ML19179A236

NRC Staff'S Answer in Opposition to Don'T Waste Michigan, Et Al.'S Appeals of LBP-19-4

ML19179A236
Person / Time
Site:	HI-STORE
Issue date:	06/28/2019
From:	Lisa Clark, Joe Gillespie, Esther Houseman, Sara Kirkwood NRC/OGC
To:	NRC/OCM
SECY RAS
References
ASLBP 18-958-01-ISFSI-BD01, RAS 55062, Holtec International
Download: ML19179A236 (29)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of HOLTEC INTERNATIONAL Docket No. 72-1051 (HI-STORE Consolidated Interim Storage Facility)

NRC STAFF'S ANSWER IN OPPOSITION TO DON'T WASTE MICHIGAN, ET AL.'S APPEAL OF LBP-19-4 Joe I. Gillespie III Sara B. Kirkwood Esther Houseman L. Sheldon Clark Counsel for NRC Staff June 28, 2019

TABLE OF CONTENTS Introduction ................................................................................................................................ 1 Background................................................................................................................................ 2 Discussion ................................................................................................................................. 3 I. Applicable Legal Standards ................................................................................................ 3 A. Interlocutory Review of Petitions to Intervene under 10 C.F.R. § 2.311 ........................... 3 B. Legal Requirements for Standing ................................................................................... 4 C. Legal Requirements for Contention Admissibility ............................................................ 5 II. The Boards Standing Determination Was Correct .............................................................. 6 III. The Commission Should Affirm the Boards Determinations on Contention Admissibility .... 9 A. Contention 1 (Redactions of Information on Cultural and Historic Properties) ................ 10 B. Contention 2 (Financial Assurance) ................................................................................11 C. Contention 3 (Low-Level Radioactive Waste Volume).................................................... 13 D. Contention 4 (Applicability of the Continued Storage Rule and GEIS) ........................... 15 E. Contention 7 (Start Clean/Stay Clean Environmental Impacts) ...................................... 16 F. Contention 9 (Transportation Route Disclosure) ............................................................ 18 G. Contention 11 (NEPA Terrorism Considerations)............................................................. 19 H. Contention 14 (Material False Statements) ....................................................................20 Conclusion ................................................................................................................................23 ii

TABLE OF AUTHORITIES Judicial Opinions Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87 (1983) ................................................................... 18 Bd. of Comm'rs, Cuyahoga Cty. v. Nuclear Assurance Corp.,

588 F.Supp. 856 (N.D. Ohio 1984). ....................................................................................7, 9 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ............................................................................ 4 N.J. Dept of Envtl. Prot. v. NRC, 561 F.3d 131 (3d Cir. 2009) ...................................................20 Nuclear Info. & Res. Serv. v. NRC, 457 F.3d 941 (D.C. Cir. 2006) ................................................7 Supply Pro Sorbents, LLC v. RingCentral, Inc., 743 Fed. Appx. 124 (9th Cir. 2018) .................... 9 Warth v. Seldin, 422 U.S. 490, 499 (1975) .................................................................................. 9 Commission Legal Issuances AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 NRC 111 (2006) .........................................................................................5, 6 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-07-8, 65 NRC 124 (2007) .............................................................................................20 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3),

CLI-09-20, 70 NRC 911 (2009) ............................................................................................ 4 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2),

CLI-99-4, 49 NRC 185 (1999) .............................................................................................. 8 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-01-24, 54 NRC 349 (2001) ............................................................................................ 5 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2),

CLI-03-14, 58 NRC 207 (2003) ............................................................................................ 6 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 NRC 631 (2004) ..................................................................................... 13, 20 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3),

CLI-08-17, 68 NRC 231 (2008) ............................................................................................ 3 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3),

CLI-99-11, 49 NRC 328 (1999) ............................................................................................ 6 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2),

CLI-16-5, 83 NRC 131 (2016) .............................................................................................. 5 Exelon Generation Co., LLC (Clinton ESP Site),

CLI-05-29, 62 NRC 801 (2005) ............................................................................................ 6 Fansteel, Inc. (Muskogee, Oklahoma Site),

CLI-03-13, 58 NRC 195 (2003) ............................................................................................. 14 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

CLI-15-25, 82 NRC 389 (2015) ............................................................................................ 4 iii

Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7),

CLI-17-12, 86 NRC 215 (2017) .......................................................................................3, 22 Int'l Uranium Corp. (White Mesa Uranium Mill),

CLI-01-21, 54 NRC 247 (2001) .........................................................................................3, 4 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-12-5, 75 NRC 301 (2012) .............................................................................................. 6 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-99-10, 49 NRC 318 (1999) ............................................................................................ 5 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-02-25, 56 NRC 340 (2002) ...........................................................................................20 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-04-22, 60 NRC 125 (2004) ................................................................................... 6, 8, 17 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3),

CLI-10-9, 71 NRC 245 (2010) .............................................................................................. 3 S. Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4),

CLI-11-8, 74 NRC 214 (2011) .............................................................................................. 3 S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 and 3),

CLI-10-1, 71 NRC 1 (2010) ................................................................................................. 18 Sequoyah Fuels Corp. (Gore, Oklahoma Site),

CLI-94-12, 40 NRC 64 (1994) .............................................................................................. 4 Sequoyah Fuels Corp. (Gore, Oklahoma Site),

CLI-01-2, 53 NRC 9 (2001) .................................................................................................. 4 Strata Energy, Inc. (Ross In Situ Uranium Recovery Project),

CLI-12-12, 75 NRC 603 (2012) ............................................................................................ 4 Strata Energy, Inc. (Ross In Situ Uranium Recovery Project),

CLI-16-13, 83 NRC 566 (2016) ........................................................................................... 14 U.S. Dep't of Energy (Plutonium Export License),

CLI-04-17, 59 NRC 357 (2004) ............................................................................................ 8 USEC Inc. (American Centrifuge Plant),

CLI-06-9, 63 NRC 433 (2006) .............................................................................................. 5 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station),

CLI-96-1, 43 NRC 1 (1996) ................................................................................................. 13 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station),

CLI-96-7, 43 NRC 235 (1996) .............................................................................................. 3 Atomic Safety and Licensing Appeal Board Decisions Phila. Elec. Co. (Peach Bottom Atomic Power Station, Units 2 and 3),

ALAB-216, 8 AEC 13 (1974)................................................................................................. 6 iv

Atomic Safety and Licensing Board Decisions Entergy Nuclear Vt. Yankee, LLC (Vermont Yankee Nuclear Power Station),

LBP-06-14, 63 NRC 568 (2006) ........................................................................................... 5 Holtec Int'l (HI-STORE Consolidated Interim Storage Facility),

LBP-19-4, 89 NRC __ (May 7, 2019) (slip op.) ............................................................ passim Hous. Lighting & Power Co. (South Texas Project, Units 1 and 2),

LBP-79-10, 9 NRC 439 (1979) ............................................................................................. 9 U.S. Army Installation Command (Schofield Barracks and Pokakulo Training Area),

LBP-10-4, 71 NRC 216 (2010) ............................................................................................. 9 Statutes National Historic Preservation Act § 304, 54 U.S.C. § 307103 (2017), Access to information ..................................................................................................................... 10, 11 Regulations 10 C.F.R. § 2.309 .............................................................................................................. passim 10 C.F.R. § 2.311 ....................................................................................................................... 3 10 C.F.R. § 2.335 ....................................................................................................................... 6 10 C.F.R. § 51.23 ...................................................................................................................... 14 10 C.F.R. § 72.22 ...................................................................................................................... 13 10 C.F.R. § 73.26 ....................................................................................................................... 19 49 C.F.R. Subchapter C, Parts 171-178, Hazardous Materials Regulations ............................. 19 Other Authorities Emergency Planning Licensing Requirements for Independent Spent Fuel Storage Facilities (ISFSI) and Monitored Retrievable Storage Facilities (MRS), 60 Fed. Reg.

32,430 (June 22, 1995) ........................................................................................................ 17 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004) ...................5, 6 Final Rule, Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions and Related Conforming Amendments, 49 Fed. Reg. 9352 (Mar. 12, 1984) ..................................................................................................................... 18 Holtec International's HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 12,034 (Mar. 19, 2018) .................................... 2 Holtec International's HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018)..................................... 2 NUREG-0170, Final Environmental Statement on the Transportation of Radioactive Material by Air and Other Modes (Final Report) (Dec. 1977) (ML12192A283) ....................... 19 NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Final Report) (Sept. 2014) (ML14196A105) ..................................................... 15 v

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of HOLTEC INTERNATIONAL Docket No. 72-1051 (HI-STORE Consolidated Interim Storage Facility)

NRC Staff's Answer in Opposition to Don't Waste Michigan, et al.'s Appeal of LBP-19-4 Introduction Pursuant to 10 C.F.R. § 2.311(b), the U.S. Nuclear Regulatory Commission Staff (NRC Staff) files this answer in opposition to the appeal filed by 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; and Nuclear Issues Study Group (collectively, Joint Petitioners). 1 This proceeding concerns Holtec Internationals (Holtec) HI-STORE license application to construct a consolidated interim storage facility (CISF) pursuant to the NRCs regulations in 10 C.F.R. Part 72.

In LBP-19-4, the Atomic Safety and Licensing Board (Board) found that the Joint Petitioners lacked standing and denied all of their proposed contentions. 2 Because the Joint Petitioners have not shown that the Board committed an error of law or abused its discretion, the Commission should affirm the Boards decision.

1 Don't Waste Michigan et al. Notice of Appeal and Petition for Review of LBP-19-4 (June 3, 2019)

(ADAMS Accession No. ML19154A764) (Joint Petitioners Appeal).

2 Holtec Int'l (HI-STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC __ (May 7, 2019)

(slip op.).

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Background

On March 30, 2017, Holtec submitted an application, including a Safety Analysis Report (SAR), Environmental Report (ER), and proposed license, requesting that the NRC grant a license to Holtec for the construction and operation of a CISF for spent nuclear fuel. 3 The proposed CISF would be located in Lea County, New Mexico. In its license application, Holtec requests authorization to store up to 8,680 metric tons of uranium in up to 500 canisters for a license period of 40 years. 4 On March 19, 2018, the NRC published a notice in the Federal Register that the NRC Staff had accepted and docketed the Holtec CISF license application. 5 The NRC subsequently published a Federal Register notice of opportunity to request a hearing and to petition for leave to intervene. 6 In response, the Joint Petitioners submitted a petition to intervene and requested a hearing. 7 On May 7, 2019, the Board issued its decision, finding that the Joint Petitioners lacked standing and had not submitted contentions that met the requirements of 10 C.F.R. § 2.309(f)(1). 8 The Joint Petitioners now appeal the Boards ruling with respect to standing and Contentions 1-4, 7, 9, 11, and 14.

3 Holtecs application materials are available at: https://www.nrc.gov/waste/spent-fuel-storage/cis/holtec-international.html. Unless otherwise specified, all the NRC Staffs citations to the ER are to Revision 5 (ML19095B800), all citations to the SAR are to Revision 0F (ML19052A379), and all citations to the Proposed License are to Revision 0A (ML17310A223).

4 Proposed License at 1.

5 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 12,034 (Mar. 19, 2018).

6 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018).

7 Petition of Don't Waste Michigan et al. to Intervene and Request for Adjudicatory Hearing (Sept. 14, 2018) (ML18257A334) (Joint Petitioners Petition to Intervene); see also NRC Staff Consolidated Answer (Oct. 9, 2018) (ML18282A567) (NRC Staff Answer to Joint Petitioners Petition); Holtec Internationals Answer Opposing Joint Petitioners Motion to Intervene (Oct. 9, 2018) (ML18282A509)

(Holtec Answer to Joint Petitioners Petition).

8 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 2, 13-15,90-123).

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Discussion I. Applicable Legal Standards A. Interlocutory Review of Petitions to Intervene under 10 C.F.R. § 2.311 The NRCs regulations at 10 C.F.R. § 2.311(c) provide an appeal as of right on the question of whether a petition to intervene or request for hearing should have been granted. On threshold matters such as standing and contention admissibility, the Commission gives substantial deference to board rulings unless the appeal points to an error of law or abuse of discretion which might serve as grounds for reversal of the boards decision. 9 The Commission has maintained that [r]ecitation of an appellants prior positions in a proceeding or statement of general disagreement with a decisions result is not sufficient. 10 Rather, a valid appeal must point out the errors in the [b]oards decision. 11 In addition, an argument made before the board but not reiterated or explained on appeal is considered abandoned. 12 Finally, the Commission will not entertain an argument that is raised for the first time on appeal. 13 9 S. Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-8, 74 NRC 214, 220 (2011); Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231, 234 (2008).

10 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7), CLI-17-12, 86 NRC 215, 219 (2017) (citations omitted).

11 Id.

12 Int'l Uranium Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 253 (2001); see Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI-10-9, 71 NRC 245 (2010).

13 See, e.g., Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 260 (1996) (rejecting an argument raised for the first time on appeal, which did not satisfy the factors for admission of late-filed contentions, on that basis alone).

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B. Legal Requirements for Standing In addition to fulfilling the general standing requirements of 10 C.F.R. § 2.309(d)(1), a petitioner must demonstrate that it has an interest that may be affected by the proceeding. 14 The Commission applies contemporaneous judicial concepts of standing to evaluate whether the petitioner has demonstrated the requisite interest. 15 To this end, a petitioner must (1) allege an injury in fact that is (2) fairly traceable to the challenged action and (3) is likely to be redressed by a favorable decision. 16 The injury claimed by the petitioner must be actual or threatened and both concrete and particularized. 17 The causation element of standing requires a petitioner to show that the injury is fairly traceable to the proposed action. 18 The redressability element of standing requires the intervenor to show that its actual or threatened injuries can be cured by some action of the tribunal. 19 On appeal, the Commission gives substantial deference to the boards findings on standing, absent an error of law or abuse of discretion. 20 Unless the boards conclusion [on standing] is irrational, the Commission will not disturb a boards decision. 21 14 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-15-25, 82 NRC 389, 394 (2015).

15 See id. at 394; see also Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009).

16 Turkey Point, CLI-15-25, 82 NRC at 394; Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 71 (1994); Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).

17 Int'l Uranium, CLI-01-21, 54 NRC at 250; see also Sequoyah Fuels, CLI-94-12, 40 NRC at 71 (stating that standing has been denied when the threat of injury is too speculative).

18 Sequoyah Fuels, CLI-94-12, 40 NRC at 75.

19 Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-01-2, 53 NRC 9, 15 (2001).

20 Strata Energy, Inc. (Ross In Situ Uranium Recovery Project), CLI-12-12, 75 NRC 603, 608 (2012)

(citations and internal quotation marks omitted).

21 Turkey Point, CLI-15-25, 82 NRC at 394 n.32 (citations and internal quotations omitted).

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C. Legal Requirements for Contention Admissibility 10 C.F.R. § 2.309(f)(1) establishes the basic criteria that all contentions must meet in order to be admissible. 22 Pursuant to that section, a contention must:

(i) provide a specific statement of the issue of law or fact to be raised or controverted; (ii) provide a brief explanation of the basis for the contention; (iii) demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents, that support the petitioner's position and upon which the petitioner intends to rely at hearing; and (vi) provide information sufficient to show that a genuine dispute with the applicant/licensee exists in regard to a material issue of law or fact, including references to specific portions of the application that the petitioner disputes, or in the case of an application that is asserted to be deficient, the identification of such deficiencies and supporting reasons for this belief. 23 The Commission has strictly applied these contention admissibility requirements in NRC adjudications. 24 Failure to comply with any one of these criteria is grounds for the dismissal of a contention. 25 The requirements are intended to focus litigation on concrete issues and result in a clearer and more focused record for decision. 26 The Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is 22 Entergy Nuclear Vt. Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 571-72 (2006); see also USEC Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 436-37 (2006) (stating that the Commission will reject any contention that does not satisfy the requirements).

23 10 C.F.R. § 2.309(f)(1).

24 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118 (2006) (citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), pet. for recons. denied, CLI-02-01, 55 NRC 1 (2002)).

25 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation, CLI-99-10, 49 NRC 318, 325 (1999). See also Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016).

26 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).

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appropriate for, and susceptible to, resolution in an NRC hearing as indicated by a proffered contention that satisfies all of the 10 C.F.R. § 2.309(f)(1) requirements. 27 The Commission has emphasized that attempting to satisfy these requirements by [m]ere notice pleading does not suffice. 28 A contention must be rejected where, rather than raising an issue that is concrete or litigable, it reflects nothing more than a generalization regarding the petitioners view of what the applicable policies ought to be. 29 The Commission has also emphasized that contentions shall not be admitted if at the outset they are not described with reasonable specificity or are not supported by some alleged fact or facts demonstrating a genuine material dispute with the applicant. 30 The hearing process is reserved for genuine, material controversies between knowledgeable litigants. 31 In addition, 10 C.F.R. § 2.335(a) prohibits, absent waiver, a challenge to a Commission rule or regulation in any adjudicatory proceeding subject to 10 C.F.R. Part 2.

II. The Boards Standing Determination Was Correct The Commission should affirm the Boards well-supported finding that none of the Joint Petitioners demonstrated standing. The Joint Petitioners based their claims of standing on the proximity of their members to what they assert will be routes (e.g., highways or railways) by which spent nuclear fuel could be transported to the proposed facility. They accordingly assert standing based on potential harm from the risks of accidents and radiological releases that 27 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).

28 Oyster Creek, CLI-06-24, 64 NRC at 119 (quoting Exelon Generation Co., LLC (Clinton ESP Site),

CLI-05-29, 62 NRC 801, 808 (2005)).

29 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 129 (2004) (citing Phila. Elec. Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974)).

30 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 307 (2012) (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 335 (1999)).

31 Seabrook, CLI-12-5, 75 NRC at 307 (quoting Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 219 (2003)).

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might occur from such shipments in their residences and workplaces or other exposures while stopped in traffic. 32 However, the the Board observed that not one member of the seven groups lives anywhere near the proposed facility, and determined that the interest described is simply too speculative to satisfy contemporary judicial concepts of standing. 33 The Joint Petitioners have not demonstrated a legal error by the Board or otherwise illustrate how its decision could be considered an abuse of discretion.

The Boards decision rests on two fundamental factors. First, the Board found that even assuming that transportation accidents are possible, this fact would not establish that a there is a reasonable opportunity for an accident to occur at any particular location or that radioactive materials will escape in an accident. 34 Second, the Board found that the sources of spent fuel and precise routes that might be used for the Holtec facility have not been established, which makes the Joint Petitioners standing claims even more speculative. 35 On appeal, the Joint Petitioners advance numerous theories as to how they might establish standing. Specifically, the Joint Petitioners argue that the Board erred in its standing determination and state that Holtec has established customers, 36 that Department of Energy route projections are reasonably likely to be used for the Holtec site, 37 that individuals within 32 See, e.g., Declarations of Members of Citizens' Environmental Coalition, at 2-3, ¶¶ 4, 9 (Sept. 14, 2018) (ML18257A338).

33 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 13); see Nuclear Info. & Res. Serv. v. NRC, 457 F.3d 941 (D.C. Cir. 2006) (finding no standing where there was no clearly alleged harm); see also Bd. of Comm'rs, Cuyahoga Cty. v. Nuclear Assurance Corp., 588 F.Supp. 856 (N.D. Ohio 1984) (finding that lack of preparedness to respond to a nuclear transportation accident and associated fear is an insufficient injury to confer standing).

34 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 15).

35 Id.

36 Joint Petitioners Appeal at 6-9.

37 Id. at 9-11. The Joint Petitioners in their appeal also introduce a number of additional assertions not raised before the Board. These include assertions about Holtecs business ventures (and potential customers), as well as further claims regarding why the Joint Petitioners believe transportation routes evaluated by the Department of Energy would be used in some way for transportation of spent 7

50 miles of transportation routes are within the zone of danger of spent nuclear fuel transportation, 38 that the sites canister acceptance criteria will increase the number of shipments, 39 and that prior board and Commission decisions do not apply to the types of transportation that will occur in this case. 40 None of these theories demonstrates that the Boards decision was incorrect. As the Board found in its decision, the Commission has held that geographical proximity to potential transportation routes is insufficient to confer standing. 41 The mere fact that material may ultimately be transported to the Holtec facility does not establish that there is a likely harm to any individual along that route. 42 Courts and the NRC have repeatedly found that certain de nuclear fuel to the Holtec site. See, e.g., Joint Petitioners Appeal at 6-8, 9-12. Such new factual arguments raised for the first time on appeal are impermissible, and on that basis alone, they provide no grounds to disturb the Boards ruling. Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 193-94 (1999). But in any event, none of these new assertions demonstrates error in the Boards underlying determination that the mere proximity to potential spent nuclear fuel transportation along a hypothetical route is an insufficient claim of harm to confer standing. U.S. Dep't of Energy (Plutonium Export License), CLI-04-17, 59 NRC 357, 364 n.11 (2004).

38 Joint Petitioners Appeal at 12-13.

39 Id. at 13. The proposed license states that canisters that do not meet the site acceptance criteria shall be kept within its sealed transportation overpack until it is returned to the originating site.

Proposed License, Appendix A, § 5.5.5 at 5-6. While the Board did not specifically discuss this in its discussion on Joint Petitioners standing, the Board noted in its discussion of Contention 7 that accidental canister breach is not a credible scenario. Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 113-14). Additionally, the same regulations and requirements apply to both shipments that do not meet the site acceptance criteria and those that do. NRC Staff Answer to Joint Petitioners Petition at 48 n.218; Private Fuel Storage, CLI-04-22, 60 NRC at 138-39.

40 Joint Petitioners Appeal at 13-19.

41 U.S. Dep't of Energy (Plutonium Export License), CLI-04-17, 59 NRC 357, 364 (2004). See also Holtec Int'l, LBP-19-4, 89 NRC at __ n.14 (slip op. at 14) (identifying cases denying standing for petitioners located along transportation routes).

42 Dep't of Energy, CLI-04-17, 59 NRC at 364.

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minimis injuries are insufficient to confer standing. 43 The Joint Petitioners have not established any clear, non-speculative theory as to how or why these activities would uniquely harm them. 44 For these reasons, the Boards finding that the Joint Petitioners failed to establish standing based on the speculative nature of the alleged harm was rational. Accordingly, the Commission should affirm the Boards finding that Joint Petitioners lack standing. 45 III. The Commission Should Affirm the Boards Determinations on Contention Admissibility In its decision, the Board found that the Joint Petitioners did not submit a contention that met the admissibility requirements of 10 C.F.R. § 2.309(f)(1). On appeal, the Joint Petitioners claim the Board erred in eight of these contentions. For the reasons stated below, the Commission should affirm the findings of the Board.

43 See Supply Pro Sorbents, LLC v. RingCentral, Inc., 743 Fed. Appx. 124 (9th Cir. 2018) (finding de minimis financial injury insufficient to confer standing); U.S. Army Installation Command (Schofield Barracks and Pokakulo Training Area), LBP-10-4, 71 NRC 216, 232 (2010), affd, CLI-10-20, 72 NRC 185 (2010) (finding no injury from de minimis radiation exposures); Cuyahoga Cty., 588 F.Supp. at 858-65; Hous. Lighting & Power Co. (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 456 (1979), affd, ALAB-549, 9 NRC 644 (1979) (rejecting proximity standing where individual came within 50 miles of a reactor about once a month).

44 See Warth v. Seldin, 422 U.S. 490, 499 (1975) (standing will be denied when the asserted harm is a generalized grievance shared in substantially equal measure by all or a large class of citizens). In attempting to distinguish certain NRC cases cited by the Board, the Joint Petitioners assert that their basis for standing did not depend solely on geographical proximity to transportation routes and that the Board did not recognize that their theory of harm encompasses both routine and non-routine threats. See Joint Petitioners Appeal at 16-19. However, those claims equally depend on the same underlying assumptions that the Board determined were unsupported by the petition: that transportation shipments are a likely source of harm, and that individuals located far from the Holtec site (hundreds of miles away) are reasonably likely to encounter such shipments, let alone in a manner distinguishable from the public at large. Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 14-15). Accordingly the Joint Petitioners fail to identify any error in the Boards logic.

45 In their appeal, the Joint Petitioners state that [n]owhere in LBP-19-4 did the Licensing Board acknowledge the participation of Citizens Energy [sic] Coalition (CEC) as a petitioning intervenor.

Joint Petitioners Appeal at 1 n.1. The Board acknowledged Citizens Environmental Coalition (the name for the Coalition used by the Joint Petitioners in each of their filings other than this appeal) and found that CEC failed to demonstrate standing. Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 13 n.68, 14-15).

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A. Contention 1 (Redactions of Information on Cultural and Historic Properties)

In Contention 1, Joint Petitioners argued that the redaction of 144 pages of Appendix C of the ER violates the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA). 46 Appendix C describes two historic and cultural properties that may be affected by the proposed action. 47 The basis for this contention is that this information should be publicly available so that the public may, among other things, ascertain whether these properties are eligible for nomination to the National Register of Historic Places, determine whether NHPA Section 106 consultation has occurred, and engage in mitigation advocacy. 48 The NRC Staff and Holtec opposed admission of this contention for failure to raise a genuine dispute with the application, because the NRC Staff withheld this information from the public as required by Section 304 of the NHPA, and because Commission procedures for access to Sensitive Unclassified Non-Safeguards Information (SUNSI) were available for the petitioners to request access to this information. 49 The Board agreed. The Board observed that the NRC Staff withheld this information in accordance with the NHPA and that the Joint Petitioners had two opportunities to request access to this information, but they failed to take either opportunity. 50 The Board concluded that, in any event, the contention was inadmissible because the Joint Petitioners failed to raise a genuine dispute with the application. 51 46 Joint Petitioners Petition to Intervene at 26.

47 Id. at 26-27.

48 Id. at 26-31.

49 NRC Staff Answer to Joint Petitioners Petition at 29-31; Holtec Answer to Joint Petitioners Petition at

26. Section 304 of the NHPA provides that a federal agency, after consultation with the Secretary of the Interior, shall withhold from public disclosure information about the location, character, or ownership of a historic resource if the federal agency and Secretary determine that disclosure may cause significant invasion of privacy, risk harm to the resource, or impede the use of a traditional religious site by practitioners. 54 U.S.C. § 307103(a).

50 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 91-92).

51 Id. at __(slip op. at 92).

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On appeal, the Joint Petitioners fail to point to any error of law or abuse of discretion in the Boards ruling. Rather, their sole argument on appeal is that access to the information pursuant to the SUNSI access procedures would not resolve Contention 1, because the Joint Petitioners call not just for their own access to this information but for public disclosure of Appendix C. 52 Joint Petitioners dispute therefore appears to be with Section 304 of the NHPA. 53 As such, the appeal does not address, let alone show error in, the Boards dispositive finding that Contention 1 does not raise a genuine dispute with the application. Therefore, the Commission should affirm the Boards decision that Contention 1 is inadmissible.

B. Contention 2 (Financial Assurance)

In Contention 2, Joint Petitioners asserted that Holtec could not provide reasonable assurance of funds to cover the costs of construction, operation, maintenance, and decommissioning of the CISF, due to the lack of financial guarantees from the Department of Energy. 54 Subsequently, Joint Petitioners and three other petitioners (Beyond Nuclear, Fasken, and Sierra Club) sought to amend their respective contentions to include an additional statement that as long as Holtec includes the federal government as a potential guarantor or financer of the project, which in turn requires federal ownership of spent fuel, the application violates the NWPA. 55 Joint Petitioners then moved to amend their contention a second time and 52 Joint Petitioners Appeal at 20-21.

53 National Historic Preservation Act § 304, 54 U.S.C. § 307103 (2017).

54 Joint Petitioners Petition at 32.

55 Motion by Petitioners Dont Waste Michigan, et al. to Amend Their Contention 2 Regarding Federal Ownership of Spent Fuel in the Holtec International Revised License Application (Feb. 6, 2019), at 8 (ML19037A501); Motion by Petitioners Beyond Nuclear and Fasken to Amend Their Contentions Regarding Federal Ownership of Spent Fuel to Address Holtec Internationals Revised License Application (Feb 6, 2019), at 8 (ML19037A127); Sierra Clubs Motion to Amend Contention 1 (Feb. 6, 2019), at 11 (ML19049A019).

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attached a fourteen-page report. 56 The Board found Joint Petitioners first amendment timely, but inadmissible. 57 The Board found that the second amendment, with the report, added arguments and supporting opinions that should have been addressed in their original petition, and was therefore untimely. 58 The Board further found that the report, which formed the basis for the amended contention, was devoid of a single specific reference to Holtecs application and therefore failed to raise a genuine dispute with the application. 59 On appeal, the Joint Petitioners do not identify any error of law or abuse of discretion in the Boards ruling on either the timeliness or admissibility of their amended contention. The only portion of the Boards ruling that the Joint Petitioners specifically challenge on appeal is the statement in the Boards ruling that the application only seeks approval for the first of twenty potential licensing expansion phases and thus, the Joint Petitioners concerns about financial assurances for later phases is outside the scope of the proceeding. 60 Moreover, the Joint Petitioners do not challenge this statement in the context of compliance with 10 C.F.R.

§ 72.22(e), which was the basis for the Boards ruling. 61 Rather, the Joint Petitioners raise a new argument that the potential additional 19 licensing phases of the proposed CISF should be included in the ER as reasonably foreseeable additional impacts.

56 Motion by Petitioners Dont Waste Michigan, et al. to Amend Their Contention 2 Regarding Holtecs Proposed Means of Financing the Proposed Consolidated Interim Storage Facility (Feb. 25, 2019)

(ML19056A001); Expert Report and Curriculum Vitae of Robert Alvarez (Feb. 25, 2019)

(ML19056A002). The report expresses concerns regarding the costs of the proposed project.

57 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 93).

58 Id. at __ (slip op. at 94).

59 Id. at __ (slip op. at 98).

60 Joint Petitioners Appeal at 22.

61 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 98). 10 C.F.R. § 72.22(e) requires that an ISFSI applicant provide information sufficient to demonstrate to the Commission the financial qualifications of the applicant to carry out, in accordance with the regulations in this chapter, the activities for which the license is sought.

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Moreover, where a board holds a contention inadmissible for failure to meet more than one requirement, a petitioners failure to address each ground for the Boards ruling is sufficient justification for the Commission to reject the petitioners appeal. 62 Here, the Board found Contention 2 inadmissible because it was untimely and failed to raise a genuine dispute with the application. 63 Because Joint Petitioners failed to even address these bases for the Board decision, their appeal is insufficient on that ground alone.

In any event, Joint Petitioners impermissibly seek to raise an entirely new claim. The contention as originally drafted concerned compliance with the financial assurance requirements of 10 C.F.R. § 72.22(e). On appeal, the Joint Petitioners appear to be raising an environmental challenge regarding the proper scope of the ER. This new claim should be rejected on three grounds. First, the new issue, which Joint Petitioners raise for the first time on appeal, should not be entertained. 64 Second, the contention again fails to dispute any portion of the application regarding financial assurance, but simply misconstrues the Boards ruling as having reached a NEPA issue. And third, to the extent the Joint Petitioners seek to raise a new contention they are inexcusably late, with no effort made to justify the late filing.

Since the Joint Petitioners have failed to identify an error of law or abuse of discretion in the Boards ruling on Contention 2, the Boards decision should be affirmed.

C. Contention 3 (Low-Level Radioactive Waste Volume)

In Contention 3, Joint Petitioners claimed that the ER underestimated the volume of low-level radioactive waste (LLRW) that would result from concrete activation and the use of 62 See Dominion Nuclear Conn. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004).

63 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 98-100).

64 See, e.g., Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 235, 260 (1996).

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shipping canisters. 65 The Board declined to admit the contention for failure to supply supporting facts or expert opinion and as an impermissible challenge to the Continued Storage Rule at 10 C.F.R. § 51.23. 66 On appeal, the Joint Petitioners appear to argue the Board improperly required them to show that the assertedly underestimated volumes of LLRW cannot be decontaminated and erred in its application of the Continued Storage Rule. 67 The Commission should affirm the Boards finding that Contention 3 is inadmissible.

Contrary to Joint Petitioners assertions, the Board did not require them to explain why the entire 8,000,000+ tons cannot all be decontaminated. 68 Instead, the Board observed that the Joint Petitioners were required to show some factual foundation for the claim that the facility will generate large volumes of LLRW. 69 As the Board found, the Joint Petitioners initial hearing request did not rely on tangible facts but instead on speculation that millions of tons of concrete will become activated waste. 70 The Commission has made clear that mere speculation cannot serve as the basis for an admissible contention, and that it generally leave[s] to the Boards judgment whether a contention has a sufficient factual basis to be admitted for hearing. 71 The Joint Petitioners have not explained how the contention is anything but speculative, nor have they identified any 65 Joint Petitioners' Petition to Intervene at 36-46.

66 10 C.F.R. § 2.309(f)(1)(v); Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 101-02).

67 Joint Petitioners Appeal at 23-24.

68 See id. at 23.

69 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 100-02).

70 Joint Petitioners Petition to Intervene at 37-38 (It is likely that most or all of the 8,000,000 tons of concrete and other subgrade fill materials used for waste containment will become LLRW.); Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 101) (discussing Joint Petitioners reliance on common sense and inferences from Holtecs reply).

71 Strata Energy, Inc. (Ross In Situ Uranium Recovery Project), CLI-16-13, 83 NRC 566, 573-74 (2016);

Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003) (explaining that a petition will be found inadmissible if based on bare assertions and speculation).

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factual support in the record that was not considered by the Board in its determination. As a result, the Commission should affirm the Boards decision.

D. Contention 4 (Applicability of the Continued Storage Rule and GEIS)

In Contention 4, Joint Petitioners asserted that the Continued Storage Rule and the associated Generic Environmental Impact Statement (GEIS) do not apply to this proceeding because the Holtec application does not satisfy several assumptions in the GEIS, including the assumption that a dry transfer system would be constructed during the long-term period of continued storage. 72 The Board agreed with the NRC Staff and Holtec that Contention 4 was inadmissible. 73 Specifically, the Board found that the Joint Petitioners failed to demonstrate a genuine dispute with the application on a material issue of law or fact, because the GEIS acknowledges that not all ISFSIs will match the assumed generic facility and because neither the GEIS nor NRC regulations require an analysis of a dry transfer system in the ER for the license term. 74 On appeal, the Joint Petitioners fail to identify any requirement that the ER for a site-specific ISFSI contain an analysis of a dry transfer system. Accordingly, they fail to articulate any error of law or abuse of discretion in the Boards ruling that Contention 4 is inadmissible. 75 Joint Petitioners also assert that Holtec may not avoid NEPA or AEA (SAR) scrutiny of its decision not to have a Dry Transfer System. 76 Contention 4, as originally filed, was solely an environmental contention raised with respect to the ER, not a safety contention with respect to 72 Joint Petitioners' Petition to Intervene at 46; see Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Final Report), NUREG-2157, vol. 1 (Sept. 2014)

(ML14196A105).

73 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 104).

74 Id. at __ (slip op. at 104).

75 Joint Petitioners Appeal at 24-25.

76 Id. at 24 (emphasis added).

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the SAR. The Joint Petitioners moved to amend Contention 4 based on Holtecs responses to the Staffs requests for additional information on the SAR, and the Board denied this motion. 77 To the extent, therefore, that the Joint Petitioners passing reference to the AEA and the SAR is an attempt to appeal the Boards denial of its motion to amend Contention 4, the Joint Petitioners fall short of identifying an error of law or abuse of discretion in the Boards decision.

The Joint Petitioners make no other reference to any safety aspects of Contention 4 or to the Boards denial of their motion to amend Contention 4. Therefore, to the extent Joint Petitioners appeal the Boards denial of their motion to amend Contention 4, the Commission should uphold that ruling as well.

E. Contention 7 (Start Clean/Stay Clean Environmental Impacts)

In Contention 7, the Joint Petitioners asserted that Holtecs proposed site acceptance criteria would necessitate the use of a dry transfer system and violate the Atomic Energy Act, NRC regulations, and Department of Transportation (DOT) regulations. 78 The Board, relying on the Commissions earlier holding in Private Fuel Storage, agreed with the Staff and Holtec and denied the contention for failure to provide supporting facts or expert opinion. 79 On appeal, the Joint Petitioners claim that the Board misinterpreted the Commissions findings in Private Fuel Storage and that the mere existence of a start clean/stay clean policy provides a sufficient factual basis to admit the contention. 80 77 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 102-04) (finding that the Joint Petitioners had not shown good cause as required by 10 C.F.R. § 2.309(c)).

78 Joint Petitioners' Petition to Intervene at 61-64. Joint Petitioners' Appeal at 25.

79 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 113-14). The Board also denied a motion to amend the contention, but the Joint Petitioners do not appeal this decision.

80 Joint Petitioners' Appeal at 26.

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As the Board correctly explained, the Commissions holding in Private Fuel Storage is dispositive. 81 In that case, the Commission held, at the contention admissibility stage, that to demonstrate a genuine dispute, a petitioner must give the Board reason to believe that contamination from a defective canister could find its way outside of the cask. 82 Contrary to the Joint Petitioners assertion, the Commission in Private Fuel Storage based its decision on generic determinations, not on the facts of the case after taking evidence. 83 And just like the Holtec applications Start Clean/Stay Clean framework, the Private Fuel Storage application contained analogous site acceptance criteria. 84 As the Staff explained in its answer to the petition, a shipments failure to meet the proposed site requirements does not mean that the external dose limits of 10 C.F.R. § 71.47 will not be met. 85 In accordance with the Private Fuel Storage decision and the strict-by-design contention admissibility standards, the Board did not err in finding that the Joint Petitioners needed (and failed) to articulate a plausible factual basis or expert opinion as to how the site acceptance criteria would contravene NRC regulations. Accordingly, the Commission should affirm the Boards determination.

81 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 113-14). Private Fuel Storage, CLI-04-22, 60 NRC at 136-37.

82 Private Fuel Storage, CLI-04-22, 60 NRC at 137.

83 See Id. at 137 n.45 (citing Final Rule, Emergency Planning Licensing Requirements for Independent Spent Fuel Storage Facilities (ISFSI) and Monitored Retrievable Storage Facilities (MRS), 60 Fed.

Reg. 32,430, 32,438 (June 22, 1995)).

84 Compare Holtec SAR at 3-7 (In order to uphold the HI-STORE philosophy of Start Clean/Stay Clean

[health physics] personnel ensure that contamination levels on the canisters of incoming shipments meet site requirements.) to Private Fuel Storage Final Safety Analysis Report, Rev. 0 at 5.1-7 (ML061840346) (In order to maintain the PFSF philosophy of Start Clean/Stay Clean, [health physics] personnel ensure that contamination levels on the canisters of incoming shipments are within the Technical Specification requirements.).

85 In its original answer and in this appeal, the Joint Petitioners appear to conflate the site acceptance criteria for canisters with the dose rate limits for a canister loaded in approved transportation packaging (i.e., a cask). See NRC Staff Answer to Joint Petitioners Petition at 49.

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F. Contention 9 (Transportation Route Disclosure)

In Contention 9, Joint Petitioners asserted that the ER improperly omitted detailed maps that would identify the precise routes used to transport future spent fuel packages to the facility.

The Board agreed with the Staff and Holtec that the Joint Petitioners had not identified NEPA or NRC regulations that require a specific assessment of possible transportation routes and therefore found this contention inadmissible. 86 In their appeal, Joint Petitioners simply reassert their claim that NEPA and 10 C.F.R. § 51.45(b)(1)-(3) require disclosure of precise future transportation routes and an alternatives analysis for each specific route, at the time of facility licensing. 87 The Commission should affirm the Boards finding that the contention failed to raise a genuine dispute with the application. The Board found that the legal authority cited by the Joint Petitioners neither prescribes a minimum number of transportation routes that must be evaluated nor mandates a specific method of analysis. 88 NEPAs hard look is governed by a rule of reason, and the Joint Petitioners have not shown that identification of the exact transportation routes are needed to fulfill this requirement. 89 86 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 115-16).

87 Joint Petitioners Appeal at 26-28. The Joint Petitioners also appear to raise a new argument that the application impermissibly segments the transportation analysis. Id. at 27 (Separating consideration of the transportation component from the storage component of the Holtec project segments a single project into smaller projects and defies effective analysis and public understanding as required by NEPA.). Because this argument is raised for the first time on appeal, it should be rejected on that basis alone. S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI-10-1, 71 NRC 1, 5 (2010). In any event, this argument fails (and shows no error in the Boards conclusion) because the ER does include a transportation analysis. While the Joint Petitioners view that analysis as inadequate, they do not explain in what way the impacts of transportation have been segmented from the applications analysis of the impacts of storage.

88 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 115).

89 Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97-98 (1983); see also Final Rule, Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions and Related Conforming Amendments, 49 Fed. Reg. 9352, 9374-76 (Mar. 12, 1984) (stating that, based on NUREG-0170, that NRC and Department of Transportation have found that transportation and routing do not have a significant adverse environmental impact); Final Environmental Statement on the 18

Contrary to the Joint Petitioners claim on appeal that transportation has been treated as a crystal ball inquiry, Holtec in its application addressed the uncertainty of future spent fuel transportation by using three bounding representative routes. 90 And as the Board noted, the specific routes for transportation of spent nuclear fuel require separate review and approval by the NRC and DOT, and both of those reviews are outside the scope of this proceeding. 91 Because the Joint Petitioners have identified no legal requirement for the broad and prescriptive transportation assessment they seek in Contention 9, the Commission should affirm the Boards finding.

G. Contention 11 (NEPA Terrorism Considerations)

In Contention 11, Joint Petitioners proposed a contention based on the report of Dr.

James Ballard (Ballard report). 92 In Contention 11, the Joint Petitioners primarily argued that the ER lacked an evaluation of the environmental impacts of terrorism. 93 Contention 11 also contained twenty-eight wide-ranging subparts with details provided in the Ballard Report. 94 The Staff and Holtec argued that the contention raised issues that are outside the scope of this proceeding, did not establish a genuine dispute with the application, and did not provide a specific statement of the issue to be litigated. 95 Transportation of Radioactive Material by Air and Other Modes (Final Report), NUREG-0170, vol. 1 (Dec. 1977) (ML12192A283).

90 ER § 4.9.3.1; Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 115-16).

91 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 116); see also Hazardous Materials Regulations, 49 C.F.R. Subchapter C, Parts 171-178 (2019); 10 C.F.R. § 73.26(b)(3) (requiring NRC approval of security arrangements).

92 Joint Petitioners Petition to Intervene at 70-88; Dr. James David Ballard, Holtec HI-STORM UMAX Interim Storage Facility (a.k.a. CISF): Human Initiated Events (HIE), Transportation of the Inventory and Storage of Highly Radioactive Waste Materials, (Sept. 2018) (ML18257A335).

93 Joint Petitioners Petition to Intervene at 70-88.

94 Id. at 79-88.

95 NRC Staff Answer to Joint Petitioners Petition at 55-59; Holtec Answer to Joint Petitioners Petition at 84-90.

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The Board, in agreement with the Staff and Holtec, found the contention inadmissible based on the NRC position that consideration of the environmental impacts of terrorism is limited to facilities within the purview of the United States Court of Appeals for the Ninth Circuit. 96 The Board further held that all twenty-eight subparts, each treated as an individual contention, failed to set forth a genuine dispute with the application for failure to acknowledge and address specific portions of the application. 97 On appeal, Joint Petitioners claim that prior Commission holdings are in error and that NEPA and the AEA require a far greater security consciousness than is evidenced in the Holtec application. 98 The Commissions prior decisions on this issue are dispositive, and the Joint Petitioners have not provided any new facts or law that would explain why a change in position is warranted. 99 With respect to other aspects of the Ballard Report, the Joint Petitioners have not explained or even acknowledged how the Boards holding is in error. 100 As a result, the Commission should affirm the Boards contention admissibility decision.

H. Contention 14 (Material False Statements)

In Contention 14, the Joint Petitioners argued that Holtec made a material false statement in its application by asserting that either DOE or nuclear power plant operators would 96 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 118-19). NRC cases arising out of New Mexico are appropriately heard by the U.S. Courts of Appeal for the District of Columbia and Tenth Circuits. See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 128-30 (2007); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 350-51 (2002).

97 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 119-20).

98 Joint Petitioners' Appeal at 28.

99 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 129-30 (2007), affd sub nom. N.J. Dept of Envtl. Prot. v. NRC, 561 F.3d 131, 140 (3d Cir. 2009); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 348 (2002).

100 Millstone, CLI-04-36, 60 NRC at 638 (denying relief for failure to challenge each basis of the boards decision).

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retain title to the spent fuel and contract with Holtec to store that fuel at the proposed facility. 101 The Joint Petitioners identified an email newsletter (not part of the application), in which Holtec stated that the proposed facility will ultimately depend on the DOE and the U.S. Congress. 102 Joint Petitioners argued that newsletter demonstrated as materially false Holtecs statements in the application that Holtec might contract directly with nuclear power plant operators who would retain title to the fuel. 103 In the Joint Petitioners view, Holtec intends to have DOE take title to the waste. 104 The Board found that Contention 14 was inadmissible. 105 First, the Board found that Holtecs newsletter statement was not inconsistent with the statements in the application and therefore failed to demonstrate those statements to be false. 106 Second, the Board found that whether Holtec will find the alternative of contracting with the nuclear plant owners to be commercially viable is not an issue before the Board, because the business decision of whether to use a license has no bearing on a licensees ability to safely conduct the activities the license authorizes. 107 101 See Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 122-23); Joint Petitioners Appeal at 29. The Joint Petitioners Contention 14 was substantially identical to Sierra Club Contention 26, and the Board addressed the substance of both in its discussion of Sierra Club Contention 26 and referred to that discussion in its decision on Joint Petitioners Contention 14. See Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 123).

102 Sierra Clubs Motion to File a New Late-Filed Contention, at 2 (Jan. 17, 2019) (ML19017A340); Sierra Club Ex. 11, Holtec Reprising 2018 (Jan. 2, 2019) (ML19017A342).

103 Joint Petitioners Appeal at 29.

104 Id.

105 Id.

106 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 83).

107 Id. at __ (slip op. at 84). See SAR at 1-6 n.* (Additionally, in accordance with 10 C.F.R. § 72.22, the construction program will be undertaken only after a definitive agreement with the prospective user/payer for storing the used fuel (USDOE and/or a nuclear plant owner) at HI-STORE CIS has been established.).

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The Joint Petitioners simply repeat their initial claims and assert that the Boards decision should be remanded for adjudication. 108 On appeal, petitioners must do more than repeat the arguments made to support contention admissibility; they must demonstrate an error of law or abuse of discretion in the Boards decision. 109 Because the Joint Petitioners fail to explain how the Boards rejection of Contention 14 was either of these, the Commission should affirm the Boards determination.

108 Joint Petitioners Appeal at 30.

109 See Turkey Point, CLI-17-12, 86 NRC at 226.

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Conclusion The Joint Petitioners have not demonstrated an error of law or abuse of discretion by the Board in LBP-19-4. Accordingly, the Commission should affirm the Boards decision.

Respectfully submitted,

/Signed (electronically) by/

Joe I. Gillespie III Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9184 E-mail: Joe.Gillespie@nrc.gov Counsel for NRC Staff Executed in Accord with 10 CFR 2.304(d)

Sara B. Kirkwood Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9187 E-mail: Sara.Kirkwood@nrc.gov Counsel for NRC Staff Executed in Accord with 10 CFR 2.304(d)

Esther R. Houseman Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9197 E-mail: Esther.Houseman@nrc.gov Counsel for NRC Staff Executed in Accord with 10 CFR 2.304(d)

L. Sheldon Clark Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-2189 E-mail: Sheldon.Clark@nrc.gov Counsel for NRC Staff Dated in Rockville, MD this 28th day of June 2019 23

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of HOLTEC INTERNATIONAL Docket No. 72-1051 (HI-STORE Consolidated Interim Storage Facility)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that copies of the foregoing NRC Staff's Answer in Opposition to Don't Waste Michigan, et al.'s Appeals of LBP-19-4, dated June 28, 2019, have been served upon the Electronic Information Exchange (the NRCs E-Filing System),

in the captioned proceeding, this 28th day of June 2019.

/Signed (electronically) by/

Joe I. Gillespie III Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9184 E-mail: Joe.Gillespie@nrc.gov Counsel for NRC Staff Dated in Rockville, MD this 28th day of June 2019