ML19094B397
| ML19094B397 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE, Consolidated Interim Storage Facility |
| Issue date: | 04/01/2019 |
| From: | Andrew Averbach, Chilakamarri V, Clark J, Grant E NRC/OGC, US Dept of Justice, Environment & Natural Resources Div |
| To: | US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 1780140, 18-1340 | |
| Download: ML19094B397 (75) | |
Text
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 1 of 11 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BEYOND NUCLEAR, INC., )
Petitioner, )
)
- v. ) No. 18-1340
)
UNITED STATES NUCLEAR )
REGULATORY COMMISSION and )
the UNITED STATES OF AMERICA, )
Respondents. )
FEDERAL RESPONDENTS MOTION TO DISMISS The United States Nuclear Regulatory Commission (NRC) and the United States move to dismiss the petition for review filed by Beyond Nuclear, Inc., for lack of an appealable final order within the meaning of the Hobbs Act, 28 U.S.C.
§ 2342(4), and for lack of ripeness.
First, the Hobbs Act confers upon the courts of appeals exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of . . . all final orders of the [NRC] made reviewable by section 2239 of title 42. 28 U.S.C. § 2342(4). Section 2239, in turn, makes reviewable any final order entered in any proceeding of the kind specified in [§ 2239(a)]. 42 U.S.C.
§ 2239(b)(1). And Section 2239(a), in relevant part, encompasses any proceeding
. . . for the granting, suspending, revoking, or amending of any license. In this suit, Beyond Nuclear seeks to challenge the NRCs authority to issue licenses even (Page 1 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 2 of 11 though there has not yet been a final order entered in any proceeding related to these licenses under Section 2239.
The NRC, through proceedings before its Atomic Safety and Licensing Board, is currently considering contentions that have been raised against the potential issuance of two separate licenses (sought by intervenors Holtec International and Interim Storage Partners LLC) to construct and operate facilities for the interim storage of spent nuclear fuel pursuant to the Atomic Energy Act and 10 C.F.R. Part 72.1 On September 14, 2018, Beyond Nuclear submitted what it termed a motion to dismiss these license applications, asserting that the NRC lacks authority to issue these licenses because the applications, inasmuch as they 1
The applicants applied for these licenses in 2018, and the NRC provided notice of the applications in the Federal Register. See Holtec Internationals HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32919 (July 16, 2018); Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018). Each notice provided that, Within 60 days after the date of publication of this notice, any person (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commissions Agency Rules of Practice and Procedure in 10 CFR part 2.
83 Fed. Reg. at 32,920; id. at 44,071.
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 3 of 11 contemplate the storage of spent fuel to which the U.S. Department of Energy holds title, would be inconsistent with the Nuclear Waste Policy Act (NWPA). 2 The Commissioni.e., the five-member collegial body that administers the agencydenied Beyond Nuclears motion to dismiss by order dated October 27, 2018 (Exhibit B). Critically, however, the Commission did not rule on the legal arguments advanced by Beyond Nuclear concerning the NRCs authority under the NWPA. Indeed, the order (which was signed by the Secretary of the Commission in accordance with her authority to disposition improperly filed adjudicatory documents under 10 C.F.R. § 2.346(c), (g), (i), and (j)), did not reach the legal arguments underlying the motions at all. Rather, the order expressly stated that the denial was on procedural grounds, without prejudice to the underlying merits of the legal arguments embedded within the motions. And the Commission referred these argumentswhich had also been simultaneously raised in formal hearing requests and petitions to intervene in the proceeding filed by Beyond Nuclearto its Atomic Safety and Licensing Board to consider them in accordance with the 2
A copy of the motion to dismiss filed by Beyond Nuclear with respect to the applications filed by Holtec International and Interim Storage Partners LLC is attached hereto as Exhibit A. Beyond Nuclear asserted in its motion that the license proceedings must be dismissed because the central premise of both Holtecs and ISPs applications - that the U.S. Department of Energy . . . will be responsible for the spent fuel that is transported to and stored at the proposed interim facilities - violates the Nuclear Waste Policy Act.
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 4 of 11 agencys adjudicatory procedures. 3 These procedures, set forth at 10 C.F.R. Part 2, fulfill the agencys obligation pursuant to Section 189a. of the Atomic Energy Act, 42 U.S.C. § 2239, to provide the opportunity for a hearing by those affected by agency licensing decisions. And they call upon the Board to consider Beyond Nuclears arguments (either by admitting or denying its contentions for adjudication and, if admitted, by issuing a ruling on the merits) and, if Beyond Nuclear is dissatisfied with the result, permit Beyond Nuclear to file an appeal to the Commission. See 10 C.F.R. §§ 2.309, 2.340, 2.341, 2.1212.
Thus, the legal arguments that Beyond Nuclear has raised challenging the Commissions authority to issue the underlying licenses have been channeled into 3
Copies of the hearing requests and petitions to intervene that Beyond Nuclear submitted in connection with the applications filed by Holtec and Interim Storage Partners LLC are attached hereto as Exhibits C and D, respectively. In each, Beyond Nuclear sought to litigate its contention that:
The NRC must dismiss [the] license application and terminate this proceeding because the application violates the NWPA. The proceeding must be dismissed because the central premise of [the]
application - that the U.S. Department of Energy (DOE) will be responsible for the spent fuel that is transported to and stored at the proposed interim facilities - violates the NWPA. Under the NWPA, the DOE is precluded from taking title to spent fuel unless and until a permanent repository has opened. 42 U.S.C. §§ 10222(a)(5)(A),
10143.
Exh. C at 8; Exh. D at 8-9.
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 5 of 11 the agencys adjudicatory process, the Board is currently considering them, 4 and the Commission itself will have the opportunity to consider them at a later date in the event of an appeal. Under these circumstances, it is difficult to conceive of any way in which the the process of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication or in which rights or obligations have been determined or legal consequences will flow from the agency action. Adenariwo v. Federal Maritime Commn, 808 F.3d 74, 78 (D.C. Cir. 2015). As a result, there is no final order reviewable under the Hobbs Act.
Beyond Nuclear responded to our finality argument when we raised it in response to its motion to hold its petition in abeyance. It did not contest the fact that the Board is still evaluating its legal arguments. Rather, in its reply in support of that motion, it asserted that the agency proceedings are, in fact, complete with respect to the question of whether the Commission must immediately dismiss the Licensing Board proceedings for noncompliance with the NWPA and APA, or 4
Beyond Nuclears contentions are being considered in two separate proceedings before the Board (one for Holtec and one for Interim Storage Partners), although the Board in each proceeding is composed of the same three judges. On February 26, 2019, following oral argument on standing and contention admissibility, the Board in Holtec issued a notice (Exhibit E) that it intended to issue a decision within 45 days of completion of briefing of all pending motions. The Board has also indicated that it will issue a decision in Interim Storage Partners regarding Beyond Nuclears arguments under the NWPA after issuance of an order in Holtec.
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 6 of 11 alternatively open a new proceeding to consider that issue, and it claimed that the additional question of whether the NWPA and APA claims should be resolved in a separate proceeding before the Commission . . . was made once and for all against [Beyond Nuclear] in the Order. Petitioners Reply to Federal Respondent[s] Response to Petitioners Motion to Hold Petition for Review in Abeyance (Document #1768251) at 2-3; see also Agency Docketing Statement, Addendum at 6-7 (Document #1778648 at 8) ([T]he ASLB licensing proceedings will not address the question of whether the NRC is violating the NWPA and the APA in the very act of considering the license applications. That question was conclusively answered in the Commissions October 29, 2018 Order now on appeal.).
Beyond Nuclears argument is meritless and notably unsupported by any authority. Certainly it is the case that the pendency of the issue before the Board (and, potentially, the Commission on appeal) means that the issue will not be immediately decided in Beyond Nuclears (or any partys) favor, without resort to the adjudicatory process. But that hardly means that any rights or obligations have been determined or that any legal consequences will flow from the decision that Beyond Nuclear claims is final, as is necessary to confer jurisdiction upon this Court. It simply means that the agency has embarked upon an orderly path to consider the arguments that Beyond Nuclear has raised, in accordance with the 6
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 7 of 11 hearing rights that Congress created under Section 189a. of the Atomic Energy Act and the specific procedures that the agency adopted in order to provide interested parties with an opportunity to present their arguments to the agency to challenge licensing decisions. The Commissions decision to channel Beyond Nuclears legal arguments into the procedural avenues created for precisely this purpose is not final in any meaningful sense (and, even if it were, Beyond Nuclear, which is being provided with a full and fair opportunity to pursue its contentions and litigate its case, cannot be said to have suffered cognizable injury-in-fact as a consequence of such a decision).
Finally, we observe that Beyond Nuclear appears to have invoked this Courts jurisdiction pursuant to the Hobbs Act. See Agency Docketing Statement, Addendum at 1 (Document #1778648 at 2) (To establish standing in a case brought under the Hobbs Act ). Yet Beyond Nuclears argument in support of finality is premised on its assertion that it has a freestanding right to have the NRC, acting through the Commission itself, dismiss the underlying license applications, independent of and without resort to the hearing process contemplated by Section 189a. (42 U.S.C. § 2239(a)) and codified in 10 C.F.R. Part 2. To the extent Beyond Nuclear has a right to review of the Commissions order denying its out-of-process motion (and we do not believe it does), the order under review would not have been entered in a proceeding to which the Hobbs 7
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 8 of 11 Acts direct appellate jurisdiction attaches. As a result, Beyond Nuclears claim would not be properly before this Court. Cf. Brodsky v. NRC, 578 F.3d 175, 177 (2d Cir. 2009) (dismissing, for lack of jurisdiction under the Hobbs Act, a challenge to an exemption order, which falls outside of the proceedings covered by Section 2339(a)).
Accordingly, Beyond Nuclears petition should be dismissed for lack of a final order within the meaning of 28 U.S.C. 2342(4).
Second, Beyond Nuclears petition can also be dismissed under the related doctrine of ripeness, as the petitioner faces no imminent hardship in having to raise its claims in the normal course of proceedings before the Board, and its claim rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all. Atl. States Legal Found. v. E.P.A., 325 F.3d 281, 284 (D.C.
Cir. 2003). The Board will consider Beyond Nuclears claims in its administrative proceedings, and the Boards decision (or the Commissions review of that decision on appeal) could obviate the need for the instant petition; if it does not, Beyond Nuclear could seek review after the agency has been afforded the opportunity to render and articulate its decision. Indeed, Beyond Nuclears own motion for abeyance makes it clear why this case is unripe (prudentially, at the very least). Beyond Nuclear concedes that there is a strong likelihood that . . .
issues raised by the Petition could be eliminated, narrowed, or clarified by 8
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 9 of 11 administrative decisions, potentially precluding the need for further litigation.
Petitioners Motion to Hold Petition in Abeyance (Document #1766675) at 1.
Accordingly, this petition can also be dismissed for lack of ripeness.
This Court should dismiss Beyond Nuclears petition.
Respectfully submitted, JEFFREY B. CLARK /s/ Andrew P. Averbach Assistant Attorney General ANDREW P. AVERBACH Solicitor ERIC GRANT Office of the General Counsel Deputy Assistant Attorney General U.S. Nuclear Regulatory Commission 11555 Rockville Pike
/s/ Varu Chilakamarri Rockville, MD 20852 VARU CHILAKAMARRI (301) 415-1956 Appellate Section andrew.averbach@nrc.gov Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7415 Washington, DC 20044 (202) 353-3527 varudhini.chilakamarri@usdoj.gov April 1, 2019 9
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 10 of 11 CERTIFICATE OF COMPLIANCE I certify that FEDERAL RESPONDENTS MOTION TO DISMISS complies with the formatting and type-volume restrictions of the rules of the U.S.
Court of Appeals for the District of Columbia Circuit. The motion was prepared in 14-point, double spaced, Times New Roman font, using Microsoft Word 2013, in accordance with Fed. R. App. P. 32(a)(5) and Fed. R. App. P. 32(a)(6). The response contains 1,987 words and therefore complies with Fed. R. App. P.
27(d)(2)(A).
/s/ Andrew P. Averbach Andrew P. Averbach Solicitor U.S. Nuclear Regulatory Commission April 1, 2019 (Page 10 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 11 of 11 CERTIFICATE OF SERVICE I certify under penalty of perjury that on April 1, 2019, I filed FEDERAL RESPONDENTS MOTION TO DISMISS with the U.S. Court of Appeals for the District of Columbia Circuit by filing it with the Courts CM/ECF system.
/s/ Andrew P. Averbach Andrew P. Averbach Solicitor U.S. Nuclear Regulatory Commission (Page 11 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 1 of 1 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES (A) Parties and Amici The petitioner is Beyond Nuclear, Inc. The respondents are the United States and the United States Nuclear Regulatory Commission. The intervenors are Holtec International and Interim Storage Partners LLC.
(B) Ruling Under Review The ruling under review is the order of the Nuclear Regulatory Commission dated October 27, 2018. It is attached to this motion as Exhibit B.
(C) Related Cases There are no related cases.
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 1 of 28 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 )
)
In the Matter of: )
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Interim Storage Partners ) Docket No. 72-1050
)
(WCS Consolidated Interim Storage Facility) )
)
BEYOND NUCLEAR, INC.S MOTION TO DISMISS LICENSING PROCEEDINGS FOR HI-STORE CONSOLIDATED INTERIM STORAGE FACILITY AND WCS CONSOLIDATED INTERIM STORAGE FACILITY FOR VIOLATION OF THE NUCLEAR WASTE POLICY ACT (Page 13 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 2 of 28 Table of Contents Table of Authorities .............................................................................................iv I. Introduction .......................................................................................................1 II. The Issues Raised by This Motion Lie Outside the Scope of the Pending Licensing Proceedings and Therefore Should be Considered in a Separate Proceeding ..........................................................................................................2 III. Beyond Nuclear has Standing to Bring this Motion .......................................2 A. Beyond Nuclears Standing is Established through Radiological Injury ........................................................................3 B. Beyond Nuclear Has Standing Pursuant to Traditional Standing Doctrine .......................................................................................4 C. Beyond Nuclear Has Standing Pursuant to the Proximity Presumption ...............................................................................8 IV. Statutory Framework ........................................................................................11 A. Nuclear Waste Policy Act ...........................................................................11 B. Administrative Procedure Act.....................................................................12 V. Factual Background...........................................................................................13 A. History of Spent Fuel Storage and Policy in the U.S. .................................13 B. Holtec License Application for Holtec CISF ..............................................15 C. ISP License Application for WCS CISF.....................................................17 VI. The NRC May not Issue Licenses to Holtec and ISP because They Assume Federal Ownership of Spent Fuel During Storage and Transportation in Violation of the NWPA ......................................................19 VII. Conclusion ..........................................................................................................22 ii (Page 14 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 3 of 28 Table of Authorities Cases Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59 (1978) .................4 Hunt v. Washington State Apple Advert. Comm'n, 432 U.S. 333 (1977).............................2 Indiana Mich. Power Co. v. DOE, 88 F.3d 1272 (D.C. Cir. 1996) .......................11, 13, 19 Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995) ..................................................................7, 9 Maine Yankee Atomic Power Co. v. United States, 225 F.3d 1336 (Fed. Cir. 2000) ........13 Natl Assn of Regulatory Util. Commrs v. U.S. Dept of Energy, 736 F.3d 517 (D.C. Cir. 2013) ...............................................................................12, 13, 14 Nuclear Energy Institute v. EPA, 373 F.3d 1251, 1257 (D.C. Cir. 2004). ........................10 Administrative Decisions Armed Forces Radiobiology Research Inst. (Cobalt-60 Storage Facility),
ALAB-682, 16 NRC 150 (1982) ....................................................................................4, 9 Cfc Logistics, Inc., LBP-03-20, 58 NRC 311 (2003)...........................................................9 Consumers Energy Co. (Big Rock Point Indep. Spent Fuel Storage Installation), CLI-07-19, 65 NRC 423 (2007) ........................................................9 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-01-35, 54 NRC 403 (2001) .......................................3, 5, 6 Exelon Generation Co. LLC & PSEG Nuclear, LLC (Peach Bottom Atomic Power Station, Units 2 & 3),
CLI-05-26, 62 NRC 577 (2005)..........................................................................................9 Ga. Inst. of Tech. (Georgia Tech Research Reactor) CLI-95-12, 42 NRC 111 (1995) .......9 Louisiana Energy Servs., L.P. (Claiborne Enrichment Ctr.),
CLI-98-3, 47 N.R.C. 77 (1998) ...........................................................................................7 Pac. Gas & Electric Co. (Diablo Canyon Power Plant Indep.
Spent Fuel Storage Installation) LBP-07-14, 56 NRC 413 (2002) .................................4, 9 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142 (1997) ......................................................................9 iii (Page 15 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 4 of 28 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-29, 56 NRC 390 (2002) ................................................20, 21 Tennessee Valley Auth. (Sequoyah Nuclear Plant, Units 1 & 2; Watts Bar Nuclear Plant, Unit 1), LBP-02-14, 56 NRC 15 (2002) .....................................8 U.S. Army Installation Command (Schofield Barracks, Oahu, Hawaii, & Pohakuloa Training Area, Island of Hawaii, Hawaii),
LBP-10-4, 71 NRC 216 (2010)............................................................................................4 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station),
LBP-96-2, 43 NRC 61 (1996)..............................................................................................3 Statutes The Administrative Procedure Act 5 U.S.C. § 706(2)(A) and (C) ......................................................................1, 12, 22 Nuclear Waste Policy Act of 1982, as amended 42 U.S.C. § 10131 ............................................................................................12, 19 42 U.S.C. § 10131(a)(5).........................................................................................12 42 U.S.C. § 10134(d) .............................................................................................13 42 U.S.C. § 10143 ..............................................................................................1, 19 42 U.S.C. § 10151(a)(3).........................................................................................21 42 U.S.C. § 10151(b)(2) ........................................................................................21 42 U.S.C. § 10155(a)(1).........................................................................................21 42 U.S.C. § 10222 ..................................................................................................13 42 U.S.C. § 10222(a)(5)(A) ...............................................................................1, 20 Rules and Regulations Code of Federal Regulations Title 10, Section 51.101 ...........................................................................................2 Title 10, Section 72.40 .............................................................................................2 Title 10, Section 961.1 ...........................................................................................20 Title 10, Section 961.11 .........................................................................................20 Notices Federal Register Volume 62, No. 13,802 (March 30, 2017) .......................................................15, 16 Volume 82, No. 8,773 (Jan. 30, 2017) ..................................................................17 Volume 83, No. 32,919 (July 16, 2018) ..............................................................1, 2 Volume 83, No. 44,070 (Aug. 29, 2018) .................................................1, 2, 17, 18 iv (Page 16 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 5 of 28 Miscellaneous Reports Blue Ribbon Commission on Americas Nuclear Future, Report to the Secretary (Jan. 2012) (ML120970375) ..................................................10, 14 Environmental Report on the HI-STORE CIS FACILITY (Report No. HI-2167521) (Dec. 2017) ..........................................................4, 5, 6, 16, 19 HI-STORE CIS Facility Financial Assurance and Project Life Cycle Cost Estimates, Rev. 0 (Report No. HI-2177593) ...........................................16 HI-STORE CIS Safety Analysis Report (Report No. HI-2167374)
(Mar. 2017) ..................................................................................................................10, 16 New Mexico GOP Governor Hopeful: Toll Roads for Oil Traffic, Associated Press, KTBS (Aug. 21, 2018) ............................................................................5 NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Sept. 2014) ....................................................13 U.S. Department of Energy, Strategy for the Management and Disposal of Used Nuclear Fuel and High-Level Radioactive Waste (ML13011A138) ...............................................................................................................15 WASH-1238, Environmental Survey of Transportation of Radioactive Materials To and From Nuclear Power Plants (Dec. 1972) .............................4 WCS Environmental Report .....................................................................5, 7, 10 17, 18, 19 WCS License Application, Rev. 0 ...............................................................................17, 18 WCS Safety Analysis Report .............................................................................................10 v
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 6 of 28 I. INTRODUCTION Pursuant to the Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C. § 10101, et seq. (NWPA) and the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A) and (C), Beyond Nuclear, Inc. (Beyond Nuclear) hereby requests that the U.S. Nuclear Regulatory Commission (NRC or Commission) dismiss the above-captioned applications by Holtec International (Holtec) and Interim Storage Partners, L.L.P. (ISP) to build and operate centralized interim spent fuel storage facilities (CISF) in New Mexico and Texas, respectively. 1 The proceedings must be dismissed because the central premise of both Holtecs and ISPs applications - that the U.S. Department of Energy (DOE) will be responsible for the spent fuel that is transported to and stored at the proposed interim facilities - violates the NWPA. Under the NWPA, the DOE is precluded from taking title to spent fuel unless and until a permanent repository has opened. 42 U.S.C. §§ 10222(a)(5)(A), 10143.
By even considering these unlawful applications, the NRC impermissibly allows Holtec and ISP to undermine longstanding Congressional policy, established in the NWPA, that ownership of and liability for spent fuel should remain with private licensees until a federal repository becomes available for permanent disposal. By conducting these licensing proceedings, the NRC also unfairly subjects Beyond Nuclear and its members to the costly and unnecessary expenses of challenging the applications that cannot be lawfully approved.
Finally, the fact that NRC is entertaining these unlawful license applications gives them undeserved legitimacy in the eyes of the public, giving rise to general public anticipation that Holtec and ISP may be allowed to store thousands of tons of highly radioactive waste at the 1
These applications were noticed at 83 Fed. Reg. 32,919 (July 16, 2018) (Holtec Hearing Notice) and 83 Fed. Reg. 44,070 (Aug. 29, 2018) (ISP Hearing Notice). Holtecs proposed CISF is referred to as Holtec CISF and ISPs proposed CISF is referred to as WCS CISF.
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 7 of 28 proposed CISFs for decades. Beyond Nuclear respectfully submits that this public perception will unnecessarily depress the property values of Beyond Nuclear members who reside and own property in the vicinity.
II. THE ISSUES RAISED BY THIS MOTION LIE OUTSIDE THE SCOPE OF THE PENDING LICENSING PROCEEDINGS AND THEREFORE SHOULD BE CONSIDERED IN A SEPARATE PROCEEDING While Beyond Nuclear has submitted this Motion in the NRCs dockets for the Holtec and ISP license applications (Nos. 72-1050 and 72-1051, respectively), Beyond Nuclear does not seek consideration of the Motion in either of the licensing proceedings that has been noticed in the Federal Register. Holtec Hearing Notice, 83 Fed. Reg. 32,919; ISP Hearing Notice, 83 Fed.
Reg. 44,070. The scope of those proceedings is limited to the question of whether the applications satisfy the Atomic Energy Act (AEA), the National Environmental Policy Act (NEPA), and NRCs regulations for implementation of those statutes. 10 C.F.R. §§ 72.40, 51.101. The question posed in this Motion, i.e., whether consideration of Holtecs and ISPs license applications is permitted by the NWPA, a separate statute, can be answered without consideration of the AEA and NEPA. Therefore the Commission should establish a separate proceeding for consideration of this Motion. 2 III. BEYOND NUCLEAR HAS STANDING TO BRING THIS MOTION As set forth below, Beyond Nuclear has standing to bring this Motion as a representative of its members. Hunt v. Washington State Apple Advert. Comm'n, 432 U.S. 333, 342 (1977).
2 In an abundance of caution, Beyond Nuclear has submitted a hearing request and contentions in the Holtec licensing proceeding and anticipates submitting a hearing request and contentions in the ISP licensing proceeding. Beyond Nuclears contentions assert the same NWPA claims as are asserted in this Motion. Beyond Nuclears hearing requests will preserve these claims in the event that the Commission and/or a reviewing court holds that the licensing proceedings for consideration of the Holtec and ISP applications constitute the only venues in which the NRC will consider whether these applications violate the NWPA.
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 8 of 28 Beyond Nuclear is a nonprofit, nonpartisan membership organization that aims to educate and activate the public about the connections between nuclear power and nuclear weapons and the need to abolish both to protect public health and safety, prevent environmental harms, and safeguard our future. Beyond Nuclear advocates for an end to the production of nuclear waste and for securing the existing reactor waste in hardened on-site storage until it can be permanently disposed of in a safe, sound, and suitable underground repository. For almost ten years, Beyond Nuclear has worked toward its mission by regularly intervening in NRC licensing, relicensing, and other proceedings related to irradiated nuclear fuel matters. Based on the following, as well as the additional interests included in members declarations, see Exhibits 01-08, Beyond Nuclear demonstrates that its members fulfill the standing requirements and have authorized Beyond Nuclear to represent their interests. Accordingly, Beyond Nuclear has standing to request NRC dismiss the Holtec and ISP applications.
A. Beyond Nuclears Standing is Established through Radiological Injury Beyond Nuclears members are largely concerned with radiological injury. To establish standing, the injury alleged need not be large: even minor radiological exposures, within regulatory limits, resulting from a proposed license activity can be sufficient. See Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-01-35, 54 NRC 403, 417 (2001), reversed on other grounds, CLI-02-24, 56 NRC 335 (2002). In Yankee Atomic Elec. Co., for example, the Licensing Board found standing because the Board could not rule out the potential for some, even if minor, public exposures from the decommissioning process to members of the petitioner organizations who lived within ten miles of the site, recreated along waterways, and regularly used roads that potentially would be used to transport waste. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61, 69-70, affd, CLI-96-7, 43 NRC 235, 246-48 3
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 9 of 28 (1996). See also Armed Forces Radiobiology Research Inst. (Cobalt-60 Storage Facility),
ALAB-682, 16 NRC 150, 154 (1982) (quoting Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 74 (1978)) ([T]he emission of non-natural radiation into appellees environment would also seem a direct and present injury, given our generalized concern about exposure to radiation and the apprehension flowing from the uncertainty about the health and genetic consequences of even small emissions like those concededly emitted by nuclear power plants.).
The NRC recognizes two legal frameworks for analyzing standing based on radiological injury: traditional standing and the proximity presumption. U.S. Army Installation Command (Schofield Barracks, Oahu, Hawaii, & Pohakuloa Training Area, Island of Hawaii, Hawaii),
LBP-10-4, 71 NRC 216, 228 (2010). Beyond Nuclear has standing pursuant to both frameworks.
B. Beyond Nuclear Has Standing Pursuant to Traditional Standing Doctrine To establish standing through traditional means, the NRC applies judicial concepts of standing, i.e., injury-in-fact, causation, and redressability. Pac. Gas & Electric Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation) LBP-07-14, 56 NRC 413, 426 (2002).
Beyond Nuclear establishes standing through traditional means by virtue of the injuries to its members who live and travel on or along routes that Holtec and ISP plan to transport spent nuclear fuel. Members will be injured primarily from radiologic exposure received during normal transportation operations. See WASH-1238, Environmental Survey of Transportation of Radioactive Materials To and From Nuclear Power Plants (Dec. 1972) (NRC found that a person who spends three minutes at an average distance of three feet from loaded truck or car might receive a dose of as much of 1.3 mrem); Environmental Report on the HI-STORE CIS 4
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 10 of 28 FACILITY at 4-32 (Report No. HI-2167521) (Dec. 2017) (using dose rate of 10 mrem/hour at a distance of 6.5 feet for transportation radiation impact analysis) (hereinafter Holtec Environmental Report); WCS Environmental Report at 4-13 (using dose rate of 0.1 mSv per hour at 2 meters for transportation radiation impact analysis). For example, the Licensing Board in Duke Cogema Stone & Webster found that unwanted doses of ionizing radiation from shipments of nuclear fuel transported over the same public highways the Petitioners members travel established standing because incident-free shipping of plutonium provides a dose of ionizing radiation, albeit small, to anyone next to the transport vehicle and a minor exposure to radiation, even one within regulatory limits, is sufficient to state an injury in fact. LBP-01-35, 54 NRC at 417.
There is also a risk of radiologic injury to Beyond Nuclears members from an accident involving shipments of spent nuclear fuel being transported to the CISFs. See e.g., Holtec Environmental Report at 4-34 (the application analyzes a spectrum of accidents that ranged from high-probability accidents of low severity and consequences to severe accidents with radiological consequences); WCS Environmental Report at 4-15 (noting that rail casks could release radioactivity in exceptionally severe accidents.). There is a higher likelihood of an accident involving spent nuclear fuel near the CISFs because the transportation infrastructure in those areas is already unsafe and impacted from the oil and gas boom. See e.g., New Mexico GOP Governor Hopeful: Toll Roads for Oil Traffic, Associated Press, KTBS (Aug. 21, 2018),
Further, Beyond Nuclears members interest in and right to travel will also be injured because they will either not know which route is safest to avoid radiological injury or they will 5
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 11 of 28 be unable to avoid unsafe routes because of the limited highways in the area. See Duke Cogema Stone & Webster, LBP-01-35, 54 NRC at 415.
Holtec plans to transport spent nuclear fuel to the Holtec CISF on the Burlington Northern Santa Fe Carlsbad Subdivision railroad. Holtec Environmental Report at 2-4, 3-105, 4-
- 30. This railroad travels through Roswell, New Mexico, south to Carlsbad, New Mexico, and then travels east toward the Holtec site, along which it parallels Highway 62/180 for 20 miles at a distance of 100 to 500 feet. Holtec may also transport the spent nuclear fuel the final 3.8 miles to the Holtec CISF by truck. Holtec Environmental Report at 4-33. Beyond Nuclear members who live or travel on roads that cross or parallel the Burlington Northern Santa Fe Carlsbad Subdivision railroad will be exposed to small doses of unwanted radiation during the normal transportation of spent nuclear fuel to the Holtec Facility and a higher likelihood of an accident involving spent nuclear fuel. Their interest in travel will be affected if they wish to avoid these injuries. Thus, Beyond Nuclear has standing to request dismissal of the Holtec application through members:
- Danny Berry who regularly travels on roads and highways around the Holtec CISF, including Highway 62/180 where it parallels the Burlington Northern Santa Fe Carlsbad Subdivision railroad. See Exhibit 01.
- Keli Hatley and Margo Smith, who regularly travel on Highway 62/180 where it parallels the Burlington Northern Santa Fe Carlsbad Subdivision railroad, regularly travel other roads in the area on which Holtec may transport spent nuclear fuel, and regularly travel on Laguna Road/Country Road 55 which will have to be moved to avoid the Holtec CISF. See Exhibits 03 and 05.
- Nick King, who lives within 450 yards of one Burlington Northern Santa Fe Carlsbad Subdivision railroad, 800 yards of a second Burlington Northern Santa Fe Carlsbad Subdivision railroad, and within one mile of a railyard at which the spent nuclear fuel shipments may stop for extended periods. See Exhibit 04.
- Gene Harbaugh, who lives within 250 yards of a Burlington Northern Santa Fe Carlsbad Subdivision railroad and within 500 yards of a railyard at which the spent nuclear fuel shipments may stop for extended periods. See Exhibit 08.
6 (Page 23 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 12 of 28
- Jimi Gadzia, who lives within 900 yards of the Burlington Northern Santa Fe Carlsbad Subdivision railroad and whose frequent travel in Roswell causes her to regularly travel along and over this railroad. See Exhibit 02.
ISP also plans to transport spent nuclear fuel to the WCS CISF by rail. ISP plans to use the Texas and New Mexico Railway between Monahan, Texas, and Eunice, New Mexico. WCS Environmental Report at 4-8. This railroad parallels Highway 18 within a few hundred feet for approximately 40 miles. Beyond Nuclear members who live or travel on roads that cross or parallel the Texas and New Mexico Railway will be exposed to small doses of unwanted radiation during the normal transportation of spent nuclear fuel to the WCS Facility and a higher likelihood of an accident involving spent nuclear fuel. Their interest in travel will be affected if they wish to avoid these injuries. Thus, Beyond Nuclear has standing to request dismissal of the ISP application through members:
- Rose Gardner and D.K. Boyd, who regularly travel on roads and highways around the WCS CISF, including Highway 18 where it parallels the Texas and New Mexico Railway. See Exhibits 06 and 07.
Beyond Nuclear also establishes standing through traditional means by virtue of adverse impacts to its members property values. See Kelley v. Selin, 42 F.3d 1501, 1509-10 (6th Cir.
1995) (Petitioners are clearly asserting a threatened injury. The injury can be fairly traced to respondents actions since petitioners allege that it is the storage of spent nuclear fuels in the VSC-24 cask that has the potential to interrupt enjoyment of their lakefront property and to diminish its value. Finally, a decision in their favor could redress the threatened harm.); see also Louisiana Energy Servs., L.P. (Claiborne Enrichment Ctr.), CLI-98-3, 47 NRC 77, 108-109 (1998). Because of public perception and anticipation, individuals are hesitant to move close to a nuclear facility or the transportation route for spent nuclear fuel, which leads to depressed property values near these sites. Close proximity to nuclear facilities and transportation routes for 7
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 13 of 28 spent nuclear fuel may decrease property values as soon as a nuclear facility is licensed. Thus, Beyond Nuclear has standing to request dismissal of the Holtec application through members:
- Margo Smith and Keli Hatley, whose homes and property are located within one to seven miles from the Holtec CISF and each of their livelihoods is directly connected to the value of the Smith Ranch, which shares a fence line with the Holtec CISF. See Exhibits 05 and 03.
- Daniel Berry, whose home and property is located within 11 miles of the Holtec CISF and who owns ranchland located within three to 15 miles of the Holtec CISF. See Exhibit 01.
- Gene Harbaugh, whose home and property is located within 250 yards of a Burlington Northern Santa Fe Carlsbad Subdivison railroad and 500 yards of the railyard that Holtec will use to transport spent nuclear fuel to the Holtec CISF. See Exhibit 08.
- Nick King, whose home and property is located within 450 yards of one Burlington Northern Santa Fe Carlsbad Subdivision railroad, within 800 yards of a second Burlington Northern Santa Fe Carlsbad Subdivision railroad, and within one mile of a railyard that Holtec will use to transport spent nuclear fuel to the Holtec CISF. See Exhibit 04.
- Jimi Gadzia, whose home and property is located within 900 yards of the Burlington Northern Santa Fe Carlsbad Subdivision railroad that Holtec may use to transport spent nuclear fuel to the Holtec CISF. See Exhibit 02.
Beyond Nuclear also has standing to request dismissal of the ISP application through members:
- Rose Gardner, whose home and property are located within seven miles of the WCS CISF. See Exhibit 06.
C. Beyond Nuclear Has Standing Pursuant to the Proximity Presumption NRC has also applied an alternative to establishing standing based on the proximity presumption. Tennessee Valley Auth. (Sequoyah Nuclear Plant, Units 1 & 2; Watts Bar Nuclear Plant, Unit 1), LBP-02-14, 56 NRC 15, 3 (2002) (This so-called proximity or geographical presumption presumes a petitioner has standing to intervene without the need specifically to 8
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 14 of 28 plead injury, causation, and redressability ); Armed Forces Radiobiology Research Inst.,
ALAB-682, 16 NRC at 154 (The proximity to a large source of radioactive material establishes petitioners interest.). Where the nature of the proposed action and the significance of the radioactive source create an obvious potential for offsite consequences, the NRC applies a presumption of standing to individuals residing, owning property, or having frequent and regular contacts within the radius of those potential offsite consequences. Consumers Energy Co. (Big Rock Point Indep. Spent Fuel Storage Installation), CLI-07-19, 65 NRC 423, 426 (2007)
(quoting Exelon Generation Co. LLC & PSEG Nuclear, LLC (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-05-26, 62 NRC 577, 580-581 (2005)); see also Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995).
The determination of the radius beyond which . . . there is no longer an obvious potential for offsite consequences is made on a case-by-case basis. Exelon Generation Co. LLC
& PSEG Nuclear, LLC, CLI-05-26, 62 NRC at 580-81. Licensing Boards have found standing based on proximity to spent nuclear fuel ranging from 4,000 feet to 17 miles. Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142 (1997);
Pac. Gas & Elec. Co., LBP-02-23, 56 NRC at 428. The standard for assessing the potential for offsite consequences is whether the consequences are plausible, not whether consequences are probable or likely. Cfc Logistics, Inc., LBP-03-20, 58 NRC 311, 320 (2003), citing Ga. Inst. of Tech. (Georgia Tech Research Reactor) CLI-95-12, 42 NRC 111 (1995) (Commission found standing based on a plausible scenario, albeit a highly unlikely one, in which three independent redundant safety systemsall designed to function under normal circumstancescould simultaneously fail in a research reactor.).
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 15 of 28 The potential for offsite consequences from both the Holtec CISF and WCS CISF is obvious due to the characteristics and quantity of spent nuclear fuel Holtec and ISP plan to consolidate at the CISFs. Spent fuel is and will remain highly radioactive and dangerous to humans for hundreds of thousands of years. Nuclear Energy Institute v. EPA, 373 F.3d 1251, 1257 (D.C. Cir. 2004). Holtec proposes to store an astronomical quantity of this extremely dangerous and long-lived radioactive waste -- up to 173,600 MTU, more than twice the total amount of commercially generated spent nuclear fuel existing in the entire United States today.
See infra,Section V.A. For its part, ISP plans to store 40,000 MTU of spent nuclear fuel at the WCS CISF -- a quantity that is more than half of the spent nuclear fuel existing in the United States. WCS Environmental Report at 4-9. As discussed in the Blue Ribbon Commissions Report (for more detail, see infra Section V.A.), the only acceptable means for separating this dangerous material from the environment for the long-term is disposal, not interim storage. Blue Ribbon Commission on Americas Nuclear Future, Report to the Secretary at xi (Jan. 2012)
(ML120970375) (BRC Report) (The conclusion that disposal is needed and that deep geologic disposal is the scientifically preferred approach has been reached by every expert panel that has looked at the issue and by every other country that is pursuing a nuclear waste management program.). Further, Holtec and ISP each acknowledge at least one plausible scenario that would result in off-site consequences from storage of spent nuclear fuel at both CISFs. HI-STORE CIS Safety Analysis Report at 8 8-6 (Report No. HI-2167374) (Mar. 27, 2017) (safety analysis explains that a criticality accident is possible due to a flooded canister)
(hereinafter Holtec SAR); WCS Safety Analysis Report at 12-2 (Analyses are provided for a range of hypothetical accidents, including those with the potential to result in a total effective 10 (Page 27 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 16 of 28 dose equivalent of greater than 5 Rem outside the owner controlled area or the sum of the deep-dose equivalent specified in 10 CFR 72.106.).
Thus, Beyond Nuclear has standing to request dismissal of the Holtec and ISP applications based on the proximity presumption, through members who own property nearby and have frequent and regular contacts within the radius of potential obvious offsite consequences from the Holtec CISF and the WCS CISF, including:
- Keli Hatley, who lives one mile from the Holtec CISF. See Exhibit 03. Ms. Hatley often spends time with family approximately two miles from the Holtec CISF and ranches her cattle up to the fence line of the Holtec CISF. Id. Ms. Hatley and her children drive most days over a section of the Laguna Road/Country Road 55 that currently travels across the Holtec site and will have to be moved if the CISF is built. Id.
- Margo Smith, who lives seven miles from the Holtec CISF. See Exhibit 05. Ms. Smith regularly spends time within approximately two miles of the Holtec CISF, ranching and visiting her two daughters homes. Id.
- Daniel Berry, who owns property within three to fifteen miles of the Holtec CISF. See Exhibit 01. Mr. Berry also lives and works on this land, and regularly drives on Highway 62/180 near the Holtec CISF. Id.
- Jimi Gadzia, who owns mineral rights within ten to 16 miles of the Holtec CISF. See Exhibit 02.
See Exhibit 06. Ms. Gardner also visits family who live approximately five miles from the WCS CISF. Id.
IV. STATUTORY FRAMEWORK A. Nuclear Waste Policy Act The NWPA is Congress comprehensive scheme for the interim storage and permanent disposal of high-level radioactive waste generated by civilian nuclear power plants. Ind. Mich.
Power Co. v. DOE, 88 F.3d 1272, 1273 (D.C. Cir. 1996). The NWPA establishes distinct roles for the federal government and spent fuel generators with respect to the storage and disposal of 11 (Page 28 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 17 of 28 spent fuel. The Federal Government has the responsibility to provide for the permanent disposal of spent nuclear fuel but the generators and owners of spent nuclear fuel have the primary responsibility to provide for, and the responsibility to pay the costs of, the interim storage of spent fuel until such spent fuel is accepted by the Secretary of Energy. 42 U.S.C. § 10131. Thus, Section 111 of the NWPA specifically provides that the federal government will not take title to spent fuel until it has opened a repository. 42 U.S.C. § 10131(a)(5).
B. Administrative Procedure Act The Administrative Procedure Act prohibits, and requires reviewing courts to hold unlawful and set aside, federal agency action that is not in accordance with law, or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. 5 U.S.C. §§ 706(2)(A), (C). These prohibitions have prevented other agencies from ignoring the mandates of the NWPA. For example, after the Yucca Mountain project was abandoned, the DOE determined it need not revise the annual fee nuclear power producers must pay pursuant to the NWPA to cover the costs of nuclear waste disposal. Nat'l Ass'n of Regulatory Util. Comm'rs v. U.S. Dep't of Energy, 736 F.3d 517, 519-520 (D.C. Cir. 2013). The D.C. Circuit struck that decision down as contrary to law. Id. In striking similarity with Holtecs and ISPs assumptions discussed in detail below, DOE premised its determination on an assumption that a temporary storage facility could be constructed without NRC first issuing a license for the construction of a permanent facility. Id. Of course, the NWPA requires that precondition. The Court thus held that while it is one thing to anticipate minor statutory additions to fill gaps, it is quite another to proceed on the premise of a wholesale reversal of a statutory scheme. The latter is flatly unreasonable. Id.
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 18 of 28 V. FACTUAL BACKGROUND A. History of Spent Fuel Storage and Policy in the U.S.
While the NWPA calls for construction of a repository for disposal of spent fuel, no repository has been licensed or built to date. Therefore, a significant quantity of spent fuel has accumulated at reactor sites. The spent fuel is stored in water-filled fuel storage pools and dry storage casks. NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel at 2-11 (Sept. 2014) (Continued Storage GEIS). As of 2011, approximately 67,500 MT of spent fuel had accumulated at commercial nuclear power plants, with the inventory growing by about 2,000 MT per year. Continued Storage GEIS at 2 -11. This inventory of stored spent fuel is now greater than the Congressionally imposed limit on the capacity of the Yucca Mountain repository of 70,000 MT. 42 U.S.C. § 10134(d).
Despite the increasing quantity of spent fuel stored at reactor sites, the NRC has concluded that onsite spent fuel storage poses no significant environmental risks, even for an indefinite storage period. Continued Storage GEIS at xlvii - xlviii. 3 Consistent with the GEIS, neither ISP nor Holtec has argued that spent fuel would pose less of a radiological risk if it were transported to an away-from reactor storage site.
Under Section 302 of the NWPA, 42 U.S.C. § 10222, reactor licensees were required to pay into a Nuclear Waste Fund for construction of a repository. When the repository failed to materialize, licensees began to recover contract damages for the purpose of covering the cost of continuing to store spent fuel at their reactor sites. See, e.g., Maine Yankee Atomic Power Co. v.
United States, 225 F.3d 1336, 1341-42 (Fed. Cir. 2000); see also Natl Assn of Regulatory Util.
3 The only exceptions to the NRCs finding of small environmental impacts related to the potentially large adverse impacts to historic and cultural resources, and moderate environmental impacts by related nonradioactive waste. Id.
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 19 of 28 Commrs, 736 F.3d at 520; Ind. Michigan Power Co., 88 F.3d at 1276-77 (finding that DOEs obligation under Section 302(a)(5)(B) of the NWPA to start disposing of spent nuclear fuel by a set date was not limited by the lack of a repository that Section 302(a)(5)(A) required prior to DOE taking title; only the remedy the courts could provide for DOEs failure to start disposing was limited). Contract damage lawsuits under the NWPA are now commonplace, and the DOE pays damages on a cyclical basis to reactor licensees. See, e.g., Natl Assn of Regulatory Util.
Commrs, 736 F.3d at 520.
In 1987, Congress amended the NWPA by directing DOE to narrow the focus of its search for a repository site to a single location, Yucca Mountain in Nevada. But after two decades passed without significant progress, the DOE announced in 2009 that it no longer considered Yucca Mountain a viable option for a final repository and announced plans to withdraw its license application for the site. President Obama thereafter created the Blue Ribbon Commission on Americas Nuclear Future (BRC).
In 2012, the BRC issued a set of recommendations for managing spent nuclear fuel, including that the U.S. government pursue consolidated interim storage of spent fuel, as part of an integrated program for spent fuel disposal. BRC Report at 40. The BRC cautioned that a program to establish consolidated storage will succeed only in the context of a parallel disposal program that is effective, focused, and making discernable progress in the eyes of key stakeholders and the public. Id. A robust repository program . . . will be as important to the success of a consolidated storage program as the consolidated storage program will be to the success of a disposal program, and therefore [p]rogress on both fronts is needed. Id. The BRC also recognized that federal legislation would be needed before construction of a consolidated storage facility could begin. Id. at 41.
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 20 of 28 In January 2013, in response to the BRC Report, the DOE released Strategy for the Management and Disposal of Used Nuclear Fuel and High-Level Radioactive Waste (ML13011A138) (DOE Strategy) to provide a basis for the Administration to work with Congress to design and implement a program to meet the governments obligation to take title to and permanently dispose of used nuclear fuel and high-level radioactive waste. Id. at 3. The DOE endorsed the BRCs recommendation that the government should pursue consolidated interim storage of spent fuel, but recognized that:
The NWPA currently constrains the development of a storage facility by limiting the start of construction of such a facility until after the Nuclear Regulatory Commission (NRC) has issued a license for construction of a repository. This restriction has effectively eliminated the possibility of having an interim storage facility as an integral component of a waste management system.
Id. at 5-6. With respect to the issue of transferring ownership of spent fuel to the DOE during transportation, the DOE Strategy also states:
[T]he Department is proceeding with planning activities for the development of transportation capabilities and storage facilities to facilitate the acceptance of used nuclear fuel at a pilot interim storage facility within the next 10 years and later at a larger consolidated interim storage facility. The Administration will undertake the transportation planning and acquisition activities necessary to initiate this process with the intent to transfer them to a separate organizational entity if and when it is authorized by Congress and in operation.
Id. at 6-7 (emphasis added). Thus, both the BRC and the DOE recognized that an interim spent fuel storage facility entailing U.S. government ownership of spent fuel could not be built or operated without authorizing legislation by the U.S. Congress.
B. Holtec License Application for the Holtec CISF On March 30, 2017, Holtec filed an application to the NRC for construction and operation of the proposed Holtec CISF in Lea County, New Mexico. Holtec Hearing Notice, 62 Fed. Reg. 13,802. The proposed Holtec CISF would initially store 500 canisters or 8,680 metric 15 (Page 32 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 21 of 28 tons of uranium in the CISF and eventually store up to 10,000 canisters in the CISF. Id.
Ultimately, Holtec proposes to store a total quantity of 173,600 MTUs of spent fuel, over twice the capacity limit of the Yucca Mountain repository. Holtec SAR, Table 1.0.1 at 1-4. Holtec proposes to operate the facility for as long as 120 years (40-year license term plus 80 years of extensions). Holtec Environmental Report at 1-1.
In its license application, Holtec proposes to build and manage the Holtec CISF as a private company. Holtec SAR at 1-1. Nevertheless, Holtecs Environmental Report reveals that Holtec does not plan to begin construction of the facility until after Holtec successfully enters into a contract for storage with the U.S. Department of Energy (DOE). Holtec Environmental Report at 1-1. Holtec also assumes that ownership of spent fuel will be transferred to the DOE before it is shipped to the CISF. See Holtec Environmental Report at 3-104 (DOE would be responsible for transporting SNF from existing commercial nuclear power reactor storage facilities to the CIS Facility.). Thus, as demonstrated by Holtecs Environmental Report, Holtecs entire operation depends on the assumption that DOE will take responsibility for the spent fuel that is transported to the CISF and stored there. 4 4
In various parts of its application, Holtec asserts that ownership or liability may rest with either licensees or the DOE. See, e.g., HI-STORE CIS Facility Financial Assurance and Project Life Cycle Cost Estimates, Rev. 0 (Report No. HI-2177593) at 3 (Additionally, as a matter of financial prudence, Holtec will require the necessary user agreements in place from the USDOE and/or the nuclear plant owners.) But these disclaimers are meaningless in light of the crucial fact that Holtec does not intend to begin construction of the facility until DOE has taken title to spent fuel and assumed responsibility for transporting it to the facility. The suggestion that DOE would transfer spent fuel back to licensees is absurd, given that the NWPA anticipates that spent reactor fuel is ultimately destined for federal ownership and disposal in a repository.
See Section IV.A, supra.
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 22 of 28 C. ISP License Application for WCS CISF Like Holtec, ISP has applied for a license to build and operate a CISF, in Andrews County, Texas. ISF Hearing Notice, 83 Fed. Reg. 44,070 (Aug. 29, 2018). The proposed WCS CISF site is approximately 40 miles from the proposed Holtec CISF site. The WCS CISF would house a total of 40,000 MTU of spent fuel over a period of 60 years. WCS Environmental Report, Rev. 2 at 1-1 .
Like Holtec, ISP assumes federal ownership of the spent fuel to be shipped to and stored at the proposed WCS CISF. And like Holtec, ISP attempts to avoid the legal implications of that assumption by claiming a possibility that spent fuel ownership will rest with private licensees.
The first application for a centralized interim spent fuel storage facility at the WCS site in Texas was filed by Waste Control Specialists L.L.C. on April 28, 2016. See Waste Control Specialists LLCs Consolidated Interim Spent Fuel Storage Facility Project, License Application; docketing and opportunity to request a hearing and to petition for leave to intervene, 82 Fed.
Reg. 8,773 (Jan. 30, 2017). WCS candidly asserted that [t]he U.S. Department of Energy (DOE) will be contractually responsible for taking title of the spent fuel at the commercial reactor sites and transporting the spent fuel to the CISF, by rail. WCS License Application, Rev. 0 at 101.
Furthermore, the application stated that WCS shall not receive [spent nuclear fuel] until such a contract with the DOE is provided to the NRC as a condition of the license. Id. at 1-6.
In 2017, WCS asked the NRC to suspend its review of its application. Then, in 2018, ISP formed as a new joint venture between WCS and Orano CIS, L.L.C., and submitted a revised application. 83 Fed. Reg. at 44,070-71. In all aspects where WCS application had previously referred to the DOEs responsibility for spent fuel at the proposed facility, ISP now substituted the phrase the U.S. Department of Energy (DOE) or other holders of the title to SNF at 17 (Page 34 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 23 of 28 commercial nuclear power facilities (SNF Title Holder(s)). See id. ISP added this information without any comment, explanation, or evidence as to why it now thinks other holders would be willing to retain title to the waste during transportation and storage.
Thus, for instance, the License Application states:
The U.S. Department of Energy (DOE) or other holders of the title to SNF at commercial nuclear power facilities (SNF Title Holder(s)) will hold title to the SNF during transportation to and from and while in storage at the CISF.
WCS License Application at 1 1-2 (emphasis in original). Similarly, it states: The funding for constructing the CISF is expected to be primarily through future contracts for storage of SNF with the DOE or other SNF Title Holder(s). Id. at 1-6 (emphasis in original). And:
ISP will obtain funds to operate the CISF pursuant to future contracts with the DOE or other SNF Title Holder(s). ISP shall not receive SNF until such a contract with the DOE or other SNF Title Holder(s) is provided to the NRC as a condition of the license.
Id. at 1-7 (emphasis in original).
ISP also seeks an exemption from the NRCs regulations for financial assurance for decommissioning, based on federal ownership of the spent fuel. WCS License Application at 1-
- 7. The application asserts that if it fails to have a contract with DOE, it will obtain a surety bond for private owners, but again the assertion is pro forma:
ISP seeks this exemption for the case where the DOE will be contractually responsible for taking title of SNF prior to transport and while it is placed into interim storage at the CISF. The NRC has recognized that a contract by the DOE specifically guaranteeing that funds will be made available to decommission equipment, facilities, and land is an equivalent financial assurance instrument that may be relied upon and that will save tax payers in a manner that is in the public interest.
WCS License Application at 1-9. See also WCS Environmental Report at 3-5 (emphasis in original) (The DOE or the SNF Title Holder(s) would be responsible for transporting spent nuclear fuel (SNF) from existing commercial nuclear power reactors to the CISF. SNF would be transported to the CISF by rail); WCS Environmental Report at 7-15 (emphasis in original) 18 (Page 35 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 24 of 28 (asserting that ISP expects to enter into a contract(s) with DOE or the SNF Title Holder(s) that will provide the funding for facility construction, operation, and decommissioning.).
Thus, both Holtec and ISP rely on the assumption that the DOE will take responsibility for spent fuel during transportation and storage at their sites. And both Holtec and ISP also seek to legitimate their assumptions by citing the BRC Report and the DOE Strategy. Holtec Environmental Report at 1-3, WCS Environmental Report at 1-3. While they hedge this assumption by referring to the possibility of private ownership, such meaningless and unsupported references serve as nothing more than fig leaves over the essential premise of their proposals - that these facilities will be built only if DOE owns the waste.
VI. ARGUMENT: THE NRC MAY NOT ISSUE LICENSES TO HOLTEC AND ISP BECAUSE THEY ASSUME FEDERAL OWNERSHIP OF SPENT FUEL DURING STORAGE AND TRANSPORTATION IN VIOLATION OF THE NWPA.
The NRC must dismiss Holtecs and ISPs license applications because the key condition of both applications -- federal acquisition of title to commercially-generated spent fuel prior to the opening of a permanent repository -- is contrary to the NWPA, which precludes licensees from transferring title of spent fuel to the DOE until a repository has opened. Indiana Mich.
Power Co., 88 F.3d at 1273 (holding that DOEs obligation to take title to spent fuel does not begin until a repository is opened.). Until such time as a repository opens and the DOE takes title to spent fuel, [t]he generators and owners of high-level radioactive waste and spent nuclear fuel have the primary responsibility to provide for, and the responsibility to pay the costs of, the interim storage of such waste and spent fuel. 42 U.S.C. § 10131. See also 42 U.S.C. § 10143 (providing that [d]elivery, and acceptance by the Secretary [of Energy], of any high-level radioactive waste or spent nuclear fuel for a repository . . . shall constitute a transfer to the 19 (Page 36 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 25 of 28 Secretary of title to such waste or spent fuel (emphasis added)); 42 U.S.C. § 10222(a)(5)(A)
(providing that DOE will take title to spent fuel only following commencement of operation of a repository). 5 There is no dispute that a final repository is not operational, let alone even licensed.
Thus, the NWPA establishes a clear sequential order for transference of title, possession, and physical movement of spent fuel: DOE may only transport spent nuclear fuel subsequent to taking title to the spent fuel, and DOE may only take title after a repository is operational. Given that no spent fuel repository has opened, the NWPA precludes DOE from taking title to the spent fuel, and thereby also precludes it from having any responsibility for the transportation of the spent fuel between a reactor storage facility and an interim storage facility. 6 By assuming that DOE will take title to the spent fuel to be stored at the CISFs, Holtec and ISP flout the clearly stated limitations of the NWPA and federal government policy of giving spent fuel generators the responsibility of coming up with their own interim storage solutions. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI 29, 56 NRC 390, 404-06 (2002). Taking responsibility for spent fuel logically includes all 5
The language of 42 U.S.C. § 10222(a)(5)(A) is memorialized in the Standard Contract for Disposal of Spent Nuclear Fuel and/or High-Level Radioactive Waste, 10 C.F.R. § 961.11 (This contract applies to the delivery by Purchaser to DOE of SNF acceptance of title by DOE to such SNF , subsequent transportation, and disposal of such SNF and The terms of this contract shall be from the date of execution until such time as DOE has accepted, transported from the Purchasers site(s) and disposed of all SNF). See also 10 C.F.R. § 961.1 (This part establishes the contractual terms and conditions under which the Department of Energy (DOE) will make available nuclear waste disposal services DOE will take title to, transport, and dispose of spent nuclear fuel ).
6 As discussed above in note 7, under the statutory scheme of the NWPA and as a practical matter, DOE would never take title for transportation and return it to licensees.
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 26 of 28 obligations incident to the ownership of spent fuel, such as financing the cost of building and maintaining a facility to safely house the spent fuel, and liability for operational problems and accidents.
Notably, in Private Fuel Storage, the Commission concluded that the NWPA did not preclude it from licensing a private away-from-reactor spent fuel storage facility. 56 NRC at 405-06. But that decision concerned only privately-owned waste. The Commission has never asserted that in licensing a private spent fuel storage facility, it could ignore the NWPAs prohibition against transfer of title of spent fuel to the federal government in the absence of a repository. Thus the NWPA contains no current provision that would allow DOE to assume title and responsibility for the spent fuel to be stored at the proposed Holtec CISF or the WCS CISF. 7 While both Holtec and ISP claim to rely on the BRC Report and DOE Strategy for support of their bids for NRC licensing of their proposed operations, neither document countenances their actions. As discussed above in Section V.A, the BRC explicitly stated that initiatives for consolidated interim storage of spent fuel should come from the U.S. government, should be integrated with an active spent fuel disposal program, and should be allowed by 7
The only NWPA provision that allows transfer of title to spent fuel from commercial licensees to the DOE, prior to the opening of a repository, is the emergency Interim Storage Program found in Subtitle B of the NWPA. But the Interim Storage Program expired in 1990. And the program also imposed extreme requirements that are not met here. For instance, the Interim Storage Program limited the amount of spent fuel that could be transferred to the DOE to only 1,900 MT. 42 U.S.C. §§10151(b)(2), 10155(a)(1). In contrast, both the Holtec and ISP seek to initially store over 5,000 MT of spent fuel, and Holtec would eventually store over 173,000 MT.
Moreover, before transferring that stopgap quantity of spent fuel to DOE, a reactor licensee was required to persuade the NRC that a lack of adequate spent fuel storage capacity at an operating nuclear reactor would jeopardize the continued, orderly operation of the reactor. 42 U.S.C. § 10151(a)(3). Finally, the Interim Storage Program required that spent fuel must be stored at a public facility, not a private facility. 42 U.S.C. § 10151(b)(2). None of those circumstances exist here, and thus the Programs requirements could not be satisfied even if it were still available.
21 (Page 38 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 27 of 28 federal legislation. Given the federal governments abandonment of its repository siting program for Yucca Mountain, there is no active spent fuel disposal program with which Holtecs and ISPs proposals could be integrated. Furthermore, the DOE Strategy also acknowledged that consolidated interim storage could not go forward with federal ownership of spent fuel without Congressional authorization.
Accordingly, the NWPA precludes the DOE from taking title to commercial spent fuel for storage at Holtec and ISPs proposed facilities. And by the same token, the Administrative Procedure Act precludes the NRC from acting contrary to law or in excess of statutory authority by issuing a license premised on a wholesale reversal of the statutory scheme established by the NWPA. 5 U.S.C. §§ 706(2)(A), 706(2)(C).
VII. CONCLUSION Given the fundamental incompatibility of Holtecs and ISPs license applications with the NWPA, the NRC has no lawful basis to review the applications. Therefore, the NRC should dismiss the applications and terminate the proceedings opened in the Holtec and ISP Hearing Notices.
Respectfully submitted,
__/signed electronically by/___
Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com
__/signed electronically by/___
Mindy Goldstein Emory University School of Law Turner Environmental Law Clinic 1301 Clifton Road 22 (Page 39 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 28 of 28 Atlanta, GA 30307 404-727-3432 magolds@emory.edu September 14, 2018 23 (Page 40 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 1 of 5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
)
In the Matters of )
)
)
HOLTEC INTERNATIONAL ) Docket No. 72-1051
)
(HI-STORE Consolidated Interim Storage )
Facility) )
)
)
INTERIM STORAGE PARTNERS LLC ) Docket No. 72-1050
)
(WCS Consolidated Interim Storage Facility) )
)
_________________________________________ )
ORDER On July 16, 2018, the NRC provided notice in the Federal Register of Holtec Internationals application to construct and operate a consolidated interim storage facility for spent nuclear fuel.1 Separately, on August 29, 2018, the NRC provided notice in the Federal Register of Interim Storage Partners application to construct and operate a consolidated interim storage facility for spent nuclear fuel.2 On September 14, 2018, Beyond Nuclear, Fasken Land and Minerals, and Permian Basin Land and Royalty Owners filed motions to dismiss both the Holtec and Interim Storage Partners applications.3 These groups argue that the NRC cannot, as a threshold matter, issue 1 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018).
2 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018), corrected, 83 Fed. Reg. 44,608 (Aug. 31, 2018) (noting that the correct deadline to file intervention petitions is October 29, 2018). Interim Storage Partners is a joint venture of Orano USA and Waste Control Specialists.
3 Beyond Nuclear filed its own motion to dismiss. Beyond Nuclear, Inc.s Motion to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility for Violation of the Nuclear Waste Policy Act (Sept. 14, (Page 41 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 2 of 5 licenses to Holtec or Interim Storage Partners because both applications are contrary to the Nuclear Waste Policy Act (NWPA). Specifically, the groups argue that both applications contemplate the storage of Department of Energy-titled spent fuel in violation of various NWPA provisions.
The NRCs regulations allow interested persons to file petitions to intervene and requests for hearing in which they can raise concerns regarding a particular license application.
These regulations do not, however, provide for the filing of threshold motions to dismiss a license application; instead, interested persons must file petitions to intervene and be granted a hearing. I therefore deny both motions to dismiss on procedural grounds, without prejudice to the underlying merits of the legal arguments embedded within the motions.
Beyond Nuclear also filed hearing petitions in the Holtec and Interim Storage Partners proceedings that incorporated by reference the NWPA arguments that it raised in its motion to dismiss and identified those arguments as proposed contentions.4 I am separately referring these hearing requestsas well as other hearing requests challenging the applicationsto the Atomic Safety and Licensing Board Panel (ASLBP) for the establishment of a Board to consider all hearing requests in accordance with the hearing procedures set forth in 10 C.F.R. §2.309.
And, in accordance with 10 C.F.R. § 2.346(i), I am referring the motion from Fasken Land and 2018) (ADAMS Accession No. ML18257A318). Fasken Land and Minerals joined with Permian Basin Land and Royalty Owners to file a motion to dismiss that is substantially similar to Beyond Nuclears motion. Motion of Fasken Land and Minerals and Permian Basin Land and Royalty Owners to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility (Sept. 14, 2018) (ML18257A330). Both the NRC Staff and respective applicants filed oppositions to the motions, and Beyond Nuclear, Fasken Land and Minerals, and Permian Basin Land and Royalty Owners then filed replies.
4 Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Sept. 14, 2018)
(ML18257A324) (Holtec docket); Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Oct. 3, 2018) (ML18276A242) (Interim Storage Partners docket). Fasken Land and Minerals and Permian Basin Land and Royalty Owners have not filed related hearing petitions in either docket.
(Page 42 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 3 of 5 Minerals and Permian Basin Land and Royalty Owners to the ASLBP for consideration under
§ 2.309.
This Order is issued under my authority in 10 C.F.R. § 2.346(c), (g), (i), and (j).
For the Commission NRC SEAL /RA/
Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 29th day of October 2018 (Page 43 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 4 of 5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
) Docket No. 72-1051
)
HOLTEC INTERNATIONAL )
)
)
(HI-STORE Consolidated Interim Storage )
Facility) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER OF THE SECRETARY have been served upon the following persons by Electronic Information Exchange (EIE).
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop - O-15 D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Sarah Ladin, Law Clerk Patrick Moulding, Esq.
E-mail: sarah.ladin@nrc.gov E-mail: patrick.moulding@nrc.gov Joseph McManus, Law Clerk Sara B. Kirkwood, Esq.
E-mail: joseph.mcmanus@nrc.gov E-mail: sara.kirkwood@nrc.gov Taylor A. Mayhall Mauri Lemoncelli, Esq.
E-mail: taylor.mayhall@nrc.gov E-mail: mauri.lemoncelli@nrc.gov Office of Commission Appellate Christopher Hair, Esq.
Adjudication E-mail: christopher.hair@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Joseph I. Gillespie, Esq.
E-mail: ocaamail@nrc.gov E-mail: joe.gillespie@nrc.gov Krupskaya T. Castellon, Paralegal E-mail: krupskaya.castellon@nrc.gov Holtec Counsel Pillsbury Winthrop Shaw Pittman LLP OGC Mail Center: Members of this office have 1200 Seventeenth Street, NW received a copy of this filing by EIE service.
Washington, DC 20036 Jay Silberg, Esq. Dont Waste Michigan E-mail: jay.silberg@pillsburylaw.com 316 N. Michigan Street, Suite 520 Toledo, OH 43604-5627 Timothy J. Walsh, Esq. Terry J. Lodge, Esq.
E-mail: timothy.walsh@pillsburylaw.com E-mail: tjlodge50@yahoo.com Anne Leidich, Esq. Sierra Club E-mail: anne.leidich@pillsburylaw.com 4403 1st Avenue SE, Suite 402 Cedar Rapids, IA 52402 Michael Lepre, Esq. Wallace L. Taylor, Esq.
E-mail: michael.lepre@pillsburylaw.com E-mail: wtaylor784@aol.com (Page 44 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 5 of 5 Docket No. 72-1051 ORDER OF THE SECRETARY Harmon, Curran, Spielberg & Eisenberg LLP Hogan Lovells LLP 1725 DeSales Street NW 555 13th Street NW Suite 500 Washington, DC 20004 Washington, DC 20036 Sachin S. Desai, Esq.
Diane Curran, Esq. E-mail: sachin.desai@hoganlovells.com E-mail: dcurran@harmoncurran.com Allison E. Hellreich, Esq.
E-mail: allison.hellreich@hoganlovells.com Robert V. Eye Law Office, LLC Law Office of Nancy L. Simmons 4840 Bob Billings Parkway 120 Girard Boulevard SE Lawrence, KS 66049 Albuquerque, NM 87106 Robert V. Eye, Esq. Nancy L. Simmons, Esq.
E-mail: bob@kauffmaneye.com E-mail: nlsstaff@swcp.com Timothy J. Laughlin, Esq.
E-mail: tijay1300@gmail.com Turner Environmental Law Clinic Eddy-Lea Energy Alliance 1301 Clifton Road 102 S. Canyon Atlanta, GA 30322 Carlsbad, NM 88220 Mindy Goldstein, Esq. John A. Heaton E-mail: magolds@emory.edu E-mail: jaheaton1@gmail.com City of Carlsbad, NM City of Hobbs, NM 1024 N. Edward 2605 Lovington Highway Carlsbad, NM 88220 Hobbs, NM 88242 Jason G. Shirley Garry A. Buie E-mail: jgshirley@cityofcarlsbadnm.com E-mail: gabuie52@hotmail.com Eddy County, NM Lea County, NM 101 W. Greene Street 100 N. Main Carlsbad, NM Lovington, NM 88260 Rick Rudometkin Jonathan B. Sena E-mail: rrudometkin@co.eddy.nm.us E-mail: jsena@leacounty.net
[Original signed by Brian Newell]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 29th day of October, 2018 2
(Page 45 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 1 of 13 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY In the Matter of: )
)
Holtec International ) Docket No. 72-1051
)
(HI-STORE Consolidated Interim Storage Facility )
)
BEYOND NUCLEAR, INC.S HEARING REQUEST AND PETITION TO INTERVENE I. INTRODUCTION Pursuant to 10 C.F.R. § 2.309, Beyond Nuclear, Inc. (Beyond Nuclear) hereby requests the U.S. Nuclear Regulatory Commission (NRC or Commission) grant a hearing on Holtec Internationals (Holtecs) application for a license to build and operate a centralized interim spent fuel storage facility (CISF) in Lea County, New Mexico. See 83 Fed. Reg. 32,919 (July 16, 2018) (Holtec Hearing Notice).
As discussed in Section II of Beyond Nuclears attached Motion to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility for Violation of the Nuclear Waste Policy Act (Motion to Dismiss, attached as Exhibit 1 and incorporated herein), Beyond Nuclear does not believe its contention lies within the scope of this licensing proceeding. Beyond Nuclears contention claims noncompliance by Holtec and the NRC with the Nuclear Waste Policy Act of 1982, as amended (NWPA), a statute that is not covered by this licensing proceeding. See 10 C.F.R. §§ 72.40, 51.101.
Beyond Nuclear filed its Motion to Dismiss in this docket and Docket No. 72-1050 (Interim Storage Partners (ISP), WCS Consolidated Interim Storage Facility), but does to seek consideration of the Motion by the Atomic Safety and Licensing Board in either licensing (Page 46 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 2 of 13 proceeding. Instead, Beyond Nuclear has asked the NRC Commissioners to consider the Motion in separate dockets dedicated to the Motion to Dismiss. Id. Beyond Nuclear is filing its contention in this adjudicatory proceeding in an abundance of caution, to preserve its claims in the event that the Commission and/or a reviewing court holds that the licensing proceeding for consideration of the Holtec application (as well as the ISP application) constitutes the only venue in which the NRC will consider whether the application violates the NWPA.
II. BEYOND NUCLEAR HAS STANDING TO REQUEST A HEARING.1 As set forth below, Beyond Nuclear has standing to obtain a hearing on Holtecs license application as a representative of its members. Hunt v. Washington State Apple Advert. Comm'n, 432 U.S. 333, 342 (1977). Beyond Nuclear is a nonprofit, nonpartisan membership organization that aims to educate and activate the public about the connections between nuclear power and nuclear weapons and the need to abolish both to protect public health and safety, prevent environmental harms, and safeguard our future. Beyond Nuclear advocates for an end to the production of nuclear waste and for securing the existing reactor waste in hardened on-site storage until it can be permanently disposed of in a safe, sound, and suitable underground repository. For almost ten years, Beyond Nuclear has worked toward its mission by regularly intervening in NRC licensing, relicensing, and other proceedings related to irradiated nuclear fuel matters. Based on the following, as well as the additional interests included in members declarations, see Exhibits 02-07, Beyond Nuclear demonstrates that its members fulfill the 1
Beyond Nuclear notes that this discussion of standing is the same as the discussion of standing in the Motion to Dismiss, including the legal arguments, the identity of the standing declarants who live or travel near the Holtec site and spent nuclear fuel transportation routese, and the content of their declarations. The only difference is that this discussion omits reference to ISPs application for the WCS CISF.
2 (Page 47 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 3 of 13 standing requirements and have authorized Beyond Nuclear to represent their interests.
Accordingly, Beyond Nuclear has standing to request NRC dismiss the Holtec application.
A. Beyond Nuclears Standing is Established through Radiological Injury Beyond Nuclears members are largely concerned with radiological injury. To establish standing, the injury alleged need not be large: even minor radiological exposures, within regulatory limits, resulting from a proposed license activity can be sufficient. See Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-01-35, 54 NRC 403, 417 (2001), reversed on other grounds, CLI-02-24, 56 NRC 335 (2002). In Yankee Atomic Elec. Co., for example, the Licensing Board found standing because the Board could not rule out the potential for some, even if minor, public exposures from the decommissioning process to members of the petitioner organizations who lived within ten miles of the site, recreated along waterways, and regularly used roads that potentially would be used to transport waste. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61, 69-70, affd, CLI-96-7, 43 NRC 235, 246-48 (1996). See also Armed Forces Radiobiology Research Inst. (Cobalt-60 Storage Facility),
ALAB-682, 16 NRC 150, 154 (1982) (quoting Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 74 (1978)) ([T]he emission of non-natural radiation into appellees environment would also seem a direct and present injury, given our generalized concern about exposure to radiation and the apprehension flowing from the uncertainty about the health and genetic consequences of even small emissions like those concededly emitted by nuclear power plants.).
The NRC recognizes two legal frameworks for analyzing standing based on radiological injury: traditional standing and the proximity presumption. U.S. Army Installation Command 3
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 4 of 13 (Schofield Barracks, Oahu, Hawaii, & Pohakuloa Training Area, Island of Hawaii, Hawaii),
LBP-10-4, 71 NRC 216, 228 (2010). Beyond Nuclear has standing pursuant to both frameworks.
B. Beyond Nuclear Has Standing Pursuant to Traditional Standing Doctrine To establish standing through traditional means, the NRC applies judicial concepts of standing, i.e., injury-in-fact, causation, and redressability. Pac. Gas & Electric Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation) LBP-07-14, 56 NRC 413, 426 (2002).
Beyond Nuclear establishes standing through traditional means by virtue of the injuries to its members who live and travel on or along routes that Holtec plans to transport spent nuclear fuel. Members will be injured primarily from radiologic exposure received during normal transportation operations. See WASH-1238, Environmental Survey of Transportation of Radioactive Materials To and From Nuclear Power Plants (Dec. 1972) (NRC found that a person who spends three minutes at an average distance of three feet from loaded truck or car might receive a dose of as much of 1.3 mrem); Environmental Report on the HI-STORE CIS FACILITY at 4-32 (Report No. HI-2167521) (Dec. 2017) (using dose rate of 10 mrem/hour at a distance of 6.5 feet for transportation radiation impact analysis) (hereinafter Holtec Environmental Report). For example, the Licensing Board in Duke Cogema Stone & Webster found that unwanted doses of ionizing radiation from shipments of nuclear fuel transported over the same public highways the Petitioners members travel established standing because incident-free shipping of plutonium provides a dose of ionizing radiation, albeit small, to anyone next to the transport vehicle and a minor exposure to radiation, even one within regulatory limits, is sufficient to state an injury in fact. LBP-01-35, 54 NRC at 417.
4 (Page 49 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 5 of 13 There is also a risk of radiologic injury to Beyond Nuclears members from an accident involving shipments of spent nuclear fuel being transported to the Holtec CISF. See e.g., Holtec Environmental Report at 4-34 (the application analyzes a spectrum of accidents that ranged from high-probability accidents of low severity and consequences to severe accidents with radiological consequences). There is a higher likelihood of an accident involving spent nuclear fuel near the CISF because the surrounding transportation infrastructure is already unsafe and impacted from the oil and gas boom. See e.g., New Mexico GOP Governor Hopeful: Toll Roads for Oil Traffic, Associated Press, KTBS (Aug. 21, 2018),
Further, Beyond Nuclears members interest in and right to travel will also be injured because they will either not know which route is safest to avoid radiological injury or they will be unable to avoid unsafe routes because of the limited highways in the area. See Duke Cogema Stone & Webster, LBP-01-35, 54 NRC at 415.
Holtec plans to transport spent nuclear fuel to the Holtec CISF on the Burlington Northern Santa Fe Carlsbad Subdivision railroad. Holtec Environmental Report at 2-4, 3-105, 4-
- 30. This railroad travels through Roswell, New Mexico, south to Carlsbad, New Mexico, and then travels east toward the Holtec site, along which it parallels Highway 62/180 for 20 miles at a distance of 100 to 500 feet. Holtec may also transport the spent nuclear fuel the final 3.8 miles to the Holtec CISF by truck. Holtec Environmental Report at 4-33. Beyond Nuclear members who live or travel on roads that cross or parallel the Burlington Northern Santa Fe Carlsbad Subdivision railroad will be exposed to small doses of unwanted radiation during the normal transportation of spent nuclear fuel to the Holtec Facility and a higher likelihood of an accident 5
(Page 50 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 6 of 13 involving spent nuclear fuel. Their interest in travel will be affected if they wish to avoid these injuries. Thus, Beyond Nuclear has standing to request dismissal of the Holtec application through members:
Danny Berry who regularly travels on roads and highways around the Holtec CISF, including Highway 62/180 where it parallels the Burlington Northern Santa Fe Carlsbad Subdivision railroad. See Exhibit 02.
Keli Hatley (Exhibit 3) and Margo Smith (Exhibit 4), who regularly travel on Highway 62/180 where it parallels the Burlington Northern Santa Fe Carlsbad Subdivision railroad, regularly travel other roads in the area on which Holtec may transport spent nuclear fuel, and regularly travel on Laguna Road/Country Road 55 which will have to be moved to avoid the Holtec CISF.
Nick King, who lives within 450 yards of one Burlington Northern Santa Fe Carlsbad Subdivision railroad, 800 yards of a second Burlington Northern Santa Fe Carlsbad Subdivision railroad, and within one mile of a railyard at which the spent nuclear fuel shipments may stop for extended periods. See Exhibit 05.
Gene Harbaugh, who lives within 250 yards of a Burlington Northern Santa Fe Carlsbad Subdivision railroad and within 500 yards of a railyard at which the spent nuclear fuel shipments may stop for extended periods. See Exhibit 06.
Jimi Gadzia, who lives within 900 yards of the Burlington Northern Santa Fe Carlsbad Subdivision railroad and whose frequent travel in Roswell causes her to regularly travel along and over this railroad. See Exhibit 07.
Beyond Nuclear also establishes standing through traditional means by virtue of adverse impacts to its members property values. See Kelley v. Selin, 42 F.3d 1501, 1509-10 (6th Cir.
1995) (Petitioners are clearly asserting a threatened injury. The injury can be fairly traced to respondents actions since petitioners allege that it is the storage of spent nuclear fuels in the VSC-24 cask that has the potential to interrupt enjoyment of their lakefront property and to diminish its value. Finally, a decision in their favor could redress the threatened harm.); see also Louisiana Energy Servs., L.P. (Claiborne Enrichment Ctr.), CLI-98-3, 47 NRC 77, 108-109 (1998). Because of public perception and anticipation, individuals are hesitant to move close to a nuclear facility or the transportation route for spent nuclear fuel, which leads to depressed 6
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 7 of 13 property values near these sites. Close proximity to nuclear facilities and transportation routes for spent nuclear fuel may decrease property values as soon as a nuclear facility is licensed. Thus, Beyond Nuclear has standing to request dismissal of the Holtec application through members:
Keli Hatley (Exhibit 03) and Margo Smith (Exhibit 04), whose homes and property are located within one to seven miles from the Holtec CISF and each of their livelihoods is directly connected to the value of the Smith Ranch, which shares a fence line with the Holtec CISF.
Daniel Berry, whose home and property is located within 11 miles of the Holtec CISF and who owns ranchland located within three to 15 miles of the Holtec CISF. See Exhibit 02.
Gene Harbaugh, whose home and property is located within 250 yards of a Burlington Northern Santa Fe Carlsbad Subdivison railroad and 500 yards of the railyard that Holtec will use to transport spent nuclear fuel to the Holtec CISF. See Exhibit 06.
Nick King, whose home and property is located within 450 yards of one Burlington Northern Santa Fe Carlsbad Subdivision railroad, within 800 yards of a second Burlington Northern Santa Fe Carlsbad Subdivision railroad, and within one mile of a railyard that Holtec will use to transport spent nuclear fuel to the Holtec CISF. See Exhibit 05.
Jimi Gadzia, whose home and property is located within 900 yards of the Burlington Northern Santa Fe Carlsbad Subdivision railroad that Holtec may use to transport spent nuclear fuel to the Holtec CISF. See Exhibit 07.
C. Beyond Nuclear Has Standing Pursuant to the Proximity Presumption NRC has also applied an alternative to establishing standing based on the proximity presumption. Tennessee Valley Auth. (Sequoyah Nuclear Plant, Units 1 & 2; Watts Bar Nuclear Plant, Unit 1), LBP-02-14, 56 NRC 15, 3 (2002) (This so-called proximity or geographical presumption presumes a petitioner has standing to intervene without the need specifically to plead injury, causation, and redressability ); Armed Forces Radiobiology Research Inst.,
ALAB-682, 16 NRC at 154 (The proximity to a large source of radioactive material establishes petitioners interest.). Where the nature of the proposed action and the significance of the radioactive source create an obvious potential for offsite consequences, the NRC applies a 7
(Page 52 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 8 of 13 presumption of standing to individuals residing, owning property, or having frequent and regular contacts within the radius of those potential offsite consequences. Consumers Energy Co. (Big Rock Point Indep. Spent Fuel Storage Installation), CLI-07-19, 65 NRC 423, 426 (2007)
(quoting Exelon Generation Co. LLC & PSEG Nuclear, LLC (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-05-26, 62 NRC 577, 580-581 (2005)); see also Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995).
The determination of the radius beyond which . . . there is no longer an obvious potential for offsite consequences is made on a case-by-case basis. Exelon Generation Co. LLC
& PSEG Nuclear, LLC, CLI-05-26, 62 NRC at 580-81. Licensing Boards have found standing based on proximity to spent nuclear fuel ranging from 4,000 feet to 17 miles. Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142 (1997);
Pac. Gas & Elec. Co., LBP-02-23, 56 NRC at 428. The standard for assessing the potential for offsite consequences is whether the consequences are plausible, not whether consequences are probable or likely. Cfc Logistics, Inc., LBP-03-20, 58 NRC 311, 320 (2003), citing Ga. Inst. of Tech. (Georgia Tech Research Reactor) CLI-95-12, 42 NRC 111 (1995) (Commission found standing based on a plausible scenario, albeit a highly unlikely one, in which three independent redundant safety systemsall designed to function under normal circumstancescould simultaneously fail in a research reactor.).
The potential for offsite consequences from the Holtec CISF is obvious due to the characteristics and quantity of spent nuclear fuel Holtec plans to consolidate at the CISF. Spent fuel is and will remain highly radioactive and dangerous to humans for hundreds of thousands of years. Nuclear Energy Institute v. EPA, 373 F.3d 1251, 1257 (D.C. Cir. 2004). Holtec proposes to store an astronomical quantity of this extremely dangerous and long-lived radioactive waste --
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 9 of 13 up to 173,600 MTU, more than twice the total amount of commercially generated spent nuclear fuel existing in the entire United States today. See infra,Section V.A. As discussed in the Blue Ribbon Commissions Report (for more detail, see infra Section V.A.), the only acceptable means for separating this dangerous material from the environment for the long-term is disposal, not interim storage. Blue Ribbon Commission on Americas Nuclear Future, Report to the Secretary at xi (Jan. 2012) (ML120970375) (BRC Report) (The conclusion that disposal is needed and that deep geologic disposal is the scientifically preferred approach has been reached by every expert panel that has looked at the issue and by every other country that is pursuing a nuclear waste management program.). Further, Holtec acknowledges at least one plausible scenario that would result in off-site consequences from storage of spent nuclear fuel at the CISF. HI-STORE CIS Safety Analysis Report at 8 8-6 (Report No. HI-2167374) (Mar. 27, 2017) (safety analysis explains that a criticality accident is possible due to a flooded canister)
(hereinafter Holtec SAR).
Thus, Beyond Nuclear has standing to request dismissal of the Holtec application based on the proximity presumption, through members who own property nearby and have frequent and regular contacts within the radius of potential obvious offsite consequences from the Holtec CISF, including:
Keli Hatley, who lives one mile from the Holtec CISF. See Exhibit 03. Ms. Hatley often spends time with family approximately two miles from the Holtec CISF and ranches her cattle up to the fence line of the Holtec CISF. Id. Ms. Hatley and her children drive most days over a section of the Laguna Road/Country Road 55 that currently travels across the Holtec site and will have to be moved if the CISF is built. Id.
Margo Smith, who lives seven miles from the Holtec CISF. See Exhibit 04. Ms. Smith regularly spends time within approximately two miles of the Holtec CISF, ranching and visiting her two daughters homes. Id.
Daniel Berry, who owns property within three to fifteen miles of the Holtec CISF. See Exhibit 02. Mr. Berry also lives and works on this land, and regularly drives on Highway 62/180 near the Holtec CISF. Id.
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 10 of 13 Jimi Gadzia, who owns mineral rights within ten to 16 miles of the Holtec CISF. See Exhibit 07.
I. CONTENTION A. Statement of Contention The NRC must dismiss Holtecs license application and terminate this proceeding because the application violates the NWPA. The proceeding must be dismissed because the central premise of Holtecs application - that the U.S. Department of Energy (DOE) will be responsible for the spent fuel that is transported to and stored at the proposed interim facilities -
violates the NWPA. Under the NWPA, the DOE is precluded from taking title to spent fuel unless and until a permanent repository has opened. 42 U.S.C. §§ 10222(a)(5)(A), 10143.
B. Basis Statement Beyond Nuclear hereby adopts and incorporates by reference Sections IV and V of the attached Motion to Dismiss (Exhibit 1). The Motion sets forth the facts in Holtecs license application on which Beyond Nuclear relies, and applies the NWPA and the Administrative Procedure Act to those facts.
C. Demonstration that the Contention is Within the Scope of the Proceeding As discussed above in Section I, Beyond Nuclear does not believe its contention is within the scope of this proceeding, because NRC regulations establishing the scope of the proceeding do not include the NWPA. See 10 C.F.R. §§ 72.40, 51.101. The contention seeks compliance by the Commission with the NWPA and the Administrative Procedure Act, which prohibits the Commission from acting in a manner that is not in accordance with law, or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. 5 U.S.C. §§ 706(2)(A), (C). See Motion to Dismiss,Section IV.B. Nevertheless, as discussed above in Section I, Beyond Nuclear is filing this contention in an abundance of caution.
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 11 of 13 D. Demonstration that the Contention is Material to the Findings NRC Must Make to renew FPLs operating license For the same reasons as discussed in Section C above, this contention is not material to the findings that NRC must make in order to issue a license to Holtec. NRC regulations establishing the scope of the proceeding do not include the NWPA. See 10 C.F.R. §§ 72.40, 51.101. The contention seeks compliance by the Commission with the NWPA and the Administrative Procedure Act, which prohibits the Commission from acting in a manner that is not in accordance with law, or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. 5 U.S.C. §§ 706(2)(A), (C). See Motion to Dismiss,Section IV.B.
Nevertheless, as discussed above in Section I, Beyond Nuclear is filing this contention in an abundance of caution.
E. Concise Statement of the Facts or Expert Opinion Supporting the Contention, Along with Appropriate Citations to Supporting Scientific or Factual Materials The Motion to Dismiss cites the relevant statements in Holtecs License Application, Environmental Report, and SAR, and applies relevant law to those facts. No expert opinion is required to raise a material dispute with Holtec on the question of law raised by the contention.
V. CONCLUSION For the foregoing reasons, Beyond Nuclears hearing request and petition to intervene should be granted.
Respectfully submitted,
___/signed electronically by/__
Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com
__/signed electronically by/___
11 (Page 56 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 12 of 13 Mindy Goldstein Emory University School of Law Turner Environmental Law Clinic 1301 Clifton Road Atlanta, GA 30307 404-727-3432 magolds@emory.edu September 14, 2018 12 (Page 57 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 13 of 13 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY In the Matter of: )
)
Holtec International ) Docket No. 72-1051
)
(HI-STORE Consolidated Interim Storage Facility )
)
CERTIFICATE OF SERVICE I certify that on September 14, 2018, I posted copies of the foregoing Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene on the NRCs Electronic Information Exchange System. I also posted Exhibits 1 through 7 to Beyond Nuclears Hearing Request and Petition to Intervene:
___/signed electronically by/__
Diane Curran 13 (Page 58 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 1 of 12 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY In the Matter of: )
)
Interim Storage Partners ) Docket No. 72-1050
)
(WCS Consolidated Interim Storage Facility) )
)
BEYOND NUCLEAR, INC.S HEARING REQUEST AND PETITION TO INTERVENE I. INTRODUCTION Pursuant to 10 C.F.R. § 2.309, Beyond Nuclear, Inc. (Beyond Nuclear) hereby requests the U.S. Nuclear Regulatory Commission (NRC or Commission) to grant a hearing on Interim Storage Partners (ISP) application for a license to build and operate a centralized interim spent fuel storage facility (WCS CISF) in Andrews County, Texas. See 83 Fed. Reg. 44,070 (Aug. 29, 2018) (ISP Hearing Notice). 1 As discussed in Section II of Beyond Nuclears attached Corrected Motion to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility for Violation of the Nuclear Waste Policy Act (Motion to Dismiss), 2 Beyond Nuclear does not believe its contention lies within the scope of this licensing proceeding.
1 Beyond Nuclear notes that it has timely filed a Hearing Request, and therefore does not join in or take a position on the extension request filed by other parties on October 2, 2018. The inclusion of Beyond Nuclear as a petitioner in that extension request was an inadvertent error that is hereby corrected.
2 The Motion to Dismiss is attached as Exhibit 01. The Motion to Dismissed was filed on September 14, 2018 in this docket and in Docket No. 72-1051 for the HI-STORE Consolidated Interim Storage Facility (Holtec CISF). The Motion has corrections made pursuant to an errata filed on September 18, 2018.
1 (Page 59 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 2 of 12 Beyond Nuclears contention claims noncompliance by ISP and the NRC with the Nuclear Waste Policy Act of 1982, as amended (NWPA), a statute that is not covered by this licensing proceeding. See 10 C.F.R. §§ 72.40, 51.101.
While Beyond Nuclear filed its Motion to Dismiss in this docket and Docket No. 72-1051, Beyond Nuclear does not seek consideration of the Motion by the Atomic Safety and Licensing Board in either licensing proceeding. Instead, Beyond Nuclear has asked the NRC Commissioners to consider the Motion in separate dockets dedicated to the Motion to Dismiss. See Exhibit 01, Motion to Dismiss. Beyond Nuclear is filing its contention in this adjudicatory proceeding in an abundance of caution, to preserve its claims in the event that the Commission and/or a reviewing court holds that the licensing proceeding for consideration of the ISP application (as well as the Holtec application) constitutes the only venue in which the NRC will consider whether the application violates the NWPA.
II. BEYOND NUCLEAR HAS STANDING TO REQUEST A HEARING. 3 As set forth below, Beyond Nuclear has standing to obtain a hearing on ISPs license application as a representative of its members. Hunt v. Washington State Apple Advert. Comm'n, 432 U.S. 333, 342 (1977). Beyond Nuclear is a nonprofit, nonpartisan membership organization that aims to educate and activate the public about the connections between nuclear power and nuclear weapons and the need to abolish both to protect public health and safety, prevent environmental harms, and safeguard our future. Beyond Nuclear advocates for an end to the production of nuclear waste and for securing the existing reactor waste in hardened on-site storage 3
Beyond Nuclear notes that this discussion of standing is the same as the discussion of standing in the Motion to Dismiss, including the legal arguments, the identity of the standing declarants who live or travel near the ISP site and spent nuclear fuel transportation routes, and the content of their declarations. The only difference is that this discussion omits reference to Holtecs application for the Holtec CISF.
2 (Page 60 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 3 of 12 until it can be permanently disposed of in a safe, sound, and suitable underground repository. For almost ten years, Beyond Nuclear has worked toward its mission by regularly intervening in NRC licensing, relicensing, and other proceedings related to irradiated nuclear fuel matters. Based on the following, as well as the additional interests included in members declarations, see Exhibits 02 and 03, Beyond Nuclear demonstrates that its members fulfill the standing requirements and have authorized Beyond Nuclear to represent their interests. Accordingly, Beyond Nuclear has standing to intervene in this proceeding.
A. Beyond Nuclears Standing is Established through Radiological Injury Beyond Nuclears members are largely concerned with radiological injury. To establish standing, the injury alleged need not be large: even minor radiological exposures, within regulatory limits, resulting from a proposed license activity can be sufficient. See Duke Cogema Stone &
Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-01-35, 54 NRC 403, 417 (2001), reversed on other grounds, CLI-02-24, 56 NRC 335 (2002). In Yankee Atomic Elec. Co.,
for example, the Licensing Board found standing because the Board could not rule out the potential for some, even if minor, public exposures from the decommissioning process to members of the petitioner organizations who lived within ten miles of the site, recreated along waterways, and regularly used roads that potentially would be used to transport waste. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61, 69-70, affd, CLI-96-7, 43 NRC 235, 246-48 (1996). See also Armed Forces Radiobiology Research Inst. (Cobalt-60 Storage Facility), ALAB-682, 16 NRC 150, 154 (1982) (quoting Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 74 (1978)) ([T]he emission of non-natural radiation into appellees environment would also seem a direct and present injury, given our generalized concern about exposure to radiation and the apprehension flowing from the uncertainty about the health and genetic consequences of even small emissions like those concededly emitted by nuclear power plants.).
3 (Page 61 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 4 of 12 The NRC recognizes two legal frameworks for analyzing standing based on radiological injury: traditional standing and the proximity presumption. U.S. Army Installation Command (Schofield Barracks, Oahu, Hawaii, & Pohakuloa Training Area, Island of Hawaii, Hawaii), LBP-10-4, 71 NRC 216, 228 (2010). Beyond Nuclear has standing pursuant to both frameworks.
B. Beyond Nuclear Has Standing Pursuant to Traditional Standing Doctrine To establish standing through traditional means, the NRC applies judicial concepts of standing, i.e., injury-in-fact, causation, and redressability. Pac. Gas & Electric Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation) LBP-07-14, 56 NRC 413, 426 (2002).
Beyond Nuclear establishes standing through traditional means by virtue of the injuries to its members who live and travel on or along routes that ISP plans to transport spent nuclear fuel.
Members will be injured primarily from radiologic exposure received during normal transportation operations. See WASH-1238, Environmental Survey of Transportation of Radioactive Materials To and From Nuclear Power Plants (Dec. 1972) (NRC found that a person who spends three minutes at an average distance of three feet from loaded truck or car might receive a dose of as much of 1.3 mrem); WCS Environmental Report at 4-13 (using dose rate of 0.1 mSv per hour at 2 meters for transportation radiation impact analysis). For example, the Licensing Board in Duke Cogema Stone & Webster found that unwanted doses of ionizing radiation from shipments of nuclear fuel transported over the same public highways the Petitioners members travel established standing because incident-free shipping of plutonium provides a dose of ionizing radiation, albeit small, to anyone next to the transport vehicle and a minor exposure to radiation, even one within regulatory limits, is sufficient to state an injury in fact. LBP-01-35, 54 NRC at 417.
There is also a risk of radiologic injury to Beyond Nuclears members from an accident involving shipments of spent nuclear fuel being transported to the WCS CISF. See e.g., WCS 4
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 5 of 12 Environmental Report at 4-15 (noting that rail casks could release radioactivity in exceptionally severe accidents). There is a higher likelihood of an accident involving spent nuclear fuel near the WCS CISF because the surrounding transportation infrastructure is already unsafe and impacted from the oil and gas boom. See e.g., New Mexico GOP Governor Hopeful: Toll Roads for Oil Traffic, Associated Press, KTBS (Aug. 21, 2018), https://www.ktbs.com/news/business/new-mexico-gop-governor-hopeful-toll-roads-for-oil-traffic/article_e8f4a10a-2542-5a9a-b64e-d0e6448c7bc8.html.
Further, Beyond Nuclears members interest in and right to travel will also be injured because they will either not know which route is safest to avoid radiological injury or they will be unable to avoid unsafe routes because of the limited highways in the area. See Duke Cogema Stone
& Webster, LBP-01-35, 54 NRC at 415.
ISP plans to transport spent nuclear fuel to the WCS CISF by rail. ISP plans to use the Texas and New Mexico Railway between Monahan, Texas, and Eunice, New Mexico. WCS Environmental Report at 4-8. This railroad parallels Highway 18 within a few hundred feet for approximately 40 miles. Beyond Nuclear members who live or travel on roads that cross or parallel the Texas and New Mexico Railway will be exposed to small doses of unwanted radiation during the normal transportation of spent nuclear fuel to the WCS CISF and a higher likelihood of an accident involving spent nuclear fuel. Their interest in travel will be affected if they wish to avoid these injuries. Thus, Beyond Nuclear has standing to intervene in this proceeding through members Rose Gardner and D.K. Boyd, who regularly travel on roads and highways around the WCS CISF, including Highway 18 where it parallels the Texas and New Mexico Railway. See Exhibits 02 and 03.
Beyond Nuclear also establishes standing through traditional means by virtue of adverse impacts to its members property values. See Kelley v. Selin, 42 F.3d 1501, 1509-10 (6th Cir.
5 (Page 63 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 6 of 12 1995) (Petitioners are clearly asserting a threatened injury. The injury can be fairly traced to respondents actions since petitioners allege that it is the storage of spent nuclear fuels in the VSC-24 cask that has the potential to interrupt enjoyment of their lakefront property and to diminish its value. Finally, a decision in their favor could redress the threatened harm.); see also Louisiana Energy Servs., L.P. (Claiborne Enrichment Ctr.), CLI-98-3, 47 NRC 77, 108-109 (1998). Because of public perception and anticipation, individuals are hesitant to move close to a nuclear facility or the transportation route for spent nuclear fuel, which leads to depressed property values near these sites. Close proximity to nuclear facilities and transportation routes for spent nuclear fuel may decrease property values as soon as a nuclear facility is licensed. Thus, Beyond Nuclear has standing to intervene in this proceeding through members:
See Exhibit 02.
C. Beyond Nuclear Has Standing Pursuant to the Proximity Presumption NRC has also applied an alternative to establishing standing based on the proximity presumption. Tennessee Valley Auth. (Sequoyah Nuclear Plant, Units 1 & 2; Watts Bar Nuclear Plant, Unit 1), LBP-02-14, 56 NRC 15, 3 (2002) (This so-called proximity or geographical presumption presumes a petitioner has standing to intervene without the need specifically to plead injury, causation, and redressability ); Armed Forces Radiobiology Research Inst., ALAB-682, 16 NRC at 154 (The proximity to a large source of radioactive material establishes petitioners interest.). Where the nature of the proposed action and the significance of the radioactive source create an obvious potential for offsite consequences, the NRC applies a presumption of standing to individuals residing, owning property, or having frequent and regular contacts within the radius of those potential offsite consequences. Consumers Energy Co. (Big 6
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 7 of 12 Rock Point Indep. Spent Fuel Storage Installation), CLI-07-19, 65 NRC 423, 426 (2007) (quoting Exelon Generation Co. LLC & PSEG Nuclear, LLC (Peach Bottom Atomic Power Station, Units 2
& 3), CLI-05-26, 62 NRC 577, 580-581 (2005)); see also Kelley v. Selin, 42 F.3d 1501 (6th Cir.
1995).
The determination of the radius beyond which . . . there is no longer an obvious potential for offsite consequences is made on a case-by-case basis. Exelon Generation Co. LLC & PSEG Nuclear, LLC, CLI-05-26, 62 NRC at 580-81. Licensing Boards have found standing based on proximity to spent nuclear fuel ranging from 4,000 feet to 17 miles. Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142 (1997); Pac. Gas & Elec.
Co., LBP-02-23, 56 NRC at 428. The standard for assessing the potential for offsite consequences is whether the consequences are plausible, not whether consequences are probable or likely. Cfc Logistics, Inc., LBP-03-20, 58 NRC 311, 320 (2003), citing Ga. Inst. of Tech. (Georgia Tech Research Reactor) CLI-95-12, 42 NRC 111 (1995) (Commission found standing based on a plausible scenario, albeit a highly unlikely one, in which three independent redundant safety systemsall designed to function under normal circumstancescould simultaneously fail in a research reactor.).
The potential for offsite consequences from the WCS CISF is obvious due to the characteristics and quantity of spent nuclear fuel ISP plans to consolidate at the CISF. Spent fuel is and will remain highly radioactive and dangerous to humans for hundreds of thousands of years.
Nuclear Energy Institute v. EPA, 373 F.3d 1251, 1257 (D.C. Cir. 2004). ISP plans to store 40,000 MTU of spent nuclear fuel at the WCS CISFa quantity that is more than half of the spent nuclear fuel existing in the United States. WCS Environmental Report at 4-9. As discussed in the Blue Ribbon Commissions Report (for more detail, see Exhibit 01, Motion to Dismiss,Section V.A.),
the only acceptable means for separating this dangerous material from the environment for the 7
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 8 of 12 long-term is disposal, not interim storage. Blue Ribbon Commission on Americas Nuclear Future, Report to the Secretary at xi (Jan. 2012) (ML120970375) (BRC Report) (The conclusion that disposal is needed and that deep geologic disposal is the scientifically preferred approach has been reached by every expert panel that has looked at the issue and by every other country that is pursuing a nuclear waste management program.). Further, ISP acknowledges at least one plausible scenario that would result in off-site consequences from storage of spent nuclear fuel at the WCS CISF. WCS Safety Analysis Report at 12-2 (Analyses are provided for a range of hypothetical accidents, including those with the potential to result in a total effective dose equivalent of greater than 5 Rem outside the owner controlled area or the sum of the deep-dose equivalent specified in 10 CFR 72.106.).
Thus, Beyond Nuclear has standing to intervene in this proceeding based on the proximity presumption, through members who own property nearby and have frequent and regular contacts within the radius of potential obvious offsite consequences from the WCS CISF, including:
- Rose Gardner, whose home and work are located within seven miles of the WCS CISF. See Exhibit 02. Ms. Gardner also visits family who live approximately five miles from the WCS CISF. Id.
III. CONTENTION A. Statement of Contention The NRC must dismiss ISPs license application and terminate this proceeding because the application violates the NWPA. The proceeding must be dismissed because the central premise of ISPs application - that the U.S. Department of Energy (DOE) will be responsible for the spent fuel that is transported to and stored at the proposed interim facility - violates the NWPA. Under the NWPA, the DOE is precluded from taking title to spent fuel unless and until a permanent 8
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 9 of 12 repository has opened. 42 U.S.C. §§ 10222(a)(5)(A), 10143.
B. Basis Statement Beyond Nuclear hereby adopts and incorporates by reference Sections IV and V of the attached Motion to Dismiss (Exhibit 01). The Motion to Dismiss sets forth the facts in ISPs license application on which Beyond Nuclear relies, and applies the NWPA and the Administrative Procedure Act to those facts.
C. Demonstration that the Contention is Within the Scope of the Proceeding As discussed above in Section I, Beyond Nuclear does not believe its contention is within the scope of this proceeding, because NRC regulations establishing the scope of the proceeding do not include the NWPA. See 10 C.F.R. §§ 72.40, 51.101. The contention seeks compliance by the Commission with the NWPA and the Administrative Procedure Act, which prohibits the Commission from acting in a manner that is not in accordance with law, or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. 5 U.S.C. §§ 706(2)(A),
(C). See Exhibit 01, Motion to Dismiss,Section IV.B. Nevertheless, as discussed above in Section I, Beyond Nuclear is filing this contention in an abundance of caution.
D. Demonstration that the Contention is Material to the Findings NRC Must Make to Issue a License to ISP For the same reasons as discussed in subsection C above, this contention is not material to the findings that NRC must make in order to issue a license to ISP. NRC regulations establishing the scope of the proceeding do not include the NWPA. See 10 C.F.R. §§ 72.40, 51.101. The contention seeks compliance by the Commission with the NWPA and the Administrative Procedure Act, which prohibits the Commission from acting in a manner that is not in accordance with law, or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. 5 U.S.C. §§ 706(2)(A), (C). See Exhibit 01, Motion to Dismiss,Section IV.B. Nevertheless, 9
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 10 of 12 as discussed above in Section I, Beyond Nuclear is filing this contention in an abundance of caution.
E. Concise Statement of the Facts or Expert Opinion Supporting the Contention, Along with Appropriate Citations to Supporting Scientific or Factual Materials The Motion to Dismiss (Exhibit 01) cites the relevant statements in ISPs License Application, Environmental Report, and Safety Analysis Report, and applies relevant law to those facts. No expert opinion is required to raise a material dispute with ISP on the question of law raised by the contention.
IV. CONCLUSION For the foregoing reasons, Beyond Nuclears hearing request and petition to intervene should be granted.
Respectfully submitted,
___/signed electronically by/__
Mindy Goldstein Turner Environmental Law Clinic Emory University School of Law 1301 Clifton Road Atlanta, GA 30322 404-727-3432 Email: magolds@emory.edu
__/signed electronically by/___
Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com 10 (Page 68 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 11 of 12
___/signed electronically by/__
Caroline Reiser Turner Environmental Law Clinic Emory University School of Law 1301 Clifton Road Atlanta, GA 30322 404-727-9907 Email: caroline.j.reiser@emory.edu October 3, 2018 11 (Page 69 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 12 of 12 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY In the Matter of: )
)
Interim Storage Partners ) Docket No. 72-1050
)
(WCS Consolidated Interim Storage Facility) )
)
CERTIFICATE OF SERVICE I certify that on October 3, 2018, I posted copies of the foregoing: BEYOND NUCLEAR, INC.S HEARING REQUEST AND PETITION TO INTERVENE on the NRCs Electronic Information Exchange System. I also posted Exhibits 01 through 03 to Beyond Nuclears Hearing Request and Petition to Intervene.
___/signed electronically by/__
Mindy Goldstein Turner Environmental Law Clinic Emory University School of Law 1301 Clifton Road Atlanta, GA 30322 404-727-3432 Email: magolds@emory.edu 12 (Page 70 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 1 of 5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Paul S. Ryerson, Chairman Nicholas G. Trikouros Dr. Gary S. Arnold In the Matter of Docket No. 72-1051-ISFSI HOLTEC INTERNATIONAL ASLBP No. 18-958-01-ISFSI-BD01 (HI-STORE Consolidated Interim Storage February 26, 2019 Facility)
NOTICE (Regarding Schedule for Issuing Order on Standing and Contention Admissibility)
The Board heard oral argument on standing and contention admissibility on January 23 and 24, 2019. Pending before the Board are motions by various parties to file new or amended contentions, which were submitted on January 17, February 6, February 18, and February 25, 2019.1 1 See Sierra Clubs Motion to File a New Late-Filed Contention (Jan. 17, 2019); Motion by Petitioners Dont Waste Michigan, [et al.] for Leave to File a New Contention (Jan. 17, 2019);
Motion by Petitioners Beyond Nuclear and Fasken to Amend Their Contentions Regarding Federal Ownership of Spent Fuel to Address Holtec Internationals Revised License Application (Feb. 6, 2019) [hereinafter Beyond Nuclear and Faskens Motion to Amend Contentions]; Sierra Clubs Motion to Amend Contention 1 (Feb. 6, 2019); Motion by Petitioners Dont Waste Michigan, et al. to Amend Their Contention 2 Regarding Federal Ownership of Spent Fuel in the Holtec International Revised License Application (Feb. 6, 2019) [hereinafter DWMs Feb. 6 Motion to Amend Contention 2]; Sierra Clubs Motion to Amend Contention 16 (Feb. 18, 2019);
Motion of Petitioners Dont Waste Michigan, et al. to Amend Their Contentions 4 and 7 Regarding Holtecs Decision to Have No Dry Transfer System Capability and Holtecs Policy of Returning Leaking, Externally Contaminated or Defective Casks and/or Canisters to Originating Reactor Sites (Feb. 18, 2019); Motion of Petitioners Dont Waste Michigan, et al. to Amend Their Contention 2 Regarding Holtecs Proposed Means of Financing the Proposed Consolidated Interim Storage Facility (Feb. 25, 2019); Sierra Clubs Motion to File New Late-Filed Contentions 27, 28, and 29 (Feb. 25, 2019). On January 15, 2019, Petitioners Beyond (Page 71 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 2 of 5 In accordance with 10 C.F.R. § 2.309(j), the Board advises the parties that it anticipates issuing its decision on standing and contention admissibility, including its decision on all pending motions, within forty-five days of the completion of briefing all pending motions to file new or amended contentions.
If additional motions to file new or amended contentions are submitted, the Board anticipates that it will address them separately.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Paul S. Ryerson, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland February 26, 2019 Nuclear, Fasken, Sierra Club, and Dont Waste Michigan, et al. jointly filed motions to respectively amend their contentions and strike certain portions of Holtecs responses to their hearing requests. See Motion by Petitioners Beyond Nuclear, Fasken, The Sierra Club, and Dont Waste Michigan, et al. to Amend Their Contentions to Address New Information Confirming That Holtecs License Application Contains False or Misleading Statements and Motion by Petitioners to Strike Unreliable Statements from Holtecs Responses to Petitioners Hearing Requests (Jan. 15, 2019). These motions were later withdrawn by those certain petitioners in their respective February 6, 2019 filings. See Beyond Nuclear and Faskens Motion to Amend Contentions at 1-2 n.1; Sierra Clubs Motion to Amend Contention 1 at 2; DWMs Feb. 6 Motion to Amend Contention 2 at 1 n.1.
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 3 of 5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
)
HOLTEC INTERNATIONAL ) Docket No. 72-1051-ISFSI
)
)
(HI-STORE Consolidated Interim Storage )
Facility) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NOTICE (Regarding Schedule for Issuing Order on Standing and Contention Admissibility) have been served upon the following persons by Electronic Information Exchange (EIE).
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16B33 Mail Stop: O-16B33 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop - O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 Paul S. Ryerson, Chair Sheldon Clark, Esq.
Administrative Judge Joseph I. Gillespie, Esq.
Esther Houseman, Esq.
Nicholas G. Trikouros Sara B. Kirkwood, Esq.
Administrative Judge Mauri Lemoncelli, Esq.
Emily Monteith, Esq.
Dr. Gary S. Arnold Patrick Moulding, Esq.
Administrative Judge Carrie Safford, Esq.
Alana M. Wase, Esq.
Joseph McManus, Law Clerk Krupskaya T. Castellon, Paralegal Taylor A. Mayhall, Law Clerk Brian Newell, Paralegal E-mail: sheldon.clark@nrc.gov E-mail: paul.ryerson@nrc.gov joe.gillespie@nrc.gov nicholas.trikouros@nrc.gov esther.houseman@nrc.gov gary.arnold@nrc.gov sara.kirkwood@nrc.gov joseph.mcmanus@nrc.gov mauri.lemoncelli@nrc.gov taylor.mayhall@nrc.gov emily.monteith@nrc.gov patrick.moulding@nrc.gov carrie.safford@nrc.gov alana.wase@nrc.gov krupskaya.castellon@nrc.gov brian.newell@nrc.gov (Page 73 of Total)
USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 4 of 5 Docket No. 72-1051-ISFSI NOTICE (Regarding Schedule for Issuing Order on Standing and Contention Admissibility)
Counsel for Holtec International Dont Waste Michigan Pillsbury Winthrop Shaw Pittman LLP 316 N. Michigan Street, Suite 520 1200 Seventeenth Street, NW Toledo, OH 43604-5627 Washington, DC 20036 Terry J. Lodge, Esq.
E-mail: tjlodge50@yahoo.com Anne Leidich, Esq.
Michael Lepre, Esq. Counsel for Sierra Club Jay Silberg, Esq. 4403 1st Avenue SE, Suite 402 Timothy J. Walsh, Esq. Cedar Rapids, IA 52402 E-mail: anne.leidich@pillsburylaw.com michael.lepre@pillsburylaw.com Wallace L. Taylor, Esq.
jay.silberg@pillsburylaw.com E-mail: wtaylor784@aol.com timothy.walsh@pillsburylaw.com Counsel for NAC International Inc.
Harmon, Curran, Spielberg & Eisenberg LLP Robert Helfrich, Esq.
1725 DeSales Street NW NAC International Inc.
Suite 500 3930 E Jones Bridge Rd., Ste. 200 Washington, DC 20036 Norcross, GA 30092 Diane Curran, Esq. E-mail: rhelfrich@nacintl.com E-mail: dcurran@harmoncurran.com Hogan Lovells LLP 555 13th Street NW Robert V. Eye Law Office, LLC Washington, DC 20004 4840 Bob Billings Parkway Sachin S. Desai, Esq.
Lawrence, KS 66049 Allison E. Hellreich, Esq.
Robert V. Eye, Esq. E-mail: sachin.desai@hoganlovells.com Timothy J. Laughlin, Esq. allison.hellreich@hoganlovells.com E-mail: bob@kauffmaneye.com tijay1300@gmail.com Law Office of Nancy L. Simmons Turner Environmental Law Clinic 120 Girard Boulevard SE 1301 Clifton Road Albuquerque, NM 87106 Atlanta, GA 30322 Nancy L. Simmons, Esq.
Mindy Goldstein, Esq. E-mail: nlsstaff@swcp.com E-mail: magolds@emory.edu Eddy-Lea Energy Alliance 102 S. Canyon Carlsbad, NM 88220 John A. Heaton E-mail: jaheaton1@gmail.com 2
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USCA Case #18-1340 Document #1780410 Filed: 04/01/2019 Page 5 of 5 Docket No. 72-1051-ISFSI NOTICE (Regarding Schedule for Issuing Order on Standing and Contention Admissibility)
Eddy County, NM City of Hobbs, NM 101 W. Greene Street 2605 Lovington Highway Carlsbad, NM Hobbs, NM 88242 Rick Rudometkin Garry A. Buie E-mail: rrudometkin@co.eddy.nm.us E-mail: gabuie52@hotmail.com Lea County, NM City of Carlsbad, NM 100 N. Main 1024 N. Edward Lovington, NM 88260 Carlsbad, NM 88220 Jonathan B. Sena Jason G. Shirley E-mail: jsena@leacounty.net E-mail: jgshirley@cityofcarlsbadnm.com
[Original signed by Diane B. Garvin ]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 26th day of February, 2019 3
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