ML20202J650
| ML20202J650 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 01/27/1998 |
| From: | NRC |
| To: | |
| References | |
| CON-#198-18805 ASB-300-117, ISFSI, NUDOCS 9802230189 | |
| Download: ML20202J650 (241) | |
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Docket No.: 72-22-ISFSI .,;.n/:.'
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- q ;_ g.y, . . - z.w-LOCATION: Sak Lake Cky,Utan k .dv.sk.. h u ki . yg y.t.SY DATE: Tuesday, January 27,15M PAGES:
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1 y UNITED STATES OF AMERICA 2 NUCLEAR REGULATOhY COMMISSION
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3 ----------------X 4 In the Matter of Docket No. 72-22-ISFSI
- ASLBP No. 97-732-02-ISFSI 5 PRIVATE FUEL STORAGE, L.L.C.
6- -(Independent Spent Fuel :
' Storage Installation) . :
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=8 University of Utah 9 College of Law Moot Courtroom
-10 332 South-Street, 1400 East Salt Lake City, Utah
, 11 l
Tuesday, January 27, 1998 12 13 The above-entitled prehearing conference convenend at 7g 10:00 a.m. pursuant-to notice, before:
a ) 14:
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-15 THE HONORABLE G. PAUL BOLLWERK, III, Administrative Judge,
- , 16 Atomic Safety & L3 censing Panel Chairman 17 DR. JERRY R. V.LINE, Atomic Shfety & Licensing Panel Board member 18 DR. PETER S.- LAM 19 -Atomic Safety & Licensing Panel Board member 20 PRESENT FOR THE NRC STAFF
21 Sherwin Turk Catherine Marco 22-
-PRESENT FOR THE STATE OF UTAH:
23.
Denise Chancellor
. 24 Diane Curran Fred Nelson 25 Marvin Resnikoff Lawrence White q
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2 1 PRESENT FOR THE SKULL VALLEY BAND OF GOSHUTE INDIANS:
2 Danny Quintana Richard Wilson 3 Scott York 4 PRESENT FOR ONHGO GAUDADEH DEVIA:
5 Jean Belille Robert Halstead 6
PRESENT FOR CASTLE ROCK LAND AND L!VESTOCK, L.C.:
7 Michael Later 8 Bryan Allan 9 PRESENT FOR THE CONFEDERATED TRIBES OF THE GOSHUTE RESERVATJON AND DAVID PETE:
10 John Kennedy 11 Genevieve Fields 12 PRESENT FOR PRIVATE FUEL STORAGE, L.L.C.
- 1. Jay Silberg Ernest Blake 14 Paul Gaukler 15 16 17 18
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19 20 21 22 23 24 25 ANN RILEY & ASSOCIATES, LTD.
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[ 1 PROCEEDINGS 2
(10 : 00 a.m]
3 CHAIRMAN BOLLWERK: Why don't se go on the record 4 please.
5 Good morning everyone. Today we're here to conduct an 6 initial prehearing conference in the Private Fuel Storace, 7 L . I. . C . proceeding. In response to a notice of opportunity 8 for hearing published in the Federal Reaister on July 31, 9 1997, found in volume 62 of the Federal Recister at pages 10 41,099 to 41,100, petitioners State of Utah, Ohngo Gaudadeh 11 Devia, the Confederated Tribes of the Goshute Reservation 12 and David Pete, and Castle Rock Land and Livestock, L.C.
13 Skull Valley Co., Ltd., and Ensign Ranches of Utah, L.C.,
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14 have requested a hearing to challenge the June 20, 1997 G 15 application of Private Fuel Storage, L.L.C. for a license 16 under 10 C.F.R., in Code of Federal Regulations, Part 72, to 17 possess and store spent nuclear reactor fuel in an 18 independent spent fuel storage installation, also known as 19 an ISFSI, located in the Skull Valley Goshute Indian i 20 Reservation in Skull Valley, Utah.
21 In addition, the Skull Valley Band of Goshute Indians 22 and, very recently, a group of individuals and the Atlantic 23 Legal Foundation ham filed petitions to intervene in this 24 proceeding in suppon of the application.
25 We scheduled this prehearing conference to provide the
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4 1 participants with an opportunity to make oral presentations 2 on the issues of the petitioners' standing to intervene and 2 3 the admissibility of their 90 proffered contentions.
4 Before we begin hearing the parties' preser. cations on 5 theses matters, I would like to introduce the members of the d Atomic Safety and Licensing Board.
7 To my right is Dr. Jerry R. Kline. Dr. Kline, an 8 environmental scientist, is a full-time member of the Atomic 9 Safety and Licensing Board Panel.
10 To my left is Dr. Peter Lam. Dr. Lam, who is a nuclear 11 engineer, also is a full-time member of the Panel. ~
12 My name is Paul Bollwerk. I'm an attorney, and I'm 13 chairman of this Licensing Board.
14 At this point, I'd like to have the representatives or h
15 counsel for the parties identify themselves for the record.
16 Let's go ahead and start with the representatives for the 17 various petitioners and then move to counsel for the 18 applicant Private Fuel Storage, and finally to NRC staff 19 counsel.
20 Why don't we just start at this side of the room, if we 21 could.
22 MS. BELILLE: My name's Jean Belille, and I'm 23 representing Ohngo Gaudadeh Devia.
24 MR. LATER: Michael Later, representing the Castle Rock 25 petitioners.
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(N 1 MS. CHANCELLOR: Denise Chancellor. Diane Curran on my
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2 left, Fred Nelson on my right, representing the State of f
3 Utah.
4 CHAIRMAN BOLLWERK: Next we're on this side of the L room.
6 DR. WILSON: Richard Wilson representing a group of ad-7 hoc super scientists.
8 MR. QUINTANA: Danny Quintana for the skull Valley Band 9 of Goshutes.
10 MR. KENNEDY: John Kennedy on behalf of the 11 Confederated Tribes of the Goshute Reservation.
12 CHAIRMAN BOLLWERK: All right.
13 MR. SILPERG: Jay Silberg. With me, Ernest Blake and I 14 Paul Gaukler, representing Private Fuel Storage, L.L.C.
15 Also here-today is-the chairman of the board of managers of
! 16 Private Fuel Storage, John Parkin; project manager Scott 17 Northard, atA the project director, John Danell.
18 MR. TURK: Good morning, Your Honor. Sherwin Turk for 19 the NRC staff.
20 To my right is Ms. Catherine Marco, also representing 21 the staff. And we have with us today the project manager, 22 Mark Delagati, and other persons from the NRC staff.
23 CHAIRMAN BOLLWERK: Let me just check with our court 24 reporter. Are we getting everything all right in terms of 25 volume?
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6 1 Okay. Make sure you speak into the microphones; all 2 right? If we need to, you may need to point that a little 3 bit your direction. j 4 MS. CHANCELLOR: Judge, I forgot to mention to you, and 5 I'm corry. Dr. Nelson, the head of the Department of 6 Environmental Quality.
7 CHAIRMAN BOLLWERK: All right.
8 MR. QUINTANA: Your Honor?
9 CHAIRMAN BOLLWERK: Yes.
10 MR. QUINTANA: I'd also like to introduce the Honorable 11 Leon Bare, the chairman of the Skull Valley Band of 12 Goshutes, and some of his assistants.
13 CHAIRMAN BOLLWERK: All right.
14 I would note that the presentations to the Board during 15 this prehearing conference will be limited to the 16 participants that have just identified themselves.
17 If any of these petitioners subsequently is found to 18 have standing, and to have submitted one or more litigable 19 contentions, the Board will issue a notice of hearing that, I in accordance with 10 Code of Federal Regulations S 22 2.715(a), will afford members of the public an opportunity 22 to provide written, or as appropriate, oral limited 23 appearance statements on the issues. The Board will issue a 24 further notice outlining the times, places, and conditions 25 of participation in the event the Board provides an ANN RILEY & ASSOCIATES, LTD.
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7 t opportunity for oral-limited appearance statements.
2 I would also note that yesterday the Board conducted a 3- visit to various places in the area that the participants 4 have identified as relevant to this proceeding. The Board 5.
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..found the' site visit very informative. We would'like to 6 ; express our thanks to the'various participant
! 7 representatives who made-presentations explaining the i- 8 significance of the sites we visited; to Colonel Como and S the staff of the Dugway Proving Grounds for providing an 10 . informative tour of the English Village; to the-State of .
11 Utah for arranging. transportation for the group; and to the 12 Skull Valley Band of.Goshute Indians for providing our group 13 with what was a very tasty luncheon.
14 As to the order of presentation by the participants in i 15 this prehearing conference, unless the participants have
- 16 some other suggestion, in accordar.ce with our January 21,-
17 1998 memorandum and order,'we: propose to begin by discussing 18 the issue of standing, specifically the standing of the i 19 fpetitioners-. Confederated Tribes and Mr. Pete, which still is
- 20 .being contested.
'- -21 Because the burden. wrists -- rests rather with the l, 22 petitioner on the issue of standing,'we first will let the
[ -23, counsel for the Confederated Tribes and Mr. Pete briefly I
24' address this issue, followed by counsel for the applicant,
- 25' counsel for the Skull Valley Band, which, at least according i;
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8 1 to the last filing we received, still opposes the 2 intervention petition of the Confederated Triber and 3 Mr. Pete, and finally staff counsel. Counsel for the 4 Confederated Tribes and Mr. Pete will then be afforded a 5 short opportunity for reply. Thereafter, we will discuss 5 briefly some other standing issues.
7 We would then move on to the petitioners' proposed 8 contentions, using the same order of presentation, with 9 initial comments by counsel for the petitioner that 10 sponsored the contention. As the participants are aware, 11 the Board has provided a listing that groups the various 12 contentions into four subject matter areas: safety, 13 environmental, emergency planning, and other.
14 This grouping was not intended to limit the scope of 15 any participants' contention, but rather to try, based on 16 what we perceived as the contention's primary focus to 17 gather related contentions so that we can deal with the same 18 subject mctter at one time and gain a better understanding 19 of the similarities and differences between the petitioners' 20 contentions.
21 As we noted in the January 21st issuance, within each 22 general category we will first go through the State of 23 Utah's contentions in the order they have presented them, 24 with the understanding that counsel for the other 25 petitioners will, following presentations on an individual ANN RILEY & ASSOCIATES, LTD.
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9 1 State contention, be prepared to identify and discuss any.
2 related contentions they may have and identify for the. Board 3 how their contention is similar to or different from the 4 State's contention.
5 It also should be noted that we will not be discussing 6 the substantive claims of the State of Utah with regard to-7 the admissibility of its contentions EE through GG, and its 8 nine contentions regarding the Private Fuel Storage facility
-9 physical security plan, matters that likely would involve
-10 the discussion of non-public proprietary or protected 11 safeguards information. Instead, the State will be given 12 the opportunity to file a written _eply regarding the u 13- substance of the admissibility of those contentions. 4 14 With respect to those contentions, however, assuming it 15 does not require the discussion.of proprietary or. safeguards 16 information, we will entertain arguments on two procedural 17 issues'that have-arisen, the State's compliance with the 18 five late filing factors of 10 Code of-Federal Regulations 19' S 2.714 (a) (1) relative to its contentions FF through GG, and ,
-20 .the credentials of William J. Sinclair1to support the
-21 . State's' security plan contentions.
22 Do any of the counsel representatives have any comments 23 on this order of presentation?
24- All right. Hearing none, then we'll use that as our 25 basic framework and work with it as we go along.
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1 All right. Let's then begin with the presentation by 2 counsel for the Confederated Tribes and Mr. Pete rege.rding 3 their standing.
4 MR. KENNEDY: Thank you.
5 Might I just say with respect to the site visit 6 yesterday, we actually did not visit the site. The site was 7 located approximately two to three miles from the highway, 8 We viewed the site from the highway. The visibility was 9 excellent, but we could not actually get to the site. And I 10 think that that's an important distinction.
11 My nume is John Kennedy. I'm here on behalf of the 12 Confederated Tribes of the Goshute Reservation and David 13 Pete, who is the chairman of that tribe, 14 We have submitted to all counsel and to the Board and 15 to staff a statement of our belief that we have standing.
16 There have been responses submitted by interected parties 17 and there have been supplementations made to the original 18 filings.
19 My observation, Your Honor, is that all parties are 20 reading and studying these documents thoroughly. In the 21 interest of time, I would be available to answer questions 22 from the panel as well as other counsel, but we would stand 23 on our submissions.
24 CHAIRMAN BOLLWERK: All right, sir.
25 Anyone have any questions of Mr. Kennedy?
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1 All right. 'Perhaps when we come back-to the reni f we 2 may have some questions given the statements by the other -
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3 parties. Okay?
4 Let's see, I think, Mr. Silberg, did I mention you t
5 next?--
6 MR. SILBERG: We don't believe that the Confederated 1 -
7 Tribes have made an adequate showing that they have standing l
8- in this proceeding. They have a tenuous chain of
, 9 participation, if you-will, through the organization, the I 10 tribe.
) 11 They-'have a member who states to be the legal guardian p 12 of a three year old who occasionally visits the Skull Valley 13 Band. Both the child-and the guardian live on the 14 Confederated Tribes Reservation some 70 miles away. We 15 believe that this chain of causation is too' tenuous; that 16 the visits are not frequent and~ regular enough. We 17 understand that the child has not' visited the reservation 18 since late' October of;this year. There is no indication of 19 when the child will next visit the reservation.
l 20 Under the supreme court-cases on standing, the Luhan 21' case which we have cited, the fact that people have visited 12 2 : projects,-the area-of projects in the_past, as-the-supreme 23 court said, proves nothing.
f 24 "The affiant's profession of an intent to return to the
. 25' . places they visited-before is simply not enough." I'm
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12 1 quoting from page 564, 504 U.S. Reports, Luhan v. Defenders 2 of Wildlife.
3 "A plaintiff claiming injury from an environmental 4 damage must use the area affected by the challenged activity 5 and not an area roughly in the vicinity of it. Also from 6 that same case.
7 We think that the chain of causality, as the supreme 8 court said, has been stretched beyond the breaking point; 9 and we simply don't see that prior occasional visits and 10 none in the last three months, to our knowledge, are 11 adequate for standing in this case.
12 CHAIRMAN BOLLWERK: All right, sir.
13 Mr. Quintana.
14 MR. QUINTANA: Your Honor, we challenge standing in 15 this case for a variety of reasons, all of which have been 16 noted in the pleading, the small pleading that we filed.
17 The reservations that exist under federal law are, in 18 this instance, completely separate and identifiable 19 governments. The Skull Valley Band of Goshutes has a 20 separate federal tax number, ID number rather, than the 21 Confederated Goshutes.
22 And if I could submit this map for part of the record 23 from the map from this exhibit that I would like to submit, 24 the reservations are a substantial distance apart. In 25 addition to three mountain ranges, there is a major desert ANN RILEY & ASSOCIATES, LTD.
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(N 1 between them and a federal facility. To travel by highway
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2 is at least 180 miles.
3 The reservations, the two governments are independently 4 elected of each other. Members of one reservation do not 5 vote in the internal matters of the other reservation. Both 6 report to separate agencies within the Bureau of Indian 7 Affairs.
8 In addition, previously the Confederated Goshutes 9 acknowledged that the rights of the Skull Valley Goshutes 10 did not apply to rights in the Confederated Goshutes, and 11 cited a Mr. Leon Bare and his brother for a hunting 12 violation on the other reservation. Reciprocity being what 13 it is, if rights do not apply on one reservation, then 1 [jh i
14 certainly they do not apply on another one.
15 In this instance, to allow the standing of a tribe chat 16 is separate and identifiable as a government from another 17 tribe and is very far away, would create a precedent where 18 challenges to nuclear facilities, to licensing facilities, 19 and challenges to administrative facilities could be brought 20 by the most tenuous of claims.
21 The political motivations for filing for intervention 22 in this instance I think speak for themselves. I think that 23 if the affidavits of the Confederated Goshutes are closely 24 scrutinized, and those individuals are examined, I think ,
25 this honorable body will find that those affidavits will C N.
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14 1 probably not be held up.
2 There are eight reservations in Utah, and there are --
3 they are all separate and identifiable governments. The Ute 4 tribe, which is in the northeast section, has not applied 5 for intervention herein, nor have the Piutes or the 6 Northwestern Shoshones.
7 For historical reasons, most of the tribes in a 8 geographic area are related somewhat by language and at 9 times by blood, but they are still separate governments l 10 nonetheless. And because of the sovereignty of each 11 government and the need for having internal control in the 12 land of each government, I would ask this honorable body to 13 not allow standing to the Confederated Goshutes.
14 CHAIRMAN BOLLWERK: All right. Lee. me just check. Are 15 there any other intervenors who have anything they want to 16 say? If not, I'm going to go to the stand.
17 MS. CHANCELLOR: The State would, Your Honor.
18 First, a point of procedure. We understood that this 19 was an oral presentation to the Board, and Mr. Quintana has 20 suggested that an exhibit be introduced.
21 CHAIRMAN BOLLWERK: Right.
22 MS. CHANCELLOR: And that has --
23 CHAIRMAN BOLLWERK: I just, I'd speak to that. We have 1
24 a number of maps in the record already that shcw the 25 relationship of all the different, the trf.bes. If it's not ANN RILEY & ASSOCIATES, LTD.
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15 1 - really necessary, we'd probably-not want to add that. It's O- 2 up to you, sir. If you insist, we'll take it, but I don't 3 think it's really necessary.
4 MR. QUINTANA: That's fine, Your Unnor.
~5 CHAIRMAN BOLLWERK: -Given the state of the record.
6 Does that take care of that problem?
4 7 MS. CHANCELLOR: -That's fine. We were just concerned a with not having it served on us.
-9. CHAIRMAN BOLLWERK: Sure.
10 MS. CHANCELLOR: - Secondly, we support the petition of 11 the Confederated Tribes of the Goshute Reservation. We 12 believe that they have made their arguments with respect to 13 standing. And in any event, the Board has the discretion to l' h
.14 allow the Confederated Band in as intervenors. I-think that b 15 _they would be able to raise issues that would not be raised 16 by the other petitioners. So the State does support their 17 petition.
18 CHAIRMAN BOLLWERK: All right.
19 Anyone else?
20 Mr. Turk, I'm sorry. I kind of-slipped one in there,
-21 but it's your-turn this time.
22' MR. TURK: No, that's fine. Thank you, Your Honor.
23 The staff would like to begin first of all by noting 24 that there has been a succession of pleadings addressing the 25 standing of the Confederated Tribes and Mr. Pete. Let me T
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16 1 address one narrow issue before addressing the broader and 2 more difficult issue.
3 Never, in all of the filings by the Confederated Tribes 4 and Mr. Pete, was Mr. Pete's individual standing addressed 5 or established. So we'd like to separate that out as an 6 issue that can be easily addressed and dealt with by the 7 Licensing Board.
8 In the absence of any showing of individual standing by 9 Mr. Pete, and there has been none, he clearly does not have 10 standing to participate on an individual basis, and his 11 petition should be denied without any question.
12 Coming to *he question of the Confederated Tribes, 13 initially a petition was filed by the Confederated Tribea, 14 with Mr. Pete also, in August of '97, to which the staff 15 applicant responded. A further filing was made by the 16 Confederated Tribes in October of '97, to which the 17 applicant and staff responded. And then again in December, la following the filing of those responses, a further 19 supplemental memorandum was filed by the Confederated 20 Tribes.
21 In the first two filings by the Confederated Tribes, 22 there was no showing whatsoever that the tribes, as 23 organizations, had standing to participate in this 24 proceeding. As Mr. Quintana has stated and as the Board is 25 aware, the tribes are physically separated by a distance of sNN RILEY & ASSOCIATES, LTD.
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17 y "'S 1- some 60 ors 65 miles. They are separately chartered.and 2 recognized Indian tribes. The rights of one tribe do not 3 accrue to the other tribe.
4' 'The confederated Tribes initially nade a claim that 5 there was an aboriginal right which established their 6 etanding on the grounds that they had at one time roamed the- .
7 entire section of Utah which encompasses both the skull-8 Valley Tribe as well as a much broader area.
9 That-we believe is easily dealt with by-the recognition 10 that they are now separately recognized tribes by act of the 11 U.S. Congress. Each has its own reservation, and it is on-i 12 those reservations that their rights are established.
13- The only basis upon which the Confederated Tribes may' 14 -establish their standing here today is in a representational 15 capacity. And that is they would have to show that there-
.16 was some member _of their organization who has standing and 17' who has-authorized them to represent his or her interests in !
18 - the proceeding.
19 In the last filing of December of '97 they attempted to 20- make that showing. And-what they-relied upon were the 21 affidavits of two individuals, Cassandra Reid and Genevieve 22 Fields.
23 The Fields aff_ davit was nonspecific, and did not 24- establish that she has interests which could be affected by 25 the proceeding.
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18 1 The Reid affidavit, on the other hand, established that 2 Ms. Reid is the grandmother of a little girl who stays with l
3 relatives on the skull Va) ley Reservation from time to time.
4 I'll come back to that issue in a second. And also that
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5 Ms. Reid her.nelf drives the little girl to the Confederated l l
6 -- I'm sorry, to the Skull Valley Reservation, and from time 7 to time herself is present at tie Skull Valley Reservation.
8 In addition, Ms. Reid states that she makes the drop-9 offs of the little girl at a location close s the Rally 10 Junction inter-transfer point, and is present at that 11 location on various occasions.
12 The sole issue that is before you now with respect to 13 standing for Confederated Tribes is whether the contacts 14 which have been established by Ms. Reid and her 15 gra.'d.daught er , whom she represents to be her legal ward; she 16 states that she is the legal guardian for the little girl.
17 You have to determine whether those contacts are sufficient 7a to establish standing for either the little girl or the 19 grandmother. And if so, look to see whether there is 20 authorization. And then if there is authorization for the 21 tribe to represent the individuals, you can reach a finding 22 of standing for the tribes on a representational baeis.
-23 There is not a clear and convincing statement of 24 standing on behalf of either the little girl or Ms. Reid.
25 On balance, however, as we stated in our responses of ANN RILEY & ASSOCIATES, LTD. '
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])"'S 1- January 14, 1998,.we think the balance has tipped so that
-/ 2 you can find standing for both the grandmother and the j 3 granddaughter.
4 - I would note, however, that as we pointed out in our 4
5' pleading, the contacts rhich_are described by Ms. Reid in I L 6 her declaratien are contested in the declaration of her
.7 cousin,-Arleene-Wash, who is a member of the Goshute Tribe.
8 So you must look at the evidence presented by both the 9 Confederated Tribes and by the Skull Valley opposition to e 10 determine if the contacts are substantial.
11 - In sum, what those-contacts show is that either
{- 12 approximately 8 to 10 times a year, as stated by the L 13 Confederated Tribes, or-3 or 4 or more -- and that's not
- f 14 defined, the a or more" is not defined;-either the 8 to 10 or 15 the 3 or 4 or more times is the number of times that the
- 16 little girl stays at the Skull Valley Reservation.
! 17 . Similarly, you have a conflict of evidence right now in 18 these two conflicting affidavits or declarations _as to the-
- . 19 number of times that Ms. Reid herself comes to the Skull 5
20 : Reservation. She makes a statement that it's-a larger 21 number of instances. That is disputed by the declaration of 22 Ms. Walsh.
23 on balance, if you look at the statements by Ms. Reid 24 and you give them credence, we believe that you can find 25 standing for the Confederated Tribes. But there is that
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20 1 conflict of evidence, and that is something that would have 2 to be resolved by the Court.
3 CHAIRMAN BOLLWERK: All right. Is that it, Mr. Turk?
4 Mr. Kennedy.
5 MR. KENNEDY: Thank you, Your Honor.
6 I think the representations made by counsel seem to me 7 to be generally accurate. There are some things that I 8 think we ought to comment on, however.
9 First of all, with respect to no visits having been 10 made since October. I believe that is true. They happen --
11 the cut-off of the visits was by the folks at Skull Valley 12 following the filing of the initial declaration in this 13 natter.
14 We believe that the fact that, as a litigation tactic, 15 the Skull Valley people may have, or the individual involved 16 may have terminated the visits shouldn't be relevant as tar 17 as the -- this proceeding and the petitlen to intervene.
18 We have sort of glossed over, I think also, the entire 19 history and long-standing interrelationship of these two 20 groups. And we've tried to focus, I think, on some rather 21 specific currenc events that are taking place. And we would 22 submit that it's important for the Board to consider the 23 long-standing interrelationship of these two groups.
24 And the fact that they have, I think as was said during 25 the site visit yesterday by one of the individuals speaking, ANN RILEY & ASSOCIATES, LTD.
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/ I common grandmothers in instances. There have been
(
2 representations about burial grounds on the reservation that 3 are used and visited. There have been representations made 4 in the affidavits regarding religious practices that have 5 taken place on both reservations, participated in by both 6 people.
7 Also, we've pointed out the constitutional provisions ,
8 that existed with the Confederated Tribes until relatively 9 recently, in the last 10 years or so, where members of the 10 Skull valley Band were in fact allowed to enroll at Goshute.
11 The aboriginal area, which includes both reservatione 12 and the site and significant territory surrounding this --
13 both reservations, according to the Indian Claims
[ 14 Commission, was taken from the Indian people back in the A
15 1870 time frame. I might point out, however, that people in 16 both tribes don't recopaize the fact that their lands wera 17 taken. Legally that may have happened, but I think that 18 people from a day-to-day standpoint do not recognize that.
19 And I have peraonally had conversations with 20 Mr. Quintana, who is a member, or who is the counsel for the 21 Skull Valley Band, regarding efforts to establish hunting 22 and fishing rights beyond the reservation boundaries.
23 So I think that all of :hese matters, taking into 24 consideration the long-standing incerrelationship, the blood 25 relationships and so forth between these people, support our
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22 1 petition to intervene.
2 Cassandra Reid is a member of the tribal council. She 3 is the person who has been referred to as the grandmother in 4 this instance. She attended the site visit yesterday and 5 has participated in all the discussions and so forth 6 regarding this matter, and has pointed out that when she has 7 taken her grandchild to the reservation, or when the child 8 has been picked up at Rally Junction, that those visits 9 aren't just shorts visits; that they may be for one or two 10 days or longer periods of time, up to a week tr longer even.
11 So we would submit that there is significant contact there 12 and that it ought to be sufficient to establish our efforts
! 13 to intervene.
14 With respect to Mr. Pete, he has asked to intervene as 15 chairman of the tribe. And that is his role, not 16 individually but as chairman in that capacity. And that 17 would be my response. Thank you.
18 CHAIRMAN BOLLWERK: Okay. Does the record indicate 19 this in any way. Has the granddaughter been seeing her 20 mother since October? I don't, I mean I understand she's 21 not been -- what I've heard is that she's not been allowed 22 onto the Skull Valley Reservation. Has --
23 MR. KENNEDY: Your Honor, I don't believe it's her 24 mother. I believe she stays there with another relative.
25 CRAIRMAN BOLLWERK: Another relative, I'm sorry.
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23 1 MR. KENNEDY: That's right.
\- 2 CHAIRMAN BOLLWERK: Has the other relative gone to the 3 Confederated Tribes area to see the young woman, or --
4 MR. KENNEDY: I have no knowledge of that. I would 5 suspect not, Your Honor.
6 CHA1RMAN BOLLWERK: Okay, 7 MR. KENNEDY: But I have no knowledge.
8 MR, SILBERG: Judge Bollwerk?
9 CHAIRMAN BOLLWERK: Yes.
10 MR. SILBERG: Excuse me. I would like to make a few 11 comments on Mr. Kennedy's statement, if I could do it now or 12 at another appropriate time. I don't know what your order 13 of proceeding is at this point.
[
"N 14 CHAIRMAN BOLLWERK: Can you make it short?
15 MR. SILBERG: Make it very short.
16 First, as to discreticaary intervention --
17 CHAIRMAN BOLLWERK: I saw you, Mr. Quintana, by the 18 way, so --
19 MR, SILBERG: Yeah. The Contederated Tribes have made 20 no showiag that they comply with the standards of the 21 E.ebbles PlaiD a case in their own pleadings, an I don't 22 think that the State of Utah can raise that on their behalf.
23 With respect to the alleged cut-off of visits by the 24 Skull Valley people, my understanding is that is false 25 statement. And we would be prepared to put on, as a witness
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24 1 on this issue right now, a member of the Skull Valley Tribe 2 who previously gave a declaration in this matter to state 3 that for the record.
4 The child has not been brought to the skull Valley 5 Reservation, but that is not because those visits have been 6 terminated by the Skull Valley Band or any member of the 7 Skull Valley Band.
8 CHAIRMAN BOLLWERK: All right. Anything else?
9 I don't think we need to get a witness, 10 Mr. Quintana.
11 MR. QUINTANA: My client would not use children for 12 political purposes or to gain a advantage in legal 13 positions, and I resent the implication tbat this child, 14 this very minor child was used for that purpose. It is j 15 blatantly not true.
16 CHAIRMAN BOLLWERK: All right, Mr. Kennedy, I'll give 17 you one last word, briefly, sir, if you want to say 18 anything.
19 MR. KENNEDY: No , nothing further, Your Honor.
20 CHAIRMAN BOLLWERK: Okay.
21 All right. We'll take it under advisement and we'll 22 issue a ruling and --
23 MR. TURK: May I make one last comment, Your Honor?
24 CHAIRMAN BOLLWERK: Sure.
25 MR. TURK: I'm sorry to intervene in your order of ANN RILEY & ASSOCIATES, LTD.
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25 y'^s 1 proceeding.
-- 2 One thing that we didn't address is the question of 3 burden of proof. As the proponent of standing, it is 4 incumbent upon the Confederated Tribes to establish it.
5 Here you do have conflicting infcrmation with respect to the 6 number of visits by the little girl to the reservation, as 7 well as with respect to the number of times that Ms. Reid 8 herself comes to the reservation.
9 In your decision on standing, you'll have to consider 10 whether the burden itself has been satisfied by the 11 Confederated Tribes.
4 12 DR. KLINE: Mr. Silberg, is it your view now that, as 13 to the future, there will be future visits likely by the
[ ') 14 child to Skull Valley Reservation?
15 MR. SILBERG: On our knowledge and belief, it is our 16 information that the member of the Skull Valley -- of the 17 Confederated Tribes has indicated that the child will not be 18 visiting, but that.was a not -- that was not a decision by a 19 member of the Skull Valley Band.
20 CHAIRMAN BOLLWERK: It sounds like we're really outside 21 the record here, so I --
22 Mr. Kennedy, I still want to offer you the last word, 23 if you have anything you want to say in respcase to 24 Mr. Silberg.
25 MR. KENNEDY: That was not my understanding. My
(~\
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26 1 understanding is that the grandmother has taken the child to 2 the reservation whenever the grandmother has been out of 3 town on tribal business. And that would be her intent in 4 the fur.ure, as well as in the past.
5 I think the fact that Cassandra Reid from the Skull --
6 from the Goshute Reservation filed the affidavit that she 7 did created some animosity on behalf of the Skull Valley 8 person and they have to resolve that problem. But the 9 4..:ent would be to continue those relationships as they have 10 in the past.
11 CHAIRMAN BOLLWERK: All right. I think we'll take that 12 issue under advisement and we'll, as I say, issue a ruling 13 in due course.
14 The other standing issue that I'm aware of, my 15 understanding is that there was no objection to the standing 16 of any of the other parties. Is that correct?
17 MR. TURK: That's correct.
18 CHAIRMAN BOLLWERK: With the exception, I should say, 19 the objections of Mr. Wilson we'll deal with in a second.
20 We haven't really talked about any. But is that -- am I 21 understanding correct in that regard?
22 MR. TURK: Yes, sir.
23 CHAIRMAN BOLLWERK: Terms of the State and OGD and 24 Castle Rock and the -- all right.
25 Mr. Wilson, the petition that your group filed came in ANN RILEY & ASSOCIATES, LTD.
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1 -last week, I believe by -- we received a copy by e-mail.
2 That's how I heard. And it came to my office, the secretary 3 didn't received it. It's been officially received and 4 ' docketed back in Rockville, so you're now -- your petition 5_ is officially Defore the Board.
6 The normal order of proceeding would be allow other '
7 parties to file answere to that petition. You've already 8 filed at lesst one amended version of that petition. Do you 9_ have any inkling or intent to amend that petition at any 10- other point before we would have answers filed by the other 11 parties at_this point?
12 DR WILSON: Yes, Your Honor. There are two things I 11 3 would like to say right now.
14 There was a --~in view of the fact we've only been 15 aware of this particular department, at least I've only been 16 aware of_this particular department moderately recently -and 17 the-Atlantic Legal Foundation has only been approached la recently, although one of the problems with a group of 19 people is finding out whether there wac conflict of 20 interest.
21' One of the initial petitions is Mr. Manny Munsey, has 22 found in an obscure part of his law firm-there's a 23 possibility of conflict of interast. So he was having to 24 withdraw from that petition. There are one or two other-25 people who have been searching for conflict of interest and Ns ANN RILEY & ASSOCIATES, LTD.
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28 l I have now agreed to be on the petition, and I will provide i 2 you with a list of that very shortly.
3 And in particular, there are several people still in 4 the state of Utah. And it's quite obvious that anyone in 5 the state of Utah is quite likely to be -- who is any 6 professional competence, to be involved in some conflict 7 way. And they are searching for that, for that particular 8 matter, and I'll know by the end of the week.
9 L'id so I've not been able to provide the names of those 10 people. Ard. -- in that matter. But otherwise, we have no 11 particular desire to amend the petition any particular way.
12 The Atlantic Legal Foundation will be the formal legal 13 representation.
14 Atlantic Legal Foundation has been involved for the in last sax years in the role of making sure that accurate 16 science in the courts has been -- is involved, including six 17 Amican -- before the supreme court.
18 This will be amended no later than the end of the week.
19 CHAIRMAN BOLLWERK: End of the week. What I'm trying 20 to avoid is having the parties start shooting at a moving 21 target here.
22 DR. WILSON: I understand that, yeah.
23 CHAIRMAN BOLLWERK: So it sounds like by the end of the 24 week, let's say, be generous here and say Monday?
25 DR. WILSON: Monday mornin~ aat will be a proper, ANN RILEY & ASSO; ATES, LTD.
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29 l 1 accurate list of-petitioners. And I will make sure.that k- 2 that's delivered at the executive's office.
3 CHAIRMAN BOLLWERK: Okay. Now do you, sir, are you 4 going to be - you're going to be filing this from -- you're 5 from Boston. Is that correct?
6 DR. WILSON: Well, I'm not quite sure which would be 7 particularly most avocet for the Board._ I will be the [
8' person who is the spokesman from-the group, but the Atlantic 9 Legal Foundation will be formally legally involved. ,
'10 CHAIRMAN BOLLWERK: Right.
11 DF. WILSON: And whether it is quite proper for the Board for the legal foundation to be involved or myself to 13 be the formal filer, for that I would seek, I would have to 14 seek guidance.
15 CHAIRMAN BOLLWERK: I guess my question is how and when 16 are we going to receive a copy of this petition? I guess 1
17 that's the bottom line here. You're saying what, by Monday, la by at least e-mail, as you did before, we will all receive a 19 copy ofLthat?
20 DR. WILSON: By e-mail, almost certainly by the end of 2: -- by Sunday night by e-mail. If people-haven't consulted 22 thei; conflict of interest by Sunday, they'll obviously no 23 longer add to the petitioners and there's no other change in 24 petitioners as well.
l 25 CHAIRMAN BOLLWERK: All right. Let's say this then. ,
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1 30 l 1 That by 4:30 Eastern time on Monday you will have in our 2 hands and in the hands of the other parties here, by e-mail, 3 or fax if for some reason e-mail doesn't work, a copy of 4 your amended petition with -- listing whomever your 5 individual petitioners are, as well as the Atlantic Legal 6 Foundstion.
7 DR. WILSON: Definitely.
8 CdAIRMAN DOLLWERK: I would also appreciate it if the 9 Atlantic Legal Foundation would enter a notice of appearance 10 in terms of their counsel. It's in the rules and they need 11 to do that so we know what attorney we're dealing with.
12 DR. WILSON: That we can do. That we can do.
13 CRAIRMAN BOLLWERK: All right. And that would be a 14 good idea if that were done Monday as well.
15 DR. WILSON: That will be done at the same time.
16 CHAIRMAN BOLLWERK: All right. And of course still 17 have to comply with the rules in terms of filing a paper 16 copy with the office of the secretary and serving everybody 19 else.
20 DR. WILSON: Yeah. They will be -- I will make sure 21 those are hand delivered to the office of the secretary on 22 Monday morning.
23 CHAIRMAN BOLLWERK: Okay.
24 DR. WILSON: Because one of our petitioners, as you 25 know, is in a Washington law firm.
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31 C 1 CHAIRMAN BOLLWERK: Okay.
2 MR. QUINTANA: The Skull Valley Band of Goshutes would 3 stipulate to the standing, and encourage the admission and 4 acceptance of the intervention of the Atlantic Legal 5 Foundation and these nobel laureates and prominent
~
6 scientists.
7 CHAIRMAN BOLLWERK: Okay. Well, there's one yes, but 8 we have a lot of-other people we have to hear from.
9 The -- assuming that everybody has a copy of this by 10 COB Monday, what are we looking at in terms of response l 11 times?
12 I take it you're basically talking about adding names?
13 DR. WILSON: Adding names. And hopefully I won't 14 subtract anymore.
O 15 CHAIRMAN BOLLWERK: Okay. One thing I've noticed in 16 the petition is we don't have many addresses. Is that a 17 problem for peoplv in terms of --
18 DR. WILSON: ' will make sure the addresses --
19 CHAIRMAN BOLLWERK: Because I think we'll --
20 DR. WILSON: -- will be all on there.
21 CHAIRMAN BOLLWERK: At least in terms of the 22 individuals, I don't want to start arguing your case for you 23 here, but in terms of the individuals, that may have some 24 significance to people. Am I correct in that respect?
25 MR. BLAKE: Yes, Your Honor.
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32 1 CHAIRMAN BOLLWERK: Okay. So why don't you make sure 2 that we get a list, the people that you list, they also have 3 their residence where they -- all right, so we know where 4 they're at. Because you mentioned there's someone from 5 Utah. Now I don't even know who that is. I don't think 6 there's ever been a listing of the address, so -- all right?
7 Then in terms of response time, how much time do anyone 8 else need? Ten days, two weeks? Ten days enough time?
9 MR. SILBERG: More than enough.
10 CRAIRMAN BOLLWERK: If we look at Monday. How about 11 Thursday the 12th? Any problem? Too much time?
12 MR. LATER: Your Honor, we would request two weeks, 13 just for some caution, because we haven't seen the petition.
14 We don't know what's there or that we'll have to respond to, is one way or the other.
16 MR. SILBERG: Judge Bollwerk?
17 CHAIRMAN BOLLMERK: Yes.
18 MR, SILBERG: I guess there's an initial question, is 19 who has the right to respond since none of the other 20 petitioners are yet parties.
21 CHAIRMAN BOLLWERK: There, at this point, we've been 22 allowing answers basically for and against any petition 23 that's come in. So why don't we proceed on that. Anyone 24 that wants to file a response to this petition, feel free to 25 do so. We'll be glad to hear from you. Although obviously ANN RILEY & ASSOCIATES, LTD.
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33 1 just, we'll just accept answers from anybody in response to 2 thems all right?
3 MS.' CHANCELLOR: I think we would like two weeks too, l 4 Your Honor, because we have some other contentions we need 5 to respond-to.
6 CHAIRMAN BOLLWERK: You have some time scheduled on the 7 liths right? '
8 MS. CHANCELLOR: That's right.
9 CHAIRMAN BOLLWERK: All right. Why don't we make it 10 -the 13th-then. Let's also make that a close of business ;
11 date so that we get e-mail or fax by that, copy whatever 12 responses you have in favor or opposed to the petition L
13 Mr. Wilson's going to be providing us on Monday. All right?
i 14 Any-questions about'that? ;
15 Okay. And again, sir, the -- better to get the 16 Atlantic Legal Foundation, I suggest you probably file .
17 earlier rather than later.
18 DR. WILSON: Yeah, they'll be formally filed, j t
19- CHAIRMAN BOLLWERK: Okay.
20 .Anyone else have anything they want to raise on the 3 21 issue of standing?
22 Okay _ Why don't we go ahead then and move to the 23 question of contentions. And as I mentioned before, we have 5 24. 90 some contentions, although we're going to be hearing
-25 argument-, I think at least in terms of substance of them,
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34 1 only on about 80 of them.
2 MS. CHANCELLOR: Your Honor, if I may interject. Are 3 we going to do admissibility of contentions, in terms of the 4 legal standard? Are we going to address that?
5 CHAIRMAN BOLLWERK: In terms of an overview of the 6 legal stendard? I think we can deal with that on a 7 contention by contention basis.
8 MS. CHANCELLOR: Oh, okay. I misunderstood the other, 9 CHAIRMAN BOLLWERK: I think wt understand pretty well, 10 you know, the basic background and legal standards to get a 11 contention in, unless somebody has something in particular 12 they want to say on that subject.
13 MS. CHANCELLOR: I guess I'm a little unclear on 14 adoption by reference, and also rewriting the contentions.
15 CHAIRMAN BOLLWERK: Okay. Let's address that question 16 here. Let me just say something up front as well.
17 We mentioned in the order that we issued that we have 18 read all the pleadings here. So it's not necessary to sort 19 of go over the same ground as we go through these. It would 20 be a good idea to try to stick to new matter and emphasize 21 things if we can, because we would like to move this along, 22 as I'm sure all of you would as well.
23 In terms of the redrafting of the contentions, I 24 know -- you usually say it as an example. Some of the 25 redrafts you have seemed to agree to, others you do not. I ANN RILEY & ASSOCIATES, LTD.
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35 1 guess it's our feeling that if there's no objection to i
2 having -- to the redraft, that we're willing to accept that.
3 If there's an objection, then we'll simply stand on what was 4 originally filed.
5 Now-I think it was with OGD, you all filed some -- 1 6 think you redrafted a number of your contentions?
7 MS. BELILLE: Yes, Your Honor.
8 CRAIRMAN BOLLWERK: And again, I would say that if 9 people have redrafted them and you have an objection to 10 that, I suspect we're just going to stick with the original 11 contention at this point, unless they insist on it. But I 12 take it you are willing to stand on your original 13 contention?
\
[d 14 15 MS. BELILLE:
original contentions.
Yes, we are willing to stand on our 16 CHAIRMAN BOLLWERK: Okay.
17 MR. TURK: And we would object to the reformulation 18 because it would require us to go to a comparison of the two 19 documents to try to figure out what the differences are.
20 We'd prefer to rest with their original filing.
21 CHAIRMAN BOLLWERK: Okay. Now the State, for instance, 22 accepted some of Mr. Silberg's redrafts. Do you have a 23 problem with those?
24 MR. TURK: I won't object to that.
25 CHAIRMAN BOLLWERK: Okay.
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36 1 All right. So what we would propose to do then, unless 2 anybody has a problem with it, is if there's been some 3 agreement on a redraft of a contention that's been submitted 4 by Private Fuel Storage, we'll accept that. If there's been
, 5 any objection to it, we'll simply go with the contention as 6 originally .irafted.
7 MS. CHANCELLOR: Your Honor, in terms of acceptance of 8 the redraft, we would want it understood that the contention 9 as a whole stands as submitted.
10 CHAIRMAN BOLLWERK: Oke.y.
11 MS. C!!ANCELLOR : That we aren't just relying on 12 Mr. Silberg's redrafts. That for purposes of admissibility, 13 the entire contention and its basis should be reviewed as 14 submitted.
15 CHAIRMAN BOLLWEP.K: Now you're going back to saying 16 your contention as drafted is what you want. You know, I --
17 MS, CHANCELLOR: Well --
18 CHAIRMAN BOLLWERK: You have to -- you can -- let me 19 just see if Mr. Silberg wants to say something and I'll go 20 back to you.
21 MS. CHANCELLOR: Okay.
22 MR. SILBERG: Yeah. I don't have a problem with 23 certainly accepting any redrafts. The reason we attempted 24 to do that, and it was a very labor intensive process as you 25 know, was because we think that many of the contentions as ANN RILEY & ASSOCIATES, LTD.
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37 1
written are so vague and so general as to be virtually 2- unlitigable. And we have tried honestly to take the bases 3
as stated and reformulate them into an understandable 4 specific contention which we think meets the requirements 5 set forth in the Commission's rules of practice.
6 If the parties are not willing to accept those 7- redrafts, then obviously a lot of our criticisms as to the l 8- vagueness and lack of support for the extraordinarily broad 9 statements that the contentions make will have to be 10 considered by the Board. We were trying to make this all process a lot more sensible, a lot more easy to --as we '
12 proceed down the road. So we know what the issues are and 13 we're not left with a contention that says you haven't 14 considered accidents, when the bases may list three or four 15 specific accidents.
i, 16 If you go to the much broader issue, we can be here 17 forever. And while that may be the aim of some of the 18 parties, I don't think it's the aim of the Commission when E19 it created the_ rules of practice.
20- CHAIRMAN BOLLWERK: All right.
21 MS, CHANCELLOR: If I may. We understand that the 22 contention is limited by the basis that we present. And 23 Mr. Silberg has, in some instances, merely outlined the 24 basis and suggested that that should be the contention.
25 What we are saying is that the contentions that we have ANN RILEY & ASSOCIATES, LTD.
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38 i i submitted should be viewed in termri of the contention and 2 the bases as a whole. 1 3 CRAIRMAN BOLLWERK: Well, the bottom line I coess for 4 the Board is we have to have something that is stated as a 5 contention. And the question is do you want us to look at a 6 contention, the word, the language of the contention as you 7 originally filed it as your contention, or do you accept 8 Mr. Silberg's redraft of that language as the contention and 9 which you want to us to consider?
10 MR. SILBERG We -
11 MS. CRANCELLOR: Go ahead.
12 MR. SILBERG: We also think that the Board has the 13 power to reformulate the contentions to meet the rules of 14 practice consistent with the bases as laid out by the 15 parties in their pleadings.
16 CRAIRMAN BOLLWERK: Right. And we may well do that in 17 some instances. But I'm just trying to get a handle around 18 exactly what she wants us to consider at this point.
19 MS. CHANCELLOR: Well, recently there is factual basis, 20 factual information in the basis that props up and supports 21 the contention. So our concern is whether some of that 22 factual information has been taken out of context and put 27 into the contention. And we make a great effort to set out 24 why we think something doesn't meet the requirements of the 25 rule. And to have that brought up into the contention I J
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39 1 think is a little misleading.
-2 So I think we could agree that where we have not 3 opposed the rewrite of the contention, we would stand by 4 that, provided that the contention and the basis are treated 5 as a-whole.
6 CHAIRMAN BOLLWERK: Well, let me make it clear to you 7 what I'm going to do.
l 8 MS. CRANCELLOR: Okay.
l 9 CHAIRMAN BOLLWERK: And then you tell me how you would 10 like that.
11 MS. CRANCELLOR: Okay.
12 (Laughter) 13 MS. CHANCELLOR: Good idea.
14 CHAIRMAN BOLLWERK: When we list these contentions 15 there, we're going to have a thing that says contention and
-16 we will talk about the bases. In the instances, at least as 17 I understand it now, where Mr. Silberg has redrafted =the 18 contention, and you've not objected to it, I -- when it says 19 the word " contention," what is going to be there is the 20 contention with'the subparts to it. That is how your 21 contention will-read, and that is what -- the contention 22 that would be admitted if we were to do so.
23 So if you're comfortable.with that, that's what we'll 24 stick with. If not, we'll go back to the original language 25- that you-submitted as your contention.
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i 40 1 MR. SILDERG We will also try to work, during this 2 week and maybe even beyond, to see if we can't agree amongst 3 the parties. I don't know whether that's possible or not.
4 CHAIRMAN BOLLWERK: All right.
5 MR. SILBERG: But we will --
6 CHAIRMAN BOLLWERK: I have to say that this, the point 7 of making these issues as focused as possible, is important 8 to everyone here. We want to know what you want to 9 litigate. And I really encourage you to work on that. It's 10 important that --
I recognize everyone wants to keep their 11 options open here, but we have to know what's important to 12 you all and what you want to litigate.
13 MR. SILBERG: Okay. Well --
14 MS. CURRAN: Maybe I could help a little. My 15 understanding of what Mr. Silberg tried to do was to take 16 out of the basis assertions that, you know, there's a 17 general statement in the contention that X requirement isn't 18 met. And then there are various statements in the bases 19 that detail ways in which the requirement isn' t met ar.d then 20 support that subassertion with facts.
21 What I think Mr. Silberg did was took the various 22 subassertions and put them into the contention part of it.
23 I mean every contention has two parts, the contention and 24 the basis. And to me, it didn't seem like a big problem to 25 move those subassertions up. But you can't just read that ANN RILEY & ASSOCIATES, LTD.
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41 1- first part of the contention. You have to also read the 2 factual support for those assertions. l
.3 So that's why we're saying our contentions are going to j l
4 have to stand as a whole, even though if it's helpful to you '
5 to use those assertions that he drafted as kind of a-summary i 6 of what the contention 1s alleging, but-one still needs to 7 read the factual basis for those assertions.
8 CHAIRMAN BOLLWERK: So in other words, what you would '
9_ have us do is take his language and stick it on top of what 10 you listed as the bases, and we consider the --
11 MR. SILBERG: Let me make one more shot at it.
12 CHAIRMAN BOLLWERK: All right, t
13 MR. SILBERG: Then perhaps we can do some of this off-14 line. "
\
15 What we tried to do was take out, from the supporting 16 material, what the specific issues were that the parties 4 17 wanted to. litigate, all of which fell within the very broad 18 language, sometines extremely broad language of the, quote, 19 contention itself. For some of those subissues there were 20 factual matters. And for the most part at least, we.tried 21 not to put those into the con' > 1ons.
22 The Commission's rules ruraire that you have a specific E 23 contention. It also requires, in addition to that, that J
24- that contention be supported by bases, by facts, by-25 opinions. The facts and opinions don't need to be in the 1
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42 1 contention because those do not define what is the issue 2 which is to be litigated.
3 However, the contention and the subcontentions do 4 define what it is that we will be litigating during the 5 course of this process. And unless we make that 6 distinction, I think we're going to wind up with issues to 7 litigate that we're going to be arguing about forever as to what is their true scope. And our attempt was to define 9 that scope up front, at a time before we've all invested a lo lot of opportunity in discovery and testimony.
11 CHAIRMAN BOLLWERK: It would be my supposition, 12 wouldn't it, that once discovery starts, and if there are 13 any amended contentions, then one of the first questions is 14 going to be what is the scope of your -- and obviously the 15 Board is going to be very interested in looking at that if 16 it comes to a question later of wSat was the scope of this 17 contention. So let me put you on notice of that right away.
18 MR. SILBERG: That is exactly why we went through this 19 effort.
20 CHAIRMAN BOLLWERK: Okay. Well, we'll come back to you 21 one last time. I just, you have -- then I take it you have 22 no objection if we consider the contentions that you have 23 not objected to as being the statements that he has provided 24 with the subparts then? Those are what you want us to look 25 at as your contentions, with thc understanding that what ANN RILEY & ASSOCIATES, LTD.
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i 43
. \- /
'"} 1 you've listed then as your bases we should look at as well.
2 Is that --
3 MS. CURRAN: Right. We -- I mean we don't necessarily 4 want you to do it that way. We agreed to that as a 5 reasonable way. It seems to me not to make a whole lot of 6 difference, because the case law says your contentions are 7 limited to what's stated in your bases. So-the two parts 8 are very closely related.
9 But if it would make it any easier for the Board to 10 distinguish the issues, it's just very important not to 11 completely divorce the contentions from their bases.
12 CHAIRMAN BOLLWERK: All right. So we'll then take, the 13 ones you've agreed to, we will take those statements are 14 your contention, with the understanding that we need to look 15 as well at the information that you set out in the bases of 16 the original filing. All right?
17 Judge Lam, did you want to say something?
18 DR. LAM: Yeah. I have a remark on redrafting.
19 If everybody agreed to a redraft, the Board certainly 20 doesn't have any problem with that. But if there is an 21 objection, it's my view that that would create an 22 unnecessary controversy that does not advance the case here.
23 CHAIRMAN BOLLWERK: All right.
24 Anyone then have any other comments on at least the 25 language of these contentions? We're clear then on what
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44 1 we're going to do?
2 MR. LATER: Your Honor, I'd like to make one note, that 3 we would join with the State in their position. We have 4 tried to indicate where we thought that the redrafts by 5 Mr. Silberg's office were reasonable, but we've also 6 indicated in some cases where we disagreed with those 7 redrafts. And in those instances, we-certainly would expect 8 to stand on our contention as originally presented.
9 CHAIRMAN BOLLWERK: All right. That would be my 10 understanding. If you objected to the contention and you 11 wish to stand on the original language, then that's what we 12 will do --
13 MS. CHANCELLOR: In some --
14 CHAIRMAN BOLLWERK: --
at this point.
15 MS. CHANCELLOR: Excuse me. In some instances, I think 16 we were silent whether we accepted it or not. And I think 17 that we would like silence to say that we oppose the 18 rewrite.
19 CHAIRMAN BOLLWERK: All right. I will not take silence 20 as assent then.
21 MS. CHANCELLOR: Thank you.
22 CHAIRMAN BOLLWERK: All right. Anything else you want 23 to say?
24 All right. In terms of the question of incorporation 25 by reference, let's deal with that when we get down to the ANN RILEY & ASSOCIATES, LTD.
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45 fN 1 contentions under the other issues that we've actually --
2 we'll deal with that in a couple minutes, I think.
3 I guess at this point, why don't we go ahead and start 4 with, I think the first ones I listed here. And we're going 5 to start with other issues, then we'll move on to safety 6 issues, then environmental issues and emergency planning 7 issues.
8 Anybody have a problem with proceeding that way? That 9 seemed reasonable.
10 And again, when we put these as I mentioned earlier, 11 when we put these in a category, we were not necessarily 12 trying to narrow your contention. It was simply to get a 13 primary focus. You know, if you feel your contention has 14 both environmental significance so we need to make that 15 dual. I think most of you have made that fairly clear, in 16 some of the files that we've gotten.
17 In terms of, start with Utah. Contention A, question 18 about the statutory requirements.
19 I guess let me just make a preliminary comment. I have 20 little doubt that you have stated a legal contention for the 21 point. I don't think there's any question about that. I 22 think the question the Board needs answered is when we 23 consider, is this something that's includr4 under the rules.
24 And I guess that's what I would like you to focus on in your 25 presentation.
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46 1 MS. CRANCELLOR: Your Honor, I believe that the Board, 2 this is a fundamental question of whether this proceeding 3 should go forward, whether NRC has the authority to license 4 this facility.
5 If the Board feels that it does not have authority to 6 addrese this question, we request tnat the issue be set 7 aside and sent to the Commission for resolution. There's 8 absolutely no sense in proceeding if NRC does not have the 9 statutory authority to license the facility. We believe 10 there's adequate support in our contentions to show that NRC 11 does not have such authority.
12 CHAIRMAN BOLLWERK: Would your argument be the same to 13 un if the notice, the Statement of Considerations, the Part 14 72 when it was revised and adopted, had dealt with this 15 particular issue explicitly? Did it? I don't -- no one's 16 ever said that to us. I don't know that it --
17 So let's have the Commission -- if this comment was 18 made, exactly the point that you're making, had been made by 19 a comment to the rule. Would we -- would you be making the 20 same argument to us in terms of our ability to consider this 21 issue?
22 MS. CHANCELLOR: No. Because I believe that at the 23 time that the rule was adopted in 1980, 1980? Yes, 1980.
24 That this sort of a facility, a private national 4,000 MTU 25 facility was not contemplated.
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47
/C 1 Assuming for argument's sake that auch a facility were 2 to be-constructed and the Commission did agree that it did 3 have the authority, at that stage, then maybe an argument 4 that the Commission had considercd that issue. However, 5 befora a real live iusue As presented, there's no 6 opportunity for the state affected to have any say in such a
- 7 -decision b; the-Commission. So we believe that tnis issue 8 is ripet that it is something that the Board should 9 consider.
10 CllAIRMAN BOLLWERK: So you're saying we can consider 11 this basically _because the record at this ptint on this 12 particular [.. tint is -- has not been addressed by the 13 Commission?
14 MS.-CRANCELLOR: That is correct.
15 CHAIRMAN BOLLWERK: Okay. Anything else you want to 16 say on that point?
17 MS, CRANCELLOR: Not on that particular point. I'd 18 just like to go over a couple of other things with respect 19 to the legal issues.
20 CRAIRMAN BOLLWERK: I don't know that that's going to 21- be useful, because as I stated, I-think you stated a legal
-22 1ssut. _I think the only question is can we consider it.
23 MS. CRANCELLOR: Yes, I believe you can.
24 C7 AIRMAN BOLLWERK: Okay.
25 All right. Mr. Silberg, anything you want to say on ANN RILEY & ASSOCIATES, LTD.
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48 1 this subject?
2 MR. SILBERG: With respect to the State's response to 3 our answers, I think there are embedded in there a large 4 number of legal errors in the various factual statements.
5 In light of the fact that I think this Board is looking as 6 to whether the Commission has precluded considering those 7 issues, I think the single issue is that Part 72 says what 8 it says.
9 There is no limit in 10 C.F.R. Part 72 that would l 10 prohibit an applicant from licensing, from seeking a license il for a 40,000 metric ton facility or a 20,000 metric ton 12 facility, or a 10,000 metric ton facility, or a 2 metric ton 13 facility. Part 72 is open-ended with respect to the size of 14 the facility.
15 There was no indication that the commission sought to 16 impose any restrictions on the size of the facility in terms 17 of the tonnage of said fuel that could be stored there or 18 how large an area it might cover or which reactors it might 19 cover, or any other limitations of those sort. The State 20 has pointed to nothing in 10 C.F.R. Part 72 which this size 21 facility would violate simply as a matter of size.
22 I think the legal basis that they have laid forth which 23 said -- which attempts to argue that the Nuclear Waste 24 Policy Act somehow revokes the authority that the Commission 25 already had and already had exercised is simply wrong. And ANN RILEY & ASSOCIATES, LTD.
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49 q 1 their reliance on provisions in the Nuclear Waste Policy Act 2
to say that the NRC no longer had that, excuse me, no longer 3 had that authority is simply in error, and they are 4 misconstrudng provisions in the Nuclear Waste Power Act.
5 The Nuclear Waste Policy Act does not limit the 6 authority in the Atomic Energy Act. And the provision that 7 they cite, 42 U.S.C. 10155(h), I believe it is, says that '
8 notwithstanding anything in this act, that there shall be no 9 reliance on federal or private interim storage. It's the 10 reliance on this act that I think clearly shows that the 11 Atomic Energy Act's authority which pre-existed the Nuclear 12 Waste Policy Act continues after that.
13 As we pointed out in our brief, repeals by implication 14 are disfavored. And there's 01early no indication that the 15 Commission intended to retract on the authority that they 16 had already exercised when they issued Part 72.
17 CHAIRMAN BOLLWERK: So you're arguing that kasically as 18 the plain language says, makes it clear that the 19 Commission's already considered this and therefore this 20 Board cannot?
21 MR, SILBERO: Right. It is clearly a challenge to the 22 regulations. What the State wanta, I believe, would be 23 appropriate in a petition for rule making. They could 24 certainly petition the Commission to amend Part 72 to limit 25 its size to 339,999 metric tons or some other number. That d ANN RILEY t, ASSOCIATES, LTD, Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
50 1 is a remedy which is -- which exists for them under the 2 Commission's regulations. But this hearing is not the 3 appropriate place to challenge those regulations or to ask 4 this Board to impose new ones.
5 MR. KENNEDY: Private Fuel Storage, the limitations 6 cited in the contention though didn't refer so much to size 7 as to ownership, i.e. the State contended that the Nuclear 8 Waste Policy Act assigned the ownership in federal ownership 9 as opposed to private. Would you address that?
10 MR. SILBERG The Nuclear Waste Policy Act certainly 11 creates a program for the Department of Energy to build a 12 permanent repository, a monitored retrievable storage 13 facility, and u federal interim storage facility. There is 14 nothing in the Nuclear Waste Policy Act that suggests that 15 the Commission, which has pre-existing authority, cannot 16 license a private centralized intelum storage facility of 17 that size or any other size.
18 In fact, if you look at the purposes clause in, I think 19 it's Section 111 of the Nuclear Waste Policy Act, it 20 specifically provides -- let me get it for you.
21 Section 111(a) (5) says that "The genei nters and owners 22 of said nuclear fuel have the primary responsibility to 23 provide for and the responsibility to pay for the costs of 24 the interim storage of such waste and spent fuel until such 25 waste and spent fuel is accepted by DOE." It doesn't say ANN RILEY & ASSOCIATES, LTD.
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51 s 1 interim storage at reactive sites, it says interim storage, Os 2 So clearly congress, when it passed the Nuclear Waste 3 Policy Act, was not repealing the existing authority that 4 the Nuclear Waste - +' +. the Nuclear Regulatory Commission j 5 already had.
6 CRAIRMAN BOLLWERK: Is there an fthing that you can 7 point to in the Statement of Conreideration of Part 72 l
8 that -- where the Commission explicitly addressed the l 9 argument that Ms. Chancellor is making?
10 MR. SILBERG: Part 72 by definition is aimed at private 11 centralized interim spent fuel storage facilities. That's 12 what it's about. It was not until after Part 72 was enacted 13 that the MRS provisions were added once congress passed the
[' 14 Nuclear Waste Policy Act. From its very start, it was aimed
\m 15 at interim spent fuel storage facilities. Some of those 16 were at reactors, some of those were away from reactors.
17 As we cited in our brief, the Commission had licensed 18 and has amended nine times the license for the G.E. Morris 19 facility, which is an away from reactor spent fuel storage 20 facility which has fuel from a number of different reactors 21 all over the country. That is an existing Part 72 license 22 which the Commission has amended as recently as, I believe, 23 1995, clearly indicating that the Commission believes that 24 it has the jurisdiction to do exactly what we have asked for 25 in this case.
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4 52 1 CHAIRMAN BOLLWERK: Anything else at this point you 2 want to say?
3 MR. SILBERG: Oh, one other point. With respect to the 4 request that this issue be certified to the Commission, I 5 don't believe that the State has met the tests for 6 certification under 2.718. That is a discretionary step 7 which should only be taken in the most compelling 8 circumstances, as the App eal Board said in Enlo Verde A2 ab 9 242, and where a party -- and it should only be issued where 10 a party is threatened with immediate and serious irreparable 11 impact which can't be later remedied, or which affects the 12 structure of this proceeding in a pervasive or unusual 13 manner.
14 Certainly any time a contention is excluded, it affects 15 a proceeding. However, excluding this contention at thiu 16 time in no way affects this proceeding in a pervasive or 17 unusual mhnner. So I don't believe that they've met --
18 7RAIRMAN BOLLWERK: Unless Ms. Chancellor is right.
19 Then the proceeding is over, isn't it?
20 MR. SILBERG: If it's right?
21 CHAIRMAN BOLLWERK: That's pervasive.
22 MR. SILBERG: The Commission has already made that 23 determination. And this Board, as any licensing board, is 24 not entitled to second-guess the decisions which the 25 Commission has made, both in its regulatory decisions and i
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53 f'\ 1 its adjudicatory decisions. And that's true not only on 2 this issue, but in any other issue.
3 CHAIRMAN BOLLWERK: That's correct, assuming the-4 Commission has addressed it.
5 MR. SILBERO: Correct.
l 6 Dr. Lam.
7 DR. LAM: I have-a question for Mr. Silberg. In his L 8 contention, the State has asserted that there are l-
! 9 fundamental differences between Part 72 and the Nuclear 10 Waste Policy Act, 11 For example, the State assert that the Nuclear Waste 12 Policy Act require meaningful role ascribed to the sufety, 13 'but Part 72 is silent on that. Ano the State will provide 14 another example, 15 What is your response to that, sir?
16 .MR. SILBERG: That-is a ec qressional determination.
17 Congress included many provisions in the Nuclear Waste la Policy Act. And those were put in for a variety of reasons.
19 Some of them because felt it was the right thing to do, some 20 .of them.may have been the right political compromises, some 21 of they may have been the moral and correct-result. For 22 whatever reason, congress has spoken.
23 And this Board, I don't think, is entitled to say 24 because congress has included these items with respect to 25 Facility A and these other items with respect to Facility d, O ANN RILEY & ASSOCIATES, LTD.
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54 1 that a licensing board can second-guess that determination 2 and move those various factors from one column to another.
3 There are many requirements in the Nuclear Waste Policy 4 Act which apply to projects run by the Department of Energy.
5 Whether that's because congress felt the Department of 6 Energy needed more or less limitation than a private
'I applicant, you know, one can speculate. But the fact is 8 that congress has said what congress has said, and thic 9 Board and me and the State of Utah are all subject to those 10 statutory determinations.
11 DR. LAM: So are you saying this is the basis of what 12 you just earlier stated, that this 4 -
you consider this 13 assertian a challenge to the rule?
14 MR. SILBERG: Yes. And if the State is saying that the 15 Commission has no authority to issue a Part 72 license to 16 this facility because the Department of Energy has to do 17 Items A, B, C for a monitored retrievable storace facility, 18 then they're clearly seeking to impose new requirements on 19 the Commission which congress did not see fit to imposo.
20 And that is a challenge to the regulatdoas as much as 21 anything else.
22 CHAIRMAN BOLLWERK: All right. Anything -- thanks.
23 Anything farther from the Board?
24 Mr. Turk?
25 MR. TURK: Ms. Marco will address this.
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i 55 i
1 CRAIRMAN BOLLWERK: All right.- Ms. Marco. I
, 2 MS. MARCO: It is the staff's position that the '
r 3 Commission's authority to license private away from reactor 4 fuel storage comes from-the Atomic Energy Act, and that 5 nothing in the Nuclear Wuste Policy Act impinges or limits
- 6 the Commission's authority.
7 The_ State has made several assertions in its reply 8 which'I would like to address. j
- 9 First, the State takes issue with the applicant's 10 reference to Sieael v. Atomic Enerav Commission, a 1968 D.C. ,
- 11 Circuit Court decision. The staff agrees with the applicant 12 that sieael describes the regulatory scheme authorized by 13 the Atomic Energy Act as being virtually unique in the 1
14 degree of authority the Commission has in achieving its 4
15 statutory objectives.
- 16 The State asserts that Sieaal applied to the AEC, and I 17 that as a result of later events, Sieael no longer aptly 18 describes the NRC's authority. However, courts continue to 19 rely on the language of Sieael as authority for the 20- Commission's board regulatory latitude.
J' .For example, as recent as 1992, the D.C. Circuit Court 22 of Appeals, in Nuclear Information Resources Service v. NRC, 23 quoted Sieael,-and commented that "The Atomic Energy Act has 24 been consistently read as it was written, to give the 25- Commission broad regulatory latitude."
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56 1 The State additionally asserts that the Nuclear Waste 2 Policy Act doee not delegate policy decisions tc the NRC.
3 The State's reference to Kelly v. Selin, however, does not 4 stand for the proposition that the Nuclear Waste Policy Act 5 does not delegate policy decisions to the NRC.
6 First, it's the staff's assertion, as we addressed in 7 our brief, that the Nuclear Waste Policy Act does not apply 8 to the Commission's authority to license pr$vate away from 9 reactor storage.
10 In addition, in Kelly v. Selin, the court addressed one 11 policy that congress had explicitly decided in the Nuclear 12 Waste Policy Act. And that policy was to allow the NRC to 13 go ahead and approve various dry storage technologies on a 14 generic basis without site-specific hearings. And the court is stated that those whc wanted those site-specific hearings 16 had to appeal to congress and not the NRC. Kelly v. Selin, 17 therefore, does not support the State's assertions that the 18 NRC is not free to decide issues of policy.
19 The State also makes the assertion that the history of 70 Section 53-A of the Atomic Energy Act does not support its 21 use as authority for the NRC to license private away from 22 reactor storage. The State asserts that the 1967 amendment 23 to Section 53-A was meant to clarify the Commission's 24 authority to license ownership of special nuclear material 25 in addition to its possession and use, because special ANN RILEY & ASSOCIATES, LTD.
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- . . _ - . . - . _ . - - . - ~ . - . - - .
4 57
-nuclear material was no longer a scarcity in '68, 4
1
'67.
t j 2 However, the result of the 1967 amendment was to add to-
{
3 the Commission's licensing' authority for special nuclear
. 4 material. It added ownership as an activity the Commission
- 5 could license in addition to what already was there for
! 6 ' possession and use.
7 This application, as described in the Federal Recister 8- notice, is to possess 1. pent fuel and other radioactive l, 9 materials associated with spent fuel storage in an 10 independent spent fuel storage installation. The Atomic 11- Energy Act, including Section 53-A, authorizes the l 12- Commission to license the possession and use of these
! 13 materials.
! 14 The State also makes the-assertion that the 15 Commission's rationale for issuing Part 72 calls into 6
16' question that claim that the Atomic Energy act's byproduct 17 and source material provisions also cuthorize it to license
. 18- away from reactor' instances. This, they say, is because F
19 -Part 72 is to provide a more definitive regulation for spent j 20 fuel-' storage in place of Part 70, the special nuclear 21- material regulations, i
). 22 However, the Commission's authority section for Part 72 23 indicates that Part 72 is promulgated pursuant to the Atomic 24 Energy Act, Sections 62, 63 and 65. Those pertain to source 25 materials: Section 81,-.which pertains to byproduct k
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58 1 materials; as well as the provisions pertaining,to special 2 nuclear material.
3 The Commission has specified a broader range of ;
4 authority in further defining the regulations pertaining to 5 spent fuel storage. And the Commission in Part 72 states 6 that spent fuel includes byproduct storage of special 7 nuclear material.
8 The State also in its reply poses the question, and 9 this is their question. They say "NRC already has authority 10 under the AEA to license private storage facilities at the 11 site of a reactor or away from reactor. Why did congress, 12 in the Nuclear Waste Policy Act, authorize private storage 13 of spent fuel only at reactors?"
14 And the answer to that it that under the steam of the 15 Nuclear Waste Policy Act, in order for a utility to enter 16 into a contract to have DOE store its fuel, it must first 17 make a showing of need. And then in addition, the utility 18 must first attempt various methods of on-site reactor 19 storage and as well as trade shipment of' fuel to other 20 reactors before it can contract with DOE.
21 Therefore, the provisions of the Nuclear Waste Policy 22 Act addressing storage at reactor sites do so in the context 23 of conditions placed on utilities prior to contracting with 24 DOE for fuel storage.
25 CHAIRMAN BOLLWERK: Let me just -- let me interrupt ANN RILEY & ASSOCIATES, LTD.
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59 g ^g 1 you. This kind of seems to me to be going to the mer,its of 2 the contention. I guess our concern, unless you can clarify 3 it for me, is has the Commission said, as I asked 4 Mr. Silberg, where has the Commission said or where can we 5
look to see if the Commission has dealt with this issue that 6 Ms. Chancellor has raised so that there's nothing for this 7 Board to say on the matter?
8 MS. MARCO: It is part of Part 72. The overall scheme 9 of Part 72 provides for this and there's nothing that 10 explicitly prohibits it.
11 CHAIRMAN BOLLWERK: So -- all right. So we basically 12 look at the language of the regulation. I guess your answer 13 is the same as Mr. Silberg's then.
()
14 15 MS. MARCO: Yes.
CHAIRMAN BOLLWERK: Okay. I don't need to look at the 16 Statement of Consideration to see an argument that's been 17 made and responded to like it's been framed here then.
ic You're basically saying the language of the iegulations 19 takes care of it?
20 MS. MARCO: That's right.
21 CHAIRMAN BOLLWERK: Okay. A question. If the 22 Commission, for whatever reason, were to decide to pass a 23 regulation that allowed them to regulate FM radio stations, 24 if someone were to come in to apply for an FM radio station 25 and someone else would come in and say "That's not within
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60 1 the Commission's authority," is that something the Board can 2 consider?
3 MS. MARCO: It would be unclear as to whether the Board 4 could consider it. Something that would probably have to be 5 addressed under 2758 (b) where the Board acts as a first 6 hearing and let a commission look at that issue.
7 CHAIRMAN BOLLWERK: All right. Anything else you want 8 to say on this subject?
9 MS. MARCO: Nothing.
10 MR. TURK: We have one cathedral matter that we --
11 CHAIRMAN BOLLWERK: Okay.
12 MS. MARCO: Oh, that's right, yes. We had filed an 13 errata letter as a result of this contention. And when we 14 did so, it looked like the first two lines that we had 15 really wanted to be in were left out. So what I'd like to 16 do is circulate the proper page, if that's all right.
17 CHAIRMAN BOLLWERK: All right. Your -- let's see. You 18 have a --
19 MS. MARCO: Yes. What --
a while ago, after we had 20 filed --
21 CHAIRMAN BOLLWERK: Right. I remember receiving the 22 errata letter.
23 MS. MARCO: Okay. And what happened was that page was 24 not correct, because what happened was a portion of it was
~
25 deleted and it bumped the whole thing down on the page, on ANN RILEY & ASSOCIATES, LTD.
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61
1 the computer, and the first two-lines got dropped. Land we 2 meant.to have them there and we'd like just to correct the 3 record.
4 CHAIRMAN-BOLLWERK: So the errata letter was then 5 not --
6 MS. MARCO: Yeah.
7 CHAIRMAN BOLLWERK: I just want to make sure I 8 understand. .I'm not giving you a hard time.
9 MS. MARCO: No, you're right. That's -- you're right..
10 CHAIRMAN BOLLWERK: Okay. You want to distribute that-11 to the parties? Is that what you --
l 12 MS, MARCO: Yes, I'd like to --
13 CHAIRMAN BOLLWERK: Okay.
4 I h 14 MS. MARCO: -- add the new page to the record.
15 CHAIRMAN BOLLWERK- Have you sent a copy to the office 16 -- of the secretary?
17 MS. MARCO: We will.
18- CHAIRMAN BOLLWERK: I appreciate it.
19 Or if that's acceptchle, you can simply serve it that-20 way, in the normal course-of business. I don't know.if 21 there's --
22 MR. TURK: May.I suggest that we bind it into the 23 record,=Your Honor?
24 CHAIRMAN-BOLLWERK: If you think it's important. I, 25- you know, I'm not necessarily in favor of binding things i
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62 1 into the record.
2 MR. TURK: We'll see the letter after they --
3 CHAIRMAN BOLLWERK: Okay. Why don't we do that.
4 Why don't we consider this service on everybody; is 5 that all right? And then we'll disallow it and file it with 6 the office of the secretary.
7 MS. CHANCELLOR: Can I ask for clarification? Is this 8 the -- does this change the substance of the errata?
9 MS. MARCO: No , it doesn't.
10 MS. CHANCELLOR: So what you're saying is that you're 11 not --
12 MS. MARCO: This merely, the two original lines that 13 had nothing to do with why we're trying to -- and so this is 14 just to correct it.
15 CHAIRMAN BOLLWERK: All right. Ms. Chancellor.
16 MS. CHANCELLOR: I believe what this errata letter says 17 is that the NRC is retracting that this is a challenge to 18 the regulations. What it is is a challenge to the 19 Commission's statutory authority to make the rules. It is 20 not a challenge to the rules.
21 Clearly the Commission has authority to license an MRS 22 under Part 72, that it's listed underneath the Nuclear Waste 23 Policy Act. Also, explicit in the Nuclear Waste Policy Act 24 are that there are impact costs associated, that are costs 25 to state and local governments, that are associated with ANN RILEY & ASSOCIATES, LTD.
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63 0,
1 2
licensing MRS's. I think it's clear that-when congress made a policy choice when there were lars, centralized national 3 facilities that they would pass through certain costs to the
-4 state.-
5 In addressing Sleael, that was a technological choice.
6 In that case,-the argument was whether something could be 7 decided -- whether technology issues could be decided 8 generically. Here we're dealiro with policy choices. This 9 is indeed pervasive on the proceedings if the Board does not 10 _ certify, in terms of the Board certifying it for the 11 Commission..
12 The State has spent enormous resources up to this point l 13 to get basically its foot in the door. And:to continue on 14 w hen this Board may not have authority to-issue the license, 15 I-believe is a fruitless exercise. And either the Board 16 should-address-this issue or certify-it to the Commission.
17 Thank you.
-18 . CHAIRMAN BOLLWERK: All right.
19 MR. SILBERG: Can I make one responsive comment to 20 that?
21 CHAIRMAN.BOLLWERK: Recognize every time you say 22 something --
23 MR. SILBERG: Right.-
2e CHAIRMAN BOLLWERK: -- she's probably going to get
-25 .another. chance. So --
(
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64 1 MR. SILBERG: Right. Just two points.
2 First, I'm not sure whether I heard right. The State 3 is saying that this is not a challenge to Part 72 but it is 4 a challenge to the Commiasion's statutory authorization, in 5 which case it's still not within the scope of this Board; 6 the Commission has spoken.
7 With respect to the Siecel case, Sieael case did not 8 involve a policy choice. The Sieael case involved whether 9 the Commission should consider attacks from Cuba on the 10 Turkey Point Nuclear Power Station. The Commission made a 11 decision not on technology, but rather that that was an item 12 which was outside their authority. And as the staff noted, 13 Sieael has been cited multiple times, most recently in 1996 14 in a case that Ms. Curran and I were both involved in.
15 The question of authority I think is clearly one that 16 thio Board is bound by the statements of the Commission, by 17 the regulations of the Commission. And like any other 18 contention, you know, if it's out, it's out. And it may 19 have ramifications down the line, but one doesn't stop the 20 proceedings midpoint.
21 CHAIRMAN BOLLWERK: Anything you want to say?
22 MS. CRANCELLOR: I think I've said it all.
23 CHAIRMAN BOLLWERK: All right. Very good.
24 Now, Castle Rock, 1, 2 and 3. Let's talk about those.
25 MR. LATER: I think number 1 is pretty similar, Your 7JRJ RILEY & ASSOCIATES, LTD.
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65 y' 1 Honor. I think 2 and 3 we've tried to phrase in a way that
('
2 addresses the question of whether or not the task of the 3 Commission has authority and regulations.
4 Let me talk about number 1 a little bit. I think 5 number one is the closest to the State contention. I think 6 we get some arguments that perhaps have not been phrased 7 directly by the Jtate, although I think they are probably 8 inclusive in the State's argument.
9 As I understand the parameters of what the panel has 10 asked for us, it is to deal with the first of two questions. '
11 The first question being: Is this something that you folks 12 can address at all, or are you prohibited from dealing with 13 it? The second question being is the contention in fact
[\~- 14 well founded?
15 As we have argued, I think there are two ways in which 16 this panel can successfully get at this question, which is 17 indeed fundamental. The first of them we would argue is 18 that this is a proceeding that was not raised within the 19 scope of Part 72 regulations. And therefore, our objection 20 and contention is timely. And I think that issue comes down <
21 to the question that although the bare language of the 22 regulations would not of itself preclude such an 23 application, it is manifest that those regulations were not 24 prepared in contemplation in such facility, nor has any such 25 facility been presented to the Commission previously.
O)
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66 1 But in fact Part 72 is the regulations contemplated 2 small facilities tied directly to particular power plants, 3 not the facility intended as a sr.bstitute or make way 4 permanent national repository. And that such a proposal 5 could not have been considered or fairly used when those 6 regulations were adopted and hence challenged on that basis.
7 It could not have been presented at that time, and therefore 8 our challenge is at this time timely.
9 I think the second method by which this panel can get 10 at this fundamental and all important issue is simply 11 exercising the authority to either deal with it as 12 appropriate, or to certify that question through the 13 Commission. Present a petition to that effect to this 14 panel. We think it's very clear that we need standards for 15 such a certification.
16 There is nothing more pervasive in the nature of these 17 proceedings than whether or not the Nuclear Regulatory 18 Commission has authority to license such a facility. And if 19 it has not such authority, everything that happens here from 20 this point on will be a waste of time. It is the most 21 fundamental question that this panel can either address or 22 get guidance from the NRC.
23 So we would suggest to you on those first questions we 24 think that there are two routes by which this panel can 25 reasonably raise and resolve. That fundamental question, ANN RILEY & ASSOCIATES, LTD.
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/N 1 and --
i i
\-- 2 CHAIRMAN BOLLWERK: Why can't you use a certification 3 and -- those interrelated. We think the Commission has 4 already dealt with this question and we can't look at it.
5 Why should we send a question up that we've already dealt 6 with?
7 MR. LATER: I guess you can raise that question and 8 truly make a conclusion that yes in fact the Commission has 9 addressed this. We know their answer. You're probably 10 right. There's no since sending it up to the Commission if 11 you're going to get the same answer. I don't think you've I
12 got a record that suggests that in fact the Commission ever l
13 contemplated those regulations as encompassing such a 14 facility and including and in comparing this facility with
[nV] 15 those regulations, with the provisions of the Nuclear Waste i
( 16 Policy Act, and seeing if in fact there is a harmonious way 17 for which this facility can be licensed in view of the 18 Nuclear Waste Policy Act. I simply don't believe that there 19 is such a record. I don't think I've seen~an argument that 20 demonstrates that either from the applicant or from the 21 staff.
22 But I would have to agree with you. If you reach that 23 conclusion that you know what the Commission's answer is 24 already going to be, and you're comfortable that they've 25 already addressed that question, I would agree with you.
p
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68 1 It's probably pointless to certify the question.
2 CHAIRMAN BOLLWERK: Briefly let's look at 2 and 3 and 3 tell us how they're different. We don't need to deal with 4 them separately.
5 MR. LATER: Number 2 we tried to raise hopefully with a 6 little bit of craft. Some of the same sets of questions of 7 what we had suggested there is we have tried to frame the 8 issue as saying what is involved as an appropriate 9 construction of the regulations, and try and phrase those 10 issues. This is a facility, an application that has never 11 been seen before.
12 How should the regulations be construed to 13 appropriately apply, if at all to such a facility, and 14 particularly in light of the Nuclear Waste Policy Act? I is think it's the obligation of the Commission and this panel 16 to apply the regulations before it in a manner that is 17 harmonious not simply with the Atomic Energy Act, but with 18 all of the congressional mandates under which the Nuclear 19 Regulatory Commission operates. And we have tried to argue 20 in our second contention that this panel can appropriately 21 utilized its authority in construing Part 70 to regulations 22 in a way that tries to harmonize the statutory authority it 23 operates under in viewing this application.
24 Our conclusion on that, of course, is that when you try 25 and do that, this application can't be fit under a ANN RILEY & ASSOCIATES, LTD.
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69
,'~N 1 reasonable and fair interpretation of those regulations
\w / 2 viewed in the light of the appropriate statutory authority.
3 That's the nature of the second contention, Your Honor.
4 CRAIRMAN BOLLWERK: I think it's interesting your first 5 word should not be coming -- your first argument is -- your 6 first contention basically says the statute doesn't 7 authorize us no matter what the regulation says.
8 MR. LATER: Correct.
9 CRAIRMAN BOLLWERK: The second argument is in fact the 10 regulations were consistent with your interpretation of the 11 statute and regulations.
l 12 MR. LATER: That the regulations must be construed and 13 consistent wf.th the statute, can be construed consistent
/ 'T 14 with the statute and that that has --
') 15 CHAIRMAN BOLLWERK: By accepting the application.
16 MR. LATER: That is correct.
17 CHAIRMAN BOLLWERK: Number 3 then in terms of how the 18 DOE views as problems, how is that determined? How is 19 that -- to 27 20 MR. LATER: I think that number 3 probably embodies 21 parts of number 1 and number 2, that there are portions of 22 it I think that probably you can only reach if you address 23 the question of the Nuclear Waste Policy Act. And I think 24 it raises some of the same sorts of challenges of standing 25 as you get in the first contention.
[\
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a 70 1 CHAIRMAN BOLLWERK: When you deal with the issue in 5, 2 and in fact the Commission -- the staff and the Commission 3 have dealt with this application consistently the way -- the 4 Licensing Commission could issue, then number 3 would go by 5 the wayside.
6 MR. LATER: I think that's a fair reading of it, Your 7 Honor.
8 CRAIRMAN BOLLWERK: All right. Mr. Silberg.
9 MR. QUINTANA: Well, briefly it appears to be a motion 10 for summary judgment on the part of the State of Utah and 11 Castle Rock, which at this point is probably premature in 12 this proceeding based on the summary judgment.
13 CHAIRMAN BOLLWERK: Well, I would say that this issue 14 came in --
15 MR. QUINTANA: Current management. And if their 16 contention is correct that there is no authority to issue a 17 license, then I suppose then that no license would be is required, and I guess we could dispense with these 19 proceedings and we could proceed with construction.
20 But since the Atomic Energy Act required a license in 21 this instance, I think that federal law would in this 22 instance govern and that these proceedings should go 23 forward.
24 CHAIRMAN BOLLWERK: All right. Mr. Silberg, do you 25 have anything you want to say on that?
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71 1 MR. SILBERG: Yes. First, with respect to their
\s- 2 impermissible challenge number one, the cases that they cite 3 on the timeliness of the review are all cases that go to the 4 issue of when reviews are timely in the judicial arena and 5 not in-this arena. In this arena challenges to rules are 6 governed by 2.758. Castle Rock has submitted such a 7 petition. One of the things I think we need to do before 8 the end of this pre-hearing conference is establish a 9: schedule responding to that. I'm not right now prepared to 10 offer a date, but we ought to make it -- review that in 11 court.
12 CHAIRMAN BOLLWERK: Repeat that again.
13 MR. SILBERG: Castle Rock has filed a petition under 14 2.758. One of the things we ought to do is establish a 15' schedule. And I.think that is the appropriate mechanism, 16 but I think they have correctly-recognized that it is a 17 challenge to the regulations.
18 Their argumentuis that it's not an impermissible 19 challenge. And I'm not sure 1 understand why their cases on 20 -the timeliness of judicial review are at all relevant to a 21 challenge in this particular forum.
22 They said that Part 72 ought to be interpreted as 23 license - -providing for_ licensing only of small facilities 24 tied to nuclear power plants. I think that reading is flat
- 25 out inconsistent with the clear, unambiguous words of.
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72 1 Part 72. Part 72 clearly includes provisions for licensing 2 away from reactor interim storage facilities, not just ones 3 at nuclear power reactors.
4 The argument that Part 72 doesn't count when it's a 5 large facility I think I addressed before. Part 72 simply 6 has no provisions. And if one would argue that it doesn't 7 provide for a 40,000 metric ton facility, it also doesn't 8 provide for a 1,000 metric ton facility or neither one 9 metric ton facility.
10 Castle Rock also refers to provisions in the Nuclear 11 Waste Policy Act which it believes prohibit the NRC from 12 licensing this facility under Part 72. Unfortunately, they 13 have misquoted the statute when they say that establishing 14 che federal responsibility and a definite federal policy for 15 the disposal of such waste and spent fuel is the law of the 16 Nuclear Waste Policy Act, 17 What the statute actually says is -- that quote is 18 actually a correct quote, but it didn't talk about a 19 definite federal policy for the storage of spent fuel. It 20 said for the disposal of spent fuel. " Spent fuel disposal" 21 is specifically defined in the Nuclear Waste Policy Act as 22 something other than storage.
23 Furthermore, when they talk about the provision in the 24 Nuclear Waste Policy Act on not authorizing the private use 25 of storage facilities, 42 U.S.C. 101557, they ignore the ANN RILEY & ASSOCIATES, LTD.
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73
/
-'xt 1 fact that the wording that they quote it says, "Nothing in
\~- 2 this chapter shall be construed to authorize." The word 3 " chapter" refers not to the Atomic Energy Act or to all 4
federal statutes, but only to the Nuclear Waste Policy Act.
5 So that the authority which the Commission has under the 6 Atomic Energy Act is in no way cut back by the subsequent 7 provisions in the Nuclear Waste Policy Act.
8 Congress did in fact restrict what DOE could provide in 9 the way of interim storage, and the 1900 metric ton capacity 10 which they talk about is clearly restricted to a DOE 11 program. There is nothing in the act which says that that 12 program was meant to supersede all other private efforts l 13 which the State -- which this applicant of other applicants
[V '\j 14 may proceed with.
15 With respect to contention 2, there simply is no --
f 16 again no basis for needing to construe Part 72 in a way 17 which restricts the Atomic Energy Act and the NRC's 18 authority. Because to make it harmonious with the Nuclear 19 Waste Policy Act, the Commission has already done that when 20 it amended Part 72 to add the monitored retrievable storage 21 provisions which it did in 1983. There is nothing 22 inharmonious with Part 72-and the Commission providing for 23 the licensing of a private facility when the Nuclear Waste 24 Policy Act provides for federal facilities and does not 25 contain any language which prohibits a private facility l'
t,'
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74 1 licensed under other provisions of law.
2 There's one other point which I'd like at least to note 3 for the record, and it didn't occur to me when I read the 4 Castle Rock's petition initially.
5 The first five contentions of Castle Rock are the only 6
contentions which the third member of the Castle Rock 7 trilogy supports. There are three parties to the Castle 8 Rock petition: Castle Rock, Skull Valley and Ensign. And 9 it was interesting when I noted that Ensign only supports 10 the first five contentions.
11 I would note that all those entities are essentially 12 owned by the same group. They are represented by the same 13 party. I think the attempt is to provide for an early run 14 to the court of appeals and the Commission if this Board 15 were to deny those contentions and thereby deprive Ensign of 16 its standing. And I think it's just something the Board i
17 ought to be aware of, because it isn't obviously flagged in 18 the pleadings that Castle Rock has submitted.
19 CHAIRMAN BOLLWERK: All right. I noticed that. It's 20 an interesting observation. I noticed it myself, and you 21 know, what follows follows. That's -- okay.
22 Anything else?
23 All right. Ms. Marco? Do you have anything, 24 Ms. Marco, that the Commission passed a regulation in 25 licensing? Is that something this Board could consider, has ANN RILEY & ASSOCIATES, LTD.
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75 1- authority?
O b
2- MR.-SILBERG: I think this Soaro could not consider-it:
3 other than to treat it under the provisions which the 4 Commission has created for such regulatory challenges, i.e.
6 CHAIRMAN BOLLWERK: Ms. Marco.
7 LMS . MARCO: The staff believes that Castle Rock's 8 contentions 1, 2 and 3-are a direct challenge to the 9 regulations. Castle Rock would read into Part 72 an 10 exclusion of off-site facilities. This exclusion does not 11 exist in Part.72. .
12 In addition, Castle Rock with contentions 2 and 3 would
-13 read into Part 72 requirements on an off-site applicant that
[
14- are simply not there. Castle Rock reasserts that the 15 regulations must-harmonize'with the implementing statute, 16 and we address this in our response that Part:72 does 17 . harmonize with the AEA and with the Nuclear Waste Policy Act 18- -
where that act applies.
19 That also -- Part 72 also addresses MRS facilities as 20- well.
21' With respect to Castle Rock's reply with its first
'22 contention, Castle Rock makes the assertion that-the Nuclear 1
23 Waste Policy Act is comprehensive and exclusive ~ program for 24 the storage of spent nuclear fuel. There's no support for 25 this statement. In fact, as the Ninth Circuit stated in ANN RILEY & ASSOCIATES, LTD.
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76 1 State of Ohio v. DOE, the interim storage provisions of the l
l 2 Nuclear Waste Policy Act are not comprehensive and I
3 exclusive.
4 And therefore, Castle Rock is incorrect in its l
5 assertion that the Nuclear Waste Policy Act is Congress' 6 comprehensive and exclusive program for the storage of spent 7 nuclear fuel.
8 Castle Rock claims that the NRC's reliance on the State 9 21 -- I'm sorry -- Idah2 is misplaced because it concerns 10 the effectiveness of a pre-existing DOE contract. However, 11 like here the State of Idaho case addressed the storage of 12 waste. That was not the subject of a contract for interim 13 storage entered into pursuant to the Nuclear Waste Policy 14 Act. And like Castle Rock, the State of Idaho intended that 15 the interim storage provisions of the Nuclear Waste Policy 16 Act would be violated if the wastes were stored.
17 The court's analysis of the Nuclear Waste Policy Act is 18 applicable here because the private storage proposed by the 19 applicant is an alternative to the storage under the scheme 20 of the Nuclear Waste Policy Act. The court stated:
21 "E&dh 6f th6 &ct's V& ficus requifem6 hts ddhd6 thing 22 interim storage are specifically limited to 23 contracts entered into pursuant to 24 Section 101. 5A (1) (a) . "
25 And the court further stated that:
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77 1 -- "The act's restrictive language limits the
-2 requirements to the specific step of remedial 3 storage agreements authorized by the act itself.a 4 And.the act does not preclude -- therefore-does not preclude 5 private storage _ options.
6 CHAIRMAN BOLLWERK: Sir, it's your turn, Just let me i
7' -ask_one grastion before you go in to your response.
8- The ac* has raised a question about contention 4 as 9 well. -How has that -- what you have in here as well?
10 MR. LATER: The contention 4 I think raises an_ entirely 11 different question. And what we have suggested is we 12 believe the evidence supports a finding that DOE either 13 explicitly or tacitly is offering with the applicant to --
[~'Nl- 14 the statutory and regulatory scheme in a manner that's not
\v -
15 intended, and that this Commission should in no fashion I
16 whether orinot the application would otherwise be 17 appropriate, assist such an activity.
18 CHAIRMAN BOLLWERK: I guesa my question goes back to
.19 one that-I asked you earlier with respect to number 3 --
20 would return that the Commission had been -- with number 4 21 as well?
22 14R. LATER: I don't think so. I think, Your Honor, 23 that even if the application was otherwise well taken, if it 24 was a result of an improper agreement between the Department 25 of Energy and the applicant, that the NRC would be
,O
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78 1 appropriate, in fact should reject the application simply on 2 that basis.
3 CHAIRMAN BOLLWERK: You think the DOE has the authority 4 to do what it's doing? What then is our authority to look 5 into whatever basis they decided to move forward or the 6 applicant decided to move forward?
7 MR. LATER: We suggest that the basis of that finding 8 would be that DOE did not have the authority in fact to 9 enter into any such tacit or explicit agreement with the 10 applicant. And that kind of a fundamental of that 11 contention is finding that the Department of Energy has 12 violated or failed to carry out its obligations under the 13 Nuclear Waste Policy Act, and that this application was a 14 result of an agreement between the Department of Energy, 15 either tacit or explicit, and this applicant to allow DOE to l 16 escape from the consequences of that failure.
l 17 I think that's a different argument, a different basis 18 than the first three contentions, and it does not confront 19 or attack any of the regulatory basis of the NRC, 20 Let me go on, if that addresses your question, and 21 respond to some of the things that have been said.
22 CHAIRMAN BOLLWERK: Let me ask Mr. Silberg here: Do 23 you have anything you want to say on the point that he's 24 made on number 4?
25 MR. SILBERG: Well, 4 I found to be almost humorous.
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99 1
--To argue that the utilities -- which I perconally have spent 2 .the'last decade - -the Department of Energy to meet its 3 obligations under the Nuclear Waste Policy Act are somehow 4 in'the league with DOE to help it. avoid its obligations is
.5 really frankly ludicrous. There's no-shred of evidence other than some very creative legal libel to support that.
4 6
7' I-think it's totally baseless.
8 CHAIRMAN BOLLWERK: All right. Anything staff wants to l 9 say on that point? Mr. Quintana, we-want some answers, l
10 MR. QUINTANA: Very briefly, the Skull Valley Goshutes 11 went through the federal process under the Nuclear Waste
- 12. Policy Act to build a monitored retrievable storage 13 facility. .They signed and negotiated an agreement with 14 Washington to build a facility, and the next day the entire 15- federal program was cancelled.
16- Prior to: entering into an agreement with Washington-to 17; try to build this-facility, the Skull Valley Goshutes 18 briefed at length the State of Utah and the surrounding 4 19 communities on'all aspects of what was proposed, which is 20 virtually quite similar to what is being proposed now.
21 At:that time there were no technical object 1ons, no 22 engineering, no scientific objections made by the State of 23 Utah and by other surrounding communities.
24 MS. CHANCELLOR: Objection, Your Honor.
25 CHAIRMAN BOLLWERK: What's the objection?
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80 1 MS. CHANCELLOR: He's making expressions as to what we 2 cited were for purposes of the MRS. We didn't object to 3 that. I don't think there's anything in the record that 4 establishes that. On the Goshutes we're proposing an MRS on 5 the reservation. He made a distinction that the State 6 didn't raise any objections to that.
7 CHAIRMAN BOLLWERK: Right. Mr. Quintana, let's do one 8 thing. Let's keep this to the question of whether these 9 contentions should come in. Some of what you're saying 10 sounds to me is going a little bit to the merits.
11 MR. QUINTANA: In terms of whether his contention 12 should come in, the position of Skull Valley is it should 1
13 not come in.
14 CHAIRMAN BOLLWERK: Staff want to say anything on 15 contention 4?
16 MS. MARCO: The staff believes it should not come in 17 because there's no support for it, and it really wouldn't 18 entitle Castle Rock to any relief in this proceeding.
19 CHAIRMAN BOLLWERK: Anything else? Mr. Later, I added 20 one there, but I'll let you have all four now.
21 MR. LATER: Okay, thank you, Your Honor. I think that 22 there is in the responses that we have received what seems 23 to me to be a curious mixture of a procedural argument which 24 lapses into an argurnent on the merite of the conte: 'on. It 25 makes it very difficult in some ways to respond to and to ANN RILEY & ASSOCIATES, LTD.
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81
' sort out thone arguments.
1 Os 2. -- I'would suggest that some of the confusion'is
'3 engendered simply-because-the point-that it is so important 4I for_this' panel to reach this contention is simply-5 undeniable,,and that there are procedures-_by which this 6 ' panel can either itself reach that question.or certify it to 7 the Nuclear-Regulatory Commission. That principle seems to 8: me to be virtually unchallengeable. You cannot argue:the 9 contention is not absolutely fundamental to these 10 proceedings. It is clear that it is a contested-issue.- And j -11 we can have all kinds of interesting discussions _about what-12 is-the scope of the Nuclear Waste Policy Act. ,
13- At this stage in the proceeding it ought to at least be a point of-agreement that that is a question that should be 15 resolved before the parties. proceed before-the rest of the effort is:potentially wasted, before the parties incur 17 enormous expenses proceeding down the row. Certainly for 18 the, Ensign Ranches
- petitioner, if this elects to dismiss 19 those first five contentions, that constitutes an 20- irreparable injury to that petitioner who would no longer 21 have standing before this body.- And that alone-would 22 justify-a certification of this issue co the Nuclear 23 Regulatory._ Commission.
24 Now, let-me make hopefully three and potentially four 25 : questions, the forth leading to the fourth one of those
[ '
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82 1 contentions, four responsee to what I have heard.
2 The first is the set of cases that we have raised and 3 cited to this panel that stand for the proposition that 4 where a facility or an application such as this is not 5 fairly within the scope of the original regulation. It is 6 appropriate for a petitioner to raise a challenge as to the 7 applicability of those regulations and that such a challenge 8 is timely, 9 Mr. Silberg has pointed out that those cases involve 10 judicial cnallenges. I think perhaps one of them or more 11 may deal with the timeliness and challenge to the agency. I 12 would suggest in any event that the rationale is appropriate 13 in either case. And in either case this panel as a court 14 must consider whether the challenge is timely and 35 appropriate. And under the standard we've set forth from 16 those cases it is clear that this challenge is both timely 17 and appropriate.
18 The second point I'd like to make in response deals 19 with the acope of the Part 72 regulations. And the 20 discussion I think that has gone on between the parties is 21 that the applicant has taken the position that whatever is 22 permissible within the language, whatever you can drive a 23 truck through in the regulations is allowed.
24 And we have suggested to this panel that interpreting 25 those regulations, as any regulatory body, that the ANN RILEY & ASSOCIATES, LTD.
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83-
-if interpretation must be one of rationality and fairness of 2 the regulations for their intended r1rposes rather than a 3' simple blind and mechanical application of those regulations L4- when their scope and intent is unclear.
5- And we would-suggest that under a standard that a fair 6' and--rational reading, that the application presented here is 7 being put under set of regulations for which it was never 8 intended, the regulations were never contemplated to apply 9 to'a facility of this scope, 3120 and potential duration. :
10 And that it is entirely appropriate for this body to look at i 11 the application and its regulations in a rational and fair 12 light to make that judgment, and that to apply those
=13 regulations mechanically are neither warranted nor i 14- appropriate.
15 A third point I'd like to make,-since I have very -- ir.
If all that I-had said before dealing with the merits of 17 whether or not the Nuclear Waste Policy Act does in fact 18.- govern and limit the application that's before this bocy_is 11 9 simply to take a moment'and. direct this panel's attention to 12 0 Section M-151 of the act dealing with interim storage. ,
21 "The congressional findings first, the act recites that i 22- "The persons owning and operating civilian nuclear power 23 _ reactors have the primary responsibility for providing 24 interim storage of spent nuclear fuel from such reactors."
_25; That language has been cited-to this panel earlier today.
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84 1 And it goes on to say as part of that congressional 2 finding, aby maximizing to the extent practical the 3 effective use of existing storage facilities at the cite of 4 each civilian nuclear power reactor, and by adding new on-5 site storage capacity in a timely matter where practical."
6 The second congressional finding recites that the 7 federal government has the responsibility to encourage and 8 expedite effective use of existing storage facilities and 9 the addition of needed new storage capacity at the cite of 10 each civilian nuclear power reactor.
11 And finally provides a congressional finding it's a 12 federal responsibility to provide a facility to provide 13 allowing for not more than 1900 metric tons of capacity for 14 interim storage.
15 These are provisions, contresFsonal findings with 16 respect to interim storage as part of that comprehensive 17 statute. I would suggest that these are prom.nions that c
18 apply as much to this panel, to this application as to any 19 actions of the Department of Energy.
20 And finally my last comment. The fourth of tne 21 contentions that we have submarted, if in fact this 22 application is a result of an agreement, tacit or explicit 23 whereby the Department of Energy attempts to escape and 24 subvert its responsibilities, it would be inappropriate for 25 the Nuclear Regulatory Commission to approve the ANN RILEY & ASSOCIATES, LTD.
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l 4
i 85 1 application, even if it were otherwise and on its own t i
j 2 appropriate, and we would therefore be entitled to the
{ 3 r611ef we seek. 1 j 4 And as far as evidence goes, I would suggest that 5 Mr. Quintana's comments provide an initial basis of evidence I 6 where the Department of= Energy in fact sought this site, 4 - ,
i 7 sought--it for a non-retrievable storage facility, was denied
.a that and the program was closed down, and finds itself now j_ 9 in the position to recover it through a back door.
4
[
10 The contention is appropriate fer discovery. We've 11 outlined the bases which provide a factual basis. sufficient
) 12 for the conduct of discovery, and we would be entitled to 4
13 relief under that contention. Thank you.
I 14 CRAIRMAN BOLLWERK: Mr. Lam, discussion?
15 DR. LAM: Yeah, I listened to Castle Rock. Are you
{ 16 saying in contention number four that the Department of a
17 Energy is intending to evade its statutory mandates?
L -
18 MR. LATER: Yes.
19 DR. LAM: That's --- '
2(F MR. LATER: Yes. In fact it's already failed its i 21 statutory mandates. That question is no longer even ,
.22 debatable.
- 23. DR.IJU4: I was talking about intentions.
MR. LATER: Yes.
=25 .MR. KENNEDY: Mr. Hearing Officer.
- k. ANN RILEY & ASSOCIATES, LTD.
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86 1 CHAIRMAN BOLLWERK: Sir?
2 MR. KENNEDY: I tried to make a comment earlier, and '
3 because I'm over on the side I think I'm beyond the 4 peripheral vision.
5 CHAIRMAN BOLLWERK: I apologize. You are over on the l 6 side, and it takes a while. If I'm missing you let me know, 7 but lease holler or something.
O MR. KENNEDY: Thank you. I just wanted to speak to the 9 condition of the tribes with respect to both the State's 10 contentions and Castle Rock's contentions on these items 11 that we've been discussing here over the last hour or so.
12 MR. SILBERG: Excuse me. Mr. Chairman, if I may? I 13 think the Board's order indicated that only the parties that 14 were proffered contentions were going to be addressed in 15 this.
16 CHAIRMAN BOLLWERK: That's right, and that's my 17 inten*. ions. Do you intend to address the merits?
18 MR. KENNEDY: In terms of -- we have adopted by 19 reference these contentions. And as I understand it, the 20 panel has not yet ruled on that aspect of the proceeding. '
21 CHAIRMAN BOLLWERK: Well, maybe they'll finance us and i 22 we'll get out right now -- has moved it there right now. My l
l 23 feeling is that --
let me put it this way. We're not going 24 to -- I don't think we're prepared at this point to rule 25 necennar.ily on that. We're dealing with the question of the ANN RILEY & ASSOCIATES, LTD.
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87 1 procedure in which we'll conduct this. I think that we are 2 satisfied to learn -- well, we'll hear what we need to hear 3 about the contention from the person that actually put the 4 contention forth. I don't think we feel it's going to add 5 anything to have all the parties here incorporated by 6 references -- incorporated by reference, you know, probably 7-- the cases you needito litigate. I want-you to also add that 8 we -- the_intervenors. We're not going to have every 9 intervenor here litigating every issue. Even if incorporate 10 by reference there will be a direction that certain 11 intervenors take the lead on intervention. To some degree 12 that's what we're doing now. We're saying that the party 13 that adopted - not adopted, but proposed the contention or 14 put it forth, thst's the party we want to hear from.
15 MR. KENNEDY: My understanding is that Skull valley has 16 been heard from. -Did they put forth this contention?
17 CHAIRMAN BOLLWERK: Skull valley, they are opposing the 18 contention. Mr.. Quintana does not want this to happen; is 19 that correct, sir?
20; MR. QUINTANA --That's correct.
21 CHAIRMAN BOLLWERK: He's in the same position as the --
22 MR. KENNEDY: Well, we would like the Court -- then in 23 that regard.
24 CRAIRMAN BOLLWERK: If you said that you wanted it 25 admitted -- all I'm saying is that my assumption is that you O
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88 1 want it adopted by incorporated by reference you certainly 2 can support that. All we're saying is that for purposes of 3 procedure here we can argue that we're going to hear from 4 the party that posed the contention, put forth the 5 contention in their pleading and put forth the basis.
6 MR. KENNEDY: We submit for the record that that's what 7 we've done by adopting it by --
8 CRAIRMAN BOLLWERK: I understand your position on that.
9 What I'm simply saying is for the present purposes all we're 10 going to hear from is the party that actually put the 11 contention --
12 MR. KENNEDY: Thank you.
13 CHAIRMAN BOLLWERK: Any questions about that? Did I 14 make myself clear?
15 MS. CHANCELLOR: Are we addressing the entire 16 incorporation by reference?
17 CHAIRMAN BOLLUERK: If you have something you want to 18 say, go ahead.
19 MS. CHANCELLOR: Okay. Our concern is if any of the 20 perties drop out what is the ability of those remaining in 21 to adopt the contentions of the parties that drop out. So 22 thet's our primary concern of incorporation by reference.
23 CHAIRMAN BOLLWERK: Frankly one could say I don't want 24 to get too much into the merits here. The main advantage of 25 incorporation by reference is that if the party does drop ANN RILEY & ASSOCIATES, LTD.
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89 1
out that the conteration is still there. You know, if the 2 incorporation by reference are not permitted, then it can 3 become a real bomb in there. I mean that would be the main 4 thing.
5 Decause even if the Board does allow incorporation by 6 reference, we will be working toward an intervenor situation 7 with-the contentions. So that,-you know, other parties have 8 an opportunity for input, but we're looking for one party 9 specifically -- contention which we would, you know, advise l 10 you all and get you copies.
11 MR. LATER: Your Honor, if I may add one point on that.
12 We also have a concern I think, and it's appropriate to 13 allow incorporation by reference. I think as we go in to 14 discovery there may be instances where although an original 15 proponent of a contention would certainly take the lead that 16 other parties may have additional viewpoints. They may be 17 able to contribute to discovery, and really contribute 18 usefully to the process. And we would suggest an 19 appropriate way for the panel to handle the concerns about 20 duplication of effort is really to address the coordination 21 of discovery and having another party take the lead, but not 22 barring others from contributing to that discovery process.
23 CHAIRMAN BOLLWERK: I would understand and, you know, 24 assuming-they would agree with that, you would have to work 25 that out obviously. But I would accept the intervenor --
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90 1 incorporated and to see what they want to ask. If there's 2 something the two of them can work out, then maybe --
3 contention. But that's something they can work out. But 4 2'm giving you a little preview of what we have in mind.
5 Did anyone -- incorporation by reference? I think it's 6 been addressed in the pleadings. My understanding of the 7 staff position, if you could help me, Mr. Turk.
8 MR. TURK: Our understanding of the case law, Your 9 Honor, is that when a party seeks to incorporate by 10 reference someone else's contentions, in effect they become 11 a co-sponsor of the contention, and that has been permitted 12 in other proceedings.
13 What we opposed here was the setting forth of a 14 separate contention that says, "I hereby incorporate by 15 reference other contentions." That does not by itself 16 constitute a litigable issue.
17 So, for instance, I believe it was OGD -- I'm sorry --
18 Confederated Tribes GFH that tried to incorporate by 19 reference. We oppose the contention itself, but we don't 20 oppose the adoption as --
21 CHAIRMAN BOLLWERK: --
if they wish to.
22 MR. TURK: There is something else to be considered.
23 Where a party has filed a contention, they may not wish to 24 have a co-sponsor. They may wish to litigate it j 25 independently. And I think that's something that I think ANN RILEY & ASSOCIATES, LTD.
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91 I the party that filed the contention must be heard on.
4 N- / 2 CHAIRMAN BOLLWERK: All right. I haven't heard any 3 objections in that respect, but Mr. Turk has a point.
4 Anybody that doesn't want help? Can I say to you --
5 MR. TURK: Well, it might be a problem for one of the 6 parties.
? CHAIRMAN BOLLWERK: I don't hear.anything at this 8 point. If that becomes a problem, and we do adopt 9 incorporation by reference, you -- immediately.
- 10 MR. TURK
- And there is something further, Your Honor, 11 in terms of the procedure to follow. You do have a rule on 12 contentions. Your statement to the parties I believe is 13 consistent with all the cases I have seen. That when there 14 is a multitude of parties and a multitude of issuss it is 15 appropriate to establish lead parties for various 16 contentions. And where there is a lead party, that party is 17 expected to coordinate its efforts with any other party 18 which has a share or a role in putting that contention 19 forward. So the burden will be upon the lead party to 20 assure that he coordinates -- he or she coordinates with the 21 other parties about the contention.
22 CHAIRMAN BOLLWERK: That's what the Board --
23 Mr. Blake, do you want to say anything on this issue?
24 MR. BLAKE: I would point out that when the --
25 incorporation by reference in our answer to the contentions O
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92 1 that no one took on the (indiscernible) that were made.
2 There simply is no answer to what we're saying.
3 We do, however, point out alternatively that the Board 4 itself is recognized has authority to combine 5 (indiscernible). No one seems to object to that. So this 6 one may not be a problem.
. 7 CHAIRMAN BOLLWERK: Let me just say one thing while a we're on incorporation by reference. If it's something that 9 you think is really important for us to know, we'll listen 10 to it on the contention. But if all you want to say is you 11 support it, I understand that you support it. It's not 12 necessary for you to say that. If it's something different, 13 radically different from what we heard, not -- we can't 14 simply have every party repeating that they agree with what 15 is said. That'u what I'm trying to avoid.
16 Let me just ask one procedural question here, and then 17 we're going to break for lunch.
18 If the Board were to set this major issue down, summary 19 disposition, would you all --
20 MR LATER: We would do whatever you would prefer on 21 that. I'll tell you frankly I think it probably takes 22 longer to write a joint brief than it does to write two 23 separate briefs. And if it's a question of page 24 limitations, you might set appropriate page limitations. It 25 might be easier for us to divide up --
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93 O 1 CHAIRMAN BOLLWERK: That's all basically I c.enn almost
'- 2 identical at least on the main issues.
3 MS. CRANCELLOR: I guess Castle Rock and the State have 4 filed a couple of contentions, and I think we may have a 5 different stand on some issues, especially the way in which 6 the State is effective. And while we would be willing to 7 coordinate, I think I agree with Mr. Later that it would be 8 easier to write separate briefs rather than to try to inter-9 mesh the two arguments. But we'll do whatever you want of
- 10 course.
11 CHAIRMAN BOLLWERK: All right. How much time --
12 you're talking-about cross-motions, what are we looking at?
13 MR. SILBERG; Before we move to that assumption, if 14 we're talking about these issues, I think that which has 15 been set forth in the pleadings already is more than 16 adequate. I think the Board is in a position to decide on 17 the admissibility of the contentions on the papers as they 18 stand, and I don't know that we need yet another round of 19 briefs of these.
20 CHAIRMAN BOLLWERK: I think if I understand what 21 Mr.-Silberg is saying, he feels that if he simply moves some 22 of his -- contentions without any further thought and simply 23 take those -- that he feels I guess it addresses the merits 24 adequately to decide the issue.
25 MR. SILBERG: I think that's right. You know, our
,O\ -
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94 1 first position I think is that the contentions shouldn't be 2 admitted.
3 CHAIRMAN BOLLWERK: I understand.
4 MR. SILBERG: They are clearly legal issues, and I 5 think legal issues are decided on the briefs. I think the 6 parties have filed the briefs, and I think we're prepared to 7 rest with what's on the briefs.
8 MS. CHANCELLOR: Yes, definitely a response. We want 9 the contention for purposes of admissibility of the 10 contentions along with other cententions. In terms of 11 summary disposition, we believe that we should have the 12 opportunity to present additional information to brief this 13 issue in its entirety. I think there's a difference between 14 summary disposition and admissibility of the contention. I 15 think that the Board would be assisted by additional briefra 16 in this case.
17 CHAIRMAN BOLLWERK: All right. Anything else?
18 MR. TURK: One thing on this point, Your Honor. Where 19 the Board finds that a contention does constitute a 20 challenga to the regulations, or that the contention even if 21 found in favor of the proponent, are not entitleci to relief.
22 There's no reason to go any further. The contention should 23 be denied at the outset.
24 But if it's unclear whether there's a challenge to a 25 regulation, or if you find that the contention does not ANN RILEY & ASSOCIATES, LTD.
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'~
1 challenge the regulation or might be entitle the petitioner
\
2 to relief, then it would be appropriate to admit it and move 3 for summary disposition on briefs.
4 To the extent that other ,arties feel the need to 5 brief, we're going to oppose the need for further briefing 6 once you find the contention is admissible.
7 CHAIRMAN BOLLWERK: If the Board were to allow 8 briefing, would you prepare a cross-motion or be the party 9 to go first?
10 MR. SILBERG: I believe since the contention in this l
11 case is one that is supported by State counsel I think they 12 ought to go first.
13 CHAIRMAN BOLLWERK: All right. Would you have any 14 objection to that?
15 MR. LATER: We would have no objection, 16 CHAIRMAN BOLLWERK: All right. Would staff then I take 17 it respond the same time?
18 MR TURK: Either the same time or afterwards, at your 19 pleasure.
20 CHAIRMAN BOLLWERK: I'm not saying we're going to admit 21 the contention. I just wanted to make that clear.
22 How much time would you need to prepare your brief?
23 Twenty days adequate?
24 MS. CHANCELLOR: Twenty days you mean from today?
25 CRAIRMAN BOLLNERK: No, no, no, no. We're trying to p
s-
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96 1 prevent another set of phone calls --
2 MR. LATER: Your Honor, I assume you're talking about 3 what is essentially the first contention of both Castle Rock 4 and the State.
5 CHAIRMAN BOLLWERK: Your indication to me is that 2 and 6 3 are very likely going to go the same way. If we were to 7 go one way or the other, then 'fou'd answer that as yes, with 8 that understanding.
9 MR. LATER: I think my position would be different on 10 number 4 as far as discovery goes on that.
11 CHAIRMAN BOLLWERK: You make that clear.
12 Twent days?
13 MS, CHANCELLOR: Why not. You haven't given us 14 anything else to do.
15 CHAIRMAN BOLLWERK: Will that be enough time for you?
16 I guess you figure you already filed everything you want to 17 say anyway. Taken an opportunity to review them.
18 Again -- future schedules. All right. We have 10 19 after 12:00. Why don't we take our lunch break at this 20 point. Let's try to get back by 1:30. That is about an 21 hour2.430556e-4 days <br />0.00583 hours <br />3.472222e-5 weeks <br />7.9905e-6 months <br /> and 20 minutes.
22 MR. SILBERG: Can we leave things in the --
23 CHAIRMAN BOLLWERK: Yeah, we can leave things in the 24 room.
25 And when we get back let me switch the presentation a ANN RILEY & ASSOCIATES, LTD.
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97 1 little bit. Let's deal with Castle Rock number 5, because 2 it's-dealing with the same sort of questions. Then we'll go 3 to the --
4 (Recess from 12:10 p.m. to 1:30)) <
-5 CHAIRMAN BOLLWERK: 'All right. We're back for our-6 afternoon session.
7 Just for planning _ purposes, I think we went about two 8 hours today, which is a long time without a break. I'll try 9 not to go_quite that long this afternoon. We'll probably 10 take.two brief breaks, one around 3:00, one maybe around 11 4:30. Don't hold me to that precisely, but we'll work them 12 in there so everybody gets a chance. It is our -- to use 13 the restroom or whatever they need to do.
14 -- -It is our-intention-to go till 6:00 tonight. And maybe 15 toward the end of the day _we can talk about the schedule for 16 further into the week. I know there's been at iaast one 17 alternative proposal which I'm glad to talk with people 18_ about. Our point is that, you.know,-we want to press 19 -forward here and get -- be as efficient as possible while
-20 we're here,-because we--do want to get done this week. I 21 don't think it's in anybody's interest to have to extend 22 this any further than this v'tk. So---
- 23. I don't see Mr. Wilson here. And I'm going to go ahead 24 and --
25 MR.-QUINTANA: We can proceed without him.
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98 1 CHAIRMAN BOLLWERK: Without him. I'm going to go ahead 2 and proceed without him with the understanding that I -- he 3 hasn't said anything about how often he is or isn't going to 4 be here, so --
5 MR. QUINTANA: Just today. After today he's got some 6 business at Harvard he has to take care of.
7 CHAIRMAN BOLLWERK: All right.
8 I also want to make clear to Mr. Kennedy that, again, 9 if you have something to say on a contention you didn't 10 sponsor, and you think it's very important and nobody else 11 has asid it, I'm more than happy to hear from you, sir. But 12 if it's -- if you can't fall within those confines, and I 13 understand you support their contentions, then that's where 14 we'll let off. All right.
15 MR. KENNED'a's Thank you, Your Honor. I just wanted to 16 say that it seems to me that when people talk about 17 authority, they're talking about jurisdiction. And it seems 18 to me that the panel has the ability; it's, I think it's 19 black letter law to raise the issue of jurisdiction by 20 itself or consider the issue raised by a party at any time 21 during the course of the proceeding. And we think that it 22 certainly is a fundamental point going to the very heart of 23 this proceeding. So that's all I wanted to say.
24 CHAIRMAN BOLLWERK: All right. Thank you, sir.
25 All right. This afternoon I'm going to switch the ANN RILEY & ASSOCIATES, LTD.
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99 1 order slightly. Why don't we deal with Castle Rock.5, if Os 2 you don't mind first. It deals with the application for a 3 current repository, which sort of is in the same subject
, 4 matter that we were talking about. And then we'll go back 5 over and talk about Utah's B, which deals with the licensing 6 due for the intermodal transfer point. All right? So we're 7 talking about sort of high level waste matters and that sort 8 of thing.
9 MR. LATER: Thank you, Your Honor.
10 Let me begin. I think that this breaks down again into 11 two issues the panel needs to consider. One is, and the 12 contention is, that the application is in fact an l
13 application for what will be a de facto permanent 14 repository; and therefore, is inappropriately brought vnder
[Jh 15 the NCR Part 72 regulations and more appropriately 16 considered under the set of regulations provisions governing 17 the Nuclear Waste Policy Act.
18 I think the two issues raised by that is, again, one is 19 this an issue that this panel appropriately can consider.
20 And in that regard, this contentien runs into the face of 21 the Commission's waste confidence decision. ,
22 I think as I looked at that and analyzed it, although 23 there are perhaps some ingenuous sorts of arguments by which 24 one might attempt to argue that this is not -- our 25 contention ooes not conflict with the waste confidence t
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100 1 decision, reality is that we are challenging that waste 2 confidence decision. We are calling upon this panel to 3 either revisit that issue or decertify the question to the 4 NRC.
5 We think that'c particularly appropriate given the 6 nature of that Commission regulation, which is as the
? Commission has noted. By way of a prediction, the 8 Commission has made a point of ar.ressing that it is a 9 decision that the commission is ready to revisit in the 10 light of changing circumstances. And it is a decision that 11 I think was fundamentally adopted for purposes very 12 different than this panel faces in this hearing.
13 I am sure that the NRC considers on a regular basis 14 extensions, changes, amendments to interim waste storege 15 facilities that are appropriately licensed under 10 C.F.h.
16 Part 72. And the burdensomeness of reconsidering the en: ire 17 panoply of policy behind the Nuclear Waste Policy Act in 1h every one of those was clearly something that it was not 19 sensible to do. But in none of those cases has the 20 Commission been f aced with a f acility that was in realit y, a 21 replacement for or a significant portion of the nation's.
22 nuclear waste disposal program and policy.
23 That by itself constitutes, we submit, a sufficient 24 changed condition to justify the Nuclear Regulatory 25 Commission and/or this panel in reconsidering the waste ANN RILEY & ASSOCIATES, LTD.
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101
( 1 confidence decision.
2 There are in addition, we believe, a host of changed 3 events of a significant nature that impact the rationality 4
and basis of that decision that have occurred since the 5 adoption of the waste :enfidence decision. And let me 6 briefly enumerate what is, at best, a partial list, and by 7 no means exhaustive.
8 You have an applicant before you that has quite 9 candidly acknowledged the failure of the Nuclear Waste 10 Policy Act in responding to our contentions and acknowledged 11 that they have brought this application before this panel 12 because of the failure of the Nuclear Waste Policy Act. And 13 that admission is at page 342 of the applicant's responses I h 14 to the contentions.
15 You have before you an application that dramatically 16 affects the structure of the Nuclear Waste Disposal Program.
17 You have before you years more of continuation of DOE 18 failure to implement the programs that are mandated under 19 the Nuclear Waste Policy Act. And simply the passage of 20 those years without visible progress being made in the 21 location and construction of a permanent repository calls 22 into question the rationality of the waste confidence 23 decision.
24 You have before you the spectacle of the Department of 25 Energy acknowledging the failure of its implementation of
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102 1 that program before t.ae D.C. Circuit Court of Appeals, and 2 the Department of Energy being sufficiently une.crtain of its 3 ability to implement that program that it has refused in 4 that litigation to commit to any time frame in which it will 5 be able to accept wastu. Now that certainly is change in 6 circumstances from the time when the waste confidence 7 decision was adopted.
8 And you have in response to that the D.C. Circuit Court 9 of Appeals finding the Department of Energy to te in default 10 of its obligations under the Nuclear Waste Policy Act. You 11 have in addition continuing and mounting series of technical 12 questions regarding the suitability of the Yucca Mountain 13 sites distance of earthquakes, some evidence of groundwater 14 flows through the location of the site, that calls into 15 question the suitability of the only site under 16 consideration for a high level waste repository. And you 17 have the continuing political obstacles to location of a 18 permanent repository.
19 All of those together, we submit, justifies the Nuclear 20 Regulatory Commission in revisiting, as it has expressly 21 indicated it would, if there are significant changed 22 circumstances. And in light of the program, an application 23 that comes before you as a significant variation from the l 24 Nuclear Waste Policy Program, we submit that it is 25 apleropriate for this panel to either revisit that waste ANN RILEY & ASSOCIATES, LTD, Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
l 103 !
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1 confidence decision or-decertify it to the commission as 2 appropriate.
4 s
3 CHAIRMAN BOLLWERK- I take it this relates to your '
4 application, or your rule making petition that you filed?
5 MR.-LATER: It does. That is included as well within 6 our petition. We believe that circumstances simply exist on 7 their f ace in the contentions to justify this pamul in !
8 taking in) that issue and resolving it without even reaching 9 the petition. Finally -- !
10 CHAIRMAN BOLLWERK: This is a rule waiver petition 11 actually. It's not a rule making petition.
12 MR. LATER: That's correct, Your Honor. i 13 Finally, if you look at kind of the face of the [
- 14 application, and look at the schedules that are in place, it
, 15 is -- it's pretty clear that even if a permanent repository 16 was up and running by the end of the first quarter of the
- 17 next century, it would not be capable of receiving the 18 proposed waste to be stored at_this facility by the end of 19 its license period, r
20 oon the face of the application, we believe you can- .
21 determine that this facility cannot be retired, either 22 within its original application term or within a 20 year
- 23 extension of'that term. And therefore on its face, the 24 waste confidence decision can't be satisfied here.
25 CHAIRMAN BOLLWERK: Is-there anything that precludes
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104 1 the Commission from extending the license for another 20 2 years beyond that?
3 MR. LATER: I'm unaware of anything that would, Your 4 Honor. But I think when you get out to a time frame of a 60 5 year interim repository, that this panel should then be 6 looking at whether or not you were dealing with something 7 that truly fits the criteria of being interim; and whether 1 8 this panel needs to visit whether this is something that's 9 appropriately licensed under 10 C.F.R. Part 72, whether you 10 need to be looking at a much broader range of safety, 11 environmental, economic concerns given the time frame that 12 that facility would exist.
13 So that I think is the first issue that the panel faces 14 here. I will be candid with you. I think we do conflict 15 with the waste confidence decision. I think that there is 16 compelling case for revisiting that decision.
17 second piece of it is our centention is is when you 18 look at this creature and you remove all labels from it, 19 look at it in reality, in light of the politics and the 20 condition of the Nuclear Waste Repository Program, you 21 cannot help but conclude that this is, for the foreseeable 22 future, the only waste repository this nation will have.
23 And that if you do that, it is no longer appropriate to 24 consider it as an interim facility, bat as what in reality 25 it will become, which is a permanent repository. Ar.d as ANN RILEY & ASSOCIATES, LTD.
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105 gN 1 such, it has to be evaluated as a permanent repository.
l 2 CHA7RMAN BOLLWERK: All right, sir. Thank you.
3 Mr. Silberg.
4 MR. SILBERGt I would agree that this contention is a 5 clear challenge to the rule. And therefore, I think for the 6 reasons that we've talked about before, it would be wholly 7 inappropriate for the Board to admit it. The proper process 8 is to treat it under 2.758. And to the extent that Castle 9 Rock's petition covers that, you know, that's something that 10 will be dealt with when we brief that issue.
11 The other alternate for Castle Rock if they want to 12 challenge a rule is to file a rule making petition under 13 2.802, I think it is. So I think everyone agrees that this 14 is an inappropriate contention in this proceeding.
15 With respect to the specifics of Castle Rock's 16 argument, to say that Part 72 was adopted for purposes very 17 different from this facility, I think is reading into 18 Part 72 something that isn't there. Part 72 was adopted for 19 interim apent fuel storage facilities, both at reactors and 20 away from reactors. It does have in it license terms of 20 21 years except for the MRS, which for reasons unknown to mo
- 2 was granted a 40 year license. But for the 20 year 23 licenses, those are subject to renewal. As the chairman 24 indicated, not necessarily only once.
25 With respect to whether there are -- have been O
~- ANN RILEY & ASSOCIATES, LTD.
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106 1 significant changed events since the waste confidence 2 decision I think Castle Rock has misread the reference that 3 they cited. Page 342 of our brief did not say that there 4 was a failure of the Nuclear Waste Policy Act. Or if it 5 did, I don't see it on those pages.
6 What it does say is that subpart -- subtitle B of the
? Nuclear Waste Policy Act is now defunct. And that is a very 8 small portion of the provisions of the Nuclear Waste Policy 9 Act. Those are the provisions providing for interim spent i 10 fuel storage by the government, limited to 1900 metric tons, 11 limited to utilities who entered into contracts by 1990.
12 That is not the entire program; that is not the entire 13 interim storage program for all parties. That was one 14 subpart, if you will, of the Nuclear Waste Policy Act, 15 Has DOE acknowledged a failure in implementing Nuclear 16 Waste Policy Act? Certainly DOE has acknowledged that 17 they're not going to make the 1998 doadline. I don't la consider that to be a failure in implementation of the 19 Nuclear Waste Policy Act. It is simply a failure of one 20 poltion, one very important deadline.
21 As the Board I'm sure knows, DOE remains on track in 22 terms of doing its site viability study for the Yucca 23 Mountain site. They have promised that that will be 24 released in September of 1998. They have said publicly that 25 there are no show-stoppers. The repository is a long way, ANN RILEY & ASSOCIATES, LTD.
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107 7N 1 we will all admit, from being licensed or built. But there i
2 is no failure in implementation of the Nuclear Waste Policy 3 Act as a whole.
4 With respect to DOE's refusing to commit to any time 5 frame, DOE has never committed to a time frame. Congress >
6 committed to a time frame on DOE's behalf and we have sued 7 to entorce that time frame, but DOE has never committed to a a time frame, now or at any other point in the process. So I
9 there is no change in DOE's position from the time the rule 10 was adopted.
11 The Commission certainly was aware of the fact that we 12 would not likely have a repository in 1998. And indeed, 13 that's why the waste confidence rule states the Commission's h
[b 14 15 confidence that-there would be-a repository up and running sometime in the first quarter in the 21st century. And 16 there is no -- nothing that has been put forward by Castle 17 Rock or anyone else that that date will not be met.
18 As to whether the technical questions on feasibility 19 are sufficient changed circumstances to warrant the 20 Commission let alone this Board from reopening the waste 21 confidence proceeding, certainly there's no new information.
22 And there's even a question as to whether this kind of bases 23 is appropriate at these -- at this time. These were not 24 issues that were raised initially, I believe, by Castle 25 Rock, and one cannot add late bases without good cause.
(
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A06 1 But put that auide for the moment. Earthquakes, 2 groundwater motion are things that have been known for many 3 years at Yucca Mountain. Those are things which are being 4 studied. That is not new information to the Commission. It 5 is not new information, I suspect, to this Board. It is not 6 new information to Private Fuel Storage.
7 Whether continuing political obstacles somehow is a 8 brand new event that requires the Commission to reconsider 9 the waste confidence rule. Certainly political obstacles 10 have been with us since the beginning of the program. The 11 Nuclear Waste Policy Act is structured in light of 12 everyone's awareness that there were those political l
I 13 obstacles. There's simply no new information there.
14 Do any of these justify the NRC in revisiting this 15 rule? We think not. Do they justify certifying the 16 question to the Commission under 2.718? We think not for 17 the reasons that I expressed before.
18 Castle Rock then went on to argue that even if a 19 repository were running by 2025, that it wouldn't be capable 20 of receiving waste by the end of the license. I think 21 Castle Rock's calculations on page 28 of their response 22 filing are simply wrong. When they multiply out a waste 23 acceptance rate of 900 metric tons per year times 44 years, 24 they're simply making up numbers.
25 The only place that that 900 metric ton number comes ANN RILEY & ASSOCIATES, LTD.
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i 109 1 from is from the capacity report, which is Exhibit i to 2 their filing. And if they will read at the bottom of page 3 three and page four, top of page four of their filing, 4 they'll note that that 900 metric ton rate is based on a MRS S receivable rate prior.to repository operations. And it says-6 it's a nominal rate that's based on legal constrictions that 7 apply now and are unrelated to the repository.
8 The acceptance rate that they talk about also totally 9 ignores the role that the MRS would play. So their 10 hypothetical that somehow on .ta face a interim storage 11- license for this facility can't be justified because of the 12 receiving rate simply has no basis in law, fact or anywhere 13 else.
14- With respect to the-timing, whether 60-years-is the-15 right number or 40 years is the right number. The fact is
-16 that the back --.Cne Statement of Consideration supporting 17 the waste confidence rule clearly demonstrates the 18 Commission's belief that, from a safety standpoint, interim 19 storage for a period of 100 years or more is safe and
-20 adequate.
21 So again, we're getting into speculation on 22 . speculation, none of which justifies the acceptance of this 23- contention, the certification of this contention, or the 24- revisiting of it by the Commission.
25 With respect to their final _ point that_this facility is O ANN RILEY & ASSOCIATES, LTD.
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110 1 really a permanent repository because there will be waste 2 there for the foreseeable future. If this facility is not 3 built, the waste -- ond if the hypotheticals which Castle 4 Rock has spun out come to pass, the fuel will remain where 5 it now is at reactor sites. And if their speculation and 6 their legal theories are correct, then each reactor will 7 become a repository.
8 I think that analysis shows the frailty of that 9 hypothetical that they have created and why it's not a basis 10 for accepting this contention or certifying it to the 11 Commission, or for the Commission revisiting the waste 12 confidence rule.
13 DR. LAM: Mr. Silberg, hypothetical. At the end of the 14 facility's licence, what are the disincentive for the 15 applicant to walk away from the facility?
16 MR. SILBERG: I'm sorry, what are the disincentives?
17 DR. LAM: Disincentive.
18 MR. SILBERG: Aeide frcm the operation of law and the 19 fact that you would be violating a eicense, you would be in 20 civil enforcement space and criminal enforcement space; 21 aside from the contractual obligations; aside from our 22 obligations to the Goshute Skull Valley Band; and aside from 23 the fact that DOE has the ultimate responsibility set by 24 contract, set by statute, and interpreted by the U.S. Court 25 of Appeals in the D.C. Circuit, I guess I can't think of ANN RILEY & ASSOCIATES, LTD.
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-x any.
1
\- / 2 DR. LAM: So you are saying if they - t to walk away, 3 there are many obstacles the applicant must overcome?
4 MR, SILBERG: Absolutely. This Commission has not 5 looked kindly on the one case that I can recall where an 6 applicant tried to walk away from a licensed facility.
7 CHAIRMAN BOLLWERK: All right, 8 I'll need you, Mr. Quintana, unless I see some motion 9 from you,-I'll then move to the back, if you don't have l 10 anything to say.
11 MR. QUINTANA: Very briefly.
12 What will occur in technology over the next two decades 13 is something that is totally unforeseeable, not only by this
/'~'}
i 14 licensing board but by any court. I think this Court can
'~'/
15 take -- this hearing panel ca.. take judicial notice that 16 oecisions cannot be made based upon speculation. And it's 17 sheer speculation, at Jca very, very highest, to presume 18 that the fuel is going to be there in a permanent repository 19 mode.
20 This contention is objected to by the Skull valley Band 21 of Goshutes. There is no intent whatsoever for this 22 facility to be a permanent facility. That is absolutely 23 crystal clear not only between the utility companies and the 24 lessor, skull Valley Band of Goshute, but under federal law 25 the Goshutes cannot own the spent fuel nor can it remain O
\~ 2 ANN RILEY & ASSOCIATES, LTD.
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112 1 there, yi
[g%s 2 I think that at the end of 20 years, giv.1 the changes
& 3 and the research that's occurring internationally on 4 solutions t' ahat to do with the spent fuel, both with 5 transportation technology and otherwise; ar.d if this country 6 decides to reprocess its spent fuel, those assemblies cost 7 about a million dollars apiece, and you can recover about 40 8 percent of the energy if you reprocess it.
9 Given the changes that will occur over the next few 10 centuries as the Internet becomes more predominant in terms 11 of the sharing of scientific information, I would object to 12 the characterization of this facility as a permanent 13 facility.
14 CHAIRMAN BELLMERK: All right, sir. You raise your 15 hand before I go to the staff.
16 MR. KENNEDY: In response to the Court's question 17 regard;ng wh ther there's any reason why it could not be a 18 60 year facility. My understanding of the regulations is 19 that there is a 20 year limitation with the option to renew 20 fc. an additional 20 year period on Indian trust land. I 21 think that's found in 25 C.F.R., I believe it's Part 151, 22 Don't holu me to that part number, but it's the section that 23 deals with leasing on Indian trust land.
24 So they have, as I understand it anyway from 25 representations that have made, they've got a lease for 20 ANN RILEY & ASSOCIATES, LTD.
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/)
N' 11 years and an option for an additiona.1 20 years, which would 2 be the maximum amount allowable by law.
3- There is a provision under 25 U.S.C. which identifies 4 specific reservations that are permitted to have leases of 5 longer duratici, but the Skull Valley Band is not included 6 in that list.
7- MR. SILBERG: If I can make one correction. I think
- 8. it's 25 years plus 25 years, Mr. Kennedy.
9 MR. KENNEDY: I think it's 20 plus 20, 10- CHAIRMAN BOLLWERK: All right. Well, we'll haul out l
11 the regulations sometime. How's that?
j 12 MR. KENNEDY: Yeah.
13 CHAIRMAN BOLLWERK: It's in there. It should be
[ v anyway.
15 All right. Staff.
16 MS. MARCO: Staff believes that Castle Rock's 17 ' contention 5 is an impermissible attack on the Commission's 18 waste confidence decision, and as such, is barred as a
- 19. matter of law from this proceeding unless there's a 2758(b) 20 petition.
21 Your Honor, the staff also wants to inform the parties 22 and Board that_the commission does periodically review its 23 waste confidence decision. It --
I'm not sure when the next ;
24 review is, but it is done on a periodic basis, so it's not 25 set in stone.
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114 1 CHAIRMAN BOLLWERK: All right. Let's hook back,to you, 2 sir. And just so you know, I'm probably going to ask you ,
3 about Utah Alliance, to see if they have some related 4 information.
5 MR. LATER: Sorry, Your Honor, I didn't --
6 CHAIRMAN BOLLWERK: I'm just telling Mr. Quintana I'm 7 probably going to ask about Utah Alliance.
8 MR. LATER: Let me start by something that really 9 doesn't tie into the regulations that I think is important 10 pertaining to this panel.
11 And that is one of the reasons that this panel, I 12 presume, is out here, has been through this process, is to 13 provide confidence in people whose lives will be affected if 14 this facility is built; that they have appropriate 15 ptotections, assurances; that their questions have been 16 answered. And as I've listened to the news reports and 17 watched Private Fuel Storage's spokesmen, they have asked 18 the people of Utah through the media to wait, don't judge 19 this facility, let your questions be answered in these 20 hearings.
21 I have to tell this panel, probably one of the primary
..i 22 questions people in this state, certainly this corner of the 23 state are going to be asking by this, is this in fact a 24 temporary facility? Is it a 20 year facility, is it a 40 25 year, is it a 60 year, is it a 100 year facility? How long ANN RILEY & ASSOCIATES, LTD.
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115 1- - will the people of this state live with that. And it will 2 be a real tragedy if this panel does not find a way to 3 address that. And I think there is clearly questions.
4 If we run up and down the table here, everybody's got a-5 guess about how long they think this might last. -And not-6 very many of them are within the period described by the 7 waste confidence decision.
8 CHAIRMAN BOLLWERK: All right.
9 MR. LATER: And-today we would celebrate --
10 CHAIRMAN BOLLWERK: I'm sorry.
11 MR LATER: Today we would celebrate, or this year, the 12 opening by-law, under the Nuclear Waste Policy Act, of the 13 first permanent repository. We don't have an approved site iv for a permanent repository. I'm told that DOE's current _
15 projections are sometime around 2010. The Government 16 Accounting Office more realistically says 2023 now. Reality 17 is probably no one knows whether or when a repository will' 18' be built.
19- The Nuclear Waste Poli'cy Act describes the disposal of 20 nuclear waste as a national problem requiring a national 21 solution, in which all parties of this nation join in. To 22 create an ad-hoc facility without the participation of 23 people who will be burdened by it would be a travesty-of 24 that national commitment.
25 Let rne cite to you Private Fuel's language that ANN RILEY & ASSOCIATES, LTD.
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116 1 Mr. Solberg and I disagree as to just what they said and let 2 the panel decide. Page 342 of their responses, Private 3 Fuel's:
4 " Applicant agrees that DOE has failed to execute 5 its responsibilities in a number of respects under 6 the NWPA. Applicant agrees that the PFSN will 7 relieve some of the consequences of DOE's failure.
8 Indeed, that is the intent of the PFSN."
9 That language alone, I submit, justifies this panel in 10 revisiting the waste confidence decision and making a 1 ?. rational decision about just what kind of commitment the 12 people of Utah are being asked to undertake with respect to 13 this facility.
14 Because the reality is whatever the license term of 15 this facility, once the waste is removed from where it is at 16 and put in Utah, if there is not another facility that will 17 be a permanent repository, it will be there, because no one 18 else will step up and volunteer to take this.
19 The reason we're here today is because of the enormous 20 political resistance to acceptance of the waste, even for a 21 permanent repository. The reason this application is made 22 is because people in the states where the waste is now 23 stored want it out of there. They're not going to take it 24 back.
25 This panel needs to make a rational, realistic 1
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117 determination of just what it is they are licensing.and-just O 1_
2_ what it is they're-asking the people of Utah undertake. And 3
there is sufficient evidence of the failure of the NWPA 4 program that this panel needs to revisit the reality.of the 5 assumptions that are set forth in the waste confidence -
6 decision. Thank you.
7 CHAIRMAN BOLLWERK: All right, sir.
8 Let's change the proceeding's direction here and deal 9 with-the only other petition. How long do you-need to 10 respond to that? I'm sorry, there's only one other 11 petition.
12 MR..SILBERG: I frankly haven't had a chance to look at 13 it yet.- I would think, you know, depending on what other 14 things we find ourselves obligated to, you know, three weeks
- US after the close of the hearing. It might be sooner, I-just, 16 without having had a chance to look at it, I don't'want to 17 hazard a guess. We could probably' send-it over one of the l :UB night freights, ta'ke a quick look at'it and make some 19 judgment.
20 CHAIRMAN.BOLLWERK: All right. Staff have any idea how 21 -long they need?
22 MR. SILBERG: Why don't we get back to you tomorrow.
23' CHAIRMAN BOLLWERK: What's that?
24 MR. SILBERG: If I could get back to you tomorrow with 25 an estimate, b
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118 1 CHAIRRAN BOLLWERK: All right. Well, we can do that.
2 Let's make sure we bring this up again though so we can set 3 a date; all right?
4 Yes.
5 MR. SILBERG: If I could just address a few of the 6 points. And I know this is never-ending, but hopefully 7 the --
8 The point that counsel for Castle Rock has made are 9 certainly politically interesting points. There is a 10 national problam that deserves a national solution. The two 11 leaders involved in Private Fuel Storage have been battling 12 for 10 years to make sure that DOE meets its obligations.
13 oddly enough, the State of Utah has not seen fit to 14 participate in that process to make the DOE program meet the 15 schedule that it's supposed to.
16 But putting that aside, the issue here is under the 17 rules that this Board is obligated to function under, is 18 this Board the proper forum to have a national hearing on 19 the state of the DOE program? I think that it isn't.
20 The Commission by rule has gone through, I think it's 21 twice, or maybe three times, the waste confidence rule 22 making. It's just done in response to a decision by the 23 U.S. Court of Appeals for the D.C. Circuit. Case's name is 24 Minnesota v. NRC. And in that case, the question was raised 25 about how long will these sort of facilities, how long will ANN RILEY & ASSOCIATES, LTD.
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I spent fuel stay at individual power reactions.
2- The Commission responded to that court decision by 3 overly generic rule making, in which many parties 4 participated.- Many of the environmental groups were 5 parties. DOE was a party; NRC was a party; utilities were a 6 party. That rule making, extraordinarily detalied record, 7 .has been reopened on, I believe two occasions. And that is 8 the right forum for these kinds of questions to be 9 addressed, not-before -- not for an application on a single 10 ' facility.
.11 I think it's also interesting to note that while Castle 12 Rock says that Private Fuel Storage is going to seni -- will 13 store spent fuel indefinitely into the future, at the same
\
[ 14 time, arguing that we don't need the facility because of 15 -pending government sponsored storage sites. That's on page 16 37 of their response.
17- -Seems to me-that Castle = Rock can't have it both-ways.
18 Either they can say we need the= facility or they can say 19 -there.are no alternatives. Then in which case we are once 20 again bound by Commission rules. But they can't in one 21 breath say that the fuel will be there ferever and in the 22 next breath eay that we don't need the facility because we 23 -have-all these pending government sponsored sites.
24 CHAIRMAN BOLLWERK: Thank you, sir.
-25 .You get the last word, so don't breathe.
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120 1 MR. LATER: I Just want to see if I can say it.in one 2 breath.
3 This is obviously an unpleasant process. When the heat 4 is on and there has to be a solution, then the nation wi]l 5 find a solution. It will be one that will be political. If 6 this facility is licensed, that removes the incentive from 7 the nation to do the difficult task of finding an 8 appropriate facility that's done with the kind of input and 9 participation that the Nuclear Waste Policy Act 10 contemplates. That's why it's of deep concern.
11 CHAIRMAN BOLLWERK: All right, sir.
12 Let's talk then about Utah --
13 MR. NELSON: Can you just let us --
14 CHAIRMAN BOLLWERK: Sure. You want a discussion? I 15 don't know, are we going to consider all of Utah right now, 16 or just as it relates to this --
17 MR. NELSON: Is everything --
18 CHAIRMAN BOLLWERK: Would you agree with me that I 19 guess a portion of it is related to the technical -- would 20 you have a problem with discussing the technical claims?
21 Anybody else have an objection to that?
22 All right. Why don't we do that then.
23 (Pause) 24 CHAIRMAN BOLLWERK: Everybody on the same page?
25 Go ahead, Mr. Nelson.
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i 121 1- MR. NELSON: This contention is related in that under 2 the National Environmental Policy Act, the law that requires 3 that there be prepared for the decision maker an 4 environmental impact statement. The question arises as to I 5 the scope of that environmental impact statement as it 6 relates to any connected actions.
7 The State's contention is is that the environmenta) 8 . report that was prepared in conjunction with the initial 9 phase of beginning the process of preparing the 10 environmental impact statement is deficient because of the 11 very limited scope in dealing with connected actions.
L 12 The issue that has been Just described of the 13 relationship with the Nuclear Waste Policy Act and the scope 14 of that act can be considered in two respects. -The first 15 being that one could-say, under NEPA rules,-that-a 16 programmatic or revisit of the overall program should be 17 appropriate here because of the effect that this site could 18' .have, and probably will have if it is licensed, on the
- 19. overall disposal of waste.
20 Even-if you don't go to-that extent of saying the EIS 21 must-be a programmatic statement, you at a minimum must 22 consider'the effect and environmental effects of the 23 specific action on that national program. And that is the 24 basis for this contention.
25 If I could digress just a minute to discuss an
(
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l 122 1 important point with respect to the rules that apply in this 2 circumstance.
3 The NRC staff have commented and used the term 4 " guidelines" consistently with respect to the Council on 5 Environmental Quality Regulations. When NEPA was passed, 6 congress set up the Counsel on Environmental Quality as the 7 supervisory agency. And they did initially promulgate 8 guidelines. President Carter, in an executive order, 9 specifically mandated that those be established as rules.
10 So when we talk about CEO guidelines and the 11 relationship to these proceedings, that is an incorrect 12 statement. Those are CEQ regulations. And while they are 13 advisory to this Board, they are more important and more 14 significant than simply a guideline in that if there is 15 inconsistencies with those established regulations, it is 16 something that this Board would have to deal with, in our 17 opinion.
18 Now the CEO regulations are very specific in 19 Section 1502.4 in stating that "Any proposal or parts of 20 proposals which are related to each other closely enough to 21 be and in effect a single course of action, shall be 22 considered and evaluated in a single impact statement."
23 At a minimum, the effects of this proposal on the 24 federally established Nuclear Waste Policy Act program must 25 be considered. The applicant has attempted to limit the ANN RILEY & ASSOCIATES, LTD.
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123
T 1 scope to a very narrow consideration of the environmental 2 effects and consequences in the region, in the Skull Valley 3 area.
4 The staff, the nature -- the NRC staff respond to our 5 argument by saying that the Nuclear Waste Policy Act and 6 specific provisions are inconsistent with the State's 7 position. And say therefore, that the CEQ regs don't need 8 to be followed.
i 9 If you look at the Nuclear Waste Policy Act, there are 10 three separate provisions that govern the development of an-11 environmental impact statement. The first is the provision f
12 that affects a federal interim facility. And there are 13 certain exemptions provided under the act for interim s
[b h 14 15 facilities and the prepar?. tion of an impact statement, The second provision is a provision dealing with 16 permanent repository. And again, there are some specific 17- exemptions from the EIS process.
18 Thirdly, there are specific provisions that deal with 19 an MRS facility. And likewise, there is a set process 20 outlined for the EIS preparation. There is nowhere in the 21 Nuclear Waste Policy Act a specific section that deals with 22- the preparation of an impact statement for a national 23 private storage site.
24 It's our contention therefore, that in preparation of
)_ 25 the environmental report, it is necessary for the applicant, s
-~.
t.
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124 1 and appropriately, in follow-up to that, necessary for the '
2 Nuclear Regulatory Commission to prepare an environmental 3 impact statement that considers connected actions. And 4 those connected actions, as has just been discussed, is 5 directly related to the national program, and specifically 6 referring to the provisions that Mr. Later has just cited 7 and quoted from the applicant.
8 If I can mention just one particular case that was 9 cited by the applicant, the Savannah River case, as support 10 for the fact that connected actions may not need to be 11 considered here. They cite the Savannah River case at page 12 333 of their brief.
13 I would point out to this panel that that case involved 14 a very small number of caps. And there were already a 15 location for those caps that had been -- that was available.
16 There were 409 -- I'm sorry, not caps. 409 spent fuel rods 17 was at issue there. We are not talking here about 409 spent 18 fuel rods.
19 And that case is not suppor: for the argument that 20 we're making, and that is that a carefully prepared 21 environmental repor: that considers impacts on the program 22 as it relates to the national program is necessary in order 23 to comply with NEPA.
24 CHAIRMAN BOLLWERK- Mr. Silberg.
25 MR. SILBERG: The question is what is a connected ANN RILEY & ASSOCIATES, LTD.
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=125 1 action, and is this the connected action? We think,it's 2 not. CEO guidelines,. regulations are not regulations that 3 are binding on this Board in any event. Even if they were.
4 this is not a connected action.
5- The-analysis.on defining-that concept that is the
-6 Savannah River case that the State was referring to lays out 7 four factors. None of them are met in this case. Our 8 proposal does not automatically-trigger any DOE actions.
9 It's not dependent on any DOE actions taking place 10 beforehand. And it's not a dependent part of the DOE-11- . program. I'm sorry if I said four criteria. I meant three.
12 Are we:part of the DOE program? No, Is there anythi'ng 13 in Nuclear-Waste Policy-Act that governs how an EIS or an
-s 14 environmental report for our facility should be working?
l 15 No. Is that surprising? No. Because the Nuclear Waste--
16 Policy Act simply does not govern our facility, so it's not 17 at all surprising that it'shouldn't identify.how to write an r-
'18. environmental _ impact statement for this project.
19 Is there an impact that this facility _will have on the
'20' ' DOE program? Will the storing of spent fuel here reduce the 21 need for a repository? There's no' evidence to that effect.-
, 22 As a legal matter, it's clearly incorrect.
23 Will it reduce DOE's legal obligation to take our fuel
.24 startingoon Saturday of this week? That legal obligation 25 remains. What our remedies will be have yet to be ANN R! LEY & ASSOCIATES, LTD.
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126 1 determined.
2 CHAIRMAN BOLLWERK: Is the bill in the mail, is that 3 the question?
4 MR. SILBERG: As the panel asked DOE's counsel when we 5 argued the first case, and as you'll need to compare their 6 position with a Yiddish proverb that the judge's mother had 7 told him, "Give us air. Now give me money."
8 We fought that battle, and we're continuing to fight 9 it, but the DOE program is not on the schedule that we would 10 like; that is, it's not defunct as some of the people here 11 today would say.
12 But in any event, what we are doing will not change one 13 iota DOE's legal obligation or the nature of its program.
14 There's no evidence, there's ne indication that DOE's budget 15 has changed because we have a project out there. There's no 16 indication, there's no evidence that DOE is changing its 17 program plan because of this facility.
18 The argument is one that's being made up out of whole 19 cloth and simply isn't there. And uhether the CEQ 20 provisions, guidelines, regulations, call them what they 21 will, require a consideration of connected actions, this 22 ain't one.
23 CHAIRMAN BOLLWERK: Let me ask you a question, and I'll 24 ask the same question to staff. You've mentioned several 25 times about the law. Why isn't it a legal issue for some of ANN R: LEY & ASSOCIATES, LTD.
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i 1 1 these positions in terms of whether this is a connected V 2 action?
3 MR. SILBERG: Because I don't think they've met the 4 burden for showing ontentions.
5 CHAIRMAN BOLLWERK: Okay.
6 MR. SILBERG: If this is a challenge to the 7 regulations, then : think it should be treated as such. If 8 it comes in, it is clearly a legal issue, but I don't 9 frankly know how it comes in given the rules that the 10 Commission has set forth.
11 CHAIRMAN BOLLWERK: All right.
12 Mr. Turk.
13 14R . TURK: By the way, Your Honor, just for your
- 14 information, we've divided up the contentions in responding b
15 in writing.
16 CHAIRMAN BOLLWERK: Okay.
17 MR. TURK: And we're going to be dividing them as well 18 in our oral arguments.
19 CHAIRMAN BOLLWERK: All right.
20 MS. MARCO: Staff cpposes this concention because it 21 asserts that the staff needa to consider this proposal and 22 other high level waste proposale together in a single 23 statement.
24 This proposal does not need to be considered with the 25 other high level waste programs. The Nuclear Waste Policy C 's ANN R: LEY & ASSOCIATES, LTD.
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128 1 Act prov: des that tne environmental impact statement for the 2 high level waste repository does not need to consider 3 alternatives. Therefore, the proposed facility and the high 4 level facilities de not need to be considered together, 5 And the Nuclea: Waste Policy Act provides the same for 6 the MRS too. Therefore, these disposal options do not need 7 to be considered ir. a single comprehensive impact statement.
8 Also, the staff notices that the CEQ regulations are 9 not binding on the commission, although they are entitled to 10 substantial deference.
11 And finally, the staff notices -- the staff wishes to 12 state that the, if the State < > independent utility, then 13 would not foreclose the Commission's ability to withhold 14 approval of other waste disposal and storage options that 15 come bef re it in :ne future.
16 And for these reasons, this contention should not be 17 admitted.
18 CHAIRMAN BOLLWERK: All right.
19 DR. LAM: Ms. 'ea rco , I had a question for you on your 20 pleading.
21 Just e;;actly what does expressively doubt mean? When 22 you say " Commission," it is not an expressly, and not the 23 CEO regulation. Wh st does that mean?
24 MS. MARCO: It means that the -- it's not -- it is not 25 binding in proceedings.
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-129-1 ~DR. IJd4 : Right, right. I understand your argument.
- L -If it's not express'.y, then it's not binding, so do you 3' mean the Committee does not expressively, explicitly 4 incorporate lthe CE;;in the regulations?
5 MS. MARCO: Righc. That's correct.
6 DR . _1 Jet : That's what you meant?
7 MS. MARCO: Yes.
8 DR. LAM: All right.
9 CHAIRMAN BOLLWERK: Mr. Nelson, any last word?
10 MR. NELSON: NEPA requires that a decision maker for 11 any major federal action be given the necessary facts in i I
,12 order to make an informed substantive decision. To argue 13 that one-need-not censider the effect of this licensing 14 action _on related programs does not give the decision maker 15 the necessary information. -.And therefore, is in violation 16 of NEPA.
17 We-could argue as to what the effective rules are here.
18- .The Commission-has *;ot specifically adopted the CEQ rules.
-19 However, they do specifically note,-in Section 10 C.F.R. 20' 5110, that the Commission's announced-policy takes:into
- 21 account-.the regulations of the_ Council on Environmental 22 Quality, voluntar1% subject to certain conditions. l 23 1 know of no condition that the Commission has 24 established that wculd_ preclude or argue for or-eliminate 25 the need to consider the effect, _the environmental effect of-t, ANN R; LEY & ASSOCIATES, LTD.
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130 1 this action on the related programs on the federal level.
2 The -- Mr. Silberg'- commented there is no relationship, and 3 yet on the same har.a says that there is a reason for doing 4 this facility because of those restrictions and processes 5 that have happened on the federal program.
6 It is the same basis that are involved in both 7 programs. It is part of the same program. It is a 8 connected action. The underlying reason for NEPA is to make 9 sure that a decisicn maker understands fully the impact c2 10 different alternatives and what those impacts are on related 11 federal actions. And this is clearly a connected action in 12 that something that, it is the State's position, that has to 13 be considered as part of the impact statement.
14 CHAIRMAN BOLLWERK: All right, sir.
15 Last word. Second to last word.
16 MR. SILBERG: The cases clearly say that if two actions 17 cannot proceed with each other, they're connected. But that 18 if one action has u:llity independent of the other, then for 19 NEPA purpcses, they're not connected. I would cite Western 20 Radio v Dickman, 123 F.3rd 1189, 21 The point here :s not that we are ignorant of what DOE 22 is doing, or that we aren't interested in what DOE is doing, 23 or that our reasons for proceeding with this projec* are )
l 24 totally apart from what has happenea in the pact with the l l
25 DOE program. But tais project will go ahead independent of ANN RILEY & ASSOCIATE.'. LTD. 9' Court Reporters 1250 I Street, N.W., Suite 300 Wa:'.ington, D.C. 20005 (202) 342-0034
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! 131 i 1 where the DOE project is, _and that makes them unconnected
}s 2
2 for NEPA purposes.
i 3 CHAIRMAN BOLLWERK: All right. Anything further,
! 4 3 Mr. Nelson?
l l 5 Let's move bat! then to Utah E, to the question about i -
6 licensing. That ecmes from another category, I think.
7 MS. CHANCELLOR: I think Mr. Silberg --
8 'MR. SILBERG: Yeah.
- 9 CHAIRMAN BOLLWERK
- I would add that, you know, I have f
-10 lists up to my knees of my policies. If someone doesn't 11 read something, doesn't say something -- I thought this 12 seemed to be something that needed to be discussed together.
-13 And I would also say that if someone-had something, if
'14 I don't raise sometaing you think that needs to be raised,
(
15 please feel free tc chime in and we'll have go ahead and
-16 discuss it now.
I 17_ Got any ideas regarding subject matters, - talking about 18 the.same thing at tae same time. So --
19 MS, CHANCELLOR: I'm just waiting for Mr. Silberg.
20 MR. SILBERG: it's all yours.
21 MS, CRANCELLOR: Okay. Right'now, think Rally 22 Junction. It's a stone's throw-from I-80,'even closer to 23 the Alpine. The essk store at Rally Junction will certainly 24 present a security 1sk. Now the danger's theory.
~25 For example, trucks exiting I-80, coming off the off-0
\
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132 1 ramp north may not make that corner in icy conditions and 2 could go crashing !. rough.
3 More serious 1, people traveling on the highway could 4 create terrorist pr:olems and launch themself on a moving 5 vehicle.
6 There's no buffer zone between the - between where PFS 7 wants to locate its facility and the freeway. In fact, 8 there's no -- it's .ot even certain whether there's room to 9 put such a facility at that location.
10 If you look at Figure, in the FAR, 4.5.3, there's a 11 diagram of the inte rmodal transport. There is shows that 12 the width of this cne thing is 80 feet. The distance from 13 the center of the r:ain line tracks that Union Pacific owns, 14 their right-of-way goes from center of the main line tracks f
15 100 feet to the south of the main line. There are already
(
15 two ra:1 sidings there. So I am not sure, I don't see how 17 PFS can actually Ic ate this facility there.
18 And with respert to movement of casks into and through 19 Rally Junction. It may not be smooth at all. Casks will 20 arrive in a very staggered and bunched up way. The pier --
21 the Un:on Pacific : 2ilroad program is a mess. One of the 22 exhib.ts to our pet. tion to intervene, Exhibit 3, shows the 23 problems with Union Pacific: rail accidents, people being 24 killed, military tanks abandoned. To say that this is all 25 going to be a smoot.. flow of casks into Rally Junction is ANN R: LEY & ASSOCIATES, LTD.
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133 1- not credible, 2' NRC's response to1how casks will be coming into Rally 3 Junction is that-th+ Part 70 Part 51 licensee will 4 coordinate these activities. Well, generally the casks are 5 coming in from a multitude of facilities.
6 - In addition, 72.26. the safeguards-regulations,
-7 requires.that casks should -- that, for security purposes, 8 :- that you-should avoid storing casks in excess of 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />.
9 How-that~will occur is indeed:'a mystery.
10 PFS intends to transfer the casks to a heavy. haul truck 11 and then drive down-Skull Valley Road and off-load them at 12 their facility. In the SAR, at Table 5.1.2, are the 13L -procedures for-uniciding these casks.
'l 14' The-total time, at a 48 hour5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> testing period, is 21 V) 15 hours, from the time of receipt till the connected cask 16 . temperature installation. Basically until they've-taken the 17 . cask, inspected them taken from.the truck, put them with L18 the -- take them, hooked up the shipping cask.- With all 19 -those procedures it's going to take 21 hours2.430556e-4 days <br />0.00583 hours <br />3.472222e-5 weeks <br />7.9905e-6 months <br />. So the actual -
J20 : operation of casks coming in to Rally Junction, being slowed 21- -down,-a 21 hour2.430556e-4 days <br />0.00583 hours <br />3.472222e-5 weeks <br />7.9905e-6 months <br /> per:od'to get the casks inside the facility 22 gate and out onto tne: pad, will certainly mean-that casks
- 23 are: going to back up and be stored at Rally Junction.
24 CHAIRMAN BOLLWEEK: if I could anticipate what 25 Mr. Silberg's. going to say. He's going to basically say ANN RI~~EY & ASSOCI ATES, LTD.
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134 1 this has been suby :* to the rule. This could happen at any 2 number of transfer points anywhere in the country. What is 3 your response to that?
4 MS. CHANCELLOR- My response is well, why bother 5 unload:ng the caskt There is a difference between a 6 transportation regu.ation, and I recognize that there is in-7 transit storage for the transportation regulations. But 8 there is some poin: at which in-transit does meet up with 9 the security and p::tections that are required for the Pally 10 Junction facility.
11 If the casks are stored at Rally Junction there is no 12 buffer zone; there is no boundary. There are no -- the 13 emergency response regulations don't have the same effect as 14 if they are stored at --
15 CHAIRMAN BOLLWERK: Well, but how do we know this is 16 different than any other transport point in the country, 17 whether it's from targe to rail or however? Wouldn't that 18 be a problem anywhere? I guess I'm again offering the 19 question what the r le covers.
20 MS. CHANCELLOR: I think the difference is in the 21 scope. We have 20C casks that we have coming into this 22 point from all over the nation. The casks are going to back 23 up and be stored tr"re. The sure shipments that Mr. Silberg 24 referred to, that ._sts 33 large shipments over an eight 25 month period from cne reactor to another reactor, or from ANN F~'_EY & ASSOCIATES, LTD.
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135 l1- one site to another site, two points"only. This would drop 2
down into a nationa'.-network of casks ~being shipped to Rally 3 ' Junction.
4- =NRC recognizes : hat additional measures other than 5- those -- other than NRC and DOE regulations may apply to the-6 operation of Rally Junction. On page 19, footnote 9 in 7 their responte, they clearly' state that these additional 8 measures need to b+ considered.
9 Moreover, this s not the first time that NRC has L -10 raised this issue. When the applicant came to NRC prior to 1
11 submitting its licer.se, in an open public meeting on 12 March 19, 1997, the NRC staff said that the plans for 13- transferring casks from the railway to'a truck gave them.
14 particular concern. So this is something that NRC staff is L 15 concerned about, even though they object to our contention.
16 -I think that fcetnote 29 states their concern of how 17 Rally Junction fits into the regulatory-scheme and how-the 18 transportation regulations a:td the safeguards under Part 73 19 ~ 'are not satisfied by the proposed facility at Rally 20 Junction.
21 You've seen Ra ly Junction. It's accessible to I-80.
22 I'mean how can we fence -- how-can we have any buffer zone 23- ior fence around1that facility?
24 DR. LAM: Why not, Ms. Chancellor? You say the 25 applicant could not possibly build a fence?
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136 1 MS. CHANCELLOE The -- if you remember, you have the 2 Union Pacific *.ra:P= and then there's a 100 foot right-of-3 way, and that abute directly against a 100 foot right-of-way 4 that the Utah Depar: ment of Transportation holds, which is 5 contiguous with the Union Pacific right-of-way and the 6 freeway and the access road. So -- and we're trying to 7 squeeze an 80 foot facility into -- provided we don't even 8 knew whether Union :-acific will allow PFS to tie their 9 right-of-way.
10 Assuming for araument purposes that they can use that 11 right-of-way, you'/, got tne main line track, you've got two 12 sidings, and then y'u've got an 80 foot facility. Where are 13 you going to put a fence witnin a 100 foot right-of-way with 14 any sort of buffer : ne? There's just no room.
15 The casks wil; . ave to -- more than one cask will be 16 there. We don't kn:w whether there's more than one truck 17 that will be there. There is moving. In order to be able 18 to place these and manipulate these casks and have position, 19 turning radius for the casks, there does not appear to be 20 room witi.:n that e>_ sting right-of-way.
21 Moreover, if FFF is going to hurry to get the casks out 22 of there, that creates additional safety concerns.
23 CHAIRMAN BOLLWEEK: What I hear you saying is does the 24 need for a license depend on the safet concerns that are 25 involved. I mean I guess --
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137 p 1 MS. CHANCELLOR: No.
2 CHAIRMAN BOLLWEEK: If the facility didn't have this 3 list, laundry list that you've given us, would you need a 4 license then?
5 MS. CHANCELLOR: We believe that Rally Junction is a 6 different animal than a siding in the middle of the Lingueras, where you might transport one track to another 8 track from one loccmotive to another. This is an integral 9 part of the existing operation. Those casks would not be 10 coming into Rally J..nction and being stored at Rally 11 Junction unless the '.SFSI were there. And the amount of 12 time that the casks will be located at Rally Junction is a 13 function of how the ISFSI operates, how much time it takes
[ ) 14 to unicad the casks. a cask, so that they can come around
\d 15 with the truck and ?st another eask. So it is an integral 16 part of the Part 72 iicensing operation.
17 DR. KLINE: If it is an integral part, why isn't the 18 potential to be fen:es? Can't they consider the facility 19 license applicatiorf 20 MS. CHANCELLOR: What we are saying is there has to be 21 some sort of regulation of Rally Junction. If you wish to 22 do it under Part 72, then we would not object to doing it 23 under -- as part of the Part 72 process. But there are not 24 any license condit :ns that put in place the same type of 25 safegtards, procedures, fencing, Dolcinells, those types of
[h
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138 1 things.
2 DR. KLINE: That changes the contention. I mean the 3 contention says you need a separate license. And it isn't 4 elear why this is so, even from the argument, and why one 5 couldn't consider any potential defenses under the principal 6 application, facility application.
7 MS. CHANCELLOR: Our contention states that PFS' 8 application should be rejected because it does not seek 9 approval for receipt, transfer and possession of spent fuel 10 at Rally .7 unction, in violation of 72.51. We would not 11 object to including this as part of this Part 72 license 12 application or having -- or requiring PFS to get an 13 additional license.
14 DR. KLINE: Then perhaps the other parties would, and 15 particularly the staff, would comment on the staff's 16 authority, say under at least NEPA authority, to consider 17 auxiliary construction facilities that aren' t underway at 18 site, but nevertheless connected to the principal 19 application.
20 Because I have in mind, in the licensing of reactors, 21 for example, by analogy, the staff has aaserted jurisdiction 22 over transmission core --
23 MS. CHANCELLOR: Right.
24 DR. KLINE: - off-site. And I just wonder why 25 construction, or environmental attacks at least of this sort ANN RILEY & ASSOCIATES, LTD.
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139
(
tg 1 wouldn't be included, st least and reach an analysis of the
\~/ ) 2 application before us.
3 MS. CRANCELLOR: I believe that the staff should --
4 does have jurisdiction, or the NRC does have jurisdiction to 5 look at the NEPA issues. But I think the whole Rally 6
Junction facility is synptomatic of NRC not having authority 7 to licence sach a national facility. And Rally Junction is 8 symptomatic of that problem.
9 I mean the transpcrtation regulations, Part 72 10 regulations, even Part 73 regulations do not contemplate an 11 intermodal transport facility. It's just net, it's not like 12 moving fuel from one reactor to another r: actor. ,
11 3 DR. LAM: But in your contention it is specifically
,O) 24 stated this application is a violation of 10 C.F.R. 72. 6 (c) ,
\- /
15 Part 1. Now I don't know what is intended in there. I 16 don't know what --
17 How does this application violate 72617 18 MS. CHANCELLOR: Well, our argument is that here there 19 is in possession and receipt of spent fuel when 1.. arrives 20 at Rolley Junction. PFF would like to have receipt of the 21 fuel and possession of tne fuel when it gets to their front 22 gate at the reservation. What we are saying is possession 23 and receipt occur, and stcrage for purposes of -- for more 24 than purposes of in trancit occurs at Rolley Junction; and 25 therefore, need a specif: : license.
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140 1 DR. LAM: But C-1 doesn't read the way you are saying.
2 It reads -- C-1 reads "Except as authorized in a specific 3 license, and in a general license, and this is Bob Cahill, 4 his partner. If you vinlate" --
5 So how does the licensee appliev, ion arrive at this 6 point?
? MS. CHANCELLOR: Because they are receiving spent fuel 8 for the purposes of storage at Rolley Junction, not as the 9 assistant. I mean the Part 72 license, if isoued, would 10 allow them to receive possession of spent fuel at the ISFSI.
'.1 But the license, unless it addresses Rolley Junction, uoes 12 not allow them to acquire, receive and possess spent fuel at
, Rollcy Junction, which we are saying needs to be addressed 14 other than through existing gs, Part 71 or Department of 15 Transportation regulations.
16 DR. LAM: I see. So --
17 MS. CHANCELLOR: NRC -- the staff and PFS argued that 18 they dc not need any additional licensea, other than Part 19 71, their Part 72 license that is issued here, and then on 20 the DOT regulations. that's all that they believe is 21 required for Rolley Junction.
22 What we are saying is that is not enough. And that the 23 7261 does not authorize them to possess and receive spent i
24 fuel at Rolley Junction, which we assert is what they will 25 be doing.
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-1 DR. LAM: So that's why you turn the page to 72617 2 MS, CHANCELLOR: That's correct.
3 CHAIRMAN BOLLWERK: Possession begins at Rolley 4 Junction?
5 MS. CHANCELLOR: Exactly.
6 CHAIRMAN BOLLWERK: Okay.
7 MS. CHANCELLOR: And whether the-applicant says that it 8 in going to possess fuel when it gets to the gate, we 9 believe that that in reality is not the case; and that they 10 should not be able to throw that off onto a common carrier 11 and say that they aren't going to receive and possess the 12 fuel at Rolley Junction, because it's integral to their 13 operation.
14 It is absolutely a certainty that the casks are going 15 to back up and that they are -- there is always going to be 16 a cask there. Not just occasionally, but for the 20 year 17 term of the license. They expect shipments of fuel to come 18 in every year for the entire license term and then hopefully 19 they're going-to turn around and send that fuel back out.
20 CHAIRMAN BOLLWERK: You're saying possession depends on 21 how long they have it, whether they have it for a second or 22 20 minutes or 20 hours2.314815e-4 days <br />0.00556 hours <br />3.306878e-5 weeks <br />7.61e-6 months <br />. Is that --
23 MS. CHANCELLOR: I think it's constructive. I think 24 there comes a point --
25 CHAIRMAN BOLLWERK: I mean put it right on the truck
(
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I 142 1 and away it goes. It's just there for five minutes. Then 2 that's possession, or I mean --
3 MS. CHANCELLOR: No, I don't think that is, b;. I think 4 there's a spectrum. At some point, I mean if you park a car 5 in a parking lot and let it sit there for six months, that's 6 not in-transit storage. And the same thing here. There 7 comes a point at which the activities at Rolley Junction are 8 no longer covered by the DOT regulations.
9 And from the little information that is contained in 10 the application, from what we can glean, it is apparent that 11 they have -- that spectrum certainly gets closer to storage 12 than it does to in transit.
13 CHAIRMAN BOLLWERK: Okay. Mr. Silberg. And in 14 answering or addressing this, I'd like to know who's then 15 exactly going to run what parts. I recognize the railroad p 16 track coming in is obviousty common carrier. In terms of 17 the off-load, who's responsible for that? I take it Union 18 Pacific is not, or whoever the railroad is. That's actually 19 you haul -- taking it up off the rail truck, put it onto the 20 rail car, and putting it onto the truck. Is that it?
21 MR. SILBERG: First let me just make sure we understand 22 that the intermodal transfer is one of the two options 23 that's identified in the application.
24 second, the personnel who would be doing the off-load 25 might be PFS personnel, might be other -- might be another
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143 1 entity that's doing the transportation. I don't know that !
2 can answer that right now, and I don't know whether that 3 decision has been made yet.
4 CHAIRMAN BOLLW2RK: The question is where do common 5 carriers start and end.
6 MR. SILBERG: Yeah. I think it's common and contract 7 carriers.
8 CHAIRMAN BOLLWERK: All right.
9 MR. SILBERG: So I think it's both. And, you know, it 10 depends how it's been structured, and I don't know that that 11 decision has yet been made.
12 I would note that the NRC regulations specifically 13 provide for a general license for_ storage incident to 14 transportation. That's in Part 70, 74.20 (a) . And I think 15 the position thtt the State is expressing is directly 16 contrary to that regulation.
17 What the State is saying is that by off-loading the 18 casks, the shipping casks at Rolley Junction from rail car 19 onto heavy haul truck, some shipping casks, not storage 20 -casks; that now we are in the storage mode because the 21 provision that their contention says we're in violation of 22 deals with storage. .C-1 says --
23 And I can't find it, but it talks about storage of 24 spent fuel, And we're not in the storage mode at Rolley I
25 Junction. You are allowed, and regu4ations contemplate that ANN RILEY & ASSOCIATES, LTD.
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144 1 this transfer need not be in a scintilla universe. You 2 don't have to move it, you know, the first second it arrives 3 there. And DOT regulations specifically allow for storage 4 of up to 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />.
5 To the extent that 10 C.F.R. 73.26 refers not a 6 prohibition against storing for more than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, but it 7 says you should plan to avoid storage in excess of 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />.
8 There's certainly nothing in the record that would indicate 9 that we will not meet that requirement. We are indeed 10 obligated to meet all the regulations.
11 However, I would note that that regulat4on doesn't 12 apply to spent fuel, because 73.6(b) has an exemption for 13 the kind of radioactive material that is spent fuel from 14 that particular regulation. 73.6(b) exempts from 73.26 such 15 limited material which is not readily separatable from other 16 radioactive ;naterial which has a total external radiation 17 density in excess of 100 rem per hour at a distance of 3 18 feet from any accessible surface without intervening shield.
19 And I think you take notice that spent fuel is falling in 20 that description.
21 So even if the 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> in 73.26 was the regulatory 22 standard, which it isn't, it wouldn't apply. But we do have 23 other regulations which we have to meet, the DOT regulations 24 that we cite in our brief. And I don't think this Board is 25 entitled to assume, nor is the State entitled to assume that ANN RIL2Y & ASSOCIATES, LTD.
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145
/ 1 we will operate in violation of our regulations.
( 2 I would also note that a lot of the discussion which 3 the State has just put on the record is really a different I t contention. When they argue that we don't have enough room 5 in the existing right-of-way, we don't have a buffer zone, 6 we don't have a fence, it's only 80 foot list. Those may be 7 interesting contentions, but they're not the contention that 8 we're talking ab::V + w:9 .
9 The contention that we're talking about here is a legal 10 issue essentially, and that is whether or one must have a 11 license for an intermodal facility of the type we're having 12 at Rolley Junction. And the answer, we think, is clearly 13 that no license is required, l'
t 14 conditions precedented reflects that. The Shore and 15 Limerick Shionina, which is reflected in both the director's 16 decision, and the admission decision which recognize the 17 intermodal transfer, and the lack of any licensing 18 requirement for that intermodal transfer is clearly on 19 point.
20- The fact that there were 33 shipments in the period of 21 a year versus 200 shipments in a period of a year is a ,
22- factual issue. It doesn't go to the question, the legal 23 question as to what the NRC regulations require. And to 24 comment that Part 71, 72 and 73 do not contemplate 25 intermodal transfer, I think that's clearly incorrect. The O'~' 7dR4 RILEY & ASSOCIATES, LTD.
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146 1 Commission has approved intermodal transfer, has rejected 2 challenges that would enable transfer based on those very 3 regulations. And we have cited to those regulations and 4 those decisions in our brief.
5 To the extent that the State argues that Rolley 6 Junction is not temporary storage incident to 7 transportation, but rather an integral part of the PFS 8 complex, that logic would mean that the entire 9 transportation system is also an integral part of the PFS 50 10 complex.
11 It is certainly part of the operations of this entire 12 project, but it is not fully in the license. And I don't l
13 believe that the State has put forth any basis to show that 14 the existing NRC regulations require or contemplate that.
15 CHAIRMAN BOLLWERK: All right, sir, l 16 DR. KLINE: Mr. Silberg, the State d man't appear to be l
l 17 arguing that Rolley Junction is just any kind of intermodal 18 transfer point. Rather, they're asserting that it's 19 something in the nature of a choke kind of, the fuel 20 arriving from several different places all funneling into 21 one place. Does that in any way change the situation in 22 your minc' 23 MR .G : I think so. Rules speak for themselves.
24 DR. KLINE: Well, that's what I'm asking you in 25 reference to.
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(}
1 MR. SILBERG: Yeah. And to the extent that it's not --
2 that whether or not this is a choke point, and I think we've 3 heard some interesting speculation, but certainly not enough 4 to justify a factual basis for a contention. There's no 5 reason why scheduling cannot accomplish the absence of a 6 choke point.
7 And there's no reason why it taken 21 hours2.430556e-4 days <br />0.00583 hours <br />3.472222e-5 weeks <br />7.9905e-6 months <br /> to move a 8 cask assuming, as it seems to do, that there's only one 9 truck in the world that will move this cask and you have to 10 wait for that truck to go and come back before you can load 11 the next one. There's just no basis for these kinds of 12 speculations. They're interesting, but they're not factual.
13 The one point I did want to make, since you got me off 14 to address the question you made, and that is NEPA. We do 15 address the NEPA consequences of transportation, including 16 'intermodal. That's not the issue here.
17 DR. LAM: Now I do see the State, that if the cask is 18 there for an extended period of time, somewhat of a storage 19 choke point that happens. Now what is the range estimate 20 that you can have on how long could the cask sit there?
21 MR. SILBERG: Well, we are obligated to operate within 22 the existing regulations and the DOT regulations. As I 23 understand them, it would require a maximum of 40, or would 24 prohibit storage at that location beyond 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />.
25 You could have the same, you know, delay at lots of
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148 1 points in a transportation network, but that doesn't make it 2 a licensing action. I don't --
I can check. I don't know 3 off the top of my head whether our transportation planning 4 has reached the point yet where we can tell you what is an 5 average turnaround point, turnaround time and the specific 6 day-to-day operational details.
7 Frankly, I don't think our planning is yet at that 8 point. But we do have to operate within the existing 9 regulations, and those regulations contemplate, if any 10 storage, if the;e's any delay at that point, that it will 11 not exceed 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />.
12 CHAIRMAN BOLLWERK: Your assurances there's not 13 ambivalence here to show there is a choke point, because 14 those are in fact foundationally, then the contention comes 15 in?
16 MR. SILBERG: No. I think we still have the legal 17 issue, which is I think what the State has presented, which 18 is whether intermodal transfer, you know, requires 19 licensing.
20 CHAIRMAN BOLLMERK: And that's a legal issue?
21 MR. SILBERG: I believe it is.
22 MR. QUINTANA: Skull Valley would object to the 23 contention that's been proposed by the State of Utah.
24 Transportatirn has its problems with spent fuel, but we 25 don't believe that the intermodal mode that's been proposed ANN RILEY & ASSOCIATES, LTD.
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"'S 1 here by Private Fuel Storage would present numerous, attacks
\-- 2 such that it would require a separate licensing procedure.
3 Transport of spent nuclear fuel has been done 4 worldwide, and the Skull Valley Band of Goshutes have gone 5 to great lengths to study the-transportation problem. So
, 6 they deal with it fine just in Sweden, Japan, Great Britain, 7 France, as well as throughout the United States and looked 8 at numerous transportation studies.
9 It's important that be part of the record because the 10 decision made by the Skull Valley Goshute government was a 11 well informed decision. And --
12 MS. CHANCELLOR: Objection.
13 MR. QUINTANA: --
in terms of the transportation and 14 the contention that's being proposed here by the State. For 15 those reasons, we'd object.
)
16 CHAIRMAN BOLLWERK: All right. I think there was an 17 objection.
18 MS. CHANCELLOR: Okay.
19 CHAIRMAN BOLLWERK: Staff.
20 MR. TURK: Thank, Your Honor.- Let me focus first of 21 all on what the contention itself intends to do, because 22 that really goes to the heart of your decision.
23 I believe the judges are correct in understanding the 24 contention to be an assertion that the ITP, the intermodal '
25 transfer point must be licensed as a facility. In fact
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150 1 appears explicitly in explaining the contention on page 14, 2 after going through a number of reasons why they believe a 3 license has to be issued for this facility, they say:
4 "As a result, the ITP will constitute a defecto 5 interim central facility as defined in 10 C.F.R. 6 5 72.3."
7 And they go on to say:
8 "TFS should not be granted a license unless it 9 improves possession of spent fuel at the ITP."
10 And they go on after that at the bottom of page 14 and into 11 page 15 to argue that all of the Commission's various 12 regulations relating to ISFSI such as the security plan, the 13 emergency plan, the dose analysis, the design, that all of 14 those requirements, all of those criteria that are 15 established for ISFSI must also apply to intermodal transfer 16 point. That's the heart of the contention, and we oppose 17 that because it's not correct.
18 The essence of the Commission's regulatory scheme is 19 that the site at which this installation will exist must 20 meet the Part 72 criteria.
21 On the other hand, inter transfer modal point, transfer 22 station interchange point, all of the other peints in 23 transit are coming under a different regulatory scheme, and 24 that is under Part 71 and DOT regulations under 25 transportation.
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!- 1 So on that basis the centention must be rejected.
2 There are a number of sab-issues that have been raised 3 both in the pleadings as we;l as the before Your Honor 4 today, Judge Kline asked whether or not the NRC's analysis 5 must consider all the-transpartation impact, and in fact we 6 do. The impact of licensing wi)1 be considered in an 7- environmental impact statement with respect to environmental 8 matters.
9 That's different from scying that the safety criteria 10 set forth in Part 72 have to be satisfied at various points 11 in transit.
12 I believe Judge Lam's querition about 72.6C1 is very 13 telling. The contention doer specifically assert that that 14 regulation is not satisfied, because as the State says 15 today, possession begins at Esily Junction. And we believe 16 it's clear that the fight that has brought the license here 17 is the fight 24 miles distanca from Rally Junction transfer 18 point. It is that 24-mile distance site which will be the 19 subject of licensing here_today.
20 CRAIRMAN BOLLWERK: What is the -- the reservation --
21 all you're doing is taking the casks, putting them on the 22 truck and driving down the road to the reservation between 23 two rocks. Does that make any diffirence? The whole --
24 within the -- transfer. Is it 24 miles --
25 MR. TURK: It's a separate site. It's a ceparate N
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152 1 location.
2 CHAIRMAN DOLLHERK: When a truck has to take 3 possession, the question is where does that happen? If you 4 said 24 miles --
5 MR. TURK: My understanding of their application is 6 that the point at which they will take possession is at 7 their site. Now, a different question is raised as to 8 whether they themselves operate the crane at Rally Junction, 9 does that constitute construction possession?
10 CHAIRMAN BOLLWERK: Well, it's a question about who's II the common carrier here.
12 MR. TURK: There is no requiren.ent that transportation 13 be done by a common carrier. It could be a contract 14 carrier. I don't know frankly what thcir plans are, 15 CHAIRMAN BOLLWERK: Let's say they decide to -- does it 16 make any difference to you?
17 MR. TURK: I can't answer that question. I'd have to 18 understand what the legal -- to enforce that point.
19 MR. SILBERG: What 72.6C1 states is that no one may 20 receive or transfer spent fuel unless they have a license 21 under part 72. That would apply -- this applicant would not 22 be allowed to receive or transfer spent fuel as an entity 23 unless it first had an ISFSI license, but that license wou 24 govern the ISFSI. It would not govern what happens at the 25 intermodal transfer point.
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153 e MP.. TURK:
I 1 Your Honor, there was reference made by
\s 2 Mr. Silberg to DOT regulations which contain a 48-hour 3 limitation on storage. My understanding in consultation 4 with the transportation expert who is with us today, is that
, 5 the 48-hour limitation would not apply here. That would 6 apply where there would be scheduled service from one 7 carrier delivering to another carrier. Here because it 8 would be delivered to a contract carrier, we do not see that 9 that regulation applies. >
10 So I'm not aware of any specific time limitation in DOT 11 regulations which would govern how long the spent fuel could 12 remain at Rally Junction.
13 There are more general statements in DOT regulations, 14 however, which require that radioactive materials be 15 forwarded promptly or without delay, but I'm not aware that 16 there's a time limitation in those regulations.
17 The State in its written reply to the staff's response, 18 there is a footnote that appears in the staff's written 19 pleading. In our written pleading we lay out what we 20 believe to be the regulatory scheme, that is the fight 21 that's controlling the -- intermodal transfer points a part 22 of the transportation of the regulatory scheme.
23 The footnote said that if we determine that something 24 more is required beyond what is in NRC regulations, we would 25 advise the Board and parties by way of - . What we meant by (D
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154 1 that is not that we're troubled by the central regulations 2 are unsatisfactory. We're not. We believe the regulatory 3 scheme clear, at least to the reduction of this contention.
4 However, what we're leaving open is that if during the 5 course of our review we determine that there may be a need 6 for additional requirements beyond what the regulatory
? scheme requires today, we will review that contention.
8 Unless that happens, and at this point I'm not aware that 9 that will happen, we feel the existing regulations must be 10 fellowed, and that requires an objection of the contention.
11 CitAIRMAN BOLLWERK: Are you talking about putting 12 conditions on the license of ISFSI as opposed to --
13 MR. TURK: That's one possibility. There's also the 14 possibility that the staff could determine there's a need 15 for further bill making. There's a number of options that 16 are possible. We have not determined anything more is 17 necessary at this time, because there is no -- beyond the 18 regulations to control the outcome here.
19 MR. KENNEDY: The appropriate rule is what is the 20 thrust of the legal question -- substantive potential 21 trouble. The question is: Are these potential troubles 22 going to -- in the existing application? Does the staff 23 have to come to us before they can consider their potential 24 troubles?
25 MR. TURK: The staff -- the application was mentions ANN RILEY & ASSOCIATES, LTD.
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155 1 the Rally Junction transfer point. It mentions the. type of 2- equipment that will be present there. In the course of 3 asking questions to the applicant, I am sure that there will 4 be questions concerning those issues.
5 l
MR. KENNEDY: The staff -- considering Rally Junction 6 as a matter of law. Isn't it in the application? I'm 7 concerned --
8 MR. TURK: You're correct.
9 MR. KENNEDY: Am I correct?
10 MR. TURK: Yes.
11 DR. LAM: He's also saying the applicant's application 12 does not necessarily --
13 MR. TURK: I'm saying more than that, Your Honor. I'm 14 saying there is no violation.
( The failure for this 15 applicant to come in and say we want that interim modal 16 transfer point to be part of the Part 72 license facility, 17 that is not an error on their part, because it's a transfer 18 point that's not an on-site element, and therefore it's not 19 subject to the Part 72 requirements.
20 DR. LAM: So you disagree with the State's 21 interpretation of that.
22 MR.- TURK: Yes.
23 CHAIRMAN BOLLWERK: I thought I heard you say as long ,
24 as they don't unload the casks; right?
25 MR. TURK: I'm sorry?
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156 1 CHAIRMAN BOLLWERK: I said I thought you said as long 2 as they don't unload the casks.
3 MR. TURK: I'm not ruling out the possibility that they 4 might be the ones to unload the casks. . tat I said is I'd 5 like to understand what the legal framework for that is.
6 How do they set up a sitnple company, transportation company?
7 Are they contracting with the transportation company? Is 8 there something going on in the receipt of that casks which 9 would give you rescon to think that that is in fact the time 10 at which they are taking possession as opposed to simply 11 perhaps letting an entity which contracts with them to do 12 the transportation to their door, 13 CHAIRMAN BOLLWERK: So in other words, when they say 14 are they a common carrier contract, they gave the stuff to l
15 them.
16 MR. TURK: That's something I'm not saying yet. I 17 don't know what their arrangement would be for 18 transportation.
19 CRAIRMAN BOLLWERK: Well, if they're setting it up --
20 the question is did they set up something that looks like a 21 separate common carrier or contractor, then in fact isn't it 22 their entity? They -- separate them out or keep them --
23 MR. TURK: At this point I couldn't say --
24 CHAIRMAN BOLLWERK: All right. Ms. Chancellor.
25 MS. CHANCELLOR: Well, what we know is we don't know JJR1 RILEY & ASSOCIATES, LTD.
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157
'(~'
L 1 very much. It's all -- the application to make a complete 2 analysis of what's -- facts for the contention. And for 3 example, not just one truck to move these casks. We would 4 be delighted to know how many trucks they would have, and 5 we'd be delighted to know some sort of shipping program, 6 some sort of factual basis for developing our contention.
7 So I think it is disingenuous-of.him to use the falsity 8 of information in the application and use that against us
! 9 for failing to support our contentions. We have tried to 10 give him the information that is available. And I don't 11 believe when the Commission amanded its regulations in '89 12 it intended the applicant to be allowed to not provide the 13 information that's necessary.
14 I think we have here something that walks like a duck, 15 looks like a duck and that the activities that occur at 16 Rally Junction certainly are unique. The transportation 17 regulations, if we have to rely on those, what they say, 49 la C.F.R. 17414 says that Department of Transportation 19 regulations require all shipments of hazardous material to 20 =be forwarded promptly, and highway shipments are to be 21 transported without unnecessary delay.
22 These really do not provide any sort of safeguards for l 1
23 what's going on at Rally Junction. Whether PAS can get 24 casks out of there within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> or not, there are always 25 going to be casks at Rally Junction.
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158 1 The staff I believe begs the question by saying, "This 2 is not the site." The applicant says, "We're going to 3 receive the casks at the reservation."
4 We believe that either the Rally Junction facility 5 should either be licensed as a separate entity or else as 6 part of the general Part 72 license. It cannot go simply 7 relying on DOT's transportation regulations and Part 71 8 regulations.
9 Whether PFS is going to employ a common carrier or not 10 to do the work, from the application PFS says that it will 11 build a building, own the building and own the crane. So 12 they are -- so we believe that whether they contract out the 13 work or not, the actual facility, it's a -- facility. The 14 facility will be owned and under control of PFS.
l 15 And again I want to stress that this is integral to the 16 operation of ISFSI. And how the casks move into and out of 17 Rally Junction will be a function of how the operation at 18 the ISFSI in terms of checking the casks when they come in, 19 or off loading them, or storing them at the time when the 20 trucks around would be a function of the operation of the 21 ISFSI.
22 DR. LAM: Ms. Chancellor, I see a twist in your 23 argument. Your contention originally said that on the 24 applicant's application -- and I hear you saying perhaps if 25 the regulation is silent all of the -- are you saying that?
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I 159
(
1 MS. CRANCELLOR: Our contention is that here this 2 violates 722C if it intends to just use the transportation 3 of -- regulations for Rally Junction. If their license 4 solely addresses what occurs on the reservation, then the 5 possession of fuel at Rally Junction is not covered by that 6 Part 72 license, and it should be. If it is not covered by 7 that 72 license, a different license should be issued.
8 This is a problem of trying to ,,ueeze this facility 9 into regulations that -- you're trying to squeeze an 10 elephant into a mouse hole, and it just won't fit.
11 CRAIRMAN BOLLWERK: All right. It's 3:15. Why don't 12 we go ahead and take a break till 3:30, and then we'll 13 reconvene.
( 14 (Recess from 3:15 p.m. to 3:30 p.m.)
15 CRAIRMAN BOLLWERK: I understand I was told at the 16 break that Mr. Silberg and Mr. Turk have something to say 17 briefly on this. I think it's delayed on the subject we 18 were just discussing, and obviously, Ms. Chancellor, if you 19 have something in response, we'll take that and then we'll 20 move on.
21 MR. SILBERG: Yes. I just wanted to clarify, I didn't ,
22 hear it but other people did that there was some discussion 23 about transfer of ownership. Ownership of the spent fuel 24 does not transfer at all. In terms of possession, the 25 -application states that possession will not transfer until
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160 1 after the ct is at the ISFSI, it is opened and determined 2 not to be contaminated. Only at that time does possession 3 transfer. If it's determined to be contaminated, the 4 application and the service agreement will state that the 5 shipping cask is closed up and it's sent back home.
6 But possession is really irrelevant to the issue. Even 7 if possession of the fuel transferred at the reactor sites, 8 the issue of the licensing of the ISFSI is a totally 9 different question unrelated to possession.
10 CHAIRMAN BOLLWERK All right, is that it? Mr. Turk.
11 MR. TURK: Your Honor, this is a brief reply to 12 something which I'm told was in Ms. Chancellor's reply. I 13 didn't hear it, but I'm told that she had argued that there 14 was no licensing authority in effect over the spent fuel at 15 Rally Junction. I just wanted to clarify that. In fact, as )
16 we've stated in our written response, the common carrier and 17 the shipper are subject to Part 73 requirements. So that 18 physical protection will be required at Rally Junction of 19 the common carrier and shipper.
20 CHAIRMAN BOLLWERK: All right. Ms. Chancellor, 21 anything you want to say about any of those two comments?
22 MS. CHANCELLOR: We stick by our comments that this is 23 a staging area and it should be regulated other than under 24 the regulations for Part 71 or DOT.
25 CHAIRMAN BOLLWERK: All right. Let me just make one ANN RILEY & ASSOCIATES, LTD.
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161
't'~ 1 brief comment about scheduling. We're having -- you know,
(
2 in terms of abeolute numbers we didn't get a lot of progress 3 in the last couple of hours. We only got through three 4 contentions, although we talked about some very important 5 issues so it concerns me a little less. Let me make it 6
clear I don't want to set absolute time limits on these l 7 discussions, but I fully intend to do that if we begin to 8 run in to problems.
9 So *;ecognize again that we've read the briefs. If 10 you've already said it in the brief it's not necessary to 11 keep reiterating. We understand what you said. Let's keep 12 to the main points here and move along. Because if we 13 don't, we could be here till past the snow and into next 14 summer. So we really need to keep our focus here and move 15 alcng. Because we want to hear from everybody, but we also 16 have time constraints.
17 All right. Yes, sir.
18 MR. KENNEDY: It's at 25 C.F.R. 162.8. And as usual 19 Mr. Silberg is correct. It's 25 years with a 25-year 20 renewal.
21 CHAIRMAN BOLLWERK: All right. You saved me ! rom 22 reading the regulation. Appreciate, sir.
23 All right. I wanted to say something to Mr. Quintana 24 about his contention, but he's not here right now.
25 MR. YCSK: He had to run Professor Wilson to the
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162 1 airport, but his vehicle is back. So I don't know.
2 CHAIRMAN BOLLWERK: Well, we'll come back to that when 3 he returns. Not a big problem. ,
4 All right. That concludes the discussion we have of 5 the other issues. Let's go on and move in to safety issues 6 now. And the first one of those is Utah contention C which 7 deals with a failure to demonstrate compliance with NRC dose 8 calculations.
9 MS. CURRAN: I'm going to be addressing contention C.
10 Bear in mind what the chairman just said. I'm not going to 11 repeat things that were said in our written pleadings except 12 perhaps for emphasis and clarification.
13 I would like to correct a typographical error on the 14 bottom of page 21 of our reply pleading. In the middle line l
15 of that bottom paragraph it should say, "And therefore the 16 Board need not address the ques
- ion of whether the accident 17 is credible," rather than it says "needs to address."
18 This contention is somewhat technical, and I've asked 19 Dr. Resnikof to sit with me as he is the expert that is 20 helping us with this contention, and on whose expert opinion 21 the contention is based, and on his testimony we intend to 22 rely on these allegations of fact and opinion.
23 I think it warrants a bit of perhaps more clarification 24 of the issue with respect to the mixing of data that we are 25 concerned about with respect to the accident dose ANN RILEY & ASSOCIATES, LTD.
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163 1 calculations.
\' / 2 New reg. 1536 apparently provides data on the release 3 from the fuel pellets into the space between the pellets and 4- the cladding which is also known as the plana. And the 5 applicant used that particular data out of a new reg., but 6 then went to a separate report for what in our reply we 7 referred to as steps two and three of their calculation of 8 the doses, which was to take data from a Sandia accident 9- analysis, a transportation accident analysis, which assumes 10 that only 10 percent of the release actually eccapes into 11 the cask, and then further go on to assume a respirable 12 fraction of that of five percent.
13 And my concern here is that they're mixing applies and
[) 14 oranges, that the new reg. 1356 accident is a different V
15 animal, a different type of an accident that may not have 16 the characteristics that are simile.r and applicable for the 17 Sandia type accident. And that the consequences -- if the 18 data for either type of accident were uniformly applied, 19 that the consequences are likely to be more severe.
20 And also that if a sabotage accident were examined, 21 which we believe would be of greater consequences than the 22 accident that's looked at, the const.oaences would be even 23 more severe. So that is the essential thrust of that 24 contention, that particular basis fcr that contention.
25 Then the contention goes on to question the failure to
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164 1 calculate doses to children, to calculate ingestion doses 2 and ground-shine doses, and also the failure to use the most 3 up-to-date guidance for making the calculation which is 4 ICRP(60).
5 The applicants claims that, and I believe the staff 6 altv that the applicant is not required to consider dosee to 6 7 children, but as we point out in our pleading, the 8 regulations speak of doses to an individual and don't limit 9 the consideration to an adult or an adult male. And we have 10 provided factual basis for asserting that children should be il taken in to consideration, because the actual doses for them 12 are higher given their body characteristics.
13 And in fact ICRP(60) provides a methodology for doing 14 that, as well as an improved methodology for considering 15 lung doses. And although the applicant says that we don't 16 provide any expert opinion for that assertion, we do make 17 that factual assertion in our pleading, and it is supported 18 by an expert affidavit. So we have met the pleading 19 requirements under 10 C.F.R. 2,714.
20 Aaother argument that the applicant makes is that it is 21 not required to consider ground-shine doses and ingested 22 doses, because tne regulatory guidance calls for the 23 evaluation of instantaneous impacts.
24 No w , whatever the regulatory guidance is that the 25 applicant is relying on, it's clear that the regulation ANN RILEY & ASSOCIATES, LTD.
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( 1 itself talks about doses resulting from the exposure, which
\,
2 would include doses incurred after the exposure. And 3 because there's no plan in this design for the evacuation of 4 people from the area, it would seem particularly important 5 in this case to look at what the doses are going to be in 6 the aftermath of such an accident.
7- That's it for now.
8 CHAIRMAN BOLLWERK: All right. Thank you very much.
9 Mr. Silberg.
10 MR. SILDERG: Mr. Blake.
11 CHAIRMAN BOLLWERK: Mr. Blake.
12 MR. SILBERG: We like the staff. We're splitting up 13 some of the cor*nntions 14 CHAIRMAN BOLLWERK: Whatever is comfortable for you 15 all.
16 MR. BLAKE: My response will be a little bit longer, 17 because not only do I have to respond to the oral 18 observations by the State, but as well the written reply.
19 .This is really our first opportunity to respond. So I will 20 be taking some additional topics.
21 The first point I want to accress is that the State 22 contends that the ISFSI can't be licensed until the casks 23 are approved by the agency in their separate generic 24 licensing proceeding.
25 I want the Court to understand that our position is O
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106 1 that that's a separate proceeding. It's going forward.
2 That generic licensing may well occur. But there are a 3 couple points about whether or not that plays a role in the 4 timing of our approval here.
5 One is that that regulation generic licensing really 6 doesn't apply here. It applies to the authorization to 7 allow ISFSIs at individual reactor sites, and we don't 8 believe it will necessarily apply to us.
9 But beyond that, the reason that we've included all of 10 the information on these casks and will continue to, and 11 there may well be contentions and a lot of discussion about 12 them, is because we're authorized -- we're allowed here 13 under the NRC regulations to get a specific license for the 14 use of these casks at this facility. And therefore, it's 15 really just a parallel. We don't think we're linked.
16 The second point I want to address by the State is that 17 the State complains that the applicant's and staff's 18 argument that the Halstad report is inapplicable because it 19 relates to the transportation accident that we're now taking 20 that position.
21 The storage cask is likely to be even more vulnerable 22 to sabotage than a transportation cask.
23 First, the State has substantially augmented its 24 argument and basis. I would refer the Board to the sole 25 sentence that the State had on this topic in its original ANN RILEY & ASSOCIATES, LTD.
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167
(} 1 petition at 18. It's one sentence. It didn't make.any 2 argument along these lines. It only said, "The applicant's 3 assertion of loss of -- is not credible, is contradicted by 4 studies showing the credibility of sabotage induced 5 accidents that meets the loss of" -- citing Halstad.
6 The State's original petition didn't provide any basis 7 to connect the transportation analysis in Halstad's report 8 to spent fuel storage casks that we're talking about here.
9 It's a new attempt to connect them is a new basis in our 10 view.
11 Second, the State's new basis that the applicant must 12 consider the use of anti-tank missiles in sabotage is a 13 clear challenge to the Commission's regulations. As we
[)
V 14 discussed in our earlier answer, anti-tank missiles have a 15 place here, and they're beyond the scope of the design basis 16 threat that we have to cope with and protect against at the 17 ISFSI.
18 I was going to react, but I appreciate the 19 clarification on the language. In fact, I just couldn't
-20 understand their contention-before, but now I do. I don't 21 have a comment.
22 The question of the use of noreg 1536 and sand 802124 23 came up both in their written reply and just now in their 24 oral comments. Our explanation is a fairly simple one which
-25 we laid out in our response. We used 1536 to the extent N
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168 1 nossible, because it was recommended by the staff 2 specifically for the evaluation of releases from dry cask 3 storage. And where it didn't provide data then we used the 4 sand 802124 as a secondary source, because it was in fact 5 relied on and cited in your reg. 1536.
6 While I think she's right, Ms. Curran is right that 7 1536 may not have data from a Sandia type accident, the a 8 Sandia accident was a transportation -- high velocity 9 transportation accident, not a dry-cask storage accident 10 that we're talking about here. We simply think it's the 11 preferred, the more applicable, that which is recommended by 12 the staff and therefore a better choice.
13 The State has asserted that the releases could be much 14 larger is a sabotage event took place, because not just 15 radio nuclides within the gap but a percentage of the fuel l 16 itself might be released. Our reaction to that is first i
17 that the State's proposal that the Commission should base 18 its design basis accident radio nuclide releases from the 19 ISFSI on a sabotage event is a new basis to us and therefore 20 not proper at this point.
21 Second, State's recommendation what it believed should 22 be the design basis accident for spent fuel storage we think 23 is a collateral ar.;ack on the ISFSI's regulations, the 24 sabotage tac.ng.
.25 Third, we don't think the State has shown any ANN RILEY & ASSOCIATES, LTD.
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169 1 deficiency in the staff's guidance on radio nuclide. releases 2 which should be used in dry cask storage sy'+ am settings 3 such as this one. We don't think that the te's unde .'ined 4 sabotage event belief that it could yield higher radio 5 nuclide reler.ses is a sufficient basis.
6 With regard-to the topic of whether or not non-7 respirable nuclides, radio nuclides can be deposited in the 8 ground and lead to direct gamma or food ingestion dose 9 pathways, we think we responded to this before, but let me 10 hit a couple of points.
11 First, direct gamma is considered in our dose studies 12 by dose from the radio nuclides in the cloud around the dose 13 recipient. We don't see why the same radio nuclides on the 14 ground would increase the dose.
15 Second, the staf f has recommended bour. ing dose 16 analysis in 1536, and it assumes an instantaneous dose where 17 the hypothetical individual is conservatively assumed to be 18 right at the closest point of the CAB, the controlled area 19 bour.dary , and remains stationary the entire time the radio 20 nuclide plume passes by That entire dose is assumed to be 21 imparted instantaneously.
22 The staff has recommended this kind of hypothetical, a 23 very conservative and bound.ag approach to evaluating the 24 dose. And we believe it does bound any real-world doses.
25 We don't believe that the State has provided a basis for ANN RILEY & ASSOCIATES, LTD.
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1 thinking otherwise or to allow a contention to consider 2 other one.
3 The State's argument that we need to include in the 4 calculation of doses for individuals the ingestion pathway, 5 we believe is similarly coped with by the approach that 6 we've taken. Again we've taken the conservative bounding 7 approach assuming a hypothetical individual in the worst a possible location totally consumed by the cloud, ano that 9 that pathway more than adequately copes with what a real 10 individual off site through the ingestion pathway of 11 vegetation or livestock which could conceivably provide by 12 way of pathway particularly in this situation.
13 We don't think that the State has provided a basis for 14 challenging the NRC's typical approach and particular 15 approach in the case of this instance.
16 With regard to children it's really the same answer.
17 We agree that children are individuals, and there's no legal 18 argument about it. But the fact is with the conservative 19 assumptions and bounding analysis that the staff has 20 recommended that's accepted throughout the industry and is 21 aptly applied here, we think we have more than coped with 22 any realistic doses for children who might receive doses 23 through a variety of pathways off site.
24 Finally, I think with respect to ICRP(30) and (60) 25 which I think was the last topic addressed, the State, while ANN RILEY & ASSOCIATES, LTD.
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171 1 it relies on Dr, Resnikof's opinion thst 60 would be 2 preferable to 30, we don't believe has provided a sufficient 3 basis for an admissible contention. Ac's provided no '
4 indication why the applicant is required to use the dose and 5 methodology in 60 or why 30 is insufficient to meet the 6 Commission's regulations, 7 We don't think that going with 60 is a regulatory 8 requirement. We think we've met the staff's guidance. We 9 think that 30 continues to be applicable and recotamended by 10 the'NRC staff, and that it ought to be appropriate and 11 sufficient here.
12 We don't think, even though there may be a difference 13 in opinion by Dr. Resnikof, that given the fact that there's 14 no regulatory requirement to go with 60 versus 30, that 15 there is a material dispute or an issue here to be allowed 16 in the proceeding.
17 I hope I've covered the various things that Ms. Curran 18 hit this afternoon, and I tried to reduce that I otherwise 19 planned to say.
20 CRAIRMAN BOLLWERK: Okay, thank you, sir.
21 Mr. Turk.
22 MR. MARCO: That's me. I'd like to address two 23 clarifications it looks like the State makes with respect co 24 their contention. This may actually streamline my argument.
25 So first, in its reply the State clarifies its O ANN RILEY & ASSOCIATES, LTD.
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172 1 assertion concerning cask certification. The State asserts 2 in its reply that it contends that because the design of the
- t 3 ISFSI proposed by PFS depends on the use of those particular 4 casks, it cannot be licensed until casks are approved by the 5 agency.
6 This is consistent with the staff's approach in which 7 its review schedule depends upon completion of certification 8 of casks. Therefore, as far as the staff is ccr.cerned, it 9 really does not have any dispute with this issue with the 10 State.
11 The other matter concerns the credibility of the 12 hypothetical loss of confinement barrier accident. And as I l 13 just heard now from Ms. Curran, the sentence wo"ld now read:
14 "In any r.vont , as the applicant recognizes, the l
15 loss of confinement accident is analyzed and the 16 application, and therefore the Board needs not to 17 address the question of whether the accident is 18 credible."
19 Therefore, it looks like this is not real3y an issue 20 anymore from what I understand from the State.
21 So then just to move on to what the staff opposes. Is 22 that correct?
23 MS. CURP'M- Y6s.
24 MR. TURK; For clarification, if I might ask which page 25 was the correction made to?
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173 9 1 2
MS. CURRAN:
MR. TURK:
It was page 21.
Twenty-one?
3 MS. CURRAN: Page 21 of the reply.
4 MS. MARCO: Yeah, that's right.
5 In the State's reply the State asserts that the 6 applicant should have considered doses to children. The 7 State claims that the standards _a Part 72 and Part 20 place 8 no limitations on the calculations.
9 The State asserts that the standards prescribe dose 10 limits for individuals outside the controlled area, and in 11 Part 20 individual members of the public. It should be 12 noted though in the statements of consideration for Part 20 13 the CommissAon responded to a commenter who requested to 14 delete a table from Appendix B which applied to the 15 assessment and doses to the public. And the Commission in 16 its response to that commenter -- well, let me just read 17 briefly from the comment that was posed.
18 "NRC should consider deleting table two from 19 Appendix B. The concentrated limits in Appendix B 20 do not provide adequate protection of children and 21 infants because they do not take into account age 22 dependency."
23 The Commission responded to this by saying:
24 "The use of effective dose equivalent concept 25 reduces the importance of age dependent intake to O ANN RILEY & ASSOCIATES, LTD.
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174 1 dose factors."
2 And that basically it had considered age dependent factors 3 in its table itself. It was built in. So this is one r 4 instance where the Commission does not mean that any 5 individual necessarily includes children.
6 MR. CURRAN: Can you give the citation for that?
7 MS. MARCO: Sure. It's the statement of consideration 8 for Part 20, and it's -- one second. M se does not have a 9 citation. 20 statement of consideration 34, but 10 September 29th, 1995 I be? re . I'm trying to get a Federal 11 Register cite for yot.
12 MR. TURK: That's in reference to the NRC's loose-leaf 13 regulations.
14 MS. Mhktc. Well, anyway, while you're looking for 15 that, the State also asserts that ICRP(30) is outdated for 16 dose calculations, and that ICRP(60) is more accurate for 17 human dose, radiation doses. The expert does not explain 18 where ICRP(30) is deficient other than the fact that it does 19 not calculate doses to children. And in fact the statements 20 of consideration in Part 20 do talk about ICRP(30). And on 21 that same page which we're getting the cite for, the 22 Commission recognizes that ICRP 26/30 system evaluates the 23 doses to the major organs, and the six remaining organs that 24 received the next highest doses. This is also in response 25 to one of the comments.
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175 11 And it goes on-to say:
T'-
,2 "The concentration limits for members of the 3 .public were based on a reference dose, 4 -incorporated an additional factor of two reduction 5 for age dependency _and combined'and water intakes.
6 Thus, the concentration limits for the public 7 reflect a re. ; tion in their basis from whole body 8 ar.nual - dose . These changes are reflected in ICRP-9 publication 30. However, these changes are a 10 result of changes-in the scientific techniques." l 11 I'm just skimming.
12 Well, anyway, there are several places where ICRP(30) 13 is recommended or at.least relied upon by the Commission.
14- MR.. TURK: The Federal Register citation is 56 F.R.
' 15 23360. -This: appears in the May 21, 1991 volume. I can't 16 give you an exact page reference. It's approximately 25 17 pages into-that Federal Register.
18 MS. CURRAN: Can you do any better than that?
19 MR. TURK: Well, you'11 find it when ybu look at the.--
- 20. the comments are numbered, so --
21 MS. WERCO: No,- they're not.- -!
22 MR. TURK: They're not?
23 MS. MARCO: I don't think so, not in this case.
24 MR. TURK: They're not numbered, but you should be able 25 to find it with the' quotation given.
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17t 1 MS. CURRAN: I just wonder if we could build in some ,
2 opportunity for the staff to show me if we can compare our 3 documents that I could actually --
4 MR. TURK: We'll hand you the page; all right?
5 MS. CURRAN: Okay.
6 CHAIRMAN BOLLWERK: I'll tell you what. Why don't we 7 take -- why you're looking at that let me talk to 8 Mr. Quintana about his contention, and we'll try to work it 9 that way.
10 The contention you have is -- and we're talking aoout 11 this is the only contention you had, was it was a broad one, 12 basically saying that you support the application, Am I 12 correct in that? ' don't think I misstated that in any way.
14 MR. QUINTANA: That's correct.
15 CHAIRMAN BOLLWERK: One thing I should make you aware 16 of, I have 1o say that the Commission's I want to say 17 practice dealing with contentions like this, because people ,
18 who come in to support the application is not very clear.
19 But one thing I would expect is when the time comes and we 20 begin to get a little more focused in terms of the 21 contentions or whatever, we will be asking you to specify 22 fairly clearly what contentions you want to talk about. We 23 have that requirement certainly for anybody that comes in as 24 an interested state or interested governmental entity. And 25 simply being there we're going to want a little more ANN RILEY & ASSOCIATES, LTD.
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177 1
information from you about what you plan to do, how.you plan 2 to participate other than cimply to kind of be there. All 3 right? I just want to put you on notice.
4 MR. QUINTANA: That's fine, Your Honor.
5 CHAIRMAN BOLLWEnK: You know, that contention doesn't 6 really tell us anything about what your problems are other 7 than you support the application. So it may come to the 8 point where we're going to ask you to be a little more 9 specific about where you are on each issue, any problems you 10 have and witnesses, those sorts of things. Just want to 11 make you aware of that.
12 MR. QUINTANA: Thank you, Your Honor.
13 CHAIRMAN BOLLWERK: All right. Any luck, Ms. Curran?
14 ' " . CURRAN: It's going to take just a minute more.
15 ,dAIRMAN BOLLWERK: Okay. Just so you know, the next 16 one we have is number D, which is facilitation of 17 commissioning.
18 MS. CURRAN: That's mine too.
19 CHAIRMAN BOLLWERK: I'm sorry?
20 MS. CURRAN: So if you begin --
21 CHAIRMAN BOLLWERK: I know that. I recognize that.
22 I'm just moving along to let people know where we're going.
23 I'm not putting you off.
24 And I just wanted to say that it looked to me like on 25 this contention one of the things it dealt with is a need ANN RILEY & ASSOCIATES, LTD.
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178 f 1 for a hot cell, and also OGDA may have had some. relationship 2 with this contention. So to put you on r.otice about that.
3 And actually this question about a need fo. a hot cell was 4 also brought up in Utah J. So that may be somet.hing we need 5 to talk about at the same time.
6 MR. TURK: Your Honor, may I make a procedural inquiry?
7 CHAIRMAN BOLLWERK: Sure.
O MR ., TURK: Given the fact that there are so many 9 contentions to address in these next few days, I wondered if 10 the parties might be able to come to an agreement and 11 perhaps jointly propose to you that the only real argument 12 we'll have today is along the applicant and staff to address
\
13 the written replies, and then to respond to .ay Board 14 questions on additional contention 9. And to the extent that 15 there's an oral statement to allow other parties to respond 16 to an oral statement. But it seems there really shouldn't 17 be any reason to restate positions that we took in our 18 pleadings already.
19 CHAIRMAN BOLLWERK: So let me understand what you're 20 proposing.
21 MR. TURK: I wanted the other parties to agree to this, 22 but I suggest that we just limit oral argument to addressing 23 written replies on the assumption that everything else is 24 already before you, everything you need.
25 CRAIRMAN BOLLWERK: Right.
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1 MR. TURK- And also addressing any Board questions that 2_ you have.
3 CRAIRMAN BOLLWERK: I certainly don't have a problem 4 with that obviously.- If that's something that you think you i 5- can get agreement on that's fine. As I say again we read-6 the pleadings, and I'm beginning to hear a lot of the same
-7 statements as-we said in-this or we said in that. And when 8 Lyou say that, that indicates-to me you're basically telling 9 me.what_you've already written down.
10 -MR. TURK: Yeah. There are only two written replies _by 11' Castle Rock and by the State of Utah. OGD made a written 12 reply but it didn't address specific contentions.
13 CHAIRMAN BOLLWERK: Right.
(
14 MR.' TURK: So I would think that-the only thing that needs to be-heard today are:all_ responses to those written
-16 replies and allowing those parties also to respond to those 17_ = oral comments.
118 CHAIRMAN BOLLWERK: Again I. don't have a problem with ;
19- that.
,20 MS. CHANCELLOR: We'd have a prob?-... with that, because
.21 we couldn't address.the whole scope, especially with
'22_ Mr. Silberg's witty answer. We couldn't address all issues 23 in our reply, and we feel like we would be limited. But we 24 will make a concerted effort not to address things that are 25 already addressed in our brief.
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180 1 CHAIRMAN BOLLWERK: Okay. Again the thing that 2 concerns me when I hear references back to pleadings that 3 have already been filed, then that tells me you're telling 4 me something that's in the document, and I can go back and 5 read the document. If nothing else just tell me what page 6 it's on, and I'll go back and resd it again. But no need to 7 explain if you've said it once. That's the point.
8 MR. TURK: I'm sure that I recall that the State did on 9 several occasions say that they'll address something further 10 in the oral argument.
11 CHAIRMAN BOLLWERK: All right.
12 MS, CURRAN: Okay.
13 CHAIRMAN BOLLWERK: All right, go ahead.
14 MS. CURRAN: It seems like we're in agreement with the 15 staff that the basic issue about the licensing of the 16 Holpeck and transfer cast is just that the license shouldn't 17 be granted for this facility until the NPC has done its 18 review of whatever data the license the applicant is relying 19 on in Holpeck and transfer application. We don't want to 20 fall between the cracks is what we're concerned about. If 21 the NRC isn't reviewing that data in this particular 22 proceeding, and is reviewing -- but it stated it relied on 23 for this specific design, then we want to make sure that no 24 licenae is issued until such time that review is done.
25 That's the concern of that part of the contention.
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181 1- CHAIRMAN'BOLLWERK:= Anything you all want to say about
-2 -that point?.
3 ^MS. MARCO: I.think that's consistent. I believe !
4 that's. consistent with our position.
5 CHAIRMAN BOLLWERK: All right.
6 MR. TURK:~ We can't guarantee, however, that in the !
-7_ ' rule making every one of the State's concerns will be l 8 addressed explicitly. aut that would be a separate L
l 9 -proceeding.
10 -CHAIRMAN BOLLWERK: All_right.
11 MS. CURRAN: I'm not going to address the credibility 12 issue because we've addressed it in our pleadings, and I 13 ' really think that the parties agree at this point it's a 14 non-issue.
- 15. I'd like to address PFS's-argument about the Sandia 16 . report being something that was reasonable for PFS to rely 17 on because it's referenced in-the new-reg. What ws_needed-18 to do to gain admissibility'of this contention was raise a l
-19 ~ factual-basis for a concern about whether the Sandia data is 20 . appropriate to be used in the same scenario as the data used 21- in new1 reg. 1536, and this we did.
There are two different 22- kinds of accidents that are being analyzed, and the African 23 .hasn't demonstrated why it's appropriate to leap from one 24 accident scenario and its associated data to another and 25 -combine those two.
.0 t
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182 1 We think that if one were to try to develop the data l
2 for an accident where the lid was taken off the canister, 3 which is this loss-of-confanement accident, that it would be 4 very unreasonable to assume that 90 percent of the inventory 5 is contained in a cask and doesn't escape.
6 And although it might be reasonable to assume a five-7 percent respirable fraction, tha*. you can't just arbitrarily 8 impose those various formulas on different accident 9 scenarios.
10 MR. KLINE: While you're on that subject, we haven't 11 had an opportunity to review, or at least I haven't, Sandia 12 2124. But it's been asserted that that accident analyzed 13 was a high-energy or high-impact argument or accident.
14 What I haven't heard you address is why this doesn't 15 set an upper bound on disbursal. I mean even if it's wrong, 16 why is it that disbursal fism a static situation could 17 exceed that from a high energy situation.
18 MS. CURRAN: All right. I'm going to vents.e into some 19 technical territory.
20 DR. KLINE: You have ycur expert.
21 MS. CURRAN: I've instructed my expert to pinch me if I 22 make a mistake. But my understanding is that in a high-23 velocity impact accident that one of the factors is a great 24 deal of energy and heat which may affect -- create 25 circumstances in which the radio nuclides would plate, and
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1 that also the fuel would break into large chunks which would 2 not_necessarily be rubble.
3 And the_ scenario that's evaluated by PFS or by new reg.
4 1536 involves -- it doesn't s..y how it happens, but the 5 opening of the. canister. That circumstance isn't present.
6 So there's a difference there.
7 DR. KLINE: But it doesn't -- I'm just looking for a 8 basis now. And the question: On what basis is there to j 9 think that that static situation would have a higher energy 10 of disbursal? I mean assuming you remove a lid. What 11 disburses it f:'om there?
12 MS, CURRAN: Well, I think there's two different 13 factors that you have to look at. One is the amount of
!n
\.j
\ 14 radio nuclides that are released, and the other is the 15 amount that's respirable. In the case that's evaluated by 16 PFS, the amount that's in the plenum is all gas, and it 17 would be reasonable to assume that it's all respirable.
18 DR. KLINE: Okay.
19 DR. LAM: In addition to Judge Kline's question, why 20 would this issue be material?
21 MS. CURRAN: Because the dcm3 -- the point of this 22 exercise that PSF did is to calculate the dose to the public 23 at the boundary of the facility. And the dose could be 24 significantly higher than is estimated by PFS.
25 And the consequence of that would be possibly to
/O
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184 1 require off-site emergency planning or possibly to deny the 2 license.
3 DR. LAM: So you are saying the difference could lead 4 to a significantly higher dose.
5 MS. CURRAN: Yes, a dose in excess of the regulatory 6 standard.
7 CHAIRMAN BOLLWERK: Anything else?
8 MS. CURRAN: I'd just also like to make sure chat the 9 issue of -- we did assert that we think sabotage is a 10 credible accident, but it is also important to note that our 11 contention deals with the accident tnat was -- it also deals 12 with the accident that was evaluated in the SAR. And that 13 one of the things we want to focus on here is assuming that 14 one uses the maximum credible accident choren by PFS, that 15 even that analysis is inadequate.
16 I'd like to address the argument that the dose 17 calculation was conservative because it considered direct 18 gamma radiation from the plume during the instantaneous 19 release. That is not the same factually'as~the ground shine 20 from radio nuclides that are deposited on the ground during 21 an accident in which may affect people after, any aftermath 22 of the accident.
23 Same principle for the ingestion pathway. The 24 ingestion pathway concept includes doses that one receives 25 after the accident from deposition of radio nuclides on ANN RILEI & ASSOCIATES, LTD.
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185
[ 1- food, on food sources.
2 -PFS has said here that they have coped with doses.to
.3 children, attempted to cope with them in whatever way_they 4- could. In our view,-that represents the factual issue here.
5 .Well, did they or did they not address the issue of doses to
-6 children?.-The regulation, the statement of considerations i
7 for Part 20 in our view does not preclude the consideration I 8; of-doses to children. In the statement that was-read by NRC 9 counsel, the Commission says -- responds to.an argument that H 10- the concentration limits in Appendix-B do not provide 11 adequate protection.of children and in* ants, because they do 12' not take into account age dependency in a proper manner.
13 Compliance with doce limits rather than.with these
-( ) f14 concentration limits should be required.
The Commission 15- responds-that - one of their responses is-there is a lack 16 of detailed age dependent metabolic data for all but the-17- most common radio nuclides that-will inhibit such attempts la to increase the precision of the dose estimates.
19 Well, to us_what the Commission is saying here is that ICRP(30) is all we've got right n and that it doesn't contain enough information to allow us to calculate doses to 22 children. But ICRP(60) has updated that. In 1989 the ICRP
'23 issued a report annuls of the ICRP publication 56 in which y -24 it set out its goals for ICRF (60) which was to -- included 25 modeling doses for adults of both sexes, infants, children ANN RILEY & ASSOCIATES, LTD.
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( 1 and different racial groups, as well as workers. And this 2 is something that, as we have stated in our contention, l
3 ICRP(60) does.
4 So it is our position that at this point the commission 5 has what it needs in order to look at doses to children.
6 The language of the regulation certainly contemplates 7 looking at doses to individuals, and that is not just the 8 adult male.
9 CHAIRMAN BOLLWERK: That it?
10 MS. CURRAN: Furthermore, the Commission in their 11 regulations has made a dose -- an exception with respect to 12 doses to embryos and women workers, which I think is stated 13 in our reply. That's all.
14 CHAIRMAN BOLLWERK: Okay, thank you.
15 All right. Let's move on to State D. As I mentioned, 16 it looked to me like there was also some. question about the 17 hot cell question and also GDA. We'll move on from there.
18 But promise to deal with State D first.
19 MS. CURRAN: Okay. I'll again try not to go over 20 ground that's already been plowed.
21 CHAIRMAN BOLLWERK: All right.
22 MS. CURRAN: But I do want to point that the regulation 23 that's being cited in this contention governs the 24 facilitation of decommissioning, not decommissioning itself.
25 So it's important to keep that in mind. In our view, ANN RILEY & ASSOCIATES, LTD.
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1 187 1- facilitation of decommissioning encompasses removing the
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2-fuel so:that the remainder of the activities can be 3 _ completed in a timely way.
4 PFS argues that the--State has no grounds for seeking 5 more -- a better description of the compatibility of these 6- casks with DOE specifications. But in one of the documents 7- that PFS itself cites, DOE-imposes some requirements that 8 are-not addressed by PFS. And I'm referring to the standard
- 9. contract for disposal of spent nuclear fuel- and/or high 10 level radioactive waste which is included in the Code of 11 Federal Regulations.
12 PFS is correct that DOE has agreed to accept spent fuel 13 in whatever-condition it's in, but there are some 14 limitations-on that particular agreement.
15 For' instance, that if there is' failed fuel then it-16 needs to 1xa either previously encapsulated, and it also has 17 to be visually-inspected.for evidence of structural 18 deformity-or damage-to cladding or spacers which may requice 19 special handling.
20 So one of our concerns here is that PFS has no means
- nL for 1nspecting the fuel before it-goes to the ultimate
,22 destination. If it appears that if the purchaser, which is the main -- in the contract gives to whoever is sending the 24 fuelJto the repository. If the purchaser is unable to 25 -verify the condition of the fuel, that this could result in 4 (m ,
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188 1 a delay in DOE accepting the fuel, and that these 2 arrangements have to be worked out in advance.
3 So in our view, if PFS isn't able to verify the 4 condition of this fuel before it goes off to the repository, 5 that could cause a substantial delay in DOE being able to 6 accept the fuel.
7 An argument was raised by PFS about shipping back to 8 the utility. Regarding the safety of shipping damaged fuel 9 back to the utility, as we pointed out, it's not clear at 10 all that the original licensees are going to be around when 11 this fuel needs to be shipped back to them.
12 And also we'd like to point out a regulation at 10 13 C.F.R. 71. 63 (b) which requires that plutonium in excess of 14 20 curies per package must be packaged in a separate inner 15 container placed within outer packaging that meets the 16 requirement of subparts E and F cf this part for packaging 17 material in normal form, i.e. a canister. And it's my 18 understanding that the fuel that would be shipped from the 19 PFS facility would meet this threshold requirement. In 20 other words, if a canister were damaged and found to need to 21 be 1.placed, the fuel would have to be put in a new canister 22 before it could be shipped out having that much plutonium in 23 it.
24 There's also a requirement in 10 C.F.R. 72.122(1) that 25 licensees must have the capability to retrieve radioactive ANN RILEY & ASSOCIATES, LTD.
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189
N 1 wastes for further processing or disposal, and that 2 capability is not present at this facility.
3 DR. LAM: Ms. Curran, do you mean retrievable? In this 4 instance do you mean open up the canister, reach inside and 5 retrieve the material inside? Is that what you meant?
6 MS. CURRKN: Right. To be able to retrieve the fuel 7 from the canister.
8 DR. LAM: Righ'c .
9 MS. CURRAN: Breathe the fumes, right.
10 DR. LAM: Right. You mean opening up the cans anf.
11 reach inside and retrieve the material inside. That's what 12 you meant.
13 MS, CURRAN: Right, right, r
(xv) 14 CHAIRMAN BOLLWERK: Anything else? That's it?
15 M3. CURRAN: That's it for the moment.
16 CHAIRMAN BOLLWERK: All right. Mr. Blake or l 17 Mr. Silberg.
18 MR. SILBERG: The State says that we haven't addressed 19 issues of compatibility, such as thermal design, size, 20 capacity of the casks on page 30. They also say that some 21 criteria are already available. Those criteria that they 22 cite however are not available, and they don't cite anywhere 23 where it says that they are.
24 Indeed, the standard contract does pn ride certain 25 limitations, and it says that if there's spent fuel it does O
~'
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190 1 have to be encapsulated, that in fact the fuel that.comes to 2 private fuel storage is encapsulated. It's encapsulated at 3 the reactors. It's visually inspected at the reactors. The 4 purchaser is not PFS as defined in the rtandard contract.
5 Rather the purchaser is the utility, e t's the utility's 6 obligation to perform those visual ins- tons and 7 encapsulations. So it's a --
8 In terms of two new regulations which the State has 9 cited, one of them was cited in their response, 72.122(1) on 10 retrievability. They did not cite it in their original 11 filing, and therefore it's a late basis and improper.
12 And in any event, we do deal with retrievability. Fuel 13 is in a canister. It is retrieved in the canister at 14 private fuel storage, and transferred from the storage cask f
15 to a shipping cask from whence it will be sent to the COE 16 for disposal.
17 In terms of the other ref erence to the 71. 63 (b) , the 18 plutonium regulation, that too is a late basis. That one 19 wasn't even cited in their response let alone in their 20 initial contention. So we would argue that that is a late 21 basis and not something which ought to be considered at this 22 point, even if it applies. And right now I'm not in a 23 position to say whether it does or doesn't, not having had 24 any previous notice that they were going to be raising that 25 issue.
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-(} 1 The quotations that they provide in the bottom of 30 2 and the top of 31 with respect to inspections, those 3 quotations are not applicable because those are given int he 4 context of the VSC(24) cask which is not a dual-purpose 5 cask. We are dealing with dual-purpose casks in this 6 proceeding in which the fuel will be in a canister, sent to 7 a facility in a shipping cask, transferred to a storage 8 cask. So it's simply not relevant.
9 The State also stated on page 32 that we haven't 10 explained how fuel fermented and failed will be encapsulated 11 in the absence of a hot cell. The answer is it comes to 12 this facility encapsulated. And as I mentioned before and 13 state in the application, if when that canister arrives in
\
I 14 the facility, if the canister is contaminated it does not k
15 get accepted and sent back. And to the extent that they're 16 saying the reactor won't be there anymore, that would 17 indicate that the reactor has disappeared within a week or 18 two, and that's not likely to happen.
19 The State also says that fuel should be inspected and 20 repackaged, that DOE repository may not have that 21 capability. No basis for that statement, because they 22 know -- they should well know every document that DOE has 23 put out with respect to the repository says that the DOE 24 facility will in fact have that capability.
25 And to the extent that they say that shipping of failed
,O V ANN RILEY & ASSOCIATES, LTD.
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192 1 fuel creates safety hazards, this is again on page 32, that 2 in a direct challenge to Part 72.
3 They then contradict that statement two lines later by 4 saying the issue concerns preparation for transportation, 5 not transportation itself, and is thus inadmissible. I 6 don't know how you square that with a statement that talks 7 about the safety -- the significant alleged safety hazards 3 8 shipping of failed fuel.
9 With respect to 10 C.F.R. 72112 (h) which they also 10 cite, that provision is met in our case because we are 11 not -- we are dealing with the canning of unconsolidated 12 assemblies which is one of the confinement barriers that's 13 specified in that regulation.
14 CHAIRMAN BOLLWERK: All right. Mr. Turk or Ms. Marco?
15 I'm sorry.
16 MS. MARCO: That's okay. The State in its reply 17 asserts that the decommissioning plan regulations in 7230 18 govern decommissioning itself, and that therefore at 72130 19 governs the facilitation of decommissioning. However, 20 decommissioning is understood to exclude the disposal of 21 spent fuel, and further the decommissioning plan 22 requirements of 7230 which the State claims are opposite, 23 restate that requirement that the applicant discuss those 24 design features and facilitate its decontamination and 25 decommissioning at the end of its useful life. So it's all ANN RILEY & ASSOCIATES, LTD.
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_ _ _ _ _ _ _ , . . . . . . . .. _ _ _ _ _ - - - l
193 1 to be read together.
2 Compatibility with DOE criteria is going to be 3 addressed in the rule making proceeding for the storage 4 casks. The regulations for the cask certification state 5 that to the extent practical in the design of storage casks 6 consideration should be given to compatibility with ultimate
? disposition by DOE. The Commission recognized that specific 8 design criteria may not be available until a repository 9 design is approved.
10 In addition, statements reply asserts that the 11 retrievability of fuel is required at ISFSIs, and the /
/
12 regulations do state that storage systems must be designed 13 to allow ready retrievable spent fuel or high level 14 radioactive waste for further processing and for disposal.
15 The statements of consideration for approval of the 16 VSC (24 ) casks which are found at 58 F.R. 17948, (1993) 17 address this israe of retrievability. The Commission 18 recognized that many licensees would be able to return the 19
~
fuel to the reactor pool in ar; accident. Again this deals 20 with a generic license.
21 But the Commission did go on to also recognize that 22 licensees will have other options to deal with the accident, 23 such as temporary storage and spare storage casks or use of 24 an existing certified transportation cask. The State does 25 not show why the applicant's system fails to accomplish 9 ANN RILEY & ASSOCIATES, LTD.
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194 1 this.
2 In addition, the State points to re5alations at 7163.
3 However, the casks are exempt from 7163 because as it says:
4 " Solid plutonium in the following forms is exempt 5 from the requirements of this paragraph. Number 6 one, reactive fuel elements."
7 And so therefore these portions of this contention 8 should be denied.
9 CHAIRMAN BOLLWERK: Anything else?
10 All right. I'll let you all have a brief reply to 11 that. Then I'm going to want to know how this contention is 12 different from your J, I believe iL was which also talks 13 about hot cells.
14 MS. CURRAN: I just wondered. I notice it's 25 of 15 5:00. This would be an ideal time for me to take that break 16 you promised.
17 CHAIRMAN BOLLWERK: I'll tell you what. Why don't you le finish your reply, and then I'll give you a break. We'll 19 put off J until after the break.
20 MS. CURRAN: PFS argues that we make a phony argument 21 with respect to the DOE contract for acceptance cf fuel.
22 There's a provision in that contract that requires failed 23 fuel to be encapsulated.
24 I think this argument gets to the heart of what we see 25 as one of the major problems with this application, which is ANN RILEY & ASSOCIATES, LTD.
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195 1
that it assumes that nothing is going to go wrong at the PFS 2 facility. No problems are going to be discovered. They're 3
going to be discovered, if at all, by the previous licensee, 4 the licensee who's shipping the fuel to PFS. So that if the 5 fuel has failed, then it will already be encapsulated, 6 Well, our concern is what if that is not discovered 7 until the fuel arrived at PFS, until the fuel has been in 8 storage at PFS for some years? The original licensee no s longer has a facility to which to return the fuel, and it
- 10 has to be encapsulated somehow and sent to the DOE. Those 11' are the kind of questions that aren't answered at all in 12 this application.
13 CHAIRMAN BOLLWERK: All right.
14 MR. SILBERG: Could I make a brief response to that?
v 15 CHAIRMAN BOLLWERK: If you're willing to -- go ahead, 16 yes.
17 MR. SILBERG: The fuel is encapsulated. It is already 18 encapsulated. And as we set forth in our application, if it 19 needs to be shipped off site, even if the canister were to 20 be damaged, you can ship it off site in compliance with NRC 21 and DOC regs, by sending it off in a transportation cask.
22 It's not an issue.
23 CHAIRMAN BOLLWERK: That will be the last word.
24 MS, CURRAN:
And I think as we have demonstrated in our 25 pleadings that the cladding is considered one of the (3
\% ] ANN RILEY & ASSOCIATES, LTD.
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196 1 barriers to release of radio nuclides from a spent fuel 2 cesh.
3 And if the fuel has failed, that means the cladding has 4 failed. And I think the rule making documents that we have 5 cited speak for thematives, that it is not considered 6 suffic'ent to use the cask as the sole barrier to releases l
'? to the environment in that event.
8 The Commission does not contern ate fuel being shipped i
9 all over the place, failed fuel with solely a cask for 10 protection.
11 CHAIRMAN BOLLWERK: All right. Then why don't we go 12 and take a 10-minute break. We'll come back a' ive till 1 5:00. And I'll ask you --
14 MS, CURRAN: Did you think I was finished?
l 15 CHAIRMAN BOLLWERK: Were you finished?
16 MS. CURRAN: No.
17 CHAIRMAN BOLLWERK: You weren't. All right. Go ahead.
18 You said you wanted a break. I figured that you were done.
19 MS, CURRAN: Well, I do, but I'd like to be able to 20 finish.
21 CHAIRMAN BULLWERK: All right, go ahead.
22 MS. CURRAN: As far as we know, there is no basis for 23 an argument that the only kind of a cask that would need to 24 have the capability of retrievability is a single-purpose 25 cask. There's no -- there's nothing in any of the NRC's ANN RILEY & ASSOCIATES, LTD.
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197
(N 3 regulatory statements that indicate thac if one has.a dual-2 purpose cash one can do sway with the need to retrieve the 3 fuel, as appears to have been suggested by the NRC staff.
4 None of the other options, besides putting it in a spent 5 fuel pool or a hot cell that were suggeoted by the staff are 6 to-our knowledge licensable means of actuall, retrieving _
7 fuel safely.
8 l'd also like to note in a letter that was mentioned 9 uarlier, March 24th, 1997 memorandum from William Cane of 10 the NRC to Mark Laligadi of a meeting summary of a 11 March 19th, '97 meeting, that the NRC staff summarize in 12 their sunimary of this meeting, they say:
13 "The staff indicated that PFS's plan to place a
() 14 15 damaged cask into a transportation caok could only he considered a temporary solution."
16 There was an argument made here that decommissioning 17 has nothing to do with removal of spent fuel. But in the la regulations it talks about decommissioning following the -
19 removal of spent fuel. If you want to facilitate 20 decommissioning you have to fac.11 tate the removal of spent 21 fuel or you never get to decommissioning.
22 So this is an element of facilitating it, which is to 23 make sure that the process for removing this material from 24 the site can go about in an expeditious and efficient way, 25 which hasn't been done here.
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198 1 DR. LAM: Could the applicant remove the cask with the 2 spent fuel in it elsewhere for decommissioning? Would you 3 accept '. hat possibility?
4 MS. CURRANs I'm not sure I understand your question.
5 DR. LAM: Well, the applicant ships the cask away from 4
6 the site elsewhere, and then therefore removing everything.
7 MS. CURRAN: Oh, well --
8 DR. LAM: Then you proceed with F* commissioning on 9 site. Would that be a possibility?
10 MS. CURRAN: Well, theoretically, but from what we've 11 seen here it's very dif ficult to find any place to ship it 12 other than back to the original site which may no longer 13 exist, or to the ultimate repository. And if the fuel or the canister is damaged in an accident or found to be 14 l
15 damaged, then it cannot be shipped in that condition.
16 DR. LAM: So your scenario of decommir,sioning is for 17 the applicant to either open up all the casks and initiate 18 decommissioning in the hot cell, quote, unquote, or they are 19 compelled to open up the cans because of prior damage opent 20 fuel inside. So that's the scenario that you are thinking.
21 Am I correct?
22 MS, CURRAN: If the fuel is damaged, and the canister's 23 damaged, then the NRC requires double containment before it 24 can be shipped.
25 DR. LAM: Okay. So it possible they damage to the cask ANN RILEY & ASSOCIATES, LTD.
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199 1 as well as the spent fuel inside? That's one of the 2 scraarios.
3 MS. CURRAN: Damage to the canister. That is a 4 scenario. Or if it is discovered through other inspections 5 or-through some information that PFS gets that the fuel 6 inside a given cask is damaged, and this needs to be 7 addrassed. We're not arguing that every cask has to be 8 opened up before it can . eave the site for decommissioning, 9 but if a problem is discovered --
20 DR. LAM: Oh, I --
11 MS. CURRAN: -- or found, then there has to be a way to 12 address it before the fuel is shipped off-site.
13 DR. LAM: Right. I'm not addressing the merits of your
( 14 argument. I'm just trying to understand what scenario you 15 are proposing.
16 MS. CURRAN: Okay.
17 Just one more. Can't find that one.
18 I'd like to just address the question of the 19 applicability of 10 C.F.R. 71.63(b). It is true that we did 20 not cite this previously in our contention or our reply. We 21 discovered this -- we've been in the process of reviewing 22 mountains of information and regulations, and trying to 23 bring it to the Board's attention as quickly as possible.
24 And it eften feels like, in an NRC proceeding, that you're 25 late when you get up in the morning. '
fN
'\,, -
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200 1 And we did find a letter that was written September 15, 2 1997 from Mark Delagatti of the NRC staff to Gary Tjersland, 3 T-J-E-R-S-L-A-N-D, who is a director of licensing and 4 product development at Holtech International. And 5 Mr. Delagatti's letter has a number of requests for 6 additional information of Holtech.
7 And one of its requests are -- is " Explain how the 8 double containment requirements are, of 10 C.F.R. 71. 63 (b) ,
9 are being implemented for transport of damaged spent fuel."
10 That's on page two of the attachment to the letter.
11 The staff believes that the exemption from this 12 regulation is only applicable to spent fuel rods with intact 13 clatting, i.e., with no defects greater then hairline cracks or pinhole leaks.
ir So it appears to us that as -- that where f
15 the fuel is damaged, that this 71.63 (b) does apply, and that 16 this is a matter of concern to the staff.
17 CHAIRMAN BOLLWERK: Is that it?
1T MS. CURRAN: That's it.
19 CHAIRMAN BOLLWERK: All right.
20 Ten minutes. We'll be back at 5.
21 MR. LATER: Your Honor, one small housekeeping 22 question.
23 CHAIRhW1 BOLLWERK: All right.
24 MR. LATER: This morning we had rained the question of 25 our ability to leave materials here overnight.
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201 1- CHAIRMAN BOLLWERK: Right.
2 MR. LATER: Do we have an answer?
3 CHAIRMAN BOLLWERK: I need to talk to Mr. Wettstein
- 4. about that. He's --
5 MR. WETTSTEIN: =Yes. Yes, you can leave them 6 overnight. The room will be locked.
7 CHAIRMAN BOLLWERK: All right.
8 MR. LATER:- Thankyou.
9 CHAIRMAN BOLLWERK: All right. Why don't we go off.
10 Let's take a 10 minute break. Be back at 5:00.
11 (Break from 4 :50 to 5:00 p.m.)
12 CHAIRMAN BOLLWERK: The question I posed, I guess, 13- .although the relationship is not correct necessarily; but
) '14 there's' discussion in both this contention and cor.tention J, 15 Utah J, about hot cells. Is it close enough that wa can 16 talk about this one as well at this point?
17' MS. CURRAN: Yeah.-
=18 ' CHAIRMAN BOLLWERK: All right. Let's do it then.
,19 MS, CURRAN . Okay. Once again, I!m not going to repeat 20- what was-said in~our pleadings, but there was an argument 21 made by PFS that, in the ef fort to respond to the great 22 volume of material that we were unable to get'to. And that 123- is-the issue of the ability to inspect for smearable 24 ; contamination.
l25' As-we ststed in --
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202 1 CHAIRMAN BOLLWERK: Excuse me one second. I'm :.aving a 2 little trouble hearing over that. Okay?
3 Appreciate it. Thank you.
4 Go ahead.
5 MS. CURRAN: As we stated in the contention, it was our 6 concern that when, at the facility, at the nuclear plant, 7 when the fuel is loaded into the cask, that, or the 8 canister, that the canister itself, the outside of the 9 canister will become contaminated in the spent fuel pool.
10 This is something that commonly happens.
11 And that then a canister is taken out of the pool, put 12 in a cask, shipped to the storage facility, and poses a risk 13 of contaminating the facility and the workers who work at 14 the facility. Not just through inhalation, but through 15 getting it on their clothing, their bodies, ingesting it.
16 The applicant's p.oposed method of detecting smearable 17 contamination is to take sampics from the lid of the 18 canister. But it isn't the lid of the car'. ster that goes
~
19 into the spent fuel pool at the power plant when the 20 canister's loaded, it's the canister itself. So that that 21 is not going to provide a representative sample of the 22 contamination on the canister. And that is why there needs s 23 to be some method of detecting whether the canister itself 24 has been contaminated.
4 25 Also, PFS claims to have analyzed the effects of ANN RILEY & ASSOCIATES, LTD.
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203 r
I 1 contamination and found that they really would not be
\
2 significant at all, and it's a no, never mind. But there's 3 two aspects of that analysis that really undermine that 4 assurance.
5 One is that they, according to the SAR, and this is at 6 page 8.1-17, they're looking at inhalation doses, not, for 7 instance, doses that one might get on one's skin or ingest.
l 8 And they're also looking at doses at the fence post. And 9 we're talking about contamination that workers could 10 actuelly get on themselves or ingest, which would be il significantly more serious doses.
12 That really -- that is also related to the hot cell 13 issue, because in our view, what you need is eithe a spent
[V) 14 fuel pool or a hot cell, or some kind of facility where you j 15 can actually get at the canister and inspect it and see what 16 kind of contamination is on the canister.
17 With respect to t,e requirement for, the general 18 requirement for being able to inspect the condition of the 19 ~
fuel and the clatting and the canister, our contention 20 relies principally on the NRC regulations that relate to 21 inspection and maintenance of safety components of nuclear 22 power -- of spent fuel storage facilities, which we argue 23 include the caniste; and the clatting, which are there to 24 protect the safety and integrity of the storage facility.
25 In addition, we also wish to add to that basis the O ANN RILEY & ASSOCIATES, LTD.
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204 1 requirement in 10 C.F.R. 72.122(1), which is the requirement 2 for retrievability of spent fuel, which we mentioned in our 3 reply. PFS has made an argument in its application that it 4 13 able to retrieve the spent fuel by various means, none of 5 which it has actually committed to. But we have addressed 6 those means and demonstrated tnat none of them satisfy the 7 kind of safety standards that the NRC han for performing 8 this kind of an exercise.
9 Oh, okay. I think boht parties have referred to new 10 reg 1092, which is the Commission's 1984 environmental l 11 assessment for licensing requirements for the independent 12 storage of spent fuel and high level radioactive waste. And 13 we have cited that for the proposition that the Commission 14 bases its determination regarding the low impacts of spent f
15 fuel storage on the assumption that licensees have the 16 ability to retrieve spent fuel, and repair it and inspect 17 it.
18 But I'd also like to mention that in Table 2.2.4-1, the 19 Commission sets forth postulated accidents for surface cask 20 storage of canistered fuel. And in the sequence of events 21 for a moderate accident, the Commission describea an 22 acciden* in which the canister fails in storage.
23 The canister containing a PWR assembly fails in storage 24 due to corrosion and one PWR rod has a pinhole leak. That's 25 the scenario.
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205 !;
1 The second step in the sequence of events is that gases l 2 are released. I 3 The third step'is that'the leaking canister is detected ,
4 and removed to a canning facility, which apparently is some 5 kind-of a hot cell or spent-fuel pool. t 6 And then four, the overpacked canister is returned to.
f 7 the surface cask.
8 So this is-just the type.of thing that-the commission 9 envisioned in new reg 1092 when a problem is discovered when 10 a. canister fails during storage, that the. licensee hcs the 11 means to inspect that,-to retrieve it, and-to repair.it.
12 MR. SILBERG: ' Excuse me. What was the documentEyou 13 were just .icferring to? '
14 MS. CURRAN: New. reg 1092, 15 MR. SILBERO: That's 10927 Okay.
t 16 MS. CURRAN: Table 2<2.4 1. That's all.1 ksve for the i 37 moment.
[
18 CHAIRMAN BOLLWERK: All right. -:
19 Mr. Silberg.
.20 MR.-SILBERG: First, a lot of what we've heard is new.
21 -In fact, they just admitted it was new information, new 22- bases. Not particularly new in~ terms of its existence, but
- 23 new in terms of being put forward.as the basis for this t
24' contention. And tnerefore, we believe it's-ina;propriate.
25 That same discussion appears in their response on page ANN R1 LEY & ASSOCIATES, LTD.
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o 206 l 1 50 and 51, where there's a lengthy discussion of 72.122(1). l 2 Again, new basis not in their initial contention; no 3 showing.
4 With respect to the ability to inspect, there simply is 5 no basis that's put forward for how this contamination is 6 going to occur. As we state in our application, these will 7 be inspected at the reaactor before they're put in the 8 shipping container.
9 There is no physical way that a canister could be 10 preferentially contaminated at its bottom by spent fuel pool 11 water since water in the spent fu~ pool is reasonably 12 uniform water. And if it's going to be contaminated at the 13 bottom, it's going to be contaminated at the top. And 14 therefore, it will show up when one inspects it at PFS 15 facility. So they have shown no basis for why the 16 inspection process that we have proposed is inadequate.
17 And we're also not talking about, you know, failing 18 fuels, because the failed fuel, as we show in our 19 application at SR page 10.2-2, any failed futi is going to 20 be put in a container before it's put in the canister, which 21 is before it's put in the transportation cask. So at all 22 times we have mu'.tiple barriera.
23 That's about all.
24 CHAIRMAN BOLLWERK: All right.
25 Staff? Mr. Quintana, I see you reading something.
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207 1 Have anything you want to say on this one?
~ 2 MR. QUINTANA: No, I'll pass, Your Honor.
3 CHAIRMAN BOLLWERK: All right. Thank you.
4 Mr. Turk or Ms. Marco, who's ever --
5 MR. TURK: I think I'll take this one, Your Honor, if I 6 may.
7 The State did not allege, in its basis or in the 8 centention itself, that the applicant fails to satisfy 10 l
9 C. F.R . 72.12 2 (1) . That appears for the first time in its 10 reply to the staff's response to the contention. And the 1
11 State admits this on several place -- in several places in 12 their written reply, as well as today. The State asserts 13 they want to add this as a new basis.
14 There has been no showing as to why that could not have 15 been raised earlier. It is a la'te assertion. No good cause t
f 16 has been shown. And the contention should not be allowed to 17 be amended late at this time.
18 With respect to what that reuglation requires, as the 19 staff stated, and this, I apologize, The staff will be 20 examining retrievability of systems. There is -- I'm sorry, 21 retrievability of fuel. There is nothing in the regulations 22 that requires a hot cell specifically.
23 The applicant, in it safety analysis report at page '
24 8.2-42, indicates that dry cask handling systems could be .
25 brought to the site if necessary. That has not been
~
)
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208 1 addressed by the State in its contention.
2 As I understand what the -- what that refers to, is 3 that refers to the mechanical systems for handling a fuel 4 canister. It would equate, when placed in an appropriate 5 building, would equate to a hot cell. That --
those 6 statements have not been addressed by the State in the 7 contention.
8 (Pause) 9 CHAIRMAN BOLLWERK: Anything else, sir?
10 MR. TURK: No. I'm sorry, I was -- thought you were --
11 I was waiting for you and you were waiting for me.
12 CHAIRMAN BOLLWERK: Okay.
13 Ms. Curran.
14 MS. CURRAN: Okay. With respect to 72.122(1), frankly, 15 we weren't aware of that requirement when we wrote the 16 contention, although we tried to review all the 17 requirements. And it was pointed out to us by the NRC staff 18 in their response on this contention. So we looked at what 19 the NRC had cited and we saw that this is a relevant 20 regulation And so we have cited it.
21 We think that it's important to, at this stage of the 22 proceeding, which is very early in the proceeding. This is 23 the prehearing conference. And it was before the prehearing 24 conference that we had sought to amend this to add this 25 additional citation, which is a very basic citation to what ANN RILEY & ASSOCIATES, LTD, Court Reporters 1250 I Street, N.W., Suite 300 Washington, D.C. 20005 (202) 842-0034
4 209 l, 1 is required here.
2 It is not prejudicing any other party, especially not 3 the staff, who is -- staff has decided that it needs to look 4 at this issue and hasn't even reviewed it yet. This is not 5_ .a case where some review has already taken place and-now 6 we're claiming that a new analysis has to be done.-.This is 7 an initial issue that'is being raised very early.
8 We did, in our reply to PFS, address the various 9 arguments that PFS makes in Section 8 of the SAR as to how 10 it might achieve retrievability oL. casks. There are a 11 number of strategies set-forth in Section 8.
12 The only one that is actually committed to is the 13 strategy of returning _the fuel to the originating facility 14 if a problem is found. And as we lay out in our contention,
- 15. that is not a viable solution years down the road after the 16 initial facility has closed.
17- It's also not a viable solution to take' fuel that a -
-18 licensee _knows is damaged and put it back on the railroad 19 tracks and send it hundreds or thousando of miles-back to 20 :where it started. It's required by the NRC, and assumed 21 here in new reg 1092, that the problem is addressed before 22 the fuel is shipped off-site.
23 With respect to whether smearable contamination is 24- properly detected by the applicant's method, we have 25 -provided a. basis _in our contention for asserting that the 7j%
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210 1 entire canister needs to be examined for contamination, and 2 we stand on that basis.
3 CHAIRMAN BOLLWERK: All right.
4 DR. KLINE: Mr. Turk, I guess we haven't reviewed 5 72.122 either. But in your comments, you appeared to 6 concede that there was some form of retrievability might be 7 required.
8 MR. TURK: Yes.
9 DR. KLINE: Is that right?
10 MR. TURK: Yes.
11 DR. KLINE: Okay.
12 MR. TURK: But our report --
13 DR. KLINE: Without regard to the question of lateness, 14 but just intrinsically --
15 MR. TURK: Yes. But that doesn't necessarily mean that 16 they have to have a hot cell.
17 DR. KLINE: Yeah.
18 MR. TURK: For instance, just now, in a reply to me, 19 Ms. Curran argued that the applicant would not be allowed to 20 ship --
21 DR. KLINE: Yeah.
22 MR. TURK: -- damaged fuel off-site. That's not 23 correct.
24 DR. KLINE: Well, in the --
25 MR. TURK: In fact, there are means for overpacks, AlRJ RILEY & ASSOCIATES, LTD.
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211 1 there are transportation overpacks in which if there is a 2 damaged canister or fuel, that could be loaded into some 3 other cash and shipped off-site.
4 DR. KLINE: Yeah.
5 MR. TURK: Tehre are exemptions to Part 71 that could 6 be obtained when necessary under emergency conditions in 7 order to ship --
0 DR. KLINE: Right.
9 MR. TURK: --
damaged fuel back to the reactor or co 10 some other facility.
l 11 DR. KLINE: Now --
12 MR. TURK: So those are options as well.
13 DR. KLINE: On page 53, the State responds to the 14 applicant's proposed rephrasing of contention J, and there 15 clarifies that the contention is not limited to the 16 assertion that a hot cell is needed. That what they're 17 really seeking is a reasonable and safe means for 18 inspecting, maintaining and retrieving fuel. Does that 19 alter your view at all? I mean I think they're not narrowly 20 pressing fcr a hot cell alone, but just as --
21 MR. TURK: It doesn't alter my view of the contention, 22 because what the State had to do in the contention was point 23 to something in the application or the safety analysis 24 report that was deficient.
25 DR. KLINE: Uh-huh.
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212 1 MR. TURK: Ar'd they haven't done that. instead, what 2 they've said is well, you haven't shown us that you'll have 3 a hot cell or something comparable. And that is not --
4 DR. KLINE: Well, here's --
5 MR. TURK: That is not a requirement. l 6 DR. KLINE: Yeah.
7 MS. CURRAN: I den't --
f I
8 DR. KLINE: As I understood, that the basic assertion I 9 that some form of retrievability is needed is actually 10 consistent with your own view, isn't it?
11 MR. TURK: Yes. That there'll be some means of 12 retrievability, yes.
13 DR. KLINE: Some means. And they themselves are saying 14 yeah, all we're really pressing for is some means, not 15 narrowly focused on a hot cell alone.
16 MR. TURK: But if you look at the contention, you'll 17 see that while it cites many articles extraneous to the 18 application, it may cite new regs, it m., cite other 19 opinions by other persons. They don't point to the -- to a 20 deficiency in the application.
21 DR. KLINE: I see.
22 MR. TURK: And that they had to do in order to present 23 a supportable contention.
24 DR. KLINE: Okay. All right.
25 MS. CURRAN: May I respond to that?
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1 MR. TURK: The only reference that I can see is on page 2 63, which was a very terse statement quoting a statement in 3 the SAR which says that "All casks are expected to be 4 properly packed, and any defective or contaminated cask will 5 be returned to the originating shipper." And they go on 6 from there to say well, you need more than that, but they 7 don't apply -- they don't address other aspects of the 8- application in which handling -- not handling, but the 9 ability to deal with damaged fuel casks, canisters or casks 10 is addressed.
11 DR. KLINE: All right.
12 MS. CURRAN: Well --
13 CHAIRMAN BOLLWERK: Go ahead.
) 14 MS. CURRAN: Can I respond? As far as we're concerned, J 15 by identifying a portion of the, a section or two of the 16 regulations which the applicant has not complied with, and 17 has not demonstrated that it meets that requirement, that is 18 the expression of a valid contention and material dispute 19 with the applicant.
20 It is also incorrect to state that we have not 21 addressed the proposed measures that PFS sets out. They are 22 addressed one by one in our reply, in response to the 23 ragument that was made by, I think it was the NRC staff that 24 this retrievability issue is addressed in the SAR. So we 25 looked at the SAR and we addresed it.
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214 1 And, you know, we had not seen that particular section.
2 But when it was pointed out to us, we looked at it and it 3 did not resolve our concerns. Our concerns remain valid.
4 And as amatter of fact, what PFS, the only thing that 5 is added to in Section 8 of the SAR is to propose some 6 possible ways of dealing wd.th the issue. The only really 7 concrete proposal that PFS has is to put it back in the cask 8 and ship it back to the originating facility, which in our 9 contention we demonstrate is adequate.
10- And so all the other things that PFS suggests it might 11 consider are really in a sense irrelevant to this license i 12 application. There's no com aitment to implement those I
l 13 thingr. Why should we need to have a conversation about 14 what PFS speculates it might do? We're here to address what 15 PFS proposes to do.
16 CHAIRMAN BOLLWERK: All right. Anything else on the 17 contention?
18 Sir, you're jumping into the void here. Go ahead.
19 MR. KENNEDY: First of all, the retrievability 20 contention does not require that fuel be removed from the 21 canister. If it's retrieved from the storage cask, it is 22 retcieved from the facility, it can be shipped off-site in a 23 transportation cap, transportation cask, which is perfectly 24 acceptable under NRC regulations.
25 In terms of the new reg, the new reg is not a ANN RILEY & ASSOCIATES, LTD.
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215
[ I regulation. The Commission, subsequent to the new reg,
\- 2 certified spent fuel storage cask systems with double seal 3 welded canisters, and it did not require that the canisters 4 be inspected or that the casks be inspected. Commission has 5 thereby, I think, set to rest the argument that somehow new 6 reg 1092 is a requirement that must be followed in this 7 case. We have met the regulations.
8 CHAIRMAN BOLLWERK: Okay. That it?
9 I think he's -- I'm hearing the same thing that I think 10 I heard before. Do you have a reply to whatever --
11 MS. CURRAN: We're not saying that new reg 1092 12 establishes a requirement. It establishes the assumption on 13 which the NRC bases its conclusion that spent fuel storage
[k 14 is safe. And there's nothing in the regulations that 15 somehow exempts this facility from that particular 16 assumption, 17 Just have one other point that I want to make.
18 CHAIRMAN BOLLWERK: Make it quick. I will give you one 19 minute.
20 MS. CURRAN: And that is that the regulations that deal 21 with inspection of safety components don't say -- they're 22 not restricted to inspection of the cask. They deal with 23 inspection of safety components. And the clatting is 24 defiend as a sfaety component in the regulations.
25 CHAIRMAN BOLLWE'.(K All right.
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216 1 Okay. Ms. Belille, we haven't heard anything from you 2 today. Do you want to say something, or --
3 MS. BELILLE: Yes. Yes, I just have a few comments 4 that I would like to make.
5 C1UtIRMAN BOLLWERK: Okay.
6 MS. BELILLE: Firrt of all, I'd like --
7 CHAIRMAN BOLLWERK: This relates to your contention A?
8 MS. BELILLE: Yes, it dot 9. It's one section of our 9 contention A.
10 First of all, I would like to say that I have 11 Mr. Robert Halstead here. He is an expert that has helped 12 with the drafting of our contentions.
I 13 I have just a few comments to make. There are two 14 kinds of actions which could require a hot cell. There's 15 transportation accidents and there's storage accidents, i
16 Each type of accident identifies subsets which identify 17 visible damage to the exterior of the cask or whether the 18 containment may not be sufficient to determine whether the 19 spent fuel has been damaged.
20 Regarding incoming damaged cask in transport, which the 21 regulations appear to prohibit receipt of such casks at the 22 facility, we are not convinceu that receipt of a damaged 23 cask would be precluded in all cases. An example of that 24 would be severe accidents or terroristic incidents causing 25 breach of the cask in transit between Rolley Junction and ANN RILEY & ASSOCIATES, LTD.
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217
( 1 the storage site.
2 Secondly, we are not convinced about the applicant's 3 assertions in SAR that a low drop accident during 4 canister -- during a canister drop accident is not a-5 credible event. With our without a loss of electrical 6 power, we believe that such an event could occur as a result 7 of operator error or insider sabotage.
8 The lack of detail in SAR 5.1.4.2 and SAR 8.1.1 9 prevents us from determining whether the lift height 10 involved would be sufficient to breach a canister or damage 11 the fuel inside absent a compounding human error or insi'er 12 sabotage. Therefore, we reject the assurances offered in 13 0.2.7.4 of the recovery plan.
( 14 However, a low drop accident is sufficiently credible 15 in conjunction with insider sabotrage or human error that we 16 conclude that a prudent facility design must include a fully 17 equipped hot cell, both for diagnostic purposes and any 18 necessary repairs or repackaging.
19- CHAIRMAN BOLLWERK: All right. Is there anything else 20 you want to say about that contention?
21 MS. BELILLE: No, that would be all .
22 CHAIRMAN BOLLWERK: All right.
23 MR. SILBERG: I guees my only comnment would be is that
)
24 sounds like all new information that wasn't in the initial 25 contention and isn't responding to anything in our response, p
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218 3 To me, this is new basis and is inappropriate.
2 With respect to the discussion between transportation 3 accidents and storage accidents, we dealt with that in our 4 application by saying that the casks, incoming canisters, 5 incoming don't meet our specifications, they're not accepted 6 and they're sent back. It's not a question of needing a hot 7 cell at the facility to process it. They return to the 8 reactor from which they originated.
9 The low drop accident, as far as I knew, new stuff.
10 And I'm not prepared to discuss that now because I don't 11 even know what it's relating to.
12 CRAIRMAN BOLLWERK: All right, sir.
13 Mr. Turk, anything?
14 MS. MARCO: We had the same comment, that this was all l 15 new information for us. And to the extent it's not, we're 1
16 just going to stand on our pleading.
17 CRAIRMAN BOLLWERK: All right. You want to say 18 something, Mr. Quintana?
19 MR. QUINTANA: In one paragraph or less. These 20 scenarios that are being developed, we would object to these 21 contentions, because these scenarios that are being 22 developed are so far removed and so speculative, and there 23 is in terms of the literature that's out there in te ms of 24 actual events that have occurred at nuclear power plants 25 worldwide, it's stretching the limits of reality to find the ANN RILEY & ASSOCIATES, LTD.
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219
(~' 1 scenarios that have been developed in these contentions U) 2 here, and we would object.
3 CHAIRMAN BOLLWERK: All right. Ms. Belille.
4 MS. BELILLE: Your Honor, we would want to respond to 5 that. We are aware of a document that exists which we have 6 not been able to get at this point regarding an insider 7 sabotage incident that would be relevant to this analysis.
8 We would ask that wa be allowed to get this at a later date.
9 We also would like to reiterate that our contention 10 talks broadly about risk assessment and those kinds of 11 accidents that might happen in our basis regarding the 12 comprehensive risk assessment.
13 The SAR would be deficient because it did not broadly
( 14 address the range of accidents, and it only gave. a few 15 specific examples.
16 CHAIRMAN BOLLWERK: All right. Anything else you want 17 to say?
18 MR. SILBEFO: We've covered it.
19 CHAIRMAN BOLLWERK: All right. We have about a half an 20 hour2.314815e-4 days <br />0.00556 hours <br />3.306878e-5 weeks <br />7.61e-6 months <br /> here. I'm going to set un -- this may be a daunting 21 task. The next one is Utah E which is financial 22 qualification. You also have Castle Rock 7 and Confederated 23 Tribes F. We'll leave when we finish those. So let's move 24 forward.
25 MS. CHANCELLOR: Shall I go?
t
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220 1 CHAIRMAN BOLLWERKt Yes, please.
2 MS. CHANCELLOR: We won't reiterate what is in our I l
3 concentions about this limited liability company without any l 4 trach record or assets. However, what we would like to 5 mention is that PSF takes vague and generalized information 6 in its application for cost estimates and other deficiencies 7 that we point out and ties these deficiencies in to a 8 defense against this contention.
9 PFS does not counter our challenge the citations to the 10 license application. Over and over aga'n in its 15-page 11 response it says that we have provided no factual basis for 12 our claim, that the information provided does not allow a 13 reasonable evaluation of financial qualifications.
14 There's only two references to the license application 15 in PFS' answer to our contention.
16 In discussing service agreements and debt financing, 17 PFS refers to the application. On page 80, 81 appears its 18 answer. It says:
19 "No construction will proceed until service 20 agreement committing for a significant quantity of 21 spent fuel have been signed."
22 And on 82 PFS says that it retains the option to fund 23 certain construction costs or debt financing, and if 24 necessary it will be required to provide additional 25 financial assurances.
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( 1 We believe that the LES case that was recently decided 2 on appeal which we agree is guidance, that that is something 3 that this Board may wish to follow, and that these 4 commitments that PFS has made should be made as license i 5 conditions.
6 In the LES case the license conditions stated that:
7 "There must be an unequivocal commitment not to a proceed with construction until funding is fully 9 committed. The project is not to proceed unless 10 it has long-term contracts sufficient to cover 11 both construction and operating costs."
12 Slip 71nion at 2526, 13 In the PFS application LA page 1-5 it says p
( 14 "No construction will proceed unless service 15 agreements committing for a significant quantity 16 of spent fuel have been signed."
17 We may disagree what that significant quantity is, but we 18 believe that this should be a license condition.
19 Also, on LA page 1-6:
20 "As with direct financing from customers, no 21 construction will take place without tha 22 commitment from service agreements where 23 significant quantity of spent fuel."
24 Unless PFS L.L.C. members and non-members have committed to 25 significant quantities of storage, construction of the PFSS D
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222 1 will not begin. Again we believe that these should be made 2 license conditions.
3 The staff does not oppose this contention, and we 4 believe it should be admitted.
5 CHAIRMAN BOLLWERK: All right. Let me also say I 6 believe that also OGDP he, to do with financial statements 7 as well. You might take a look at that and we'll talk about 8 it in a second.
9 CHAIRMAN BOLLWERK: All right. Mr. Silberg.
10 MR. SILBERG: First of all, LEE is guidance. She lost il the case below, so she stuck us with the law the Commission 12 made. But the commitments that were imposed in that case 13 were imposed after there was a contention. You can't 14 bootstrap your way in to a contention by asking for a 15 license fee. So in that case commitments were imposed on 16 LES, were in fact volunteered by LES. That's certainly 17 premature at the very least in this case.
18 The rule I think is fair y clear in LEE for Part 70 19 licensing and Part 70 financing qualifications. Part 72 20 which is the provision that we're dealing with here is even 21 more remote from Part 50 and Appendix C to Part 50. And 22 therefore, any guidance that the State seeks to divine from 23 Part 50, Appendix C for a Part 72 license is clearly 24 inapplicable.
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223 1 detailed cost estimate. There is no requirement. This is 2 not an NBA case study. One is to provide the information 3 that is necessary to show how much .mney need be raised.
4 And then the question is: Does the State have some basis 5 for challenging that overall number? And does the State !
i 6 have some basis for challenging our ability to raise that 7 number? If we provided one level of breakdown they would 8 undoubtedly ask for three more levela of breakdown. There's 9 simply no requirement to provide the detailed kind of cost 10 estimate that they've asked for.
11 They also say that wo should be penalized because we 12 failed to supply such basic information as the 13 Adentification of the participants in the project. I think the State knows well who they are.
(n} 14 If they don't, for the 15 record, it's within the State's pcwer to know Fuel Tech, 16 American Electric Power, Con Edison, Illinois Power, GPU and 17 Southern Nuclear. So that baeis to your contention I think 18 disappears.
19 With respect to your citation on the Wisconsin Electric 20 case on the top of 36, where the reasonable specificity was 21 required an addition contention was adopted, was admitted on 22 those grounds. It's interesting to note as that decision 23 states at page 856, that the applicant's total filings on 24 which contentions had to be based were six pages as opposed 25 to the thousands of pages which you have in this case.
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224 1 And to the extent that you say it's self-evidence that 2 reasonable cost estimates, allocation of financial 3 responsibility are indispensable, that is nothing more than 4 a circuit argument. There is no regulatory basis to be 5 cited for that.
6 With respect to the challenge, the claim that PFS is 7 applying to build a facility that is unique, and the only 8 other contemplated centralized spent fuel storage facility 9 is DOE's unsuccessful MRS that clearly ignores the existing ,
10 iicense for the MRS facility.
11 I'll rest on what we've laid out in our response for 12 the rest of our arguments.
13 CHAIRMAN BOLLWERK: All right. Mr. Quintana, anything?
14 MR. QUINTANA: Very briefly our objection to this 15 contention as well. This industry grew only 50-billion 16 dollars in combined grosc revenues, and certainly you have 17 the combined wherewithal to adequately fund a limited 18 liability company te engage in this venture. Once this 19 project gets through the licensing procedure, it's obvious 20 that they could bond the project or use the whole host of 21 mechanisms to properly fund it.
22 If the Skull Valley Goshutes believed that they didn't 23 have the adequate financial resources to p..Asue this 24 project, we wouldn't have entered into this leave agreement 25 with them. A due diligence check was made on these ANN RILEY = ASSOCIATES, LTD.
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225 L/h -1 companies, and it would obviously be fraud if these
!h 2 companies were trying to put tooether a deal and didn't have 3 ' adequate financing to J.o it.
4 CHAIRMAN BOLLWERK: All right. Ms. Marco and Mr. Turk.
5 MS. MARCO We didn't oppose this.
CHAIRMAN BOLLWERK: .You did not oppose any part of this 7 I'take it.
8 All right, Just one question to the LES. I'm sort of -- the-Commission there said that they were not going to 9
10 apply Part 50 except as they wished to. Does that tell us 11 what we need to do here?
12 MR, SILBERG: I think that says that the Commission, if 13 it chooses to.
14 ~ CHAIRMAN BOLLWERK: That's correct, but where does tnat ;
15 leave us? Are we supposed to ask the Commission what they 16 want-to do in this case?
.17 MR. SILBERG: LI think the Commission.has the obligation 18 to speak if-it believes that in the circumstances additional 19 requirements.are:necessary. I think if yo2 compare the
.20 ' situation in LES where you have limited liability company 21 that was relying on project financing, a very similar
'22 situation to the one-we have here, that the Commission in 23 .that case deemed that the-requirements of Appendix C to 24 Part 50 were not required. And I think any comparison 25 between those two sets of circumstances would be enough to (A
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226 1 demonstrate that reliance on Appendix C was not appropriate 2 in this case.
3 CRAIRMAN BOLLWERK: Well, you have to say that the 4 Part 72 financial qualifications regulations are somewhat 5 more specific than the Part 70 are. It only talks about 6 reasonable assurance, and that's obviously a somewhat broad 7 standing. Here we have something more to look at.
8 MR. SILBERG: Correct.
9 CRAIRMAN BOLLWERK: All right.
10 DR. LAM: I'd also lik> to hear from the staff of the 11 staff's rationale of not opposing this contention.
12 Ms. Marco? Mr. Tuck?
l 13 MR. TURK: It really comec down to a question of 14 whether we feel the contention satisfies the 2.714 h 15 requirements for stating the contention in a clear and 16 concise manner providing a basis t at sat 4 sfied 2.714 (b) (2) .
17 DR. LAM: So we're addressing merit, 2thout the burden 18 of the rule.
19 MR. TURK: Yes.
20 CRAIRMAN BOLLWERK: All right. Anything that State of 21 Utah wishes to say about what you've heard?
21 MS, CHANCELLOR: Yes, Your Honer. In the LES case it 23 says:
24 "We by no means suggest that the Commission is 25 precluded from apply Part 50 standards to a ANN RILEY & ASSOCIATES, LTD.
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227 1 Part 70 applicant if particular circumstances 2 warrant this approach."
3 And'what-we-suggested was that circumstances in this
.4 case warrant this approach..
5 We're still confused'as to who the participants are in 6 this; venture. I don't believe Mr. Silberg mentioned 7 Southern California Edison.. But in any event,-th'e'name of a 8 company is insufficient to establish what the relationship
- 9. is between the members of-the company, how the service
)
10 agreements wi13 work, whether there will be adequate 11 financing.
12 And in terms of the thousands of.pages of information 13 that was submitted,' there is very, very little~on actual 14' construction costs. There are a few-pages scattered here or 15 there. And I don't think it is unreasonable to require a 16 breakdown.
-17 This is an example: total construction costs of $100 18- million including site preparation, construction andiaccess 19 road, administration buildings, visitor center, security and 20 fphysics building, operations and maintenance building, 21' . canister transfer building and storage, procurement of 22 transport and -- transfer and transport equipment, the 23 transportation corridor construction. All these things are 24- lumped under the heading of "$100 million." There is 25 absolutely no rational basis for *t
$100 million estimate.
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228 1 There's no way we can adequately evaluate these construction 2 activities based on these $100 million costs, and nowhere 3 else is this broken down that we have been able to find in 4 the license application.
5 And PFS has not responded to any citations to the ,
6 application to show where these construction costs are 7 further broken down into some sort of reasonable numbers a that we can evaluate.
9 MR. SILBERG: If I could just --
I did omit Southern 10 Cal. Edison, but obviously the fact that Ms. Chancellor knew 13 the name of it indicates that this was not a real issue.
12 With respect to --
13 CHAIRMAN BOLLWERK: Anybody else you need to mention at 14 this point? Sounds like everybody -- well, you're set at 15 least at this point.
16 MR. SILBERG: I just wanted to confirm that they were a 17 party.
18 CHAIRMAN BOLLWERK: All right. Anything else?
19 MR. SI LBER,G : That's all.
20 CHAIRMAN BOLLWERK: All right. Why don't we look --
21 MS. CHANCELLOR: I just have one --
22 CHAIRMRJ BOLLWERK: I'm sorry.
23 MS. CHANCELLOR: I just want to emphasize that this is 24 a newly established entity with no track record. It is very 25 similar to the LES case. And that we do need adequate ANN RILEY & ASSOCIATES, LTD.
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_ _ _ - _ _ _ - = _-_- - -__ - - __-_ . . .
229 1- information,;and-it's demonstrative of.the shortcomings'in 2 the application _Mr.-Silberg's omission of Southern-3 California Edison. 9 4 CHAIRMAN BOLLWERK: Castle Rock, do you'want to say 5 anything inLterms of differences in your case? You have a O financial qualifications contention as well.
7 MR. LATER: We do. And there are some differences. I 8 will not repeat areas where I think there are similarities.~ ,
9 I will. deal very-quickly with those areas where I think we l- 10 are somewhat different.
11 We have focused in part upon the corporate
-12 organization, Private Fuel Storage, as a source of concern 13 and a source particularly of financial responsibility. This:
() .14 15-organization has limited. liability company, emphasis on
-limited-liability.
16 The response we have received to that-from Private
-17 Puels is essentially, " People:who live in glass houses is shouldn't throw rocks. Castle Rock is a limited liability 19 company. How-can you complain?_ We're just like you guys."
20- I-think the comparison-is useful. I think it' highlights 21 .some of the sources of our concerns. The capacity --
22 CHAIRMAN BOLLWERK: I-bet I know where this-is going, 23 but go ahead.
24 MR. LATER: Well, it was my hope where it might be 25 going.-
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230 1 Castle Rock's capacity to cause mischief is severely 2 limited. There's necessity for licensing and providing 3 public assurances is likewise similarly limited. It facts 4 nc such requirements as the NRC regulations for financial 5 responsibility place upon it.
6 And finally, for whatever mischief it causes, it has a 7 number of assets, as this body has seen yesterday, that are 8 available to satisfy in answer for whatever mischief it 9 causes, none of which can be said about Private Fuel 10 Storage, which is a brand new entity. It does not place its 11 member assets at risk. The $50 billion Mr. Quintana 12 references is specifically shielded by the quorum of 13 organization of the entity that these utilities have chosen 14 to conduct this activity through.
15 We have very little information, as the State has 16 noted, on the financial sources and guarantees that are 17 there to assure funding. And the fact of the matter is, if 18 Private Fuel Storage fails, Private Fuel Storage causes 19 mischief or injury to others. There are~no assets available 20 to satisfy the injury or mischief that it causes. All of 21 that, unlike my client.
22 And those are questions properly raised which we 23 deserve answers.
2 24 The second basis, one that's been touched on in part by 25 the State, is the potential for shortfalls. We believe that ANN RILEY & ASSOCIATES, LTD.
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231 1 that is emphasized and accentuated by the extreme degree of 2 uncertainty of the life span of this facility. As we 3 understand it, the cost of decommissioning, the potential
)){ 4 for shortfall and the potential for unexpected expenses are 5 all things that grow in magnitude and likelihood as the life 6 span of the facility inm . sees.
7 And we've had very little that's been presented to us 8 by Private Fuels as to what is the realistic life span of 9 this facility. We're entitled to answers se to the 10 financial stream that can guarantee the viability of this 11 facility through its life span, whatever that may be, 12 The same with the non-routine expenses and the 13 potential liabilities. We've preeented we believe 14 sufficient evidence as to the range of potentials that are 15 there, potentials for accidents that we are entitled to know 16 whether the financial arrangements that assure that non-17 routine expenses can be met by this entity.
18 Now, as to all of those contentions, the NRC staff, as 19
~
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we understand it, have not cbjected. As to one portion of 20 our contention, the NRC staff has objected, and that is that 21 we have requested that we be provided financial information 22 regarding the relationship between the Goshute Tribe and 23 PFS, and the position of the Goshute Tribe to stand as a 24 responsible party in this instance. And we believe that's 25 appropriate information and warranted under these O ANN RILEY & ASSOCIATES, LTD.
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232 1 circumstances, because of the limited liability nature of 2 Private Fuel Storage and if Private Fuel Storage ceases to 3 be viable, ceases to be in existence.
4 And we are left with simply the landlord of that n
5 facility as the party responsible, what is its willingness ,
6 and ability to stand responsible for that facility in the
- / absence of its limited liability lessee. And that's why we 8 believe that information is appropriate in these proceedings 9 as well.
10 CHAIRMAN BOLLWERK: Anyth'ng you want to say about 11 that, Mr. Silberg?
12 MR. SILBERG: Yes. First of all, the question is not 13 whether we are or not a limited liability corporation or 14 some other form. The question is whecher we meet the 15 regulatory standards, and we believe we have. The LES 16 decision clearly says that project finance is appropriate.
17 While there may not be the kind of assets that Castle Rock 18 today has, if this facility goes forward, the mechanisms 19 which we've laid out in our application, those assets will 20 be there. We have specifically laid out how much in the way 21 cf decommissioning costs we will set up and the mechanism 22 for collecting those.
23 The extreme degree of uncertainty, and the life span, 24 and the requirement for a showing of a stream of revenues is 25 all information that the Commission has not required. It ANN RILEY & ASSOCIATES, LTD.
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233
_ [~') 1 was-not required in'the LEE case for a similar project.
2 In terms of the position of the tribe as a responsible 3 party, there's no mechanism for-the tribe to be left, as I
4 Castle' Rock suggests, holding the bag. The NRC, as we 5
mentioned before, does not allow licensees to walk away from
,6 their_ facilities.
7 And the dollar amounta that we have laid out in our 8
application and the mechanism for collecting that money in 9 . advance and setting aside decommissioning funds in advance 10 provides reasonable assurance that PFS will be the
-11 responsible operator of tnat facility.
12 And I would remind that we are not asking for absolute 13 financial assurance. The statute and the regulations
- 14 require reasonable financial assurance -
15' CRAIRMAN BOLLWERK: Anything else? Mr.--Quintana, 16 anything you want to add?
17- MR. QUINTANA:- The research that my office did indicate 18 costa about $6 million a year to operate a wet: fuel spent is fuel-pool, and about $2 million a year to operate an off- .
20 Lsite dry-cask storage facility. The industry's own 21 estimates are that they'll save about $8 billion by having.
22: one centralized storage facility nationally. If thay didn't 23 have the money to do the deal, it probably wouldn't be.in 24 anyone's best interest to go forward. I'm here to make sure 25 'that everybody. remains-honest in this whole venture so that
.0.y' ANN RILEY & ASSOCIATES, LTD.
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234 1 I can watch all of the players.
2 Our utility company is going to walk away from the 3 spent fuel at the end of the day over my dead body.
4 CHAIRMAN BOLLWERK: Ms. Marco.
5 MS, MARCO: We don't oppose this except for the 6 reservation, the Skull Valley lease agreement, and that 7 information in set forth in our brief.
8 CHAIRMi BOLLWERK: All right. Any reply on anything 9 you've heard?
s 10 Mu. LATER: A single small one. As Mr. Silberg 11 indicated, the NRC obviously does not te.ke likely to its 12 licensees walking away from facilities. In the case of 13 utilities, it has a great deal of leverage to prevent them.
14 from walking away from facilities. Private Fuel Storage is 15 manifestly non-utility. It is not its members. It is a
( 16 separate entity, and it has very little stake to continue 17 its existence when times get tough, and very .1' tle to keep 18 it from vanishing whatever the NRC thinks about.
19 I think those points make it particularly important we 20 receive appropriate financial information, and that this 21 panel receive appropriate financial assurances, which we 22 don't have yet.
23 CHAIRMAN BOLLWERK: Mr. Kennedy, do you have a s,imilar 24 contention? Address it in terms of the similarities, 25 differences? Anything else you'd like to say?
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235 1 MR. SILBERG: Will you identify --
2 CHAIRFPdi BOLLWERK: I'm sorry. It's Confederated 3 Tribes F I believe; is that correct?
4 MR. KENNEDY: That's right.
S MR. TURK: Your Honor, may we make reference to one 6 brief matter in response to that latest comment by Castle 7 Rock?
8 CHAIRMAN BOLLWERK:- All right.
9 MR. TURK: And that is how I refer you t) 10 C.F.R. 10 72.44 which deals with the expiration and termination of 11 licenses. And in there you will see that under Subsection B 12 that the Commission has the authority to order a licensee to 13 take some action regardless of the fact that there's an fs i f, 14 expiration date. And the same with respect to subsection C,
-Q 15 that indicates that the license continues in effect even I
16 beyond the expiration date if necessary to permit certain 37 actions to be taken.
18 CHAIRMAN BOLLWERK: Going to read the regulation?
19 MR. LATER: No. Well, it's nice that NRC can order all 20 of those things, but if the 31censee ceased to exist, gone 21 into bankruptcy or otherwise fled town, I'm not sure it 22 makes a lot of difference. And that's the concern of the 23 nature of the entity.
{
24 MR. SILBERG: Criminal violations and civil penalties 25 still exist.
(%
\ )
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(
1 .4RMAN BOLLWERK: Mr. Kennedy.
2 MR. KENNEDY: Thank you. We would just submit what 3 we've already filed in writing. I would just add a couple 4 of comments.
5 First of all, I think what's been said by the State and 6 Castle Rock also applies to what we've contended here. I'm 7 a little concerned with Mr. Quintana's personal 8 representations on at least two occasions relating to these 9 matters, especially in light of what was said yesterday 10 during our field visit; namely that they -- the Skull Valley 11 Band has experienced serious financial problems on other 12 projects, 'espite Mr. Quintana's quote due diligence, 13 et cetera.
14 It seems to me that maybe Skull Valley has been given 15 information to satisfy what they think is necessary for due 16 diligence, but that information has been refused in large 17 part to the intervenors or the petitioners for intervention 18 here. And that's what we're seeking to get. We're trying 19 to do our due diligence through this process, and so far 20 we've been refused the information that we sought.
21 That's all I have to say.
22 CRAIRMAN BOLLF sK: All right. Any ccmments you have 23 about that?
24 MR. SILBERG: Just one comment, that the contention is 25 not an appropriate opportunity for discovery. One has to ANN RILEY & ASSOCIATES, LTD.
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237 su
\ meet the standards for admissibility before one gets a
{d l 2 chance to do discovery and due diligence. We don't think 3 this contention meets the standard, regardless of whether 4 the other contentions do. This contention should be looked 5 at on its own, as should all contentions, ar.d it should be 6 rejected.
7 CHAIRMAN BOLLWERK: Anything else, Mr. Quintana? No?
8 MR. QUINTANA: No.
9 CHAIRMAN BOLLWERK: Mr. Turk or Ms. Marco?
10 MS. MARCO: We didn't oppose.
11 CHAIRMAN BOLLWERK: Yes, that's the last one I'm going 12 to come to, OGD number --
13 MR. KENNEDY: May I respond to that?
i
!( j 14 CHAIRMAN BOLLWERK: Oh, absolutely. I'm sorry, si.
v 15 Go ahead.
16 MR.. KENNEDY: I'm just saying in answer to Mr. Silberg 17 that we would have expected not to have to deal with this 18 through discovery had it been included in the application, 19 basic information as we identified.
20 CHAIRMAN BOLLWERK: OGDM.
21 MS. BELILLE: We just have one short ttatement. First 22 of all, we made the argument that the license poses an undue 23 recent public health and safety because it fails to mrke 24 clear provisions for a finding of estimated construction 25 costs, operating costs and decommissioning costs.
f (3)
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238 1 The one thing that we are concerned about, and 2 representing members of the tribe, they are very concerned 3 about the lack of information as far as the financial 4 information goes. And that will be all that we will say at 5 this time.
6 CHAIRMAN BOLLWERK: All right.
7 MR. SILDERG: It doesn't meet the standard. Should be 8 rejected.
9 CHAIRMAN BOLLWERK: Anything to say?
10 MR. QUINTANA: I think enough has been said.
11 MS. MARCO: The staff agrees.
12 CHAIRMAN BOLLWERK: Anything further you want to say?
13 All right. I think we'll adjourn for the day. We'll start 14 tomorrow -- hold on one second.
15 MR. SILBERG: Could you give us a run down of the order 16 that you would like to take specifically tomorrow so we can 17 prepare?
18 CRAIRMAN BOLLWERK: Well, again I'm not trying to force 19 anybody to do anything, but I haven't heard any objections 20 at this point. I'm still trying to move down the State's 21 intentions and order more or less. I see at least as we 22 start, dealing with, let's see, the next issue would be 23 State's number or State letter F, which is inadequate 24 training and certification. And it looks to me like there's 25 also GDL which relates to that. We have a quality assurance ANN RILEY & ASSOCIATES, LTD.
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239 r
1 contention. Just one second here. I don't think there's 7
2 'any that's quite=like that one,_but don't hold me to that.
3 I discovered something. 2nadequate thermal design, again I f 4 don't see anything on that one as well.
5 I guess there-_is all part I that looks to me like 6- that's one that's by itself.
.? I think we'll go down this far.- In terms of inadequate 8 consideration and incredible accidents, which is K, it looks 9 to me like Castle Rock 6, OGDM and Confederated Tribe B all 10 to do. They-have some relationship to each other and talk 11 about che same sort of issues.
12 MR. SILBERG: I'm sorry. _ Cast .mck 6?
13 CHAIRMAN.BOLLWERK: Castle RocA e, OGDM and 14 Confederated Tribe D.
15 -DR. LAM: For planning purposes,_ I'd like to remind the
.16 . parties with my estimation. I was looking at theLscheduling 17 with Judge Bollwerk and Judge Kline. I see that we have 18 some 50 contentions remaining.. And with the= scheduled time-19 that means that this proceeding-we'll probably-need to see a-
-20 resolution of contention at the rate of four per hour,.15
~21 minutes per contention. It means about two minutes per 22 party.
23 CHAIRMAN BOLLWERK: Hopefully there.is some economy to 24 scale-we can give you as we go along. I don't think we did 25 badly today. I hope we can do better tomorrow.
- ~
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240 1 MR. TURK: Can we discuss the schedule for the evening 2 session.
3 CHAIRMAN BOLLWERK: Yes. Why don't we go off the
((1_ 4 record and do that. I'll just talk with each counsel. Is 5 there anything anyone wants to bring up before we adjourn?
G MR. SILBERG: Do you have any other pairs?
7 CHAIRMAN BOLLWERK: Well, I have some here, but I 8 haven't gone down that far. Let me do this. Let me tonight 9 look at and actually mark them a little bit better in terms 10 of the actual ones. I'll have them by subject matter rather 11 than actual contention. I'll give you a little bit better 12 idea.
13 I hope you all are looking at these as well. If you see something I niiss I did the best I can, but there are a 14 f
15 lot of contentione here. So at this point why don't we 16 adjourn. We'll go back in session tomorrow morning at 9:00, 17 18 (Whereupon, at 6:00 p.m., the prehearing 19 conference was recessed to reconvene at 9:00 a.m.,
20 Wednesday, January 28, 1998.]
21 22 23 24 25 ANN RILEY & ASSOCIATES, I.TD .
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REPORTER'S CERTIFICATE This is to certify that the attached proceedings i i
before the United States Nuclear Regulatory Commission in the matter of:
NAME OF PROCEEDING: PRIVATE FUEL STORAGE, L.L.C. --
l PREHEARING CONFERENCE DOCKET NUMBER: 22-ISFSI PLACE OF PROCEEDING: Salt Lake City, Utah were held as herein appears, and that this is_the original ~
transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and thereafter reduced to typewriting by me or under the directiran of the court
( reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
$ l j' '
A so Official Reporter Ann Riley & Associates, Ltd.