ML23256A366

Fasken Standing and Statutory Addendum

ML23256A366
Person / Time
Site:	HI-STORE
Issue date:	09/01/2023
From:	Kanner A Fasken Land & Minerals, Ltd, Kanner & Whiteley, Permian Basin Land and Royalty Owners
To:	NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit
References
20-1187, 20-1225, 21-1104, 21-1147, 2015152
Download: ML23256A366 (1)

Text

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 1 of 50 ORAL ARGUMENT NOT YET SCHEDULED UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Case No. 20-1187 Consolidated with Case Nos. 20-1225, 21-1104, 21-1147 BEYOND NUCLEAR, INC., et al.,

Petitioners, v.

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

Petition for Review of Final Orders of the United States Nuclear Regulatory Commission PETITIONERS FASKEN LAND AND MINERALS, LTD. AND PERMIAN BASIN LAND AND ROYALTY OWNERS STANDING ADDENDUM AND ADDENDUM OF PERTINENT STATUTES AND REGULATIONS FOR OPENING BRIEF Allan Kanner (a.kanner@kanner-law.com)*

Annemieke Tennis (a.tennis@kanner-law.com)

KANNER & WHITELEY, LLC 701 Camp Street New Orleans, LA 70130 (504) 524-5777

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 2 of 50 STANDING ADDENDUM TABLE OF CONTENTS Exhibit 1: Declaration of Tommy Taylor .................................... STANDING ADD 2 Exhibit 2: Declaration of Stonnie Pollock ................................ STANDING ADD 20 Exhibit 3: Declaration of Daniel Berry ................................... STANDING ADD 29 STANDING ADD 1

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 3 of 50 ADDENDUM EXHIBIT #1 Declaration of Tommy Taylor (7/14/2023)

STANDING ADD 2

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 4 of 50 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BEYOND NUCLEAR, INC., et al.,

Petitioners, Case No. 20-1187 v.

Consolidated with Case Nos.

UNITED STATES NUCLEAR 21-1255, 21-1104, 21-1147 REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

DECLARATION OF TOMMY TAYLOR

1. My name is Tommy E. Taylor and my business address is 6101 Holiday Hill Road, Midland, Texas 79707. I reside at 4100 Timberglen Circle, Midland, Texas 79707. I hold executive positions with Fasken Management, LLC, Fasken Land and Minerals, Ltd., and Fasken Oil and Ranch, Ltd. (together Fasken). My position with Fasken Management, LLC, the general partner of both Fasken Oil and Ranch, Ltd. and Fasken Land and Minerals, Ltd. is Senior Vice President. I am the Assistant General Manager and Director of Oil and Gas Development for Fasken Oil and Ranch, Ltd. I am authorized by Fasken to execute this declaration on its behalf and on behalf of the Permian Basin Coalition of Land and Royalty Owners and Oil &

Gas Operators (PBLRO), of which Fasken is a member and of which I am an officer.

2. This declaration is in support of the Petition for Review of Fasken and PBLRO in the above-captioned docket. I have been and remain authorized to represent both STANDING ADD 3

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 5 of 50 Fasken and the PBLRO in protecting their interests in an environment free from radiation hazards associated with CISFs and to protect the economic interests of Fasken and the PBLRO, to which Fasken belongs.

3. Fasken is engaged in ranching as well as oil and gas extraction and production activities in the Permian Basin including within the immediate vicinity of both the Holtec consolidated interim storage facility (CISF) in Lea County, New Mexico and the NRC licensed Interim Storage Partners, LLC (ISP) CISF in Andrews County, Texas. Approximately 2 to 3 miles from the proposed Holtec CISF, Fasken owns and/or leases property directly related to oil and gas activities, including the Baetz Federal lease. Faskens acreage (over 2,000 acres) is located directly west and adjacent to the proposed Holtec CISF and currently has four producing wells on this acreage with multiple planned well locations from established drilling islands. It is important to note that within this acreage, we know of at least 20 old, abandoned wellbores ineffectively plugged as per industry standards. There are many of these wellbores, both known and unknown, in the vicinity of the Holtec site and throughout the region. Additionally, Fasken owns grazing property and operates significant agricultural operations operations in the Permian Basin nearby which consists of 160,000 acres - all downwind from the Holtec site. This property has been in the Fasken family for over one-hundred years.

STANDING ADD 4

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 6 of 50

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

5. PBLRO presently has substantial land and mineral interests, and active leases throughout Eddy and Lea County, New Mexico, with a founding PBLRO member, Mr. Danny Berry, owning land used primarily for cattle operations, within three miles of the Holtec site and a residence within ten miles of the Holtec CISF site.1

6. I am personally familiar with other members of PBLRO of which there are 65 founding members, with multiple ranchers engaged in agricultural activities and owning land in the area for over a century and at least three members being publicly traded corporations (two integrated and one large independent oil and gas operator),

as well as numerous private companies involved in the extraction and production of oil and gas in the Permian Basin and in close proximity to the proposed transport of spent nuclear fuel and storage of spent nuclear fuel at the Holtec CISF. Today, the PBLRO membership numbers appear to be in the hundreds.

7. I am personally familiar with the agricultural use of the land within the vicinity of the Holtec CISF site. Members of the PBLRO live, work and travel along proposed transportation routes. Multiple ranchers graze their animals within three to five miles of the Holtec CISF and draw water from wells that are fed by shallow 1

See Declaration of Daniel Berry at ¶ 1.

STANDING ADD 5

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 7 of 50 groundwater from formations that are present beneath and adjacent to the Holtec CISF.

8. Both my employment duties and personal reasons require me to travel to and spend time in the area of the Holtec CISF and proposed railroad spur. Fasken personnel, oil field and agricultural workers, and I generally use U.S. Highway 62/180, and State Roads 176 and 243 for travel purposes. All are either traversed by the rail line that will reportedly carry 10,000 canisters of spent nuclear fuel or are within close proximity to the Holtec site. At its closest point, U.S. Highway 62/180 is approximately one-half mile from the Holtec CISF site. Additionally, I am personally aware of other Fasken employees and PBLRO members who regularly and routinely travel for employment and personal reasons to the area and use U.S.

Highway 62/180, as well as New Mexico State Road 243, which the proposed railroad spur will cross, in order to access Fasken and PBLRO owned and active oil and gas properties.

9. Fasken employees routinely check on Faskens active oil and gas operations located within miles of the proposed railroad spur that will be used to transport every shipment of spent nuclear fuel to the Holtec CISF. Every single day, Fasken pumpers travel to our New Mexico operations to perform mandatory checks and maintenance on oil and gas production equipment and monitor well operations. This is the duty of a reasonably prudent operator and an inherent part of Faskens business practices.

STANDING ADD 6

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 8 of 50 10.As the Director of Oil and Gas Development for Fasken Oil and Ranch, Ltd.

and as a member of various trade organizations, I am personally familiar with ongoing oil and gas activities in the vicinity of the Holtec CISF and throughout the Permian Basin. Fasken has owned the land and minerals within the vicinity of the Holtec CISF and proposed rail spur for over a century and drilled its first well in the Permian Basin over 70 years ago. I am also thoroughly familiar with mineral extraction operations beneath and around the Holtec site and with federal and state oil and gas regulations, including those governing operations beneath and around the Holtec site.

11.I also have personal knowledge of the activities of other oil and gas entities, some of which are members or supporters of the PBLRO. I am aware of EarthStones four new wells immediately adjacent to the Holtec site, of XTOs control of the minerals directly beneath the Holtec site, which they have not relinquished nor sold and of an operator that began drilling in the Permian Basin approximately 82 years ago and still has extensive interests within ten miles of the Holtec CISF. To this day, neither Fasken nor any member of PBLRO has relinquished control of their interests for the development of the Holtec CISF or proposed railroad spur.

12. There exists a pressing concern due to the extensive number of old wellbores in the area of the Holtec site. These wellbores are known to those of us in the oil and gas industry as posing a possible threat of collapse due to deficient plugging STANDING ADD 7

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 9 of 50 techniques of the time. To the detriment of the State of New Mexico and to the owners and lessees of minerals nearby, including PBLRO members, the hazards of old wellbores is not fully and adequately acknowledged nor addressed at all with respect to the Holtec CISF site and proposed railroad spur.

13.The area around the Holtec site is under active mineral exploration and production. There are nearly two hundred active oil and gas wells currently producing within a 6-mile radius and at least eight, of which I am aware, presently active wells within one mile of the Holtec CISF project itself. There are oil companies with a right to seek access to the Holtec sites surface to accommodate their activities as well as over twenty wells that are currently being drilled but not yet completed within a six-mile radius of the site. There exists a renewed interest in exploring the Yates formation and other formations beneath the Holtec CISF with developments in processing techniques revealing new opportunities for exploration, as well as the potential for use of abandoned or plugged wellbores at the site all posing a real possibility for more mineral production in the area. Likewise, other opportunities exist in potential vertical wells within the confines of the Holtec CISF at shallow depths which would be much less costly for operators and with less mechanical risk than drilling deep targets elsewhere.

14.It is well-established and acknowledged that the Permian Basin is home to one of the most productive oil and gas hubs in the world. The Basin contains billions of STANDING ADD 8

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 10 of 50 barrels of hydrocarbons and millions of acre-feet of groundwater. It is the largest and most important hydrocarbon producing basin in the United. States. It produces 50% of domestic hydrocarbons and 5% of global oil (EIA, 2020). These hydrocarbon and groundwater resources ensure domestic energy needs and global security.

15. According to the July 6, 2023 report of the U.S. Energy Information Association (EIA), the counties to be most adversely affected by any incident at the Holtec site are also the two most productive counties in the State of New Mexico.

The EIA reports that those two counties accounted for 29% of Permian Basin crude oil production in the first quarter of 2023, averaging 1.7 million barrels of oil per Together Eddy and Lea County accounted for over a quarter of the states tax revenue in the third quarter of 2022. 2 And, in their May 2023 revenue estimates, the New Mexico Legislative Finance Committee found that about half of New Mexicos General Fund revenue was tied to oil and gas, which marked an increase from prior estimates that the oil and gas industry only accounted for about a half of the states budget. The states current and record setting $9.6 billion budget has increased due to mineral extraction operations in the southeastern part of New Mexicos Permian Basin Region - the very location where Holtec intends to build and operate their CISF.

2 Source: New Mexico Economic Development Department.

STANDING ADD 9

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 11 of 50

16. According to the Texas Railroad Commission, the Permian Basin accounts for approximately one-third of the nations oil production (5.7 million barrels per day).

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

18.Likewise, I understand a radiation release from the Holtec CISF or during transportation of spent nuclear fuel through or near the Permian Basin or along the proposed railroad spur may contaminate the areas in which Fasken and other members of PBLRO have land interests and agricultural or cattle operations and graze animals. A radiological contamination event also has the potential to interrupt agricultural and ranching operations and thereby diminish or eliminate the economic value of real property values and related assets of Fasken and other members of PBLRO.

STANDING ADD 10

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 12 of 50

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

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

20. I understand that even the most minimal transportation incident, such as a derailment or collision involving spent nuclear fuel, would amount to a dangerous materials emergency that has the potential to interrupt or foreclose further oil and gas extraction/production activities within the area of the incident, as well as adversely affecting the recipients of oil commodities which are regularly transported by rail. A transportation incident involving any of the three rail lines, identified as proposed transportation routes for shipments of spent nuclear fuel in the Holtec final Environmental Impact Statement (EIS), the Burlington Northern Santa-Fe (BNSF)

Railroad, the Union Pacific Railroad or the Texas-New Mexico Railroad, would likely diminish or has the potential to eliminate the economic value of oil and gas assets belonging to Fasken and other members of PBLRO.

21. Even the most minimal transportation incident involving spent nuclear fuel has the potential to interrupt or foreclose agricultural and ranching activities in the Permian Basin or delay agricultural shipments, thereby diminishing or eliminating STANDING ADD 11

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 13 of 50 the economic value of the real property interests and assets of Fasken and other members of PBLRO.

22. Both Fasken and PBLRO regularly utilize rail transportation to support their industries and extensive and ongoing operations. Those named in the Holtec EIS, the BNSF Railroad, the Union Pacific Railroad and the Texas-Mexico Railroad, all serve the oil, gas, agricultural and ranching industries in the region of the Holtec CISF. The BNSF Railroad primarily serves potash, petroleum and agricultural industries and regularly transports gasoline, diesel fuel, fuel gases and explosives.

According to Union Pacific, two of its four key operating segments are likewise the agricultural and energy industries. Union Pacific reported revenue from energy freight in 2019 as $3.8 billion. It reports that railroads are the most efficient and cost-effective means of transportation of crude, frac sand, and petroleum by-products and transported 1.4 million carloads of energy freight shipments in 2019.

In fiscal year 2019, agricultural commodities accounted for 18% of Union Pacifics shipments and energy freight accounted for 22%. The Texas-New Mexico Railroad extends from a Union Pacific connection at Monahans, Texas. It is one of two lines owned by Watco that primarily serve the Permian Basin. Watco reports oilfield commodities as its primary shipments on the Texas-New Mexico Railroad and agricultural commodities as primary on its Lubbock and Western Railways shipments.

STANDING ADD 12

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 14 of 50

23. With regard to energy freight, Fasken relies upon the rail lines of the Permian Basin primarily for transporting sand, acid, casing and tubing, cement, gel, and various liquid and dry chemical components that are used for blending associated products that are all necessary to drill and complete an oil well and bring it to production. PBLRO members utilize the Permian Basin rail lines primarily for materials similar to that of Fasken but also for water, additional frac chemicals, and acid. According to the Holtec EIS, the Holtec CISF would utilize the same rail lines which the oil and gas industry of the Permian Basin heavily relies upon. Any hazardous materials emergency upon the rails that interferes with energy freight poses a loss of millions of dollars per day affecting multiple operators in the Permian Basin, including Fasken and other members of PBLRO. Likewise, any deterioration of the existing rail lines as a result of transport of oversized railcars transporting spent nuclear fuel, dedicated single-use shipments of spent nuclear fuel or other infrastructure improvements necessary to accommodate shipments of spent nuclear fuel will cause substantial delays for industries throughout the Permian Basin. As an example, a typical Fasken horizontal multi-well drilling project cannot be completed until the staging of materials is achieved. Rail delays amount to potential lost production totals of approximately 5,800 barrels of oil per day and 3,500 million cubic feet of gas daily, per multi-well horizontal drilling pad. This equates to a loss of $350,000 daily and $10.6 million monthly in lost production from a single multi-STANDING ADD 13

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 15 of 50 well pad. A delay on the rails that results in standby costs on a frac job amount to

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

$50,000 per day, per drilling rig. Additionally, leases are susceptible to termination under New Mexicos rules on nonproducing wells. In the event such a loss occurs, an operator such as Fasken, or one of the members of PBLRO, stands to lose a capital investment of $12 to $16 million per well. Possible remedies, including lease extensions, are onerous and expensive. As a representative of the industry, one must look to the risks posed by sharing the same rail lines that have primarily and historically been transporting oil commodities with spent nuclear fuel and high-level radioactive waste heading to two separate facilities located in the Permian Basin over the course of at least the next forty years (and likely longer).

24.With regard to agricultural freight, Fasken and PBLRO members frequently utilize the Permian Basin rails for the shipment of agricultural products and raw materials. According to the West Texas Region Freight Study, the overall tonnage of rail freight in the Texas region of the Permian Basin is projected to more than double from 2005 to 2025. Agricultural products are projected to increase 151% due to the growth in corn grain, ethanol plants, feed supplements, dairy and cotton from our area. The study also reports an increase of 161% in chemical and petroleum commodities and 151% increase in food commodities and 149% in shipments of raw materials.

STANDING ADD 14

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 16 of 50

25. The proposed rail spur and single connecting main line rail proposed in the Holtec EIS for the transport of spent nuclear fuel traverses through rural, remote areas. Although the rail lines in the Permian Basin are a major means of transportation, they are situated in desert-like areas served mostly by volunteer fire departments or areas lacking emergency responder resources. In consulting crane operators regarding the Holtec and ISP CISFs, there are real logistical problems in situating a crane capable of resetting a spent nuclear fuel transport cask and rail car in some of the more remote areas of the Permian Basin. This is particularly true for Holtecs exceptionally heavy HI-STAR 190 transportation cask intended for the transport of spent nuclear fuel to the Holtec CISF. A single hazardous materials emergency would not only have a detrimental effect upon the oil and agricultural industries of the Permian Basin but would also overwhelm our first responders and healthcare facilities which are not equipped to cope with the challenges of a release, exposure or disaster nor are the small, rural communities adjacent to the rail track equipped to respond to an incident on any scale.

26. The recent increase in derailments across the nation aptly demonstrate the significance and seriousness of railroad safety concerns in the context of transporting hazardous materials and the utmost importance of the training and funding of first responders. Indeed, the recent derailment of tank cars carrying vinyl chloride in Palestine, Ohio revealed the horrific aftermaths of an inadequate emergency STANDING ADD 15

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 17 of 50 response. These safety concerns become grave concerns in the context of oversized rail lines carrying high-level radioactive nuclear waste as well as extensive shipments of oil, gas and volatile potash commodities, and further implicate substantial economic and security concerns when the rail lines are in the Permian Basin.

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

28.According to the Holtec EIS, the proposed Holtec railroad spur will extend west of the CISF site and cross over State Highway NM 243 less than one mile north of U.S. Highway 62/180. Incidents at highway-rail grade crossings are one of the leading causes of railroad-related crashes, deaths and injuries, accounting for STANDING ADD 16

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 18 of 50 approximately 30% of all rail related fatalities.3 Where the Holtec CISF is located in Lea County, New Mexico there is a disproportionately high risk of fatal crashes, including along U.S. Highway 62/180.

29. I am personally familiar with oil and gas activity in the vicinity of the Holtec CISF and of the approximately 120 individual persons required to facilitate the completion of each individual oil and gas well in the vicinity of the Holtec CISF.

The potential harm to those individuals in the oil and gas industry, the potential harm to the ranchers and livestock, the potential impacts upon agriculture and, especially, upon human mortality and morbidity rates, and the economic costs associated with medical care and treatment of radiation related conditions would also adversely impact Fasken and other members of PBLRO, as well as their employees and families.

30.Given Faskens work throughout the Permian Basin and familiarity with those in governance of the States of New Mexico and Texas, I have firsthand knowledge of the overwhelming opposition of the majority of the communities and elected representatives throughout New Mexico, as well as Texas, and of their shared health, safety, economic and environmental concerns in response to the egregious siting of 3

U.S. Senate Committee on Commerce, Science and Transportation, Railroad Crossing Congestion and Its Impacts on Safety and Efficiency, (March 2021).

STANDING ADD 17

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 19 of 50 the Holtec and ISP CISFs within the Permian Basin at locations that clearly do not qualify nor do they consent to hosting either of the CISFs.

STANDING ADD 18

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 20 of 50 STANDING ADD 19

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 21 of 50 ADDENDUM EXHIBIT #2 Declaration of Stonnie Pollock (7/14/2023)

STANDING ADD 20

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 22 of 50 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BEYOND NUCLEAR, INC., et al.,

Petitioners, Case No. 20-1187 v.

Consolidated with Case Nos.

UNITED STATES NUCLEAR 21-1255, 21-1104, 21-1147 REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

DECLARATION OF STONNIE POLLOCK

1. My name is Stonnie Pollock and my business address is 6101 Holiday Hill Road, Midland, Texas 79707. I work for Fasken Management, LLC, which is the general partner of Fasken Oil and Ranch Ltd. and Fasken Land and Minerals, Ltd. I am a degreed geologist and geoscientist and have been working as such for Fasken since 2003. Presently my position is Exploration Manager.

2. I am duly authorized to execute this declaration on behalf of Fasken.

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

4. Fasken presently has land and mineral interests within two miles of the Holtec International (Holtec) consolidated interim storage facility (CISF) located in Lea County, New Mexico. Fasken is a member of the Permian Basin Land and Royalty Owners (PBLRO). PBLRO presently has land and mineral interests throughout Lea County and adjacent Eddy County, New Mexico, with several PBLRO members

{Cases; 00038635.DOCX} 1 STANDING ADD 21

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 23 of 50 holding land and minerals within 5 miles of the Holtec CISF, the nearest is adjacent to Holtec CISF.

5. In my capacity as Faskens Exploration Manager my duties primarily include geological evaluation, analysis, and interpretation of oil and gas prospects, plays, and reservoirs, including in the Permian Basin. I also conduct geohydrological evaluation and assessment of aquifers. I have knowledge of, interpret, analyze and evaluate geological and geohydrological characteristics in the vicinity of the Holtec site.

6. I have reviewed current and former oil and gas drilling activity within the Holtec site area which demonstrates the area is still under active exploration and active production. Within a 6-mile radius of the site, there have been a total of 618 wellbores drilled. Presently 188 are active oil wells still in production. There are 23 drilled-uncompleted (DUCS) and 46 permitted wells yet to be drilled. Of the 618 wells, 161 are abandoned oil wells and 121 have been identified as dry wells. There are 34 gas wells and 26 abandoned gas wells. Currently there are 30 water injection wells for enhanced oil recovery and 9 saltwater disposal wells. There are a total of 15 abandoned injection wells and 11 abandoned saltwater disposal wells. Within a 6-mile radius of the site, 53 wells were drilled between 1937 - 1966 and 30 were permanently plugged and abandoned. Of the dry and abandoned wells, 83 of these were drilled before 1967. Within a 50-mile radius of the site, there have been 70,365

{Cases; 00038635.DOCX} 2 STANDING ADD 22

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 24 of 50 wellbores drilled, including 29,088 oil wells, 6,276 gas wells and 8,387 dry wells.

There are 1,411 DUCs and 3,767 permitted wells yet to be drilled within a 50-mile radius.

7. Because drilling an oil well is expensive and petroleum companies that drilled dry holes often did not permanently plug the wells due to funds expended. These well bores would be temporarily abandoned in order to save them for future opportunities that may arise for additional exploration and production.

8. Current oil and gas extraction procedures include high pressure pumping of a mixture of water and proppant (sand) into an active wellbore from the surface to the subsurface hydrocarbon reservoir. This is the practice of hydraulic fracturing. These active wells have large volumes, pumped at high pressures and rates that can collapse wellbore casings of proximal existing wellbores. Potential casing collapses could cause surface disruptions of existing wellbores that are not properly abandoned.

9. For older well bores, records are often incomplete and there may be little or no information to determine the adequacy of subsurface construction or whether the well(s) have been properly plugged and abandoned. Comprehensive investigations, more definitive well searches and on-the-ground verification are needed for the abandoned well bores near the Holtec site in order to obtain sufficient information to determine their potential for unstable geological characteristics, casing corrosion, and other environmental and safety risks. Indeed, the integrity of abandoned wells

{Cases; 00038635.DOCX} 3 STANDING ADD 23

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 25 of 50 and also the presence of any orphan wells located on or near the Holtec site cannot go unanalyzed.

10. As part of my employment with Fasken, I am familiar with, interpret and ensure compliance with federal and state laws regulating oil and gas extraction activities. I have knowledge pertaining to both the U.S. Bureau of Land Managements and the New Mexico Oil Conservation Commissions regulations concerning use of drill islands and setback distances in the area surrounding the Holtec site. Mineral extraction activities below and adjacent to the Holtec site are currently proceeding within existing regulations, in the absence of any drilling depth restrictions, and have increased in the past three years and are likely to continue to increase in the reasonable future. Additionally, oil and gas operations at shallow depths through vertical drilling within the Holtec CISF project area are feasible and any prohibition of same would amount to a taking, rendering the selected CISF location not only unreasonable but unlawful.

11. The Holtec CISF site is located in a region underlain by shallow groundwater, in the presence of Permian aged halite formations and easily dissolved evaporite mineral formations, as well as known fractured formations leading to serious potential for subsurface instability, subsidence, ground movement issues and sinkhole development. For example, there is historical evidence of extensive sinkhole formations in the Permian Basin Region, including sinkholes and karst

{Cases; 00038635.DOCX} 4 STANDING ADD 24

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 26 of 50 features north and east of Carlsbad, New Mexico near the Holtec site. The presence of slickensides and moisture in the Chilne Formation in the geotechnical borings from beneath the Holtec CISF project area are further suggestive of karst processes and heightened risks subsurface instability. Additionally, the unanalyzed casing integrity of the abandoned and plugged wells and the identified plugged saltwater disposal well located in the northeast of the proposed CISF project area and unknown future of potash mining operations in the region may compound these risks.

12. Fasken currently owns and/or leases property directly related to oil and gas activities, including the Baetz Federal lease, located approximately 2 miles west and adjacent to the Holtec site with four active and producing wells. Fasken has at least 5 future planned well locations from established drilling islands for the acreage it owns and/or leases west of the Holtec site less than one mile from the proposed Holtec railroad spur that will carry every shipment of spent nuclear fuel and high-level radioactive nuclear waste to the Holtec CISF.

13. In assessing Faskens mineral interests and as part of my responsibilities at Fasken, as well as for personal reasons, I frequently travel in the vicinity of the Holtec CISF along regional transportation infrastructure. I typically travel along U.S. Highway 62/180, which is approximately one-half mile from the Holtec CISF site. I am personally aware of Fasken employees who regularly and routinely travel

{Cases; 00038635.DOCX} 5 STANDING ADD 25

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 27 of 50 for employment and personal reasons to the area and use U.S. Highway 62/180, as well as New Mexico State Road 243, which the proposed railroad spur will cross over, in order to access Fasken owned and active oil and gas properties. Fasken employees travel along regional infrastructures to perform routine checks and maintenance on oil and gas production equipment and to monitor well operations.

14. Given the number of active oil and gas wells, tank batteries, gas plants and other petroleum production facilities within the reasonable vicinity of the Holtec site, each requiring frequent and regular visits from personnel for maintenance and monitoring, I have concerns for Faskens employees, who by the very nature of their profession will be in close proximity to the Holtec CISF and proposed railroad spur and be exposed to doses of radiation.

15. The Holtec CISF site is located within the Permian Basin, which produces the largest volume of oil and gas in North America. The Permian Basin region encompasses southeastern New Mexico and a relatively large region in Texas and has a population of more than half-a-million people.

16. The Holtec CISF represents a threat to Fasken: personnel, private property, real property, mineral and water interests, oil and gas leases and agricultural interests. It also represents a threat to numerous communities throughout New Mexico and Texas, including the most prolific oil producing counties. A radiological event within any of these counties, including Eddy County and Lea County in the

{Cases; 00038635.DOCX} 6 STANDING ADD 26

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 28 of 50 vicinity of the Holtec CISF, could be devastating to the nations oil and gas industry and would decimate the economies of New Mexico.

{Cases; 00038635.DOCX} 7 STANDING ADD 27

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 29 of 50 STANDING ADD 28

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 30 of 50 ADDENDUM EXHIBIT #3 Declaration of Daniel Berry (7/13/2023)

STANDING ADD 29

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 31 of 50 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BEYOND NUCLEAR, INC., et al.,

Petitioners, Case No. 20-1187 v.

Consolidated with Case Nos.

UNITED STATES NUCLEAR 21-1225, 21-1104, 21-1147 REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

DECLARATION OF DANIEL BERRY

1. My name is Daniel Danny Berry, and I reside in Eunice, New Mexico on land that my family has worked for generations. My wife, Libby, and I share a home approximately 10 miles east of the proposed Holtec waste site, and my ranch stretches out to within 3 miles of the Holtec site.

2. I was born in Lovington, New Mexico seventy-five years ago and have lived in southeastern New Mexico my entire life. Our family business, Berry Ranchlands, LLP, is involved in agricultural activities - primarily grazing cattle - and we provide water and other services for use in association with oil and gas activities.

3. This declaration is in support of the Petition for Review of Fasken and PBLRO in the above-captioned docket. I have been and remain a member of the Permian Basin Coalition of Land and Royalty Owners and Operators and execute this declaration in order to protect the interests of myself, my family, and friends, and it STANDING ADD 30

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 32 of 50 is my opinion that Holtec Internationals (Holtec) license application is inadequate and illegal as written. In order to assure that the Holtec licensing decision in this matter adequately protects the interests of myself and other PBLRO members in an environment free from radiation hazards associated with CISFs and to protect the economic interests of the PBLRO, to which I belong, I am in support of Fasken and PBLROs appeal of those decisions to this Court.

4. My daily activities put me and my family within the immediate vicinity of the Holtec consolidated interim storage facility (CISF) in Lea County, New Mexico and within ten miles of the rail line that will carry approximately ten thousand casks of spent nuclear fuel.

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

6. I, and other members of the PBLRO, presently have substantial land and other interests throughout Eddy and Lea Counties in New Mexico.

7. I am personally familiar with several other families that are also in opposition to the Holtec CISF and that are in close proximity to the proposed transport of spent nuclear fuel and storage of spent nuclear fuel at the Holtec CISF.

8. I am personally familiar with the agricultural use of the land and production and use of groundwater within the vicinity of the Holtec CISF site. My family and I STANDING ADD 31

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 33 of 50 live, work, and travel along proposed transportation routes, graze our animals within five miles of the Holtec CISF, and draw water from wells that are fed by shallow groundwater formations that are present beneath the Holtec CISF.

9. Neither I, nor any member of my family, have relinquished control of any personal or business interests for the development of the Holtec CISF or proposed railroad spur.

10.It is well-established and acknowledged that the Permian Basin is the most productive oil and gas resource in the United States. Any interruption of production would hamper my livelihood and harm the State of Texas and the nation as a whole.

This region is also known as one of the most significant sources of beef in America.

My primary business is agricultural, therefore the presence of radionuclides within the vicinity of my cattle grazing is harmful to my livelihood and diminishes the economic value of my property and interests. Should any contaminants be detected in the vicinity of the Holtec CISF, my property and my business would be devastated.

11. I agree with and echo the statements of the New Mexico Cattle Growers Association in a letter to New Mexicos governor on May 15, 2019, which states:

the membership of the New Mexico Cattle Growers Association (NMCGA), with members in all 33 of the states counties as well as 19 other states . . . believes that a nuclear waste storage would have unknown impacts on agricultural production, the STANDING ADD 32

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 34 of 50 primary economic engine for the surrounding area of the proposed site. NMCGA also has concerns for the local communities safety and the negative perception associated with a nuclear waste storage facility being located within their counties and communities.

{Signature Page Follows}

STANDING ADD 33

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 35 of 50 STANDING ADD 34

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 36 of 50 ADDENDUM OF STATUTES AND REGULATIONS TABLE OF CONTENTS National Environmental Policy Act, 42 U.S.C. §4332(C) ....... STATUTORY ADD 2 10 C.F.R. §2.309(c)(1) ............................................................. STATUTORY ADD 3 10 C.F.R. §2.309(f)(1), (2) ....................................................... STATUTORY ADD 4 10 C.F.R. §72.11....................................................................... STATUTORY ADD 6 10 C.F.R. §72.90-108 ............................................................... STATUTORY ADD 7 STATUTORY ADD 1

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 37 of 50 National Environmental Policy Act, 42 U.S.C. § 4332(C)

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall (C) consistent with the provisions of this chapter and except where compliance would be inconsistent with other statutory requirements, include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on--

(i) reasonably foreseeable environmental effects of the proposed agency action; (ii) any reasonably foreseeable adverse environmental effects which cannot be avoided should the proposal be implemented; (iii) a reasonable range of alternatives to the proposed agency action, including an analysis of any negative environmental impacts of not implementing the proposed agency action in the case of a no action alternative, that are technically and economically feasible, and meet the purpose and need of the proposal; (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and (v) any irreversible and irretrievable commitments of Federal resources which would be involved in the proposed agency action should it be implemented.

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

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 38 of 50 10 C.F.R. § 2.309 (c)(1) - Hearing requests, petitions to intervene, requirements for standing, and contentions.

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

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

STATUTORY ADD 3

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 39 of 50 10 C.F.R. § 2.309(f)(1), (2) - Hearing requests, petitions to intervene, requirements for standing, and contentions.

(f) Contentions.

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

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

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 40 of 50 (vii) In a proceeding under 10 CFR 52.103(b), the information must be sufficient, and include supporting information showing, prima facie, that one or more of the acceptance criteria in the combined license have not been, or will not be met, and that the specific operational consequences of nonconformance would be contrary to providing reasonable assurance of adequate protection of the public health and safety. This information must include the specific portion of the report required by 10 CFR 52.99(c) which the requestor believes is inaccurate, incorrect, and/or incomplete (i.e., fails to contain the necessary information required by § 52.99(c)). If the requestor identifies a specific portion of the § 52.99(c) report as incomplete and the requestor contends that the incomplete portion prevents the requestor from making the necessary prima facie showing, then the requestor must explain why this deficiency prevents the requestor from making the prima facie showing.

(2) Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, participants shall file contentions based on the applicants environmental report. Participants may file new or amended environmental contentions after the deadline in paragraph (b) of this section (e.g., based on a draft or final NRC environmental impact statement, environmental assessment, or any supplements to these documents) if the contention complies with the requirements in paragraph (c) of this section.

STATUTORY ADD 5

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 41 of 50 10 C.F.R. § 72.11 Completeness and accuracy of information.

(a) Information provided to the Commission by a licensee, certificate holder, or an applicant for a license or CoC; or information required by statute or by the Commission's regulations, orders, license or CoC conditions, to be maintained by the licensee or certificate holder, must be complete and accurate in all material respects.

(b) Each licensee, certificate holder, or applicant for a license or CoC must notify the Commission of information identified by the licensee, certificate holder, or applicant for a license or CoC as having, for the regulated activity, a significant implication for public health and safety or common defense and security. A licensee, certificate holder, or an applicant for a license or CoC violates this paragraph only if the licensee, certificate holder, or applicant for a license or CoC fails to notify the Commission of information that the licensee, certificate holder, or applicant for a license or CoC has identified as having a significant implication for public health and safety or common defense and security. Notification must be provided to the Administrator of the appropriate Regional Office within two working days of identifying the information. This requirement is not applicable to information which is already required to be provided to the Commission by other reporting or updating requirements.

STATUTORY ADD 6

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 42 of 50 10 CFR Part 72, Subpart E - Siting Evaluation Factors

§ 72.90 - General considerations.

(a) Site characteristics that may directly affect the safety or environmental impact of the ISFSI or MRS must be investigated and assessed.

(b) Proposed sites for the ISFSI or MRS must be examined with respect to the frequency and the severity of external natural and man-induced events that could affect the safe operation of the ISFSI or MRS.

(c) Design basis external events must be determined for each combination of proposed site and proposed ISFSI or MRS design.

(d) Proposed sites with design basis external events for which adequate protection cannot be provided through ISFSI or MRS design shall be deemed unsuitable for the location of the ISFSI or MRS.

(e) Pursuant to subpart A of part 51 of this chapter for each proposed site for an ISFSI and pursuant to sections 141 or 148 of NWPA, as appropriate (96 Stat. 2241, 101 Stat. 1330-235, 42 U.S.C. 10161, 10168) for each proposed site for an MRS, the potential for radiological and other environmental impacts on the region must be evaluated with due consideration of the characteristics of the population, including its distribution, and of the regional environs, including its historical and esthetic values.

(f) The facility must be sited so as to avoid to the extent possible the long-term and short-term adverse impacts associated with the occupancy and modification of floodplains.

§ 72.92 Design basis external natural events.

(a) Natural phenomena that may exist or that can occur in the region of a proposed site must be identified and assessed according to their potential effects on the safe operation of the ISFSI or MRS. The important natural phenomena that affect the ISFSI or MRS design must be identified.

(b) Records of the occurrence and severity of those important natural phenomena must be collected for the region and evaluated for reliability, STATUTORY ADD 7

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 43 of 50 accuracy, and completeness. The applicant shall retain these records until the license is issued.

(c) Appropriate methods must be adopted for evaluating the design basis external natural events based on the characteristics of the region and the current state of knowledge about such events.

§ 72.94 Design basis external man-induced events.

(a) The region must be examined for both past and present man-made facilities and activities that might endanger the proposed ISFSI or MRS. The important potential man-induced events that affect the ISFSI or MRS design must be identified.

(b) Information concerning the potential occurrence and severity of such events must be collected and evaluated for reliability, accuracy, and completeness.

(c) Appropriate methods must be adopted for evaluating the design basis external man-induced events, based on the current state of knowledge about such events.

§ 72.96 Siting limitations.

(a) An ISFSI which is owned and operated by DOE must not be located at any site within which there is a candidate site for a HLW repository. This limitation shall apply until such time as DOE decides that such candidate site is no longer a candidate site under consideration for development as a HLW repository.

(b) An MRS must not be sited in any State in which there is located any site approved for site characterization for a HLW repository. This limitation shall apply until such time as DOE decides that the candidate site is no longer a candidate site under consideration for development as a repository. This limitation shall continue to apply to any site selected for construction as a repository.

(c) If an MRS is located, or is planned to be located, within 50 miles of the first HLW repository, any Commission decision approving the first HLW repository application must limit the quantity of spent fuel or high-level radioactive waste that may be stored. This limitation shall prohibit the storage STATUTORY ADD 8

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 44 of 50 of a quantity of spent fuel containing in excess of 70,000 metric tons of heavy metal, or a quantity of solidified high-level radioactive waste resulting from the reprocessing of such a quantity of spent fuel, in both the repository and the MRS until such time as a second repository is in operation.

(d) An MRS authorized by section 142(b) of NWPA (101 Stat. 1330-232, 42 U.S.C. 10162(b)) may not be constructed in the State of Nevada. The quantity of spent nuclear fuel or high-level radioactive waste that may be stored at an MRS authorized by section 142(b) of NWPA shall be subject to the limitations in § 72.44(g) of this part instead of the limitations in paragraph (c) of this section.

§ 72.98 Identifying regions around an ISFSI or MRS site.

(a) The regional extent of external phenomena, man-made or natural, that are used as a basis for the design of the ISFSI or MRS must be identified.

(b) The potential regional impact due to the construction, operation or decommissioning of the ISFSI or MRS must be identified. The extent of regional impacts must be determined on the basis of potential measurable effects on the population or the environment from ISFSI or MRS activities.

(c) Those regions identified pursuant to paragraphs (a) and (b) of this section must be investigated as appropriate with respect to:

(1) The present and future character and the distribution of population, (2) Consideration of present and projected future uses of land and water within the region, and (3) Any special characteristics that may influence the potential consequences of a release of radioactive material during the operational lifetime of the ISFSI or MRS.

§ 72.100 Defining potential effects of the ISFSI or MRS on the region.

(a) The proposed site must be evaluated with respect to the effects on populations in the region resulting from the release of radioactive materials under normal and accident conditions during operation and decommissioning STATUTORY ADD 9

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 45 of 50 of the ISFSI or MRS; in this evaluation both usual and unusual regional and site characteristics shall be taken into account.

(b) Each site must be evaluated with respect to the effects on the regional environment resulting from construction, operation, and decommissioning for the ISFSI or MRS; in this evaluation both usual and unusual regional and site characteristics must be taken into account.

§ 72.102 Geological and seismological characteristics for applications before October 16, 2003 and applications for other than dry cask modes of storage.

(a)(1) East of the Rocky Mountain Front (east of approximately 104° west longitude), except in areas of known seismic activity including but not limited to the regions around New Madrid, MO, Charleston, SC, and Attica, NY, sites will be acceptable if the results from onsite foundation and geological investigation, literature review, and regional geological reconnaissance show no unstable geological characteristics, soil stability problems, or potential for vibratory ground motion at the site in excess of an appropriate response spectrum anchored at 0.2 g.

(2) For those sites that have been evaluated under paragraph (a)(1) of this section that are east of the Rocky Mountain Front, and that are not in areas of known seismic activity, a standardized design earthquake (DE) described by an appropriate response spectrum anchored at 0.25 g may be used.

Alternatively, a site-specific DE may be determined by using the criteria and level of investigations required by appendix A of part 100 of this chapter.

(b) West of the Rocky Mountain Front (west of approximately 104° west longitude), and in other areas of known potential seismic activity, seismicity will be evaluated by the techniques of appendix A of part 100 of this chapter.

Sites that lie within the range of strong near-field ground motion from historical earthquakes on large capable faults should be avoided.

(c) Sites other than bedrock sites must be evaluated for their liquefaction potential or other soil instability due to vibratory ground motion.

(d) Site-specific investigations and laboratory analyses must show that soil conditions are adequate for the proposed foundation loading.

STATUTORY ADD 10

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 46 of 50 (e) In an evaluation of alternative sites, those which require a minimum of engineered provisions to correct site deficiencies are preferred. Sites with unstable geologic characteristics should be avoided.

(f) The design earthquake (DE) for use in the design of structures must be determined as follows:

(1) For sites that have been evaluated under the criteria of appendix A of 10 CFR part 100, the DE must be equivalent to the safe shutdown earthquake (SSE) for a nuclear power plant.

(2) Regardless of the results of the investigations anywhere in the continental U.S., the DE must have a value for the horizontal ground motion of no less than 0.10 g with the appropriate response spectrum.

§ 72.103 Geological and seismological characteristics for applications for dry cask modes of storage on or after October 16, 2003.

(a)(1) East of the Rocky Mountain Front (east of approximately 104° west longitude), except in areas of known seismic activity including but not limited to the regions around New Madrid, MO; Charleston, SC; and Attica, NY; sites will be acceptable if the results from onsite foundation and geological investigation, literature review, and regional geological reconnaissance show no unstable geological characteristics, soil stability problems, or potential for vibratory ground motion at the site in excess of an appropriate response spectrum anchored at 0.2 g.

(2) For those sites that have been evaluated under paragraph (a)(1) of this section that are east of the Rocky Mountain Front, and that are not in areas of known seismic activity, a standardized design earthquake ground motion (DE) described by an appropriate response spectrum anchored at 0.25 g may be used. Alternatively, a site-specific DE may be determined by using the criteria and level of investigations required by paragraph (f) of this section. For a site with a co-located nuclear power plant (NPP), the existing geological and seismological design criteria for the NPP may be used. If the existing design criteria for the NPP is used and the site has multiple NPPs, then the criteria for the most recent NPP must be used.

(b) West of the Rocky Mountain Front (west of approximately 104° west longitude), and in other areas of known potential seismic activity east of the STATUTORY ADD 11

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 47 of 50 Rocky Mountain Front, seismicity must be evaluated by the techniques presented in paragraph (f) of this section. If an ISFSI or MRS is located on an NPP site, the existing geological and seismological design criteria for the NPP may be used. If the existing design criteria for the NPP is used and the site has multiple NPPs, then the criteria for the most recent NPP must be used.

(c) Sites other than bedrock sites must be evaluated for their liquefaction potential or other soil instability due to vibratory ground motion.

(d) Site-specific investigations and laboratory analyses must show that soil conditions are adequate for the proposed foundation loading.

(e) In an evaluation of alternative sites, those which require a minimum of engineered provisions to correct site deficiencies are preferred. Sites with unstable geologic characteristics should be avoided.

(f) Except as provided in paragraphs (a)(2) and (b) of this section, the DE for use in the design of structures, systems, and components must be determined as follows:

(1) Geological, seismological, and engineering characteristics. The geological, seismological, and engineering characteristics of a site and its environs must be investigated in sufficient scope and detail to permit an adequate evaluation of the proposed site, to provide sufficient information to support evaluations performed to arrive at estimates of the DE, and to permit adequate engineering solutions to actual or potential geologic and seismic effects at the proposed site. The size of the region to be investigated and the type of data pertinent to the investigations must be determined based on the nature of the region surrounding the proposed site.

Data on the vibratory ground motion, tectonic surface deformation, nontectonic deformation, earthquake recurrence rates, fault geometry and slip rates, site foundation material, and seismically induced floods and water waves must be obtained by reviewing pertinent literature and carrying out field investigations. However, each applicant shall investigate all geologic and seismic factors (for example, volcanic activity) that may affect the design and operation of the proposed ISFSI or MRS facility irrespective of whether these factors are explicitly included in this section.

(2) Geologic and seismic siting factors. The geologic and seismic siting factors considered for design must include a determination of the DE for STATUTORY ADD 12

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 48 of 50 the site, the potential for surface tectonic and nontectonic deformations, the design bases for seismically induced floods and water waves, and other design conditions as stated in paragraph (f)(2)(iv) of this section.

(i) Determination of the Design Earthquake Ground Motion (DE). The DE for the site is characterized by both horizontal and vertical free-field ground motion response spectra at the free ground surface. In view of the limited data available on vibratory ground motions for strong earthquakes, it usually will be appropriate that the design response spectra be smoothed spectra. The DE for the site is determined considering the results of the investigations required by paragraph (f)(1) of this section. Uncertainties are inherent in these estimates and must be addressed through an appropriate analysis, such as a probabilistic seismic hazard analysis (PSHA) or suitable sensitivity analyses.

(ii) Determination of the potential for surface tectonic and nontectonic deformations. Sufficient geological, seismological, and geophysical data must be provided to clearly establish if there is a potential for surface deformation.

(iii) Determination of design bases for seismically induced floods and water waves. The size of seismically induced floods and water waves that could affect a site from either locally or distantly generated seismic activity must be determined.

(iv) Determination of siting factors for other design conditions. Siting factors for other design conditions that must be evaluated include soil and rock stability, liquefaction potential, and natural and artificial slope stability. Each applicant shall evaluate all siting factors and potential causes of failure, such as, the physical properties of the materials underlying the site, ground disruption, and the effects of vibratory ground motion that may affect the design and operation of the proposed ISFSI or MRS.

(3) Regardless of the results of the investigations anywhere in the continental U.S., the DE must have a value for the horizontal ground motion of no less than 0.10 g with the appropriate response spectrum.

STATUTORY ADD 13

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 49 of 50

§ 72.104 Criteria for radioactive materials in effluents and direct radiation from an ISFSI or MRS.

(a) During normal operations and anticipated occurrences, the annual dose equivalent to any real individual who is located beyond the controlled area must not exceed 0.25 mSv (25 mrem) to the whole body, 0.75 mSv (75 mrem) to the thyroid and 0.25 mSv (25 mrem) to any other critical organ as a result of exposure to:

(1) Planned discharges of radioactive materials, radon and its decay products excepted, to the general environment, (2) Direct radiation from ISFSI or MRS operations, and (3) Any other radiation from uranium fuel cycle operations within the region.

(b) Operational restrictions must be established to meet as low as is reasonably achievable objectives for radioactive materials in effluents and direct radiation levels associated with ISFSI or MRS operations.

(c) Operational limits must be established for radioactive materials in effluents and direct radiation levels associated with ISFSI or MRS operations to meet the limits given in paragraph (a) of this section.

§ 72.106 Controlled area of an ISFSI or MRS.

(a) For each ISFSI or MRS site, a controlled area must be established.

(b) Any individual located on or beyond the nearest boundary of the controlled area may not receive from any design basis accident the more limiting of a total effective dose equivalent of 0.05 Sv (5 rem), or the sum of the deep-dose equivalent and the committed dose equivalent to any individual organ or tissue (other than the lens of the eye) of 0.5 Sv (50 rem). The lens dose equivalent may not exceed 0.15 Sv (15 rem) and the shallow dose equivalent to skin or any extremity may not exceed 0.5 Sv (50 rem). The minimum distance from the spent fuel, high-level radioactive waste, or reactor-related GTCC waste handling and storage facilities to the nearest boundary of the controlled area must be at least 100 meters.

STATUTORY ADD 14

USCA Case #20-1187 Document #2015152 Filed: 09/01/2023 Page 50 of 50 (c) The controlled area may be traversed by a highway, railroad or waterway, so long as appropriate and effective arrangements are made to control traffic and to protect public health and safety.

§ 72.108 Spent fuel or high-level radioactive waste transportation.

The proposed ISFSI or MRS must be evaluated with respect to the potential impact on the environment of the transportation of spent fuel, high-level radioactive waste, or reactor-related GTCC waste within the region.

STATUTORY ADD 15