ML20195A163
| ML20195A163 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 07/13/2020 |
| From: | Taylor W Law Offices of Wallace L. Taylor, Sierra Club |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| ASLBP 18-958-01-ISFSI-BD01, Holtec International, RAS 55735 | |
| Download: ML20195A163 (17) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION IN THE MATTER OF: )
) Docket No. 72-1051 HOLTEC INTERNATIONAL )
) July 13, 2020 (Consolidated Interm Storage Facility )
Project) )
SIERRA CLUBS BRIEF IN SUPPORT OF APPEAL OF ATOMIC SAFETY AND LICENSING BOARD DECISION DENYING ADMISSIBILITY OF CONTENTIONS IN LICENSING PROCEEDING Wallace L. Taylor Law Offices of Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com ATTORNEY FOR SIERRA CLUB 1
TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. INTRODUCTION AND
SUMMARY
OF GROUNDS FOR PETITION . . . . . 4 II. FACTUAL AND PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . . 5 III. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. CONTENTION 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. CONTENTION 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C. CONTENTION 17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 D. CONTENTION 19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 E. CONTENTION 30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 F. STANDARD FOR CONTENTION ADMISSIBILITY. . . . . . . . . . . . . 14 IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2
TABLE OF AUTHORITIES Page I. CASES Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),
54 NRC 349 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Northeast Nuclear Energy Company, 53 NRC 22, 27 (2001) . . . . . . . . . . . . . . . . . 15 U.S. Dept. of Energy (High Level Waste Repository), LBP-09-06 (May 11, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 554 (1978). . . . . . 15 York Comm. for a Safe Envt. v. NRC, 527 F.2d 812, 815 n. 12 (D.C. Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 II. REGULATIONS 10 C.F.R. § 2.326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 10 C.F.R. § 72.108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 10 C.F.R. § 51.45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9 III. OTHER AUTHORITIES Environmental Review Guidance for Licensing Actions Associated With NMSS Programs (NUREG-1748)(Accession No. ML032450279) . . . . . . . . . . . . 6 3
I. INTRODUCTION AND
SUMMARY
OF GROUNDS FOR PETITION Sierra Club, by and through counsel, pursuant to 10 C.F.R. § 2.311(c), hereby gives notice of its appeal to the U.S.Nuclear Regulatory Commission (NRC) from the Atomic Safety and Licensing Board (ASLB) ruling, LBP-20-06, Memorandum and Order (Ruling on Remanded Contentions and Denying Motion to Reopen)
(ML19127A026) (May 7, 2019) in the Holtec International Consolidated Interim Storage proceeding. Sierra Club specifically appeals the denial of admissibility of Sierra Clubs Contentions 15, 16, 17, 19, and 30.
Holtec International submitted to the Commission an application for a license to construct a storage facility for high-level radioactive waste and spent nuclear fuel from nuclear reactors across the country. The facility would be constructed in Lea County, New Mexico.
Sierra Club submitted a total of 30 contentions. The Atomic Safety and Licensing Board found that Sierra Club had standing, but ruled that none of Sierra Clubs contentions, 1-29, were admissible. Sierra Club appealed the ASLB ruling with respect to several contentions. While that appeal was pending before the Commission, Sierra Club submitted a new contention 30. The Commission remanded Contentions 15, 16, 17, 19, and 30 to the ASLB for further consideration. On remand, the ASLB held that none of the remanded contentions were admissible.
The contentions remanded by the Commission are summarized as follows Contention 15, 16, 17, and 19 - These contentions addressed the inadequacy of the discussion of groundwater impacts in the Holtec documentation. Holtecs 4
documentation was inadequate to determine the presence of groundwater and the and the danger of impacts to the groundwater and impacts to the Holtec facility from groundwater contamination.
Contention 30 - This contention was based on a September 23, 2019 report by the Nuclear Waste Technical Review Board (NWTRB). That report identified 18 technical issues regarding transportation of nuclear waste that the report determined were still unresolved. Most importantly, the NWTRB report concludes that nulcear waste could not be removed safely from reactor sites until at least 2070. This would be beyond the 40-year period of the proposed license.
II. FACTUAL AND PROCEDURAL BACKGROUND Holtec proposes to construct a storage facility for high level radioactive waste and spent nuclear fuel in Lea County, New Mexico. The waste would be transported across the country, primarily by rail, from nuclear reactors all around the United States. The Holtec facility is proposed to store 100,000 MTU of radioactive waste. That would be more waste than was proposed to be stored at a permanent repository at Yucca Mountain.
The Holtec facility would not be a geologic repository, however. The casks in which the waste would be placed would be only partially underground, with the top of the cask above ground.
On March 30, 2017, Holtec submitted an application and accompanying documents for a license to construct the proposed nuclear waste facility. On September 14, 2018, Sierra Club filed a petition to intervene, with 25 contentions. Subsequently, Sierra Club submitted four additional contentions based on new information. A hearing 5
was held on January 23 and 24, 2019, before the ASLB regarding standing of the parties and admissibility of contentions. On May 7, 2019, the ASLB issued a ruling finding that Sierra Club had standing, but that none of Sierra Clubs contentions were admissible.
Sierra Club now appeals from that ruling.
Sierra Club appealed the ASLB decision to the Commission. While that appeal was pending, Sierra Club submitted a new Contention 30. On April 23, 2020, the Commission reversed and remanded to the ASLB Contentions 15, 16, 17, 19 and 30. On June 18, 2020, the ASLB issued a Memorandum and Order determining that Sierra Clubs contentions were inadmissible. Sierra Club now appeals that determination to the Commission.
III. ARGUMENT A. CONTENTIONS 15, 16, 17, and 19 (GROUNDWATER IMPACTS)
In its Ruling remanding these contentions back to the ASLB the Commission correctly described the issue as follows:
Of the five groundwater contention, only Contention 18 was based entirely on the premise that leaks from the facility would contaminate the groundwater. The other contentions all raised specific arguments about the adequacy of the hydrogeological site characterization, were supported by expert opinion, and identified the portions of the application in question.
Commission Ruling, p. 27.
Whether or not Holtec claims the containers cant leak or be breached, the ER is required to contain a complete and accurate discussion of the affected environment. 10 C.F.R. § 51.45 (b); Environmental Review Guidance for Licensing Actions Associated With NMSS Programs (NUREG-1748)(Accession No. ML032450279), 6.3. Sierra Club, 6
supported by its citations to the Holtec ER and SAR and to its expert declaration, adequately raised the issue of the adequacy of the description of the affected environment.
In other words, the failure of the Holtec documentation to adequately discuss the affected environment is a violation of the NRC regulations and guidance. Judge Trikouros of the ASLB supported this point in his questioning at the hearing on admissibility:
JUDGE TRIKOUROS: About the ground water and the chemistry of the groundwater. The staff, in response, of course, provided the argument that you cant identify a mechanism whereby youd have a leak and that leak would lead to all these problems. Isnt it true, however, that in a standalone fashion, youre questioning the adequacy of the environmental report and, perhaps even the safety evaluation report or the safety analysis report?
In your contention, you sort of focused on what could happen if theres near-surface ground water and brine present. Wouldnt it be true, however, that if you eliminate all that and just argue - - make the argument that youve shown that theres inadequacies in the environmental report, period? Would that be correct?
MR. TAYLOR: If I understand your question correctly, youre saying that I could just argue that the environmental report is insufficient, whether or not theres any pathway for contamination. Is that it?
JUDGE TRIKOUROS: Yes.
MR. TAYLOR: I think thats true. Certainly, when the environmental report addresses the issue of ground water and sub-surface conditions, they have to do a thorough, complete, and accurate job. We have shown, through our experts opinion, that they have not. I think it was basically the staff and Holtec that raised the issue of whether or not there was a pathway for contamination. We do believe that our contentions regarding the possible leakage from the containers does provide that. I think youre right that just the inadequacy of the discussion of the underground water and sub-surface conditions would be enough for a contention, which is basically what we are arguing.
JUDGE TRIKOUROS: Okay, thank you.
(Hrg. Tr. p. 56-57).
A. Contention 15 7
Regarding Contention 15, Sierra Club alleged that the ER failed to adequately determine whether shallow groundwater exists at the site of the proposed CIS facility.
This was based on the opinion of Sierra Clubs expert, George Rice. The claim in the ER that there is probably no shallow groundwater at the site is based on information obtained from onsite drilling. Only one test well, ELEA-1, has been completed at the interface of the alluvium and the Dockum geologic formation. That well has not been checked for the presence of water since 2007. This is significant since shallow aquifers may be intermittently saturated.
Furthermore, as described in Mr. Rices declaration, one well is not sufficient to determine whether shallow groundwater exists at the site. Although other wells have been installed, they have not been placed in the appropriate depth to determine the presence of shallow groundwater.
Mr. Rice also explains why saturated conditions were not encountered in the alluvium, but there may still be shallow groundwater at the site. Drilling with air will often dry the cuttings as they are brought to the surface and water may drain from the cuttings as they are brought to the surface. Mr. Rice also notes that the caliche and alluvium at the Holtec site are not dry. Water contents were measured in samples that came from 10-30 feet below land surface. The water contents ranged from 5-16 percent by weight. This indicates that precipitation is infiltrating from land surface and moving toward the alluvium/Dockum interface.
Mr. Rice concludes by recommending that Holtec be required to install a network of monitoring wells at the site at the alluvium/Dockum interface. This is necessary to 8
comply with the requirement of 10 C.F.R. § 51.45 for the ER to adequately and thoroughly evaluate the affected environment and the impacts of the project to that environment.
The ASLB, on remand, relied on Holtecs Work Plan, in determining that Contention 15 was inadmissible. The ASLB cited to Holtecs Answer Opposing Sierra Clubs Petition to Intervene claiming that Holtec drilled five monitoring wells. But that does not respond to Mr. Rices point that only one well was completed at the interface of the alluvium and the Dockum. In order to rebut Mr. Rices statement, the ASLB referred to language in the Work Plan that [i]f groundwater is not encountered in a boring planned for monitoring well installation, the borehole may be backfilled with cement-bentonite grout with no monitoring well installed. However, this statement does not address Mr. Rices observation about the lack of a monitoring well that would give useable information as to the depth of the groundwater. Mr. Rice explained why such a momentary observation of no water is not sufficient to determine that groundwater does not exist. It does not replace a properly sited monitoring well.
B. Contention 16 Contention 16 alleged that the ER did not adequately determine whether brine in the groundwater could contact the CIS facility and what effect the brine could have on the structures. The Holtec ER notes that two brine disposal facilities once operated in the northeast portion of the Holtec site. A water sample was collected in 2007 from one of the springs immediately south of the Holtec site. George Rice explained that the ER does not determine whether the springs/seeps that were flowing in 2007 continue to flow; whether 9
the brine is moving along parched zones in the alluvial materials or along the alluvium/Dockum interface; and whether the brine could come into contact with the storage containers.
In response, on remand, the ASLB acknowledged the presence of brine, but claimed that the brine that was encountered in the 2007 study was on the eastern side of the Holtec site and the Holtec CIS facility will be on the western side of the site. That does not mean, however, that brine cannot be in the area of the facility. Mr. Rices point is that since brine was found in the area, further investigation is warranted. The ASLBs response is essentially if you dont want to see it, dont look. It is the applicants duty to present a thorough and accurate description of the affected environment. It is not the intervenors burden to conduct its own groundwater studies somehow in the 60 days an intervenor is given to file its petition to intervene.
C. Contention 17 In Contention 17, Sierra Club alleged that the ER and SAR did not adequately discuss the presence and implications of fractured rock beneath the Holtec site. The only reference in the ER and SAR, and by the ASLB in its remand order, relating to fractured rock is the statement in the ER and SAR that the water-bearing zone in well ELEA-2 consists of either fractures or tight sandy loams. To say the least, this is much less than a determinative statement as to the existence and extent of fractured rock at the Holtec site.
No other reference appears in the ER or the SAR regarding fractured rock. George Rices declaration explains that the boring logs from the 2017 survey done for Holtec 10
describe fractures in the Chinle and Santa Rosa formations. But the ER and SAR do not discuss the nature and extent of these fractures. That is why both documents are deficient.
D. Contention 19 Contention 19 alleges that Holtec performed two sets of packer tests for hydraulic conductivity and that these tests were not conducted properly. George Rice explained that the tests performed by Holtec purportedly used the methods in the U.S. Bureau of Reclamations Field Manual, but that at least three of the methods recommended in the Field Manual were not followed. As Mr. Rice stated in his declaration:
The applicant does not appear to have cleaned the hole before conducting the packer tests. The manual states: Although cleaning the hole is frequently omitted, failing to clean the hole may result in a permeable rock appearing to be impermeable because the hole wall is sealed by cuttings or drilling fluid.
There is not description of the water used in the tests. The manual states: The quality of water used in permeability tests is important. Thepresence of only a few parts per million of turbidity or air dissolved in water can plug soil and rock voids and cause serious errors in test results. Water should be clear and silt free.
To avoid plugging the soil pores with air bubbles, use water that is a few degrees warmer than the temperature of the test section.
The test duration appears to be too short. The manual states: Tests should be run until three or more readings of water take and pressure taken at 5-minute intervals are essentially equal. However, the duration of most tests was only five minutes.
The ASLB, in its order on remand, contends that Mr. Rice was merely speculating as to whether proper procedures were used. On the contrary, however, Mr. Rice reviewed the Holtec technical report and cited to the specific pages of the report that support his concerns. At this point, Mr. Rice need not, and in fact cannot, conduct his own tests and he does not have access, absent the discovery mechanisms available after a contention is admitted, to the information the ASLB claims he must have to form an admissible 11
contention. The ASLB has placed an unjustified burden on Sierra Club at the contention stage of the proceedings.
E. Contention 30 Contention 30 was filed after the initial period to file contentions and after the ASLB record was closed. The contention was based on a report of the Nuclear Waste Technical Review Board (NWTRB) published on September 23, 2019. Contention 30 was filed on October 23, 2019. The NWTRB report identifies 18 technical issues regarding transportation of nuclear waste that are not addressed in the Holtec ER. The critical determination in the NWTRB report is that due to high burnup fuel, it will take at least until 2070 for the fuel to cool sufficiently to be safely transported if it is repackaged in smaller containers. If it is not repackaged, the fuel cannot be safely transported until 2100. These dates are beyond the licensing period.
Because of the timing of the filing of Contention 30, Sierra Club had to move to reopen the record and to meet the requirements for a late filed contention. Because of the timing of the NWTRB report, Contention 30 was filed while the original contentions were on appeal to the Commission. The Commission remanded to the ASLB the issues of reopening the record and the admissibility of the late filed contention.
10 C.F.R. § 2.326 sets forth the requirements for reopening the record: (1) A motion to reopen must be timely; (2) the motion must address a significant safety or environmental issue; and (3) the motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially. The motion must also be accompanied by an affidavit.
12
In this case, subject to the remand from the Commission, Sierra Club filed a motion to reopen the record. While the motion to reopen the record was not filed with the motion to file a late contention, the motion to reopen satisfies the remand order from the Commission. Since the motion to reopen was not filed with the motion for late filed contention, if the Commission felt that precluded reopening the record, the Commission would have said so. The Commission surely would not have required the ASLB to go through the time and effort of considering the other reopening standards. So, Sierra Club does not understand the timeliness of the motion to reopen to be an issue on remand.
Regarding the second criterion for reopening the record, transportation of nuclear waste is a significant and relevant issue regarding safety and environmental issues in the licensing of a nuclear waste storage facility. That is why 10 C.F.R. § 72.108 requires that a nuclear waste storage facility must be evaluated with respect to the potential impact on the environment and public health and safety of the transportation of the nuclear waste.
The importance of the NWTRB report is that it is the first authoritative report to conclude that the nuclear waste contemplated to be stored at the Holtec facility could not be transported in the 20-year time frame proposed by Holtec, or even within the initial 40-year licensing period. No prior report or source had established this fact.
With respect to the third criterion for reopening the record, if the NETRB report and the declaration of Robert Alvarez, submitted with Contention 30, had been available with the ASLB record was open, the contention would have been admitted for further consideration. If the waste could not be safely transported any time during the licensing period, that is certainly an issue that is within the scope of the proceeding and material to 13
the findings the NRC must make to support the action in the proceeding and would constitute and admissible contention.
The ASLB, on remand, denied the motion to reopen the record and the motion to admit a late filed contention, primarily on the basis that the information in the NWTRB report was allegedly available during the original period for filing contentions. In other words, the ASLBs position seems to be that a prospective intervenor is required to be aware of, understand and digest, and have expert support for every bit of information in the vast universe of possible sources of information. And that must all be done within 60 days. With all due respect, that is not realistic. Even if all of the information relied on in the NETRB report was available in some form prior to the report, the report was the first source to put that information together in a way that informs the issues in this case. The report was therefore new information.
F. Standard for Contention Admissibility It appears that the ASLB order on remand undertook to decide factual issues, placing the burden on Sierra Club present evidence and rebut all of Holtecs allegations.
That is not the proper standard for contention admissibility.
The NRC has made clear that the burden on a petitioner in stating its contentions is not heavy. In Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2
& 3), CLI-01-24, 54 NRC 349, the NRC described the contention admissibility standards as insist[ing] upon some reasonably specific factual and legal basis for the contention.
Id., 54 349,359. The NRC further explained in Millstone that the standards for contention admissibility were meant to prevent contentions based on little more than speculation 14
and intervenors who had negligible knowledge of nuclear power issues and, in fact, no direct case to present. Id. at 358. Rather, petitioners are required only to articulate at the outset the specific issues they wish to litigate. Id. at 359.
The NRC and the courts have also made clear that the burden of persuasion is on the licensee, not the petitioner. The petitioner only needs to com[e] forward with factual issues, not merely conclusory statements and vague allegations. Northeast Nuclear Energy Company, 53 NRC 22, 27 (2001). The NRC described the threshold burden in stating a contention as requiring a petitioner to raise any specific, germane, substantial, and material factual issues that are relevant to the request for a license . . . and that create a basis for calling on the [licensee] to satisfy the ultimate burden of proof. Id.
Courts have found, however, that this threshold burden may not be appropriate where the information was in the hands of the licensee or NRC staff and was not made available to the petitioner. See, e.g., York Comm. for a Safe Envt. v. NRC, 527 F.2d 812, 815 n. 12 (D.C. Cir. 1975)(where the information necessary to make the relevant assessment is readily accessible and comprehensible to the license applicant and the Commission staff but not to petitioners, placing the burden of going forward on petitioners appears inappropriate.). Also, in Vermont Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519, 554 (1978), the United States Supreme Court affirmed the NRC in finding that the proper standard to apply required intervenors to simply make a showing sufficient to require reasonable minds to inquire further, a burden the NRC found to be significantly less than that of making a prima facie case.
The ASLB in the Yucca Mountain case observed:
15
The Commission therefore amended its rules to require that contentions have at least some minimal factual and legal foundation in support. That is all. That is what DOE agreed at oral argument is the standard. As the Commission emphasized in Oconee, the contention requirements were never intended to be turned into a fortress to deny intervention.
U.S. Dept. of Energy (High Level Waste Repository), LBP-09-06 (May 11, 2009).
IV. CONCLUSION Sierra Club contentions 15, 16, 17, 19, and 30 were remanded by the Commission to the ASLB for further consideration. Unfortunately, the ASLB focused on rebutting the facts set forth in the contentions, rather than determining that the contentions have satisfied the standards of admissibility.
Based on the foregoing, Sierra Club requests that the Commission reverse the decision of the ASLB and admit the above contentions for an evidentiary hearing.
/s/ Wallace L. Taylor WALLACE L. TAYLOR AT0007714 Law Offices of Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com ATTORNEY FOR SIERRA CLUB 16
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION IN THE MATTER OF: )
) Docket No. 72-1051 HOLTEC INTERNATIONAL )
)
(Consolidated Interim Storage Facility ) July 13, 2020 Project) )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, copies of Sierra Clubs Brief in Support of Appeal of Atomic Safety and Licensing Board Decision Denying Admissibility Of Contentions In Licensing Proceeding were served upon the Electronic Information Exchange (the NRCs E-Filing System) in the above captioned proceeding.
/s/ Wallace L. Taylor WALLACE L. TAYLOR Law Offices of Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com 17