UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Atomic Safety and Licensing Board Before Administrative Judges: ASLBP BOARD ASLBP BOARD ASLBP BOARD 09-876-HLW-CAB01 09-877-HLW-CAB02 09-878-HLW-CAB03 William J. Froehlich, Chairman Michael M. Gibson, Chairman Paul S. Ryerson, Chairman Thomas S. Moore Alan S. Rosenthal Michael C. Farrar Richard E. Wardwell Nicholas G. Trikouros Mark O. Barnett In the Matter of ) ) U.S. DEPARTMENT OF ENERGY ) Docket No. 63-001 ) (High Level Waste Repository) ) May 12, 2009 STATE OF NEVADA'S NEW CONTENTIONS BASED ON FINAL NRC RULE Honorable Catherine Cortez Masto Nevada Attorney General Marta Adams Chief, Bureau of Government Affairs 100 North Carson Street Carson City, Nevada 89701 Tel: 775-684-1237 Email: [email protected] Egan, Fitzpatrick & Malsch, PLLC Martin G. Malsch * Charles J. Fitzpatrick * John W. Lawrence * 12500 San Pedro Avenue, Suite 555 San Antonio, TX 78216 Tel: 210.496.5001 Fax: 210.496.5011 [email protected] [email protected] [email protected] *Special Deputy Attorneys General TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................. 1 NEV-SAFETY-202 - CONTINUATION OF CLIMATE CHANGE FEPs................. 2 NEV-SAFETY-203 - EROSION FEP SCREENING AFTER 10,000 YEARS ........... 9 II. CONCLUSION AND PRAYER FOR RELIEF................................................................ 15 I. INTRODUCTION The Commission’s Notice of Hearing, CLI-08-25, __ NRC __ (2008), 73 Fed. Reg. 63029 (Oct. 22, 2008), provides in paragraph VII that Nevada and other petitioners may amend their contentions to the extent that the NRC’s final rule implementing the EPA standards for the post-10,000-year performance assessment offers "fresh grounds." Such contentions are timely if filed on or before May 12, 2009, sixty days from the publication of NRC’s rule in the Federal Register, which occurred on March 13, 2009 (74 Fed. Reg. 10811). In accordance with the Notice of Hearing, and 10 C.F.R. 2.309, the following new contentions are hereby filed. Each of these contentions address a specific aspect of the NRC rule which offer "fresh grounds" in terms of new regulatory language not contained in the EPA rule. 2 NEV-SAFETY-202 - CONTINUATION OF CLIMATE CHANGE FEPs 1. A statement of the contention itself As provided in SAR Subsections 2.2.1.2 and 2.3.1.1, and as reflected in related SAR subsections, climate-change processes included as FEPs in the TSPA for the first 10,000 years are neither carried forward for the next 990,000 years, as the rule requires, nor represented by NRC’s specified deep percolation rate for that subsequent period. If the climate change processes addressed by this contention are not included as FEPs for the first 10,000 years, and not taken into account beyond 10,000 years for that reason, or if the climate change processes addressed by this contention are included as FEPs for the first 10,000 years, but 10 C.F.R. § 63.342 (c) is construed so that climate-change processes included as FEPs in the TSPA for the first 10,000 years are not carried forward for the next 990,000 years, then there are special circumstances with respect to the subject matter of this proceeding such that application of 10 C.F.R. § 63.342(c), which places limits on features, events and processes to be considered in the post-10,000-year period, does not serve the purposes for which it was adopted, and this contention is a rule challenge under 10 C.F.R. § 2.335. 2. A brief summary of the basis for the contention SAR Subsection 2.2.1.2 identifies certain FEPs related to climate change as included in the TSPA, but Subsection 2.3.1.1 provides that these play no role in the performance assessment after 10,000 years. After 10,000 years, no FEPs or TSPA models are used to estimate net infiltration. Instead, the deep percolation flux as stated in NRC’s proposed rule is used. However, this violates the requirement in 10 C.F.R. § 63.342(c) that FEPs included in the 10,000-year performance assessment must also be included in the post-10,000-year performance assessment. Moreover, even if the specification of deep percolation flux in 10 C.F.R. § 3 63.342(c)(2) were construed to supersede the requirement in 10 C.F.R. § 63.342(c) that FEPs included in the 10,000-year performance assessment must also be included in the post-10,000- year performance assessment, DOE’s TSPA fails to include the deep percolation in NRC’s final rule, which is different from the one NRC proposed. Finally, it is of overriding importance that the range of climatic conditions that could apply in the post-10,000-year period has not been determined. In these circumstances, the specification of a range of deep percolation rates, whether it is that adopted by the DOE in the SAR or that set out by the NRC in the revised final rule, is not underpinned by scientific argument that accounts for recent advances in scientific knowledge. 3. A demonstration that the contention is within the scope of the hearing This contention questions DOE’s interpretation of, and compliance with, applicable requirements in 10 C.F.R. Part 63 and is within the scope of the hearing as provided in paragraph one of Section II of the Notice of Hearing ("The matters of fact and law to be considered are whether the application satisfies . the NRC standards in 10 C.F.R. Part 63 for a construction authorization. ."). This contention also raises an issue whether there are special circumstances with respect to the subject matter of this proceeding such that application of 10 C.F.R. § 63.342(c), which implicitly places limits on features, events and processes to be considered in the post-10,000- year period, does not serve the purposes for which it was adopted. It is within the scope of this proceeding to certify the contention to the Commission, as required by 10 C.F.R. § 2.335(d). 4. A demonstration that the contention is material to the findings NRC must make to license Yucca Mountain 10 C.F.R. § 63.31(a)(2) states that the NRC may authorize construction of the Yucca Mountain repository if it determines that there is reasonable expectation the materials described 4 in the application can be disposed of without unreasonable risk to the health and safety of the public. To make this finding, 10 C.F.R. §§ 63.102(j) and 63.113 require that a performance assessment be performed to show compliance with the post-10,000-year dose standard in 10 C.F.R. § 63.311(a)(2). This performance assessment must comply with 10 C.F.R. §§ 63.102(j), which provides (with limited exceptions) that a performance assessment must include features, events and processes (FEPs) "that might affect performance," and 10 C.F.R. § 63.342(c), which (again with limited exceptions) provides that the post-10,000-year performance assessment shall project the continued effects of FEPs included in the 10,000-year performance assessment. This contention questions DOE’s interpretation of, and compliance with, 10 C.F.R. § 63.342(c) and therefore is material to the findings NRC must make. If 10 C.F.R. § 63.342(c) is construed so that climate-change processes included as FEPs in the TSPA for the first 10,000 years are not carried forward for the next 990,000 years, but are instead represented by the specified percolation rate, or if for some other reason the climate- change processes addressed by this contention are not included as FEPs for the first 10,000 years, and not carried forward for that reason, then the implicit limitation in 10 C.F.R. § 63.342(c) has the effect of excluding this contention, regardless of its effects on performance, dose to the RMEI, and the NRC’s ability to find that there is reasonable expectation the materials described in the application can be disposed of without unreasonable risk to the health and safety of the public. Moreover, in promulgating the recent amendments to Part 63, the Commission provided that a waiver of a provision of the new rule under 10 C.F.R. § 2.335 would be appropriate if the provision "no longer provides a reasonable basis for demonstrating compliance based on new scientific evidence." 74 Fed. Reg. 10811, 10824 (March 13, 2009). This 5 contention is based on scientific evidence, not considered in the rulemaking, indicating that 10 C.F.R. § 63.342(c) no longer provides a reasonable basis for demonstrating compliance. Therefore, whether 10 C.F.R. § 63.342(c) should apply so as to exclude the FEP which is the subject of this contention, or be waived, presents a material issue. 5. A concise statement of the facts or expert opinions supporting the contention, along with appropriate citations to supporting scientific or factual materials The deficiencies which are the subject of this contention are apparent on the face of the SAR. SAR Subsection 2.2.1.2 identifies certain FEPs as included in the TSPA and bearing on the application of 10 C.F.R. § 63.342(c), including the climate-change FEPs 1.3.01.00.0A, 1.4.01.01.0A and 2.3.11.03.0A. These climate-change FEPs relate to the general consideration of climate change, increases in recharge caused by climate modification, and infiltration and recharge in general, respectively. However, SAR Subsection 2.3.1.1 provides that these play no role in the performance assessment after 10,000 years.