ML21322A339

11-12-21 Petition for Review (DC Cir.)(Case No. 21-1227)

ML21322A339
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	11/12/2021
From:	Taylor W Law Offices of Wallace L. Taylor, Sierra Club
To:	Andrew Averbach NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit
References
1922379, 21-1227, 72-1050-ISFSI, CLI-20-15
Download: ML21322A339 (35)

Text

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 1 of 3 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT SIERRA CLUB, )

)

Petitioner, ) No. 21-1227

)

vs. )

) PETITION FOR REVIEW UNITED STATES NUCLEAR )

REGULATORY COMMISSION and )

UNITED STATES OF AMERICA, )

)

Respondents. )

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), Petitioner Sierra Club hereby amends its petition for review of the following orders entered by the United States Nuclear Regulatory Commission (NRC or Commission): the Commissions Memorandum and Order CLI-20-15, issued on December 17, 2020, attached as Exhibit A; and the issuance of the license by the NRC to build and operate the WCS Consolidated Interim Storage Facility, issued on September 13, 2021, and published in the Federal Register at 86 Fed. Reg. 51,926 (Sept. 17, 2021), attached as Exhibit B.

Sierra Club seeks review of Order CLI-20-15 and the issuance of the license on the grounds that the Commission wrongfully and unlawfully applied the Atomic Energy Act (AEA), 42 U.S.C. §§ 2011 et seq.; the (Page 1 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 2 of 3 Nuclear Waste Policy Act (NWPA), 42 U.S.C. §§ 10101 et seq.; and the Administrative Procedure Act (APA), § 706.

Petitioners further maintain that in Order CLI-20-15, the NRC wrongfully and unlawfully applied the AEA, NWPA, APA and/or the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq when it ruled that Sierra Club failed to plead any contentions that were admissible into the aforementioned proceeding. Specifically, Sierra Club seeks review of the Commissions rulings on the following contentions:

Contention 1: The AEA and NWPA prohibit the licensing of the proposed CIS facility.

Contention 4: Transportation Risks Contention 6: Earthquakes Contention 9: Decommissioning Costs Contention 10: Groundwater Impacts Contention 11: Site Selection Process Contention 13: Wildlife Impacts Contention 14: Impacts of Storage Containers Used Beyond Their Licensing Period Contention 16: High Burnup Fuel Risks (Page 2 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 3 of 3 Therefore, Sierra Club respectfully requests this Court to review, reverse and vacate Order CLI-20-15, order the dismissal of the license application under review, and grant such other and further relief as may be warranted, at law and in equity.

This Petition is timely because it is filed within the 60-day period established by the Hobbs Act, 28 U.S.C. § 2344, for bringing a petition for judicial review of an agency action. Order CLI-20-15 was issued on December 17, 2020. The license was issued on September 13, 2021.

Further, venue is appropriate within the D.C. Circuit pursuant to 28 U.S.C. § 2343.

/s/ Wallace L. Taylor WALLACE L. TAYLOR AT0007714 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com ATTORNEY FOR SIERRA CLUB (Page 3 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 1 of 29 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Kristine L. Svinicki, Chairman Jeff Baran Annie Caputo David A. Wright Christopher T. Hanson In the Matter of INTERIM STORAGE PARTNERS LLC Docket No. 72-1050-ISFSI (WCS Consolidated Interim Storage Facility)

CLI-20-15 MEMORANDUM AND ORDER This order addresses Sierra Clubs appeal of two Board decisions in this matter:

LBP-19-7, which dismissed sixteen of seventeen proposed Sierra Club contentions, and LBP-19-9, which dismissed Sierra Clubs sole admitted contention as moot.1 For the reasons described below, we dismiss as moot Sierra Clubs appeal of Contention 9 and affirm the Board with respect to the other contentions.

I. BACKGROUND This proceeding involves the application of Interim Storage Partners LLC (ISP) for a license to construct and operate a consolidated interim storage facility (CISF) in Andrews County, Texas. ISP is a joint venture between Waste Control Specialists LLC (WCS) and 1 Sierra Clubs Brief in Support of Appeal from Atomic Safety and Licensing Board Rulings Denying Admissibility of Contentions in Licensing Proceeding (Dec. 13, 2019) (Sierra Club Appeal); see LBP-19-7, 90 NRC 31 (2019); LBP-19-9, 90 NRC 181(2019).

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 2 of 29 Orano CIS LLC formed to design, build, and operate the WCS CISF.2 The proposed CISF would be located within the owner-controlled area of the existing WCS site, which currently includes two separate low-level radioactive waste (LLRW) disposal facilities.3 ISP has applied for a forty-year license to store 5,000 metric tons (MTU) of spent nuclear fuel (SNF), mixed oxide fuel, and Greater-than-Class-C LLRW in the proposed CISF.4 ISP anticipates that, if the license is granted, it will subsequently request license amendments for seven expansion phases over the next twenty years and ultimately store up to 40,000 MTU.5 Sierra Club petitioned to intervene and proposed seventeen contentions.6 In LBP-19-7, the Board found that Sierra Club had established standing and had proposed one admissible contention, Contention 13.7 In Contention 13, Sierra Club challenged the Environmental Reports conclusion that the project will have small effects on two species of concern. Because Sierra Club was granted a hearing on one contention, any appeal of the Boards rejection of its other contentions would be considered interlocutory.8 2 WCS Consolidated Interim Storage Facility System Safety Analysis Report, rev. 2 (July 19, 2018), at 1-2 (SAR) (ADAMS accession no. ML18221A408 (package)).

3 Id.

4 WCS Consolidated Interim Spent Fuel Storage Facility Environmental Report, rev. 2 (July 19, 2018), at 1-1 (Environmental Report) (ML18221A405).

5 Id.

6 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Nov. 13, 2018)

(Sierra Club Petition); see also Sierra Clubs Reply to Answers filed by Interim Storage Partners and NRC Staff (Dec. 17, 2018) (Sierra Club Reply).

7 LBP-19-7, 90 NRC at 39, 50, 78-80.

8 See 10 C.F.R. § 2.311(a), (c).

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 3 of 29 ISP appealed the Boards finding that Sierra Club had standing and its admission of Sierra Club Contention 13.9 ISPs appeal with respect to Contention 13 became moot, however, after ISP cured the deficiencies identified in the contention. The Board denied Sierra Clubs motion to amend Contention 13, and the Board dismissed the contention in LBP-19-9.10 At that point, the proceeding ended for Sierra Club, and its appeal of both Board decisions became ripe.11 Sierra Club has appealed the Boards rejection of eight contentions at the outset of the proceeding as well as the Boards denial of its motion to amend Contention 13. The NRC Staff and ISP oppose the appeal.12 9 Interim Storage Partners LLCs Notice of Appeal of LBP-19-7 (Sept. 17, 2019); Brief in Support of Appeal of Interim Storage Partners LLCs Appeal of LBP-19-7 (Sept. 17, 2019) (ISP Appeal);

see 10 C.F.R. § 2.311(d)(1).

10 See LBP-19-9, 90 NRC at 184-85.

11 Shortly after dismissing Sierra Clubs last contention, the Board rejected a proposed late-filed contention introduced by a different petitioner and terminated the proceeding altogether. See LBP-19-11, 90 NRC 258 (2019).

12 NRC Staffs Answer in Opposition to Sierra Clubs Appeal of LBP-19-7 and LBP-19-9 (Jan. 7, 2020) (Staff Answer); Interim Storage Partners LLCs Answer Opposing Sierra Clubs Appeal of LBP-19-7 and LBP-19-9 (Jan. 7, 2020) (ISP Answer). We note that, because the Board granted Sierra Clubs petition to intervene, its appeal comes to us not under 10 C.F.R. § 2.311(c) (as the Board apparently suggested, see LBP-19-9, 90 NRC at 192, but, rather, under 10 C.F.R. § 2.341.

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 4 of 29 II. DISCUSSION We give substantial deference to a Boards ruling on standing, and we will defer to that ruling absent an error of law or abuse of discretion.13 We defer to the Boards ruling on contention admissibility in the absence of clear error, mistake of law, or abuse of discretion.14 A. Sierra Clubs Standing The Board found that Sierra Club had established standing based on the proximity to the proposed CISF site of one of its members, Shirley Henson, who lives about six miles away.15 In her standing declaration, Ms. Henson stated that she lives in Eunice, New Mexico, which is also on a rail line on which SNF potentially will be shipped.16 Ms. Henson asserted that she is concerned about accidents at the storage site or on the rail line potentially releasing radioactive material into the air or groundwater.17 The Board explained in its discussion that standing requires a showing that an intervenor might suffer a concrete and particularized injury that is (1) fairly traceable to the challenged action; (2) likely redressable by a favorable decision; and (3) arguably within the zone of interests protected by the governing statutes including the Atomic Energy Act of 1954, as amended (AEA) and the National Environmental Policy Act (NEPA).18 It further explained that 13 Strata Energy, Inc. (Ross In Situ Uranium Recovery Project), CLI-12-12, 75 NRC 603, 608 (2012); Nuclear Fuel Services, Inc. (Erwin, Tennessee), CLI-04-13, 59 NRC 244, 248 (2004)

(citing International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 252 (2001)).

14 See Crow Butte Resources, Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 26 (2014).

15 LBP-19-7, 90 NRC at 50; see also id. at 47-49.

16 Sierra Club Petition, Attach., Declaration of Shirley Henson (Oct. 23, 2018).

17 Id. at 1 (unnumbered).

18 LBP-19-7, 90 NRC at 47.

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 5 of 29 the NRC recognizes proximity-based presumptions of standing. The Board explained that where an application concerns issuing a license for a nuclear power plant, we presume that persons who reside or have frequent contacts within a fifty-mile radius of a plant can establish standing under the above criteria. 19 Where an application concerns other types of facilities, we use a proximity plus standard, which will find standing on a case-by-case basis, taking into account the nature of the proposed action and the significance of the radioactive source.20 The Board also observed that because the CISF is a passive structure, the distance it takes to be realistically threatened is less than that for a power reactor. But the Board noted that Ms.

Hensons residence six miles from the proposed site was well within the distance for which standing has been found at similar (and much smaller) materials facilities.21 On appeal, ISP argues that the Board did not articulate a factual basis for Sierra Clubs standing.22 ISP asserts that the Board erroneously based standing solely on the large quantity of spent fuel that would be stored at the facility and that quantity alone does not create an obvious potential for offsite consequences.23 It argues that the Boards ruling does not constitute the case-by-case analysis that we use in materials facilities cases. The Staff opposes ISPs appeal and argues that the Boards standing analysis was correct.24 We agree that the Boards standing analysis was consistent with our case law and was reasonable.

19 Id.; see also Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3),

CLI-09-20, 70 NRC 911, 914-18 (2009)).

20 LBP-19-7, 90 NRC at 47-48 (citing Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12, 42 NRC 111, 116-17 (1995)).

21 Id. at 50.

22 ISP Appeal at 5-14.

23 Id. at 9.

24 NRC Staffs Answer in Opposition to Interim Storage Partners LLCs Appeal of LBP-19-7 (Oct.

15, 2019, at 7-11 (Staff Answer to ISP).

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 6 of 29 The Board specifically considered both the nature of the proposed action and the significance of the radioactive source. The nature of the proposed action is to build and operate a facility to hold up to 40,000 tons of nuclear waste, which must be brought to the facility. It is quite unlike the situation in Schofield Barracks, which ISP cites, where we upheld a boards determination that a petitioner had shown no obvious potential for offsite consequences or plausible means by which he could be harmed by the possession-only license that the Army

[was] seeking.25 The petitioner in Schofield Barracks lived nineteen miles away from a site contaminated with low radioactivity depleted uranium (DU) left over from spotting ammunition used on a military gun range.26 There, not only was the radioactive source small but the nature of the proposed action (that is, leaving DU on a controlled-access facility where it was already present) cut against petitioners standing. These circumstances are not present here.

ISP further argues that, because the Board found Sierra Clubs assertions of radiological harm insufficient to support an admissible contention, the Boards uncritical acceptance of Sierra Clubs conclusory standing statements constitutes legal error.27 We disagree. ISP conflates the contention admissibility standards with the standing analysis. Commission case law holds that standing and contention admissibility are separate issues with distinct requirements.28 And whereas assertions of standing are construed in favor of the petitioners, a petitioner has the burden of establishing each element of contention admissibility.29 25 ISP Appeal at 9; U.S. Army Installation Command (Schofield Barracks, Oahu, Hawaii, and Pohakuloa Training Area, Island of Hawaii, Hawaii), CLI-10-20, 72 NRC 185, 189 (2010).

26 See Schofield Barracks, CLI-10-20, 72 NRC at 187.

27 ISP Appeal at 12.

28 Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, Nebraska), CLI-09-9, 69 NRC 331, 338 n.34 (2009).

29 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 215-16 (2003).

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 7 of 29 ISP argues that because there is no emergency planning requirement for away-from-reactor independent spent fuel storage installations (ISFSIs), the Commission determined that there simply is no objective basis for a claim that offsite radiological harm can accrue from facilities such as the WCS CISF.30 The Board rejected ISPs argument that standing should not be presumed unless a petitioner resides within a facilitys emergency planning zone.31 The Board observed that under ISPs reasoning, a petitioner who lived across the street from the proposed CISF would not have standing.32 In its discussion of standing of another petitioner, the Board declined to accept the argument that standing can be based on nothing short of the level of risk necessary to trigger emergency planning requirements.33 Rather, the Board held that a petitioner can base standing on potential long-term effects that have nothing to do with a sudden emergency.34 We find the Boards determination to be reasonable. The Commission has not held that there can be no offsite radiological consequences from an ISFSI. We therefore affirm the Boards finding that Sierra Club has standing.

B. Sierra Clubs Appeal

1. Contention 13: Wildlife Impacts In Contention 13, Sierra Club argued that ISPs Environmental Report provided insufficient factual support for its assertion that the proposed CISF would not affect two species 30 ISP Appeal at 10-11.

31 LBP-19-7, 90 NRC at 49.

32 Id.

33 Id.

34 Id.

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 8 of 29 of concern that may be present at the site.35 Sierra Club argued that although the Environmental Report identified the two species, the Dunes Sagebrush Lizard and the Texas Horned Lizard, it did not provide studies or surveys that could determine whether the species are present or could be adversely impacted by the proposed project.36 The Board admitted the contention because none of the five sources cited in ISPs analysis of these species were publicly available, and therefore no interested member of the public would be able to assess their reliability.37 It admitted the contention solely as a contention of omission insofar as none of the five references in section 3.5.16 of ISPs Environmental Report is either sufficiently described to judge its technical adequacy or made publicly available.38 Thereafter, ISP supplemented its Environmental Report with copies of or ADAMS accession numbers for the materials cited in section 3.5.16 and moved to dismiss Contention 13 as moot.39 Shortly thereafter, Sierra Club moved to amend Contention 13.40 In its amended Contention 13, Sierra Club argued that the sources cited all referred to the adjacent WCS LLRW 35 Sierra Club Petition at 78-79.

36 Id.

37 LBP-19-7, 90 NRC at 78-79.

38 Id. at 80.

39 Letter from Jack Boshoven, ISP, to Document Control Desk, NRC (Sept. 4, 2019)

(ML19248C915) (ISP Letter Providing Supplemental References); Interim Storage Partners LLCs Motion to Dismiss Sierra Clubs Contention 13 as Moot and Terminate this Proceeding (Sept. 9, 2019), at 1.

40 Sierra Club Motion to Amend Contention 13 (Sept. 13, 2019) (Motion to Amend); Amended Contention 13 (Sept. 13, 2019) (Amended Contention 13).

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 9 of 29 site and did not apply directly to the CISF site, and, further, that they were eleven to twenty-two years out of date.41 The Board rejected the amended contention because it did not raise a genuine dispute as to whether the recently available studies adequately support[ed] the factual description of the affected environment in ISPs Environmental Report or as to whether the reports characterization of the projects environmental impact is reasonable.42 The Board found that there were no significant discrepancies between the information in the newly available studies and the Environment Report.43 The Board further found that the Sierra Club had not asserted that the Environmental Reports conclusions were unreasonable.44 The Board pointed out, for example, that ISPs Environmental Report asserts that impacts on the two species would be small. The Board also found factual support for the Environmental Reports conclusions that the CISF site is only a small percentage of the suitable habitat for the affected species in the region and neither of the two species is federally listed as endangered or threatened.45 Further, the Board credited ISPs rationale in the Environmental Report that the two species will not be greatly affected by construction at the site because they either are not present or are highly adaptablemeaning they would be able to move away from construction activities.46 41 Amended Contention 13 at 2-3.

42 LBP-19-9, 90 NRC at 187-88. A majority of the Board rejected arguments that the amended contention was not timely under the factors set forth in 10 C.F.R. § 2.309(c)(1). Id. at 185-87.

43 Id. at 188-90.

44 Id. at 190-91.

45 Id. The Environmental Report acknowledges that the Texas Horned Lizard is state-listed as threatened in Texas. See Environmental Report at 3-34, Tbl. 3.5-1.

46 See LBP-19-9, 90 NRC at 191 (citing Environmental Report at 4-38).

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 10 of 29 Moreover, the Board concluded that proposed facility site was within the survey area of the studies.47 The Board also rejected Sierra Clubs claim that the studies cited in the Environmental Report are outdated. The Board noted that this aspect of the amended contention was untimely, given that the Environmental Report provided the dates of the studies at the outset.48 The Board further stated that Sierra Club cited no factual or legal reason why ISP must use more recent studies.

On appeal, Sierra Club does not identify a clear Board error or an abuse of discretion.

Instead, it reiterates the same arguments it raised before the Board without addressing the Boards reasons for rejecting them. An appeal must point to a Board error; it is not enough for an appellant to simply repeat the arguments it made before the Board and hope for a different result from the Commission.49 We see no reason to disturb the Boards decision, and we affirm its ruling.

2. Contentions Dismissed at the Outset (LBP-19-7)

a. Contention 1: The NWPA Prohibits Licensing the Proposed CISF The focus of Sierra Clubs Contention 1 argument before the Boardand its exclusive argument on appealis that the license cannot be issued because the project might be illegal.50 Specifically, Sierra Club argued before the Board that the license would allow ISP to 47 Id. at 188.

48 Id. at 187 n.39.

49 Florida Power & Light Company (Turkey Point Nuclear Generating Units 6 and 7), CLI-17-12, 86 NRC 215, 219 (2017).

50 Sierra Club Appeal at 8. Sierra Clubs proposed Contention 1 included an argument that neither the AEA nor the Nuclear Waste Policy Act (NWPA) gives the NRC authority to license the facility. Sierra Club Petition at 14, 17, 20-23. The Board rejected Sierra Clubs argument as an impermissible challenge to NRC regulations, which expressly allow such storage. LBP-19-7, 90 NRC at 60; see also 10 C.F.R. § 2.335 (precluding challenges to NRC regulations in (Page 13 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 11 of 29 enter into a contract with the Department of Energy (DOE) for storage of spent fuel, whereas the NWPA prohibits the Department of Energy from taking title to SNF before it has constructed a permanent repository.51 The Board found that the contention did not raise a genuine dispute with the application because the proposed license includes the option of contracting directly with the power plant owners (an option which Sierra Club does not claim would be illegal).52 The Board explained that whether ISP finds that option commercially viable in the future is not an issue material to the license proceeding.53 On appeal, Sierra Club reiterates its argument before the Board that the license cannot be issued because we lack the authority to approve a project that might be illegal. We disagree for the reasons explained by the Board as well as for the reasons we discussed in our recent decisions on appeals of similar contentions.54 We further note that Sierra Clubs argument misconstrues the purpose and effect of the proposed license condition that discusses DOE. The application contemplates that ISP will raise its operating costs through disposal contracts with the owners of the SNFeither power plant operators who currently own the fuel or DOE, which is responsible for the ultimate disposal of SNF. Proposed license condition 23 provides, Prior to commencement of operation, the Licensee shall have an executed contract with the U.S. Department of Energy (DOE) or other individual adjudications without a waiver). Sierra Club appears to have abandoned this specific argument on appeal.

51 Sierra Club Petition at 14-20.

52 Id. at 60.

53 Id.

54 See CLI-20-14, 92 NRC __ (Dec. 17, 2020) (slip op.); Holtec International (HI-STORE Consolidated Interim Storage Facility), CLI-20-4, 91 NRC 167, 173-176 (2020).

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 12 of 29 SNF Title Holder(s) stipulating that the DOE or the other SNF Title Holder(s) is/are responsible for funding operations required for storing the SNF.55 ISP acknowledges that under the NWPA as currently drafted, DOE cannot take title to SNF until after it has commenced operations at a permanent repository and that the CISF license, until granted, would not authorize DOE to do so.56 The license condition, as written, would allow ISP to take advantage of a future change in the law to bid on a DOE disposal contract without first amending its license. Nothing in the proposed condition purports to authorize ISP or the DOE to enter into the contracts. Rather, it expresses a limitation on ISPs operating authority: ISP could not begin operations until it entered a valid contract with either DOE or power plant owners. We therefore affirm the Boards decision dismissing this claim.

b. Contention 4: Transportation Risks Sierra Club argued in proposed Contention 4 that ISPs Environmental Report does not adequately evaluate the risks of transporting SNF from across the country.57 Sierra Club referred to a 2001 report prepared by Matthew Lamb and Dr. Marvin Resnikoff, Worst Case Credible Nuclear Transportation Accidents: Analysis for Rural and Urban Nevada, which was prepared in support of a challenge to the DOEs Yucca Mountain repository application.58 Sierra 55 See Interim Storage Partners, LLC, License Application, rev. 2 (July 19, 2018)

(ML18221A397 (package)) (Application), Attach. A, Proposed License, at 3 (Proposed License).

56 See 42 U.S.C. §§ 10143, 10222(a)(5)(A); Interim Storage Partners LLCs Response to the Atomic Safety and Licensing Boards Questions Regarding the U.S. Department of Energys Authority Under the Nuclear Waste Policy Act (June 28, 2019); see also Tr. at 43-44 (Mr.

Matthews) ([T]he license that . . . we seek here does nothing to authorize DOE to use the facility. Theres nothing that the NRC Staff, this Board, or the Commission can do to change the DOEs authority under the Nuclear Waste Policy Act.).

57 Sierra Club Petition at 31-43.

58 Matthew Lamb, Marvin Resnikoff and Richard Moore, Worst Case Credible Nuclear Transportation Accidents: Analysis for Urban and Rural Nevada (Aug. 2001) (RWMA Report).

Sierra Club did not attach the RWMA Report to its petition but provided a web address, www.state.nv.us/nucwaste/trans//rwma0108.pdf (last visited Feb. 20, 2020).

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 13 of 29 Club provided a declaration of Dr. Resnikoff, who stated that he had read the contention and agreed with it, but the declaration provided no further information.59 Sierra Club also proffered the testimony of Dr. Gordon Thompson, who described various scenarios that he argued could result in canister breach and release of radiation.60 The Board rejected the contention because it failed to raise a genuine dispute with the application. With respect to the impacts of accidents, the Board pointed out that the estimated doses from accidents were contained in section 4.2.8 of the application, and it noted that Sierra Club did not address these estimates or explain why they are inadequate or unreasonable.61 According to the Board, Sierra Club merely proffered an eighteen-year-old report and pointed out that its analysis had much higher accident consequence estimates than those contained in the application.62 However, the Board found that the report was admittedly a worst-case analysis.63 It held that under NEPA, Sierra Club would have to show that ISPs analysis was unreasonable or that Sierra Clubs proposed methodology would be more appropriate.64 The Board found that Sierra Club assumes that ISPs analysis is inadequate solely because it 59 Sierra Club Petition, Attach., Declaration of Dr. Marvin Resnikoff (Nov. 9, 2018). Sierra Clubs appeal claims that Dr. Resnikoff cited recent information about rail fires and expanded traffic of oil tanker cars, but that information is not in Dr. Resnikoffs declaration. See id.; Sierra Club Appeal at 9. Sierra Clubs Petition listed thirteen oil tanker train car derailment accidents that have occurred since 2013 and resulted in fires. Sierra Club Petition at 39-40.

60 Sierra Club Petition, Attach., Declaration of 12 November 2018 by Gordon R. Thompson, at 9-13.

61 LBP-19-7, 90 NRC at 64.

62 Id.

63 Id.

64 Id. (citing NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 323 (2012)).

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 14 of 29 produced estimated doses that are smaller than the worst case results in [the report Sierra Club provided].65 On appeal, Sierra Club does not demonstrate any Board error. Its only mention of the Boards ruling is to claim that the Board erred in holding that Sierra Club had failed to dispute the information in the Environmental Reports section 4.2.8, when Sierra Club was disputing the adequacy of section 4.2.6.66 But the Board pointed out that impacts from transportation accidentsthe subject of Sierra Clubs contentionwere discussed in section 4.2.8. And the Board was correct that simply presenting an alternative analysis is not enough to raise an admissible contention unless the petitioner also shows that the applications analysis is inadequate or unreasonable.67 The remainder of Sierra Clubs argument on appeal contains a brief summary of the claims it made in Contention 4. But an appeal cannot simply repeat the same arguments it raised before the Board; it must show that the Boards ruling was in error.68 We see no Board error, and we affirm its ruling with respect to Contention 4.

c. Contention 6: Earthquakes Sierra Club argued in Contention 6 that the applications discussion of the potential impacts from earthquakesparticularly induced earthquakes from oil and gas activitieswas inadequate.69 65 Id.

66 Sierra Club Appeal at 10.

67 See Seabrook, CLI-12-5, 75 NRC at 323.

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

69 Sierra Club Petition at 49-53.

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 15 of 29 The Board considered the contention as both an environmental and safety challenge.

The Board found that the contention failed to dispute the relevant portions of the Environmental Report, which discusses seismicity, including induced seismicity from oil and gas activities.70 The Board observed that the studies on which Sierra Club relied to support its contention simply reviewed historic instances of induced seismicity, which the application acknowledged.71 The Board further rejected the contention as a safety contention because Sierra Club did not dispute the material in SAR Attachment D, which analyzes the ground motions of likely earthquakes.72 Attachment D contains non-public, proprietary information, to which Sierra Club did not seek access. The Board rejected Sierra Clubs claim that the analysis it had not seen was inadequate.73 On appeal, Sierra Club argues that it presented evidence of seismic activity in an area that was not addressed by the Environmental Report.74 However, the Environmental Report discusses induced seismicity in section 3.3.3 and concludes that there is low risk to the facility.

We see no clear error in the Boards finding that, as an environmental contention, this contention lacked factual support and failed to dispute the application.

Further, we are not persuaded by Sierra Clubs argument in support of the safety aspects of its contention that the SAR is inadequate. Although Sierra Club readily acknowledges that it never saw ISPs seismic analysisbecause it never sought access to the analysisit argues that there is no indication . . . that ISP adequately evaluated the earthquake 70 LBP-19-7, 90 NRC at 68-69 (citing Environmental Report §§ 3.3.2, 3.3.3, 3.3.4).

71 Id. at 69.

72 Id.

73 Id.

74 Sierra Club Appeal at 11.

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 16 of 29 potential as required by 10 C.F.R. § 72.103(f)(1).75 Sierra Club cannot reasonably argue that it can proffer an admissible contention disputing portions of a license application that it has not reviewed. Therefore, Sierra Club has not demonstrated Board error, and we affirm the Boards ruling with respect to Contention 6.

d. Contention 9: Decommissioning Costs In Contention 9, Sierra Club argued that the applicant had not provided reasonable assurance that it will have the necessary funds for decommissioning when the time comes, as required by 10 C.F.R. § 72.30(e).76 Sierra Club also challenged ISPs decommissioning cost estimates and ISPs request for an exemption from decommissioning cost financial assurance requirements.77 The Board found that Sierra Clubs challenge to the cost estimate did not raise a genuine dispute with the application because the contention did not explain what was wrong with the cost estimate ISP provided.78 The Board also found the portion of the contention referring to the exemption request to be moot because ISP withdrew the request after the petitions to intervene were filed.79 Sierra Club does not raise either of these claims on appeal, but it reasserts its claim that ISP failed to provide a financial assurance method that complies with NRC regulations.80 75 Id.

76 Sierra Club Petition at 60-63; see LBP-19-7, 90 NRC at 71.

77 Sierra Club Petition at 60-62.

78 LBP-19-7, 90 NRC at 71.

79 Id.

80 Sierra Club Appeal at 12.

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 17 of 29 Our regulations require a license application to provide financial assurance for decommissioning through (1) prepayment; (2) a surety, insurance, or other guarantee method; or (3) an external sinking fund.81 Sierra Club argued in Contention 9 that ISP could not qualify for an exemption from § 72.30(e).82 Therefore, it argued that there was no assurance that these costs would be funded and that ISP had completely failed to comply with 10 C.F.R. § 72.30.83 However, on November 5, 2019, the Staff sent ISP a request for additional information (RAI) seeking clarity concerning how ISP will assure decommissioning funding in compliance with the regulation.84 On April 7, 2020, ISP amended its Application to provide that:

ISP will use a surety bond combined with a conformity external sinking fund as authorized by 10 CFR 72.30(e)(3). Payments from storage operations will be deposited into the external sinking fund as waste is received. A surety bond will be used to assure the difference in the decommissioning cost estimate and the value of the sinking fund until the sinking fund is fully funded. Proposed License Condition 24 ensures that ISP will have funding in place before [waste] is received on site.85 The revised language renders moot Sierra Clubs claim that ISPs application does not provide adequate decommissioning funding assurance as required in 10 C.F.R. § 72.30(e). We therefore dismiss Sierra Clubs appeal with respect to Contention 9.

81 See 10 C.F.R. § 72.30(e).

82 Sierra Club Petition at 62.

83 Id. at 62-63.

84 See Letter from John-Chau Nguyen, NRC, to Jeffrey Isakson, ISP (Nov. 5, 2019), Encl. at 2 (ML19309E913).

85 See Letter from Jeffery Isakson, ISP, to NRC Document Control Desk (Apr. 7, 2020)

(ML20105A133 (package)); Encl. 3, RAIs and Responses, at 27; Encl. 5, LA Changed Pages, at 1-10.

(Page 20 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 18 of 29

e. Contention 10: Groundwater Impacts In Contention 10, Sierra Club argued that the application does not accurately and adequately evaluate and consider impacts to the Ogallala aquifer from the proposed CISF.86 Sierra Club argued that the proposed CISF site is directly above the Ogallala Aquifer and the application erroneously states that it is not.87 It offered testimony from a geologist, Dr. Patricia Bobeck, that the Environmental Report did not adequately define the geologic units at the site.88 It further argued that various factors could cause a release of contamination into groundwater.

In particular, Sierra Club argued that casks could rupture because high burnup fuel would cause damage and weaken the fuel cladding. 89 The Board dismissed this contention because Sierra Club had not presented a material dispute with the application. The Board stated that [a]ny disagreement concerning the location of the Ogallala Aquifer or the water saturation point at the CISF site is only material to the findings the NRC must make if it is possible for groundwater to be contaminated from a cracked or ruptured cask.90 Moreover, the Board found that Sierra Clubs claims regarding the storage of high burnup fuel and its claims that seismic events in the area would be sufficient to crack a canister were essentially challenges to the certified design of the licensed canisters.91 The 86 Sierra Club Petition at 63.

87 Id.

88 Id. at 65; see also id., Attach., Declaration of Dr. Patricia Bobeck, Geologic Review of Interim Storage Partners LLC WCS Consolidated Interim Storage Facility Environmental Report (Oct.

25, 2018), at 3-6.

89 Sierra Club Petition at 65-67. Sierra Club also argued that the CISF site is prone to earthquakes and could cause the containers to crack, allowing radioactive leakage that . . .

would find its way into the groundwater. Id. at 67.

90 LBP-19-7, 90 NRC at 73.

91 Id. at 74.

(Page 21 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 19 of 29 Board held that such claims pose an impermissible challenge to NRC regulations and are therefore outside the scope of the proceeding.92 On appeal, Sierra Club repeats the claims it made before the Board without asserting that the Board erred. Sierra Club reiterates arguments that the Environmental Report and SAR fail to acknowledge that the site is above the Ogallala aquifer but does not address the Boards explanation that the depth of the water table is not relevant absent a showing that contamination could plausibly get into the groundwater.93 In addition, we agree with the Board that Sierra Clubs claims that high burnup fuel could rupture the licensed casks was an impermissible challenge to the certified design of the casks. We therefore affirm the Board with respect to Contention 10.

f. Contention 11: Site-Selection Process In Contention 11, Sierra Club challenged ISPs site-selection process and argued that the fifteen site-selection criteria ISP used bear little or no relationship to any criteria in the statutes or regulations.94 Sierra Club argued that many of the criteria used have nothing to do with the environmental impacts of reasonable alternatives.95 In its Environmental Report, ISP explained that it focused on a seven-state region of interest that included sparsely-populated, arid areas where there is support for such a facility.96 The Environmental Report included analyses of four sitestwo in Texas and two in New 92 Id.

93 Sierra Club Appeal at 12-13.

94 Sierra Club Petition at 68.

95 Id. at 71.

96 Environmental Report § 2.3.1, at 2-10.

(Page 22 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 20 of 29 Mexicousing fifteen criteria.97 The report further broke down the fifteen general criteria into subcategories and included an explanation of why the criteria were important to ISP in selecting a site.98 ISPs siting criterion 11 provided (among other things) that candidate sites should have no existing contamination, should not be located within the 500-year floodplain, should have a low probability of containing archeological/cultural resources, and should have a low probability of disproportionate, adverse impacts to low-income or minority communities.99 The Board found that ISPs site selection criteria need only be reasonable. It pointed out that there are no site selection criteria described in 10 C.F.R. Part 51 and that the NRC accords substantial weight to the preferences of the applicant and/or sponsor in the siting and design of the project so long as the application is not [so] artificially narrow as to circumvent the requirement that reasonable alternatives must be considered.100 The Board concluded that Sierra Club had not shown that ISPs site selection process contravened NEPA or any other statutory or regulatory requirement.101 On appeal, Sierra Club does not show the Board erred. It reasserts three arguments against ISPs siting criteria, but it does not show that any of ISPs criteria are either unreasonable or contrary to law. First, Sierra Club disputes ISPs statement that the proposed CISF site has not been contaminated by the neighboring WCS LLRW site and calls that claim 97 Id. §§ 2.3.4 to 2.3.7.

98 Id. § 2.3.3.

99 See id. § 2.3.2, at 2-16 to 2-17.

100 LBP-19-7, 90 NRC at 75-76 (quoting Hydro Resources, Inc. (P. O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 55 (2001), and citing Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-90-8, 32 NRC 201, 206 (1991)).

101 Id. at 76.

(Page 23 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 21 of 29 both unsupported and irrelevant.102 But as ISP argued before the Board, its assessment is well-founded because the WCS LLRW has been under a monitoring plan to detect radiological or hazardous releases since it was licensed in 1997.103 And Sierra Club provides no reason why a lack of existing contamination is an unreasonable factor to consider in choosing a site. Next, Sierra Club argues that ISP should not have used a location outside the 500-year floodplain as a siting criteria.104 Sierra Club argued before the Board that ISP should have evaluated the impacts of the proposed facility being in the 100-year floodplain as required by 10 C.F.R.

§ 72.90(f).105 But as the application states, the site is neither in the 100-year flood plain nor in the 500-year floodplain.106 In any case, Sierra Club has not shown why low flooding risk would be an inappropriate siting criterion.

Finally, Sierra Club argues that ISPs environmental justice and archeological analyses of the selected site were inadequate.107 But these claims do not address whether it was inappropriate or contrary to law for ISP to consider in its site selection criteria whether the candidate sites contain archeological resources or present environmental justice concerns.

Therefore, the arguments do not support proposed Contention 11 and we affirm the Boards decision to dismiss it.108 102 Sierra Club Appeal at 17; see Sierra Club Petition at 71-72.

103 See ISP Opposition to Hearing Request at 95 (citing Environmental Report at 2-23).

104 Sierra Club Appeal at 17; see Sierra Club Petition at 72 (citing 10 C.F.R. §§ 72.3, 72.90(f)).

105 Sierra Club Petition at 72.

106 See Environmental Report at 3-20; SAR, ch. 2, Attach. B at 77.

107 Sierra Club Appeal at 17-18, see also Sierra Club Petition at 73-75.

108 We observe that Sierra Club also proposed a contention on environmental justice, which the Board rejected and which Sierra Club does not appeal. See LBP-19-7, 90 NRC at 82-84.

(Page 24 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 22 of 29

g. Contention 14: Impacts of Storage Containers Used Beyond Their Licensing Period Sierra Club argued in proposed Contention 14 that ISP should evaluate the environmental effects of the SNF containers being used beyond their licensing period. Sierra Club argued that the canisters that will hold the SNF during transportation and storage are only licensed for twenty years, whereas the proposed CISF will be licensed for forty years, and ISP acknowledges that it expects to extend its license for a total of 100 years.109 Sierra Club also claimed that ISP has no plan for handling canisters that may arrive at the CISF damaged or leaking or that may develop a crack during storage.110 The Board dismissed the contention as factually unsupported and raising matters outside the scope of the proceeding. First, it cited our Private Fuel Storage decision, in which we noted that the NRC has determined, through several safety evaluations for waste packages, that accidental canister breach during shipping or storage was not a credible scenario.111 Next, it observed that the NRC has approved and issued certificates of compliance for all the canisters that are proposed for use at the CISF and that the certificates of compliance have been codified through the rulemaking process.112 Therefore, the Board held that any challenge to the certificates of compliance are outside the scope of this proceeding.113 Similarly, it held that challenges to the safety of the transportation of spent fuel canisters would be an 109 Sierra Club Petition at 79-81.

110 Id. at 81-83.

111 See LBP-19-7, 90 NRC at 80-81 (citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 136-37 (2004)). In Private Fuel Storage, we held that to challenge the factual determinations on which a regulation rests in the context of NEPA, a petitioner would have to present specific, fact-based claims to the contrary, not mere allegations. CLI-04-22, 60 NRC at 134.

112 LBP-19-7, 90 NRC at 81.

113 Id.

(Page 25 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 23 of 29 impermissible challenge to NRCs Part 71 regulations. Finally, it ruled that Sierra Clubs challenge to the lack of a dry transfer system was an impermissible challenge to the Continued Storage Rule and the Continued Storage Generic Environmental Impact Statement (GEIS).114 On appeal, Sierra Club focuses on a single argument: that the application is based on the fallacy that renewal of the certificates of compliance for the SNF containers will be automatic and that the Board did not address this issue.115 Sierra Clubs argument assumes that the certificates of compliance define the boundary of the useful life of the containers and that ISP will be unable to renew the certificates of compliance. However, our regulations allow the licensee to apply to renew a certificate if the certificate holder does not seek renewal.116 Any renewal application will necessarily require a safety analysis report that includes design basis information, a description of the aging management program for issues related to structures, systems and components important to safety, as well as time-limited aging analysis that demonstrates that those same systems will continue to perform their intended function for the requested period.117 Moreover, the aging management of the canisters is addressed in the SAR, which Sierra Club did not address in its contention as originally stated or as phrased on 114 Id.; see 10 C.F.R. § 50.23 (Continued Storage Rule); Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, NUREG-2157, vol. 1, at 5-52 (ML14196A105) (Continued Storage GEIS).

115 Sierra Club Appeal at 21. ISP argues that this argument is new on appeal. ISP Answer at

22. If the argument were truly new on appeal, that would be sufficient grounds for us to reject it.

USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 433, 458 (2006). But we see a connection between the original contentions apparent assumption that the containers would begin to decay after the original certificates expire and its current argument that there is no guarantee that the certificates will be renewed.

116 See 10 C.F.R. § 72.240(a).

117See id. § 72.240(c).

(Page 26 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 24 of 29 appeal.118 Specifically, the SAR discusses stress corrosion cracking as a factor considered in selecting material for the storage system, as well as surveillance activities and routine maintenance of the casks for identification and resolution of any issues.119 Sierra Club establishes no Board error and we therefore affirm the Boards decision to dismiss Contention 14.

h. Contention 16: High Burnup Fuel Risks Sierra Club argued in its proposed Contention 16 that the Environmental Report and the SAR failed to account for the effects of storing high-burnup fuel at the proposed CISF.120 Sierra Club argued that high-burnup fuel causes the cladding of the fuel rods to become thinner and more brittle, which increases the risk of release of radioactive material. It also claimed that the SAR misleadingly stated that no high-burnup fuel would be transported and stored at the CISF, which is unlikely because most nuclear fuel used in this country since 1999and all of it since 2012has been high-burnup fuel.121 In a reply brief, Sierra Club challenged the Environmental Reports dose modeling using the RADTRAN computer model and argued that the model does not indicate whether it accounted for high-burnup fuel.122 118 See, e.g., SAR § 5.1.3.2 (Surveillance of the Storage Overpacks); id. § 5.1.3.5 (Maintenance Operations).

119 See, e.g., SAR at A.3-9 (NUHOMS-MP187 Cask System), B.3-9 (NUHOMS Horizontal Modular Storage System), C.3-9 (NUHOMS 61BT System), D.3-9 (NUHOMS-61BTH Type 1 System), E.3-9 (La Crosse MPC storage system); see also SAR at 5-5 (Section 5.1.3.2, Surveillance of the Storage Overpacks); 5-5 to 5-6 (Section 5.1.3.5, Maintenance Operation);

5-7 (Section 5.1.5.5, Maintenance Techniques).

120 Sierra Club Petition at 91-95.

121 Id. at 92.

122 Sierra Club Reply at 44.

(Page 27 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 25 of 29 The Board found that the issues Sierra Club raised were out of scope and failed to challenge the information in the application.123 The Board found that the challenge to the safety of transporting high-burnup fuel to be an out of scope challenge to our Part 71 regulations and Department of Transportation regulations.124 To the extent that the contention challenged the safety of storing high-burnup fuel, the Board found that the application states that only NRC-approved storage systems will be used at the CISF and the SAR incorporates the technical specifications for those designs.125 Therefore, Sierra Clubs claim that the certified storage systems would not be suitable to store fuel as allowed by their design certifications was barred by 10 C.F.R. § 72.46(e).126 The Board also found that the contention failed to challenge the Environmental Report, which discusses both the effects of transportation and storage of high-burnup fuel.127 With respect to the probability that the CISF will store high-burnup fuel, the Board observed that Sierra Club misconstrued the application.128 The application states that the facility will not accept uncanned high-burnup fuel, not that it will not accept any high-burnup fuel.129 The Board 123 LBP-19-7, 90 NRC at 85-87.

124 Id. at 85-86.

125 Id. at 86 (citing SAR at 1-6 to 1-10).

126 Id. Section 72.46(e) provides that, to the extent that an application under Part 72 incorporates by reference information on the design of a spent fuel storage cask for which NRC approval . . . has been issued . . . , the scope of and public hearing held to consider the application will not include any cask design issues.

127 LBP-19-7, 90 NRC at 86-87.

128 Id.

129 Id. at 86 (citing Proposed License at unnumbered A-3, ¶ 9). Canning provides an alternative means for confinement of fuel material and replaces the function of cladding.

The purpose of canning is to confine gross fuel particles to a known, subcritical volume during off-normal and accident conditions, and to facilitate handling and ready retrieval of (Page 28 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 26 of 29 also rejected Sierra Clubs challenge to ISPs dose modeling because that model encompasses spent fuel of any burnup level.130 Further, Sierra Clubs appeal repeats its arguments that the Environmental Report does not discuss the impacts of transporting high-burnup fuel. It also argues, without identifying any factual or expert support, that transportation of high-burnup fuel would have different doses to the public, transportation modes, and treatment and packaging procedures than other SNF.131 This challenge is unsupported, and we dismiss it.

Finally, Sierra Club asserts that it does not challenge the certified design of the casks, but rather the storage of the radioactive waste with respect to the design of the CIS facility.132 However, Sierra Clubs contention does not identify a characteristic of the CISF facilitys design that would make otherwise safe storage systems unsafe.

We find no error in the Boards dismissal of this contention, and we affirm its ruling.

III. CONCLUSION For the reasons described above, we dismiss as moot Sierra Clubs appeal of Contention 9 and affirm the Board with respect to the other contentions.

IT IS SO ORDERED.

contents. Canning of damaged fuel also provides geometry control of the SNF to avoid relocation, concentration, or both, of radiation sources that may create problems for radiation shielding.

Standard Review Plan for Spent Fuel Dry Storage Systems and Facilities (Draft Report for Comment), NUREG-2215 (Nov. 2017), at 1-8.

130 LBP-19-7, 90 NRC at 86.

131 Sierra Club Appeal at 21-22.

132 Id. at 22.

(Page 29 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 27 of 29 For the Commission Digitally signed by Annette L. Annette L. Vietti-Cook Vietti-Cook Date: 2020.12.17 15:37:05 -05'00' Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 17th day of December 2020 (Page 30 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 28 of 29 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

INTERIM STORAGE PARTNERS LLC ) Docket No. 72-1050-ISFSI

)

(WCS Consolidated Interim Storage Facility) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-20-15) have been served upon the following persons by the Electronic Information Exchange:

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O16-B33 Mail Stop: O16-B33 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov Hearing Docket E-mail: Hearing.Docket@nrc.gov U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Office of the General Counsel Washington, DC 20555-0001 Mail Stop - O-14A44 Washington, DC 20555-0001 Paul S. Ryerson, Chair Joe Gillespie, Esq.

Administrative Judge Sara Kirkwood, Esq.

E-mail: paul.ryerson@nrc.gov Mauri Lemoncelli, Esq.

Patrick Moulding, Esq.

Nicholas G. Trikouros Kevin Roach, Esq.

Administrative Judge Carrie Safford, Esq.

E-mail: nicholas.trikouros@nrc.gov Thomas Steinfeldt Alana Wase, Esq.

Dr. Gary S. Arnold Brian Newell, Senior Paralegal Administrative Judge E-mail: joe.gillespie@nrc.gov E-mail: gary.arnold@nrc.gov sara.kirkwood@nrc.gov mauri.lemoncelli@nrc.gov Ian Curry, Law Clerk patrick.moulding@nrc.gov Stephanie Fishman, Law Clerk kevin.roach@nrc.gov Molly Mattison, Law Clerk carrie.safford@nrc.gov E-mail: ian.curry@nrc.gov thomas.steinfeldt@nrc.gov stephanie.fishman@nrc.gov alana.wase@nrc.gov molly.mattison@nrc.gov brian.newell@nrc.gov (Page 31 of Total)

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 29 of 29 WCS CISF - Docket No. 72-1050-ISFSI COMMISSION MEMORANDUM AND ORDER (CLI-20-15)

Counsel for Beyond Nuclear Sustainable Energy and Economic Development (SEED) Coalition Diane Curran, Esq. Karen D. Hadden Harmon, Curran, Spielberg and Eisenberg Executive Director, 1725 DeSales Street NW, Suite 500 605 Carismatic Lane Washington, DC 20036 Austin, TX 78748 E-mail: dcurran@harmoncurran.com E-mail: karendhadden@gmail.com Mindy Goldstein, Esq.

Emory University School of Law Counsel for Interim Storage Partners LLC Turner Environmental Law Clinic Morgan, Lewis & Bockius LLP 1301 Clifton Road 1111 Pennsylvania Avenue NW Atlanta, GA 30322 Washington, DC 20004 E-mail: magolds@emory.edu Grant Eskelsen, Esq.

Timothy Matthews, Esq.

Nuclear Information and Ryan Lighty, Esq.

Resource Service (NIRS) Paul Bessette, Esq.

Diane DArrigo E-mail: grant.eskelsen@morganlewis.com 6930 Carroll Avenue timothy.matthews@morganlewis.com Suite 340 ryan.lighty@morganlewis.com Takoma Park, MD 20912 paul.bessette@morganlewis.com Email: dianed@nirs.org Chris Hebner, Esq. Counsel for Fasken Land and Oil and City of San Antonio, TX Permian Basin Land and Royalty Owners P.O. Box 839966 San Antonio, TX 78283 Monica R. Perales, Esq.

E-mail: chris.hebner@sanantonio.gov 6101 Holiday Hill Road Midland, TX 79707 E-mail: monicap@forl.com Counsel for Sierra Club Wallace Taylor Kanner & Whiteley, LLC 4403 1st Avenue S.E. 701 Camp Street Suite 402 New Orleans, LA 70130 Cedar Rapids, IA 52402 Allan Kanner, Esq.

E-mail: wtaylorlaw@aol.com Elizabeth Petersen, Esq.

Cynthia St. Amant, Esq.

Annemieke M. Tennis, Esq.

Counsel for Dont Waste Michigan, et al Conlee Whiteley, Esq .

Terry Lodge, Esq. E-mail: a.kanner@kanner-law.com 316 N. Michigan Street e.petersen@kanner-law.com Suite 520 c.stamant@kanner-law.com Toledo, OH 43604 a.tennis@kanner-law.com E-mail: tjlodge50@yahoo.com c.whiteley@kanner-law.com Herald M. Digitally signed by Herald M.

Speiser Dated at Rockville, Maryland, Speiser Date: 2020.12.17 15:42:16 -05'00' this 17th day of December 2020 _____________________________________

Office of the Secretary of the Commission (Page 32 of Total) 2

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 1 of 3 51926 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Notices comments from private citizens and by webcast at the Web addresshttps:// Secretary, Washington, DC 20555, at industry organizations. The NRC staffs video.nrc.gov/. 301-415-1969, or by email at evaluation and resolution of the public Tyesha.Bush@nrc.gov or Betty.Thweatt@

Friday, October 8, 2021 comments are documented in ADAMS nrc.gov.

under Accession No. ML21211A578. 10:00 a.m. Meeting with the Advisory The NRC is holding the meetings Committee on Reactor Safeguards under the authority of the Government III. Congressional Review Act (Public Meeting); (Contact: Larry in the Sunshine Act, 5 U.S.C. 552b.

NUREG-1021, Revision 12, is a rule Burkhart: 301-287-3775) Dated: September 15, 2021.

as defined in the Congressional Review Additional Information: Due to For the Nuclear Regulatory Commission.

Act (5 U.S.C. 801-808). However, the COVID-19, there will be no physical Wesley W. Held, Office of Management and Budget has public attendance. The public is invited not found it to be a major rule as Policy Coordinator, Office of the Secretary.

to attend the Commissions meeting live defined in the Congressional Review [FR Doc. 2021-20296 Filed 9-15-21; 4:15 pm]

by webcast at the Web addresshttps://

Act. video.nrc.gov/. BILLING CODE 7590-01-P Dated: September 14, 2021. Week of October 11, 2021Tentative For the Nuclear Regulatory Commission. NUCLEAR REGULATORY There are no meetings scheduled for Christian B. Cowdrey, COMMISSION the week of October 11, 2021.

Chief, Operator Licensing and Human Factors Week of October 18, 2021Tentative [Docket No. 72-1050; NRC-2016-0231]

Branch, Division of Reactor Oversight, Office of Nuclear Reactor Regulation.

There are no meetings scheduled for Interim Storage Partners, LLC; WCS

[FR Doc. 2021-20171 Filed 9-16-21; 8:45 am] the week of October 18, 2021. Consolidated Interim Storage Facility; BILLING CODE 7590-01-P Issuance of Materials License and Week of October 25, 2021Tentative Record of Decision Thursday, October 28, 2021 NUCLEAR REGULATORY AGENCY: Nuclear Regulatory COMMISSION 10:00 a.m. Meeting with the Commission.

Organization of Agreement States ACTION: License and record of decision;

[NRC-2021-0001] and the Conference of Radiation issuance.

Control Program Directors (Public Sunshine Act Meetings Meeting); (Contact: Celimar

SUMMARY

The U.S. Nuclear Regulatory TIME AND DATE: Weeks of September 20, Valentin-Rodriguez: 301-415-7124) Commission (NRC) has issued Materials 27, October 4, 11, 18, 25, 2021. Additional Information: Due to License No. SNM-2515 to Interim COVID-19, there will be no physical Storage Partners, LLC (ISP) to construct PLACE: Commissioners Conference public attendance. The public is invited and operate the WCS Consolidated Room, 11555 Rockville Pike, Rockville, Interim Storage Facility (CISF) as to attend the Commissions meeting live Maryland. proposed in its license application, as by webcast at the Web addresshttps://

STATUS: Public. video.nrc.gov/. amended, and to receive, possess, store, MATTERS TO BE CONSIDERED: CONTACT PERSON FOR MORE INFORMATION: and transfer spent nuclear fuel and For more information or to verify the Greater-than-Class-C radioactive waste Week of September 20, 2021 status of meetings, contact Wesley Held at the WCS CISF in Andrews County, There are no meetings scheduled for at 301-287-3591 or via email at Texas. ISP will be required to operate the week of September 20, 2021. Wesley.Held@nrc.gov. The schedule for under the conditions listed in Materials Week of September 27, 2021Tentative Commission meetings is subject to License No. SNM-2515. The NRC staff change on short notice. has published a record of decision Thursday, September 30, 2021 The NRC Commission Meeting (ROD) that supports the NRCs decision 9:00 a.m. Strategic Programmatic Schedule can be found on the internet to approve ISPs license application for Overview of the Operating Reactors at: https://www.nrc.gov/public-involve/ the WCS CISF and to issue the license.

and New Reactors Business Lines public-meetings/schedule.html. DATES: September 17, 2021.

(Public Meeting); (Contact: Candace The NRC provides reasonable ADDRESSES: Please refer to Docket ID De Messieres: 301-415-8395) accommodation to individuals with NRC-2016-0231 when contacting the Additional Information: Due to disabilities where appropriate. If you NRC about the availability of COVID-19, there will be no physical need a reasonable accommodation to information regarding this document.

public attendance. The public is invited participate in these public meetings or You may access publicly available to attend the Commissions meeting live need this meeting notice or the information related to this document by webcast at the Web addresshttps:// transcript or other information from the using any of the following methods:

video.nrc.gov/. public meetings in another format (e.g.,

• Federal Rulemaking Website: Go to braille, large print), please notify Anne https://www.regulations.gov and search Week of October 4, 2021Tentative Silk, NRC Disability Program Specialist, for Docket ID NRC-2016-0231. Address Tuesday, October 5, 2021 at 301-287-0745, by videophone at questions about Docket IDs in 240-428-3217, or by email at Regulations.gov to Stacy Schumann; 10:00 a.m. Meeting with the Advisory Anne.Silk@nrc.gov. Determinations on telephone: 301-415-0624; email:

Committee on the Medical Uses of requests for reasonable accommodation Stacy.Schumann@nrc.gov. For technical Isotopes (Public Meeting); (Contact: will be made on a case-by-case basis. questions, contact the individual listed Don Lowman: 301-415-5452) Members of the public may request to in the FOR FURTHER INFORMATION Additional Information: Due to receive this information electronically. CONTACT section of this document.

COVID-19, there will be no physical If you would like to be added to the

• NRCs Agencywide Documents public attendance. The public is invited distribution, please contact the Nuclear Access and Management System to attend the Commissions meeting live Regulatory Commission, Office of the (ADAMS): You may access publicly (Page 33 of Total)

VerDate Sep<11>2014 16:19 Sep 16, 2021 Jkt 253001 PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 E:\FR\FM\17SEN1.SGM 17SEN1

USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 2 of 3 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Notices 51927 available documents online in the 51.102 paragraph (a) of title 10 of the safety evaluation report, final EIS, and ADAMS Public Documents collection at Code of Federal Regulations (10 CFR), ROD.

https://www.nrc.gov/reading-rm/ which requires that a Commission ISPs request for a materials license adams.html. To begin the search, select decision on any action for which a final was previously noticed in the Federal Begin Web-based ADAMS Search. For environmental impact statement (EIS) Register on November 14, 2016 (81 FR problems with ADAMS, please contact has been prepared be accompanied by 79531). A notice of docketing with an the NRCs Public Document Room (PDR) or include a concise public ROD. As opportunity to request a hearing and to reference staff at 1-800-397-4209, 301- discussed in the ROD and the final EIS petition for leave to intervene was 415-4737, or by email to pdr.resource@ for ISPs license application for a CISF published in the Federal Register on nrc.gov. The ADAMS accession number for spent nuclear fuel in Andrews January 30, 2017 (82 FR 8773). Four for each document referenced (if it is County, Texas (ADAMS Accession No.

groups of petitioners filed petitions to available in ADAMS) is provided the ML21209A955), the NRC staff intervene. An Atomic Safety and first time that it is mentioned in this considered a range of reasonable document. In addition, for the alternatives that included the No-Action Licensing Board considered petitions convenience of the reader, the ADAMS alternative, as required by the National and admitted one contention. The Board accession numbers are provided in a Environmental Policy Act of 1969, as subsequently dismissed the contention table in the section of this document amended; storage at a government- as moot after ISP supplemented its entitled, SUPPLEMENTARY INFORMATION. owned CISF; alternative design and application with information that the

• Attention: The PDR, where you may storage technologies; and alternative contention had noted was missing, and examine and order copies of public locations. The final EIS documents the the Board subsequently terminated the documents, is currently closed. You environmental review, including the adjudicatory proceeding. Intervenors may submit your request to the PDR via NRC staffs recommendation to issue an appealed the decisions to the email at pdr.resource@nrc.gov or call 1- NRC license to ISP to construct and Commission, and the Commission 800-397-4209 or 301-415-4737, operate a CISF for spent nuclear fuel at affirmed the Board decisions, with one between 8:00 a.m. and 4:00 p.m. (ET), the proposed location, subject to the new contention remanded to the Board Monday through Friday, except Federal determinations in the NRC staffs safety for consideration. The Board holidays. review of the application. The final EIS subsequently dismissed the remanded FOR FURTHER INFORMATION CONTACT: conclusion is based on the NRC staffs contention, and the Commission denied John-Chau Nguyen, Office of Nuclear independent environmental review, as an appeal of the Board decision.

Material Safety and Safeguards, U.S. well as (i) the license application, which In issuing a materials license to ISP Nuclear Regulatory Commission, includes the environmental report and for the WCS CISF, the NRC has Washington, DC 20555-0001; telephone: supplemental documents and ISPs determined based on its review of this 301-415-0262; email: John- responses to the NRC staffs requests for application that there is reasonable Chau.Nguyen@nrc.gov. additional information; (ii) consultation assurance that: (i) The activities SUPPLEMENTARY INFORMATION: with Federal, State, Tribal, and local authorized by the license can be agencies and input from other conducted without endangering the I. Discussion stakeholders, including members of the health and safety of the public; and (ii)

The NRC has issued a license to ISP public; and (iii) the assessments these activities will be conducted in for its WCS CISF in Andrews County, provided in the final EIS. compliance with the applicable Texas (ADAMS Package Accession No. The NRC staff prepared a final safety regulations of 10 CFR part 72. The NRC ML21188A096). Materials License No. evaluation report that documents the has further determined that the issuance SNM-2515 authorizes ISP to construct staffs safety and security review of the of the license will not be inimical to the and operate its facility as proposed in its application (ADAMS Accession No. common defense and security.

license application, as amended, and to ML21188A101). The staffs safety and security review found that the In accordance with 10 CFR 2.390 of receive, possess, store, and transfer application met applicable NRC the NRCs Rules of Practice, the spent nuclear fuel, including a small regulations in 10 CFR part 72, details with respect to this action, quantity of mixed-oxide fuel, and Licensing Requirements for the including the final safety evaluation Greater-than-Class-C radioactive waste at the WCS CISF. The license authorizes Independent Storage of Spent Nuclear report and accompanying ISP to store up to 5,000 metric tons of Fuel, High-Level Radioactive Waste, and documentation and license, are uranium [5,500 short tons] of spent Reactor-Related Greater than Class C available electronically in the ADAMS nuclear fuel for a license period of 40 Waste. Public Documents collection at https://

years. ISP will be required to operate Documents related to the application www.nrc.gov/reading-rm/adams.html.

under the conditions listed in Materials carry Docket ID NRC-2016-0231. These From this site, you can access ADAMS, License No. SNM-2515. documents for the ISP license include which provides text and image files of The NRC staffs ROD that supports the the license application, the applicants the NRC public documents.

NRCs decision to approve ISPs license safety analysis report, emergency plan, II. Availability of Documents application for the WCS CISF and to physical security plan, environmental issue Materials License No. SNM-2515 report, updates to these documents, and The documents identified in the is available in ADAMS under Accession applicant supplements and responses to following table are available to No. ML21222A214. The ROD satisfies NRC staff requests for additional interested persons through one or more the regulatory requirement in section information, and the NRC staffs final of the following methods, as indicated.

Document ADAMS accession No.

1. Initial application, safety analysis report (SAR) and environmental report (ER), dated April 28, 2016 .................... ML16133A070 (Package).

2. Application Revision 1, SAR Revision 1, and ER Revision 1, dated March 16, 2017 .............................................. ML17082A021 (Package).

3. Application Revision 2, SAR Revision 2, and ER Revision 2, dated July 19, 2018 ................................................. ML18206A595 (Package).

4. ER Revision 3, dated February 17, 2020 .................................................................................................................. ML20052E144 (Package).

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USCA Case #21-1227 Document #1922379 Filed: 11/12/2021 Page 3 of 3 51928 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Notices Document ADAMS accession No.

5. SAR Revision 3, dated May 22, 2020 ........................................................................................................................ ML20150A337 (Package).

6. Application Revision 3, dated August 24, 2020 ......................................................................................................... ML20237F470.

7. SAR Revision 4, September 2, 2020 ......................................................................................................................... ML20261H419 (Package).

8. Application Revision 4 and SAR Revision 5, dated April 12, 2021 ........................................................................... ML21105A766 (Package).

9. Applicant response to request for additional information, dated July 19, 2018 ........................................................ ML18208A437.

10. Applicant response to request for additional information, dated January 7, 2019 .................................................. ML19009A099.

11. Applicant response to request for additional information, dated March 22, 2019 ................................................... ML19085A055.

12. Applicant response to request for additional information, dated May 31, 2019 ...................................................... ML19156A048 (Package).

13. Applicant response to request for additional information, dated June 26, 2019 ..................................................... ML19197A044.

14. Applicant response to request for additional information, dated June 28, 2019 ..................................................... ML19184A159 (Package).

15. Applicant response to request for additional information, dated June 28, 2019 ..................................................... ML19190A227 (Package).

16. Applicant response to request for additional information, dated July 31, 2019 ...................................................... ML19217A231 (Package).

17. Applicant response to request for additional information, dated August 20, 2019 .................................................. ML19235A157 (Package).

18. Applicant response to request for additional information, dated September 18, 2019 ........................................... ML19270E399.

19. Applicant submittal of supplemental information, dated September 20, 2019 ........................................................ ML19268A113 (Package).

20. Applicant response to request for additional information, dated November 21, 2019 ............................................ ML19337B502 (Package).

21. Applicant response to request for additional information, dated January 6, 2020 .................................................. ML20015A448 (Package).

22. Applicant response to request for additional information, dated January 17, 2020 ................................................ ML20028E843 (Package).

23. Applicant response to request for additional information, dated January 22, 2020 ................................................ ML20028D890 (Package).

24. Applicant response to request for additional information, dated February 14, 2020 .............................................. ML20052D995 (Package).

25. Applicant response to request for additional information, dated February 14, 2020 .............................................. ML20052E047 (Package).

26. Applicant submittal of supplemental information, dated March 5, 2020 .................................................................. ML20071F152 (Package).

27. Applicant response to request for additional information, dated March 16, 2020 ................................................... ML20083J964 (Package).

28. Applicant response to request for additional information, dated April 7, 2020 ........................................................ ML20105A133 (Package).

29. Applicant response to request for additional information, dated April 7, 2020 ........................................................ ML20105A171 (Package).

30. Applicant response to request for additional information, dated May 18, 2020 ...................................................... ML20139A173 (Package).

31. Applicant response to request for additional information, dated June 11, 2020 ..................................................... ML20163A008.

32. Applicant submittal of supplemental information, dated July 21, 2020 ................................................................... ML20203M040.

33. Applicant submittal of supplemental information, dated January 27, 2021 ............................................................. ML21027A147.

34. Draft Environmental Impact Statement, dated May 2020 ........................................................................................ ML20122A220.

35. Overview of the Draft Environmental Impact Statement, dated May 2020 ............................................................. ML20121A016.

36. Overview of the Draft Environmental Impact Statement (Spanish language version), dated May 2020 ................ ML20136A148.

37. Final Environmental Impact Statement, dated July 2021 ........................................................................................ ML21209A955.

38. Overview of the Final Environmental Impact Statement, dated July 2021 .............................................................. ML21200A050.

39. Final Safety Evaluation Report, dated September 2021 ......................................................................................... ML21188A101.

40. NRC Staffs Record of Decision, dated September 13, 2021 ................................................................................. ML21222A214.

41. Materials License for ISP, dated September 13, 2021 ............................................................................................ ML21188A096 (Package).

Dated: September 13, 2021. www.prc.gov. Those who cannot submit Service request, the title of each Postal For the Nuclear Regulatory Commission. comments electronically should contact Service request, the requests acceptance Shana R. Helton, the person identified in the FOR FURTHER date, and the authority cited by the Director, Division of Fuel Management, Office INFORMATION CONTACT section by Postal Service for each request. For each of Nuclear Material Safety and Safeguards. telephone for advice on filing request, the Commission appoints an

[FR Doc. 2021-20092 Filed 9-16-21; 8:45 am] alternatives. officer of the Commission to represent the interests of the general public in the BILLING CODE 7590-01-P FOR FURTHER INFORMATION CONTACT:

proceeding, pursuant to 39 U.S.C. 505 David A. Trissell, General Counsel, at (Public Representative).Section II also 202-789-6820.

establishes comment deadline(s)

POSTAL REGULATORY COMMISSION SUPPLEMENTARY INFORMATION: pertaining to each request.

[Docket Nos. CP2020-171; CP2020-172; Table of Contents The public portions of the Postal CP2020-179; CP2020-182; CP2020-196] Services request(s) can be accessed via I. Introduction the Commissions website (http://

New Postal Product II. Docketed Proceeding(s) www.prc.gov). Non-public portions of AGENCY: Postal Regulatory Commission. I. Introduction the Postal Services request(s), if any, ACTION: Notice. can be accessed through compliance The Commission gives notice that the with the requirements of 39 CFR Postal Service filed request(s) for the

SUMMARY

The Commission is noticing a 3011.301.1 Commission to consider matters related recent Postal Service filing for the to negotiated service agreement(s). The The Commission invites comments on Commissions consideration concerning request(s) may propose the addition or whether the Postal Services request(s) a negotiated service agreement. This removal of a negotiated service in the captioned docket(s) are consistent notice informs the public of the filing, agreement from the market dominant or with the policies of title 39. For invites public comment, and takes other the competitive product list, or the request(s) that the Postal Service states administrative steps. modification of an existing product concern market dominant product(s),

DATES: Comments are due: September currently appearing on the market applicable statutory and regulatory 21, 2021. dominant or the competitive product 1 See Docket No. RM2018-3, Order Adopting ADDRESSES: Submit comments list.

Final Rules Relating to Non-Public Information, electronically via the Commissions Section II identifies the docket June 27, 2018, Attachment A at 19-22 (Order No.

Filing Online system at http:// number(s) associated with each Postal 4679).

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