ML19179A254

NRC Staff Response to Sierra Club Appeal of LBP-19-4

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 COMMISSION In the Matter of HOLTEC INTERNATIONAL Docket No. 72-1051 (HI-STORE Consolidated Interim Storage Facility)

NRC STAFF'S ANSWER IN OPPOSITION TO THE SIERRA CLUB'S APPEAL OF LBP-19-4 Alana M. Wase Sara B. Kirkwood Esther Houseman Joe I. Gillespie L. Sheldon Clark Counsel for the 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 Contention Admissibility ......................................................... 3 II. The Board Correctly Held that the Sierra Clubs Contentions Were Inadmissible. ............... 5 A. Contention 1 (Nuclear Waste Policy Act) ...................................................................... 5 B. Contention 4 (Transportation Risks) ............................................................................ 7 C. Contention 8 (Decommissioning Costs) ...................................................................... 11 D. Contention 9 (Impacts Beyond Design Life and Service Life of Storage Containers) ..13 E. Contention 11 (Earthquakes) .......................................................................................15 F. Contentions 15-19 (Groundwater Impacts) ................................................................17 G. Contention 26 (Material False Statement)...................................................................20 Conclusion ................................................................................................................................21 ii

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-06-24, 64 NRC 111 (2006) ...........................................................................................4, 5 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2),

CLI-03-14, 58 NRC 207 (2003) ............................................................................................. 5 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3),

CLI-08-17, 68 NRC 231 (2008) .............................................................................................. 3 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 NRC 631 (2004) ..................................................................................9, 12, 15 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349 (2001).........................................................................................4, 19 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3),

CLI-99-11, 49 NRC 328 (1999) ................................................................................................ 5 Entergy Nuclear Operations, Inc. (Indian Point, Unitn 2),

CLI-16-5, 83 NRC 131 (2016) ................................................................................................... 4 Exelon Generation Co., LLC (Clinton ESP Site),

CLI-05-29, 62 NRC 801 (2005) ............................................................................................... 5 Fansteel, Inc. (Muskogee, Oklahoma, Site),

CLI-03-13, 58 NRC 195 (2003) ...............................................................................................10 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7),

CLI-17-12, 86 NRC 215 (2017) ..........................................................................................3, 21 Intl Uranium Corp. (White Mesa Uranium Mill),

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

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

CLI-02-25, 56 NRC 340 (2002) ................................................................................. 9, 10, 11 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-04-22, 60 NRC 125 (2004) ..................................................................................5, 10, 19 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation, CLI-99-10, 49 NRC 318 (1999) .............................................................................................. 4 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 USEC Inc. (American Centrifuge Plant),

CLI-06-9, 63 NRC 433 (2006) ................................................................................................. 3 iii

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

LBP-06-14, 63 NRC 568 (2006) ............................................................................................ 3 Holtec Intl (HI-STORE Consolidated Interim Storage Facility),

LBP-19-4, 89 NRC __ (May 7, 2019) (slip op.). ............................................................ passim S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site),

LBP-07-3, 65 NRC 237 (2007).............................................................................................18 Regulations 10 C.F.R. § 2.309 .............................................................................................................. passim 10 C.F.R. § 2.311 ....................................................................................................................1, 3 10 C.F.R. § 2.335 ..................................................................................................................5, 14 10 C.F.R. § 51.23 ................................................................................................................13, 14 10 C.F.R. § 51.45 .......................................................................................................... 15, 17, 18 10 C.F.R. § 72.22 ......................................................................................................................20 10 C.F.R. § 72.30 ...................................................................................................................... 11 10 C.F.R. § 72.103 ..............................................................................................................15, 17 49 C.F.R. § 172.820 ................................................................................................................... 9 Other Authorities Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014) ......................14 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004) ...................... 4 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 12,034 (Mar. 19, 2018). .................................................... 2 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018) ...................................................1, 2 NUREG/CR-6886, Rev. 2, "Spent Fuel Transportation Package Response to the Baltimore Tunnel Fire Scenario" (Feb. 2009) (ML090570742) .............................................................10 NUREG-2125, Spent Fuel Transportation Risk Assessment, (Jan. 2014) (ML14031A323) .....10 NUREG-2157, Vol. 1, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, Final Report (Sept. 2014) (ML14196A105) ...................................................13 iv

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 Staffs Answer in Opposition to the Sierra Clubs Appeal of LBP-19-4 Introduction Pursuant to 10 C.F.R. § 2.311(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 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. 2 In LBP-19-4, the Atomic Safety and Licensing Board (Board) denied all of the Sierra Clubs contentions. 3 Because the Sierra Club does not show that the Board committed an error of law or abused its discretion in finding that the Sierra Club failed to present an admissible contention under 10 C.F.R. § 2.309(f)(1), the Commission should affirm the Boards decision.

1 Sierra Clubs Brief in Support of Appeal of Atomic Safety and Licensing Board Decision Denying Admissibility of Contentions in Licensing Proceeding (June 3, 2019) ADAMS Accession No. ML19154A166) (Sierra Club Appeal).

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

3 Holtec Intl (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) 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 store up to 8,680 metric tons of uranium in up to 500 canisters for a license period of 40 years. 5 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. 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 On May 7, 2019, the Board denied the Sierra Clubs hearing request. The Board found that the Sierra Club had demonstrated standing but held that none of its proposed 29 contentions were admissible in accordance with 10 C.F.R. § 2.309(f)(1). 9 The Sierra Club now appeals the Boards ruling with respect to its Contentions 1, 4, 8, 9, 11, 15-19, and 26. 10 4 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 (ADAMS Accession No. ML19095B800) all citations to the SAR are to Revision 0F (ADAMS Accession No. ML19052A379), and all citations to the proposed license are to Revision 0A (ML17310A223) (Proposed License).

5 Proposed License at 1.

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

7 83 Fed. Reg. at 32,919.

8 See, e.g., Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Sept. 14, 2018)

(ML18257A228) (Sierra Club Petition to Intervene).

9 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 2).

10 Sierra Club Appeal at 5.

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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 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 boards decision. 11 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. 12 Rather, a valid appeal must point out the errors in the [b]oards 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 10 C.F.R. § 2.309(f)(1) establishes the 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. (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).

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

13 Id.

14 Intl 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).

15 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).

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(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 contention that satisfies all of the 10 C.F.R. § 2.309(f)(1) requirements. 20 The Commission has emphasized that attempting to satisfy these requirements by [m]ere notice pleading does not 16 10 C.F.R. § 2.309(f)(1).

17 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 121 (2006) (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349, 358 (2001), pet. for recons. denied, CLI-02-1, 55 NRC 1 (2002)).

18 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).

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

20 Id.

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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 petitioners 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, 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 Board Correctly Held that the Sierra Clubs Contentions Were Inadmissible.

The Sierra Club asserts that the Board erred in denying Contentions 1, 4, 8, 9, 11, 15-19, and 26. 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 Clubs contentions failed to meet the Commissions contention admissibility requirements under 10 C.F.R.

§ 2.309(f)(1). Therefore, the Commission should affirm the Boards decision.

A. Contention 1 (Nuclear Waste Policy Act)

The Sierra Club initially filed Contention 1 both as a challenge to the provision of the application which stated that the Department of Energy (DOE) would take title to the spent fuel 21 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)).

22 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)).

23 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)).

24 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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and also as a challenge to the NRCs authority to license any away-from-reactor CISF. 25 After oral argument, the Sierra Club amended its Contention 1 to mirror Beyond Nuclears Contention 1, seeking to add a statement that [l]anguage in Rev. 3 of Holtecs 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 Nuclears 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 Clubs proposed amended contention was substantially similar to Beyond Nuclears contention and ruled that it was not admissible for the same reasons that Beyond Nuclears amended contention was not admissible. 28 The Board also ruled that the Sierra Clubs challenge to the NRCs 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 contends 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 10-11.

26 Sierra Clubs Motion to Amend Contention 1 (Feb. 6, 2019), at 11 (ML19037A178).

27 Id. at 13-14.

28 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 35). Beyond Nuclear also has appealed the Boards contention admissibility determination; the Staff has filed a separate response thereto.

29 Id. at __ (slip op. at 35).

30 Sierra Club Appeal at 8-9.

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Beyond Nuclear contention, the Board assumed that the NWPA does in fact prohibit DOE ownership of the spent fuel, but explained that the application as currently drafted allows 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, the 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 Holtecs 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 Clubs concerns prove true, it does not now articulate a legal error or abuse of discretion in the Boards decision. Thus, the Commission should affirm the decision.

B. Contention 4 (Transportation Risks)

In Contention 4, the Sierra Club asserted that the discussion of transportation impacts in Holtecs environmental report is inaccurate. 33 The Sierra Club relied primarily on a 2001 report by Matthew Lamb and Dr. Marvin Resnikoff (Resnikoff Report) that evaluated the hypothetical radiological consequences of the 2001 Baltimore Tunnel Fire, had it involved spent fuel. 34 31 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 34). As the Sierra Club acknowledges, the Board also explained its rationale for assuming that neither Holtec nor DOE would engage in unlawful activity.

Sierra Club Appeal at 8 (citing LBP-19-4, 89 NRC at __ (slip op. at 32-33)).

32 Sierra Club Appeal at 9.

33 Sierra Club Petition to Intervene at 22-27.

34 Id. at 24; Matthew Lamb & Dr. Marvin Resnikoff, Radiological Consequences of Severe Rail Accident Involving Spent Nuclear Fuel Shipments to Yucca Mountain; Hypothetical Baltimore Rail Tunnel Fire Involving SNF (Sept. 2001), http://state.nv.us/nucwaste/news2001/nn11459.htm, also available at https://go.usa.gov/xmtsC.

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As noted by the Sierra Club in its appeal, the NRC Staff took the position before the Board that Contention 4 was admissible in part, with respect to the consequences of a hypothetical transportation accident. 35 However, the standard for overturning the Boards 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 Board found Contention 4 inadmissible based on the Sierra Clubs 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 DOEs 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 applications 35 The original contention had also claimed that the application did not consider the impact of deteriorating railroad infrastructure on transportation risks. Sierra Club Petition to Intervene at 27.

The NRC Staff stated that this aspect of the contention was inadmissible, and the Sierra Club did not appeal on this issue. See NRC Staffs Consolidated Response to Petitions to Intervene and Requests for Hearing Filed By: Alliance for Environmental Strategies, Beyond Nuclear, Inc., Dont Waste Michigan, et al., NAC International Inc., and the Sierra Club (Oct. 9, 2018), at 73-74 (ML18282A567)

(NRC Staff Answer to Sierra Club Petition); Sierra Club Appeal at 9-11.

36 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 41).

37 Id. at __ (slip op. at 40); ER at 4-34.

38 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 40).

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analysis. 39 Additionally, the Board concluded that the Sierra Clubs 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 Boards findings on admissibility, the failure to address each basis of the Boards 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 Clubs appeal (like its original petition) does not address the reasonableness of the assumptions underlying the report. As the Board noted, the study did not take into account safeguards such as the route approvals performed by the NRC under 10 C.F.R. Part 73 and the route analyses mandated by the Department of Transportation. 46 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 ERs analysis as the DOE and Holtec risk estimates.

See Sierra Club Petition to Intervene at 26.

40 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 41).

41 Sierra Club Appeal at 9-11.

42 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 638 (2004).

43 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 351-53 (2002); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 345-46 (1989).

44 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 41).

45 Id. at __ (slip op. at 41).

46 See, e.g., 49 C.F.R. § 172.820.

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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 Clubs 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 boards 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 Resnikoff Report at 13 (These values could be significantly curbed if an appropriate evacuation and decontamination took place.); see also NRC Staff Answer to Sierra Club Petition at 73, n.324; Private Fuel Storage, CLI-04-22, 60 NRC at 137 (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-2125, have shown that only 0.05% of all transportation accident events would exceed the hypothetical accident conditions in 10 C.F.R. § 71.73. See NUREG-2125, Spent Fuel Transportation Risk Assessment, (Jan. 2014), Figure PS-8 (ML14031A323) (finding that 99.86% of shipments occur without accidents, that 99.95% of those accidents would not exceed regulatory requirements, and that 99.99973% of those accidents beyond regulatory requirements would not result in a release or loss of shielding).

See also NUREG/CR-6886, Rev. 2, "Spent Fuel Transportation Package Response to the Baltimore Tunnel Fire Scenario" (Feb. 2009) (ML090570742) (finding that neither spent nuclear fuel particles nor fission products would be released from a transportation package involved in a severe tunnel fire).

48 Resnikoff Report at 9.

49 Speculation, even by an expert, is insufficient to support the admission of a contention. Fansteel, Inc.

(Muskogee, Oklahoma, Site), CLI-03-13, 58 NRC 195, 203 (2003).

50 Private Fuel Storage, CLI-02-25, 56 NRC at 340.

51 Id. at 345-46.

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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 that 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 Reports own characterization of it as a worst case scenario, the Boards decision was neither in error nor an abuse of discretion. In any event, the Sierra Clubs appeal does not acknowledge, and so does not specifically refute, the Boards 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 Boards findings.

C. Contention 8 (Decommissioning Costs)

Sierra Club Contention 8 challenged whether Holtecs decommissioning plan provides reasonable assurance that funds will be available to decommission the proposed facility, as required by 10 C.F.R. § 72.30. The Board noted that initially Contention 8 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 established by setting aside $840 per 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 8,680 MTUs contained in up to 500 loaded canisters. 53 With this clarification in mind, the Board found the contention inadmissible for failure to raise a genuine dispute with the application. The Sierra Club further argued in its reply that the 3% rate of return was speculative. The Board 52 Id. at 352.

53 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 47).

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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 Boards decision. Rather, it restates the belated argument from its reply: that Holtecs assumption that it would earn up to 3% interest on the decommissioning fund is unduly speculative. 55 The Sierra Club then argues that § 72.30(a) requires decommissioning funding assurance for all future potential licensing phases of the proposed CISF. 56 The Sierra Clubs complaint about the 3% rate of return necessarily fails 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 petitioners failure to address each ground for the boards ruling is sufficient justification for the Commission to reject the petitioners 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 Clubs assertion that § 72.30 requires a decommissioning funding plan for all future phases of the project is incorrect as a matter of law. Holtec has applied for Phase 1 of the project in its application, and its license, if granted, will permit storage of up to 8,680 MTUs. If Holtec applies at some future time for additional storage capacity, it will have to comply with § 72.30 for the additional storage capacity at that time. Nothing in § 72.30 requires 54 Id. at __ (slip op. at 49).

55 Sierra Club Appeal at 12.

56 Id. at 13. 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 phases. ER at 1-1.

57 See Millstone, CLI-04-36, 60 NRC at 638.

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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 Boards decision, its appeal of Contention 8 necessarily fails.

D. Contention 9 (Impacts Beyond Design Life and Service Life of Storage Containers)

Sierra Club Contention 9 asserted that the ER must analyze the environmental impact of indefinite storage. 58 Specifically, the Sierra Club stated that because the design life of the HI-STORE UMAX canister systems is 60 years and the service life is 100 years, and the ER states that the waste will be stored at the site for up to 120 years, the system may present a 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 10 C.F.R.

§ 51.23 and the associated Generic Environmental Impact Statement (GEIS) 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 SARs discussion of retrievability, inspection, and maintenance activities. 62 The Board did not err or abuse its discretion in denying admission of Contention 9. With respect to the Sierra Clubs assertion that the ER must analyze the impacts of indefinite storage, the Board correctly found that this contention was a challenge to the Commissions 58 Sierra Club Petition to Intervene at 38.

59 Id. at 38-39.

60 Id. at 41-42.

61 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 50-51). See NUREG-2157, Vol. 1, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, Final Report (Sept.

2014) (ML14196A105).

62 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 51).

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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 Therefore, the Board was correct to find that Contention 9 impermissibly challenged the Continued Storage Rule and the analyses in the underlying GEIS. 65 Challenges to Commission rules are prohibited by 10 C.F.R. § 2.335, absent a waiver. 66 The Sierra Club did not request, much less obtain, a waiver. Therefore, the Commission should deny the Sierra Clubs appeal of the Boards ruling on the environmental portion of Contention 9.

The Board also did not err or abuse its discretion in finding the safety aspects of Contention 9 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 required by 10 C.F.R. § 2.309(f)(1)(vi). With respect to its safety concerns in Contention 9, the Sierra Clubs 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 addresses 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 Boards ruling on the safety aspects of 63 Sierra Club Appeal at 13-14.

64 10 C.F.R. § 51.23(a); see also Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept.

19, 2014) (This rule codifies the results of the analyses from the [GEIS] in § 51.23.).

65 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 50-51).

66 10 C.F.R. § 2.335(a)-(b).

67 Sierra Club Appeal at 14.

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Contention 9. This failure is sufficient basis to affirm the safety aspects of Contention 9 as well. 68 E. Contention 11 (Earthquakes)

Sierra Club Contention 11 challenged the adequacy of the applications consideration of earthquake potential at and near the site in accordance with 10 C.F.R. §§ 51.45 and 72.103(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 shows that the earthquake potential is significant. 70 The Staff and Holtec opposed the contention on the grounds that the Sierra Club failed to show a genuine dispute with the application on a material issue of fact, contrary to 10 C.F.R.

§ 2.309(f)(1)(vi). 71 The Board agreed. 72 Contrary to the Sierra Clubs assertion, the Board noted that Section 3.3.2.1 [of the ER] specifically discusses the seismic events southeast of the site in west Texas that may be due to fluid pressure build-up from fluid injection (i.e., fracking) as well as recent seismic activity from the late 1990s to the mid-2000s fifty miles west of the site from

[DOEs] Waste Isolation 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-04-36, 60 NRC at 638 (finding that an appellants failure to challenge [the Boards ruling on the admissibility of a contention] is, in and of itself, sufficient justification to deny the appeal as to that contention).

69 Sierra Club Petition to Intervene at 44-47.

70 Id. at 44-45.

71 Holtec Answer to Sierra Club Petition at 56; NRC Staff Answer to Sierra Club Petition at 83. Holtec also asserted that the contention should be denied in accordance with 10 C.F.R. § 2.309(f)(1)(ii) and (iv). Id.

72 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 54).

73 Id. at __ (slip op. at 54) (quoting ER at 3-17). WIPP is located approximately 16 miles from the proposed CISF site. ER at 3-18.

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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 project site in the years since the 2016 USGS report. 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 Holtecs analysis and make a material difference in the outcome of the licensing proceeding. Indeed the Sierra Club failed to controvert the SARs discussion of the design basis earthquake, which states the site was set to bound the 10,000 year return 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 Clubs appeal does not refute the Boards 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 Boards ruling.

74 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 54-55). The Board did not find the Stanford Report supportive of the Sierra Clubs contention and found no dispute between the Stanford Report and the SARs seismic analyses. Id. at __ (slip op. at 55). The Sierra Club does not controvert this ruling.

75 Sierra Club Appeal at 16.

76 SAR at 4-21.

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F. Contentions 15-19 (Groundwater Impacts)

Sierra Clubs Contentions 15-19 concern groundwater impacts. Specifically, in Contention 15 the 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 Contention 16, 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 Contention 17, 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 described in Contention 16 to corrode the containers. 79 In Contention 18, 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 Contention 19 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 10 C.F.R. § 51.45. Contention 17 also referenced 10 C.F.R. § 72.103.

The Staff opposed each contention for failing to raise a genuine dispute with the application, as required by 10 C.F.R. § 2.309(f)(1)(vi), and it opposed Contentions 15-18 for 77 Sierra Club Petition to Intervene at 60.

78 Id. at 62.

79 Id. at 63-64.

80 Id. at 65.

81 Id. at 66.

82 Expert Declarations, George Rice (Sept. 10, 2018) (ML18257A229) (Rice Declaration).

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lacking adequate support, as required by 10 C.F.R. § 2.309(f)(1)(v). 83 The Board agreed. The Board noted the ERs 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 under 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 cant leak or be breached, the ER must contain a complete and accurate discussion of the affected environment in accordance with 10 C.F.R. § 51.45(b). 90 While this is true, 10 C.F.R. § 51.45(b)(1) states that [i]mpacts shall be discussed in proportion to their significance. Because the Sierra Club has failed to identify and 83 NRC Staff Answer to Sierra Club Petition at 96-107. Holtec also opposed admission of these contentions. Holtec Answer to Sierra Club Petition at 80-91. Holtec opposed Contentions 15-18 for not complying with 10 C.F.R. § 2.309(f)(1)(ii), (iv), and (vi), id. at 80-90, and Contention 19 for failing to raise a material issue or genuine dispute with the application. Id. at 90-91.

84 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 63, 67, 69) (quoting ER at 1-8, 7-1).

85 Id. at __ (slip op. at 62, 67, 69) (citing ER at 4-56); see also id. at __ (slip op. at 67-68) (quoting SAR at 1-14).

86 Id. at __ (slip op. at 62, 67, 69) (citing ER at 4-57).

87 Id. at __ (slip op. at 62); see also id. at __ (slip op. 67-69, 71).

88 See id. at __ (slip op. at 66) (quoting SAR at 1-14 ([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. at __ (slip op. at 66, 68) (quoting S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site),

LBP-07-3, 65 NRC 237, 253 (2007)).

90 Sierra Club Appeal at 17.

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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 Clubs argument runs directly afoul of the Commissions finding in Private Fuel Storage, with respect to a similar contention, that [t]o show a genuine material dispute, [a petitioners] contention would have to give the Board reason to believe that contamination from a defective canister could find its way outside of the cask. 92 Second, the Sierra Club argues that the Board erred in finding that Contentions 9, 14, 20, and 23 could not be relied upon as support for the groundwater contentions. 93 This argument is also unsupportable. Having found that Contentions 9, 14, 20, and 23 failed to raise a genuine dispute with the Holtec application on a material issue of law or fact, 94 the Board logically concluded that these contentions also provided inadequate support for the groundwater contentions, because the concerns described in those contentions depended on the Sierra Clubs same (unsupported) underlying premise of potential contaminant releases. To find otherwise would 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 Boards ruling on these contentions.

91 See, e.g., ER at 3-50 to 3-52, 3-13 to 3-17.

92 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 63) (quoting Private Fuel Storage, CLI-04-22, 60 NRC at 138-39 (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 Sierra Club Appeal at 18.

94 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 51, 59-61, 72-74, 77-78). Contention 9 was also denied in part as an impermissible challenge to the Continued Storage Rule and in part as being outside the scope of the proceeding. Id. at __ (slip op. at 50-51). The Sierra Club does not appeal the Boards denial of Contentions 20 and 23.

95 Millstone, CLI-01-24, 54 NRC at 358.

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G. Contention 26 (Material False Statement)

In Contention 26, 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 Holtecs statements in the application that Holtec might contract directly with nuclear power plant operators who would retain title to the fuel. The Sierra Clubs 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 The Board found that Contention 26 was not admissible. 99 First, the Board found that Holtecs 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 licensees ability to safely conduct the activities the license authorizes. 101 Therefore, Contention 26 was not admissible. 102 96 See Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 80); Sierra Clubs Appeal at 20.

97 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).

98 Id.

99 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 85).

100 Id. at __ (slip op. at 83-84). 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.).

101 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 85).

102 Id.

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The Sierra Club has not asserted an abuse of discretion or error of law in the Boards explanation, but essentially summarizes its original arguments in favor of contention admissibility. In doing so, the Sierra Club states that the Board misinterpreted Contention 26 by having assessed the veracity of Holtecs statements in the Reprising 2018 newsletter rather than in the application. 103 However, that claim is incorrect; the Board found that [n]othing in Reprising 2018 demonstrates a misrepresentation in Holtecs 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 fails to demonstrate that the Boards 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 Boards order in LBP-19-4.

Respectfully submitted,

/Signed (electronically) by/

Alana M. Wase Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9095 E-mail: Alana.Wase@nrc.gov Counsel for NRC Staff 103 Sierra Club Appeal at 20.

104 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 83) (emphasis added).

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

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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)

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 22

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 Staffs Answer in Opposition to the Sierra Clubs Appeal 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/

Alana M. Wase Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9095 E-mail: Alana.Wase@nrc.gov Counsel for NRC Staff Dated in Rockville, MD this 28th day of June 2019