ML19133A087
| ML19133A087 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 05/10/2019 |
| From: | Andrew Averbach NRC/OGC |
| To: | Langer M US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 1787274, 18-1340, 72-1051-ISFSI, ASLBP 18-958-01-ISFSI-BD01, LBP-19-4 | |
| Download: ML19133A087 (25) | |
Text
USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 1 of 3 UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 May 10, 2019 Mark Langer, Clerk of Court United States Court of Appeals for the District of Columbia Circuit 333 Constitution Ave., NW Washington, DC 20001 Re: Beyond Nuclear, Inc. v. NRC, No. 18-1340
Dear Mr. Langer:
Pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure, Respondent Nuclear Regulatory Commission (NRC), on behalf of Federal Respondents, hereby informs the Court of a development before the agency related to the above-referenced matter. The development does not change the conclusion in our motion to dismiss that the pending petition in this Court should be dismissed.
On May 7, 2019, the NRCs Atomic Safety and Licensing Board (Board) issued Memorandum and Order LBP-19-04 denying admission of the contention raised by Beyond Nuclear, Inc.
(petitioner before the Court) related to the NRCs authority to issue a license to Holtec International for a spent fuel storage facility that contemplates storing spent fuel to which the Department of Energy holds title. An excerpt of the order is attached; the full version is available at https://www.nrc.gov/docs/ML1912/ML19127A026.pdf.
The Board found that Beyond Nuclear no longer identifies a genuine dispute with Holtecs license application because Holtec seeks a license that would allow it to enter into lawful customer contracts today, but also permit it to enter into additional customer contracts if and when they become lawful in the future. Order at 32, 34. Beyond Nuclear has twenty-five days to seek appeal of this decision to the Commission pursuant to 10 C.F.R. § 2.311. The Board has not yet reached a determination with respect to a parallel contention that Beyond Nuclear has raised before the agency with respect to the application of Interim Storage Partners LLC; oral argument on standing and contention admissibility in that case is scheduled to take place in July.
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 2 of 3 M. Langer As we discuss on pages 4-5 and page 8 of our motion to dismiss, this Court should dismiss Beyond Nuclears petition for review because it does not challenge a final order of the Commission, and because the issue is not yet ripe for review. The Boards decision in LBP-19-4 and the possibility of an appeal to the Commission further demonstrate that the agencys decisionmaking process was not final at the time that the petition was filed, and that the adjudication remains ongoing.
Respectfully,
/s/ Andrew P. Averbach Solicitor (Page 2 of Total)
USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 3 of 3 CERTIFICATE OF SERVICE I certify under penalty of perjury that on May 10, 2019, I served a copy of the foregoing letter on the parties to this case and filed it with the U.S. Court of Appeals for the District of Columbia Circuit by uploading it to the Courts CM/ECF system.
/s/ Andrew P. Averbach Andrew P. Averbach Solicitor U.S. Nuclear Regulatory Commission (Page 3 of Total)
USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 1 of 22 UNITED STATES OF AMERICA LBP-19-4 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Paul S. Ryerson, Chairman Nicholas G. Trikouros Dr. Gary S. Arnold In the Matter of Docket No. 72-1051-ISFSI HOLTEC INTERNATIONAL ASLBP No. 18-958-01-ISFSI-BD01 (HI-STORE Consolidated Interim Storage May 7, 2019 Facility)
MEMORANDUM AND ORDER (Ruling on Petitions for Intervention and Requests for Hearing)
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 2 of 22 TABLE OF CONTENTS I. BACKGROUND ................................................................................................................. 2 II. STANDING ANALYSIS ...................................................................................................... 8 A. Beyond Nuclear................................................................................................................ 10 B. Sierra Club ....................................................................................................................... 12 C. Joint Petitioners................................................................................................................ 13 D. Fasken ............................................................................................................................. 16 E. AFES ................................................................................................................................ 17 F. NAC .................................................................................................................................. 19 III. CONTENTION ADMISSIBILITY STANDARDS ............................................................... 21 A. Legal Standards Governing Contention Admissibility ...................................................... 21 B. Late-Filed Contentions ..................................................................................................... 23 C. NEPA Legal Standards .................................................................................................... 24 IV. CONTENTION ANALYSIS ............................................................................................... 26 A. Beyond Nuclear................................................................................................................ 26 B. Sierra Club ....................................................................................................................... 35 C. Joint Petitioners................................................................................................................ 90 D. Fasken ........................................................................................................................... 123 E. AFES .............................................................................................................................. 125 F. NAC ................................................................................................................................ 131 V. INTERESTED GOVERNMENT PETITIONERS ............................................................. 134 VI. RULING ON PETITIONS ............................................................................................... 135 VII. ORDER .......................................................................................................................... 135
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 3 of 22 UNITED STATES OF AMERICA LBP-19-4 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Paul S. Ryerson, Chairman Nicholas G. Trikouros Dr. Gary S. Arnold In the Matter of Docket No. 72-1051-ISFSI HOLTEC INTERNATIONAL ASLBP No. 18-958-01-ISFSI-BD01 (HI-STORE Consolidated Interim Storage May 7, 2019 Facility)
MEMORANDUM AND ORDER (Ruling on Petitions for Intervention and Requests for Hearing)
Before the Board are six petitions to intervene and requests for a hearing concerning a license application by Holtec International (Holtec) to construct and operate a consolidated interim storage facility for spent nuclear fuel in Lea County, New Mexico. The petitioners are:
(1) Beyond Nuclear, Inc. (Beyond Nuclear); (2) Sierra Club; (3) Dont Waste Michigan, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, and Nuclear Issues Studies Group (collectively, Joint Petitioners); (4) Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners (together, Fasken); (5) Alliance for Environmental Strategies (AFES); and (6) NAC International Inc. (NAC).
Because Holtec has revised its license application in response to petitioners initial contentions, both the Boards and the NRC Staffs views as to their admissibility have changed over time. It appears the NRC Staff now asserts that two of the six hearing requests should be granted because, in its view (1) Beyond Nuclear has demonstrated standing and its only (Page 6 of Total)
USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 4 of 22 proffered contention is admissible; and (2) Sierra Club has demonstrated standing and has proffered two admissible contentions (Sierra Club Contentions 1 and 4).1 Holtec opposes the standing of all six petitioners and asserts that none of their proffered contentions is admissible.
The Board concludes that Beyond Nuclear, Sierra Club, and Fasken have demonstrated standing. However, the Board denies Beyond Nuclears petition, because its sole contention no longer identifies a genuine dispute with Holtecs license application. Likewise, neither Sierra Club nor Fasken has proffered an admissible contention and their petitions are therefore denied.
Although the Board does not rule on its standing, AFES has not proffered an admissible contention and its petition is denied for that reason. Joint Petitioners and NAC have neither demonstrated standing nor proffered an admissible contention. Because no petitioner has both demonstrated standing and proffered an admissible contention, this proceeding is terminated.
I. BACKGROUND The nations growing inventory of spent nuclear fuel from commercial nuclear power reactors is generally stored at the reactor sites where it was generated, initially immersed in pools of water and then, after a suitable delay, encased in protective dry-cask storage systems.2 What to do with the spent fuel has vexed scientists, Congress, and regulatory agencies for the 1 See NRC Staffs Consolidated Response to Petitions to Intervene and Requests for Hearing Filed by [AFES], [Beyond Nuclear], [Joint Petitioners], [NAC], and The Sierra Club (Oct. 9, 2018) at 65-67, 72-74 [hereinafter NRC Staff Consol. Answer]; NRC Staff Answer to Motions to Amend Contentions Regarding Federal Ownership of Spent Fuel (Feb. 19, 2019) [hereinafter NRC Staff Answer to Beyond Nuclear and Fasken Motion]. But see Tr. at 331-35 (NRC Staff stating at oral argument that issues identified in Beyond Nuclears contention and in Sierra Club Contention 1 appeared to have been cured for the present time). Initially, the Staff also deemed Sierra Club Contention 8 to be admissible (NRC Staff Consol. Answer at 79), but announced at oral argument that it no longer was taking a position on the admissibility of that contention. Tr. at 261.
2 U.S. Govt Accountability Off., GAO-17-340, Commercial Nuclear Waste: Resuming Licensing of the Yucca Mountain Repository Would Require Rebuilding Capacity at DOE and NRC, Among Other Key Steps at 1 (2017).
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 5 of 22 last half-century.3 After rejecting early disposal proposals that ranged from burying nuclear waste in polar ice caps to rocketing it to the sun, a consensus appeared to settle on deep geologic burial in a permanent repository.4 Congress passed the Nuclear Waste Policy Act of 1982 (NWPA),5 which ultimately led the U.S. Department of Energy (DOE) to submit an application to the NRC for authorization to construct a geologic repository at Yucca Mountain, Nevada.6 However, shortly after DOEs application was submitted in June 2008, Congress stopped funding the Yucca Mountain project, and a pending adjudication before an NRC licensing board was suspended in September 2011.7 To date, more than seven years later, Congress has provided no new funding for a permanent nuclear waste repository at Yucca Mountain.
The Holtec proposal before the Board is not for another permanent repository, but for what is acknowledged by its very name to be a temporary solution: a consolidated interim storage facility (CISF). While a license to construct and operate Yucca Mountain would have required DOE to demonstrate a reasonable expectation that it would meet specified performance standards throughout the period of geologic stability, defined to end 1 million years after disposal,8 the licensing requirements for an interim storage facility under 10 C.F.R. Part 72 apply to renewable terms of no more than 40 years from the date of issuance.9 3 NEI v. EPA, 373 F.3d 1251, 1257 (D.C. Cir. 2004).
4 Id.
5 Nuclear Waste Policy Act of 1982, 42 U.S.C. § 10101 (1983) [hereinafter NWPA].
6 See Letter from Edward F. Sproat III, Director, DOE Office of Civilian Radioactive Waste Management, to Michael F. Weber, Director, NRC Office of Nuclear Material Safety and Safeguards (NMSS) (June 3, 2008) (ADAMS Accession No. ML081560407).
7 U.S. Dept of Energy (High-Level Waste Repository), LBP-11-24, 74 NRC 368 (2011).
8 10 C.F.R. § 63.302.
9 Id. § 72.42(a).
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 6 of 22 On March 30, 2017, Holtec submitted an application to the NRC to construct and operate a CISF.10 Holtec intends to construct and operate the first phase of its CISF on approximately 1,000 acres of land in Lea County, New Mexico.11 Holtec seeks to store 8,680 metric tons of uranium (MTUs) in two different models of Holtec canisters, up to 500 canisters in total, for a license period of 40 years.12 On March 19, 2018, the NRC accepted and docketed Holtecs application.13 If its initial license is granted, Holtec plans 19 subsequent expansion phases to be completed over the course of 20 years, with each phase necessitating a license amendment request.14 Holtecs Environmental and Safety Analysis Reports demonstrate marked differences between its proposed facility and a permanent waste repository, such as Yucca Mountain.
Holtecs project is substantially less ambitious. For example, Yucca Mountain was to be constructed to comply with performance standards for one million years, but Holtecs Environmental Report anticipates storage at its proposed facility for 120 years (40 years for initial licensing, plus 80 years of potential extensions), and acknowledges that this 120 year period could be reduced if a permanent geologic repository were finally licensed and began operating.15 While Yucca Mountain was statutorily authorized to store 70,000 metric tons of 10 See Letter from Kimberly Manzione, Holtec Licensing Manager, to Michael Layton, Director, NRC Division of Spent Fuel Management, NMSS (Mar. 30, 2017) (ADAMS Accession No. ML17115A418).
11 [Holtec] HI-STORE [CISF] Environmental Report, at 14 (Rev. 5, Mar. 2019) [hereinafter ER].
The petitioners originally-filed contentions in this proceeding are based on the earlier version of Holtecs Environmental Report. See [Holtec] HI-STORE [CISF] Environmental Report (Rev. 1, Dec. 2017).
12 See ER at 14.
13 See Holtec Internationals HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 12,034 (Mar. 19, 2018).
14 ER at 14.
15 Id.
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 7 of 22 high level radioactive waste,16 Holtecs initial license application requests permission to store up to 8,680 MTUs.17 While the Yucca Mountain repository would be constructed at least 700 feet below the surface,18 Holtecs license application contemplates a maximum excavation depth of 25 feet.19 And all parts of the Holtec storage systemboth for transportation and storage would use canisters and casks that have been separately approved by the NRC, and hence are not part of Holtecs license application for the Lea County storage facility.20 On July 16, 2018, the NRC published notice in the Federal Register of an opportunity to request a hearing and petition to intervene by September 14, 2018.21 On September 12, 2018, AFES filed its petition to intervene and request for a hearing.22 On September 14, 2018, NAC, 16 42 U.S.C. § 10134(d).
17 ER at 14. Holtecs Environmental Report, however, analyzes the potential full 20-phase capacity of up to 100,000 MTUs.
18 U.S. DOE, Office of Civilian Radioactive Waste Management, 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 at S-7 (June 2008).
19 [Holtec] HI-STORE [CISF] Safety Analysis Report at 30 (rev. 0F Jan. 2019) [hereinafter SAR].
The petitioners originally-filed contentions in this proceeding are based on the earlier version of Holtecs SAR. See [Holtec] HI-STORE [CISF] Safety Analysis Report (rev. 0A Oct. 2017).
20 See 10 C.F.R. § 72.214 (Certificate Number 1040). Holtecs license application proposes the exclusive use of the HI-STORM UMAX canister storage system.
21 Holtec Internationals HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919, 32,919 (July 16, 2018) [hereinafter Notice of Opportunity to Request a Hearing].
22 [AFES] Petition to Intervene and Request for Hearing (Sept. 12, 2018) at 1 [hereinafter AFES Pet.].
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 8 of 22 Joint Petitioners, Beyond Nuclear, and Sierra Club timely filed their petitions.23 The NRC also received five petitions from local governmental bodies to participate in the proceeding.24 On September 14, 2018, the Commission received motions to dismiss the proceeding from Beyond Nuclear and Fasken.25 On September 24, 2018, Holtec and the NRC Staff filed answers opposing both motions to dismiss.26 Beyond Nuclear and Fasken filed replies.27 Although the Secretary of the Commission denied both motions on procedural grounds,28 it 23 Petition to Intervene and Request for Hearing of NAC International, Inc. (Sept. 14, 2018)
[hereinafter NAC Pet.]; [Joint Petitioners] Petition to Intervene and Request for an Adjudicatory Hearing (Sept. 14, 2018) [hereinafter Joint Petrs Pet.]; Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Sept. 14, 2018) [hereinafter Beyond Nuclear Pet.]; Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Sept. 14, 2018) [hereinafter Sierra Club Pet.].
24 Petition by Eddy-Lea Energy Alliance to Participate as an Interested Local Governmental Body (Sept. 4, 2018) [hereinafter ELEA Pet.]; Corrected Petition by the Board of Commissioners for Lea County, New Mexico to Participate as an Interested Local Governmental Body (Sept. 12, 2018) [hereinafter Lea Cty. Pet.]; Petition by the City of Carlsbad, New Mexico to Participate as an Interested Local Governmental Body (Sept. 12, 2018) [hereinafter Carlsbad Pet.]; Petition by the City of Hobbs to Participate as an Interested Local Governmental Body (Sept. 13, 2018)[hereinafter Hobbs Pet.]; Petition by Eddy County to Participate as an Interested Local Governmental Body (Sept. 13, 2018)[hereinafter Eddy Cty. Pet.].
25 Beyond Nuclear, Inc.s Motion to Dismiss Licensing Proceedings for Hi-Store [CISF] and WCS [CISF] for Violation of the [NWPA] (Sept. 14, 2018) [hereinafter Beyond Nuclear Motion to Dismiss]; Motion of [Fasken] to Dismiss Licensing Proceedings for Hi-Store [CISF] and WCS
[CISF] (Sept. 14, 2018) [hereinafter Fasken Motion to Dismiss].
26 [Holtecs] Answer Opposing Beyond Nuclear Motion to Dismiss Licensing Proceeding for HI-STORE [CISF] (Sept. 24, 2018) [hereinafter Holtec Answer to Beyond Nuclear Motion to Dismiss]; [Holtecs] Answer Opposing [Fasken] Motion to Dismiss Licensing Proceeding for HI-STORE [CISF] (Sept. 24, 2018) [hereinafter Holtec Answer to Fasken Motion to Dismiss]; NRC Staffs Response to Motions to Dismiss Licensing Proceedings (Sept. 24, 2018) [hereinafter NRC Staff Response to Motions to Dismiss].
27 Beyond Nuclears Reply to [Holtec], and NRC Staff Responses to Beyond Nuclears Motion to Dismiss (Sept. 28, 2018) [hereinafter Beyond Nuclear Reply on Motion to Dismiss]; Reply of Movants Fasken and PBLRO to Staffs Response to Motions to Dismiss (Sept. 28, 2018)
[hereinafter Fasken Reply to NRC Staff on Motion to Dismiss]; Reply of [Fasken] to [Holtecs]
Response to Motion to Dismiss (Sept. 28, 2018) [hereinafter Fasken Reply to Holtec on Motion to Dismiss].
28 Order of the Secretary, [Holtec] (HI-STORE [CISF]) [and] Interim Storage Partners LLC (WCS
[CISF]) Docket Nos. 72-1051 & 72-1050 (Oct. 29, 2018) (unpublished) [hereinafter Order Denying Motions to Dismiss].
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 9 of 22 observed that Beyond Nuclears concurrently-filed petition incorporated arguments by reference contained in its motion to dismiss.29 The Secretary, therefore, referred both Beyond Nuclears and Faskens motions to the Board to be considered under 10 C.F.R. § 2.309.30 On October 9, 2018, Holtec31 and the NRC Staff32 filed answers to the petitions. Holtec opposed the standing of all petitioners and the admission of all contentions. The NRC Staff supported the standing of two petitioners (Beyond Nuclear and Sierra Club) and the admissibility of four of their contentions (Beyond Nuclears sole contention and Sierra Club Contentions 1, 4, and 8).33 On October 16, 2018, petitioners AFES, Beyond Nuclear, Joint Petitioners, NAC, and Sierra Club filed replies.34 On December 3, 2018, Holtec and the NRC 29 Id. at 2.
30 Id. at 2-3. On December 27, 2018, Beyond Nuclear petitioned the United States Court of Appeals for the District of Columbia Circuit to review the Secretarys Order, which denied Beyond Nuclears Motion to Dismiss and referred it as a petition to this Board. That appeal remains pending, although Beyond Nuclear has requested it be held in abeyance pending the outcome of this proceeding. See Notice of Beyond Nuclears Petition for Review of NRC Order in D.C. Circuit U.S. Court of Appeals, Docket Nos. 72-1050/1051 (Jan. 16, 2019).
31 [Holtecs] Answer Opposing [AFES] Petition to Intervene and Request for Adjudicatory Hearing on [Holtecs] HI-STORE [CISF] Application (Oct. 9, 2018) [hereinafter Holtec Answer to AFES]; [Holtecs] Answer Opposing Beyond Nuclears Hearing Request and Petition to Intervene on [Holtecs] HI-STORE [CISF] Application (Oct. 9, 2018) [hereinafter Holtec Answer to Beyond Nuclear]; [Holtecs] Answer Opposing [NACs] Petition to Intervene and Request for Hearing on [Holtecs] HI-STORE [CISF] Application (Oct. 9, 2018) [hereinafter Holtec Answer to NAC]; [Holtecs] Answer Opposing Sierra Clubs Petition to Intervene and Request for Adjudicatory Hearing on [Holtecs] HI-STORE [CISF] Application (Oct. 9, 2018) [hereinafter Holtec Answer to Sierra Club]; [Holtecs] Answer Opposing [Joint Petitioners] Petition to Intervene and Request for an Adjudicatory Hearing on [Holtecs] HI-STORE [CISF] Application (Oct. 9, 2018) [hereinafter Holtec Answer to Joint Petrs].
32 NRC Staff Consol. Answer.
33 The NRC Staff also did not oppose the admissibility of NAC Contention 3, but deemed it to be moot inasmuch as the Staff opposed NACs standing.
34 Consolidated Response by Petitioner [AFES] to Answers by [Holtec] and NRC Staff (Oct. 16, 2018) [hereinafter AFES Reply]; Beyond Nuclears Reply to Oppositions to Hearing Request and Petition to Intervene (Oct. 16, 2018) [hereinafter Beyond Nuclear Reply]; Combined Reply of [Joint Petitioners] to Holtec and NRC Answers (Oct. 16, 2018) [hereinafter Joint Petrs Reply];
Reply in Support of Petition to Intervene and Request for Hearing of [NAC] (Oct. 16, 2018)
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 10 of 22 Staff filed supplemental responses opposing consideration of Faskens motion to dismiss as a petition.35 Fasken filed a reply on December 10, 2018.36 The Board heard oral argument on January 23 and 24, 2019 in Albuquerque, New Mexico. Numerous motions proffering new and amended contentions that were filed after oral argument are addressed infra.
II. STANDING ANALYSIS In a licensing proceeding such as this, the NRC must grant a hearing upon the request of any person whose interest may be affected by the proceeding.37 However, to determine whether a petitioner has a sufficient interest, the Commission applies contemporaneous judicial concepts of standing.38 Although the Commission instructs us to construe the petition in favor of the petitioner when we determine standing,39 it is nonetheless each petitioners burden to demonstrate that standing requirements are met.40 As relevant here, a petitioner may satisfy this burden in one of three ways.
[hereinafter NAC Reply]; Sierra Clubs Reply to Answers Filed by [Holtec] and NRC Staff (Oct.
16, 2018) [hereinafter Sierra Club Reply].
35 [Holtecs] Answer Opposing [Faskens] Motion / Petition to Intervene on [Holtecs] HI-STORE
[CISF] Application (Dec. 3, 2018) [hereinafter Holtec Supplemental Answer to Fasken Motion to Dismiss]; NRC Staffs Supplemental Response to Motion to Dismiss by [Fasken] (Dec. 3, 2018)
[hereinafter NRC Staff Supplemental Answer to Fasken Motion to Dismiss].
36 Reply of [Fasken] to Holtecs Answer Opposing Movants Motion to Dismiss/Petition to Intervene (Dec. 10, 2018) [hereinafter Fasken Reply to Holtec]; Reply of [Fasken] to NRC Staffs Supplemental Response and Opposition to Motion to Dismiss (Dec. 10, 2018) [hereinafter Fasken Reply to NRC Staff].
37 42 U.S.C. § 2239(a)(1)(A).
38 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-15-25, 82 NRC 389, 394 (2015).
39 Id.
40 See Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-00-05, 51 NRC 90, 98 (2000). 10 C.F.R. § 2.309(d) specifies information that a petitioner should include in its petition to establish standing, but does not set the standard the Board must apply when deciding whether that information is sufficient.
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 11 of 22 IV. CONTENTION ANALYSIS A. Beyond Nuclear Understanding Beyond Nuclears sole contention (as well as some of the contentions proffered by other petitioners135) requires further explanation of the statutory scheme that was established by the NWPA. As discussed supra, Congress contemplated that DOE would build a national nuclear waste repository, but that the nuclear power companies would help pay for it.
Under section 302 of the NWPA, power reactor licensees were required to pay into a Nuclear Waste Fund for construction of the repository.136 In exchange, section 302(a)(5)(B) committed DOE to begin disposing of the nuclear power plants spent fuel no later than January 31, 1998.
When a permanent repository failed to materialize, the power plant licensees sued and began to recover from the federal government substantial damages to cover the cost of continuing to store spent fuel at their reactor sites.137 Contract damage lawsuits under the NWPA are now commonplace, and the federal government pays out damages to power reactor licensees on a regular basis.138 Thus, both DOE and the nuclear power plant owners potentially have an interest in contracting to use Holtecs proposed interim storage facility. DOE might want to take responsibility for the nuclear plants spent fuel, pay Holtec to store it, and stop paying out damages. The nuclear plant owners, on the other hand, might be willing to apply their ongoing damage payments toward paying Holtec to store their spent fuel, so that it would be off their sites and no longer their responsibility to keep secure. Because the NWPA was drafted on the 135 See, e.g., Sierra Club Contention 1 and Joint Petitioners Contention 2, discussed infra.
136 42 U.S.C. § 10222.
137 See, e.g., Natl Assn of Regulatory Util. Commrs v. U.S. Dept of Energy, 736 F.3d 517, 520 (D.C. Cir. 2013); Me. Yankee Atomic Power Co. v. United States, 225 F.3d 1336, 1341-42 (Fed. Cir. 2000); Ind. Mich. Power Co. v. U.S. Dept of Energy, 88 F.3d 1272, 1276-77 (D.C.
Cir. 1996).
138 See, e.g., Natl Assn of Regulatory Util. Commrs, 736 F.3d at 520.
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 12 of 22 assumption that DOE would not accept title to spent nuclear fuel until a permanent repository becomes operational, however, it appears (as discussed infra) that in general only the second possibility would be consistent with the terms of the statute.
Beyond Nuclears contention, as originally proffered in its hearing petition, therefore stated:
The NRC must dismiss Holtecs license application and terminate this proceeding because the application violates the NWPA. The proceeding must be dismissed because the central premise of Holtecs applicationthat the U.S. Department of Energy (DOE) will be responsible for the spent fuel that is transported to and stored at the proposed interim facilitiesviolates the NWPA. Under the NWPA, the DOE is precluded from taking title to spent fuel unless and until a permanent repository has opened. 42 U.S.C. §§ 10222(a)(5)(A), 10143.139 In other words, initially Beyond Nuclear assumed that the central premise of Holtecs application was that Holtec would contract with DOE to store nuclear power companies spent fuel. This would be unlawful under the NWPA, Beyond Nuclear contended.
After Holtec conceded that (with limited exceptions) such contracts would indeed be unlawful at the present time,140 Beyond Nuclear moved to amend its contention to add the following statement:
Language in Rev. 3 of Holtecs Environmental Report, which presents federal ownership as a possible alternative to private ownership of spent fuel, does not render the application lawful. As long as the federal government is listed as a potential owner of the spent fuel, the application violates the NWPA.141 As discussed infra, the Board grants Beyond Nuclears motion to amend its contention, in order to allege that even presenting federal ownership as a possible alternative to private ownership of spent fuel violates the NWPA.
139 Beyond Nuclear Pet. at 10.
140 Tr. at 250-52.
141 Motion by Petitioners Beyond Nuclear and Fasken to Amend Their Contentions Regarding Federal Ownership of Spent Fuel to Address [Holtecs] Revised License Application (Feb. 6, 2019) at 8 [hereinafter Beyond Nuclear and Fasken Motion to Amend].
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 13 of 22 As events have unfolded, therefore, Beyond Nuclears contention now raises this fundamental question: May the NRC license Holtecs storage facility to enter into lawful contracts with potential customers, including those that may later become lawful? Or, if Congress were to expand the category of lawful contracts (specifically, to include most contracts with DOE), would it be necessary (as Beyond Nuclear claims) for Holtec to re-submit its license application and for the NRC to re-notice a new opportunity for a hearing?142 We conclude that, to implement the will of Congress in such circumstances, the NRC need not require Holtec to begin the licensing process all over again.
As explained supra, initially Beyond Nuclear filed with the Commission a motion to dismiss the Holtec licensing proceeding as violating the NWPA.143 At the same time, out of an abundance of caution, Beyond Nuclear also filed essentially the same claim in the form of a hearing request and contention.144 The Secretary of the Commission denied Beyond Nuclears motion to dismiss on procedural grounds, without prejudice to its underlying arguments, and directed that the matter should proceed before a licensing board on the basis of Beyond Nuclears hearing petition.145 In support of its contention, Beyond Nuclear incorporated by reference portions of its motion to dismiss.146 Beyond Nuclear identified language in Holtecs Environmental Report that said Holtec would enter into a contract with DOE by which DOE will take title to spent fuel and be responsible for transporting it to the site.147 It also identified language in Holtecs Safety 142 See id. at 11 n.5.
143 Beyond Nuclear Motion to Dismiss at 1.
144 Beyond Nuclear Pet.
145 Order Denying Motions to Dismiss at 2.
146 Beyond Nuclear Pet. at 10.
147 Beyond Nuclear Motion to Dismiss at 16 (citing ER, rev. 0 at 1-1, 3-104).
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 14 of 22 Analysis Report that said Holtec might either contract with DOE or with nuclear plant owners themselves, leading to an inconsistency in the application documents.148 Beyond Nuclear contended that the first scenario (that is, Holtecs contracting with DOE) would be unlawful under the NWPA. As Beyond Nuclear pointed out, the NWPA provides that until a permanent waste repository (such as Yucca Mountain) opens, the generators and owners of high-level radioactive waste and spent nuclear fuel have the primary responsibility to provide for, and the responsibility to pay the costs of, the interim storage of such waste and spent fuel.149 For this reason, Beyond Nuclear argued, the NWPA states that DOE will take title to spent fuel only following commencement of operation of a repository.150 It is undisputed that no such repository has been licensed or constructed, much less become operational.
The NRC Staff agreed that Beyond Nuclears contention should be admitted to the extent it challenged the inconsistency between Holtecs Environmental Report and its Safety Analysis Report.151 The Staff, however, deemed it premature to take a position on how the applicant will address the inconsistency.152 Holtec, for its part, contended that the inconsistencies were a mistake, that its actual intent is to contract either with DOE or with nuclear plant owners, and that the inconsistencies were in the process of being revised to eliminate any confusion.153 Holtec also suggested it worth noting that Petitioners claims of current NWPA restrictions may well be superseded by 148 Id. at 16 n.4 (emphasis added).
149 42 U.S.C. § 10131.
150 Id. § 10222(a)(5)(A). See also id. § 10143 (Delivery, and acceptance by the Secretary [of Energy], of any high-level radioactive waste or spent nuclear fuel for a repository . . . shall constitute a transfer to the Secretary of title to such waste or spent fuel.) (emphasis added).
151 NRC Staff Consol. Answer at 66.
152 Id. at 66 n.296.
153 Holtec Answer to Beyond Nuclear at 20.
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 15 of 22 Congress.154 But Holtec did not initially concede in its response that contracting for DOE to take title to nuclear power companies spent fuel would necessarily be unlawful under the NWPA as currently in effect.
The Board, therefore, was inclined to agree with the NRC Staff that Beyond Nuclears contention was admissible, but to admit it as a legal issue contention for a broader purpose:
that is, to determine whether or not Holtec could lawfully contract directly with DOE to take title to power companies spent nuclear fuel. At the very least, the Board tentatively concluded, Beyond Nuclear had set forth a plausible case that Holtec could not lawfully elect this option, consistent with the NWPA.155 At oral argument, however, Holtecs counsel conceded that, with very limited exceptions, it would violate the NWPA as currently in effect for DOE to take title to nuclear plant owners spent fuel. He stated:
I will agree with you that, on their current legislation, DOE cannot take title to spent nuclear fuel from commercial nuclear power plants, under the current statement of facts, but that could change, depending on what Congress does.156 Holtecs counsel committed, however, that Holtec has no intention of contracting with DOE to accept most nuclear power plants spent fuel unless and until Congress amends the NWPA to make that lawful.157 Meanwhile, Holtec represented, it has every intention of 154 Id. at 21 (citing proposed but unenacted amendments to the NWPA).
155 A contention may state an issue of law or fact. 10 U.S.C. § 2.309(f)(1)(i). As should be obvious, a legal issue contention need not necessarily address every requirement of section 2.309(f)(1), such as the requirement to provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue. Id. § 2.309(f)(1)(v). See U.S. Dept of Energy (High-Level Waste Repository), CLI-09-14, 69 NRC 580, 588-91 (2009) (We agree, for example, with the Boards view in this proceeding that requiring a petitioner to allege facts under section 2.309(f)(1)(v) or to provide an affidavit that sets out the factual and/or technical bases under section 51.109(a)(2) in support of a legal contentionas opposed to a factual contentionis not necessary.).
156 Tr. at 250. See also Tr. at 251-52.
157 Tr. at 248.
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 16 of 22 proceeding with the project on the assumption it will contract directly with the nuclear plant owners themselves.158 Finally, Holtec has, in fact, revised its Environmental Report to say that the proposed facilitys customers could be either DOE or the nuclear power plant owners.159 In the aftermath of these developments, Beyond Nuclear moved to amend its contention to add the statement set forth above. In essence, Beyond Nuclear now claims that reference to the mere possibility of contracting directly with DOE must be expunged from Holtecs applicationregardless of Holtecs intentions and regardless of whether Congress might amend the NWPA.
Because Beyond Nuclear seeks to amend its contention after the deadline for filing petitions, we must first consider whether its motion to file the contention satisfies the three-prong test in 10 C.F.R. § 2.309(c)(1)(i)-(iii). Although Holtec argues to the contrary,160 we conclude that it does. Holtecs revised Environmental Report (Rev. 3) was not available until January 17, 2019. Its revised Environmental Report is materially different from Holtecs original license application because it replaces unequivocal language regarding DOE ownership of spent fuel with language stating that either DOE or private entities will own the spent fuel.
Beyond Nuclears motion to amend was timely filed less than three weeks after the availability of Holtecs revised Reportwell within the 30 days in which licensing boards have generally allowed petitioners to respond to new information.161 We therefore grant Beyond Nuclears motion to amend.
158 Id.
159 See ER at 3-117.
160 Holtec Opposition to Beyond Nuclear and Fasken Motion to Amend Their Contentions Regarding Federal Ownership of Spent Fuel to Address [Holtecs] Revised License Application (Feb. 19, 2019) at 2-6 [hereinafter Holtec Opposition to Beyond Nuclear and Fasken Motion].
The NRC Staff response addresses the admissibility of the amended contention without considering its timeliness. See NRC Staff Answer to Beyond Nuclear and Fasken Motion.
161 See Shaw AREVA MOX Servs., LBP-08-11, 67 NRC at 493.
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 17 of 22 Turning to the amended contention itself, however, we conclude that Beyond Nuclear no longer identifies a genuine dispute with Holtecs license application. The inconsistency between Holtecs Environmental Report and its Safety Analysis Report has been fixed: Holtecs application now consistently says that its customers will be either DOE or the nuclear power plant owners. As Holtecs proposed License Condition 17 states, it will undertake construction only after it has established a definitive agreement with the prospective user/payer for storing the used fuel (USDOE and/or a nuclear plant owner).162 At the same time, Beyond Nuclear, Holtec, and this Board all agree that, with limited exceptions, DOE may not lawfully take title to spent nuclear waste under the NWPA as currently in effect.163 Beyond Nuclear claims that the mere mention of DOE renders Holtecs license application unlawful. But that is not so. First, DOE does, in fact, already hold title to a relatively small amount of spent nuclear fuel from commercial reactors that could lawfully be stored at Holtecs facility in the future without violating the NWPA.164 Second, the Board assumes Holtec will honor its commitment not to contract unlawfully with DOE to store any other spent nuclear fuel (that is, the vast majority of spent fuel from commercial reactors, which is currently owned 162 Holtec Proposed License at 2.
163 Although Beyond Nuclear, Holtec, and the Board are all in agreement, the NRC Staff has not taken a position, despite having multiple opportunities to do so. See NRC Staff Answer to Beyond Nuclear and Fasken Motion. Accordingly, the Staff would find Beyond Nuclears amended contention admissible specifically as a challenge to whether the application may propose a license condition that includes the potential for DOE ownership of spent fuel to be stored at the Holtec facility. Id. at 2. The Staff cautions, however, that in agreeing that the contention is admissible in part, the Staff takes no position on the underlying merits of the contention. Id. As best we can tell, the Staff would prefer the Board address the issue as a legal issue contention, precipitating yet another round of briefing and perhaps another oral argument. After thus far receiving well over a thousand pages of briefs and conducting two days of oral argument, the Board is prepared to address this legal issue in the context of deciding contention admissibility.
164 Tr. at 237, 249-50.
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USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 18 of 22 by the nuclear power companies). Likewise, we assume DOE would not be complicit in any such unlawful contracts.
Holtec represents that it is committed to going forward with the project by contracting directly with nuclear plant owners that currently hold title to their spent fuel.165 Whether Holtec will find that alternative commercially viable is not an issue before the Board, because the business decision of whether to use a license has no bearing on a licensees ability to safely conduct the activities the license authorizes. As the Commission instructs us, the NRC is not in the business of regulating the market strategies of licensees or determining whether market strategies warrant commencing operations.166 Holtec readily acknowledges that it hopes Congress will change the law and allow it in most instances to contract directly with DOE to store spent nuclear fuel.167 Meanwhile, we assume that Holtechaving acknowledged on the record that (with limited exceptions) it would be unlawful to contract with DOE under the NWPA as currently in effectwill not try to do just that. Nor may we assume that DOE would be complicit in a violation of the NWPA.168 On the contrary, DOE has also taken the position publicly that it may not take title to most private plant companies spent nuclear fuel without violating the NWPA as currently in effect.169 165 Tr. at 248.
166 La. Energy Servs. (Natl Enrichment Facility), CLI-05-28, 62 NRC 721, 726 (2005) (quoting Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, N.M. 87174), CLI-01-4, 53 NRC 31, 48-49 (2001)).
167 Tr. at 248, 250.
168 A presumption of regularity applies to federal agencies, which should be assumed to act properly in the absence of evidence to the contrary. See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996); United States v. Chem. Found, Inc., 272 U.S. 1, 14-15 (1926).
169 See, e.g., Final Interpretation of Nuclear Waste Acceptance Issues, 60 Fed. Reg. 21,793, 21,793-94, 21,797 (1995); N. States Power Co. v. U.S. Dept of Energy, 128 F.3d 754, 756 (D.C. Cir. 1997) (The Department also took the position that it lacks statutory authority under the Act to provide interim storage.) (quoting 60 Fed. Reg. at 21,794); Ind. Mich. Power Co. v.
U.S. Dept of Energy, 88 F.3d 1272, 1274 (D.C. Cir. 1996) (The [DOE] also determined that it (Page 21 of Total)
USCA Case #18-1340 Document #1787274 Filed: 05/10/2019 Page 19 of 22 Neither the facts nor the law, therefore, remain in dispute. Holtec seeks a license that would allow it to enter into lawful customer contracts today, but also permit it to enter into additional customer contracts if and when they become lawful in the future. If Congress decides to amend the NWPA to allow DOE to take title to spent nuclear fuel before a national nuclear waste repository becomes operational, the only difference would be that DOE could then lawfully contract with Holtec to store the same spent fuel that presently belongs to the nuclear power plant owners. The NRC Staff assures us that it is reviewing Holtecs application in light of both possibilities: [T]he Staff bases its safety and environmental reviews on the application as presented, which seeks a license on the basis that either DOE or private entities may hold title to the waste.170 We see no discernable purpose that would be served, in such circumstances, by requiring Holtec to file a new or amended license application for its storage facility or by the NRC entertaining a fresh opportunity to request a hearing. Beyond Nuclear correctly points out that the Administrative Procedure Act (APA) requires federal agencies to follow the law,171 but we do not interpret either the APA or NWPA to require the NRC to perform a useless act.
Beyond Nuclears contention, as amended, is not admitted.172 had no authority under the NWPA to provide interim storage in the absence of a facility that has been authorized, constructed and licensed in accordance with the NWPA.).
170 NRC Staffs Consolidated Response to [Joint Petitioners] and Sierra Clubs Motions to File New Contentions (Feb. 19, 2019) at 9 [hereinafter NRC Staff Response to Joint Petrs and Sierra Club Motions].
171 Beyond Nuclear Motion to Dismiss at 12.
172 Although Fasken purports to join in Beyond Nuclears motion to amend, it may not properly do so. As explained infra, Fasken did not initially submit an admissible contention of its own, and its hearing request must therefore be denied. In any event, the procedural point is moot, because the Board rules that Beyond Nuclears contention, as amended, is not admissible.
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NRC Staff stated that it does not object to the participation of any of these governmental bodies
. . . if a hearing is granted.691 Neither Holtec nor any other petitioner has raised an objection.
Pursuant to 10 C.F.R. § 2.315(c), a local governmental body that is not admitted as a party under section 2.309 shall, upon request, be permitted a reasonable opportunity to participate in a hearing as an interested non-party. Section 2.315(c) does not require a demonstration of standing, but does require identification of those contentions on which the non-party intends to participate.692 As the Board denies all the petitioners requests for a hearing, the motions of the City of Carlsbad, New Mexico; Eddy-Lea Energy Alliance; Lea County, New Mexico; City of Hobbs, New Mexico; and Eddy County, New Mexico are accordingly denied as moot.
VI. RULING ON PETITIONS Although Beyond Nuclear, Sierra Club, and Fasken have demonstrated standing in accordance with 10 C.F.R. § 2.309(d), no petitioner has proffered an admissible contention meeting the requirements of 10 C.F.R. § 2.309(f)(1). Therefore, in accordance with 10 C.F.R. § 2.309(a), the Board denies the requests for hearing and petitions for leave to intervene submitted by Beyond Nuclear, Sierra Club, Joint Petitioners, Fasken, AFES, and NAC.
VII. ORDER For the foregoing reasons:
A. Beyond Nuclears petition is denied. Beyond Nuclears contention is not admitted.
B. Sierra Clubs petition is denied. Sierra Clubs contentions are not admitted.
C. Joint Petitioners petition is denied. Joint Petitioners contentions are not admitted.
D. Faskens petition is denied. Faskens contention is not admitted.
E. AFESs petition is denied. AFESs contentions are not admitted.
691 NRC Staff Consol. Answer at 3-4, n.11.
692 10 C.F.R. § 2.315(c).
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F. NACs petition is denied. NACs contentions are not admitted.
G. The petitions of City of Carlsbad, Eddy-Lea Energy Alliance, Lea County, City of Hobbs, and Eddy County to participate as local interested government bodies are denied as moot.
H. Holtecs October 26, 2018 motion to strike is denied as moot.693 I. Holtecs November 8, 2018 Motion for Leave to Reply to Alliance Response is denied as moot.694 J. Faskens December 10, 2018 motion to file a supplemental declaration is granted.695 K. Joint Petitioners and Sierra Clubs January 11, 2019 motions to adopt each others contentions are denied as moot.696 L. Sierra Clubs and Joint Petitioners joint motion for a subpart G hearing is denied as moot.697 M. Sierra Clubs January 17, 2019 motion to late-file new Contention 26 is granted.698 N. Joint Petitioners January 17, 2019 motion to late-file new Contention 14 is granted.699 O. Sierra Clubs February 6, 2019 motion to amend its Contention 1 is granted.700 P. Beyond Nuclear and Faskens February 6, 2019 motion to amend Beyond Nuclears contention is granted.701 Q. Joint Petitioners February 6, 2019 motion to amend their Contention 2 is granted.702 693 Holtec Motion to Strike.
694 [Holtecs] Motion for Leave to Reply to [AFES] Response to [Holtecs] Motion to Strike (Nov.
8, 2018).
695 Motion for Permission to File Supplemental Standing Declaration of Tommy E. Taylor (Dec.
10, 2018).
696 Sierra Clubs Motion to Adopt the Contentions of [Joint Petitioners] (Jan. 11, 2019); Motion of
[Joint Petitioners] to Adopt and Litigate Sierra Club Contentions (Jan. 11, 2019).
697 Joint Motion to Establish Hearing Procedures by Sierra Club, [Joint Petitioners] (Jan. 3, 2019).
698 Sierra Clubs Motion to File a New Late-Filed Contention (Jan. 17, 2019).
699 Motion by [Joint Petitioners] for Leave to File a New Contention (Jan. 17, 2019).
700 Sierra Clubs Motion to Amend Contention 1 (Feb. 6, 2019).
701 Motion by Petitioners Beyond Nuclear and Fasken to Amend Their Contentions Regarding Federal Ownership of Spent Fuel to Address Holtec Internationals Revised License Application (Feb. 6, 2019).
702 Motion by [Joint Petitioners] to Amend Their Contention 2 Regarding Federal Ownership of Spent Fuel in the Holtec International Revised License Application (Feb. 6, 2019).
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R. Sierra Clubs February 18, 2019 motion to amend its Contention 16 is denied.703 S. Joint Petitioners February 18, 2019 motion to amend their Contentions 4 and 7 is denied.704 T. Joint Petitioners February 25, 2019 motion to amend their Contention 2 is denied.705 U. Sierra Clubs February 25, 2019 motion to file new late-filed Contentions 27, 28, and 29 is denied.706 V. This proceeding is terminated.
Any appeal of this decision to the Commission shall be filed in conformity with 10 C.F.R.
§ 2.311.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Paul S. Ryerson, Chairman ADMINISTRATIVE JUDGE
/RA/
Nicholas G. Trikouros ADMINISTRATIVE JUDGE
/RA/
Dr. Gary S. Arnold ADMINISTRATIVE JUDGE Rockville, Maryland May 7, 2019 703 Sierra Clubs Motion to Amend Contention 16 (Feb. 18, 2019).
704 Motion of [Joint Petitioners] to Amend Their Contentions 4 and 7 Regarding Holtecs Decision to Have No Dry Transfer System Capability and Holtecs Policy of Returning Leaking, Externally Contaminated or Defective Casks and/or Canisters to Originating Reactor Sites (Feb.
18, 2019).
705 Motion of [Joint Petitioners] to Amend Their Contention 2 Regarding Holtecs Proposed Means of Financing the Proposed Consolidated Interim Storage Facility (Feb. 25, 2019).
706 Sierra Club Additional Contentions.
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