ML20213C523

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NRC Staff'S Answer in Opposition to Fasken Oil and Ranch, Ltd.'S and Permian Basin Land and Royalty Owners' Motions to Reopen the Record and File New Contention 5
ML20213C523
Person / Time
Site: Consolidated Interim Storage Facility
Issue date: 07/31/2020
From: Joe Gillespie, Rebecca Susko
NRC/OGC
To:
NRC/OCM
SECY RAS
References
ASLBP 19-959-01-ISFSI-BD01, RAS 55745, WCS CISF 72-1050-ISFSI
Download: ML20213C523 (41)
v • d • e


Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of INTERIM STORAGE PARTNERS LLC Docket No. -

(WCS Consolidated Interim Storage Facility)

NRC STAFFS ANSWER IN OPPOSITION TO FASKEN OIL AND RANCH, LTD.S AND PERMIAN BASIN LAND AND ROYALTY OWNERS MOTIONS TO REOPEN THE RECORD AND FILE NEW CONTENTION Rebecca Susko Joe Ivy Gillespie III Counsel for NRC Staff July ,

TABLE OF CONTENTS Background ................................................................................................................................... 2 Discussion..................................................................................................................................... 4 I. Applicable Legal Standards .................................................................................................... 4 A. Good Cause Requirements for New or Amended Contentions ......................................... 4 B. Requirements for Contention Admissibility ........................................................................ 6 C. Requirements for Reopening the Record .......................................................................... 7 II. Fasken Fails to Meet the Good Cause Requirements in 10 C.F.R. § 2.309(c)(1) and the Motion for Leave to File Contention 5 Should Be Denied ....................................................... 8 A. Contention 5 Does Not Satisfy the Requirements in 10 C.F.R. §§ 2.309(c)(1)(i)-(ii) ........ 8

1. Fasken Fails to Show that Its Claims Concerning Use of Representative Transportation Routes Are Based on New or Materially Different Information ............ 8
2. Fasken Fails to Show that Its Claims Concerning the Cost of Emergency Response and Infrastructure Upgrades Are Based on Materially Different Information ................................................................................................................ 10
3. Fasken Fails to Show that Its Claims Concerning the Impact of Regional Characteristics on Transportation Are Based on New or Materially Different Information ................................................................................................................ 11
4. Fasken Fails to Show that Its Claims Concerning Radiological Exposure Analyses Are Based on New or Materially Different Information ............................... 12
5. Fasken Fails to Show that Its Claims Concerning Potential Terrorist Attacks Are Based on New Information ........................................................................................ 13
6. Fasken Fails to Show that Its Claims Concerning Site Selection Are Based on New Information ........................................................................................................ 14 B. Contention 5 Was Not Timely Filed as Required by 10 C.F.R. § 2.309(c)(1)(iii) ............. 15 III. Contention 5 Does Not Meet the Admissibility Requirements of 10 C.F.R. § 2.309(f)(1) and Should be Denied........................................................................................................... 16 A. Faskens Claims Concerning Use of Representative Transportation Routes Fail to Raise a Genuine Dispute with the DEIS, Fail to Raise Issues that Are Material to the Findings the NRC Must Make in the DEIS, and Are Outside the Scope of the Proceeding ...................................................................................................................... 18 B. Faskens Claims Concerning the Cost of Emergency Response and Infrastructure Upgrades Fail to Raise a Genuine Dispute with the DEIS, Fail to Raise Issues that Are Material to the Findings the NRC Must Make in the DEIS, and Are Outside the Scope of the Proceeding ................................................................................................. 20 C. Faskens Claims Concerning the Impact of Regional Characteristics on Transportation Lack Support and Fail to Raise a Genuine Dispute with the DEIS ......... 23 D. Faskens Claims Concerning Radiological Exposure Analyses Lack Support and Fail to Raise a Genuine Dispute with the DEIS ............................................................... 25 ii

E. Faskens Claims Concerning Potential Terrorist Attacks Are Outside the Scope of the Proceeding ................................................................................................................ 27 F. Faskens Claims Concerning Site Selection Fail to Raise a Genuine Dispute with the DEIS .......................................................................................................................... 28 IV. Fasken Fails to Meet the Reopening Standards of 10 C.F.R. § 2.326 and the Motion to Reopen the Record Should Be Denied ................................................................................. 29 A. Faskens Motion to Reopen Is Untimely .......................................................................... 30 B. Faskens Motion to Reopen Does Not Address a Significant Environmental Issue ........ 30 C. Faskens Motion to Reopen Does not Demonstrate That a Materially Different Result Would be Likely .................................................................................................... 31 D. Faskens Motion to Reopen Is Not Supported by an Adequate Affidavit ......................... 32 Conclusion .................................................................................................................................. 33 iii

TABLE OF AUTHORITIES Judicial Decisions N.J. Dept of Envtl. Prot. v. U.S. Nuclear Regulatory Commn, 561 F.3d 132 (3d Cir. 2009) ......................................................................................................................... 27 South Louisiana Envtl. Council, Inc. v. Sand, 629 F.2d 1005 (5th Cir. 1980) ............................. 27 Commission Decisions AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-07-8, 65 NRC 124 (2007) .................................................................................... 13, 27, 28 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-08-28, 68 NRC 658 (2008) .................................................................................... 8, 31, 32 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 NRC 235 (2009) .................................................................................................. 4 Ariz. Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Unit Nos. 1, 2, and 3), CLI-91-12, 34 NRC 149 (1991) .................................................................................. 16 Crow Butte Res., Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535 (2009) .............................................................................................................................. 16 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units and

), CLI- - , NRC ( ) ............................................................................................ 6 DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-1, 81 NRC 1 (2015) ....................................................................................................................................... 5 Duke Energy Carolinas, LLC (William States Lee III Nuclear Station, Units 1 and 2), CLI-16-19, 84 NRC 180 (2016) ............................................................................ 14, 29 Duke Energy Corp. (McGuire Nuclear Station), CLI-02-14, 55 NRC 278 (2002) ..................................................................................................................................... 20 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479 (2012) ....................................................... 15 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-21, 76 NRC 491 (2012) ................................................. 30, 32 Entergy Nuclear Operations, Inc. (Indian Point, Unit ), CLI- - , NRC

( ) ................................................................................................................................... 6, 7 Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), CLI-11-2, 73 NRC 333 (2011) ........................... 6, 7 Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195 (2003) .......................... 7, 17 Hydro Resources, Inc. (Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31 (2001) ..................................................................................................................................... 28 Louisiana Energy Servs, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77 (1998) ........................................................................................................... 21, 22, 27 Louisiana Energy Servs, L.P. (National Enrichment Facility), CLI-05-20, 62 NRC 523 (2005) ..................................................................................................................... 19 iv

NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301 (2012) ............................................................................................................... 19, 27 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-00-21, 52 NRC 261 (2000) ................................................................................ 4, 5, 13, 14 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-02-25, 56 NRC 340 (2002) ........................................................................................ 21, 28 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-06-3, 63 NRC 19 (2006) .................................................................................................. 22 System Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP Site),

CLI-05-4, 61 NRC 10 (2005) ............................................................................................ 21, 27 System Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP Site),

CLI-07-10, 65 NRC 144 (2007) ................................................................................................ 6 Tennessee Valley Auth. (Clinch River Nuclear Site Early Site Permit Application), CLI-18-5, 87 NRC 119 (2018) .............................................................................. 5 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451 (2006) .................................. 18 Virginia Electric and Power Co. (North Anna Power Station, Unit 3), CLI-12-14, 75 NRC 692 (2012) .................................................................................................................. 7 Atomic Safety Licensing Board Decisions Crow Butte Res., Inc. (Marsland Expansion Area), LBP-18-3, 88 NRC 13 (2018) ....................... 5 Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-12-12, 75 NRC 742 (2012) ................................................................................................................................ 5 Duke Power Co., (Catawba Nuclear Station, Units 1 and 2), LBP-82-51, 16 NRC 167 (1982) ..................................................................................................................... 23 Fla. Power & Light Co. (Turkey Point Units 6 & 7), LBP-17-6, 86 NRC 37 (2017) ........................................................................................................................... 5, 10, 11 Holtec Intl (HI-STORE Consolidated Interim Storage Facility), LBP- - ,

NRC ( ) ...................................................................................................................... 15 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility),

LBP-19-11, 90 NRC __ (Dec. 13, 2019) (slip op.) .................................................................... 3 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility),

LBP-19-7, 90 NRC __ (Aug. 23, 2019) (slip op.) ............................................................ 2, 3, 15 Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 and 2),

LBP-09-10, 70 NRC 51 (2009) ................................................................................................. 5 Shaw AREVA MOX Services (Mixed Oxide Fuel Fabrication Facility), LBP-08-11, 67 NRC 460 (2008) .................................................................................................................. 7 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), LBP-10-1, 71 NRC 165 (2010) ..................................................................................... 5 v

Regulations 10 C.F.R. § 2.309(c)(1) ....................................................................................................... passim 10 C.F.R. § 2.309(f)(1) ........................................................................................................ passim 10 C.F.R. § 2.309(f)(2) .............................................................................................................. 4, 5 10 C.F.R. § 2.309(i)(1) .................................................................................................................. 1 10 C.F.R. § 2.326(a)............................................................................................................ passim 10 C.F.R. § 2.326(b)............................................................................................................ passim 10 C.F.R. § 2.337 ........................................................................................................................ 32 10 C.F.R. § 51.71(d).................................................................................................................... 22 10 C.F.R. § 71.5 .......................................................................................................................... 22 10 C.F.R. Part 20 ........................................................................................................................ 26 10 C.F.R. Part 51 .................................................................................................................. 14, 28 10 C.F.R. Part 71 .................................................................................................................. 19, 22 10 C.F.R. Part 72 .................................................................................................................. 19, 22 Other Authorities Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562 (Aug. 3, 2012) .................................................................................. 5, 13, 14 Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed.

Reg. 19,535 (May 30, 1986)..................................................................................................... 7 Eckerman, K.F. and J.C. Ryman, External Exposure to Radionuclides in Air, Water, and Soil, Federal Guidance Report No. 12, EPA-402-R-93-081 (1993) ..................................................................................................................................... 26 Environmental Impact Statement for Interim Storage Partners LLCs License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel in Andrews County, Texas (Draft Report for Comment), NUREG-(May ) ............................................................................................................................... 3 Final Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada, DOE/EIS-0250F (Feb. 2002) ............................... 9, 10 Final Rule, Changes to Adjudicatory Process, Fed. Reg. (Jan. , ) ....................... 6 Final Supplemental Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada, DOE EIS-0250F-S1 (Jun. 2008) ........................ 9, 10 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018), corrected, 83 Fed.

Reg. 44,680 (Aug. 31, 2018) .................................................................................................... 2 vi

International Commission on Radiation Protection, Age-dependent Doses to the Members of the Public from Intake of Radionuclides Part 5, Compilation of Ingestion and Inhalation Coefficients, ICRP Publication 72 (1996) ................................... 26 Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process; Final Rule, 54 Fed. Reg. 33,168 (Aug. 11, 1989) ............................ 17 Spent Fuel Transportation Risk Assessment, NUREG-2125 (Jan. 2014) ........................... passim Weiner, et al., RADTRAN 6 Technical Manual, SAND2014-0780 (Jan. 2014) ......................... 26 vii

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of INTERIM STORAGE PARTNERS LLC Docket No. -

(WCS Consolidated Interim Storage Facility)

NRC STAFF'S ANSWER IN OPPOSITION TO FASKEN OIL AND RANCH, LTD.S AND PERMIAN BASIN LAND AND ROYALTY OWNERS MOTIONS TO REOPEN THE RECORD AND FILE NEW CONTENTION Introduction Pursuant to 10 C.F.R. § 2.309(i)(1), the U.S. Nuclear Regulatory Commission Staff (Staff) submits this answer opposing the motion of Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners (together, Fasken) to file new Contention 5 and the accompanying motion to reopen the record.1 For the reasons set forth below, the Commission2 should deny both motions because Fasken fails to meet the requirements of 10 C.F.R.

§§ 2.309(c)(1), 2.309(f)(1), and 2.326(a)-(b).

1 Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Motion For Leave to File New and/or Amended Contention (July 6, 2020) (ADAMS Accession No. ML20189A000) (Motion for Leave); Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Motion to Reopen the Record (July 6, 2020) (ML20188A390) (Motion to Reopen).

2 Although Fasken filed these two motions before the Atomic Safety and Licensing Board, Commission precedent makes clear that jurisdiction now rests with the Commission. See, e.g., Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 120 (2009) (Generally, once there has been an appeal or petition to review a Board order ruling on intervention petitions . . .

jurisdiction passes to the Commission, including jurisdiction to consider any motion to reopen.) (citing Northeast. Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI-00-25, 52 NRC 355, 357 (2000) (observing that after a petition to review a final order has been filed with the Commission, the Board no longer has jurisdiction to consider a motion to reopen and the motion is properly filed with the Commission)).

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Background

In April 2016, Waste Control Specialists LLC (WCS) applied to the Nuclear Regulatory Commission (NRC) for a license to construct and operate a consolidated interim storage facility (CISF) for spent nuclear fuel (SNF) and greater-than-Class C waste in Andrews County, Texas.3 A year later, WCS asked the NRC to suspend consideration of its application. WCS and the Staff then jointly requested that the pending hearing opportunity be withdrawn.4 Thereafter, WCS created a joint venture with Orano CIS LLC to form Interim Storage Partners LLC (ISP).5 In June 2018, ISP submitted a revised license application,6 and the NRC published a Federal Register notice that permitted interested members of the public to request a hearing and petition to intervene.7 Fasken submitted a timely hearing request, as did several other petitioners.8 In LBP-19-7, the Board denied Faskens hearing request and the hearing requests of all other petitioners except Sierra Club.9 Although the Board concluded that Fasken had not 3

Waste Control Specialists LLC, Application for a License for a Consolidated Interim Spent Fuel Storage Facility (Apr. 28, 2016) (ML16133A100).

4 Joint Request to Withdraw the Federal Register Notice Providing an Opportunity to Submit Hearing Requests (Apr. 19, 2017) (ML17109A480) (attaching letter to NRC Document Control Desk from Rod Baltzer, WCS (Apr. 18, 2017)).

5 Interim Storage Partners LLC License Application, Docket 72-1050, Andrews County, Texas, (rev. 2 July 2018) at 1-1, 1-4 (ML18206A483).

6 Letter from Jeffery Isakson, ISP, to Document Control Desk, NRC, Submittal of License Application Revision 2 and Request to Restart Review of Application for Approval of the WCS CISF, Docket 72-1050 (June 8, 2018) (ML18166A003). Letter from Jeffery Isakson, ISP, to Document Control Desk, NRC (July 19, 2018) (ML18206A482) (updated submittal). ISPs application materials are available at: https://www.nrc.gov/waste/spent-fuel-storage/cis/waste-control-specialist.html. Unless noted otherwise, citations to ISPs Environmental Report (ER) are to Revision 3 (ML20052E144 (package)).

7 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed.

Reg. 44,070, 44,070-75 (Aug. 29, 2018), corrected, 83 Fed. Reg. 44,680 (Aug. 31, 2018) (correcting the deadline date for petitioners to request a hearing to October 29, 2018). The Secretary of the Commission later extended this deadline to November 13, 2018. Order of the Secretary (Oct. 25, 2018) at 2 (unpublished) (ML18298A335).

8 Petition of Permian Basin Land and Royalty Organization and Fasken Land and Minerals for Intervention and Request for Hearing (Oct. 29, 2018) (ML18302A412).

9 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), LBP-19-7, 90 NRC __, __

(Aug. 23, 2019) (slip op. at 2).

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proffered an admissible contention, the Board found that Fasken had established standing.10 Thereafter, the Board dismissed Sierra Clubs sole admitted contention11 and denied a motion to file a late-filed contention submitted by one of the other petitioners, thereby terminating the proceeding.12 On September 17, 2019, Fasken appealed the Boards decision in LBP-19-7.13 Subsequently, Fasken filed a motion to amend its Contention 4 with an accompanying motion to reopen the record.14 Faskens appeal of LBP-19-7 and motion to amend Contention 4 are currently before the Commission.

On May , , the NRC made the draft Environmental Impact Statement (DEIS) for ISPs license application publicly available.15 Fasken then filed an unopposed motion to extend by days the deadline for any interested party to file petitions to intervene, new or amended contentions, or hearing requests based on the DEIS due to the COVID- public health emergency.16 By order issued on May , , the Secretary of the Commission granted 10 Id. (slip op. at 20, 106).

11 Id. (slip op. at 1, 5).

12 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), LBP-19-11, 90 NRC __,

__ (Dec. 13, 2019) (slip op. at 1, 90).

13 See, e.g., Fasken And PBLROs Brief on Appeal Of LBP-19-07 (Sept. 17, 2019) (ML19260J386); see also NRC Staffs Answer in Opposition to Faskens Appeal of LBP-19-7 (Oct. 15, 2019)

(ML19288A224).

14 Fasken Oil and Ranch, LTD and Permian Basin Land and Royalty Owners Motion for Leave to Amend Contention 4 Regarding Interim Storage [Partners] New Description of Groundwater Located Below the Site and the Potential Impact the Site Will Have on the Groundwater (Jan. 21, 2020)

(ML20021A385); Fasken Oil and Ranch, LTD and Permian Basin Land and Royalty Owners Motion to Reopen the Record for Purposes of Considering and Admitting an Amended Contention Based on New Information Provided by Interim Storage Partners in Response to NRC Requests for Additional Information (Jan. 21, 2020) (ML20021A384); see also NRC Staffs Answer in Opposition to Fasken Oil and Ranch, Ltd. and Permian Basin Land and Royalty Owners Amended Contention 4 and Accompanying Motion to Reopen the Record (Feb. 18, 2020) (ML20049A577).

15 Environmental Impact Statement for Interim Storage Partners LLCs License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel in Andrews County, Texas (Draft Report for Comment), NUREG- (May ) (ML A ) (DEIS).

16 Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Unopposed Motion to Extend Deadlines Pending the COVID-19 National Emergency (May 18, 2020) (ML20139A226).

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Faskens motion, setting July , , as the new deadline for such filings.17 Thereafter, Fasken filed the instant motions seeking to reopen the record and admit new Contention 5.18 Discussion I. Applicable Legal Standards A. Good Cause Requirements for New or Amended Contentions New or amended contentions submitted after the initial date for hearing requests must meet the requirements of 10 C.F.R. § 2.309(c)(1). To do so, a party must demonstrate good cause by showing that the following three conditions are met:

(i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously available; and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.

The petitioner has the burden of demonstrating that any new or amended contention meets the standards in 10 C.F.R. § 2.309(c)(1).19 New environmental contentions based on the Staffs draft environmental impact statement (EIS) are permitted if data or conclusions in the Staffs environmental document differ significantly from the applicants environmental report.20 Nevertheless, NRCs regulations and 17 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), Order of the Secretary (May 22, 2020), at 1 (unpublished) (ML20143A239).

18 Motion for Leave; Motion to Reopen. The Motion to Reopen was served via the Electronic Information Exchange (the NRCs E-Filing System) on July , . The Motion to File New Contention was served on July , , at : AM.

19 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 260-61 (2009).

20 See 10 C.F.R. § 2.309(f)(2) (Participants may file new or amended environmental contentions after the deadline in [§ 2.309(b)] (e.g., based on a draft or final NRC environmental impact statement, environmental assessment, or any supplements to these documents) if the contention complies with the requirements in [§ 2.309(c)].); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-21, 52 NRC 261, 264 n.6 (2000) (citing former 10 C.F.R. § 2.714(b)(2)(iii),

currently § 2.309(f)(2)).

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longstanding Commission precedent make clear that for issues arising under the National Environmental Policy Act (NEPA), a petitioner must first file contentions based on the applicant's environmental report and may amend those contentions only if the draft or final EIS differ significantly from the data or conclusions in the applicants documents.21 It is fundamental that a new or amended contention must be raised at the earliest possible opportunity.22 Thus, as a general rule, environmental contentions submitted for the first time after the draft EIS is issued will be deemed untimely unless there are data or conclusions in the draft EIS that differ significantly from the data or conclusions in the applicants documents.23 Indeed, publication of the draft EIS alone does not provide an opportunity to renew previously filed contentions; rather, the petitioner must demonstrate that the draft EIS actually contains significantly new data or conclusions.24 In the context of 10 C.F.R. § 2.309(c)(1), materiality generally relates to the degree or magnitude of the difference between previously available information and currently available information.25 As such, the information on which a new or amended contention is based must be more than merely a new interpretation or restatement of previously available information.26 21 See 10 C.F.R. § 2.309(f)(2) (On issues arising under the National Environmental Policy Act, participants shall file contentions based on the applicant's environmental report.); Tennessee Valley Auth. (Clinch River Nuclear Site Early Site Permit Application), CLI-18-5, 87 NRC 119, 122-23 (2018).

22 See Clinch River, CLI-18-5, 87 NRC at 122-23 (citations omitted); Crow Butte Res., Inc. (Marsland Expansion Area), LBP-18-3, 88 NRC 13, 26 (2018) (citing DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-1, 81 NRC 1, 7 (2015)).

23 Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-12-12, 75 NRC 742, 755-56 (2012).

24 Private Fuel Storage, CLI-00-21, 52 NRC at 264 n.6.

25 See Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 46,572 (Aug. 3, 2012) (noting that in the NEPA context materially different is equivalent to differs significantly); Fla. Power & Light Co. (Turkey Point Units 6 & 7), LBP-17-6, 86 NRC 37, 48 (2017),

affd, CLI-17-12, 86 NRC 215, 227 (2017) (noting that materially in the context of 10 C.F.R.

§ 2.309(c)(1)(ii) is synonymous with, for example, significantly, considerably, or importantly)

(citing Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), LBP-10-1, 71 NRC 165, 183 n.9 (2010)).

26 See Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 and 2), LBP-09-10, 70 NRC 51, 142 (2009) (The fact that a party integrates, consolidates, restates, or collects previously 5

Rather, a new or amended contention must be based upon facts or information that were previously unavailable.27 B. Requirements for Contention Admissibility In addition to meeting the requirements of 10 C.F.R. § 2.309(c)(1), new or amended contentions must also satisfy the six contention admissibility requirements of 10 C.F.R.

§ 2.309(f)(1). That section requires that each contention:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions that support the petitioner's position and upon which the petitioner intends to rely; and (vi) Provide information sufficient to show that a genuine dispute with the applicant/licensee exists on a material issue of law or fact.

The contention admissibility requirements are intended to focus litigation on concrete issues and result in a clearer and more focused record for decision.28 In this regard, the Commission has explained that the rules governing the admissibility of contentions are strict by design.29 Failure to comply with any one of these criteria is grounds for the dismissal of a available information into a new document, does not convert it into previously unavailable information.)

27 See Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-11-2, 73 NRC 333, 344 (2011) (citing System Energy Resources, Inc.

(Early Site Permit for Grand Gulf ESP Site), CLI-07-10, 65 NRC 144, 146 (2007)).

28 Final Rule, Changes to Adjudicatory Process, Fed. Reg. , (Jan. , ).

29 Entergy Nuclear Operations, Inc. (Indian Point, Unit ), CLI- - , NRC , ( ) (citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units and ), CLI- - , NRC

, ( ), petition for recons. denied, CLI- - , NRC ( )).

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contention.30 An issue is inadmissible if the petitioner has offered no tangible information, no experts, no substantive affidavits, but instead only bare assertions and speculation.31 C. Requirements for Reopening the Record Pursuant to 10 C.F.R. § 2.326(a), a petitioner seeking to open a closed record must show that its motion (1) is timely, however, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; (2) addresses a significant safety or environmental issue; and (3) demonstrates that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.32 A motion to reopen the record accompanying a new or amended contention may be considered timely if filed within 30 days of the date upon which the new information is available.33 Reopening the record is an extraordinary action, and thus, the Commission imposes a deliberately heavy burden upon a petitioner who seeks to supplement the evidentiary record after it has been closed, even with respect to an existing contention.34 Indeed, reopening will only be allowed where the proponent presents material, probative evidence which either could not have been discovered before or could have been discovered but is so grave that, in the judgement of the presiding officer, it must be considered anyway.35 Additionally, 10 C.F.R. § 2.326(b) requires supporting affidavits from experts or otherwise competent individuals to accompany the motion that set forth the factual and/or technical bases 30 Id.

31 Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003) (citation omitted).

32 10 C.F.R. §§ 2.326(a)(1)-(3); see also Virginia Electric and Power Co. (North Anna Power Station, Unit 3), CLI-12-14, 75 NRC 692, 700 n.54, 701 (2012).

33 See Shaw AREVA MOX Services (Mixed Oxide Fuel Fabrication Facility), LBP-08-11, 67 NRC 460, 493 (2008) (noting that [m]any times, boards have selected 30 days as [the] specific presumptive time period for timeliness of contentions filed after the initial deadline).

34 Vermont Yankee, CLI-11-2, 73 NRC at 337-38.

35 Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535, 19,538 (May 30, 1986).

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for the movants claim that the criteria of [10 C.F.R. § 2.326(a)] have been satisfied.36 The affidavits must address each criterion of 10 C.F.R. § 2.326(a) separately . . . with a specific explanation of why it has been met.37 Affidavits containing bare assertions or speculation and lacking technical details or analysis are insufficient to meet the reopening standards.38 II. Fasken Fails to Meet the Good Cause Requirements in 10 C.F.R. § 2.309(c)(1) and the Motion for Leave to File Contention 5 Should Be Denied Fasken fails to satisfy the good cause requirements in 10 C.F.R. § 2.309(c)(1) because the information on which Contention 5 is based is neither new nor materially different from information that was previously available; the contention is therefore untimely. As such, the motion for leave to file Contention 5 should be denied.

A. Contention 5 Does Not Satisfy the Requirements in 10 C.F.R. §§ 2.309(c)(1)(i)-(ii)

Fasken asserts that it has satisfied the good cause requirements because the information forming the basis of Contention 5 was not available prior to the DEISs issuance, and that certain sources and conclusions in the DEIS significantly vary in material respects from the information contained in ISPs license application.39 But as further explained below, the information to which Fasken points is not new or materially different from information previously available. Therefore, Fasken fails to meet the requirements in 10 C.F.R. §§ 2.309(c)(1)(i)-(ii).

1. Fasken Fails to Show that Its Claims Concerning Use of Representative Transportation Routes Are Based on New or Materially Different Information Fasken asserts that the DEIS improperly relies on representative routes to evaluate the impacts of transportation,40 and that using a representative route is inadequate and 36 10 C.F.R. § 2.326(b).

37 Id.

38 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 670, 674 (2008).

39 Motion for Leave at 6.

40 Id. at 17.

8

inappropriate.41 To the extent that Faskens vague statements are intended to suggest that this information is new, Fasken fails to satisfy its burden to demonstrate as much. As documented in ER Table 4.2-3, ISP utilizes twelve representative routes to analyze the radiological impacts of shipping SNF to the proposed CISF, including a route from the Maine Yankee nuclear power plant to the proposed CISF site.42 The DEIS uses a similar representative route selected from NUREG-2125 (Maine Yankee to Deaf Smith, TX) that serves to bound the DEISs transportation impact analyses.43 Stated differently, the representative route utilized in the DEIS is comparable to one of the routes analyzed in the ER and is identical to one of the representative routes analyzed in NUREG-2125. Thus, Faskens claims concerning the use of representative routes are based on information that was previously available long before the DEIS was published.

Fasken also asserts that the DEIS for the first time relies on and cites to data in the

[Department of Energy (DOE)] Yucca 2008 transportation analysis concerning the evaluation of the use of barges for SNF originating sites that do not have direct rail access.44 But Fasken has not articulated how the information and conclusions in the DEIS are meaningfully different from the information and conclusions presented in the ER. The ER analyzes barge shipments as part of the evaluation of the radiological impacts of transportation. Specifically, ER Section 4.2.6 concludes that barge and heavy haul shipments were not major contributors to overall 41 Id. at 21 n.66.

42 ER at 4-14 to 4-15.

43 DEIS at 4-13 (citing Spent Fuel Transportation Risk Assessment, NUREG-2125 (Jan. 2014)

(ML14031A323) (NUREG-2125)). Fasken incorrectly states that the NRC based its evaluation on three representative routes. Motion for Leave at 17.

44 Motion for Leave at 6, 18. The 2008 Department of Energy (DOE) Yucca transportation analysis identified by Fasken is DOEs final supplemental EIS (FSEIS) for the Yucca Mountain geologic repository. See Final Supplemental Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada, DOE/EIS-0250F-S1 (Jun. 2008) (ML081750191 (package)) (2008 Yucca FSEIS).

The 2008 Yucca FSEIS is a supplement to DOEs 2002 final EIS for Yucca Mountain. See Final Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada, DOE/EIS-0250F (Feb.

2002) (ML032690321 (package)) (2002 Yucca FEIS).

9

collective dose.45 Similarly, the DEIS notes that the impacts of using barges to supplement rail transportation of SNF were found to not significantly change the minor radiological impacts from a national rail transportation campaign, as previously determined by DOE in the 2002 Yucca FEIS and the 2008 Yucca FSEIS.46 While Fasken identifies a supplementary reference used in the DEIS, Fasken has not demonstrated how the information and conclusions in the DEISs analysis regarding barge transportation are significantly different from the ER.47 Because Fasken has offered nothing other than conclusory statements regarding the use of representative routes and the Yucca EIS transportation analysis, it has failed to articulate how the information in the DEIS differs in any significant way from the information previously available in the ER. As such, this portion of Contention 5 does not satisfy the requirements of 10 C.F.R. §§ 2.309(c)(1)(i)-(ii).

2. Fasken Fails to Show that Its Claims Concerning the Cost of Emergency Response and Infrastructure Upgrades Are Based on Materially Different Information Fasken asserts that the DEIS contains [n]ew and significant disclosures related to the impacts of transportation on the socioeconomic and cost-benefit analyses.48 To support its claim, Fasken points to purported differences between statements in the ER and statements in the DEIS. Namely, Fasken refers to the ERs statement that if DOE ships the SNF, the federal government, through DOE, is responsible for providing emergency training to States, Tribes, and local emergency responders.49 Fasken contrasts that with the DEISs socioeconomic 45 ER at 4-11.

46 DEIS at 4-10 (citing 2002 Yucca FEIS; 2008 Yucca FSEIS). The 2008 Yucca FSEIS indicates that because the exposed populations, distances, and intermodal transfer locations originally analyzed in 2002 remained similar, DOE did not revise the barge impact analysis in the 2008 Yucca FSEIS. 2008 Yucca FSEIS at G-58.

47 See Turkey Point, LBP-17-6, 86 NRC at 48, affd, CLI-17-12, 86 NRC at 227.

48 Motion for Leave at 15.

49 Id. (citing ER at 4-8).

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analysis, which notes that some States, Tribes, or municipalities may incur costs for emergency-response training when the shipper of SNF is a private entity and not DOE.50 While Fasken describes a difference between the ER and the DEIS, Fasken fails to demonstrate how the information and conclusions in the DEISs socioeconomic analysis regarding the potential costs of transporting SNF are meaningfully different from the information in the ER.51 Neither does Fasken articulate in what way the information or conclusions in the DEISs separate cost-benefit analysis differ from information presented in the ER. Indeed, the statements identified by Fasken demonstrate that both the ER and the DEIS recognize that there may be costs incurred for emergency response and infrastructure upgrades associated with a nationwide SNF transportation campaign.52 As such, Fasken has not shown that the information and conclusions in the DEISs socioeconomic and cost-benefit analyses are materially different from previously available information. Because Fasken fails to explain how the information in the DEIS is at all different from the information previously available in the ER, this portion of Contention 5 does not meet the requirements of 10 C.F.R. § 2.309(c)(1)(ii).

3. Fasken Fails to Show that Its Claims Concerning the Impact of Regional Characteristics on Transportation Are Based on New or Materially Different Information In Contention 5, Fasken asserts that the DEISs cumulative transportation impact analyses fail to adequately consider the unique regional characteristics within a 50-mile radius of the proposed CISF, including seismicity, subsidence, and sinkholes.53 As further support for its claim, Fasken notes that there have been earthquakes in the area of the proposed CISF within the past 30 days.54 The Staff understands this portion of Contention 5 to suggest that the 50 Id. (citing DEIS at 4-74).

51 See Turkey Point, LBP-17-6, 86 NRC at 48, affd, CLI-17-12, 86 NRC at 227.

52 See, e.g., ER at 4-8, 7-58; DEIS at 4-74 to 4-75 53 Motion for Leave at 19-21.

54 Id. at 21.

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geological characteristics of the region could result in a transportation accident. However, Fasken does not demonstrate that this claim is based on new or materially different information.

The ER utilizes RADTRAN 6 to model the risks of routine, incident-free transportation and transportation accidents.55 As stated in the ER, ISPs methodology to evaluate the impacts of transportation accidents is similar to that used in NUREG-2125 and incorporates potential accidents involving rail transport of SNF. The analysis performed by ISP included accidents with no release, accidents with a release, and accidents resulting in a loss of shielding.56 Likewise, the Staff based its transportation analyses on the guidance in NUREG-2125. In particular, like the ER, the DEIS also utilizes RADTRAN 6 and evaluates the transportation impacts under incident-free and accident conditions. The accidents evaluated in the DEIS include a full range of accident conditions that encompassed all historic and realistic accident[s].57 Here, Fasken has failed to identify how the information underpinning the DEISs cumulative transportation impacts analyses and the conclusions reached therein differ in any way from the ER, let alone that the information or conclusions are materially different. Thus, this portion of Contention 5 fails to meet the requirements of 10 C.F.R. §§ 2.309(c)(1)(i)-(ii).

4. Fasken Fails to Show that Its Claims Concerning Radiological Exposure Analyses Are Based on New or Materially Different Information Fasken asserts that assumptions concerning the populations who live near the proposed CISF site and along possible transportation routes are erroneous as they rely on reference dosing for [a] healthy, white middle-aged male.58 To the extent that Faskens conclusory 55 ER at 4-11 to 4-29. RADTRAN is the radioactive material transportation risk assessment code developed for the NRC in the 1970s by Sandia National Laboratories. During the intervening decades, the calculation method and the RADTRAN code have been improved to stay current with computer technology and the supporting input data have been collected and organized. See NUREG-2125 at 1 n.2; 15.

56 Id. at 4-12, 4-22.

57 DEIS at 4-17 to 4-24.

58 Motion for Leave at 19.

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statement is intended to suggest that this information is new or materially different from information previously available, Fasken fails to satisfy its burden to show as much. The ER utilizes the RADTRAN 6 model to calculate the annual collective radiation dose for incident-free transportation and collective and individual doses under a range of accident conditions.59 Similarly, the DEIS utilizes RADTRAN 6 and evaluates the potential radiological impacts to the public from transportation of SNF under both incident-free and accident conditions.60 Fasken does not identify in what way either the DEISs analysis of the radiological impacts of transporting SNF or the inputs for that analysis are different from, much less contradict, the information in the ER. Because Fasken has not demonstrated that its assertions are based on any new or materially different information, this portion of Contention 5 does not meet the requirements of 10 C.F.R. §§ 2.309(c)(1)(i)-(ii).

5. Fasken Fails to Show that Its Claims Concerning Potential Terrorist Attacks Are Based on New Information In Contention 5, Fasken asserts that the cumulative impacts analysis fails to consider terrorist attacks and sabotage.61 Without more, simply raising this issue does not present new information.62 The Commissions well-settled rules of practice permit new or amended contentions based on the Staffs draft EIS if the data or conclusions in the Staffs environmental document differ significantly from the applicants environmental report.63 Here, Fasken has not articulated how its claims reveal information in the DEIS that is significantly different from (or 59 ER at 4-22 to 4-28.

60 DEIS at 4-12 to 4-19.

61 Motion for Leave at 21-22.

62 As discussed further in Section III.E below, Faskens claims concerning potential terrorist attacks and sabotage do not present an admissible contention. The Commission has made clear that outside of licensing actions in the Ninth Circuit, the NRC is not required to consider terrorism in its NEPA analysis. AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 129 (2007).

63 See Amendments to Adjudicatory Process Rules, 77 Fed. Reg. at 46,567; Private Fuel Storage, CLI-00-21, 52 NRC at 264 n.6.

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inconsistent with) the information in the ER. If Fasken believed that relevant information was omitted from the ER and thereby rendered the application deficient, Fasken could have identified and asserted that same challenge at the time the application materials were made publicly available. As such, the facts on which this portion of Contention 5 is based were available when Fasken filed its original petition. Accordingly, this portion of Contention 5 fails to satisfy the requirements of 10 C.F.R. § 2.309(c)(1)(i).

6. Fasken Fails to Show that Its Claims Concerning Site Selection Are Based on New Information Fasken asserts that the DEISs statements and conclusions concerning ISPs site selection process violate NEPA and NRC regulations.64 But Fasken does not even attempt to explain how this constitutes new information. New or amended contentions based on the Staffs draft EIS may be permitted only if the data or conclusion in the Staffs environmental document differ significantly from the applicants environmental report.65 Here, Fasken has not articulated how the statements and conclusions in the DEIS concerning ISPs site selection criteria are inconsistent with the information in the ER.66 If Fasken believed that the site selection process was artificially narrowed,67 and thereby rendered the application deficient, Fasken could have identified and asserted that same challenge at the outset of this proceeding. As such, the facts on which this portion of Contention 5 is based were available when Fasken filed its original petition, contrary to the requirements of 10 C.F.R. § 2.309(c)(1)(i).

64 Motion for Leave at 22.

65 See Amendments to Adjudicatory Process Rules, 77 Fed. Reg. at 46,567; Private Fuel Storage, CLI-00-21, 52 NRC at 264 n.6.

66 As discussed further in Section III.F below, there are no specific regulatory requirements under 10 C.F.R. Part 51 for an applicants site selection criteria. Rather, the criteria are examined for reasonableness. See Duke Energy Carolinas, LLC (William States Lee III Nuclear Station, Units 1 and 2), CLI-16-19, 84 NRC 180, 210 (2016).

67 Motion for Leave at 22-23.

14

B. Contention 5 Was Not Timely Filed as Required by 10 C.F.R. § 2.309(c)(1)(iii)

Faskens assertion that Contention 5 was timely filed for the purposes of 10 C.F.R.

§ 2.309(c)(1)(iii) rests on a misapprehension regarding the nature of the extension granted by the Secretary of the Commission. Fasken appears to presume that the July 6, 2020, deadline set by the Secretary for filing contentions based on the DEIS renders timely any environmental contentions, regardless of whether those challenges could have been directed to the ER. But the Secretarys extension of the filing deadline in no way altered Faskens obligation under 10 C.F.R. § 2.309(c)(1) to show that its new contention is timely filed based on when the assertedly new or materially different information became available. And as discussed above, because the information upon which Contention 5 is based was available long before the issuance of the DEIS and because Fasken has not explained in what way the DEIS is materially different from the ER, Contention 5 is untimely. The determination of timeliness under 10 C.F.R.

§ 2.309(c)(1)(iii) is based on when the factual information giving rise to the contention was reasonably available to the public.68 Where a petitioner could have asserted the same challenge to the applicants ER, the triggering event for timeliness is thus when the information underpinning the DEIS was reasonably available, not when the DEIS itself was available.69 Because the information relied on by Fasken was previously available in the ER or other publicly available resources, the claims raised in Contention 5 could have been made at the outset of this proceeding or promptly after the relevant information was made publicly available.

And indeed, other petitioners in this proceeding did previously raise (and the Board rejected) issues nearly identical to those in Contention 5.70 This further demonstrates that Fasken could 68 Holtec Intl (HI-STORE Consolidated Interim Storage Facility), LBP- - , NRC , ( ).

69 See Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 493 n.70 (2012) (stating new or amended contentions must be based on new facts not previously available).

70 See Interim Storage Partners LLC, LBP-19-7, 90 NRC at __ (slip op. at 2, 106). In LBP-19-7, the Board considered and rejected several contentions that raised issues similar to those raised in Contention 5, including Sierra Clubs Contention 4 and Joint Petitioners Contentions 1 and 14. Sierra 15

have asserted its claims earlier in this proceeding as a challenge to ISPs ER, rendering Contention 5 inexcusably late. Accordingly, Faskens Motion to File Contention 5 is untimely under 10 C.F.R. § 2.309(c)(1)(iii).

III. Contention 5 Does Not Meet the Admissibility Requirements of 10 C.F.R. § 2.309(f)(1) and Should be Denied While Faskens failure to meet the good cause requirements of 10 C.F.R. § 2.309(c)(1) is sufficient grounds to reject Contention 5, Fasken must also meet the general contention admissibility requirements in 10 C.F.R. § 2.309(f)(1). As further explained below, Fasken has failed to satisfy those requirements as well.

As a preliminary matter, Fasken fundamentally fails to provide sufficient factual or expert support for any of the assertions in Contention 5. A proposed contention must be rejected if it does not provide a concise statement of the facts or expert opinions that support the proposed contention together with references to specific sources and documents.71 Neither speculation nor bare or conclusory assertions, even by a purported expert, suffice to render a contention admissible.72 In an attempt to support the claims in Contention 5, Fasken generally relies on an affidavit from Tommy Taylor, Vice President of Fasken Management, L.L.C., and a standalone list of various excerpts from the ER and the DEIS.73 Notably, Mr. Taylors statements concerning the DEIS do not provide anything other than unsupported and speculative assertions. For example, Mr. Taylor states that a transportation incident along the rail lines identified in the DEIS would likely diminish or has the potential to eliminate the economic value of oil and gas assets Clubs Contention 4 asserts that the ER does not adequately evaluate transportation risks. Joint Petitioners Contention 1 asserts that the ER improperly excludes a transportation impacts analysis.

Joint Petitioners Contention 14 asserts that the ER should contain an analysis of terrorist attacks.

71 10 C.F.R. § 2.309(f)(1)(v).

72 See Crow Butte Res., Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 553-54 (2009);

Ariz. Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Unit Nos. 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991).

73 See Motion for Leave at 21 (citing Motion for Leave, Ex. 1); Motion for Leave at 14 (citing Motion for Leave, Ex. 2).

16

and has the potential to interrupt or foreclose agricultural and ranching activities.74 He also makes several generalized statements that the DEIS fails to account for certain risks.75 These statements are unsupported by any concrete evidence and raise only bare assertions that the information and conclusions in the DEIS are inadequate. As such, Mr. Taylors affidavit offers nothing more than his own speculative conclusions and falls well short of the requirement in 10 C.F.R. § 2.309(f)(1)(v) to articulate factual or expert support for the contention.

Moreover, the information Fasken relies on in support of Contention 5 fails to raise a genuine dispute with the DEIS. To be admissible, a contention must show that a genuine dispute exists on an issue of law or fact.76 Mere notice pleading does not suffice.77 A petitioner is required to identify specific portions of, or alleged omissions from, the relevant documents together with an explanation of any alleged deficiency or dispute.78 This Fasken has failed to do. Tellingly, Mr. Taylors affidavit includes only a few generalized references to the DEIS and fails to set forth an analysis or explanation of the significance of the statements contained therein, contrary to the requirements in 10 C.F.R. § 2.309(f)(1)(vi). And Faskens freestanding list of excerpts from the ER and the DEIS in Exhibit 2 does not cure this defect. As Fasken provides only a single, general reference to Exhibit 2, it does not explain how the list supports any of the claims Fasken raises in Contention 5.79 Simply attaching material or documents as a basis for a contention, without setting forth an explanation of that informations significance, is inadequate to support the admission of the contention.80 A presiding officer is not expected to 74 Motion for Leave, Ex. 1 at ¶¶ 9-10 (emphasis added).

75 Id. at ¶¶ 13-15.

76 10 C.F.R. § 2.309(f)(1)(vi).

77 Fansteel, Inc., CLI-03-13, 58 NRC at 203.

78 See Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process; Final Rule, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989).

79 Motion for Leave at 14.

80 See Fansteel, CLI-03-13, 58 NRC at 204-05.

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sift through attached material in search of factual support or uncover arguments never advanced by petitioners themselves.81 That Fasken provides only speculative and conclusory statements from its purported expert and fails to explain or otherwise integrate the list of excerpts from the ER and the DEIS into its Motion for Leave renders Contention 5 fundamentally inadmissible.

However, even assuming, arguendo, that Mr. Taylors affidavit and Exhibit 2 provide some factual basis for Faskens claims, the matters in Contention 5 are inadmissible because they are outside the scope of the proceeding, they do not raise issues that are material to the findings that the NRC must make in its environmental review, they lack sufficient factual or expert support, and they do not raise a genuine dispute on a material issue of fact or law. As such, Fasken does not satisfy the contention admissibility requirements in 10 C.F.R.

§§ 2.309(f)(1)(iii)-(vi) and Contention 5 should be rejected.

A. Faskens Claims Concerning Use of Representative Transportation Routes Fail to Raise a Genuine Dispute with the DEIS, Fail to Raise Issues that Are Material to the Findings the NRC Must Make in the DEIS, and Are Outside the Scope of the Proceeding Fasken asserts that the DEIS improperly relies on representative routes to evaluate the impacts of transportation, claiming that the use of representative routes introduces uncertainty and unknowns as to the myriad aspects of impacts involved with said transportation routes and simply will not do.82 To the extent that this portion of Contention 5 asserts that a more prescriptive analysis of hypothetical future shipping routes must be performed in the DEIS, Fasken does not identify a specific requirement to do so under NEPA or NRCs environmental regulations. The Commission has long held that contentions must point to a deficiency in the NEPA analysis and cannot merely offer suggestions of other ways the analysis could have 81 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006) (citations omitted)

(noting that boards may not simply infer unarticulated bases of contentions).

82 Motion for Leave at 14, 17, 21 n.66.

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been done.83 And neither does NEPA require a detailed examination of every conceivable aspect of a project. NEPAs hard look requirement does not call for certainty or precision, but an estimate of anticipated (not unduly speculative) impacts.84 For evaluating the impacts of transporting SNF, the Staff utilized a representative route selected from NUREG-2125 that was bounding for the proposed shipments of SNF to the proposed CISF and scaled the calculated doses to match the number of proposed shipments and, as applicable, the shipment distance and time.85 The representative route used in the DEISrail transport from the Maine Yankee to Deaf Smith, TXwas selected as bounding because most of the potential shipment origins (i.e., U.S. nuclear power plants) are located east of the proposed CISF and the distance of the representative route is longer than the actual distances between most U.S. nuclear power plants and the proposed CISF site.86 While Fasken may prefer that the analysis be done using additional or alternative routes, Fasken does not specify how use of a bounding, representative route renders the analyses and conclusions in the DEIS deficient. As such, Fasken has failed to raise a genuine dispute with the DEIS and failed to demonstrate how an evaluation of other possible transportation routes could impact the findings the NRC must make in the DEIS.

Moreover, even if Fasken had articulated a material dispute with the analysis in the DEIS, Fasken does not identify a legal basis for the apparent assertion that transportation routes are required to be definitively established for an adequate evaluation in the DEIS. ISPs application, as described in the related Federal Register notice, is a license application for an interim storage facility under 10 C.F.R. Part 72. It is not a transportation license under 10 C.F.R. Part 71. Fasken identifies no provision under either Part 71 or 72 that requires 83 See NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 323 (2012)

(citation omitted).

84 Louisiana Energy Servs, L.P. (National Enrichment Facility), CLI-05-20, 62 NRC 523, 536 (2005)

(emphasis in original).

85 DEIS at 4-12 to 4-13.

86 Id. at 4-13.

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contemporaneous regulatory approval (with an associated environmental analysis) of specific routes as a prerequisite to issuing a CISF license. And given that there are no pending proposals for any individual shipment,87 Fasken has failed to show how any purported failure of the DEIS to consider hypothetical future shipments is within the scope of this Part 72 proceeding. Therefore, this portion of Contention 5 fails to meet the requirements of 10 C.F.R.

§§ 2.309(f)(1)(iii), (iv) and (vi).

B. Faskens Claims Concerning the Cost of Emergency Response and Infrastructure Upgrades Fail to Raise a Genuine Dispute with the DEIS, Fail to Raise Issues that Are Material to the Findings the NRC Must Make in the DEIS, and Are Outside the Scope of the Proceeding In Contention 5, Fasken asserts that [n]ew and significant disclosures in the ISP DEIS concerning the socioeconomic and cost-benefit analyses hinge on the responsibility and costs for coordinating transportation, payments for needed infrastructure improvements and providing necessary emergency training for first responders along the transportation routes.88 But these claims do not raise a genuine dispute with the DEIS. Other than its own bare assertions, Fasken does not explain how identifying the specific entity responsible for possible costs associated with transporting SNF would affect, much less contradict, the environmental analyses presented in the DEIS. The DEIS recognizes that there may be costs incurred for emergency response89 and infrastructure upgrades at certain reactor sites associated with a nationwide SNF transportation campaign,90 facts that Fasken does not dispute. Because Fasken has failed to articulate in what way the DEIS is deficient, beyond its own vague and 87 In this regard, Contention 5 does not explain how there is currently any federal action distinct from the CISF that is sufficiently ripe to require any specific analysis as a connected action. See Duke Energy Corp. (McGuire Nuclear Station), CLI-02-14, 55 NRC 278, 294-95 (2002).

88 Motion for Leave at 15.

89 See, e.g., DEIS at 4-74, 8-11.

90 See, e.g., id. at 4-10, 8-11.

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conclusory statements, this portion of Contention 5 does not raise a genuine dispute as required by 10 C.F.R. § 2.309(f)(1)(vi).

Neither do Faskens claims concerning the socioeconomic analysis identify issues material to the findings that the NRC must make in its environmental analysis. Faskens concerns are targeted at the potential costs associated with emergency response and infrastructure upgrades that may be incurred in areas along the transportation routes.91 The DEIS uses a 3-county region of influence (ROI) to assess the socioeconomic impacts of the proposed CISF, a method which Fasken does not challenge.92 Further, Fasken does not articulate why identifying the entity responsible for possible costs associated with transporting SNF through areas outside of the ROI would in any way alter the DEISs evaluation of the socioeconomic impacts of the proposed CISF within the ROI. Indeed, NEPA does not call for examination of every conceivable aspect of federally licensed projects.93 While Fasken may prefer that the analysis be expanded or conducted using an alternative method, it has not articulated in what way the Staffs approach violates the requirements of NEPA.94 As such, Fasken has failed to raise an issue material to the findings that the NRC must make in the DEIS as required by 10 C.F.R. § 2.309(f)(1)(iv).

In addition, Fasken fails to demonstrate that its cost-benefit analysis claims are material to the findings that the NRC must make in the DEIS. NRC regulations direct the Staff to consider and weigh the environmental, technical, and other costs and benefits of a proposed 91 Motion for Leave at 15.

92 The socioeconomic region of influence (ROI) includes the following three counties: Andrews County, TX; Gaines County, TX; and Lea County, NM. DEIS at 3-68 to 3-69.

93 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 349 (2002) (quoting Louisiana Energy Servs, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 102-03 (1998)).

94 See System Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-05-4, 61 NRC 10, 13 (2005).

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action and the alternatives.95 But the Commission has recognized that the NEPA cost-benefit analysis may appropriately consider the costs and benefits to society as a whole rather than isolate the costs or benefits to particular groups.96 Indeed, the DEIS states that the Staffs cost-benefit analysis is focus[ed] on the societal perspective as opposed to the perspective of any individual, company, or industry.97 As such, the identification and quantification of costs documented in DEIS Section 8.3 and the conclusions reached in that section do not depend on which entity bears the burden of those costs. And Fasken has not demonstrated why identifying the entity responsible for the costs of transporting SNF would impact the cost-benefit analysis in any meaningful way. Therefore, this portion of Contention 5 does not meet the requirements in 10 C.F.R. § 2.309(f)(1)(iv).

Even if Fasken had articulated a material dispute with the analysis in the DEIS, Fasken does not identify a legal basis for its apparent assertion that the analysis in the DEIS must conclusively establish the entity responsible for the costs of emergency response and infrastructure upgrades. As noted above, ISPs application is a license application for an interim storage facility under 10 C.F.R. Part 72, not a transportation license under 10 C.F.R. Part 71. As such, Fasken has not shown how evaluation of the costs of emergency response and infrastructure upgrades are within the scope of this Part 72 proceeding as required by 10 C.F.R.

§ 2.309(f)(1)(iii). Moreover, the Department of Transportation (DOT) is responsible for overseeing vehicle safety, emergency response, and shipper training through its own regulatory program.98 Challenges to DOTs regulatory scheme are plainly outside the scope of this 95 10 C.F.R. § 51.71(d).

96 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-06-3, 63 NRC 19, 30 (2006) (citing Claiborne, CLI-98-3, 47 NRC at 89).

97 DEIS at 8-1.

98 See 10 C.F.R. § 71.5 (noting particular DOT regulations in Title 49 relevant to the transportation of NRC licensed material, including emergency information and training).

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proceeding.99 Thus, this portion of Contention 5 fails to raise a genuine dispute, fails to demonstrate that the issues it seeks to raises are material to the findings that the NRC must make in the DEIS, and is outside the scope of the proceeding, contrary to the requirements in 10 C.F.R. §§ 2.309(f)(1)(iii), (iv) and (vi).

C. Faskens Claims Concerning the Impact of Regional Characteristics on Transportation Lack Support and Fail to Raise a Genuine Dispute with the DEIS Fasken asserts that the DEISs cumulative transportation impact analysis fails to adequately consider the unique regional geological characteristics within a 50-mile radius of the proposed CISF, including seismicity, subsidence, and sinkholes.100 As noted above, the Staff understands this portion of Contention 5 to suggest that the geological characteristics of the region could result in a transportation accident and must be assessed in the cumulative impacts analysis for transportation. But Fasken does not explain in what way the DEISs analyses do not already account for the information identified as the basis for Contention 5. Here, the Staff assessed the accident risks associated with transporting SNF along the bounding, representative route under accident conditions.101 Consistent with methods used in NUREG-2125, the most severe accident impacts evaluated by the Staff encompassed all historic and realistic accident[s].102 As such, the DEISs analysis already incorporates a full range of accidents, including rare, severe accidents.103 Fasken offers no factual support to show that the regional geological characteristics it points to, such as seismicity, subsidence and sinkholes, could realistically create additional accident conditions with consequences not bounded by 99 See Duke Power Co., (Catawba Nuclear Station, Units 1 and 2), LBP-82-51, 16 NRC 167, 172 (1982).

100 Motion for Leave at 19-21. Fasken also states [t]he ISP DEIS underestimates the potential risk for seismic events declaring the site has less than 10% risk of fluid induced fault slip. However, the language Fasken purports to quote from the DEIS does not actually appear in the DEIS.

101 DEIS at 4-10; 4-17 to 4-21.

102 Id. at 4-18.

103 Id.

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those already analyzed. Accordingly, Fasken has provided no factual basis to identify any disagreement with, or deficiency in, the Staffs conclusions regarding the environmental impacts of transportation.

Fasken also states that the DEISs cumulative impacts analysis is deficient because it fails to consider that other industries in the region rely on transportation infrastructure throughout the Permian Basin and because of its lackluster investigation and evaluations into regional highways and access road transportation cumulative impacts.104 Additionally, Faskens affiant states that there is risk posed by sharing the same rail lines that have primarily been transporting oil commodities with spent fuel and that he question[s] whether an objective and thorough analysis of possible injury to the oil and gas industry will be conducted as part of a risk assessment.105 However, Faskens assertions and the statements from Faskens affiant fail to recognize that the DEIS does include a description of the transportation infrastructure and conditions within the region and recognizes that other industries rely on existing transportation infrastructure. Specifically, the DEIS describes traffic data along roads within the region and railroad services in West Texas and Southeast New Mexico that serve the oil fields there.106 This information was incorporated into the cumulative transportation impacts assessment, including a discussion of the cumulative impacts the proposed CISF will have on the regional roadways and railroads.107 Concerning roadways, the DEIS provides an analysis of the cumulative traffic-related transportation impacts from the other past, present, and reasonably foreseeable future actions, including traffic volume, safety, and infrastructure wear and tear.

Indeed, the DEIS states that [t]raffic-generating activities within the geographic scope of the analysis that could overlap with traffic the proposed CISF activities would generate are 104 Motion for Leave at 21.

105 Motion for Leave, Ex. 1 at 3.

106 DEIS at 3-7 to 3-8.

107 Id. at 5-17 to 5-19.

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accounted for in the existing annual average daily traffic counts and historical ranges for area roadways described in EIS Section 3.3.1.108 Concerning railroads, the DEIS notes that while SNF shipments would be travelling at a slower speed than other trains on the main line track, it is assumed that the carriers who manage rail traffic would make any necessary traffic flow and routing adjustments to maximize utility.109 In other words, the Staffs cumulative impacts analysis accounts for the way other industries in the region currently utilize the roadways and railroads.

In sum, Faskens vague assertions and the conclusory statements made by Faskens affiant concerning the impact of regional characteristics on transportation do not acknowledge, let alone refute, any of the information presented in the DEIS. Without more, Fasken does not provide sufficient factual support and does not raise a genuine dispute with the DEIS. As such, this portion of Contention 5 fails to meet the requirements of 10 C.F.R. §§ 2.309(f)(1)(v)-(vi).

D. Faskens Claims Concerning Radiological Exposure Analyses Lack Support and Fail to Raise a Genuine Dispute with the DEIS Fasken asserts that assumptions concerning the populations who live near the proposed CISF site and along possible transportation routes are erroneous as they rely on reference dosing for [a] healthy, white middle-aged male.110 But Fasken offers no evidence to support this claim other than bare assertions. Nor does Fasken articulate in what way the conclusions in the DEIS do not already account for the information identified as the basis for Contention 5.

As described in the DEIS, and consistent with the analysis in NUREG-2125, the Staff used RADTRAN 6 to calculate public doses and risks from the transportation of SNF along the bounding, representative route under incident-free and accident conditions.111 For incident-free 108 Id. at 5-17.

109 Id. at 5-18.

110 Motion for Leave at 19.

111 DEIS at 4-12 to 4-20.

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public dose calculations, the input to the RADTRAN model is the dose rate one meter from the loaded SNF cask. The RADTRAN model uses that input to then compute the dose rate to human dose receptors located at distances further than one meter.112 As such, the DEISs incident-free public dose calculations do not use dose coefficients that are computed based on reference human physiology. For public dose calculations under accident conditions, the RADTRAN model utilizes external and internal dose coefficients based on previously published standards that have a well-established and accepted scientific basis and that account for certain gender-based differences. Specifically, the external and internal dose coefficients used in the RADTRAN model come from the Environmental Protection Agencys Federal Guidance Report No. 12 and the International Commission on Radiation Protections Publication 72, respectively.113 The dosimetry methods used in the RADTRAN model are considered by the NRC staff to be acceptable for evaluating the radiological impacts from the transportation of SNF to workers and all members of the public.114 Fasken neither explains why it questions the veracity of the inputs to the RADTRAN model nor supports its assertion with any factual evidence. This is insufficient to meet the requirement in 10 C.F.R. § 2.309(f)(1)(v).

Moreover, Fasken fails to identify in what way its claims related to the radiological exposure analyses render the DEIS deficient. A contention that merely offers a suggestion of alternative ways an analysis could have been done is insufficient to satisfy the contention 112 See DEIS at 4-15 to 4-17 (citing to Weiner, et al., RADTRAN 6 Technical Manual, SAND2014-0780 (Jan. 2014) (ML14286A085)).

113 See DEIS at 4-17 to 4-20. The DEIS cites to the RADTRAN 6 Technical Manual, which in turn cites to the reports from the Environmental Protection Agency and the International Commission on Radiation Protection. Weiner, et al., RADTRAN 6 Technical Manual, SAND2014-0780 (Jan. 2014)

(ML14286A085) (citing Eckerman, K.F. and J.C. Ryman, External Exposure to Radionuclides in Air, Water, and Soil, Federal Guidance Report No. 12, EPA-402-R-93-081 (1993); International Commission on Radiation Protection (ICRP), Age-dependent Doses to the Members of the Public from Intake of Radionuclides Part 5, Compilation of Ingestion and Inhalation Coefficients, ICRP Publication 72 (1996)).

114 See NUREG-2125 at 15. The NRC incorporates adult dose receptors and related dosimetry methods into several safety regulations and considers the methods therein protective of all members of the public. See, e.g., 10 C.F.R. Part 20.

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admissibility requirements.115 While Fasken may prefer that the radiological exposure analyses be done using another method or with alternative inputs, Fasken has not articulated in what way the Staffs approach violates NEPA. Faskens claims amount to nothing more than merely flyspecking the DEIS, and thus, fail to raise a genuine dispute with the DEIS.116 In sum, Faskens bare assertions, without more, do not provide sufficient support and are insufficient to demonstrate that the issues raised in this portion of Contention 5 show a genuine dispute with the DEISs assessment of the radiological impacts associated with transporting SNF. Thus, this portion of Contention 5 fails to satisfy the requirements of 10 C.F.R. §§ 2.309(f)(1)(v)-(vi).

E. Faskens Claims Concerning Potential Terrorist Attacks Are Outside the Scope of the Proceeding In Contention 5, Fasken asserts that the cumulative impacts analysis fails to consider terrorist attacks and sabotage.117 Well-established Commission precedent holds that outside licensing actions in the Ninth Circuit, the NRC is not required to consider terrorism in its NEPA analysis.118 In Oyster Creek, the Commission reaffirmed that the proximate cause test for a reasonably close causal relationship between federal agency action and the environmental consequences is the appropriate test for determining the necessity of a NEPA analysis.119 Importantly, the Commission held that an NRC licensing action is not a proximate cause of a terrorist act, and as a result, NEPA does not require the NRC to consider the environmental consequences of hypothetical terrorist attacks on NRC-licensed facilities.120 In Oyster Creek, 115 See Seabrook, CLI-12-5, 75 NRC at 323; see also Claiborne, CLI-98-3, 47 NRC at 103 (citing South Louisiana Envtl. Council, Inc. v. Sand, 629 F.2d 1005, 1011 (5th Cir. 1980)).

116 See Grand Gulf, CLI-05-4, 61 NRC at 13 (At NRC licensing hearings, petitioners may raise contentions seeking correction of significant inaccuracies and omissions in the ER. Our boards do not sit to flyspeck environmental documents or to add details or nuances.)

117 Motion for Leave at 21-22.

118 Oyster Creek, CLI-07-8, 65 NRC at 129 (upheld by N.J. Dept of Envtl. Prot. v. U.S. Nuclear Regulatory Commn, 561 F.3d 132, 140-43 (3d Cir. 2009)).

119 Id. at 129-30.

120 Id. at 129.

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the Commission further noted that its decision was based on the same reasoning employed in prior decisions, including Private Fuel Storage.121 In that case, the Commission held that a license for an independent spent fuel storage installation does not make a terrorist attack reasonably foreseeable. Thus, consideration of such an attack is not required under NEPA.122 Likewise, here, the proposed CISF is not within the Ninth Circuit. Therefore NEPA does not require the NRC to consider a hypothetical terrorist attack in its environmental analysis.123 As such, Fasken has not demonstrated that its claims concerning possible terrorist attacks are within the scope of the proceeding, contrary to the requirements in 10 C.F.R. § 2.309(f)(1)(iii).

F. Faskens Claims Concerning Site Selection Fail to Raise a Genuine Dispute with the DEIS As a basis for Contention 5, Fasken asserts that the NRCs failure to conduct consent-based siting and the DEISs conclusions concerning ISPs site selection process violate NEPA and NRC regulations.124 The site selection criteria are related to the purpose and need of the project, as defined by ISP in the ER. An applicants purpose and need generally defines the scope of reasonable alternatives for analysis, and the NRC may accord substantial weight to the preferences of the applicant and/or sponsor in the siting and design of the project.125 NEPA only requires a discussion of those alternatives that are reasonable and will bring about the ends of the proposed action.126 In addition, there are no specific regulatory findings that must be made under 10 C.F.R. Part 51 in connection with an applicants selection criteria. Rather, the 121 Id. (citing Private Fuel Storage, CLI-02-25, 56 NRC at 349).

122 Private Fuel Storage, CLI-02-25, 56 NRC at 349-50 (stating that the claimed impact was too attenuated to find that the proposed federal action was the proximate cause of that impact).

123 The proposed facility is located in the Fifth Circuit.

124 Motion for Leave at 22-23.

125 Hydro Resources, Inc. (Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 55 (2001).

126 Id.

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criteria are examined for reasonableness.127 Here, Fasken does not identify any statutory or regulatory requirement (or guidance document) that mandates the use of consent-based siting. Neither does Fasken explain in what way the DEISs evaluation of ISPs site selection process is unreasonable or otherwise deficient under NEPA or NRC regulations. As explained in the ER, ISPs site selection process incorporated a multi-step search and screening approach that yielded four potential CISF sites.128 In the DEIS, the Staff performed an independent review of ISPs site selection process and determined that it was reasonable.129 In addition, the Staff reviewed each of the alternative sites and concluded that none of the other potential sites was clearly environmentally preferable to ISPs proposed site in Andrews County, TX.130 Because Fasken neither identifies any legal requirement for consent-based siting nor raises a dispute with the reasonableness of the Staffs analysis of ISPs site selection process, this portion of Contention 5 does not meet the requirements of 10 C.F.R. § 2.309(f)(1)(vi).

In sum, it is Faskens burden to meet the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1). Fasken fails to satisfy this burden because Contention 5 is outside the scope of the proceeding, does not raise issues material to the findings that the NRC must make in the DEIS, lacks sufficient factual or expert support, and does not raise a genuine dispute with the DEIS. For these reasons, Contention 5 is inadmissible and should be denied.

IV. Fasken Fails to Meet the Reopening Standards of 10 C.F.R. § 2.326 and the Motion to Reopen the Record Should Be Denied Faskens Motion to Reopen fails to satisfy the requirements in 10 C.F.R. § 2.326(a) for reopening the record because it is untimely, fails to address a significant environmental issue, 127 See Lee, CLI-16-19, 84 NRC at 210 (upholding Staffs examination of the applicants site selection process for reasonableness).

128 ER 2-9 to 2-18.

129 DEIS at 2-23 to 2-25.

130 Id. at 2-25.

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and fails to demonstrate that a materially different result would have been likely. Further, Faskens Motion to Reopen is not supported by an adequate affidavit, contrary to 10 C.F.R. § 2.326(b). As such, the Motion to Reopen should be denied.

A. Faskens Motion to Reopen Is Untimely Fasken asserts that its Motion to Reopen is timely because information forming the basis for Contention 5 was not available prior to publication of the DEIS.131 But as discussed above in Section II, the statements in the DEIS on which Contention 5 is based are not materially different from what was publicly available in ISPs application materials. Therefore, the information forming the basis for Contention 5 was available months or years ago, long before publication of the DEIS. As such, Faskens Motion to Reopen is not timely. While the Commission may excuse untimeliness for an exceptionally grave issue,132 Fasken does not address that standard and has not provided information that would support such a finding.

Accordingly, Faskens Motion to Reopen should be rejected as untimely.

B. Faskens Motion to Reopen Does Not Address a Significant Environmental Issue As discussed above, Contention 5 is based on the DEIS, and thus, the Motion to Reopen must demonstrate a significant environmental issue. The Motion to Reopen asserts that there are technical and integration issues that the NRC must resolve to conduct a proper independent review in the DEIS.133 In support of this claim, Fasken states that the DEIS relies on speculative representative transportation routes, unfounded assumptions as to responsibility for infrastructure improvements and emergency responses and further disregards regional geologic characteristics and competing industry uses for transportation, painting a distorted 131 Motion to Reopen at 4.

132 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),

CLI-12-21, 76 NRC 491, 500-01 (2012) (finding that potential noncompliance with the Endangered Species Act was not an exceptionally grave issue that threatened the public health and safety).

133 Motion to Reopen at 4.

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picture of the socioeconomic costs and benefits for the proposed ISP CISF project.134 But Faskens filing is devoid of any explanation of the specific environmental concern posed by these conclusions. Rather, the asserted bases for the motion are impermissibly vague and are supported only by the conclusory statement that the issues in Contention 5 implicate important legal issues, safety risks and environmental impacts relating to the transportation, construction, operation and decommissioning of the proposed ISP CISF project.135 An affidavit containing bare assertions and lacking a factual or technical basis is insufficient to demonstrate a significant safety or environmental issue.136 Here, neither the Motion to Reopen nor the accompanying affidavit provide factual support or an analysis demonstrating that the issues in Contention 5 articulate any specific environmental concern. As such, Fasken has not shown that it raises an environmental issue, let alone a significant one, and the Motion to Reopen should be denied.

C. Faskens Motion to Reopen Does not Demonstrate That a Materially Different Result Would be Likely Fasken has failed to demonstrate how granting its Motion to Reopen would likely result in a material change in the outcome of the proceeding as required by 10 C.F.R. § 2.326(a)(3).

As demonstrated above, the matters raised in Contention 5 are outside the scope of the proceeding, fail to raise issues that are material to the findings that the NRC must make in the DEIS, lack sufficient factual or expert support, and do not raise a genuine dispute with the DEIS.

Thus, Contention 5 does not meet the standards for an admissible contention in 10 C.F.R.

§ 2.309(f)(1). Because Contention 5 is inadmissible, Fasken has not demonstrated that a 134 Id. at 5.

135 Id.; see also Motion to Reopen, Affidavit of Kanner at 9.

136 Oyster Creek, CLI-08-28, 68 NRC at 670.

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materially different result in the Staffs environmental analysis would have been likely had its contention been considered initially.137 Therefore, the Motion to Reopen should be denied.

D. Faskens Motion to Reopen Is Not Supported by an Adequate Affidavit Faskens Motion to Reopen is not supported by an affidavit that satisfies the requirements of 10 C.F.R. § 2.326(b). A motion to reopen must be accompanied by an affidavit of a qualified expert that presents the claims with evidence that meets the evidentiary standard in 10 C.F.R. § 2.337.138 Rather than providing an affidavit from a qualified expert on the technical subject matter, Faskens affidavit is from its counsel, who does not identify his qualifications regarding the technical subject matter beyond merely stating that he reviewed documents related to Faskens proposed Contention 5.139 Further, the affidavit supporting the Motion to Reopen merely summarizes statements from Mr. Taylors affidavit and purports to incorporate by reference the arguments in Faskens Motion for Leave.140 Neither Mr. Taylors affidavit nor the Motion for Leave specifically address each criterion in 10 C.F.R. § 2.326(a) as required by 10 C.F.R. § 2.326(b). Faskens attempt to satisfy this requirement through counsels imprecise incorporation by reference does not provide the technical details or analysis necessary to meet the reopening standards.141 As such, the Motion to Reopen is not supported by an adequate affidavit.

For these reasons, Faskens Motion to Reopen fails to satisfy the requirements of 10 C.F.R. §§ 2.326(a)-(b) and should be denied.

137 See, e.g., Pilgrim, CLI-12-21, 76 NRC at 497-98, 501 n.69 (finding no error in the Boards determination that the petitioner failed to satisfy the reopening standards, in part, because the petitioner did not demonstrate that a materially different result in the Staffs endangered species analysis would have been likely).

138 See 10 C.F.R. § 2.326(b).

139 Motion to Reopen, Affidavit of Kanner at 8.

140 Id. at 8-10.

141 Oyster Creek, CLI-08-28, 68 NRC at 670, 674.

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Conclusion For the reasons set forth above, Fasken has not shown good cause for its filing after the initial intervention deadline, has not proffered an admissible contention, and has not shown that the criteria for reopening the record are satisfied. Accordingly, Contention 5 and the accompanying motion to reopen the record should be denied.

Respectfully submitted,

/Signed (electronically) by/

Rebecca Susko Mail Stop: O- -A U.S. Nuclear Regulatory Commission Washington, DC -

Telephone: ( ) -

E-mail: Rebecca.Susko@nrc.gov Counsel for NRC Staff Executed in Accord with 10 CFR 2.304(d)

Joe Ivy Gillespie III Mail Stop: O- -A U.S. Nuclear Regulatory Commission Washington, DC -

Telephone: ( ) -

E-mail: Joe.Gillespie@nrc.gov Counsel for NRC Staff Dated this st day of July 33

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of INTERIM STORAGE PARTNERS LLC Docket No. -

(WCS Consolidated Interim Storage Facility)

CERTIFICATE OF SERVICE Pursuant to C.F.R. § . , I hereby certify that copies of the foregoing NRC Staffs Answer in Opposition to Fasken Oil and Ranch, Ltd.s and Permian Basin Land and Royalty Owners Motions to Reopen the Record and File New Contention , dated July , , have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this st day of July .

/Signed (electronically) by/

Rebecca Susko Mail Stop: O- -A U.S. Nuclear Regulatory Commission Washington, DC -

Telephone: ( ) -

E-mail: Rebecca.Susko@nrc.gov Counsel for NRC Staff Dated this st day of July

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