ML041310442
| ML041310442 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 05/06/2004 |
| From: | Anthony Baratta, Elleman T, Austin Young Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, LBP-04-07, RAS 7725 | |
| Download: ML041310442 (8) | |
Text
1This proceeding involves Dukes February 2003 application to amend the operating license for its Catawba Nuclear Station to allow the use of four mixed oxide (MOX) lead test assemblies (LTAs) at the station. By Memorandum and Order dated March 5, 2003, Petitioner Blue Ridge Environmental Defense League (BREDL) was admitted as a party in the proceeding, after having filed a petition to intervene and request for hearing in response to a July 2003 Federal Register notice concerning this application. See LBP-04-04, 59 NRC ___ (2004); 68 Fed. Reg. 44,107 (July 25, 2003). Additional background on this proceeding is provided in LBP-04-04, as well as in an April 12, 2004, Memorandum and Order (Ruling on Security-Related Contentions), which was, when issued, sealed as Safeguards Information, but a redacted version of which will be published in the near future.
LBP-04-07 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RAS 7725 DOCKETED 05/06/04 ATOMIC SAFETY AND LICENSING BOARD SERVED 05/06/04 Before Administrative Judges:
Ann Marshall Young, Chair Anthony J. Baratta Thomas S. Elleman In the Matter of DUKE ENERGY CORPORA TION (Catawba Nuclear Station, Units 1 and 2)
Docket Nos. 50-413-OLA, 50-414-OLA ASLBP No. 03-815-03-OLA May 6, 2004 MEMORANDUM and ORDER (Ruling on Motion to Dismiss Non-Security-Related Contention III)
Duke Energy Corporation (Duke) has filed a motion in this proceeding,1 asking the Licensing Board to dismiss Contention III, admitted by the Board in LBP-04-04, based upon grounds of mootness. [Duke]s Motion to Dismiss Contention III (Mar. 15, 2004) [hereinafter Duke Motion]; see LBP-04-04, 59 NRC ___ (2004). Intervenor Blue Ridge Environmental Defense League (BREDL) opposes Dukes motion; the NRC Staff states it does not oppose the motion. [BREDL]s Opposition to [Duke]s Motion to Dismiss Contention III (Mar. 25, 2004)
[hereinafter BREDL Opposition]; [NRC] Staffs Response to [Duke]s Motion to Dismiss Contention III (Mar. 30, 2004) [hereinafter Staff Response]. For the reasons stated herein, we grant Dukes motion and dismiss Contention III.
In LBP-04-04, the Board denied in part and admitted in part BREDLs Contention 5, which asserted that Dukes Environmental Report (ER) was deficient because it fails to consider alternative nuclear power plants for testing and batch MOX fuel use, other than Catawba and McGuire. See LBP-04-04, slip op. at 48, 50-51. We found that we had no jurisdiction to consider in this proceeding alternatives not within the control of Duke, but admitted the contention to the extent of requiring analysis of the alternative of using the Oconee plant, at least to the extent required for a brief discussion under 10 C.F.R. § 51.30(a). Id.,
slip op. at 50-51. We renumbered and reframed the contention as follows:
Contention III: The Environmental Report is deficient because it fails to consider Oconee as an alternative for the MOX LTAs.
Id. at 51. We noted that, [w]ithin this context, we will permit BREDL and the other parties to present evidence relating to the comparative safety, practicability, and appropriateness of using the MOX lead test assemblies at Catawba and Oconee. Id.
In support of its motion, Duke argues that it has now provided the brief discussion under 10 C.F.R. § 51.30(a), in a March 1, 2004, response to a Staff Request for Additional Information (RAI). Duke Motion at 1-2. In support of its argument Duke cites case law and Council on Environmental Quality regulations for the principles that a NEPA alternatives analysis is, among other things, governed by a rule of reason; does not require consideration of alternatives that are deemed only remote and speculative possibilities; and requires discussion only of alternatives that are feasible. Id. at 3, 4. Duke argues that it cannot be required to address comparative safety or environmental consequences for alternatives that are not feasible and would not serve the purpose of the proposal at issue. Id. at 3. Characterizing the contention as a contention of omission, Duke asserts that it has, in its March 1 RAI response, explained the basis for concluding that Oconee is not available or appropriate for a MOX fuel lead assembly program, and thereby addressed any omission in its ER, thus rendering moot Contention III. Id. at 4.
The NRC Staff agrees with Dukes assertion that Contention III is moot because the answer to the Staffs RAI provided a discussion of Oconee sufficient to meet the requirements of [LBP-04-04], and 10 C.F.R. § 51.30(a). Staff Response at 1-2.
In opposition, BREDL argues that Dukes RAI response is fundamentally inadequate to satisfy the requirement for consideration of Oconee as an alternative, because its analysis is based on the assumption that batch use of plutonium fuel will be carried out only at Catawba.
BREDL Opposition at 1. Having made this assumption, BREDL states, the RAI response reaches the unsurprising, indeed inevitable, conclusion that it is appropriate to test the fuel at the same plant where ultimately it will be used in batch quantities. Id. at 1-2. BREDL asserts that Duke completely misses the point of the contention at issue, which, BREDL explains, is that:
in light of new information regarding the hazards of operating nuclear plants with ice condenser containments, it is appropriate to consider batch use of MOX fuel at another nuclear power plant under Dukes control, i.e., Oconee, as an alternative for mitigating or avoiding the impacts of accidents.
Id. at 2. It is therefore inappropriate, BREDL argues, for Duke to limit its factual analysis of the suitability of Oconee as an alternative to the question of whether Oconee would be an appropriate location to test fuel that ultimately will be used at Catawba. Id. Dukes analysis should have addressed, according to BREDL, in addition, the question of whether Oconee would be a more suitable alternative for batch use of plutonium fuel. Id.
Although its argument has some logic, BREDLs analysis is flawed on two points. First, Dukes RAI response does, contrary to BREDLs suggestion, include at least the bare statement that Catawba is very similar in design to European reactors that have amassed decades of experience using reactor grade MOX fuel. Letter from H.B. Barron to NRC (March 1, 2004), Attachment 1, MOX Fuel Lead Assembly License Amendment Request, Environmental Review - Response to NRC Request for Additional Information [hereinafter Duke RAI response], at 1-2. To be sure, BREDL is correct that Dukes RAI response does rely prominently on the argument that using the lead test assemblies at Oconee is inappropriate because any future batch use is planned to be at Catawba and McGuire. But this is not Dukes exclusive response to the RAI. It does address, albeit minimally, through the above-quoted statement, the question of whether Oconee would be a more suitable alternative for batch use of plutonium fuel. In addition, its response includes a statement that Duke knows of no technical reason that MOX fuel could not be used safely at Oconee. Id. at 2.
Second, under the Commissions contention of omission doctrine, BREDL should have filed an amended contention, in which it could have made its arguments that Dukes RAI response is inadequate in its analysis of the question of whether Oconee would be a more suitable alternative for batch use of plutonium fuel. Indeed, in a March 16 telephone conference, BREDL was counseled that the contention in question does generally fit the Commissions approach to contentions of omission, so it might be best to just move forward with filing a new contention by March 30. Tr. 1230. No such amended contention has, however, been filed.
The Commission discussed its contention of omission doctrine in another proceeding in which Duke, BREDL, and the Staff were also involved, that on Dukes license renewal application. See Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373 (2002). In CLI-02-28, the Commission considered whether a BREDL contention challenging Dukes failure to address a Sandia National Laboratories study in its environmental report was rendered moot by Dukes subsequent revision of its analysis to acknowledge the Sandia study. Id. at 378-81. In its decision the Commission noted:
There is, in short, a difference between contentions that merely allege an omission of information and those that challenge substantively and specifically how particular information has been discussed in a license application. Where a contention alleges the omission of particular information or an issue from an application, and the information is later supplied by the applicant or considered by the Staff in a draft [environmental impact statement], the contention is moot.
Id. at 382-83. Because the Commission found the intervenors contention to be one of omission, rather than one that substantively challenged the specific deficiencies in the way the study was used, it concluded that the appropriate means for the intervenors new challenge was an amended contention. Id. at 383, 382.
In the instant proceeding, BREDLs original contention regarding alternatives challenged Dukes failure to discuss other plants as alternatives to Catawba in its ER, rather than the substance of any then-existing Duke or Staff evaluation of such alternatives.
We admitted the contention to the extent that it encompassed the argument that Dukes environmental report fail[ed] to consider Oconee, a plant under Dukes control, as an alternative for the MOX LTAs, having found that we did not have jurisdiction to consider in this proceeding other alternatives not under Dukes control. LBP-04-04, 59 NRC ___ (2004), slip op. at 50-51. Therefore, under the contention of omission doctrine, BREDL should have, following Dukes March 1 RAI response, filed an amended contention if it wished to challenge the merits and adequacy of Dukes assessment of the technical feasibility, practicality, and comparative safety of Oconee as an alternative site for the MOX LTAs. Given that Dukes RAI response does address the alleged failure, or omission, in question even if minimally, particularly with regard to the safety issues asserted by BREDL we must under this doctrine grant Dukes motion to dismiss Contention III.
We make this ruling in full recognition of the somewhat facile aspect of Dukes RAI response rationale for excluding Oconee as a technically feasible or practical alternative for MOX LTA irradiation, on the basis that Oconee was neither proposed to nor selected by the 2This is in keeping with Dukes consistently maintained position herein that there is no relationship between this proceeding and any proceeding relating to future batch use of MOX and thus no issues relating to the latter should be considered in this proceeding, thereby leaving open for argument in any subsequent batch use proceeding any and all issues, including issues under NEPA.
See, e.g., Duke Motion at 2 n.3.
3Copies of this Memorandum and Order were sent this date by Internet e-mail or facsimile transmission, if available, to all participants or counsel for participants.
Department of Energy as a facility to irradiate batch quantities of MOX fuel. See Duke RAI Response at 1-2. We note in this regard, however, that should Duke submit a license amendment request seeking approval of plans to use batch quantity MOX fuel in Catawba and/or McGuire, a petitioner would have the right to submit a contention challenging any failure to address, or alleged inadequacy in addressing, the technical feasibility, practicality, and comparative safety of Oconee as an alternative site for proposed batch use of MOX fuel.2 And, assuming any such contention meets the contention admissibility criteria, the circumstance that the LTAs were tested in the Catawba plant should not be considered a valid ground for excluding such a contention.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Ann Marshall Young, Chair ADMINISTRATIVE JUDGE
/RA/
Anthony J. Baratta ADMINISTRATIVE JUDGE
/RA/
Thomas S. Elleman ADMINISTRATIVE JUDGE Rockville, Maryland May 6, 20043
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
DUKE ENERGY CORPORATION
)
Docket Nos. 50-413-OLA
)
50-414-OLA (Catawba Nuclear Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (RULING ON MOTION TO DISMISS NON-SECURITY RELATED CONTENTION III) (LBP-04-07) have been served upon the following persons by deposit in the U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Ann Marshall Young, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Anthony J. Baratta Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Thomas S. Elleman Atomic Safety and Licensing Board Panel 5207 Creedmoor Rd., #101 Raleigh, NC 27612 Susan L. Uttal, Esq.
Antonio Fernández, Esq.
Margaret J. Bupp, Esq.
Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Henry B. Barron, Executive Vice President Nuclear Operations Duke Energy Corporation 526 South Church Street P.O. Box 1006 Charlotte, NC 28201-1006 Mary Olson Director of the Southeast Office Nuclear Information and Resource Service 729 Haywood Road, 1-A P.O. Box 7586 Asheville, NC 28802 Diane Curran, Esq.
Harmon, Curran, Spielberg
& Eisenberg, L.L.P.
1726 M Street, NW, Suite 600 Washington, DC 20036
2 Docket Nos. 50-413-OLA and 50-414-OLA LB MEMORANDUM AND ORDER (RULING ON MOTION TO DISMISS NON-SECURITY RELATED CONTENTION III) (LBP-04-07)
David A. Repka, Esq.
Anne W. Cottingham, Esq.
Mark J. Wetterhahn, Esq.
Winston & Strawn LLP 1400 L Street, NW Washington, DC 20005 Lisa F. Vaughn, Esq.
Duke Energy Corporation Mail Code - PB05E 422 South Church Street P.O. Box 1244 Charlotte, NC 28201-1244 Paul Gunter Nuclear Information and Resource Service 1424 16th St., NW, Suite 404 Washington, DC 20036
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 6th day of May 2004