ML031190386
| ML031190386 | |
| Person / Time | |
|---|---|
| Site: | Catawba, McGuire, Mcguire  |
| Issue date: | 04/21/2003 |
| From: | Repka D Duke Energy Corp, Winston & Strawn |
| To: | Atomic Safety and Licensing Board Panel |
| Byrdsong A T | |
| References | |
| +adjud/rulemjr200506, 50-369-LR, 50-370-LR, 50-413-LR, 50-414-LR, ASLBP 02-794-01-LR, RAS 6349 | |
| Download: ML031190386 (21) | |
Text
-RAS (,3qq April 21, 2003 UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION USNRC BEFORE THE ATOMIC SAFETY AND LICENSING BOARD April 28, 2003 (11:46AM)
OFFICE OF SECRETARY RULEMAKINGS AND In the Matter of ) ADJUDICATIONS STAFF
)
DUKE ENERGY CORPORATION ) Docket Nos. 50-369-LR
) 50-370-LR (McGuire Nuclear Station, ) 50-413-LR Units 1 and 2, and ) 50-414-LR Catawba Nuclear Station, Units I and 2)
RESPONSE OF DUKE ENERGY CORPORATION TO INTERVENORS' REQUEST FOR REINSTATEMENT OF THE ENVIRONMENTAL ASPECTS OF THE PREVIOUSLY DISMISSED CONTENTION 1 CONCERNING MIXED OXIDE FUEL I. INTRODUCTION Duke Energy Corporation ("Duke") herein responds to "Blue Ridge Environmental Defense League's and Nuclear Information and Resource Service's Request for Reinstatement of NIRS Contention I Regarding Environmental Impacts of MOX Fuel Use"
("Motion"), filed April 11, 2003. In the Motion, Intervenors ask the Atomic Safety and Licensing Board ("Licensing Board") to "reinstate" the environmental aspect of NIRS Contention 1, which was rejected in its entirety over a year ago by the Commission.' Intervenors specifically seek to resurrect their assertion that the Supplemental Environmental Impact Statements ("SEISs") prepared in connection with the renewal of the McGuire and Catawba See Duke Energy Corp. (McGuire Nuclear Station, Units I and 2; Catawba Nuclear Station, Units I and 2), CLI-02-14, 55 NRC 278 (2002).
I I emp I l0te -_s6C V- a 41 SEc l - ax
Nuclear Station operating licenses should address the potential environmental impacts of the possible future use of some mixed oxide ("MOX") fuel assemblies at McGuire or Catawba.
As shown below, the Motion is without merit. Procedurally, this request is tantamount to a motion for reconsideration of the Commission's earlier decision in CLI-02-14.
As a motion for reconsideration, it should properly have been brought to the Commission.
Substantively, the issue of possible future MOX fuel use at McGuire or Catawba is still beyond the limited scope of this license renewal proceeding. Regardless of Duke's recent submittal of a license amendment request seeking approval to insert four MOX fuel lead assemblies for use at McGuire or Catawba, and regardless of developments at the U.S. Department of Energy
("DOE") announced in April 2002, there is still no "nexus" between present and future MOX fuel amendment requests and the license renewal application. Nor are environmental issues relating to possible long-term use of MOX fuel at Duke nuclear plants now "ripe" for review in this renewal proceeding under the standard articulated by the Commission and the courts. For all of these reasons, the Motion must be rejected.
II. BACKGROUND A. ProceduralHistory ofNIRS Contention I In its January 24, 2002 Memorandum and Order in this case, the Licensing Board considered two MOX fuel contentions, which it combined and restated as the following reformulated Contention 1:
Anticipated MOX fuel use in the Duke plants will have a significant impact on aging and environmental license renewal issues during the extended period of operations in the Duke plants, through mechanisms including changes in the fission neutron spectrum and the abundances of 2
fission products, and must therefore be considered in the license renewal application and addressed in the Supplemental EIS.2 As rewritten, Contention I addressed both safety and environmental issues. Duke appealed the Licensing Board's admission of Contention 1.3 In CLI-02-14, issued on April 12, 2002, the Commission reversed the Licensing Board's ruling in LBP-02-04 related to Contention 1. The Commission first rejected the aging-related claims in Contention 1, finding those claims to be beyond the scope of a review under the Part 54 license renewal regulations. The Commission cautioned that admitting that aspect of the contention would "invite petitioners in license renewal cases to raise safety issues involving a myriad of possible future license amendments." 4 The Commission also reversed the Licensing Board's ruling that the environmental aspect of Contention 1 should be considered in this license renewal proceeding under the National Environmental Policy Act ("NEPA"). 5 It characterized 2 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units I and 2), LBP-02-04, 55 NRC 49, 107 (2002). As submitted by intervenor Nuclear Information and Resource Service ("NIRS"), Contention 1.1 originally stated: "MOX Fuel Use Will Have a Significant Impact on the Safe Operation of Catawba and McGuire During the License Renewal Period and Must Be Considered in the License Renewal Application." NIRS Contention 1.2.4 originally stated: "Environmental Reports Do Not Consider MOX Fuel Use." Id., 55 NRC at 88. Although NIRS originally sponsored the MOX contentions later incorporated into Contention 1, intervenor Blue Ridge Environmental Defense League ("BREDL") joins NIRS in seeking reinstatement of the environmental portion of this dismissed contention. See Motion, at 1. Intervenors in their Motion do not seek reconsideration or reversal of the Commission's dismissal of NIRS's Part 54 claim in Contention 1 that future use of MOX fuel at McGuire or Catawba will "significantly" affect plant aging.
3 See February 4, 2002 Duke Energy Corporation "Memorandum of Law in Support of Appeal of Duke Energy Corporation from Atomic Safety and Licensing Board Memorandum and Order LBP-02-04 (Ruling on Standing and Contentions)" ("Duke Appeal Brief'). The NRC Staff appealed the Licensing Board decision as well. See February 4, 2002 "NRC Staff's Brief in Support of Appeal from LBP-02-04."
4 CLI-02-14, 55 NRC at 292.
5 Id. at 294-97.
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the environmental issue in Contention 1 as "whether the NRC Staff is obliged to consider in an Environmental Impact Statement the cumulative effect of the instant license extension action together with an as-yet-unfiled application for an amendment permitting use of plutonium/MOX fuel." 6 In response to this aspect of Contention 1 (the aspect which Intervenors now seek to reinstate), the Commission articulated a two-prong standard, based upon applicable federal environmental law, and concluded that neither prong was satisfied:
[T]o bring NEPA into play, a possible future action must at least constitute a 'proposal' pending before the agency (i.e., ripeness), and must be in some way interrelated with the action that the agency is actively considering (i.e., nexus). . . . We believe that the possibility of a future 7
MOX applicationsatisfies neither the ripeness nor the nexus test.
Intervenors' present Motion alleges that both the "ripeness" and the "nexus" prongs of this standard in CLI-02-14 have now been met: "[E]vents which have occurred since the contention was first considered now demonstrate that the issues raised by NIRS
[Contention 1] are ripe for consideration, and that a nexus between license renewal and MOX use is sufficiently established to warrant consideration of the contention." Motion, at 1-2. As discussed below, this is not the case. When it issued CLI-02-14, the Commission was aware of the prospect of future MOX fuel license amendment requests, and emphasized that the Intervenors would be free to raise MOX-related safety and environmental issues when and if Duke filed such a request. The Commission was very clear that the environmental review of the MOX fuel issues is not required in the context of the license renewal SEISs.
6 See CLI-02-14, 55 NRC at 294. In so characterizing the NEPA issues in Contention 1, the Commission was reiterating aspects of its earlier decision in this proceeding concerning BREDL's October 23, 2001 "Petition to Dismiss Licensing Proceeding or, in the Alternative, Hold It in Abeyance." See Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-01-27, 54 NRC 385, 392 (2001).
7 CLI-02-14, 55 NRC at 295 (internal citations omitted; emphasis added).
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B Duke 's License Amendment Application Related to FourMOX Fuel Lead Assemblies On February 27, 2003, Duke submitted to the NRC a request to amend the current McGuire and Catawba Nuclear Station facility operating licenses and technical specifications to allow the use of four MOX fuel "lead assemblies" at either McGuire or Catawba. As discussed in that amendment request, this proposal is part of the ongoing plutonium disposition program of the United States and the Russian Federation. The goal of the nuclear nonproliferation program is "to dispose of surplus plutonium from nuclear weapons by converting the material into MOX fuel and using that fuel in nuclear reactors." 8 The lead assembly license amendment request has been submitted as only one step in the program. To use significant, or "batch," quantities of MOX fuel at one of its reactors, Duke would eventually be required to submit another amendment request seeking the appropriate authority. Should Batch utilization of MOX fuel proceed at Duke facilities, it is currently not anticipated to commence before 2008.
At the time the Commission issued CLI-02-14, it was well-understood that an amendment request for MOX fuel lead assemblies would precede an amendment request for 9 In the batch use, and that the lead assembly request would be filed in the near future.
February 4, 2002 Duke Appeal Brief, at page 5, Duke specifically stated: "If the [MOX] program proceeds as planned, Duke anticipates submitting, in 2002, a license amendment request to the Commission which would, if granted, allow Duke to load a very limited number of MOX fuel 8 See February 27, 2003 letter to the NRC Document Control Desk from M.S. Tuckman, Duke Energy Corporation, transmitting Duke's "Proposed Amendments to the Facility Operating License and Technical Specifications to Allow Insertion of Mixed Oxide (MOX) Fuel Lead Assemblies and Request for Exemption from Certain Regulations in 10 CFR Part 50" (Catawba Nuclear Station Units 1 and 2, Docket Nos. 50-413, 50-414; McGuire Nuclear Station Units I and 2, Docket Nos. 50-369, 50-370) ("License Amendment Application"), at 2.
9 See Duke Appeal Brief, at 4-6.
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demonstration or lead test assemblies." If there has been any change, it is only that the lead assembly amendment request was filed in February 2003 rather than in 2002 as previously anticipated.
In the lead assembly license amendment request filed in February 2003, Duke states that the current fabrication schedule for the MOX fuel lead assemblies is intended to support insertion of the four lead assemblies into either McGuire Unit 2 or Catawba Unit I during the Spring 2005 refueling outage for the unit selected. No decision has yet been made as to which unit will irradiate the lead assemblies. Hence, Duke is requesting and providing justification for insertion of four lead assemblies into any one of the four Catawba or McGuire reactors. 10 Current plans call for the four lead assemblies to be irradiated for a minimum of two cycles (approximately 3 years), in order to confirm acceptability of the planned MOX fuel assembly design, verify the validity of Duke's models to predict fuel assembly performance, and confirm the applicability of the European database to Duke's use of MOX fuel. In addition, some or all of the lead assemblies will undergo a third cycle (approximately 18 months) of irradiation to assure that the lead assembly burnup bounds the anticipated batch fuel burnup."1 The lead assemblies will be utilized entirely within the initial 40-year license terms for either McGuire or Catawba.
10 Obtaining regulatory approval for use of MOX fuel lead assemblies at all four McGuire and Catawba units will better enable the company to adjust to any possible modifications in the lead assembly fabrication schedule, or other program changes, without the need for additional license amendments. These reactors are sufficiently similar that supporting safety analyses for MOX fuel use will, in most instances, apply to either reactor at either station. Any differences are noted and described in the amendment request. See License Amendment Application, Attachment 3, at 3-2.
Id., at 3 3-3.
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III. THE MOTION SHOULD NOT BE CONSIDERED BY THE LICENSING BOARD This Motion is styled as a request to "reinstate" Contention 1 a contention previously dismissed from this license renewal proceeding by the Commission in CLI-02-14.
The Motion is devoid of any regulatory citations, case precedent, or other viable support for the proposition that a contention rejected by the Commission as inadmissible can somehow be "reinstated" by the Licensing Board. The closest analogy to the relief that Intervenors seek here would appear to be a motion for reconsideration, although Intervenors do not characterize their request as such or address any factors relevant to such a motion.12 Any motion for reconsideration of a Commission decision would presumably be a matter that should be brought to the Commission, not this Licensing Board.' 3 Accordingly, the Motion lacks proper procedural 4
grounding, is at a minimum in the wrong forum, and therefore should be dismissed.'
12 Reconsideration motions provide an opportunity "to request correction of a Board error by refining an argument, or by pointing out a factual misapprehension or a controlling decision or law that was overlooked." Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-21, 52 NRC 261, 264 (2000). Thus, such motions "should be associated with requests for re-evaluation of an order in light of an elaboration upon, or refinement of, arguments previously advanced." Central Electric Power Coop.
(Virgil C. SummerNuclear Station, Unit No. 1), CLI-81-26, 14 NRC 787, 790 (1981).
13 Compare Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2),
ALAB-579, 11 NRC 223, 225-26 (1980) (a board cannot reconsider a matter after it loses jurisdiction "over a cause"). Here, the Licensing Board has no jurisdiction with respect to Contention 1. See also Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-97-2, 45 NRC 3 (1997) (intervenor's motion for reconsideration of CLI 8 filed with the Commission itself); Sacramento Municipal Utility Dist. (Rancho Seco Nuclear Generating Station), CLI-93-12, 37 NRC 355 (1993) (licensee's motion for reconsideration of CLI-93-3 filed with the Commission); VC. Summer, CLI-81-26, 14 NRC 787 (motion for reconsideration of Commission decision filed with Commission).
14 Procedurally, the Licensing Board could refer the Motion to the Commission under 10 C.F.R. § 2.730(f). However, for the substantive reasons discussed in Section IV below, the Licensing Board can also easily reject the Motion on its merits. Duke requests that Intervenors' claim be addressed in the manner and in the forum most likely to facilitate its quick resolution, consistent with the Commission's direction to the Licensing Board regarding the need to ensure "prompt and efficient resolution of contested issues," and to 7
Perhaps in recognition of the novel nature of the relief requested, and the lack of precedent for such a request, the Intervenors also argue (Motion, at 8-9) that NIRS Contention I should now be treated as a late-filed contention. However, unlike late-filed contentions typically proffered in NRC licensing proceedings, Contention I is not a new issue, alleging a new dispute, or based on newly-available factual information or NRC licensing documents. Rather, it is an attempt to bootstrap a previously-rejected contention back into this license renewal proceeding by re-introducing the issue at the eleventh hour based upon developments that were clearly anticipated at the time of the Commission's April 2002 decision. The Intervenors state that:
"The principal event on which this request for reinstatement is based consists of Duke's application to use MOX fuel lead assemblies in the Catawba or McGuire plant." Motion, at 8.
The Intervenors do not rely on any information in that filing, only the fact of the filing. That fact, however, is not in reality either new information or a development with any new significance. The Intervenors cannot contend that they first became aware of the possibility of Duke's filing a MOX fuel license amendment request on March 18, 2003. Such a possibility has 5
been discussed many times in this proceeding and in other public meetings and documents." As noted above, the papers before the Commission last year clearly stated that the lead assembly amendment request could be filed in 2002. The Commission, in rejecting the proposed link of adhere to recommended schedule milestones. See Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units I and 2), CLI-01 -20, 54 NRC 211, 214-16 (2001).
15 For example, among others, there were public meetings at the NRC on the MOX fuel program on June 2, 1999, October 12, 2000, and October 4, 2001, in which the MOX fuel lead assembly license amendment request was specifically discussed. The date for such an application was originally cited as August 2001, but changed over time. Dr. Lyman attended at least one of these meetings. In this proceeding, BREDL referred to the possibility of Duke's submitting a fuel lead assembly license amendment request in its October 23, 2001 Petition to Dismiss.
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the MOX fuel review to license renewal, did not find any significance in this consideration.
Thus, the fact of the lead assembly filing is not material new information that would support a timely "late-filed contention." 16 The Motion is clearly better characterized as a motion for 7
reconsideration, and therefore is not properly before the Licensing Board.'
Even applying the criteria in 10 C.F.R. § 2.714(a)(1) for assessing whether a late-filed contention should be considered, the Motion fails to demonstrate that the issue should be considered at this time. First, the Motion demonstrates no "good cause" in accordance with Section 2.714(a)(1)(i) for a new, late-filed contention. As discussed above, the Motion does not in reality address any material new information. The filing of the lead assembly amendment request was expected at the time CLI-02-14 was issued. The April 2002 DOE announcement on its face is not new information.
Regarding "the availability of other means whereby the petitioner's interest will be protected" in accordance with Section 2.714(a)(1)(ii), Intervenors contend that, apart from this license renewal proceeding, they have no other means of ensuring that the McGuire and Catawba SEISs contain a "thorough discussion of reasonably foreseeable environmental 16 Likewise, the DOE Amended Record of Decision cited by the Intervenors was published on April 19, 2002. See 67 Fed. Reg. 19432 (2002). Among other things, DOE announced the cancellation of the immobilization portion of the plutonium disposition program and the re-evaluation of long-term storage of plutonium at the Savannah River Site. This is certainly not new information at the present time. Indeed, the information in this notice was widely known to interested parties at the time the Commission issued CLI-02-14 on April 12, 2002. Indeed, the Secretary of Energy issued a statement announcing the termination of immobilization in January 2002. The statement is available through the DOE website at wNvw.nnsa.doe.gov/na-26/docs.htm.
17 Even as a motion for reconsideration, the Motion has no viable basis, given (a) the Commission's awareness of the possibility of a lead assembly application at the time it issued CLI-02-14, and (b) the other arguments addressed in Section IV on the "merits" of the question of the admissibility of the claim that environmental aspects of MOX fuel and license renewal must be addressed together.
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impacts." This assertion is unfounded and disingenuous. The Intervenors have already fully addressed their theory that the SEISs must address MOX fuel, and that argument has been rejected. Further, as the Commission stated in April 2002, "NIRS and BREDL are of course free to raise MOX-related safety and environmental issues (including the question whether the use of MOX fuel will aggravate any aging effects) when and if Duke submits a license amendment 8
application seeking permission to possess and use MOX fuel."' With the submittal of Duke's MOX fuel license amendment request, Intervenors are well aware that an appropriate forum is now available in which they may raise any concerns relating to the environmental consequences of utilizing a limited number MOX fuel lead assemblies. Similarly, in assessing the factor of Section 2.714(a)(1)(iv), the Intervenors can represent their own interests with respect to these issues. The Intervenors simply need to follow the Commissio's rules of procedure and identify any admissible MOX issues in the context of the appropriate MOX fuel license amendment request - something the Commission has specifically invited the Intervenors to do.
The Section 2.714(a)(1)(iii) factor, the extent to which Intervenors' participation may reasonably be expected to assist in developing a "sound record" on license renewal, also weighs against admissibility. As the Commission has made clear, MOX fuel issues are beyond the scope of license renewal, and there is no need to develop any record on MOX issues in this license renewal proceeding. The lead assembly license amendment request review process is the appropriate forum for Intervenors to develop - to the extent they are able - a record on MOX fuel concerns. (In this regard, nothing in the present Motion indicates any specific expertise or specific substantive issues on which the Intervenors propose to "assist" with the record.) In the end, under Section 2.714(a)(1)(v), it is clear that if the Licensing Board were to "reinstate" 18 CLI-02-14, 15 NRC at 297.
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Contention 1, the litigation of the MOX fuel issue would substantially broaden the scope of this license renewval proceeding and delay issuance of the renewed licenses.
The Intervenors' request to reinstate the MOX fuel issue in this license renewal proceeding should be denied. Any reconsideration of CLI-02-14 is a matter appropriate for the Commission rather than this Licensing Board. Moreover, even applying the factors of 10 C.F.R.
§ 2.714(a)(1), the Intervenors have failed to justify reconsideration of Contention I as a late-filed contention. The Licensing Board need not reach the question of whether Contention I has now, somehow, become admissible.
IV. THE PROPOSED CONTENTION STILL IS NOT ADMISSIBLE In previously addressing the admissibility of the environmental aspect of Contention 1,19 the Commission applied relevant case law under NEPA and concluded that the contention fell outside the scope of the required license renewal environmental review. The Commission held that any environmental issues raised by use of MOX fuel were neither ripe for review nor sufficiently related to license renewal to be considered in the license renewal SEISs and in this proceeding. CLI-02-14, 55 NRC at 294-97. The Commission's conclusions with respect to ripeness and nexus were each, independently, sufficient to support the conclusion that the contention should be dismissed. These conclusions remain valid and the environmental contention cannot be reinstated.
19 As discussed above, the Motion, by its terms, does not seek to reinstate any aspect of NIRS Contention I that may have been construed to raise an issue related to the alleged safety aspects of use of MOX fuel (either lead assemblies or batch quantities). The Commission's decision in CLI-02-14 is clear that a license renewal safety review under Part 54 (and the Atomic Energy Act) does not extend to the technical merits of the MOX issue. CLI-02-14, 55 NRC at 292-94. Part 50 safety issues will be appropriately addressed in the context of the necessary applications for amendments to the current licensing basis, such as the lead assembly amendment request. Case law under NEPA germane to "segmenting" environmental reviews does not apply to safety reviews.
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The Motion contends that both the ripeness and nexus tests in CLI-02-14 have now been met - relying on Duke's filing of the lead assembly amendment request and the DOE Amended Record of Decision issued last year. Contrary to the Intervenors' argument, neither the filing of the lead assembly request nor the DOE Amended Record of Decision makes the batch use of MOX fuel at McGuire or Catawba certain. Batch use remains a matter well down the road, subject to the same substantial uncertainties as before. Therefore, MOX fuel environmental issues are now no more ripe than before. Moreover, the Intervenors fail to show any new fact demonstrating that there is a nexus, or inextricable link, between license renewal and the MOX fuel issue. License renewal continues to have utility independent of any use of MOX fuel. Conversely, MOX fuel approvals still have utility independent of license renewal.
Neither the lead assembly application nor the DOE Record of Decision inextricably links the issue of MOX fuel to license renewal. Therefore, applying the Commission's two-prong test from CLI-02-14, there is no basis for the Licensing Board to "reverse" the Commission's earlier decision.
A. The "Nexus " Test is Still Not Met for EnvironmentalReview of the MOX Issue in the License Renewal SEISs In CLI-02-14, the Commission applied the nexus test for environmental review of separate projects, as set forth in Webb v. Gorsuch, which held that in an environmental impact statement an agency must consider the impact of other proposed projects "only if the projects are so interdependent that it would be unwise or irrational to complete one without the other."2 0 The Commission concluded that:
Moving now to the need for the license renewal and the MOX amendment to be interrelated (i.e., the nexus test), we apply the test the court of 20 Webb v. Gorsuch, 699 F.2d 157, 161 (4th Cir. 1983); see also CLI-02-14, 55 NRC at 297, n.46.
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appeals set forth in JMebb v Gorsuch. There, the court stated that, when developing an EIS, an agency must consider the impact of other proposed projects 'only if the projects are so interdependent that it would be unwise or irrational to complete one without the other.' We see no
'interdependence' at all between Duke's license renewal application and any potential fuel-related amendment application. License renewal obviously can go forward without reference to the MOX issue. The Catawba and McGuire plants could operate throughout their current licensing term plus an additional twenty-year renewal term (if license renewal is approved) without using MOX fuel, just as they have to date.
Likewise, assuming Commission authorization, the plants could use MOX fuel during the remainder of their current operating licenses regardless of whether Duke had sought any license renewals. License renewal and MOX use are, in short, separate questions.'
This lack of nexus, or lack of interdependence, has not changed. The filing of the lead assembly amendment request certainly does not establish a nexus where none previously existed.
Likewise, the developments at DOE documented in the April 2002 Record of Decision do not establish a nexus. The Intervenors' Motion should be summarily denied for the failure to bring forth any new fact material to the nexus test.22 In the Motion the Intervenors essentially argue that, because (a) Catawba and McGuire are the only plants that have been designated for MOX use, and (b) they are the only plants available for disposal of the 34 tons of MOX fuel that could be produced under the U.S.-
Russia agreement, "License renewal and MOX use therefore are inextricably interrelated."
Motion, at 7. This argument, however, ignores the central point made by the Commission in CLI-02-14 regarding the nexus test: license renewal has independent utility regardless of whether any MOX fuel use is ever approved. License renewal can go forward, and would have value, 21 CLI-02-14, 55 NRC at 296-97 (emphasis in original; internal citations omitted).
22 This nexus test is a basis for dismissal independent of the ripeness test. As articulated in the quote from Webb v. Gorsuch above, the nexus test expressly applies to concurrent "proposed projects" (that is, where "ripeness" may be presumed).
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without any future MOX approval. 23 The Intervenors offer only this mental sleight-of-hand: "If the Catawba and McGuire licenses are renewed without provision for use of MOX fuel, then the overall governmental policy of disposing of surplus weapons-grade plutonium will not be fulfilled." Motion, at 7-8 (footnote omitted). Duke, however, is not seeking authority to use MOX fuel in the license renewal application; nor is it seeking in that application to fulfill any government policy related to plutonium disposition. It is seeking to renew the McGuire and Catawba operating licenses under the terms of the plants' current licensing basis. Whether or not MOX fuel - in either lead assemblies or batch quantities - is ever approved, with license renewal Duke could operate the plants through the current and renewal license terms.
The filing of a lead assembly amendment request does not establish an inextricable link between MOX and license renewal. As discussed above, the use of lead assemblies is only a limited step in the DOE program, and the lead assemblies vould be used only during the current terms of the plants' operatinglicenses. Therefore, not only does license renewal not depend upon approvals of MOX amendments, the lead assembly approval does not in any way depend upon license renewal. This lack of nexus between the lead assembly amendment request and license renewal is sufficient basis in itself to dismiss the Motion.
Even in relying on the broader plutonium disposition program, and the prospect of a batch use approval down the road, the Intervenors fail to establish any inextricable link between MOX fuel and license renewal. If the McGuire and Catawba licenses were not renewed, Duke could continue to operate and seek approval to use MOX fuel during the current license terms for these facilities and, in so doing, serve the government in meeting the objectives 23 This is confirmed by the large number of licensees that have applied for license renewal, but have indicated no interest in MOX fuel or the plutonium disposition program.
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of the MOX program. The Intervenors argue that McGuire and Catawba are "the only available avenue" for disposal of the 34 tons of MOX. There is no reason, however, that all 34 tons must be disposed of by use of MOX fuel at McGuire and Catawba. DOE can certainly add additional mission reactors in the future to fully meet its goals and obligations, if necessary. Indeed, if either McGuire or Catawba were unavailable to use MOX fuel for any reason (including expiration of the current licenses), DOE would need to make other arrangements to meet its plutonium disposition mission. Therefore, the MOX plan is not contingent on license renewal at McGuire and Catawba, and the two projects are not inextricably linked.
As discussed above, the Intervenors in their Motion are, in effect, seeking reconsideration of the Commission's decision in CLI-02-14. However, they have brought to light no new fact or new development that would justify such reconsideration. As before, there is (as the Commission ruled) no interdependence at all between Duke's license renewal application and either the lead assembly application or the potential batch quantity application.
Consistent with Webb v. Gorsuch, there is no basis to conclude that anything has changed, to indicate that it now would be unwise or irrational to complete an environmental review of license renewal without considering MOX fuel. A license renewal approval does not commit the NRC to approval of any MOX fuel amendment, nor does it commit Duke to use MOX fuel. Moreover, as before, no environmental issue associated with MOX fuel use will escape review. MOX fuel issues related to lead assemblies will be addressed in the NRC environmental review related to the lead assembly amendment request. MOX fuel issues associated with longer-term batch use will be addressed in the NRC's environmental reviews of a MOX fuel batch request, if that request is ever filed. This Licensing Board should not "reverse" the Commission's prior decision.
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B. Environmental Issues Related to Long-Term MOX Use Are Still Not Ripe The Intervenors also argue that the issue of MOX fuel is now ripe for review in the license renewal context. The ripeness argument is again premised on: (a) the Duke lead assembly application (according to the Intervenors "it constitutes the first concrete step toward full use of MOX fuel"), and (b) DOE's announcement in April 2002 that "it had decided to drop immobilization" as a strategy for plutonium disposition. Motion, at 5. The Intervenors argue that these developments have "reduced any uncertainty regarding the likelihood that MOX fuel will be used at Catawba and McGuire." Id., at 6. None of this, of course, addresses in any way the lack of nexus between the MOX fuel approvals and license renewal. Even with respect to ripeness, the Intervenors argue only that there is "reduced" uncertainty; they do not argue that uncertainty regarding eventual batch use of MOX fuel has been eliminated. In fact, most - if not all - of the uncertainty that existed previously, and that the Commission cited, still exists.
As discussed above, at the time the Commission issued CLI-02-14 the record was clear that a MOX fuel lead assembly amendment request could be filed in the near future, and that the lead assembly approval would not commit either Duke, DOE, or NRC to full batch use.
Indeed, in its decision the Commission did not rely on any uncertainties related to filing the expected amendment request for lead assemblies. Rather, the Commission found other more significant and fundamental uncertainties surrounding the entire MOX program. The uncertainties surrounding the MOX fuel program, as relied upon by the Commission in CLI 14, have not substantially changed as a result of either the lead assembly application or the Amended Record of Decision. Quoting Duke's statements, the Commission in CLI-02-14 clearly understood that "substantial uncertainties and contingencies continue to surround the program," including, but not limited to, (a) actions by DOE, including consummation of certain 16
international agreements; (b) licensing of a MOX fuel fabrication facility; and (c) plutonium disposition activities in Russia. CLI-02-14, 55 NRC at 296. Notwithstanding Duke's filing of the lead assembly amendment request and the DOE Record of Decision, all of these uncertainties specifically pointed to by the Commission continue to exist.
The case law that supported the Commission's decision also continues to apply.
In its Appeal Brief Duke wrote the following:
In rejecting petitioners' "segmentation" argument, the Third Circuit in Society Hill Towers [Owvners' Ass'n v. Rendell, 210 F.3d 168, 181 (3rd Cir. 2001)] concurred with the "interdependence" logic of the Fourth Circuit in [Webb and related cases. However, the Court of Appeals also observed another important factor in an analysis of the scope of an environmental review: the uncertainty attached to the potential future projects. [Footnote omitted.] Similarly, in the present case, the uncertainties surrounding the MOX fuel project remain and are clear -
particularly with respect to the more significant amendment involving the "batch" quantities of MOX fuel. The variables and uncertainties inherent in this project weigh heavily against a premature assessment of MOX fuel issues. [Footnote omitted.] Importantly, the oft-cited holding in the seminal case of Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976), was stated as follows: "[W]hen several proposals . .. that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together" (emphasis added). While no showing has been made that license renewal and MOX fuel will have cumulative or synergistic impacts upon the region, there is clearly no proposal to use MOX fuel pending before the NRC at this time....
As recognized by the Licensing Board, the Supreme Court in Kleppe held that agencies are not required to consider the impacts of "less imminent actions." Id at 410 n.20. As shown above, the use of MOX fuel, particularly in "batch" quantities, is a "less imminent action." The practical wisdom of this approach is reflected in a case cited by the NRC Staff and the Licensing Board, Sierra Club v. Marsh, 976 F.2d 763 (1st Cir. 1992). This case stands for the proposition that "agencies need not consider potential effects that are highly speculative or indefinite" (LBP-02-04, slip op. at 57). It also suggests something more - a practical approach to timing the environmental reviews related to consecutive projects:
17
Whether a particular set of impacts is definite enough to take into account, or too speculative to warrant consideration, reflects several different factors. With what confidence can one say that the impacts are likely to occur?
Can one describe them 'now' with sufficient specificity to make their consideration useful? If the decisionmaker does not take them into account 'now,' will the decisionmaker be able to take account of them before the agency is so firmly committed to the project that further environmental knowledge, as a practical matter, will prove irrelevant to the government's decision?
Sierra Club, 976 F.2d at 768 (citations omitted). The thrust here is obvious: an agency should act rationally in determining its approach to evaluating environmental impacts by balancing considerations such as the uncertainty of the future project, the ripeness of the issues for review, whether impacts of a later project might bear on the present approval, or whether the present approval would commit the agency to a particular course of action on the future project. Because of the independent utility and lack of interdependence of license renewal and MOX fuel use, because of uncertainties surrounding the MOX project, because MOX fuel-related technical and environmental analyses are still in progress, and because license renewal does not commit either Duke or the government to the MOX fuel project, the rational course for the NRC would be to address these matters separately. Moreover, no suggestion has been made by anyone to date in this proceeding that any environmental issues would escape review by the NRC by utilizing this eminently logical approach.
Indeed, none would.24 This analysis remains completely applicable today, and is unchanged by the "developments" cited by the Intervenors.
At bottom, the same uncertainties regarding the MOX program that existed in early 2002 continue to exist. Any environmental issues associated with the lead assembly amendment request will shortly become ripe for review and public participation in connection with that request. Meanwhile, the variables and uncertainties inherent in the overall MOX project continue to weigh heavily against a premature assessment of issues related to a future 24 Duke Appeal Brief, at 22-24.
18
batch approval as part of the license renewal proceeding. A practical approach to environmental review, as suggested by Kleppe v. Sierra Club and Sierra Club v. Marsh, still strongly supports the Commission's decision rejecting any linking of a MOX fuel environmental review to the license renewal environmental review. On the ripeness test, just as the nexus test, there is no basis to "reverse" the Commission and reinstate the contention.
V. CONCLUSION For the reasons discussed above, the Motion requesting that the Licensing Board "reinstate" in this license renewal proceeding the environmental claims raised in the previously dismissed Contention 1 should be denied.
Respectfully submitted, David A. Repka Anne W. Cottingham WINSTON & STRAWN 1400 L Street, NW Washington, D.C. 20005-3502 (202) 371-5726 Lisa F. Vaughn DUKE ENERGY CORPORATION 526 South Church Street Mail Code: ECl IX - 1131 Charlotte, N.C. 28202-1802 ATTORNEYS FOR DUKE ENERGY CORPORATION Dated in Washington, D.C.
this 21st day of April, 2003 19
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )
)
DUKE ENERGY CORPORATION ) Docket Nos. 50-369-LR
) 50-370-LR (McGuire Nuclear Station, ) 50-413-LR Units I and 2, and ) 50-414-LR Catawba Nuclear Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of the "RESPONSE OF DUKE ENERGY CORPORATION TO INTERVENORS' REQUEST FOR REINSTATEMENT OF THE ENVIRONMENTAL ASPECTS OF THE PREVIOUSLY DISMISSED CONTENTION 1 CONCERNING MIXED OXIDE FUEL" in the captioned proceeding have been served on the following by deposit in the United States mail, first class, this 21st day of April, 2003.
Additional e-mail service, designated by **, has been made this same day, as shown below.
Ann Marshall Young, Chairman *
- Lester S. Rubenstein **
Administrative Judge Administrative Judge Atomic Safety and Licensing Board 4760 East Country Villa Drive U.S. Nuclear Regulatory Commission Tucson, Arizona 85718 Washington, DC 20555-0001 (e-mail: lesrrr(msn.com)
(e-mail: amy(nrc.gov)
Dr. Charles N. Kelber
- Office of the Secretary **
Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Attn: Rulemakings and Adjudications Staff Washington, DC 20555-0001 (original + two copies)
(e-mail: cnk(nrc.gov) (e-mail: HEARlNGDOCKET(nrc.gov)
Office of Commission Appellate Adjudicatory File Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 1
Susan L. Uttal, Esq. ** Mary Olson **
Antonio Fernandez, Esq. ** Director of the Southeast Office Brooke G. Smith, Esq. ** Nuclear Information and Resource Office of the General Counsel Service U.S. Nuclear Regulatory Commission 729 Haywood Road, I-A Washington, DC 20555 P.O. Box 7586 (e-mail: slu(nrc.gov) Asheville, NC 28802 (e-mail: axf2nrc.gov) (e-mail: nirs.se(mindspring.com)
(e-mail: bgsgnrc.gov)
Janet Marsh Zeller ** Paul Gunter **
Executive Director Nuclear Information and Resource Blue Ridge Environmental Defense League Service P.O. Box 88 1424 16th Street, NW Glendale Springs, NC 28629 Washington, DC 20026 (e-mail: BREDL(skybest.com) (e-mail: pgunter(nirs.org) .
Donald J. Moniak Diane Curran **
Blue Ridge Environmental Defense League Harmon, Curran, Spielberg &
P.O. Box 3487 Eisenberg, LLP Aiken, SC 29802-3487 1726 M Street, N.W.
Suite 600 Washington, DC 20036 (e-mail: dcurran(harmoncurran.com)
David A. Repka Counsel for Duke Energy Corporation 2
303633.1