NRC-2016-0231, 11-8-21 Amended Petition for Review (DC Cir.)(Case No. 21-1048)
| ML21321A226 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 11/08/2021 |
| From: | Lodge T, Morgan L - No Known Affiliation, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Don't Waste Michigan, Nuclear Energy Information Service, Public Citizen, San Luis Obispo Mothers for Peace, Sustainable Energy and Economic Development Coalition (SEED) |
| To: | NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 1921507, 21-1048, 86FR51926, NRC-2016-0231 | |
| Download: ML21321A226 (63) | |
Text
USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 1 of 8
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
DONT WASTE MICHIGAN, )
CITIZENS ENVIRONMENTAL COALITION, CITIZENS FOR ) Case No. 21-1048 ALTERNATIVES TO CHEMICAL CONTAMINATION, NUCLEAR )
ENERGY INFORMATION SERVICE, PUBLIC CITIZEN, INC., )
SAN LUIS OBISPO MOTHERS FOR PEACE, SUSTAINABLE )
ENERGY AND ECONOMIC DEVELOPMENT COALITION )
AND LEONA MORGAN, INDIVIDUALLY, )
Petitioners, )
- v. )
UNITED STATES NUCLEAR )
REGULATORY COMMISSION and the UNITED STATES OF )
AMERICA,
)
Respondents.
)
AMENDED PETITION FOR REVIEW
Pursuant to 42 U.S.C. § 2239, 28 U.S.C. § 2344, 5 U.S.C. § 702, 42 U.S.C.
§ 10139, Fed. R. App. P. 15(a), and D.C. Cir. Rule 15(a), Petitioners Dont Waste
(Page 1 of Total)
USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 2 of 8
Michigan, Citizens for Alternatives to Chemical Contamination, Public Citizen,
Inc., San Luis Obispo Mothers for Peace, Nuclear Energy Information Service,
Citizens Environmental Coalition, Sustainable Energy and Economic Develop-
ment (SEED) Coalition and Leona Morgan, Individually (Petitioner Dont
Waste Michigan, et al.), through their undersigned counsel, hereby amend their
petition for review in this proceeding to seek review of the United States Nuclear
Regulatory Commissions (NRC) Memorandum and Order CLI-20-14, issued on
December 17, 2020 (CLI-20-14) (attached to the original Petition for Review as
Exhibit A); and the Commissions Memorandum and Order CLI-20-13, issued on
December 4, 2020 (CLI-20-13") (originally attached as Exhibit B). In addition,
Petitioners Dont Waste Michigan et al. seek review of the issuance by the NRC of
a license to build and operate the ISP/WCS Consolidated Interim Storage Facility,
notice of which was published at 86 Fed. Reg. 51,926 (Sept. 17, 2021), copy
hereto attached.
Petitioners seek review of CLI-20-14 and issuance of the license on the
grounds that the Commission wrongfully and unlawfully denied all but one of the
Petitioners, to wit, Dont Waste Michigan, Citizens Environmental Coalition,
Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information
(Page 2 of Total)
USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 3 of 8
Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace and Leona
Morgan, leave to participate as formal intervenors in a licensing proceeding before
the Commission captioned In the Matter of Interim Storage Partners LLC, (WCS
Consolidated Interim Storage Facility), Docket No. 72-1050-ISFSI. Denial to
these Petitioners of the opportunity to participate in the licensing proceeding
violated the Atomic Energy Act (AEA), 42 U.S.C. §§ 2011 et seq., the Nuclear
Waste Policy Act (NWPA), 42 U.S.C. §§ 10101 et seq., and the Administrative
Procedure Act (APA), 5 U.S.C. §§ 706.
All Petitioners, including Sustainable Energy and Economic Development
Coalition, maintain that in CLI-20-14, the NRC wrongfully and unlawfully applied
the AEA, NWPA, APA and/or the National Environmental Policy Act (NEPA),
42 U.S.C. §§ 4321 et seq. when it ruled that all Petitioners had failed to plead any
contentions that were admissible in the aforementioned proceeding. Specifically,
all Petitioners seek review of the Commissions rulings on the below Contentions:
! Contention 1 (NEPA Analysis of Transportation Impacts)
! Contention 4 (Underestimation of Low-Level Radioactive Waste
Volume)
! Contention 5 (Environmental Justice Effects of Transportation)
! Contention 6 (Effects of Oil and Gas Drilling)
(Page 3 of Total)
USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 4 of 8
! Contention 8 (Inadequate Consideration of Alternatives)
! Contention 11 (Lack of a Dry Transfer System)
! Contention 14 (NEPA Analysis of Security Risks)
Further, Petitioner Sustainable Energy and Economic Development
Coalition maintains that in CLI-20-13 and by issuance of the license, the NRC
wrongfully and unlawfully applied the AEA, NWPA, APA and/or the National
Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. when it ruled that
SEED had failed to plead an admissible Contention 17. Petitioner SEED seeks
review of the Commissions rulings as to SEEDs Contention 17 that the Interim
Storage Partners Environmental Report was inadequate for failing to include and
analyze the findings of a report by the Nuclear Waste Technical Review Board.
Consequently, Petitioners respectfully request this Court to review, reverse,
and vacate CLI-20-14 and CLI-20-13 and the issuance of the license as aforesaid;
alternatively and/or cumulatively, to order the dismissal of the license application
under review; and to grant such other and additional remedies that may be
warranted by law and equity.
Petitioners filing is timely because it is made within the 60-day period
established by the Hobbs Act, 28 U.S.C. § 2344, for bringing a petition for judicial
(Page 4 of Total)
USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 5 of 8
review of an agency action. Both CLI-20-13 and CLI-20-14 were decided within
the 60 days next preceding the date of filing of the original Petition for Review by
these Petitioners, and the issuance of the license occurred within the 60 days next
preceding the date of filing of this Amended Petition for Review.
Further, venue is appropriate within the D.C. Circuit pursuant to 28 U.S.C. §
2343.
November 8, 2021 /s/ Terry J. Lodge Terry J. Lodge, Esq.
316 N. Michigan St., Suite 520 Toledo, OH 43604-5627 (419) 205-7084 tjlodge50@yahoo.com lodgelaw@yahoo.com Counsel for Petitioners
(Page 5 of Total)
USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 6 of 8
51926 Federal Register/Vol. 86, No. 178/Friday, September 17, 2021/Notices
comments from private citizens and by webcast at the Web addresshttps:// Secretary, Washington, DC 20555, at industry organizations. The NRC staffs video.nrc.gov/. 301-415-1969, or by email at evaluation and resolution of the public Friday, October 8, 2021 Tyesha.Bush@nrc.gov or Betty.Thweatt@
comments are documented in ADAMS nrc.gov.
under Accession No. ML21211A578. 10:00 a.m. Meeting with the Advisory The NRC is holding the meetings III. Congressional Review Act Committee on Reactor Safeguards under the authority of the Government (Public Meeting); (Contact: Larry in the Sunshine Act, 5 U.S.C. 552b.
NUREG-1021, Revision 12, is a rule Burkhart: 301-287-3775) Dated: September 15, 2021.
as defined in the Congressional Review Additional Information: Due to For the Nuclear Regulatory Commission.
Act (5 U.S.C. 801-808). However, the COVID-19, there will be no physical Wesley W. Held, Office of Management and Budget has public attendance. The public is invited Policy Coordinator, Office of the Secretary.
not found it to be a major rule as to attend the Commissions meeting live defined in the Congressional Review by webcast at the Web addresshttps:// [FR Doc. 2021-20296 Filed 9-15-21; 4:15 pm]
Act. video.nrc.gov/. BILLING CODE 7590-01-P Dated: September 14, 2021. Week of October 11, 2021Tentative For the Nuclear Regulatory Commission. There are no meetings scheduled for NUCLEAR REGULATORY Christian B. Cowdrey, the week of October 11, 2021. COMMISSION Chief, Operator Licensing and Human Factors [Docket No. 72-1050; NRC-2016-0231]
Branch, Division of Reactor Oversight, Office Week of October 18, 2021Tentative of Nuclear Reactor Regulation. There are no meetings scheduled for Interim Storage Partners, LLC; WCS
[FR Doc. 2021-20171 Filed 9-16-21; 8:45 am] the week of October 18, 2021. Consolidated Interim Storage Facility; BILLING CODE 7590-01-P Issuance of Materials License and Week of October 25, 2021Tentative Record of Decision NUCLEAR REGULATORY Thursday, October 28, 2021 AGENCY: Nuclear Regulatory COMMISSION 10:00 a.m. Meeting with the Commission.
Organization of Agreement States ACTION: License and record of decision;
[NRC-2021-0001] and the Conference of Radiation issuance.
Sunshine Act Meetings Control Program Directors (Public Meeting); (Contact: Celimar
SUMMARY
- The U.S. Nuclear Regulatory TIME AND DATE: Weeks of September 20, Valentin-Rodriguez: 301-415-7124) Commission (NRC) has issued Materials 27, October 4, 11, 18, 25, 2021. Additional Information: Due to License No. SNM-2515 to Interim PLACE: Commissioners Conference COVID-19, there will be no physical Storage Partners, LLC (ISP) to construct Room, 11555 Rockville Pike, Rockville, public attendance. The public is invited and operate the WCS Consolidated Maryland. to attend the Commissions meeting live Interim Storage Facility (CISF) as by webcast at the Web addresshttps:// proposed in its license application, as STATUS: Public. video.nrc.gov/. amended, and to receive, possess, store, MATTERS TO BE CONSIDERED: CONTACT PERSON FOR MORE INFORMATION: and transfer spent nuclear fuel and Week of September 20, 2021 For more information or to verify the Greater-than-Class-C radioactive waste status of meetings, contact Wesley Held at the WCS CISF in Andrews County, There are no meetings scheduled for at 301-287-3591 or via email at Texas. ISP will be required to operate the week of September 20, 2021. Wesley.Held@nrc.gov. The schedule for under the conditions listed in Materials Week of September 27, 2021Tentative Commission meetings is subject to License No. SNM-2515. The NRC staff change on short notice. has published a record of decision Thursday, September 30, 2021 The NRC Commission Meeting (ROD) that supports the NRCs decision 9:00 a.m. Strategic Programmatic Schedule can be found on the internet to approve ISPs license application for Overview of the Operating Reactors at: https://www.nrc.gov/public-involve/ the WCS CISF and to issue the license.
and New Reactors Business Lines public-meetings/schedule.html. DATES: September 17, 2021.
(Public Meeting); (Contact: Candace The NRC provides reasonable ADDRESSES: Please refer to Docket ID De Messieres: 301-415-8395) accommodation to individuals with NRC-2016-0231 when contacting the Additional Information: Due to disabilities where appropriate. If you NRC about the availability of COVID-19, there will be no physical need a reasonable accommodation to information regarding this document.
public attendance. The public is invited participate in these public meetings or You may access publicly available to attend the Commissions meeting live need this meeting notice or the information related to this document by webcast at the Web addresshttps:// transcript or other information from the using any of the following methods:
video.nrc.gov/. public meetings in another format (e.g.,
- Federal Rulemaking Website: Go to braille, large print), please notify Anne https://www.regulations.gov and search Week of October 4, 2021Tentative Silk, NRC Disability Program Specialist, for Docket ID NRC-2016-0231. Address Tuesday, October 5, 2021 at 301-287-0745, by videophone at questions about Docket IDs in 10:00 a.m. Meeting with the Advisory 240-428-3217, or by email at Regulations.gov to Stacy Schumann; Committee on the Medical Uses of Anne.Silk@nrc.gov. Determinations on telephone: 301-415-0624; email:
Isotopes (Public Meeting); (Contact: requests for reasonable accommodation Stacy.Schumann@nrc.gov. For technical Don Lowman: 301-415-5452) will be made on a case-by-case basis. questions, contact the individual listed Members of the public may request to in the FOR FURTHER INFORMATION Additional Information: Due to receive this information electronically. CONTACTsection of this document.
COVID-19, there will be no physical If you would like to be added to the
- NRCs Agencywide Documents public attendance. The public is invited distribution, please contact the Nuclear Access and Management System (Page 6 of Total)to attend the Commissions meeting live Regulatory Commission, Office of the (ADAMS): You may access publicly
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Federal Register/Vol. 86, No. 178/Friday, September 17, 2021/Notices 51927
available documents online in the 51.102 paragraph (a) of title 10 of the safety evaluation report, final EIS, and ADAMS Public Documents collection at Code of Federal Regulations (10 CFR), ROD.
https://www.nrc.gov/reading-rm/ which requires that a Commission ISPs request for a materials license adams.html. To begin the search, select decision on any action for which a final was previously noticed in the Federal Begin Web-based ADAMS Search. For environmental impact statement (EIS) Register on November 14, 2016 (81 FR problems with ADAMS, please contact has been prepared be accompanied by 79531). A notice of docketing with an the NRCs Public Document Room (PDR) or include a concise public ROD. As opportunity to request a hearing and to reference staff at 1-800-397-4209, 301-discussed in the ROD and the final EIS petition for leave to intervene was 415-4737, or by email to pdr.resource@ for ISPs license application for a CISF published in the Federal Register on nrc.gov. The ADAMS accession number for spent nuclear fuel in Andrews January 30, 2017 (82 FR 8773). Four for each document referenced (if it is County, Texas (ADAMS Accession No. groups of petitioners filed petitions to available in ADAMS) is provided the ML21209A955), the NRC staff intervene. An Atomic Safety and first time that it is mentioned in this considered a range of reasonable Licensing Board considered petitions document. In addition, for the alternatives that included the No-Action and admitted one contention. The Board convenience of the reader, the ADAMS alternative, as required by the National subsequently dismissed the contention accession numbers are provided in a Environmental Policy Act of 1969, as as moot after ISP supplemented its table in the section of this document amended; storage at a government-application with information that the entitled, SUPPLEMENTARY INFORMATION. owned CISF; alternative design and contention had noted was missing, and
- Attention: The PDR, where you may storage technologies; and alternative the Board subsequently terminated the examine and order copies of public locations. The final EIS documents the adjudicatory proceeding. Intervenors documents, is currently closed. You environmental review, including the appealed the decisions to the may submit your request to the PDR via NRC staffs recommendation to issue an Commission, and the Commission email at pdr.resource@nrc.gov or call 1-NRC license to ISP to construct and affirmed the Board decisions, with one 800-397-4209 or 301-415-4737, operate a CISF for spent nuclear fuel at new contention remanded to the Board between 8:00 a.m. and 4:00 p.m. (ET), the proposed location, subject to the for consideration. The Board Monday through Friday, except Federal determinations in the NRC staffs safety subsequently dismissed the remanded holidays. review of the application. The final EIS contention, and the Commission denied FOR FURTHER INFORMATION CONTACT: conclusion is based on the NRC staffs an appeal of the Board decision.
John-Chau Nguyen, Office of Nuclear independent environmental review, as Material Safety and Safeguards, U.S. well as (i) the license application, which In issuing a materials license to ISP Nuclear Regulatory Commission, includes the environmental report and for the WCS CISF, the NRC has Washington, DC 20555-0001; telephone: supplemental documents and ISPs determined based on its review of this 301-415-0262; email: John-responses to the NRC staffs requests for application that there is reasonable Chau.Nguyen@nrc.gov. additional information; (ii) consultation assurance that: (i) The activities SUPPLEMENTARY INFORMATION: with Federal, State, Tribal, and local authorized by the license can be I. Discussion agencies and input from other conducted without endangering the stakeholders, including members of the health and safety of the public; and (ii)
The NRC has issued a license to ISP public; and (iii) the assessments these activities will be conducted in for its WCS CISF in Andrews County, provided in the final EIS. compliance with the applicable Texas (ADAMS Package Accession No. The NRC staff prepared a final safety regulations of 10 CFR part 72. The NRC ML21188A096). Materials License No. evaluation report that documents the has further determined that the issuance SNM-2515 authorizes ISP to construct staffs safety and security review of the of the license will not be inimical to the and operate its facility as proposed in its application (ADAMS Accession No. common defense and security.
license application, as amended, and to ML21188A101). The staffs safety and In accordance with 10 CFR 2.390 of receive, possess, store, and transfer security review found that the the NRCs Rules of Practice, the spent nuclear fuel, including a small application met applicable NRC details with respect to this action, quantity of mixed-oxide fuel, and regulations in 10 CFR part 72, including the final safety evaluation Greater-than-Class-C radioactive waste Licensing Requirements for the report and accompanying at the WCS CISF. The license authorizes Independent Storage of Spent Nuclear documentation and license, are ISP to store up to 5,000 metric tons of Fuel, High-Level Radioactive Waste, and available electronically in the ADAMS uranium [5,500 short tons] of spent Reactor-Related Greater than Class C Public Documents collection at https://
nuclear fuel for a license period of 40 Waste. www.nrc.gov/reading-rm/adams.html.
years. ISP will be required to operate Documents related to the application From this site, you can access ADAMS, under the conditions listed in Materials carry Docket ID NRC-2016-0231. These which provides text and image files of License No. SNM-2515. documents for the ISP license include the NRC public documents.
The NRC staffs ROD that supports the the license application, the applicants NRCs decision to approve ISPs license safety analysis report, emergency plan, II. Availability of Documents application for the WCS CISF and to physical security plan, environmental issue Materials License No. SNM-2515 report, updates to these documents, and The documents identified in the is available in ADAMS under Accession applicant supplements and responses to following table are available to No. ML21222A214. The ROD satisfies NRC staff requests for additional interested persons through one or more the regulatory requirement in section information, and the NRC staffs final of the following methods, as indicated.
Document ADAMS accession No.
- 1. Initial application, safety analysis report (SAR) and environmental report (ER), dated April 28, 2016.................... ML16133A070 (Package).
- 2. Application Revision 1, SAR Revision 1, and ER Revision 1, dated March 16, 2017.............................................. ML17082A021 (Package).
- 3. Application Revision 2, SAR Revision 2, and ER Revision 2, dated July 19, 2018................................................. ML18206A595 (Package).
(Page 7 of Total)4. ER Revision 3, dated February 17, 2020.................................................................................................................. ML20052E144 (Package).
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51928 Federal Register/Vol. 86, No. 178/Friday, September 17, 2021/Notices
Document ADAMS accession No.
- 5. SAR Revision 3, dated May 22, 2020........................................................................................................................ ML20150A337 (Package).
- 6. Application Revision 3, dated August 24, 2020......................................................................................................... ML20237F470.
- 7. SAR Revision 4, September 2, 2020......................................................................................................................... ML20261H419 (Package).
- 8. Application Revision 4 and SAR Revision 5, dated April 12, 2021........................................................................... ML21105A766 (Package).
- 9. Applicant response to request for additional information, dated July 19, 2018........................................................ ML18208A437.
- 10. Applicant response to request for additional information, dated January 7, 2019.................................................. ML19009A099.
- 11. Applicant response to request for additional information, dated March 22, 2019................................................... ML19085A055.
- 12. Applicant response to request for additional information, dated May 31, 2019...................................................... ML19156A048 (Package).
- 13. Applicant response to request for additional information, dated June 26, 2019..................................................... ML19197A044.
- 14. Applicant response to request for additional information, dated June 28, 2019..................................................... ML19184A159 (Package).
- 15. Applicant response to request for additional information, dated June 28, 2019..................................................... ML19190A227 (Package).
- 16. Applicant response to request for additional information, dated July 31, 2019...................................................... ML19217A231 (Package).
- 17. Applicant response to request for additional information, dated August 20, 2019.................................................. ML19235A157 (Package).
- 18. Applicant response to request for additional information, dated September 18, 2019........................................... ML19270E399.
- 19. Applicant submittal of supplemental information, dated September 20, 2019........................................................ ML19268A113 (Package).
- 20. Applicant response to request for additional information, dated November 21, 2019............................................ ML19337B502 (Package).
- 21. Applicant response to request for additional information, dated January 6, 2020.................................................. ML20015A448 (Package).
- 22. Applicant response to request for additional information, dated January 17, 2020................................................ ML20028E843 (Package).
- 23. Applicant response to request for additional information, dated January 22, 2020................................................ ML20028D890 (Package).
- 24. Applicant response to request for additional information, dated February 14, 2020.............................................. ML20052D995 (Package).
- 25. Applicant response to request for additional information, dated February 14, 2020.............................................. ML20052E047 (Package).
- 26. Applicant submittal of supplemental information, dated March 5, 2020.................................................................. ML20071F152 (Package).
- 27. Applicant response to request for additional information, dated March 16, 2020................................................... ML20083J964 (Package).
- 28. Applicant response to request for additional information, dated April 7, 2020........................................................ ML20105A133 (Package).
- 29. Applicant response to request for additional information, dated April 7, 2020........................................................ ML20105A171 (Package).
- 30. Applicant response to request for additional information, dated May 18, 2020...................................................... ML20139A173 (Package).
- 31. Applicant response to request for additional information, dated June 11, 2020..................................................... ML20163A008.
- 32. Applicant submittal of supplemental information, dated July 21, 2020................................................................... ML20203M040.
- 33. Applicant submittal of supplemental information, dated January 27, 2021............................................................. ML21027A147.
- 34. Draft Environmental Impact Statement, dated May 2020........................................................................................ ML20122A220.
- 35. Overview of the Draft Environmental Impact Statement, dated May 2020............................................................. ML20121A016.
- 36. Overview of the Draft Environmental Impact Statement (Spanish language version), dated May 2020................ ML20136A148.
- 37. Final Environmental Impact Statement, dated July 2021........................................................................................ ML21209A955.
- 38. Overview of the Final Environmental Impact Statement, dated July 2021.............................................................. ML21200A050.
- 39. Final Safety Evaluation Report, dated September 2021......................................................................................... ML21188A101.
- 40. NRC Staffs Record of Decision, dated September 13, 2021................................................................................. ML21222A214.
- 41. Materials License for ISP, dated September 13, 2021............................................................................................ ML21188A096 (Package).
Dated: September 13, 2021. www.prc.gov. Those who cannot submit Service request, the title of each Postal For the Nuclear Regulatory Commission. comments electronically should contact Service request, the requests acceptance Shana R. Helton, the person identified in the FOR FURTHER date, and the authority cited by the Director, Division of Fuel Management, Office INFORMATION CONTACTsection by Postal Service for each request. For each of Nuclear Material Safety and Safeguards. telephone for advice on filing request, the Commission appoints an
[FR Doc. 2021-20092 Filed 9-16-21; 8:45 am] alternatives. officer of the Commission to represent BILLING CODE 7590-01-P FOR FURTHER INFORMATION CONTACT: the interests of the general public in the David A. Trissell, General Counsel, at proceeding, pursuant to 39 U.S.C. 505 202-789-6820. (Public Representative).Section II also POSTAL REGULATORY COMMISSION SUPPLEMENTARY INFORMATION: establishes comment deadline(s) pertaining to each request.
[Docket Nos. CP2020-171; CP2020-172; Table of Contents The public portions of the Postal CP2020-179; CP2020-182; CP2020-196] Services request(s) can be accessed via I. Introduction the Commissions website ( http://
New Postal Product II. Docketed Proceeding(s) www.prc.gov). Non-public portions of
AGENCY: Postal Regulatory Commission. I. Introduction the Postal Services request(s), if any, ACTION: Notice. The Commission gives notice that the can be accessed through compliance Postal Service filed request(s) for the with the requirements of 39 CFR
SUMMARY
- The Commission is noticing a Commission to consider matters related 3011.301.1 recent Postal Service filing for the to negotiated service agreement(s). The The Commission invites comments on Commissions consideration concerning request(s) may propose the addition or whether the Postal Services request(s) a negotiated service agreement. This removal of a negotiated service in the captioned docket(s) are consistent notice informs the public of the filing, agreement from the market dominant or with the policies of title 39. For invites public comment, and takes other the competitive product list, or the request(s) that the Postal Service states administrative steps. modification of an existing product concern market dominant product(s),
DATES: Comments are due: September currently appearing on the market applicable statutory and regulatory 21, 2021. dominant or the competitive product 1See Docket No. RM2018-3, Order Adopting ADDRESSES: Submit comments list. Final Rules Relating to Non-Public Information, electronically via the CommissionsSection II identifies the docket June 27, 2018, Attachment A at 19-22 (Order No.
(Page 8 of Total)Filing Online system at http:// number(s) associated with each Postal 4679).
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UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
DONT WASTE MICHIGAN, )
CITIZENS ENVIRONMENTAL COALITION, CITIZENS FOR ) Case No. 21-1048 ALTERNATIVES TO CHEMICAL CONTAMINATION, NUCLEAR ) (Consolidated with Nos.
ENERGY INFORMATION 21-1055, 21-1056 and 21-SERVICE, PUBLIC CITIZEN, INC., ) 1179)
SAN LUIS OBISPO MOTHERS FOR PEACE, SUSTAINABLE )
ENERGY AND ECONOMIC DEVELOPMENT COALITION )
AND LEONA MORGAN, INDIVIDUALLY, )
Petitioners, )
- v. )
UNITED STATES NUCLEAR )
REGULATORY COMMISSION and the UNITED STATES OF )
AMERICA,
)
Respondents.
)
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to D.C. Circuit Rules 15(c)(3) and 28(a)(1), counsel for Petitioners
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USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 2 of 4
Dont Waste Michigan, Citizens Environmental Coalition, Citizens for
Alternatives to Chemical Contamination, Nuclear Energy Information Service,
Public Citizen, Inc., San Luis Obispo Mothers for Peace, Sustainable Energy and
Economic Development Coalition, and Leona Morgan, individually (collectively,
Dont Waste Michigan, et al.) certify as follows:
- 1. Parties, Intervenors, and Amici Curiae
Parties. This case has previously been consolidated with several others. The
instant Petitioners (Case No. 21-1048) are Dont Waste Michigan, Citizens
Environmental Coalition, Citizens for Alternatives to Chemical Contamination,
Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo
Mothers for Peace, Sustainable Energy and Economic Development Coalition, and
Leona Morgan, individually. The Petitioner in case No. 21-1056 is Beyond
Nuclear. The Petitioner in case No. 21-1055 is the Sierra Club. The Petitioners in
case 21-1179 are Fasken Land and Minerals, Ltd. and Permian Basin Land and
Royalty Owners (collectively, Fasken).
On March 5, 2021, the Court consolidated case No. 21-1056 with case Nos.
21-1048 and 21-1055. On August 26, 2021, the Court consolidated the previously
consolidated case Nos. 21-1056, 21-1048, and 21-1055 with case No. 21-1179.
In each case, respondents are the United States Nuclear Regulatory
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USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 3 of 4
Commission (NRC) and the United States of America.
Intervenors and Amicus Curiae. On October 8, 2021, the Court granted
Interim Storage Partners, LLCs motion for leave to intervene.
- 2. Rulings Under Review
Petitioner Dont Waste Michigan, et al. seek review of the below NRC
orders made by the NRC in Interim Storage Partners LLC (WCS Consolidated
Interim Storage Facility, NRC Docket No. 72-1050:
! The NRCs Memorandum and Order CLI-20-13, issued on December 4,
2020;
! The NRCs Memorandum and Order CLI-20-14, issued on December 17,
2020; and
! The NRCs issuance of a license to build and operate the ISP/WCS
Consolidated Interim Storage Facility, notice of which was published at 86 Fed.
Reg. 51,926 (Sept. 17, 2021).
- 3. Related Cases
On February 9, 2021, Sierra Club filed a petition for review of CLI-20-15 in
case No. 21-1055. On February 10, 2021, Beyond Nuclear filed a petition for
review of an NRC Order issued October 29, 2018 and NRC Memorandum and
Order CLI-20-14, issued on December 17, 2020. By order dated March 5, 2021,
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USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 4 of 4
this Court consolidated case Nos. 21-1055 and 21-1056 with Dont Waste
Michigan et al.s Case No. 21-1048. On August 20, 2021, Fasken filed a petition
for review of the NRCs Order issued on October 29, 2018, CLI-20-14, and CLI-
21-093 in case No. 21-1179. By order dated August 26, 2021, this Court
consolidated case No. 21-1179 with the previously consolidated case Nos. 21-
1048, 21-1055, and 21-1056.
November 8, 2021 /s/ Terry J. Lodge Terry J. Lodge, Esq.
316 N. Michigan St., Suite 520 Toledo, OH 43604-5627 (419) 205-7084 tjlodge50@yahoo.com lodgelaw@yahoo.com Counsel for Petitioners
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USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 1 of 51
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
DONT WASTE MICHIGAN, )
CITIZENS ENVIRONMENTAL COALITION, CITIZENS FOR ) Case No. 21-1048 ALTERNATIVES TO CHEMICAL CONTAMINATION, NUCLEAR ) (Consolidated with Nos.
ENERGY INFORMATION 21-1055, 21-1056 and 21-SERVICE, PUBLIC CITIZEN, INC., ) 1179)
SAN LUIS OBISPO MOTHERS FOR PEACE, SUSTAINABLE )
ENERGY AND ECONOMIC DEVELOPMENT COALITION )
AND LEONA MORGAN, INDIVIDUALLY, )
Petitioners, )
- v. )
UNITED STATES NUCLEAR )
REGULATORY COMMISSION and the UNITED STATES OF )
AMERICA,
)
Respondents.
)
AGENCYS UNDERLYING DECISIONS CHALLENGED VIA PETITION FOR REVIEW
Petitioners Dont Waste Michigan et al. herewith provides copies of these
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USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 2 of 51
underlying decisions of the Nuclear Regulatory Commission (NRC) in Interim
Storage Partners LLC (WCS Consolidated Interim Storage Facility), NRC Docket
No. 72-1050, which gave rise to their Petition and Amended Petition for Review:
! NRC Memorandum and Order CLI-20-13, issued on December 4, 2020;
! NRC Memorandum and Order CLI-20-14, issued on December 17, 2020;
! NRC issuance of a license to build and operate the WCS Consolidated
Interim Storage Facility, published at 86 Fed. Reg. 51,926 on September 17, 2021.
November 8, 2021 /s/ Terry J. Lodge Terry J. Lodge, Esq.
316 N. Michigan St., Suite 520 Toledo, OH 43604-5627 (419) 205-7084 tjlodge50@yahoo.com lodgelaw@yahoo.com Counsel for Petitioners
(Page 14 of Total)
USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 3 of 51
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Kristine L. Svinicki, Chairman Jeff Baran Annie Caputo David A. Wright Christopher T. Hanson
In the Matter o f
INTERIM STORAGE PARTNERS LLC Docket No. 72-1050-ISFSI
(WCS Consolidated Interim Storage Facility)
MEMORANDUM AND ORDER
Today we address Sustainable Energy and Economic D evelopment Coalitions (SEEDs)
appeal of the Atomic Safety and Licensing Boards d enial of SEEDs motion to file a late-filed
contention in the proceeding regarding Interim Stor age Partners LLCs (ISPs) application to
build and operate a consolidated interim storage fa cility (CISF) in Andrews County, TX. 1 For the
reasons described below, we affirm the Boards deci sion.
I. BACKGROUND
ISP proposes to locate its CISF adjacent to an exis ting low-level radioactive waste
disposal facility owned and operated by Waste Contr ol Specialists, LLC, which has partnered
1 See Interim Storage Partners LLC, License Application, rev. 2 (July 19, 2018), at 1-1 (ADAMS accession no. ML18221A397 (package)) (License Appli cation).
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with ISP in the proposed CISF project. 2 If licensed, the CISF would be authorized to stor e up to
5,000 metric tons of waste in NRC-approved packages for up to forty years. 3
The NRC published notice of ISPs application in A ugust 2018 and offered interested
persons an opportunity to request a hearing. 4 SEED joined several other organizations
(collectively, Joint Petitioners) in filing a heari ng request with several contentions. 5 The Board
found that SEED demonstrated standing but denied Jo int Petitioners hearing request because
none of the proposed contentions were admissible. 6
Thereafter, SEED filed with the Board a motion for leave to admit an additional
contention (Contention 17) based on the Nuclear Was te Technical Review Board (NWTRB)
September 2019 report to Congress and the Secretary of Energy. 7 The Board denied SEEDs
motion and found that SEED had not shown good cause for filing proposed Contention 17 after
the deadline and that Contention 17 was inadmissibl e. 8 In affirming the Boards decision on
2 See id. at 1-4, 1-5.
3 WCS Consolidated Interim Spent Fuel Storage Facili ty Environmental Report, rev. 2 (July 19, 2018), at 1-1 (ML18221A405 (package)) (Environmenta l Report).
4 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070, 44,070-75 (Aug. 29, 2018), corrected, 83 Fed. Reg. 44,680 (Aug. 31, 2018)
(correcting the deadline date for petitioners to re quest a hearing to October 29, 2018).
5 Petition of Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alt ernatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Sustainable Energy and Ec onomic Development Coalition, and Leona Morgan, Individually, to Intervene, and Reque st for an Adjudicatory Hearing (Nov. 13, 2018).
6 LBP-19-7, 90 NRC 31, 39,87-109 (Aug. 23, 2019).
7 See Motion of Intervenor Sustainable Energy and Eco nomic Development Coalition for Leave to File Late-Filed Contention, and Contention 17 (Oct. 23, 2019), at 1-2 (SEED Motion); U.S.
Nuclear Waste Technical Review Board, Preparing fo r Nuclear Waste Transportation:
Technical Issues that Need to Be Addressed in Prepa ring for a Nationwide Effort to Transport Spent Nuclear Fuel and High-Level Radioactive Waste (Sept. 2019) (ML19297A235) (NWTRB Report).
8 LBP-19-11, 90 NRC 358, 362-68 (Dec. 13, 2019).
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appeal, we do not reach the question of whether SEE D has shown good cause for filing
proposed Contention 17 after the deadline because S EED has not shown error in the Boards
determination regarding the admissibility of Conten tion 17. 9
II. DISCUSSION
A. Standard of Review
Our regulations allow a petitioner whose hearing re quest has been wholly denied to
appeal. 10 We afford substantial deference to the Boards th reshold determinations on
contention admissibility unless an appeal demonstra tes an error of law or abuse of discretion. 11
B. SEEDs Proposed Contention 17
In proposed Contention 17, SEED asserted that ISP s Environmental Report was
insufficient because it did not account for the fin dings of the NWTRB Report. 12 SEED argued
that the NWTRB Report significantly alters... t he scope of this proceeding beyond the
question of whether ISPs application to build and construct a proposed CISF meets our
regulations. 13 SEED asserted that, based on the NWTRB Report, a range of potential waste
transportation and packaging issues must be address ed. 14 According to SEED, these issues
include: improvements to highways and rail lines th at might be used for shipments; the
deployment of dry transfer systems (DTSs) at reacto r sites to repackage fuel into standardized
9 Notice of Appeal of LBP-19-11 by Intervenor Sustain able Energy and Economic Development Coalition and Brief in Support of Appeal (Jan. 7, 2020) (SEED Appeal).
10 10 C.F.R. § 2.311(c).
11 See, e.g., Tennessee Valley Authority (Browns Ferry Nuclear Plant Units 1, 2, and 3),
CLI-17-5, 85 NRC 87, 91 (2017); Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-16-9, 83 NRC 472, 482 (2016).
12 See SEED Motion at 5-20.
13 Id. at 4.
14 See id. at 5-7.
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USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 6 of 51
transportation, aging, and disposal canisters that DOE may develop in the future; and the actual
timing and cost of future shipments, especially tho se involving high-burnup fuel. 15 SEED
claimed that ISP must evaluate these additional iss ues or the environmental effects of waste
transportation to the site will be impermissibly se gmented from those associated with building
and operating the proposed CISF. 16
The Board rejected SEEDs argument and found that proposed Contention 17 did not
raise a genuine dispute with the transportation eva luations already contained in ISPs
application. The Board found ISPs Environmental R eport addressed the potential
environmental impacts of transporting spent nuclear fuel to the proposed CISF but that SEED
did not challenge the discussion in the Environment al Report and moreover fail[ed] to
acknowledge or dispute any safety analyses, aging m anagement plans or quality assurance
programs described in ISPs application. 17 The Board ruled that proposed Contention 17
therefore did not meet the threshold admissibility requirements of 10 C.F.R. § 2.309(f)(1)(vi). 18
The Board also found proposed Contention 17 to be outside the scope of this
proceeding. ISP did not seek approval for waste tr ansportation, packaging, or repackaging
activities like those addressed by the NWTRB Report.19 Instead, the Board determined that the
proposed CISF would accept only NRC-approved transp ortation and waste packages, which the
15 See id. at 5-7, 9-11, 19-20.
16 See id. at 11-13.
17 LBP-19-11, 90 NRC at 367. ISPs evaluation of the environmental impacts of transporting spent nuclear fuel (including high-burnup fuel) is set forth in its Environmental Report. See Environmental Report at 4-9 to -10, 4-12, 4-16, 4-2 3.
18 LBP-19-11, 90 NRC at 367.
19 See id. at 366-67.
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USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 7 of 51
NTWRB Report acknowledged are currently in use and could be shipped in the near term. 20
New transportation and waste package designs would be reviewed separately under our
regulations in 10 C.F.R. Part 71. 21 Further, the title holders of spent nuclear fuel which include
private companieswould be responsible for transpor ting waste to the proposed facility, not
ISP. 22 Accordingly, the Board found SEEDs assertion tha t ISP must evaluate the impacts
associated with the development and deployment of f uture packaging systems and
transportation to be outside the scope of this proc eeding. 23
On appeal, SEED argues (as it did before the Board ) that the National Environmental
Policy Act (NEPA) requires ISP to further evaluate the environmental effects of waste
transportation and repackaging. 24 SEED also asserts that the Board impermissibly ra ised
SEEDs burden to demonstrate the admissibility of p roposed Contention 17. 25 However, SEED
does not challenge the Boards finding that ISPs E nvironmental Report has already evaluated
the expected impacts of transporting waste in NRC-a pproved packages to its proposed facility.
SEED therefore does not show that the Board erred.
SEED also argues on appeal that proposed Contentio n 17 should be admitted because
the NWTRB Report includes materially different info rmation than what is in ISPs application. 26
Specifically, SEED states that the NWTRB Report dis cusses DOEs potential development of
20 See id. at 366; see also NWTRB Report at xxiii, xxvii (noting that commercia l spent nuclear fuel currently stored in NRC-approved dual-purpose storage and transportation canisters likely could be shipped within a year or two of developin g a destination site and obtaining funding).
21 LBP-19-11, 90 NRC at 367-68.
22 Id. at 367.
23 Id. at 367-68.
24 See SEED Appeal at 17-19.
25 See id. at 19.
26 See id. at 15-17.
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USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 8 of 51
standardized waste canisters and the need for at-re actor DTSs to load waste from existing
packages into those canisters, while ISPs applicat ion does not. 27 But as the Board explained,
the NWTRB Reports recommendationsadvice to DOE on how to advance its plans for
nuclear waste transportation, storage, and disposal solutions at the Federal leveldo not
determine the scope of ISPs project or this licens ing proceeding. 28 The NWTRB Report does
not provide a legal basis to expand the scope of th is proceeding beyond what our regulations
require. 29 We see no error in the Boards reasoning.
Further, we do not agree with SEED that the Board s refusal to admit proposed
Contention 17 will result in an incomplete evaluati on of the projects environmental impacts
under NEPA. As we have noted, ISPs application al ready evaluates the impacts of waste
transportation to the proposed CISF during the prop osed license term. 30 Moreover, the NRCs
Generic Environmental Impact Statement for Continue d Storage of Spent Nuclear Fuel, as
codified in our regulations, evaluates the environm ental impacts of DTS construction and waste
repackaging beyond the proposed license term. 31 We would require separate safety and
environmental reviews before we approve any future license application from DOE (or another
27 Id. at 16.
28 See LBP-19-11, 90 NRC at 366-67.
29 Id.
30 See note 17, supra. Although ISPs application does not analyze the impacts of building and operating a DTS to enable spent fuel repackaging at its facility, the Board found ISP was not required to do so; ISP does not seek authorization to construct or operate a DTS. See LBP-19-11, 90 NRC at 368. Our regulations do not r equire an applicant to address the impacts of spent nuclear fuel storage beyond the license te rm. See 10 C.F.R. § 51.23(b).
31 See Generic Environmental Impact Statement for Continu ed Storage of Spent Nuclear Fuel (Final Report), NUREG-2157, vol. 1, ch. 5 (Sept. 20 14) (ML14196A105); 10 C.F.R. § 51.23(b).
The environmental impacts described in NUREG-2157 a re deemed incorporated into the environmental impact statement for an independent s pent fuel storage installation. 10 C.F.R.
§§ 51.23(b), 51.80(b)(1).
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USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 9 of 51
entity) for new transportation or storage packages or for the construction and operation of a
DTS.
II. CONCLUSION
For the foregoing reasons, we affirm the Boards decision denying SEEDs motion for
leave to file proposed Contention 17.
For the Commission
Annette L. Digitally signed by Annette L. Vietti-Cook Vietti-Cook Date: 2020.12.04
___________________________ 12:12:15 -05'00' Annette L. Vietti-Cook Secretary of the Commission
Dated at Rockville, Maryland, this 4 th day of December 2020.
(Page 21 of Total)
USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 10 of 51
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
In the Matter of )
)
INTERIM STORAGE PARTNERS LLC ) Docket N o. 72-1050-ISFSI
)
(WCS Consolidated Interim Storage Facility) )
)
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-20-13) have been served upon the following persons by the Electronic Information Exchange:
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O16-B33 Mail Stop: O16-B33 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov Hearing Docket E-mail: Hearing.Docket@nrc.gov
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Office of the General Counsel Washington, DC 20555-0001 Mail Stop - O-14A44 Washington, DC 20555-0001 Paul S. Ryerson, Chair Joe Gillespie, Esq.
Administrative Judge Sara Kirkwood, Esq.
E-mail: paul.ryerson@nrc.gov Mauri Lemoncelli, Esq.
Patrick Moulding, Esq.
Nicholas G. Trikouros Kevin Roach, Esq.
Administrative Judge Carrie Safford, Esq.
E-mail: nicholas.trikouros@nrc.gov Thomas Steinfeldt Rebecca Susko, Esq.
Dr. Gary S. Arnold Alana Wase, Esq.
Administrative Judge Brian Newell, Senior Paralegal E-mail: gary.arnold@nrc.gov E-mail: joe.gillespie@nrc.gov sara.kirkwood@nrc.gov Ian Curry, Law Clerk mauri.lemoncelli@nrc.gov Stephanie Fishman, Law Clerk patrick.moulding@nrc.gov Molly Mattison, Law Clerk kevin.roach@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 alana.wase@nrc.gov brian.newell@nrc.gov
(Page 22 of Total)
USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 11 of 51
WCS CISF - Docket No. 72-1050-ISFSI COMMISSION MEMORANDUM AND ORDER (CLI-20-13)
Counsel for Beyond Nuclear Sustainable Energy and Economic Development (SEED) Coalition Diane Curran, Esq. Karen D. Hadden Harmon, Curran, Spielberg and Eisenberg Executive Director, 1725 DeSales Street NW, Suite 500 605 Carismatic Lane Washington, DC 20036 Austin, TX 78748 E-mail: dcurran@harmoncurran.com E-mail: karendhadden@gmail.com
Mindy Goldstein, Esq.
Emory University School of Law Counsel for Interim Storage Partners LLC Turner Environmental Law Clinic Morgan, Lewis & Bockius LLP 1301 Clifton Road 1111 Pennsylvania Avenue NW Atlanta, GA 30322 Washington, DC 20004 E-mail: magolds@emory.edu Grant Eskelsen, Esq.
Timothy Matthews, Esq.
Nuclear Information and Ryan Lighty, Esq.
Resource Service (NIRS) Paul Bessette, Esq.
Diane DArrigo E-mail: grant.eskelsen@morganlewis.com 6930 Carroll Avenue timothy.matthews@morganlewis.com Suite 340 ryan.lighty@morganlewis.com Takoma Park, MD 20912 paul.bessette@morganlewis.com Email: dianed@nirs.org
Chris Hebner, Esq. Counsel for Fasken Land and Oil and City of San Antonio, TX Permian Basin Land and Royalty Owners P.O. Box 839966 San Antonio, TX 78283 Monica R. Perales, Esq.
E-mail: chris.hebner@sanantonio.gov 6101 Holiday Hill Road Midland, TX 79707 E-mail: monicap@forl.com Counsel for Sierra Club Wallace Taylor Kanner & Whiteley, LLC 4403 1 st Avenue S.E. 701 Camp Street Suite 402 New Orleans, LA 70130 Cedar Rapids, IA 52402 Allan Kanner, Esq.
E-mail: wtaylorlaw@aol.com Elizabeth Petersen, Esq.
Cynthia St. Amant, Esq Conlee Whiteley, Esq.
Counsel for Dont Waste Michigan, et al E-mail: a.kanner@kanner-law.com Terry Lodge, Esq. e.petersen@kanner-law.com 316 N. Michigan Street c.stamant@kanner-law.com Suite 520 c.whiteley@kanner-law.com Toledo, OH 43604 E-mail: tjlodge50@yahoo.com Krupskaya T. Digitally signed by Krupskaya T. Castellon Castellon Date: 2020.12.04 12:16:35
_____________________________________ -05'00' Dated at Rockville, Maryland, Office of the Secretary of the Commission this 4 th day of Decembe r 2020 (Page 23 of Total)
2 USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 12 of 51
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Kristine L. Svinicki, Chairman Jeff Baran Annie Caputo David A. Wright Christopher T. Hanson
In the Matter o f
INTERIM STORAGE PARTNERS LLC Docket No. 72-1050-IS FSI
(WCS Consolidated Interim Storage Facility)
MEMORANDUM AND ORDER
This proceeding involves the application of Interi m Storage Partners LLC (ISP) for a
license to construct and operate a consolidated int erim storage facility (CISF) in Andrews
County, Texas. Today we address the appeals of an Atomic Safety and Licensing Board
decision from petitioners Beyond Nuclear, Inc. (Bey ond Nuclear); Fasken Land and Minerals,
Ltd. and Permian Basin Land and Royalty Owners (tog ether, Fasken); and a coalition of
petitioners known as the Joint Petitioners. 1 We also refer Faskens motion to admit a new
1 LBP-19-7, 90 NRC 31 (2019). Joint Petitioners are a coalition of Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alt ernatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., S an Louis Obispo Mothers for Peace, Sustainable Energy and Economic Development Coaliti on (SEED Coalition), and Leona Morgan, individually.
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USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 13 of 51
contention based on the Staffs draft environmental impact statement to the Board for
consideration. 2
I. BACKGROUND
ISP is a joint venture between Waste Control Speci alists LLC (WCS) and Orano CIS
LLC formed to design, build, and operate the WCS CI SF. 3 The proposed CISF would be
located within the owner-controlled area of the exi sting WCS site in Andrews, Texas, which
currently includes two separate low-level radioacti ve waste (LLRW) disposal facilities. 4 ISP has
applied for a forty-year license to store 5,000 met ric tons of spent nuclear fuel (SNF), mixed
oxide fuel, and Greater than Class C LLRW in the pr oposed CISF. 5 If the license is granted,
ISP anticipates that it will request license amendm ents for seven expansion phases over the
next twenty years, and the CISF may ultimately stor e up to 40,000 metric tons of waste. 6
The Board found that although Beyond Nuclear, Fask en, and at least one member of the
Joint Petitioners had established standing, none pr offered an admissible contention. 7 Beyond
Nuclear, Fasken, and Joint Petitioners have appeale d the denial of their hearing requests, and
2 See Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Motion for Leave to File New and/or Amended Contention (July 6, 2020) (Fasken Motion for Contention 5); see also NRC Staffs Answer in Opposition to Fasken Oil and Ranch, Ltd.s and Permian Basin Land and Royalty Owners Motion to Reopen the Record and File New Contention 5 (July 31, 2020); Interim Storage Partners LLCs Answer Opposing Fask ens and PBLROs Second Motion to Reopen the Record and Motion for Leave to File New Contention 5 (July 31, 2020).
3 WCS Consolidated Interim Storage Facility System S afety Analysis Report (Public Version),
Docket No. 72-1050, rev. 2 (Aug. 9, 2018), at 1-2 ( ADAMS accession no. ML18221A408 (package)) (SAR).
4 Id. at 1-2.
5 WCS Consolidated Interim Spent Fuel Storage Facili ty Environmental Report, Docket No. 72-1050, rev. 2 (Aug. 9, 2018), at 1-1 (ML18221A405 (p ackage)) (Environmental Report).
6 Environmental Report at 1-1.
7 LBP-19-7, 90 NRC at 39.
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USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 14 of 51
our decision today addresses those appeals. We als o address Faskens request for access to
sensitive unclassified non-safeguards information ( SUNSI) relating to one of the contentions the
Board rejected in its ruling. 8
Also, the Board initially found that Sierra Club h ad demonstrated standing and proposed
an admissible contention. 9 Sierra Clubs contention has since been dismissed as moot, and we
will address Sierra Clubs appeals separately. 10 On December 13, 2019, the Board rejected a
late-filed contention proposed by Joint Petitioners and terminated the proceeding. 11
II. DISCUSSION
A. Standard of Review
Our regulations allow a petitioner whose hearing re quest has been wholly denied to
appeal. 12 We generally defer to the Board on matters of con tention admissibility and standing
unless an appeal demonstrates an error of law or ab use of discretion. 13
8 Appeal of Staff Denial of Petitioners Request for SUNSI Information Related to ISPs Responses to RAIs (Feb. 12, 2020) (Fasken SUNSI Appeal); see also Request for Sensitive Unclassified Non-Safeguards Information (SUNSI) reg arding Interim Storage Partners Waste Control Specialist Consolidated Interim Storage Fac ility (Jan. 16, 2020) (Fasken SUNSI Request).
9 See LBP-19-7, 90 NRC at 50, 78-80.
10 See LBP-19-9, 90 NRC 181 (2019); Sierra Clubs Brief in Support of Appeal from Atomi c Safety and Licensing Board Rulings Denying Admissib ility of Contentions in Licensing Proceeding (Dec. 13, 2019). The Boards dismissal of Sierra Clubs contention has mooted ISPs appeal of the decision granting Sierra Club a hearing, and we therefore dismiss ISPs appeal without addressing its merits.
11 See LBP-19-11, 90 NRC 258 (2019), affirmed, CLI-20-13, 92 NRC __ (Dec. 4, 2020) (slip op.).
12 10 C.F.R. § 2.311(c)
13 See, e.g., Crow Butte Resources, Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 13-14 (2014); Strata Energy, Inc. (Ross In Situ Uranium Recovery Project), CLI-12-12, 75 NRC 603, 608-13 (2012).
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USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 15 of 51
B. Beyond Nuclears Appeal
Beyond Nuclear proposed one contention in which it asserted that the application must
be denied because the central premise of ISPs app lication is that the U.S. Department of
Energy (DOE) will take ownership of the waste and c ontract with ISP to store it until a
permanent repository is available and this arrangem ent would violate the Nuclear Waste Policy
Act (NWPA). 14 The contention is substantially similar to the cl aim raised by Beyond Nuclear
and other petitioners in the Holtec International C ISF application proceeding, and we affirm the
Board here for the reasons explained in our recent decision in that proceeding. 15
The Staff, ISP, and the Board all recognize that th e NWPA does not authorize DOE to
take title to SNF at this time. 16 ISPs proposed license would include a license co ndition
requiring that, before ISP could begin operations, it must have storage contracts in place
assuring that ISPs clients would fund operations. 17 And the proposed wording of the license
provides that DOE could be that client. 18 Specifically, the proposed license condition stat es that
ISP must have contracts in place with [DOE] or oth er SNF title holder(s) stipulating that the
DOE or the other SNF title holder(s) is/are respons ible for funding operations required for
14 Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Oct. 3, 2018) (Beyond Nuclear Petition).
15 See Holtec International (HI-STORE Consolidated Interim Storage Facility), C LI-20-4, 91 NRC 167, 173-76 (2020); Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Sept. 14, 2018), at 10-11 (ML18257A324).
16 See LBP-19-7, 90 NRC at 57; Interim Storage Partners LLCs Response to the Atom ic Safety and Licensing Boards Questions Regarding the U.S. Department of Energys Authority Under the Nuclear Waste Policy Act (June 28, 2019) (ISP Response to Board Questions)
(acknowledging that DOE may not take title under cu rrent law).
17 See Interim Storage Partners LLC, License Application (Aug. 9, 2018) (License Application),
Attach. A, License for Independent Storage of Spent Nuclear Fuel and High-Level Radioactive Waste, at 3 (ML18221A397 (package)).
18 Id.
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USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 16 of 51
storing the material prior to commencing operation s. 19 In other words, the proposed license
would be conditioned on ISP contracting either with the nuclear power plant operators who
generated the spent nuclear fuel, consistent with c urrent law, or with DOE, which would require
statutory amendment.
ISP acknowledges that it hopes Congress will change the law to allow DOE to enter
storage contracts prior to the availability of a re pository. 20 Thus, if the proposed license were to
be issued, ISP could take advantage of a future cha nge in the law by bidding for a DOE contract
without having to first amend its license.
The Board found that Beyond Nuclears proposed cont ention did not raise a genuine
dispute with the application. 21 The Board reasoned that rather than being central ly premised on
ISP contracting with DOE in violation of the NWPA, the application also includes the option of
contracting with nuclear plant owners, which is con sistent with existing law, and whether that
option will prove commercially viable was not an is sue before it. 22
On appeal, Beyond Nuclear argues that the Board err ed by reframing the contention to
eliminate its central premise and thereby failed t o judge the contention by its own terms. 23
Beyond Nuclear further argues that the proposed lic ense condition would, contrary to law, give
ISP and/or DOE... rights under the license to enter storage contracts. 24 Along the same
lines, it claims that the license would allow DOE to be an owner of spent fuel during
19 Id.
20 ISP Response to Board Questions at 3.
21 LBP-19-7, 90 NRC at 57-58.
22 Id.
23 Beyond Nuclears Brief on Appeal of LBP-19-07 (Sept. 17, 2019), at 11 (Beyond Nuclear Appeal).
24 Id. at 12.
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USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 17 of 51
transportation and storage at the CISF. 25 Beyond Nuclear misunderstands the nature of the
proposed license and its conditions.
As an initial matter, the Board agreed with Beyond Nuclears central argument that the
NWPA prevents DOE from taking title to SNF at this time. But this does not mean that the
application must automatically be rejected. The pr oposed license would not authorize ISP to
enter into illegal contracts. Rather, the proposed license would require that, before it can begin
operations, ISP must have contracts in place to ens ure it has a flow of operating funds.
Because an illegal contract is unenforceable, ISP p lainly could not rely on such contracts to
ensure its operating funds. 26 Moreover, granting a license to ISP would not eff ect or allow a
change of spent fuel ownership as between two parti es unrelated to ISP (the nuclear plant
owners and the DOE). Similarly, issuing a license to ISP would not grant any rights to DOE.
We therefore are not persuaded by Beyond Nuclears arguments that the proposed license
would authorize illegal activity.
Beyond Nuclear also asserts that issuance of the li cense would violate the
Administrative Procedure Acts prohibition against agencies acting unlawfully, because the
license application contains provisions which, if i mplemented, would violate the NWPA. 27
Similarly, it argues that issuing the license would exceed our statutory authority because
we have no statutory authority to violate the NWPA. 28 It argues that its challenge to the license
was dismissed based on the hope for a change in the law or an expectation that DOE and ISP
would not violate the law. 29 But as we have explained above, the proposed lice nse would not
25 Id. at 2, 16.
26 See, e.g., Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 77-78 (1982).
27 Beyond Nuclear Appeal at 13-14 (citing 5 U.S.C. §§ 706(2)(A), (C)).
28 Id. at 13.
29 Id. at 13-16.
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authorize ISP to enter storage contracts with DOE a nd the proposed license is not premised on
illegal activity because there is a lawful option b y which ISP could fulfil the proposed license
condition.
Beyond Nuclear has not shown error in the Boards i nterpretation of the legal force of the
disputed license condition. The Boards conclusion that Beyond Nuclear had raised no genuine
dispute with the application was reasonable. We th erefore affirm its decision to dismiss this
contention.
C. Faskens Appeal
Fasken appeals the Boards determinations regardin g three of its six proposed
contentions. 30
- 1. Faskens Contention 2 (Abandoned Oil and Gas Wel ls) and SUNSI Access Request
In Contention 2, Fasken argued that the applicatio n failed to account for unstable
geological characteristics and soil stability pro blems of the site attributable to abandoned and
orphan oil and gas wells in the region. 31 Fasken supported this contention with the declara tion
of a geologist, Aaron Pachlhofer, who described the hydrogeology of the region and oil
development in the area. 32 Fasken asserted that there were 4,579 well bores within a ten-mile
radius of the proposed site. 33 Fasken further claimed that the abandoned wells c ould provide a
path for contaminants to reach the groundwater. 34 It argued that the application did not address
30 Fasken and PBLROs Brief on Appeal of LBP-19-07 (Sept. 17, 2019) (Fasken Appeal).
31 See Petition of Permian Basin Land and Royalty Orga nization and Fasken Land and Minerals for Intervention and Request for Hearing, at 15-17 (Oct. 29, 2018) (Fasken Petition).
32 Fasken Petition, Ex. 3, Declaration of Aaron Pachl hofer (Oct. 29, 2018), at 4-7 (Pachlhofer Declaration).
33 See Fasken Petition at 16; Tr. at 324 (Mr. Laughlin) ( providing revised figure for number of wells).
34 Fasken Petition at 17; see also Pachlhofer Declaration at 3-5.
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this information and therefore failed to analyze r egional geography and could not meet the
requirements of 10 C.F.R. § 72.103(a)(1). 35
ISP opposed the contention in its entirety, but th e Staff initially supported its admission in
part. 36 In its response to Faskens hearing request, the Staff acknowledged that Fasken had
raised an issue of whether the presence of a large number of improperly abandoned wells could
impact site stability. 37 The Staff changed its position and considered the issue moot after
Faskens response to a Staff Request for Additional Information (RAI) confirmed that the
proposed site itself contains only a single dry hol e, which has been properly plugged and
abandoned. 38
The Board dismissed the contention because it was f actually unsupported and did not
address portions of the application that discuss si te stability matters. 39 In particular, the Board
pointed out that ISPs safety evaluation acknowledg ed that oil and gas wells are in the general
vicinity of the site and addressed soil stability, induced seismicity, and vibratory ground
motion. 40 The Board found that unless Fasken could show som e reason why the offsite wells
would cause unstable geological characteristics, s oil stability problems or potential for vibratory
35 Fasken Petition at 15-17.
36 Interim Storage Partners LLCs Answer Opposing Hear ing Request and Petition to Intervene filed by Permian Basin Land and Royalty Organizatio n and Fasken Land and Minerals (Nov. 20, 2018), at 34-41 (ISP Answer to Fasken Petition); NRC Staffs Response to Petitions to Intervene and Requests for Hearing Filed by Permian Basin Land and Royalty Organization and Fasken Land and Minerals (Nov. 23, 2018), at 15-16 (Staff Answer to Fasken Petition).
37 Staff Answer to Fasken Petition at 16.
38 See Letter from Jeffery D. Isakson, ISP, to NRC Docume nt Control Desk, Submittal of Partial Response to First RAI (May 31, 2019) (ML19156A048 (package)) (First RAI Response Package), Encl. 3, RAI Responses (Public Version), at 3 (First RAI Responses); see Tr. at 328 (Mr. Gillespie).
39 LBP-19-7, 90 NRC at 112-13 (citing SAR §§ 2.1, 2.6.2; SAR, Attach. D § 4.3 (proprietary)).
40 Id. at 112 & n.544.
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ground motion at the site, ISP was not required to provide more information. 41 The Board
further found that the claims that the wells could provide a conduit for contaminants to the
groundwater did not dispute relevant portions of th e application, which explained why
groundwater contamination from spent fuel dry stora ge is unlikely at the site. 42 The Board
concluded that Fasken had shown no plausible impact from the existence of wells up to ten
miles from the site when there is only a single dry hole within the sites boundary. 43 It therefore
dismissed the contention because it did not present a genuine dispute with the application and
for lack of factual support.
We defer to the Boards finding that the contention is not supported in fact. Faskens
appeal renews its critique that the application doe s not adequately discuss the presence of
nearby wells, but the appeal does not address the B oards ruling that its contention did not show
how abandoned or orphaned wells outside the boundar y of the site and up to ten miles away
could affect the soil stability of the site. 44 Mr. Pachlhofers declaration does not contend tha t
abandoned or active wells five, ten, or even one mi le from the proposed CISF would cause soil
subsidence at the site. 45
On appeal, Fasken also argues that the plain langua ge of 10 C.F.R. § 72.103(a)(1)
requires ISP to analyze the entire region in which the proposed site is located for unstable
41 Id. at 112 (quoting 10 C.F.R. § 72.103(a)(1)).
42 Id. at 113 (citing SAR § 2.7 (The method of storage ( dry cask), the nature of the storage casks, the extremely low permeability of the red be d clay and the depth to groundwater beneath the CISF preclude the possibility of groundwater co ntamination from the operation of the WCS CISF.)).
43 Id.
44 Fasken Petition at 4-12.
45 See Pachlhofer Declaration at 6-7.
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geological characteristics. 46 But Faskens suggestion that ISP must discuss soi l stability
throughout the entire region of the facility withou t regard to the potential impacts to the proposed
facility is unpersuasive. The regulation Fasken ci tes lists several investigative methods to
ensure site stability, only one of which mentions t he region: sites east of the Rocky Mountains
such as the proposed site will be acceptable if th e results from onsite foundation and geological
investigation, literature review, and regional geol ogical reconnaissance show no unstable
geological characteristics, soil stability problems, or potential for [excessive] vibratory ground
motions at the site.47 Although the regulation directs regional geologi cal reconnaissance, it is
clear that the purpose of all these investigative m ethods is to determine the stability of the
proposed site, not the region in general. 48 We therefore affirm the Board s interpretation o f 10
C.F.R. § 72.103(a)(1).
On January 16, 2020, Fasken submitted to the NRC St aff a request for access to the
non-publicly available portion of an RAI response r eleased on January 6, 2020. Fasken stated
that it needed the information to support Contentio n 2. 49 The Staff denied the request on
January 27, 2020, and Fasken submitted an appeal on February 12, 2020. 50
Fasken argues that it needs the information in orde r to participate meaningfully in the
licensing proceeding. The information Fasken reque sts is detailed information about the
46 Fasken Appeal at 5-6.
47 10 C.F.R. § 72.103(a)(1) (emphasis added).
48 Fasken additionally challenges the Boards ruling that it failed to dispute relevant portions of the application because it did cite portions of the SAR in its petition. Fasken Appeal at 5-6. But given that the contention lacked factual support, w hether it provided cites to certain SAR sections is irrelevant. We additionally find no me rit to Faskens argument that the Staff should not have changed its position concerning the conten tions admissibility.
49 Fasken SUNSI Request at 3.
50 Letter from Sara Kirkwood, NRC, to Timothy Laughli n, Counsel for Fasken (Jan. 27, 2020)
(Denial of Fasken SUNSI Request) (ML20024D860); see also Fasken SUNSI Appeal.
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location, type, and status of oil, gas, and water w ells within a 10-kilometer radius of the
proposed CISF site, which Fasken argues is relevant to its Contention 2. But as described
above, the Board found Contention 2 inadmissible pr incipally because Fasken did not show that
wells located away from the site could affect soil stability on the site. Nothing in Faskens
SUNSI appeal contravenes that analysis. We therefo re deny Faskens request for access to the
non-public portions of ISPs RAI response.
- 2. Faskens Contention 3 (Airplane Crash)
In Contention 3, Fasken claimed that ISPs emergenc y response plan for the facility was
deficient in failing to account for aircraft crashe s and other hazards: The Applicants Emergency
Response Plan (ERP) fails to address how licensee w ill protect the facility from credible fire and
explosion effects including those that are caused b y aircraft crashes. 51 Fasken argued that the
ERP does not conform to the requirements of 10 C.F. R. § 72.122(c), which requires that
structures, systems, and components important to sa fety (SSCs) must be designed and located
so that they can continue to perform their safety functions effectively under credible fire and
explosion exposure conditions or to 10 C.F.R. § 7 2.24(d)(2), which requires that the application
evaluate SSCs designed to prevent and mitigate acci dents. 52 Fasken reasoned that ISP had
identified an airplane crash as a credible acciden t because it is listed in the ERP. 53 Fasken
51 Fasken Petition at 18; see Consolidated Emergency Response Plan (Mar. 15, 201 7)
(ML17082A054) (ERP).
52 Fasken Petition at 18-26 (quoting Final Report, St andard Review Plan for Spent Fuel Dry Storage Facilities, NUREG-1567 (Mar. 2000), § 6.4. 5 (ML003686776) (Dry Storage SRP)
(emphasis removed)).
53 Id. at 19; see ERP, app. C, Facility Emergency Action Levels.
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further argued that the ERP must take into account the size, velocity, weight and fuel loads of
various aircraft when assessing the hazards of su ch a crash. 54
The Board held that the contention did not dispute relevant portions of the application
and therefore did not raise a genuine issue of mate rial fact concerning emergency planning. 55
The Board found that the contention mistakes matter s that are to be addressed in the
emergency plan with matters that are addressed else where in the application. The Board
explained that § 72.122(c) is a design requirement, compliance with which is addressed in the
SAR, chapter 12, Accident Analysis, rather than i n the emergency plan. 56 The Board further
found that air crash accidents are not among the cr edible events listed. 57 Indeed, the
emergency response plan explicitly states that it d iscusses responses to various posited
scenarios, including those that have not been found to be credible. 58
On appeal, Fasken argues that the Board should have admitted its contention. First, it
argues that aircraft crashes are credible accidents because there are three airports within fifty
miles of the proposed facility. 59 Second, Fasken asserts that the Standard Review P lan for dry
54 Fasken Petition at 22 (citing Dry Storage SRP § 2. 5.2). Fasken further claimed in Contention 3 that the ERP relies on outside assistance to han dle catastrophic fires and explosions and does not specify how their current suppression syst ems will effectively mitigate fires and explosions until help arrives. Id. at 19, 22-23. It argued that emergency responders are located many miles from the site although time is of the essence in mitigating radiation exposure. Id. at 22-25. These arguments appear to have been ab andoned on appeal.
55 LBP-19-7, 90 NRC at 114-15.
56 Id. at 114.
57 Id. at 115. The Board observed that Fasken appears t o assume that all events that could trigger an emergency alert are necessarily credible events for which the facility must be designed to survive with its safety functions intac t. Id.
58 SAR § 13.5, Emergency Response Planning, provide s: The [ERP] planning basis includes credible events as well as hypothetical accidents w hose occurrence is not considered credible, so as not to limit the scope of Emergency Response Planning.
59 Fasken Appeal at 13.
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storage facilities requires an assessment of aircra ft crashes regardless of whether such crashes
are deemed credible. 60 Third, Fasken argues that the Board abused its di scretion because it
was inconsistent in its use of staff guidance docum ents in evaluating contention admissibility. 61
With respect to Faskens argument that an aircraft crash is credible because the facility
is within fifty miles of three airports, we first o bserve that Fasken offers no factual or expert
support for this argument. This argument is new on appeal. 62 In addition, Fasken does not
address the analysis ISP provided regarding the pro bability of such an accident, namely, that it
is less than one in a million per year. 63 Fasken does not question ISPs analysis specifica lly or
support its contention factually with anything othe r than the claim that airports are located within
a fifty mile radius.
We also disagree with Faskens argument that the St andard Review Plan for spent fuel
facilities, § 2.5.2, requires an analysis of aircra ft crash impacts without regard to whether such a
crash is credible. Section 2.5.2, by its own terms, directs the Staff reviewer to ensure that the
methods used by the applicant to quantify offsite hazards are consistent with the guidance in
chapter 15, which in turn directs that the reviewe r ensure that credible events have been
60 Id. at 13 (citing Dry Storage SRP § 2.5.2). The quote d section directs staff reviewers to review potential hazards associated with nearby fa cilities [including airports and consider]
aircraft size, velocity, weight and fuel load in as sessing the hazards of aircraft crashes on an installation near an airport.
61 Id. at 13-14.
62 We do not permit a participant to raise new argume nts on appeal. See Crow Butte Resources, Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 546 (2009).
63 See First RAI Responses at 1; First RAI Response Packa ge, Encl. 6, SAR Changed Pages (rev. 3 interim), at 4-12 (unnumbered). According to its RAI response, ISP used guidance in the Standard Review Plan for the Review of Safety Anal ysis Reports for Nuclear Power Plants:
LWR Edition, NUREG-0800, rev. 4 (Mar. 2010) § 3.5. 1.6 (ML100331298).
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analyzed. 64 A facility need not be designed to withstand eve ry conceivable accident, but it
must be designed to withstand those found to be cre dible. 65
We find unavailing Faskens argument that the Board applied Staff guidance documents
inconsistently in its analysis because the Board tr eated guidance documents as controlling in
rejecting other contentions. 66 Regulatory Guides describe approaches to complian ce that have
been deemed acceptable by the Staff in the past, bu t they do not create new regulatory
requirements. 67 Where an applicant follows an applicable guidance document, the burden is on
the petitioner to show that the application nonethe less falls short of regulatory requirements.
Fasken, however, has not identified an inconsistenc y in the Boards ruling on Contention 3 or an
abuse of discretion by the Board in its application of the guidance documents.
We therefore affirm the Boards decision to dismiss Fasken Contention 3.
64 See Dry Storage SRP § 15.5.
65 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI 22, 54 NRC 255, 259 (2001). In Private Fuel Storage, we ruled that the threshold probability for a design basis event (that is, whether an event is cr edible) should be one in one million for a spent fuel storage installation. Id. at 265. The Private Fuel Storage decision specifically addressed the probability of an aircraft crash into the facility. Id. at 263.
66 Fasken Appeal at 13-14. Fasken specifically cites the Boards rejection of Sierra Clubs proposed Contention 15. But the Board did not find that the guidance document was legally binding; it found that Sierra Club did not show how ISP had violated NEPA or NRC regulations in its environmental justice analysis. See LBP-19-7, 90 NRC at 84; see also Environmental Review Guidance for Licensing Actions Associated wi th NMSS Programs (Final Report),
NUREG-1748 (Aug. 2003), at 6-25 (ML032450279).
67 See Private Fuel Storage, CLI-01-22, 54 NRC at 264; International Uranium (USA) Corp.
(Request for Materials License Amendment), CLI-00-1, 51 NRC 9, 19 (2000) (NRC Guidance Documents are routine agency policy pronouncements that do not carry the binding effect of regulations.).
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- 3. Faskens Contention 4 (Groundwater and Aquifers) ; Motion to Reopen; Motion to Amend Contention 4 Based on New Informati on
In its proposed Contention 4, Fasken argued that bo th the Environmental Report and
SAR failed to consider the adverse effect the CISF will have on groundwater. 68 Specifically,
Fasken argued that the Environmental Report did not comply with 10 C.F.R. § 51.45 and that
the SAR did not contain adequate information for an independent review of all subsurface
hydrology-related design bases and compliance with dose radiological exposure standards to
ensure compliance with 10 C.F.R. § 72.122(b)(4). 69 Faskens expert Mr. Pachlhofer asserted
that four aquifers are in Andrews county at or near the WCS site. 70 Fasken also claimed that
water within one of these, the Antler Formation, is used for drinking and the formation is present
within a few feet of the surface on the WCS site. 71 However, the only support Fasken supplied
for the claim that the proposed CISF could contamin ate the groundwater was the assertion that
ISP has conceded that an airplane crash into the fa cility is a credible event that could cause the
release of radionuclides. 72
On January 21, 2020, Fasken filed a motion to reope n the proceeding and to admit an
amended Contention 4 based on ISPs response to an RAI from the Staff. 73 Faskens motion
68 Fasken Petition at 26-31.
69 Id. at 27 (quoting Dry Storage SRP § 2.4.5).
70 Pachlhofer Declaration at 4.
71 Fasken Petition at 30, Pachlhofer Declaration at 4.
72 Fasken Petition at 27-28.
73 Fasken Oil and Ranch, LTD and Permian Basin Land an d Royalty Owners Motion to Reopen the Record for Purposes of Considering and Admittin g an Amended Contention Based on New Information Provided by Interim Storage Partners in Response to NRC Requests for Additional Information (Jan. 21, 2020) (Fasken Motion to Reopen); Fasken Oil and Ranch, LTD and Permian Basin Land and Royalty Owners Motion for Le ave to Amend Contention Four Regarding Interim Storage Partners New Description of Groundwater Located below the Site and the Potential Impact the Site Will Have on the Groundwater (Jan. 21, 2020) (Fasken Motion to Amend Contention 4); see also Letter from Jeffery D. Isakson, ISP, to NRC Docume nt
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argues that ISPs RAI response provided a materiall y different description of the subsurface
environment at the site.
The Board dismissed the original contention because Fasken had not raised a material
dispute identifying a plausible pathway to the grou ndwater from the CISF. For the reasons it
provided in analyzing Fasken Contention 3, the Boar d was unpersuaded by the argument that
an aircraft accident presented a credible scenario that could result in a contamination release. 74
It found that Fasken did not challenge the finding in the SAR that four factors preclude the
possibility of groundwater contamination: the cani ster design, the method of storage, the
extremely low permeability of the red clay underlyi ng the site, and the depth to the groundwater
beneath the facilityabout 225 feet to the shallowe st water bearing zone. 75 In addition, the
Board found that because the only portions of the a pplication Fasken specifically challenged
were in the SAR, not the Environmental Report, the contention failed as an environmental
contention. 76
Faskens appeal challenges the Boards ruling rejec ting its claim concerning aircraft
crashes. 77 For the reasons the Board explained and as descri bed above, ISP never conceded
that an aircraft crash was a credible event, and Fa sken has not challenged ISPs analysis
Control Desk, Submission of ISP Responses for RAIs and Associated Document Markups from First Request For Additional Information, Part 3 ( Nov. 21, 2019), Encl. 3 (ML19337B502 (package)) (Part 3 RAI Response). Although the doc uments were received in November 2019, they were not publicly released until January 6, 20 20.
74 LBP-19-7, 90 NRC at 116.
75 Id. ; see SAR § 2.5, at 2-21.
76 LBP-19-7, 90 NRC at 116.
77 Fasken Appeal at 15-16. On appeal, Fasken also ar gues that its failure to cite portions of the Environmental Report should not preclude the conten tions admission as an environmental contention because the hydrology sections of the En vironmental Report are repeated verbatim in the hydrology sections of the SAR. Id. at 15. However, Faskens challenge to the SAR was also unsupported.
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concluding that such a crash is not a credible even t.78 Faskens petition provided no other
theory by which the canisters could release radionu clides to the environment. In addition,
Fasken did not challenge the Environmental Reports conclusion that the proposed facility
provides no potential for a liquid pathway because the spent fuel contains no liquid component
and the casks are sealed to prevent any liquids fro m contacting the spent fuel assemblies. 79
Fasken next argues that it presented a genuine disp ute regarding the presence,
location, and permeability of aquifers and formatio ns below the proposed site. 80 Faskens
proposed amendment to Contention 4 also pertains to a claimed mischaracterization of the site.
But neither Faskens original nor its amended Conte ntion 4 identifies a significant disparity
between the information in the SAR and the informat ion in Mr. Pachlhofers declaration and the
report on which he primarily relies. 81 The report on which Mr. Pachlhofer relies acknowl edges
that groundwater is not present continuously benea th the WCS site. 82 Moreover, Faskens
argument does not acknowledge the difference betwee n a geologic formation and a water-
saturated aquifer. While Mr. Pachlhofers declarat ion states that the Antlers Formation
underlies the site and contains groundwater used fo r drinking water in Midland Texas, it does
not claim that the Antlers Formation is saturated b eneath the CISF site. 83 ISPs application
78 See supra § II.C.2; LBP-19-7, 90 NRC at 115.
79 See Environmental Report § 6.2, at 6-1.
80 Fasken Appeal at 16.
81 See Fasken Petition, Ex. 4, Thomas M. Lehman & Ken Rai nwater, Geology of the WCS-Flying W Ranch, Andrews County, Texas (April 200 0) (Lehman and Rainwater Report). The Lehman and Rainwater Report focused on the Flying W Ranch area, immediately south of the proposed CISF, where there is currently a hazardous waste disposal site.
82 See Lehman and Rainwater Report at 16; see also id. at 30 (Fig. 10).
83 Pachlhofer Declaration at 4; see also Fasken Appeal at 18.
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acknowledges that the Antlers Formation is under it s site. 84 Moreover, even if there are minor
disagreements between the SAR and Faskens material s, Fasken does not show how these
relate to the underlying premise of its contention that the CISF would cause groundwater
contamination.
Faskens proposed amendment to Contention 4 focuses on the argument that the
application misrepresented the depth of groundwater at the site. In its proposed Amended
Contention 4, Fasken argues that ISP has acknowledg ed in its RAI response that groundwater
exists at the site only a few inches to a few feet below the surface. 85 But Faskens argument
for amending Contention 4 is based on a misreading of ISPs RAI response.
In RAI WR-11, the Staff asked ISP to identify the s hallowest groundwater located
beneath the proposed CISF footprint. ISP respond ed:
The shallowest groundwater beneath the proposed CIS F footprint is a few inches to a few feet of saturation in the undifferentiated Antlers/Ogallala sediments starting at the northern fence line of the Protected Area boundary in the northeast corner. The sands and gravels containing the water at a 90- to 100-fo ot depth are part of a hydrostratigraphic unit termed the Antlers/Ogallala/Gatu a (OAG) by ISP joint venture member Waste Control Specialists. 86
Therefore, the RAI response did not state that grou ndwater was present a few feet or a few
inches below the surface. Instead, it states that the depth of the groundwater is 90 to 100 feet
below the surface and the saturated thickness is a few inches to a few feet. Fasken
misinterprets the response.
84 SAR at 2-22 to 2-23.
85 See Fasken Motion to Reopen at 8; Fasken Motion to Ame nd Contention 4 at 7-8.
86 Part 3 RAI Response at 59. ISP also acknowledged in its response that the SARs statement that shallowest water bearing zone was at a depth o f 225 feet was measured at the neighboring WCS facility. Id.
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The remainder of Faskens proposed amended argumen t turns on the claim that
groundwater is present on the site no more than a f ew feet underground. 87 For example,
Fasken argues that the Board erred in finding that the red clay layer under the site would form a
natural barrier to the spread of any contamination. 88 Fasken reasons that the red clay layer
cannot possibly overlie the shallowest aquifer beca use the Environmental Report states that the
red clay layer is overlain by twenty-two to fifty-f our feet of sand, gravel and alluvium, and the
red bed clays will not provide a natural barrier to the groundwater located inches below the
site. 89 Because there is no basis to conclude that ground water exists inches below the
surface, this argument is without merit. 90
We deny Faskens request to amend Contention 4 beca use it lacks factual support. We
therefore do not consider whether Fasken has satisf ied the standards necessary to prevail on a
motion to reopen. We affirm the Boards ruling on Fasken Contention 4.
87 Fasken Motion to Amend Contention 4 at 3, 7-8, 13 n.40, 16, 19, 21. Fasken also argues that the RAI response admits that previous descriptions of groundwater were not based on sufficient boring data. Fasken Motion to Amend a t 14, 19 (citing Part 3 RAI Response at 45).
But the Part 3 RAI Response makes a different point when it states that the Lehman and Rainwater Report, which Mr. Pachlhofer cites in his declaration, was not based on sufficient boring data to distinguish the contacts between the Antlers and the Ogallala in the proposed CISF area. Part 3 RAI Response at 45.
88 Fasken Motion to Amend Contention 4 at 16, 21; see also LBP-19-7, 90 NRC at 116.
89 Fasken Motion to Amend Contention 4 at 21 (citing Environmental Report § 4.3, at 4-28).
90 See also NRC Staffs Answer in Opposition to Fasken Oil and Ranch, Ltd and Permian Basin Land and Royalty Owners Amended Contention 4 and A ccompanying Motion to Reopen the Record, at 7-8 (Feb. 13, 2020); Interim Storage Partners, LLCs Answer Opposing Fas kens and PBLROs Motion to Reopen the Record and Motion for Leave to Amend Contention Four, at 13-14 (Feb. 18, 2020). Fasken submitted a reply to IS Ps answer. See Fasken Oil and Ranch, Ltd.s and Permian Basin Land and Royalty Owners R eply to Interim Storage Partners, LLCs Answer Opposing Motion of Leave to Reopen the Recor d and Associated Motion for Leave to Amend Contention Four (Feb. 25, 2020). However, NRC regulations do not provide a right to reply to answers to a motion without prior permissi on from the Secretary of the Commission, and therefore Faskens reply has not been considere d. See 10 C.F.R. § 2.323(c).
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D. Joint Petitioners Appeal
The Board found that only one of the Joint Petition ers had demonstrated standing based
on the standing of SEED Coalition and SEED Coalitio ns member Beatrice Gardiner-Aguilar. 91
But the Board did not admit any of Joint Petitioner s fifteen proposed contentions, and Joint
Petitioners have appealed its decision with respect to seven of them. 92 Joint Petitioners have
additionally appealed the Boards finding that its other members did not demonstrate standing. 93
Because we find the Board properly rejected the app ealed contentions, we do not reach the
standing issue.
- 1. Joint Petitioners Contention 1 (NEPA Analysis o f Transportation Impacts)
Joint Petitioners argued in proposed Contention 1 that the environmental impact s of
waste transportation and storage at the proposed CI SF must be assessed together as part of a
single, integrated project under NEPA. 94 Joint Petitioners asserted that ISPs Environment al
Report is lacking because it did not include detai ls and environmental impacts of a planned
[twenty-year] shipping campaign involving at least 3,000 deliveries of SNF and GTCC waste to
ISP. 95 Specifically, they claimed that the Environmental Report did not include complete
91 LBP-19-7, 90 NRC at 50-51.
92 Notice of Appeal of LBP-19-07 by Petitioners Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Co ntamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Moth ers for Peace, Sustainable Energy and Economic Development Coalition, and Leona Morgan, I ndividually, and Brief in Support of Appeal (Sept. 17, 2019) (Joint Petitioners Appeal).
93 Id. at 4-18.
94 Petition of Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alt ernatives to Chemical Contamination, Nuclear Energy Informati on Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Sustainable Energy and Ec onomic Development Coalition, and Leona Morgan, Individually, to Intervene, and Reque st for an Adjudicatory Hearing (Nov. 13, 2018), at 4 (Joint Petitioners Petition).
95 Id. at 41.
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disclosure of all probable transportation routes, a long with quantities of SNF and the likely
radioisotopic contents to be shipped. 96
The Board ruled that proposed Contention 1 was ina dmissible because it did not raise a
genuine dispute of material fact or law with the ap plication, was outside the scope of this
proceeding, and amounted to an impermissible attack on the NRCs licensing regulations in 10
C.F.R. Parts 51 and 72. 97 The Board found that ISPs application included a n evaluation of the
environmental impacts of waste transportation to th e proposed CISF along several
representative routes and that Joint Petitioners ha d not disputed any part of that evaluation. 98
The Board also noted that the actual routes that ma y one day be used to transport waste to the
proposed CISF are not currently known and are not t he subject of any NRC approval in this
proceeding. According to the Board, Joint Petition ers did not provide legal authority to suggest
additional or unknown routes must be evaluated now. 99
On appeal, Joint Petitioners reiterate their claim that ISPs application did not sufficiently
address the environmental impacts of transporting w aste to the proposed CISF. 100 But as the
Board found, this proceeding does not include NRC r eview and approval of waste transportation
routes; rather, its scope is confined to ISPs appl ication for a license to build and operate a
proposed CISF. Further, ISPs application includes an evaluation of the environmental impacts
that would be expected along representative waste t ransportation routes to the proposed CISF
from twelve different potential facilities; the Boa rd found Joint Petitioners did not dispute any
96 Id. at 43.
97 LBP-19-7, 90 NRC at 88-89.
98 Id. (citing Environmental Report § 4.2, at 4-3 to 4-28).
99 Id.
100 Joint Petitioners Appeal at 19-20.
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part of that evaluation. 101 Joint Petitioners did not claim error in the Boar ds findings or
reasoning and we see none. Accordingly, we affirm the Boards dismissal of Contention 1.
- 2. Joint Petitioners Contention 4 (Underestimatio n of LLRW Volume)
Joint Petitioners argued in proposed Contention 4 that ISPs application underestimated
the volume of LLRW that will be generated by the pr oposed CISF. 102 They claim that the
application does not account for LLRW that would be generated during repackaging of spent
fuel from the casks and canisters at the CISF into uniformly-constructed transportation, aging,
and disposal canisters that DOE may one day deploy to move waste from the proposed CISF
to a permanent repository. 103 They argued that the application also omit[s] me ntion of disposal
of radioactively activated and radioactively contam inated concrete resulting from
decommissioning of the concrete and subgrade mater ials that will be bombarded for from 60 to
100 years with neutron radiation at the proposed C ISF. 104 As a result, Joint Petitioners
claimed, there is a significant underestimate of t he quantities of LLRW to be generated by long-
term operations and of the associated price tag. 105
101 See LBP-19-7, 90 NRC at 89; see also Environmental Report § 4.2.7 (identifying twelve decommissioned reactor sites from which waste shipm ent impacts were analyzed). The use of representative routes to evaluate transportation im pacts where actual routes are unknown is well-established under our regulatory framework and consistent with NEPAs rule of reason.
See, e.g., Generic Environmental Impact Statement for Conti nued Storage of Spent Nuclear Fuel, NUREG-2157, vol. 1, at 5-52 (ML14196A105) (C ontinued Storage GEIS); 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 Count y, Utah, NUREG-1714, vol. 1, at 5-39 (ML020150217); see also 10 C.F.R. § 51.52, Table S-4 (deriving generic eff ects of transportation and fuel waste for one power reactor based on a survey of then-existing power plants).
102 Joint Petitioners Petition at 64-76.
103 Id. at 66-69.
104 Id. at 72-73.
105 Id. at 75.
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The Board ruled proposed Contention 4 inadmissible because it raised issues outside
the scope of this proceeding. 106 The Board found the environmental impacts of spen t fuel
repackaging beyond the scope of this proceeding bec ause ISP has not requested authorization
to repackage spent fuel from its waste canisters in to other packages. 107 The Board also found
the impacts of repackaging resulting from any separ ate, future DOE waste disposal campaign
necessarily outside the scope of this proceeding a s well. 108
Further, the Board determined that proposed Conten tion 4 impermissibly challenged the
Continued Storage Rule, 10 C.F.R. § 51.23, insofar as it would have ISP describe the impacts
of spent fuel repackaging in its Environmental Repo rt. The Board found that spent fuel
repackaging is not an activity that would be author ized during the initial license term, and the
Continued Storage Rule explicitly excuses an applic ant from providing a site-specific description
of environmental impacts related to spent fuel stor age that may occur after the initial forty-year
license term. 109
The Board also rejected Joint Petitioners argumen t that ISP had grossly underestimated
the volume of concrete LLRW that the proposed CISF would generate. The Board found that
the environmental impacts resulting from disposal o f concrete casks and storage pads from an
ISFSI are generically described in the Continued St orage GEIS, which is incorporated into the
Continued Storage Rule. 110 The Board ruled that Joint Petitioners claim tha t ISP
106 LBP-19-7, 90 NRC at 91-93.
107 See id. at 92.
108 Id.
109 Id. ; 10 C.F.R. § 51.23(b).
110 See LBP-19-7, 90 NRC at 92-93; Continued Storage GEIS; 10 C.F.R. § 51.23.
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underestimated the volume of LLRW at the proposed C ISF was therefore an impermissible
attack on that rule. 111
On appeal, Joint Petitioners argue that the Board s decision wrongly excluded from
environmental-impact consideration any future plann ed expansions of the proposed CISF as
well as decommissioning activities that would occur beyond the initial license term. 112 We
disagree. The Continued Storage Rule provides that the environmental impacts of an ISFSI
beyond the term of its initial license are describe d generically in the Continued Storage GEIS. 113
The Continued Storage GEIS describes the environmen tal impacts associated with spent fuel
repackaging, concrete disposal, and facility decomm issioning for spent fuel storage facilities. 114
The Board recognized that the environmental impacts associated with the continued storage of
spent fuel had already been generically determined by the Commission through the rulemaking
process. Accordingly, we affirm the Boards dismis sal of proposed Contention 4.
- 4. Joint Petitioners Proposed Contention 5 (Environmental Justice Effects of Transportation)
Joint Petitioners argued in Proposed Contention 5 that ISP, by stating that tra nsportation
of waste from reactors to the proposed CISF is not part of the license application, improperly
segmented evaluation of the environmental effects of transportation from the environmental
effects of waste storage. 115 As a result, Joint Petitioners claim, Environmen tal Justice...
compliance will not be possible because identific ation and analysis of potentially affected
111 See LBP-19-7, 90 NRC at 92 (citing 10 C.F.R. § 2.335).
112 Joint Petitioners Appeal at 23.
113 10 C.F.R. § 51.23(b).
114 See Continued Storage GEIS, chs. 4-6.
115 Joint Petitioners Petition at 76.
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populations along the anticipated rail, truck and b arge routes will be improperly excluded from
disclosure in the NEPA document. 116
The Board ruled that proposed Contention 5 did not raise a material dispute with the
application. The Board found the proposed action i s construction and operation of the proposed
CISF and that the area for assessment of environmen tal justice impacts is based on the location
of the proposed facility, not the location of possi ble transportation routes. 117 Although the Board
agreed with the petitioners that transportation ro utes will eventually need to be established, and
impacts from those routes will need to be analyzed, should ISPs proposed facility be licensed
and become operational, it held that the proposed action is for a license to build and operate a
facility to store waste, not transport it. 118 Therefore, by asserting that ISPs Environmental
Report omits environmental justice information rega rding as-yet-unknown transportation routes,
the Board explained, Joint Petitioners have not ra ised an issue that is material to the findings
the NRC must make in this proceeding. 119
On appeal, Joint Petitioners cite no authority to suggest the Board erred or abused its
discretion in finding that proposed Contention 5 di d not raise a material issue. Joint Petitioners
argue that the Boards ruling would improperly segm ent evaluation of the environmental impacts
of waste transportation from environmental impacts of waste storage. As the Board found,
actual waste transportation routes are not under re view in this licensing proceeding. We see no
merit to Joint Petitioners claim that reviewing the impacts that may result from the proposed
action in this caseconstruction and operation of t he proposed CISFalso requires an
116 Id. at 76-77.
117 LBP-19-7, 90 NRC at 94.
118 Id. at 94.
119 Id.
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environmental justice evaluation of communities alo ng as-yet-unknown transportation routes.
Accordingly, we affirm the Boards dismissal of pro posed Contention 5.
- 5. Joint Petitioners Proposed Contention 6 (Effect s of Oil and Gas Drilling)
In proposed Contention 6, Joint Petitioners assert ed that fracking is occurring nearby the
proposed CISF site but that [t]here is no indicati on in the Environmental Report or Safety
Analysis Report of legal controls over present or p otential oil and gas drilling directly beneath
the site. 120 Joint Petitioners further asserted that the real istic prospects for mineral
development immediately surrounding and underneath the WCS site are unknown. 121 As a
result, Joint Petitioners asserted, there are unkno wn seismic, groundwater flow, and water
consumption implications posed by potential fracki ng that have not been addressed in the
application. 122
The Board found that Joint Petitioners fail[ed] t o acknowledge (much less dispute)
relevant portions of ISPs application that address their concerns. 123 The Board noted, for
example, that the SAR includes a proprietary analys is of seismic hazards, to which Joint
Petitioners did not seek access and which they did not review. 124 Having found that Joint
Petitioners had not met their burden to review the application and point out specific sections that
were deficient, the Board dismissed proposed Conten tion 6 because it did not raise a genuine
dispute with the application. 125 The Board also rejected Joint Petitioners argume nt, raised for
120 Joint Petitioners Petition at 98.
121 Id.
122 Id.
123 LBP-19-7, 90 NRC at 96.
124 Id.
125 Id.
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the first time in a reply brief, that the applicati on should consider future, possibly intensified
fracking. 126 The Board found that this argument was not suppor ted by any authority. 127
On appeal, Joint Petitioners repeat their argument that there must be an accounting of
prospective drilling trends and density in the imme diate region of the CISF or otherwise there
will be a failure to investigate, project and disc lose prospective geological changes that will
occur during the expected operations of the facilit y. 128 They further argue that the Board
missed Joint Petitioners point that the omissio n of information about legal title to subsurface
mineral rights... means that there is no certain ty that fracking and possibly waste well injection
activities will be prohibited underneath the WCS si te. 129
Joint Petitioners have shown no error in the Board s decision that proposed Contention 6
did not raise a material dispute with the license a pplication. As required by our regulations, the
license application includes information about site geology and seismology, including induced
seismicity related to petroleum recovery. 130 The application discusses the corrosive propertie s
of site soils, analyzes the potential for and sever ity of human-induced events at the site, and
investigates other site characteristics. Joint Pet itioners assertion that additional analysis of
prospective drilling trends is required is neither supported by legal authority nor explained as a
specific deficiency in any of the analyses already provided. We therefore agree with the Board
126 Id. ; see also Combined Reply of Dont Waste Michigan, Citizens Environmen tal Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, S ustainable Energy and Economic Development Coalition and Leona Morgan to ISP/WCS a nd NRC Answers (Dec. 17, 2018), at 38.
127 LBP-19-7, 90 NRC at 96.
128 Joint Petitioners Appeal at 26.
129 Id. at 25.
130 See 10 C.F.R. § 72.103.
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that Joint Petitioners did not meet their burden to identify sections of the application that they
believed to be inadequate and provide supporting la w, facts, or expert opinion to explain each
asserted inadequacy described in proposed Contentio n 6. Accordingly, we affirm the Boards
dismissal of proposed Contention 6.
- 6. Joint Petitioners Proposed Contention 8 (Inadeq uate Consideration of Alternatives)
In proposed Contention 8, Joint Petitioners assert ed that ISPs Environmental Report is
inadequate because there are alternatives to the p roposed CISF project which are neither
recognized nor addressed in the Environmental Repor t, contrary to NEPA requirements. 131
They argued that these alternatives include variant s on the proposed facility. 132 Joint Petitioners
also asserted that ISPs evaluation of the no-actio n alternative was deficient because ISP made
no demonstration of the overall 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 proposed
CISF. 133
The Board ruled the contention inadmissible becaus e it did not raise a genuine dispute
on a material issue of fact or law. 134 The Board found that Joint Petitioners had identi fied five
potential alternatives to the proposed action but h ad not explained what authority required ISP
to evaluate any of them. 135 It noted that of the five alternatives suggested by Joint Petitioners,
four do not appear to be alternatives to construct ing ISPs proposed facility at all, but rather
suggestions for how to improve it and the fifth al ternativehardened storage of spent fuel at
131 Joint Petitioners Petition at 107.
132 Id. at 107-08, 111.
133 Id. at 111.
134 LBP-19-7, 90 NRC at 98.
135 Id.
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existing reactor siteshas not been licensed or imp lemented. 136 The Board found that Joint
Petitioners had not shown why hardened on-site stor age of spent fuel at existing reactors would
be necessary to an evaluation of the no-action alte rnative. 137 The Board also rejected Joint
Petitioners claim that a cost-benefit analysis of the no-action alternative was omitted because
the alleged missing information was provided in C hapter 7 of the Environmental Report. 138
On appeal, Joint Petitioners argue that the Board was wrong to require further
explanation of why the five project alternatives th ey propose are required to be addressed by
ISP. Those five alternatives include (1) establis hment of a dry transfer system; (2) modification
of ISPs emergency response plan to include prepara tions for emissions mitigation; (3) CISF
design modification to prevent malevolent acts; ( 4) Federal Government control of the ISP
facility; and (5) implementation of hardened onsite storage... at reactor sites. 139 Joint
Petitioners, citing the decision of the United Stat es Court of Appeals for the First Circuit in
Dubois v. U.S. Department of Agriculture, assert that they do not have to explain why these
alternatives must be considered because the existe nce of reasonable but unexamined
alternatives renders an EIS inadequate. 140
In DuBois, the First Circuit found that the United States Fore st Service failed to meet its
NEPA obligations because it did not address at all a reasonable alternative identified by
commenters on its draft environmental impact statem ent. 141 The U.S. Environmental Protection
136 Id.
137 Id.
138 Id. at 99. Joint Petitioners do not pursue this claim on appeal.
139 Joint Petitioners Appeal at 26-27.
140 Id. at 27 (citing DuBois v. U.S. Dept of Agric., 102 F.3d 1273, 1287 (1st Cir. 1996)).
141 The Forest Service had granted a permit to allow a ski resort to increase its withdrawal of water from an unusually pristine mountain pond for artificial snowmaking. The permit allowed a fifteen-foot drop in the ponds water level from th e resorts water use, which was far greater than
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Agency had judged that the permitted option would h ave serious adverse environmental
consequences to an outstanding water resource, an d the alternative urged by the commenters
would involve an option that had been approved in o ther similar situations. 142 But the Forest
Service did not respond to the suggested alternativ e. 143 The Court found that NEPA required
the Forest Service, faced with evidence of serious adverse consequences associated with the
proposed action, to consider the reasonably though tful alternative proposal and to explain its
reasoning if it rejected the proposal. 144 But this decision does not require an agency to c onduct
an environmental analysis of every suggestion propo sed by a commenter.
Here, unlike in DuBois, Joint Petitioners have not shown that their propo sed alternatives
are reasonable, and the Board sufficiently explaine d its rejection of them. Two of the proposed
alternativesFederal ownership of the proposed CISF and implementation of hardened, on-site
storage of spent fuel at current reactor siteswoul d not meet the applicants purpose to
construct a privately-owned, centralized storage fa cility. 145 The other three alternatives call for
design and procedure changes at the proposed facili tyincluding consideration of design
features not required by our safety regulationswit hout explaining why those changes would be
needed to avoid or mitigate an environmental impact.
the previously approved limit of eighteen inches. The alternative presented by commenters was to build artificial water storage ponds. Dubois, 102 F.3d at 1278-79.
142 Id. at 1277-78.
143 Id. at 1279.
144 Id. at 1288-89.
145 As a licensing agency charged with enabling the sa fe and secure use of nuclear materials, we accord substantial weight to the preferences of the applicant and/or sponsor in the siting and design of the project. In re Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-04, 53 NRC 31, 55 (2001) (quoting Citizens Against Burlington v. Busey, 938 F.2d 190, 197 (D.C. Cir. 1991)). We may also legit imately consider the economic goals of the projects sponsor. Id. (quoting City of Grapevine v. Dept of Transp., 17 F.3d 1502, 1506 (D.C.
Cir. 1994)).
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Under our contention-pleading rules, it is the pet itioners burden to explain why a
contention should be admitted. As the Board found, Joint Petitioners have not met that burden
in their proposal of project alternatives. We ther efore affirm the Boards dismissal of proposed
Contention 8.
- 7. Joint Petitioners Proposed Contention 11 (Lack of a Dry Transfer System)
Joint Petitioners asserted in proposed Contention 11 that ISPs application must include
plans for a dry transfer systema facility that cou ld be used to repackage spent fuelor other
technological means of handling problems with damag ed, leaking or externally contaminated
SNF canisters or damaged fuel in the canisters. 146 The omission, according to Joint
Petitioners, contradicts the expectations of the C ontinued Storage GEIS and indicates that
[t]here is no plan for radiation emissions mitigat ion or radioactive releases at the CISF site. 147
Joint Petitioners asserted the omission violates t he Atomic Energy Act obligation to protect the
public and that the unanalyzed risks... must b e addressed in the Environmental Impact
Statement. 148
The Board found the contention inadmissible for thr ee independent reasons. First, Joint
Petitioners focused on the possibility that caniste rs would be damaged and a dry transfer
system would be required. But contrary to our requ irements, Joint Petitioners did not address
ISPs relevant safety analyses, aging management pl ans, and quality assurance programs. 149
Second, under our prior decision in Private Fuel Storage, several safety evaluations for waste
packages have led the NRC to conclude that accident al canister breaches are not credible
146 Joint Petitioners Petition at 118.
147 Id.
148 Id. at 118-19.
149 LBP-19-7, 90 NRC at 102.
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scenarios. 150 Therefore Joint Petitioners claim that canister damage could somehow occur
fail[ed] to raise a plausible scenario. 151 Third, contrary to Joint Petitioners characteriz ations,
neither the GEIS nor NRC regulations require ISP t o construct a dry storage system during the
initial 40-year license for its proposed facility, and the Continued Storage Rule makes clear
that ISPs Environmental Report is not required to evaluate the impacts of storage beyond the
term of the license it is requesting. 152
On appeal, Joint Petitioners do not dispute the Bo ards rulings directly but again assert
that it would be better to have a dry transfer syst em in place at the start of CISF operations,
rather than in the long-term and indefinite timefra mes contemplated by the Continued Storage
GEIS. 153 Joint Petitioners also assert that, if DOE at som e future time begins a campaign to
move spent fuel from existing sites to a permanent repository, repackaging will be required,
given the current posture of the DOEs canister re packaging policy. 154 The Board considered
and rejected these arguments, and we see no basis i n Joint Petitioners appeal to disturb the
Boards decision. 155
We agree with the Board that NRC regulations do no t require a dry transfer system to be
in place during the period of licensed operation. Moreover, NRC regulations do not require a
150 See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CL I-04-22, 60 NRC 125, 136-37 (2004)).
151 LBP-19-7, 90 NRC at 102-03 (citing Private Fuel Storage, 60 NRC at 136-37).
152 Id. at 103.
153 See Joint Petitioners Appeal at 29; see also Continued Storage GEIS § 2.1.4 (reflecting the assumption that a dry transfer system would be cons tructed not during the period of facility operations but in the long-term and indefinite time frames of continued waste storage following the operating license term).
154 Joint Petitioners Appeal at 29.
155 See LBP-19-7, 90 NRC at 103.
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license applicant to describe in its Environmental Report the impacts of building and operating a
dry transfer system after the period of licensed op eration. Rather, the impacts of continued
spent fuel storage after the period of licensed ope rationincluding the impacts associated with
construction and operation of a dry transfer system are already described generically in the
Continued Storage GEIS, which is incorporated by re ference into the Continued Storage
Rule. 156 Accordingly, we affirm the Boards dismissal of p roposed Contention 11.
- 8. Joint Petitioners Proposed Contention 14 (NEPA Analysis of Security Risks)
Joint Petitioners asserted in proposed Contention 14 that ISPs application should
include an analysis of the environmental impacts re sulting from (among other things) a terrorist
attack on spent nuclear fuel shipments to the propo sed CISF. 157 The Board found the
contention inadmissible based on our precedent, which was upheld by the United States Co urt
of Appeals for the Third Circuit. 158 In AmerGen Energy, we held that terrorist attacks are too far
removed from the natural or expected consequences o f agency action to require environmental
analysis in an NRC licensing proceeding. 159
On appeal, Joint Petitioners argue that the Board s rejection of proposed Contention 14
rested on the unlawful segmenting of the CISF from the transportation component and that
[w]ere transportation properly included within the scope of the project, the hundreds of SNF
cargoes coming from states within the geographical Ninth Circuit, as part of the project, would
have to be analyzed under the Ninth Circuits ruli ng in San Luis Obispo Mothers for Peace v.
156 See Continued Storage GEIS § 2.2.2, at 2-31 to 2-35, ch s. 4-5; 10 C.F.R. § 51.23.
157 Joint Petitioners Petition at 142-43.
158 LBP-19-7, 90 NRC at 108; see AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124 (2007), review denied, N. J. Dept of Envtl. Prot. v.
NRC, 561 F.3d 132 (3d Cir. 2009).
159 AmerGen Energy, CLI-07-8, 65 NRC at 129.
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NRC. 160 The Board explicitly considered and rejected this argument and noted that in AmerGen
Energy, we declined to apply the ruling in San Luis Obispo Mothers for Peace outside of the
Ninth Circuit. 161 The Board found that because the proposed CISF wo uld be in Texasoutside
the Ninth Circuitno terrorist-attack analysis unde r NEPA is required. 162
Joint Petitioners have shown no error in the Board s decision. As the Board addressed
in its rulings on proposed Contentions 1 and 5, whi ch we affirmed above, actual waste
transportation routes are not currently known and h ave not they been proposed. Thus, review
and approval of actual transportation routes to the proposed CISF is an issue outside the scope
of this proceeding. 163 And Joint Petitioners have offered no argument pe rsuading us that the
likelihood of a terrorist attack is a reasonably fo reseeable consequence of licensing this facility.
The Board correctly applied our prior ruling in AmerGen Energy, and we affirm its decision to
deny admission of proposed Contention 14.
E. Faskens Motion for New Contention
On July 6, 2020, Fasken filed a motion to reopen t he record of this proceeding and admit
a new contention challenging the discussion of tran sportation impacts in the Staffs draft
Environmental Impact Statement. 164 Although we have jurisdiction to consider whether to
reopen this proceeding and admit the contention, we refer Fasken's motion to the Board for
160 449 F.3d 1016, 1032 (9th Cir. 2006).
161 LBP-19-7, 90 NRC at 108.
162 Id.
163 See supra §§ II.D.1, II.D.4.
164 See Fasken Motion for Contention 5; see also Environmental Impact Statement for Interim Storage Partners LLCs License Application for a Co nsolidated Interim Storage Facility for Spent Nuclear Fuel in Andrews County, Texas (Draft Repor t for Comment), NUREG-2239 (May 2020)
(ML20122A220).
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consideration of these matters initially. 165 We remand Faskens Proposed Contention 5 to the
Board for consideration of the contentions admissi bility, good cause for filing after the deadline,
and ability to meet the reopening standards, consis tent with our ruling here with respect to the
similar issues raised in Joint Petitioners Content ion 1. 166
II. CONCLUSION
For the foregoing reasons, we affirm the Boards decision denying the hearing requests
and remand Faskens Contention 5 to the Board for considerati on.
For the Commission
Digitally signed by Annette L. Annette L. Vietti-Cook Vietti-Cook Date: 2020.12.17
___________________________ 15:35:10 -05'00' Annette L. Vietti-Cook Secretary of the Commission
Dated at Rockville, Maryland, this 17 th day of December 2020
165 See, e.g., Holtec, CLI-20-4, 91 NRC at 191, 211; Virginia Electric & Power Co. (North Anna Power Station, Unit 3), CLI-12-14, 75 NRC 692, 701- 02 (2012).
166 The motion was timely under 10 C.F.R. § 2.326(a)(1 ) based on an order by the Secretary extending the deadline for filing new contentions b ased on the draft environmental impact statement. See Order (May 22, 2020).
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
In the Matter of )
)
INTERIM STORAGE PARTNERS LLC ) Docket N o. 72-1050-ISFSI
)
(WCS Consolidated Interim Storage Facility) )
)
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-20-14) have been served upon the following persons by the Electronic Information Exchange:
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O16-B33 Mail Stop: O16-B33 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov Hearing Docket E-mail: Hearing.Docket@nrc.gov
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Office of the General Counsel Washington, DC 20555-0001 Mail Stop - O-14A44 Washington, DC 20555-0001 Paul S. Ryerson, Chair Joe Gillespie, Esq.
Administrative Judge Sara Kirkwood, Esq.
E-mail: paul.ryerson@nrc.gov Mauri Lemoncelli, Esq.
Patrick Moulding, Esq.
Nicholas G. Trikouros Kevin Roach, Esq.
Administrative Judge Carrie Safford, Esq.
E-mail: nicholas.trikouros@nrc.gov Thomas Steinfeldt Alana Wase, Esq.
Dr. Gary S. Arnold Brian Newell, Senior Paralegal Administrative Judge E-mail: joe.gillespie@nrc.gov E-mail: gary.arnold@nrc.gov sara.kirkwood@nrc.gov mauri.lemoncelli@nrc.gov Ian Curry, Law Clerk patrick.moulding@nrc.gov Stephanie Fishman, Law Clerk kevin.roach@nrc.gov Molly Mattison, Law Clerk carrie.safford@nrc.gov E-mail: ian.curry@nrc.gov thomas.steinfeldt@nrc.gov stephanie.fishman@nrc.gov alana.wase@nrc.gov molly.mattison@nrc.gov brian.newell@nrc.gov
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WCS CISF - Docket No. 72-1050-ISFSI COMMISSION MEMORANDUM AND ORDER (CLI-20-14)
Counsel for Beyond Nuclear Sustainable Energy and Economic Development (SEED) Coalition Diane Curran, Esq. Karen D. Hadden Harmon, Curran, Spielberg and Eisenberg Executive Director, 1725 DeSales Street NW, Suite 500 605 Carismatic Lane Washington, DC 20036 Austin, TX 78748 E-mail: dcurran@harmoncurran.com E-mail: karendhadden@gmail.com
Mindy Goldstein, Esq.
Emory University School of Law Counsel for Interim Storage Partners LLC Turner Environmental Law Clinic Morgan, Lewis & Bockius LLP 1301 Clifton Road 1111 Pennsylvania Avenue NW Atlanta, GA 30322 Washington, DC 20004 E-mail: magolds@emory.edu Grant Eskelsen, Esq.
Timothy Matthews, Esq.
Nuclear Information and Ryan Lighty, Esq.
Resource Service (NIRS) Paul Bessette, Esq.
Diane DArrigo E-mail: grant.eskelsen@morganlewis.com 6930 Carroll Avenue timothy.matthews@morganlewis.com Suite 340 ryan.lighty@morganlewis.com Takoma Park, MD 20912 paul.bessette@morganlewis.com Email: dianed@nirs.org
Chris Hebner, Esq. Counsel for Fasken Land and Oil and City of San Antonio, TX Permian Basin Land and Royalty Owners P.O. Box 839966 San Antonio, TX 78283 Monica R. Perales, Esq.
E-mail: chris.hebner@sanantonio.gov 6101 Holiday Hill Road Midland, TX 79707 E-mail: monicap@forl.com Counsel for Sierra Club Wallace Taylor Kanner & Whiteley, LLC 4403 1 st Avenue S.E. 701 Camp Street Suite 402 New Orleans, LA 70130 Cedar Rapids, IA 52402 Allan Kanner, Esq.
E-mail: wtaylorlaw@aol.com Elizabeth Petersen, Esq.
Cynthia St. Amant, Esq.
Annemieke M. Tennis, Esq.
Counsel for Dont Waste Michigan, et al Conlee Whiteley, Esq.
Terry Lodge, Esq. E-mail: a.kanner@kanner-law.com 316 N. Michigan Street e.petersen@kanner-law.com Suite 520 c.stamant@kanner-law.com Toledo, OH 43604 a.tennis@kanner-law.com E-mail: tjlodge50@yahoo.com c.whiteley@kanner-law.com
Herald M. Digitally signed by Herald M.
Speiser Dated at Rockville, Maryland, Speiser Date: 2020.12.17 15:36:55 this 17 th day of December 2020 _____________________________________ -05'00' (Page 60 of Total) Office of the Secretary of the Commission
2 USCA Case #21-1048 Document #1921507 Filed: 11/08/2021 Page 49 of 51
51926 Federal Register/Vol. 86, No. 178/Friday, September 17, 2021/Notices
comments from private citizens and by webcast at the Web addresshttps:// Secretary, Washington, DC 20555, at industry organizations. The NRC staffs video.nrc.gov/. 301-415-1969, or by email at evaluation and resolution of the public Friday, October 8, 2021 Tyesha.Bush@nrc.gov or Betty.Thweatt@
comments are documented in ADAMS nrc.gov.
under Accession No. ML21211A578. 10:00 a.m. Meeting with the Advisory The NRC is holding the meetings III. Congressional Review Act Committee on Reactor Safeguards under the authority of the Government (Public Meeting); (Contact: Larry in the Sunshine Act, 5 U.S.C. 552b.
NUREG-1021, Revision 12, is a rule Burkhart: 301-287-3775) Dated: September 15, 2021.
as defined in the Congressional Review Additional Information: Due to For the Nuclear Regulatory Commission.
Act (5 U.S.C. 801-808). However, the COVID-19, there will be no physical Wesley W. Held, Office of Management and Budget has public attendance. The public is invited Policy Coordinator, Office of the Secretary.
not found it to be a major rule as to attend the Commissions meeting live defined in the Congressional Review by webcast at the Web addresshttps:// [FR Doc. 2021-20296 Filed 9-15-21; 4:15 pm]
Act. video.nrc.gov/. BILLING CODE 7590-01-P Dated: September 14, 2021. Week of October 11, 2021Tentative For the Nuclear Regulatory Commission. There are no meetings scheduled for NUCLEAR REGULATORY Christian B. Cowdrey, the week of October 11, 2021. COMMISSION Chief, Operator Licensing and Human Factors [Docket No. 72-1050; NRC-2016-0231]
Branch, Division of Reactor Oversight, Office Week of October 18, 2021Tentative of Nuclear Reactor Regulation. There are no meetings scheduled for Interim Storage Partners, LLC; WCS
[FR Doc. 2021-20171 Filed 9-16-21; 8:45 am] the week of October 18, 2021. Consolidated Interim Storage Facility; BILLING CODE 7590-01-P Issuance of Materials License and Week of October 25, 2021Tentative Record of Decision NUCLEAR REGULATORY Thursday, October 28, 2021 AGENCY: Nuclear Regulatory COMMISSION 10:00 a.m. Meeting with the Commission.
Organization of Agreement States ACTION: License and record of decision;
[NRC-2021-0001] and the Conference of Radiation issuance.
Sunshine Act Meetings Control Program Directors (Public Meeting); (Contact: Celimar
SUMMARY
- The U.S. Nuclear Regulatory TIME AND DATE: Weeks of September 20, Valentin-Rodriguez: 301-415-7124) Commission (NRC) has issued Materials 27, October 4, 11, 18, 25, 2021. Additional Information: Due to License No. SNM-2515 to Interim PLACE: Commissioners Conference COVID-19, there will be no physical Storage Partners, LLC (ISP) to construct Room, 11555 Rockville Pike, Rockville, public attendance. The public is invited and operate the WCS Consolidated Maryland. to attend the Commissions meeting live Interim Storage Facility (CISF) as by webcast at the Web addresshttps:// proposed in its license application, as STATUS: Public. video.nrc.gov/. amended, and to receive, possess, store, MATTERS TO BE CONSIDERED: CONTACT PERSON FOR MORE INFORMATION: and transfer spent nuclear fuel and Week of September 20, 2021 For more information or to verify the Greater-than-Class-C radioactive waste status of meetings, contact Wesley Held at the WCS CISF in Andrews County, There are no meetings scheduled for at 301-287-3591 or via email at Texas. ISP will be required to operate the week of September 20, 2021. Wesley.Held@nrc.gov. The schedule for under the conditions listed in Materials Week of September 27, 2021Tentative Commission meetings is subject to License No. SNM-2515. The NRC staff change on short notice. has published a record of decision Thursday, September 30, 2021 The NRC Commission Meeting (ROD) that supports the NRCs decision 9:00 a.m. Strategic Programmatic Schedule can be found on the internet to approve ISPs license application for Overview of the Operating Reactors at: https://www.nrc.gov/public-involve/ the WCS CISF and to issue the license.
and New Reactors Business Lines public-meetings/schedule.html. DATES: September 17, 2021.
(Public Meeting); (Contact: Candace The NRC provides reasonable ADDRESSES: Please refer to Docket ID De Messieres: 301-415-8395) accommodation to individuals with NRC-2016-0231 when contacting the Additional Information: Due to disabilities where appropriate. If you NRC about the availability of COVID-19, there will be no physical need a reasonable accommodation to information regarding this document.
public attendance. The public is invited participate in these public meetings or You may access publicly available to attend the Commissions meeting live need this meeting notice or the information related to this document by webcast at the Web addresshttps:// transcript or other information from the using any of the following methods:
video.nrc.gov/. public meetings in another format (e.g.,
- Federal Rulemaking Website: Go to braille, large print), please notify Anne https://www.regulations.gov and search Week of October 4, 2021Tentative Silk, NRC Disability Program Specialist, for Docket ID NRC-2016-0231. Address Tuesday, October 5, 2021 at 301-287-0745, by videophone at questions about Docket IDs in 10:00 a.m. Meeting with the Advisory 240-428-3217, or by email at Regulations.gov to Stacy Schumann; Committee on the Medical Uses of Anne.Silk@nrc.gov. Determinations on telephone: 301-415-0624; email:
Isotopes (Public Meeting); (Contact: requests for reasonable accommodation Stacy.Schumann@nrc.gov. For technical Don Lowman: 301-415-5452) will be made on a case-by-case basis. questions, contact the individual listed Members of the public may request to in the FOR FURTHER INFORMATION Additional Information: Due to receive this information electronically. CONTACTsection of this document.
COVID-19, there will be no physical If you would like to be added to the
- NRCs Agencywide Documents public attendance. The public is invited distribution, please contact the Nuclear Access and Management System (Page 61 of Total)to attend the Commissions meeting live Regulatory Commission, Office of the (ADAMS): You may access publicly
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Federal Register/Vol. 86, No. 178/Friday, September 17, 2021/Notices 51927
available documents online in the 51.102 paragraph (a) of title 10 of the safety evaluation report, final EIS, and ADAMS Public Documents collection at Code of Federal Regulations (10 CFR), ROD.
https://www.nrc.gov/reading-rm/ which requires that a Commission ISPs request for a materials license adams.html. To begin the search, select decision on any action for which a final was previously noticed in the Federal Begin Web-based ADAMS Search. For environmental impact statement (EIS) Register on November 14, 2016 (81 FR problems with ADAMS, please contact has been prepared be accompanied by 79531). A notice of docketing with an the NRCs Public Document Room (PDR) or include a concise public ROD. As opportunity to request a hearing and to reference staff at 1-800-397-4209, 301-discussed in the ROD and the final EIS petition for leave to intervene was 415-4737, or by email to pdr.resource@ for ISPs license application for a CISF published in the Federal Register on nrc.gov. The ADAMS accession number for spent nuclear fuel in Andrews January 30, 2017 (82 FR 8773). Four for each document referenced (if it is County, Texas (ADAMS Accession No. groups of petitioners filed petitions to available in ADAMS) is provided the ML21209A955), the NRC staff intervene. An Atomic Safety and first time that it is mentioned in this considered a range of reasonable Licensing Board considered petitions document. In addition, for the alternatives that included the No-Action and admitted one contention. The Board convenience of the reader, the ADAMS alternative, as required by the National subsequently dismissed the contention accession numbers are provided in a Environmental Policy Act of 1969, as as moot after ISP supplemented its table in the section of this document amended; storage at a government-application with information that the entitled, SUPPLEMENTARY INFORMATION. owned CISF; alternative design and contention had noted was missing, and
- Attention: The PDR, where you may storage technologies; and alternative the Board subsequently terminated the examine and order copies of public locations. The final EIS documents the adjudicatory proceeding. Intervenors documents, is currently closed. You environmental review, including the appealed the decisions to the may submit your request to the PDR via NRC staffs recommendation to issue an Commission, and the Commission email at pdr.resource@nrc.gov or call 1-NRC license to ISP to construct and affirmed the Board decisions, with one 800-397-4209 or 301-415-4737, operate a CISF for spent nuclear fuel at new contention remanded to the Board between 8:00 a.m. and 4:00 p.m. (ET), the proposed location, subject to the for consideration. The Board Monday through Friday, except Federal determinations in the NRC staffs safety subsequently dismissed the remanded holidays. review of the application. The final EIS contention, and the Commission denied FOR FURTHER INFORMATION CONTACT: conclusion is based on the NRC staffs an appeal of the Board decision.
John-Chau Nguyen, Office of Nuclear independent environmental review, as Material Safety and Safeguards, U.S. well as (i) the license application, which In issuing a materials license to ISP Nuclear Regulatory Commission, includes the environmental report and for the WCS CISF, the NRC has Washington, DC 20555-0001; telephone: supplemental documents and ISPs determined based on its review of this 301-415-0262; email: John-responses to the NRC staffs requests for application that there is reasonable Chau.Nguyen@nrc.gov. additional information; (ii) consultation assurance that: (i) The activities SUPPLEMENTARY INFORMATION: with Federal, State, Tribal, and local authorized by the license can be I. Discussion agencies and input from other conducted without endangering the stakeholders, including members of the health and safety of the public; and (ii)
The NRC has issued a license to ISP public; and (iii) the assessments these activities will be conducted in for its WCS CISF in Andrews County, provided in the final EIS. compliance with the applicable Texas (ADAMS Package Accession No. The NRC staff prepared a final safety regulations of 10 CFR part 72. The NRC ML21188A096). Materials License No. evaluation report that documents the has further determined that the issuance SNM-2515 authorizes ISP to construct staffs safety and security review of the of the license will not be inimical to the and operate its facility as proposed in its application (ADAMS Accession No. common defense and security.
license application, as amended, and to ML21188A101). The staffs safety and In accordance with 10 CFR 2.390 of receive, possess, store, and transfer security review found that the the NRCs Rules of Practice, the spent nuclear fuel, including a small application met applicable NRC details with respect to this action, quantity of mixed-oxide fuel, and regulations in 10 CFR part 72, including the final safety evaluation Greater-than-Class-C radioactive waste Licensing Requirements for the report and accompanying at the WCS CISF. The license authorizes Independent Storage of Spent Nuclear documentation and license, are ISP to store up to 5,000 metric tons of Fuel, High-Level Radioactive Waste, and available electronically in the ADAMS uranium [5,500 short tons] of spent Reactor-Related Greater than Class C Public Documents collection at https://
nuclear fuel for a license period of 40 Waste. www.nrc.gov/reading-rm/adams.html.
years. ISP will be required to operate Documents related to the application From this site, you can access ADAMS, under the conditions listed in Materials carry Docket ID NRC-2016-0231. These which provides text and image files of License No. SNM-2515. documents for the ISP license include the NRC public documents.
The NRC staffs ROD that supports the the license application, the applicants NRCs decision to approve ISPs license safety analysis report, emergency plan, II. Availability of Documents application for the WCS CISF and to physical security plan, environmental issue Materials License No. SNM-2515 report, updates to these documents, and The documents identified in the is available in ADAMS under Accession applicant supplements and responses to following table are available to No. ML21222A214. The ROD satisfies NRC staff requests for additional interested persons through one or more the regulatory requirement in section information, and the NRC staffs final of the following methods, as indicated.
Document ADAMS accession No.
- 1. Initial application, safety analysis report (SAR) and environmental report (ER), dated April 28, 2016.................... ML16133A070 (Package).
- 2. Application Revision 1, SAR Revision 1, and ER Revision 1, dated March 16, 2017.............................................. ML17082A021 (Package).
- 3. Application Revision 2, SAR Revision 2, and ER Revision 2, dated July 19, 2018................................................. ML18206A595 (Package).
(Page 62 of Total)4. ER Revision 3, dated February 17, 2020.................................................................................................................. ML20052E144 (Package).
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Document ADAMS accession No.
- 5. SAR Revision 3, dated May 22, 2020........................................................................................................................ ML20150A337 (Package).
- 6. Application Revision 3, dated August 24, 2020......................................................................................................... ML20237F470.
- 7. SAR Revision 4, September 2, 2020......................................................................................................................... ML20261H419 (Package).
- 8. Application Revision 4 and SAR Revision 5, dated April 12, 2021........................................................................... ML21105A766 (Package).
- 9. Applicant response to request for additional information, dated July 19, 2018........................................................ ML18208A437.
- 10. Applicant response to request for additional information, dated January 7, 2019.................................................. ML19009A099.
- 11. Applicant response to request for additional information, dated March 22, 2019................................................... ML19085A055.
- 12. Applicant response to request for additional information, dated May 31, 2019...................................................... ML19156A048 (Package).
- 13. Applicant response to request for additional information, dated June 26, 2019..................................................... ML19197A044.
- 14. Applicant response to request for additional information, dated June 28, 2019..................................................... ML19184A159 (Package).
- 15. Applicant response to request for additional information, dated June 28, 2019..................................................... ML19190A227 (Package).
- 16. Applicant response to request for additional information, dated July 31, 2019...................................................... ML19217A231 (Package).
- 17. Applicant response to request for additional information, dated August 20, 2019.................................................. ML19235A157 (Package).
- 18. Applicant response to request for additional information, dated September 18, 2019........................................... ML19270E399.
- 19. Applicant submittal of supplemental information, dated September 20, 2019........................................................ ML19268A113 (Package).
- 20. Applicant response to request for additional information, dated November 21, 2019............................................ ML19337B502 (Package).
- 21. Applicant response to request for additional information, dated January 6, 2020.................................................. ML20015A448 (Package).
- 22. Applicant response to request for additional information, dated January 17, 2020................................................ ML20028E843 (Package).
- 23. Applicant response to request for additional information, dated January 22, 2020................................................ ML20028D890 (Package).
- 24. Applicant response to request for additional information, dated February 14, 2020.............................................. ML20052D995 (Package).
- 25. Applicant response to request for additional information, dated February 14, 2020.............................................. ML20052E047 (Package).
- 26. Applicant submittal of supplemental information, dated March 5, 2020.................................................................. ML20071F152 (Package).
- 27. Applicant response to request for additional information, dated March 16, 2020................................................... ML20083J964 (Package).
- 28. Applicant response to request for additional information, dated April 7, 2020........................................................ ML20105A133 (Package).
- 29. Applicant response to request for additional information, dated April 7, 2020........................................................ ML20105A171 (Package).
- 30. Applicant response to request for additional information, dated May 18, 2020...................................................... ML20139A173 (Package).
- 31. Applicant response to request for additional information, dated June 11, 2020..................................................... ML20163A008.
- 32. Applicant submittal of supplemental information, dated July 21, 2020................................................................... ML20203M040.
- 33. Applicant submittal of supplemental information, dated January 27, 2021............................................................. ML21027A147.
- 34. Draft Environmental Impact Statement, dated May 2020........................................................................................ ML20122A220.
- 35. Overview of the Draft Environmental Impact Statement, dated May 2020............................................................. ML20121A016.
- 36. Overview of the Draft Environmental Impact Statement (Spanish language version), dated May 2020................ ML20136A148.
- 37. Final Environmental Impact Statement, dated July 2021........................................................................................ ML21209A955.
- 38. Overview of the Final Environmental Impact Statement, dated July 2021.............................................................. ML21200A050.
- 39. Final Safety Evaluation Report, dated September 2021......................................................................................... ML21188A101.
- 40. NRC Staffs Record of Decision, dated September 13, 2021................................................................................. ML21222A214.
- 41. Materials License for ISP, dated September 13, 2021............................................................................................ ML21188A096 (Package).
Dated: September 13, 2021. www.prc.gov. Those who cannot submit Service request, the title of each Postal For the Nuclear Regulatory Commission. comments electronically should contact Service request, the requests acceptance Shana R. Helton, the person identified in the FOR FURTHER date, and the authority cited by the Director, Division of Fuel Management, Office INFORMATION CONTACTsection by Postal Service for each request. For each of Nuclear Material Safety and Safeguards. telephone for advice on filing request, the Commission appoints an
[FR Doc. 2021-20092 Filed 9-16-21; 8:45 am] alternatives. officer of the Commission to represent BILLING CODE 7590-01-P FOR FURTHER INFORMATION CONTACT: the interests of the general public in the David A. Trissell, General Counsel, at proceeding, pursuant to 39 U.S.C. 505 202-789-6820. (Public Representative).Section II also POSTAL REGULATORY COMMISSION SUPPLEMENTARY INFORMATION: establishes comment deadline(s) pertaining to each request.
[Docket Nos. CP2020-171; CP2020-172; Table of Contents The public portions of the Postal CP2020-179; CP2020-182; CP2020-196] Services request(s) can be accessed via I. Introduction the Commissions website ( http://
New Postal Product II. Docketed Proceeding(s) www.prc.gov). Non-public portions of
AGENCY: Postal Regulatory Commission. I. Introduction the Postal Services request(s), if any, ACTION: Notice. The Commission gives notice that the can be accessed through compliance Postal Service filed request(s) for the with the requirements of 39 CFR
SUMMARY
- The Commission is noticing a Commission to consider matters related 3011.301.1 recent Postal Service filing for the to negotiated service agreement(s). The The Commission invites comments on Commissions consideration concerning request(s) may propose the addition or whether the Postal Services request(s) a negotiated service agreement. This removal of a negotiated service in the captioned docket(s) are consistent notice informs the public of the filing, agreement from the market dominant or with the policies of title 39. For invites public comment, and takes other the competitive product list, or the request(s) that the Postal Service states administrative steps. modification of an existing product concern market dominant product(s),
DATES: Comments are due: September currently appearing on the market applicable statutory and regulatory 21, 2021. dominant or the competitive product 1See Docket No. RM2018-3, Order Adopting ADDRESSES: Submit comments list. Final Rules Relating to Non-Public Information, electronically via the CommissionsSection II identifies the docket June 27, 2018, Attachment A at 19-22 (Order No.
(Page 63 of Total)Filing Online system at http:// number(s) associated with each Postal 4679).
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