ML19179A254
| ML19179A254 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 06/28/2019 |
| From: | Lisa Clark, Joe Gillespie, Esther Houseman, Sara Kirkwood, Alana Wase NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| ASLBP 18-958-01-ISFSI-BD01, RAS 55063, Holtec International | |
| Download: ML19179A254 (27) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIO N In the Matter of HOLTEC INTERNATIONAL (HI-STORE Consolidated Interim Storage Facility)
- NRC STAFF'S ANSWER IN OPPOSITION TO THE SIERRA CLUB'S APPEAL OF LBP-- Alana M. Wase Sara B. Kirkwood Esther Houseman Joe I. Gillespie L. Sheldon Clark Counsel for the NRC Staff June ii TABLE OF CONTENTS Introduction
................................................................................................................................
1 Background
................................................................................................................................
2 Discussion
................................
................................................................
................................
. 3 I. Applicable Legal Standards
................................
................................................................
3 A. Interlocutory Review of Petitions to Intervene under 10 2.311 ........................
3 B. Legal Requirements for Contention Admissibility
................................
.........................
3 II. The Board Correctly Held that the Sierra Club
's Contentions Were Inadmissible.
...............
5 A. ................................
...................................... 5 B. ............................................................................
7 C. ................................
...................................... 11 D. ..13 E. ................................
.......................................................
15 F. Contentions 15-19 (Groundwater Impacts)
................................
................................
17 G. ................................
................................
...20 Conclusion
................................
................................................................
................................
21 iii TABLE OF AUTHORITIES Judicial Opinions Robertson v. Methow Valley Citizens Council , 490 U.S. 332 , 345-46 (1989) .............................
9 Commission Legal Issuances AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-- ................................
...........................................................
4, 5 Dominion Nuclear Conn., Inc. , CLI-- ................................
.............................................................
5 Dominion Nuclear Conn., Inc.
, CLI-- ................................
..............................................................
3 Dominion Nuclear Conn., Inc.
(Millstone Nuclear Power Station, Units , CLI-- ................................
..................................................
9, 12, 15 Dominion Nuclear Connecticut, Inc.
, CLI-- ................................
.........................................................
4, 19 Duke Energy Corp.
, CLI-- ................................
................................................................
5 Entergy Nuclear Operations, Inc.
(Indian Point, Unit n , CLI-- ................................
................................................................
... 4 Exelon Generation Co., LLC (Clinton ESP Site), CLI-- ................................
...............................................................
5 Fansteel, Inc.
(Muskogee, Oklahoma, Site), CLI-- ................................
...............................................................
10 Fla. Power & Light Co.
, CLI-- ................................
..........................................................
3, 21 Int'l Uranium Corp.
(White Mesa Uranium Mill), CLI-- ................................
................................................................
. 3 NextEra Energy Seabrook, LLC
, CLI-- ................................
................................................................
... 5 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-- .................................................................................
9, 10, 11 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-- ................................
..................................................
5, 10, 19 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation , CLI-- ................................
..............................................................
4 Progress Energy Carolinas, Inc.
, CLI-- ................................
................................................................
3 S. Nuclear Operating Co.
, CLI-- ................................................................................................
. 3 USEC Inc. (American Centrifuge Plant), CLI-- ................................................................................................
. 3 iv Atomic Safety and Licensing Appeal Board Decisions Phila. Elec. Co. (Peach Bottom ALAB- ................................
................................................................
.. 5 Atomic Safety and Licensing Board Decisions Entergy Nuclear Vt. Yankee
, LLC (Vermont Yankee Nuclear Power Station), LBP-- ................................
............................................................
3 Holtec Int
'l (HI-STORE Consolidated Interim Storage Facility), LBP-- ................................
............................
passim S. Nuclear Operating Co.
(Early Site Permit for Vogtle ESP Site), LBP-- .............................................................................................
18 Regulations 10 2.309 ................................................................................................
..............
passim 10 2.311 ................................................................................................
....................
1, 3 10 2.335 ................................................................................................
..................
5, 14 10 51.23 ................................................................................................
................
13, 14 10 51.45 ................................................................................................
..........
15, 17, 18 10 72.22 ................................................................................................
......................
20 10 72.30 ................................................................................................
......................
11 10 72.103 ................................
................................................................
..............
15, 17 49 172.820 ................................
................................................................
...................
9 Other Authorities Continued Storage of Spent
......................
14 Final Rule, ......................
4 Holtec International HI
-STORE Consolidated Interim Storage Facility for Interim Storage of ....................................................
2 Holtec International HI
-STORE Consolidated Interim Storage Facility for Interim Storage of ................................
...................
1, 2 NUREG/CR-Baltimore ................................
.............................
10 NUREG-2125 , "Spent Fuel Transportation Risk Assessment," (Jan. 2014) (ML14031A323) .....10 NUREG-"Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, Final Report
" (Sept. 2014) (ML14196A105) ................................
...................
13 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIO N In the Matter of HOLTEC INTERNATIONAL (HI-STORE Consolidated Interim Storage Facility) - NRC Staff's Answer in Opposition to the Sierra Club
's Appeal of LBP
-- Introduction
§(b), the U.S. Nuclear Regulatory Commission (NRC) Staff (Staff) files this answer in opposition to the appeal filed by the Sierra Club
.1 This proceeding concerns Holtec International
's (Holtec) HI
-STORE license application to construct a consolidated interim storage facility (CISF) pursuant to the NRC
's r2 In LBP--Atomic Safety and Licensing Board (Board) denied all of the Sierra Club
's contentions
.3 Because the Sierra Club does not show that the Board committed an error of law or abuse d its discretion in finding that the Sierra Club failed to present an admissible contention under §ssion should affirm the Board
's decision
. 1 Sierra Club
's Brief in Support of Appeal of Atomic Safety and Licensing Board Decision Denying Admissibility of Contentions in Licensing Proceeding ADAMS Accession No. ) (Sierra Club Appeal).
2 Holtec International HI
-STORE Consolidated Interim Storage Facility for Interim Storage of Spent . 3 Holtec Int
'l (HI-STORE Consolidated Interim Storage Facility), LBP
--(slip op.).
2 Background (SAR) and Environmental Report (ER), requesting that the NRC grant a license to Holtec for the construction and operation of a CISF for spent nuclear fuel.
4 The proposed CISF would be located in Lea County, New Mexico
. In its license application, Holtec requests authorization to 5 e in the Federal Register that the NRC Staff had accept ed and docket ed the Holtec CISF license application.
6 The NRC subsequently published a Federal Register notice of opportunity to request a hearing and to petition for leave to intervene
.7 The Sierra Club and several other petitioners submitted requests for hearing and petitions to intervene.
8 the Sierra Club
's hearing request. The Board found that the Sierra Club had demonstrated standing but held that none of its pcontentions were admissible
§.9 T he Sierra Club now appeal s the Board's ruling with respect to its C-10 4 Holtec's application materials are available at: https://www.nrc.gov/waste/spent
-fuel-storage/cis/holtec
-international.html
. Unless otherwise specified, all the NRC Staff
's citations to the on 5 6 Holtec International HI
-STORE Consolidated Interim Storage Facility for Interim Storage of Spent 7 at . 8 See , e.g., Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club
() (Sierra Club Petition to Intervene).
9 Holtec Int
'l, LBP-- 10 3 Discussion I. Applicable Legal Standards A. §2.311 The NRC's regulations R. §(c) provide an appeal as of right on the question of whether a petition to intervene and/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 board's decision.
11 The Commission has maintained that
"[r]ecitation of an appellant
's prior positions in a proceeding or statement of general disagreement with a decision
's result is not sufficient.
"12 Rather, a valid appeal "must point out the errors in the [b]oard's decision.
"13 In addition, an argument made before the board but not reiterated or explained on appeal is considered abandoned.
14 B. Legal Requirements for Contention Admissibility
§"basic criteria that all contentions must meet in order to be admissible.
"15 Pursuant to that section, a contention must:
(i) provide a specific statement of the issue of law or fact to be raised or controverted; 11 S. Nuclear Operating Co.
--; Dominion Nuclear Conn., Inc. --. 12 Fl a. Power & Light Co. (Turkey Point Nuclear Generating
-- (citations omitted).
13 Id. 14 Int'l Uranium Corp. (White Mesa Uranium Mill), CLI
--; see Progress Energy Carolinas, Inc.
(Shearon Harris NucleaCLI--. 15 Entergy Nuclear Vt.
Yankee , LLC (Vermont Yankee Nuclear Power Station), LBP-- - ; see also USEC Inc. (American Centrifuge Plant), CLI
--- (stating that the Commission "will reject any contention that does not satisfy the requirements").
4 (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.
16 The Commission has strictly applied these contention admissibility requirements in NRC adjudications.
17 Failure to comply with any one of these criteria is grounds for the dismissal of a contention.
18 The requirements are intended to "focus litigation on concrete issues and result in a clearer and more focused record for decision.
"19 The Commission has stated that it "should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing
" as indicated by a proffered C.F.R. §20 The Commission has emphasized that attempting to satisfy these requirements by
"[m]ere 'notice pleading
' does not 16 17 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI
-- (citing Dominion Nuclear Connecticut, Inc.
CLI--, pet. for recons.
denied, CLI--. 18 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation, CLI
--; see also Entergy Nuclear Operations, Inc.
--. 19 Final Rule, . 20 Id.
5 suffice."21 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 petitioner
's view of what the applicable policies ought to be.
22 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.
23 The hearing process is reserved "for genuine, material controversies between knowledgeable litigants.
"24 In addition, §challenge to a Commission rule or regulation II. The Board Correctly Held that the Sierra Club
's Contentions Were Inadmissible
. The Sierra Club asserts that the Board erred in denying Contention s - As explained below, the Sierra Club does not demonstrate that the Board committed an error of law or abused its discretion
. The Board correctly held that the Sierra Club
's contentions failed to meet the Commission
's contention admissibility requirements
§affirm the Board
's decision
. A. Nuclear Waste Policy Act) application which stated that the Department of Energy (DOE) would take title to the spent fuel 21 Oyster Creek, CLI-- (quoting Exelon Generation Co., LLC (Clinton ESP Site), CLI--). 22 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI
-- (citing Phila. Elec. Co. --). 23 NextEra Energy Seabrook, LLC
-- (quoting Duke Energy Corp.
--). 24 Seabrook, CLI-- (quoting Dominion Nuclear Conn., Inc. (Millstone Nuclear Power --).
6 and also as a challenge to the NRC
's authority to license a ny away-from-reactor CISF.25 After oral argument, the Sierra Club amended its 's Contention , seeking to add a statement that "[l]'s ER, which presents federal ownership as a possible alternative to private ownership of spent fuel, does not render the application lawful.
As long as the federal government is listed as a potential owner of the spent fuel, the application violates the [Nuclear Waste Policy Act (NWPA)]."26 In explaining its contention
, the Sierra Club also used Beyond Nuclear
's language, stating that "by entertaining a license application containing provisions that would approve and allow Holtec to violate the NWPA, the NRC would also violate the NWPA.
"27. The Board found that the Sierra Club
's proposed amended contention was substantially similar to Beyond Nuclear
's contention and ruled that it was not admissible for the same reasons that Beyond Nuclear
's amended contention was not admissible.
28 The Board also ruled that the Sierra Club
's challenge to the NRC
's authority to license an away
-from-reactor CISF was an inadmissible challenge to NRC regulations.
29 On appeal, the Sierra Club does not pursue its challenge to the authority of the NRC to license an away
-from-reactor CISF.
30 The Sierra Club states that the Board was incorrect in denying admissibility of the contention, but does not identify any error of law or abuse of discretion in the Board decision.
The Sierra Club conten ds that the application cannot be entertained so long as DOE ownership is presented as a possible alternative. In its ruling on the substantially similar 25 Sierra Club Petition to Intervene at - 26 Sierra Club
' (). 27 Id. at - 28 Holtec Int'l, LBP--at 's contention admissibility determination; the Staff has filed a separate response thereto.
29 Id. 30 Sierra Club Appeal at -
7 Beyond Nuclear contention, the Board assumed that the NWPA d oes in fact prohibit DOE ownership of the spent fuel, but explained that the application as currently drafted allow s Holtec to enter into lawful customer contracts today (with private entities) and would allow additional customer contracts (with DOE) if and when they became lawful in the future.
31 On appeal, t he Sierra Club does not specify any legal error with this holding. Rather, the Sierra Club reiterates its argument that DOE ownership would violate the NWPA (which, as noted above, the Board assumed in making its decision
) and then expresses its general skepticism with what it perceives to be Holtec's business plan. Namely, the Sierra Club rhetorically questions whether any private entity would contract with Holtec, and it speculates that Holtec is going to use its license (if approved) to lobby Congress to change the law and allow the DOE to contract with Holtec.32 Whether or not the Sierra Club
's concerns prove true, it does not now articulate a legal error or abuse of discretion in the Board's decision. Thus, the Commission should affirm the decision
. B. the Sierra Club asserted that the discussion of transportation impacts in Holtec's environmental report is inaccurate.
33 The Sierra Club by Matthew Lamb and Dr. Marvin Resnikoff (Resnikoff Report) that evaluated the hypothetical 34 31 Holtec Int'l, LB P--at explained its rationale for assuming that neither Holtec nor DOE would engage in unlawful activity. -- at - 32 33 Sierra Club Petition to Intervene at - 34 Id. Radiological Consequences of Severe Rail Accident Involving Spent Nuclear Fuel Shipments to Yucca Mountain; Hypothetical Baltimore Rail Tunnel Fire Involving SNF also available at https://go.usa.gov/xmtsC.
8 As noted by the Sierra Club in its appeal, the NRC Staff took the position before the Board admissible in part, with respect to the consequences of a hypothetical transportation accident.
35 However, the standard for overturning the Boa r d's contention admissibility decisions is a deferential one, and the Staff does not argue in favor of reversal. The Sierra Club on appeal has not shown that the Board made a legal error or abused its discretion by finding that the Resnikoff Report represented a worst-case scenario beyond what is required to be analyzed under the National Environmental Policy Act (NEPA). the Sierra Club
's failure to demonstrate a genuine dispute with the application on a material issue of fact.
36 The Board found that the application relies heavily on a previous evaluation that was performed by the DOE in its discussion of transportation impacts in the Final Supplemental Environmental Impact Statement for Yucca Mountain.
37 DOE's environmental impact statement concluded that the precise study cited by the Sierra Club was unrealistic and did not reflect the reasonably foreseeable consequences of severe transportation accidents.
38 The Board held that by not addressing these criticisms, the Sierra Club failed to adequately dispute the application
's 35 The original contention had also claimed that the application did not "consider the impact of deteriorating railroad infrastructure on transportation risks.
" The NRC Staff stated that this aspect of the contention was inadmissible, and the Sierra Club did not appeal on this issue. See NRC Staff
's Consolidated Response to Petitions to Intervene and Requests for Hearing Filed By: Alliance for Environmental Strategies, Beyond Nuclear, Inc., Don
't Waste Michigan, et al., NAC International Inc., and the Sierra Club at -( (NRC Staff Answer to Sierra Club Petition); Sierra Club Appeal at - 36 Holtec Int'l, LBP-- 37 Id. at - 38 Holtec Int'l, LBP-- at 9 analysis.39 Additionally, the Board concluded that the Sierra Club
's estimates represented a "worst case
" analysis beyond what is required by NEPA.
40 The Sierra Club asserts that this issue is a factual matter but fails to explain how the Board erred in its central findings that both the Resnikoff Report and the contention inadequately dispute the application.41 Given the deference provided to the Board
's findings on admissibility, the failure to address each basis of the Board
's decision is sufficient reason to deny the appeal
.42 Regardless, the Commission has emphasized that the requirements of NEPA do not mandate the use of "worst case
" analyses.43 As the Board noted, a "worst case
" analysis distorts the impacts, wastes agency resources, and frustrates the primary goal of informing decision makers as to the reasonable environmental effects of a proposed action.
44 Here, the Board did not abuse its discretion in concluding that the report is a "worst case" analysis.45 The Sierra Club
's appeal (like its original petition) do es not address the reasonableness of the assumptions underlying the report. As the Board noted, the study did not take into account safeguard46 39 The Sierra Club does not now argue that it was unaware of the referenced study or criticisms, and in its contention, the Sierra Club addressed the ER
's analysis as the "DOE and Holtec risk estimates." See 40 Holtec Int'l, LBP--at 41 Sierra Club Appeal at - 42 Dominion Nuclear Conn., Inc.
-- NRC . 43 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI
---; Robertson v. Methow Valley Citizens Council-. 44 Holtec Int'l, LBP--at 45 Id. 46 See, e.g..
10 The Resnikoff Report was centered around a near
-complete failure of a transportation cask in response to a beyond
-design-basis fire in a crowded metropolitan area coupled with a deficient emergency response.
47 The Resnikoff Report itself states that "a spent fuel cask engulfed in the tunnel fire would be a
'worst case
' accident scenario,"48 and the Sierra Club, in its appeal, made no attempt to explain why this report is anything other than that
.49 Thus, on these facts, the Board did not abuse its discretion in deeming the Sierra Club
's reliance on such a "worst case
" assumption to be insufficient to support an admissible contention.
In Private Fuel Storage, the Commission was faced with an analogous scenario.
50 There, the licensing board denied admission of a contention on the environmental impacts of terrorism, 51 and the Commission upheld the board's decision, relying on the fact that the petitioner did not adequately explain how such an event is likely to occur. The Commission distinguished the remote possibility of a terrorist attack at an independent spent fuel storage installation from other environmental consequences, noting that
"[a] theoretical possibility . . . is 47 ("These values could be significantly curbed if an appropriate evacuation and decontamination took place."); see also Private Fuel Storage, CLI-- (finding at the contention admissibility stage that "the Commission has determined generically that accidental canister breach is not a credible scenario
"). For comparison, more recent NRC studies of transportation accidents, such as NUREG
-See NUREG-"Spent Fuel Transportation Risk Assessment," S- those accidents beyond regulatory requirements would not result in a release or loss of shielding). See also NUREG/CR- (finding that neither spent nuclear fuel particles nor fission products would be released from a transportation package involved in a severe tunnel fire). 48 49 Speculation, even by an expert, is insufficient to support the admission of a contention. Fansteel, Inc.
(Muskogee, Oklahoma, Site), CLI
--. 50 Private Fuel Storage, CLI-- , 51 Id. at -
11 not the same as a
'reasonably foreseeable
' impact, the usual trigger
-point for NEPA reviews.
"52 Similarly, in this case, the Board did not abuse its discretion in concluding tha t the Sierra Club has posited a hypothetical accident situation with severe consequences but has not explained why such an event is reasonable or likely to occur. As a result, absent support in the original petition explaining why the posited event is reasonable or likely to occur, and considering the Report
's own characterization of it as a "worst case" scenario, the Board
's decision was neither in error nor an abuse of discretion. In any event, the Sierra Cl ub's appeal does not acknowledge, and so does not specifically refute, the Board's reason for concluding that the event was a worst
-case scenario and thus was insufficient to demonstrate a genuine dispute with the application. Consequently, the Commission should defer to the Board
's findings.
C. 's decommissioning plan provides reasonable assurance that funds will be available to decommission the proposed facility, as §. appeared to be admissible. However, while the hearing request was pending before the Board, Holtec corrected an error in the application and clarified that the decommissioning fund was metric ton of uranium (MTU) proposed to be stored at the facility, and that the maximum amount that could be possessed under its proposed license was 53 With this clarification in mind, the Board found the contention inadmissible for failure to raise a genuine dispute with the application. The 52 Id. 53 Holtec Int
'l, LBP--
12 found that this argument was both impermissibly late and lacked supporting facts or expert opinion.54 On appeal, the Sierra Club does not identify any error of law or abuse of discretion in the Board's decision. Rather, it restates the belated argument from its reply
- that Holtec
's fund is unduly speculative.
55 The Sierra Club then argues that
§assurance for all future potential licensing phases of the proposed CISF.
56 The Sierra Club
's because the Sierra Club ignores the separate and equally dispositive Board ruling that this argument was impermissibly late. Where a board finds a contention inadmissible for failure to meet more than one requirement, a petitioner
's failure to address each ground for the board's ruling is sufficient justification for the Commission to reject the petitioner
's appeal.57 Because the Sierra Club failed to address why the Board erred in finding its argument about the rate of return impermissibly late, the Commission should decline to overturn the Board ruling on that ground alone. Further, the Sierra Club
's assertion that
§a decommissioning funding plan for all future phases of the project is incorrect as a matter of law. Holtec has applied for of the project in its application, and its license, if granted
, will permit storage of up to MTUs. If Holtec applies at some future time for additional storage capacity, it will have to comply with
§ storage capacity at that time. Nothing in
§ 54 Id. 55 56 Id. Holtec notes in its application that it may subsequently request an amendment to the license to request authorization to possess and store additional canisters in subsequent expansion - 57 See Millstone, CLI--
13 an applicant to have a decommissioning funding plan for possible future projects that are not contained in the current application. Because the Sierra Club identified no error of law in the Boar d's decision, its D. of Storage Containers)
"indefinite storage.
"58 Specifically, the Sierra Club stated that because the design life of the HI-danger of radioactive release that must be analyzed in the ER.
59 The Sierra Club also stated that these canisters "cannot be inspected, repaired, or repackaged," and that Holtec has no plan for dealing with "leaking or cracking containers.
"60 The Board denied the environmental aspects of the contention as an impermissible challenge to the Continued Storage Rule at §and the associated Generic Environmental Impact Statement (GE IS) and denied the safety aspects for failure to raise a genuine dispute with the application.
61 The Board also stated that the "Sierra Club has not pointed to deficient parts of the SAR
" and "ignores the SAR's discussion of retrievability, inspection, and maintenance activities.
"62 respect to the Sierra Club
's assertion that the ER must analyze the impacts of "indefinite storage," the Board correct ly found that this contention was a challenge to the Commission
's 58 59 Id. - 60 Id. - 61 Holtec Int
'l, LBP---). See NUREG-"Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, Final Report
" (Sept. . 62 Holtec Int
'l, LBP--).
14 Continued Storage Rule and GEIS. In its appeal, the Sierra Club argues that the GEIS, which supports the rule, contains the assumption that a dry transfer system would be used, and that if Holtec does not provide for a dry transfer system in its application then the rule does not apply.
63 In essence, in its appeal the Sierra Club challenges both the Continued Storage Rule and GEIS. The results of the analyses in the GEIS are codified in the Continued Storage Rule.64 Continued Storage Rule and the analyses in the underlying GEIS.
65 Challenges to Commission §, absent a waiver.
66 The Sierra Club did not request, much less obtain, a waiver. Therefore, the Commission should deny the Sierra Club
's appeal of the Board' The Board also did not err or abuse its discretion in finding the safety aspects of inadmissible. The Sierra Club failed to point to any deficiency in any specific portion of the SAR, and therefore failed to raise a genuine dispute with the application as C.F.R. §Sierra Club
's sole basis for appeal is a vague assertion that "[t]he SAR is not subject to the Continued Storage Rule, so it can properly address impacts beyond the license term.
"67 While it is true that the Continued Storage Rule by its terms address es environmental considerations, the appeal fails to specify any legal requirement regarding the contents of an SAR that extends "beyond the license term
" or explain how that shows a deficiency in the SAR. In sum, the Sierra Club fails to address or challenge any portion of the Board
's ruling on the safety aspects of 63 - 64 (a); see also ("This rule codifies the results of the analyses from the [GEIS] in 65 Holtec Int
'l, LBP--- 66 (a)-(b). 67 15 is sufficient basis to affirm as we ll.68 E. Sierra Clu b Contentiapplication
's consideration of earthquake potential at and near the site in accordance
§ (f). The Sierra Club asserted that the ER gives the issue "short shrift
" and that both the ER and SAR rely on historical earthquake data that fails to consider induced seismicity from fracking.
69 As support , the Sierra Club provided a map of oil and gas drilling in the area and a Stanford University report that it asserted show s that the earthquake potential is significant
.70 The Staff and Holtec opposed the contention on the grounds that the Sierra Club failed §71 The Board agreed.
72 Contrary to the Sierra Club
's assertion, the Board noted that "west Texas that may be due to
'fluid pressure build
-up from fluid injection
' (i.e., fracking) as well as recent s- miles west of the site from
[DOE's] Waste Isolation Plant [(WIPP)]
due to 'injection of waste water from natural gas production
' (i.e., fracking).
"73 As such , and because the Sierra Club failed to identify more 68 Millstone, CLI--'s "failure to challenge [the Board
's ruling on the admissibility of a contention] is, in and of itself, sufficient justification
" to deny the appeal as to that contention).
69 S- 70 Id. - 71 (iv). Id. 72 Holtec Int
'l, LBP-- 73 Id. -pr-16 recent significant seismic events in the area than the seismic events considered in the ER and SAR , the Board found the contention inadmissible
.74 In its appeal, the Sierra Club reiterates that the report and map show "that the faults are becoming more numerous and approaching the Holtec site
" and that "[t]he more current information provided by the Sierra Club could have, and should have, been included in the various revisions
" to the ER.75 However , the Sierra Club fails to identify any error of law or abuse of discretion on the part of the Board. The Board found that the "Sierra Club has not put forth any information that fracking has caused significant seismic events around the proposed proje" At root, therefore , the Sierra Club failed to explain how the inclusion of this "more current information
" in a revision to the application would challenge Holtec's analysis and make a material difference in the outcome of the licensing proceeding. Indeed the Sierra Club failed to controvert the SAR
's discussion of the design basis earthquake , which states the site was "earthquake
" and that, for additional conservatism and to overcome any potential uncertainty or future adjustments to the site seismological data, a "design extended condition earthquake
" was also defined, which is two
-thirds more severe than the design basis earthquake.
76 Accordingly, the Board correctly found that the Sierra Club did not show a genuine dispute with the application.
Because the Sierra Club
's appeal does not refute the Board
's reasoning but simply restates its claims that more recent information should be included in the application, it has neither identified an error of law nor an abuse of discretion. As a result
, the Commission should affirm the Board
's ruling. 74 Holtec Int
'l, LBP---The Board did not find the Stanford Report supportive of the Sierra Club
's contention and found "no dispute between the Stanford Report and the SAR's seismic analyses.
" Id. 75 76 -
17 F. - Sierra Club
's Contentions
-concern groundwater impacts.
Specifically, in Cthe Sierra Club asserted that the ER fails to adequately determine whether shallow groundwater exists at the site
, which it alleged is necessary to assess the impact of a radioactive leak
.77 In , it asserted that the ER does not contain information as to whether brine flows in the subsurface of the site , which it stated "could cause corrosion of the containers . . . and cause leaks
."78 In , the Sierra Club asserted that neither the ER nor the SAR discuss the presence and implications of fractured rock beneath the site
, which it stated "could allow radioactive leaks from the CIS facility to enter groundwater or for the brine ."79 In , the Sierra Club alleged that waste
-contaminated groundwater could reach the Santa Rosa Formation, a nearby aquifer, and that those impacts have not been adequately evaluated in the ER.
80 Lastly, in it asserted that the packer tests to estimate hydraulic conductivity of the Santa Rosa Formation were not properly conducted and thus inadequately evaluated the affected environment.
81 Each contention relied on the declaration of George Rice, a groundwater hydrologist
, 82 and each contention cited §. C §72.103. The Staff opposed each contention for failing to raise a genuine dispute with the application, as required
§, and it opposed Contentions - for 77 78 Id. 79 Id. - 80 Id. 81 Id. 82 ( (Rice Declaration).
18 lacking adequate support
, as required by
§.83 The Board agr eed. The Board noted the ER
's statement that "[t]here is no potential for a liquid pathway because the [spent nuclear fuel] contains no liquid component and the casks are sealed to prevent any liquids from contacting the [spent nuclear fuel] assemblies, 84 such that a leak is not credible even un der an off-normal event 85 or accident.86 The Board found that the Sierra Club "offer[ed] no support
" for its assertion that pollutants would be released into the groundwater
.87 The Board found the same to be true with respect to the potential for brine to reach the canisters.
88 The Board correctly held that
"[N]either mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention.
"89 In its appeal, the Sierra Club asserts that the Board erred in two respects. First , it asserts that regardless of whether the containers "can't leak or be breached," the ER must contain a complete and accurate discussion of the affected environment in accordance with
§(b).90 §that "[i]mpacts shall be discussed in proportion to their significance.
" Because the Sierra Club has failed to identify and 83 -Holtec also opposed admission of these contentions. Holtec Answer to Sierra Club Petition -Holtec opposed Contentions -for id. at -raise a material issue or genuine dispute with the application. Id. - 84 Holtec Int
'l, LBP---- 85 Id. -see also id.
-(quoting SAR - 86 Id. - 87 Id. see also id. - 88 See id. -T]he [cavity enclosure container] is a closed bottom, open top, thick walled cylindrical vessel that has no penetrations or openings. Thus, groundwater has no path for intrusion . . . .")). 89 Id. S. Nuclear Operating Co.
(Early Site Permit for Vogtle ESP Site), LBP--). 90 19 controvert specific statements in the application that a leak is not credible, its position that the groundwater, brine, and subsurface rock must be discussed in greater detail than the application already provides 91 is untenable. Moreover , as the Board noted, the Sierra Club
's argument runs directly afoul of the Commission
's finding in Private Fuel Storage
, with respect to a similar contention
, that "[t]o show a genuine material dispute, [a petitioner
's] contention would have to give the Board reason to believe that contamination from a defective canister could find its way outside of the cask.
"92 Second, the Sierra Club argues that the Board ecould not be relied upon as support for the groundwater contentions.
93 This argument is also unsupportable. H failed to raise a genuine dispute with the Holtec application on a material issue of law or fact
, 94 the Board logically concluded that the se contentions also provided inadequate support for the groundwater contentions , because the concerns described in those contentions depended on the Sierra Club's same (unsupported) underlying premise of potential contaminant release s. To find otherwise wou ld turn the "strict by design
" contention admissibility factors 95 on their head. As the Board neither abused its discretion nor erred as a matter of law, the Commission should affirm the Board
's ruling on these contentions.
91 See, e.g.---- 92 Holtec Int
'l, LBP--Private Fuel Storage, CLI--at -(concerning a contention that alleged potential environmental harm from a defective or defectively sealed canister containing high
-level waste enroute to and stored at a CISF).
93 94 Holtec Int
'l, LBP-----denied in part as an impermissible challenge to the Continued Storage Rule and in part as being outside the scope of the proceeding. Id. -The Sierra Club does not appeal the Board' 95 Millstone, CLI--at 20 In , the Sierra Club argued that Holtec made a material false statement in the application by asserting that either DOE or nuclear power plant operators would retain title to the spent fuel and contract with Holtec to store that fuel at the proposed facility.
96 The Sierra Club 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.
"97 The Sierra Club argued that newsletter demonstrated as materially false Holtec
's statements in the application that Holtec might contract directly with nuclear power plant operators who would retain title to the fuel. The Sierra Club
's stated view is that Holtec intends to pursue development of the proposed facility only if Congress changes the law to allow DOE to take title to the waste.
98 99 First, the Board found that Holtec's email statement was not inconsistent with the statements in the application and therefore failed to demonstrate those statements to be false.
100 Second, the Board stated that "[w]hether 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 licensee
's ability to safely conduct the activities the license authorizes.
"101 102 96 See Holtec Int
'l , LBP--' 97 Sierra Club
's Motion to File a New Late
-Filed ContentionSierra 98 Id. 99 Holtec Int
'l , LBP-- 100 Id. -). See -(", 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.
"). 101 Holtec Int
'l, LBP-- 102 Id.
21 The Sierra Club has not asserted an abuse of discretion or error of law in the Board
's explanation, but essentially summarizes its original arguments in favor of contention admissibility.
In doing so, the Sierra Club states that the Board misinterpreted Contentio by having assessed the veracity of Holtec
's statements in the "Reprising newsletter rather than in the application.
103 However, that claim is incorrect; the Board found that
"[n]othing in
'Reprising demonstrates a misrepresentation in Holtec's license application, willful or otherwise.
"104 On appeal , a petitioner must do more than repeat the arguments made to support contention admissibility.
105 Because the Sierra Club fail s to demonstrate that the Board
's holding as to its hearing request was either an error of law or an abuse of discretion, the Commission should uphold the decision.
Conclusion For the reasons stated above, the Commission should affirm the Board
's order in LBP-- Respectfully submitted, Alana M. Wase Mail Stop: O
-- U.S. Nuclear Regulatory Commission
- - E-mail: Alana.Wase@nrc.gov Counsel for NRC Staff 103 Sierra Club Appeal a 104 Holtec Int
'l , LBP-- 105 See Turkey Point, CLI--.
22 Sara B. Kirkwood Mail Stop: O
-- U.S. Nuclear Regulatory Commission
- Telephone: - E-mail: Sara.Kirkwood@nrc.gov Counsel for NRC Staff Esther R. Houseman Mail Stop: O
-- U.S. Nuclear Regulatory Commission
- - E-mail: Esther.Houseman@nrc.gov Counsel for NRC Staff Esther R. Houseman Mail Stop: O
-- U.S. Nuclear Regulatory Commission
- - E-mail: Esther.Houseman@nrc.gov Counsel for NRC Staff L. Sheldon Clark Mail Stop: O
-- U.S. Nuclear Regulatory Commission
- - E-mail: Sheldon.Clark@nrc.gov Counsel for NRC Staff Dated in Rockville, MD this th day of UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of HOLTEC INTERNATIONAL (HI-STORE Consolidated Interim Storage Facility)
- CERTIFICATE OF SERVICE
. §"NRC Staff's Answer in Opposition to the Sierra Club
's Appeal of LBP-- ," dated , have been served upon the Electronic Information Exchange (the NRC
's E-Filing System), in the captioned proceeding, this th day of . Alana M. Wase Mail Stop: O
-- U.S. Nuclear Regulatory Commission
- - E-mail: Alana.Wase@nrc.gov Counsel for NRC Staff Dated in Rockville, MD this th day of