ML18344A682
| ML18344A682 | |
| Person / Time | |
|---|---|
| Site: | |
| Issue date: | 12/10/2018 |
| From: | Eye R Holtec, Robert V. Eye Law Office |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| ASLBP 18-958-01-ISFSI-BD01, Holtec International, RAS 54686 | |
| Download: ML18344A682 (9) | |
Text
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
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Holtec International
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Docket No. 72-1051
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(HI-STORE Consolidated Interim Storage Facility )
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REPLY OF FASKEN AND PBLRO TO HOLTECS ANSWER OPPOSING MOVANTS MOTION TO DISMISS / PETITION TO INTERVENE I.
Movants Fasken and PBLRO did not intend for its Motion to Dismiss to be analyzed under 10 C.F.R. § 2.309.
Movants did not intend for their Motion to Dismiss to be analyzed pursuant to 10 C.F.R.
§ 2.309.1 Movants intention was for the Motion to Dismiss to be presented to the Commission and analyzed under the APA and NWPA. While the Secretary has authority pursuant to 10 C.F.R. § 2.346(i) to refer requests for hearings to the Atomic Safety and Licensing Board Panel (ASLBP), it is unprecedented for the Secretary to refer a Motion to Dismiss for consideration as a petition under 10 C.F.R. § 2.309. The gravamen of Movants Motion to Dismiss is the same irrespective of whether it was brought under the APA, NWPA, or under Section 2.309. However, given the different procedural requirements, Movants Motion to Dismiss will clearly not comply with 10 C.F.R. § 2.309. Given that it is ultimately the duty of a petitioner, not the Secretary, to decide whether a contention is raised,2 Movants Motion to Dismiss should not be analyzed as a 1 Thus, Holtecs statement that Movants seek to intervene based on the Motion to Dismiss is incorrect. See Holtec Internationals Answer Opposing Fasken Land and Minerals and Permian Basin Land and Royalty Owners Motion to Dismiss / Petition to Intervene at 1 (Dec. 3, 2018)
(ML18337A443) (Holtec Response).
2 Holtec concurs that it is solely a petitioners obligation to draft its own contention. Holtec Response at 13-14, f.n. 48 (citing Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 N.R.C. 18, 22 (1998) (A contentions proponent, not the licensing board, is
2 contention pursuant to 10 C.F.R. § 2.309, but rather, as a Motion to Dismiss pursuant to the APA and NWPA.
II.
Movants Have Standing to Admit Their Dispositive Motion A.
Movants have standing under the proximity presumption pursuant to the Supplemental Declaration of Tommy E. Taylor Movants have made it clear that they do not wish to have their Motion to Dismiss analyzed pursuant to § 2.309. However, even if Movants had intended for their Motion to Dismiss to be analyzed pursuant to § 2.309, the proximity presumption for standing is met based on Mr. Taylors supplemental declaration describing his routine contact with the Fasken oil and gas properties proximate to the Holtec site.
Holtec notes that Movants have failed to meet the proximity presumption because impacts of Faskens members or employees are not supported by Mr. Taylors Declaration.
Holtec Response at 11. Holtec also notes that Movants are not entitled to a proximity presumption for merely owning land two miles from the site without any plausible explanation of potential risk. Id. While Mr. Taylors declaration may not have specifically stated his connection to leased property within two miles of the proposed Holtec facility, licensing boards have permitted the use of supplemental standing declarations that further explain in greater detail a declarants personal, present, and future activities in connection with a property to establish standing based on the proximity presumption. PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), LBP-09-18, 70 N.R.C. 285, 396 (2009).3 In addition, when the proximity presumption responsible for formulating the contention and providing the necessary information to satisfy the basis requirement for the admission of contentions)).
3 Movants cite legal support for Supplemental Declarations in more detail in their Motion for Permission to File Supplemental Standing Declaration of Tommy E. Taylor filed December 12, 2018. (Motion for Supplemental Declaration).
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3 applies, petitioners do not need to prove the traditional elements of standing nor show a causal relationship between injury and the licensing action being sought in non-reactor cases. In the Matter of Armed Forces Radiobiology Research Institute (Combalt-60 Storage Facility) 16 N.R.C. 150, 153-154 (Jul. 16, 1982).
Mr. Taylors original declaration states that Fasken owns and/or leases property directly related to oil and gas activities that is/are located approximately 2 (two) miles from the proposed Holtec CISF site. Declaration of Tommy E. Taylor at ¶ 3 (ML18257A331). Mr. Taylor did not describe his contacts with the leased property or how often he visits the property. However, Mr.
Taylors Supplemental Declaration does describe that he and other Fasken employees frequent Faskens oil and gas properties situated two miles from the proposed Holtec CISF to make routine checks on oil and gas production equipment and [to] inspect and conduct maintenance and/or repairs as needed.4 Mr. Taylor is concerned that he and other employees will be exposed to radiation given the close proximity of Faskens oil and gas properties to Holtecs proposed CISF and the necessity for Faskens employees and [Mr. Taylor] to regularly attend to such properties on a routine basis.5 Given that Mr. Taylors supplemental declaration further describes his routine contact with the Fasken oil and gas properties proximate to the Holtec site, the proximity presumption for standing has been met. Because the proximity presumption applies, Movants do not need to prove the traditional elements of standing or show a causal relationship between injury and the licensing action pursuant to § 2.309.
B.
Movants have met the standing requirements under the APA 4 Supplemental Declaration of Tommy E. Taylor at ¶ 4; found in Motion for Supplemental Declaration at 4.
5 Id. at ¶ 5.
4 The Supreme Court has stated, in order to meet the cases and controversies jurisdictional requirement of Article III of the United States Constitution, the party invoking federal jurisdiction bears the burden of establishing, at a minimum, the following elements: (1) the plaintiff must have personally suffered a concrete injury in fact to a legally protected interest, or that such an injury is imminent or certainly impending; (2) the injury must be fairly traceable to the challenged action; and (3) it must be likely, as opposed to merely speculative, that a favorable decision will redress the injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992). A plaintiff must also establish a fourth element where it challenges agency action under the Administrative Procedure Act (APA)parties seeking review under
[the APA] must establish that the injury he or she complains of falls within the zone of interest sought to be protected by the statutory provision whose violation forms the basis [of the] complaint. Lujan v. National Wildlife Federation, 497 U.S. 871, 883, 110 S.Ct. 3177, 3186 (1990). Although this zone of interests requirement will be denied if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute, Thompson v.
North American Stainless, LP, 562 U.S. 170, 178, 131 S.Ct. 863 (2011), the requirement is not meant to be especially demanding, Soler v. Scott, 942 F.2d 597, 605 (9th Cir. 1991), vacated on other grounds, 506 U.S. 969, 113 S.Ct. 454 (1992), and the interest a plaintiff seeks to vindicate need only have a plausible relationship to the policies underlying the statute. Clarke v.
Securities Indus. Assn, 479 U.S. 388, 403, 107 S.Ct. 750, 757 (1987).
Under NRC case law, a party may be presumed to have fulfilled the judicial standards for standing based on geographic proximity to a facility or a source of radiation. In the Matter of Consumers Energy Co. (Big Rock Points ISFSI), 65 N.R.C. 423, 426 (Apr. 26, 2007). In operating license or construction permit proceedings the Commission adopted a proximity
5 presumption that allows an individual or group living, having frequent contacts, or having a significant property interest within 50 miles of a nuclear power reactor to establish standing without the need to make an individualized showing of injury, causation or redressability. In the Matter of Nextera Energy Seabrook, LLC (Seabrook Station, Unit 1), 86 N.R.C. 59, 74-75 (Oct.
6, 2017). This presumption rests on the Commissions finding that persons living within the roughly 50-mile radius of the facility face a realistic threat of harm if a release from the facility of radioactive material were to occur. Id. at 75.
The NRC has held that the proximity presumption is sufficient to confer standing on an individual or group in proceedings under 10 C.F.R. Part 50 for significant license amendments as well. Florida Power and Light Co. (St. Lucie, Units 1 and 2), CLI-89-21, 30 N.R.C. 325, 329 (1989). One such example of proximity standing based on a significant licensing amendment comes from In the Matter of Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), 9 N.R.C. 54, 56 (1979). The Commission held that proximity standing was presumed given the petitioners proximity being a stones throw away from the facility in an amendment proceeding where the licensee sought permission to expand the capacity of its facilitys spent fuel pool. Id. Furthermore, the Commission stated that the Licensing Board should not consider whether the petitioners stated concerns were justified until it reached the merits of the controversy. Id.
In order to further articulate the holding in Virginia Electric, the Commission explained in a later decision that proximity was presumed in Virginia Electric not just because there was a significant amendment to an operating license expanding the capacity of a spent fuel pool, but rather, because the expansion of the capacity involved was related to the construction or operation of the reactor itself. Florida Power and Light Co. (St. Lucie Nuclear Power Plant,
6 Unites 1 and 2) 30 NRC 325, 329-30 (1989). The Commission explained that the construction and operation near the reactor itself would clearly implicate the offsite environment which would ultimately lead to the potential for offsite consequences. Id. The Commission further stated that absent situations involving such obvious potential for offsite consequences [i.e., non-reactor licensing proceedings] a petitioner must allege some specific injury in fact that will result from the action taken. Id.
However, the Commission has rejected the premise that petitioners in non-reactor proceedings cannot utilize the proximity presumption and must solely rely on the traditional elements of standing in addition to showing a causal relationship between injury and the licensing action being sought. In the Matter of Armed Forces Radiobiology Research Institute (Combalt-60 Storage Facility) 16 N.R.C. 150, 153-154 (Jul. 16, 1982). In Armed Forces, the Armed Forces Radiobiology Research Institute (AFRRI) filed with the Commission an application for renewal of its Part 30 byproduct material license. Id. at 152. The license authorized AFRRI to possess up to 320,000 curies of radioactive cobalt-60 in a water-shielded irradiation facility located on the grounds of the National Naval Medical Center in Bethesda, Maryland, primarily for use in radiobiology research. Id. The inventory of radioactive cobalt at the facility at the time was described in affidavits as being one of the largest in the United States. Id. at 154. After the NRC granted the license, petitioner CNRS, in a letter to the Secretary of the Commission, requested a hearing on the renewal of the license for the cobalt-60 facility. Id. at 152. The letter described an incident involving the storage facility in which the mechanism used to raise the cobalt-60 out of its shielding water jammed, exposing the material with its lethal gamma radiation for a period of time. Id. Furthermore, the letter stated that its members lived as close as three miles from a substantial source of radioactive material. Id.
7 Ultimately, the Commission stated that the proximity to a large source of radioactive material established the petitioners interest that was arguably within the zone of interest of the Atomic Energy Act. Id. at 154. The Commission also stated that the concept of geographic proximity is not limited [by Parts]. Id. at 153.
Here, the proposed CISF would be capable of storing large volumes of radioactive material away from nuclear reactors. Movants leased land is even closer to the proposed CISF than CNRS employees were in the Armed Forces case, supra. Just as Armed Forces held that CNRS had proximity standing due to AFRRI storing large sources of radioactive materialthe largest radioactive cobalt supplies in the United Stateshere, the proposed CISF will neighbor Movants leased land by two miles. While the material stored at the Holtec site will be different from that stored by AFRRI, the holding in Armed Forces focused on the proximity to large sources of radioactive material regardless of what the radioactive material was. Id. at 154 (emphasis added).
For standing purposes, the interest a plaintiff seeks to vindicate need only have a plausible relationship to the policies underlying the statute. Clarke, 479 U.S. 403, 107 S.Ct. 757 (1987). The Movants relationship to the policies of the NWPA is based on their proximity to the proposed CISF. Thus, the Commissions long-standing decision regarding the proximity presumption in Armed Forces governs the instant, non-reactor case. Given the decision in Armed Forces, Movants have satisfied the burden of the proximity presumption, and therefore have standing pursuant to the APA based on the proximity presumption an interest that is within the zone of interests of the Atomic Energy Act. Armed Forces, 16 N.R.C. at 154.
Accordingly, the Commission should reject Holtecs argument that Movants lack standing to advance their Motion to Dismiss.
8 III.
Arguments and Authorities Movants incorporate by reference the arguments and authorities in the Beyond Nuclear Inc. Reply to Oppositions to Hearing Request and Petition to Intervene at II. B. 1-2, pp. 11-16.
Beyond Nuclear incorporates by reference the Reply of Movants Fasken and PBLRO to Staffs Response to Motions to Dismiss filed in Docket 72-1051 on September 28, 2018.
IV.
Conclusion Movants respectfully request that their Motion to Dismiss be sustained.
Respectfully submitted,
/electronically signed by/
Robert V. Eye, KS S.C. No. 10689 Robert V. Eye Law Office, L.L.C.
4840 Bob Billings Pky., Suite 1010 Lawrence, Kansas 66049 785-234-4040 Phone 785-749-1202 Fax bob@kauffmaneye.com Attorney for Movants December 10, 2018
9 Certificate of Service Undersigned certifies that a true and correct copy of the above and foregoing was submitted to the NRCs Electronic Information System for filing and service on participants in the above-captioned dockets.
/electronically signed by/
Robert V. Eye