ML23202A132
| ML23202A132 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 07/14/2023 |
| From: | Kanner A, Tennis A Fasken Land & Minerals, Ltd, Kanner & Whiteley |
| To: | NRC/OGC |
| References | |
| 20-1187, 2008034 | |
| Download: ML23202A132 (1) | |
Text
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 1 of 292 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BEYOND NUCLEAR, INC., et al.
Petitioners,
- v. No. 20-1187, Consolidated with Nos.
UNITED STATES NUCLEAR 20-1225, 21-1104, 21-1147 REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.
UNDERLYING DECISIONS FROM WHICH PETITION ARISES Petitioners in Case No. 21-1147, Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners have attached copies of the underlying decisions of the United States Nuclear Regulatory Commission (NRC) and Atomic Safety and Licensing Board (ASLB) in In the Matter of Holtec International (HI-STORE Consolidated Interim Storage Facility), NRC Docket No. 72-1051, from which Petitioners Petition for Review arises:
- Secretary of NRC Order (unpublished), issued on October 29, 2018;
- ASLB Memorandum and Order LBP-19-4, issued on May 7, 2019;
- NRC Memorandum and Order CLI-20-04, issued on April 23, 2020;
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 2 of 292
- NRC Memorandum and Order CLI-21-07, issued on April 28, 2021.
Dated: July 14, 2023 Respectfully submitted by:
KANNER & WHITELEY, LLC
/s/ Allan Kanner Allan Kanner, Esq.
Annemieke M. Tennis, Esq.
701 Camp Street New Orleans, Louisiana 70130 (504) 524 - 5777 a.kanner@kanner-law.com a.tennis@kanner-law.com Counsel for Petitioners Fasken and Permian Basin Land and Royalty Owners 2
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 3 of 292 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
)
In the Matters of )
)
)
HOLTEC INTERNATIONAL ) Docket No. 72-1051
)
(HI-STORE Consolidated Interim Storage )
Facility) )
)
)
INTERIM STORAGE PARTNERS LLC ) Docket No. 72-1050
)
(WCS Consolidated Interim Storage Facility) )
)
_________________________________________ )
ORDER On July 16, 2018, the NRC provided notice in the Federal Register of Holtec Internationals application to construct and operate a consolidated interim storage facility for spent nuclear fuel.1 Separately, on August 29, 2018, the NRC provided notice in the Federal Register of Interim Storage Partners application to construct and operate a consolidated interim storage facility for spent nuclear fuel.2 On September 14, 2018, Beyond Nuclear, Fasken Land and Minerals, and Permian Basin Land and Royalty Owners filed motions to dismiss both the Holtec and Interim Storage Partners applications.3 These groups argue that the NRC cannot, as a threshold matter, issue 1 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018).
2 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018), corrected, 83 Fed. Reg. 44,608 (Aug. 31, 2018) (noting that the correct deadline to file intervention petitions is October 29, 2018). Interim Storage Partners is a joint venture of Orano USA and Waste Control Specialists.
3 Beyond Nuclear filed its own motion to dismiss. Beyond Nuclear, Inc.s Motion to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility for Violation of the Nuclear Waste Policy Act (Sept. 14,
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 4 of 292 licenses to Holtec or Interim Storage Partners because both applications are contrary to the Nuclear Waste Policy Act (NWPA). Specifically, the groups argue that both applications contemplate the storage of Department of Energy-titled spent fuel in violation of various NWPA provisions.
The NRCs regulations allow interested persons to file petitions to intervene and requests for hearing in which they can raise concerns regarding a particular license application.
These regulations do not, however, provide for the filing of threshold motions to dismiss a license application; instead, interested persons must file petitions to intervene and be granted a hearing. I therefore deny both motions to dismiss on procedural grounds, without prejudice to the underlying merits of the legal arguments embedded within the motions.
Beyond Nuclear also filed hearing petitions in the Holtec and Interim Storage Partners proceedings that incorporated by reference the NWPA arguments that it raised in its motion to dismiss and identified those arguments as proposed contentions.4 I am separately referring these hearing requestsas well as other hearing requests challenging the applicationsto the Atomic Safety and Licensing Board Panel (ASLBP) for the establishment of a Board to consider all hearing requests in accordance with the hearing procedures set forth in 10 C.F.R. §2.309.
And, in accordance with 10 C.F.R. § 2.346(i), I am referring the motion from Fasken Land and 2018) (ADAMS Accession No. ML18257A318). Fasken Land and Minerals joined with Permian Basin Land and Royalty Owners to file a motion to dismiss that is substantially similar to Beyond Nuclears motion. Motion of Fasken Land and Minerals and Permian Basin Land and Royalty Owners to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility (Sept. 14, 2018) (ML18257A330). Both the NRC Staff and respective applicants filed oppositions to the motions, and Beyond Nuclear, Fasken Land and Minerals, and Permian Basin Land and Royalty Owners then filed replies.
4 Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Sept. 14, 2018)
(ML18257A324) (Holtec docket); Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Oct. 3, 2018) (ML18276A242) (Interim Storage Partners docket). Fasken Land and Minerals and Permian Basin Land and Royalty Owners have not filed related hearing petitions in either docket.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 5 of 292 Minerals and Permian Basin Land and Royalty Owners to the ASLBP for consideration under
§ 2.309.
This Order is issued under my authority in 10 C.F.R. § 2.346(c), (g), (i), and (j).
For the Commission NRC SEAL /RA/
Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 29th day of October 2018
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 6 of 292 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
) Docket No. 72-1051
)
HOLTEC INTERNATIONAL )
)
)
(HI-STORE Consolidated Interim Storage )
Facility) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER OF THE SECRETARY have been served upon the following persons by Electronic Information Exchange (EIE).
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop - O-15 D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Sarah Ladin, Law Clerk Patrick Moulding, Esq.
E-mail: sarah.ladin@nrc.gov E-mail: patrick.moulding@nrc.gov Joseph McManus, Law Clerk Sara B. Kirkwood, Esq.
E-mail: joseph.mcmanus@nrc.gov E-mail: sara.kirkwood@nrc.gov Taylor A. Mayhall Mauri Lemoncelli, Esq.
E-mail: taylor.mayhall@nrc.gov E-mail: mauri.lemoncelli@nrc.gov Office of Commission Appellate Christopher Hair, Esq.
Adjudication E-mail: christopher.hair@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Joseph I. Gillespie, Esq.
E-mail: ocaamail@nrc.gov E-mail: joe.gillespie@nrc.gov Krupskaya T. Castellon, Paralegal E-mail: krupskaya.castellon@nrc.gov Holtec Counsel Pillsbury Winthrop Shaw Pittman LLP OGC Mail Center: Members of this office have 1200 Seventeenth Street, NW received a copy of this filing by EIE service.
Washington, DC 20036 Jay Silberg, Esq. Dont Waste Michigan E-mail: jay.silberg@pillsburylaw.com 316 N. Michigan Street, Suite 520 Toledo, OH 43604-5627 Timothy J. Walsh, Esq. Terry J. Lodge, Esq.
E-mail: timothy.walsh@pillsburylaw.com E-mail: tjlodge50@yahoo.com Anne Leidich, Esq. Sierra Club E-mail: anne.leidich@pillsburylaw.com 4403 1st Avenue SE, Suite 402 Cedar Rapids, IA 52402 Michael Lepre, Esq. Wallace L. Taylor, Esq.
E-mail: michael.lepre@pillsburylaw.com E-mail: wtaylor784@aol.com
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 7 of 292 Docket No. 72-1051 ORDER OF THE SECRETARY Harmon, Curran, Spielberg & Eisenberg LLP Hogan Lovells LLP 1725 DeSales Street NW 555 13th Street NW Suite 500 Washington, DC 20004 Washington, DC 20036 Sachin S. Desai, Esq.
Diane Curran, Esq. E-mail: sachin.desai@hoganlovells.com E-mail: dcurran@harmoncurran.com Allison E. Hellreich, Esq.
E-mail: allison.hellreich@hoganlovells.com Robert V. Eye Law Office, LLC Law Office of Nancy L. Simmons 4840 Bob Billings Parkway 120 Girard Boulevard SE Lawrence, KS 66049 Albuquerque, NM 87106 Robert V. Eye, Esq. Nancy L. Simmons, Esq.
E-mail: bob@kauffmaneye.com E-mail: nlsstaff@swcp.com Timothy J. Laughlin, Esq.
E-mail: tijay1300@gmail.com Turner Environmental Law Clinic Eddy-Lea Energy Alliance 1301 Clifton Road 102 S. Canyon Atlanta, GA 30322 Carlsbad, NM 88220 Mindy Goldstein, Esq. John A. Heaton E-mail: magolds@emory.edu E-mail: jaheaton1@gmail.com City of Carlsbad, NM City of Hobbs, NM 1024 N. Edward 2605 Lovington Highway Carlsbad, NM 88220 Hobbs, NM 88242 Jason G. Shirley Garry A. Buie E-mail: jgshirley@cityofcarlsbadnm.com E-mail: gabuie52@hotmail.com Eddy County, NM Lea County, NM 101 W. Greene Street 100 N. Main Carlsbad, NM Lovington, NM 88260 Rick Rudometkin Jonathan B. Sena E-mail: rrudometkin@co.eddy.nm.us E-mail: jsena@leacounty.net
[Original signed by Brian Newell]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 29th day of October, 2018 2
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 8 of 292 UNITED STATES OF AMERICA LBP-19-4 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Paul S. Ryerson, Chairman Nicholas G. Trikouros Dr. Gary S. Arnold In the Matter of Docket No. 72-1051-ISFSI HOLTEC INTERNATIONAL ASLBP No. 18-958-01-ISFSI-BD01 (HI-STORE Consolidated Interim Storage May 7, 2019 Facility)
MEMORANDUM AND ORDER (Ruling on Petitions for Intervention and Requests for Hearing)
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 9 of 292 TABLE OF CONTENTS I. BACKGROUND ................................................................................................................. 2 II. STANDING ANALYSIS ...................................................................................................... 8 A. Beyond Nuclear................................................................................................................ 10 B. Sierra Club ....................................................................................................................... 12 C. Joint Petitioners................................................................................................................ 13 D. Fasken ............................................................................................................................. 16 E. AFES ................................................................................................................................ 17 F. NAC .................................................................................................................................. 19 III. CONTENTION ADMISSIBILITY STANDARDS ............................................................... 21 A. Legal Standards Governing Contention Admissibility ...................................................... 21 B. Late-Filed Contentions ..................................................................................................... 23 C. NEPA Legal Standards .................................................................................................... 24 IV. CONTENTION ANALYSIS ............................................................................................... 26 A. Beyond Nuclear................................................................................................................ 26 B. Sierra Club ....................................................................................................................... 35 C. Joint Petitioners................................................................................................................ 90 D. Fasken ........................................................................................................................... 123 E. AFES .............................................................................................................................. 125 F. NAC ................................................................................................................................ 131 V. INTERESTED GOVERNMENT PETITIONERS ............................................................. 134 VI. RULING ON PETITIONS ............................................................................................... 135 VII. ORDER .......................................................................................................................... 135
- ii -
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 10 of 292 UNITED STATES OF AMERICA LBP-19-4 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Paul S. Ryerson, Chairman Nicholas G. Trikouros Dr. Gary S. Arnold In the Matter of Docket No. 72-1051-ISFSI HOLTEC INTERNATIONAL ASLBP No. 18-958-01-ISFSI-BD01 (HI-STORE Consolidated Interim Storage May 7, 2019 Facility)
MEMORANDUM AND ORDER (Ruling on Petitions for Intervention and Requests for Hearing)
Before the Board are six petitions to intervene and requests for a hearing concerning a license application by Holtec International (Holtec) to construct and operate a consolidated interim storage facility for spent nuclear fuel in Lea County, New Mexico. The petitioners are:
(1) Beyond Nuclear, Inc. (Beyond Nuclear); (2) Sierra Club; (3) Dont Waste Michigan, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, and Nuclear Issues Studies Group (collectively, Joint Petitioners); (4) Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners (together, Fasken); (5) Alliance for Environmental Strategies (AFES); and (6) NAC International Inc. (NAC).
Because Holtec has revised its license application in response to petitioners initial contentions, both the Boards and the NRC Staffs views as to their admissibility have changed over time. It appears the NRC Staff now asserts that two of the six hearing requests should be granted because, in its view (1) Beyond Nuclear has demonstrated standing and its only
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 11 of 292 proffered contention is admissible; and (2) Sierra Club has demonstrated standing and has proffered two admissible contentions (Sierra Club Contentions 1 and 4).1 Holtec opposes the standing of all six petitioners and asserts that none of their proffered contentions is admissible.
The Board concludes that Beyond Nuclear, Sierra Club, and Fasken have demonstrated standing. However, the Board denies Beyond Nuclears petition, because its sole contention no longer identifies a genuine dispute with Holtecs license application. Likewise, neither Sierra Club nor Fasken has proffered an admissible contention and their petitions are therefore denied.
Although the Board does not rule on its standing, AFES has not proffered an admissible contention and its petition is denied for that reason. Joint Petitioners and NAC have neither demonstrated standing nor proffered an admissible contention. Because no petitioner has both demonstrated standing and proffered an admissible contention, this proceeding is terminated.
I. BACKGROUND The nations growing inventory of spent nuclear fuel from commercial nuclear power reactors is generally stored at the reactor sites where it was generated, initially immersed in pools of water and then, after a suitable delay, encased in protective dry-cask storage systems.2 What to do with the spent fuel has vexed scientists, Congress, and regulatory agencies for the 1 See NRC Staffs Consolidated Response to Petitions to Intervene and Requests for Hearing Filed by [AFES], [Beyond Nuclear], [Joint Petitioners], [NAC], and The Sierra Club (Oct. 9, 2018) at 65-67, 72-74 [hereinafter NRC Staff Consol. Answer]; NRC Staff Answer to Motions to Amend Contentions Regarding Federal Ownership of Spent Fuel (Feb. 19, 2019) [hereinafter NRC Staff Answer to Beyond Nuclear and Fasken Motion]. But see Tr. at 331-35 (NRC Staff stating at oral argument that issues identified in Beyond Nuclears contention and in Sierra Club Contention 1 appeared to have been cured for the present time). Initially, the Staff also deemed Sierra Club Contention 8 to be admissible (NRC Staff Consol. Answer at 79), but announced at oral argument that it no longer was taking a position on the admissibility of that contention. Tr. at 261.
2 U.S. Govt Accountability Off., GAO-17-340, Commercial Nuclear Waste: Resuming Licensing of the Yucca Mountain Repository Would Require Rebuilding Capacity at DOE and NRC, Among Other Key Steps at 1 (2017).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 12 of 292 last half-century.3 After rejecting early disposal proposals that ranged from burying nuclear waste in polar ice caps to rocketing it to the sun, a consensus appeared to settle on deep geologic burial in a permanent repository.4 Congress passed the Nuclear Waste Policy Act of 1982 (NWPA),5 which ultimately led the U.S. Department of Energy (DOE) to submit an application to the NRC for authorization to construct a geologic repository at Yucca Mountain, Nevada.6 However, shortly after DOEs application was submitted in June 2008, Congress stopped funding the Yucca Mountain project, and a pending adjudication before an NRC licensing board was suspended in September 2011.7 To date, more than seven years later, Congress has provided no new funding for a permanent nuclear waste repository at Yucca Mountain.
The Holtec proposal before the Board is not for another permanent repository, but for what is acknowledged by its very name to be a temporary solution: a consolidated interim storage facility (CISF). While a license to construct and operate Yucca Mountain would have required DOE to demonstrate a reasonable expectation that it would meet specified performance standards throughout the period of geologic stability, defined to end 1 million years after disposal,8 the licensing requirements for an interim storage facility under 10 C.F.R.
Part 72 apply to renewable terms of no more than 40 years from the date of issuance.9 3 NEI v. EPA, 373 F.3d 1251, 1257 (D.C. Cir. 2004).
4 Id.
5 Nuclear Waste Policy Act of 1982, 42 U.S.C. § 10101 (1983) [hereinafter NWPA].
6 See Letter from Edward F. Sproat III, Director, DOE Office of Civilian Radioactive Waste Management, to Michael F. Weber, Director, NRC Office of Nuclear Material Safety and Safeguards (NMSS) (June 3, 2008) (ADAMS Accession No. ML081560407).
7 U.S. Dept of Energy (High-Level Waste Repository), LBP-11-24, 74 NRC 368 (2011).
8 10 C.F.R. § 63.302.
9 Id. § 72.42(a).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 13 of 292 On March 30, 2017, Holtec submitted an application to the NRC to construct and operate a CISF.10 Holtec intends to construct and operate the first phase of its CISF on approximately 1,000 acres of land in Lea County, New Mexico.11 Holtec seeks to store 8,680 metric tons of uranium (MTUs) in two different models of Holtec canisters, up to 500 canisters in total, for a license period of 40 years.12 On March 19, 2018, the NRC accepted and docketed Holtecs application.13 If its initial license is granted, Holtec plans 19 subsequent expansion phases to be completed over the course of 20 years, with each phase necessitating a license amendment request.14 Holtecs Environmental and Safety Analysis Reports demonstrate marked differences between its proposed facility and a permanent waste repository, such as Yucca Mountain.
Holtecs project is substantially less ambitious. For example, Yucca Mountain was to be constructed to comply with performance standards for one million years, but Holtecs Environmental Report anticipates storage at its proposed facility for 120 years (40 years for initial licensing, plus 80 years of potential extensions), and acknowledges that this 120 year period could be reduced if a permanent geologic repository were finally licensed and began operating.15 While Yucca Mountain was statutorily authorized to store 70,000 metric tons of 10 See Letter from Kimberly Manzione, Holtec Licensing Manager, to Michael Layton, Director, NRC Division of Spent Fuel Management, NMSS (Mar. 30, 2017) (ADAMS Accession No. ML17115A418).
11 [Holtec] HI-STORE [CISF] Environmental Report, at 14 (Rev. 5, Mar. 2019) [hereinafter ER].
The petitioners originally-filed contentions in this proceeding are based on the earlier version of Holtecs Environmental Report. See [Holtec] HI-STORE [CISF] Environmental Report (Rev. 1, Dec. 2017).
12 See ER at 14.
13 See Holtec Internationals HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 12,034 (Mar. 19, 2018).
14 ER at 14.
15 Id.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 14 of 292 high level radioactive waste,16 Holtecs initial license application requests permission to store up to 8,680 MTUs.17 While the Yucca Mountain repository would be constructed at least 700 feet below the surface,18 Holtecs license application contemplates a maximum excavation depth of 25 feet.19 And all parts of the Holtec storage systemboth for transportation and storage would use canisters and casks that have been separately approved by the NRC, and hence are not part of Holtecs license application for the Lea County storage facility.20 On July 16, 2018, the NRC published notice in the Federal Register of an opportunity to request a hearing and petition to intervene by September 14, 2018.21 On September 12, 2018, AFES filed its petition to intervene and request for a hearing.22 On September 14, 2018, NAC, 16 42 U.S.C. § 10134(d).
17 ER at 14. Holtecs Environmental Report, however, analyzes the potential full 20-phase capacity of up to 100,000 MTUs.
18 U.S. DOE, Office of Civilian Radioactive Waste Management, Final Supplemental Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada at S-7 (June 2008).
19 [Holtec] HI-STORE [CISF] Safety Analysis Report at 30 (rev. 0F Jan. 2019) [hereinafter SAR].
The petitioners originally-filed contentions in this proceeding are based on the earlier version of Holtecs SAR. See [Holtec] HI-STORE [CISF] Safety Analysis Report (rev. 0A Oct. 2017).
20 See 10 C.F.R. § 72.214 (Certificate Number 1040). Holtecs license application proposes the exclusive use of the HI-STORM UMAX canister storage system.
21 Holtec Internationals HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919, 32,919 (July 16, 2018) [hereinafter Notice of Opportunity to Request a Hearing].
22 [AFES] Petition to Intervene and Request for Hearing (Sept. 12, 2018) at 1 [hereinafter AFES Pet.].
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 15 of 292 Joint Petitioners, Beyond Nuclear, and Sierra Club timely filed their petitions.23 The NRC also received five petitions from local governmental bodies to participate in the proceeding.24 On September 14, 2018, the Commission received motions to dismiss the proceeding from Beyond Nuclear and Fasken.25 On September 24, 2018, Holtec and the NRC Staff filed answers opposing both motions to dismiss.26 Beyond Nuclear and Fasken filed replies.27 Although the Secretary of the Commission denied both motions on procedural grounds,28 it 23 Petition to Intervene and Request for Hearing of NAC International, Inc. (Sept. 14, 2018)
[hereinafter NAC Pet.]; [Joint Petitioners] Petition to Intervene and Request for an Adjudicatory Hearing (Sept. 14, 2018) [hereinafter Joint Petrs Pet.]; Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Sept. 14, 2018) [hereinafter Beyond Nuclear Pet.]; Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Sept. 14, 2018) [hereinafter Sierra Club Pet.].
24 Petition by Eddy-Lea Energy Alliance to Participate as an Interested Local Governmental Body (Sept. 4, 2018) [hereinafter ELEA Pet.]; Corrected Petition by the Board of Commissioners for Lea County, New Mexico to Participate as an Interested Local Governmental Body (Sept. 12, 2018) [hereinafter Lea Cty. Pet.]; Petition by the City of Carlsbad, New Mexico to Participate as an Interested Local Governmental Body (Sept. 12, 2018) [hereinafter Carlsbad Pet.]; Petition by the City of Hobbs to Participate as an Interested Local Governmental Body (Sept. 13, 2018)[hereinafter Hobbs Pet.]; Petition by Eddy County to Participate as an Interested Local Governmental Body (Sept. 13, 2018)[hereinafter Eddy Cty. Pet.].
25 Beyond Nuclear, Inc.s Motion to Dismiss Licensing Proceedings for Hi-Store [CISF] and WCS [CISF] for Violation of the [NWPA] (Sept. 14, 2018) [hereinafter Beyond Nuclear Motion to Dismiss]; Motion of [Fasken] to Dismiss Licensing Proceedings for Hi-Store [CISF] and WCS
[CISF] (Sept. 14, 2018) [hereinafter Fasken Motion to Dismiss].
26 [Holtecs] Answer Opposing Beyond Nuclear Motion to Dismiss Licensing Proceeding for HI-STORE [CISF] (Sept. 24, 2018) [hereinafter Holtec Answer to Beyond Nuclear Motion to Dismiss]; [Holtecs] Answer Opposing [Fasken] Motion to Dismiss Licensing Proceeding for HI-STORE [CISF] (Sept. 24, 2018) [hereinafter Holtec Answer to Fasken Motion to Dismiss]; NRC Staffs Response to Motions to Dismiss Licensing Proceedings (Sept. 24, 2018) [hereinafter NRC Staff Response to Motions to Dismiss].
27 Beyond Nuclears Reply to [Holtec], and NRC Staff Responses to Beyond Nuclears Motion to Dismiss (Sept. 28, 2018) [hereinafter Beyond Nuclear Reply on Motion to Dismiss]; Reply of Movants Fasken and PBLRO to Staffs Response to Motions to Dismiss (Sept. 28, 2018)
[hereinafter Fasken Reply to NRC Staff on Motion to Dismiss]; Reply of [Fasken] to [Holtecs]
Response to Motion to Dismiss (Sept. 28, 2018) [hereinafter Fasken Reply to Holtec on Motion to Dismiss].
28 Order of the Secretary, [Holtec] (HI-STORE [CISF]) [and] Interim Storage Partners LLC (WCS
[CISF]) Docket Nos. 72-1051 & 72-1050 (Oct. 29, 2018) (unpublished) [hereinafter Order Denying Motions to Dismiss].
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 16 of 292 observed that Beyond Nuclears concurrently-filed petition incorporated arguments by reference contained in its motion to dismiss.29 The Secretary, therefore, referred both Beyond Nuclears and Faskens motions to the Board to be considered under 10 C.F.R. § 2.309.30 On October 9, 2018, Holtec31 and the NRC Staff32 filed answers to the petitions. Holtec opposed the standing of all petitioners and the admission of all contentions. The NRC Staff supported the standing of two petitioners (Beyond Nuclear and Sierra Club) and the admissibility of four of their contentions (Beyond Nuclears sole contention and Sierra Club Contentions 1, 4, and 8).33 On October 16, 2018, petitioners AFES, Beyond Nuclear, Joint Petitioners, NAC, and Sierra Club filed replies.34 On December 3, 2018, Holtec and the NRC 29 Id. at 2.
30 Id. at 2-3. On December 27, 2018, Beyond Nuclear petitioned the United States Court of Appeals for the District of Columbia Circuit to review the Secretarys Order, which denied Beyond Nuclears Motion to Dismiss and referred it as a petition to this Board. That appeal remains pending, although Beyond Nuclear has requested it be held in abeyance pending the outcome of this proceeding. See Notice of Beyond Nuclears Petition for Review of NRC Order in D.C. Circuit U.S. Court of Appeals, Docket Nos. 72-1050/1051 (Jan. 16, 2019).
31 [Holtecs] Answer Opposing [AFES] Petition to Intervene and Request for Adjudicatory Hearing on [Holtecs] HI-STORE [CISF] Application (Oct. 9, 2018) [hereinafter Holtec Answer to AFES]; [Holtecs] Answer Opposing Beyond Nuclears Hearing Request and Petition to Intervene on [Holtecs] HI-STORE [CISF] Application (Oct. 9, 2018) [hereinafter Holtec Answer to Beyond Nuclear]; [Holtecs] Answer Opposing [NACs] Petition to Intervene and Request for Hearing on [Holtecs] HI-STORE [CISF] Application (Oct. 9, 2018) [hereinafter Holtec Answer to NAC]; [Holtecs] Answer Opposing Sierra Clubs Petition to Intervene and Request for Adjudicatory Hearing on [Holtecs] HI-STORE [CISF] Application (Oct. 9, 2018) [hereinafter Holtec Answer to Sierra Club]; [Holtecs] Answer Opposing [Joint Petitioners] Petition to Intervene and Request for an Adjudicatory Hearing on [Holtecs] HI-STORE [CISF] Application (Oct. 9, 2018) [hereinafter Holtec Answer to Joint Petrs].
32 NRC Staff Consol. Answer.
33 The NRC Staff also did not oppose the admissibility of NAC Contention 3, but deemed it to be moot inasmuch as the Staff opposed NACs standing.
34 Consolidated Response by Petitioner [AFES] to Answers by [Holtec] and NRC Staff (Oct. 16, 2018) [hereinafter AFES Reply]; Beyond Nuclears Reply to Oppositions to Hearing Request and Petition to Intervene (Oct. 16, 2018) [hereinafter Beyond Nuclear Reply]; Combined Reply of [Joint Petitioners] to Holtec and NRC Answers (Oct. 16, 2018) [hereinafter Joint Petrs Reply];
Reply in Support of Petition to Intervene and Request for Hearing of [NAC] (Oct. 16, 2018)
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 17 of 292 Staff filed supplemental responses opposing consideration of Faskens motion to dismiss as a petition.35 Fasken filed a reply on December 10, 2018.36 The Board heard oral argument on January 23 and 24, 2019 in Albuquerque, New Mexico. Numerous motions proffering new and amended contentions that were filed after oral argument are addressed infra.
II. STANDING ANALYSIS In a licensing proceeding such as this, the NRC must grant a hearing upon the request of any person whose interest may be affected by the proceeding.37 However, to determine whether a petitioner has a sufficient interest, the Commission applies contemporaneous judicial concepts of standing.38 Although the Commission instructs us to construe the petition in favor of the petitioner when we determine standing,39 it is nonetheless each petitioners burden to demonstrate that standing requirements are met.40 As relevant here, a petitioner may satisfy this burden in one of three ways.
[hereinafter NAC Reply]; Sierra Clubs Reply to Answers Filed by [Holtec] and NRC Staff (Oct.
16, 2018) [hereinafter Sierra Club Reply].
35 [Holtecs] Answer Opposing [Faskens] Motion / Petition to Intervene on [Holtecs] HI-STORE
[CISF] Application (Dec. 3, 2018) [hereinafter Holtec Supplemental Answer to Fasken Motion to Dismiss]; NRC Staffs Supplemental Response to Motion to Dismiss by [Fasken] (Dec. 3, 2018)
[hereinafter NRC Staff Supplemental Answer to Fasken Motion to Dismiss].
36 Reply of [Fasken] to Holtecs Answer Opposing Movants Motion to Dismiss/Petition to Intervene (Dec. 10, 2018) [hereinafter Fasken Reply to Holtec]; Reply of [Fasken] to NRC Staffs Supplemental Response and Opposition to Motion to Dismiss (Dec. 10, 2018) [hereinafter Fasken Reply to NRC Staff].
37 42 U.S.C. § 2239(a)(1)(A).
38 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-15-25, 82 NRC 389, 394 (2015).
39 Id.
40 See Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-00-05, 51 NRC 90, 98 (2000). 10 C.F.R. § 2.309(d) specifies information that a petitioner should include in its petition to establish standing, but does not set the standard the Board must apply when deciding whether that information is sufficient.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 18 of 292 First, a petitioner may show traditional standing. This requires a showing that a person or organization has suffered or 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 statutes41here primarily the Atomic Energy Act (AEA) and the National Environmental Policy Act (NEPA).42 Second, a petitioner may take advantage of proximity presumptions the Commission has created to simplify standing requirements for individuals who reside within, or have frequent contacts with, a geographic zone of potential harm. In proceedings that involve construction or operation of a nuclear power plant, the zone is deemed to be the area within a 50-mile radius of the site.43 In other proceedings, such as this one, a proximity plus standard is applied on a case-by-case basis, taking into account the nature of the proposed action and the significance of the radioactive source.44 The smaller the risk of offsite consequences, the closer a petitioner must be to be realistically threatened. Although the Commission has not established a clear standard, the relevant distance from a consolidated interim storage facility is likely less than 50 miles because such a storage facility is essentially a passive structure rather than an operating facility, andtherefore [has] less chance of widespread radioactive release.45 If no obvious 41 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009).
42 42 U.S.C. §§ 2011-2297; id. §§ 4321-47.
43 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-07, 71 NRC 133, 138-39 (2010).
44 Ga. Inst. of Tech. (Ga. Tech Res. Reactor, Atlanta, Ga.), CLI-95-12, 42 NRC 111, 116-17 (1995). See Sequoyah Fuels Corp. and Gen. Atomics (Gore, Okla. Site), CLI-94-12, 40 NRC 64, 75 n.22 (1994) ([A] presumption based on geographic proximity is not confined solely to Part 50 reactor licenses, but is also applicable to materials cases where the potential for offsite consequences is obvious.).
45 Consumers Energy Co. (Big Rock Point Indep. Spent Fuel Storage Installation), CLI-07-19, 65 NRC 423, 426 (2007).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 19 of 292 potential for harm exists,46 the petitioner has the burden to show specific and plausible means for how the proposed action will affect them.47 [C]onclusory allegations about potential radiological harm are not sufficient.48 Third, like most petitioners here, an organization may try to establish representational standing based on the standing of one or more individual members. To establish representational standing, an organization must: (1) show that the interests it seeks to protect are germane to its own purpose; (2) identify at least one member who qualifies for standing in his or her own right; (3) show that it is authorized by that member to request a hearing on his or her behalf; and (4) show that neither the claim asserted nor the relief requested requires an individual members participation in the organizations legal action.49 A. Beyond Nuclear Beyond Nuclear states that it is a nonprofit, nonpartisan membership organization that aims to educate and activate the public about the connections between nuclear power and nuclear weapons and the need to abolish both to protect public health and safety, prevent environmental harms, and safeguard our future.50 Of especial relevance, Beyond Nuclear advocates for an end to the production of nuclear waste and for securing the existing reactor waste in hardened on-site storage until it can be permanently disposed of in a safe, sound, and suitable underground repository.51 46 See Sequoyah Fuels, CLI-94-12, 40 NRC at 75 n.22.
47 Nuclear Fuel Servs., Inc. (Erwin, Tenn.), CLI-04-13, 59 NRC 244, 248 (2004).
48 Id.
49 Consumers Energy Co. (Palisades Nuclear Plant), CLI-07-18, 65 NRC 399, 409 (2007).
50 Beyond Nuclear Pet. at 2.
51 Id.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 20 of 292 Beyond Nuclear claims standing on several different theories,52 but we need consider only one. Beyond Nuclear submits the declarations of several members who live near the proposed facility and authorize Beyond Nuclear to represent them.53 One such memberKeli Hatleylives with her husband and small children just one mile away from the proposed facility.54 Indeed, Ms. Hatleys cattle currently range on the land where the facility would be constructed, and she rides there on horseback to manage them.55 If the storage facility is built, Ms. Hatley expects she would have to ride along its fence line.56 The NRC Staff does not oppose Beyond Nuclears claim of standing,57 and the Board agrees. Ms. Hatleys residence is well within the distance that has been found sufficient in other proceedings that involved even smaller spent fuel facilities.58 Holtec opposes Beyond Nuclears standing59 because, Holtec asserts, Beyond Nuclears members have not provided any plausible explanation of how radionuclides or radiation from inside sealed metal canisters emplaced below ground in steel and concrete storage vaults 52 See Beyond Nuclear Pet. at 2-10.
53 See id., Ex. 01, Decl. of Daniel C. Berry, III (Sept. 14. 2018); id. Ex. 03, Decl. of Keli Hatley; id. Ex. 05, Decl. Margo Smith.
54 See id., Ex. 03, Decl. of Keli Hatley ¶ 3.
55 Id. at ¶ 5.
56 Id.
57 NRC Staff Consol. Answer at 8.
58 See, e.g., Pac. Gas & Elec. Co. (Diablo Canyon Indep. Spent Fuel Storage Installation), LBP-02-23, 56 NRC 413, 429 (2002) (ruling 17 miles sufficient and citing other NRC approvals of standing for petitioners within 10 miles of proposed spent fuel pool expansions); Carolina Power
& Light Co. (Shearon Harris Nuclear Power Plant), LBP-99-25, 50 NRC 25, 29-31 (1999)
(according standing to a petitioner 17 miles from spent fuel pool); Fla. Power & Light Co. (St.
Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27 NRC 452, 454-55 (1988), aff'd, ALAB-893, 27 NRC 627 (1988) (conceding standing of individual living within 10 miles of spent fuel pools);
Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), LBP-00-02, 51 NRC 25, 28 (2000) (granting standing to individual with part-time residence located 10 miles from spent fuel pool).
59 Holtec Answer to Beyond Nuclear at 13-18.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 21 of 292 could reach them.60 But the purpose of proximity presumptions is to eliminate the need for such factual demonstrations: When the presumption of having the requisite interest is applied, it becomes unnecessary to establish a causal relationship between the claimed injury and the requested action.61 If Ms. Hatley lacks standing to challenge the storage of much of the nations spent nuclear fuel (potentially up to 100,000 metric tons) one mile from her home, one has difficulty imagining who would have standing. Indeed, at oral argument, Holtecs counsel declined to speculate whether anyone might have standing to challenge its proposed storage facility under Holtecs demanding interpretation of the requirements.62 Beyond Nuclear has demonstrated standing. However, because Beyond Nuclear has not proffered an admissible contention, as discussed infra, its request for an evidentiary hearing must nonetheless be denied.
B. Sierra Club Sierra Club claims to be the oldest and largest environmental organization in the United States, and to be especially concerned about the environmental consequences of nuclear power and nuclear waste.63 Like Beyond Nuclear, Sierra Club submits supporting declarations from several members who live in the vicinity of the proposed facility.64 One memberDanny 60 Id. at 17.
61 N. States Power Co. (Pathfinder Atomic Plant), LBP-90-03, 31 NRC 40, 45 (1990); see also Calvert Cliffs, CLI-09-20, 70 NRC at 917 n.27.
62 Tr. at 272-73.
63 Tr. at 41.
64 See Sierra Club Pet., Decl. of Danny Berry; id., Decl. of Danielle Marie Dyer; id., Decl. of Deanna Maria Dyer; id., Decl. of Gordon Wayne Dyer; id., Decl. of Martha A. Singleterry.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 22 of 292 Berrystates that he lives less than 10 miles away and owns and operates a ranch just three miles away.65 As discussed supra, these distances are well within the limits that have been found to confer standing to challenge much smaller storage facilities, and the NRC Staff agrees that Sierra Club has established standing.66 And again, we are not persuaded by Holtecs argument67 that, even to commence a challenge, an individual who lives sufficiently close to a potentially massive facility for storing much of the nations spent nuclear fuel must first demonstrate with specificity just how radiation might reach them.
Sierra Club has demonstrated standing. However, because Sierra Club has not proffered an admissible contention, as discussed infra, its request for an evidentiary hearing must nonetheless be denied.
C. Joint Petitioners Joint Petitioners are comprised of seven different organizations, each presenting a similar standing issue.68 Although Public Citizen, Inc. and the Nuclear Issues Study Group have each submitted a declaration from a member who lives in New Mexico, neither lives anywhere near the proposed facility.69 The other five organizations rely entirely on declarations from 65 See Sierra Club. Pet., Decl. of Danny Berry ¶ 3. Because Mr. Berry submitted similar declarations on behalf of both Sierra Club and Beyond Nuclear, we consider his declaration only in connection with the standing of Sierra Club. See Big Rock Point ISFSI, CLI-07-19, 65 NRC at 426 (explaining that multiple representations might lead to confusion).
66 NRC Staff Consol. Answer at 8.
67 Holtec Answer to Sierra Club at 14-15.
68 The seven organizations are: Dont Waste Michigan; Citizens for Alternatives to Chemical Contamination; Public Citizen, Inc.; San Luis Obispo Mothers for Peace; Nuclear Energy Information Service; Citizens Environmental Coalition; and Nuclear Issues Study Group.
69 Joint Petrs Pet., Decl. of Petuuche Gilbert. The Declaration of Petuuche Gilbert asserts that he is a member of Public Citizen, Inc. who lives in Pueblo of Acoma, New Mexico. Id., Decl. of
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 23 of 292 members who live in other states. All seven organizations, therefore, base their standing claims not on their members proximity to the proposed facility, but on their proximity to potential transportation routes by which spent nuclear fuel might travel to the proposed facility.
This is too remote and speculative an interest on which to establish standing. As the Commission stated in 2004: [M]ere geographical proximity to potential transportation routes is insufficient to confer standing.70 Even before 2004, licensing boards rejected standing arguments based on proximity to likely transportation routes.71 As the Commission observed in 2001, licensing boards have regularly declined to find that a mere increase in the traffic of radioactive materials near a petitioners residence, without more, constitutes an injury traceable to a licensing decision that primarily affects a site hundreds of miles away.72 Although Joint Petitioners cite one licensing board decision for the proposition that standing may be based on proximity to transportation routes,73 we decline to follow it. In our view, either the result in Duke Cogema was influenced by what that Board characterized as the Leona Morgan. The declaration of Leona Morgan asserts that she is a member of the Nuclear Issues Study Group who lives in Albuquerque, New Mexico.
70 U.S. Dept of Energy (Plutonium Export License), CLI-04-17, 59 NRC 357, 364 n.11 (2004)
(quoting Diablo Canyon ISFSI, LBP-02-23, 56 NRC at 434). See also Energy Solutions, LLC (Radioactive Waste Import/Export Licenses), CLI-11-03, 73 NRC 613, 623 (2011) (denying petitioners standing claim for failing to show there would be any impact from the transport of radioactive materials to be imported).
71 See, e.g., Diablo Canyon ISFSI, LBP-02-23, 56 NRC at 433-34; Pathfinder, LBP-90-03, 31 NRC at 43-44 (denying standing to petitioner who resided one mile from a likely transportation route and merely claimed that an accident along that route would cause an increased radiological dose); accord Exxon Nuclear Co., Inc. (Nuclear Fuel Recovery and Recycling Center), LBP-77-59, 6 NRC 518, 520 (1977) (finding that assertion of injury from spent fuel that would travel on railway track very near property was insufficient to establish standing).
72 Intl Uranium (USA) Corp. (Source Material License Amend.), CLI-01-18, 54 NRC 27, 32 (2001).
73 See Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication), LBP-01-35, 54 NRC 403 (2001), revd in part on other grounds, CLI-02-24, 56 NRC 335 (2002).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 24 of 292 unique circumstances74 surrounding transportation of mixed oxide fuel or, alternatively, the decision is simply an outlier that failed to anticipate the position of the Commission as expressed in later cases.75 Regardless, it is not binding on this Board.
Moreover, other licensing boards have rejected petitioners standing claims because the mere fact that additional radioactive waste will be transported if the NRC licenses a project does not ipso facto establish that there is a reasonable opportunity for an accident to occur at
[any location], or for the radioactive materials to escape because of accident or the nature of the substance being transported.76 Here, although Joint Petitioners try to predict future transportation routes,77 Holtecs proposed facility as yet has no customers, and the routes by which spent fuel might travel to Lea County, New Mexico from nuclear power plants around the country have not yet been established.78 Joint Petitioners standing claims are therefore even more speculative than the rejected claims of petitioners who could at least show a reasonable probability that the transportation routes they lived near would actually be used.79 None of the Joint Petitioners has demonstrated standing. Moreover, because Joint Petitioners have not proffered an admissible contention, as discussed infra, their request for an evidentiary hearing must be denied on that ground as well.
74 Id. at 417.
75 See supra note 70.
76 Pathfinder, LBP-90-03, 31 NRC at 43.
77 Joint Petrs Pet. at 11-13.
78 Holtec Answer to Joint Petrs at 20.
79 Cf. Intl Uranium (USA) Corp. (Source Material License Amendment), LBP-01-08, 53 NRC 204, affd, CLI-01-18, 54 NRC 27 (2001) (denying standing where petitioner resided merely one block from route over which applicant proposed to transport radioactive materials); Pathfinder, LBP-90-03, 31 NRC at 43-44 (denying standing to petitioner who resided one mile from transportation route established with reasonable likelihood).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 25 of 292 D. Fasken As set forth in the Declarations of Tommy E. Taylor,80 Mr. Taylor is Vice President of Fasken Management, LLC, which is the general partner of Fasken Land and Minerals, Ltd.81 Fasken is a member of the Permian Basin Land and Royalty Organization, which is an association of oil and gas producers and royalty owners formed specifically in response to Holtecs proposed facility.82 As stated in Mr. Taylors initial Declaration, Fasken owns and/or leases property related to its oil and gas activities that is approximately two miles from the proposed Holtec site.83 Although Mr. Taylors initial Declaration focused on Faskens economic interests, his supplemental Declaration clarified that he and other Fasken employees routinely go to this area for work-related purposes, such as checking on oil and gas production equipment, regular inspection and maintenance, and repairs as needed.84 Accordingly, he is concerned that the close proximity of Faskens oil and gas properties and the necessity for Faskens employees and myself to regularly attend to such will expose them and myself to radiation from the proposed [CISF].85 80 Mr. Taylor executed his initial Declaration on September 14, 2018. He executed a Supplemental Declaration on December 10, 2018, which was submitted with a motion of the same date, seeking permission to file it. The Commission allows a petitioner some latitude to supplement or cure a standing showing in its reply pleading [so long as] any additional arguments [are] supported by . . . a supplemental affidavit. Strata Energy, Inc. (Ross In Situ Recovery Uranium Project), LBP-12-03, 75 NRC 164, 186 (2012) (citing S. Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, 71 NRC 1, 7 (2010)).
Accordingly, the Board grants the motion and accepts Mr. Taylors Supplemental Declaration.
81 Motion for Permission to File Supplemental Standing Declaration of Tommy E. Taylor, Suppl.
Decl. of Tommy Taylor ¶ 1 (Dec. 10, 2018) [hereinafter Suppl. Decl. of Tommy Taylor].
82 See Fasken Motion to Dismiss, Decl. of Tommy Taylor ¶ 3 (Sept. 14, 2018).
83 Supp. Decl. of Tommy Taylor ¶ 3.
84 Id. ¶ 4.
85 Id. ¶ 5.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 26 of 292 Although Mr. Taylor and other Fasken employees do not live two miles from the Holtec site, we conclude that the extreme closeness of the Fasken site, coupled with a reasonable expectation of regular visits for work-related activities, are sufficient to justify a presumption of standing. In Millstone, by way of comparison, that licensing board found standing based on part-time residence, even though the part-time residence was five times as distant (10 miles) from the storage facility, and the facility itself was a small fraction of the size to which Holtec hopes its facility will grow.86 Fasken has demonstrated standing. However, as discussed infra, because Fasken has not proffered any contention of its own, much less an admissible contention, its request for an evidentiary hearing must nonetheless be denied.
E. AFES AFES describes itself as an environmental group whose members are principally located in the area of Holtecs proposed storage facility.87 It states that its members are working to oppose the small group of economic elites (the one percent), who have gone unchallenged, as they seek to impose their personal economic agendas on the backs of the economically vulnerable people of Southern New Mexico.88 Of especial relevance, AFES is concerned about environmental and health issues related to oil, gas, uranium mining, radioactive waste transportation, disposal or storage and nuclear enrichment and processing.89 86 Millstone, LBP-00-02, 51 NRC at 27-28.
87 AFES Pet. at 1.
88 Id. at 2.
89 Id.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 27 of 292 AFES submitted affidavits from four members, the closest of whom lives 35 miles from the proposed facility.90 One member has worked for the past six months for an employer located 10 miles from the site, although it is unclear how much time she spends there, as she describes her job as including driving around much of Eddy and Lea County.91 All four members state that, on a regular basis, they use the main road between Hobbs and Carlsbad (US62-180, which passes 0.52 miles from the Holtec site).92 We question whether these contacts are sufficient to establish standing. Although 35 miles is within the 50-mile proximity presumption that applies to licensing reactors, it is nearly twice the distance that any licensing board has found sufficient to support standing in a spent fuel storage case.93 Having an employer located 10 miles from the site does suggest some similarity to the facts in Millstone, where a part-time residence at that distance from a storage facility was found sufficient.94 However, the record suggests that the pertinent AFES member might not actually spend her work day at that location and does not reflect for how long she expects her six-month employment to continue.95 Finally, we do not find that necessarily fleeting contacts with land near the proposed facility by using a highway that passes a half mile away are sufficient to qualify.
On the other hand, the proposed Holtec facility is envisioned as potentially much larger than any previous spent fuel storage facility. In this uncharted area, we are reluctant to rule 90 See AFES Pet., Ex. 5, Aff. of Nicholas R. Maxwell ¶ 5 (Sept. 12, 2018) [hereinafter Aff. of Nicholas R. Maxwell].
91 Id., Ex. 3, Aff. of Lorraine Villegas ¶ 6 (Sept. 12, 2018) [hereinafter Aff. of Lorraine Villegas].
92 Aff. of Nicholas R. Maxwell ¶ 6; Aff. of Lorraine Villegas ¶ 7; AFES Pet., Ex. 2, Aff. of Roase Gardner ¶ 9 (Sept. 12, 2018); id., Ex. 4, Aff. of Noel V. Marquez ¶ 9 (Sept. 12, 2018).
93 See Diablo Canyon ISFSI, LBP-02-23, 56 NRC at 428-29 (ruling 17 miles sufficient for standing).
94 See Millstone, LBP-00-02, 51 NRC at 27-28.
95 Aff. of Lorraine Villegas, ¶ 6.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 28 of 292 unnecessarily on what geographic distance might or might not be sufficient for a presumption of standing. Because AFES plainly has not submitted an admissible contention, as discussed infra, we deny its request for an evidentiary hearing on that ground alone and make no determination of its standing.
F. NAC NAC describes itself as a leading nuclear fuel cycle technology company that provides storage systems for [spent nuclear fuel].96 According to NAC, much of the design information for its canisters is proprietary, and because NAC has not licensed or authorized anyone to furnish its proprietary design information to Holtec this information is not available to Holtec.97 NAC therefore claims that it will be harmed if NACs canisters are placed in Holtecs storage facility. Specifically, NAC claims that, lacking NACs proprietary information, Holtec would be unable to adequately evaluate or respond to events that affect NAC canisters stored in Holtecs facility.98 As a result, NAC alleges, it would likely (1) be urged to provide its proprietary information to Holtec; (2) be harmed in its reputation for safety and reliability; (3) be subject to harm to its proprietary interest in its own NRC Certificates of Compliance for spent fuel storage systems approved under Part 72; and/or (4) be subject to third-party claims of financial responsibility.99 NAC claims standing on the basis of these alleged injuries. Alternatively, NAC asks the Board to grant it discretionary intervention under 10 C.F.R. § 2.309(e).
The difficulty with NACs standing claim is that it has nothing at stake at the present time.
Holtecs present application, if granted, would not allow storage of NAC canisters at the 96 NAC Pet. at 4.
97 Id.
98 See id.
99 Id. at 5.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 29 of 292 proposed facility. On the contrary, the applications proposed License Condition 9 would authorize storage only in casks designated in accordance with the Certificate of Compliance for Holtecs HI-STORM UMAX storage system.100 That Certificate, in turn, only allows storage of two specific type of Holtec canistersnot NACs or anyone elses canisters.101 When and if, at some future time, Holtec wants NRC authorization to store NAC canisters at Holtecs facility, then both Holtecs Certificate of Compliance and facility license would need to be amended, and NAC could seek to participate in proceedings concerning those amendments. NACs counsel creatively posits various reasons why NAC might find those alternatives less satisfactory,102 but the unavoidable reality is that NAC has not suffered and cannot suffer any injury that entitles it to standing in the present proceeding.
NAC has not demonstrated standing. Moreover, because NAC has not proffered an admissible contention, as discussed infra, its request for an evidentiary hearing must be denied on that ground as well.
For similar reasons, the Board denies NACs alternative request for discretionary intervention. NACs further participation would significantly and improperly broaden the scope of this proceeding, contrary to 10 C.F.R. § 2.309(e)(2), because NAC seeks to address concerns that will not be affected by whether or not the NRC grants the license Holtec is seeking.
100 See Proposed License for Independent Storage of Spent Nuclear Fuel and High-Level Radioactive Waste (ADAMS Accession No. ML17310A223) [hereinafter Holtec Proposed License].
101 See HI-STORM UMAX Certificate of Compliance No. 1040, Appendix B, Amend. No. 2, Approved Contents and Design Features for the HI-STORM UMAX Canister Storage System (ADAMS Accession No. ML16341B107).
102 Tr. at 179-209.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 30 of 292 III. CONTENTION ADMISSIBILITY STANDARDS A. Legal Standards Governing Contention Admissibility For its hearing request to be granted, in addition to demonstrating standing, a petitioner must proffer at least one admissible contention.103 An admissible contention must: (1) state the specific legal or factual issue to be raised or controverted; (2) provide a brief explanation for the basis of the contention; (3) demonstrate that the issue raised in the contention is within the scope of the proceeding; (4) 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; (5) concisely state the alleged facts or expert opinions that support the petitioners position and on which the petitioner intends to rely at an evidentiary hearing, including references to the specific sources and documents on which the petitioner intends to rely; and (6) show that a genuine dispute exists on a material issue of law or fact by referring to specific portions of the application that the petitioner disputes or, if the application is alleged to be deficient, by identifying such deficiencies and the supporting reasons for this allegation.104 A further requirement applies to several contentions addressed infra. No NRC rule or regulation may be challenged in a contention unless the petitioner seeks and obtains a waiver from the Commission in accordance with 10 C.F.R. § 2.335. No petitioner in this proceeding has sought such a waiver.
The contention admissibility rules are strict by design.105 The Commission has observed that they properly reserve our hearing process for genuine, material controversies 103 10 C.F.R. § 2.309(a).
104 Id. § 2.309(f)(i)-(vi).
105 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 31 of 292 between knowledgeable litigants.106 Failure to satisfy even one of the requirements requires the Board to reject the contention.107 This six-factor standard resulted from the Commissions effort to raise the threshold bar for an admissible contention.108 Previously, licensing boards would sometimes admit contentions that appeared to be based on little more than speculation[,] and petitioners would try to unearth admissible contentions through cross-examination.109 Rather than expend agency time and resources on vague and unsupported claims,110 the Commission strengthened the contention admissibility standards to what they are todaystandards that afford evidentiary hearings only to those who proffer at least some minimal factual and legal foundation in support of their contentions.111 Therefore, although a petitioner need not prove its contention at this stage, mere notice pleading of proffered contentions is insufficient.112 Rather, the NRC requires a petitioner to read the pertinent portions of the license application, including the Safety Analysis Report and the Environmental Report, state the applicants position and the petitioners opposing view, and explain why it disagrees with the applicant.113 106 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-08, 75 NRC 393, 396 (2012) (quoting Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 219 (2003)).
107 See Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-05, 83 NRC 131, 136 (2016).
108 Duke Energy Co. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 334 (1999).
109 Id.
110 See Changes to the Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).
111 Oconee, CLI-99-11, 49 NRC at 334.
112 Fansteel, Inc. (Muskogee, Okla. Site), CLI-03-13, 58 NRC 195, 203 (2003).
113 Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170-71 (Aug. 11, 1989).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 32 of 292 B. Late-Filed Contentions As some petitioners have filed motions to either amend their contentions or file new contentions, an explanation of the rules for amended or late-filed contentions is necessary.114 Because the initial deadline for filing contentions was September 14, 2018,115 petitioners seeking to amend their original contentions or proffer new ones after that date must meet the good cause standard in 10 C.F.R. § 2.309(c)(1).116 Good cause exists if the petitioner can show (1) the information upon which the amended or new contention is based was not previously available; (2) the information upon which the filing is based is materially different from information previously available;117 and (3) the filing has been submitted in a timely fashion based on the availability of the subsequent information.118 Previously available information that 114 Motion by [Joint Petitioners] to File a New Contention (Jan. 17, 2019); Sierra Clubs Motion to File a New Late-Filed Contention (Jan. 17, 2019); Motion of [Joint Petitioners] to Amend Their Contentions 4 and 7 Regarding Holtecs Decision to Have No Dry Transfer System Capability and Holtecs Policy of Returning Leaking, Externally Contaminated or Defective Casks and/or Canisters to Originating Reactor Sites (Feb. 18, 2019) [hereinafter Joint Petrs Motion to Amend Contentions 4 & 7]; Sierra Clubs Additional Contentions in Support of Petition to Intervene and Request for Adjudicatory Hearing (Feb. 25, 2019) [hereinafter Sierra Club Contentions 27, 28, 29]; Sierra Clubs Motion to File New Late-Filed Contentions 27, 28, and 29 (Feb. 25, 2019)
[hereinafter Sierra Clubs Motion to File New Late-Filed Contentions 27, 28, and 29].
115 See Notice of Opportunity to Request a Hearing, 83 Fed. Reg. at 32,919.
116 See 10 C.F.R. § 2.309(b); see also id. § 2.309(f)(2).
117 Materially different in this context concerns the type or degree of difference between the new information and previously available information. Fla. Power & Light Co. (Turkey Point Units 6 & 7), LBP-17-6, 86 NRC 37, 48, affd, CLI-17-12, 86 NRC 215 (2017).
118 10 C.F.R. § 2.309(c)(1). See also Shaw AREVA MOX Servs. (Mixed Oxide Fuel Fabrication Facility), LBP-08-11, 67 NRC 460, 493 (2008) (observing that many licensing boards have found 30 days from a triggering event for proffering a new or amended contention to be timely).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 33 of 292 is newly acquired by the petitioner does not constitute good cause,119 as new and amended contentions must be based on new facts not previously available.120 C. NEPA Legal Standards NEPA mandates that federal agencies prepare an environmental impact statement (EIS) before undertaking any major Federal actions significantly affecting the quality of the human environment.121 The preparation of an EIS is meant to ensure that federal agencies will not act on incomplete information, only to regret [their] decision after it is too late to correct.122 NEPA requires agencies to take a hard look at environmental consequences of the proposed action,123 and imposes a duty upon the agency to both consider every significant aspect of the environmental impact of a proposed action and inform the public of its analysis and conclusion.124 NEPAs hard look mandate notwithstanding, the agency is not obligated to analyze every conceivable aspect of the project before it.125 Instead, this hard look is subject to a rule of reason,126 meaning that the agency need not perform analyses concerning events that would 119 Kan. Gas & Elec. Co. (Wolf Creek Generating Station, Unit 1), LBP-84-17, 19 NRC 878, 886 (1984).
120 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC 479, 493 n.70 (2012) (emphasis in original).
121 See 42 U.S.C. § 4332(2)(C); see also Nat. Res. Def. Council v. NRC, 823 F.3d 641, 643 (D.C. Cir. 2016).
122 Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 371 (1989).
123 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (quoting Kleppe v.
Sierra Club, 427 U.S. 390, 410 n.21 (1976)).
124 Balt. Gas & Elec. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97, 103 (1983) (quoting Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 553 (1978)).
125 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 349 (2002).
126 Nat. Res. Def. Council v. Morton, 458 F.2d 827, 834 (D.C. Cir. 1972).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 34 of 292 be considered worst case scenarios involving the project,127 or those considered remote and highly speculative.128 NEPA does not necessitate certainty or precision nor does it mandate particular results from the agency.129 Rather, NEPA requires an estimate of anticipated (not unduly speculative) impacts from the agency.130 The statutory obligations seek to guarantee process, not specific outcomes.131 At this stage of the proceeding, the NRC Staff has not issued an EIS for the proposed Holtec facility. NRC regulations nonetheless require petitioners to file environmental contentions based on documents or other information at the time the petition is to be filed, i.e.,
the applicants Environmental Report.132 Although it is the NRC Staffs responsibility to comply with NEPA in its later-issued EIS,133 we analyze contentions challenging the Environmental Report now as if those contentions will migrate as challenges to the Staffs later-issued EIS.134 127 Private Fuel Storage, L.L.C., CLI-02-25, 56 NRC at 352.
128 Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 754-55 (3d Cir. 1989).
129 La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-05-20, 62 NRC 523, 536 (2005).
130 Id. (emphasis in original).
131 Massachusetts v. NRC, 708 F.3d 63, 67 (1st Cir. 2013).
132 10 C.F.R. § 2.309(f)(2). See also Powertech (USA), Inc. (Dewey-Burdock In Situ Uranium Recovery Facility), CLI-16-20, 84 NRC 219, 231 (2016).
133 42 U.S.C. §§ 4321 et seq.
134 See Powertech, CLI-16-20, 84 NRC at 231; see also Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Neb.), CLI-15-17, 82 NRC 33, 42 n.58 (2015) ([A] contention migrates when a licensing board construes a contention challenging [an Environmental Report]as a challenge to a subsequently issued Staff NEPA document without the petitioner amending the contention.).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 35 of 292 IV. CONTENTION ANALYSIS A. Beyond Nuclear Understanding Beyond Nuclears sole contention (as well as some of the contentions proffered by other petitioners135) requires further explanation of the statutory scheme that was established by the NWPA. As discussed supra, Congress contemplated that DOE would build a national nuclear waste repository, but that the nuclear power companies would help pay for it.
Under section 302 of the NWPA, power reactor licensees were required to pay into a Nuclear Waste Fund for construction of the repository.136 In exchange, section 302(a)(5)(B) committed DOE to begin disposing of the nuclear power plants spent fuel no later than January 31, 1998.
When a permanent repository failed to materialize, the power plant licensees sued and began to recover from the federal government substantial damages to cover the cost of continuing to store spent fuel at their reactor sites.137 Contract damage lawsuits under the NWPA are now commonplace, and the federal government pays out damages to power reactor licensees on a regular basis.138 Thus, both DOE and the nuclear power plant owners potentially have an interest in contracting to use Holtecs proposed interim storage facility. DOE might want to take responsibility for the nuclear plants spent fuel, pay Holtec to store it, and stop paying out damages. The nuclear plant owners, on the other hand, might be willing to apply their ongoing damage payments toward paying Holtec to store their spent fuel, so that it would be off their sites and no longer their responsibility to keep secure. Because the NWPA was drafted on the 135 See, e.g., Sierra Club Contention 1 and Joint Petitioners Contention 2, discussed infra.
136 42 U.S.C. § 10222.
137 See, e.g., Natl Assn of Regulatory Util. Commrs v. U.S. Dept of Energy, 736 F.3d 517, 520 (D.C. Cir. 2013); Me. Yankee Atomic Power Co. v. United States, 225 F.3d 1336, 1341-42 (Fed. Cir. 2000); Ind. Mich. Power Co. v. U.S. Dept of Energy, 88 F.3d 1272, 1276-77 (D.C.
Cir. 1996).
138 See, e.g., Natl Assn of Regulatory Util. Commrs, 736 F.3d at 520.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 36 of 292 assumption that DOE would not accept title to spent nuclear fuel until a permanent repository becomes operational, however, it appears (as discussed infra) that in general only the second possibility would be consistent with the terms of the statute.
Beyond Nuclears contention, as originally proffered in its hearing petition, therefore stated:
The NRC must dismiss Holtecs license application and terminate this proceeding because the application violates the NWPA. The proceeding must be dismissed because the central premise of Holtecs applicationthat the U.S. Department of Energy (DOE) will be responsible for the spent fuel that is transported to and stored at the proposed interim facilitiesviolates the NWPA. Under the NWPA, the DOE is precluded from taking title to spent fuel unless and until a permanent repository has opened. 42 U.S.C. §§ 10222(a)(5)(A), 10143.139 In other words, initially Beyond Nuclear assumed that the central premise of Holtecs application was that Holtec would contract with DOE to store nuclear power companies spent fuel. This would be unlawful under the NWPA, Beyond Nuclear contended.
After Holtec conceded that (with limited exceptions) such contracts would indeed be unlawful at the present time,140 Beyond Nuclear moved to amend its contention to add the following statement:
Language in Rev. 3 of Holtecs Environmental Report, which presents federal ownership as a possible alternative to private ownership of spent fuel, does not render the application lawful. As long as the federal government is listed as a potential owner of the spent fuel, the application violates the NWPA.141 As discussed infra, the Board grants Beyond Nuclears motion to amend its contention, in order to allege that even presenting federal ownership as a possible alternative to private ownership of spent fuel violates the NWPA.
139 Beyond Nuclear Pet. at 10.
140 Tr. at 250-52.
141 Motion by Petitioners Beyond Nuclear and Fasken to Amend Their Contentions Regarding Federal Ownership of Spent Fuel to Address [Holtecs] Revised License Application (Feb. 6, 2019) at 8 [hereinafter Beyond Nuclear and Fasken Motion to Amend].
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 37 of 292 As events have unfolded, therefore, Beyond Nuclears contention now raises this fundamental question: May the NRC license Holtecs storage facility to enter into lawful contracts with potential customers, including those that may later become lawful? Or, if Congress were to expand the category of lawful contracts (specifically, to include most contracts with DOE), would it be necessary (as Beyond Nuclear claims) for Holtec to re-submit its license application and for the NRC to re-notice a new opportunity for a hearing?142 We conclude that, to implement the will of Congress in such circumstances, the NRC need not require Holtec to begin the licensing process all over again.
As explained supra, initially Beyond Nuclear filed with the Commission a motion to dismiss the Holtec licensing proceeding as violating the NWPA.143 At the same time, out of an abundance of caution, Beyond Nuclear also filed essentially the same claim in the form of a hearing request and contention.144 The Secretary of the Commission denied Beyond Nuclears motion to dismiss on procedural grounds, without prejudice to its underlying arguments, and directed that the matter should proceed before a licensing board on the basis of Beyond Nuclears hearing petition.145 In support of its contention, Beyond Nuclear incorporated by reference portions of its motion to dismiss.146 Beyond Nuclear identified language in Holtecs Environmental Report that said Holtec would enter into a contract with DOE by which DOE will take title to spent fuel and be responsible for transporting it to the site.147 It also identified language in Holtecs Safety 142 See id. at 11 n.5.
143 Beyond Nuclear Motion to Dismiss at 1.
144 Beyond Nuclear Pet.
145 Order Denying Motions to Dismiss at 2.
146 Beyond Nuclear Pet. at 10.
147 Beyond Nuclear Motion to Dismiss at 16 (citing ER, rev. 0 at 1-1, 3-104).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 38 of 292 Analysis Report that said Holtec might either contract with DOE or with nuclear plant owners themselves, leading to an inconsistency in the application documents.148 Beyond Nuclear contended that the first scenario (that is, Holtecs contracting with DOE) would be unlawful under the NWPA. As Beyond Nuclear pointed out, the NWPA provides that until a permanent waste repository (such as Yucca Mountain) opens, the generators and owners of high-level radioactive waste and spent nuclear fuel have the primary responsibility to provide for, and the responsibility to pay the costs of, the interim storage of such waste and spent fuel.149 For this reason, Beyond Nuclear argued, the NWPA states that DOE will take title to spent fuel only following commencement of operation of a repository.150 It is undisputed that no such repository has been licensed or constructed, much less become operational.
The NRC Staff agreed that Beyond Nuclears contention should be admitted to the extent it challenged the inconsistency between Holtecs Environmental Report and its Safety Analysis Report.151 The Staff, however, deemed it premature to take a position on how the applicant will address the inconsistency.152 Holtec, for its part, contended that the inconsistencies were a mistake, that its actual intent is to contract either with DOE or with nuclear plant owners, and that the inconsistencies were in the process of being revised to eliminate any confusion.153 Holtec also suggested it worth noting that Petitioners claims of current NWPA restrictions may well be superseded by 148 Id. at 16 n.4 (emphasis added).
149 42 U.S.C. § 10131.
150 Id. § 10222(a)(5)(A). See also id. § 10143 (Delivery, and acceptance by the Secretary [of Energy], of any high-level radioactive waste or spent nuclear fuel for a repository . . . shall constitute a transfer to the Secretary of title to such waste or spent fuel.) (emphasis added).
151 NRC Staff Consol. Answer at 66.
152 Id. at 66 n.296.
153 Holtec Answer to Beyond Nuclear at 20.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 39 of 292 Congress.154 But Holtec did not initially concede in its response that contracting for DOE to take title to nuclear power companies spent fuel would necessarily be unlawful under the NWPA as currently in effect.
The Board, therefore, was inclined to agree with the NRC Staff that Beyond Nuclears contention was admissible, but to admit it as a legal issue contention for a broader purpose:
that is, to determine whether or not Holtec could lawfully contract directly with DOE to take title to power companies spent nuclear fuel. At the very least, the Board tentatively concluded, Beyond Nuclear had set forth a plausible case that Holtec could not lawfully elect this option, consistent with the NWPA.155 At oral argument, however, Holtecs counsel conceded that, with very limited exceptions, it would violate the NWPA as currently in effect for DOE to take title to nuclear plant owners spent fuel. He stated:
I will agree with you that, on their current legislation, DOE cannot take title to spent nuclear fuel from commercial nuclear power plants, under the current statement of facts, but that could change, depending on what Congress does.156 Holtecs counsel committed, however, that Holtec has no intention of contracting with DOE to accept most nuclear power plants spent fuel unless and until Congress amends the NWPA to make that lawful.157 Meanwhile, Holtec represented, it has every intention of 154 Id. at 21 (citing proposed but unenacted amendments to the NWPA).
155 A contention may state an issue of law or fact. 10 U.S.C. § 2.309(f)(1)(i). As should be obvious, a legal issue contention need not necessarily address every requirement of section 2.309(f)(1), such as the requirement to provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue. Id. § 2.309(f)(1)(v). See U.S. Dept of Energy (High-Level Waste Repository), CLI-09-14, 69 NRC 580, 588-91 (2009) (We agree, for example, with the Boards view in this proceeding that requiring a petitioner to allege facts under section 2.309(f)(1)(v) or to provide an affidavit that sets out the factual and/or technical bases under section 51.109(a)(2) in support of a legal contentionas opposed to a factual contentionis not necessary.).
156 Tr. at 250. See also Tr. at 251-52.
157 Tr. at 248.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 40 of 292 proceeding with the project on the assumption it will contract directly with the nuclear plant owners themselves.158 Finally, Holtec has, in fact, revised its Environmental Report to say that the proposed facilitys customers could be either DOE or the nuclear power plant owners.159 In the aftermath of these developments, Beyond Nuclear moved to amend its contention to add the statement set forth above. In essence, Beyond Nuclear now claims that reference to the mere possibility of contracting directly with DOE must be expunged from Holtecs applicationregardless of Holtecs intentions and regardless of whether Congress might amend the NWPA.
Because Beyond Nuclear seeks to amend its contention after the deadline for filing petitions, we must first consider whether its motion to file the contention satisfies the three-prong test in 10 C.F.R. § 2.309(c)(1)(i)-(iii). Although Holtec argues to the contrary,160 we conclude that it does. Holtecs revised Environmental Report (Rev. 3) was not available until January 17, 2019. Its revised Environmental Report is materially different from Holtecs original license application because it replaces unequivocal language regarding DOE ownership of spent fuel with language stating that either DOE or private entities will own the spent fuel.
Beyond Nuclears motion to amend was timely filed less than three weeks after the availability of Holtecs revised Reportwell within the 30 days in which licensing boards have generally allowed petitioners to respond to new information.161 We therefore grant Beyond Nuclears motion to amend.
158 Id.
159 See ER at 3-117.
160 Holtec Opposition to Beyond Nuclear and Fasken Motion to Amend Their Contentions Regarding Federal Ownership of Spent Fuel to Address [Holtecs] Revised License Application (Feb. 19, 2019) at 2-6 [hereinafter Holtec Opposition to Beyond Nuclear and Fasken Motion].
The NRC Staff response addresses the admissibility of the amended contention without considering its timeliness. See NRC Staff Answer to Beyond Nuclear and Fasken Motion.
161 See Shaw AREVA MOX Servs., LBP-08-11, 67 NRC at 493.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 41 of 292 Turning to the amended contention itself, however, we conclude that Beyond Nuclear no longer identifies a genuine dispute with Holtecs license application. The inconsistency between Holtecs Environmental Report and its Safety Analysis Report has been fixed: Holtecs application now consistently says that its customers will be either DOE or the nuclear power plant owners. As Holtecs proposed License Condition 17 states, it will undertake construction only after it has established a definitive agreement with the prospective user/payer for storing the used fuel (USDOE and/or a nuclear plant owner).162 At the same time, Beyond Nuclear, Holtec, and this Board all agree that, with limited exceptions, DOE may not lawfully take title to spent nuclear waste under the NWPA as currently in effect.163 Beyond Nuclear claims that the mere mention of DOE renders Holtecs license application unlawful. But that is not so. First, DOE does, in fact, already hold title to a relatively small amount of spent nuclear fuel from commercial reactors that could lawfully be stored at Holtecs facility in the future without violating the NWPA.164 Second, the Board assumes Holtec will honor its commitment not to contract unlawfully with DOE to store any other spent nuclear fuel (that is, the vast majority of spent fuel from commercial reactors, which is currently owned 162 Holtec Proposed License at 2.
163 Although Beyond Nuclear, Holtec, and the Board are all in agreement, the NRC Staff has not taken a position, despite having multiple opportunities to do so. See NRC Staff Answer to Beyond Nuclear and Fasken Motion. Accordingly, the Staff would find Beyond Nuclears amended contention admissible specifically as a challenge to whether the application may propose a license condition that includes the potential for DOE ownership of spent fuel to be stored at the Holtec facility. Id. at 2. The Staff cautions, however, that in agreeing that the contention is admissible in part, the Staff takes no position on the underlying merits of the contention. Id. As best we can tell, the Staff would prefer the Board address the issue as a legal issue contention, precipitating yet another round of briefing and perhaps another oral argument. After thus far receiving well over a thousand pages of briefs and conducting two days of oral argument, the Board is prepared to address this legal issue in the context of deciding contention admissibility.
164 Tr. at 237, 249-50.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 42 of 292 by the nuclear power companies). Likewise, we assume DOE would not be complicit in any such unlawful contracts.
Holtec represents that it is committed to going forward with the project by contracting directly with nuclear plant owners that currently hold title to their spent fuel.165 Whether Holtec will find that alternative commercially viable is not an issue before the Board, because the business decision of whether to use a license has no bearing on a licensees ability to safely conduct the activities the license authorizes. As the Commission instructs us, the NRC is not in the business of regulating the market strategies of licensees or determining whether market strategies warrant commencing operations.166 Holtec readily acknowledges that it hopes Congress will change the law and allow it in most instances to contract directly with DOE to store spent nuclear fuel.167 Meanwhile, we assume that Holtechaving acknowledged on the record that (with limited exceptions) it would be unlawful to contract with DOE under the NWPA as currently in effectwill not try to do just that. Nor may we assume that DOE would be complicit in a violation of the NWPA.168 On the contrary, DOE has also taken the position publicly that it may not take title to most private plant companies spent nuclear fuel without violating the NWPA as currently in effect.169 165 Tr. at 248.
166 La. Energy Servs. (Natl Enrichment Facility), CLI-05-28, 62 NRC 721, 726 (2005) (quoting Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, N.M. 87174), CLI-01-4, 53 NRC 31, 48-49 (2001)).
167 Tr. at 248, 250.
168 A presumption of regularity applies to federal agencies, which should be assumed to act properly in the absence of evidence to the contrary. See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996); United States v. Chem. Found, Inc., 272 U.S. 1, 14-15 (1926).
169 See, e.g., Final Interpretation of Nuclear Waste Acceptance Issues, 60 Fed. Reg. 21,793, 21,793-94, 21,797 (1995); N. States Power Co. v. U.S. Dept of Energy, 128 F.3d 754, 756 (D.C. Cir. 1997) (The Department also took the position that it lacks statutory authority under the Act to provide interim storage.) (quoting 60 Fed. Reg. at 21,794); Ind. Mich. Power Co. v.
U.S. Dept of Energy, 88 F.3d 1272, 1274 (D.C. Cir. 1996) (The [DOE] also determined that it
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 43 of 292 Neither the facts nor the law, therefore, remain in dispute. Holtec seeks a license that would allow it to enter into lawful customer contracts today, but also permit it to enter into additional customer contracts if and when they become lawful in the future. If Congress decides to amend the NWPA to allow DOE to take title to spent nuclear fuel before a national nuclear waste repository becomes operational, the only difference would be that DOE could then lawfully contract with Holtec to store the same spent fuel that presently belongs to the nuclear power plant owners. The NRC Staff assures us that it is reviewing Holtecs application in light of both possibilities: [T]he Staff bases its safety and environmental reviews on the application as presented, which seeks a license on the basis that either DOE or private entities may hold title to the waste.170 We see no discernable purpose that would be served, in such circumstances, by requiring Holtec to file a new or amended license application for its storage facility or by the NRC entertaining a fresh opportunity to request a hearing. Beyond Nuclear correctly points out that the Administrative Procedure Act (APA) requires federal agencies to follow the law,171 but we do not interpret either the APA or NWPA to require the NRC to perform a useless act.
Beyond Nuclears contention, as amended, is not admitted.172 had no authority under the NWPA to provide interim storage in the absence of a facility that has been authorized, constructed and licensed in accordance with the NWPA.).
170 NRC Staffs Consolidated Response to [Joint Petitioners] and Sierra Clubs Motions to File New Contentions (Feb. 19, 2019) at 9 [hereinafter NRC Staff Response to Joint Petrs and Sierra Club Motions].
171 Beyond Nuclear Motion to Dismiss at 12.
172 Although Fasken purports to join in Beyond Nuclears motion to amend, it may not properly do so. As explained infra, Fasken did not initially submit an admissible contention of its own, and its hearing request must therefore be denied. In any event, the procedural point is moot, because the Board rules that Beyond Nuclears contention, as amended, is not admissible.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 44 of 292 B. Sierra Club
- 1. Sierra Club Contention 1 Sierra Clubs Contention 1 originally stated:
The NRC has no authority to license the Holtec CIS facility under the NWPA nor the AEA. Holtec has said that DOE must take title to the waste, but the NWPA does not authorize DOE to take title to spent fuel in an interim storage facility. The AEA has no provision for licensing a CISF.173 On the same day Beyond Nuclear moved to amend its contention, Sierra Club moved to amend Sierra Club Contention 1 to add exactly the same statement:
Language in Rev. 3 of Holtecs Environmental Report, which presents federal ownership as a possible alternative to private ownership of spent fuel, does not render the application lawful. As long as the federal government is listed as a potential owner of the spent fuel, the application violates the NWPA.174 Insofar as Sierra Club Contention 1 now asserts that reference to the mere possibility of contracting with DOE must be expunged from Holtecs application, it is substantially similar to Beyond Nuclears amended contention, addressed supra. We therefore likewise grant Sierra Clubs motion to amend Contention 1, but rule it is not admissible for the same reasons that Beyond Nuclears amended contention is not admissible.
Insofar as Sierra Club Contention 1 also asserts that any away-from-reactor interim storage facility is necessarily unlawful under the AEA and/or the NWPA, it is not admissible for other reasons. NRC regulations expressly allow licensing of such facilities.175 Therefore, this argument constitutes an impermissible challenge to NRC regulations that is precluded by 10 C.F.R. § 2.335. Moreover, the United States Court of Appeals for the District of Columbia 173 Sierra Club Pet. at 10-11.
174 Sierra Clubs Motion to Amend Contention 1 (Feb. 6, 2019) at 11 [hereinafter Sierra Club Motion to Amend Contention 1].
175 See generally 10 C.F.R. Part 72; see also id. §§ 72.32(a) & 72.46(d) (referring to requirements pertaining to interim storage facilities not co-located with a power plant).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 45 of 292 Circuit has rejected this aspect of Sierra Club Contention 1ruling that the NRC has authority under the AEA to license such privately owned facilities, and that the NWPA did not repeal or supersede that authority.176 Sierra Club Contention 1, as amended, is not admitted.
- 2. Sierra Club Contention 2 Sierra Club Contention 2 states:
The Holtec Environmental Report, in attempting to describe the purpose and need for this project, claims that [consolidated interim storage] is safer and more secure than storing the waste at the reactor site. However, the environmental report cites no evidence or data to support this assertion. An agency cannot rely on self-serving statements, especially ones with no supporting data, from the prime beneficiary of the project.177 Sierra Club relies on a 2003 report by Dr. Gordon Thompson, who is asserted to be an expert in technical and policy analyses in the fields of energy and environment.178 According to Sierra Club, Dr. Thompsons report documents the benefits of HOSS [hardened on-site storage], and further claims that the [Environmental Report] and subsequent EIS must examine the relative safety of HOSS at reactor sites.179 Although Sierra Club disputes one sentence, Holtecs Environmental Reports purpose and need statement lists multiple reasons to support licensing the proposed facility. For example, decommissioned plants may become greenfields rather than storage facilities, and utilities may eliminate costs and liability by relinquishing responsibility for spent fuel stored on-176 Bullcreek v. NRC, 359 F.3d 536, 538, 543 (D.C. Cir. 2004).
177 Sierra Club Pet. at 17.
178 Id. at 19-20 (citing Gordon Thompson, Robust Storage of Spent Nuclear Fuel: A Neglected Issue of Homeland Security (2003)). For Dr. Thompsons credentials, see Sierra Clubs Motion to Amend Contention 16, attach., Curriculum Vitae for Gordon R. Thompson (Feb. 18, 2019).
179 Sierra Club Pet. at 19-20.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 46 of 292 site.180 Sierra Club only disputes the safety and security reason, and does not explain how Holtecs assertion of safety and security compromises the application in a material way.
Furthermore, as the NRC Staff points out,181 Sierra Club fails to show that an analysis of HOSS at reactor sites is material to the environmental review required by NEPA or the Agencys corresponding regulations.
Sierra Club Contention 2 is not admitted.
- 3. Sierra Club Contention 3 Sierra Club Contention 3 states:
The statement in the [Environmental Report] that [consolidated interim storage] is safer and more secure than storage at a reactor site contradicts the NRCs Continued Storage Rule, which concludes that spent radioactive fuel can be safely stored at a reactor site indefinitely. Therefore, there is no basis for accepting the statement in the [Environmental Report], and there is no purpose and need for the Holtec project.182 Similar to Sierra Club Contention 2, this contention also challenges the safer and more secure language in the purpose and need section of Holtecs Environmental Report. Here, Sierra Club disputes that there is a purpose or need for the proposed facility, because the NRCs Continued Storage Rule and Continued Storage Generic EIS (GEIS) determined that at-reactor storage for an indefinite period would generally result in only small environmental impacts.183 Sierra Club further alleges that the proposed facility would cause increased risks due to the risks of transporting the waste to the [consolidated interim storage] site and the 180 ER at 1-6.
181 NRC Staff Consol. Answer at 70.
182 Sierra Club Pet. at 21.
183 Id. at 22. See 10 C.F.R. § 51.23 [hereinafter Continued Storage Rule]; see also 1 NMSS,
[GEIS] for Continued Storage of Spent Nuclear Fuel, NUREG-2157, at 5-48 (Sept. 2014)
(ADAMS Accession No. ML14196A105) [hereinafter Continued Storage GEIS].
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 47 of 292 increased risk of so much waste being stored in one place.184 Finally, Sierra Club incorporates all of its allegations from Contention 2 in support of this contention.185 We agree with the NRC Staff186 and Holtec187 that Sierra Club fails to raise a genuine dispute with the application, because it does not show an actual contradiction between the Environmental Report and the Continued Storage Rule/GEIS. Although the Continued Storage GEIS did find that spent fuel may be stored on-site with minimal environmental impact, it did not endorse any particular storage method or perform any qualitative analysis of the safety benefits of at-reactor storage vs. away-from-reactor consolidated storage. It also found that any additional accumulated impacts from transportation of the entire inventory of spent fuel from multiple reactors to an away-from-reactor ISFSI would be . . . minor.188 Regarding Sierra Clubs assertion that there is no purpose and need if spent fuel can be safely stored at the reactor site indefinitely, Sierra Club does not dispute or even acknowledge the separate reasons for the proposed facility listed in Holtecs Environmental Report. As explained in our discussion of Sierra Club Contention 2, the purpose and need statement also describes how decommissioned plants may become greenfields rather than storage facilities, as well as how utilities can eliminate costs and liability by relinquishing responsibility for spent fuel stored on-site.189 Sierra Club only disputes the safety and security reason, and does not explain how Holtecs assertion of safety and security compromises the application in a material way.
Sierra Club Contention 3 is not admitted.
184 Sierra Club Pet. at 22.
185 Id.
186 NRC Staff Consol. Answer at 70-72.
187 Holtec Answer to Sierra Club at 25-27.
188 Continued Storage GEIS at 5-52.
189 ER at 1-6.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 48 of 292
- 4. Sierra Club Contention 4 Sierra Club Contention 4 states:
Operation of the [consolidated interim storage] site as proposed by Holtec would necessitate the transportation of the radioactive waste from reactor sites to the
[consolidated interim storage] facility. Transportation from the reactors to the
[consolidated interim storage] site carries substantial risks. These risks must be evaluated in the [Environmental Report].190 On its face, Sierra Club Contention 4 appears to be a contention of omissionclaiming that Holtecs Environmental Report does not evaluate transportation risks. In its basis for the contention, however, Sierra Club clarifies that its claim is actually that the Environmental Report does not adequately address these risks.191 Specifically, it asserts that the Environmental Report underestimates both (1) the consequences of severe rail accidents involving shipments of radioactive waste;192 and (2) the likelihood of such accidents.193 Sierra Club relies on the accompanying declaration of Dr. Marvin Resnikoff.194 Although the NRC Staff would admit the contention insofar as it addresses the potential consequences of rail accidents,195 the Board disagrees. The centerpiece of Sierra Clubs argument on this point is a 2001 report by Matthew Lamb and Dr. Resnikoff that evaluated the radiologic consequences of the 2001 Baltimore Tunnel Fire if it had involved spent nuclear fuel.196 The Lamb and Resnikoff report provides a substantially higher estimate of the impacts of a transportation accident than does Holtecs Environmental Report.197 However, Sierra Club 190 Sierra Club Pet. at 22.
191 Id. at 23.
192 Id. at 24-25.
193 Id. at 25-27.
194 See Sierra Club Pet. Decl. of Marvin Resnikoff (Sept. 14, 2018).
195 NRC Staff Consol. Answer at 72-73.
196 Sierra Club Pet. at 24-26.
197 Sierra Club also alleges more generally that the Environmental Report must address risks of radiation emissions during shipment that may occur other than from accidents. But the impact
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 49 of 292 fails to acknowledge that Holtecs analysis took into account the Lamb and Resnikoff estimates, which were deemed unrealistic for reasons that Sierra Club does not address or dispute.
Specifically, the evaluation in Holtecs Environmental Report is based on the DOEs Final Supplemental Environmental Impact Statement (DOE FSEIS) for Yucca Mountain.198 Although the State of Nevada had urged DOE to estimate the consequences of a rail accident in an urban area by using Lamb and Resnikoffs report, DOE declined to do so. On the contrary, DOE concluded that relying on the Lamb and Resnikoff report would result in using parameters that would be at or near their maximum values, whereas DOE guidance for the evaluation of accidents in environmental impact statements . . . specifically cautions against the evaluation of scenarios for which conservative (or bounding) values are selected for multiple parameters because the approach yields unrealistically high results.199 Accordingly, DOE concluded that the State of Nevada estimates [relying on the Lamb and Resnikoff estimates] are unrealistic and . . . do not represent the reasonably foreseeable consequences of severe transportation accidents.200 Holtecs Environmental Report relies on and prominently references the DOE FSEIS in its evaluation of the probable consequences of an accident.201 Dr. Resnikoff is Sierra Clubs expert on Contention 4, and surely can be charged with being familiar with DOEs criticism of his own work. By not addressing or disputing the criticisms of the Lamb and Resnikoff study contained in the DOE FSEIS (on which Holtecs Environmental Report relies), Sierra Club fails of dose along transportation routes from exposure from incident-free transportation is addressed in ER, Rev. 3, § 4.9.3.1 and Tbl. 4.9.1, which Sierra Club fails to acknowledge.
198 DOE, [FSEIS] for a Geologic Repository for the Disposal of Spent Nuclear Waste at Yucca Mountain, Nye County, Nevada (2008) (ADAMS Accession No. ML081750191) [hereinafter DOE FSEIS].
199 DOE FSEIS at Vol. III CR 271 (ADAMS Accession No. ML081750218).
200 Id.
201 ER, Rev. 3 at 4-34.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 50 of 292 to demonstrate a genuine dispute with the application and Contention 4 is inadmissible under 10 C.F.R. § 2.309(f)(1)(vi) for that reason alone.
Moreover, at the very least the unanswered criticisms of Lamb and Resnikoff in the DOE FSEIS require us to conclude that Lamb and Resnikoffs estimates represent a worst case analysis. As Holtecs counsel emphasized at oral argument, the intensity of the 2001 Baltimore Tunnel Fire arose from the flammable contents of the railroad cars.202 Because Holtec will ship spent fuel by dedicated trains, they will contain no such contents.203 Furthermore, because the Federal Railway Administration (FRA) reviews such routes, Holtec would use a route that went through the Baltimore tunnel only if the FRA deemed it appropriate.204 In short, a scenario similar to the 2001 Baltimore Tunnel Fire would be extraordinarily unlikely.
NEPA (and the NRCs implementing regulations205) require only a discussion of reasonably foreseeable impacts. NEPA does not require a worst case analysis, which creates a distorted picture of a projects impacts and wastes agency resources.206 Rather, the purpose of the NRCs environmental review is to inform the decisionmaking agency and the public of a broad range of environmental impacts that will result, with a fair degree of likelihood, from a proposed project, rather than to speculate about worst case scenarios and how to prevent them.207 As to the second prong of Sierra Club Contention 4concerning the likelihood of rail accidentswe agree with both Holtec and the NRC Staff that it is not admissible. The Sierra 202 Tr. at 256.
203 Id. at 256-57.
204 Id. at 257.
205 10 C.F.R. §§ 51.45, 51.61.
206 Private Fuel Storage, CLI-02-25, 56 NRC at 352.
207 Id. at 347.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 51 of 292 Club has proffered no facts or expert opinions to support its assertion that Holtec relies on data that does not incorporate recent information about rail fires and expanded traffic of oil tankers,208 and therefore again fails to demonstrate a genuine dispute.
Sierra Club Contention 4 is not admitted.
- 5. Sierra Club Contention 5 Sierra Club Contention 5 states:
The [Environmental Report] states that waste would be stored at the [consolidated interim storage] facility for up to 120 years until a permanent repository is found.
The [Environmental Report] and the subsequent EIS must address the purpose and need and the environmental impacts if a permanent repository is not found, and the Holtec facility becomes a de facto permanent repository.209 Sierra Club relies on New York v. NRC, 681 F.3d 471, 478 (D.C. Cir. 2012) to support its conclusion that an agency must address the alternative of a permanent repository never being developed.210 As Holtec211 and the NRC Staff212 explain in their responses, Sierra Club is incorrect as a matter of law. Although New York v. NRC did hold that the NRC inadequately performed its NEPA evaluation by not considering the environmental effects of failing to secure permanent storage, the NRC developed its Continued Storage Rule and Generic Environmental Impact Statement (GEIS) as a response to the ruling.213 The Continued Storage Rule addresses Sierra Clubs concern directly: The Environmental Reports . . . are not required to discuss the environmental impacts of spent nuclear fuel storage in . . . an [Independent Spent Fuel Storage 208 Sierra Club Pet. at 25-26.
209 Id. at 27.
210 Id. at 28.
211 Holtec Answer to Sierra Club at 35-37.
212 NRC Staff Consol. Answer at 74-75.
213 New York v. NRC, 681 F.3d 471, 473 (D.C. Cir. 2012). See Final Rule, Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238, 56,241 (Sept. 19, 2014).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 52 of 292 Installation (ISFSI)] for the period following the term of the . . . ISFSI license.214 The Continued Storage Rule incorporates the impact determinations from the Continued Storage GEIS, which considers the environmental impacts of short-term storage (60 years beyond license), long-term storage (100 years beyond license), and indefinite storage.215 NRC regulations bar challenges to the Continued Storage Rule, unless the petitioner obtains a waiver from the Commission.216 Sierra Club has not petitioned for a waiver, and therefore this contention is outside the scope of this proceeding.
Sierra Club Contention 5 is not admitted.
- 6. Sierra Club Contention 6 Sierra Club Contention 6 states:
An [Environmental Report] is required to discuss alternatives to the proposed action. Pursuant to NEPA, this includes an examination of the no-action alternative. The discussion of the no-action alternative in the Holtec
[Environmental Report] is deficient because it does not discuss safer storage methods at the reactor sites, such as HOSS, nor does it acknowledge the NRCs Continued Storage Rule that concludes that waste can be safely stored at the reactor site indefinitely. Furthermore, the [Environmental Report] states that the no-action alternative is a reasonable alternative that would satisfy the purpose and need for the project.217 Sierra Club asserts that NEPA requires substantial treatment of each alternative, rather than what it characterizes as a no-action alternative . . . blandly dismissed with unsupportive statements.218 Framed as a contention of omission, Sierra Club challenges the no-action alternative analysis in section 2.1 of Holtecs Environmental Report as deficient because it 214 10 C.F.R. § 51.23(b).
215 Continued Storage GEIS at 1-13 to -15, 5-4 to -5.
216 See 10 C.F.R. § 2.335(a), (b).
217 Sierra Club Pet. at 29-30.
218 Id. at 31.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 53 of 292 provides no discussion of the relative benefits and costs of leaving the waste at the reactor site compared to the benefits and costs of sending waste from many reactors to the Holtec site.219 Contrary to Sierra Clubs assertions, Holtecs Environmental Report does discuss the relative benefits and costs of maintaining the status quo (leaving the waste at the reactor site) and implementing the proposed action. As Holtec220 and the NRC Staff221 explain, table 2.5 and section 4.14 of the Environmental Report compare the environmental impacts of the project with those of the no-action alternative. Likewise section 9.2.1, section 9.2.2, and tables 9.2.1 through 9.2.5 of the Environmental Report compare the no-action alternatives costs to those of the proposed action. Sierra Clubs contention does not demonstrate a genuine dispute with the application, because it challenges section 2.1 without acknowledging that other sections of the Environmental Report contain the allegedly missing analysis.
Regarding Sierra Clubs concern that the no-action alternative discussion in the Environmental Report does not acknowledge the NRCs Continued Storage Rule, section 2.1 specifically says that the No Action Alternative would not be supportive of the [NRCs]
rulemaking on the Continued Storage of [spent nuclear fuel].222 Additionally, table 2.5.1 and section 4.14 summarize the short and long-term impacts of at-reactor storage, as adopted from the Continued Storage GEIS.223 Not only does Sierra Club ignore this discussion, but it incorrectly states that the Continued Storage Rule concludes that waste can be safely stored at the reactor site indefinitely.224 The Continued Storage Rule incorporates the impact 219 Id.
220 Holtec Answer to Sierra Club at 40.
221 NRC Staff Consol. Answer at 76.
222 ER at 2-1.
223 Id. at 2-21 to -24, 4-63 to -65.
224 Sierra Club Pet. at 30, 32. See also Sierra Club Reply at 25 ([T]he Continued Storage Rule determined that storage at the reactor site is safe.).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 54 of 292 determinations from the Continued Storage GEIS, which merely analyzes the environmental impacts of storing waste at the reactor site after the end of a license. It did not include an analysis of safety benefits nor advocate for a particular storage method. This part of the contention does not raise a genuine dispute with the application.
Regarding Sierra Clubs assertion that the Environmental Report is deficient because it lacks a discussion of safer storage methods . . . such as HOSS, we agree with the NRC Staff225 and Holtec226 that Sierra Club fails to demonstrate how such a discussion would be material to the no-action alternative analysis. HOSS is a method of storage that has not been licensed, must less implemented at any reactor site. The Environmental Report is only required to analyze a no-action alternative of maintaining the status quo. Sierra Club does not explain why analyzing the unused HOSS method is necessary to analyzing the status quo.
Sierra Club Contention 6 is not admitted.
- 7. Sierra Club Contention 7 Sierra Club Contention 7 states:
Holtec relies heavily on the assertion that the Blue Ribbon Commission on Americas Nuclear Future (BRC) has recommended [consolidated interim storage]
as the answer to the countrys nuclear waste problem. On the contrary, the BRC report should not be viewed uncritically and does not necessarily deserve blind support in assessing the Holtec application. Holtecs [Environmental Report]
therefore mischaracterizes both the BRC reports conclusions and the relative risks of [consolidated interim storage] versus onsite storage. The EIS must therefore independently and fully address the relative risks and benefits of both storage options.227 Sierra Club asserts that Holtecs proposed storage facility is dictated to a great extent by the BRC report.228 Sierra Club then further alleges that Holtecs Environmental Report 225 NRC Staff Consol. Answer at 77.
226 Holtec Answer to Sierra Club at 38.
227 Sierra Club Pet. at 32.
228 Id.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 55 of 292 mischaracterizes both the BRC reports conclusions and the relative risks of [consolidated interim storage] versus onsite storage.229 Sierra Club claims that Holtecs Environmental Report and the NRCs subsequent EIS must independently compare the risks and benefits of Holtecs proposed interim storage facility with the risks and benefits of storing spent fuel at the reactor sites where it was generated.
Sierra Club Contention 7 fails to raise a genuine dispute with Holtecs application, as required by 10 C.F.R. § 2.309(f)(1)(vi). Holtecs Environmental Report contains precisely the risk/benefit analysis that Sierra Club seeks,230 and Sierra Club does not challenge it.
Section 1.1 of Holtecs Environmental Report does discuss the history and background of the nations spent fuel dilemma, including enactment of the NWPA, suspension of the Yucca Mountain project, and the 2012 BRC report. And both Sections 1 and 2 suggest that Holtecs proposed facility would better advance the preference in the BRC report for a consent-based approach to siting spent nuclear fuel. But, regardless of whether that is correct, Sierra Club fails to show how that position at all affects the analysis of options that is actually undertaken in Holtecs Environmental Report.
Sierra Club Contention 7 is not admitted.
- 8. Sierra Club Contention 8 Sierra Club Contention 8 states:
10 C.F.R. § 72.30 establishes requirements for decommissioning interim storage facilities. An application for licensing a [consolidated interim storage] facility must contain a decommissioning plan explaining how the plan will satisfy the requirements in the regulation. The application for the Holtec [consolidated interim storage] facility does not comply with these requirements because the amount of funds Holtec says it will collect over the anticipated life of the project fall way short of what Holtec says are necessary for decommissioning.231 229 Id. at 34-35.
230 ER Ch. 9; id. Tbl. 2.5.1.
231 Sierra Club Pet. at 35.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 56 of 292 Sierra Club Contention 8 challenges whether Holtecs decommissioning plan provides reasonable assurance that funds will be available to decommission the proposed facility, as required by 10 C.F.R. § 72.30. Initially, the contention appeared admissible insofar as it identified an inconsistency in Holtecs calculation of how a decommissioning fund would be established.
Specifically, in its application Holtec commits that a decommissioning fund will be established by setting aside $840 per MTU stored at the HI-STORE facility.232 Holtec then calculates its initial fund contribution by multiplying $840 by the maximum amount that may be possessed under its proposed license: 8,680 MTUs (500 loaded canisters).233 As Sierra Club pointed out, however, section 1.3 of Holtecs Environmental Report initially estimated storing only 5,000 MTUs during the first year of operation.234 Acknowledging the disparity to be a mistake, Holtec has corrected its Environmental Report to conform to the 8,680 MTU figure used in its application.235 As Holtec has explained, its Environmental Report used an early, approximate value.236 Holtec represents that [w]hile this may have misled the Sierra Club, the decommissioning funding calculation is, and should be, based on the limits of licensed material that will be permitted under the initial license.237 232 [Holtec] & [ELEA] Underground CISF - Financial Assurance & Project Life Cycle Cost Estimates at 5 (ADAMS Accession No. ML18058A608) [hereinafter Holtec Financial Assurance Estimates].
233 Holtec Proposed License at 1 (Item 8 of the proposed license) and App. A (Technical Specifications), § 4.2.2 at 4-1. See also SAR at 1-4 (Each stage is envisaged to have 8,680 MTUs.).
234 Sierra Club Pet. at 36 (citing [Holtec] HI-STORE CIS Facility Environmental Report, at 1-6 (rev. 1 Dec. 2017)).
235 HI-STORE CIS Facility Environmental Report, at 1-7 (rev. 3 Nov. 2018).
236 Holtec Answer to Sierra Club at 45 n.93.
237 Id.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 57 of 292 Accordingly, the Board determines that Sierra Club Contention 8 no longer raises a genuine dispute that warrants an evidentiary hearing.238 Additionally, Sierra Club Contention 8 is not admissible insofar as it attempts to challenge other aspects of Holtecs decommissioning plan. For example, Sierra Clubs claim that the fund would be completely inadequate239 is premised on an analysis that simply overlooks Holtecs assumption that its annual payments would earn a reasonable rate of return:
These funds, plus earnings on such funds calculated at not greater than a 3 percent real rate of return over the 40-year license life of the facility, will cover the estimated cost to complete decommissioning.240 Likewise, Sierra Clubs charge that the decommissioning costs are calculated for only the first phase of the project,241 overlooks the fact that the pending application only covers the first phase of the project. Holtec will be required to update its decommissioning plan in response to any changes in the authorized possession limits.242 Finally, we find unpersuasive two arguments that Sierra Club advances belatedly in its reply. First, having initially overlooked Holtecs stated intention to rely in part on projected earnings on decommissioning fund assets, Sierra Club now dismisses Holtecs reliance on the magic of compound interest and claims there is no assurance that the fund would earn 3%
interest.243 But, other than its own speculation, Sierra Club offers no evidence that a 3 percent annual rate of return over 40 years is unrealistic. Second, having likewise initially overlooked 238 The NRC Staff initially deemed the contention admissible in part. See NRC Staff Consol.
Answer at 79. However, in light of the amended Environmental Report, the Staff stated at oral argument that it no longer takes a position on the admissibility of Sierra Club Contention 8. Tr.
at 334-35.
239 Sierra Club Pet. at 36.
240 Holtec Financial Assurance Estimates at 5.
241 Sierra Club Pet. at 36.
242 10 C.F.R. § 72.30(c)(3).
243 Sierra Club Reply at 28.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 58 of 292 the reference to a surety method in Holtecs application,244 Sierra Club now challenges Holtecs failure to provide more specificity.245 Again, Sierra Club merely speculates that it is doubtful that a surety company would issue a bond for this project because [s]urety companies only issue surety bonds when there is no possibility of risk.246 Even if these two arguments were not impermissibly late, we would reject them as lacking any supporting facts or expert opinions.247 Sierra Club Contention 8 is not admitted.
- 9. Sierra Club Contention 9 Sierra Club Contention 9 states:
The containers in which the waste will be transported to and stored at the Holtec
[consolidated interim storage] site are designated for a design life of 60 years and a service life of 100 years and may present an unacceptable danger of radioactive release if they are required to remain after the end of their designated service life.
Therefore, the [Environmental Report] must examine the environmental impact of the containers being used beyond their approved service life.248 Citing New York v. NRC, Sierra Club asserts that the Environmental Report must consider all potential impacts if the [consolidated interim storage] ultimately continues to operate beyond the design life and service life.249 Sierra Club also would have Holtecs Safety Analysis Report (SAR) analyze and evaluate the design and performance of structures, systems, and components important to safety from operation of the . . . facility. . . [p]ursuant to 10 C.F.R. § 72.45(d).250 244 Holtec Financial Assurance Estimates at 5.
245 Sierra Club Reply at 29-30.
246 Id. at 29.
247 As set forth infra, the Board therefore denies as moot Holtecs motion to strike these arguments from Sierra Clubs reply. See [Holtecs] Motion to Strike Portions of Replies of
[AFES], [Joint Petitioners], [NAC], and Sierra Club (Oct. 26, 2018) at 10-11 [hereinafter Holtec Motion to Strike].
248 Sierra Club Pet. at 38.
249 Id. at 40 (citing New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012)).
250 Id. (internal quotations omitted).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 59 of 292 In addition to concerns about the impacts of container use beyond certified service life, Sierra Club also expresses the safety concern that [n]either Holtec nor the source of the waste has a plan in place to deal with leaking or cracking containers.251 Sierra Club references a video of Holtecs chief executive saying that he believes it is impractical to repair a canister, as support for its claim that Holtec canisters cannot be inspected, repaired or repackaged.252 According to Sierra Club, this presents a problem not addressed by the Continued Storage GEIS, which assumes that there will be a dry transfer system (DTS) that would retrieve waste from the casks for inspection and repackaging in new containers.253 Sierra Club also describes Holtecs return to sender proposal as one that must be evaluated, in light of an NRC Staff public meeting summary in which, Sierra Club claims, the NRC Staff admitted that once a crack starts in a canister, it can grow through the wall in 16 years,254 and a Nuclear Waste Technical Review Board study about geologic repositories.255 Regarding the environmental aspects of this contention, the Continued Storage Rule explicitly states that an applicants Environmental Report is not required to discuss impacts following the proposed license term.256 Holtecs application seeks a license for 40 years. It is not relevant to this proceeding that the HI-STORM UMAX system has a 60-year design life and a 100-year service life, or that subsequent license extensions are possible. Therefore, we 251 Id. at 41-42.
252 Id. at 41.
253 Id. at 40-41.
254 Id. at 40 (citing Memorandum to Anthony Hsia, Deputy Director, Division of Spent Fuel Storage and Transportation, NMSS, Summary of August 5, 2014, Public Meeting with the Nuclear Energy Institute on Chloride Induced Stress Corrosion Cracking Regulatory Issue Resolution Protocol (Sept. 9, 2014)).
255 Id. at 42 (citing Nuclear Waste Technical Review Board, Geologic Repositories:
Performance Monitoring and Retrievability of Emplaced High-Level Radioactive Waste and Spent Nuclear Fuel (May 2018)).
256 10 C.F.R. § 51.23(b).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 60 of 292 agree with Holtec257 and the NRC Staff258 that Sierra Club impermissibly challenges the Continued Storage Rule and the impact evaluations contained in the Continued Storage GEIS.
Because Sierra Club has not requested a waiver to challenge the GEIS, the environmental aspects of Sierra Club Contention 9 are outside the scope of this proceeding.
Regarding the safety aspects of this contention, Sierra Club has not pointed to deficient parts of the SAR and thus has not demonstrated a genuine dispute with Holtecs application.
Rather, Sierra Club ignores the SARs discussion of retrievability, inspection, and maintenance activities,259 and instead challenges statements made by other sources outside of the application.260 Sierra Club Contention 9 is not admitted.
- 10. Sierra Club Contention 10 Sierra Club Contention 10 states:
The proposed Holtec [consolidated interim storage] facility will accept Greater Than Class C (GTCC) waste. NRC regulations specify that GTCC waste must be disposed of in a geologic repository licensed by the NRC, unless the Commission approves an alternative land-based disposal. The Holtec facility will not be a geologic repository. The NRC has not established regulations for approving land-based disposal of GTCC waste. The proposed Holtec [consolidated interim storage] facility does not comply with the requirement for a geologic repository or land-based disposal for GTCC waste. Therefore, a license cannot be issued for this facility.261 To support its contention, Sierra Club cites 10 C.F.R. § 61.55(a)(2)(iv), which it contends specifies that GTCC waste must be disposed of in a geologic repository licensed by the NRC 257 See Holtec Answer to Sierra Club at 47-48.
258 See NRC Staff Consol. Answer at 80.
259 SAR at 1-39, 10-18 to -19, 15-3, 18-29 to -30.
260 For example, Sierra Club invokes statements allegedly made by NRC Staff members at an unrelated Nuclear Energy Institute public meeting in 2014several years before Holtecs application was filed. Sierra Club Pet. at 41.
261 Sierra Club Pet. at 42.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 61 of 292 unless the Commission approves an alternative land disposal proposal. 262 According to Sierra Club, the fact that the NRC initiated a rulemaking to develop regulations for land disposal amounts to an admission that the NRC has no legal or technical basis for approving a land-based disposal alternative for GTCC waste.263 We agree with the NRC Staff264 and Holtec265 that Sierra Club Contention 10 fundamentally misconstrues the nature of Holtecs application. Rather than disposing of GTCC waste under 10 C.F.R. Part 61, Holtec seeks to temporarily store reactor-related GTCC waste under Part 72.266 Specifically, Holtec seeks a license for a complex designed and constructed for the interim storage of spent nuclear fuel.267 Sierra Club, therefore, fails to raise a dispute that is material to the license Holtec seeks.
Sierra Club Contention 10 is not admitted.
- 11. Sierra Club Contention 11 Sierra Club Contention 11 states:
The [Environmental Report] and the subsequent EIS must evaluate the potential for earthquakes at the Holtec site and the environmental impact of earthquakes.
Likewise, the Safety Analysis Report (SAR) must adequately evaluate the earthquake potential of the proposed site. Both the [Environmental Report] and SAR are inadequate in this respect.268 262 Id. at 43.
263 Id. at 44.
264 See NRC Staff Consol. Answer at 82.
265 See Holtec Answer to Sierra Club at 55-56.
266 See Notice of Opportunity to Request a Hearing, 83 Fed. Reg. at 32,920 (The NRC received an application from Holtec for a specific license pursuant to part 72 of title 10 of the Code of Federal Regulations (10 CFR), Licensing Requirements for the Independent Storage of Spent Nuclear Fuel, High-Level Radioactive Waste, and Reactor-Related Greater Than Class C Waste.).
267 10 C.F.R. § 72.3 (defining independent spent fuel storage installation or ISFSI).
268 Sierra Club Pet. at 44.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 62 of 292 Sierra Club submits a map to purportedly support its allegation of intense drilling in the area around the proposed Holtec facility that would possibly cause earthquakes.269 Sierra Club also points to a 2018 geology article270 (the Stanford report) that Sierra Club alleges stands for the proposition that researchers [have] documented the existence of prior earthquakes in southeast New Mexico, and more importantly, the existence of numerous faults in the area in and around the proposed Holtec site.271 Sierra Clubs Contention 11 therefore asserts both a challenge to the Environmental Report and a challenge to the SAR.
Sierra Club challenges Environmental Report section 3.3.2 by stating that the Environmental Report gives fairly short shrift to earthquake analysis around the proposed project site272 and essentially dismisses the likelihood of earthquakes in the area and does not mention any environmental impacts from earthquakes.273 Sierra Clubs main problem with the Environmental Reports earthquake data is that it is historical and allegedly does not take into account recent fracking activity around the proposed project site.274 Sierra Club similarly challenges SAR section 2.6, claiming that its seismic information is historical data that does not take into account the recent increase in drilling for oil and natural gas in the area, which allegedly induces regional earthquakes.275 Citing 10 C.F.R. § 72.103(f)
(which, among other things, provides seismic rules for ISFSIs built west of the Rocky Mountains) and to the Stanford report, Sierra Club again argues that (1) the SAR relies on faulty 269 Id.; id. at Ex. 5.
270 Id. at Ex. 6, Jens-Erik Lund Snee & Mark D. Zoback, State of Stress in the Permian Basin, Texas and New Mexico: Implications for Induced Seismicity, The Leading Edge (Feb. 2018)
[hereinafter Stanford Report].
271 Id. at 44-45.
272 Id. at 47.
273 Id. at 45.
274 Id. at 47, 48.
275 Id. at 45-46.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 63 of 292 earthquake data because the data is historical and does not account for recent fracking;276 and (2) the Stanford report directly contradicts section 2.6.3 of the SARs assertion that there are no surface faults at the Holtec site.277 We agree with Holtec and the NRC Staff that this contention is inadmissible because Sierra Club fails to show a genuine dispute with the application on a material issue of fact, contrary to 10 C.F.R. § 2.309(f)(1)(vi).278 Regarding the use of historical seismic data from 2016, Sierra Club fails to explain how or where the use of 2016 United States Geologic Survey (USGS) data in the Environmental Report section 3.3.2.1279 and figure 3.3.4 does not account for recent fracking activity around the proposed storage facility.280 Section 3.3.2.1 specifically discusses the seismic events southeast of the site in west Texas that may be due to fluid pressure build-up from fluid injection (i.e., fracking) as well as recent seismic activity from the late 1990s to the mid-2000s fifty miles west of the site from DOEs Waste Isolation Pilot Plant due to injection of waste water from natural gas production (i.e., fracking).281 In other words, Holtec used the most current information available when it filed its application in 2017, and its analysis did evaluate seismic events related to fracking. Sierra Club has not put forth any information that fracking has caused significant seismic events around the proposed project site in the years since the 2016 USGS report. Therefore, Sierra Clubs claim 276 Id. at 47-48 (citing id. Ex. 7, Letter from Tommy E. Taylor, Director of [Fasken] Oil and Gas Development, to Michael Layton, Director, NMSS (July 30, 2018) (PBRLO Scoping Comments)).
277 Id. at 47.
278 Holtec Answer to Sierra Club at 56; NRC Staff Consol. Answer at 86.
279 ER at 3-17.
280 Id. at 3-24.
281 Id. at 3-17.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 64 of 292 challenging the Environmental Report fails.282 And Sierra Clubs challenge to SAR Section 2.6.2s use of USGS 2016 historical data and its claims of noncompliance with 10 C.F.R. § 72.103(f)(1) fails for the same reason.283 Finally, Sierra Clubs claim that the Stanford Report contradicts the SARs assertion that there are no surface faults at the Holtec site is also without merit. We agree with Holtec that there is no dispute between the Stanford Report and the SARs seismic analyses.284 When identifying the proposed storage facilitys location on Figure 1 of the Stanford Report, it shows that the nearest Quaternary fault is approximately 75 miles from the project site.285 Moreover, Figure 3 of the Stanford Report shows that the nearest fault of any kind is approximately 40 miles from the site. Although the petitioner need not prove its case at the contention admissibility stage, it must present a genuine dispute with the application on a material fact.
Sierra Club has not.286 Sierra Club Contention 11 is not admitted.
- 12. Sierra Club Contention 12 Sierra Club Contention 12 states:
The dunes sagebrush lizard, a/k/a sand dune lizard, is an endangered species pursuant to New Mexico state law and regulation. The lizard has a limited range and is specifically adapted to sand dune areas with shinnery oak. The site of the 282 As to the claim that Holtec does not address environmental impacts from earthquakes in the Environmental Report, Sierra Club Pet. at 45, Holtecs Environmental Report does analyze the HI-STORM UMAX system against credible seismic activity in the region, see ER at 4-61 to -
65, and concludes that the environmental impact of an earthquake involving storage of spent fuel is small. Id. at 4-65, 6-6.
283 SAR at 2-108 to -109.
284 Holtec Answer to Sierra Club at 63.
285 Compare Stanford Report Fig. 1, with Holtec Answer to Sierra Club at 65 (republishing Stanford Report Fig. 1 but marking location of Holtec CISF).
286 Sierra Clubs reference to Sierra Club Ex. 7 (PBRLO Scoping Comments) does not raise a genuine dispute with the application on a material issue of fact, because the comments constitute only speculation that fracking will be allowed near and/or immediately beneath the HI-STORE interim storage site.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 65 of 292 Holtec project is within the lizards habitat range. The [Environmental Report]
submitted by Holtec claims that the lizard is not present in the area of the Holtec site, but that assertion is contrary to the scientific evidence. The [Environmental Report] and the subsequent EIS must evaluate the impact of the Holtec project on the dunes sagebrush lizard and its habitat.287 Sierra Club challenges sections 3.4.3, 4.4.3, and 4.4.4 of the Environmental Report, questioning the result of surveys that make no mention of the impact of the project on the lizard or its habitat.288 Sierra Club also questions the results of a 2016 survey, which refers to a 2007 survey of the same area, both finding no reptiles in the area of the Holtec site.289 Sierra Club questions the 2016 surveys methodology, asserting that the length of the 2016 survey was too short (one day), completed at the wrong time (the time of year the lizard allegedly hibernates),290 and that the survey was based on casual observation.291 Sierra Club also states that the 2007 survey results are suspect, as the Eddy-Lea Energy Alliance (ELEA), a vocal supporter of the Holtec project, paid for the 2007 survey, from which Sierra Club infers a conflict of interest.292 Sierra Club summarizes that Contention 12s point is that the Holtec site is within the general range of the dunes sagebrush lizard such that the [Environmental Report] should have made a more thorough evaluation of the lizards presence and the impacts to [it] from the Holtec project.293 Sierra Club submits two maps in support of Contention 12, which purport to show that the proposed fuel storage facility is likely habitat for the dunes sagebrush lizard.294 287 Sierra Club Pet. at 48.
288 Id. at 49.
289 Id.
290 Id. at 51.
291 Id. at 50.
292 Id.
293 Sierra Club Reply at 33-34.
294 Sierra Club Pet. at 51; id. Exs. 8 (Dunes Sagebrush Lizard Habitat Map), 9 (Dunes Sagebrush Lizard Suitable Habitat Expanded Map).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 66 of 292 We agree with Holtec295 and the NRC Staff296 that Sierra Clubs two maps offered to support Sierra Club Contention 12 do not in fact support Sierra Clubs assertion that the sagebrush lizards habitat is located at the proposed HI-STORE interim storage site. Although the maps roughly show the lizards habitat in the greater southwestern United States, the maps lack sufficient detail to demonstrate that the sagebrush lizard makes its home at the site of the proposed facility. As Sierra Clubs maps do not support what Sierra Club asserts,297 this aspect of the contention is inadmissible.
Sierra Clubs challenges to the methodology of the 2007 and 2016 surveys are not supported by any information that genuinely disputes their sufficiency. Sierra Clubs broad, unsupported speculations do not meet the Commissions contention admissibility criteria.298 Sierra Club Contention 12 is not admitted.
- 13. Sierra Club Contention 13 Sierra Club Contention 13 states:
As shown in previous contentions, the Holtec [Environmental Report] is replete with errors, omissions, and blatantly incorrect statements and information. Further, Chapter 12 of the [Environmental Report] shows that a company called Tetra Tech, was the primary preparer of the [Environmental Report]. The only other preparer listed was a subcontracting company that conducted the cultural resource evaluation. Tetra Tech was accused of engaging in widespread fraud with respect to its contract with the United States Navy to clean up radioactive materials at the Hunters Point Naval Shipyard in San Francisco, California. As such, Tetra Techs credibility is in question and the credibility of the [Environmental Report] prepared by Tetra Tech likewise is in question.299 295 Holtec Answer to Sierra Club at 66.
296 NRC Staff Consol. Answer at 89-90.
297 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61, 90, revd in part on other grounds, CLI-96-7, 43 NRC 235 (1996).
298 10 C.F.R. § 2.309(f)(1)(v).
299 Sierra Club Pet. at 51-52.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 67 of 292 Sierra Club Contention 13 challenges the credibility of Tetra Tech, the firm that Holtec used to prepare its Environmental Report. In support, Sierra Club submits an affidavit from an attorney who filed a 10 C.F.R. § 2.206 enforcement petition alleging Tetra Techs malperformance at Hunters Point Naval Yard,300 and also cites its challenges to specific aspects of Holtecs Environmental Report that are proffered as other contentions in this proceeding, viz. Sierra Club Contentions 2, 3, 5, 7, 9, 10, 11, and 12.301 The proffered contention is inadmissible as it fails to show a genuine dispute with the licensee on a material issue of law or fact.302 The Commission expects that a dispute regarding character or integrity must raise issues directly germane to the challenged licensing action.303 Sierra Club has not put forth any information that suggests impropriety regarding Tetra Techs work on the Holtec Environmental Report. Nor has Sierra Club asserted that any Tetra Tech employees involved in the Hunters Point case were also involved in compiling Holtecs Environmental Report.
Contention 13 is not admitted.
- 14. Sierra Club Contention 14 Sierra Club Contention 14 states:
An accurate thermal evaluation of the HI-STORM UMAX system is imperative to ensure that temperatures within the system will not be conducive to corrosion, cladding and other conditions that would adversely impact the safety of the system.
The HI-STORM UMAX system is unique, with both air intake and exhaust vents at the top of the containment cask. The SAR for the Holtec [consolidated interim storage] facility does not provide adequate information to determine if the thermal 300 See id. Ex. 10, Decl. of Steven J. Castleman (June 26, 2018). See also 10 C.F.R. § 2.206 Petition to Revoke Materials License No. 29-31396-01, Greenaction for Health & Envtl. Justice
- v. Tetra Tech EC, Inc. (June 28, 2018) (ADAMS Accession No. ML18178A067).
301 As to those issues cited by Sierra Club, we analyze those separately supra.
302 10 C.F.R. § 2.309(f)(1)(vi).
303 Millstone, CLI-01-24, 54 NRC at 366-67 (emphasis added).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 68 of 292 parameters for the HI-STORM system at the Holtec [consolidated interim storage]
facility will provide for adequate safety.304 Sierra Club claims that, although SAR Chapter 6 purports to discuss thermal evaluations for the UMAX system, it does not address the problems presented by the fact that the UMAX cask is unique, in that the air intake and exhaust vents are at the top of the cask.305 Sierra Club claims there is no assurance that entering and exiting air flows [will] not mix such that the canister would heat up and degrade the canisters internal cladding.306 Sierra Club further questions the safety of Holtecs redesign of the UMAX canister shims; the SARs reliance on the computer code in its thermal calculations; the amount of high burnup fuel that would be stored at the facility and its impact on canister cladding; and Holtecs recent announcement that it can place spent fuel in a UMAX canister after being cooled in a spent fuel pool for only 2.5 years.307 The contention is inadmissible as it does not show a genuine dispute exists with the Holtec application on a material issue of law or fact.308 First, even with Sierra Clubs clarification that it seeks to challenge the discussion in the SAR to determine if the thermal parameters for the HI-STORM system at the Holtec facility will provide for adequate safety,309 it is barred from doing so by Commission rules.310 SAR Chapter 6 fully incorporates by reference the HI-STORM UMAX design and thermal analyses conducted in the HI-STORM UMAXs own Final Safety 304 Sierra Club Pet. at 56.
305 Id. at 57.
306 Id. at 57-58.
307 Id. at 58-60.
308 10 C.F.R. § 2.309(f)(1)(vi).
309 Sierra Club Reply at 37.
310 See 10 C.F.R. § 2.335(a); id. § 72.46(e).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 69 of 292 Analysis Report (FSAR).311 The HI-STORM UMAX system was added to the list of approved spent fuel storage casks in a March 2015 final rule, 312 and has been subsequently amended by further rulemaking.313 Therefore, any challenge to the HI-STORM UMAX system design characteristics that are already deemed compliant with Part 72, including those Sierra Club designates in its Contention 14 (i.e., cooling system, thermal evaluations through use of software, and canister shim designs) are barred in this proceeding by sections 2.335 and 72.46(e).
Sierra Clubs assertion regarding high burnup fuel also does not raise a genuine dispute with the application, as the SAR clearly states that the multi-purpose canisters to be stored at
[the facility] are limited to those included in the HI-STORM UMAX FSAR.314 The HI-STORM UMAX FSAR Chapter 4, in turn, prescribes the permissible heat load per storage cell for the allowed canisters at the UMAX (the MPC-37 and MPC-89).315 Finally, Sierra Clubs passing reference that Holtec will be storing fuel in UMAX canisters that have been cooled less than three years also does not establish a genuine dispute with the application. First, Sierra Club does not offer any evidence of this statement by Holtec. Second, UMAX FSAR table 2.1.1, which is incorporated by reference into the proposed facilitys SAR, 311 See SAR Ch. 6 (incorporating by reference Docket 72-1040, Certificate of Compliance No.
1040, [FSAR] on The HI-STORM UMAX Canister Storage System (June 2018) (ADAMS Accession No. ML16193A336)).
312 List of Approved Spent Fuel Storage Casks: [Holtec] HI-STORM [UMAX] Canister Storage System, Certificate of Compliance No. 1040, 80 Fed. Reg. 12,073, 12,073-78 (Mar. 6, 2015).
313 10 C.F.R. § 72.214 Certificate Number 1040. See Direct Final Rule, List of Approved Spent Fuel Storage Casks: Holtec International HI-STORM UMAX Canister Storage System, Certificate of Compliance No. 1040, Amendment No. 1, 80 Fed. Reg. 53,691 (Sept. 8, 2015);
Direct Final Rule, List of Approved Spent Fuel Storage Casks: Holtec International HI-STORM UMAX Canister Storage System; Certificate of Compliance No. 1040, Amendment No. 2, 82 Fed. Reg. 8805 (Jan. 31, 2017).
314 SAR at 4-5.
315 See, e.g., FSAR on the HI-STORM UMAX Canister Storage System, Rev. 3 at 4-31 (June 29, 2016) (ADAMS Accession No. ML16193A339) [hereinafter UMAX FSAR].
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 70 of 292 states a minimum cooling time of three years for both MPC-37 and MPC-89 canisters.316 Finally, any change to its three year cooling requirements would require Holtec to request an amendment to the Certificate of Compliance, which Holtec has not done.317 Thus, there is no genuine dispute with the application.318 Sierra Club Contention 14 is not admitted.
- 15. Sierra Club Contention 15 Sierra Club Contention 15 states:
The [Environmental Report] fails to adequately determine whether shallow groundwater exists at the site of the proposed [consolidated interim storage]
facility. It is important to make this determination in order to assess the impact of a radioactive leak from the [consolidated interim storage] facility on the groundwater.319 Sierra Club bases this contention on the first of five comments in the declaration of George Rice, a groundwater hydrologist.320 His comment disputes Holtecs finding that no shallow groundwater exists at the proposed site. Mr. Rice explains that Holtec installed five wells on the site: four in the Dockum (the shale, siltstone, and sandstone layer of earth) and one in the alluvial/Dockum interface (where the alluvial layer of earth meets the lower Dockum layer).321 Although no water or saturated conditions were encountered at the alluvium/Dockum 316 See UMAX FSAR Tbl. 2.1.1 at 2-25.
317 See 10 C.F.R. § 72.244 (application for amendment of a certificate of compliance).
318 Sierra Club also asserted that it should be allowed to intervene and conduct discovery, Sierra Club Pet. at 59, because the Commissions SUNSI procedure is onerous, burdensome, lengthy and expensive. Sierra Club Reply at 37. All petitioners in this proceeding were afforded extra time to request the SUNSI (sensitive unclassified non-safeguards) information.
See Notice of Opportunity to Request a Hearing, 83 Fed. Reg. at 32,922; Order Denying Motions to Dismiss. If counsel for Sierra Club seeks to change the Commissions SUNSI rules, this proceeding is not the forum in which to do so.
319 Sierra Club Pet. at 60.
320 See id., Decl. of George Rice, Comments on Proposed Facility (Sept. 6, 2018) [hereinafter Rice Decl.].
321 Id. at 2-3.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 71 of 292 well, Mr. Rice claims that well represents only one point in the 1040 acre site and that groundwater could still be present despite the materials appearing unsaturated.322 He asserts that the alluvium/Dockum well has not been checked for the presence of water since 2007, which is significant since shallow aquifers may be intermittently saturated.323 Mr. Rice explains Sierra Clubs main concern: If contaminants leak from the facility, they could be transported by shallow groundwater underlying the site.324 Holtecs Environmental Report concludes that [i]mpacts to groundwater would not be expected, due to the depth of groundwater and the fact that the CIS Facility would not release pollutants, including radionuclides, during normal operations.325 Nor would a release of radioactive material occur, Holtecs Environmental Report asserts, during any credible off-normal event326 or accident.327 Sierra Club disputes the first conclusionthat impacts to groundwater would not be expected due to depth. However, Sierra Club offers no support for its challenge to Holtecs second conclusionthat, in any event, the facility would not release pollutants into groundwater during any credible event.
In its reply, Sierra Club points to its Contentions 9, 14, 20, and 23 as examples of issues that create a risk of leaks during storage.328 As discussed elsewhere, we do not admit those contentions, and do not find them to be adequate support for Sierra Club Contention 15.
322 Id.
323 Id. at 2.
324 Id. at 1.
325 ER at 4-13.
326 Id. at 4-56.
327 Id. at 4-57. Additionally, the HI-STORM UMAX FSAR concludes in section 2.0.6 that [t]he MPC provides for confinement of all radioactive materials for all design basis normal, off-normal, and postulated accident conditions. As discussed in Chapter 7 of the HI-STORM [flood and wind], [multi-purpose canister] design meets the guidance in the Interim Staff Guidance (ISG)-
18 so that leakage of radiological matter from the confinement boundary is non-credible.
328 Sierra Club Reply at 38.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 72 of 292 Sierra Club fails to explain why the Environmental Report is wrong to conclude that [t]here is no potential for a liquid pathway because the [spent nuclear fuel] contains no liquid component and the casks are sealed to prevent any liquids from contacting the [spent nuclear fuel]
assemblies329 and the interim storage facilitys HI-STORM UMAX system would not release any radioactive material even when subjected to the effects of all credible and hypothetical accident conditions and natural phenomena.330 As the Commission explained in Private Fuel Storage,
[t]o show a genuine material dispute, [a petitioners] contention would have to give the Board reason to believe that contamination from a defective canister could find its way outside of the cask.331 Sierra Club has not done this.
Sierra Club Contention 15 is not admitted.
- 16. Sierra Club Contention 16 Sierra Clubs originally-filed Contention 16 stated:
The [Environmental Report] does not contain any information as to whether brine continues to flow in the subsurface under the Holtec site.332 On February 18, 2019, Sierra Club filed a motion to amend Contention 16 to address Requests for Additional Information (RAI) submitted by NRC Staff to Holtec and Holtecs Responses.333 Sierra Clubs amended contention would add two more sentences:
Holtec has not properly accounted for mechanisms that could allow corrosive material to reach cavity enclosure containers (CECs) and/or spent fuel canisters.
Holtecs Aging Management Program would be insufficient to address the problem of groundwater impacting the integrity of the spent fuel containers.334 329 ER at 1-8.
330 Id. at 4-62.
331 Private Fuel Storage (Indep. Spent Fuel Storage Facility), CLI-04-22, 60 NRC 125, 138-39 (2004).
332 Sierra Club Pet. at 62.
333 Sierra Clubs Motion to Amend Contention 16 (Feb. 18, 2019) [hereinafter Sierra Club Motion to Amend Contention 16].
334 Id. at 9.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 73 of 292 On March 11 and 15, 2019, Holtec and the NRC Staff, respectively, filed responses in opposition to Sierra Clubs motion to amend Contention 16.335 In its motion, Sierra Club claims that NRC Staff perspective set forth in RAIs 17-12 and 17-14 presents a context for the Holtec documentation that is materially different than the context in which Holtec had previously presented the discussion of groundwater and its effect on the containers in the CIS facility.336 Sierra Club points to Holtecs response about brine in RAI 17-12 and about CEC wall thinning in RAI 17-14.337 According to Sierra Club, because Holtec did not provide this information in its answers to Sierra Clubs petition, the information qualifies as new.338 Sierra Club bases its amended contention on Holtecs responses to the RAIs and on the declaration of Dr. Gordon Thompson, who also supports Sierra Club Contention 2.339 For both its original and amended contention, Sierra Club also relies on the second of five comments in George Rices declaration. This comment explains that [t]wo brine disposal facilities once operated in the northeast portion of the [proposed] site and in 2007 a water sample from a spring flowing in that area tested as brine.340 Mr. Rice then asks the applicant:
Do the springs/seeps that were flowing in 2007 continue to flow? Is brine moving along perched zones in the alluvial materials, or along the alluvium/Dockum interface? Could the brine come into contact with the canisters?341 335 See [Holtecs] Opposition to Motion by Sierra Club to Amend Contention 16 (Mar. 11, 2019);
NRC Staff Response to Sierra Club Motion to Amend Contention 16 (Mar. 15, 2019).
336 Sierra Club Motion to Amend Contention 16, at 6.
337 Id. at 6-7.
338 Id.
339 Id. at 9.
340 Rice Decl. at 6.
341 Id.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 74 of 292 As described supra, the Board will consider an amended contention filed after the original deadline only if the petitioner demonstrates good cause under the three-pronged test of 10 C.F.R. § 2.309(c)(1). Here, we agree with the NRC Staff and Holtec that Joint Petitioners have failed to demonstrate good cause, because the information upon which they base their amended contention was previously available. As the NRC Staff correctly argues: The legal standard is not whether Holtecs RAI responses differ from the arguments it raised in its Answer to the Petition, but whether the factual information underpinning Holtecs RAI responses was previously availablefor example, in the SAR or [Environmental Report].342 We conclude that Sierra Club has not shown any materially different or new information in Holtecs RAI responses. Dr. Thompsons report primarily restates Holtecs RAI responses verbatim. His substantive comments do not engage with the responses, other than to claim that they exhibit unwarranted optimism.343 Rather, he focuses on Holtecs alleged failure to analyze climate change344 and alleged lack of capability to perform credible inspections of spent fuel canisters or CECs.345 Both of these critiques could have been made at the outset of this proceeding based solely on the SAR. The same is true for Mr. Rices second comment, because Sierra Club cites the exact same comment as a basis for its originally-filed Contention 16.346 And pointing to the RAI responses, without more, will rarely provide sufficient support for an admissible contention.347 342 NRC Staff Response to Sierra Club Motion to Amend Contention 16, at 6.
343 Dr. Gordon R. Thompson Decl. for Sierra Club (Feb. 12, 2019) at 22, 23, 25.
344 Id. at 22-23.
345 Id. at 25.
346 Sierra Club Pet. at 63.
347 See PPL Susquehanna, LLC (Susquehanna Steam Elec. Station, Units 1 & 2), CLI-15-8, 81 NRC 500, 506 (2015).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 75 of 292 Because Sierra Club has failed to meet the good cause standard under 10 C.F.R. § 2.309(c)(1), we deny Sierra Clubs motion to amend Contention 16. Accordingly, we consider Sierra Club Contention 16 as originally filed.
We conclude that Sierra Club does not provide an adequate basis for its single-sentence Contention 16. As Holtec points out, Mr. Rices Figure 1 and detailed subsurface profiles in the Environmental Report show that the proposed facility would be located above the interface between the alluvium/Dockum, where Mr. Rice suggests that shallow groundwater may exist.348 Furthermore, the SAR describes how the spent nuclear fuel will be contained in a steel canister within a steel CEC and concludes that the CEC is a closed bottom, open top, thick walled cylindrical vessel that has no penetrations or openings. Thus, groundwater has no path for intrusion into the interior space of the CEC.349 Sierra Club does not dispute these conclusions or provide any other reason for how brine could affect the canisters. [N]either mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention.350 Sierra Club Contention 16 is not admitted.
- 17. Sierra Club Contention 17 Sierra Club Contention 17 states:
The [Environmental Report] and SAR do not discuss the presence and implications of fractured rock beneath the Holtec site. These fractures could allow radioactive leaks from the [consolidated interim storage] facility to enter groundwater or for the brine described in Contention 16 to corrode the containers contain[ing] the radioactive material.351 348 Holtec Answer to Sierra Club at 85-86.
349 SAR at 1-14; id. at 1-24 (Fig. 1.2.2(a)).
350 S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 253 (2007) (citing Fansteel, CLI-03-13, 58 NRC at 203).
351 Sierra Club Pet. at 63-64.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 76 of 292 Sierra Club bases this contention on the third of five comments in the declaration of George Rice.352 Mr. Rice claims that [f]ractures are common at the site and that [s]ome portions of both [the Santa Rosa and Chinle] formations are described as highly fractured[] . . .
in the logs of monitor wells.353 He asserts that these fractures could rapidly convey contaminants to underlying groundwater.354 As in its Contentions 15 and 16, Sierra Club does not provide adequate support for its contention. Holtecs Environmental Report concludes: Impacts to groundwater would not be expected, due to the depth of groundwater and the fact that the CIS Facility would not release pollutants, including radionuclides, during normal operations.355 Nor would a release of radioactive material occur, Holtecs Environmental Report asserts, during any credible off-normal event356 or accident.357 It also states that [t]here is no potential for a liquid pathway because the spent fuel contains no liquid component and the casks are sealed to prevent any liquids from contacting the spent fuel assemblies.358 Holtecs SAR concludes that the CEC is a closed bottom, open top, thick walled cylindrical vessel that has no penetrations or openings. Thus, groundwater has 352 See Rice Decl. at 6.
353 Id.
354 Id.
355 ER at 4-13.
356 Id. at 4-56.
357 Id. at 4-57. Additionally, as discussed supra, the HI-STORM UMAX FSAR concludes in section 2.0.6 that [t]he MPC provides for confinement of all radioactive materials for all design basis normal, off-normal, and postulated accident conditions. As discussed in Chapter 7 of the HI-STORM [flood and wind], [multi-purpose canister] design meets the guidance in the Interim Staff Guidance (ISG)-18 so that leakage of radiological matter from the confinement boundary is non-credible.
358 Id. at 7-1.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 77 of 292 no path for intrusion into the interior space of the CEC.359 Sierra Club does not explain why these conclusions are false or questionable, such that contaminants could be conveyed to underlying groundwater. In its reply, Sierra Club does not elaborate on a rationale for its contention except to offer the conclusory statement that [t]here is sufficient information to raise the specter of leaks from the casks into the groundwater.360 [N]either mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention.361 Sierra Club Contention 17 is not admitted.
- 18. Sierra Club Contention 18 Sierra Club Contention 18 states:
The Santa Rosa Formation is an important aquifer in the area of the Holtec site. It is used for domestic water supply, stock watering and irrigation. The Holtec
[Environmental Report] has not adequately determined and discussed the possibility that waste-contaminated groundwater could reach the Santa Rosa Formation.362 Sierra Club bases this contention on the fourth comment in the declaration of George Rice.363 His fourth comment states that the top of the Santa Rosa [Formation] is approximately 215 feet below land surface.364 It also describes how Holtecs monitor well B101 is located in the Santa Rosa Formation, and the depth to water in the well is about 250 feet. The quality of 359 SAR at 1-14; id. at 1-24 (Fig. 1.2.2(a)).
360 Sierra Club Reply at 39.
361 Vogtle, LBP-07-3, 65 NRC at 253 (citing Fansteel, CLI-03-13, 58 NRC at 203).
362 Sierra Club Pet. at 65.
363 Rice Decl. at 7.
364 Id. (citing GEI Consultants, HI-STORE CISF Phase 1 Site Characterization, Lea County, New Mexico at 80 (Dec. 2017) [hereinafter GEI]).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 78 of 292 this water has not been determined.365 Mr. Rice claims that the possibility that waste-contaminated groundwater could reach the Santa Rosa Formation cannot be dismissed.366 We agree with Holtec that Sierra Club has put forth an unsupported hypothetical and demand[ed] that the applicant prove the negative.367 While it may be true that the Santa Rosa Formation is an important source of groundwater located in Lea County,368 Sierra Club has not demonstrated any support for its claim that waste-contaminated groundwater from the proposed facility could reach that formation. As explained supra, Holtecs Environmental Report concludes: Impacts to groundwater would not be expected, due to the depth of groundwater and the fact that the CIS Facility would not release pollutants, including radionuclides, during normal operations369 or during any credible off-normal event370 or accident.371 Sierra Club appears to implicitly dispute the second conclusionthat the proposed facility would not release pollutants into groundwater. However, Sierra Club does not provide any rationale to support its experts conclusory statements or explain why the Environmental Report is wrong to conclude that [t]here is no potential for a liquid pathway because the spent fuel contains no liquid component and the casks are sealed to prevent any liquids from contacting the spent fuel assemblies.372 Sierra Club Contention 18 is not admitted.
365 Id. (citing GEI at 36).
366 Id.
367 Holtec Answer to Sierra Club at 89.
368 ER at 3-59 to -60.
369 Id. at 4-13.
370 Id. at 4-56.
371 Id. at 4-57.
372 Id. at 7-1.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 79 of 292
- 19. Sierra Club Contention 19 Sierra Club Contention 19 states:
Holtec performed two sets of packer tests in the Santa Rosa Formation to estimate the hydraulic conductivity (permeability) of the formation. These tests were conducted in conjunction with the preparation of the [Environmental Report]. It does not appear from the report of Holtecs consultant that these tests were conducted properly. Therefore, the [Environmental Report] has not presented an adequate evaluation of the affected environment.373 Sierra Club bases this contention on the fifth and final comment in the declaration of George Rice. His comment describes how Holtec performed two sets of packer tests in the Santa Rosa.374 He claims that Holtec allegedly did not follow three of the recommendations in the U.S. Bureau of Reclamations Field Manual: (1) the applicant does not appear to have cleaned the hole before conducting packer tests; (2) there is no description of the water used in the tests; and (3) the test duration appears to be too short.375 Accordingly, Sierra Club claims that the results of the packer tests are unreliable and do not satisfy the requirements of 10 C.F.R. § 51.45.376 We agree with the NRC Staff377 and Holtec378 that Sierra Club fails to show how this contention is material, because it has failed to show how the results of the packer tests would make a difference in the outcome of the licensing proceeding. Mr. Rice admitted in his declaration that even when the tests are done properly, the values obtained are only semi-quantitativewithin an order of magnitude of the actual value.379 Although Sierra Club asserts 373 Sierra Club Pet. at 66.
374 Rice Decl. at 8.
375 Id. (citing 2 U.S. Bureau of Reclamation, Engineering Geology Field Manual, Ch. 17 (2d ed.
2001)).
376 Sierra Club Pet. at 67.
377 NRC Staff Consol. Answer at 106-07.
378 Holtec Answer to Sierra Club at 90-91.
379 Rice Decl. at 8.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 80 of 292 that [t]he permeability of the site is certainly important to assessing whether the site is appropriate for the proposed CIS facility,380 Sierra Club does not describe how the permeability is material or how the asserted departures from the U.S. Bureau of Reclamations recommendations would have significance for any analysis or conclusion in the Environmental Report. Presumably, Sierra Club is implicitly expressing the same concern as Contentions 15 through 18that groundwater may become contaminatedbut, as we explained supra, Sierra Club never links its concern about groundwater with an explanation for how groundwater could possibly come into contact with any contaminant from the storage facility. Mr. Rice merely speculates that the acceptable guidance may not have been followed.381 Again, speculation, even by an expert, fails to provide the requisite support for an admissible contention.382 Sierra Club Contention 19 is not admitted.
- 20. Sierra Club Contention 20 Sierra Club Contention 20 states:
Since the 1990s almost all spent nuclear fuel being generated is high burnup fuel (HBF). HBF causes the cladding to become thinner, creating a higher risk of release of radioactive material. The cladding also becomes more brittle, with additional cracks. This situation causes risks to short-term and long-term dry storage. This issue is not adequately addressed in the SAR and high burnup fuel does not appear to be addressed in the [Environmental Report] at all. Cladding failure due to high burnup fuel is an issue that must be adequately addressed.383 Sierra Clubs Contentions 20 through 24 concerning high burnup fuel are supported by Dr. Marvin Resnikoff, who asserts expertise in radioactive waste.384 380 Sierra Club Pet. at 66.
381 Rice Decl. at 8 ([T]he applicant does not appear to have followed several of the recommendations in the manual.) (emphasis added).
382 Vogtle, LBP-07-3, 65 NRC at 253 (citing Fansteel, CLI-03-13, 58 NRC at 203).
383 Sierra Club Pet. at 67.
384 See id., Resnikoff Aff. at ¶ 3.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 81 of 292 Sierra Club proffers Contention 20 based on the assertion that, because [h]igh burnup fuel causes the cladding around the fuel to become thinner and more brittle, inducing cracking, high burnup fuel containers are more likely to leak radioactive material.385 Arguing that high burnup fuel is dangerously unpredictable and unstable in storage, Sierra Club cites a 2013 DOE report that suggests outstanding issues regarding cladding and high burnup fuel should be resolved before this fuel type can be safely loaded, transported, and stored.386 Citing a 2010 study by the U.S. Nuclear Waste Technical Review Board,387 Sierra Club claims that zirconium cladding experiences a twelve percent thinning due to the effects of high burnup, and the likelihood of cladding defects increase when storing high burnup fuel.388 In sum, Sierra Club argues the Environmental Report and SAR must discuss and evaluate the risks of transporting and storing [high burnup fuel].389 To the extent Sierra Club Contention 20 raises safety claims concerning transportation and storage, it is inadmissible because it fails to raise a genuine dispute with the application on a material issue of law or fact. First, Part 71 and U.S. Department of Transportation regulations establish the standards for transporting spent nuclear fuelnot for storing fuel at an interim storage facility. This aspect of the contention does not raise a genuine dispute with Holtecs Part 72 license application. Moreover, regarding storage of high burnup fuel (and consistent with our conclusion in connection with Sierra Clubs related Contention 14 supra), the analyses and bounding technical specifications are contained in HI-STORM UMAXs FSAR and 385 Sierra Club Pet. at 67-68.
386 Id. at 68-69 (citing DOE, A Project Concept for Nuclear Fuels Storage and Transportation, Fuel Cycle Research & Development, (rev. 1 June 2013)).
387 U.S. Nuclear Waste Transp. Review Bd., Evaluation of the Technical Basis for Extended Dry Storage and Transportation of Used Nuclear Fuel (Dec. 2010).
388 Sierra Club Pet. at 70.
389 Id.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 82 of 292 Certificate of Compliance, which is incorporated by reference into the HI-STORE facilitys SAR.390 As Commission regulation bars any admitted contention based on an NRC-approved storage cask design incorporated by reference in an ISFSI application,391 this facet of Sierra Club Contention 20 is inadmissible.
The claim that Holtecs Environmental Report fails to address high burnup fuel in transport also does not raise a genuine dispute because it ignores the application.
Environmental Report section 4.9392 provides the results of a RADTRAN analysis that evaluated the incident-free radiological transportation impacts assuming the maximum dose rate allowed for exclusive use shipments under NRC regulation 10 C.F.R. § 71.47(b)(3). This would encompass spent fuel of any burnup, including high burnup fuel. With respect to potential impacts to transportation workers and the radiological transportation impacts that could potentially occur during accidents, ER section 4.9 bases its analyses on DOE calculations concerning incident-free and accident radiological impacts in the Yucca Mountain final supplemental EIS,393 which in turn addresses the transportation of high burnup fuel.
Finally, the claim that storage of high burnup fuel is omitted from Holtecs Environmental Report also raises no genuine dispute. Sections 4.12 and 4.13 of the Environmental Report, which concern public and occupational health from normal operations and off-normal operations and accidents, speak to the storage of high burnup fuel.394 As there are no separate regulatory requirements regarding high burnup fuel, section 4.12 relies on the Continued Storage GEIS in 390 See, e.g., SAR at 16-1.
391 See 10 C.F.R. § 72.46(e).
392 ER at 4-30.
393 DOE, Final Supplemental EIS for a Geological Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada, DOE/EIS-0250F-S-1, at G-34 (June 2008).
394 ER 4-16 to -17, 4-46 to -48.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 83 of 292 its analyses of dose to the public and its workers.395 Section 4.13 specifically incorporates by reference the UMAX FSAR, which addresses credible accidents and high burnup fuel.396 Therefore, to the extent the contention asserts that Holtec omitted discussion of high burnup fuel storage, it is inaccurate. A contention of omission must be summarily rejected if the topic that allegedly is omitted is, in fact, included with the application.397 Sierra Club Contention 20 is not admitted.
- 21. Sierra Club Contention 21 Sierra Club Contention 21 states:
There is no experimental support for the safe transportation and storage of [High Burnup Fuel]. Holtec must show that safety is assured not only for hypothetical accident conditions, but also for real life accident conditions. Holtec has not done that in this case.398 Sierra Club argues that, under section 72.108, the transportation of [high burnup fuel]
especially must be addressed in the [Environmental Report].399 Sierra Clubs basis for the contention is that there is a lack of data concerning high burnup fuel transportation guidance for applicants to meet certain Part 71 requirements.400 Citing NRC Interim Staff Guidance 11 (ISG-11)401 in which the NRC Staff sets a case-by-case standard for the transportation of high burnup fuel, Sierra Club broadly claims that Holtec has not met this test.402 Sierra Club then points out issues with the ISG-11 document itself, stating that, although the Staff is still 395 Id. at 4-48.
396 Id. at 4-61.
397 USEC, Inc. (Am. Centerfuge Plant), CLI-06-10, 63 NRC 451, 456 (2006).
398 Sierra Club Pet. at 70.
399 Id. at 71.
400 Id. at 70.
401 Spent Fuel Project Office, NMSS, Interim Staff Guidance, Cladding Considerations for the Storage and Transportation of Spent Fuel (Nov. 17, 2003).
402 Sierra Club Pet. at 71-72.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 84 of 292 reviewing data on high burnup fuel and cladding issues vis--vis transportation, there is a question concerning what exactly the Staffs methodology is.403 Ultimately, Sierra Club wants Holtecs Environmental Report to address real life accident conditions based on the specific facts of this case.404 Although the wording of Contention 21 mentions safe transportation and storage, none of the supporting bases or facts on which Sierra Club relies address storage at all. Thus, the storage portion of Contention 21 is inadmissible for failure to cite any alleged facts or expert opinion on which Sierra Club would rely at an evidentiary hearing.405 The remainder of the contention is inadmissible because it fails to raise a genuine dispute on a material issue with Holtecs application for a consolidated interim storage facility.
Again, Sierra Club declines to grapple with the application at handHoltecs HI-STORE application to store spent fuel under Part 72and instead it broadly asserts that Holtec does not meet a case-by-case transportation standard for high burnup fuel transportation (as set forth in an NRC non-binding guidance document). Sierra Club also fails to specifically explain how Holtec fails to meet this standard. Bald assertions that an application is insufficient or inadequate, without more, do not meet the Commissions contention admissibility standard.406 Sierra Club Contention 21 is not admitted.
- 22. Sierra Club Contention 22 Sierra Club Contention 22 states:
With high burnup fuel hydrogen absorption into the Zircaloy metal can lead to hydrogen embrittlement (loss of cladding ductility) of the cladding. Vibrations 403 Id. at 71.
404 Id. at 72.
405 10 C.F.R. § 2.309(f)(1)(v).
406 Nuclear Mgmt. Co. (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 341, affd, CLI 17, 63 NRC 727 (2006)).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 85 of 292 during transport will lead to further degradation of the cladding. Nothing in the Holtec documentation shows that Holtec has addressed this issue in this case.407 Reflecting its continuing concern with the transport of high burnup fuel, Sierra Club alleges that Holtecs Environmental Report has not adequately made the evaluation of the loss of ductility on the fuel rods due to the [high burnup fuel] and the likelihood of material strength and a release of radioactive material in accordance with 10 C.F.R. § 72.108.408 Arguing that hydrogen absorption into the zircaloy cladding (hydrides) can lead to cladding embrittlement, Sierra Club claims that this ultimately could lead to delayed hydride cracking.409 Finally, Sierra Club reasserts its claim from Contention 21 that Holtec does not meet the spent fuel transportation case-by-case test set forth in ISG-11, and that the Environmental Report must address real life accident conditions.410 As with Contention 21, Sierra Club Contention 22 is inadmissible for failure to raise a genuine dispute with the application on a material issue of law or fact. We agree with the NRC Staffs assessment that, while section 72.108 requires the applicant to consider impacts from transportation in the Environmental Report, it does not require that the environmental report prove the safety of transportation packages.411 Moreover, the Commissions Part 71 regulations already address and preempt the issues Sierra Club seeks to litigate in this contention.412 And Sierra Clubs identical argument concerning the case-by-case test in ISG-11 is inadmissible for the same reason we found it inadmissible in Contention 21.
407 Sierra Club Pet. at 72.
408 Id. at 72-73.
409 Id. at 73 (quoting Chan, An Assessment of Delayed Hydride Cracking in Zirconium Alloy Cladding Tubes Under Stress Transients (2006)).
410 Id.
411 NRC Staff Consol. Answer at 116.
412 See 10 C.F.R. § 71.71(c)(1)(5) (vibration incident to transport of spent fuel ); id. § 71.73 (analyses of required transport accident conditions).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 86 of 292 Sierra Club Contention 22 is not admitted.
- 23. Sierra Club Contention 23 Sierra Club Contention 23 states:
Spent fuel cladding must be protected during storage against degradation that leads to gross ruptures in the fuel or the fuel must be otherwise confined such that the degradation of the fuel during storage will not pose operational safety problems with respect to its removal from storage. It is the responsibility of the licensee to ensure that fuel placed in dry storage meets the design-basis conditions. If [high burnup fuel] develops gross cladding defects during transportation, Holtec has not described how such defects could be detected. If [high burnup fuel] develops gross cladding defects and the fuel cannot be accepted at a waste repository, the fuel will remain at the proposed [consolidated interim storage] facility indefinitely.413 Citing 10 C.F.R. § 72.122(h)(1), Sierra Club argues that Holtec must protect the spent fuel cladding against degradation that leads to gross ruptures in the fuel or the fuel must be otherwise confined such that the degradation of the fuel during storage will not pose operational safety problems when the fuel is retrieved from storage.414 Sierra Club then asserts that Holtec has not specified how it will address the safety issues inherent in the gross cladding defects due to [high burnup fuel].415 Sierra Club also claims that Holtec has not described how either of these defects will be detected if they occur during transportation or how the high burnup fuel will be managed once that fuel is transported to a repository.416 Contention 23 cannot be admitted because it fails to show that a genuine dispute exists with the Holtec application on a material issue of law or fact. First, Sierra Club does not identify which part of the application it disputes, as specifically required.417 Second, Sierra Club does not address the analyses that support Holtecs claim that it does comply with section 413 Sierra Club Pet. at 73-74.
414 Id. at 74.
415 Id.
416 Id. at 75.
417 10 C.F.R. § 2.309(f)(1)(vi).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 87 of 292 72.122(h)(1), which are provided in the FSAR for the HI-STORM UMAX system and incorporated by reference in Holtecs SAR.418 And as Holtec points out, the HI-STORM UMAX system has already been certified by the NRC through its independent analyses and publication of its own Safety Evaluation Report (SER).419 Indeed, the NRC Staff in 2015 concluded that fuel stored in the UMAX system would be maintained at a temperature below ISG-11 Revision 3 standards (i.e., below 400 C) and accordingly determined that the system complied with section 72.122(h)(1) as it relates to thermal analysis, fuel cladding integrity and fuel retrievability.420 As the HI-STORE UMAX canister system has already been certified compliant by the NRC,421 a petitioner is barred by regulation from challenging either the Staffs SER or the UMAX SAR analyses in an adjudication.422 Sierra Club Contention 23 is not admitted.
- 24. Sierra Club Contention 24 Sierra Club Contention 24 states:
Because of the high heat output of fuel within MPC-37 canisters, there is a long decay time before shipments to the Holtec [consolidated interim storage] facility can occur. The loading of the MPC-37 is quite complicated. It is unclear when reactors will be allowed to ship the MPC-37 to the Holtec facility. There is a serious risk of radioactive contamination if the radioactive waste is shipped too soon.
Information that would inform the public and analysts has been withheld as being proprietary information. Neither the Holtec [Environmental Report] or SAR contain sufficient information to assess the risk of shipping the MPC-37 canisters.423 418 See, e.g., SAR Ch. 6 (incorporating by reference Docket No. 72-1040, Certificate of Compliance No. 1040, [FSAR] on The HI-STORM UMAX Canister Storage System (June 2018) (ADAMS Accession No. ML16193A336)).
419 Holtec Answer to Sierra Club at 113-14 (citing SER, Docket No. 72-1040, HI-STORM UMAX Canister Storage System, Holtec, Certificate of Compliance No. 1040, at 15 (Apr. 2015)
(ADAMS Accession No. ML15093A510) [hereinafter HI-STORM UMAX SER]).
420 HI-STORM UMAX SER at 4-5, -19, -22 to -23, -37.
421 10 C.F.R. § 72.214 (Certificate Number 1040).
422 Id. § 72.46(e).
423 Sierra Club Pet. at 75-76.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 88 of 292 Sierra Club claims that Holtec has not provided sufficient information in the
[Environmental Report] or SAR to make an accurate assessment of the safety of the [MPC-37 canisters for high burnup fuel].424 Sierra Club also contends that it was not permitted to access information about the MPC-37 canister or the HI-TRAC CS cask because Holtec withheld the information as proprietary.425 As emphasized throughout this Memorandum and Order, Holtec has applied for a license to construct and operate a Holtec HI-STORE UMAX spent fuel storage installationnot a license for it to transport canisters or casks. Nor is Holtec applying for permission to use or certify Holtec canisters or casks for transport, as those proposed for use at the HI-STORE facility have already been reviewed by the NRC and have been issued certificates of compliance. Thus, a contention challenging any aspect of an NRC-approved canister or cask is outside the scope of this proceeding under 10 C.F.R. § 2.309(f)(1)(iii), and would be an impermissible attack on the Commissions regulations absent a waiver under section 2.335.
As to Sierra Clubs claim that proprietary information was withheld that prejudiced petitioners, the claim is not an admissible contention under any standard. We again observe that the Federal Register notice announcing the opportunity to petition for a hearing in this proceeding set forth a procedure for petitioners to obtain proprietary information.426 The Secretary of the Commission also granted an extension of time for petitioners to do so,427 but Sierra Club still did not avail itself of the procedure.
Sierra Club Contention 24 is not admitted.
424 Id. at 76.
425 Id. at 76, 80.
426 See Notice of Opportunity to Request a Hearing, 83 Fed. Reg. at 32,919.
427 See Order of the Secretary (Aug. 20, 2018) (extending petitioners requests to access SUNSI to August 30, 2018).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 89 of 292
- 25. Sierra Club Contention 25 Sierra Clubs Contention 25 states:
Sierra Club adopts all contentions presented by Dont Waste Michigan, Citizens Against Chemical Contamination, Public Citizen, San Luis Obispo Mothers for Peace, Nuclear Energy Information Service, Citizens Environmental Coalition, and Environmentalists, Inc. in their Petition to Intervene in this proceeding.428 To adopt a contention, a participant must (1) have demonstrated standing in their own right; and (2) have proffered an admissible contention itself.429 Because Sierra Club has not proffered an admissible contention itself, it cannot adopt any of Joint Petitioners contentions.
Sierra Club Contention 25 is not admitted.
- 26. Sierra Club Contention 26 Sierra Club Contention 26 states:
Section 186 of the Atomic Energy Act (AEA) (42 U.S.C. § 2236) provides that a license issued by the NRC may be revoked for any material false statement in the license application. Holtec has made a material false statement in its license application in this case by stating repeatedly that title to the waste to be stored at the [consolidated interim storage] facility would be held by DOE and/or the nuclear plant owners. This false statement was repeated in Holtecs Answers to Sierra Clubs Contention 1 and [Joint Petitioners] Contention 2.
The statement that nuclear plant owners might retain title to the waste is shown to be false by a January 2, 2019, e-mail message from Holtec to the public titled Reprising 2018[.] Reprising 2018 states, While we endeavor to create a national monitored retrievable storage location for aggregating used nuclear fuel at reactor sites across the U.S. into one (HI-STORE CISF) to maximize safety and security, its deployment will ultimately depend on the DOE and the U.S. Congress.
Thus, if a false statement such as Holtec has made in its filing in this case is grounds for revoking a license, it is grounds for not issuing the license in the first instance.430 428 Sierra Club Pet. at 82.
429 See Consol. Edison Co. of N.Y. (Indian Point, Units 1 & 2), CLI-01-19, 54 NRC 109, 132-33 (2001).
430 Sierra Clubs Motion to File a New Late-Filed Contention (Jan. 17, 2019) [hereinafter Sierra Clubs Late-Filed Contention 26 Motion]; Sierra Club Contention 26 (Jan. 17, 2019) [hereinafter Sierra Club Contention 26].
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 90 of 292 On January 17, 2019, Sierra Club filed a motion to submit this new contention. 431 Because Sierra Club Contention 26 was submitted after the deadline for filing petitions,432 we must first consider whether Sierra Clubs motion to file the contention satisfies the three-prong test in 10 C.F.R. § 2.309(c)(1)(i)-(iii). Although Holtec argues to the contrary,433 the contention clearly satisfies two of them. It is undisputed that the e-mail on which the contention relies was not publicly available until January 2, 2019.434 Likewise there is no dispute that Sierra Club timely submitted Contention 26 on January 17, 2019just 15 days later.435 Less clear is whether Contention 26 relies on information that is materially different from information previously available.436 Both Holtec and the NRC Staff argue it is not.437 Holtec goes one step further and asks us to refuse even to consider the admissibility of Sierra Club Contention 26 because, Holtec argues, Petitioners[] gross mischaracterizations of the statement in the Holtec article belie any finding of good cause under the late-filing requirements in 10 C.F.R. § 2.309(c).438 Both Holtec and the NRC Staff, in our view, wrongly conflate the materially different requirement of 10 C.F.R. § 2.309(c)(1)(ii) (necessary to file a contention after the initial 431 Sierra Clubs Late-Filed Contention 26 Motion; see Sierra Club Contention 26.
432 See Notice of Opportunity to Request a Hearing, 83 Fed. Reg. at 32,919 (establishing September 14, 2018 as the deadline for hearing requests and petitions to intervene).
433 See Holtec Opposition to Late-Filed Sierra Club Contention 26 and [Joint Petitioners]
Contention 14 (Feb. 19, 2019) at 2-6 [hereinafter Holtec Opp. to Late-Filed Contentions].
434 See Sierra Clubs Motion to File a New Late-Filed Contention (Jan. 17, 2019), attach. Ex. 11, Holtec Highlights, Holtec Reprising 2018 (Jan. 2, 2019) [hereinafter Reprising 2018 E-mail].
435 See Shaw AREVA MOX Servs., LBP-08-11, 67 NRC at 493 (30 days deemed timely).
436 10 C.F.R. § 2.309(c)(1)(ii).
437 Holtec Opp. to Late-Filed Contentions at 4-6; NRC Staffs Consolidated Response to [Joint Petitioners], and the Sierra Clubs Motions to File New Contentions (Feb. 19, 2019) at 7-8
[hereinafter NRC Staff Response to Late-Filed Contentions].
438 Holtec Opp. to Late-Filed Contentions at 4.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 91 of 292 deadline) with the material to the findings the NRC must make requirement of 10 C.F.R. § 2.309(f)(1)(iv) (necessary to admit a contention). As frequently stated, the NRCs pleading requirements differ markedly from those in most courts because notice pleadings are not permitted.439 Rather, the scope of a contention is limited to issues of law and fact pled with particularity, 440 unless the contention is properly amended in accordance with the NRCs rules.
A corollary to the NRCs strict pleading requirements, however, is that the Agency may place petitioners in a quandary: What new information requires amending a contention or pleading a new one, on the one hand, and what merely constitutes new evidence that may be introduced in support of an existing contention? A petitioner who guesses wrong may find its evidence or its line of argument excluded from an evidentiary hearing.
Accordingly, in deciding whether to permit a contention to be filed after the initial deadline, we interpret materially different new information from the standpoint of a reasonable petitioner. Holtecs statement in Reprising 2018 concerning the role of DOE and the Congress in deployment of the proposed facility meets this standard because it appears to contradict information in the application. We do not demand that a petitioner establish the admissibility (much less the merits) of a contention before allowing it to be filed. Sierra Clubs motion to file Contention 26 is granted for cause.
That said, we agree with Holtec and the NRC Staff that Sierra Club Contention 26 is not admissible.441 439 N. Atlantic Energy Serv. Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 219 (1999).
440 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-15, 71 NRC 479, 482 (2010).
441 See Holtec Opp. to Late-Filed Contentions at 6-13; NRC Staff Response to Late-Filed Contentions at 8-11.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 92 of 292 Holtecs Reprising 2018 e-mail message stated that deployment of the planned facility will ultimately depend on the DOE and the U.S. Congress.442 Contention 26, therefore, claims Holtec made a material false statement in its license application when it said title to the spent fuel stored in the facility would be held either by DOE or by the nuclear plant owners.443 Holtecs statement in Reprising 2018, Sierra Club contends, is an admission that Holtec really has no intention of contracting with nuclear plant owners. Rather, Sierra Club asserts, Holtec intends to go forward with the project only if it can contract with DOE (which, both Holtec and Sierra Club agree, with limited exceptions would currently be unlawful). 444 Consequently, Contention 26 asserts, Holtecs license application should be denied.
Because section 186 of the AEA445 provides that an NRC license may be revoked for a material false statement in the license application, Sierra Club argues, it likewise should be grounds for not issuing a license in the first place.
Assuming section 186 of the AEA applies,446 however, Contention 26 does not set out a possible violation. Contrary to Sierra Clubs arguments, a violation of section 186 requires a willful misrepresentation.447 Nothing in Reprising 2018 demonstrates a misrepresentation in Holtecs license application, willful or otherwise.
442 Reprising 2018 E-mail at 1.
443 See Sierra Club Contention 26 at unnumbered p. 1.
444 See supra discussion at Sierra Club Contention 1.
445 42 U.S.C. § 2236.
446 Holtec contends that, prior to the issuance of a license, only section 182 of the AEA (42 U.S.C. § 2232) should apply, rather than section 186. See Holtec Opp. to Late-Filed Contentions at 12-13. The NRC Staffs response does not address the issue. For purposes of determining whether Contention 26 is admissible, we assume arguendo that Sierra Club properly invokes section 186.
447 Before 1987, the Commission used the standard set forth in the pre-1987 cases on which the Sierra Club relies. See Sierra Club Contention 26 at unnumbered pp. 7-8. But, in a 1987 rulemaking, the Commission reversed its prior policy. Whereas previously a material false statement under section 186 could be unintended and inadvertent, the Commission
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 93 of 292 On the contrary, Holtecs revised application unambiguously states that construction will be undertaken only after it has established a definitive agreement with the prospective user/payer for storing the used fuel (USDOE and/or a nuclear plant owner).448 Sierra Club claims, and Holtec agrees, that with certain limited exceptions DOE may not lawfully take title to spent nuclear fuel under current law.449 Therefore, Holtecs application describes two alternative types of customers: DOE and the nuclear plant owners themselves.
Holtec readily acknowledges that it hopes Congress will change the law, and allow it in most instances to contract directly with DOE to store spent fuel.450 Additionally, as Holtec points out, the eventual development of a permanent national nuclear waste repository, as contemplated by the NWPA, might eliminate the need for some or all of the planned stages of Holtecs proposed interim storage facility.451 Nothing in Reprising 2018 is inconsistent with this state of affairs.
Meanwhile, Holtec represents that it is committed to going forward with the project by contracting directly with nuclear plant owners that currently hold title to their spent fuel.452 We have no reason to assume that, having acknowledged on the record that (with limited exceptions) it would be unlawful to contract directly with DOE under the NWPA as currently in determined in 1987 to limit the term to egregious situations involving an element of intent.
Completeness and Accuracy of Information, 52 Fed. Reg. 49,362, 49,363-65 (Dec. 31, 1987).
448 SAR at 1-6. (As discussed supra, Holtec has corrected an erroneous inconsistency that initially appeared in Revision 1 of its Environmental Report).
449 See supra IV.B.1.
450 Tr. at 250.
451 Tr. at 246.
452 Tr. at 248.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 94 of 292 effect, Holtec will nonetheless try to do just that.453 Nor may we assume that DOE would be complicit in a violation of the NWPA.454 Whether Holtec will find the alternative of contracting with the nuclear plant owners to be commercially viable is not an issue before the Board, because the business decision of whether to use a license has no bearing on a licensees ability to safely conduct the activities the license authorizes. As the Commission instructs us, the NRC is not in the business of regulating the market strategies of licensees or determining whether market conditions warrant commencing operations.455 Sierra Club Contention 26 is not admitted.
- 27. Sierra Club Contention 27 Sierra Club Contention 27 states:
During the hearing before the ASLB in this case that occurred on January 23 and 24, 2019, Holtec relied on its purported Aging Management Program, SAR Chapter 18, to support its claim that there is no issue with high burnup fuel, as set forth in Sierra Club Contentions 14 and 20-23. Holtec had not replied upon, or even mentioned, the Aging Management Program in its Answer to Contentions 14 and 20-23, which raise issues regarding high burnup fuel. This is new information that was not available to Sierra Club until Holtec relied upon the Aging Management Program at the ASLB hearing.
Holtecs Aging Management Program, SAR Chapter 18, only mentions high burnup fuel once, in Section 18.3. The Aging Management Program does not explain how the impact to the containers from high burnup fuel will be addressed.
The reference simply refers to Appendix D of NUREG-1927, which provides a process for experimental demonstration for time periods beyond a 20-year licensing period.
The ER does not mention the Aging Management Program at all.
Since the Holtec [consolidated interim storage] facility is expected to be in operation well beyond the 40-year licensing period, the Aging Management 453 See, e.g., Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-9, 53 NRC 232, 235 (2001) (Further, in the absence of evidence to the contrary, the NRC does not presume that a licensee will violate agency regulations wherever the opportunity arises.).
454 See, e.g., Chemical Foundation, 272 U.S. at 14-15; Armstrong, 517 U.S. at 464.
455 Natl Enrichment Facility, CLI-05-28, 62 NRC at 726 (internal quotation marks omitted).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 95 of 292 Program in the SAR, if it proposes to comply with Appendix D, must set out in detail how it will do so.456 Sierra Club relies on three documents to support its point that an aging management program must be based on more tha[n] hope and a promise.457 First is DOE guidance entitled Managing Aging Effects on Dry Cask Storage Systems for Extended Long-Term Storage and Transportation of Used Fuel-Revision 2, which refers to four types of aging management programs and ten elements that should be included in the programs.458 Second is a portion of NRC guidance document, NUREG-1748, which describes what mitigation measures an applicant should describe in an environmental report.459 Third is a report by Robert Alvarez that describes the alleged difficulty of monitoring decay heat from high burnup fuel.460 Sierra Club also disputes Holtecs assertion at oral argument that its aging management program is not voluntary, since Holtec apparently gets to fashion its own program and there is no indication that there will be any NRC oversight of Holtecs execution of the program.461 Because this contention was submitted after the original deadline, we first determine whether the contention satisfies 10 C.F.R. § 2.309(c). As explained supra, the Board will consider a new or amended contention filed after the deadline only if the petitioner demonstrates good cause under the three-pronged test of 10 C.F.R. § 2.309(c)(1). We agree 456 Sierra Clubs Additional Contentions in Support of Petition to Intervene and Request for Adjudicatory Hearing (Feb. 25, 2019) at 1 [hereinafter Sierra Club Additional Contentions]; see also Sierra Clubs Motion to File New Late-Filed Contentions 27, 28, and 29.
457 Sierra Club Additional Contentions at 4.
458 Id.
459 Id. at 7.
460 Id.; see also id., attach., Expert Report and Curriculum Vitae of Robert Alvarez (Feb. 25, 2019). As noted infra, Mr. Alvarez purports to have significant experience in the areas of nuclear materials and policy development.
461 Sierra Club Additional Contentions at 6.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 96 of 292 with the NRC Staff and Holtec that Sierra Clubs Contention 27 fails to meet the first prong,462 and conclude that Sierra Club could have made this challenge to the aging management program in its initial petition. Sierra Club does not assert that the information about Holtecs aging management program is new or materially different than the information in Holtecs application, only that it has been used in a new way that Sierra Club did not anticipate. The DOE and NRC guidance documents upon which Sierra Club relies as the basis for this contention were available at the time that Sierra Club filed its initial petition. We agree with the NRC Staffs comment that this contention is solely related to the adequacy of the [aging management program] as it already existed in the application.463 As explained supra, previously available information that is newly interpreted by the petitioner does not constitute good cause to file a new contention.464 Sierra Club Contention 27 is not admitted.
- 28. Sierra Club Contention 28 Sierra Club Contention 28 states:
During the hearing before the ASLB in this case that occurred on January 23 and 24, 2019, Holtec relied on its purported Aging Management Program, SAR Chapter 18, to support its claim that there is no issue with impacts to or from the groundwater, as set forth in Sierra Club Contentions 15-19. Holtec had not relied upon, or even mentioned, the Aging Management Program in its Answer to Contentions 15-19, which raise issues regarding the presence and location of and impacts from groundwater. This is new information that was not available to Sierra Club until Holtec relied upon the Aging Management Program at the ASLB hearing.
462 See NRC Staff Response to Sierra Clubs Motion to Admit Contentions 27, 28, and 29 (Mar.
22, 2019) at 6-9 [hereinafter NRC Staff Answer to Sierra Club New Contentions]; Holtec Opposition to Late-Filed Sierra Club Contentions 27, 28, and 29 (Mar. 21, 2019) at 5-11
[hereinafter Holtec Opp. to Sierra Club New Contentions].
463 NRC Staff Response to Sierra Club New Contentions at 8.
464 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-90-5, 31 NRC 73, 79 (1990) (finding no good cause exists for late-filed safety concerns when petitioner had yet to put the pieces of [the] safety puzzle together despite previous availability of the information).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 97 of 292 Holtecs Aging Management Program, SAR Chapter 18, only mentions groundwater testing or monitoring in connection with concrete structures, in Section 18.8. The Aging Management Program does not explain how the impact to the containers from groundwater or impacts to the groundwater from leaking containers will be addressed. The reference simply refers to Appendix D of NUREG-1927, which provides a process for experimental demonstration for time periods beyond a 20-year licensing period.
The ER does not mention the aging management program at all.
Since the Holtec [consolidated interim storage] facility is expected to be in operation well beyond the 40-year licensing period, the Aging Management Program in the SAR, if it proposes to comply with accepted guidance, must set out in detail how it will do so.465 This proposed contention is the same as Contention 27, except high burnup fuel has been substituted with the term groundwater. Sierra Club relies on the same documents as the basis for Contentions 27 and 28. Sierra Club also uses the same language to dispute Holtecs assertion at the oral argument that the aging management program is voluntary.
As with Contention 27, because this contention was submitted after the deadline, we first determine whether it meets the good cause standard of 10 C.F.R. § 2.309(c). We agree with the NRC Staff and Holtec that Sierra Clubs Contention 28 fails to meet the first prong of section 2.309(c)(1),466 and conclude that Sierra Club could have made this challenge in its initial petition. Again, Sierra Club does not assert that the information quoted from the oral argument or the documents underlying this contention are new or materially different than the information in Holtecs application, only that Sierra Clubs interpretation is new. As explained supra, previously available information that is newly interpreted by the petitioner does not constitute good cause to file a new contention.467 Sierra Club Contention 28 is not admitted.
465 Sierra Club Additional Contentions at 8.
466 NRC Staff Answer to Sierra Club New Contentions at 7; Holtec Opp. to Sierra Club New Contentions at 17-20.
467 Turkey Point, LBP-90-5, 31 NRC at 79.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 98 of 292
- 29. Sierra Club Contention 29 Sierra Club Contention 29 states:
The [Environmental Report], Rev. 3, has now added utilities, in addition to DOE, as possible entities that might take title to the radioactive waste in the [consolidated interim storage] facility. The [Environmental Report] provides no hint, however, as to whether a private utility that owns a nuclear reactor would agree to retain title to the waste. In fact, the costs to a private utility would be so great that the utility would not want to retain title to the waste. And Holtec is still presenting DOE as a possible titleholder in the [Environmental Report], even though Holtecs counsel admitted at the ASLB hearing on January 24, 2019, that DOE cannot legally take title to the waste. Thus, Holtec has failed to show reasonable assurance of funding for the project, as required by 10 C.F.R. § 72.22(e).468 Sierra Club relies on a report by Robert Alvarez that describes the financial implications to reactor owners as support for the assertion that it is highly unlikelyin fact, probably a fanciful dreamthat private reactor owners would agree to incur that kind of expense469 to retain title to the nuclear waste. Sierra Club also cites the Louisiana Energy Services and Private Fuel Storage Commission decisions for a discussion of what constitutes reasonable assurance of adequate funding.470 In its motion to file Contention 29, Sierra Club claims that the information forming the basis for this challenge is materially different than information previously available because Sierra Club had no reason to believe the option of the reactor owners involvement was a serious proposal.471 As with Contentions 27 and 28, because this contention was submitted after the initial deadline, we first determine if it meets the good cause standard of 10 C.F.R. § 2.309(c). We 468 Sierra Club Additional Contentions at 14.
469 Id. at 15. Mr. Alvarez has significant experience in nuclear materials and policy development.
470 Id. at 17-18 (citing La. Energy Servs., L.P. (Claiborne Enrichment Center), CLI-97-15, 46 NRC 294 (1997) and Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-00-13, 52 NRC 23 (2000)).
471 Sierra Clubs Motion to File New Late-Filed Contentions 27, 28, and 29 at unnumbered p. 3.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 99 of 292 agree with the NRC Staff472 and Holtec473 that Sierra Clubs Contention 29 fails to meet that standard, because Sierra Club could have made this challenge in its original petition. Sierra Club admits that Holtecs application always contained a private funding option, but it had not taken that option seriously.474 We agree with the NRC Staff that [w]hether or not Sierra Club believed the private funding option was a serious proposal, it was unquestionably . . .
previously available.475 Sierra Club Contention 29 is not admitted.
C. Joint Petitioners
- 1. Joint Petitioners Contention 1476 Joint Petitioners Contention 1 states:
The redaction of some 144 pages from Appendix C of the Holtec Environmental Report violates [NEPA] and National Historic Preservation Act.477 472 NRC Staff Answer to Sierra Club New Contentions at 11-13.
473 Holtec Opp. to Sierra Club New Contentions at 22-26.
474 See Sierra Clubs Motion to File New Late-Filed Contentions 27, 28, and 29 at unnumbered pp.1-2 (As Sierra Club had said previously, Holtecs documentation appeared to present the option of the reactor owners involvement as a fig leaf to hide the real intent for DOE to take title to the waste.).
475 NRC Staff Answer to Sierra Club New Contentions at 11 (quoting Sierra Clubs Motion to File New Late-Filed Contentions 27, 28, and 29 at unnumbered p. 3).
476 Joint Petitioners also include an objection in their initial petition and move for the dismissal and termination of this licensing proceeding. Joint Petrs Pet. at 24-25. They allege that there is no federal authorization for the Holtec CISF because neither Part 72 nor the NWPA authorize it, and the proposed facility does not fall under the NRCs definition of an independent spent fuel storage installation under 10 C.F.R. § 72.3. Id.
The Board overrules the objection. As explained in the Commission Secretarys Order denying Beyond Nuclear and Faskens substantially similar motions to dismiss, the NRCs regulations do not provide for the filing of threshold motions or objections. See Order Denying Motions to Dismiss. Even if Joint Petitioners had made this argument in the form of a contention, we would not admit it for the same reasons we do not admit Beyond Nuclears contention and Sierra Club Contention 1.
477 Joint Petrs Pet. at 26.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 100 of 292 Joint Petitioners allege that Holtec has violated § 106 of the [National Historic Preservation Act (NHPA)] by redacting extensive details about two historic or cultural properties referenced elsewhere in the Environmental Report.478 Joint Petitioners point to the Environmental Reports Appendix C, which describes the two historic or cultural properties in question but which has been wholly redacted. Joint Petitioners therefore allege that [t]he redaction of 144 pages of Appendix C as being security-related has precluded Holtecs precise identification of the resources, and further has made public involvement in mitigation advocacy impossible.479 As the NRC Staff stated in its reply, it was the Staffnot Holtecwho redacted Appendix C in accordance with the NHPA.480 Specifically, the NRC Staff made a preliminary conclusion that public disclosure of this information might risk harm to a potential historic resource.481 Upon completion of the Staffs consultation with the Keeper of the National Register of Historic Places and a final determination of eligibility, the Staff will make available to the public any information that would not harm any potential historic properties.482 Moreover, if Joint Petitioners wanted access to the sensitive information in Appendix C, they had two opportunities to request it: once when the opportunity to request a hearing was published in the Federal Register,483 and again when the Commission offered Joint Petitioners another 10-day opportunity to request access to such information.484 Joint Petitioners did not 478 Id.
479 Id. at 27.
480 NRC Staff Consol. Answer at 29 (citing 54 U.S.C. § 307103(a)).
481 Id. at 30.
482 Id.
483 Notice of Opportunity to Request a Hearing, 83 Fed. Reg. at 32,919, 32,922-24.
484 See Order Denying Motions to Dismiss.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 101 of 292 take either opportunity to request access. In any event, because Joint Petitioners Contention 1 does not raise a dispute with Holtecs application, it is inadmissible.485 Joint Petitioners Contention 1 is not admitted.
- 2. Joint Petitioners Contention 2 Joint Petitioners Contention 2 has evolved. As initially proffered, it stated:
Holtec cannot provide reasonable assurances that it can obtain the necessary funds to cover the costs of construction, operation, maintenance, and decommissioning of the CISF.486 Although not articulated in the contention itself, Joint Petitioners original basis for Contention 2 explained that their challenge to Holtecs financial plan arose from their conviction that Holtec would not construct its proposed storage facility without financial guarantees from the U.S. Department of Energy.487 However, Joint Petitioners contended, if Holtec contracted with DOE to store the nuclear power companies spent fuel, it would violate the NWPA.488 Thus, insofar as it relied on the assertion that Holtecs contracting with DOE would violate the NWPA, Joint Petitioners Contention 2 was substantially similar to Beyond Nuclears sole contention and to Sierra Club Contention 1, discussed supra.
Indeed, after Holtecs counsel conceded that, with limited exceptions, it would violate the NWPA as currently in effect for DOE to take title to nuclear plant owners spent fuel,489 Joint Petitioners did just what Beyond Nuclear and the Sierra Club did. On the same day Beyond Nuclear moved to amend its contention and the Sierra Club moved to amend Sierra Club 485 10 C.F.R. § 2.309(f)(1)(vi).
486 Joint Petrs Pet. at 31.
487 Id. at 32.
488 Id. at 32-33.
489 Tr. at 250-52.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 102 of 292 Contention 1, Joint Petitioners moved to amend the basis for their Contention 2 to add exactly the same statement:
Language in Rev. 3 of Holtecs Environmental Report, which presents federal ownership as a possible alternative to private ownership of spent fuel, does not render Holtecs financial assurance plan lawful. As long as Holtec includes the federal government as a potential guarantor or financer of the project, which in turn requires federal ownership of spent fuel, the application violates the NWPA.490 Insofar as Joint Petitioners Contention 2 now asserts that reference to the mere possibility of contracting with DOE must be expunged from Holtecs application, it remains substantially similar to both Beyond Nuclears amended contention and Sierra Clubs amended Contention 1. We therefore likewise grant Joint Petitioners February 6, 2019 motion to amend their Contention 2, but rule that portion is not admissible for the same reasons that Beyond Nuclears amended contention and Sierra Clubs amended Contention 1 are not admissible.
But Joint Petitioners did not stop there. While leaving the text of their original Contention 2 unchanged, on February 25, 2019 Joint Petitioners moved to further amend the basis for the contention.491 More than five months after timely filing their original petition, Joint Petitioners ask to replace their five-page basis statement for Contention 2 with a fifteen-page statement accompanied by a fourteen-page expert report.
Because Joint Petitioners seek to amend their contention after the deadline for filing petitions, we must first consider whether its second motion satisfies the three-prong test in 10 C.F.R. § 2.309(c)(1)(i)-(iii). It does not.
490 Motion of [Joint Petitioners] to Amend Their Contention 2 Regarding Federal Ownership of Spent Fuel in the Holtec International Revised License Application (Feb. 6, 2019) at 8.
491 Motion of [Joint Petitioners] to Amend Their Contention 2 Regarding Holtecs Proposed Means of Financing the Proposed [CISF] (Feb. 25, 2019) [hereinafter Joint Petrs Feb. 25 Motion to Amend].
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 103 of 292 Although Holtec and the NRC Staff argue to the contrary,492 we agree that the new information on which Joint Petitioners purport to base their filing is materially different from information previously available, and that Joint Petitioners timely filed their motion within 30 days of when that information became available. However, Joint Petitioners second motion to amend seeks to add material that is not in fact based upon that new information, as required by 10 C.F.R. § 2.309(c). Rather, their motion seeks to add arguments and supporting opinions that could have been submitted with their original petition.
Specifically, Joint Petitioners allege the new information triggering their second motion to amend the basis statement for Contention 2 is Holtec counsels concession, during oral argument on January 24, 2019, that in nearly all instances DOE may not lawfully contract with Holtec to store nuclear power companies spent fuel under the NWPA as currently in effect.493 Joint Petitioners correctly assert that this was the first time Holtec unequivocally conceded that it cannot presently contract with DOE to store most spent nuclear fuel.494 Joint Petitioners response to this development, however, was not to address Holtecs concession, but rather to seize the chance to try to further amend their basis statement for Contention 2 so as to visit or revisit a wide range of issues that were, or should have been, addressed in their original petition.
The centerpiece of Joint Petitioners second motion to amend their basis statement for Contention 2 is the accompanying sworn declaration of Robert Alvarez, dated February 23, 492 Holtec Opposition to [Joint Petitioners] Motion to Amend Contention 2 (Mar. 22, 2019) at 4-12; NRC Staff Response to [Joint Petitioners] Motion to Amend Contention 2 (Mar. 22, 2019) at 5-7.
493 Joint Petrs Feb. 25 Motion to Amend at 8.
494 Id.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 104 of 292 2019, which is summarized and repeated in part in the basis statement itself.495 Mr. Alvarez has significant experience in the areas of nuclear materials and policy development.496 Mr. Alvarezs declaration asserts that he reviewed Holtecs license application in light of Holtecs admission that the only lawful way to finance the project was from the licensee owners of the waste using [Holtecs facility] for interim storage.497 What follows in his declaration, however, is a statement that fails to analyze any specific provision in Holtecs application, and that contains 34 footnoted references all dating (apart from Holtec counsels concession) from earlier than 2018. There is nothing new in Mr. Alvarezs declaration, and virtually nothing that purports to relate directly to Holtec counsels January 24, 2019 concession.
This is confirmed by Mr. Alvarezs own summary of his declaration, in which he sets forth six conclusions.
First, Mr. Alvarez states: Holtecs license application relies heavily on illegal, nonexistent conditions and contract terms. Large amounts of spent fuel from commercial nuclear power fleet require very long term management and storage.498 This statement appears to be a throwback to Joint Petitioners original Contention 2, which assumed that Holtec would rely on contracts with DOE that both Holtec and Joint Petitioners now agree would currently be unlawful. No one disputes that spent nuclear fuel requires long term management and storage. Mr. Alvarezs first conclusion presents no new information.
Second, Mr. Alvarez states:
495 Joint Petrs Feb. 25 Motion to Amend, attach., Expert Report and Curriculum Vitae of Robert Alvarez (Feb. 23, 2019) [hereinafter Joint Petrs Alvarez Report].
496 Id., Curriculum Vitae at 1, 4.
497 Id., Alvarez Decl. at 1.
498 Id. at 14.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 105 of 292 By assuming DOE would take title, the cost basis for the Holtec [facility] relies on DOE bearing costs. Since this option is not legal, the nuclear licensees must pay all costs. Management costs are more for the licensees when they must pay all costs of onsite storage, transport to and from a CISF and all [facility] operating and closure costs.499 Insofar as this statement challenges Holtecs financial plan as being unlawfully premised on contracts with DOE, it ignores Holtecs October 9, 2018 Answer to Joint Petitioners original Contention 2, in which Holtec clarified that it is not relying on DOE contracts to demonstrate its financial qualifications.500 Insofar as this statement is intended to suggest that Holtecs pricing structure will discourage power companies from contracting for spent fuel storage, it simply repeats Joint Petitioners claim that private financing is improbable, as set forth in Joint Petitioners October 16, 2018 reply in support of their original Contention 2.501 Either way, Mr.
Alvarezs second conclusion presents no new information.
Third, Mr. Alvarez states: These costs of continued licensee ownership at a
[consolidated interim storage facility] have not been fully explored or revealed by Holtec and appear, based on existing information, to be significantly higher than management at the reactor sites.502 Insofar as this statement suggests that private financing is improbable because nuclear power plant owners might conclude they are financially better off by retaining their spent fuel, rather than by paying Holtec to store the fuel, it again repeats the same argument that Joint Petitioners raised more than four months earlier, in their reply in support of their original Contention 2.503 Mr. Alvarezs third conclusion presents no new information.
499 Id.
500 Holtec Answer to Joint Petrs at 31.
501 Joint Petrs Reply at 18.
502 Joint Petrs Alvarez Report, Alvarez Decl. at 14.
503 Joint Petrs Reply at 18.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 106 of 292 Fourth, Mr. Alvarez states:
High burnup fuel, an increasingly large portion of the wasted inventory, needs longer cooling in wet storage and its cladding could have less integrity than that of lower burnup fuel, thus the long term impacts of repeated transport must be considered before permitting routine massive shipments to a temporary location.504 The likelihood that high burnup fuel might present special concerns was the subject of several contentions that were proffered in Sierra Clubs original petition505contentions in which Joint Petitioners sought to join.506 Mr. Alvarezs fourth conclusion presents no new information related to Holtec counsels concession that Holtec may not lawfully contract with DOE to store most spent nuclear fuel under the NWPA, as currently in effect.
Fifth, Mr. Alvarez states: High burnup fuel could need more protective storage such as double containerization to be moved and these costs have not been included.507 Again, as stated above, the considerations applicable to high burnup fuel have been previously addressed in this proceeding, and Joint Petitioners themselves have sought to join in contentions that address this issue. Mr. Alvarezs fifth conclusion presents no new information, and does not appear related to Holtec counsels concession that Holtec may not lawfully contract with DOE to store most spent nuclear fuel under the NWPA, as currently in effect.
Sixth, Mr. Alvarez states: Holtec does not include a dry transfer facility in its operations for at least the first century, but it will be needed well before that to repackage [spent nuclear fuel] for disposal and for the remediation of leaking, cracked or otherwise flawed and/or dangerous canisters.508 504 Joint Petrs Alvarez Report, Alvarez Decl. at 14.
505 See Sierra Club Pet. at 67-75.
506 Joint Petrs Pet. at 88.
507 Joint Petrs Alvarez Report, Alvarez Decl. at 14.
508 Id.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 107 of 292 Likewise, the absence of a dry transfer facility has always been apparent from Holtecs license application. It was, in fact, addressed in Joint Petitioners Contentions 4 and 7, as submitted with their original petition on September 14, 2018.509 Mr. Alvarezs sixth and final conclusion presents no new information, and does not appear connected to Holtec counsels concession that Holtec may not lawfully contract with DOE to store most spent fuel under the NWPA as currently in effect.
Because the new information on which Joint Petitioners purport to rely (Holtec counsels concession) is not, in fact, [t]he information upon which the filing is based, they fail to satisfy 10 C.F.R § 2.309(c). We therefore deny Joint Petitioners second motion to amend the basis statement for Joint Petitioners Contention 2.
Moreover, if we did allow Joint Petitioners to file their second amended basis for Contention 2, the contention still would not be admissible. As explained above, Mr. Alvarezs declaration is devoid of a single specific reference to Holtecs application and fails to raise a genuine dispute. Nor do the arguments advanced in Joint Petitioners proffered amended basis itself warrant further proceedings.
For example, Joint Petitioners ignore the fact that Holtecs license application seeks approval of only the first of twenty potential phases. Joint Petitioners claims about financial assurances for later phases or for storage beyond the licensed term are therefore outside the scope of this proceeding, and fail to satisfy 10 C.F.R. § 2.309(f)(1)(iii).
Nor do Joint Petitioners demonstrate how any information in Mr. Alvarezs declaration controverts Holtecs financial plan for the first phase or renders it deficient. General speculation about potential future costs, without specifying how they make incorrect the financial analysis for the only phase covered by the application, does not raise a genuine dispute with the application as required by 10 C.F.R. § 2.309(f)(1)(vi).
509 Joint Petrs Pet. at 46-49, 61-64.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 108 of 292 Insofar as Joint Petitioners contend that Holtecs application is deficient for failure to address liability coverage and the scope of Price-Anderson Act protection, they misapprehend the requirements of 10 C.F.R. § 72.22(e). That provision requires that an applicant either possesses, or demonstrates reasonable assurance of obtaining the necessary funds to cover (1) estimated construction costs; (2) estimated operating costs; and (3) estimated decommissioning costs.510 It says nothing about liability coverage. Regardless of whether the Price-Anderson Act will cover Holtecs activities, contrary to 10 C.F.R. § 2.309(f)(1)(iv) Joint Petitioners have not demonstrated why this issue is material to the NRCs review of Holtecs application or relates to their concern with its financial qualifications.
Likewise, although Joint Petitioners challenge as inadequate both Holtecs environmental cost-benefit analysis and its analysis of alternatives, they do not discuss or address, much less controvert, these sections of Holtecs Environmental Report. Thus, they fail to demonstrate a genuine material dispute with Holtecs license application, as required by 10 C.F.R. § 2.309(f)(1)(vi).
Neither Mr. Alvarezs declaration nor Joint Petitioners second amended basis for their Contention 2 therefore supports a contention that satisfies 10 C.F.R. § 2.309(f)(1).
Finally, insofar as Joint Petitioners Contention 2 continues to assert that Holtec intends to go forward with the project only if it is able to contract with DOE,511 it is likewise not admissible for failure to raise a genuine dispute with the application. Holtec readily admits that it would prefer if Congress would change the law and permit it to contract with DOE.512 But both Holtecs license application and the statements of counsel at oral argument assure us that 510 10 C.F.R. § 72.22(e).
511 Joint Petrs Pet. at 34.
512 Tr. at 250.
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Holtec intends to proceed by attempting to negotiate storage contracts with the nuclear power plant owners themselves, at least unless and until another option is available.513 If Holtec is not successful, then the facility will not be built, as Holtecs license application makes clear it has no intention of beginning construction until it has sufficient contracts in hand.514 No purpose would be served by convening an evidentiary hearing to further explore Holtecs intent, based either upon company documents that preceded its application or upon one sentence in a single more recent company publication that is arguably ambiguous.515 None of these documents raises a genuine material dispute with Holtecs license application, as required by 10 C.F.R. § 2.309(f)(1)(vi).
Joint Petitioners Contention 2, as amended, is not admitted.
- 3. Joint Petitioners Contention 3 Joint Petitioners Contention 3 states:
The Environmental Report contains a gross underestimation of the volume of low-level radioactive waste (LLRW) that will be generated by the use of concrete and other materials for bunkering of the [spent nuclear fuel] canisters, and by replacement of the canisters themselves during the operational life of the CISF.
Besides providing a distorted view of the waste management obligations the project will create, the financial burdens arising from creation, oversight and disposition of millions of additional tons of LLRW causes a seriously inaccurate picture of the true costs of constructing, operating and decommissioning the Holtec
[facility].516 Taking issue with Holtecs estimate that it will only generate small quantities of hazardous and non-hazardous waste . . . includ[ing] [LLRW],517 Joint Petitioners allege that 513 Tr. at 248.
514 Holtec Proposed License at 2.
515 See Joint Petrs Feb. 25 Motion to Amend at 3; Motion by [Joint Petitioners] For Leave to File a New Contention (Jan. 17, 2019); [Joint Petitioners] Contention 14 (Jan. 17, 2019).
516 Joint Petrs Pet. at 36-37.
517 Id. at 37 (citing ER at 3-108).
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Holtec omits to mention that millions of tons of concrete will be mixed and poured onsite, which upon the facilitys decommissioning will have been transformed into a large quantity of radioactively activated waste.518 For support, Joint Petitioners rely upon common sense that the storage facilitys concrete and subsoils will become activated, and upon the inferences that allegedly can be drawn from Holtecs narrow reply rebutting the volume of LLRW generated, not the generation of LLRW itself.519 Joint Petitioners also challenge Holtecs reliance on the Continued Storage GEIS (and therefore section 51.23), as the Continued Storage GEIS does not contemplate a storage facility that uses 8,000,000 tons of concrete for housing spent fuel canisters520 nor does it account for the large, and escalating cost item of repackaging spent fuel to be moved from reactor sites to a consolidated storage facility, and thence ultimately to a geological repository, and thus Holtec may not rely upon it in its application.521 Holtec and the NRC Staff argue that Joint Petitioners have not met their burden in proffering facts or expert opinion supporting their allegations.522 The Board agrees. Joint Petitioners only speculate that all 8,000,000 tons of concrete used at the facility will become LLRW, despite conceding that the facilitys concrete can be decontaminated by Holtec523 and notwithstanding that the design of the proposed facility includes a liner that serves to protect
[the concrete] from contamination from its resident canister.524 The Continued Storage GEIS concerning ISFSI decommissioning concludes:
Although the exact amount of LLW and nonradioactive waste depends on the level of contamination, the quantity of waste generated from the replacement of the 518 Id.
519 See Tr. at 161-62.
520 Joint Petrs Pet. at 40, 41.
521 Id. at 41.
522 See NRC Staff Consol. Answer at 34; Holtec Answer to Joint Petrs at 36.
523 See Tr. at 162.
524 Holtec Answer to Joint Petrs at 43 (citing Decommissioning Plan at 9).
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canisters, storage casks, concrete storage pads, DTS, and canister transfer building is still expected to be comparable to the LLW generated during reactor decommissioning, which was previously determined to have a SMALL impact in the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (NRC 2013a).525 As to Joint Petitioners complaint regarding the Continued Storage GEIS, including the alleged omission of the topics of repackaging of spent fuel and disposal of the spent fuel casks after repackaging, Holtecs Environmental Report appropriately relies on the Continued Storage GEIS. We therefore agree with Holtec that Joint Petitioners complaint amounts to an impermissible attack on the NRCs regulations.526 Joint Petitioners Contention 3 is not admitted.
- 4. Joint Petitioners Contention 4 Joint Petitioners Contention 4 states:
Holtec has defined a site-specific spent nuclear storage facility that does not qualify for the exclusions from NEPA scrutiny conferred by the Waste Storage GEIS.
Consequently, severe accident mitigation during transportation to and from the Holtec CISF and at the CISF, and SNF and GTCC storage and management operations at the CISF site, may not be treated as generic issues and excused from consideration within the EIS.527 On February 18, 2019, Joint Petitioners moved to amend Contention 4 based on allegedly new information revealed in Holtecs January 17, 2019 responses to the NRC Staffs requests for additional information (RAIs).528 The amended contention would add the following paragraph:
Holtec has created an issue of fact by claiming that its over-optimistic conclusion that there are no credible challenges to canister confinement integrity capable of causing radioactivity release is consistent with the GEIS.529 525 Continued Storage GEIS at 5-48.
526 See 10 C.F.R. § 2.335.
527 Joint Petrs Pet. at 46.
528 Joint Petrs Motion to Amend Contentions 4 & 7, at 6-7.
529 See Joint Petitioners Amended Contentions 4 & 7 (Feb. 18, 2019) [hereinafter Joint Petrs Amended Contentions 4 & 7]. The NRC Staff and Holtec timely filed responses in opposition to
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In their motion, Joint Petitioners rely on Dr. Gordon Thompsons declaration to try to show that Holtecs RAI 9-3 response about accident conditions is seriously inconsistent with the GEIS.530 Joint Petitioners also claim that Holtecs insistence that there is zero potential accident or attack scenario that would result in a release of hazardous radioactivity lacks credibility and undermines . . . Holtecs decisions to not have an on-site emergency response plan for radiological accidents and its determination not to have [dry transfer system (DTS)]
capability.531 As explained supra, the Board will consider an amended contention filed after the original deadline only if petitioner demonstrates good cause under the three-pronged test of 10 C.F.R. § 2.309(c)(1). Here, we agree with the NRC Staff and Holtec that Joint Petitioners have failed to demonstrate good cause, because the information upon which they base their amended contention was previously available. The difference between Holtecs original SAR section 9.2.2 and its answer in RAI 9-3 is three words. Holtec changed there is no credible normal or accident situation to there is no credible normal, off-normal, or accident conditions.
This revision is consistent with the same conclusions made by Holtec in SAR 9.2.1. Joint Petitioners do not show how those three words in RAI 9-3 change Holtecs answer in a way that provides new or materially different information. In fact, Dr. Thompsons declaration acknowledges that Holtecs RAI response is an equivalent assertion to one made in its the Joint Petitioners motion. See NRC Staffs Response to [Joint Petitioners] Motion to Amend Contentions 4 and 7 (Mar. 14, 2019) [hereinafter NRC Staffs Response to Joint Petrs Motion to Amend Contentions 4 & 7]; Holtec Opposition to [Joint Petitioners] Motion to Amend Contentions 4 and 7 (Mar. 15, 2019).
530 Joint Petrs Amended Contentions 4 & 7, at 6-7.
531 Id. at 7.
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Environmental Report at section 4.13.2.532 Because Joint Petitioners have failed to meet the first prong under 10 C.F.R. § 2.309(c)(1), we deny their motion to amend Contention 4.
Accordingly, we analyze Joint Petitioners Contention 4 as originally filed. In their original filing, Joint Petitioners cite four bases for their contention: (1) the proposed facility is not legally authorized; (2) the proposed facility departs from assumptions in the GEIS; (3) Holtec agrees that its project is site-specific; and (4) the proposed facility is not covered by the GEIS exemption.533 We have previously rejected the first basis in addressing Beyond Nuclears contention and Sierra Clubs Contention 1, supra. As to the remaining bases, we agree with Holtec534 and the NRC Staff535 that Joint Petitioners challenges to the lack of dry transfer system capability at the proposed facility and to Holtecs return to sender policy do not demonstrate a genuine dispute with the application on a material issue of law or fact. The Continued Storage GEIS acknowledges that not all storage 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.536 The site-specific evaluation would not reanalyze the impacts of continued storage, because that is already covered by the GEIS and requires a waiver to challenge.537 Accordingly, Holtecs Environmental Report contains a site-specific impact analysis for the period of the proposed activity. Neither the Continued Storage 532 Joint Petrs Amended Contentions 4 & 7, at 7.
533 Joint Petrs Pet. at 46-49.
534 See Holtec Answer to Joint Petrs at 44-46 535 See NRC Staff Consol. Answer at 36-37.
536 Continued Storage GEIS at 5-2.
537 Id.
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GEIS nor NRC regulations require an analysis of a dry transfer system at this time; rather, because Holtec does not intend to build a dry transfer system during the initial license term, the analysis will not be required until Holtec pursues a dry transfer system as a separate action.538 Joint Petitioners Contention 4 is not admitted.
- 5. Joint Petitioners Contention 5 Joint Petitioners Contention 5 states:
Horizontal hydraulic fracturing (fracking) is certain to occur underneath the Holtec site. Holtec has acquired mineral rights to a depth of 5,000 feet to part of its site from Intrepid, a potash mining firm. However, within the boundaries of the Holtec site there are mineral leases held by at least half a dozen oil and gas drilling firms and Mosaic Potash, a mining firm. There is no indication in the Environmental Report of any control over present or potential potash mining or oil and gas drilling.
And the very area where the concrete bunkers containing [spent nuclear fuel]
casks will be located, fracking activity can be carried on below 5,000 feet. Typical oil and gas wells in the Permian Basin region in which Holtec is located are 8,000 or more feet deep. The mineral interests are inadequately disclosed, and the realistic prospects for mineral development immediately surrounding and underneath the Holtec site, and their implications for inducing or expediting geological problems and groundwater movement beneath the site, are inadequately disclosed in the ER.539 Joint Petitioners Contention 5 concerns potential mining and fracking at and underneath the site. Joint Petitioners first claim that fracking is certain to occur540 at the Holtec site, and further claim that the Environmental Report reveals that Holtec does not in fact control any of the mineral rights at the proposed storage facilitys boundary except those belonging to Intrepid Potash-New Mexico, LLC (Intrepid).541 They contend that there are 12 abandoned hydrocarbon wells, many on that part of the site where the concrete bunkers are to be built, and assert that, in light of the long history of underground potash mining at the site, the Environmental Report 538 Id.
539 Joint Petrs Pet. at 49.
540 Id.
541 Id. at 50.
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does not faithfully report the true story of land ownership and mineral rights interests at the site.542 Second, Joint Petitioners allege that the Environment Report fails to connect the considerable history of oil and gas brine disposal at the Holtec site which in turn causes a possible relationship to poor quality and corrosive groundwater, soil, and wind-blown dust.543 Joint Petitioners allege that these phenomena could thus corrode the steel or alloy canisters nosed into concrete bunkers down to about 23 feet of depth, for a century or more, as well as the concrete UMAX canister system itself.544 Third, Joint Petitioners assert that Holtec failed to comply with 10 C.F.R. § 72.103(f), alleging that Holtec did not investigate the geological and seismic implications of mining and fracking . . . inside the site boundaries.545 Finally, Joint Petitioners posit that the Environmental Report fails to satisfy 10 C.F.R. § 72.90 and 10 C.F.R. § 72.94, because it is missing analyses of site characteristics that may directly affect the safety or environmental impact of the ISFSI and past and present man-made facilities and activities that might endanger the proposed ISFSI.546 Regarding fracking and potash mining, Joint Petitioners proffered exhibit, an ELEA Mineral Conflict Analysis map from 2015, does not set forth a genuine dispute with the Holtec application on a material issue of fact. According to Holtecs Environmental Report, its proposed facility would be built on grid 13 of coordinate 020S, 032E, the western half of grid 18 and the south-western corner of grid 17.547 Comparing these coordinates to Joint Petitioners proffered 2015 Map, it is clear that (1) although COG Operating LLC appears to own mineral 542 Id. at 51-52.
543 Id. at 52.
544 Id.
545 Id. at 54.
546 Id. at 54-55.
547 ER at 3-5 to -6.
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rights at grid 13, the proposed facilitys footprint does not show any active or abandoned gas or oil zones inside the footprint of the facility; and (2) only Intrepids rights exist at the site pursuant to its New Mexico potash mining lease.548 Moreover, the Environmental Report states that Holtec controls the mineral rights at the site down to 5,000 feet pursuant to an agreement with Intrepid, and Intrepid will not mine at the site.549 Additionally any future oil drilling or fracking beneath the site would occur at greater than 5,000 feet depth, which would ensure that no subsidence would occur at the site.550 The discussion of land use and maps in Chapter 3 of Holtecs Environmental Report reports the status of mineral rights and land ownership at the proposed HI-STORE site.
Regarding possible brine, contaminated groundwater, soil, and wind-blown dust that could potentially degrade the HI-STORE vault and spent fuel storage canisters stored therein, we agree with the NRC Staff that this aspect of the contention concerns safety,551 yet Joint Petitioners do not cite to or even mention the SAR. Holtec did address issues regarding soil chemistry analysis and groundwater flow at the site both in its Environmental Report and SAR.552 Joint Petitioners do not proffer any explanation of how this alleged caustic brine, groundwater, or soil could enter into the HI-STORE UMAX system and corrode the canisters.
Nor do they proffer facts or expert opinion discussing how the alleged wind-blown caustic dust could get to the UMAX and degrade the UMAX concrete. Therefore, this aspect of the 548 2015 Map at 3-4.
549 ER at 3-2.
550 Id.
551 NRC Staff Consol. Answer at 43-44.
552 See ER at 3-15 (soil); id. at 3-39 to -41, 3-54 (Fig. 3.5.1), 3-56 (Fig. 3.5.3) (groundwater);
SAR at 2-3 to -9, 2-26 (soil); id. at 1-5, 1-14; 2-78 to -79, 2-81, 2-90, 2-96 to -99 (groundwater).
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contention is inadmissible for failing to raise a genuine dispute with Holtecs license application.553 Finally, as to the alleged lack of discussion of seismology inside the site boundary pursuant to section 73.103(f), the Environmental Report and the SAR do discuss geological and seismic issues as they relate to mining and fracking inside the site boundary.554 As discussed supra in connection with Sierra Club Contention 14, no faults of any kind were found at the proposed site (i.e., inside the site boundary555). Joint Petitioners other allegations are impermissibly vague.556 Joint Petitioners Contention 5 is not admitted.
- 6. Joint Petitioners Contention 6 Joint Petitioners Contention 6 states:
The Holtec [facility] is a major component of a large plan to aggregate [spent nuclear fuel] in southeastern New Mexico for purposes of reprocessing. A radioactively dirty industrial activity, reprocessing has been omitted from analysis and disclosure of cumulative environmental impacts.557 Joint Petitioners rely on a 2015 slide show given by a Holtec representative to the New Mexico State Legislature that stated that the proposed facility may provide flexibility for recycling, research, and disposal and also listed reprocessing [spent nuclear fuel] as an option under waste solutions.558 Joint Petitioners also cite a 2017 Los Angeles Times article that quoted a voting member of the Eddy-Lea Energy Alliance as saying, We believe if we have 553 10 C.F.R. § 2.309(f)(1)(v), (vi).
554 See ER at 3-17 to -18; SAR at 2-107 to -108.
555 See ER at 3-13 to -14.
556 See S. Nuclear Operating Co. (Vogtle Elec. Generating Plant, Units 3 & 4), LBP-16-5, 83 NRC 259, 281 (2016) (citing Palisades, LBP-06-10, 63 NRC 341, affd, CLI-06-17, 63 NRC 727 (2006)).
557 Joint Petrs Pet. at 55.
558 Id.
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an interim storage site, we will be the center for future nuclear fuel reprocessing.559 Joint Petitioners claim that NEPA requires a cumulative impacts analysis of reprocessing spent nuclear fuel at the proposed facility, because such an action falls within the realm of cumulative actions delineated in the [Council on Environmental Quality (CEQ)] regulations.560 Joint Petitioners fail to raise a genuine dispute with the application on an issue of material fact or law, because the application does not seek authorization for, or even mention, reprocessing at the proposed facility. Neither NEPA nor NRC regulations require an environmental analysis of potential actions that are merely contemplated and have not been proposed.561 We agree with the NRC Staff that the cited sources, at most, suggest a political appetite for such a project in the area, without creating any proposed plans for reprocessing spent fuel.562 Because reprocessing is not material to Holtecs license application, Joint Petitioners claims about the safety of reprocessing are not relevant. In addition, their claims are unsupported by any facts or expert opinion, and do not raise a genuine issue with the application for that reason as well.
Joint Petitioners Contention 6 is not admitted.
- 7. Joint Petitioners Contention 7 Joint Petitioners original Contention 7 states:
559 Id. at 55-56.
560 Id. at 59. The CEQ regulations do not bind the NRC as an agency, but the Commission has chosen to follow them in some instances. See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-11-11, 74 NRC 427, 443-44 (2011).
561 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1
& 2), CLI-02-14, 55 NRC 278, 295 (2002). See also Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976); Strata Energy, Inc. (Ross In Situ Recovery Uranium Project), CLI-16-13, 83 NRC 566, 577 (2016), petition for rev. denied sub nom., Nat. Res. Defense Council v. NRC, 879 F.3d 1202 (D.C. Cir. 2018).
562 NRC Staff Consol. Answer at 47.
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Holtecs HI-STORE philosophy of Start Clean/Stay Clean, whereby incoming shipments of canisters that are contaminated, leaking, or otherwise compromised will be returned to the originating power plant for dispositioning, is illegal under NRC regulations and the Atomic Energy Act. It is unlawful to knowingly ship containers with radiation on exposed or external surfaces. Once delivered to the site, leaky and/or contaminated canisters must remain at Holtecbut Holtec expressly intends to return such canisters to their points of origin. Leaking or otherwise compromised shipping containers would likewise present an immediate danger to the corridor communities through which they would travel back to their nuclear power plant site of origin, likely violating numerous additional NRC and DOT regulations[.]563 On February 18, 2019, Joint Petitioners moved to amend Contention 7, seeking to add the following paragraph:
Holtecs refusal to publicize emergency and contingency plans, as well as its insistence that there is zero potential accident or attack scenario that would result in a radiation release (and hence no need for dry transfer storage capability) reflects a lack of a national policy for handling and disposal of [spent nuclear fuel]
and Holtecs misperception as to the role of a CISF in national policy. The applicants non-credible positions on these matters takes them outside the coverage and shield of the Continued Storage GEIS and requires them to be scrutinized under NEPA and addressed in the Environmental Impact Statement.564 Joint Petitioners base the motion on (1) Holtecs RAI Response 9-3 and (2) Holtecs RAI Response LA-1, both dated January 16, 2019 and released in the NRCs Agencywide Documents Access and Management System (ADAMS) on January 17, 2019. Joint Petitioners specifically cite the portion of RAI Response 9-3 that references SAR 9.2.2, Operational Activities, addressing the NRC Staffs request for clarification about off-normal conditions in addition to the normal, off-normal and accident conditions while on-site prior to, or during receipt inspection.565 Joint Petitioners also cite RAI Response LA-1, which addressed the NRC Staffs questions regarding the absence of a time limit for a canister to be returned to the nuclear plant 563 Joint Petrs Pet. at 61.
564 Joint Petrs Amended Contentions 4 & 7, at 6.
565 RAI Response 9-3 at 4.
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of origin or other facility licensed to perform fuel loading procedures in the HI-STORE storage facilitys Technical Specifications.566 We first consider whether Joint Petitioners motion to amend Contention 7 meets the three-pronged standard for good cause under 10 C.F.R. § 2.309(c). It does not. RAI Response 9-3 did not reveal any materially new information.567 Joint Petitioners previously had the chance to challenge the statement in Holtecs SAR section 9.2.2 that identified no credible events . . .
that would result in a release of any radioactive materials into the work areas or the environment.568 And essentially they did just that in Contention 7, as originally filed. In the absence of new information, Joint Petitioners are not entitled to a second chance to support a claim that was identified in their original pleadings by proffering the statement of Dr. Gordon Thompson at this late date.
As to RAI Response LA-1, the Board also concludes that it presents no materially different new information under 10 C.F.R. § 2.309(c)(1). The NRC Staff merely sought details concerning the time limit during which a canister would be returned to the site of origin or licensed fuel loading site, and Holtec responded by amending its SAR at section 10.3.3.1 and section 5.5.5.b.3 to its proposed materials license.569 Although these sections now detail that the amount of time Holtec would have to return a leaky canister to its point of origin or fuel loading facility is based on the NRCs maximum annual dose rate limits, Joint Petitioners overarching start clean/stay clean challenge is the same as in their original petition.570 And 566 RAI Response LA-1 at 1.
567 See discussion of RAI Response 9-3 under Joint Petitioners Contention 4, supra.
568 SAR at 9-7.
569 See SAR at 10-12 to -14; Revised Appx. A to Materials License No. SNM-1051, Tech.
Specs. for the HI-STORE [CISF] at 5-6 (Nov. 30, 2018) (ADAMS Accession No. ML18345A138).
570 See Joint Petrs Pet. at 61.
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Holtecs procedure is in accord with Joint Petitioners originally-disputed portion of the SAR (Rev. 0A), section 3.1.4.6.571 This new information is therefore not materially different.
Joint Petitioners witness, Dr. Thompson, opines that the potential use of a sequestration canister with a gasketed lid, without an articulated plan for its use, suggests that Holtec is not serious about contingency planning.572 RAI Response LA-1 does not create a basis for the sequestration canister aspect of the proposed amended Contention 7, as that information was readily available before the deadline for petitions in this proceeding.573 Finally, even if we were to find that the information in RAI Response LA-1 is new and material, Joint Petitioners do not provide a sufficient nexus to the amended Contention 7. RAI Response LA-1 simply does not support Joint Petitioners new challenges concerning Holtecs alleged refusal to publicize emergency and contingency plans, the lack of a national policy for handling and disposal of [spent nuclear fuel], and Holtecs misperception as to the role of a CISF in national policy.574 We deny the motion to amend Contention 7, and therefore analyze Contention 7 as originally pled. Joint Petitioners assert that Holtecs policy of rejecting and returning canisters that have unacceptable external radioactive or structural damage[] . . . will create potential exposure routes that pose radioactive contamination threats to the public, nuclear workers, and the environment.575 Joint Petitioners also take issue with the lack of a dry transfer system at the 571 Id. at 62.
572 Joint Petrs Motion to Amend 4 & 7, at 8.
573 See SAR rev. 0C at 604 (May 31, 2018).
574 Joint Petrs Amended Contentions 4 & 7, at 6. Even if we accepted that this alleged new information supported these assertions, Holtecs Emergency Plans were available at the commencement of the proceeding, SAR at 6-45, 10-29, 15-10, 15-11, 15-16, and challenges to the national spent fuel management policy go well beyond the permissible scope of this proceeding. 10 C.F.R. § 2.309(f)(1)(iii).
575 Joint Petrs Pet. at 61-62.
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proposed storage facility, claiming that such a transfer system could potentially ameliorate their concerns regarding casks that arrive damaged to the facility.576 Joint Petitioners Contention 7 is inadmissible because it fails to cite facts or expert opinions that support Joint Petitioners position on the issue of the start clean/stay clean philosophy. Although Joint Petitioners claim that a canister could arrive to the facility damaged and emitting significant radioactive materials that could migrate off-site,577 they offer no facts or expert opinion supporting that position. Specifically, Joint Petitioners fail to submit facts or expert opinion that show (1) how the spent fuel, when packaged at the reactor site, would leave the site leaking or damaged notwithstanding NRC-approved quality assurance programs; (2) how the spent fuel canister, within its transport overpack cask, would become credibly damaged in an accident scenario that results in an exceedance of dose rates while in transit; and (3) how the sequestration sleeve, as outlined in Holtecs SAR at the time petitions were due in this proceeding, is an inadequate remedy should the cask and canister somehow become damaged.
Indeed, the Commission has already spoken to this issue in a similar proposed facility proceeding, Private Fuel Storage.578 In that proceeding, the State of Utah proffered a contention where a canister improperly constructed or improperly sealed, could be loaded and shipped to the spent fuel storage facility, which in turn could harm the environment.579 Similar to Holtecs proposed policy, storage facility operator Private Fuel Storages (PFS) policy was to ship back a leaking or defective canister to its point of origin, and Utah alleged that this practice was unsafe (as Joint Petitioners do here).580 576 Id. at 64.
577 Id. at 62.
578 Private Fuel Storage, CLI-04-22, 60 NRC at 136-37.
579 Id. at 136, 137.
580 Id. at 138.
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As the NRC had already generically determined that an accidental canister breach was not a credible scenario, the Commission held that Utah had failed to advance a credible, unconsidered accident scenario concerning a canister breach while in transport.581 And as for PFSs return to sender policy regarding damaged fuel canisters, which is the same as Holtecs, the Commission held that Utah had failed to contest the NRC-approved quality assurance programs in the packaging and transportation of spent nuclear fuel582those very programs that provide that a transportation accident or breach of canister is not credible. As Private Fuel Storage is analogous to this proceeding, we reject Contention 7 for the same reasons the Commission rejected Utahs contention.
Joint Petitioners Contention 7 is not admitted.
- 8. Joint Petitioners Contention 8 Joint Petitioners Contention 8 states:
In several places in the [Environmental Report], Holtec states that Table 4.9.1 provides data tending to show minimal radiation dangers from transporting the casks of spent nuclear fuel [(SNF)]. The data is not narratively reproduced in the ER. The missing table undermines Holtecs basis for claiming minimal effects from transporting SNF and GTCC waste.583 Because Joint Petitioners withdrew Contention 8,584 it is not admitted.
- 9. Joint Petitioners Contention 9 Joint Petitioners Contention 9 states:
There is only one map published in the Environmental Report that shows any of the routes which will be taken for delivery of [spent nuclear fuel (SNF)] and [greater than class C (GTCC)] waste to Holtec, and it only mentions transport of radioactive material from two reactors. The information provided comes nowhere near 581 Id. at 137.
582 Id. at 138.
583 Joint Petrs Pet. at 64.
584 Joint Petrs Reply at 50.
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disclosure of a 20-year transport campaign of an estimated 10,000 cask deliveries.585 Joint Petitioners ask for unconditional disclosure of probabl[e] transportation routes, whether by barge, highway or rail so that they can meaningfully participate in the NEPA process and public and emergency response officials [can] begin to understand the scope of the Holtec projects transportation side.586 They also claim that the transportation aspects of Holtec are of high significance to completion of the project and that NRC regulations require discussion of [a]dverse environmental effects which cannot be avoided, of alternatives, and of any irreversible and irretrievable commitments of resources which would be involved in the proposed action, as well as an investigation of environmental effects of the act of transporting the [spent nuclear fuel]-filled canisters.587 We agree with the NRC Staff588 and Holtec589 that Joint Petitioners fail to demonstrate how NEPA or NRC regulations require a specific assessment of possible transportation routes.
None of the legal authority cited by Joint Petitioners (10 C.F.R. §§ 51.45, 72.108, and NEPA) specifies that a certain number of transportation routes must be analyzed in an applicants Environmental Report, let alone every conceivable transportation route. Holtecs Environmental Report already evaluates three representative routes to determine likely radiological impacts of transportationone from San Onofre to the proposed facility, one from Maine Yankee to the proposed facility, and one from the proposed facility to Yucca Mountain.590 The use of 585 Joint Petrs Pet. at 66.
586 Id. at 67.
587 Id. at 67-68 (citing 10 C.F.R. §§ 51.45(b)(1)-(3),(5), 72.108).
588 See NRC Staff Consol. Answer at 51-53.
589 See Holtec Answer to Joint Petrs at 70-71.
590 ER at § 4.9.
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representative routes is in keeping with past NRC practice to evaluate transportation impacts.591 Joint Petitioners have failed to raise a genuine dispute with Holtecs application.
Regarding Joint Petitioners statement that public and emergency response officials need unconditional disclosure of probabl[e] transportation routes, we agree with Holtec592 that this concern is outside the scope of this proceeding. Spent nuclear fuel transportation route identification requires separate review and approval by the NRC and the Department of Transportation, as well as by applicable States or Tribes.593 For that separate review process, Holtec will also need to coordinate with local law enforcement and emergency responders.
Such coordination is not relevant at this point in the licensing process.
Joint Petitioners Contention 9 is not admitted.
- 10. Joint Petitioners Contention 10 Joint Petitioners Contention 10 states:
Holtec plans to provide long-term [spent nuclear fuel (SNF)] storage for up to 120 years, or for however much time beyond 120 years it may take to develop a deep geological repository elsewhere. Holtec itself has recommended to the U.S.
Department of Energy that a [CISF] should have a minimum service life of 300 years.594 Joint Petitioners claim that [e]xtended operation of the Holtec CISF beyond the 100-year benchmark is a cumulative action and must be analyzed as such under NEPA.595 591 See, e.g., Continued Storage GEIS at 5-49 to -54; Final Environmental Impact Statement for the Construction and Operation of an Independent Spent Fuel Storage Installation on the Reservation of the Skull Valley Band of Goshute Indians and the Related Transportation Facility in Tooele County, Utah, NUREG-1714 at 5-39 (Dec. 2001). See also 10 C.F.R. § 51.52, Tbl. S-4 (deriving generic effects of transportation and fuel waste for one power reactor based on survey of then-existing power plants).
592 Holtec Answer to Joint Petrs at 68.
593 See 10 C.F.R. Parts 71 and 73; 49 C.F.R. Parts 107, 171-80, 390-97.
594 Joint Petrs Pet. at 68 (internal quotations omitted).
595 Id. at 69.
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The proposed action in this proceeding is a 40-year initial license.596 Holtec may anticipate following the initial license with two 40-year license renewals, under 10 C.F.R. § 72.42, but that is not relevant to this proceeding, as those renewals would trigger new hearing opportunities. The Continued Storage Rule explicitly provides that an applicants Environmental Report is not required to discuss impacts following the proposed license term.597 Therefore, we agree with the NRC Staff598 and Holtec599 that Joint Petitioners impermissibly challenge the Continued Storage Rule and the impact evaluations contained in the Continued Storage GEIS.
Joint Petitioners have not requested a waiver, and this contention is therefore outside the scope of this proceeding under 10 C.F.R. § 2.309(f)(1)(iii).
Joint Petitioners Contention 10 is not admitted.
- 11. Joint Petitioners Contention 11 Joint Petitioners Contention 11 states:
NEPA Requires Significant Security Risk Analyses for the Massive Spent Nuclear Fuel and Greater-Than-Class-C Wastes Proposed for Interim Storage And Associated Transportation Component at Holtecs New Mexico Facility.600 Joint Petitioners claim that this Board should require in Holtecs Environmental Report an analysis of terrorist attacks as a not so remote and highly speculative environmental impact, consistent with the Ninth Circuits decision in San Luis Obispo Mothers for Peace v.
NRC.601 Joint Petitioners then direct the Board to a 69-page report by Dr. James D. Ballard 596 Notice of Opportunity to Request a Hearing, 83 Fed. Reg. at 32,919 (If the NRC approves the application and issues a license to Holtec, Holtec intends to store . . . commercial spent nuclear fuel . . . for a 40-year license term.).
597 10 C.F.R. § 51.23(b).
598 NRC Staff Consol. Answer at 54.
599 Holtec Answer to Joint Petrs at 72.
600 Joint Petrs Pet. at 70.
601 Joint Petrs Pet. at 77 (quoting San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1032 (9th Cir. 2006)).
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concerning human-initiated events, transportation, and storage of highly radioactive materials at the proposed UMAX interim storage facility.602 Based on the Ballard Report, Joint Petitioners put forward twenty-eight detailed sub-contentions603 ranging from recommending Holtec create a site specific and programmatic EIS process because of its vertical monopoly in the energy industry;604 to wanting the NRC and/or Holtec to define [Design Basis Events] and [Design Basis Threats] for the whole duration of the transportation campaign;605 to recommending the NRC define through regulations the specific penalties to be imposed upon Holtec for lack of vigilance in any aspect of the transportation and the management of the spent fuel;606 to suggesting the NRC incorporate consent-based siting, waste transport, and storage based on the Blue Ribbon Commission and National Academy of Sciences report recommendations.607 In San Luis Obispo Mothers for Peace, the United States Court of Appeals for the Ninth Circuit held that it was unreasonable for the NRC to categorically dismiss the possibility of terrorist attack on the Storage Installation . . . as too remote and highly speculative to warrant consideration under NEPA.608 And although Joint Petitioners acknowledge that New Mexico is not part of the Ninth Circuit,609 they claim that because hundreds of shipments will come through the Ninth Circuit en route to New Mexico . . . the Ninth Circuit law must be respected 602 James David Ballard, Holtec HI-STORM UMAX Interim Storage Facility (a.k.a. CISF):
Human Initiated Events (HIE), Transportation of the Inventory and Storage of Highly Radioactive Waste Materials (Sept. 2018) [hereinafter Ballard Report]. Dr. Ballard has a Ph.D. in sociology and is a professor of criminology and justice studies at California State University, Northridge.
603 Joint Petrs Pet at 79.
604 Id. at 79-80.
605 Id. at 80.
606 Id. at 84.
607 Id. at 85.
608 San Luis Obispo Mothers for Peace, 449 F.3d at 1030 (internal quotations omitted).
609 Joint Petrs Reply at 61.
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and abided by within the geographic territory of the Ninth Circuit, and thus Holtec must conduct a terrorism analysis in its Environmental Report under the Ninth Circuit standard in accordance with NEPA.610 The NRC takes the position (as confirmed by the United States Court of Appeals for the Third Circuit611) that for all licensing actions outside the Ninth Circuit, terrorist attacks are too far removed from the natural or expected consequences of agency action to require environmental analysis.612 Unless the proposed facility would be located in one of the nine states in the Ninth Circuit, no terrorist analysis under NEPA is required. Holtecs facility would be constructed in New Mexico (located in the Tenth Circuit). Holtecs Environmental Report need not conduct an analysis concerning terrorism under NEPA. This aspect of Contention 12 is therefore inadmissible as outside the scope of this proceeding.613 As to the remaining recommendations and observations in the Ballard Report, we agree with the NRC Staffs assessment614 that all of the twenty-eight proffered subcontentions fall short of the Commissions contention admissibility standards. Namely, they all fail to show a genuine dispute with the interim storage facility application, much less even address or acknowledge the application in the petition.615 An admissible contention must, at a minimum, reference the portion of the application to which the contention is challenging and show where 610 Tr. at 174.
611 N. J. Dept of Envtl. Prot. v. NRC, 561 F.3d 132 (3d Cir. 2009).
612 Continued Storage GEIS at 4-91.
613 10 C.F.R. § 2.309(f)(1)(iii).
614 See NRC Staff Consol. Answer at 57-59.
615 The NRC Staff notes, and we agree, that only in one place does the Ballard Report cite sections of the application. See Ballard Report at 54-55, n.11. The report does not grapple with the application as required by the Commissions contention admissibility standards.
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the applicant is lackinghere, none of the subcontentions does this.616 Board proceedings regarding an application for an NRC-issued license are not a proper forum for contentions that comprise broad policy recommendations and challenges to the Agencys rules.617 Joint Petitioners Contention 11 is not admitted.
- 12. Joint Petitioners Contention 12 Joint Petitioners Contention 12 states:
Because of the geologic formations and conditions beneath the Holtec site, there are risks inherent in siting and operating the [consolidated interim storage] facility as proposed by Holtec. The [Environmental Report] and SAR in this case do not adequately discuss and evaluate the risks created by those geologic conditions.618 Joint Petitioners cite two regulations, 10 C.F.R. § 51.45 (requirement for an environmental report) and 10 C.F.R. § 72.90 (site characteristics related to safety),619 but mainly rely on a thirty page report by a geologist, Dr. Steven Schafersman.620 Joint Petitioners allege that Dr. Schafersman has extensive experience and knowledge regarding Permian Basin geology.621 The Schafersman Report is divided into two parts: Part I, which presents three geologic reasons that demonstrate why it is inadvisable to temporarily or permanently store
[spent nuclear fuel/high level nuclear waste] at the proposed Holtec site; and Part II, which presents six major reasons that oppose the transport and storage of [spent nuclear fuel/high 616 Ariz. Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, & 3), CLI-91-12, 34 NRC 149, 156 (1991).
617 10 C.F.R. § 2.335.
618 Joint Petrs Pet. at 88.
619 Id.
620 See Steven Schafersman, Ph.D., Geological Report Documenting and Opposing Use of the Holtec Site in New Mexico to Store High Level Nuclear Wastes (2018) [hereinafter Schafersman Report].
621 Id.
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level nuclear waste] at the Holtec site.622 In his report, Dr. Schafersman generally describes the geology 623 and hydrology624 of the region, and puts forth his ideas concerning several scientific, economic, political, and anecdotal reasons that make it inadvisable to store high-level nuclear wastes at the proposed HI-STORE UMAX storage facility.625 Joint Petitioners Contention 12 is inadmissible because it does not comply with the Commissions strict-by-design contention admissibility standards.626 Merely referencing a report that does not identify specific portions of the license application does not comply with the Commissions specificity requirements.627 The Schafersman Report does not provide sufficient information to show that a genuine dispute exists with Holtecs license application;628 indeed, the Schafersman Report does not even mention the Holtec application (save for one reference to Figure 3.3.2 in the Environmental Report to establish that the top of the Salado Formation below the Holtec storage facility is 1400 feet below the facility) and does not challenge any aspect of the application.
The Commissions contention admissibility rules require petitioners seeking intervention to read the pertinent portions of the license application, including the [SAR] and the 622 Schafersman Report at unnumbered p. 1.
623 Id. at unnumbered pp. 1-16.
624 Id. at unnumbered pp. 16-20.
625 Id. at unnumbered pp. 20-30.
626 Millstone, CLI-01-24, 54 NRC at 358.
627 See NextEra Energy Seabrook LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 332 (2012); Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 348 (1998) (Mere reference to documents does not provide an adequate basis for a contention.).
628 10 C.F.R. § 2.309(f)(1)(vi).
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Environmental Report, [and] state the applicants position and the petitioners opposing view.629 The Schafersman Report does not meet this requirement.630 Joint Petitioners Contention 12 is not admitted.
- 13. Joint Petitioners Contention 13 Joint Petitioners Contention 13 states:
Pursuant to 10 C.F.R. [§] 2.309(f)(3), Petitioners move to adopt all contentions filed by the Sierra Club in this proceeding and to re-allege them as their own as if written herein.631 To adopt a contention, a participant must have demonstrated standing in their own right and have themselves proffered an admissible contention.632 As Joint Petitioners have done neither, they may not adopt any of Sierra Clubs contentions.
Joint Petitioners Contention 13 is not admitted.
- 14. Joint Petitioners Contention 14 Joint Petitioners Contention 14 states:
Section 186 of the Atomic Energy Act (AEA) (42 U.S.C. § 2236) provides that a license issued by the NRC may be revoked for any material false statement in the license application. Holtec has made a material false statement in its license application in this case by stating repeatedly that title to the waste to be stored at the [consolidated interim storage] facility would be held by DOE and/or the nuclear plant owners. This false statement was repeated in Holtecs Answers to Sierra Clubs Contention 1 and [Joint Petitioners] Contention 2.
629 Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989).
630 Further, several of Contention 12s claims are outside the scope of this proceeding. See, e.g., Schafersman Report at 4 (exploring the supposition that a large militia group can take over the facility, declare themselves an independent state and threaten to destroy the storage facility should authorities try to take back the facility); 21 (alleging the facility will be permitted for 120 years and the fuel will never be moved to a permanent repository); 22 (discussing our poorly-regulated American free enterprise system where corporations internalize gains and externalize losses at the expense of the environment).
631 Joint Petrs Pet. at 88.
632 See Indian Point, CLI-01-19, 54 NRC at 132-33.
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The statement that nuclear plant owners might retain title to the waste is shown to be false by a January 2, 2019, e-mail message from Holtec to the public titled Reprising 2018[.] Reprising 2018 states, While we endeavor to create a national monitored retrievable storage location for aggregating used nuclear fuel at reactor sites across the U.S. into one (HI-STORE CISF) to maximize safety and security, its deployment will ultimately depend on the DOE and the U.S.
Congress.
Thus, if a false statement such as Holtec has made in its filings in this case is grounds for revoking a license, it is grounds for not issuing the license in the first instance.633 Joint Petitioners Contention 14 is substantially identical to Sierra Club Contention 26. It is based on the same January 2, 2019 Holtec e-mail message to the public (Reprising 2018),
and was submitted on the same day (January 17, 2019).
As discussed supra, the Board granted the motion to file Sierra Club Contention 26, but rejected the Contention as inadmissible. For the same reasons, we grant the motion to file Joint Petitioners Contention 14 and likewise rule it inadmissible.
Joint Petitioners Contention 14 is not admitted.
D. Fasken Rather than submit a contention in response to the proceedings Federal Register notice, Fasken instead filed a motion with the Commission to dismiss this proceeding as well as the Interim Storage Partners LLC proceeding, which involves a proposed interim storage facility that would be constructed in Texas.634 The Secretary of the Commission denied the motion and referred it for review under the NRCs contention admissibility standards.635 Faskens contention states:
The NRC lacks jurisdiction over the [application] because [it is] premised on the proposition that the U.S. Department of Energy (DOE) will be responsible for 633 Joint Petrs Motion to File New Contention, attach., [Joint Petitioners] Contention 14, at unnumbered p. 1.
634 Fasken Motion to Dismiss at 1-8.
635 Order Denying Motions to Dismiss.
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the spent fuel that would be transported to and stored at the proposed [facility].
This premise is prohibited under the NWPA because the DOE is precluded from taking title to spent fuel until a permanent repository is available.636 The NRCs acceptance and processing of the application[] conflicts with the essential predicate that a permanent repository be available before licensure of a
[consolidated interim storage facility]. Further, processing the subject applications implies that the NRC disregards the NWPAs unambiguous requirement that spent fuel remain owned by and is the responsibility of reactor licensees until a permanent repository is available. The logic that underpins the plain language of the NWPAs requirement for a functioning permanent repository is effectively vitiated by processing the[] application[]. [Fasken]
contend[s] the [consolidated interim storage facility] applicant[] should be required to show cause why [its] application[] do[es] not constitute a violation of the NWPA since no permanent repository for spent nuclear fuel exists in the United States. Processing the[] application[] to licensure under the present circumstances invites the situation Congress was attempting to avoid because licensure of a CISF without an available permanent repository contradicts the NWPAs objective to establish a permanent repository. The prospect that any CISF will become a de facto permanent repository is precisely what the NWPA intends to avoid.637 Faskens contention is similar to Beyond Nuclears contention. However, its basis solely relies upon Beyond Nuclears petition and incorporates by reference the arguments and authorities in the Beyond Nuclear Inc. motion to dismiss at sections IV, V and VI.638 The Commission has approved the incorporation of contentions of other petitioners by reference, but only for those who have demonstrated standing and have submitted their own admissible contention themselves.639 However, the Commission cautioned:
Nor will we permit wholesale incorporation by reference by a petitioner who, in a written submission, merely establishes standing and attempts, without more, to incorporate the issues of other petitioners. Further, we would not accept incorporation by reference of another petitioners issues in an instance where the petitioner has not independently established compliance with our requirements for admission as a party in its own pleadings by submitting at least one admissible issue of its own.640 636 Fasken Motion to Dismiss at 1-2 (citing 42 U.S.C. §§ 10222(a)(5)(A), 10143).
637 Id. at 2 (citing Decl. of Tommy Taylor ¶ 8).
638 Id. at 7.
639 Indian Point, CLI-01-19, 54 NRC at 132.
640 Id. at 133.
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Although Fasken demonstrated standing in this proceeding, it did not proffer a contention of its own it only incorporated Beyond Nuclears arguments and authorities by reference. Fasken would be permitted to do this if it had proffered its own admissible contention, but it did not.
Faskens contention is therefore not admitted.
E. AFES
- 1. AFES Contention 1 AFES Contention 1 states:
As a matter of law, the applicant has not performed a sufficient investigation and has not done a sufficient analysis to support that the Holtec site will not have a disparate impact on the minority and low income population of Lea and Eddy County.641 AFES objects to Holtecs site selection process, because it alleges that the siting process entirely fails to account for alternative sites for Holtecs proposed fuel storage facility.642 AFES cites a licensing board decision, Louisiana Energy Services, L.P. (Claiborne Enrichment Center),643 alleging that Claiborne is akin to binding precedent upon this Board because that licensing board addressed in detail what a licensing applicant must do to ensure that the site selection process to possess and use nuclear material is free from impermissible discrimination as to minority and low income populations.644 AFES further alleges that Holtec violates NEPA, Claiborne, and Executive Order 12898 (which incorporates the topic of 641 AFES Pet. at 11.
642 Id. at 17 (emphasis in original).
643 Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP-97-8, 45 NRC 77 (1997), affd in part, revd in part, CLI-98-3, 47 NRC 77 (1998).
644 AFES Pet. at 11.
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environmental justice into all executive agencies NEPA reviews)645 because it did not conduct a site selection process other than a cursory review of a report on a different site selection process646 and allegedly only relied on the unsupported opinions of the Eddy-Lea Energy Alliance (ELEA).647 Environmental justice is a federal policy established in 1994 by Executive Order 12898 directing federal agencies to identify and address disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.648 The Commissions Claiborne decision clarified that NEPA requires the NRC to consider social and economic impacts ancillary to environmental impacts; that is, environmental justice concerns.649 In response to Claiborne and Executive Order 12898, the NRC promulgated its policy statement concerning environmental justice matters involving NRC licensing and regulatory actions.650 The policy statement directs the Staff to conduct a more thorough analysis if the percentage in the impacted area significantly exceeds that of the State or County percentage for either the minority or low-income population.651 Although not binding regulations, NRC guidance documents specify that the applicants Environmental Report should include a 645 See Federal Actions to Address Environmental Justice in Minority Populations and Low-income Populations, Exec. Order 12898, 59 Fed. Reg. 7629 (Feb. 11, 1994) [hereinafter Exec.
Order 12898].
646 AFES Pet. at 18.
647 Id. at 19.
648 See Exec. Order 12898, 59 Fed. Reg. at 7629.
649 Claiborne, CLI-98-3, 47 NRC at 101.
650 See Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions, 69 Fed. Reg. 52,040, 52,040-41, 52,048 (Aug. 24, 2004) [hereinafter NRC Environmental Justice Policy Statement]. Because the NRC is an independent agency, Executive Order 12898 did not automatically apply to the NRC.
651 Id. at 52,048.
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discussion of the methods used to identify and quantify impacts on low-income and minority populations, the location and significance of any environmental impacts during construction on populations that are particularly sensitive, and any additional information pertaining to mitigation.652 The NRC Staff considers differences [of block groups compared to the state and county percentages of minority populations] greater than 20 percentage points to be significant enough for an Environmental Report to warrant greater detail.653 We conclude that AFES Contention 1 is not admissible because AFES has not shown any legal requirement for Holtec to conduct a more in-depth inquiry into alternatives to the proposed action (i.e., the siting of the facility) or environmental justice analyses in its Environmental Report. Moreover, AFES has not cited any legal basis mandating Holtec to further analyze environmental justice impacts. Environmental Report section 3.8 describes the social and economic characteristics for the 50-mile region of influence (ROI) around Holtecs proposed facility.654 Environmental Report section 3.8.5, titled Environmental Justice, cites to and responds to Executive Order 12898 and the NRC Environmental Justice Policy Statement regarding the proposed storage facilitys ROI. The Environmental Reports table 3.8.13 identifies percentages of minority and low income communities within the Holtec facilitys ROI.
Because Holtec did not find differences greater than 20 percent, as recommended by the NRC Environmental Justice Policy Statement,655 Holtec did not consider environmental justice in greater detail than it already had. As AFES cites no other legal requirement for Holtec to 652 Final Report, Environmental Review Guidance for Licensing Actions Associated with NMSS Programs, NUREG-1748 at 6-25 (Aug. 2003) [hereinafter NUREG-1748].
653 Id. at C-5.
654 See ER at 3-95.
655 Id. at 4-29.
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consider environmental justice impacts in greater detail, the contention fails to show a genuine dispute with the application regarding a material issue of law or fact.
Insofar as the contention concerns Holtecs site selection process, where AFES alleges the Environmental Report fails to account for alternative sites,656 (i.e., a contention of omission) the contention fails as well. The Environmental Report contains an analysis of location alternatives that explains the methodology of Holtecs selection of the proposed site,657 and also shows six other potential sites that were analyzed and considered for suitability of the Holtec HI-STORE consolidated interim storage facilitys characteristics.658 AFES Contention 1 is not admitted.
- 2. AFES Contention 2 AFES Contention 2 states:
As a matter of fact and expert opinion, the siting process will have a disparate impact on the minority and low income population of Lee and Eddy County.659 To support its assertion, AFES submits an affidavit from Professor Myrriah Gómez, Ph.D., that is entitled Environmental Racism an Active Factor in the Siting and White Privilege Associated with the Holtec International HI-STORE Consolidated Interim Storage Facility Project.660 Dr. Gómez claims that the proposal is an example of environmental racism based on studies defining and documenting environmental racism across . . . the United States, and alleges that the proposed Holtec facility meets African-American civil rights leader Benjamin 656 AFES Pet. at 17.
657 See ER at §§ 2.3, 2.4.2.
658 Id. at 2-27 (Fig. 2.3.1).
659 AFES Pet. at 22.
660 Id., Ex. 7. Dr. Gómez holds a Ph.D. in English with a concentration in Latina/o literature and works as an assistant professor for the Honors College at the University of New Mexico.
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Chaviss definition of environmental racism.661 AFES argues that Holtecs reliance on an invitation for siting by a small group of government officials is a deficient process from the outset.662 AFES Contention 2 is inadmissible because it does not show a genuine dispute with the application on a material issue of law or fact. As discussed supra, the environmental justice analysis in an applicants Environmental Report is guided by the NRCs Environmental Justice Policy Statement and NUREG-1748, which were issued in response to Executive Order 12898.
Holtec addressed environmental justice matters to the depth recommended by NRC guidance,663 and neither AFESs petition nor Dr. Gómezs affidavit challenge the information in Holtecs Environmental Report. Rather, AFES Contention 2 challenges the NRCs environmental justice policy and implementing guidance documents themselves.664 AFES Contention 2 is not admitted.
- 3. AFES Contention 3 AFES Contention 3 states:
There is no factual support for Holtecs primary site selection criterion, which is community support.665 Acknowledging that community support is not a material issue to the findings that the NRC must make to license the proposed facility, AFES points the Board to Environmental Report section 2.4.2 to clarify that Holtec has made community support a material issue 661 Id., Ex. 7, at 2-3.
662 AFES Reply at 22.
663 See ER at 3-113 (Tbl. 3.8.13).
664 Because both AFES Contentions 1 and 2 are inadmissible, we need not address Holtecs motion to strike concerning these contentions. See [Holtecs] Motion to Strike Portions of Replies of [AFES], [Joint Petitioners], [NAC], and Sierra Club (Oct. 26, 2018) at 4-5.
665 AFES Pet. at 23.
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regarding the proposed site selection criterion for two reasons.666 First, AFES claims that, because Holtec has taken ELEAs support for the proposed facility as local community support, Holtec has misrepresented the community support (or the lack thereof) in its application.667 AFES alleges that this makes the issue of public support material to Holtecs application, in addition to the alleged violations by ELEA of New Mexicos Open Meetings Act.668 Second, AFES contends that Holtec cannot even demonstrate that the land under the site is controlled by Holtec,669 which AFES alleges is the lynchpin of Holtecs entire application.670 AFES Contention 3 is inadmissible because the issue of public support for the proposed facility is not material to the findings the NRC must make in this licensing proceeding. Assertion of community support or opposition in a license application does not lend any weight to the environmental justice analysis to be conducted by the applicant.671 And, as discussed supra, an Environmental Reports environmental justice analysis may follow NUREG-1748, Appendix C, which Holtec chose to do. Because AFES points to no other source of law that places weight on community support with regard to the selection of a project site, the contention fails.
Although not expressly set forth in AFES Contention 3, AFES also raises, in its supporting bases, a claim that the ELEA acquired the proposed site (which it intends to sell to Holtec) in violation of the New Mexico Open Meetings Act.672 These claims under New Mexico law against an entity that is not seeking a license from the NRC are plainly outside the scope of this proceeding.
666 Id.
667 Id. at 23-24.
668 Id. at 24.
669 Id. (citing ER, rev. 0 § 2.2.1).
670 Id.
671 See Exec. Order 12898; NRC Environmental Justice Policy Statement; NUREG-1748.
672 N.M. Stat. Ann. § 10-15-1 (1978).
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AFES contention 3 is not admitted.
F. NAC
The Holtec CISF license application inadequately substantiates its design basis analyses concerning normal, off-normal, and accident events, which are required to demonstrate compliance with 10 C.F.R. Part 72, including Subparts E, F and G (and related acceptance criteria in NUREG 1567), as it lacks required design and safety information on the NAC canisters to be housed in the CISF UMAX casks.673 Because NAC has not licensed or otherwise provided its proprietary design information to Holtec,674 it alleges that Holtec cannot comply with NRC safety-related requirements, as Holtec lacks required design and safety information on any NAC canisters that would be stored in the proposed facility. In support, NAC submits the affidavit of George C. Carver, its Vice President of Engineering & Licensing.675 As explained supra in connection with the Boards discussion of standing, however, Holtec is not presently seeking NRC approval to store any NAC canisters. NAC Contention 1 is therefore outside the scope of this licensing proceeding.
If and when Holtec seeks NRC permission to store NAC canisters, the necessary license amendment or amendments will provide NAC with an opportunity to participate, as Holtec acknowledges.676 NACs argument that future license amendment proceedings (if any) might be affected in some way by the present proceeding is not persuasive.677 To speculate 673 NAC Pet. at 10.
674 Id. at 4.
675 Id., attach., Aff. of George C. Carver (Sept. 14, 2018).
676 Holtec Answer to NAC at 11.
677 See NAC Reply at 6-8.
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about the possibility of such an impact does not bring NACs claims in Contention 1 within the scope of the present proceeding.678 NAC Contention 1 is not admitted.
The Holtec CISF application omits technical information required under NRC regulations, including but not limited to 10 C.F.R. § 72.24, about the design and safety performance of NAC canisters within its UMAX casks.679 Similar to its claims in Contention 1, NAC alleges in Contention 2 that, because Holtec does not have access to NACs proprietary information, Holtecs license application omits required technical information about the design and safety performance of NAC canisters.
NAC Contention 2 is not admissible for the same reason NAC Contention 1 is not admissible. Holtec is not presently seeking NRC approval to store any NAC canisters, so NAC Contention 2 is outside the scope of this proceeding.
NAC Contention 2 is not admitted.
The Holtec CISF license application incorrectly omits a design alternatives analysis on the speculative grounds that the UMAX cask system is the only such system that is capable of including as contents all non-Holtec canister types.680 678 The Board has also considered and rejected NACs argumentfirst expressed in its petition and amplified in its replythat Holtec is somehow seeking a universal license notwithstanding the more limited scope of its actual application. As set forth infra, the Board has denied as moot Holtecs motion to strike portions of NACs reply that make this argument because we determine NACs contentions are not admissible regardless of whether we consider its reply. See Holtec Motion to Strike at 9-10.
679 NAC Pet. at 10.
680 NAC Pet. at 14.
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NAC alleges that, in its Environmental Report, Holtec incorrectly chose not to examine in detail the alternative cask designs of various competitors, including NAC. Specifically, Holtec identified but eliminated from detailed analysis design alternatives to use the AREVA, NAC, and EnergySolutions systems.681 Although the NRC Staff would have us deny NACs hearing request for failure to demonstrate standing, the Staff would otherwise not oppose the admissibility of NAC Contention 3 to the extent that the [Environmental Reports] basis for eliminating these design alternatives from detailed analysis is unclear.682 The Board does not agree. As Holtecs counsel stated during oral argument, the purpose of this project is to deploy Holtec technology.683 As a practical matter, it seems most unlikely that Holtec would elect in any circumstances to go forward with the project to deploy its competitors storage technology.
Regardless, an applicants Environmental Report is not required to include the type of alternatives analysis that NAC claims must be included. NAC does not allege any of the systems (including its own) that it claims Holtec should have analyzed in detail would have any lesser environmental impacts than Holtecs own HI-STORM UMAX system. Nor is any such difference apparent, as all of these competing systems are similarcomprised of canisters contained within casks.
To be sure, NEPA requires federal agencies (and hence the NRC requires applicants Environmental Reports684) to take a hard look at the environmental impacts of a proposed action 681 Id. (quoting ER, rev. 1 § 2.4.1).
682 NRC Staff Consol. Answer at 65.
683 Tr. at 267.
684 See 10 C.F.R. §§ 51.45, 51.61.
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and of environmentally-significant alternatives. An applicants discussion of alternatives in its Environmental Report must be sufficiently complete to aid the NRC in complying with NEPA.685 But NEPA does not require a detailed analysis of alternatives that are of no environmental significance. As stated in the Council on Environmental Qualitys implementing regulations, NEPA calls for consideration of reasonable alternatives to proposed actions that will avoid or minimize adverse effects of these actions upon the quality of the human environment686 or that involve unresolved conflicts concerning alternative users of available resources.687 NAC has not alleged that any such environmental impacts or unresolved conflicts would be associated with Holtecs use of its competitors storage systems rather than its own.
As the Commission has reminded us, an environmental analysis is not intended to be a research document.688 If there are alleged omissions in the analysis, in an NRC adjudication it is [the] Intervenors burden to show their significance and materiality.689 NAC has not done so.
NAC Contention 3 is not admitted.
V. INTERESTED GOVERNMENT PETITIONERS Government entities (1) City of Carlsbad, New Mexico; (2) The Eddy-Lea Energy Alliance; (3) Lea County, New Mexico; (4) City of Hobbs, New Mexico; and (5) Eddy County, New Mexico timely filed requests to participate as an interested governmental body.690 The 685 Id. § 51.45(b)(3).
686 40 C.F.R. § 1500.2(e).
687 Id. §§ 1501.2(c); 1502.1.
688 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC 202, 208 (2010) (citation omitted).
689 Exelon Generating Co. (Early Site Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801, 811 (2005).
690 See ELEA Pet.; Lea Cty. Pet.; Carlsbad Pet.; Hobbs Pet.; Eddy Cty. Pet.
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NRC Staff stated that it does not object to the participation of any of these governmental bodies
. . . if a hearing is granted.691 Neither Holtec nor any other petitioner has raised an objection.
Pursuant to 10 C.F.R. § 2.315(c), a local governmental body that is not admitted as a party under section 2.309 shall, upon request, be permitted a reasonable opportunity to participate in a hearing as an interested non-party. Section 2.315(c) does not require a demonstration of standing, but does require identification of those contentions on which the non-party intends to participate.692 As the Board denies all the petitioners requests for a hearing, the motions of the City of Carlsbad, New Mexico; Eddy-Lea Energy Alliance; Lea County, New Mexico; City of Hobbs, New Mexico; and Eddy County, New Mexico are accordingly denied as moot.
VI. RULING ON PETITIONS Although Beyond Nuclear, Sierra Club, and Fasken have demonstrated standing in accordance with 10 C.F.R. § 2.309(d), no petitioner has proffered an admissible contention meeting the requirements of 10 C.F.R. § 2.309(f)(1). Therefore, in accordance with 10 C.F.R. § 2.309(a), the Board denies the requests for hearing and petitions for leave to intervene submitted by Beyond Nuclear, Sierra Club, Joint Petitioners, Fasken, AFES, and NAC.
VII. ORDER For the foregoing reasons:
A. Beyond Nuclears petition is denied. Beyond Nuclears contention is not admitted.
B. Sierra Clubs petition is denied. Sierra Clubs contentions are not admitted.
C. Joint Petitioners petition is denied. Joint Petitioners contentions are not admitted.
D. Faskens petition is denied. Faskens contention is not admitted.
E. AFESs petition is denied. AFESs contentions are not admitted.
691 NRC Staff Consol. Answer at 3-4, n.11.
692 10 C.F.R. § 2.315(c).
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F. NACs petition is denied. NACs contentions are not admitted.
G. The petitions of City of Carlsbad, Eddy-Lea Energy Alliance, Lea County, City of Hobbs, and Eddy County to participate as local interested government bodies are denied as moot.
H. Holtecs October 26, 2018 motion to strike is denied as moot.693 I. Holtecs November 8, 2018 Motion for Leave to Reply to Alliance Response is denied as moot.694 J. Faskens December 10, 2018 motion to file a supplemental declaration is granted.695 K. Joint Petitioners and Sierra Clubs January 11, 2019 motions to adopt each others contentions are denied as moot.696 L. Sierra Clubs and Joint Petitioners joint motion for a subpart G hearing is denied as moot.697 M. Sierra Clubs January 17, 2019 motion to late-file new Contention 26 is granted.698 N. Joint Petitioners January 17, 2019 motion to late-file new Contention 14 is granted.699 O. Sierra Clubs February 6, 2019 motion to amend its Contention 1 is granted.700 P. Beyond Nuclear and Faskens February 6, 2019 motion to amend Beyond Nuclears contention is granted.701 Q. Joint Petitioners February 6, 2019 motion to amend their Contention 2 is granted.702 693 Holtec Motion to Strike.
694 [Holtecs] Motion for Leave to Reply to [AFES] Response to [Holtecs] Motion to Strike (Nov.
8, 2018).
695 Motion for Permission to File Supplemental Standing Declaration of Tommy E. Taylor (Dec.
10, 2018).
696 Sierra Clubs Motion to Adopt the Contentions of [Joint Petitioners] (Jan. 11, 2019); Motion of
[Joint Petitioners] to Adopt and Litigate Sierra Club Contentions (Jan. 11, 2019).
697 Joint Motion to Establish Hearing Procedures by Sierra Club, [Joint Petitioners] (Jan. 3, 2019).
698 Sierra Clubs Motion to File a New Late-Filed Contention (Jan. 17, 2019).
699 Motion by [Joint Petitioners] for Leave to File a New Contention (Jan. 17, 2019).
700 Sierra Clubs Motion to Amend Contention 1 (Feb. 6, 2019).
701 Motion by Petitioners Beyond Nuclear and Fasken to Amend Their Contentions Regarding Federal Ownership of Spent Fuel to Address Holtec Internationals Revised License Application (Feb. 6, 2019).
702 Motion by [Joint Petitioners] to Amend Their Contention 2 Regarding Federal Ownership of Spent Fuel in the Holtec International Revised License Application (Feb. 6, 2019).
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R. Sierra Clubs February 18, 2019 motion to amend its Contention 16 is denied.703 S. Joint Petitioners February 18, 2019 motion to amend their Contentions 4 and 7 is denied.704 T. Joint Petitioners February 25, 2019 motion to amend their Contention 2 is denied.705 U. Sierra Clubs February 25, 2019 motion to file new late-filed Contentions 27, 28, and 29 is denied.706 V. This proceeding is terminated.
Any appeal of this decision to the Commission shall be filed in conformity with 10 C.F.R.
§ 2.311.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Paul S. Ryerson, Chairman ADMINISTRATIVE JUDGE
/RA/
Nicholas G. Trikouros ADMINISTRATIVE JUDGE
/RA/
Dr. Gary S. Arnold ADMINISTRATIVE JUDGE Rockville, Maryland May 7, 2019 703 Sierra Clubs Motion to Amend Contention 16 (Feb. 18, 2019).
704 Motion of [Joint Petitioners] to Amend Their Contentions 4 and 7 Regarding Holtecs Decision to Have No Dry Transfer System Capability and Holtecs Policy of Returning Leaking, Externally Contaminated or Defective Casks and/or Canisters to Originating Reactor Sites (Feb.
18, 2019).
705 Motion of [Joint Petitioners] to Amend Their Contention 2 Regarding Holtecs Proposed Means of Financing the Proposed Consolidated Interim Storage Facility (Feb. 25, 2019).
706 Sierra Club Additional Contentions.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 147 of 292 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
)
HOLTEC INTERNATIONAL ) Docket No. 72-1051-ISFSI
)
)
(HI-STORE Consolidated Interim Storage )
Facility) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Ruling on Petitions for Intervention and Requests for Hearing) (LBP-19-4) have been served upon the following persons by Electronic Information Exchange (EIE).
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16B33 Mail Stop: O-16B33 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop - O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 Paul S. Ryerson, Chair Sheldon Clark, Esq.
Administrative Judge Joseph I. Gillespie, Esq.
Esther Houseman, Esq.
Nicholas G. Trikouros Sara B. Kirkwood, Esq.
Administrative Judge Mauri Lemoncelli, Esq.
Patrick Moulding, Esq.
Dr. Gary S. Arnold Carrie Safford, Esq.
Administrative Judge Alana M. Wase, Esq.
Krupskaya T. Castellon, Paralegal Joseph McManus, Law Clerk Brian Newell, Paralegal Taylor A. Mayhall, Law Clerk E-mail: sheldon.clark@nrc.gov Molly Mattison, Law Clerk joe.gillespie@nrc.gov esther.houseman@nrc.gov E-mail: paul.ryerson@nrc.gov sara.kirkwood@nrc.gov nicholas.trikouros@nrc.gov mauri.lemoncelli@nrc.gov gary.arnold@nrc.gov patrick.moulding@nrc.gov joseph.mcmanus@nrc.gov carrie.safford@nrc.gov taylor.mayhall@nrc.gov alana.wase@nrc.gov molly.mattison@nrc.gov krupskaya.castellon@nrc.gov brian.newell@nrc.gov
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 148 of 292 Docket No. 72-1051-ISFSI MEMORANDUM AND ORDER (Ruling on Petitions for Intervention and Requests for Hearing) (LBP-19-4)
Counsel for Holtec International Dont Waste Michigan Pillsbury Winthrop Shaw Pittman LLP 316 N. Michigan Street, Suite 520 1200 Seventeenth Street, NW Toledo, OH 43604-5627 Washington, DC 20036 Terry J. Lodge, Esq.
E-mail: tjlodge50@yahoo.com Meghan Hammond, Esq.
Anne Leidich, Esq. Counsel for Sierra Club Michael Lepre, Esq. 4403 1st Avenue SE, Suite 402 Jay Silberg, Esq. Cedar Rapids, IA 52402 Timothy J. Walsh, Esq.
E-mail: meghan.hammond@pillsburylaw.com Wallace L. Taylor, Esq.
anne.leidich@pillsburylaw.com E-mail: wtaylor784@aol.com michael.lepre@pillsburylaw.com jay.silberg@pillsburylaw.com Counsel for NAC International Inc.
timothy.walsh@pillsburylaw.com Robert Helfrich, Esq.
NAC International Inc.
Harmon, Curran, Spielberg & Eisenberg LLP 3930 E Jones Bridge Rd., Ste. 200 1725 DeSales Street NW Norcross, GA 30092 Suite 500 E-mail: rhelfrich@nacintl.com Washington, DC 20036 Diane Curran, Esq. Hogan Lovells LLP E-mail: dcurran@harmoncurran.com 555 13th Street NW Washington, DC 20004 Sachin S. Desai, Esq.
Robert V. Eye Law Office, LLC Allison E. Hellreich, Esq.
4840 Bob Billings Parkway E-mail: sachin.desai@hoganlovells.com Lawrence, KS 66049 allison.hellreich@hoganlovells.com Robert V. Eye, Esq.
Timothy J. Laughlin, Esq.
E-mail: bob@kauffmaneye.com Law Office of Nancy L. Simmons tijay1300@gmail.com 120 Girard Boulevard SE Albuquerque, NM 87106 Turner Environmental Law Clinic 1301 Clifton Road Nancy L. Simmons, Esq.
Atlanta, GA 30322 E-mail: nlsstaff@swcp.com Mindy Goldstein, Esq.
E-mail: magolds@emory.edu Eddy-Lea Energy Alliance 102 S. Canyon Carlsbad, NM 88220 John A. Heaton E-mail: jaheaton1@gmail.com 2
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 149 of 292 Docket No. 72-1051-ISFSI MEMORANDUM AND ORDER (Ruling on Petitions for Intervention and Requests for Hearing) (LBP-19-4)
Eddy County, NM* City of Hobbs, NM 101 W. Greene Street 2605 Lovington Highway Carlsbad, NM Hobbs, NM 88242 Rick Rudometkin Garry A. Buie E-mail: rrudometkin@co.eddy.nm.us E-mail: gabuie52@hotmail.com
- Eddy County not served due to no representative for the County assigned at the time of Mr. Rudometkins departure. City of Carlsbad, NM 1024 N. Edward Carlsbad, NM 88220 Lea County, NM 100 N. Main Jason G. Shirley Lovington, NM 88260 E-mail: jgshirley@cityofcarlsbadnm.com Jonathan B. Sena E-mail: jsena@leacounty.net
[Original signed by Herald M. Speiser ]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 7th day of May, 2019 3
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USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 210 of 292 LBP-20-06 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Paul S. Ryerson, Chairman Nicholas G. Trikouros Dr. Gary S. Arnold In the Matter of Docket No. 72-1051-ISFSI HOLTEC INTERNATIONAL ASLBP No. 18-958-01-ISFSI-BD01 (HI-STORE Consolidated Interim Storage June 18, 2020 Facility)
MEMORANDUM AND ORDER (Ruling on Remanded Contentions and Denying Motion to Reopen)
This proceeding concerns requests for a hearing on a license application by Holtec International (Holtec) to construct and operate a consolidated interim storage facility for spent nuclear fuel in Lea County, New Mexico. The factual background and prior proceedings before this Licensing Board are set forth in our Memorandum and Order of May 7, 2019, in which the Board denied all hearing requests. 10F On April 23, 2020, in response to petitioners appeals, the Commission substantially affirmed the Boards rulings in LBP-19-04, but reversed in part and remanded for further consideration four contentions (Sierra Club Contentions 15, 16, 17, and 19). 2 Also, the 1F Commission remanded, for the Boards ruling on admissibility, two contentions that were proffered several months after we had initially terminated this proceeding at the Licensing Board 1
LBP-19-04, 89 NRC 353, 358 (2019).
2 CLI-20-04, 91 NRC __, __, __-__ (slip op. at 1, 23-29) (Apr. 23, 2020).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 211 of 292 level (Sierra Club Contention 30 and Fasken Land and Minerals Ltd. and Permian Basin Land and Royalty Owners (Fasken) Contention 2). 3 2F On May 4, 2020, Sierra Club moved to reopen the record to allow consideration of its Contention 30. 4 Sierra Club asserts that, in CLI-20-04, the Commission implicitly rejected 3F arguments that it should have moved to reopen the record when it initially proffered Sierra Club Contention 30 in October 2019. 5 4F On May 11, 2020, Fasken moved to reopen the record to allow consideration of an amended version of Fasken Contention 2 that is based on the NRC Staffs March 2020 Draft Environmental Impact Statement. 6 5F In this Order, on further consideration, the Board determines that Sierra Club Contentions 15, 16, 17, and 19 are not admissible. We deny Sierra Clubs motion to reopen the record, and we also deny Sierra Clubs motion to late-file Sierra Club Contention 30 for separate and independent reasons. We deny Faskens motion for leave to file Fasken Contention 2 as originally submitted.
The Board will address Faskens motion to amend Fasken Contention 2, and the associated motion to reopen the record, in a subsequent Order.
I. SIERRA CLUB CONTENTIONS 15, 16, 17, AND 19 In CLI-20-04, the Commission determined that Sierra Club Contentions 15, 16, 17, and 19 all appear to raise claims about the hydrogeologic characterization of the site for Holtecs proposed facility that are independent of Sierra Clubs claim that leaks from the facility would 3
Id. at __, __ (slip op. at 3, 55).
4 Sierra Clubs Motion to Reopen the Record (May 4, 2020) at 1-2.
5 Id. at 3.
6 Fasken Motion to Reopen the Record (May 11, 2020) at 1; Fasken Motion for Leave to File Amended Contention No. 2 (May 11, 2020) at 1.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 212 of 292 contaminate groundwater. 7 (The Commission agreed that concerns about leaks from spent fuel 6F storage containers that are separately approved and licensed by the NRC may not be adjudicated in this proceeding. 8) The Commission therefore remanded these four contentions 7F for the Boards further consideration of their admissibility [w]ithin the context of the need to determine whether the groundwater concerns would affect the ultimate discussion of environmental impacts. 9 8F Under 10 C.F.R. § 51.45(b), Holtecs Environmental Report must describe the affected environment and discuss environmental impacts in proportion to their significance. 10 As9F explained infra, we conclude that Sierra Clubs contentions do not set forth any admissible challenge to Holtecs site characterization. Moreover, in light of the required assumption that Holtecs NRC-approved storage containers will not leak, Sierra Club fails to show why Holtecs Environmental Report must address hydrogeologic issues in any more detail.
A. Sierra Club Contention 15 Sierra Club Contention 15 stated:
The [Environmental Report] fails to adequately determine whether shallow groundwater exists at the site of the proposed [consolidated interim storage]
facility. It is important to make this determination in order to assess the impact of a radioactive leak from the [consolidated interim storage] facility on the groundwater. 11 10F Insofar as Sierra Club Contention 15 purports to challenge Holtecs site characterization, separate and apart from concerns about leaks from the storage facility, on further consideration 7
CLI-20-04, 91 NRC at __ (slip op. at 27).
8 Id. at __-__ (slip op. at 50-51).
9 Id. at __ (slip op. at 29).
10 10 C.F.R § 51.45(b)(1).
11 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Sept. 14, 2018) at 60 [hereinafter Sierra Club Pet.].
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 213 of 292 the Board concludes it raises no concerns that affect Holtecs ultimate discussion of environmental impacts.
As Holtec points out, 12 Sierra Club Contention 15 and the accompanying declaration of 11F George Rice fail to set forth an admissible claim that Holtecs discussion of groundwater is inadequate. As explained in Holtecs Environmental Report, pursuant to Holtecs Radiological Environmental Monitoring Program samples of media and effluents, including gases and vapor, air particulates, soil, sediment, fauna, vegetation, surface water, waste waters, and groundwater, are and will continue to be collected and analyzed. 13 None of this is controverted.
12F What Sierra Club does challenge is the conclusion in Holtecs Environmental Report that, [b]ased upon information obtained from the onsite drilling, shallow alluvium is likely non-water bearing at the Site. 14 However, Sierra Club neither acknowledges nor disputes the 13F information in Holtecs license application that supports this conclusion.
Sierra Club posits that Holtecs conclusion is based entirely on the absence of water in a single monitoring well observed in 2007. Mr. Rice claims that more recent wells installed at the site are completed entirely in the Dockum and [t]hus, they cannot be used to determine whether [any] groundwater exists at the alluvium/Dockum interface. 15 14F 12 Holtec Internationals Answer Opposing Sierra Clubs Petition to Intervene and Request for Adjudicatory Hearing on Holtec Internationals HI-STORE Consolidated Interim Storage Facility Application (Oct. 9, 2018) at 80-81 [hereinafter Holtecs Answer Opposing Sierra Clubs Petition to Intervene].
13 Holtec Internationals Environmental Report on the HI-STORE CIS Facility (rev. 6 May 2019) at 40-50 (ADAMS Accession No. ML19163A146) [hereinafter ER]. Generally, the Board cites to the versions of Holtecs application documents that were available at the time contentions were proffered.
14 ER at 3-40.
15 Declaration of George Rice, Comments on Proposed Facility (Sept. 6, 2018) at 3 [hereinafter Rice Decl.].
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 214 of 292 But that is not correct. Mr. Rice overlooks the Work Plan in Holtecs 2017 Geotechnical Data Report. 1615F Holtec drilled five groundwater monitoring wells. 17 Although wells were only completed 16F below the alluvium, in fact as wells were drilled the borings were regularly monitored to determine the appropriate depth. 18 As explained in Holtecs Work Plan, it was expected that the 17F actual depth of wells would be adjusted in the field based on the soil, rock, and groundwater conditions encountered. 19 The Work Plan provided that [if] groundwater is not encountered in 18F a boring planned for monitoring well installation, the borehole may be backfilled with cement-bentonite grout with no monitoring well installed. 20 19F Thus, as reflected in Holtecs Work Plan, the personnel performing the geotechnical exploration were regularly monitoring for groundwater conditions encountered during drilling.
The boring logs for Holtecs drilling in 2017 contain extensive data and observations supporting its conclusion concerning the absence of groundwater in the shallow alluvium. 21 Sierra Club 20F fails to address this information.
16 GEI Consultants, Geotechnical Data Report, HI-STORE CISF Phase 1 Site Characterization (Dec. 2017) (ADAMS Accession No. ML18023A958) [hereinafter Geotechnical Data Report].
17 Holtecs Answer Opposing Sierra Clubs Petition to Intervene at 84-85.
18 Id. at 9, 88.
19 Letter from Kimberly Manzione, Holtec Licensing Manager, to Jose Cuadrado, Project Manager, Division of Spent Fuel Management, Office of Nuclear Material Safety and Safeguards (NMSS) (Dec. 21, 2017) (ADAMS Accession No. ML17362A093), attach. 5 Geotechnical Data Report, attach. A at 53 (GEI Consultants, GEI Work Plan 1, HI-STORE CISF Site Characterization - Phase 1 (rev. 3 Nov. 2017) [hereinafter GEI Work Plan]).
20 GEI Work Plan at 53.
21 See, e.g., Geotechnical Data Report, attach. C at 72-73 (Final Boring Log for Boring No. B-101); id. at 88-89 (Final Boring Log for Boring No. B-101A (specifically noting groundwater not encountered at the interface of the residual soil and the Chinle)); id. at 95 (Final Boring Log for Boring No. B-102 (observing that the sample at the interface of the residual soil and the Chinle was dry)); id. at 102 (Final Boring Log for Boring No. B-105, p.2, observing that the sample at the interface was dry); id. at 110 (Final Boring Log for Boring No. B-105A, p. 2, specifically noting groundwater not encountered at the interface of the residual soil and the Chinle); id. at 128 (Final Boring Log for Boring No. B-109 (observing that the sample at the interface of the residual soil and the Chinle was dry)).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 215 of 292 Contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(vi), Sierra Club Contention 15 fails to raise a genuine dispute with Holtecs license application. Therefore Sierra Club Contention 15 is not admitted.
B. Sierra Club Contention 16 Sierra Club Contention 16, as considered by the Board, 22 stated:
21F The [Environmental Report] does not contain any information as to whether brine continues to flow in the subsurface under the Holtec site. 2322F Insofar as Sierra Club Contention 16 purports to challenge Holtecs site characterization, separate and apart from concerns about leaks from the storage facility, on further consideration the Board concludes it raises no concerns that affect Holtecs ultimate discussion of environmental impacts and thus is not material.
Sierra Club Contention 16 does not set forth an admissible claim that brine might be present in shallow groundwater below Holtecs proposed facility. The supporting declaration of Mr. Rice relies solely on a 2007 Eddy Lea Siting Study. 24 As the Siting Study shows in Figure 23F 2.11.3-2, the seeps and springs in which brine was located are on the eastern side of the site, near the Laguna Gatuna, 25 where multiple facilities discharged brine produced from oil and gas 24F production. 26 As both Holtecs Environmental Report and the Siting Study acknowledge, 25F saturations of shallow groundwater brine have been created in a number of areas associated 22 As explained in LBP-19-04, 89 NRC at 407-10, the Board denied Sierra Clubs motion to amend Contention 16 for failure to demonstrate good cause.
23 Sierra Club Pet. at 62.
24 Rice Decl. at 6 & nn.29-31.
25 Eddy Lea Energy Alliance, LLC, Final Detailed Siting Report and Final Communications Report (Apr. 28, 2007) at 2.11-5 (Fig. 2.11.3-2) (ADAMS Accession No. ML102440738)
[hereinafter ELS].
26 ER at 3-40; ELS at 2.4-3.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 216 of 292 with the playa lakes. 27 The proposed storage facility, however, is located on the western side 26F of the site, away and upgradient from the Laguna Gatuna. 28 27F Rather than providing factual support for concluding that brine might exist below the proposed facility, Mr. Rices declaration merely asks questions (e.g., do the seeps and springs continue to flow, could brine come in contact with the canisters?). Merely asking questions, however, does not raise a genuine dispute with a license application. 29 Contrary to the 28F requirements of 10 C.F.R. §§ 2.309(f)(1)(v) and (vi), Sierra Club Contention 16 fails to set forth an adequate factual basis or raise a genuine dispute with Holtecs license application.
Therefore Sierra Club Contention 16 is not admitted.
C. Sierra Club Contention 17 Sierra Club Contention 17 stated:
The [Environmental Report] and [Safety Analysis Report] do not discuss the presence and implications of fractured rock beneath the Holtec site. These fractures could allow radioactive leaks from the [consolidated interim storage]
facility to enter groundwater or for the brine described in Contention 16 to corrode the containers contain[ing] the radioactive material. 30 29F Insofar as Sierra Club Contention 17 purports to challenge Holtecs site characterization, separate and apart from concerns about leaks from the storage facility, on further consideration the Board concludes it raises no concerns that affect Holtecs ultimate discussion of environmental impacts.
Sierra Club Contention 17 claims that Holtecs Environmental Report and Safety Analysis Report (SAR) fail to note the presence of fractured rock. But that is not correct. Both 27 ER at 3-41; ELS at 2.4-3.
28 See Holtec Internationals HI-STORE CIS Facility Safety Analysis Report at 81 (Fig. 2.1.6(a))
and 146 (Fig. 2.4.7) (rev. 0F Jan. 2019) (ADAMS Accession No. ML19052A379) [hereinafter SAR].
29 PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2), LBP-07-04, 65 NRC 281, 324 (2007) (referencing the standard under 10 C.F.R. § 2.309(f)(1)(vi)).
30 Sierra Club Pet. at 63-64.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 217 of 292 documents acknowledge that the water-bearing zone measured in well ELEA-2 consists of either fractures or tight sandy loams between the depths of 85 and 100 feet, and reference the 2007 Eddy Lea Siting Study. 31 As Mr. Rice acknowledges, fractures are also reported in the 30F logs of the monitoring well drillings for the 2007 Siting Study and the 2017 Geotechnical Data Report. 32 Apart from Sierra Clubs inadmissible concerns about leaks from the proposed 31F facility, Sierra Club Contention 17 sets forth no significant dispute regarding the presence of fractured rock.
Contrary to the requirements of 10 C.F.R. §§ 2.309(f)(1)(v) and (vi), Sierra Club Contention 17 fails to set forth an adequate factual basis or raise a genuine dispute with Holtecs license application. 33 Therefore Sierra Club Contention 17 is not admitted.
32F D. Sierra Club Contention 19 Sierra Club Contention 19 stated:
Holtec performed two sets of packer tests in the Santa Rosa Formation to estimate the hydraulic conductivity (permeability) of the formation. These tests were conducted in conjunction with the preparation of the [Environmental Report]. It does not appear from the report of Holtecs consultant that these tests were conducted properly. Therefore, the [Environmental Report] has not presented an adequate evaluation of the affected environment. 34 33F Insofar as Sierra Club Contention 19 purports to challenge Holtecs site characterization, independent of concerns about leaks from the storage facility, on further consideration the Board concludes it raises no concerns that affect Holtecs ultimate discussion of environmental impacts.
31 ER at 3-40; SAR at 151.
32 See Rice Decl. at 6 & nn.34-35.
33 In addition to challenging whether the description of fractured rock in Holtecs Environmental Report satisfies 10 C.F.R. § 51.45(b), Sierra Club raises a safety challenge under 10 C.F.R.
§ 72.103 to Holtecs analysis of geologic characteristics of the site. This claim fails for the same reasons.
34 Sierra Club Pet. at 66.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 218 of 292 Sierra Club Contention 19, which alleges that two sets of packer tests in the Santa Rosa Formation do not appear to have been conducted properly, 35 is inadmissible. Although Mr. Rice 34F claims, citing the Geotechnical Data Report, that the test hole does not appear to have been cleaned before conducting the packer tests, 36 in fact the Geotechnical Data Report is silent on 35F this point and thus does not provide grounds to assume that the test was performed improperly. 37 36F Moreover, the 2017 geotechnical work was performed under a nuclear quality assurance program, 38 and the design of the field and laboratory program was based on NRC guidance. 39 37F 38F Mr. Rices mere speculation that acceptable procedures may not have been followed raises no genuine dispute. Similarly, while Mr. Rice states that there is no description of the water used in the tests, 40 that does not show that the tests were improperly performed.
39F Contrary to 10 C.F.R. § 2.309(f)(1)(v) and (vi), Sierra Club Contention 19 fails to set forth an adequate factual basis or raise a genuine dispute with Holtecs license application.
Therefore Sierra Club Contention 19 is not admitted.
II. SIERRA CLUB CONTENTION 30 Sierra Club proffered its Contention 30, together with a motion to file a late-filed contention, on October 23, 2019more than five months after we issued LBP-19-04, which 35 Id.
36 See Rice Decl. at 8 & n.49.
37 Indeed, Holtec expressly denies that the test was performed improperly, although at this stage of the proceeding we do not rely on Holtecs denial. See Holtecs Answer Opposing Sierra Clubs Petition to Intervene at 90. As Holtec explained in its answer, although the page of the Geotechnical Data Report cited by Mr. Rice (Rice Decl. at 8 n.48 (citing 2017 Geotechnical Data Report at 12)) does not discuss whether the hole was cleaned, GEIs procedures for the packer tests do require the borehole to be flushed with clean water for at least 2 minutes and until return water is visually clear. According to Holtec, this is simply detail beyond that discussed in the report.
38 Geotechnical Data Report at 5-6.
39 Id. at 49.
40 Rice Decl. at 8.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 219 of 292 initially terminated this proceeding before the Board. Holtec and the NRC Staff both opposed, 41 40F and Sierra Club did not file a reply.
Sierra Club Contention 30 states:
The [Environmental Report] submitted by a license applicant must evaluate the potential impact on the environment of the transportation of the nuclear waste. A report issued by the Department of Energys Nuclear Waste Technical Review Board (NWTRB) identifies 18 technical issues regarding transportation of nuclear waste. These issues remain unresolved and pose barriers to the implementation of the Holtec [consolidated interim storage] project. The issues identified in the NWTRB report are not discussed in Holtecs [Environmental Report]. The
[Environmental Report] therefore does not adequately evaluate the environmental impact of the transportation of the nuclear waste from various reactor sites to the proposed [consolidated interim storage] facility. 42 41F Sierra Club Contention 30 is similar to a contention (Sustainable Energy and Economic Development Coalition (SEED) Contention 17) that was proffered in an adjudication concerning another application for a license to construct an interim storage facility (the Interim Storage Partners LLC (ISP) proceeding). 43 The two contentions were filed the same day. Each was 42F accompanied by a motion to file a late-filed contention. Each was based on the same NWTRB Report. 44 Each was supported by the same experts declaration. Indeed, Sierra Club 43F 41 Holtec Internationals Answer Opposing Sierra Clubs Motion to File Late-Filed Contention 30 (Nov. 18, 2019) at 1 [hereinafter Holtecs Answer Opposing Contention 30]; NRC Staff Answer in Opposition to Sierra Club New Contention 30 (Nov. 18, 2019) at 1 [hereinafter NRC Staffs Answer].
42 Sierra Clubs Motion to File a New Late-Filed Contention (Oct. 23, 2019) at 5 [hereinafter Sierra Club Motion].
43 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), LBP-19-11, 90 NRC 358, 359-360 (2019).
44 U.S. Nuclear Waste Technical Review Board, Preparing for Nuclear Waste Transportation:
Technical Issues that Need to Be Addressed in Preparing for a Nationwide Effort to Transport Spent Nuclear Fuel and High-Level Radioactive Waste, (Sept. 23, 2019) (ADAMS Accession No. ML19297D146) [hereinafter NWTRB Report].
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 220 of 292 mistakenly submitted the substantively identical declaration of Robert Alvarez in this proceeding under the caption of the ISP proceeding. 4544F As explained infra, we deny Sierra Clubs motion to late-file Contention 30 for substantially the same reasons that the ISP Board rejected SEED Contention 17 in that proceeding. 46 But here we deny Sierra Clubs motion for an additional reason. Because Sierra 45F Club submitted Contention 30 after this proceeding had already been terminated, as directed by the Commission 47 we must first consider whether Sierra Club has satisfied the requirements for 46F reopening a closed record. It has not.
A. Reopening a Closed Record To reopen a closed record, a petitioner must file a motion demonstrating that its new contention (1) is timely; (2) addresses a significant safety or environmental issue; and (3) demonstrates that a materially different result would be or would have been likely had the newly proffered evidence been considered initially. 48 The petitioner must attach an affidavit that 47F separately addresses each of these criteria, with a specific explanation of why each criterion has been satisfied. 4948F The Commission considers reopening the record for any reason to be an extraordinary action, 50 and places an intentionally heavy burden on parties seeking to reopen the record. 51 49F 50F The Commission does not favor never-ending adjudications. On the contrary, the Commission 45 Declaration of Robert Alvarez in Support of Motion of Intervenor Sustainable Energy and Economic Development Coalition for Leave to File Late-Filed Contention (Oct. 23, 2019) at 1
[hereinafter Alvarez Decl.].
46 LBP-19-11, 90 NRC at 359-360.
47 CLI-20-04, 91 NRC __, __ (slip op. at 32) (Apr. 23, 2020).
48 10 C.F.R. § 2.326(a)(1)-(3). However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if the contention is found untimely. Id. § 2.326(a)(1).
49 Id. § 2.326(b).
50 Tenn. Valley Authority (Watts Bar Nuclear Plant, Unit 2), CLI-15-19, 82 NRC 151, 156 (2015).
51 Id. at 155.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 221 of 292 has cautioned that [o]bviously, there would be little hope of completing administrative proceedings if each newly arising allegation required an agency to reopen hearings. 52 51F When it proffered Contention 30 in October 2019, Sierra Club did not address, much less satisfy, the requirements for reopening a closed record. Nor did Sierra Club submit the necessary affidavit demonstrating compliance. This alone is sufficient reason not to reopen the record. 53 52F Like the NRC Staff and Holtec, 54 the Board does not read CLI-20-04 as inviting Sierra 53F Club to submit, in May 2020, a motion to reopen the record that should have accompanied its motion to late-file Contention 30 in October 2019. 55 If that were the Commissions intent, given 54F the Commissions position that reopening a closed record should be an extraordinary action, we assume the Commission would have said so explicitly.
Rather, the Commissions language suggests just the opposite. In remanding Sierra Club Contention 30 for the Boards initial ruling on admissibility, the Commission clarified that Sierra Clubs motion for a new contention must meet the standards for reopening a closed record. 56 We interpret the Commissions remand as a direction to make that determination 55F 52 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345, 350 n.18 (2005) (quoting Vt. Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 555 (1978)).
53 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-05, 69 NRC 115, 124 (2009) (Even had [petitioners] contentions passed muster under 10 C.F.R.
§ 2.309(f)(1), its motion would still fail for failing to address, let alone meet, our reopening standards.)
54 NRC Staff Answer in Opposition to Sierra Clubs Motion to Reopen the Record (May 13, 2020) at 3-4; Holtec Internationals Answer Opposing Sierra Clubs Motion to Reopen the Record (May 14, 2020) at 4-5.
55 In reaching this conclusion, the Board has considered the unauthorized reply that Sierra Club submitted on May 18, 2020. Sierra Clubs Joint Reply to Holtecs and NRC Staffs Answer to Sierra Clubs Motion to Reopen the Record (May 18, 2020) at 1. Under 10 C.F.R. § 2.323(c),
replies in support of most motions (including motions to reopen a closed record) may not be filed as of right, but only by leave upon a demonstration of compelling circumstances. We have nonetheless reviewed Sierra Clubs reply and find it unpersuasive.
56 CLI-20-04, 91 NRC at __ (slip op. at 32).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 222 of 292 based on the existing record. Sierra Club clearly fails, because it did not even mention, much less satisfy, the reopening standards when it moved to late-file Contention 30 in October 2019.
Moreover, as discussed below, even if it were the Commissions intent to allow Sierra Club to move to reopen the record at this late date, we would necessarily deny the motion in any event. Sierra Clubs recent motion to reopen fails for the same reasons that Sierra Clubs original motion failed to demonstrate good cause for filing out of time. Additionally, we conclude that Sierra Club Contention 30 is not admissible.
B. New or Amended Contentions In addition to meeting the requirements for reopening a closed record (where applicable), a petitioner that proffers a new or amended contention after the initial deadline for hearing requests must demonstrate good cause for doing so. 57 To establish good cause, a 56F petitioner must show that (1) the information upon which the new or amended contention is based was not previously available; (2) the information upon which the contention is based is materially different from information previously available; and (3) the contention has been submitted in a timely fashion after the new information on which it is based becomes available. 58 57F Sierra Club satisfied the third requirement by proffering Contention 30 within thirty days of publication of the NWTRB Report on which Contention 30 relies. 59 Both Holtec and the NRC 58F Staff have argued, however, that the information in the NWTRB Report was either previously available or not materially different from information that was previously available. 60 We agree.
59F The NWTRB Report does not purport to document any new scientific or engineering 57 10 C.F.R. § 2.309(c)(1).
58 Id. at §§ 2.309(c)(1)(i)-(iii).
59 NWTRB Report at 107-17.
60 Holtecs Answer Opposing Contention 30 at 23; NRC Staffs Answer at 5-7.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 223 of 292 research. Rather, as required by the Nuclear Waste Policy Amendments Act of 1987, 61 the 60F purpose of the NWTRB Report is to review the DOEs preparedness to transport spent nuclear fuel and high-level radioactive waste. 62 61F In undertaking this review, the NWTRB Report relies on and cites approximately 150 earlier references. 63 Indeed, the report explicitly acknowledges that, in identifying the issues 62F that its recommendations address, the NWTRB drew upon these earlier sources. These included both issues that the NWTRB itself had previously identified during past Board public meetings, technical workshops, and Board reports (spanning 2012-2018) and [a]dditional relevant technical issues that had been previously identified and documented in reports and presentations by DOE, the United States nuclear industry, and researchers in other countries. 64 63F All or virtually all of these original sources were publicly available before the reports issuance in September 2019. 65 64F Sierra Clubs Contention 30 also claims that Holtecs Environmental Report is deficient because it does not include the issues regarding transportation of nuclear waste that were presented in the NWTRB Report. 66 For example, the Environmental Report states that 100,000 65F metric tons of uranium (MTU) will be transported to and stored at the proposed facility in the first 20 years after a license is issued. 67 Sierra Club states that the NWTRB concluded that there 66F 61 Nuclear Waste Policy Amendments Act of 1987, Pub. L. No.100-203, § 5051, 101 Stat. 1330-248 (1987), 2 U.S.C. §§ 10261-10270.
62 NWTRB Report at xxi.
63 Id. at 107-17.
64 Id. at 23.
65 See id. at 107-17.
66 Sierra Club Motion at 6.
67 ER at 4-49. The petitioners originally-filed contentions in this proceeding are based on the earlier version of Holtecs Environmental Report. See Holtec Internationals Environmental Report on HI-STORE CIS Facility Environmental Report (rev. 1 Dec. 2017) (ADAMS Accession No. ML18023A904).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 224 of 292 are technical issues that will make the transportation of nuclear waste to a proposed facility in the 20-year time frame infeasible. 68 67F As the NWTRB Report acknowledges, however, these same conclusions were first presented at an NWTRB public workshop in 2013. 69 Because this information was publicly 68F available years ago, Sierra Club fails to show good cause for failing to raise this aspect of Contention 30 earlier.
For the most part, the Declaration of Sierra Clubs expert, Mr. Alvarez, merely repeats conclusions in the NWTRB Report. But his Declaration also demonstrates that Sierra Club Contention 30 is based on facts and theories that were available long before the contention was filed. For example, Mr. Alvarez states that the NWTRB concluded in 2016 that the Nuclear Regulatory Commission and the Energy Department lack a technical basis in support of the safe transport of high burnup [spent nuclear fuel]. 70 Indeed, Mr. Alvarez cites his own work in 2013 69F for the proposition that [h]igh burnup fuel temperatures make the used fuel more vulnerable to damage from handling. 71 70F Sierra Club fails to demonstrate that Contention 30 is based on new and materially different information, as required by 10 C.F.R. § 2.309(c)(1).
68 ER at 4-49.
69 NWTRB Report at 77. The Report cites as authority a November 2013 presentation at a public NWTRB technical workshop by Jeffrey Williams, the director of DOEs Nuclear Fuels Storage and Transportation Planning Project. Mr. Williams discussion of the timeframe for transporting all spent nuclear fuel from reactor sites appears at page 54 of the workshop transcript, which is publicly available at https://www.nwtrb.gov/docs/defaultsource/
meetings/2013/november/13nov18.pdf?sfvrsn=9.
70 Alvarez Decl. at 1.
71 Id. at 6 n.26.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 225 of 292 C. Contention Admissibility Even if Sierra Club had demonstrated good cause for proffering Contention 30 after the initial deadline for filing a hearing petition, Contention 30 would also have to satisfy the NRCs requirements for contention admissibility. 72 71F Among other things, an admissible contention must (1) show that a genuine dispute exists on a material issue of law or fact by referring to specific portions of the application that the petitioner disputes; and (2) state the alleged facts or expert opinions that support the petitioners position. 73 Moreover, a contention must raise an issue that is within the scope of the 72F proceeding. 7473F Sierra Club fails to raise a genuine dispute with Holtecs application, as required by 10 C.F.R. § 2.309(f)(1)(vi). Contrary to Sierra Clubs claims, the findings of the NWTRB Report do not contradict Holtecs plans.
While the NWTRB concludes that some technical issues must be resolved before the nations entire inventory of waste can be transported, 75 it agrees that not all such issues must 74F be resolved before the first of the waste can be transported. 76 Contrary to 10 C.F.R.
§ 2.309(f)(1)(v), therefore, the NWTRB Report does not support Sierra Clubs suggestion that 100,000 MTU could not possibly be moved to Holtecs facility within the first 20 years of operation. It most certainly does not support the conclusion that 8,680 MTU could not be moved during the term of the license Holtec is initially requesting. 7776F 72 See 10 C.F.R. § 2.309(f)(1).
73 Id. § 2.309(f)(1)(v)-(vi).
74 Id. § 2.309(f)(1)(iii).
75 NWTRB Report at xxiii.
76 Id.
77 See ER at 14. Holtec seeks to store 8,680 MTU in two different models of Holtec canisters, up to 500 canisters in total, for a license period of 40 years.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 226 of 292 As we stated in LBP-19-04, the NRC in any event is not concerned with the commercial viability of the facilities it licenses because the business decision whether to use a license has no bearing on a licensees ability to safely conduct the activities the license authorizes. 78 Sierra 77F Club claims that the NWTRB Report identified issues that could affect the availability of spent fuel for storage at Holtecs facility. 79 But the NWTRB has no role in the NRCs licensing 78F process.
As explained supra, the NWTRBs responsibility under the Nuclear Waste Policy Amendments Act of 1987 is to evaluate the technical and scientific validity of activities undertaken by the Secretary [of Energy] . . . including activities relating to the packaging or transportation of high-level radioactive waste or spent nuclear fuel. 80 The NWTRB does not 79F license private spent fuel transportation systems; the NRC does. The NWTRB has no ability to revise the scope of Holtecs project or of this adjudication.
Holtecs Environmental Report states that spent nuclear fuel will be transported to Holtecs proposed facility only in transportation packages that are approved and certified as safe by the NRC under 10 C.F.R. Part 71. 81 Holtecs license application lists the specific, currently 80F approved packages it proposes to accept for storage. 82 Holtecs application, however, is for a 81F storage facility under Part 72, not for a transportation system under Part 71. A challenge to the safety of NRC-approved transportation packages is outside the scope of this proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii), as the ISP Board ruled in LBP-19-11. 8382F 78 See LBP-19-04, 89 NRC at 386.
79 Sierra Club Motion at 1-2.
80 NWTRB Report at 1.
81 ER at 1-8.
82 See Letter from Kimberly Manzione, Holtec Licensing Manager, to Michael Layton, Director, Division of Spent Fuel Management, NMSS (Mar. 30, 2017) (ADAMS Accession No. ML17362A093).
83 LBP-19-11, 90 NRC at 367.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 227 of 292 As we ruled in LBP-19-04, although 10 C.F.R. § 72.108 requires consideration of transportation impacts in Holtecs Environmental Report, section 72.108 does not require that the environmental report prove the safety of transportation packages, because 10 C.F.R. Part 71 separately addresses these issues. 84 Sierra Club fails to address, much less challenge, the 83F parts of Holtecs Environmental Report that do, in fact, analyze the potential environmental impacts associated with transportation of spent nuclear fuel. 85 Likewise, Sierra Club fails to 84F acknowledge or dispute any safety analyses, aging management plans or quality assurance programs described in Holtecs application.
Sierra Club instead claims that such safety-related transportation issues as moving high burnup spent nuclear fuel and when to require repackaging to [different] sized canisters 86 85F must be addressed in the Environmental Report for a consolidated interim storage facility under Part 72. 87 Sierra Club makes such claims even though Holtec has committed to accepting at its 86F facility only transportation packages that have been approved by the NRC and licensed under Part 71. Such claims would improperly expand a Part 72 application process into a dispute over the adequacy of the NRCs Part 71 requirements. Plainly, these claims are outside the scope of this Part 72 proceeding, in contravention of 10 C.F.R. §2.309(f)(1)(iii). And, insofar as they attack Commission regulations without seeking a waiver, Sierra Clubs claims violate 10 C.F.R.
§ 2.335 as well.
Sierra Club Contention 30 is not admitted.
84 LBP-19-04, 89 NRC at 415.
85 ER 4-49.
86 Sierra Club Motion at 1.
87 Id. at 6, 9.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 228 of 292 III. FASKEN CONTENTION 2 Fasken submitted Fasken Contention 2, together with a motion for leave to file, on August 1, 2019 88more than twelve weeks after we issued LBP-19-04, terminating this 87F proceeding at the Licensing Board level.
Fasken Contention 2 states:
Statements in Holtecs SAR and Facility Environmental Report (FER) regarding control over mineral rights below the site are materially different and inaccurate.
Reliance on these statements nullifies Holtecs ability to satisfy the NRCs siting evaluation factors. 89 88F Fasken submitted Contention 2 in response to a June 19, 2019 letter from Stephanie Garcia Richard, State of New Mexico, Commissioner of Public Lands, to Krishna P. Singh, President and CEO of Holtec International. 90 In that letter, Ms. Richard expresses concern that 89F Holtec has characterized the site of its proposed facility as under Holtecs control. In fact, Ms.
Richard states, although Holtec may control the surface estate, the State of New Mexico, through the New Mexico State Land Office, owns the mineral estate. 91 She asserts that in its 90F filings with the NRC, Holtec appears to have entirely disregarded the State Land Offices authority over the Sites mineral estate. 92 91F 88 Fasken Motion for Leave to File a New Contention (Aug. 1, 2019) [hereinafter Fasken Motion].
89 Id. at 2.
90 See Fasken Motion, ex. 5 (Letter from NRC Acting Secretary Denise McGovern to Stephanie Garcia Richard, Commissioner of Public Lands, State of New Mexico, unnumbered attach. (July 2,2019) (Letter from Stephanie Garcia Richard, Commissioner of Public Lands, State of New Mexico, to Krishna P. Singh, Holtec President and CEO (June 19, 2019) (ADAMS Accession No. ML19183A429) [hereinafter Richard Letter]).
91 Richard Letter at 2.
92 Id.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 229 of 292 On August 26, 2019, both the NRC Staff and Holtec opposed Faskens motion. 93 On 92F September 3, 2019apparently in response to the Staffs and Holtecs arguments that it failed to submit a timely motion to reopen the recordFasken did so belatedly. 94 On September 12, 93F 2019, however, without explanation Fasken abruptly withdrew its motion to reopen the record. 95 94F Although Fasken withdrew its motion to reopen, and did not reply to the NRC Staffs and Holtecs oppositions, it never withdrew its initial motion for leave to file Fasken Contention
- 2. We therefore address that motion and deny it.
First, as explained supra, Faskens failure to address the reopening requirements and to submit the necessary affidavit is, by itself, sufficient grounds not to reopen a closed record. 96 95F Here, we confront the extraordinary situation of a petitioner who not only failed to move to reopen, as required by the NRCs regulations, but has actually refused to do so.
Second, Fasken fails to show that Contention 2 satisfies the requirements for late filing.
As discussed supra, any petitioner that proffers a new or amended contention after the initial deadline for hearing requests must demonstrate good cause for doing so. 97 To establish good 96F cause, a petitioner must show that (1) the information upon which the new or amended contention is based was not previously available; (2) the information upon which the contention is based is materially different from information previously available; and (3) the contention has been submitted in a timely fashion after the new information on which it is based becomes 93 NRC Staff Answer in Opposition to Faskens Motion to File a New Contention (Aug. 26, 2019); Holtec Internationals Answer Opposing Faskens Late-Filed Motion for Leave to File a New Contention (Aug. 26, 2019).
94 Fasken Motion for Leave to Reopen and Incorporate Contention Filed August 1, 2019 (Sept.
3, 2019).
95 Fasken and PBLROs Withdrawal of Their Motion for Leave to Reopen and Incorporate Contention Filed August 1, 2019 (Sept. 12, 2019).
96 Millstone, CLI-09-05, 69 NRC at 120.
97 See 10 C.F.R. § 2.309(c)(1).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 230 of 292 available. 98 97F The creation of a document that collects, summarizes, and places into context previously available information does not make that information new or materially different. 99 Fasken fails 98F to satisfy 10 C.F.R. § 2.309(c)(1)(i) because the information on which Contention 2 is based was previously available in Holtecs Environmental Report and in its responses to the NRC Staffs requests for additional information (RAIs).
Pointing to Ms. Richards letter, Fasken claims that Holtec failed to disclose to the NRC the New Mexico State Land Offices authority over mineral rights at the proposed site. 100 But 99F that is not so. Holtecs Environmental Report has always acknowledged that the subsurface mineral rights are owned by the State of New Mexico. 101 More recently (but months before 100F Fasken proffered Contention 2), Holtec clarified in an RAI response that [t]he mineral rights for Section 13 [the proposed site] and certain adjacent areas are held in trust by the New Mexico Commissioner of State Lands. 102 Fasken Contention 2 is based on information that was 101F available in Holtecs application materials long before Fasken moved for leave to file it.
98 See id. §§ 2.309(c)(1)(i)-(iii).
99 N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, 72 NRC 481, 496 (2010).
100 Fasken Motion at 4 n.7 (citing Richard Letter at 2).
101 ER at 58 (Fig. 3-2).
102 Holtec License Application Responses to Requests for Supplemental Information (Apr. 9, 2019) at 1.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 231 of 292 Fasken therefore did not meet the requirements for reopening the record and late filing Contention 2 when it was submitted. For that reason (and also because Fasken has recently proffered a substantially amended version of Contention 2), we do not address its admissibility under 10 C.F.R. § 2.309(f)(1).
IV. ORDER For the reasons stated:
A. On further consideration, as directed by the Commission, Sierra Club Contentions 15, 16, 17, and 19 are not admitted.
B. Sierra Clubs motion to reopen the record is denied.
C. Sierra Clubs motion to late-file Sierra Club Contention 30 is denied. Sierra Club Contention 30 is not admitted.
D. There being no admitted Sierra Club contention pending, Sierra Clubs petition is again dismissed.
E. Faskens motion for leave to file Fasken Contention 2 (as originally submitted) is denied. Fasken Contention 2 (as originally submitted) is not admitted.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 232 of 292 F. Briefing having only recently been completed on Faskens May 11, 2020 motion for leave to file an amended Fasken Contention 2 and associated motion to reopen the record, 103 those motions will be addressed in a subsequent Order.
102F It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Paul S. Ryerson, Chairman ADMINISTRATIVE JUDGE
/RA/
Nicholas G. Trikouros ADMINISTRATIVE JUDGE
/RA/
Dr. Gary S. Arnold ADMINISTRATIVE JUDGE Rockville, Maryland June 18, 2020 103 See supra note 6. The NRC Staff and Holtec filed answers opposing those motions on June 4 and 5, 2020, respectively, and Fasken filed a reply on June 11, 2020. See NRC Staff Answer in Opposition to Faskens Motions to Amend Contention 2 and Reopen the Record (June 4, 2020) at 1; Holtec Internationals Answer Opposing Fasken Motion to Reopen the Record and Motion for Leave to File Amended Contention No. 2 (June 5, 2020) at 3-4; Faskens Combined Reply to NRC Staffs and Holtec Internationals Oppositions to Motion for Leave to File Amended Contention and Motion to Reopen the Record (June 11, 2020) at 1-2.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 233 of 292 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
)
HOLTEC INTERNATIONAL ) Docket No. 72-1051-ISFSI
)
)
(HI-STORE Consolidated Interim Storage )
Facility) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Ruling on Remanded Contentions and Denying Motion to Reopen) (LBP-20-06) have been served upon the following persons by Electronic Information Exchange (EIE).
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16B33 Mail Stop: O-16B33 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop - O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 Paul S. Ryerson, Chair Sheldon Clark, Esq.
Administrative Judge Joseph I. Gillespie, Esq.
Esther Houseman, Esq.
Nicholas G. Trikouros Sara B. Kirkwood, Esq.
Administrative Judge Mauri Lemoncelli, Esq.
Patrick Moulding, Esq.
Dr. Gary S. Arnold Carrie Safford, Esq.
Administrative Judge Thomas Steinfeldt, Esq.
Rebecca Susko, Esq.
E-mail: paul.ryerson@nrc.gov Alana M. Wase, Esq.
nicholas.trikouros@nrc.gov Brian Newell, Senior Paralegal gary.arnold@nrc.gov E-mail: sheldon.clark@nrc.gov joe.gillespie@nrc.gov esther.houseman@nrc.gov Ian Curry, Law Clerk sara.kirkwood@nrc.gov Stephanie Fishman, Law Clerk mauri.lemoncelli@nrc.gov Molly Mattison, Law Clerk patrick.moulding@nrc.gov Taylor Mayhall, Law Clerk carrie.safford@nrc.gov E-mail: ian.curry@nrc.gov thomas.steinfeldt@nrc.gov stephanie.fishman@nrc.gov rebecca.susko@nrc.gov molly.mattison@nrc.gov alana.wase@nrc.gov taylor.mayhall@nrc.gov brian.newell@nrc.gov
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 234 of 292 Holtec International - Docket No. 72-1051-ISFSI MEMORANDUM AND ORDER (Ruling on Remanded Contentions and Denying Motion to Reopen) (LBP-20-06)
Counsel for Holtec International Counsel for Dont Waste Michigan Pillsbury Winthrop Shaw Pittman LLP 316 N. Michigan Street, Suite 520 1200 Seventeenth Street, NW Toledo, OH 43604-5627 Washington, DC 20036 Terry J. Lodge, Esq.
Meghan Hammond, Esq. E-mail: tjlodge50@yahoo.com Anne Leidich, Esq.
Michael Lepre, Esq. Counsel for Sierra Club Jay Silberg, Esq. 4403 1st Avenue SE, Suite 402 Timothy Walsh, Esq. Cedar Rapids, IA 52402 Sidney Fowler, Esq. Wallace L. Taylor, Esq.
E-mail: meghan.hammond@pillsburylaw.com E-mail: wtaylor784@aol.com anne.leidich@pillsburylaw.com michael.lepre@pillsburylaw.com Counsel for NAC International Inc.
jay.silberg@pillsburylaw.com Robert Helfrich, Esq.
timothy.walsh@pillsburylaw.com NAC International Inc.
sidney.fowler@pillsburylaw.com 3930 E Jones Bridge Rd., Ste. 200 Norcross, GA 30092 Counsel for Beyond Nuclear E-mail: rhelfrich@nacintl.com Harmon, Curran, Spielberg & Eisenberg LLP 1725 DeSales Street NW Hogan Lovells LLP Suite 500 555 13th Street NW Washington, DC 20036 Washington, DC 20004 Diane Curran, Esq. Sachin S. Desai, Esq.
E-mail: dcurran@harmoncurran.com Allison E. Hellreich, Esq.
E-mail: sachin.desai@hoganlovells.com Turner Environmental Law Clinic allison.hellreich@hoganlovells.com 1301 Clifton Road Atlanta, GA 30322 Counsel for Fasken Land and Oil and Permian Mindy Goldstein, Esq. Basin Land and Royalty Owners E-mail: magolds@emory.edu Monica R. Perales, Esq.
6101 Holiday Hill Road Counsel for Alliance Environmental Strategies Midland, TX 79707 Law Office of Nancy L. Simmons E-mail: monicap@forl.com 120 Girard Boulevard SE Albuquerque, NM 87106 Kanner & Whiteley, LLC 701 Camp Street Nancy L. Simmons, Esq. New Orleans, LA 70130 E-mail: nlsstaff@swcp.com Allan Kanner, Esq.
Elizabeth Petersen, Esq.
Cynthia St. Amant, Esq Eddy-Lea Energy Alliance Conlee Whiteley, Esq .
102 S. Canyon E-mail: a.kanner@kanner-law.com Carlsbad, NM 88220 e.petersen@kanner-law.com c.stamant@kanner-law.com John A. Heaton c.whiteley@kanner-law.com E-mail: jaheaton1@gmail.com 2
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 235 of 292 Holtec International - Docket No. 72-1051-ISFSI MEMORANDUM AND ORDER (Ruling on Remanded Contentions and Denying Motion to Reopen) (LBP-20-06)
Eddy County, NM* City of Hobbs, NM 101 W. Greene Street 2605 Lovington Highway Carlsbad, NM Hobbs, NM 88242 Rick Rudometkin Garry A. Buie E-mail: rrudometkin@co.eddy.nm.us E-mail: gabuie52@hotmail.com
- Eddy County not served due to no representative for the County assigned at the time of Mr. Rudometkins departure. City of Carlsbad, NM 1024 N. Edward Carlsbad, NM 88220 Lea County, NM 100 N. Main Jason G. Shirley Lovington, NM 88260 E-mail: jgshirley@cityofcarlsbadnm.com Jonathan B. Sena E-mail: jsena@leacounty.net Office of the Secretary of the Commission Dated at Rockville, Maryland, this 18th day of June 2020 3
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 236 of 292 LBP-20-10 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Paul S. Ryerson, Chairman Nicholas G. Trikouros Dr. Gary S. Arnold In the Matter of Docket No. 72-1051-ISFSI HOLTEC INTERNATIONAL ASLBP No. 18-958-01-ISFSI-BD01 (HI-STORE Consolidated Interim Storage September 3, 2020 Facility)
MEMORANDUM AND ORDER (Denying Motions to Reopen and for Leave to File)
Before the Board in this closed proceeding are two motions by Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners (collectively, Fasken): (1) to reopen the record; 1 and (2) for leave to file an amended contention out of time. 2 Holtec International (Holtec) and the NRC Staff oppose. 3 We deny the motions.
1 Fasken Motion to Reopen the Record (May 11, 2020) [hereinafter Motion to Reopen].
2 Fasken Motion for Leave to File Amended Contention No. 2 (May 11, 2020) [hereinafter Amended Motion for Leave].
3 Holtecs Answer Opposing Fasken Motion to Reopen the Record and Motion for Leave to File Amended Contention No. 2 (June 5, 2020) [hereinafter Holtec Answer]; NRC Staff Answer in Opposition to Faskens Motions to Amend Contention 2 and Reopen the Record (June 4, 2020)
[hereinafter NRC Staff Answer]. Fasken submitted a combined reply. Fasken Combined Reply to NRC Staffs and Holtecs Oppositions to Motion for Leave to File Amended Contention and Motion to Reopen the Record (June 11, 2020).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 237 of 292 I. BACKGROUND This proceeding concerns Holtecs application for a license to construct and operate a consolidated interim storage facility for spent nuclear fuel in Lea County, New Mexico. The factual background and prior proceedings before this Licensing Board are set forth in our Memorandum and Order of May 7, 2019 (LBP-19-04), in which the Board denied all petitioners hearing requests. 4 On April 23, 2020, in response to petitioners appeals, the Commission in CLI-20-04 substantially affirmed the Boards rulings in LBP-19-04, but reversed in part and remanded for further consideration four contentions that had been proffered by Sierra Club. 5 Additionally, the Commission remanded, for the Boards ruling on admissibility, two contentions that were proffered several months after we had terminated this proceeding at the Licensing Board level:
(1) Sierra Club Contention 30; and (2) Fasken Contention 2. 6 On June 18, 2020, for reasons explained in our Memorandum and Order (LBP-20-06), 7 we ruled that Sierra Clubs remanded contentions were not admissible and denied its motion to late-file Sierra Club Contention 30. We also denied Faskens motion for leave to file Fasken Contention 2 as originally proffered.
To place Faskens pending motions in context, we first summarize the history of Fasken Contention 2.
II. FASKEN CONTENTION 2 At the outset of this adjudicatory proceeding, Fasken did not submit any contentions.
Instead, it moved to dismiss Holtecs application, claiming the NRC lacked jurisdiction to 4
LBP-19-04, 89 NRC 353, 358 (2019).
5 CLI-20-04, 91 NRC __, __-__ (slip op. at 1, 23-29) (Apr. 23, 2020).
6 Id. at __, __ (slip op. at 3, 55).
7 LBP-20-06, 91 NRC __, __-__, __ (slip op. at 2, 3-9, 15) (June 18, 2020).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 238 of 292 consider it. 8 The Secretary of the Commission denied Faskens motion without prejudice, and referred it for consideration as a contention under 10 C.F.R. § 2.309. 9 This Board did so. Although we determined that Fasken had demonstrated standing, we concluded that its jurisdictional challenge (later designated Fasken Contention 1) did not satisfy the requirements for an admissible contention under 10 C.F.R. § 2.309(f)(1). As explained in LBP-19-04, we therefore denied Faskens petition, at the same time we denied all other hearing petitions, and terminated this proceeding on May 7, 2019. 10 More than twelve weeks later, Fasken proffered Fasken Contention 2, accompanied by a motion for leave to file out of time. 11 Fasken Contention 2 stated:
Statements in Holtecs Safety Analysis Report (SAR) and Facility Environmental Report (FER) regarding control over mineral rights below the site are materially misleading and inaccurate. Reliance on these statements nullifies Holtecs ability to satisfy the NRCs siting evaluation factors. 12 Fasken claimed to submit Contention 2 in response to new information contained in a June 19, 2019 letter from Stephanie Garcia Richard, State of New Mexico, Commissioner of Public Lands, to Krishna P. Singh, President and CEO of Holtec. 13 In that letter, Ms. Richard expressed concern that Holtec has characterized the site of its proposed facility as under Holtecs control. In fact, Ms. Richard stated, although Holtec may control the surface estate, the State of New Mexico, through the New Mexico State Land Office, owns the mineral 8
Motion of Fasken to Dismiss Licensing Proceedings for HI-STORE Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility at 1-2 (Sept. 14, 2018).
9 Order of the Secretary at 2-3 (Oct. 29, 2018).
10 LBP-19-04, 89 NRC at 354.
11 Fasken Motion for Leave to File a New Contention (Aug. 1, 2019) [hereinafter Initial Motion for Leave].
12 Id. at 3.
13 See Initial Motion for Leave, Ex. 5 (Letter from Stephanie Garcia Richard, Commissioner of Public Lands, State of New Mexico, to Krishna P. Singh, Holtec President and CEO (June 19, 2019) (ADAMS Accession No. ML19183A429).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 239 of 292 estate. 14 She asserted that in its filings with the NRC, Holtec appears to have entirely disregarded the State Land Offices authority over the Sites mineral estate. 15 As both the NRC Staff and Holtec pointed out in their oppositions, 16 Fasken failed to move to reopen the record of this now-closed proceeding. Apparently in response to their arguments, Fasken filed such a motion belatedly. 17 Nine days later, however, without explanation Fasken withdrew its motion to reopen the closed record. 18 As directed by the Commission, 19 we addressed Fasken Contention 2 in LBP-20-06. 20 As more fully explained in that decision, we denied Faskens motion for leave to file because (1) having withdrawn its motion to reopen, Fasken failed to address the requirements for reopening a closed record; and (2) Fasken failed to show that Contention 2 satisfied even the less stringent requirements for filing out of time if the record had remained open. 21 Because Holtecs Environmental Report and correspondence with the NRC had previously acknowledged the State of New Mexicos authority over mineral rights at the proposed site, we concluded that Fasken Contention 2 was based not on new information, but rather on information that was available in Holtecs application materials long before Fasken moved for leave to file it. 22 14 Id. at 2.
15 Id.
16 Holtecs Answer Opposing Faskens Late-Filed Motion for Leave to File a New Contention at 11-13 (Aug. 26, 2019); NRC Staff Answer in Opposition to Faskens Motion to File a New Contention at 9-10 (Aug. 26, 2019).
17 Fasken Motion for Leave to Reopen and Incorporate Contention Filed August 1, 2019 (Sept.
3, 2019).
18 Faskens Withdrawal of Their Motion for Leave to Reopen and Incorporate Contention Filed August 1, 2019 (Sept. 12, 2019).
19 CLI-20-04, 91 NRC at __, __ (slip op. at 3, 55).
20 LBP-20-06, 91 NRC at __ (slip op. at 19).
21 Id. at __-__ (slip op. at 20-21).
22 Id. at __ (slip op. at 21).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 240 of 292 III. FASKEN AMENDED CONTENTION 2 Fasken initiated its efforts to proffer Fasken Amended Contention 2 while petitioners (including Faskens) appeals of LBP-19-04 were still pending before the Commission. On March 20, 2020, the NRC announced publication of the NRC staffs draft Environmental Impact Statement (DEIS) concerning Holtecs proposed interim storage facility. 23 On April 7, 2020, at Faskens request, the Secretary extended the deadline for filing new or amended contentions based on the DEIS until May 11, 2020. 24 Hence on May 11, 2020some twenty months after the September 2018 deadline for submitting hearing requests and contentions challenging Holtecs license application 25Fasken filed a second motion to reopen the record, together with a motion for leave to file Fasken Amended Contention 2. 26 Although purporting to challenge statements made for the very first time in the recent Holtec DEIS, 27 Fasken Amended Contention 2 also repeatedly challenges statements in Holtecs application. Indeed, Fasken Amended Contention 2 states:
Holtecs application fails to adequately, accurately, completely and consistently describe the control of subsurface mineral rights and oil and gas and mineral extraction operations beneath and in the vicinity of the proposed Holtec
[Consolidated Interim Storage] Facility site, which precludes a proper analysis under NEPA and further nullifies Holtecs ability to satisfy NRCs siting evaluation factors now and anticipated in the future and is in further violation of NRC regulations. 28 23 See Holtec International HI-STORE Consolidated Interim Storage Facility Project, 85 Fed.
Reg. 16,150 (Mar. 20, 2020); see also Office of Nuclear Material Safety and Safeguards (NMSS), NUREG-2237, Environmental Impact Statement for the Holtec Internationals License Application for Consolidated Interim Storage Facility for Spent Nuclear Fuel and High Level Waste, Draft Report for Comment (Mar. 2020) (ADAMS Accession No. ML20069G420)
[hereinafter DEIS].
24 Order (Granting Extension of Time) (Apr. 7, 2020) [hereinafter Commission Extension].
25 See Holtecs HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919, 32,919 (July 16, 2018).
26 Motion to Reopen; Amended Motion for Leave.
27 Amended Motion for Leave at 11.
28 Id. at 10-11 (emphasis added).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 241 of 292 The Board heard oral argument on Faskens motions from each participants counsel, by telephone, on August 5, 2020. 29 IV. MOTION TO REOPEN THE RECORD To reopen a closed record, a petitioner must file a motion that demonstrates (1) its new contention is timely; (2) the contention addresses a significant safety or environmental issue; and (3) a materially different result would be or would have been likely had the newly proffered evidence been considered initially. 30 The petitioner must attach an affidavit from experts in the disciplines appropriate to the issues raised or from competent individuals with knowledge of the facts alleged that separately addresses each of these criteria, explaining how each criterion has been satisfied. 31 Moreover, the evidence in any such affidavit must meet the admissibility standards in 10 C.F.R. § 2.337. 32 In other words, the affidavit must be of such quality as to be admissible into evidence at an evidentiary hearing.
The Commission considers reopening the record for any reason to be an extraordinary action, 33 and places an intentionally heavy burden on parties seeking to reopen the record. 34 The Commissions rules mandate that the standard for admitting a new contention after the 29 Licensing Board Order (Scheduling Oral Argument) (June 25, 2020). During the argument, Faskens counsel asked whether its expert geologist, Mr. Pollock, might respond to some of the Boards questions directly. Tr. at 456. The Board has considered Mr. Pollocks Amended Declaration, which was submitted as Exhibit 4 to Faskens Amended Motion for Leave.
However, the Board declined (without timely objection from Fasken) to permit Mr. Pollock to present information orally. Tr. at 456-57, 470. Licensing boards may exercise broad discretion to limit oral argument or to allow it at all. See 10 C.F.R. § 2.331. Generally, we do not hear from a petitioners experts at oral argument on whether the petitioners written pleadings are sufficient to merit an evidentiary hearing at which the experts would then testify.
30 10 C.F.R. § 2.326(a)(1)-(3). An exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented. Id. § 2.326(a)(1).
31 Id. § 2.326(b).
32 Id.
33 Tenn. Valley Authority (Watts Bar Nuclear Plant, Unit 2), CLI-15-19, 82 NRC 151, 156 (2015).
34 Id. at 155.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 242 of 292 record is closed is higher than for an ordinary late-filed contention. 35 Fasken fails to carry this intentionally heavy burden.
Both Holtec and the NRC Staff assert that Fasken has not even satisfied a threshold requirement. They claim that Faskens motion to reopen the record is not accompanied by an appropriate affidavit. 36 To support its motion, Fasken attaches an affidavit by its lawyer, Mr. Kanner. 37 But 10 C.F.R. § 2.326(b) does not generally call for the affidavit of a petitioners lawyer. On the contrary, when the rules for reopening a closed record were proposed, commentators expressed concern that affidavits of lawyers repeating allegations of undisclosed principals should not be sufficient. 38 In response, the Commission codified the requirement that the supporting affidavit must be from either competent individuals with knowledge of the facts alleged or from experts in the disciplines appropriate to the issues raised. 39 Although Mr. Kanners affidavit states that he reviewed the sworn declarations of other individuals, 40 he claims no technical expertise. For the most part, Mr. Kanner also claims no personal knowledge, relying on the knowledge of others for criticisms of the DEIS and for factual support for his conclusion that information in the DEIS implicates significant environmental and 35 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345, 350 (2005).
36 See Holtec Answer at 13-15; NRC Staff Answer at 26-27.
37 Affidavit of Allan Kanner (May 11, 2020) [hereinafter Kanner Affidavit]. Although the Kanner Affidavit does not reflect that it was executed under oath before a notary public, Mr. Kanner represented at oral argument (Tr. at 432-33) that such formality is not required for a lawyers affidavit under Louisiana law. No party has challenged the sufficiency of Mr. Kanners affidavit on this ground.
38 Final Rule, Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg.
19,535, 19,537 (May 30, 1986).
39 Id.
40 Kanner Affidavit at 6 (citing Amended Motion for Leave, Ex. 1 (Declaration of Tommy Taylor)
& Ex. 4 (Amended Declaration of Stonnie Pollock) (May 11, 2020) [hereinafter Pollock Declaration]).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 243 of 292 safety issues. 41 We do not question whether Mr. Kanner is a qualified lawyer. But, because Mr. Kanner claims neither technical expertise nor personal knowledge of critical facts, we likely would not admit most or all of Mr. Kanners affidavit as evidence at an evidentiary hearing under 10 C.F.R. § 2.337. It is questionable, therefore, whether Mr. Kanners affidavit can properly support a motion to reopen the record in accordance with 10 C.F.R. § 2.326(b).
We need not rely on this possible pleading defect to deny Faskens motion, however, because Fasken fails to carry the heavy burden to reopen a closed record for more substantial reasons.
Most importantly, Faskens motion is not timely. Fasken submitted its amended contention challenging the DEIS within the extended deadline permitted by the Commission. 42 But Fasken Amended Contention 2 and Faskens associated motion to reopen the record are based on statements in the DEIS that do not differ materially from information that was publicly available in Holtecs application materials much earlier. 43 This is fatal to Faskens motion.
Under 10 C.F.R. § 2.309(f)(2), [o]n issues arising under the National Environmental Policy Act, participants shall file contentions based on the applicants environmental report. 44 Petitioners such as Fasken therefore have an ironclad obligation 45 to examine the relevant application documents to uncover information that might prompt a contention.
41 Kanner Affidavit at 7.
42 See Commission Extension at 1.
43 In Exhibit 2 to its Amended Motion for Leave, Fasken lists allegedly new statements in the DEIS, but fails to show that they differ significantly from previously available information or that any difference is material to Fasken Amended Contention 2. See Amended Motion for Leave, Ex. 2, (Facts Petitioners Intend to Reply on to Support New and Amended Contentions) at 1-3 (May 11, 2020).
44 10 C.F.R. § 2.309(f)(2).
45 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 338 (1999).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 244 of 292 Under 10 C.F.R. § 2.309(f)(2), the NRC expects a petitioner to evaluate all available information at the earliest possible time to identify the potential basis for contentions and preserve their admissibility. 46 Fasken may not seize upon publication of the NRC staffs DEIS in March 2020 as an excuse to raise challenges to Holtecs license application that Fasken could have timely raised in September 2018, but did not.
Faskens fundamental argument is that statements in the DEIS continue to misrepresent information that Fasken claims was misrepresented or wrongfully omitted from Holtecs Environmental Report and other application documents. 47 This includes, Fasken claims, information concerning the control and ownership of subsurface mineral rights, the status of [petroleum] industry operations, and geologic characteristics in the region. 48 Thus, Fasken describes Fasken Amended Contention 2 as challenging material omissions, inadequacies and inconsistencies contained in Holtecs licensing application documents. 49 By its terms, Fasken Amended Contention 2 alleges deficiencies in Holtecs application and does not even mention the DEIS. 50 Likewise, the supporting declaration of Faskens geologist, Mr. Pollock, 51 repeatedly references Holtecs application, but does not mention or directly address the DEIS.
46 Private Fuel Storage (Independent Spent Fuel Storage Installation), LBP-99-43, 50 NRC 306, 313 (1999) (citing Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 17 NRC 1041, 1050 (1983)).
47 Amended Motion for Leave at 11.
48 Id.
49 Id. at 1 (emphasis added).
50 Id. at 10.
51 Id., Ex. 4 (Pollock Declaration). Although Mr. Pollocks declaration was neither executed under oath nor drafted strictly in compliance with 28 U.S.C. § 1746, absent objection the Board waived any technical deficiency and ruled Mr. Kanners offer to resubmit the declaration unnecessary. Tr. at 437.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 245 of 292 Elsewhere, Fasken challenges the accuracy of statements in Holtecs application documents and the most recent Holtec DEIS. 52 Throughout its supporting discussion, Fasken confirms that Amended Contention 2 is intended to challenge inconsistent statements in Holtecs application, 53 incorrect statements in Holtecs application documents, 54 inadequacies in [t]he Holtec application, 55 failures common to [b]oth Holtecs Environmental Report and the DEIS, 56 and deficiencies in Holtecs application. 57 But it is too late for Fasken to challenge anything in Holtecs application that could have been challenged in September 2018, unless the challenge is premised on materially new information. Repetition in the DEIS of information similar to that in Holtecs Environmental Report does not qualify. And, although Fasken makes general references to other newly disclosed and highly pertinent information, 58 neither Faskens motions nor its supporting affidavit and declarations tell us when Fasken first learned of any new information on which it relies.
The closest Fasken comes to dating any new information is to reference Ms. Richards June 19, 2019 letter, which Fasken claimed to supply new information sufficient to justify filing its original Contention 2 several weeks after this proceeding was closed. According to Fasken, Petitioners original Contention No. 2 was timely, and [a]s such, it is permissible to incorporate the arguments and facts relied on in Contention No. 2 to justify the timeliness of Amended Contention 2. 59 52 Amended Motion for Leave at 13 (emphasis added).
53 Id. at 18.
54 Id. at 19.
55 Id. at 25.
56 Id. at 26.
57 Id. at 28.
58 Id. at 1.
59 Amended Motion for Leave at 11 n.39.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 246 of 292 Unfortunately for Fasken, it failed to anticipate our ruling in LBP-20-06. In LBP-20-06, we ruled that Faskens original Contention 2 was not timely because the information in Ms.
Richards letter was available in Holtecs application materials long before Fasken moved for leave to file it. 60 Moreover, in addition to the facts on which we relied in LBP-20-06, Holtec points out that Faskens vice president, Mr. Taylor (who also submitted a declaration supporting Faskens motion for leave to file Amended Contention 2 61), wrote to the NRC nearly a year before Contention 2 was filed with the same information in Ms. Richards letter. 62 Faskens claims concerning the cumulative impact analysis in the DEIS exhibit a similar defect. Fasken states that the DEIS recently concluded that the project would have a small cumulative impact for geology and soils, which when combined with regional activities would result in an overall MODERATE cumulative impact. 63 This conclusion, according to Fasken, represents new and material information that is significantly different from the conclusion in Holtecs Environmental Report that the cumulative impacts of its proposed facility on geology and soils would be minimal. 64 Fasken does not show that the difference in language is material. On the contrary, Holtec and the NRC staff use minimal and small interchangeably. Nothing requires Holtec to use the same terminology as the NRC staff to describe potential environmental impacts. 65 In the DEIS, the NRC staff concluded that the small (i.e., minimal) incremental impact of 60 LBP-20-06, 91 NRC at __ (slip op. at 21).
61 Amended Motion for Leave, Ex. 1 (Declaration of Tommy Taylor) (May 11, 2020).
62 See Letter from Tommy E. Taylor, Fasken Oil and Gas Development Director, to Michael Layton, Division of Spent Fuel Management, NRC Office of Nuclear Material Safety and Safeguards (NMSS) at 2-3 (July 30, 2018) (ADAMS Accession No. ML18219A710).
63 Amended Motion for Leave at 12 & n.43 (citing DEIS at 5-10 to 5-11).
64 Id. (citing Holtec Internationals Environmental Report on the HI-STORE CIS Facility at 5-3 (rev. 6 May 2019) (ADAMS Accession No. ML19163A146) [hereinafter Environmental Report]).
65 See NMSS, NUREG-1748, Environmental Review Guidance for Licensing Actions Associated with NMSS Programs, Final Report at 4-14 (Aug. 2003) (ADAMS Accession No. ML032450279).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 247 of 292 Holtecs proposed facility on geology and soils, when added to the overall moderate impacts from all other past, present, and reasonably foreseeable actions within the region, does not change the overall moderate cumulative impacts determination for geology and soils. 66 In other words, the expected incremental impact of the proposed facility does not alter, in any way, the NRC staffs overall cumulative impacts determination for geology and soils within the region analyzed.
Moreover, it surely does not appear that any difference could be material to Fasken, which had the opportunity to challenge Holtecs characterization of minimal impacts in September 2018, but did not. Moreover, Fasken does not identify any new facts that are presented in, or support the conclusions in, the NRC staffs DEIS. The dispositive issue is not whether there are differences between Holtecs Environmental Report and the DEIS, but whether Fasken Amended Contention 2 is based on new facts not previously available. 67 Another example is Faskens claim that a six-mile radius for assessing the cumulative impacts on land use was applied for the first time in the Holtec DEIS. 68 However, Holtecs Environmental Report uses a six-mile radius to describe land uses surrounding its proposed facility 69 and a larger, 50-mile radius for its cumulative impact analysis. 70 The information on which the DEIS relies is merely a subset of the information in Holtecs Environmental Report.
Fasken identifies no regulation that prevents the NRC staff from using only some of the information in Holtecs Environmental Report. Nor has Fasken identified any new information, much less new information that is materially different.
66 DEIS at 5-11.
67 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 493 n.70 (2012) (emphasis in original).
68 Amended Motion for Leave at 13 & n.44 (citing DEIS at 5-17).
69 Environmental Report at 3-16.
70 Id. at 5-1.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 248 of 292 Likewise, Fasken fails to show that its claims concerning the DEISs description of oil and gas operations in the vicinity of the proposed facility are based on new or materially different information. The description in the DEIS of currently known operations is based on information cited in Holtecs Environmental Report, including information from a 2007 report by the Eddy-Lea Energy Alliance, LLC (ELEA). 71 Fasken does not demonstrate how any other source cited in the DEIS is inconsistent.
Fasken compares statements in the DEIS, indicating that oil and gas extraction will occur under the proposed facility at depths greater than 3,050 feet, to Holtecs statements indicating that these activities will occur at depths greater than 5,000 feet. 72 But Fasken does not demonstrate how this difference is material to the impacts analysis in the DEIS. And again, Fasken does not explain how the difference is material to Fasken. If Faskenwhich has been drilling and extracting oil in the region for over 80 years 73now asserts that petroleum activities might occur even closer to the surface than 3,050 feet, 74 why did it not timely challenge Holtecs initial representation they would occur no closer to the surface than 5,000 feet?
Mr. Pollocks supporting declaration is nearly identical to a declaration he submitted in August 2019 75setting forth information that obviously did not first come to light in the NRC staffs March 2020 DEIS. Two points have been added. First, Mr. Pollock now speculates that drilling at depths shallower than 3050 feet, beneath and surrounding Holtecs proposed site, is 71 Id. at 3-2 to 3-3.
72 Amended Motion for Leave at 17-18.
73 Id. at 2.
74 Id. at 18.
75 Compare Pollock Declaration with Initial Motion for Leave, Ex. 1 (Declaration of Stonnie Pollock) (July 30, 2019).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 249 of 292 a real possibility. 76 Second, Mr. Pollock now speculates that revisiting old wells, beneath and around Holtecs proposed site, is likewise a real possibility. 77 Mr. Pollock does not assert, however, that he was unaware of these possibilities before March 2020. Nor would it appear he could credibly do so. Mr. Pollock is Faskens senior geologist, and has worked for Fasken since 2003. 78 He recently served as president of the West Texas Geological Society. 79 He was described at oral argument by Faskens counsel with perhaps little or no hyperboleas being more knowledgeable about this area than any other human being. 80 Not surprisingly, Mr. Pollock does not claim newly acquired knowledge about drilling in the Permian Basin.
Nor, apart from a brief reference to the regions being historically known for surface subsidence 81 due to potash extraction, does Mr. Pollock explain the significance of oil or gas drilling at any particular depth. He certainly does not claim that drilling at any specific depth is potentially unsafe, or challenge Holtecs ultimate conclusion that drilling will not take place at depths that raise a subsidence issue.
Fasken does claim that the DEIS discusses for the very first time an active oil and gas well near the site that operates at a minimum level of production to maintain mineral rights. 82 But Holtec disclosed exactly that information in its Safety Analysis Report (SAR). SAR section 76 Pollock Declaration at 2.
77 Id. at 3.
78 Id. at 6.
79 Id.
80 Tr. at 437.
81 Pollock Declaration at 2.
82 Amended Motion for Leave at 18-19 (citing DEIS at 3-7).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 250 of 292
2.2.2 states
One active oil/gas well on the southwest portion of Section 13 operates at a minimum production to maintain mineral rights. 83 Simply put, Fasken never demonstrates that any information supporting Amended Contention 2 is materially new or, if new, when Fasken first became aware of it. Perhaps sensing the difficulty of arguing that its claims are not too late, at oral argument Fasken sought to invokeadmittedly for the first time84the Boards discretion under 10 C.F.R. § 2.326(a)(1) to consider an exceptionally grave issue even if untimely presented. 85 We decline to do so on multiple grounds. First, because we do not entertain arguments that are advanced for the first time in a reply brief, 86 we surely should not consider positions that are advanced for the first time at oral argument. Second, the exceptionally grave issue exception is a narrow one, to be granted rarely and only in truly exceptional circumstances. 87 As explained infra, Fasken fails to proffer an admissible contention, much less one that raises an exceptionally grave issue. Third, insofar as 10 C.F.R. § 2.326(a)(1) permits the Board to exercise discretion, we exercise it to deny Faskens request in the circumstances presented.
Despite Faskens demonstrated familiarity with drilling in the relevant region, it did not proffer a timely contention when petitions were due. Unlike several other petitioners, 88 Fasken 83 See Holtecs HI-STORE CIS Facility Safety Analysis Report at 2-44 (rev. 0F Jan. 2019)
(ADAMS Accession No. ML19052A379).
84 Tr. at 423.
85 Id. at 421-23.
86 See Nuclear Mgmt. Co. (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006).
Allowing new claims in a reply would defeat the contention-filing deadline and unfairly deprive other participants an opportunity to rebut the new claims. Exelon Generation Co. (Dresden Nuclear Power Station, Units 2 & 3), LBP-14-04, 79 NRC 319, 330 (2014) (It is well established in NRC proceedings that a reply cannot expand the scope of the arguments set forth in the original hearing request) (quoting Palisades, CLI-06-17, 63 NRC at 732).
87 See, e.g., Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-21, 76 NRC 491, 500-01 (2012).
88 See, e.g., Motion by [Joint Petitioners] to File a New Contention (Jan. 17, 2019); Sierra Clubs Motion to File New Late-Filed Contentions 27, 28, and 29 (Feb. 25, 2019); Sierra Clubs Motion to File a New Late-Filed Contention (Oct. 23, 2019).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 251 of 292 never sought to proffer new or amended contentions while this adjudication was pending.
When, after the proceeding had been terminated, Fasken for the first time proffered a contention concerning drilling, it declined to move to reopen the closed record. Now, having admittedly failed to make the argument in its pleadings, Fasken tries to invoke the exceptionally grave issue exception to excuse its lateness.
The Boards rejecting Faskens argument does not mean that the NRC staff will not independently consider safety issues as it completes its evaluation of Holtecs license application. The NRC staffs requests for additional information (RAIs) from Holtec, discussed infra, demonstrate that the staff is doing exactly that. But Fasken has not demonstrated that it is entitled to a separate evidentiary hearing on any of the issues it has raised.
For the foregoing reasons alone, we must deny Faskens motion to reopen the record.
Moreover, we conclude that Faskens motion also does not address a significant safety or environmental issue. As explained infra, in our discussion of contention admissibility, Fasken Amended Contention 2 does not raise a genuine dispute on any material issue of fact or law.
Thus, these same claims cannot possibly meet the higher standard of presenting a significant issue that must be adjudicated by reopening this closed proceeding.
Finally, Faskens motion to reopen the record also does not demonstrate that, if it were granted, a materially different result would be likely. Because Fasken Amended Contention 2 is not admissible, as explained infra, no materially different result would have occurred had it been considered initially.
V. MOTION FOR LEAVE TO FILE CONTENTION OUT OF TIME Even if we were to allow Fasken to reopen the record at this late date, we would necessarily deny its motion for leave to file Amended Contention 2 out of time in any event.
Faskens more recent motion fails for the same reasons that Faskens original motion to file Contention 2 failed to demonstrate good cause for filing out of time. Additionally, we conclude that Fasken Amended Contention 2 is not admissible.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 252 of 292 Again, we agree that Fasken Amended Contention 2 was timely submitted in the sense that it was filed within the timeframe prescribed by the Secretary for contentions challenging the DEIS. But the Secretarys extension did not alter Faskens obligation to show that Amended Contention 2 is based on new, previously unavailable information that differs materially from information that was previously available. For all the reasons addressed supra, Fasken makes no such showing.
VI. ADMISSIBILITY OF FASKEN AMENDED CONTENTION 2 Faskens failure to satisfy either the requirements for reopening a closed record or for proffering a contention out of time, without more, necessarily requires us to reject Fasken Amended Contention 2. 89 In addition, the contention does not satisfy the admissibility requirements in 10 C.F.R. § 2.309(f)(1). 90 Although the NRCs contention admissibility requirements are not intended to be a fortress to deny intervention, 91 nonetheless they are strict by design. 92 They result from the Commissions conscious effort to raise the threshold bar for an admissible contention. 93 Failure to satisfy any one of the NRCs pleading requirements requires a licensing board to reject a contention. 94 Rather than expend agency time and resources on litigating vague and unsupported claims, the Commission strengthened the contention admissibility requirements to 89 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-05, 69 NRC 115, 124 (2009).
90 10 C.F.R. § 2.309(f)(1)(i)-(vi).
91 Oconee, CLI-99-11, 49 NRC at 335.
92 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).
93 Oconee, CLI-99-11, 49 NRC at 334.
94 See Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-05, 83 NRC 131, 136 (2016).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 253 of 292 provide evidentiary hearings only to those who proffer at least some minimal factual and legal foundation in support of their contentions. 95 Therefore, although a petitioner need not prove its contention at this stage, mere notice pleading of proffered contentions is insufficient. 96 The NRC requires a petitioner to read the pertinent portions of the license application or amendment request, state the applicants or licensees position and the petitioners opposing view, and explain why it disagrees with the applicant or licensee. 97 Among other things, an admissible contention must (1) demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action involved in the proceeding; 98 and (2) provide sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. 99 This must include references to specific portions of the disputed document, as well as to the supporting reasons for each dispute. 100 Likewise, if a petitioner claims that a document fails to contain relevant information that is legally required, it must identify each such failure and the reason why the missing information is required. 101 The claims in Fasken Amended Contention 2 do not satisfy these requirements, often for reasons similar to those previously discussed in connection with their untimeliness.
95 Oconee, CLI-99-11, 49 NRC at 334.
96 Fansteel, Inc. (Muskogee, Okla. Site), CLI-03-13, 58 NRC 195, 203 (2003).
97 Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170-71 (Aug. 11, 1989).
98 10 C.F.R. § 2.309(f)(1)(iv).
99 Id. § 2.309(f)(1)(vi).
100 Id.
101 Id.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 254 of 292 First, Fasken claims that the difference in phrasing between Holtecs application and the DEIS creates a seriously distorted and materially different picture. 102 Fasken states that, while Holtecs Environmental Report asserted there would be minimal potential for any cumulative impact on geology and soils at the site, the DEIS concludes that Holtecs facility would have a small incremental impact that, when added to the MODERATE impacts from other past, present, and reasonably foreseeable future actions [would] result in an overall MODERATE cumulative impact. 103 Fasken claims this difference constitutes new and material information that is significantly different. 104 As explained supra, however, Fasken fails to show that any difference in terminology represents a material difference between Holtecs and the NRC staffs assessment of the expected incremental impact of the proposed facility on geology and soils.
Moreover, Fasken does not specify what aspect of the DEISs conclusions it disputes.
Simply pointing to a difference between Holtecs Environmental Report and the DEIS, without more, does not raise a genuine dispute on a material issue as required by 10 C.F.R.
§§ 2.309(f)(1)(iv) and (vi). A significant difference may give rise to an opportunity to proffer a new contention, but it does not relieve a petitioner of the burden to demonstrate that the contention satisfies the requirements of 10 C.F.R. § 2.309(f)(1).
Second, Fasken claims there are glaring omissions, inaccuracies, and inconsistencies in the DEIS regarding ownership of mineral rights under the site. 105 It asserts that these alleged misrepresentations implicate serious and important safety and environmental issues. 106 Specifically, Fasken claims that, contrary to statements in . . . the most recent Holtec DEIS, 102 Amended Motion for Leave at 12.
103 Id. (quoting DEIS at 5-11).
104 Id.
105 Id. at 7.
106 Id.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 255 of 292 Holtec does not own the mineral rights below the site and does not have the ability to control extraction activities adjacent to the site. 107 Fasken misreads the DEIS. In actuality, the DEIS acknowledges (as did Holtecs Environmental Report) that the State of New Mexico and the Bureau of Land Management (BLM) own the subsurface property rights within and surrounding the site of Holtecs proposed project. For example, section 3.2.1 of the DEIS states: The State of New Mexico owns subsurface property rights within the proposed [storage facility] project area, and BLM or the State of New Mexico owns subsurface property rights on privately-owned land surrounding the proposed [storage facility] project area (DEIS Figure 3.2-2). 108 Fasken therefore fails to raise a genuine dispute, as required by 10 C.F.R. § 2.309(f)(1)(vi).
Moreover, Fasken does not explain how ownership of subsurface mineral rights and control of subsurface activities would affect, much less contradict, the NRC staffs environmental analysis presented in the DEIS. Because Fasken does not show how these matters are material to the NRC staffs environmental review, its claims also fail to raise an issue that is material to the findings the NRC must make, as required by 10 C.F.R. § 2.309(f)(1)(iv).
Third, Fasken claims that using a radius greater than six miles to evaluate land use is necessary to truly evaluate cumulative impacts associated with Holtecs proposed facility. 109 The Commission instructs us, however, that contentions must identify a deficiency in the NRC staffs environmental analysis and may not merely offer suggestions of other ways the analysis 107 Id. at 13.
108 DEIS at 3-2; see also DEIS at 4-3, 4-4.
109 Amended Motion for Leave at 15-16.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 256 of 292 could have been done. 110 The National Environmental Policy Act (NEPA) gives agencies broad discretion to keep their inquiries within appropriate and manageable boundaries. 111 In this instance, the NRC staff applied the guidance in NUREG-1748 and determined that a six-mile radius is reasonable because of the small footprint, low profile, and passive nature of the project. 112 Although Fasken may favor an expanded analysis, it does not explain how the NRC staffs approach violates the requirements of NEPA. Fasken therefore fails to raise a genuine dispute, as required by 10 C.F.R. § 2.309(f)(1)(vi).
Fourth, Fasken claims that the DEIS contains misleading or inaccurate information on the scope of oil and gas operations in the region. 113 In support, Fasken describes the number and types of wells in the region. 114 Fasken does not, however, identify any statement in the DEIS that is inaccurate or misleading, or explain how any alleged inaccuracies might affect a material issue.
In further support of its claim that the description of drilling operations is inaccurate, Fasken states that the DEIS defies all logic when it bizarrely and unjustifiably relies on a 1978 study to reach conclusions about the depth of oil and gas production zones, given available advancements in drilling technologies. 115 However, Fasken does not explain why advancements in drilling technologies impact the 1978 studys conclusions about the depths of oil and gas deposits in the vicinity of the site. And Fasken simply ignores the fact that the DEIS did not base its conclusions solely on the 1978 study, but also relied on the 2007 ELEA study. 116 110 NextEra Energy Seabrook, LLC (Seabrook Station, Unit1), CLI-12-05, 75 NRC 301, 323 (2012).
111 La. Energy Servs, L.P. (Natl Enrichment Facility), CLI-98-03, 47 NRC 77, 103 (1998).
112 DEIS at 3-1.
113 Amended Motion for Leave at 15.
114 Id.
115 Id. at 16, 19.
116 DEIS at 4-4, 4-5 ([A]ll oil and gas production zones in the area of the proposed [consolidated interim storage facility] occur beneath the Salado Formation at depths greater than 914 m
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 257 of 292 Fasken must show some reason why resolution of the dispute would make a difference in the outcome of the licensing proceeding. 117 For example, as discussed supra, Faskens petroleum geologist, Mr. Pollock, asserts that recent technological advances make drilling at shallower depths and revisiting existing wells a real possibility. 118 But Fasken does not explain how the existence of wells at any depth is material to the NRC staffs assessment of environmental and cumulative impacts. Therefore, Fasken does not satisfy the requirements of 10 C.F.R. § 2.309(f)(1)(iv) and (vi).
Fifth, citing a March 26, 2020 5.0 magnitude earthquake that took place approximately 50 miles from Holtecs proposed facility, Fasken claims it is unclear if adequate consideration has been given to the risks of seismicity. 119 But Fasken does not specify whether it is challenging the NRC staffs NEPA assessment or Holtecs safety analysis. In any event, the DEIS discusses seismicity, and provides a history of earthquakes in the area of the proposed site. 120 And Holtecs SAR Section 2.6.2 contains an analysis for the 10,000-year return earthquake, including ground acceleration. Fasken does not acknowledge or address either of these discussions. Accordingly, Fasken fails to demonstrate a genuine dispute, as required by 10 C.F.R § 2.309(f(1)(vi).
Finally, as another basis for Amended Contention 2, Fasken points out that Holtec has not yet responded to various RAIs from the NRC staff concerning regional drilling activities,
[3,000 ft]. . . oil and gas exploration targets within and surrounding the proposed project area range from relatively shallow oil and gas at approximately 930 to 1,524 m [3,050 to 5,000 ft] in upper to middle Permian formations to deep gas targets in middle Paleozoic formations in excess of 4,877 m [16,000 ft] deep (ELEA, 2007)).
117 Final Rule, Rules of Practice of Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989). See also 10 C.F.R.
§ 2.309(f)(1) 118 Amended Motion for Leave at 18; see Pollock Declaration at 2-3.
119 Amended Motion for Leave at 27.
120 DEIS at 3.4.4.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 258 of 292 orphaned and abandoned wells, potash mining, and seismicity. 121 As the Commission instructs, however, [p]etitioners must do more than rest on the mere existence of RAIs as a basis for their contention. 122 This is because the issuance of RAIs alone does not establish deficiencies in the application or that the staff will find any applicant responses unsatisfactory. 123 Fasken claims that the DEIS allegedly relied on information that Holtec has yet to provide in response to outstanding RAIs and that the NRC staff cannot feasibly conduct an independent review and analysis without considering Holtecs RAI responses. 124 But Fasken does not identify any section of the DEIS that relies on information that may be provided by Holtecs responses to outstanding RAIs. Moreover, the NRC Staff represents that all pending RAIs cited by Fasken pertain to the staffs safety review. 125 With no showing of how the DEIS is deficient, Fasken fails to raise a genuine dispute, as required by 10 C.F.R. § 2.309(f)(1)(vi).
Fasken Amended Contention 2 is not admitted.
121 Amended Motion for Leave at 20.
122 PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2), CLI-15-08, 81 NRC 500, 506 n.47 (2015) (quoting Oconee, CLI-99-11, 49 NRC at 336).
123 Id.
124 Amended Motion for Leave at 21.
125 NRC Staff Answer at 22.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 259 of 292 VII. ORDER For the reasons stated:
A. Faskens motion to reopen the record is denied.
B. Faskens motion for leave to file its Amended Contention 2 is denied.
C. Fasken Amended Contention 2 is not admitted.
D. No contention having been admitted, and no proffered contention pending, this adjudicatory proceeding remains terminated.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Paul S. Ryerson, Chairman ADMINISTRATIVE JUDGE
/RA/
Nicholas G. Trikouros ADMINISTRATIVE JUDGE
/RA/
Dr. Gary S. Arnold ADMINISTRATIVE JUDGE Rockville, Maryland September 3, 2020
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 260 of 292 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
)
HOLTEC INTERNATIONAL ) Docket No. 72-1051-ISFSI
)
)
(HI-STORE Consolidated Interim Storage )
Facility) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Denying Motions to Reopen and for Leave to File) have been served upon the following persons by Electronic Information Exchange (EIE).
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16B33 Mail Stop: O-16B33 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop - O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 Paul S. Ryerson, Chair Sheldon Clark, Esq.
Administrative Judge Joseph I. Gillespie, Esq.
Esther Houseman, Esq.
Nicholas G. Trikouros Sara B. Kirkwood, Esq.
Administrative Judge Mauri Lemoncelli, Esq.
Patrick Moulding, Esq.
Dr. Gary S. Arnold Carrie Safford, Esq.
Administrative Judge Thomas Steinfeldt, Esq.
Rebecca Susko, Esq.
E-mail: paul.ryerson@nrc.gov Alana M. Wase, Esq.
nicholas.trikouros@nrc.gov Brian Newell, Senior Paralegal gary.arnold@nrc.gov Stacy Schumann, Paralegal E-mail: sheldon.clark@nrc.gov joe.gillespie@nrc.gov Ian Curry, Law Clerk esther.houseman@nrc.gov Stephanie Fishman, Law Clerk sara.kirkwood@nrc.gov Molly Mattison, Law Clerk mauri.lemoncelli@nrc.gov Taylor Mayhall, Law Clerk patrick.moulding@nrc.gov E-mail: ian.curry@nrc.gov carrie.safford@nrc.gov stephanie.fishman@nrc.gov thomas.steinfeldt@nrc.gov molly.mattison@nrc.gov rebecca.susko@nrc.gov taylor.mayhall@nrc.gov alana.wase@nrc.gov brian.newell@nrc.gov stacy.schumann@nrc.gov
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 261 of 292 Holtec International - Docket No. 72-1051-ISFSI MEMORANDUM AND ORDER (Denying Motions to Reopen and for Leave to File)
Counsel for Holtec International Counsel for Dont Waste Michigan Pillsbury Winthrop Shaw Pittman LLP 316 N. Michigan Street, Suite 520 1200 Seventeenth Street, NW Toledo, OH 43604-5627 Washington, DC 20036 Terry J. Lodge, Esq.
Meghan Hammond, Esq. E-mail: tjlodge50@yahoo.com Anne Leidich, Esq.
Michael Lepre, Esq. Counsel for Sierra Club Jay Silberg, Esq. 4403 1st Avenue SE, Suite 402 Timothy Walsh, Esq. Cedar Rapids, IA 52402 Sidney Fowler, Esq. Wallace L. Taylor, Esq.
E-mail: meghan.hammond@pillsburylaw.com E-mail: wtaylor784@aol.com anne.leidich@pillsburylaw.com michael.lepre@pillsburylaw.com Counsel for NAC International Inc.
jay.silberg@pillsburylaw.com Robert Helfrich, Esq.
timothy.walsh@pillsburylaw.com NAC International Inc.
sidney.fowler@pillsburylaw.com 3930 E Jones Bridge Rd., Ste. 200 Norcross, GA 30092 Counsel for Beyond Nuclear E-mail: rhelfrich@nacintl.com Harmon, Curran, Spielberg & Eisenberg LLP 1725 DeSales Street NW Hogan Lovells LLP Suite 500 555 13th Street NW Washington, DC 20036 Washington, DC 20004 Diane Curran, Esq. Sachin S. Desai, Esq.
E-mail: dcurran@harmoncurran.com Allison E. Hellreich, Esq.
E-mail: sachin.desai@hoganlovells.com Turner Environmental Law Clinic allison.hellreich@hoganlovells.com 1301 Clifton Road Atlanta, GA 30322 Counsel for Fasken Land and Oil and Permian Mindy Goldstein, Esq. Basin Land and Royalty Owners E-mail: magolds@emory.edu Monica R. Perales, Esq.
6101 Holiday Hill Road Counsel for Alliance Environmental Strategies Midland, TX 79707 Law Office of Nancy L. Simmons E-mail: monicap@forl.com 120 Girard Boulevard SE Albuquerque, NM 87106 Kanner & Whiteley, LLC 701 Camp Street Nancy L. Simmons, Esq. New Orleans, LA 70130 E-mail: nlsstaff@swcp.com Allan Kanner, Esq.
Elizabeth Petersen, Esq.
Cynthia St. Amant, Esq Eddy-Lea Energy Alliance Conlee Whiteley, Esq .
102 S. Canyon E-mail: a.kanner@kanner-law.com Carlsbad, NM 88220 e.petersen@kanner-law.com c.stamant@kanner-law.com John A. Heaton c.whiteley@kanner-law.com E-mail: jaheaton1@gmail.com 2
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 262 of 292 Holtec International - Docket No. 72-1051-ISFSI MEMORANDUM AND ORDER (Denying Motions to Reopen and for Leave to File)
Eddy County, NM* City of Hobbs, NM 101 W. Greene Street 2605 Lovington Highway Carlsbad, NM Hobbs, NM 88242 Rick Rudometkin Garry A. Buie E-mail: rrudometkin@co.eddy.nm.us E-mail: gabuie52@hotmail.com
- Eddy County not served due to no representative for the County assigned at the time of Mr. Rudometkins departure. City of Carlsbad, NM 1024 N. Edward Carlsbad, NM 88220 Lea County, NM 100 N. Main Jason G. Shirley Lovington, NM 88260 E-mail: jgshirley@cityofcarlsbadnm.com Jonathan B. Sena E-mail: jsena@leacounty.net Office of the Secretary of the Commission Dated at Rockville, Maryland, This 3rd day of September 2020 3
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 263 of 292 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Christopher T. Hanson, Chairman Jeff Baran Annie Caputo David A. Wright In the Matter of HOLTEC INTERNATIONAL Docket No. 72-1051-ISFSI (HI-STORE Consolidated Interim Storage Facility)
CLI-21-07 MEMORANDUM AND ORDER Today we address an appeal by Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners (together, Fasken) of the Atomic Safety and Licensing Boards decision denying Faskens motion to reopen the record and admit an amended contention.1 We also address Faskens motion to reopen the record and admit its proposed Contention 3.2 For the reasons described below, we deny both the appeal and the motion to reopen.
1 See Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Combined Notice of Appeal and Petition for Review of Atomic Safety Licensing Boards Denial of Motion for Leave to File Amended Contention and Motion to Reopen the Record (Sept. 28, 2020) (Fasken Appeal); Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Combined Reply to Oppositions to Their Notice of Appeal and Petition for Review of Atomic Safety Licensing Boards Denial of Motion for Leave to File Amended Contention and Motion to Reopen the Record (Nov. 3, 2020) (Fasken Reply); LBP-20-10, 92 NRC __ (Sept. 3, 2020) (slip op.). Fasken has also participated in this proceeding under the name Fasken Oil and Ranch; because both the parties and the Board have made no distinction between these entities, we refer to them simply as Fasken.
2 See Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Motion to Reopen the Record (Nov. 5, 2020) (Third Motion to Reopen); Fasken Land and Minerals Ltd.s
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 264 of 292 I. BACKGROUND Holtec International (Holtec) has applied for a license to build and operate a consolidated interim storage facility (CISF) in southeastern New Mexico.3 The proposed license would allow Holtec to store up to 8,680 metric tons of uranium (MTUs) (500 loaded canisters) in the Holtec HI-STORE CISF for a period of forty years.4 The Environmental Report analyzes the environmental impacts of possible future expansions of the project of up to 100,000 MTU storage capacity.5 A. Earlier Rulings At the outset of this proceeding, six different petitioners or groups of petitioners sought to intervene and requested a hearing. In May 2019, the Board denied the hearing requests and terminated the proceeding after concluding that the petitioners had not met our hearing and Permian Basin Land and Royalty Owners Motion for Leave to File New Contention No. 3 (Nov. 5, 2020) (Contention 3).
3 See Letter from Kimberly Manzione, Holtec International, to Michael Layton, NRC (Mar. 30, 2017) (enclosing application documents including safety analysis report and environmental report) (ADAMS accession no. ML17115A431 (package)). We note that the application has been revised several times since it was first submitted, and Fasken does not specify to which versions of the application it references. In this order we cite the current revisions, Environmental Report on the HI-STORE CIS Facility, rev. 8 (Aug. 2020) (ML20295A485) (ER);
and Licensing Report on the HI-STORE CIS Facility, rev. 0J (Sept. 15, 2020) (ML20295A428)
(SAR), unless otherwise noted. Because the sections and subsections where information is located stays the same across versions while page numbers change, we cite these documents by section number.
4 See Proposed License for Independent Storage of Spent Nuclear Fuel and High-Level Radioactive Waste SNM-1051, at 1 (ML17310A223) (Proposed License).
5 ER § 1.0.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 265 of 292 standards.6 In that ruling, the Board found that Fasken had demonstrated standing but its proposed contention was not admissible.7 Fasken appealed.8 On August 1, 2019while its appeal was pendingFasken filed a motion for leave to file a new contention, Contention 2, concerning the mineral rights to the site of the proposed facility.9 Fasken argued in Contention 2 that both the safety and environmental sections of Holtecs application included materially misleading and inaccurate statements suggesting that Holtec could control or restrict mineral development at the site.10 Fasken argued that a June 19, 2019, letter from New Mexico Public Lands Commissioner Stephanie Garcia Richard to Holtec shows that these statements are not true.11 Fasken further argued that because Holtec cannot restrict mineral development, it cannot satisfy the Part 72 siting evaluation factors, including the requirement to examine the frequency and severity of natural and anthropogenic events that could affect the facilitys safe operation.12 6 See LBP-19-4, 89 NRC 353, 358 (2019).
7 Id. at 366-67, 383-426.
8 Fasken and PBLRO Notice of Appeal and Petition for Review (June 3, 2019).
9 See Fasken Oil and Ranch and Permian Basin Land and Royalty Owners Motion for Leave to File a New Contention (Aug. 1, 2019) (Original Contention 2).
10 Original Contention 2 at 4-5 (citing SAR § 2.1.4, 2.6.4; ER §§ 2.4.2, 3.1.1, 8.1.3). Fasken did not include a motion to reopen the proceeding with its original Contention 2. Fasken later filed a motion to reopen on September 3, 2019, but withdrew it without explanation on September 12, 2019. Fasken Oil and Ranch and Permian Basin Land and Royalty Owners Motion for Leave to Reopen and Incorporate Contention Filed August 1, 2019 (Sept. 3, 2019); Fasken and PBLROs Withdrawal of Their Motion for Leave to Reopen and Incorporate Contention Filed August 1, 2019 (Sept. 12, 2019).
11 See Letter from Denise McGovern, NRC, to Stephanie Garcia Richard, New Mexico Commissioner of Public Lands (July 2, 2019), Attach., Letter from Stephanie Garcia Richard, New Mexico Commissioner of Public Lands, to Krishna P. Singh, Holtec International (June 19, 2019) (ML19183A429) (stating that New Mexico owns the mineral estate under Holtecs site and does not agree to limit mineral extraction).
12 Original Contention 2 at 6-10; see also 10 C.F.R. § 72.90(b).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 266 of 292 In April 2020, we affirmed the Boards ruling with respect to Faskens original hearing request, and we remanded Contention 2 to the Board.13 Shortly before the remand, in March 2020, the NRC Staff released its draft environmental impact statement (DEIS).14 In May 2020, Fasken moved to reopen the record and amend Contention 2 based on the DEIS.15 In June 2020, the Board issued LBP-20-6, which, among other rulings, dismissed Contention 2 as Fasken had originally submitted it.16 The Board found that Fasken did not meet the reopening standards in its original Contention 2 and, moreover, Fasken would not have been able to meet the less stringent requirements for filing a late contention even had the record been open when the contention was filed.17 Specifically, the Board found that the motion was not timely because the Environmental Report acknowledged that New Mexico owned mineral rights at the site.18 The Board also pointed to Holtecs response to a Staff request for additional information (RAI) available months before Fasken filed its new contention, which stated that 13 CLI-20-4, 91 NRC 167, 176, 210-11 (2020). In CLI-21-4, 93 NRC __ (Feb. 18, 2021) (slip op.), we affirmed the Board with respect to its rulings related to another petitioner, Sierra Club.
14 Environmental Impact Statement for the Holtec Internationals License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel and High Level Waste (Draft Report for Comment), NUREG-2237 (Mar. 2020) (ML20069G420) (DEIS).
15 Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Motion for Leave to File Amended Contention No. 2 (May 11, 2020) (Amended Contention 2); Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Motion to Reopen the Record (May 11, 2020) (Second Motion to Reopen); see also Order of the Secretary (Apr. 7, 2020) (unpublished)
(granting extension of time to file contentions based on the DEIS until May 11, 2020).
16 LBP-20-6, 91 NRC 239 (2020). Most of LBP-20-6 related to rulings on Sierra Clubs contentions.
17 Id. at 255-56.
18 Id.; see also Environmental Report on the Hi-Store CIS Facility, rev. 6 (Jan. 2019), § 3.1.2 at 3-2 (ML19163A146) (revision current when Fasken filed its original Contention 2).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 267 of 292 New Mexico held mineral rights to the site.19 The Board deferred ruling on the recently filed Amended Contention 2.20 B. LBP-20-10 In September 2020, the Board dismissed Amended Contention 2, in which Fasken argued that:
Holtecs application fails to adequately, accurately, completely and consistently describe the control of subsurface mineral rights and oil and gas and mineral extraction operations beneath and in the vicinity of the proposed Holtec CISF site, which precludes a proper analysis under NEPA and further nullifies Holtecs ability to satisfy NRCs siting evaluation factors now and anticipated in the future and is in further violation of NRC regulations.21 Fasken argued that the DEIS relies on insufficient data, omits material information, reaches improper conclusions, and misrepresents the extent to which Holtec can control or limit mineral development on the site.22 Fasken further argued that outstanding RAIs concerning oil and gas production, potash mining, subsidence, sinkholes, and seismicity near the site warranted suspension of the license review until Holtec provided its response.23 The Board found that Amended Contention 2 was not timely and therefore did not meet the reopening standards. In addition, it held that, even had Fasken met the reopening standards, Amended Contention 2 was inadmissible because Fasken did not show that there 19 LBP-20-6, 91 NRC at 256; see also Letter from Kimberly Manzione, Holtec International, to Jill Caverly, NRC (Mar. 15, 2019), Attach. 9, Potash Mining Lease Partial Relinquishment Agreement (Dec. 6, 2016) (ML19081A083).
20 LBP-20-6, 91 NRC at 256.
21 Amended Contention 2 at 10-11; see LBP-20-10, 92 NRC at __ (slip op. at 24). Fasken states that it does not challenge LBP-20-6. See Fasken Appeal at 5.
22 Amended Contention 2 at 13-14.
23 Id. at 20-28.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 268 of 292 was a genuine dispute over an issue material to the findings that the NRC must make in considering the application.24 In its appeal, Fasken argues that it either met the reopening standards, or in the alternative, the reopening standards should be waived because Fasken raises an exceptionally grave issue.25 Fasken also claims that the Board erred in fact and law and abused its discretion. The NRC Staff and Holtec oppose the appeal.26 C. Third Motion to Reopen and Contention 3 Fasken filed its third motion to reopen on November 5, 2020, while its appeal of LBP-20-10 was pending. Fasken argues that new and materially different information has come to light in the form of recently submitted public comments on the DEIS from oil and gas developers, New Mexico Public Lands Commissioner Richard, and other entities concerning the effect of the project on mineral development in the vicinity of the CISF.27 Among the commenters is XTO Energy, Inc., which asserts that it holds an oil and gas lease from New Mexico for 2,120.6 acres of land, including the proposed site, and that Holtecs proposed project would interfere with XTOs contractual rights to use the surface to develop minerals at the site.28 24 LBP-20-10, 92 NRC at __ (slip op. at 18-20) (citing 10 C.F.R. § 2.309(f)(1)(iv), (vi)).
25 See Fasken Appeal at 25-27.
26 NRC Staffs Answer in Opposition to Fasken Oil and Ranch, Ltd.s and Permian Basin Land and Royalty Owners Petition for Review of LBP-20-10 (Oct. 23, 2020); Holtec Internationals Answer in Opposition to Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Appeal of LBP-20-10 (Oct. 26, 2020) (Holtec Answer).
27 See Contention 3 at 1-2, Ex. 1 at 19-23 (Exhibit 1 consists of several documents including Letter from David R. Scott, XTO Energy, Inc. to Office of Nuclear Material Safety and Safeguards, NRC (Sept. 22, 2020) (ML20268C261) (XTO Comments on DEIS)). The Staff publicly released the comments on October 4, 2020, thirty-one days prior to Faskens motion.
28 Contention 3, Ex. 1, XTO Comments on DEIS at 2. See also e-mail from Deanna Archuleta, XTO Energy, Inc. to Holtec-CISFEIS Resource, NRC, Attach., Oil and Gas Lease (May 10, 1951) (Oil and Gas Lease).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 269 of 292 Fasken also claims that the RAI responses referenced in Amended Contention 2, which were publicly released in October 2020, contain new information supporting Contention 3.29 II. DISCUSSION A. Reopening Standards A motion to reopen the record to admit a new contention must satisfy both the standards of 10 C.F.R. § 2.326 relating to motions to reopen and the standards of 10 C.F.R. § 2.309(c) for admitting new contentions filed after the deadline stated in the notice of opportunity to request a hearing.30 The reopening standard provides that a new contention must be timely, but the standard for admitting new contentions after the deadline is more specific and requires that the contentions proponent establish good cause for why the contention was not raised at the outset of the proceeding. Section 2.309(c) provides that good cause requires that a new contention must be based on information that was not previously available, which is materially different from previously available information, and that the contention is timely based on when the new, materially different information became available.31 With respect to environmental contentions, our regulations specify that participants shall file [environmental] contentions based on the applicants environmental report and that new or amended environmental contentions may be filed on a DEIS where that document contains information that is materially different from information previously available.32 29 See Letter from Kimberly Manzione, Holtec International, to Jose Cuadrado, NRC (Sept. 16, 2020) (ML20260H139 (package)) (RAI Part 5, Response Set 2) (public release date Oct. 21, 2020).
30 See 10 C.F.R. § 2.326(d), see also Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-11-2, 73 NRC 333, 338 (2011) (citing AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 668 (2008)).
31 See 10 C.F.R. § 2.309(c).
32 See id. § 2.309(f)(2).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 270 of 292 When determining whether a new contention is timely for the purposes of reopening a record, we look to whether the contention could have been raised earlierthat is, whether the information on which it is based was previously available or whether it is materially different from what was previously available, and whether it has been submitted in a timely fashion based on the information's availability.33 To be admitted for hearing, a proposed contention must set forth with particularity the matters to be raised, be within the scope of the hearing, be material to the findings the agency must make in taking the requested action, be factually supported, and show that a genuine dispute exists with the application.34 We generally defer to a board as to whether a contention has sufficient factual support to be admitted for hearing and review contention admissibility rulings only where an appeal points to an error of law or abuse of discretion.35 B. Appeal of LBP-20-10
- 1. Motion to Reopen
- a. Timeliness of Motion In remanding Contention 2, we directed the Board to consider whether the reopening standards were met.36 Fasken argues that its motion to reopen was timely, or, in the alternative, that it raised exceptionally grave environmental and safety issues.37 In Amended Contention 2, Fasken argued that it had good cause for late filing because the data relied on and conclusions drawn in the DEIS differed from that in the Environmental 33 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-21, 76 NRC 491, 498 (2012).
34 See 10 C.F.R. § 2.309(f)(1)(i)-(vi).
35 See CLI-20-4, 91 NRC at 173; Crow Butte Resources, Inc. (Marsland Expansion Area),
CLI-20-1, 91 NRC 79, 85 (2020).
36 See CLI-20-4, 91 NRC at 211.
37 Fasken also argues that its motion to reopen was accompanied by an appropriate affidavit, as required by regulation. See Fasken Appeal at 26-27; 10 C.F.R. § 2.326(b). But the Board, while expressing skepticism whether the affidavit executed by Faskens lawyer accompanying
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 271 of 292 Report.38 Specifically, Fasken claimed that whereas the Environmental Report stated that the proposed CISF would have minimal potential for cumulative impacts to geology and soils, the DEIS found a small cumulative impact to geology and soils and that the project would have a moderate cumulative impact to the environment.39 Fasken further argued that the DEIS inaccurately states that any oil and gas production near the site would be 3,050 feet deep or deeper.40 Fasken pointed out that this statement contradicts Holtecs Safety Analysis Report, which stated that drilling would occur at depths greater than 5,000 feet, and the Environmental Report, which Fasken characterizes as representing that Holtec could prevent any mineral extraction under the site.41 The Board found that Amended Contention 2 and the associated motion to reopen were not timely. To the extent Amended Contention 2 challenged the DEISs description of the ownership and control of mineral rights, mineral development, and geology, the Board held that the contention was not based on new information.42 The Board pointed out that the contention claimed material omissions, inadequacies and inconsistencies contained in Holtecs licensing application documents and thus by its own terms claimed deficiencies in the application, rather its motion met the requirements, did not rest its reopening ruling on the absence of an adequate affidavit. See LBP-20-10, 92 NRC __ (slip op. at 7-8). We therefore need not consider whether Faskens affidavit was sufficient to support a motion to reopen.
38 Amended Contention 2 at 4-5; see also Fasken Appeal at 6, 11.
39 Amended Contention 2 at 12; see ER § 5.2.1; DEIS at 5-10 to 5-11.
40 Amended Contention 2 at 14-15, Ex. 4, Amended Declaration of Stonnie Pollock (May 11, 2020), at 2 (Pollock Declaration).
41 Id. at 17; see SAR § 2.6.4; ER § 2.4.2 (By agreement with the applicable third parties, the oil drilling and phosphate extraction activities have been proscribed at and around the site and would not affect the activities at the site.).
42 LBP-20-10, 92 NRC at __ (slip op. at 8-15).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 272 of 292 than in the DEIS.43 The Board observed that the closest Fasken comes to providing new information was its reference to Commissioner Richards June 19, 2019, letter concerning New Mexicos ownership of the mineral rights.44 But the Board concluded that Commissioner Richards letter did not provide new information and pointed to a letter that Faskens vice president had sent to the NRC on the same subject nearly a year before it filed its original Contention 2.45 To the extent that Amended Contention 2 challenged the DEISs analysis of cumulative impacts to geology and soils, the Board held that the Staffs cumulative impacts determination did not constitute new information relating to the issues the contention raised.46 The cumulative impacts analysis concluded that the proposed project would have a small incremental effect on geology and soils, which when added to the impact from other past, present, and reasonably foreseeable future activities, would result in a moderate impact.47 The Board observed that the DEISs estimate of the CISFs incremental impact to geology and soils was the same as Holtecs evaluation in the Environmental Reportthat is, that the impact would be minimal, or small.48 Fasken could have challenged the Environmental Reports conclusion that the CISFs 43 Id. at __ (slip op. at 9).
44 Id. at __ (slip op. at 10).
45 Id. at __ (slip op. at 10-11).
46 Id. at __ (slip op. at 11-12).
47 DEIS § 5.4. The DEIS explains that cumulative effects . . . can result from individually minor but collectively significant actions taking place over a period of time. DEIS at 5-1. The DEIS considers potash mining, oil and gas production, other nuclear facilities, wind and solar farms, and other facilities in its cumulative impact analysis. Id. at 5-2 to 5-2.
48 LBP-20-10, 92 NRC at __ (slip op. at 11-12). The Board found no material difference between Holtecs use of the term minimal and the Staffs term small in the characterization of the projects impact to geology and soils. Id.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 273 of 292 impact to geology and soils would be minimal, but it did not.49 Therefore, the Board found that the DEIS conclusion regarding cumulative effects made no material difference to Faskens contention.50 Faskens appeal points to no Board error in its finding that the motion to reopen and amended contention were untimely. First, we are not persuaded by Faskens argument that it established good cause under an alternative test articulated in a 2010 Board decision, Calvert Cliffs 3.51 Fasken argues that Calvert Cliffs 3 holds that either new data or new conclusions in the DEIS would constitute materially different information justifying raising a new contention and the Holtec DEIS did both.52 However, the Calvert Cliffs 3 Board did not establish a new timeliness test; it was simply quoting the language in the regulation at that time.53 The relevant language was revised in 2012 to clarify that good cause is the sole factor to be considered when evaluating whether to review the admissibility of a new or amended contention54 and that the three factors now found in 2.309(c) are the standard for establishing good cause.55 In the statements of consideration for the 2012 final rule, the Commission noted that the similarities 49 Id. at __ (slip op. at 12).
50 Id.
51 Calvert Cliffs 3 Nuclear Project, LLC and Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), LBP-10-24, 72 NRC 720, 729-30 (2010).
52 Fasken Appeal at 11-12, 17-19.
53 See Changes to Adjudicatory Process, Final Rule, 69 Fed. Reg. 2182, 2240 (Jan. 14, 2004).
We observe that as an unreviewed Board decision, Calvert Cliffs 3 would not constitute binding precedent on other boards. See Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-13-9, 78 NRC 551, 558 (2013); Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 343 n.3 (1998).
54 Amendments to Adjudicatory Process Rules and Related Requirements, Proposed Rule, 76 Fed. Reg.10,781, 10,783 (Feb. 28, 2011).
55 See Amendments to Adjudicatory Process Rules and Related Requirements, Final Rule, 77 Fed. Reg. 46,562, 46,572 (Aug. 3, 2012).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 274 of 292 between former § 2.309(c)(1) and 2.309(f)(2) had resulted in doctrinal confusion concerning the proper way to evaluate pleadings filed out of time.56 The 2012 final rule resolved the ambiguity and eliminated any alternative approaches to evaluating new or amended environmental contentions filed after the initial deadline.57 On appeal, Fasken reiterates its timeliness claims without confronting the Boards rulings. For example, Fasken argues that the DEIS used a six-mile radius around the site to discuss cumulative impacts rather than the fifty-mile radius used in the application and that it could not have anticipated that the Staff would limit the area in which impacts are discussed before the DEIS was released.58 The Board found, however, that the application used a six-mile radius to discuss land use around the site and a larger fifty-mile radius in its cumulative impacts analysis.59 The Board found that the DEIS therefore used a subset of information already provided, and it found that Fasken identified no new information related to cumulative impacts.60 On appeal, Fasken does not challenge the Boards explanation and accordingly does not demonstrate that the Board erred. We therefore defer to the Boards finding.
Further, Fasken insists that its underlying briefs supporting Amended Contention 2 . . .
identify with particularity material differences in both information reliance and conclusions drawn when compared with Holtecs [Environmental Report], [Safety Evaluation Report] and/or outstanding RAI responses.61 But aside from generally pointing to its filings before the Board, 56 Id. at 46,571.
57 Id.
58 Fasken Appeal at 6, 17, 19, 26.
59 See LBP-20-10, 92 NRC at __ (slip op. at 12).
60 Id.
61 Fasken Appeal at 15.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 275 of 292 Fasken does not explain what these specific disputes are, how the Board erred in addressing its arguments or whether it claims that the Board failed to respond to them, or why these disputes could not have been raised earlier.62
- b. Exceptionally Grave Issue We are not persuaded by Faskens argument that it raised an exceptionally grave issue with the application, which would warrant waiving the timeliness requirement.63 Fasken first raised this claim during oral argument, apparently in response to the Boards question in a pre-hearing order.64 The Board denied Faskens argument and found that the contention was not admissible.65 On appeal, Fasken asserts that its contention comprises exceptionally grave issues of national economics and security, regional employment, sinkholes[,] subsidence, and seismicity.66 But Fasken does not explain how the facility could have an exceptionally grave impact on national economics, national security, or regional employment. In addition, it does not point to any information in its contention concerning sinkholes, subsidence, or seismicity that is materially different from information already considered by the Staff in the DEIS.67 Whether to waive the timeliness requirement for an exceptionally grave issue is up to the discretion of the Presiding Officer.68 We have cautioned that this exception is a narrow one, to 62 See id. at 15 & n.59.
63 See 10 C.F.R. § 2.326(a)(1).
64 See Tr. at 423 (Mr. Kanner); see also Order (Concerning Oral Argument) (Jul. 20, 2020), at 2 (unpublished).
65 LBP-20-10, 92 NRC at __ (slip op. at 15).
66 See Fasken Appeal at 27-28.
67 See Pilgrim, CLI-12-21, 76 NRC at 501.
68 See 10 C.F.R. § 2.326(a)(1).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 276 of 292 be granted rarely and only in truly extraordinary circumstances.69 In our view, the Boards decision was reasonable and not an abuse of discretion.
- 2. Admissibility of Amended Contention 2 We further find that Fasken has not shown that the Board erred in ruling that Amended Contention 2 was not admissible. Exhibit 2 to Faskens motion to admit Amended Contention 2 is a list of Facts Petitioners Intend to Rely On to Support New and Amended Contentions, which included cites and excerpts from the DEIS, Holtecs Safety Analysis Report and Environmental Report, and from several outstanding RAIs.70 But this list did not include an explanation of whether Fasken was contesting the accuracy of the excerpted information or relying on the information to support its contention. Fasken also attached the declaration of a petroleum geologist, Stonnie Pollock, who provided his opinion on the potential for mineral extraction within the vicinity of the site, the possibility that oil and gas could occur at depths shallower than 3,050 below the surface, and the dangers of improperly plugged and abandoned wells.71 The Board concluded that Amended Contention 2 was inadmissible for lack of a genuine dispute over an issue material to the findings that the NRC must make in considering the application.72 The Board found that Fasken did not specify which of the Staffs conclusions in the DEIS that it disputed, did not identify any misleading statement in the DEIS, and did not 69 Pilgrim, CLI-12-21, 76 NRC at 501 n.67 (quoting Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535, 19,536 (May 30, 1986)).
70 See Amended Contention 2, Ex. 2, Facts Petitioners Intend to Rely On to Support New and Amended Contentions (May 11, 2020).
71 See Pollock Declaration.
72 LBP-20-10, 92 NRC at __ (slip op. at 18-20) (citing 10 C.F.R. § 2.309(f)(1)(iv), (vi)).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 277 of 292 explain how alleged inaccuracies might affect a material issue.73 With respect to Faskens claim that the DEIS misstates the mineral ownership under the site, the Board found that the DEIS acknowledges that the State of New Mexico and the Bureau of Land Management own the mineral rights beneath and surrounding the site.74 With respect to its claim that oil and gas could be extracted from a shallower depth than stated in the DEIS, the Board found that Faskens expert did not explain how the existence of wells at any depth is material to the NRC Staffs assessment of environmental and cumulative impacts.75 The Board also denied Faskens arguments that the DEIS was necessarily deficient because there were several RAIs still outstanding that related to regional drilling activities, orphaned and abandoned wells, potash mining, and seismicity.76 The Board found that the outstanding RAIs pertained to the safety review, rather than the environmental review, and none of the conclusions in the DEIS was based on information that Holtec had not yet provided.77 The Board found that petitioners must do more than rest on the mere existence of RAIs as the basis for their contention.78 We are not persuaded by Faskens claim on appeal that Amended Contention 2 raised a genuine dispute of material fact. First, Fasken argues that its Amended Contention 2 disputed 73 Id. at __ (slip op. at 19-21).
74 Id. at __ (slip op. at 20) (citing DEIS § 3.2.1 and DEIS Figure 3.2-2).
75 Id. at __ (slip op. at 22).
76 Id. at __ (slip op. at 23).
77 Id. (citing NRC Staff Answer in Opposition to Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Motions to Amend Contention 2 and Reopen the Record (June 4, 2020), at 22).
78 Id. (citing PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 and 2),
CLI-15-8, 81 NRC 500, 506 n.47 (2015); Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 336 (1999)).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 278 of 292 the DEISs supposed reliance on a proposed but not-yet-accepted land use restriction of condition at the Holtec site.79 Although Fasken made such an argument in Amended Contention 2, neither Faskens appeal nor the contention cites to where the DEIS relied on such an agreement. On the contrary, the DEIS acknowledged at several pointsincluding in the sections cited in Faskens Exhibit 2that continued mineral development was possible near and even underneath the site.80 Fasken asserts that it raised multiple genuine disputes of material facts, while citing generally to its motion, supporting exhibits, and reply brief.81 This argument is not sufficient to show Board error. The Board explained why it found that none of Faskens assertions raised a material dispute and Fasken has not shown with specificity where the Board erred.
- 3. Whether the Board Abused its Discretion Fasken makes two claims that the Board abused its discretion and made prejudicial procedural errors regarding Amended Contention 2.
First, Fasken argues that the Board abused its discretion and made a prejudicial procedural error when it declined to hear testimony from Faskens expert during oral argument on Faskens motions to reopen and admit Amended Contention 2.82 Faskens expert affiant, Stonnie Pollack, was present online during oral argument, but the Board declined to hear 79 Fasken Appeal at 20 n.65 (citing Amended Contention 2 at 14).
80 See, e.g., DEIS § 3.2.4, Mineral Extraction Activities; § 4.2.1.1 at 4-4 to 4-5 (All oil and gas production zones in the area of the proposed CISF occur beneath the Salado Formation at depths greater than 914m [3,000 ft] . . . Future oil and gas development (e.g., drilling and fracking) beneath the proposed project area will likely continue to occur at depths greater than 930 m [3,050 ft.].).
81 Fasken Appeal at 21.
82 See id. at 23-24, Fasken Reply at 3-5.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 279 of 292 testimony from him.83 The Boards order scheduling oral argument stated that the argument was intended to address legal and procedural aspects of Faskens motions and was not an evidentiary hearing.84 Accordingly, the Board only allowed attorneys representing the parties to speak.
As we have held previously, oral argument is an opportunity for the Board to ensure it understands the participants legal positions, and participants do not have a right to oral argument on contention admissibility.85 Fasken does not claim that either Holtec or the Staff were allowed to present expert evidence during oral argument or that the Board treated it differently from the other participants. We therefore find that the Board did not abuse its discretion by declining to hear testimony from Mr. Pollack at oral argument.
Fasken next argues that the Board prejudiced Fasken by allowing Holtec to update its Environmental Report after the issuance of the DEIS.86 We are not persuaded by this claim. As an initial matter, this argument is new on appeal and we could reject it on that ground alone.87 But more substantively, Fasken does not cite any regulation or case law that holds that it is improper for the applicant to update the Environmental Report after the DEIS is released.88 In addition, the Board has no control over whether or when an applicant updates its application. The Staff, rather than the Board, determines whether an application is accepted for 83 See Tr. 456-57.
84 See Order (Concerning Oral Argument) (July 20, 2020) (unpublished); see also Order (Scheduling Oral Argument) (June 25, 2020) (unpublished).
85 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-08-7, 67 NRC 187, 191 (2008).
86 Fasken Appeal at 24-25.
87 See, e.g., USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006).
88 See Holtec Answer at 22-23.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 280 of 292 review, and the Board does not supervise the Staffs review.89 And updating and revising an application is a normal part of our dynamic licensing process.90 For these reasons, we disagree with Faskens argument that the Board abused its discretion by allowing Holtec to update its application.
For the foregoing reasons, we deny Faskens appeal of LBP-20-10.
C. Contention 3 After the Board dismissed the last pending contention in LBP-20-10, jurisdiction over this matter, including jurisdiction over Faskens third motion to reopen, passed to the Commission.91 Although we often refer motions to reopen to the Board we will rule on them where appropriate.92 Due to the similarity between Contention 3 and its corresponding motion to reopen and the motions and contentions currently before us on appeal, we find that a referral here is unnecessary.
In proposed Contention 3, Fasken makes three claims. Its principal argument in Contention 3, as in Contention 2 and Amended Contention 2, is that the project will interfere with mineral development and that mineral development cannot proceed safely alongside the CISF. Fasken also claims in Contention 3 that the Staff did not independently investigate information in the application to verify its reliability before including it in the DEIS. Finally, 89 Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-6, 59 NRC 62, 74 (2004).
90 The Commission follows a dynamic licensing process that allows an application to be modified or improved as the Staff goes forward. See Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 349-50 (1998); The Curators of the University of Missouri (TRUMP-S Project), CLI-95-8, 41 NRC 386, 395 (1995).
91 See Virginia Electric and Power Co. (North Anna Power Station, Unit 3), CLI-12-14, 75 NRC 692, 701 (2012).
92 See, e.g., Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),
CLI-06-3, 63 NRC 19, 23-24 (2006).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 281 of 292 Fasken claims that the Staff did not adequately consult with and include the viewpoints of State and local governments, industry, and communities. Specifically, proposed Contention 3 states:
The Holtec DEIS, [Environmental Report,] and [Safety Analysis Report] inappropriately rely on misleading and speculative information and assertions and glaring material omissions as to land use, land rights and land restrictions at, under and around the proposed site; lack any independent investigation and analysis by the NRC, which preclude[s] proper assessments under NEPA and NRC regulations, including but not limited to siting evaluation factors presently and in the foreseeable future; and fail to incorporate the major opposing viewpoints of State and local agencies and communities, contrary to the principles of consent-based siting.93 Fasken argues that these claims are supported by new information that only came to light in the public comments on the DEIS, which were published on October 5, 2020, and in Holtecs RAI responses that were released October 21, 2020.94 The Staff and Holtec oppose the motion to reopen.95 93 Contention 3 at 15. The contention and motion to reopen was accompanied by the affidavit and declaration of Tommy E. Taylor, a petroleum engineer who is the Assistant General Manager of Fasken Oil and Ranch, Ltd. and Senior Vice President of Fasken Management, LLC. See Contention 3, Ex. 3, Affidavit and Declaration of Tommy E. Taylor (Nov. 5, 2020), at 1-2 (Taylor Affidavit). We deny the motion because it is untimely and does not raise a significant environmental issue, and therefore we do not consider whether the affidavit met the reopening standards.
94 Id. at 2-6.
95 NRC Staffs Answer in Opposition to Fasken Oil and Ranch, Ltd. and Permian Basin Land and Royalty Owners Motions to Reopen the Record and File New Contention 3 (Nov. 30, 2020)
(Staff Answer to Contention 3); Holtec Internationals Answer Opposing Fasken Land and Minerals, Ltds and Permian Basin Land and Royalty Owners Motion to Reopen the Record and Motion for Leave to File New Contention No. 3 (Nov. 30, 2020) (Holtec Answer to Contention 3).
Fasken filed a reply to the Staffs and Holtecs Answers. Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Combined Reply to NRC Staffs and Holtec Internationals Oppositions to Motions for Leave to File New Contention No. 3 and Motion to Reopen the Record (Dec. 7, 2020). However, our rules do not allow for a reply except where expressly permitted by the Secretary or presiding officer, and we do not consider Faskens reply further. See 10 C.F.R. § 2.323(c).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 282 of 292 We find that these claims are untimely because Fasken does not point to information in the public comments or RAI responses that is materially different from previously available information. We further find that Contention 3 does not raise a significant environmental issue that would make a material difference in this proceeding.
- 1. Timeliness of Mineral Rights and Development Claims Faskens claims in Contention 3 about mineral rights and mineral development are not based on or supported by any previously unavailable information that is materially different from information available in the application and DEIS. As the Board held with respect to Amended Contention 2, the DEIS acknowledges that New Mexico owns the mineral rights under the site and the DEIS accounts for the effects of future development. In fact, the Environmental Report has acknowledged New Mexicos ownership of the mineral rights since its first iteration in March 2017.96 Holtecs first Environmental Report also stated that [f]urther oil and gas development is not allowed by the New Mexico Oil Conservation Division due to the presence of potash ore on the [s]ite.97 Holtec clarified this statement in the fifth revision of its Environmental Report in March 2019 to state that the site is within the Secretary of the Interiors Designated Potash Area, which precludes drilling through the potash deposits to reach underlying oil and gas deposits.98 The time for Fasken to dispute these specific assertions in the application or the 96 See Environmental Report on the HI-STORE CIS Facility, rev. 0 (Mar. 2017), § 3.1.2 (ML17139C535).
97 Id.
98 Environmental Report on the HI-STORE CIS Facility, rev. 5 (Mar. 2019), § 3.1.1 (ML19095B800). Because drilling for oil and gas through potash deposits is harmful to the potash and dangerous to miners, the Secretary of the Interior has established by order drill islands which enable oil and gas developers to drill around the potash deposits within the designated area. See Department of the Interior, Oil, Gas, and Potash Leasing and Development Within the Designated Potash Area of Eddy and Lea Counties, NM, 77 Fed. Reg.
71,814 (Dec. 4, 2012). Section 8 of the order provides the legal description of the Designated Potash Area, which includes public and non-public lands.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 283 of 292 DEISsuch as the effect of the sites location within the Designated Potash Areawas when those assertions were made.
The public comments on which Fasken relies also provide no materially different information to support Contention 3 than information previously available. Fasken points to XTOs comments that XTO has the right to use as much of the surface of the site as is reasonably necessary to produce its minerals because, under New Mexico law, the surface estate is subordinate to the mineral estate.99 Fasken argues that it did not know XTOs identity, the terms of its lease, or its intent in terms of oil and gas development around the property before it saw XTOs public comment.100 But as XTOs comments show, and Faskens own pleadings acknowledge, the right of subsurface-estate leaseholders to use the surface estate is not new information, it is a general principle of New Mexico oil and gas law.101 Further, as Commissioner Richards comments indicate, the terms of New Mexico Land Office leases are established by statute.102 The principles of New Mexico oil and gas law are not new information, 99 See Contention 3, Ex. 1, XTO Comments on DEIS at 3 (citing McNeill v. Burlington Res. Oil &
Gas Co., 143 N.M. 740, 748 (N.M. 2008)). Under the terms of XTOs lease from New Mexico, a copy of which was attached to its comments, XTO may use the surface for pipelines, telephone and telegraph lines, tanks, power houses, stations, gasoline plants, and fixtures for producing, treating, and caring for [oil and gas], and housing and boarding employees. XTO Comments on DEIS at 3 (quoting Oil and Gas Lease at 1 (unnumbered)).
100 See Contention 3 at 8. We note that Fasken also does not show why it could not have discovered XTOs identity before the public comments were released, given that the names of leaseholders of New Mexico minerals is public information.
101 See, e.g., Contention 3 at 22; Taylor Affidavit at 4; Contention 3, Ex. 1, XTO Comments on DEIS at 3; see also Contention 3, Ex. 4 (Nov. 5, 2020). Exhibit 4 consists of public comments on the DEIS and includes letters from the New Mexico State Legislature, the New Mexico Department of Homeland Security and Emergency Management, the New Mexico Environment Department, New Mexico Governor Michelle Lujan Grisham, Commissioner Richard of the New Mexico Department of Public Lands, and COG Operating LLC, which operates an oil well on the site.
102 See Contention 3, Ex. 4, Commissioner Richards Comments at 4.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 284 of 292 and Fasken does not claim that there is anything unusual in the terms of XTOs lease that was not available to Fasken prior to seeing XTOs comments.103 Public comments arguing that there are no legal impediments to shallow drilling do not constitute new information that is materially different from information previously available. Both XTO and Commissioner Richard argued that the DEIS relies on supposed depth restrictions that would prevent oil and gas extraction from shallower than 930 meters (3,050 feet).104 These comments mischaracterize the DEIS, which does not rely on legal or contractual depth restrictions for its conclusion that oil and gas development will only occur, if at all, thousands of feet beneath the surface.105 And even if the DEIS had made such a statement, the time for Fasken to challenge it would have been when the DEIS was released, not after other entities identified it in public comments.
We are also not persuaded by Faskens arguments that Holtecs September 2020 RAI responses contain information that is materially different from information previously available.
The only information Fasken cites from the RAI response that is plausibly new is that Holtec for the first time in its RAI response (and in contemporaneous revisions of its environmental report and safety analysis report) identifies the uppermost oil-and-gas bearing formation under the site as the Yates formation.106 Fasken argues that this is significant because the Yates formation usually requires vertical drilling.107 But the only support Fasken provides for the claim that the 103 See Taylor Affidavit at 2, Contention 3 at 6 (stating that members of PBLRO have been drilling and extracting oil in the region for more than eighty years).
104 See Contention 3, Ex. 4, Commissioner Richards Comments at 4; Contention 3, Ex. 1, XTO Comments on DEIS at 4 (citing DEIS at 4-4, 4-5, 4-6, 4-7).
105 See DEIS at 3-6 to 3-9, 4-4 to 4-5.
106 Contention 3 at 21; see also RAI Part 5, Response Set 2 at 29, 49; ER § 3.1.1; SAR §§ 2.1.4 at 2-11, 2.6.4 at 2-127.
107 Contention 3 at 21; see id. Ex. 3, Taylor Affidavit at 4.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 285 of 292 Yates formation must be drilled vertically is the statement of its affiant, Mr. Taylor, who testifies that vertical wells . . . are more affordable than horizontal wells.108 However, Fasken does not explain why the identification of the formation as the Yates formation is materially different information from what was in the DEIS. In addition, Holtec points out that the Yates formation is part of the larger Artesia Group, which has been identified in the environmental report since the fifth revision of that document in March 2019.109 Further, nothing in Mr. Taylors affidavit suggests that the Yates formations presence above 3,050 feet is new information that could not have been raised upon publication of the DEIS.
- 2. Significant Environmental Issue Faskens claims regarding mineral development at the site do not meet the reopening requirement to present a significant environmental or safety issue.110 As previously stated, XTOs and Commissioner Richards comments that the DEIS relies on depth restrictions that would prevent oil and gas extraction from shallower than 930 meters (3,050 feet) are incorrect.111 Neither Fasken nor the public comments cite any portion of the DEIS that states that mineral development is limited by depth restrictions imposed by law or contract. Rather, the DEIS considers that future mineral development will take place in the strata where the minerals are known to exist. That is, the DEIS discusses the likelihood that potash will be developed, if at all, in the Salado formation, and oil and gas will be developed, if at all, in deeper 108 See Contention 3, Ex. 3, Taylor Affidavit at 4. (Yates is best reached vertically and not horizontally because drilling and completion of vertical wells and wells at shallow depths is much less costly with less mechanical risk as compared to drilling deep targets.)
109 See Holtec Answer to Contention 3 at 10; see also Environmental Report on the HI-STORE CIS Facility (Mar. 2019), Fig. 3.3.11 (ML19095B800).
110 10 C.F.R. § 2.326(a)(2).
111 See Contention 3, Ex. 4, Commissioner Richards Comments at 4; Contention 3, Ex. 1, XTO Comments on DEIS at 4 (citing DEIS at 4-4, 4-5, 4-6, 4-7).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 286 of 292 strata where those resources are known to exist.112 The Staffs environmental analysis appropriately discusses reasonable outcomes, rather than theoretical possibilities such as the discovery of oil and gas at shallower depths.113 Fasken does not show such drilling presents any hazard to the facility (or vice versa) that has not been analyzed in the Safety Evaluation Report or the DEIS. Although Mr. Taylor testifies that the Yates formation occurs between the surface and 3050 [feet] (usually found at 2500 [feet]) he does not state that the Yates formation occurs between the surface and 3,050 feet under the proposed CISF, and he does not opine that oil and gas exist in paying quantities in shallower strata or above the potash.114 Therefore, his affidavit simply raises the possibility that oil extraction could take place several hundred feet closer tobut still thousands of feet belowthe surface. Fasken has not shown what difference it would make to the environmental analysis if oil and gas were extracted from shallower depths.
Fasken also does not show how new information in Holtecs RAI responses supports its proposed contention.115 On the contrary, the RAI responses support and clarify the information in Holtecs environmental report. In RAI 2-8, the Staff asked Holtec to explain why having oil and gas exploration and production activities near the proposed facility would not pose a hazard as Holtec claimed in its safety analysis report.116 The Staff observed that, according to 112 See DEIS at 3-6 to 3-9, 4-4 to 4-5.
113 See Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-05-20, 62 NRC 523, 536 (2005) (NEPA . . . does not call for certainty or precision, but an estimate of anticipated (not unduly speculative) impacts.).
114 Contention 3, Ex. 3, Taylor Affidavit at 4.
115 Contention 3 at 5; see also RAI Part 5, Response Set 2.
116 Letter from Jose Cuadrado, NRC to Kim Manzione, Holtec International (Nov. 14, 2019),
Attach., First Request for Additional Information, Part 5 (Nov. 14, 2019), at 3-4 (citing SAR
§ 2.1.4) (ML19322C260).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 287 of 292 the SAR, two drill islands are located within 400 meters and 800 meters of the proposed site, from which horizontal drilling beneath the site could potentially induce subsidence or sinkholes in the event of casing failure.117 Holtecs response explained why drilling under the site, at the anticipated depth of 3,050 feet, would not create any hazard to the CISF:
Currently, there are no horizontal wells that travel beneath the Site. Any new wells with horizontal legs that travel beneath the site would first be drilled offsite vertically to a depth greater than 3,050 ft, as this is the shallowest oil or gas formation in the vicinity of the site. Once a wellbore starts travelling horizontally, it stays within its own strata (within the production zone). Because of this, horizontal drilling does not create any additional risk of fluid transfer across multiple strata which is the greatest concern for dissolution of salts and land subsidence. If a horizontal well were to collapse at a depth greater than 3,050 ft, there would be no noticeable effect at the ground surface. Therefore, as long as the vertical portion of the wellbore is maintained properly and in accordance with the current regulations (described above), a well with horizontal legs does not create any additional hazards to the Facility when compared with vertical wells.118 Rather than supporting Faskens contention, this RAI response supports the Staffs findings that potential future mineral development does not present a hazard to the facility.
- 3. Public Comments in Opposition to the Project Fasken does not demonstrate that consideration of the comments on the DEIS showing public opposition to the CISF would result in a materially different result to the proceeding, as required by the reopening standards.119 Fasken argues that various comments highlight the unsuitability of the proposed site and raise technical issues that the NRC must resolve to properly review and analyze the environmental impacts.120 Fasken also argues that the high 117 See id.
118 See RAI Part 5, Response Set 2, Attach. 1 at 25.
119 10 C.F.R. § 2.326(a)(3).
120 See Contention 3 at 3-4.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 288 of 292 volume of public comments in opposition to the project shows that the project violates the concept of consent-based siting, as recommended by the Blue Ribbon Commission for nuclear waste management facilities.121 But there is no legal requirement to follow a consent-based siting process for Holtecs proposed CISF, nor is Holtec required to show public support for the project to get its license. And Fasken did not show how the comments could lead to a materially different result. The DEIS describes the scoping process and public participation activities that the Staff conducted at the outset of its environmental review.122 The receipt of comments is a normal step in the NRCs NEPA process, and the Staff must address all public comments in preparing the Final EIS. We therefore conclude that this portion of Faskens new contention does not meet the reopening standards.
- 4. Consultation and Independent Investigation Claims In addition, Fasken argues that other public comments show that the NRC did not consult adequately with state and local agencies123 and that it should have consulted with the oil and gas industry.124 Fasken also claims that the Staff did not conduct an independent investigation of the matters discussed in the DEIS but relied too much on the information in the application.125 But Fasken has not pointed to any new information that is materially different from what was available when the Staff issued the DEIS. Fasken could have raised its argument that the Staff should consult with the oil and gas industry when the DEIS was released, if not sooner. Similarly, its claim that the Staff did not independently investigate the 121 Id. at 5 (citing Blue Ribbon Commission on Americas Nuclear Future, Report to the Secretary of Energy (Jan. 2012) (ML120970375)), 18, 28-29, 32.
122 DEIS § 1.4.1.
123 Contention 3 at 4-5.
124 Id. at 33-34.
125 Id. at 28; see 10 C.F.R. § 51.70(b).
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 289 of 292 application material before incorporating it into the DEIS was ripe when the DEIS was released.
Furthermore, the numerous RAIs the Staff posed to Holtec during its review on both environmental and safety matters belies Faskens claim that the Staff uncritically relied on the information in Holtecs application.
Therefore, we conclude that Fasken has not met the reopening standards for the claims it seeks to raise in Contention 3 and we deny its motion.
III. CONCLUSION For the foregoing reasons, we deny Faskens appeal of LBP-20-10, and we deny its motion to reopen the record.
For the Commission Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 28th day of April 2021.
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 290 of 292 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
)
HOLTEC INTERNATIONAL ) Docket No. 72-1051-ISFSI
)
)
(HI-STORE Consolidated Interim Storage )
Facility) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-21-07) have been served upon the following persons by Electronic Information Exchange (EIE).
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16B33 Mail Stop: O-16B33 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop - O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 Paul S. Ryerson, Chair Sheldon Clark, Esq.
Administrative Judge Joe Gillespie, Esq.
Sara B. Kirkwood, Esq.
Nicholas G. Trikouros Mauri Lemoncelli, Esq.
Administrative Judge Patrick Moulding, Esq.
Carrie Safford, Esq.
Dr. Gary S. Arnold Thomas Steinfeldt, Esq.
Administrative Judge Alana M. Wase, Esq.
Brian Newell, Senior Paralegal E-mail: paul.ryerson@nrc.gov Stacy Schumann, Paralegal nicholas.trikouros@nrc.gov E-mail: sheldon.clark@nrc.gov gary.arnold@nrc.gov joe.gillespie@nrc.gov sara.kirkwood@nrc.gov mauri.lemoncelli@nrc.gov Ian Curry, Law Clerk patrick.moulding@nrc.gov Molly Mattison, Law Clerk carrie.safford@nrc.gov E-mail: ian.curry@nrc.gov thomas.steinfeldt@nrc.gov molly.mattison@nrc.gov alana.wase@nrc.gov brian.newell@nrc.gov stacy.schumann@nrc.gov
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 291 of 292 Holtec International - Docket No. 72-1051-ISFSI COMMISSION MEMORANDUM AND ORDER (CLI-21-07)
Counsel for Holtec International Counsel for Dont Waste Michigan Pillsbury Winthrop Shaw Pittman LLP 316 N. Michigan Street, Suite 520 1200 Seventeenth Street, NW Toledo, OH 43604-5627 Washington, DC 20036 Terry J. Lodge, Esq.
Meghan Hammond, Esq. E-mail: tjlodge50@yahoo.com Anne Leidich, Esq.
Michael Lepre, Esq. Counsel for Sierra Club Jay Silberg, Esq. 4403 1st Avenue SE, Suite 402 Timothy Walsh, Esq. Cedar Rapids, IA 52402 Sidney Fowler, Esq. Wallace L. Taylor, Esq.
E-mail: meghan.hammond@pillsburylaw.com E-mail: wtaylor784@aol.com anne.leidich@pillsburylaw.com michael.lepre@pillsburylaw.com Counsel for NAC International Inc.
jay.silberg@pillsburylaw.com Robert Helfrich, Esq.
timothy.walsh@pillsburylaw.com NAC International Inc.
sidney.fowler@pillsburylaw.com 3930 E Jones Bridge Rd., Ste. 200 Norcross, GA 30092 Counsel for Beyond Nuclear E-mail: rhelfrich@nacintl.com Harmon, Curran, Spielberg & Eisenberg LLP 1725 DeSales Street NW Hogan Lovells LLP Suite 500 555 13th Street NW Washington, DC 20036 Washington, DC 20004 Diane Curran, Esq. Sachin S. Desai, Esq.
E-mail: dcurran@harmoncurran.com Allison E. Hellreich, Esq.
E-mail: sachin.desai@hoganlovells.com Turner Environmental Law Clinic allison.hellreich@hoganlovells.com 1301 Clifton Road Atlanta, GA 30322 Counsel for Fasken Land and Oil and Permian Mindy Goldstein, Esq. Basin Land and Royalty Owners E-mail: magolds@emory.edu Monica R. Perales, Esq.
6101 Holiday Hill Road Counsel for Alliance Environmental Strategies Midland, TX 79707 Law Office of Nancy L. Simmons E-mail: monicap@forl.com 120 Girard Boulevard SE Albuquerque, NM 87106 Kanner & Whiteley, LLC 701 Camp Street Nancy L. Simmons, Esq. New Orleans, LA 70130 E-mail: nlsstaff@swcp.com Allan Kanner, Esq.
Elizabeth Petersen, Esq.
Cynthia St. Amant, Esq Eddy-Lea Energy Alliance Annemieke M. Tennis, Esq.
102 S. Canyon Conlee Whiteley, Esq .
Carlsbad, NM 88220 E-mail: a.kanner@kanner-law.com e.petersen@kanner-law.com John A. Heaton c.stamant@kanner-law.com E-mail: jaheaton1@gmail.com a.tennis@kanner-law.com c.whiteley@kanner-law.com 2
USCA Case #20-1187 Document #2008034 Filed: 07/14/2023 Page 292 of 292 Holtec International - Docket No. 72-1051-ISFSI COMMISSION MEMORANDUM AND ORDER (CLI-21-07)
Eddy County, NM* City of Hobbs, NM 101 W. Greene Street 2605 Lovington Highway Carlsbad, NM Hobbs, NM 88242 Rick Rudometkin Garry A. Buie E-mail: rrudometkin@co.eddy.nm.us E-mail: gabuie52@hotmail.com
- Eddy County not served due to no representative for the County assigned at the time of Mr. Rudometkins departure. City of Carlsbad, NM 1024 N. Edward Carlsbad, NM 88220 Lea County, NM 100 N. Main Jason G. Shirley Lovington, NM 88260 E-mail: jgshirley@cityofcarlsbadnm.com Jonathan B. Sena E-mail: jsena@leacounty.net Office of the Secretary of the Commission Dated at Rockville, Maryland, this 28th day of April 2021 3