that Congress will amend the NWPA in the future.37 We disagree with the assertions that the license 32 Fasken and PBLRO Notice of Appeal and Petition for Review (June 3, 2019), at 3-4 (Fasken Appeal).

33 See NRC Staff Answer in Opposition to Beyond Nuclears Appeal of LBP-19-4 (June 28, 2019); Holtec Internationals Brief in Opposition to Beyond Nuclears Appeal of LBP-19-4 (June 28, 2019); NRC Staff Answer in Opposition to Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners Appeal of LBP-19-4 (June 28, 2019); Holtec Internationals Brief in Opposition to Fasken and Permian Basin Land and Royalty Owners Appeal of LBP 4 (June 28, 2019) (Holtec Opposition to Fasken Appeal); NRC Staffs Answer in Opposition to the Sierra Clubs Appeal of LBP-19-4 (June 28, 2019), at 5-7 (Staff Opposition to Sierra Club Appeal); Holtec Internationals Brief in Opposition to Sierra Clubs Appeal of LBP-19-4 (June 28, 2019), at 6-9 (Holtec Opposition to Sierra Club Appeal). Holtec challenges the Boards ruling on Faskens standing as well, which we discuss in section II.F.1 below. See Holtec Opposition to Fasken Appeal at 14-19.

34 Florida Power & Light Company (Turkey Point Nuclear Generating Units 6 and 7), CLI-17-12, 86 NRC 215, 219 (2017) (rejecting an appeal that only restated arguments previously raised before the board).

35 LBP-19-4, 89 NRC at 382.

36 See Proposed License at 2, ¶ 17.

37 See LBP-19-4, 89 NRC at 381-82.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 18 of 109 would violate the NWPA.38 The NWPA does not prohibit a nuclear power plant licensee from transferring spent nuclear fuel to another private entity. We therefore affirm the Boards decision to reject this contention.

C. Sierra Club Appeal The Board found that Sierra Club had shown standing but that none of its twenty-nine proposed contentions were admissible. Sierra Club has now appealed with respect to ten of those contentions in addition to its Contention 1 discussed above.39 On October 23, 2019, Sierra Club also moved to admit a new contention concerning transportation risks.40

1. Sierra Club Standing As an initial matter, Holtec challenges the Boards finding that Sierra Club has standing in this proceeding.41 Although in matters involving construction or operation of a nuclear power reactor we allow a proximity presumption of standing to persons living within fifty miles of the proposed site, in non-power reactor cases, standing is examined on a case-by-case basis considering the petitioners proximity to the site in addition to other factors.42 This 38 To the extent Sierra Club argues that we should grant its appeal on Contention 1 because Holtec will use the license as leverage to encourage Congress to change the law, we also reject that line of argument for the reasons discussed below in response to Sierra Clubs appeal of Contention 26 and the Joint Petitioners appeal of their Contention 14. Sierra Club Appeal at

9. Fasken suggests that the Secretary of the Commission improvidently referred its motion to dismiss to the Board for consideration as a legal contention. Fasken Appeal at 1-4. But our regulations do not provide for a motion to dismiss, and Fasken has not demonstrated how consideration of its arguments under our contention admissibility standards negatively impacted its position. In any event, the Boards finding that Holtecs application does not violate the NWPA addressed the gravamen of Faskens motion to dismiss.

39 Sierra Club Appeal at 5-7.

40 Sierra Clubs Motion to File a New Late-Filed Contention (Oct. 23, 2019), (Sierra Club Motion for New Contention 30); Attach., Contention 30 (Sierra Club Contention 30).

41 Holtec Opposition to Sierra Club Appeal at 27-30.

42 Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia),

CLI-95-12, 71 NRC 111, 116-17 (1995).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 19 of 109 proximity-plus standard takes into account both the nature of the proposed activity and significance of the radioactive source.43 Sierra Club based its standing on declarations of its members who live and work near the proposed site.44 The Board observed that one of Sierra Clubs declarants, Daniel Berry, lives less than ten miles from the site and owns and operates a ranch just three miles away from the site.45 Mr. Berry stated that he, his wife, and his ranch hands spend time every day traversing the ranch on foot, horseback, and ATV, while managing their cattle.46 The Board found that Sierra Club had established standing based on the proximity of its member Mr. Berry. It observed that the distances of his home and activities are well within the limits that have been found to confer standing to challenge much smaller storage facilities.47 It rejected Holtecs argument that an individual who lives sufficiently close to a potentially massive facility for storing much of the nations spent nuclear fuel must first demonstrate with specificity how radiation might reach them.48 On appeal, Holtec claims that the Board erred by granting Sierra Club standing even though its pleadings lacked meaningful explanation as to how the activities at the CISF might lead to a 43 Id.

44 Sierra Club Petition at 6.

45 LBP-19-4, 89 NRC at 12-13. Mr. Berry submitted two declarations in this proceeding, one authorizing Sierra Club and the other authorizing Beyond Nuclear to represent his interest in this proceeding. Although the declaration submitted with the Sierra Club Petition stated that his home and ranch lie less than 10 miles from the site, the declaration submitted with Beyond Nuclears Petition was more detailed. In that declaration, Mr. Berry explained that his ranch, the T Over V ranch, consists of privately owned land and leased land, and he provided a map showing that a portion of the ranch lies about 3.2 miles away from the proposed CISF site. See Beyond Nuclear Petition, Attach. Ex. 2, Declaration of Daniel C. Berry III (Sept. 11, 2018) (Berry Beyond Nuclear Declaration).

46 Berry Beyond Nuclear Declaration at ¶¶ 4-5.

47 LBP-19-4, 89 NRC at 366.

48 Id. at 367.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 20 of 109 release which could affect any of their members.49 Our standing precedents require petitioners to show a specific and plausible means for how the licensed-activities will affect them in the absence of obvious potential for offsite harm.50 We generally defer to a Boards ruling on standing in the absence of clear error or an abuse of discretion.51 In this case, the Boards finding of standing is reasonable given the size of the facility and Mr. Berrys activities in close proximity to that facility. We therefore reject Holtecs argument that Sierra Club failed to establish standing.

2. Sierra Club Contention 4 (Transportation Risks)

Sierra Club asserted in Contention 4 that section 4.9 of the ER inadequately addressed risks associated with transporting radioactive waste from the reactor sites to the CISF.52 It argued that the ER fails to account for severe rail accidents that could release radiation. In support of its argument, Sierra Club relied on an analysis performed by its expert, Dr. Marvin Resnikoff, of the radiological consequences of a spent fuel canister subject to the conditions of a rail tunnel fire similar to one that took place in the Howard Street Tunnel in Baltimore in 2001 (Baltimore Tunnel Analysis).53 The Baltimore Tunnel Analysis concluded that in a similar accident, a spent fuel cask would fail and the fuel rods would burst within eleven hours.54 The 49 Holtec Opposition to Sierra Club at 28.

50 Nuclear Fuel Servs., Inc. (Erwin, Tenn.), CLI-04-13, 59 NRC 244, 248 (2004).

51 See, e.g., Strata Energy, CLI-12-12, 75 NRC at 608-13 (2012) (deferring to boards finding of standing based on dust from project employees driving near petitioners house).

52 Sierra Club Petition at 22-27.

53 Matthew Lamb & Marvin Resnikoff, Radiological Consequences of Severe Rail Accidents Involving Spent Nuclear Fuel Shipments to Yucca Mountain: Hypothetical Baltimore Rail Tunnel Fire Involving SNF (Sept. 2001), available at http://www.state.nv.us/nucwaste/news2001/nn11459.htm (last visited Nov. 7, 2019). According to the report, the Baltimore Tunnel Fire burned for three days or more at temperatures of at least 1500°F. Id. at 9.

54 Id. at 8-9.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 21 of 109 study also provided estimates for the population exposed and latent cancer fatalities.55 According to Sierra Club, Dr. Resnikoff has updated his 2001 Baltimore Analysis and now estimates that a major rail accident could release 20 million person-rem, 1250 times Holtecs estimate.56 Sierra Club also claimed that Holtec underestimates the likelihood of a severe rail accident because Holtec relies on the Department of Energys 2008 Yucca Mountain Final Supplemental Environmental Impact Statement (FSEIS), which Sierra Club claims is outdated and does not account for recent information about increased rail traffic, derailments, and fires.57 Holtec argued in its answer and at oral argument that because its ER incorporated specific portions of the DOE 2008 Yucca Mountain FSEIS, Sierra Club must specifically dispute the analysis in the DOE Supplemental Environmental Impact Statement (SEIS) in order to show a genuine dispute.58 Holtecs ER accident analysis tiered from section 6.3.3.2 of the Yucca Mountain FSEIS.59 In that section DOE responded to a 2001 study by Matthew Lamb and Dr.

Resnikoff that claimed that the latent cancer fatalities resulting from a severe accident in an urban area of Nevada could be between 13 and 40,868 (Nevada Accident Analysis).60 DOE 55 Id. at 13; Sierra Club Petition at 24-25.

56 Sierra Club Petition at 25.

57 Id. at 25-26; see U.S. Department of Energy, Office of Civilian Radioactive Waste Management, Final Supplemental Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada, (June 2008), vol. 1, § 6.3.3 (ML081750191 (package)) (Yucca Mountain FSEIS).

58 See Holtec Internationals Answer Opposing Sierra Clubs Petition to Intervene and Request for Adjudicatory Hearing on Holtec Internationals HI-STORE Consolidated Interim Storage Facility Application (Oct. 9, 2018), at 28-29 (Holtec Answer to Sierra Club); Tr. at 258 (The DOE analysis specifically addressed the higher estimates provided by Lamb and Resnikoff.).

59 See ER § 4.9.3.2 (transportation accident impacts).

60 Matthew Lamb, et. al, Worst Case Credible Nuclear Transportation Accidents: Analysis for Urban and Rural Nevada (Aug. 2001). The Yucca Mountain FSEIS refers to this document as DIRS 181756.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 22 of 109 stated that this estimate was unrealistic because Mr. Lamb and Dr. Renikoff had used conservative or bounding values for multiple parameters in their computer analysis, resulting in unrealistically high yields.61 The Board rejected the contention on various grounds. The Board agreed with Holtec and found that Sierra Club had not shown a genuine dispute with the application because it had not address[ed] or disput[ed] the criticisms of the Lamb and Resnikoff Study contained in the Yucca Mountain FSEIS on which Holtecs ER had relied.62 The Board further found that the contention posed a worst case scenario, the consequences of which need not be discussed under NEPA.63 The Board observed that the intensity of the Baltimore Tunnel Fire was caused by the flammable contents of the railcars, and, according to statements by Holtecs counsel during oral argument, shipments to the CISF will be in dedicated trains without such contents.64 It concluded that a scenario similar to the Baltimore Tunnel Fire would be extraordinarily unlikely.65 It further found that Sierra Club had offered no facts or expert opinion to support its argument that Holtec failed to account for recent information about increased rail traffic and oil tanker rail cars.66 On appeal, Sierra Club reasserts its claim that the application has underestimated the consequences of an accident and argues that the Baltimore Tunnel Analysis was sufficient to 61 Yucca Mountain FSEIS at 6-23.

62 LBP-19-4, 89 NRC at 387.

63 Id. at 387-88 (citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 352 (2002)).

64 Id. (citing Tr. at 256-57).

65 Id. at 388.

66 Id. (citing Sierra Club Petition at 25-26).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 23 of 109 raise a factual dispute.67 It does not reassert its arguments about the likelihood of a rail accident. Nor does it address the Boards conclusion that the proposed contention sought an analysis of an extraordinarily unlikely worst case analysis.

We conclude that Sierra Club identifies no Board error in rejecting the contention. The Board is correct that NEPA does not require a worst case analysis for potential accident consequences.68 In addition, the Board correctly found that Sierra Club offered no expert opinion or documentary support for its assertions about increased rail traffic or railroad fires.

And although Sierra Club argues that the Yucca Mountain FSEIS is out of date, the Baltimore Tunnel Analysis, on which Sierra Club relies, predates the Yucca Mountain FSEIS by several years.69 Moreover, the NRC has studied what would happen to various spent fuel transportation packages if they were subjected to the conditions of the Baltimore Tunnel Fire and concluded that the potential consequences are negligible.70 And contrary to the assertions in Sierra Clubs contention, Dr. Resnikoffs declaration provided no updated information on the subject except for a general statement that he reviewed and endorsed the claims in Sierra Clubs contentions.71 This is insufficient factual support for a contention. We therefore affirm the Boards decision to reject the contention.

67 Sierra Club Appeal at 9-11.

68 See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 354 (1989).

69 See Yucca Mountain FSEIS vol. 1, § 6.3.3.2.

70 See Spent Fuel Transportation Package Risk Assessment (Final Report), NUREG-2125, at 127 (Jan. 2014) (ML14031A323); Spent Fuel Transportation Package Response to the Baltimore Tunnel Fire Scenario NUREG/CR-6886, rev. 2, § 8.3 (Feb. 2009) (ML090570742).

71 Sierra Club Petition, Attach., Declaration of Marvin Resnikoff (Sept. 13, 2018).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 24 of 109

3. Sierra Club Contention 8 (Decommissioning Funds)

Sierra Club argued in Contention 8 that Holtecs application does not set forth a plan to provide adequate funds for decommissioning.72 Sierra Club argued that the amount that Holtec intends to set aside for decommissioning the site is completely inadequate to cover Holtecs

$23 million estimated decommissioning costs.73 In addition, Sierra Club argued that Holtecs decommissioning cost estimate only covers the first phase of the project and the application should explain how Holtec will fund decommissioning the site following the ensuing twenty phases.74 According to its application, Holtec plans to provide financial assurance for decommissioning by establishing a sinking fund coupled with a surety, insurance, or other guarantee as described in 10 C.F.R § 72.30(e)(3). Specifically, Holtec intends to set aside $840 per MTU stored at the facility and counts on a 3% rate of return.75 In its answer to Sierra Clubs hearing request, Holtec argued that Sierra Clubs calculations were incorrect for two reasons.

First, Sierra Club had assumed that Holtec would only accept up to 5000 MTU in its initial phase and therefore set aside only $4,200,000 for future decommissioning. But Holtecs application is for a license to store up to 8680 MTU, which would require Holtec to provide up to $7,291,200 for future decommissioning.76 Second, Holtec claimed that Sierra Club did not account for the 3% rate of return Holtec expects to earn on the funds set aside.77 Holtec also pointed out that 72 See Sierra Club Petition at 35-37.

73 Id. at 36 (citing Holtec International & Eddy Lea Energy Alliance (ELEA) Underground CISF -

Financial Assurance & Project Life Cycle Cost Estimates, Holtec Report No. HI-2177593 (undated), at 6 (ML18345A143) (Decommissioning Cost Estimate)).

74 Id.

75 Decommissioning Cost Estimate § 2.2.

76 Holtec Answer to Sierra Club at 44.

77 Id. at 44-45; see Decommissioning Cost Estimate § 2.2.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 25 of 109 its decommissioning funding plan will have to be updated and resubmitted every three years.78 Further, it argued, even if there were some shortfall in Holtecs calculation of the amount of funds needing to be set aside (which there is not), it would be covered by the surety and therefore the contention raised no genuine material dispute with the application.79 Sierra Club responded to Holtec by questioning its reliance on compound interest.80 Sierra Club pointed out that if Holtecs fund were to earn only a 2% rate of return rather than the 3% upon which it relies, it would have only $10,941,921 after forty years, far below the $23 million estimate in the Decommissioning Funding Plan.81 It further argued that it was doubtful that any surety company would issue a bond for Holtecs facility.82 Holtec responded with a motion to strike the arguments concerning the rate of return and its ability to obtain a surety bond because these arguments were raised for the first time in the reply and therefore unjustifiably late.83 The Board found that Sierra Clubs proposed Contention 8 had not raised a genuine dispute with the application. The Board rejected the argument that Holtecs decommissioning plan must show how it would fund decommissioning of all future expansions of the project because the application only covers the first phase and Holtec will have to update its plan for 78 Holtec Answer to Sierra Club. at 45-46; see 10 C.F.R. § 72.30(c).

79 Holtec Answer to Sierra Club at 46.

80 Sierra Clubs Reply to Answers Filed by Holtec International and NRC Staff (Oct. 16, 2019), at 28 (Sierra Club Reply).

81 Id.

82 Id. at 29-30.

83 Holtec Internationals Motion to Strike Portions of Replies of Alliance for Environmental Strategies, Dont Waste Michigan et al., NAC International Inc., and Sierra Club (Oct. 26, 2018),

at 10-11.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 26 of 109 any future expansions.84 The Board further rejected Sierra Clubs arguments that Holtec could not rely on a reasonable rate of return of 3% and that a surety bond is doubtful because those arguments were impermissibly late and factually unsupported.85 In its appeal, Sierra Club reiterates that the plan must provide for decommissioning all twenty phases of the project without identifying an error in the Boards analysis.86 The Board correctly explained that any future expansion of the facility will require a license amendment and an update to the decommissioning plan. Because Sierra Club does not point to a Board error, there is no basis for us to reverse the Board; it is not sufficient for an appellant merely to repeat the arguments it made before the Board.87 Sierra Club also reasserts its argument that Holtec provided no assurance that it will earn a 3% rate of return on the funds set aside for decommissioning.88 Sierra Club does not address the Boards finding that the argument was impermissibly late. The 3% figure was included in Holtecs Decommissioning Cost Estimate at the time Sierra Club filed its contentions, and therefore Sierra Club could have challenged it then.89 Moreover, Sierra Club does not counter the Boards finding that its argument was unsupported. In short, Sierra Club points to no Board error in rejecting this contention, and we affirm the Board.

84 LBP-19-4, 89 NRC at 393.

85 Id. at 393-94.

86 Sierra Club Appeal at 12-13.

87Turkey Point, CLI-17-12, 86 NRC at 219.

88 Sierra Club Appeal at 12-13.

89 See Decommissioning Cost Estimate § 2.2.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 27 of 109

4. Sierra Club Contention 9 (Impacts from Beyond Design Life and Service Life of Storage Containers)

Sierra Club argued in Contention 9 that the application must consider the risk that the storage canisters will be left on the CISF beyond their design life of 60 years and expected service life of 100 years.90 Sierra Club pointed out that the HI-STORE UMAX canisters designated to be used at the site have only a 60-year design life and 100-year service life, whereas the ER states that the CISF may operate up to 120 years until a permanent repository is available to take the waste.91 Moreover, Sierra Club argued that the ER should consider the possibility that a permanent repository never becomes available, making the Holtec site a de facto permanent repository.92 Sierra Club further argued that the Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Continued Storage GEIS) is not applicable to the proposed Holtec facility.93 Sierra Club argued that the analysis in the Continued Storage GEIS assumes that an away-from-reactor spent fuel storage facility will have a dry transfer system (DTS) to repackage damaged or leaking canisters whereas the Holtec facility will have no DTS.94 Therefore, Sierra Club argued, the proposed Holtec facility is not like the hypothetical facility discussed in the Continued Storage GEIS.

The Board found that the contention presented both environmental and safety aspects, neither of which was admissible. It found that the environmental aspect of this contention impermissibly challenged the Continued Storage Rule and the Continued Storage GEIS 90 See Sierra Club Petition at 38-42.

91 Id. at 38-39 (citing ER § 1.0).

92 Id. at 40.

93 Id. at 40-41.

94 Id.; see Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Final Report), NUREG-2157, vol. 1, ch. 5 (Sept. 2014) (ML14196A105) (Continued Storage GEIS).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 28 of 109 because Sierra Club did not seek a rule waiver.95 To the extent that proposed Contention 9 raised safety issues, the Board found that it did not raise a genuine dispute with the application because it ignore[d] the SARs discussion of retrievability, inspection, and maintenance activities.96 Sierra Clubs appeal essentially reasserts its arguments before the Board without confronting the Boards findings. The Continued Storage Rule provides that long term environmental effects associated with spent fuel storage are set forth in the Continued Storage GEIS and need not be reiterated in individual license proceedings. On appeal, Sierra Club does not address the Boards finding that it must request a rule waiver in order to argue that the Continued Storage Rule should not apply in this proceeding.97 Additionally, Sierra Club repeats the argument that the Continued Storage Rule does not apply to the proposed Holtec facility because the Continued Storage GEIS assumes the presence of a DTS.98 However, its factual premise is mistaken. The Continued Storage GEIS assumes that a DTS would be built in the long-term storage and indefinite timeframes.99 The Continued Storage GEIS assumes that a DTS will not be present initially and that is consistent with Holtecs proposed facility. The application therefore does not need to discuss the effects of a DTS (or the consequences of not 95 LBP-19-4, 89 NRC at 395; see 10 C.F.R. § 51.23 (Continued Storage Rule); 10 C.F.R.

§ 2.335 (no Commission regulation is subject to challenge in an individual licensing proceeding except when a waiver of the rule is sought and granted on the basis that application of the rule to the particular situation would not serve the purpose for which the rule was adopted).

96 LBP-19-4, 89 NRC at 395 (citing provisions of the SAR relating to monitoring, maintenance, and aging management).

97 See 10 C.F.R. § 2.335(b).

98 Sierra Club Appeal at 13-14.

99 Continued Storage GEIS § 1.8.2 at 1-14, § 5.0 at 5-2.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 29 of 109 having a DTS). If Holtec receives a license and decides to build a DTS, then it would need to seek an amendment to its license.

Next, Sierra Club argues that the Board relied on Holtecs unsupported conclusory statement that it will somehow monitor and retrieve the waste in the future and reasserts its claim that once a crack starts in a canister, it can break through and cause a leak in [sixteen]

years.100 But Holtecs statements are not unsupported or conclusoryits SAR discusses plans for inspection, maintenance, retrieval, and aging management.101 The SAR specifically discusses the issue of stress corrosion cracking and concludes that, due to the low halide content of the air at the proposed CISF site, chloride-induced stress corrosion cracking is a remote possibility.102 The SAR also describes how it will monitor the canisters to detect any stress corrosion cracking in its aging management program.103 100 Sierra Club Appeal at 14. Sierra Club points to a YouTube video which it claims depicts Holtecs President Krishna Singh acknowledging that Holtec canisters cannot be inspected, repaired or repackaged. Id.; see also Sierra Club Petition at 41. But Dr. Singh does not say that the canisters cannot be inspected or repackaged. The video clip appears to show Dr.

Singh at an October 14, 2014 meeting, in which he stated that should a canister develop a through-wall hole, it would not be practical to repair it, and the solution would be to isolate the canister in a cask. See www.youtube.com/watch?v=euaFZt0YPi4 (last visited Oct. 21, 2019).

In its petition, Sierra Club cited an NRC Staff meeting summary where this statement was made, but it does not acknowledge that this discussion pertained to the specific phenomenon of chloride-induced stress corrosion cracking. See Sierra Club Petition at 41 (citing Memorandum from Kristina Banovac, Office of Nuclear Material Safety and Safeguards, to Anthony Hsia, Office of Nuclear Material Safety and Safeguards, Summary of August 5, 2014, Public Meeting with Nuclear Energy Institute on Chloride Induced Stress Corrosion Cracking Regulatory Issue Resolution Protocol (Sept. 9, 2014) (ML14258A081)).

101 See, e.g., SAR §§ 3.1.4.1 (inspection of incoming casks), 3.1.4.4 (surveillance during storage), 5.4.1.2 (the HI-STORM UMAX cask system allows retrieval under all conditions of storage); see generally, id. ch. 18, Aging Management Program.

102 See SAR §§ 17.11, 18.3.

103 See SAR §§ 18.3, 18.5.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 30 of 109 The Board found that Sierra Club Contention 9 did not acknowledge or discuss these sections of the SAR or challenge the applications conclusion.104 On appeal, Sierra Club does not address the Boards finding that it had failed to dispute relevant portions of the SAR.

We agree with the Boards conclusion that Sierra Clubs petition did not challenge these discussions in the SAR.

We therefore conclude that Sierra Clubs appeal does not identify Board error in rejecting its proposed Contention 9, and we affirm the Board.

5. Sierra Club Contention 11 (Earthquakes)

Sierra Club argued in Contention 11 that the ER and SAR had inadequately discussed earthquake risks to the facility, including seismic activity induced by oil and gas recovery operations.105 Sierra Club asserted that the information in Holtecs SAR and in its ER used historical data that does not take into account the recent increase in drilling for oil and natural gas that creates induced earthquakes.106 It attached to its petition a 2018 scientific study (the Stanford Report), which it claimed documented the existence of prior earthquakes in southeast New Mexico and the existence of numerous faults in the area in and around the proposed Holtec site.107 It also claimed that the oil and gas industry is concerned that the Holtec facility would impact oil and gas operations in the area and cited the scoping comments 104 LBP-19-4, 89 NRC at 395.

105 See Sierra Club Petition at 44-48.

106 Id. at 45-46; see also ER § 3.3.2; SAR § 2.6.

107 Sierra Club Petition at 44-45 (citing Jens-Erik Lund Snee and Mark D. Zobeck, State of Stress in the Permian Basin, Texas and New Mexico: Implications for Induced Seismicity, The Leading Edge, Feb. 2018, at 127-32 (Stanford Report)).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 31 of 109 that Fasken Oil and Ranch, Ltd. and PBLRO Coalition submitted to NRC with respect to the Holtec application.108 The Board rejected Sierra Clubs contention because it presented no genuine dispute with the application.109 The Board observed that the ER and SAR both used data from the 2016 U.S. Geological Survey, the latest available at the time of its 2017 application.110 It found that Sierra Club had not provided evidence of any significant seismic events around the proposed project site since 2016 and therefore rejected the claim that the application was outdated.111 The Board observed that both the ER and the SAR specifically discuss the effects of fracking.112 Finally, the Board found that there was no dispute between the Stanford Report and the SARs seismic analyses and noted that the illustrations provided in the report appeared to confirm the SARs claim that the closest Quaternary fault (active within the last 1.6 million years) is approximately seventy-five miles away and the nearest fault of any kind is forty miles from the site.113 On appeal, Sierra Club reasserts its claims that Holtecs information is out of date and that the Stanford Report contradicts information in the application. But the Sierra Club adds a new claim with respect to the Stanford Reportthat the report document[s] that due to 108 Id. at 47-48, Ex. 7, Letter from Tommy E. Taylor, Fasken Oil and Ranch, Ltd. to Michael Layton, NRC (July 30, 2018).

109 LBP-19-4. 89 NRC at 398.

110 Id.

111 Id.

112 Id. Holtecs ER and SAR discuss fluid injection and induced seismicity from the oil and gas industry. See SAR § 2.6.2; ER § 3.3.2.1. The Stanford Report does not use the term fracking, but it discusses fluid or wastewater injection. See, e.g., Stanford Report at 127 (noting that

[f]luid injection and hydrocarbon production have been suspected as the triggering mechanisms for numerous earthquakes that have occurred in the Permian Basin since the 1960s).

113 LBP-19-4, 89 NRC at 398-99; see SAR § 2.6.2 at 2-108.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 32 of 109 increased fracking for oil and gas, new geologic faults are being induced, coming nearer to the Holtec site.114 We deny the appeal for many of the same reasons outlined by the Board. First, we agree with the Board that Holtecs use of 2016 USGS data was not out of date and Sierra Club provided no evidence of recent seismic activity near the site. The Board reasonably concluded that the maps included in the Stanford Report seemed to confirm, rather than contradict, the SARs statements that there were no Quaternary faults within the immediate area of the Holtec site.115 And although the Stanford Report discusses earthquakes occurring since 2017, there is no indication that these are stronger earthquakes than previously seen or that they occurred particularly near the site of the proposed Holtec facility.116 We are not persuaded by Sierra Clubs argument that the Stanford Report shows that oil and gas activities are inducing new geologic faults . . . coming nearer to the Holtec site.117 This argument is new on appeal; the original contention did not claim that fracking is causing new faults to form near the Holtec site.118 The claim also appears to be unsupported by the 114 Sierra Club Appeal at 15.

115 LBP-19-4, 89 NRC at 398-99.

116 See Stanford Report at 127. The report mentions that since January 2017, at least three groups of earthquakes, surrounded by more diffusely located events, have occurred in the southern Delaware Basin, near Pecos, Texas. A fourth group of events occurred mostly in mid-November 2017, farther to the west in northeastern Jeff Davis County [Texas]. In addition, a group of mostly small (ML < 2) earthquakes occurred between Midland [Texas] and Odessa

[Texas], in the Midland Basin. Id. The Holtec site is in the northern Delaware Basin.

117 Sierra Club Appeal at 15.

118 We do not consider on appeal new arguments or new evidence that the Board had no opportunity to consider. See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 33 of 109 Stanford Report, which does not indicate that new faults or earthquakes are getting closer to the Holtec site.119 We therefore find no error in the Boards determination that Sierra Club had not raised a genuine dispute with the application in Contention 11.

6. Sierra Club Contentions 15-19 (Groundwater Impacts)

Sierra Clubs Contentions 15-19 all concerned potential impacts to groundwater from the CISF.120 Contention 15 argued that the ER had not adequately determined whether there is shallow groundwater at the site and therefore could not adequately assess the impact of a radioactive leak from the site.121 Contention 16 argued that the ER had not considered whether brine from a previous underground brine disposal operation was still present on the site and whether that brine could corrode the UMAX waste containers.122 Contention 17 argued that the ER and SAR did not consider the presence and effects of fractured rock beneath the site, which could allow radioactive leaks into groundwater from the cask or allow the aforementioned brine to enter the casks and corrode the canisters.123 Contention 18 argued that the ER had not discussed the possibility that waste-contaminated groundwater could reach the nearby Santa Rosa Formation aquifer, which is an important source of drinking water.124 Contention 19 119 The Stanford Report is generally about new measurements of stress orientation and how that information might be used to predict and prevent slip on mapped faults due to fluid injection or extraction. Stanford Report at 127. Sierra Club did not point out where the document provided information in support of its claim. A board is expected to examine the documents provided in support of a proposed contention to verify that the material says what a party claims it does, but we do not expect a board to search through a document for support for a partys claims. USEC Inc., CLI-06-10, 63 NRC at 457.

120 See Sierra Club Petition at 60-67.

121 Id. at 60-62.

122 Id. at 62-63.

123 Id. at 63-65.

124 Id. at 65-66.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 34 of 109 argued that Holtec may have improperly conducted tests for hydraulic conductivity between the site and the Santa Rosa Formation.125

a. Groundwater Contentions as Challenge to Certified Design The Board rejected all the groundwater contentions. It found that they failed to dispute the applications conclusion that there is no potential for groundwater contamination because spent nuclear fuel contains no liquid component to leak out, and it is not credible that groundwater could leak into the canisters.126 The Board observed that the canisters are contained within a steel cavity enclosure container that has no penetrations or openings on the bottom, thereby preventing outside liquids from contacting the canisters or the spent nuclear fuel within them.127 The Board further found that Sierra Club had failed to dispute Holtecs conclusion that the canisters would not be breached during normal operations or any credible off-normal event or accident.128 The Board cited our holding in Private Fuel Storage that [t]o show a genuine material dispute, [a petitioners] contention would have to give the Board reason to believe that contamination from a defective canister could find its way outside a cask.129 The Board rejected Sierra Clubs argument that the material Sierra Club supplied in connection with its proposed Contentions 9, 14, 20, and 23 showed various mechanisms through which a canister could be breached. In doing so, the Board held that those contentions 125 Id. at 66-67.

126 LBP-19-4, 89 NRC at 404-05 (citing ER § 1.3 at 1-8).

127 Id. at 407.

128 Id. at 404, 408; see ER § 4.13 (off-normal operations and accidents).

129 LBP-19-4, 89 NRC at 405 (quoting Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 138-39 (2004)).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 35 of 109 did not adequately support the groundwater contentions because they were also inadmissible.130 On appeal, Sierra Club argues that in rejecting its Contentions 9, 14, 20, and 23, the Board did not conclusively find that the information supporting them was incorrect.131 Therefore, Sierra Club argues, its petition to intervene did controvert Holtecs assertion that the containers are impervious to leaking.132 While it is true that in rejecting these contentions, the Board did not make a factual finding that the claims in them were incorrect, Contentions 9, 14, 20, and 23 were not rejected on mere pleading technicalities, as Sierra Club appears to suggest. The Board found that each of those contentions was inadmissible because (among other reasons) they challenged the certified design of the HI-STORM UMAX system. Because certified designs are incorporated into our regulations, they may not be attacked in an adjudicatory proceeding except when authorized by a rule waiver.133 A contention cannot attack a certified design without a rule waiver because this would challenge matters already fully considered and resolved in the design certification review. For example, Sierra Club Contention 14 argued that the HI-STORM UMAX casks are susceptible to overheating because the air intake and exhaust vents are both located at the top of the cask and that overheating could cause cladding degradation and corrosion.134 The Board noted that the SAR fully incorporates by reference the HI-STORM UMAX design and thermal analysis 130 Id. at 404.

131 Sierra Club Appeal at 18.

132 Id. at 17.

133 10 C.F.R. § 2.335.

134 Sierra Club Petition at 56-60.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 36 of 109 conducted in the HI-STORM UMAXs own Final Safety Analysis Report and that therefore, any challenge to the HI-STORM UMAX system design characteristics that are already deemed compliant with Part 72, including those Sierra Club designates in Contention 14 . . . are barred in this proceeding by sections 2.335 and 72.46(e).135 We agree with the Boards conclusion that Sierra Clubs disagreement with the HI-STORM UMAX certified design cannot be used to support its claim that the CISF might leak.

To the extent that the groundwater contentions seek to raise design issues with the HI-STORM UMAX canister system, the Board correctly found that they challenged our regulations without seeking a waiver and are not admissible. Therefore, to the extent that the groundwater contentions are predicated on the argument that the system could leak, we affirm the Boards ruling that Sierra Club had not presented a sufficient factual basis for that claim and the contentions are not admissible.

b. Groundwater Contentions as Challenges to Site Characterization Sierra Club next argues that its groundwater contentions challenge the ERs characterization of the affected environment, which the ER must provide regardless of whether the canisters could leak.136 The Staff acknowledges that the ER must characterize the site, but it argues that impacts need only be discussed in proportion to their significance.137 Similarly, relying on the same passage in Private Fuel Storage quoted by the Board, Holtec argues that 135 LBP-19-4, 89 NRC at 402. Similarly, Sierra Club Contention 20 argued that the canisters stored at the facility would likely contain high burnup fuel, which, according to Sierra Club, can lead to thinned, embrittled or damaged cladding. Sierra Club Petition at 67-70. Sierra Club Contention 23 argued that high burnup fuel could damage the spent fuel cladding during transportation or storage and that damaged fuel would not be accepted at a permanent repository. Id. at 73-75. But the Board rejected the contentions because the HI-STORM UMAX canister storage system is approved for storage of high burnup fuel, and therefore, the contentions are barred by regulation. See LBP-19-4, 89 NRC at 412, 416-17.

136 Sierra Club Appeal at 17.

137 Staff Opposition to Sierra Club Appeal at 18 (quoting 10 C.F.R. § 51.45(b)(1)).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 37 of 109 Sierra Clubs claims about groundwater characterization are not material to the outcome of this proceeding because Sierra Club has not shown that radionuclides could make their way outside the cask.138 Of the five groundwater contentions, only Contention 18 was based entirely on the premise that leaks from the facility would contaminate the groundwater. The other contentions all raised specific arguments about the adequacy of the hydrogeological site characterization, were supported by expert opinion, and identified the portions of the application in question. In proposed Contention 15, Sierra Club questioned Holtecs claim that there is no shallow groundwater at the site and argued that Holtec relies on data from a single well in the 1040-acre site, which has apparently not been checked since 2007.139 According to the declaration of Sierra Clubs expert, George Rice, there are various reasons why a saturated condition may not have been encountered during drilling even though the materials are saturated.140 In Contention 16, Sierra Club argued that Holtec should determine whether brine in the groundwater could contact the facility and what effect brine could have on its structures. It pointed to ER § 3.5.2.1, which acknowledges that as of 2007 saturations of shallow groundwater brine have been created in the region due to brine disposal.141 And in support of Sierra Club Contention 19, Mr. Rice identified three specific flaws that he claims undermine the reliability of Holtecs hydraulic conductivity tests.142 138 Holtec Opposition to Sierra Club Appeal at 24 (quoting Private Fuel Storage, CLI-04-22, 60 NRC at 138-39).

139 See Sierra Club Standing Declarations and Expert Declarations, Declaration of George Rice (Sept. 10, 2018), at 2 (ML18257A226 (package)) (Rice Declaration).

140 Id. at 3.

141 Sierra Club Petition at 62.

142 According to Mr. Rice, the report from Holtecs contractor did not confirm that it cleaned the well holes prior to the tests, used clean water, or took three or more readings at five-minute

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 38 of 109 Our regulations require an admissible contention to show a genuine dispute exists with the applicant/licensee on a material issue of law or fact.143 A dispute at issue is material if its resolution would make a difference in the outcome of the licensing proceeding.144 Moreover, in the NEPA context we have warned, [o]ne can always flyspeck an [Environmental Impact Statement (EIS)] to come up with more specifics and more areas of discussion that could have been included.145 The Supreme Court has explained that to fulfill NEPAs mandate, for certain major Federal actions such as this one, an agency must prepare an EIS, which ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts and that such information will be available to the public.146 It is possible that, to the extent Sierra Clubs groundwater contentions are purely site-characterization disputes, they fail to show a material dispute with the application because they do not indicate how Sierra Clubs groundwater concerns would affect the ultimate discussion of environmental impacts.147 intervals as recommended by the U.S. Bureau of Reclamations field manual. See Rice Declaration at 8.

143 10 C.F.R. § 2.309(f)(1)(vi).

144 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 333-34 (1999) (quoting Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. at 33,168, 33,172 (1989)).

145 Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-04, 53 NRC 31, 71 (2001).

146 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

147 While not binding precedent, licensing boards have generally considered site characterization claims under NEPA that explained why the site characterization was necessary to fully understand the impacts of the proposed action. E.g., Strata Energy, Inc. (Ross In Situ Recovery Uranium Project), LBP-15-3, 81 NRC 65, 89-92 (2015) (responding to a site characterization claim by noting, [a]t the crux of this contention is the issue of whether, to comply with NEPAs requirement to make an adequate prelicensing assessment of environmental impacts, more extensive monitoring. . . is required); Powertech (USA) Inc.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 39 of 109 But initial determinations of contention admissibility rest with the Board, and the Board did not discuss whether any of the groundwater contentions contained a genuine issue apart from the claims that radioactive leaks from the canisters could contaminate the groundwater.

Within the context of the need to determine whether the groundwater concerns would affect the ultimate discussion of environmental impacts, we remand Contentions 15, 16, 17, and 19 to the Board for further consideration of their admissibility with respect to the site characterization.

7. Sierra Club Contention 26 (Material False Statement)

Joint Petitioners Contention 14 (Material False Statement)

Sierra Club submitted its new Contention 26, and Joint Petitioners their Contention 14, after Holtec amended its license application to provide that its clients would either be the DOE or nuclear plant owners.148 As the Board observed, the two contentions are substantially identical.149 Sierra Club and Joint Petitioners argued that even though Holtecs application represents that nuclear plant owners may be its future customers, in reality Holtec still intends to go forward with the project only if it is able to secure a contract with DOE. They argued that various public statements by Holtec officials show that Holtecs intention has always been to rely on DOE, not the nuclear plant owners, taking title to the waste.150 For proof, Sierra Club (Dewey-Burdock In Situ Uranium Recovery Facility), LBP-13-9, 78 NRC 37, 47-51 (2013)

(allowing site characterization issues to migrate to the extent they challenged applicants demonstration of aquifer confinement and impacts to groundwater).

148 See Sierra Clubs Motion to File a New Late-Filed Contention (Jan. 19, 2019) (Sierra Club Motion for Late Contention); Attach., Contention 26 (Jan. 19, 2019) (Sierra Club Contention 26);

Motion by Petitioners Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace and Nuclear Issues Study Group for Leave to File a New Contention (Jan 17, 2019) (Joint Petitioners Motion for Late Contention); DWMs Contention 14 (Jan. 17, 2019) (Joint Petitioners Contention 14).

149 LBP-19-4, 89 NRC at 451.

150 Sierra Club Contention 26 at 3 (unnumbered); Joint Petitioners Contention 14 at 2 (unnumbered).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 40 of 109 and Joint Petitioners cited a Holtec public email that stated that deployment of the CISF will ultimately depend on the DOE and the U.S. Congress.151 Sierra Club and Joint Petitioners argued that this email shows that representations in the application that nuclear plant owners may be Holtecs future customers are therefore materially false. They argue that this material false statement should be reason enough to deny an application because the Atomic Energy Act of 1954, section 186, expressly provides that a license may be revoked over a material false statement.152 The Board found the contentions inadmissible because the statements in the email did not indicate that there was a willful misrepresentation in Holtecs application.153 The Board found that Holtec readily acknowledges that it hopes Congress will change the law to allow DOE to contract directly with Holtec and that Holtec itself pointed out that the need for the project could be reduced or eliminated if DOE were to build a permanent waste repository.154 In short, the Board determined that Holtec has been transparent that deployment of this project may depend to some extent on actions of DOE and Congress as well as on the NRCs licensing decision.

Moreover, the Board found that whether Holtec would use its license if Congress does not change the law is not an issue material to the license proceeding: [T]he business decision of whether to use a license has no bearing on a licensees ability to safely conduct the activities the license authorizes.155 151 See Sierra Club Motion for Late Contention, Exhibit 11, Holtec Highlights, Holtec Reprising 2018 (Jan. 2, 2019) (also attached to Joint Petitioners Contention 14 as Ex. 1).

152 See Sierra Club Contention 26; Joint Petitioners Contention 14; 42 U.S.C. §§ 2011, 2236.

153 LBP-19-4, 89 NRC at 421, 452.

154 Id. at 421.

155 Id. at 422.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 41 of 109 On appeal, Sierra Club and Joint Petitioners principally repeat the arguments the Board rejected. But Sierra Club further argues that Holtec is attempting to obtain a license on the false premise that nuclear plant owners will retain title to the waste. Then, once Holtec obtains the license, it will use that fact as leverage to persuade Congress to change the law to allow DOE to hold title to the waste.156 Even assuming Sierra Clubs characterization of Holtecs intent were accurate, we agree with the Board that the statements in the application are not false. We further agree that the material issue in this license proceeding is whether Holtec has shown that it can safely operate the facility, not its future political activity or business intentions.

We therefore affirm the Board with respect to Sierra Club Contention 26 and Joint Petitioners Contention 14.

8. Sierra Club Contention 30 Sierra Club filed its new proposed Contention 30 in response to a report by DOEs Nuclear Waste Technical Review Board (NWTRB) that discusses technical issues presented by transportation of nuclear waste and spent nuclear fuel.157 Sierra Club argues that the NWTRB report shows that various assumptions in the ER are invalid and that there are barriers to the implementation of the Holtec CIS project that must be discussed in the ER.158 Sierra Club filed this contention after the Boards jurisdiction terminatedthat is, after all contentions had been dismissed, the record closed and jurisdiction to consider the motion passed to the Commission. Although we have reopened the record for the limited purpose of 156 Sierra Club Appeal at 20-21.

157 See Sierra Club Motion for New Contention 30, Attach., DOE, Preparing for Nuclear Waste TransportationTechnical Issues that Need to Be Addressed in Preparing for a Nationwide Effort to Transport Spent Nuclear Fuel and High-Level Radioactive Waste (Sept. 2019); see also Holtec Internationals Answer Opposing Sierra Club New Contention 30 (Nov. 18, 2019);

NRC Staff Opposition to Sierra Club New Contention 30 (Nov. 18, 2019).

158 Sierra Club Contention 30, at 1 (unnumbered).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 42 of 109 determining the admissibility of Sierra Clubs groundwater contentions, the record remains closed for any other purpose.159 Therefore, Sierra Clubs motion for a new contention must also meet the standards for reopening a closed record.160 Even where jurisdiction to consider reopening has passed to the Commission, however, we frequently remand such motions to the Board to consider the reopening standards in conjunction with contention admissibility, where appropriate.161 We find this action appropriate here. Therefore, we remand Sierra Clubs proposed Contention 30, including the issue of whether the reopening standards are met, to the Board.

D. AFES Appeal Alliance for Environmental Strategies (AFES) is an environmental group with members located near the proposed Holtec storage site in Lea and Eddy County.162 It proposed three contentions, all dealing with environmental justice concerns.163 The Board rejected all three contentions, and AFES has appealed.164

1. AFES Contention 1: Environmental Justice Analysis Includes Insufficient Consideration of Alternative Sites AFES proposed Contention 1 raised environmental justice concerns with Holtecs site alternatives analysis. It claimed that Holtec, as a matter of law, had not investigated enough 159 See, e.g., Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), LBP-11-20, 74 NRC 65, 76 (2011), review denied, CLI-12-10, 75 NRC 479 (2012).

160 See, e.g., Virginia Electric & Power Co. (North Anna Power Station, Unit 3), CLI-12-14, 75 NRC 692, 699-700 (2012); Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),

CLI-12-3, 75 NRC 132, 140-41 (2012); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station), CLI-09-5, 69 NRC 115, 124 (2009).

161 North Anna, CLI-12-14, 75 NRC at 702.

162 Petition to Intervene and Request for Hearing (Sept. 12, 2018), at 1 (AFES Petition).

163 Id. at 11-24.

164 Petition for Review by Alliance for Environmental Strategies (May 31, 2019) (AFES Appeal).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 43 of 109 sites to support a finding by the Nuclear Regulatory Commission that the selected site will not have a disparate impact on the minority population of Lea and Eddy County.165 Accordingly, proposed Contention 1 called for a new ER that both studies and addresses alternative sites nationwide, why such sites are rejected, and what impact the selected site will have on minority and low-income local populations.166 The Board ruled proposed Contention 1 inadmissible because Holtecs ER complied with applicable NRC guidance on environmental justice evaluations in licensing actions.167 The Board found that Holtecs ER describes the social and economic characteristics of the 50-mile region of influence (ROI) around Holtecs proposed facility and identifies percentages of minority and low-income communities within the Holtec facilitys ROI that would be subject to the impacts of the facility, as recommended by NRC guidance.168 The Board observed that according to applicable guidance, a difference of twenty percent or more in the percentage of minority or low-income population, when compared to the rest of the county and state, is a significant difference requiring further investigation.169 But the Board found that Holtec did not identify differences greater than twenty percent and therefore did not discuss environmental justice concerns any further.170 The Board also found that the ER contains an analysis of location alternatives including six other potential sites that were analyzed and considered for 165 AFES Petition at 11.

166 Id. at 21.

167 See Final Report, Environmental Review Guidance for Licensing Actions Associated with NMSS Programs, NUREG-1748 at 6-25 (Aug. 2003) (NUREG-1748); see also Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions, 69 Fed. Reg. 52,040 (Aug. 24, 2004).

168 LBP-19-4, 89 NRC at 455.

169 Id. (citing NUREG-1748 at C-5).

170 Id.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 44 of 109 suitability of the Holtec HI-STORE consolidated interim storage facilitys characteristics.171 The Board declined to admit proposed Contention 1 because AFES has not shown any legal requirement for Holtec to conduct a more in-depth inquiry into alternatives to the proposed action (i.e., the siting of the facility) or environmental justice analyses in its Environmental Report; therefore, the contention failed to show a genuine dispute with the application regarding a material issue of law or fact.172 On appeal, AFES argues that Holtecs environmental justice evaluation was insufficient because it failed to compare the population near the proposed site to the population of the United States as a whole.173 AFES argues the Board was wrong as a matter of law to credit the ERs discussion of alternative sites because Holtec merely re-hashed a prior investigation by a third party, with regard to a previously abandoned site for a different facility that includes no discussion of any environmental justice concerns, resulting in a precipitous narrowing of potential alternatives to a single site in southeastern New Mexico . . . directly contrary to the NRCs Policy Statements.174 By way of background, Holtec acknowledges that it relied on a previous study by the Eddy-Lea Energy Alliance (ELEA) for much of the environmental information in its ER. The ER explains that in 2006, DOE sought bids for locating a spent fuel recycling center and developed a set of criteria for an ideal site.175 Eddy, New Mexico and Lea, New Mexico formed the ELEA 171 Id.

172 Id. (internal citations omitted).

173 AFES Appeal at 17.

174 Id. at 5, 13-15.

175 ER § 2.3.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 45 of 109 to find a site within their jurisdiction and propose it to DOE.176 The ELEA 2007 report analyzed six sites within the two counties with emphasis on the DOEs site selection criteria, which included low population density in the surrounding area, adequate size, low flood risk, and seismic stability. These factors also correspond to Holtecs needs for a waste storage facility.177 Holtec states that it reviewed ELEAs analysis and determined that the selected site is the best for its own project.178 The pertinent NRC Policy Statement in this case is the NRCs Environmental Justice Policy Statement.179 That Policy Statement provides that NRC will identify minority and low-income populations near proposed nuclear sites so that it can determine whether the environmental impacts associated with a given site will be different for those populations when compared to the general population of the surrounding area, not the country as a whole.180 An objective of the Policy Statement is that minority and low-income communities affected by the proposed action are not overlooked in assessing the potential for significant impacts unique to those communities.181 The Board found that Holtec provided information about the impacts to minority and low-income populations within the geographic region of the proposed action, that the demographics did not show a disproportionate number of minorities or low-income people in the vicinity of the 176 Id. See Letter from Johnny Cope, Chairman, ELEA, to Debbie Swichkow, DOE (Apr. 28, 2007), Encl. GNEP Final Detailed Siting Report for the Consolidated Fuel Treatment Center and Advanced Recycling Reactor (ML17310A225, ML17310A227, ML17310A230) (ELEA 2007).

177 ER § 2.3.

178 Id. at 2-16.

179 See Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions, 69 Fed. Reg. 52,040 (Aug. 24, 2004).

180 See id. at 52,048.

181 See id.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 46 of 109 site, and that AFES had not disputed the information provided.182 But on appeal, AFES argues that other sites [o]utside of these isolated, low-income communities need to be analyzed, including sites outside of New Mexico, because the targeting of rural, impoverished, low-income communities in a border state is precisely the sort of de facto result of the institutional racism embedded in prevailing dump site selection processes nationwide that was decried over thirty years ago . . . by the Licensing Board in [LES].183 However, we reversed on appeal the board decision in LES, upon which AFES relies, which admitted a contention claiming racial bias in the applicants site-selection process.184 In doing so, we explicitly rejected the idea that NEPA requires an elaborate comparative site study to explore whether an applicants siting criteria might perpetuate institutional racism.185 The Boards rejection of AFESs proposed Contention 1 in this case accords with our stated environmental justice policy. We therefore affirm the Boards holding that environmental justice does not require consideration of a wider range of alternative sites.186 182 AFES repeatedly asserts that Holtecs evaluation of alternative sites is deficient because it relies on information developed by third parties. See, e.g., AFES Appeal at 5, 8. AFES does not point out any factual error or omission in the third-party information relied upon, however, and reliance on prior studies is commonplace in environmental impact analysis. The Board was therefore correct in its conclusion that AFES presented no genuine factual or legal dispute with this argument.

183 Id. at 15-16 (citing Louisiana Energy Services, L.P. (Claiborne Enrichment Center),

LBP-97-8, 45 NRC 367 (1997)).

184 Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77 (1998); see also Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation)

CLI-98-13, 48 NRC 26, 36 (1998) (cautioning the Licensing Board that a contention not focused on disparate environmental impacts on minority or low-income populations but instead seeking a broad NRC inquiry into questions of motivation and social equity in siting would lay outside NEPA's purview.).

185 Louisiana Energy Services, CLI-98-3, 47 NRC at 104.

186 Our guidance for NEPA reviews of materials license applications provides limited guidance regarding how wide an area should be examined in identifying potential alternative sites for a proposed project. See NUREG-1748 § 5.2. Although Holtec elected to limit its evaluation to six sites in two counties within the same state, the Staff is not limited to considering only those sites

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 47 of 109

2. AFES Contention 2: Disparate Impacts of Siting Process In proposed Contention 2, AFES asserted that New Mexico has been targeted for the dumping of nuclear waste, resulting in a per se discriminatory impact on New Mexicos minority population, in comparison with the rest of the country.187 It included an affidavit of Professor Myrriah Gomez entitled, Environmental Racism an Active Factor in the Siting and White Privilege Associated with the Holtec International HI-STORE Consolidated Interim Storage Facility Project.188 According to AFES, [t]his de facto discrimination is exacerbated by both the historical failure to include members of the minority population in decision making regarding the location of nuclear sites in New Mexico, and the specific failure . . . to include members of the local Lea and Eddy County minority population in decision making regarding the siting of Holtecs proposed CISF.189 The Board found proposed Contention 2 inadmissible because it did not show a genuine dispute with the application on a material issue of law or fact: Holtec addressed environmental justice matters to the depth recommended by NRC guidance, and neither AFESs petition nor Dr. Gomezs affidavit challenge the information in Holtecs Environmental Report.190 On appeal, AFES does not challenge the Boards finding that Holtecs ER comports with NRC policy and guidance on environmental justice evaluations. AFES reiterates its position that proposed by Holtec in its environmental impact statement. See, e.g., Final Environmental Impact Statement for the Construction and Operation of an Independent Spent Fuel Storage Installation on the Reservation of the Skull Valley Band of Goshute Indians and the Related Transportation Facility in Tooele County, Utah, NUREG-1714 (Dec. 2001), at 7-1 to 7-6 (ML020150217) (site selection process entailed evaluation of thirty-eight potential sites across fifteen states) (Private Fuel Storage EIS).

187 AFES Petition at 22.

188 Id.

189 Id.

190 LBP-19-4, 89 NRC at 456.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 48 of 109 Holtecs environmental justice analysis was insufficient because it did not include an effective scoping process and an independent review of the impactincluding the cumulative impactof the site on minority and low-income populations along the border.191 But AFES provides no further information in support of that position, which the Board rejected. This is insufficient to sustain an appeal, and we find no error in the Boards decision to deny the admission of proposed Contention 2.

3. AFES Contention 3: Community Support AFESs proposed Contention 3 claimed that there is no factual basis for Holtecs assertions in its ER that there is community support for the project.192 Although AFES conceded that community support is not normally material to the findings NRC must make to issue a license, it argued that it should nevertheless be considered material in this case because Holtec had referred to community support in its siting analysis.

The Board ruled the contention inadmissible because the issue of public support for the proposed facility is not material to the findings the NRC must make in this licensing proceeding, and [a]ssertion of community support or opposition in a license application does not lend any weight to the environmental justice analysis to be conducted by the applicant.193 On appeal, AFES argues that proposed Contention 1 and proposed Contention 3 are linked, such that if the latter is inadmissible, the former must be admitted.194 It argues that if community support was an adequate reason to narrow Holtecs site selection to only the Eddy-Lea county area, then Holtec should have to show that community support actually exists. We 191 AFES Appeal at 18.

192 AFES Petition at 23.

193 LBP-19-4, 89 NRC at 457.

194 AFES Appeal at 18-19.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 49 of 109 disagree. Holtec explained that community support was but one of many siting factors including seismic stability, low population density, and low flooding riskthat it used in its site selection process.195 Holtec did not discuss community support in its environmental justice analysisnor did it substitute community support for an environmental justice analysis, as AFES claims.196 The Board reasonably evaluated the proposed contentions against the admissibility standards in our regulations, and its decisions on each were, in our view, clear, well-reasoned, and with ample support in the record and in accordance with our established precedents.

E. Joint Petitioners Appeal The Board rejected the Joint Petitioners hearing request on both standing and contention admissibility grounds. It found that the Joint Petitioners based their standing not on their individual members proximity to the proposed facility but on the members proximity to transportation routes, which, it held, is too remote and speculative an interest to confer standing.197 Moreover, it examined each of Joint Petitioners fourteen proposed contentions (except two) and found them inadmissible.198 Joint Petitioners have appealed the Boards 195 ER §§ 2.3, 2.4.2; see Holtec Internationals Brief in Opposition to Alliance for Environmental Strategies Appeal of LBP-19-4 (June 25, 2019), at 10-11.

196 See ER § 3.8.5.

197 See Petition of Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternative to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc.,

San Luis Obispo Mothers for Peace and Nuclear Issues Study Group to Intervene and Request for an Adjudicatory Hearing (Sept. 14, 2018) (Joint Petitioners Petition); LBP-19-4, 89 NRC at 367 (citing U.S. Department of Energy (Plutonium Export License), CLI-04-17, 59 NRC 357, 364 n.11 (2004); EnergySolutions, LLC (Radioactive Waste Import/Export Licenses), CLI-11-2, 73 NRC 613, 623 (2011); Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), LBP-02-23, 56 NRC 413, 434 (2002)).

198 See LBP-19-4, 89 NRC at 426-52. Joint Petitioners proposed Contention 8 was withdrawn and its proposed Contention13 was a motion to adopt Sierra Clubs contentions, which the Board rejected because a petitioner must establish standing and sponsor its own admissible contention before it can adopt another partys contentions. Id. at 451.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 50 of 109 rulings with respect to standing as well as the admissibility of eight of its proposed contentions.199 As explained below, the Board correctly found that none of those eight contentions were admissible. Therefore, we need not reach the issue of Joint Petitioners standing.

1. Joint Petitioners Contention 1: Redaction of Historic and Cultural Properties Precludes Public Consultation and Participation Joint Petitioners argued in their proposed Contention 1 that Holtec violated section 106 of the National Historic Preservation Act (NHPA) by redacting 144 pages of the ER that contain information about two historic or cultural properties that will be destroyed to make way for the proposed CISF.200 The Board found that Holtec did not redact its ER. The Board explained that the Staff, having reached a preliminary conclusion that disclosure of Appendix C to the ER might risk harm to a potential historic resource, temporarily redacted it to comply with the NHPA, which requires withholding information from the public where public disclosure could risk such harm.201 On appeal, Joint Petitioners do not dispute the Boards findings that the Staff redacted Appendix C in accordance with the NHPA, or that the Staff would, after completing consultation with the Keeper of the National Register of Historic Places, make available to the public any information that would not harm any potential historic properties.202 Rather, Joint Petitioners explain why they did not request access to the sensitive information in Appendix C even though 199 Notice of Appeal of LBP-19-4 by Petitioners Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Louis Obispo Mothers for Peace and Nuclear Issues Study Group, and Brief in Support of Appeal (June 3, 2019) (Joint Petitioners Appeal).

200 See Joint Petitioners Petition at 27-31.

201 LBP-19-4, 89 NRC at 427; see also 54 U.S.C. § 307103(a) (requiring an agency to withhold information that may cause harm to a historic place).

202 LBP-19-4, 89 NRC at 427.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 51 of 109 they had the opportunity to do so.203 That explanation has no bearing on whether the Board abused its discretion or otherwise committed an error in denying the contention. We therefore see no basis to disturb the Boards ruling that proposed Contention 1 was inadmissible.

2. Joint Petitioners Contention 2: Insufficient Assurance of Financing Joint Petitioners argued in proposed Contention 2 that Holtec cannot provide reasonable assurance that it has or will obtain the necessary funds to build, operate, and decommission the CISF.204 Joint Petitioners argued that Holtecs application states that it will solely finance the CISF from internal resources, but inconsistently states at the same time that it must have definite contractual arrangements with the U.S. DOE and the outside funding that would come with those arrangements in order to undertake the CISF.205 Therefore, Joint Petitioners argued, Holtecs financial assurance depends on contracts that are not lawful.206 Joint Petitioners moved to amend their contention twice. The first amendment responded to Holtecs revision of the application to provide that nuclear power plant owners might be its customers and argued that the application is unlawful until all references to DOE are stricken from it.207 The Board allowed the first amendment but rejected the substance of the claim.208 Joint Petitioners do not appeal that ruling.

Joint Petitioners attempted to amend the contention a second time after Holtecs counsel conceded at oral argument on January 24, 2019, that DOE cannot currently contract with Holtec 203 See Joint Petitioners Appeal at 20-21; LBP-19-4, 89 NRC at 427.

204 See Joint Petitioners Petition at 31-36.

205 Id. at 32.

206 Id. at 32-33.

207 Motion by [Joint Petitioners] to Amend Their Contention 2 Regarding Federal Ownership of Spent Fuel in the Holtec International Revised License Application, (Feb. 6, 2019) at 8.

208 LBP-19-4, 89 NRC at 428-29.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 52 of 109 to store nuclear power companies spent fuel.209 The Board denied Joint Petitioners second requested amendment because it sought to add arguments that could have been submitted with the original petition.210 The Board found the second requested amendment was therefore not based upon new information.211 Accordingly, the Board denied the amendment request because it did not satisfy the requirements for contentions filed after the deadline set forth in 10 C.F.R. § 2.309(c)(1).

The Board turned next to the timely aspects of proposed Contention 2, which claimed that Holtec would not have sufficient funds to build, operate, and decommission the CISF because its funding plans depended on illegal contracts with DOE. The Board found that while Holtec would prefer that Congress change the law to permit a contract with DOE, Holtec would attempt to negotiate storage contracts with nuclear power plant owners.212 The Board also found that Holtec would not begin construction until it has sufficient contracts established.213 The Board determined that an evidentiary hearing on Holtecs intent would not be useful and found Joint Petitioners proposed Contention 2 inadmissible for failure to raise a genuine dispute with the application.214 209 See Motion of [Joint Petitioners] to Amend Their Contention 2 Regarding Holtecs Proposed Means of Financing the Consolidated Interim Storage Facility (Feb. 25, 2019) (Joint Petitioners Second Motion to Amend).

210 LBP-19-4, 89 NRC at 429-432.

211 Id. at 430. The Board reached its decision after analyzing the sworn declaration of Joint Petitioners expert, which was submitted in support of the motion to amend proposed Contention

2. See id. at 429-32. The Board found the declaration fails to analyze any specific provision in Holtecs application and included virtually nothing that purports to relate directly to Holtec counsels January 24, 2019 concession. Id. at 430.

212 Id. at 433.

213 Id.

214 Id.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 53 of 109 The Board further rejected Joint Petitioners argument that Holtec must provide financial assurance for periods beyond the license term. Joint Petitioners argued that 10 C.F.R.

§ 72.22(e) requires that Holtec must possess the necessary funds, have reasonable assurance of obtaining the necessary funds, or by a combination of the two, have the funds to undertake the CISF as a 20-year storage-construction program, and to operate it securely for 100 years total.215 The claim appeared again in Joint Petitioners second motion to amend proposed Contention 2, which cited the AEA and our financial assurance regulations at 10 C.F.R.

§ 72.22(e) for the argument that Holtec has not adequately estimated the operating costs over the planned life of the CISF.216 The Board rejected the claim and noted that Joint Petitioners claims about financial assurances for later phases or for storage beyond the license term are

. . . outside the scope of this proceeding and thus, inadmissible.217 On appeal, Joint Petitioners argue that this ruling improperly dispense[d] with full and thorough consideration of all aspects of the Holtec CISF plan under NEPA to a later time.218 This NEPA argument is raised for the first time on appeal and is therefore untimely.219 In addition, Joint Petitioners do not provide legal or factual support for this argument. Joint Petitioners cite no regulation, case, or other legal authority suggesting NEPA requires Holtec to provide more financial assurance information than it did nor do they point to any part of Holtecs ER as inadequate. In fact, Holtecs ER includes an analysis of the environmental effects expected from all twenty phases of its planned CISF activities, which undercuts Joint 215 Joint Petitioners Petition at 34 (emphasis added).

216 Joint Petitioners Second Motion to Amend, Encl. at 10-11.

217 LBP-19-4, 89 NRC at 432.

218 Joint Petitioners Appeal at 22.

219 See Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 235, 260 (1996).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 54 of 109 Petitioners argument that dismissal of proposed Contention 2 improperly avoids consideration of reasonably foreseeable environmental impacts associated with potential future phases of the CISF project.220 Our Part 72 regulations govern the financial assurance information Holtec must include in its CISF application. Holtec must provide information sufficient to demonstrate to the Commission the financial qualification of the applicant to carry out . . . the activities for which the license is sought.221 The Board found that Holtec had provided financial assurance information for the first phase of the CISF projectthe phase involving activities for which the license is soughtand that the information was not genuinely disputed by proposed Contention 2.222 While Holtec anticipates that there may be future, additional phases of its project, each phase would require a license amendment. Any application to amend the license to expand the capacity or extend the term of the license would in turn require updated financial assurance information. We therefore affirm the Boards dismissal of proposed Contention 2.

3. Joint Petitioners Contention 3: Underestimation of Low-Level Radioactive Waste Volume Joint Petitioners proposed Contention 3 asserted that Holtecs ER provides a seriously inaccurate picture of the true costs of constructing, operating, and decommissioning the proposed CISF because it grossly underestimates the amount of low-level radioactive waste (LLRW) that the project will generate.223 Specifically, proposed Contention 3 alleged the ER was deficient because it does not consider that the tons of concrete used at the site for 220 See ER §§ 1.0, 4.0.

221 10 C.F.R. § 72.22(e).

222 Id.

223 Joint Petitioners Petition at 36-37.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 55 of 109 foundations and casks will become radioactively activated and that replacement of the canisters themselves during the operational life of the CISF will generate LLRW.224 In response to proposed Contention 3, both the Staff and Holtec argued that Joint Petitioners had not offered any specific facts or expert opinion to support the contention. Holtec explained that the storage casks and pads are not expected to have any residual radioactive contamination because (a) the spent nuclear fuel canisters will remain sealed while in the CISF; (b) the canisters will be surveyed at the originating reactor and again when they arrive at the CISF to ensure that there is no radiological contamination; and (c) the neutron flux levels generated by the spent nuclear fuel would be so low that any activation of the storage casks and pads would produce negligible radioactivity.225 The Staff argued that the Joint Petitioners had offered no facts or expert opinion to support their claims that millions of tons of material will be activated and become LLRW.226 With respect to the canisters, Holtec pointed out that the packaged canisters will be delivered to Holtecs site, ready for storage, and that fuel will be transported off-site in the same canister when a repository becomes available, such that no canisters would be opened at the facility.227 The Board agreed with Holtec and the Staff and 224 Id. at 36.

225 Holtec Internationals Answer Opposing the Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, and Nuclear Issues Study Group Petition to Intervene and Request for an Adjudicatory Hearing on Holtec Internationals HI-STORE Consolidated Interim Storage Facility Application (Oct. 9, 2018), at 41 (Holtec Answer to Joint Petitioners) (citing ER § 4.12.2).

226 Staff Consolidated Response at 36.

227 Holtec Answer to Joint Petitioners at 41 (citing ER § 4.12.2). See also ER § 4.12.4 (stating that all canisters of SNF would be removed and transported to a permanent repository prior to decontamination and decommissioning of the facility).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 56 of 109 rejected proposed Contention 3 because Joint Petitioners had not met their burden in proffering facts or expert opinion supporting their claims.228 The Board also found that Holtec had addressed the impacts from spent fuel repackaging and cask disposal by appropriately relying on the description of those impacts contained in the Continued Storage GEIS, which is incorporated by reference into 10 C.F.R.

§ 51.23.229 Holtec referred to the Continued Storage GEIS in its discussion of environmental impacts of decontamination and decommissioning.230 The Continued Storage GEIS found that the potential environmental impacts from LLRW from decommissioning a large scale ISFSI after long term storage would be small.231 The Board therefore found that aspects of proposed Contention 3 dealing with the topics of repackaging of spent fuel and disposal of the spent fuel casks after repackaging were an impermissible attack on the NRCs regulations under 10 C.F.R. § 2.335, because they challenged the adequacy of ISFSI decommissioning analyses contained in the Continued Storage GEIS.232 On appeal, Joint Petitioners assert there exists evidence of significant volumes of unremediable concrete, soil and canisters, but do not point to any specific evidence.233 Joint Petitioners claim that during oral argument on contention admissibility the Board unreasonably required [Joint Petitioners] to explain why [the concrete] cannot all be decontaminated.234 But it does not appear to us that the Board imposed an undue burden on the Joint Petitioners.

228 LBP-19-4, 89 NRC at 434.

229 Id. at 435 (citing Continued Storage GEIS at 5-48).

230 See ER § 4.9.5.

231 See Continued Storage GEIS at 5-48.

232 LBP-19-4, 89 NRC at 435.

233 Joint Petitioners Appeal at 23.

234 Id.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 57 of 109 Rather, the Board asked whether Joint Petitioners had any factual support for their assertions that concrete at the CISF would become activated or that concrete decontamination would not be possible.235 In response, counsel for Joint Petitioners offered only common sense as an explanation for how concrete would become radioactive and took no position on whether decontamination of concrete would be possible.236 The Board reasonably found that these unsupported assertions were insufficient to support an admissible contention.

Joint Petitioners further argue that the Board erred in relying on the Continued Storage Rule because the rule does not alter any requirements to consider environmental impacts of spent fuel storage during the term . . . of a license for an ISFSI in an ISFSI licensing proceeding.237 However, with respect to the environmental effects during the life of the CISF, the Board found that Joint Petitioners had not proffered any evidentiary support for their claim that the concrete pads and casks will become contaminated or for their claim that the canisters will need to be replaced during the operating life of the facility.238 The portion of the Continued Storage GEIS that the Board discusses refers to the expected consequences of temporary storage in an large scale ISFSIa facility like the proposed facilityand found that the expected consequences of replacing concrete pads, casks, canisters and the DTS would be small.239 Therefore, even assuming these materials did need to be replaced during the life of the proposed facility, the impacts have been studied and set forth in the Continued Storage 235 Tr. at 161-62; see 10 C.F.R. § 2.309(f)(5).

236 Tr. at 161-62. In answering the Boards questions, counsel for Joint Petitioners stated that it is arguing that the initial quantification [of LLRW] is tremendously off base, but provided no factual or expert support for that assertion. Id.

237 Joint Petitioners Appeal at 24.

238 LBP-19-4, 89 NRC at 434.

239 Id. at 435 (citing Continued Storage GEIS at 5-48).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 58 of 109 GEIS, which are codified in the Continued Storage Rule. Joint Petitioners appeal provides no basis to overturn those Board findings.

In short, the Board found proposed Contention 3 failed to include support for its assertions of inadequacy regarding Holtecs evaluation of LLRW impacts. Joint Petitioners appeal does not dispute the Boards finding that the contention lacked evidentiary support.

Accordingly, we affirm the Boards rejection of proposed Contention 3.

4. Joint Petitioners Contention 4: Holtec Does Not Qualify For Continued Storage GEIS Presumptions Joint Petitioners argued in proposed Contention 4 that Holtec cannot rely on the Continued Storage GEISs generic environmental analysis of transportation and operational accidents because the proposed CISF differs from the type of facilities contemplated by the Continued Storage GEIS, particularly with respect to its lack of a DTS.240 The Board dismissed proposed Contention 4, ruling that Holtecs ER does not rely on the Continued Storage GEIS to avoid discussion of site-specific accidents but rather contains a site-specific impact analysis for the period of the proposed activity as the GEIS anticipates.241 The Board further found that

[n]either the Continued Storage GEIS nor NRC regulations require an analysis of a [DTS] at this time; therefore, proposed Contention 4 failed to raise a genuine dispute with the application on a material issue of law or fact.242 On appeal, Joint Petitioners do not dispute the Boards finding that Holtecs ER addresses site-specific environmental effects (including effects from transportation and 240 Joint Petitioners Petition at 46-49. Joint Petitioners provided three other bases for Contention 4, each of which the Board addressed in denying its admission. See LBP-19-4, 89 NRC at 437. Joint Petitioners raise none of those three bases on appeal. See Joint Petitioners Appeal at 24-25.

241 LBP-19-4, 89 NRC at 437.

242 Id.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 59 of 109 operational accidents) during the period of expected facility construction and operation; rather, they continue to argue that the CISF must have a DTS during the current license period. Joint Petitioners argue that Holtec cannot consider the probability of leaking or contaminated canisters or casks arriving at the CISF to be zero; it cannot discount the need for a DTS well before the end of the first 100 years of operations for emergencies, remediation and repackaging.243 Joint Petitioners assert the Boards dismissal of proposed Contention 4 was wrong because the ASLB may not segment consideration of environmental effects, and Holtec may not avoid NEPA or AEA . . . scrutiny of its decision to not have a [DTS] available before the end of the first 100 years of operation because of the Continued Storage GEIS.244 The Continued Storage GEIS generically analyzes the environmental impacts of spent fuel storage after the operational life of a reactor or ISFSI in the short-term (60 years after cessation of operations), long-term (60 to 100 years), and indefinite timeframes.245 It generically assumes that a DTS would be built in the long-term and indefinite timeframes, which occur beyond the initial 40-year license term for the Holtec CISF, so that the environmental impacts of constructing a reference DTS can be considered, thus providing a complete picture of the environmental impacts of continued storage.246 But as the Board correctly held, this assumption does not impose a requirement that any particular facility build a DTS.

We agree with the Board that if the proposed CISF is licensed, built, and operated and Holtec later decides to construct and operate a DTS, a separate licensing action would be 243 Joint Petitioners Appeal at 25.

244 Joint Petitioners Appeal at 24. Joint Petitioners argument regarding NEPA segmentation is new on appeal and will not, therefore, be considered. See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006).

245 Continued Storage GEIS § 1.8.2.

246 Id. § 2.1.4.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 60 of 109 required, which would entail additional environmental review.247 For now, Holtec has evaluated the site-specific environmental effects associated with the construction and operation of the proposed CISF (as required by the Continued Storage Rule). Joint Petitioners do not challenge that facility- and site-specific evaluation of the effects of transportation and operational accidents. 248 We thus find no error in the Boards conclusion that proposed Contention 4 stated no genuine dispute with the application and was therefore inadmissible.

5. Joint Petitioners Contention 7: Holtecs Start Clean/Stay Clean Policy Is Unlawful and Directly Causes a Public Health Threat In their proposed Contention 7, Joint Petitioners argued that Holtecs start clean/stay clean policy is illegal and unsafe because leaky and/or contaminated canisters might arrive at the proposed CISF, which Holtec intends to return . . . to their points of origin, thus risking immediate danger to the corridor communities through which they would travel back to their nuclear power plant or site of origin, likely violating numerous additional NRC and DOT regulations.249 Holtecs answer explained that its start clean/stay clean plan would mean that a defective canister would be shipped back in an approved transportation cask, which is lawful as long as applicable radiation standards are met.250 Holtec also pointed to our decision in Private Fuel Storage, wherein we noted that a similar contentions assertion that shipping [a defective]

canister back inside the approved transportation casks is not safe can be seen as an 247 LBP-19-4, 89 NRC at 437.

248 See ER §§ 4.9.3.2, 4.13.2. Holtec assumes for purposes of its environmental analysis that

[spent nuclear fuel] could be stored at the CIS Facility for approximately 120 years (40 years for initial licensing plus 80 years for life extensions), which could be reduced if a final geologic repository is licensed and operated . . .. ER § 1.0.

249 Joint Petitioners Petition at 61.

250 Holtec Answer to Joint Petitioners at 63-64 (citing 10 C.F.R. § 71.47).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 61 of 109 impermissible attack on NRC regulations and rulemaking-related generic determinations that the transportation cask is sufficient to prevent the leakage of any radioactive material.251 The Board found the contention lacked factual or expert support, specifically finding that Joint Petitioners had not shown:

(1) how the spent fuel, when packaged at the reactor site, would leave the site leaking or damaged notwithstanding NRC-approved quality assurance programs; (2) how the spent fuel canister, within its transport overpack cask, would become credibly damaged in an accident scenario that results in an exceedance of dose rates while in transit; and (3) how the sequestration sleeve, as outlined in Holtecs SAR at the time the petitions were due in this proceeding, is an inadequate remedy should the cask and canister somehow become damaged.252 The Board agreed that our decision in Private Fuel Storage would require the proponent of a similar contention to posit a credible scenario where a canister is breached in transport.253 On appeal, Joint Petitioners attempt to distinguish Private Fuel Storage by suggesting that accidental canister breaches should be considered credible in this case because Holtecs start clean/stay clean policy necessarily supposes some breaches will occur.254 The Board already considered and rejected that argument, however, noting that Private Fuel Storage (like this case) also involved a policy to ship back a leaking or defective canister to its point of origin, and that the petitioner in that case (like this case) had failed to contest those very programs that provide that a transportation accident or breach of canister is not credible.255 We find that the Board appropriately relied on Private Fuel Storage in finding this contention inadmissible. Mere existence of Holtecs start clean/stay clean policy is not 251 Id. at 63 (citing Private Fuel Storage, CLI-04-22, 60 NRC at 138 n.53).

252 LBP-19-4, 89 NRC at 444.

253 Id. (citing Private Fuel Storage, CLI-04-22, 60 NRC at 136-37).

254 Joint Petitioners Appeal at 26.

255 LBP-19-4, 89 NRC at 444.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 62 of 109 sufficient to undermine the requirements and safety analyses that have generically established the integrity of approved spent fuel canister designs.

6. Joint Petitioners Contention 9: Incomplete and Inadequate Disclosure of Transportation Routes Joint Petitioners argued in proposed Contention 9 that Holtec should disclose the transportation routes for the thousands of cask deliveries that are anticipated over the first twenty years of Holtecs proposed license.256 According to Joint Petitioners, the application only shows two probable routes, one from the site of the former Maine Yankee plant and another from the former San Onofre Nuclear Generating Station in California.257 Joint Petitioners argued that complete transportation information is necessary for their own participation in the NEPA process as well as for emergency response officials to understand the scope of Holtecs proposal.258 The Board found that Joint Petitioners failed to raise a genuine dispute with the application because they did not demonstrate that either NEPA or our regulations require a specific assessment of possible transportation routes.259 The Board found that Holtecs ER evaluated three representative routesone from San Onofre to the proposed CISF, one from Maine Yankee to the proposed CISF, and one from the proposed CISF to Yucca Mountainand that the use of representative routes is in keeping with past NRC practice to evaluate transportation impacts.260 The Board further found Joint Petitioners concerns that emergency 256 Joint Petitioners Petition at 66-68.

257 Id. at 66.

258 Id. at 67.

259 LBP-19-4, 89 NRC at 445.

260 Id. at 446 (citing Continued Storage GEIS at 5-49 to 5-54; Private Fuel Storage EIS at 5-39; 10 C.F.R. § 51.52, tbl. S-4).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 63 of 109 response officials would need disclosure of transportation routes to be outside the scope of this licensing proceeding. The Board explained that the NRC reviews and approves spent nuclear fuel transportation routes separately, in conjunction with the Department of Transportation, including consultation with applicable States or Tribes, and coordination with local law enforcement and emergency responders.261 On appeal, Joint Petitioners largely repeat their arguments before the Board.262 However, the Board correctly found that determining exact transportation routes is an issue outside the scope of this licensing proceeding. Furthermore, the use of representative routes in an environmental-impacts analysis to address the uncertainty of actual, future spent fuel transportation routes is a well-established regulatory approach, the foundations of which Joint Petitioners have not challenged.263 Therefore, we affirm the Boards decision to deny admission of proposed Contention 9.

7. Joint Petitioners Contention 11: NEPA Requires Significant Security Risk Analysis Joint Petitioners asserted in proposed Contention 11 that Holtecs application should include an analysis of the environmental impacts resulting from a terrorist attack on the 261 Id.; see also 10 C.F.R. §§ 71.97, 73.37 (requiring advanced planning and coordination of spent fuel shipments with State and Tribal officials).

262 Joint Petitioners Appeal at 27. Joint Petitioners also raise a new argument on appeal that the Boards ruling effectively segments a single project into smaller projects by [s]eparating consideration of the transportation component from the storage component, and thus defies effective analysis and public understanding as required by NEPA. Id. That argument, which does not account for the evaluation of transportation impacts contained in ER section 4.9, is raised for the first time on appeal and therefore will not be considered. See South Carolina Electric & Gas Company (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI-10-1, 71 NRC 1, 5 (2010).

263 See, e.g., Continued Storage GEIS § 5.16 (evaluating impacts of spent fuel transportation to an away-from-reactor ISFSI based on shipments over a representative route); Private Fuel Storage EIS § 5.7.2 (selecting one of the longest possible routes passing through some of the most populated regions of the country).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 64 of 109 proposed CISF and on spent nuclear fuel shipments to the CISF.264 The Board found the contention inadmissible based on the policy decision we expressed in AmerGen Energy, which was upheld by the United States Court of Appeals for the Third Circuit.265 In AmerGen Energy, we held that terrorist attacks are too far removed from the natural or expected consequences of agency action to require environmental analysis in an NRC licensing proceeding.266 In AmerGen Energy, we specifically declined to follow a contrary ruling from the United States Court of Appeals for the Ninth Circuit for any facility located outside that Circuit.267 The Board found that because the proposed CISF would be in New Mexico, which is not within the Ninth Circuit, no terrorist analysis under NEPA is required.268 On appeal, Joint Petitioners reassert that the ER should contain an analysis of terrorist attacks as an environmental impact and cite the Ninth Circuits decision that we declined to follow in AmerGen Energy.269 But Joint Petitioners do not articulate a reason for us to reconsider our policy here. The Board correctly applied our prior rulings, and we affirm its decision to deny admission of proposed Contention 11.

264 Joint Petitioners Petition at 70-88. Proposed Contention 11 included twenty-eight sub-contentions that the Board found [fell] short of the Commissions contention admissibility standards. LBP-19-4, 89 NRC 448-49. Joint Petitioners did not appeal that ruling.

265 LBP-19-4, 89 NRC 448; see AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124 (2007), review denied, N. J. Dept of Envtl. Prot. v.

NRC, 561 F.3d 132 (3d Cir. 2009).

266 AmerGen Energy, CLI-07-8, 65 NRC at 129.

267 Id. at 128-29 (declining to follow San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006)).

268 LBP-19-4, 89 NRC at 448 (observing that New Mexico is in the Tenth Circuit).

269 Joint Petitioners Appeal at 28.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 65 of 109 F. Fasken Motion to Admit New Contention On August 1, 2019, Fasken filed a motion for leave to file a new contention claiming that Holtec does not control mineral rights beneath the proposed site as represented in its application.270 Fasken bases its contention on a June 19, 2019, letter from the State of New Mexico Commissioner of Public Lands to Krishna Singh, President and CEO of Holtec, a copy of which was sent to NRC and served on the parties in this proceeding on July 2, 2019.271 Both the Staff and Holtec opposed the motion on various grounds, including that Fasken had failed to file a motion to reopen the proceeding or address the standards for doing so.272 Thereafter, Fasken filed a motion to reopen, but it subsequently withdrew that motion without withdrawing its initial motion for leave to admit a new contention.273 Although we could determine the admissibility of Faskens new proposed contention ourselves, we decline to do so in this instance. The Board is the agencys expert in contention admissibility, and typically, the parties have the opportunity for oral argument before the Board on matters of contention admissibility. We therefore remand the contention to the Board for consideration of the contentions admissibility, timeliness, and capacity to meet the reopening standards.

270 Fasken Oil and Ranch and Permian Basin Land and Royalty Owners Motion for Leave to File a New Contention (Aug. 1, 2019) (Fasken Motion for New Contention).

271 Letter from Stephanie Richard, New Mexico Public Lands Commissioner, to Krishna Singh, President of Holtec International (June 19, 2019) (ML19183A429) (attached to Fasken Motion for New Contention as Ex. 5) (New Mexico Letter).

272 See NRC Staff Answer in Opposition to Fasken Oil and Ranch, Ltd. and Permian Basin Land and Royalty Owners Motion to File New Contention (Aug. 26, 2019), at 9-10 (Staff New Contention Response); Holtec Internationals Answer Opposing Faskens Late-Filed Motion to File a New Contention (Aug. 26, 2019), at 12-13 (Holtec New Contention Response).

273 See Fasken Oil and Ranch and Permian Basin Land and Royalty Owners Motion for Leave to Reopen and Incorporate Contention Filed August 1, 2019 (Sept. 3, 2019); Fasken and PBLROs Withdrawal of Their Motion for Leave to Reopen and Incorporate Contention Filed August 1, 2019 (Sept. 12, 2019); Holtec Internationals Answer Opposing Faskens Motion for Leave to Reopen and Incorporate Contention Filed August 1, 2019 (Sept. 13, 2019).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 66 of 109 III. CONCLUSION For the foregoing reasons, we affirm in part and reverse and remand in part the Boards ruling denying the petitions. We further remand to the Board Faskens new proposed contention and Sierra Club Contention 30 for determination of their admissibility.

IT IS SO ORDERED.

For the Commission NRC SEAL Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 23rd day of April 2020.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 67 of 109 Chairman Svinicki, Dissenting in Part I join my colleagues disposition of the many appeals in this proceeding with one exception: the majoritys decision to remand portions of Sierra Clubs Contentions 15, 16, 17, and 19 (the groundwater contentions). Generally, these contentions asserted that Holtec inadequately characterized groundwater on site and therefore the environmental impacts could be greater than acknowledged should the storage canisters become compromised and contaminate the groundwater.1 However, the Board concluded that challenges to the integrity of the storage canisters effectively sought to litigate our regulations certifying the designs of those canisters and were therefore outside the scope of this proceeding.2 The majority does not disturb this finding, but instead remands the limited question of whether these contentions could stand as challenges to Holtecs site groundwater characterization on their own.3 In my view, the Board correctly dismissed the entirety of the groundwater contentions upon concluding that Sierra Clubs claim that the canisters could leak was inadmissible.

Without that component, the groundwater contentions no longer challenge the discussion of environmental impacts in the application and therefore fail to raise a material, genuine dispute with the application.4 While I would certainly disagree with an open-ended remand to the Board on this issue, here the majority has instead focused this remand on the material (although in my view already resolved) issue of whether the challenges to groundwater characterization could impact the analysis of environmental impacts in this proceeding. On balance, however, I find even this narrow remand to be an exercise in elevating form over substance.

1 Sierra Club Petition at 60-67.

2 LBP-19-4, 89 NRC at 404-05.

3 Order at 29.

4 10 C.F.R. § 2.309(f)(1)(iv), (vi).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 68 of 109 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

)

HOLTEC INTERNATIONAL ) Docket No. 72-1051-ISFSI

)

)

(HI-STORE Consolidated Interim Storage )

Facility) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-20-04), have been served upon the following persons by Electronic Information Exchange (EIE).

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16B33 Mail Stop: O-16B33 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop - O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 Paul S. Ryerson, Chair Sheldon Clark, Esq.

Administrative Judge Joseph I. Gillespie, Esq.

Esther Houseman, Esq.

Nicholas G. Trikouros Sara B. Kirkwood, Esq.

Administrative Judge Mauri Lemoncelli, Esq.

Patrick Moulding, Esq.

Dr. Gary S. Arnold Carrie Safford, Esq.

Administrative Judge Thomas Steinfeldt, Esq.

Alana M. Wase, Esq.

E-mail: paul.ryerson@nrc.gov Brian Newell, Senior Paralegal nicholas.trikouros@nrc.gov E-mail: sheldon.clark@nrc.gov gary.arnold@nrc.gov joe.gillespie@nrc.gov esther.houseman@nrc.gov sara.kirkwood@nrc.gov Ian Curry, Law Clerk mauri.lemoncelli@nrc.gov Stephanie Fishman, Law Clerk patrick.moulding@nrc.gov Molly Mattison, Law Clerk carrie.safford@nrc.gov Taylor Mayhall, Law Clerk thomas.steinfeldt@nrc.gov E-mail: ian.curry@nrc.gov alana.wase@nrc.gov stephanie.fishman@nrc.gov brian.newell@nrc.gov molly.mattison@nrc.gov taylor.mayhall@nrc.gov

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 69 of 109 Holtec International - Docket No. 72-1051-ISFSI COMMISSION MEMORANDUM AND ORDER (CLI-20-04)

Counsel for Holtec International Counsel for Dont Waste Michigan Pillsbury Winthrop Shaw Pittman LLP 316 N. Michigan Street, Suite 520 1200 Seventeenth Street, NW Toledo, OH 43604-5627 Washington, DC 20036 Terry J. Lodge, Esq.

Meghan Hammond, Esq. E-mail: tjlodge50@yahoo.com Anne Leidich, Esq.

Michael Lepre, Esq. Counsel for Sierra Club Jay Silberg, Esq. 4403 1st Avenue SE, Suite 402 Timothy Walsh, Esq. Cedar Rapids, IA 52402 E-mail: meghan.hammond@pillsburylaw.com Wallace L. Taylor, Esq.

anne.leidich@pillsburylaw.com E-mail: wtaylor784@aol.com michael.lepre@pillsburylaw.com jay.silberg@pillsburylaw.com Counsel for NAC International Inc.

timothy.walsh@pillsburylaw.com Robert Helfrich, Esq.

NAC International Inc.

Counsel for Beyond Nuclear 3930 E Jones Bridge Rd., Ste. 200 Harmon, Curran, Spielberg & Eisenberg LLP Norcross, GA 30092 1725 DeSales Street NW E-mail: rhelfrich@nacintl.com Suite 500 Washington, DC 20036 Hogan Lovells LLP Diane Curran, Esq. 555 13th Street NW E-mail: dcurran@harmoncurran.com Washington, DC 20004 Sachin S. Desai, Esq.

Turner Environmental Law Clinic Allison E. Hellreich, Esq.

1301 Clifton Road E-mail: sachin.desai@hoganlovells.com Atlanta, GA 30322 allison.hellreich@hoganlovells.com Mindy Goldstein, Esq.

E-mail: magolds@emory.edu Counsel for Fasken Land and Oil and Permian Basin Land and Royalty Owners Counsel for Alliance Environmental Strategies Monica R. Perales, Esq.

Law Office of Nancy L. Simmons 6101 Holiday Hill Road 120 Girard Boulevard SE Midland, TX 79707 Albuquerque, NM 87106 E-mail: monicap@forl.com Nancy L. Simmons, Esq. Kanner & Whiteley, LLC E-mail: nlsstaff@swcp.com 701 Camp Street New Orleans, LA 70130 Allan Kanner, Esq.

Eddy-Lea Energy Alliance Elizabeth Petersen, Esq.

102 S. Canyon Cynthia St. Amant, Esq Carlsbad, NM 88220 Conlee Whiteley, Esq .

E-mail: a.kanner@kanner-law.com John A. Heaton e.petersen@kanner-law.com E-mail: jaheaton1@gmail.com c.stamant@kanner-law.com c.whiteley@kanner-law.com 2

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 70 of 109 Holtec International - Docket No. 72-1051-ISFSI COMMISSION MEMORANDUM AND ORDER (CLI-20-04)

Eddy County, NM* City of Hobbs, NM 101 W. Greene Street 2605 Lovington Highway Carlsbad, NM Hobbs, NM 88242 Rick Rudometkin Garry A. Buie E-mail: rrudometkin@co.eddy.nm.us E-mail: gabuie52@hotmail.com

• Eddy County not served due to no representative for the County assigned at the time of Mr. Rudometkins departure. City of Carlsbad, NM 1024 N. Edward Carlsbad, NM 88220 Lea County, NM 100 N. Main Jason G. Shirley Lovington, NM 88260 E-mail: jgshirley@cityofcarlsbadnm.com Jonathan B. Sena E-mail: jsena@leacounty.net Office of the Secretary of the Commission Dated at Rockville, Maryland, this 23rd day of April 2020 3

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 71 of 109 Exhibit C

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 72 of 109 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Christopher T. Hanson, Chairman Jeff Baran Annie Caputo David A. Wright In the Matter of HOLTEC INTERNATIONAL Docket No. 72-1051-ISFSI (HI-STORE Consolidated Interim Storage Facility)

CLI-21-07 MEMORANDUM AND ORDER Today we address an appeal by Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners (together, Fasken) of the Atomic Safety and Licensing Boards decision denying Faskens motion to reopen the record and admit an amended contention.1 We also address Faskens motion to reopen the record and admit its proposed Contention 3.2 For the reasons described below, we deny both the appeal and the motion to reopen.

1 See Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Combined Notice of Appeal and Petition for Review of Atomic Safety Licensing Boards Denial of Motion for Leave to File Amended Contention and Motion to Reopen the Record (Sept. 28, 2020) (Fasken Appeal); Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Combined Reply to Oppositions to Their Notice of Appeal and Petition for Review of Atomic Safety Licensing Boards Denial of Motion for Leave to File Amended Contention and Motion to Reopen the Record (Nov. 3, 2020) (Fasken Reply); LBP-20-10, 92 NRC __ (Sept. 3, 2020) (slip op.). Fasken has also participated in this proceeding under the name Fasken Oil and Ranch; because both the parties and the Board have made no distinction between these entities, we refer to them simply as Fasken.

2 See Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Motion to Reopen the Record (Nov. 5, 2020) (Third Motion to Reopen); Fasken Land and Minerals Ltd.s

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 73 of 109 I. BACKGROUND Holtec International (Holtec) has applied for a license to build and operate a consolidated interim storage facility (CISF) in southeastern New Mexico.3 The proposed license would allow Holtec to store up to 8,680 metric tons of uranium (MTUs) (500 loaded canisters) in the Holtec HI-STORE CISF for a period of forty years.4 The Environmental Report analyzes the environmental impacts of possible future expansions of the project of up to 100,000 MTU storage capacity.5 A. Earlier Rulings At the outset of this proceeding, six different petitioners or groups of petitioners sought to intervene and requested a hearing. In May 2019, the Board denied the hearing requests and terminated the proceeding after concluding that the petitioners had not met our hearing and Permian Basin Land and Royalty Owners Motion for Leave to File New Contention No. 3 (Nov. 5, 2020) (Contention 3).

3 See Letter from Kimberly Manzione, Holtec International, to Michael Layton, NRC (Mar. 30, 2017) (enclosing application documents including safety analysis report and environmental report) (ADAMS accession no. ML17115A431 (package)). We note that the application has been revised several times since it was first submitted, and Fasken does not specify to which versions of the application it references. In this order we cite the current revisions, Environmental Report on the HI-STORE CIS Facility, rev. 8 (Aug. 2020) (ML20295A485) (ER);

and Licensing Report on the HI-STORE CIS Facility, rev. 0J (Sept. 15, 2020) (ML20295A428)

(SAR), unless otherwise noted. Because the sections and subsections where information is located stays the same across versions while page numbers change, we cite these documents by section number.

4 See Proposed License for Independent Storage of Spent Nuclear Fuel and High-Level Radioactive Waste SNM-1051, at 1 (ML17310A223) (Proposed License).

5 ER § 1.0.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 74 of 109 standards.6 In that ruling, the Board found that Fasken had demonstrated standing but its proposed contention was not admissible.7 Fasken appealed.8 On August 1, 2019while its appeal was pendingFasken filed a motion for leave to file a new contention, Contention 2, concerning the mineral rights to the site of the proposed facility.9 Fasken argued in Contention 2 that both the safety and environmental sections of Holtecs application included materially misleading and inaccurate statements suggesting that Holtec could control or restrict mineral development at the site.10 Fasken argued that a June 19, 2019, letter from New Mexico Public Lands Commissioner Stephanie Garcia Richard to Holtec shows that these statements are not true.11 Fasken further argued that because Holtec cannot restrict mineral development, it cannot satisfy the Part 72 siting evaluation factors, including the requirement to examine the frequency and severity of natural and anthropogenic events that could affect the facilitys safe operation.12 6 See LBP-19-4, 89 NRC 353, 358 (2019).

7 Id. at 366-67, 383-426.

8 Fasken and PBLRO Notice of Appeal and Petition for Review (June 3, 2019).

9 See Fasken Oil and Ranch and Permian Basin Land and Royalty Owners Motion for Leave to File a New Contention (Aug. 1, 2019) (Original Contention 2).

10 Original Contention 2 at 4-5 (citing SAR § 2.1.4, 2.6.4; ER §§ 2.4.2, 3.1.1, 8.1.3). Fasken did not include a motion to reopen the proceeding with its original Contention 2. Fasken later filed a motion to reopen on September 3, 2019, but withdrew it without explanation on September 12, 2019. Fasken Oil and Ranch and Permian Basin Land and Royalty Owners Motion for Leave to Reopen and Incorporate Contention Filed August 1, 2019 (Sept. 3, 2019); Fasken and PBLROs Withdrawal of Their Motion for Leave to Reopen and Incorporate Contention Filed August 1, 2019 (Sept. 12, 2019).

11 See Letter from Denise McGovern, NRC, to Stephanie Garcia Richard, New Mexico Commissioner of Public Lands (July 2, 2019), Attach., Letter from Stephanie Garcia Richard, New Mexico Commissioner of Public Lands, to Krishna P. Singh, Holtec International (June 19, 2019) (ML19183A429) (stating that New Mexico owns the mineral estate under Holtecs site and does not agree to limit mineral extraction).

12 Original Contention 2 at 6-10; see also 10 C.F.R. § 72.90(b).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 75 of 109 In April 2020, we affirmed the Boards ruling with respect to Faskens original hearing request, and we remanded Contention 2 to the Board.13 Shortly before the remand, in March 2020, the NRC Staff released its draft environmental impact statement (DEIS).14 In May 2020, Fasken moved to reopen the record and amend Contention 2 based on the DEIS.15 In June 2020, the Board issued LBP-20-6, which, among other rulings, dismissed Contention 2 as Fasken had originally submitted it.16 The Board found that Fasken did not meet the reopening standards in its original Contention 2 and, moreover, Fasken would not have been able to meet the less stringent requirements for filing a late contention even had the record been open when the contention was filed.17 Specifically, the Board found that the motion was not timely because the Environmental Report acknowledged that New Mexico owned mineral rights at the site.18 The Board also pointed to Holtecs response to a Staff request for additional information (RAI) available months before Fasken filed its new contention, which stated that 13 CLI-20-4, 91 NRC 167, 176, 210-11 (2020). In CLI-21-4, 93 NRC __ (Feb. 18, 2021) (slip op.), we affirmed the Board with respect to its rulings related to another petitioner, Sierra Club.

14 Environmental Impact Statement for the Holtec Internationals License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel and High Level Waste (Draft Report for Comment), NUREG-2237 (Mar. 2020) (ML20069G420) (DEIS).

15 Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Motion for Leave to File Amended Contention No. 2 (May 11, 2020) (Amended Contention 2); Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Motion to Reopen the Record (May 11, 2020) (Second Motion to Reopen); see also Order of the Secretary (Apr. 7, 2020) (unpublished)

(granting extension of time to file contentions based on the DEIS until May 11, 2020).

16 LBP-20-6, 91 NRC 239 (2020). Most of LBP-20-6 related to rulings on Sierra Clubs contentions.

17 Id. at 255-56.

18 Id.; see also Environmental Report on the Hi-Store CIS Facility, rev. 6 (Jan. 2019), § 3.1.2 at 3-2 (ML19163A146) (revision current when Fasken filed its original Contention 2).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 76 of 109 New Mexico held mineral rights to the site.19 The Board deferred ruling on the recently filed Amended Contention 2.20 B. LBP-20-10 In September 2020, the Board dismissed Amended Contention 2, in which Fasken argued that:

Holtecs application fails to adequately, accurately, completely and consistently describe the control of subsurface mineral rights and oil and gas and mineral extraction operations beneath and in the vicinity of the proposed Holtec CISF site, which precludes a proper analysis under NEPA and further nullifies Holtecs ability to satisfy NRCs siting evaluation factors now and anticipated in the future and is in further violation of NRC regulations.21 Fasken argued that the DEIS relies on insufficient data, omits material information, reaches improper conclusions, and misrepresents the extent to which Holtec can control or limit mineral development on the site.22 Fasken further argued that outstanding RAIs concerning oil and gas production, potash mining, subsidence, sinkholes, and seismicity near the site warranted suspension of the license review until Holtec provided its response.23 The Board found that Amended Contention 2 was not timely and therefore did not meet the reopening standards. In addition, it held that, even had Fasken met the reopening standards, Amended Contention 2 was inadmissible because Fasken did not show that there 19 LBP-20-6, 91 NRC at 256; see also Letter from Kimberly Manzione, Holtec International, to Jill Caverly, NRC (Mar. 15, 2019), Attach. 9, Potash Mining Lease Partial Relinquishment Agreement (Dec. 6, 2016) (ML19081A083).

20 LBP-20-6, 91 NRC at 256.

21 Amended Contention 2 at 10-11; see LBP-20-10, 92 NRC at __ (slip op. at 24). Fasken states that it does not challenge LBP-20-6. See Fasken Appeal at 5.

22 Amended Contention 2 at 13-14.

23 Id. at 20-28.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 77 of 109 was a genuine dispute over an issue material to the findings that the NRC must make in considering the application.24 In its appeal, Fasken argues that it either met the reopening standards, or in the alternative, the reopening standards should be waived because Fasken raises an exceptionally grave issue.25 Fasken also claims that the Board erred in fact and law and abused its discretion. The NRC Staff and Holtec oppose the appeal.26 C. Third Motion to Reopen and Contention 3 Fasken filed its third motion to reopen on November 5, 2020, while its appeal of LBP-20-10 was pending. Fasken argues that new and materially different information has come to light in the form of recently submitted public comments on the DEIS from oil and gas developers, New Mexico Public Lands Commissioner Richard, and other entities concerning the effect of the project on mineral development in the vicinity of the CISF.27 Among the commenters is XTO Energy, Inc., which asserts that it holds an oil and gas lease from New Mexico for 2,120.6 acres of land, including the proposed site, and that Holtecs proposed project would interfere with XTOs contractual rights to use the surface to develop minerals at the site.28 24 LBP-20-10, 92 NRC at __ (slip op. at 18-20) (citing 10 C.F.R. § 2.309(f)(1)(iv), (vi)).

25 See Fasken Appeal at 25-27.

26 NRC Staffs Answer in Opposition to Fasken Oil and Ranch, Ltd.s and Permian Basin Land and Royalty Owners Petition for Review of LBP-20-10 (Oct. 23, 2020); Holtec Internationals Answer in Opposition to Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Appeal of LBP-20-10 (Oct. 26, 2020) (Holtec Answer).

27 See Contention 3 at 1-2, Ex. 1 at 19-23 (Exhibit 1 consists of several documents including Letter from David R. Scott, XTO Energy, Inc. to Office of Nuclear Material Safety and Safeguards, NRC (Sept. 22, 2020) (ML20268C261) (XTO Comments on DEIS)). The Staff publicly released the comments on October 4, 2020, thirty-one days prior to Faskens motion.

28 Contention 3, Ex. 1, XTO Comments on DEIS at 2. See also e-mail from Deanna Archuleta, XTO Energy, Inc. to Holtec-CISFEIS Resource, NRC, Attach., Oil and Gas Lease (May 10, 1951) (Oil and Gas Lease).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 78 of 109 Fasken also claims that the RAI responses referenced in Amended Contention 2, which were publicly released in October 2020, contain new information supporting Contention 3.29 II. DISCUSSION A. Reopening Standards A motion to reopen the record to admit a new contention must satisfy both the standards of 10 C.F.R. § 2.326 relating to motions to reopen and the standards of 10 C.F.R. § 2.309(c) for admitting new contentions filed after the deadline stated in the notice of opportunity to request a hearing.30 The reopening standard provides that a new contention must be timely, but the standard for admitting new contentions after the deadline is more specific and requires that the contentions proponent establish good cause for why the contention was not raised at the outset of the proceeding. Section 2.309(c) provides that good cause requires that a new contention must be based on information that was not previously available, which is materially different from previously available information, and that the contention is timely based on when the new, materially different information became available.31 With respect to environmental contentions, our regulations specify that participants shall file [environmental] contentions based on the applicants environmental report and that new or amended environmental contentions may be filed on a DEIS where that document contains information that is materially different from information previously available.32 29 See Letter from Kimberly Manzione, Holtec International, to Jose Cuadrado, NRC (Sept. 16, 2020) (ML20260H139 (package)) (RAI Part 5, Response Set 2) (public release date Oct. 21, 2020).

30 See 10 C.F.R. § 2.326(d), see also Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-11-2, 73 NRC 333, 338 (2011) (citing AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 668 (2008)).

31 See 10 C.F.R. § 2.309(c).

32 See id. § 2.309(f)(2).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 79 of 109 When determining whether a new contention is timely for the purposes of reopening a record, we look to whether the contention could have been raised earlierthat is, whether the information on which it is based was previously available or whether it is materially different from what was previously available, and whether it has been submitted in a timely fashion based on the information's availability.33 To be admitted for hearing, a proposed contention must set forth with particularity the matters to be raised, be within the scope of the hearing, be material to the findings the agency must make in taking the requested action, be factually supported, and show that a genuine dispute exists with the application.34 We generally defer to a board as to whether a contention has sufficient factual support to be admitted for hearing and review contention admissibility rulings only where an appeal points to an error of law or abuse of discretion.35 B. Appeal of LBP-20-10

1. Motion to Reopen

a. Timeliness of Motion In remanding Contention 2, we directed the Board to consider whether the reopening standards were met.36 Fasken argues that its motion to reopen was timely, or, in the alternative, that it raised exceptionally grave environmental and safety issues.37 In Amended Contention 2, Fasken argued that it had good cause for late filing because the data relied on and conclusions drawn in the DEIS differed from that in the Environmental 33 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-21, 76 NRC 491, 498 (2012).

34 See 10 C.F.R. § 2.309(f)(1)(i)-(vi).

35 See CLI-20-4, 91 NRC at 173; Crow Butte Resources, Inc. (Marsland Expansion Area),

CLI-20-1, 91 NRC 79, 85 (2020).

36 See CLI-20-4, 91 NRC at 211.

37 Fasken also argues that its motion to reopen was accompanied by an appropriate affidavit, as required by regulation. See Fasken Appeal at 26-27; 10 C.F.R. § 2.326(b). But the Board, while expressing skepticism whether the affidavit executed by Faskens lawyer accompanying

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 80 of 109 Report.38 Specifically, Fasken claimed that whereas the Environmental Report stated that the proposed CISF would have minimal potential for cumulative impacts to geology and soils, the DEIS found a small cumulative impact to geology and soils and that the project would have a moderate cumulative impact to the environment.39 Fasken further argued that the DEIS inaccurately states that any oil and gas production near the site would be 3,050 feet deep or deeper.40 Fasken pointed out that this statement contradicts Holtecs Safety Analysis Report, which stated that drilling would occur at depths greater than 5,000 feet, and the Environmental Report, which Fasken characterizes as representing that Holtec could prevent any mineral extraction under the site.41 The Board found that Amended Contention 2 and the associated motion to reopen were not timely. To the extent Amended Contention 2 challenged the DEISs description of the ownership and control of mineral rights, mineral development, and geology, the Board held that the contention was not based on new information.42 The Board pointed out that the contention claimed material omissions, inadequacies and inconsistencies contained in Holtecs licensing application documents and thus by its own terms claimed deficiencies in the application, rather its motion met the requirements, did not rest its reopening ruling on the absence of an adequate affidavit. See LBP-20-10, 92 NRC __ (slip op. at 7-8). We therefore need not consider whether Faskens affidavit was sufficient to support a motion to reopen.

38 Amended Contention 2 at 4-5; see also Fasken Appeal at 6, 11.

39 Amended Contention 2 at 12; see ER § 5.2.1; DEIS at 5-10 to 5-11.

40 Amended Contention 2 at 14-15, Ex. 4, Amended Declaration of Stonnie Pollock (May 11, 2020), at 2 (Pollock Declaration).

41 Id. at 17; see SAR § 2.6.4; ER § 2.4.2 (By agreement with the applicable third parties, the oil drilling and phosphate extraction activities have been proscribed at and around the site and would not affect the activities at the site.).

42 LBP-20-10, 92 NRC at __ (slip op. at 8-15).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 81 of 109 than in the DEIS.43 The Board observed that the closest Fasken comes to providing new information was its reference to Commissioner Richards June 19, 2019, letter concerning New Mexicos ownership of the mineral rights.44 But the Board concluded that Commissioner Richards letter did not provide new information and pointed to a letter that Faskens vice president had sent to the NRC on the same subject nearly a year before it filed its original Contention 2.45 To the extent that Amended Contention 2 challenged the DEISs analysis of cumulative impacts to geology and soils, the Board held that the Staffs cumulative impacts determination did not constitute new information relating to the issues the contention raised.46 The cumulative impacts analysis concluded that the proposed project would have a small incremental effect on geology and soils, which when added to the impact from other past, present, and reasonably foreseeable future activities, would result in a moderate impact.47 The Board observed that the DEISs estimate of the CISFs incremental impact to geology and soils was the same as Holtecs evaluation in the Environmental Reportthat is, that the impact would be minimal, or small.48 Fasken could have challenged the Environmental Reports conclusion that the CISFs 43 Id. at __ (slip op. at 9).

44 Id. at __ (slip op. at 10).

45 Id. at __ (slip op. at 10-11).

46 Id. at __ (slip op. at 11-12).

47 DEIS § 5.4. The DEIS explains that cumulative effects . . . can result from individually minor but collectively significant actions taking place over a period of time. DEIS at 5-1. The DEIS considers potash mining, oil and gas production, other nuclear facilities, wind and solar farms, and other facilities in its cumulative impact analysis. Id. at 5-2 to 5-2.

48 LBP-20-10, 92 NRC at __ (slip op. at 11-12). The Board found no material difference between Holtecs use of the term minimal and the Staffs term small in the characterization of the projects impact to geology and soils. Id.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 82 of 109 impact to geology and soils would be minimal, but it did not.49 Therefore, the Board found that the DEIS conclusion regarding cumulative effects made no material difference to Faskens contention.50 Faskens appeal points to no Board error in its finding that the motion to reopen and amended contention were untimely. First, we are not persuaded by Faskens argument that it established good cause under an alternative test articulated in a 2010 Board decision, Calvert Cliffs 3.51 Fasken argues that Calvert Cliffs 3 holds that either new data or new conclusions in the DEIS would constitute materially different information justifying raising a new contention and the Holtec DEIS did both.52 However, the Calvert Cliffs 3 Board did not establish a new timeliness test; it was simply quoting the language in the regulation at that time.53 The relevant language was revised in 2012 to clarify that good cause is the sole factor to be considered when evaluating whether to review the admissibility of a new or amended contention54 and that the three factors now found in 2.309(c) are the standard for establishing good cause.55 In the statements of consideration for the 2012 final rule, the Commission noted that the similarities 49 Id. at __ (slip op. at 12).

50 Id.

51 Calvert Cliffs 3 Nuclear Project, LLC and Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), LBP-10-24, 72 NRC 720, 729-30 (2010).

52 Fasken Appeal at 11-12, 17-19.

53 See Changes to Adjudicatory Process, Final Rule, 69 Fed. Reg. 2182, 2240 (Jan. 14, 2004).

We observe that as an unreviewed Board decision, Calvert Cliffs 3 would not constitute binding precedent on other boards. See Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-13-9, 78 NRC 551, 558 (2013); Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 343 n.3 (1998).

54 Amendments to Adjudicatory Process Rules and Related Requirements, Proposed Rule, 76 Fed. Reg.10,781, 10,783 (Feb. 28, 2011).

55 See Amendments to Adjudicatory Process Rules and Related Requirements, Final Rule, 77 Fed. Reg. 46,562, 46,572 (Aug. 3, 2012).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 83 of 109 between former § 2.309(c)(1) and 2.309(f)(2) had resulted in doctrinal confusion concerning the proper way to evaluate pleadings filed out of time.56 The 2012 final rule resolved the ambiguity and eliminated any alternative approaches to evaluating new or amended environmental contentions filed after the initial deadline.57 On appeal, Fasken reiterates its timeliness claims without confronting the Boards rulings. For example, Fasken argues that the DEIS used a six-mile radius around the site to discuss cumulative impacts rather than the fifty-mile radius used in the application and that it could not have anticipated that the Staff would limit the area in which impacts are discussed before the DEIS was released.58 The Board found, however, that the application used a six-mile radius to discuss land use around the site and a larger fifty-mile radius in its cumulative impacts analysis.59 The Board found that the DEIS therefore used a subset of information already provided, and it found that Fasken identified no new information related to cumulative impacts.60 On appeal, Fasken does not challenge the Boards explanation and accordingly does not demonstrate that the Board erred. We therefore defer to the Boards finding.

Further, Fasken insists that its underlying briefs supporting Amended Contention 2 . . .

identify with particularity material differences in both information reliance and conclusions drawn when compared with Holtecs [Environmental Report], [Safety Evaluation Report] and/or outstanding RAI responses.61 But aside from generally pointing to its filings before the Board, 56 Id. at 46,571.

57 Id.

58 Fasken Appeal at 6, 17, 19, 26.

59 See LBP-20-10, 92 NRC at __ (slip op. at 12).

60 Id.

61 Fasken Appeal at 15.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 84 of 109 Fasken does not explain what these specific disputes are, how the Board erred in addressing its arguments or whether it claims that the Board failed to respond to them, or why these disputes could not have been raised earlier.62

b. Exceptionally Grave Issue We are not persuaded by Faskens argument that it raised an exceptionally grave issue with the application, which would warrant waiving the timeliness requirement.63 Fasken first raised this claim during oral argument, apparently in response to the Boards question in a pre-hearing order.64 The Board denied Faskens argument and found that the contention was not admissible.65 On appeal, Fasken asserts that its contention comprises exceptionally grave issues of national economics and security, regional employment, sinkholes[,] subsidence, and seismicity.66 But Fasken does not explain how the facility could have an exceptionally grave impact on national economics, national security, or regional employment. In addition, it does not point to any information in its contention concerning sinkholes, subsidence, or seismicity that is materially different from information already considered by the Staff in the DEIS.67 Whether to waive the timeliness requirement for an exceptionally grave issue is up to the discretion of the Presiding Officer.68 We have cautioned that this exception is a narrow one, to 62 See id. at 15 & n.59.

63 See 10 C.F.R. § 2.326(a)(1).

64 See Tr. at 423 (Mr. Kanner); see also Order (Concerning Oral Argument) (Jul. 20, 2020), at 2 (unpublished).

65 LBP-20-10, 92 NRC at __ (slip op. at 15).

66 See Fasken Appeal at 27-28.

67 See Pilgrim, CLI-12-21, 76 NRC at 501.

68 See 10 C.F.R. § 2.326(a)(1).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 85 of 109 be granted rarely and only in truly extraordinary circumstances.69 In our view, the Boards decision was reasonable and not an abuse of discretion.

2. Admissibility of Amended Contention 2 We further find that Fasken has not shown that the Board erred in ruling that Amended Contention 2 was not admissible. Exhibit 2 to Faskens motion to admit Amended Contention 2 is a list of Facts Petitioners Intend to Rely On to Support New and Amended Contentions, which included cites and excerpts from the DEIS, Holtecs Safety Analysis Report and Environmental Report, and from several outstanding RAIs.70 But this list did not include an explanation of whether Fasken was contesting the accuracy of the excerpted information or relying on the information to support its contention. Fasken also attached the declaration of a petroleum geologist, Stonnie Pollock, who provided his opinion on the potential for mineral extraction within the vicinity of the site, the possibility that oil and gas could occur at depths shallower than 3,050 below the surface, and the dangers of improperly plugged and abandoned wells.71 The Board concluded that Amended Contention 2 was inadmissible for lack of a genuine dispute over an issue material to the findings that the NRC must make in considering the application.72 The Board found that Fasken did not specify which of the Staffs conclusions in the DEIS that it disputed, did not identify any misleading statement in the DEIS, and did not 69 Pilgrim, CLI-12-21, 76 NRC at 501 n.67 (quoting Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535, 19,536 (May 30, 1986)).

70 See Amended Contention 2, Ex. 2, Facts Petitioners Intend to Rely On to Support New and Amended Contentions (May 11, 2020).

71 See Pollock Declaration.

72 LBP-20-10, 92 NRC at __ (slip op. at 18-20) (citing 10 C.F.R. § 2.309(f)(1)(iv), (vi)).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 86 of 109 explain how alleged inaccuracies might affect a material issue.73 With respect to Faskens claim that the DEIS misstates the mineral ownership under the site, the Board found that the DEIS acknowledges that the State of New Mexico and the Bureau of Land Management own the mineral rights beneath and surrounding the site.74 With respect to its claim that oil and gas could be extracted from a shallower depth than stated in the DEIS, the Board found that Faskens expert did not explain how the existence of wells at any depth is material to the NRC Staffs assessment of environmental and cumulative impacts.75 The Board also denied Faskens arguments that the DEIS was necessarily deficient because there were several RAIs still outstanding that related to regional drilling activities, orphaned and abandoned wells, potash mining, and seismicity.76 The Board found that the outstanding RAIs pertained to the safety review, rather than the environmental review, and none of the conclusions in the DEIS was based on information that Holtec had not yet provided.77 The Board found that petitioners must do more than rest on the mere existence of RAIs as the basis for their contention.78 We are not persuaded by Faskens claim on appeal that Amended Contention 2 raised a genuine dispute of material fact. First, Fasken argues that its Amended Contention 2 disputed 73 Id. at __ (slip op. at 19-21).

74 Id. at __ (slip op. at 20) (citing DEIS § 3.2.1 and DEIS Figure 3.2-2).

75 Id. at __ (slip op. at 22).

76 Id. at __ (slip op. at 23).

77 Id. (citing NRC Staff Answer in Opposition to Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Motions to Amend Contention 2 and Reopen the Record (June 4, 2020), at 22).

78 Id. (citing PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 and 2),

CLI-15-8, 81 NRC 500, 506 n.47 (2015); Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 336 (1999)).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 87 of 109 the DEISs supposed reliance on a proposed but not-yet-accepted land use restriction of condition at the Holtec site.79 Although Fasken made such an argument in Amended Contention 2, neither Faskens appeal nor the contention cites to where the DEIS relied on such an agreement. On the contrary, the DEIS acknowledged at several pointsincluding in the sections cited in Faskens Exhibit 2that continued mineral development was possible near and even underneath the site.80 Fasken asserts that it raised multiple genuine disputes of material facts, while citing generally to its motion, supporting exhibits, and reply brief.81 This argument is not sufficient to show Board error. The Board explained why it found that none of Faskens assertions raised a material dispute and Fasken has not shown with specificity where the Board erred.

3. Whether the Board Abused its Discretion Fasken makes two claims that the Board abused its discretion and made prejudicial procedural errors regarding Amended Contention 2.

First, Fasken argues that the Board abused its discretion and made a prejudicial procedural error when it declined to hear testimony from Faskens expert during oral argument on Faskens motions to reopen and admit Amended Contention 2.82 Faskens expert affiant, Stonnie Pollack, was present online during oral argument, but the Board declined to hear 79 Fasken Appeal at 20 n.65 (citing Amended Contention 2 at 14).

80 See, e.g., DEIS § 3.2.4, Mineral Extraction Activities; § 4.2.1.1 at 4-4 to 4-5 (All oil and gas production zones in the area of the proposed CISF occur beneath the Salado Formation at depths greater than 914m [3,000 ft] . . . Future 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.].).

81 Fasken Appeal at 21.

82 See id. at 23-24, Fasken Reply at 3-5.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 88 of 109 testimony from him.83 The Boards order scheduling oral argument stated that the argument was intended to address legal and procedural aspects of Faskens motions and was not an evidentiary hearing.84 Accordingly, the Board only allowed attorneys representing the parties to speak.

As we have held previously, oral argument is an opportunity for the Board to ensure it understands the participants legal positions, and participants do not have a right to oral argument on contention admissibility.85 Fasken does not claim that either Holtec or the Staff were allowed to present expert evidence during oral argument or that the Board treated it differently from the other participants. We therefore find that the Board did not abuse its discretion by declining to hear testimony from Mr. Pollack at oral argument.

Fasken next argues that the Board prejudiced Fasken by allowing Holtec to update its Environmental Report after the issuance of the DEIS.86 We are not persuaded by this claim. As an initial matter, this argument is new on appeal and we could reject it on that ground alone.87 But more substantively, Fasken does not cite any regulation or case law that holds that it is improper for the applicant to update the Environmental Report after the DEIS is released.88 In addition, the Board has no control over whether or when an applicant updates its application. The Staff, rather than the Board, determines whether an application is accepted for 83 See Tr. 456-57.

84 See Order (Concerning Oral Argument) (July 20, 2020) (unpublished); see also Order (Scheduling Oral Argument) (June 25, 2020) (unpublished).

85 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-08-7, 67 NRC 187, 191 (2008).

86 Fasken Appeal at 24-25.

87 See, e.g., USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006).

88 See Holtec Answer at 22-23.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 89 of 109 review, and the Board does not supervise the Staffs review.89 And updating and revising an application is a normal part of our dynamic licensing process.90 For these reasons, we disagree with Faskens argument that the Board abused its discretion by allowing Holtec to update its application.

For the foregoing reasons, we deny Faskens appeal of LBP-20-10.

C. Contention 3 After the Board dismissed the last pending contention in LBP-20-10, jurisdiction over this matter, including jurisdiction over Faskens third motion to reopen, passed to the Commission.91 Although we often refer motions to reopen to the Board we will rule on them where appropriate.92 Due to the similarity between Contention 3 and its corresponding motion to reopen and the motions and contentions currently before us on appeal, we find that a referral here is unnecessary.

In proposed Contention 3, Fasken makes three claims. Its principal argument in Contention 3, as in Contention 2 and Amended Contention 2, is that the project will interfere with mineral development and that mineral development cannot proceed safely alongside the CISF. Fasken also claims in Contention 3 that the Staff did not independently investigate information in the application to verify its reliability before including it in the DEIS. Finally, 89 Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-6, 59 NRC 62, 74 (2004).

90 The Commission follows a dynamic licensing process that allows an application to be modified or improved as the Staff goes forward. See Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 349-50 (1998); The Curators of the University of Missouri (TRUMP-S Project), CLI-95-8, 41 NRC 386, 395 (1995).

91 See Virginia Electric and Power Co. (North Anna Power Station, Unit 3), CLI-12-14, 75 NRC 692, 701 (2012).

92 See, e.g., Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-06-3, 63 NRC 19, 23-24 (2006).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 90 of 109 Fasken claims that the Staff did not adequately consult with and include the viewpoints of State and local governments, industry, and communities. Specifically, proposed Contention 3 states:

The Holtec DEIS, [Environmental Report,] and [Safety Analysis Report] 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[s] 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.93 Fasken argues that these claims are supported by new information that only came to light in the public comments on the DEIS, which were published on October 5, 2020, and in Holtecs RAI responses that were released October 21, 2020.94 The Staff and Holtec oppose the motion to reopen.95 93 Contention 3 at 15. The contention and motion to reopen was accompanied by the affidavit and declaration of Tommy E. Taylor, a petroleum engineer who is the Assistant General Manager of Fasken Oil and Ranch, Ltd. and Senior Vice President of Fasken Management, LLC. See Contention 3, Ex. 3, Affidavit and Declaration of Tommy E. Taylor (Nov. 5, 2020), at 1-2 (Taylor Affidavit). We deny the motion because it is untimely and does not raise a significant environmental issue, and therefore we do not consider whether the affidavit met the reopening standards.

94 Id. at 2-6.

95 NRC Staffs Answer in Opposition to Fasken Oil and Ranch, Ltd. and Permian Basin Land and Royalty Owners Motions to Reopen the Record and File New Contention 3 (Nov. 30, 2020)

(Staff Answer to Contention 3); Holtec Internationals Answer Opposing Fasken Land and Minerals, Ltds and Permian Basin Land and Royalty Owners Motion to Reopen the Record and Motion for Leave to File New Contention No. 3 (Nov. 30, 2020) (Holtec Answer to Contention 3).

Fasken filed a reply to the Staffs and Holtecs Answers. Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Combined Reply to NRC Staffs and Holtec Internationals Oppositions to Motions for Leave to File New Contention No. 3 and Motion to Reopen the Record (Dec. 7, 2020). However, our rules do not allow for a reply except where expressly permitted by the Secretary or presiding officer, and we do not consider Faskens reply further. See 10 C.F.R. § 2.323(c).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 91 of 109 We find that these claims are untimely because Fasken does not point to information in the public comments or RAI responses that is materially different from previously available information. We further find that Contention 3 does not raise a significant environmental issue that would make a material difference in this proceeding.

1. Timeliness of Mineral Rights and Development Claims Faskens claims in Contention 3 about mineral rights and mineral development are not based on or supported by any previously unavailable information that is materially different from information available in the application and DEIS. As the Board held with respect to Amended Contention 2, the DEIS acknowledges that New Mexico owns the mineral rights under the site and the DEIS accounts for the effects of future development. In fact, the Environmental Report has acknowledged New Mexicos ownership of the mineral rights since its first iteration in March 2017.96 Holtecs first Environmental Report also stated that [f]urther oil and gas development is not allowed by the New Mexico Oil Conservation Division due to the presence of potash ore on the [s]ite.97 Holtec clarified this statement in the fifth revision of its Environmental Report in March 2019 to state that the site is within the Secretary of the Interiors Designated Potash Area, which precludes drilling through the potash deposits to reach underlying oil and gas deposits.98 The time for Fasken to dispute these specific assertions in the application or the 96 See Environmental Report on the HI-STORE CIS Facility, rev. 0 (Mar. 2017), § 3.1.2 (ML17139C535).

97 Id.

98 Environmental Report on the HI-STORE CIS Facility, rev. 5 (Mar. 2019), § 3.1.1 (ML19095B800). Because drilling for oil and gas through potash deposits is harmful to the potash and dangerous to miners, the Secretary of the Interior has established by order drill islands which enable oil and gas developers to drill around the potash deposits within the designated area. See Department of the Interior, Oil, Gas, and Potash Leasing and Development Within the Designated Potash Area of Eddy and Lea Counties, NM, 77 Fed. Reg.

71,814 (Dec. 4, 2012). Section 8 of the order provides the legal description of the Designated Potash Area, which includes public and non-public lands.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 92 of 109 DEISsuch as the effect of the sites location within the Designated Potash Areawas when those assertions were made.

The public comments on which Fasken relies also provide no materially different information to support Contention 3 than information previously available. Fasken points to XTOs comments that XTO has the right to use as much of the surface of the site as is reasonably necessary to produce its minerals because, under New Mexico law, the surface estate is subordinate to the mineral estate.99 Fasken argues that it did not know XTOs identity, the terms of its lease, or its intent in terms of oil and gas development around the property before it saw XTOs public comment.100 But as XTOs comments show, and Faskens own pleadings acknowledge, the right of subsurface-estate leaseholders to use the surface estate is not new information, it is a general principle of New Mexico oil and gas law.101 Further, as Commissioner Richards comments indicate, the terms of New Mexico Land Office leases are established by statute.102 The principles of New Mexico oil and gas law are not new information, 99 See Contention 3, Ex. 1, XTO Comments on DEIS at 3 (citing McNeill v. Burlington Res. Oil &

Gas Co., 143 N.M. 740, 748 (N.M. 2008)). Under the terms of XTOs lease from New Mexico, a copy of which was attached to its comments, XTO may use the surface for pipelines, telephone and telegraph lines, tanks, power houses, stations, gasoline plants, and fixtures for producing, treating, and caring for [oil and gas], and housing and boarding employees. XTO Comments on DEIS at 3 (quoting Oil and Gas Lease at 1 (unnumbered)).

100 See Contention 3 at 8. We note that Fasken also does not show why it could not have discovered XTOs identity before the public comments were released, given that the names of leaseholders of New Mexico minerals is public information.

101 See, e.g., Contention 3 at 22; Taylor Affidavit at 4; Contention 3, Ex. 1, XTO Comments on DEIS at 3; see also Contention 3, Ex. 4 (Nov. 5, 2020). Exhibit 4 consists of public comments on the DEIS and includes letters from the New Mexico State Legislature, the New Mexico Department of Homeland Security and Emergency Management, the New Mexico Environment Department, New Mexico Governor Michelle Lujan Grisham, Commissioner Richard of the New Mexico Department of Public Lands, and COG Operating LLC, which operates an oil well on the site.

102 See Contention 3, Ex. 4, Commissioner Richards Comments at 4.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 93 of 109 and Fasken does not claim that there is anything unusual in the terms of XTOs lease that was not available to Fasken prior to seeing XTOs comments.103 Public comments arguing that there are no legal impediments to shallow drilling do not constitute new information that is materially different from information previously available. Both XTO and Commissioner Richard argued that the DEIS relies on supposed depth restrictions that would prevent oil and gas extraction from shallower than 930 meters (3,050 feet).104 These comments mischaracterize the DEIS, which does not rely on legal or contractual depth restrictions for its conclusion that oil and gas development will only occur, if at all, thousands of feet beneath the surface.105 And even if the DEIS had made such a statement, the time for Fasken to challenge it would have been when the DEIS was released, not after other entities identified it in public comments.

We are also not persuaded by Faskens arguments that Holtecs September 2020 RAI responses contain information that is materially different from information previously available.

The only information Fasken cites from the RAI response that is plausibly new is that Holtec for the first time in its RAI response (and in contemporaneous revisions of its environmental report and safety analysis report) identifies the uppermost oil-and-gas bearing formation under the site as the Yates formation.106 Fasken argues that this is significant because the Yates formation usually requires vertical drilling.107 But the only support Fasken provides for the claim that the 103 See Taylor Affidavit at 2, Contention 3 at 6 (stating that members of PBLRO have been drilling and extracting oil in the region for more than eighty years).

104 See Contention 3, Ex. 4, Commissioner Richards Comments at 4; Contention 3, Ex. 1, XTO Comments on DEIS at 4 (citing DEIS at 4-4, 4-5, 4-6, 4-7).

105 See DEIS at 3-6 to 3-9, 4-4 to 4-5.

106 Contention 3 at 21; see also RAI Part 5, Response Set 2 at 29, 49; ER § 3.1.1; SAR §§ 2.1.4 at 2-11, 2.6.4 at 2-127.

107 Contention 3 at 21; see id. Ex. 3, Taylor Affidavit at 4.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 94 of 109 Yates formation must be drilled vertically is the statement of its affiant, Mr. Taylor, who testifies that vertical wells . . . are more affordable than horizontal wells.108 However, Fasken does not explain why the identification of the formation as the Yates formation is materially different information from what was in the DEIS. In addition, Holtec points out that the Yates formation is part of the larger Artesia Group, which has been identified in the environmental report since the fifth revision of that document in March 2019.109 Further, nothing in Mr. Taylors affidavit suggests that the Yates formations presence above 3,050 feet is new information that could not have been raised upon publication of the DEIS.

2. Significant Environmental Issue Faskens claims regarding mineral development at the site do not meet the reopening requirement to present a significant environmental or safety issue.110 As previously stated, XTOs and Commissioner Richards comments that the DEIS relies on depth restrictions that would prevent oil and gas extraction from shallower than 930 meters (3,050 feet) are incorrect.111 Neither Fasken nor the public comments cite any portion of the DEIS that states that mineral development is limited by depth restrictions imposed by law or contract. Rather, the DEIS considers that future mineral development will take place in the strata where the minerals are known to exist. That is, the DEIS discusses the likelihood that potash will be developed, if at all, in the Salado formation, and oil and gas will be developed, if at all, in deeper 108 See Contention 3, Ex. 3, Taylor Affidavit at 4. (Yates is best reached vertically and not horizontally because drilling and completion of vertical wells and wells at shallow depths is much less costly with less mechanical risk as compared to drilling deep targets.)

109 See Holtec Answer to Contention 3 at 10; see also Environmental Report on the HI-STORE CIS Facility (Mar. 2019), Fig. 3.3.11 (ML19095B800).

110 10 C.F.R. § 2.326(a)(2).

111 See Contention 3, Ex. 4, Commissioner Richards Comments at 4; Contention 3, Ex. 1, XTO Comments on DEIS at 4 (citing DEIS at 4-4, 4-5, 4-6, 4-7).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 95 of 109 strata where those resources are known to exist.112 The Staffs environmental analysis appropriately discusses reasonable outcomes, rather than theoretical possibilities such as the discovery of oil and gas at shallower depths.113 Fasken does not show such drilling presents any hazard to the facility (or vice versa) that has not been analyzed in the Safety Evaluation Report or the DEIS. Although Mr. Taylor testifies that the Yates formation occurs between the surface and 3050 [feet] (usually found at 2500 [feet]) he does not state that the Yates formation occurs between the surface and 3,050 feet under the proposed CISF, and he does not opine that oil and gas exist in paying quantities in shallower strata or above the potash.114 Therefore, his affidavit simply raises the possibility that oil extraction could take place several hundred feet closer tobut still thousands of feet belowthe surface. Fasken has not shown what difference it would make to the environmental analysis if oil and gas were extracted from shallower depths.

Fasken also does not show how new information in Holtecs RAI responses supports its proposed contention.115 On the contrary, the RAI responses support and clarify the information in Holtecs environmental report. In RAI 2-8, the Staff asked Holtec to explain why having oil and gas exploration and production activities near the proposed facility would not pose a hazard as Holtec claimed in its safety analysis report.116 The Staff observed that, according to 112 See DEIS at 3-6 to 3-9, 4-4 to 4-5.

113 See Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-05-20, 62 NRC 523, 536 (2005) (NEPA . . . does not call for certainty or precision, but an estimate of anticipated (not unduly speculative) impacts.).

114 Contention 3, Ex. 3, Taylor Affidavit at 4.

115 Contention 3 at 5; see also RAI Part 5, Response Set 2.

116 Letter from Jose Cuadrado, NRC to Kim Manzione, Holtec International (Nov. 14, 2019),

Attach., First Request for Additional Information, Part 5 (Nov. 14, 2019), at 3-4 (citing SAR

§ 2.1.4) (ML19322C260).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 96 of 109 the SAR, two drill islands are located within 400 meters and 800 meters of the proposed site, from which horizontal drilling beneath the site could potentially induce subsidence or sinkholes in the event of casing failure.117 Holtecs response explained why drilling under the site, at the anticipated depth of 3,050 feet, would not create any hazard to the CISF:

Currently, there are no horizontal wells that travel beneath the Site. Any new wells with horizontal legs that travel beneath the site would first be drilled offsite vertically to a depth greater than 3,050 ft, as this is the shallowest oil or gas formation in the vicinity of the site. Once a wellbore starts travelling horizontally, it stays within its own strata (within the production zone). Because of this, horizontal drilling does not create any additional risk of fluid transfer across multiple strata which is the greatest concern for dissolution of salts and land subsidence. If a horizontal well were to collapse at a depth greater than 3,050 ft, there would be no noticeable effect at the ground surface. Therefore, as long as the vertical portion of the wellbore is maintained properly and in accordance with the current regulations (described above), a well with horizontal legs does not create any additional hazards to the Facility when compared with vertical wells.118 Rather than supporting Faskens contention, this RAI response supports the Staffs findings that potential future mineral development does not present a hazard to the facility.

3. Public Comments in Opposition to the Project Fasken does not demonstrate that consideration of the comments on the DEIS showing public opposition to the CISF would result in a materially different result to the proceeding, as required by the reopening standards.119 Fasken argues that various comments highlight the unsuitability of the proposed site and raise technical issues that the NRC must resolve to properly review and analyze the environmental impacts.120 Fasken also argues that the high 117 See id.

118 See RAI Part 5, Response Set 2, Attach. 1 at 25.

119 10 C.F.R. § 2.326(a)(3).

120 See Contention 3 at 3-4.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 97 of 109 volume of public comments in opposition to the project shows that the project violates the concept of consent-based siting, as recommended by the Blue Ribbon Commission for nuclear waste management facilities.121 But there is no legal requirement to follow a consent-based siting process for Holtecs proposed CISF, nor is Holtec required to show public support for the project to get its license. And Fasken did not show how the comments could lead to a materially different result. The DEIS describes the scoping process and public participation activities that the Staff conducted at the outset of its environmental review.122 The receipt of comments is a normal step in the NRCs NEPA process, and the Staff must address all public comments in preparing the Final EIS. We therefore conclude that this portion of Faskens new contention does not meet the reopening standards.

4. Consultation and Independent Investigation Claims In addition, Fasken argues that other public comments show that the NRC did not consult adequately with state and local agencies123 and that it should have consulted with the oil and gas industry.124 Fasken also claims that the Staff did not conduct an independent investigation of the matters discussed in the DEIS but relied too much on the information in the application.125 But Fasken has not pointed to any new information that is materially different from what was available when the Staff issued the DEIS. Fasken could have raised its argument that the Staff should consult with the oil and gas industry when the DEIS was released, if not sooner. Similarly, its claim that the Staff did not independently investigate the 121 Id. at 5 (citing Blue Ribbon Commission on Americas Nuclear Future, Report to the Secretary of Energy (Jan. 2012) (ML120970375)), 18, 28-29, 32.

122 DEIS § 1.4.1.

123 Contention 3 at 4-5.

124 Id. at 33-34.

125 Id. at 28; see 10 C.F.R. § 51.70(b).

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 98 of 109 application material before incorporating it into the DEIS was ripe when the DEIS was released.

Furthermore, the numerous RAIs the Staff posed to Holtec during its review on both environmental and safety matters belies Faskens claim that the Staff uncritically relied on the information in Holtecs application.

Therefore, we conclude that Fasken has not met the reopening standards for the claims it seeks to raise in Contention 3 and we deny its motion.

III. CONCLUSION For the foregoing reasons, we deny Faskens appeal of LBP-20-10, and we deny its motion to reopen the record.

IT IS SO ORDERED.

For the Commission Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 28th day of April 2021.

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 99 of 109 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

)

HOLTEC INTERNATIONAL ) Docket No. 72-1051-ISFSI

)

)

(HI-STORE Consolidated Interim Storage )

Facility) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-21-07) have been served upon the following persons by Electronic Information Exchange (EIE).

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16B33 Mail Stop: O-16B33 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop - O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 Paul S. Ryerson, Chair Sheldon Clark, Esq.

Administrative Judge Joe Gillespie, Esq.

Sara B. Kirkwood, Esq.

Nicholas G. Trikouros Mauri Lemoncelli, Esq.

Administrative Judge Patrick Moulding, Esq.

Carrie Safford, Esq.

Dr. Gary S. Arnold Thomas Steinfeldt, Esq.

Administrative Judge Alana M. Wase, Esq.

Brian Newell, Senior Paralegal E-mail: paul.ryerson@nrc.gov Stacy Schumann, Paralegal nicholas.trikouros@nrc.gov E-mail: sheldon.clark@nrc.gov gary.arnold@nrc.gov joe.gillespie@nrc.gov sara.kirkwood@nrc.gov mauri.lemoncelli@nrc.gov Ian Curry, Law Clerk patrick.moulding@nrc.gov Molly Mattison, Law Clerk carrie.safford@nrc.gov E-mail: ian.curry@nrc.gov thomas.steinfeldt@nrc.gov molly.mattison@nrc.gov alana.wase@nrc.gov brian.newell@nrc.gov stacy.schumann@nrc.gov

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 100 of 109 Holtec International - Docket No. 72-1051-ISFSI COMMISSION MEMORANDUM AND ORDER (CLI-21-07)

Counsel for Holtec International Counsel for Dont Waste Michigan Pillsbury Winthrop Shaw Pittman LLP 316 N. Michigan Street, Suite 520 1200 Seventeenth Street, NW Toledo, OH 43604-5627 Washington, DC 20036 Terry J. Lodge, Esq.

Meghan Hammond, Esq. E-mail: tjlodge50@yahoo.com Anne Leidich, Esq.

Michael Lepre, Esq. Counsel for Sierra Club Jay Silberg, Esq. 4403 1st Avenue SE, Suite 402 Timothy Walsh, Esq. Cedar Rapids, IA 52402 Sidney Fowler, Esq. Wallace L. Taylor, Esq.

E-mail: meghan.hammond@pillsburylaw.com E-mail: wtaylor784@aol.com anne.leidich@pillsburylaw.com michael.lepre@pillsburylaw.com Counsel for NAC International Inc.

jay.silberg@pillsburylaw.com Robert Helfrich, Esq.

timothy.walsh@pillsburylaw.com NAC International Inc.

sidney.fowler@pillsburylaw.com 3930 E Jones Bridge Rd., Ste. 200 Norcross, GA 30092 Counsel for Beyond Nuclear E-mail: rhelfrich@nacintl.com Harmon, Curran, Spielberg & Eisenberg LLP 1725 DeSales Street NW Hogan Lovells LLP Suite 500 555 13th Street NW Washington, DC 20036 Washington, DC 20004 Diane Curran, Esq. Sachin S. Desai, Esq.

E-mail: dcurran@harmoncurran.com Allison E. Hellreich, Esq.

E-mail: sachin.desai@hoganlovells.com Turner Environmental Law Clinic allison.hellreich@hoganlovells.com 1301 Clifton Road Atlanta, GA 30322 Counsel for Fasken Land and Oil and Permian Mindy Goldstein, Esq. Basin Land and Royalty Owners E-mail: magolds@emory.edu Monica R. Perales, Esq.

6101 Holiday Hill Road Counsel for Alliance Environmental Strategies Midland, TX 79707 Law Office of Nancy L. Simmons E-mail: monicap@forl.com 120 Girard Boulevard SE Albuquerque, NM 87106 Kanner & Whiteley, LLC 701 Camp Street Nancy L. Simmons, Esq. New Orleans, LA 70130 E-mail: nlsstaff@swcp.com Allan Kanner, Esq.

Elizabeth Petersen, Esq.

Cynthia St. Amant, Esq Eddy-Lea Energy Alliance Annemieke M. Tennis, Esq.

102 S. Canyon Conlee Whiteley, Esq .

Carlsbad, NM 88220 E-mail: a.kanner@kanner-law.com e.petersen@kanner-law.com John A. Heaton c.stamant@kanner-law.com E-mail: jaheaton1@gmail.com a.tennis@kanner-law.com c.whiteley@kanner-law.com 2

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 101 of 109 Holtec International - Docket No. 72-1051-ISFSI COMMISSION MEMORANDUM AND ORDER (CLI-21-07)

Eddy County, NM* City of Hobbs, NM 101 W. Greene Street 2605 Lovington Highway Carlsbad, NM Hobbs, NM 88242 Rick Rudometkin Garry A. Buie E-mail: rrudometkin@co.eddy.nm.us E-mail: gabuie52@hotmail.com

• Eddy County not served due to no representative for the County assigned at the time of Mr. Rudometkins departure. City of Carlsbad, NM 1024 N. Edward Carlsbad, NM 88220 Lea County, NM 100 N. Main Jason G. Shirley Lovington, NM 88260 E-mail: jgshirley@cityofcarlsbadnm.com Jonathan B. Sena E-mail: jsena@leacounty.net Office of the Secretary of the Commission Dated at Rockville, Maryland, this 28th day of April 2021 3

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 102 of 109 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT FASKEN LAND AND MINERALS, LTD. and PERMIAN BASIN LAND AND ROYALTY OWNERS, Petitioners, 21-1147 Case No. _____________

v.

UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to D.C. Circuit Rules 27(a)(4) and 28(a)(1)(A), undersigned counsel for Petitioners Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners (Fasken or Petitioners), certify as follows:

1. Parties, Intervenors, and Amici Curiae Petitioners are Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners. Respondents are the United States Nuclear Regulatory Commission (NRC or Commission) and the United States of America.

Currently, there are no other parties to the instant case.

2. Rulings Under Review Petitioners seek review of NRC Secretary Order issued on October 29, 2018 (Secretary Order); NRC Memorandum and Order CLI- 20-04, issued on April 1

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 103 of 109 23, 2020 (CLI-20-04); and NRC Memorandum and Order CLI-21-07, issued on April 28, 2021 (CLI-21-07). All respective orders were made in Docket No. 72-1051. The Federal Register published notice of Docket No. 72-1051 on July 16, 2018 at 83 Fed. Reg. 32,919.

3. Related Cases Petitioners case is related to Case Nos. 20-1187 and 21-1048 filed in the United States Court of Appeals for District of Columbia Circuit.

June 25, 2021 Respectfully Submitted, KANNER & WHITELEY, LLC

/s/ Allan Kanner Allan Kanner, Esq.

Annemieke M. Tennis, Esq.

701 Camp Street New Orleans, Louisiana 70130 (504) 524 - 5777 a.kanner@kanner-law.com a.tennis@kanner-law.com Monica Renee Perales, Esq.

6101 Holiday Hill Road Midland, TX 79707 Phone (432)687-1777 monicap@forl.com Counsel for Petitioners 2

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 104 of 109 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT FASKEN LAND AND MINERALS, LTD. and PERMIAN BASIN LAND AND ROYALTY OWNERS, Petitioners, 21-1147 Case No. _____________

v.

UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

PETITIONERS RULE 26.1 DISCLOSURE Pursuant to Fed. R. App. P. 26.1 and D.C. Cir. Rule 26.1, Petitioner Fasken Land and Minerals, Ltd, and Permian Basin Land and Royalty Owners make the following disclosures:

Fasken Land and Minerals, Ltd.

Non-Governmental Corporate Party: Fasken Land and Minerals, Ltd. (Fasken).

Parent Corporations: None.

Publicly Held Company that Owns 10% or More of Partys Stock: None.

Partys General Nature and

Purpose:

Fasken is a limited partnership organized and existing under the laws of Texas. Fasken is a for profit organization engaged in oil and gas extraction and production activities. Fasken is a founding member of the Permian Basin Coalition of Land and Royalty Owners and Operators (PBLRO).

1

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 105 of 109 PBLRO Non-Governmental Corporate Party: The Permian Basin Coalition of Land and Royalty Owners and Operators.

Parent Corporations: None.

Publicly Held Company that Owns 10% or More of Partys Stock: None.

Partys General Nature and

Purpose:

PBLRO is a registered 501(c)(4) non-profit, organized and existing under the laws of the State of Texas and based in Midland, Texas. PBLRO is a public welfare organization dedicated to protecting the interests of the Permian Basin and informing the public about the threats and risks of high-level nuclear waste.

June 25, 2021 Respectfully Submitted, KANNER & WHITELEY, LLC

/s/ Allan Kanner Allan Kanner, Esq.

Annemieke M. Tennis, Esq.

701 Camp Street New Orleans, Louisiana 70130 (504) 524 - 5777 a.kanner@kanner-law.com a.tennis@kanner-law.com Monica Renee Perales, Esq.

6101 Holiday Hill Road Midland, TX 79707 Phone (432)687-1777 monicap@forl.com Counsel for Petitioners 2

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 106 of 109 CERTIFICATE OF SERVICE I, Allan Kanner, hereby certify that on June 25, 2021, I posted Petitioners Petition for Review, Rule 26.1 Disclosure Statement, and Certificate as to Parties, Rulings, and Related Cases on the Courts ECF website. I also sent copies of those documents to the following by first-class mail:

Monty Wilkinson, Acting Atty. Genl. (by registered mail, return receipt requested)

United States Department of Justice Environment and Natural Resources Division 950 Pennsylvania Avenue N.W.

Washington, D.C. 20530-001 Marian Zobler, General Counsel Sheldon Clark, Esq.

Sara B. Kirkwood, Esq.

Mauri Lemoncilli, Esq.

Patrick Moulding, Esq.

Carrie Safford, Esq.

Alana M. Wase, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Annette L. Vietti-Cook, Secretary (by registered mail, return receipt requested)

U.S. Nuclear Regulatory Commission Mail Stop O-16G4 Washington, D.C. 20555-0001 Paul S. Ryerson, Administrative Judge Nicholas G. Trikouros, Administrative Judge Dr. Gary S. Arnold, Administrative U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Board Panel Mail Stop T-3F23 Washington, D.C. 20555-0001 Meghan Hammond, Esq.

Anne Leidich, Esq.

Michael Lepre, Esq.

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USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 107 of 109 Jay Silberg, Esq.

Timothy Walsh, Esq.

Pillsbury Winthrop Shaw Pittman LLP 1200 Seventeenth Street, NW Washington, DC 20036 Paul Bessette, Esq.

Ryan Lighty, Esq.

Timothy Matthews, Esq.

Morgan, Lewis and Bockius, L.L.P 1111 Pennsylvania Ave. N.W.

Washington, D.C. 20004 Terry J. Lodge, Esq.

316 N. Michigan Street, Suite 520 Toledo, OH 43604-5627 Wallace L. Taylor, Esq.

4403 1st Avenue, Suite 402 Cedar Rapids, IA 52404 Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 Mindy Goldstein Turner Environmental Law Clinic Emory University School of Law 1301 Clifton Road Atlanta, GA 30322 Diane DArrigo Nuclear Information and Resource Service (NIRS) 6930 Carroll Avenue Suite 340 Takoma Park, MD 20912 2

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 108 of 109 Karen D. Hadden, Executive Director, Sustainable Energy and Economic Development (SEED) Coalition 605 Carismatic Lane Austin, TX 78748 Robert Helfrich, Esq.

NAC International Inc.

3930 E Jones Bridge Rd., Ste. 200 Norcross, GA 30092 Sachin S. Desai, Esq.

Allison E. Hellreich, Esq.

Hogan Lovells LLP 555 13th Street NW Washington, DC 20004 Chris Hebner, Esq.

City of San Antonio, TX P.O. Box 839966 San Antonio, TX 78283 Garry A. Buie City of Hobbs, NM 2605 Lovington Highway Hobbs, NM 88242 Jonathan B. Sena Lea County, NM 100 N. Main Lovington, NM 88260 Respectfully Submitted,

___/signed electronically by/__

Allan Kanner, Esq.

Annemieke M. Tennis, Esq.

Kanner & Whiteley, LLC 701 Camp Street New Orleans, LA 70130 a.kanner@kanner-law.com a.tennis@kanner-law.com 3

USCA Case #21-1147 Document #1904236 Filed: 06/25/2021 Page 109 of 109 Monica Renee Perales, Esq.

6101 Holiday Hill Road Midland, TX 79707 Phone (432)687-1777 monicap@forl.com Counsel for Petitioners 4