ML22224A125

8-9-22 Final Initial Brief for Fasken (DC Cir.)(Case No. 21-1486)

ML22224A125
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	08/09/2022
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
1958510, 21-1048, 21-1055, 21-1056, 21-1179, 21-1227, 21-1229, 21-1230, 21-1231
Download: ML22224A125 (75)

Text

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 1 of 75 ORAL ARGUMENT NOT YET SCHEDULED UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Case No. 21-1048 Consolidated with Case Nos. 21-1055, 21-1056, 21-1179, 21-1227, 21-1229, 21-1230, 21-1231 DONT WASTE MICHIGAN, et al.,

Petitioners, v.

UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents, INTERIM STORAGE PARTNERS, LLC, Intervenor.

Petition for Review of Final Order of the United States Nuclear Regulatory Commission FINAL OPENING BRIEF OF PETITIONERS FASKEN LAND AND MINERALS, LTD. AND PERMIAN BASIN LAND AND ROYALTY OWNERS Allan Kanner (a.kanner@kanner-law.com) Monica Renee Perales Annemieke Tennis (a.tennis@kanner-law.com) 6101 Holiday Hill Road KANNER & WHITELEY, LLC Midland, TX 79707 701 Camp Street (432) 687-1777 New Orleans, LA 70130 monicap@forl.com (504) 524-5777

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 2 of 75 CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES In accordance with D.C. Cir. Rule 28(a)(1), Petitioners submit the foregoing certificate of parties, rulings and related cases.

A. Parties and Amici Petitioners The Petitioners in this matter are Fasken Land and Minerals, Ltd. and the Permian Basin Land and Royalty Owners, collectively referred to herein as Fasken.

Respondents The Respondents are the United States Nuclear Regulatory Commission and the United States of America.

Intervenor The Intervenor is Interim Storage Partners, LLC.

B. Rulings Under Review Fasken seeks review of the United States Nuclear Regulatory Commissions (NRC) Memorandum and Order CLI-21-09 (June 22, 2021), REC. 230 (JA0653).

C. Related Cases The undersigned counsel is not aware of any other case pending in this Circuit related to this one within the meaning of D.C. Cir. Rule 28(a)(1)(C), which is not currently consolidated herewith.

i

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 3 of 75 Undersigned counsel is aware of currently pending cases in the United States Courts of Appeals for the Fifth Circuit and the Tenth Circuit involving challenges to the NRCs issuance of the ISP license and record of decision. State of Texas; Greg Abbott, Governor of the State of Texas; Texas Commission on Environmental Quality; Fasken Land and Minerals, Ltd.; and Permian Basin Land and Royalty Owners v. Nuclear Regulatory Commission and United States of America, Docket No. 21-60743 (5th Cir.); State of New Mexico, ex rel. Hector H. Balderas, Attorney General and the New Mexico Environment Department, Docket No. 21-9593 (10th Cir.). 1 Respectfully submitted,

/s/ Allan Kanner Allan Kanner 1

Opening briefs in these matters were filed on February 7, 2022, and March 10, 2022, respectively.

ii

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 4 of 75 PETITIONERS RULE 26.1 DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and D.C. Cir. Rule 26.1, Fasken makes the following disclosures:

Petitioner Fasken Land and Minerals, Ltd., is a for-profit nongovernmental limited partnership organization existing under the laws of the State of Texas engaged in oil and gas extraction and production activities. Fasken Land and Minerals, Ltd., has no parent corporation, and no publicly traded corporation owns 10% or more of its stock.

Petitioner Permian Basin Land and Royalty Owners is a nongovernmental registered 501(c)(4) non-profit, organized and existing under the laws of the State of Texas, is based in Midland, Texas, and is a public welfare organization dedicated to protecting the interests of the Permian Basin and informing the public about threats and risks of spent nuclear fuel in regions ill-suited to the activity. Permian Basin Land and Royalty Owners has no parent corporation, and no publicly traded corporation owns 10% or more of its stock.

Respectfully submitted,

/s/ Allan Kanner Allan Kanner iii

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 5 of 75 TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES .............. i A. Parties and Amici ..........................................................................................i B. Rulings Under Review ..................................................................................i C. Related Cases ................................................................................................i PETITIONERS RULE 26.1 DISCLOSURE STATEMENT ................................. iii TABLE OF CONTENTS ......................................................................................... iv TABLE OF AUTHORITIES ................................................................................... vi GLOSSARY........................................................................................................... viii STATEMENT OF JURISDICTION..........................................................................1 STATEMENT OF ISSUES PRESENTED FOR REVIEW ......................................2 STATUTES AND REGULATIONS .........................................................................2 STATEMENT OF THE CASE ..................................................................................3 A. The NRC Denied All Administrative Challenges Regarding the ISP License Application and Terminated Its Administrative Proceeding Prior to Publishing Its Draft Environmental Impact Statement .................. 3 B. Fasken Moved to Reopen the Record and to File a New Contention Based on New Information in the Draft Environmental Impact Statement .....................................................................................................5 C. The Board and NRC Denied Faskens Motions .......................................... 6

SUMMARY

OF THE ARGUMENT ........................................................................6 STANDING ...............................................................................................................7 ARGUMENT .............................................................................................................9 iv

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 6 of 75 I. STANDARD OF REVIEW.................................................................................9 II. THE NRC ARBITRARILY AND CAPRICIOUSLY REJECTED FASKENS CONTENTION ...................................................................................................9 A. Faskens Contention is Based on New and Material Information Regarding the Responsibility and Costs for Coordinating Transportation, Infrastructure Improvements, and Emergency Response ....................................................................................................10 B. Faskens Contention is Based on New and Material Information Regarding Regional Transportation Impacts, and the Draft Environmental Impact Statements Omission of an Evaluation of Regional and Site-Specific Impacts Leads to Serious Safety and Environmental Issues ....... 14 III. THE NRC ARBITRARILY AND CAPRICIOUSLY DENIED FASKENS MOTION TO REOPEN AND MOTION FOR LEAVE TO FILE NEW CONTENTION .................................................................................................21 CONCLUSION ........................................................................................................23 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS ...........25 CERTIFICATE OF SERVICE ................................................................................26 ADDENDUM OF STATUTES AND REGULATIONS ....... STATUTORY ADD 1 STANDING ADDENDUM ....................................................... STANDING ADD 1 v

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 7 of 75 TABLE OF AUTHORITIES Page(s)

Cases Adenariwo v. Fed. Maritime Commn, 808 F.3d 74 (D.C. Cir. 2015) ..................................................................................1 Blue Ridge Envtl. Def. League v. Nuclear Reg. Commn, 668 F.3d 747 (D.C. Cir. 2012) ................................................................................1 Blue Ridge Envtl. Def. League v. Nuclear Regulatory Comm'n, 716 F.3d 183 (D.C. Cir. 2013) ................................................................................9 Center for Sustainable Econ. v. Jewell, 779 F.3d 588 (D.C. Cir. 2015) ................................................................................9 Citizens for a Safe Envt v. Atomic Energy Commn, 489 F.2d 1018 (3d Cir. 1973) .................................................................................1 In the Matter of Calvert Cliffs 3 Nuclear Project, 72 N.R.C. 720, 2010 WL 9007226 (2010) ...........................................................10 In the Matter of Georgia Power Co.,

2 N.R.C. 404, 1975 WL 20090 (1975) .................................................................21 In the Matter of Louisiana Energy Services, 62 N.R.C. 523, 2005 WL 4131570 (2005) ...........................................................10 In the Matter of Vermont Yankee Nuclear Power Corp.,

6 A.E.C. 358, 1973 WL 18107 (1973) .................................................................20 Natural Res. Def. Council v. U.S. Nuclear Reg. Commn, 680 F.2d 810 (D.C. Cir. 1982) ................................................................................1 New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012) ..............................................................................15 Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251 (D.C. Cir. 2004) ..............................................................................8 Sierra Club v. Sigler, 695 F.2d 957 (5th Cir. 1983) ......................................................................... 12, 13 vi

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 8 of 75 Thermal Ecology Must Be Preserved v. Atomic Energy Commn, 433 F.2d 524 (D.C. Cir. 1970) ................................................................................1 Union Neighbors United, Inc. v. Jewell, 831 F.3d 564 (D.C. Cir. 2016) ..............................................................................16 Statutes 5 U.S.C. § 702 ............................................................................................................2 5 U.S.C. § 706 ............................................................................................................9 28 U.S.C. § 2342 ........................................................................................................1 28 U.S.C. § 2342(4) ...................................................................................................2 28 U.S.C. § 2344 ........................................................................................................2 42 U.S.C. § 2011 ........................................................................................................1 42 U.S.C. § 2239(b) ...................................................................................................2 42 U.S.C. § 4332(C).......................................................................................... 13, 20 Regulations 10 C.F.R. § 2.309 .................................................................................................7, 10 10 C.F.R. § 2.309(c)(1) ..............................................................................................9 10 C.F.R. § 2.309(f)(1) ..............................................................................................9 10 C.F.R. §§ 72.90-72.108 .......................................................................................13 10 C.F.R. § 72.100(b) ..............................................................................................20 vii

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 9 of 75 GLOSSARY APA The Administrative Procedure Act DOE Department of Energy ISP Interim Storage Partners, LLC NEPA The National Environmental Policy Act NRC The United States Nuclear Regulatory Commission viii

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 10 of 75 STATEMENT OF JURISDICTION The NRC instituted an adjudicatory proceeding regarding ISPs license application pursuant to the Atomic Energy Act, 42 U.S.C. § 2011, and its procedural regulations under 10 C.F.R. Part 2. On June 22, 2021, the NRC affirmed the Atomic Safety Licensing Boards (Board) denial of Faskens Motion to Reopen the Record and Motion for Leave to File New Contention concerning NRCs preparation and publication of its draft Environmental Impact Statement. CLI-21-09, REC. 230 (JA0653). This was the final NRC Order denying Faskens requests for intervention and constitutes a final order for purposes of Hobbs Act jurisdiction. Adenariwo v.

Fed. Maritime Commn, 808 F.3d 74, 78 (D.C. Cir. 2015) (An agency order is final for purposes of 28 U.S.C. § 2342 if it imposes an obligation, denies a right, or fixes some legal relationship, usually at the consummation of an administrative process.) (quoting Natural Res. Def. Council, Inc. v. U.S. Nuclear Reg. Commn, 680 F.2d 810, 815 (D.C. Cir. 1982)); Blue Ridge Envtl. Def. League v. Nuclear Reg.

Commn, 668 F.3d 747, 753 (D.C. Cir. 2012) ([I]n the context of administrative adjudications, a final order is [normally] one that disposes of all issues as to all parties.) (quoting Citizens for a Safe Envt v. Atomic Energy Commn, 489 F.2d 1018, 1021 (3d Cir. 1973)); Thermal Ecology Must Be Preserved v. Atomic Energy Commn, 433 F.2d 524, 526 (D.C. Cir. 1970) (An order denying intervention would be reviewable.).

1

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 11 of 75 The NRCs final Order is reviewable by this Court under 42 U.S.C. § 2239(b),

28 U.S.C. § 2342(4), and 5 U.S.C. § 702. Pursuant to 28 U.S.C. § 2344, Fasken timely filed their Petition for Review on August 20, 2021, within sixty days of the NRCs final Order. No. 21-1179, Doc. #1911677.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

• Whether the NRC erred in denying Faskens Motions and Contention based on new and material agency impact determinations and sources relied on in the draft Environmental Impact Statement that differed significantly from those contained in ISPs application documents.

• Whether the NRC erred in failing to conduct an evaluation of site-specific impacts relating to the regional transport of spent nuclear fuel to and from the ISP facility.

STATUTES AND REGULATIONS See attached Addendum.

2

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 12 of 75 STATEMENT OF THE CASE2 A. The NRC Denied All Administrative Challenges Regarding the ISP License Application and Terminated Its Administrative Proceeding Prior to Publishing Its Draft Environmental Impact Statement Fasken, like other petitioners, filed a petition for intervention and request for hearing. Fasken Petition, REC. 51 (JA0044). Fasken submitted a total of six contentions, drawing on regional expertise and decades of collective knowledge gained through extensive energy and agriculture operations within the Permian Basin, identifying concerns with misleading, inaccurate, inconsistent, or incomplete characterizations in ISPs application documents. Id. In total, forty contentions were filed in the proceeding. Beyond Nuclear Petition, REC. 39 (JA0038); Fasken Petition, REC. 51 (JA0044); Sierra Club Petition, REC. 57 (JA0045); Dont Waste Michigan Petition, REC. 61 (JA0077); SEED Mtn. to File Late Contention, REC.

172 (JA0449); Fasken Contention Mtn., REC. 209 (JA0492).

In truly unprecedented fashion, the Board rejected each and every contention proffered. LBP-19-07, 90 NRC 31, REC. 126 (JA0355); LBP-19-09, 90 NRC 181, REC. 178 (JA0450); LBP-19-11, 90 NRC 358, REC. 185 (JA0465). It officially terminated the adjudicatory proceeding and closed the administrative record five months before the NRC published its draft Environmental Impact Statement and 2

Fasken adopts and incorporates herein the Statutory and Factual Background in Petitioner Beyond Nuclears opening brief.

3

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 13 of 75 issued notice soliciting public comments pursuant to NEPA in May 2020. LBP 11, 90 NRC at 368, REC. 185 (JA0465); Notice, 85 Fed. Reg. 27447 (May 8, 2020),

REC. 324 (JA0787). The NRC subsequently affirmed the rejection of all contentions. CLI-20-13, 92 NRC 457, REC. 218 (JA0558); CLI-20-14, 92 NRC 463, REC. 221 (JA0564); CLI-20-15, 92 NRC 491, REC. 222 (JA0592).

Throughout this process, the NRC has issued numerous requests for additional information, allowing ISP to supplement its application documents, even after publication of the draft Environmental Impact Statement. See, e.g., ISP Resp. (July 21, 2020), REC. 331 (JA1273); ISP Resp. (Jan. 27, 2021), REC. 353 (JA1275).

Much of the information submitted by ISP was kept from the public by claims of confidentiality. E.g., CLI-20-14, 92 NRC at 472, REC. 221 (JA0573) (denying Faskens request for access to confidential documents); ISP Resp., REC. 290.1 (JA0739) (including response to Request 2.2-2 submitted as confidential). However, the supplemental information was the basis for denying various contentions as moot.

E.g., LBP-19-07, 90 NRC at 113 n.549, REC. 126 (JA0437) (noting the NRC Staff originally argued for partial admission of Fasken Contention 2 but changed its position and considered the contention moot in light of ISPs response to Request 2.2-2).

4

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 14 of 75 B. Fasken Moved to Reopen the Record and to File a New Contention Based on New Information in the Draft Environmental Impact Statement After reviewing the draft Environmental Impact Statement, Fasken filed a Motion to Reopen the proceeding and a Motion for Leave to File a New Contention.

Reopen Mtn., REC. 208 (JA0481); Contention Mtn., REC. 209 (JA0492). Faskens Contention was based on new and materially different conclusions and/or sources relied on in the draft Environmental Impact Statement, which for the first time shifted the burden and responsibility for emergency response efforts and infrastructure improvements to local communities without accounting for the costs.

Contention Mtn. at 14-17, REC. 209 (JA0509-JA0512). In addition, Faskens Contention focused on the use of representative transportation routes, which failed to properly analyze regional transportation impacts in light of the site-specific conditions and those of the 50-mile radius surrounding the site. Id. at 17-26 (JA0512-JA0521). Fasken asserted that an appropriate site-specific analysis was absent from the draft Environmental Impact Statement, which: (1) relied on representative routes to Deaf Smith, Texas, that ignored the regional transportation leg cutting through the Permian Basin from Monahans, Texas to the ISP facility that is also used by regional oil and gas and agricultural industries; (2) disregarded the geological characteristics of the area including seismicity, subsidence, sinkholes, along with ongoing oil and gas and mining extraction operations effecting transportation infrastructure, safety 5

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 15 of 75 risks and environmental impact; and (3) failed to analyze the costs and benefits on a site-specific basis, given that rural, remote communities along the transportation route would be responsible for training, equipping and financing emergency first responders. Fasken argued that by omitting this analysis, the draft Environmental Impact Statement analysis of environmental impacts fell short of the requirements of NEPA and NRC regulations.

C. The Board and NRC Denied Faskens Motions The Board denied Faskens Motions, primarily on the ground that the Motions and Contention were not based on information that was materially new. LBP-21-02, 93 NRC 104, 110-111, REC. 224 (JA0618-JA0619). Further, the Board rejected Faskens Contention finding it did not satisfy the admissibility requirements. Id. at 114-116 (JA0622-JA0623).

The NRC affirmed, under the substantial deference standard of review. CLI-21-09, REC. 230 (JA0653).

Faskens petition for review followed.

SUMMARY

OF THE ARGUMENT The NRC abused its discretion, acting arbitrarily and capriciously in denying Faskens Motions and Contention relating to site-specific impacts and serious and significant regional transportation issues addressed for the first time in the NRCs draft Environmental Impact Statement. Applying a heightened standard for pleading, 6

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 16 of 75 the NRC summarily dismissed Faskens challenges by transforming them into previously dismissed contentions based on ISPs Environmental Report. In doing so, the NRC overlooked the timeline of production of information at issue and more importantly, overlooked the site-specific nature of Faskens arguments identifying concerns with NRCs newly disclosed findings and its reliance on faulty and inapplicable prior evaluations relating to first responder services, the omission of consideration of infrastructure funding in the calculus of costs and benefits, as well as adverse impacts on regional industries and serious safety risks of transporting spent nuclear fuel in and out of the Permian Basin.

Faskens Contention raises mixed environmental and safety issues with abundant factual support and requisite affidavits in accordance with NRC standards.

Contention Mtn. at Exhibits 1, REC. 210 (JA0523) and 2, REC. 211 (JA0529); 10 C.F.R. § 2.309. The NRC erred in denying the Contention. It failed to independently investigate the issues identified and to take a hard look at the impacts. The NRC is required to offer a contemporaneous rational basis for its impact determinations and the draft Environmental Impact Statement findings to ensure transparency and informed decision-making.

STANDING Faskens standing is addressed in the Docketing Statement and attached standing declarations of Tommy Taylor, Vice President of Fasken Management, 7

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 17 of 75 LLC, the general partner of Petitioner Fasken; D.K. Boyd, member of the Permian Basin Land and Royalty Owners; and Grant Huckabay, Health, Safety and Environmental Coordinator of Fasken Oil and Ranch, Ltd., which have been submitted to the Court. No. 21-1048, Doc. #1921497. Fasken and members of the Permian Basin Land and Royalty Owners own and/or lease property related to oil and gas activities, grazing, and agricultural operations near the ISP site. They, along with their personnel, regularly travel in the vicinity of the site for work-related purposes, using local, state, and federal highways, and they regularly use the regional rail transportation to support their industries, which they will be forced to share with regular shipments of nuclear waste in and out of the Permian Basin. They also have concerns regarding adverse health effects and impacts to their employees and business operations, as well as the communities in the region generally, including medical care costs, adverse financial impacts on property, and threats to ongoing business activities.

In the proceeding below, Petitioner Fasken was found to have standing and Petitioner Permian Basin Land and Royalty Owners was found to have associational standing based on the declarations of Tommy Taylor and D.K. Boyd. LBP-19-07, 90 NRC at 51-52, REC. 126 (JA0375-JA0376); CLI-20-14, 92 NRC at 466, REC.

221 (JA0567). The Boards and NRCs conclusions that Fasken has standing are consistent with this Courts precedents. See Nuclear Energy Inst., Inc. v. EPA, 373 8

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 18 of 75 F.3d 1251 (D.C. Cir. 2004); Center for Sustainable Econ. v. Jewell, 779 F.3d 588 (D.C. Cir. 2015).

ARGUMENT I. STANDARD OF REVIEW The Court reviews the NRCs decision under the arbitrary and capricious standard. Blue Ridge Envtl. Def. League v. Nuclear Regulatory Comm'n, 716 F.3d 183, 195 (D.C. Cir. 2013); 5 U.S.C. § 706.

II. THE NRC ARBITRARILY AND CAPRICIOUSLY REJECTED FASKENS CONTENTION Faskens Contention satisfies 10 C.F.R. § 2.309(c)(1)s conditions for good cause. As discussed herein, the information forming the basis for the Contention was not available prior to publication of the draft Environmental Impact Statement in May 2020 and was materially different than that in ISPs application documents.

Faskens Motions associated with its Contention were timely filed, pursuant to the May 22, 2020, Order of the NRC Secretary. Reopen Mtn., REC. 208 (JA0481);

Contention Mtn., REC. 209 (JA0492); Order, REC. 207 (JA0477). Faskens Contention also satisfies 10 C.F.R. § 2.309(f)(1)s standards for admissibility.

Faskens Contention raises serious and grave concerns regarding NRCs failure to account for costs of necessary emergency response services and infrastructure improvements, as well as its failure to evaluate heightened adverse consequences from site-specific transportation impacts within the Permian Basin. Faskens 9

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 19 of 75 concerns fall squarely within the scope of the proceeding and raise genuine disputes of material issues highlighting the NRCs violations of NEPA and NRC regulations.

As set forth herein, the NRCs rejection of Faskens Contention was arbitrary and capricious and should be reversed.

A. Faskens Contention is Based on New and Material Information Regarding the Responsibility and Costs for Coordinating Transportation, Infrastructure Improvements, and Emergency

Response

A new or amended contention may be filed if the draft Environmental Impact Statement contains data or conclusions that differ significantly from those in the applicants documents. In the Matter of Calvert Cliffs 3 Nuclear Project, 72 N.R.C.

720, 729-30, 2010 WL 9007226 (2010); In the Matter of Louisiana Energy Services, 62 N.R.C. 523, 533, 2005 WL 4131570 (2005) (Our rules expressly allow timely amendment of NEPA contentions if there is significant new information or different conclusions in the DEIS that could not have been challenged previously.) (citing 10 C.F.R. § 2.309). Fasken cited specific and material new information that the NRC erroneously discarded.

New disclosures regarding the responsibility and costs for coordinating transportation, infrastructure improvements and necessary emergency training appeared for the first time in the draft Environmental Impact Statement. ISPs Environmental Report states, DOE or private qualified logistics company will also be responsible for coordinating with federal agencies . . . regarding transportation of 10

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 20 of 75

[spent nuclear fuel] . . . If DOE is the shipper, the federal government, through DOE, is responsible for providing emergency training to states, tribes, and local emergency responders along the transportation routes where SNF [spent nuclear fuel] would be transported to the [ISP site]. ER (Rev. 3) at 4-8, REC. 318.3 (JA0767) (emphasis added). In contrast, the draft Environmental Impact Statement for the first time asserts that if [spent nuclear fuel] is shipped to a [consolidated interim storage facility], some States, Tribes, or municipalities along transportation routes may incur costs for emergency-response training and equipment that might otherwise be eligible for funding under [Nuclear Waste Policy Act] Section 180(c) provisions if DOE shipped the [spent nuclear fuel] from existing sites to a repository. DEIS at 4-74 -75, REC. 327 (JA1070-JA1071). The document also states that States are recognized as responsible for protecting health and safety during radiological transportation accidents. Id. at 8-11 (JA1193).

In addition, ISPs Environmental Report suggests DOE would be responsible for infrastructure upgrades required to transport the waste to a storage cite. ER (Rev.

3) at 3-8 -9, REC. 318.3 (JA0759-JA0760). However, the draft Environmental Impact Statement states that some decommissioned reactor sites may require local transportation infrastructure upgrades to remove the [spent nuclear fuel] from the site for example, installing or upgrading rail track, roads, or barge slips necessary to transfer [spent nuclear fuel] offsite. DEIS at 4-10, REC. 327 (JA1006).

11

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 21 of 75 However, despite the shift in responsibility and particularly in costs, the draft Environmental Impact Statement did not reach any quantifiable or qualitative determination on these regional transportation impacts, risks and costs, and it did not include them in its cumulative impact analysis, claiming the issues would be speculative and beyond the scope. DEIS at 4-75, REC. 327 (JA1071). Likewise, despite infrastructure improvement costs being necessary to transport spent nuclear fuel to the ISP facility, the NRC did not quantify these costs. Id. at 8-11 (JA1193).

Without factoring in the risks and costs to be borne by state and local governments, the NRC concluded that the socioeconomic impacts resulted in a small to moderate beneficial impact for local finance. Id. at 4-75, 5-46 (JA1071, JA1148). The failure to factor in these costs is unreasonable, arbitrary, and capricious and does not provide a complete picture of the actual impacts of the project. Sierra Club v. Sigler, 695 F.2d 957, 979 (5th Cir. 1983) (Simple logic, fairness, and the premises of cost-benefit analysis, let alone NEPA, demand that a cost-benefit analysis be carried out objectively. There can be no hard look at costs and benefits unless all costs are disclosed.).

The Board and NRC summarily found that the evaluation of these risks and costs was beyond the scope of the proceeding. LBP-21-02, 93 NRC at 115, REC.

224 (JA0623). The conclusion that the project would have a small to moderate beneficial impact on local finance is incomplete at best, and it is arbitrary and 12

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 22 of 75 capricious to conduct such an analysis by including only beneficial impacts and omitting significant costs. Under this standard, the NRC could conceivably show any project as having a beneficial financial impact. This does not equate to the hard look required by NEPA. Sigler, 695 F.2d at 979 (noting that if an agency were permitted to cite possible benefits to promote a project but avoid citation of accompanying costs, the cost-benefit analysis would be a sham).

Faskens Contention raises serious and significant safety and environmental issues dealing with site-specific impacts in the Permian Basin and genuine disputes with the NRCs consideration of same that fall squarely within the scope of the proceeding. Both NEPA and NRCs own implementing regulations require consideration of siting evaluation factors in determining impacts on the human environment of a proposed project. 42 U.S.C. § 4332(C); 10 C.F.R. §§ 72.90-72.108.

Indeed, the draft Environmental Impact Statement is a self-declared site-specific assessment. DEIS at 1-6, 5-13, REC. 327 (JA0842, JA1115). NRCs Scoping Summary Report concedes that these issues are material and within the scope.

Scoping Summary Report at A-8-10, B-20, B-35, REC. 307 (JA0750-JA0752, JA0753, JA0756). As such, the NRC is wrong to claim that such regional transportation issues are outside of the scope of the proceedings or that such impacts affecting cost and benefit analyses are unquantifiable.

13

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 23 of 75 B. Faskens Contention is Based on New and Material Information Regarding Regional Transportation Impacts, and the Draft Environmental Impact Statements Omission of an Evaluation of Regional and Site-Specific Impacts Leads to Serious Safety and Environmental Issues ISPs Environmental Report states that [spent nuclear fuel] would be transported exclusively by rail. ER (Rev. 3) at 4-8, REC. 318.3 (JA0767). However, the draft Environmental Impact Statement for the first time relies on a 2008 DOE Yucca Mountain analysis which discloses supplemental modes of transportation, including segments of barge or heavy-haul trucks to move the waste from generator sites to rail lines. DEIS at 3-9, 4-6, REC. 327 (JA0897, JA1002). The draft Environmental Impact Statement did not evaluate the environmental or safety impacts from transportation of spent nuclear fuel via barges or heavy-haul trucks; rather it relied on the DOE 2008 analysis and concluded that the supplemental mode of transportation did not significantly change the minor radiological impacts from a national mostly rail transportation campaign. Id. at 4-10 (JA1006).

Moreover, the NRC relied on representative transportation routes from the 2008 DOE Yucca Mountain analysis and prior impact analysis from NUREG-2125 (NRC 2014) for purposes of its evaluation of transportation impacts. Id. at 3-9 (JA0897). When facilities differ in operational characteristics that influence impact determinations, the NRC must conduct and publicly disclose site-specific evaluations. NUREG-2157 at 5-2 (JA2370) (acknowledging that not all storage 14

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 24 of 75 facilities will necessarily match the assumed generic facility and therefore when it comes to size, operational characteristics and location of the facility, the NRC will evaluate the site-specific impacts of the construction and operation of any proposed facility as part of that facilitys licensing process).3 Faskens Contention asserts that in relying on these prior analyses, the NRC failed to consider regional transportation issues and site-specific impacts in its analysis. It is well-established that whether the NRCs analysis is generic or site-by-site, it must be thorough and comprehensive. New York v. NRC, 681 F.3d 471, 481 (D.C. Cir. 2012).

The representative routes in NUREG-2125 involve shipment of spent nuclear fuel to Deaf Smith, Texas, which is outside the Permian Basin. DEIS at 4-13, REC.

327 (JA1009); see also NUREG-2125 at 23, 28 (JA2344, JA2345). This representative route is not representative of the regional transportation risks involved with transporting and storing spent nuclear fuel in the Permian Basin. The representative routes in the 2008 DOE Yucca Mountain document only reach Monahans, Texas, and the NRC did not meaningfully consider impacts associated with regional transportation from Monahans, Texas, to the ISP facility, as discussed further below. DEIS at 2-11, REC. 327 (JA0865). By relying on the representative 3

Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (NUREG-2157), (JA2346).

15

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 25 of 75 routes, the NRC failed to analyze impacts associated with the regional transportation leg of transport of nuclear materials to the ISP facility.

NRCs reliance on NUREG-2125 also does not account for key differences between the facilities. ISP does not propose a dry cask storage transfer facility and has no repackaging or reprocessing capabilities, adopting a return to sender policy instead, unlike that in NUREG-2125. EIS at D-33, 57-58, REC. 355 (JA1801, JA1825-JA1826). The NRC did not do the site-specific analysis required. Instead, the NRC adopted DOEs impact analysis despite the lack of contracts and arrangements for storage of [spent nuclear fuel] . . . the specific characteristics of the

[spent nuclear fuel], the origins of shipments, the routes of travel, shippers and carriers, and specific plans and other details have not yet been clarified, and it found similar impact determinations for ISP and the facilities in NUREG-2125 despite substantial differences in repackaging and reprocessing capabilities and the presence of dry cask storage transfer facilities. EIS at D-33, 57-58, REC. 355 (JA1801, JA1825-JA1826). NRCs omission of any consideration for these key operational differences and the relevant impacts on transportation is arbitrary and capricious.

Union Neighbors United, Inc. v. Jewell, 831 F.3d 564, 574 (D.C. Cir. 2016) (an agency acts arbitrarily or capriciously if it has relied on factors which Congress has not intended it to consider or entirely failed to consider an important aspect of the problem) (internal quotation omitted).

16

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 26 of 75 Next, as set forth in Faskens Contention and supporting affidavit, the regional rail lines for transport to the ISP site are also regularly used by the oil and gas and agricultural industries in the region. Contention Mtn. at 21, REC. 209 (JA0516).

Every single transport of spent nuclear fuel will travel along the Texas-New Mexico Railroad to ISP. Contention Mtn. Ex. 1 at ¶ 11, REC. 210 (JA0525); DEIS at 2-11, REC. 327 (JA0865). As demonstrated in Faskens supporting affidavit, even the most minimal transportation incident has the potential to interrupt or foreclose regional oil and gas, agricultural, and ranching activities with substantial adverse economic impacts to property interests and assets of Fasken and industries within the Permian Basin. Contention Mtn. Ex. 1 at ¶¶ 9-10, REC. 210 (JA0525). The affidavit further highlights the vital importance of local rail transportation to energy freight: local rails are necessary to ship components to drill and complete an oil well and bring it to production and [a]ny hazardous materials emergency upon the rails that interferes with energy freight poses a loss of millions of dollars per day affecting multiple operators in the Permian Basin. Id. at ¶ 12 (JA0525-JA0526).

The affidavit further notes that the single-track railway proposed for use in the draft Environmental Impact Statement traverses remote and rural areas lacking emergency responder resources and is served mostly by volunteer fire departments. Id. at ¶ 13 (JA0526).

17

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 27 of 75 In addition, the NRCs analysis fails to consider regional geographic characteristics such as sinkholes, subsidence and seismicity, which present a threat to both the regional transportation and storage at the ISP site. Contention Mtn. at 20-21, REC. 209 (JA0515-JA0516) and Ex. 1 at ¶ 14, REC. 210 (JA0526) (referencing the increased rate of rail accidents in the region and areas prone to subsidence, sinkholes and seismicity through which spent nuclear fuel will be transported).4 Further, the ongoing and extensive oil and gas and mining operations in the region, combined with the real potential for terrorist attack or sabotage, are legitimate issues that should be included in the impacts analysis. With respect to terrorism, the Board relied on NRCs prior conclusion that it need not consider terrorism in its NEPA analysis outside the Ninth Circuit, which itself is arbitrary and capricious. LBP 02, 93 NRC at 116, REC. 224 (JA0624).

In denying Faskens Contention, the Board and NRC ignored the specific regional issues raised in the Contention and broadly construed it as a challenge to the use of three representative national transportation routes, similar to contentions previously brought and denied. Id. at 112-114 (JA0620-JA0622) (improperly characterizing Faskens Contention as the DEIS should identify specific 4

Fasken has extensive experience and expertise operating in the Permian Basin. On the other hand, the NRC is not an expert in this area and should not be afforded limitless deference.

18

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 28 of 75 transportation routes). 5 As discussed above, Faskens argument is based on the NRCs lack of consideration of regional transport routes, geographic considerations and adverse impacts to regional industries use of same rails and roads within 50-mile radius. Contention Mtn., REC. 209 (JA0508). The NRC oversimplified and misrepresented the underlying basis, factual support and evidence presented by Fasken, which focused on the differences between the draft Environmental Impact Statement and ISPs Environmental Report and the material omission of site-specific and regional impacts of nuclear transport into and out of the Permian Basin.

Contention Mtn., REC. 209 (JA0492); Reply, REC. 215 (JA0545); NRC Petition for Review, REC. 225 (JA0626).

The draft Environmental Impact Statement insufficiently considered regional transportation issues in light of the above issues and erroneously deemed the transportation impacts, as well as the land use impacts, to be small. DEIS at 4-4, 4-9, 4-21, 5-20, REC. 327 (JA1000, JA1005, JA1017, JA1122). However, NEPA requires the NRC to take a hard look at the consequences of a proposed federal action and to investigate and evaluate cumulative impacts of the proposed action before undertaking any action that could affect the quality of human environment.

5 Although the Board characterized Faskens regional transportation contention as virtually identical to previously dismissed contentions, the opinion dismissing the prior contentions was issued in 2019 and involved contentions filed in 2018 based on ISPs early application documents that have since been revised multiple times.

19

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 29 of 75 42 U.S.C. § 4332(C). The issues raised by Faskens Contention implicate important legal, safety, and environmental impacts that must be investigated and evaluated under NEPA and NRC regulations. See, e.g., 10 C.F.R. § 72.100(b) (Each site must be evaluated with respect to the effects on the regional environment resulting from construction, operation, and decommissioning for the [Independent Spent Fuel Storage Installation] or [Monitored Retrievable Storage]; in this evaluation both usual and unusual regional and site characteristics must be taken into account.).

Further, transportation is undeniably a key factor in considering impacts on the human environment, including land uses, geology and soils, and the costs and benefits of the ISP facility. Given ISPs location in the middle of the Permian Basin, surrounded by extensive ongoing oil and gas extraction and agricultural operations, the NRC must consider site-specific and regional characteristics in not only its evaluation of cumulative impacts, but also heightened safety and socioeconomic risks and graver consequences of locating the facility in the heart of the nations most productive oil hub. The NRC cannot deny that transportation issues here are hotly contested and transportation of nuclear waste, by its very nature, implicates important safety and environmental issues warranting a reopening of the ISP proceeding for a proper evidentiary hearing on the underlying facts and evidence missing from the record and decision-making process here.

20

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 30 of 75 III. THE NRC ARBITRARILY AND CAPRICIOUSLY DENIED FASKENS MOTION TO REOPEN AND MOTION FOR LEAVE TO FILE NEW CONTENTION Faskens Motions should have been granted and the record should have been reopened to address the significant safety and environmental issues raised by Fasken, discussed above. Hearings may be reopened, in appropriate situations, either upon motion of any party or sua sponte. In the Matter of Vermont Yankee Nuclear Power Corp., 6 A.E.C. 358, 362, 1973 WL 18107 (1973); In the Matter of Georgia Power Co., 2 N.R.C. 404, 1975 WL 20090, at *4 (1975) (hearing may be reopened when a significant safety or environmental issue is involved).

Faskens Motion to Reopen was filed with not one, but two, relevant supporting affidavits addressing the adverse regional socioeconomic impacts transportation poses on oil and gas and agricultural industries as well as other site-specific cumulative impacts overlooked and discounted in NRCs draft Environmental Impact Statement. The new and material information and conclusions identified by Fasken were disclosed for the first time in the draft Environmental Impact Statement and substantially differed from ISPs application documents. As such, Faskens Motions were timely filed, they had good cause for filing same, and they warranted remand and appropriate agency consideration as discussed herein.

21

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 31 of 75 By closing the record prior to publication of the draft Environmental Impact Statement, the NRC has effectively insulated its failure to take a hard look at the effects of the ISP facility on the human environment and to independently investigate cumulative impacts, among others, by foreclosing new issues from being raised unless a heightened pleading standard is met. In this way, the NRC has obscured its decision-making process and shielded its findings on environmental impacts from public scrutiny, contrary to the core objectives of NEPA.

The heightened pleading standard applied here required Fasken to file any potential NEPA-based challenges at the outset based on ISPs Environmental Report, before ISP submitted all of its supplemental documentation. This heightened standard cannot be reconciled with the rationale of the Boards decision, which repeatedly references information and conclusions in ISPs third round of substantial revisions to its Environmental Reporta document that was only made publicly available in February 2020, long after the initial 2018 hearing deadline, and after the NRC officially terminated and closed the ISP proceeding in December 2019. LBP-21-02, 93 NRC at 111-112, REC. 224 (JA0619-JA0620); ER (Rev. 3), REC. 318 (JA0758).

The Boards opinion summarily states that Fasken may not seize on the publication of the NRC staffs draft Environmental Impact Statement as an excuse not to raise challenges to ISPs license application that Fasken could have timely 22

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 32 of 75 raised in 2018 but did not. LBP-21-02, 93 NRC at 109-110, REC. 224 (JA0617-JA0618). Yet, Faskens claims relate to the NRCs lack of independent investigation in its preparation of the draft Environmental Impact Statement that differ substantially from ISPs third (and even earlier rounds) of Environmental Report revisions and could not have been reasonably brought in 2018. The application of such a heightened standard here, requiring petitioners to anticipate conclusions and information in yet-to-be-published documents, creates an impenetrable fortress and merely illusory avenue to scrutinizing agency decision-making, contrary to the core objectives of NEPA and NRC transparency requirements.

CONCLUSION For the foregoing reasons, Fasken respectfully requests that the Court reverse NRC Order CLI-21-09 regarding Faskens Motion to Reopen and Motion for Leave to File a New Contention and remand this matter to the NRC for a full evidentiary hearing on the merits of Faskens Contention.

Dated: August 9, 2022 Respectfully submitted,

/s/ Allan Kanner Allan Kanner a.kanner@kanner-law.com Annemieke Tennis a.tennis@kanner-law.com KANNER & WHITELEY, LLC 701 Camp Street New Orleans, LA 70130 (504) 524-5777 23

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 33 of 75 Monica Renee Perales 6101 Holiday Hill Road Midland, TX 79707 (432) 687-1777 monicap@forl.com Counsel for Petitioners Fasken Land & Minerals, Ltd. and Permian Basin Land and Royalty Owners 24

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 34 of 75 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS

1. This brief complies with the type-volume limitation of the Courts February 15, 2022, Order because it contains 4,963 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f), and when combined with the other consolidated Petitioners briefs, Petitioners briefs do not exceed 20,000 words.

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(b) because it has been prepared using Microsoft Word in Times New Roman, 14 pt. font.

Respectfully submitted,

/s/ Allan Kanner Allan Kanner 25

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 35 of 75 CERTIFICATE OF SERVICE I hereby certify that the electronic original of the foregoing Revised Opening Brief of Petitioners was filed with the United States Court of Appeals for the D.C.

Circuit on this 9th day of August 2022, through the Courts CM/ECF electronic filing system, and thus also served on counsel of record.

Respectfully submitted,

/s/ Allan Kanner Allan Kanner 26

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 36 of 75 ADDENDUM OF STATUTES AND REGULATIONS TABLE OF CONTENTS National Environmental Policy Act, 42 U.S.C. §4332(C)...... STATUTORY ADD 2 10 C.F.R. § 2.309(c)(1) ........................................................... STATUTORY ADD 3 10 C.F.R. § 2.309(f)(1), (2) ..................................................... STATUTORY ADD 4 STATUTORY ADD 1

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 37 of 75 National Environmental Policy Act, 42 U.S.C. § 4332(C)

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall--

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on--

(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of mans environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes; STATUTORY ADD 2

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 38 of 75 10 C.F.R. § 2.309 (c)(1) - Hearing requests, petitions to intervene, requirements for standing, and contentions.

(c) Filings after the deadline; submission of hearing request, intervention petition, or motion for leave to file new or amended contentions (1) Determination by presiding officer. Hearing requests, intervention petitions, and motions for leave to file new or amended contentions filed after the deadline in paragraph (b) of this section will not be entertained absent a determination by the presiding officer that a participant has demonstrated good cause by showing that:

(i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously available; and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.

STATUTORY ADD 3

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 39 of 75 10 C.F.R. § 2.309(f)(1), (2) - Hearing requests, petitions to intervene, requirements for standing, and contentions.

(f) Contentions.

(1) A request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted, provided further, that the issue of law or fact to be raised in a request for hearing under 10 CFR 52.103(b) must be directed at demonstrating that one or more of the acceptance criteria in the combined license have not been, or will not be met, and that the specific operational consequences of nonconformance would be contrary to providing reasonable assurance of adequate protection of the public health and safety; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; (vi) In a proceeding other than one under 10 CFR 52.103, provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information STATUTORY ADD 4

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 40 of 75 on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief; and (vii) In a proceeding under 10 CFR 52.103(b), the information must be sufficient, and include supporting information showing, prima facie, that one or more of the acceptance criteria in the combined license have not been, or will not be met, and that the specific operational consequences of nonconformance would be contrary to providing reasonable assurance of adequate protection of the public health and safety. This information must include the specific portion of the report required by 10 CFR 52.99(c) which the requestor believes is inaccurate, incorrect, and/or incomplete (i.e., fails to contain the necessary information required by § 52.99(c)). If the requestor identifies a specific portion of the § 52.99(c) report as incomplete and the requestor contends that the incomplete portion prevents the requestor from making the necessary prima facie showing, then the requestor must explain why this deficiency prevents the requestor from making the prima facie showing.

(2) Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, participants shall file contentions based on the applicants environmental report.

Participants may file new or amended environmental contentions after the deadline in paragraph (b) of this section (e.g., based on a draft or final NRC environmental impact statement, environmental assessment, or any supplements to these documents) if the contention complies with the requirements in paragraph (c) of this section.

STATUTORY ADD 5

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 41 of 75 STANDING ADDENDUM TABLE OF CONTENTS Exhibit 1: Declaration of Tommy Taylor .................................. STANDING ADD 2 Exhibit 2: Declaration of D.K. Boyd ....................................... STANDING ADD 15 Exhibit 3: Declaration of Grant Huckabay .............................. STANDING ADD 23 STANDING ADD 1

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 42 of 75 ADDENDUM EXHIBIT #1 Declaration of Tommy Taylor (11/8/2021)

STANDING ADD 2

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 43 of 75 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT DONT WASTE MICHIGAN, et al.,

Petitioners, Case No. 21-1048 v.

Consolidated with Case Nos.

UNITED STATES NUCLEAR 21-1055, 21-1056, 21-1179 REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

DECLARATION OF TOMMY TAYLOR

1. My name is Tommy E. Taylor and my business address is 6101 Holiday Hill Road, Midland, Texas 79707. I reside at 4100 Timberglen Circle, Midland, Texas 79707. My position with Fasken Management, LLC (Fasken) is Vice President and Director of Oil and Gas Development. I am authorized by Fasken to execute this declaration on its behalf and on behalf of the Permian Basin Coalition of Land and Royalty Owners and Oil & Gas Operators (PBLRO) of which Fasken is a member and of which I am an officer.

2. This declaration is in support of the Petition for Review of Fasken and PBLRO in the above-captioned docket. I, on behalf of Fasken, previously authorized PBLRO to protect its interests by representing it in the prior Motion to Dismiss and petitions to intervene filed with the NRC alleging ISPs license application is inadequate and 1

STANDING ADD 3

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 44 of 75 illegal as written. I, on behalf of Fasken, further authorized PBLRO to appeal those decisions to this Court.

3. Fasken Land and Minerals, of which Fasken Management, LLC is its General Partner, is engaged in ranching as well as oil and gas extraction and production activities in the Permian Basin and in the vicinity of the Interim Storage Partners, LLC (ISP) consolidated interim storage facility (CISF) in Andrews County, Texas and the proposed Holtec International (Holtec) CISF in Eddy County and Lea County, New Mexico. Fasken owns property and currently operates active oil and gas properties within eighteen miles of the ISP CISF site in Andrews County, Texas.

4. PBLRO is an association with long-term economic, social and environmental interests in the Permian Basin that formed in response to ISPs and Holtecs CISF applications to construct and operate CISFs.

5. PBLRO presently has substantial land and mineral interests, and active leases throughout Andrews County, Texas, with a founding PBLRO member owning land used for oil and gas operations, cattle operations, and living quarters within four miles of the ISP CISF site.1

6. I am personally familiar with other members of PBLRO of which there are 65 individual members, with multiple ranchers engaged in agricultural activities and owning land in the area for over a century and at least three members being publicly 1

See e.g., Ex. 2, Declaration of D.K. Boyd, Petition of PBLRO and Fasken for Intervention and Request for Hearing (Sept. 28, 2018) (ADAMS ML18302A412).

2 STANDING ADD 4

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 45 of 75 traded corporations (two integrated and one large independent oil and gas operator),

as well as numerous private companies involved in the extraction and production of oil and gas in the Permian Basin and in close proximity to the proposed transport of spent nuclear fuel and storage of spent nuclear fuel at ISP and Holtec CISFs.

7. I am personally familiar with the agricultural use of the land within the vicinity of the ISP CISF site and of the members of the PBLRO that live, work and travel along proposed transportation routes, graze their animals within four miles of the ISP CISF and draw water from wells that are fed by shallow groundwater from formations that are present beneath the ISP CISF.

8. Both my employment duties and personal reasons require me to travel to and spend time in the area of the ISP CISF. I generally use State Highway 176 when I am in the area for travel purposes. At its closest point, State Highway 176 is approximately 1 mile from the ISP CISF site. Additionally, I am personally aware of other Fasken employees who regularly travel for employment and personal reasons to the area and use State Highway 176 as well.

9. As the Director of Oil and Gas Development for Fasken, I am personally familiar with ongoing oil and gas activities in the vicinity of the ISP CISF and throughout the Permian Basin. Fasken has owned the land and minerals within the vicinity of the ISP CISF for over a century and drilled its first well in the Permian Basin approximately 70 years ago.

3 STANDING ADD 5

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 46 of 75

10. I also have personal knowledge of the activities of other oil and gas entities that are members of the PBLRO, one of which began drilling in the Permian Basin approximately 80 years ago and has extensive interests within close proximity to the ISP CISF. Neither Fasken nor any member of PBLRO has relinquished control of their interests for the ISP CISF.

11. There are approximately 4,579 wellbores within a 10-mile radius of the proposed CISF of which 1,066 were drilled and plugged prior to 1967 thus posing a potential risk of contamination. There are thousands of active oil and gas wells within a 50-mile radius of the proposed rail and road routes that will transport radioactive materials to the ISP CISF.

12. It is well-established and acknowledged that the Permian Basin is home to one of the most productive oil and gas hubs in the world. The Basin contains billions of barrels of hydrocarbons and millions of acre-feet of groundwater. It is the largest and most important hydrocarbon producing basin in the United. States. It produces 50% of domestic hydrocarbons and 5% of global oil (EIA, 2020). These hydrocarbon and groundwater resources ensure domestic energy needs and global security.

13. According to the Permian Basin Petroleum Association, the Permian Basin, which includes Andrews County, produced approximately 5 million barrels of oil per day in 2019 and anticipates an increase to as much as 8 million barrels per day by 2023. The region produced 6,668 million cubic feet (MMcf) of natural gas per 4

STANDING ADD 6

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 47 of 75 day in 2017; 9,076 MMcf per day in 2018; 11,874 MMcf per day in 2019; 12,934 MMcf per day in 2020; and 12,658 MMcf per day through July in 2021.2

14. According to the Texas Railroad Commission, the Permian Basin accounts for approximately one-third of the nations oil production.

15. I understand that a radiation release from the ISP CISF or during transportation of spent nuclear fuel through or near the Permian Basin or during any intermodal transferring functions may contaminate the areas in which Fasken and other members of the PBLRO have oil and gas property interests and/or extraction and production facilities. Such a release of radiation would cause contamination that would interfere or preclude the continued production of oil and gas in the Permian Basin. A radiological contamination event has the potential to interrupt or foreclose further oil and gas extraction/production activities and thereby diminish or eliminate the economic value of the oil and gas assets of Fasken and other members of PBLRO.

16. Likewise, I understand a radiation release from the ISP CISF or during transportation of spent nuclear fuel through or near the Permian Basin may contaminate the areas in which Fasken and other members of PBLRO have land interests and agricultural or cattle operations. A radiological contamination event 2

Source: Texas Railroad Commission Production Data Query System (PDQ), Texas Permian Basin Average Daily Natural Gas Production 2008 Through July 2021, available at: https://www.rrc.texas.gov/media/t3plr20l/gas-production.pdf.

5 STANDING ADD 7

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 48 of 75 also has the potential to interrupt agricultural and ranching operations and thereby diminish or eliminate the economic value of real property values and related assets of Fasken and other members of PBLRO.

17. I am concerned that radiological contamination also has potential human health effects that may cause death, radiation related ailments and/or genetic defects.

This potential, in addition to the adverse impacts on human mortality and morbidity rates, also has substantial economic costs associated with medical care and treatment of radiation related conditions that affect Fasken and other members of PBLRO.

18. I understand that even the most minimal transportation incident, such as a derailment or collision involving spent nuclear fuel, would amount to a dangerous materials emergency that has the potential to interrupt or foreclose further oil and gas extraction/production activities within the area of the incident, as well as adversely affecting the recipients of oil commodities which are regularly transported by rail. A transportation incident involving either of the two rail lines, identified as the proposed transportation routes for shipments of spent nuclear fuel in the ISP final Environmental Impact Statement (EIS), the Union Pacific Railroad or the Texas-New Mexico Railroad, would likely diminish or has the potential to eliminate the economic value of oil and gas assets belonging to Fasken and other members of PBLRO.

6 STANDING ADD 8

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 49 of 75

19. Even the most minimal transportation incident involving spent nuclear fuel has the potential to interrupt or foreclose agricultural and ranching activities in the Permian Basin, thereby diminishing or eliminating the economic value of the real property interests and assets of Fasken and other members of PBLRO.

20. Both Fasken and PBLRO regularly utilize rail transportation to support their industries and extensive and ongoing operations. Those named in the ISP EIS, Union Pacific Railroad and the Texas-Mexico Railroad, both serve the oil, gas, agricultural and ranching industries in the region of the ISP CISF. According to Union Pacific, two of its four key operating segments are the agricultural and energy industries.

Union Pacific reported revenue from energy freight in 2019 as $3.8 billion. It reports that railroads are the most efficient and cost-effective means of transportation of crude, frac sand, and petroleum by-products and transported 1.4 million carloads of energy freight shipments in 2019. In fiscal year 2019, agricultural commodities accounted for 18% of Union Pacifics shipments and energy freight accounted for 22%. The Texas-New Mexico Railroad extends from a Union Pacific connection at Monahans, Texas. It is one of two lines owned by Watco that primarily serve the Permian Basin. Watco reports oilfield commodities as its primary shipments on the Texas-New Mexico Railroad and agricultural commodities as primary on its Lubbock and Western Railways shipments.

7 STANDING ADD 9

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 50 of 75

21. With regard to energy freight, Fasken relies upon the rail lines of the Permian Basin primarily for transporting sand, acid, casing and tubing, cement, gel, and various liquid and dry chemical components that are used for blending associated products that are all necessary to drill and complete an oil well and bring it to production. PBLRO members utilize the Permian Basin rail lines primarily for materials similar to that of Fasken but also for water, additional frac chemicals, and acid. According to the ISP EIS, the ISP CISF would utilize the same rail lines which the oil and gas industry of the Permian Basin heavily relies upon. Any hazardous materials emergency upon the rails that interferes with energy freight poses a loss of millions of dollars per day affecting multiple operators in the Permian Basin, including Fasken and other members of PBLRO. Likewise, any deterioration of the existing rail lines as a result of transport of oversized railcars transporting spent nuclear fuel, dedicated single-use shipments of spent nuclear fuel or other infrastructure improvements necessary to accommodate shipments of spent nuclear fuel will cause substantial delays for industries throughout the Permian Basin. As an example, a typical Fasken horizontal multi-well drilling project cannot be completed until the staging of materials is achieved. Rail delays amount to potential lost production totals of approximately 5,800 barrels of oil per day and 3,500 million cubic feet of gas daily, per multi-well horizontal drilling pad. This equates to a loss of $350,000 daily and $10.6 million monthly in lost production from a single multi-8 STANDING ADD 10

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 51 of 75 well pad. A delay on the rails that results in standby costs on a frac job amount to

$115,000 per day, per well and drilling rig operation standby costs amount to

$50,000 per day, per drilling rig. Additionally, leases are susceptible to termination under Texas rules on nonproducing wells. In the event such a loss occurs, an operator such as Fasken, or one of the members of PBLRO, stands to lose a capital investment of $10 to $14 million per well. Possible remedies, including lease extensions, are onerous and expensive. As a representative of the industry, one must look to the risks posed by sharing the same rail lines that have primarily and historically been transporting oil commodities with spent nuclear fuel and high-level radioactive waste over the course of at least the next forty years (and likely longer).

22. The single-track railway proposed in the ISP EIS for the transport of spent nuclear fuel traverses through rural, remote areas. Although the rail lines in the Permian Basin are a major means of transportation, they are situated in desert-like areas served mostly by volunteer fire departments or areas lacking emergency responder resources. In consulting crane operators regarding the ISP EIS, there are real logistical problems in situating a crane capable of resetting a spent nuclear fuel transport cask and rail car in some of the more remote areas of the Permian Basin.

Also, a single hazardous materials emergency would not only have a detrimental effect upon the oil and agricultural industries of the Permian Basin but would also 9

STANDING ADD 11

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 52 of 75 overwhelm our first responders and healthcare facilities which are not equipped to cope with the challenges of a release, exposure or disaster nor are the small, rural communities adjacent to the rail track equipped to respond to an incident on any scale.

23. Not including derailments, the Permian Basin region has experienced a highly significant increase in rail related crashes in recent years. In fact, the Midland-Odessa Transportation Alliance (MOTRAN) reports that from 2016-2018, there were 158 rail related crashes in the Texas Department of Transportation Odessa District with just over half of those accidents occurring in Midland and Ector Counties. This is the very area through which the spent nuclear fuel would be transported via rail. MOTRAN reports that during that same period, other Permian Basin counties also experienced drastic increases: Ector County saw a 55% increase, Reeves saw a 266% increase, and Ward County saw a 700% increase in rail related crashes.

24. I am personally familiar with oil and gas activity in the vicinity of the ISP CISF and of the approximately 120 individual persons required to facilitate the completion of each individual oil and gas well in the vicinity of the ISP CISF. The potential harm to those individuals in the oil and gas industry, the potential harm to the ranchers and livestock, the potential impacts upon agriculture and, especially, upon human mortality and morbidity rates, and the economic costs associated with 10 STANDING ADD 12

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 53 of 75 medical care and treatment of radiation related conditions would also adversely impact Fasken and other members of PBLRO, as well as their employees and families.

25. As a resident of Texas and given Faskens work throughout the Permian Basin and familiarity with those in governance of the States of Texas and New Mexico, I have firsthand knowledge of the overwhelming opposition of the majority of the communities and elected representatives throughout Texas, as well as New Mexico, and of their shared health, safety, economic and environmental concerns in response to the egregious siting of the ISP and Holtec CISFs within the Permian Basin at locations that clearly do not qualify nor do they consent to hosting either of the CISFs.

11 STANDING ADD 13

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 54 of 75 Under penalty of perjury, the above is true and correct to the best of my knowledge and understanding.

Declarant: F'asken LanddMinerals Ltd.

By Fasken Management, LLC, its General Partner Tommy Taylor, Sr. Vice President (Cases; 00030551.DOCX} 6 STANDING ADD 14

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 55 of 75 ADDENDUM EXHIBIT #2 Declaration of D.K. Boyd (11/8/2021)

STANDING ADD 15

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 56 of 75 STANDING ADD 16

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 57 of 75 STANDING ADD 17

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 58 of 75 STANDING ADD 18

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 59 of 75 STANDING ADD 19

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 60 of 75 STANDING ADD 20

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 61 of 75 STANDING ADD 21

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 62 of 75 STANDING ADD 22

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 63 of 75 ADDENDUM EXHIBIT #3 Declaration of Grant Huckabay (11/8/2021)

STANDING ADD 23

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 64 of 75 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT DONT WASTE MICHIGAN, et al.,

Petitioners, Case No. 21-1048 v.

Consolidated with Case Nos.

UNITED STATES NUCLEAR 21-1055, 21-1056, 21-1179 REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

DECLARATION OF GRANT HUCKABAY

1. My name is Grant Huckabay and I have a degree in natural resource management, legal studies, and urban development. Since May 3, 2021, I have been employed by Fasken Oil and Ranch, Ltd. (Fasken), located at 6101 Holiday Hill Road, Midland, Texas 79707, as Health, Safety, & Environmental Coordinator. I am duly authorized to execute this affidavit on behalf of Fasken.

2. I have personal knowledge of the information as stated herein.

3. Fasken presently has lands and mineral interests within eighteen miles of the Interim Storage Partners, LLC (ISP) consolidated interim storage facility (CISF) located in Andrews County, Texas. Fasken is a member of Permian Basin Land and Royalty Owners (PBLRO). PBLRO presently has lands and mineral interests 1

STANDING ADD 24

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 65 of 75 throughout Andrews County, Texas as well with the nearest member holding land and minerals within four miles of the proposed ISP CISF.

4. In my capacity as Faskens Health, Safety, & Environmental Coordinator, my duties include primary management of all environmental policies, procedures, and programs for air, soil, and water concerns. My specific duties include coordination and oversight of all spill incidents, air permitting and air compliance, management of radiation issues, all regulatory interaction and notification, as well as management and oversight of environmental vendors. I have knowledge of, interpret, and prepare comments on and ensure compliance with all new and current federal, state, and local regulations under the U.S. Environmental Protection Act (EPA), the U.S.

Bureau of Land Management (BLM), the Texas Railroad Commission (RRC), the Texas Commission on Environmental Quality (TCEQ), the New Mexico Environment Department (NMED), and the State of New Mexico Oil Conservation Division (NMOCD), among others. Additionally, I monitor legislation, regulations and ensure compliance with any protected, threatened and endangered species and habitat program requirements. I also ensure compliance with all Occupational Safety and Health Administration (OSHA) regulations

5. As part of my responsibilities at Fasken, I frequently travel in the vicinity of the ISP CISF along regional transportation infrastructure. I am generally familiar with the natural resources of the area, including the air, geology, and soils throughout 2

STANDING ADD 25

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 66 of 75 the Permian Basin Region and have personal knowledge of the geology and soils encompassing Faskens land and mineral interests in the vicinity of the ISP CISF.

6. The ISP CISF site is situated in the approximate geographic center of the Permian Basin Region. The Permian Basin produces the largest volume of oil and gas in North America and recently surpassed Saudi Arabia in petroleum production.

The Permian Basin region encompasses a relatively large region in Texas and southeastern New Mexico and has a population of more than half-a-million people.

7. The ISP CISF represents a threat to Fasken: personnel, private property, real property, mineral and water interests, oil and gas leases and agricultural interests. It also represents a threat to numerous communities throughout Texas and New Mexico.

8. The Permian Basin Region is comprised of fifty-five counties in west Texas, and south-eastern New Mexico. The counties in the Permian Basin considered to be most imminently threatened by the ISP CISF site include some of the most prolific oil producing counties, including Andrews, Crane, Dawson, Ector, Gaines, Glasscock, Howard, Loving, Martin, Midland, Reeves, Upton, Ward, and Winkler Counties in Texas and Eddy and Lea Counties in New Mexico. These imminently threatened counties have a population of nearly 500,000 and collective area of over 20,000 square miles in the Permian Basin. A radiological event within any of these counties could be devastating to the nations oil and gas industry and would decimate 3

STANDING ADD 26

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 67 of 75 the economies of Texas and New Mexico. By way of comparison, the 1,835 square mile Chernobyl Exclusion Zone would compromise 13.2% of the highest oil producing region in the Americas, the Permian Basin.

9. Any pressurized release, dry cask rupture, explosion, or fire involving spent nuclear fuel will release radioactive particles and fragments into the air. This is a direct threat to both PBLRO and Fasken personnel, private property, real property, oil and gas reserves and leases as well as agricultural interests. Currently, the closest Fasken oil and gas wells are approximately 18 miles due east of the ISP CISF (Fasken Monterrey University and Lowe University leases). Dozens of other Fasken oil and gas wells are present in all directions from the site. Faskens private property, the C-Ranch, begins 38 miles nearly due east (northwestern property line) of the site and continues south to the Midland city limits. This broad expanse of land has a high probability of receiving airborne radioactive contaminants from the ISP CISF as a result of typical wind patterns in the area.

10. Public data from the National Weather Service and the Texas Commission on Environmental Quality (TCEQ) indicates that regional winds around the ISP CISF blow to the southeast approximately 25% of the time on an annual basis. On average, the Permian Basin Region has higher winds than much of the rest of Texas and the United States. According to the ISP application seeking a CISF license, the average windspeed is 11.0 miles per hour. It fails to account for the frequency of 4

STANDING ADD 27

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 68 of 75 high-wind gusts in the area of the proposed CISF. In comparison Houston, Texas winds vary from 8.3 mph to 6.7 mph, depending on the season. Any release of radioactive material might arrive in the Midland-Odessa metropolitan area (with a population of more than 260,000) in a matter of hours with no warning. The most dominant direction of wind is from south to north, placing the town of Hobbs, New Mexico (population 38,000), which is less than 20 miles away from the proposed ISP CISF, in direct danger in the event of a release. Also, imminently threatened is the town of Eunice, New Mexico (population 2,900), which is approximately 5 miles from the proposed site.

11. The broader perspective is that the Permian Basin Regions winds are highly variable and change direction frequently throughout a given day. With the ISP CISF sites geographically central location in the Permian Basin, any release carried by winds in any direction risks contaminating large areas of the most productive oil and gas region in North America. Depending on wind direction and speed, hundreds of thousands of people could be affected, including personnel of Fasken and other members of PBLRO.

12. And any radiological incident in the Permian Basin poses a serious threat to regional industries and economies. A Department of Energy Report found that an accident involving only one dry cask where only a small amount of waste was released in a rural setting would contaminate a 42-square mile area with clean-up 5

STANDING ADD 28

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 69 of 75 costs exceeding $620 million dollars. A similar release in an urban setting might cost

$9.5 billion per square mile.

13. The ISP CISF is also a direct threat to regional groundwater usage. Several aquifers or geologic formations containing groundwater exist in Andrews County, including the Ogallala aquifer with potable water, shown to be present and at a great thickness beneath the ISP site itself.

14. Water usage from wells near the ISP site are from the Ogalla / Antler /

Gatuna and are crucial for domestic, stock, irrigation, and commercial purposes, including the operations of Fasken and other members of PBLRO.

15. Any threat of radiological contamination of these important water resources poses a threat to regional land uses, a threat to the assets and property value of Fasken and PBLRO, a threat to ongoing regional industry operations generally, as well as threats to the environment and health and safety of nearby residents and those working or traveling through the area. Knowing that any radiological contamination would be virtually impossible to recover and would continue to emit radiation for decades until the half-lives are expended, those threats and adverse health, safety and environmental impacts could last for decades.

16. Without proper groundwater monitoring, the ISP CISF poses unacceptable and imminent threats to the environment, the health and safety of water supplies to nearby communities and extensive industry operations.

6 STANDING ADD 29

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 70 of 75

17. In addition to the presence of groundwater in the subsurface directly below and in the vicinity of the ISP CISF site, the location is also situated over Permian aged halite formations (rock salt) and other easily dissolved evaporite mineral formations leading to the potential for substantial ground movement issues, sinkhole formation and subsurface instability. For example, there is historical evidence of extensive sinkhole formation in the Permian Basin Region, including the very well known "Wink Sinks" outside of Wink, Texas, a large area of subsidence beneath the city in Carlsbad, New Mexico, and sinkholes and karst features north and east of Carlsbad, New Mexico. There are also numerous documented ground movement issues in Pecos, Crane, Monahans, Imperial, and Kermit, Texas where shipments of spent nuclear fuel will travel on over-sized railcars to the ISP CISF alongside and share rail lines with the transport of oil and gas industry materials.

18. The WCS/ISP facility is located within 26,000 square miles of the Salado Salt Formation that is replete with surface salt lakes and salt formation outcrops that critically contain magnesium chloride salts (MgCI2) that are the most reactive salt species for the induction and propagation of Chloride induced stress corrosion cracking (CI-SCC). The proposed CISF location is increasingly experiencing the haboob sandstorm phenomena that translocate tons of surface sediments for tens of miles. The historical paths of haboobs have included sweeping storms across the Salado surface salt flats in eastern New Mexico and West Texas.

7 STANDING ADD 30

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 71 of 75

19. Additionally, persistent fog and mist conditions are prevalent during the fall and winter in this region of the country. When combined, a single salt deposition event from a haboob, along with a sufficient amount of fog/mist event, could easily create the conditions that would initiate CI-SCC.

20. CI-SCC pose a critical and imminent threat to the integrity of canisters and increase the potential for radiological contamination and radiation in the region. In the U.S. NRC draft report, Identification and Prioritization of the Technical Information Needs Affecting Potential Regulation of Extended Storage and Transportation of Spent Nuclear Fuel, the federal government recognizes the potential risk for monitoring dry casks and the pitting and crevice corrosion of the stainless steel canisters, which affect the safety functions of confinement, criticality, retrievability (of fuel from the dry storage canister), shielding (of radiation from people and the environment), and thermal (degradation of the fuel, potentially leading to fuel fires).

21. I personally travel in the region of the ISP CISF as part of my responsibilities at Fasken. The area around the ISP CISF site is still under active exploration and active production. Within a 10-mile radius of the site, there have been a total of 4,947 well bores drilled in Texas and New Mexico. Presently 3,656 of these well bores are still in production. 905 wells are shown as a dry hole. Of the total of nearly five thousand wells within ten miles of the facility, only 386 have been recorded as 8

STANDING ADD 31

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 72 of 75 permanently plugged and abandoned. Regardless of the current volume of oil produced within the vicinity of the proposed ISP site, there are hundreds of active oil and gas wells, tank batteries, gas plants, and other petroleum production facilities within reasonable vicinity of the site, each requiring frequent and regular visits from personnel for maintenance and monitoring. Some facilities, such as gas plants, are staffed 24-hours a day, seven days a week. I have concerns for personnel of Fasken and personnel of other members of PBLRO, who by the very nature of their profession will be in close proximity to the ISP CISF and be exposed to doses of radiation.

22. State Highway 176 serves as a main motor vehicle access to the ISP site. It is also a major artery for the travel of both private citizens and oil and gas industry traffic, including Fasken and PBLRO personnel in the region. I personally utilize State Highway 176 routinely for projects relating to my responsibilities at Fasken, which include monitoring the several dozen wells that Fasken operates in the area, and for personal reasons. At present, State Highway 176 between Andrews and Eunice is completing a widening project to accommodate the large volume of heavy oil industry traffic that utilizes this regional highway and Fasken is contributing land to accommodate an overpass at the intersection of State Highways 176 and 1788 in Andrews County, Texas.

9 STANDING ADD 32

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 73 of 75

23. I have personal knowledge of the use of regional rail lines and can attest that the rail transport of oil commodities is the most prevalent in this region with the second highest use of regional rail lines being agricultural commodities. It is a risk to share these same regional rail lines with nuclear waste destined for the ISP CISF as any delay or disruption in rail transport caused by said waste would devastate the oil and agricultural industry as I have personal knowledge of studies that show that even one 24-hour period of interruption of rail transport would cost millions of dollars in losses to the oil and agricultural industries.

24. I also have concerns about the ISP CISF adverse impacts and threats to surrounding environment. The ISP CISF site is entirely within the known range of the Dune Sage Brush Lizard and a portion of the site lies within the known range of the Lesser Prairie Chicken. I have personal knowledge of the extensive conservation efforts in both Texas and New Mexico by the oil and gas and ranching industries, including Fasken and other members of the PBLRO, with respect to the Dune Sage Brush Lizard and the Lesser Prairie Chicken. Specifically, participation in conservation programs has prevented both species from being currently listed as endangered. Fasken is an active participant conservation programs for these and other species that will be threatened by the ISP CISF. The Lesser Prairie Chicken in particular is highly sensitive to surface disturbances such as construction activities, fences, power lines, and permanent structures that will be placed in and around the 10 STANDING ADD 33

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 74 of 75 ISP CISF site and the failure of the Nuclear Regulatory Commission to participate in conservation programs and engage the United States Fish and Wildlife Service on this matter is an offence to state and federal regulations.

25. Any release of radioactive material or any amount of radiation or contamination to the environment will become a direct threat to the survivability of both species, as well as the Texas Horned Lizard, which is protected under Texas law and is the State reptile.

26. The ISP CISF also poses an imminent threat to surrounding playas, which according to Texas Parks and Wildlife, serve as the most important wetland habitat for waterfowl. Playas are a direct connection to groundwater and nexus for contamination from the surface to groundwater beneath the ISP CISF site which could decimate known and historic migrating bird populations. ISP CISF lacks proper identification of playas and recharge to aquifers and without proper conservation practices in place, will further harm important butterflies and pollinators vital to regional ecosystems.

11 STANDING ADD 34

USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 75 of 75 STANDING ADD 35