ML092151149
| ML092151149 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 08/03/2009 |
| From: | Matthews J Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-003-LT-2, 50-247-LT-2, 50-286-LT-2, 72-51-LT, IE License Transfer 2, Indian Point License Transfer -2, RAS 16158 | |
| Download: ML092151149 (14) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
ENTERGY NUCLEAR OPERATIONS, INC.,
) Docket Nos. 50-003-LT-2 ENTERGY NUCLEAR INDIAN POINT 2, LLC, and )
50-247-LT-2, and ENTERGY NUCLEAR INDIAN POINT 3, LLC.
)
50-286-LT-2.
)
72-51-LT (Indian Point Nuclear Generating Unit Nos. 1, 2, and 3) )
)
)
ENTERGY NUCLEAR OPERATIONS, INC.S BRIEF REGARDING HEARING RIGHTS ASSOCIATED WITH EXTENSION OF ORDER APPROVING LICENSE TRANSFER I.
INTRODUCTION On July 24, 2009, the Commission asked Entergy Nuclear Operations, Inc. (ENO) and the NRC Staff to respond to an email request for a hearing submitted by Mr. Sherwood Martinelli, and to address whether an order extending the effectiveness of a transfer approval order is the equivalent of a license amendment or change in licensing condition requiring an opportunity for interested parties to request a hearing. Order, Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Unit Nos. 1, 2, and 3), Docket No.50-003 (July 24, 2009),
available at ADAMS No. ML092050796. As explained below, an order approving an extension of the effectiveness of a transfer approval order is merely a ministerial matter, particularly where the original order contemplated that it could be extended for good cause shown and where there are no material changes to conditions under which the underlying authorized activity could be implemented.
2 The extension of an order is not the equivalent of a license amendment or a change in a license condition, because there is no change in the authorized activity under the license or in the conditions under which that activity (here, a license transfer) is authorized. Thus, a request for an order extending the effectiveness of an order approving a transfer of an NRC license does not trigger a hearing right under Section 189 of the Atomic Energy Act, as amended (AEA).
II.
BACKGROUND By application dated July 30, 2007, supplemented by letters dated October 31, and December 5, 2007, and January 24, March 17, April 22, and May 2, 2008, ENO, acting on behalf of itself and Entergy Nuclear Generation Company, Entergy Nuclear Fitzpatrick, LLC, Entergy Nuclear Vermont Yankee, LLC, Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Palisades, LLC, requested that the NRC consent to the proposed indirect transfers of control of licenses for the:
- Palisades Nuclear Plant
- James A. Fitzpatrick Nuclear Power Plant
- Pilgrim Nuclear Power Station
- Vermont Yankee Nuclear Power Station
- Indian Point Nuclear Generating Units 1, 2 and 3
- Big Rock Point Application for Order Approving Indirect Transfer of Control of Licenses (July 30, 2007) available at ADAMS No. ML072220219. ENO requested the transfers in connection with a proposed corporate restructuring and establishment of Enexus Energy Corporation. Id.
On January 16, 2008, the NRC issued six notices in the Federal Register offering opportunities for interested persons to request a hearing. Notice(s) of Consideration of Approval of Application Regarding Proposed Corporate Restructuring and Opportunity for Hearing,73 Fed. Reg. 2948-58 (Jan. 16, 2008). Petitions to intervene were filed by a number of groups and an individual who requested hearings. The Commission found that the petitioners
3 did not have standing and terminated the proceeding. Entergy Nuclear Operations, Inc. and Entergy Nuclear Palisades, LLC (Big Rock Point Plant, et al.), CLI-08-19, 68 NRC 251 (2008)
(Entergy Nuclear Operations.).
The NRC approved the license transfers in seven Orders dated July 28, 2008 that were published in the Federal Register on August 1 and August 4, 2008.1 Each of the Orders contains language providing that if the transaction is not completed within one year from the date of this Order, this Order shall become null and void, provided, however, upon written application and good cause shown, such date may be extended by Order. E.g., Order Approving Indirect Transfer of Facility Operating License, Entergy Nuclear Operations, Inc. (Big Rock Point),
Docket Nos. 50-155 and 72-43 (July 28, 2008). 73 Fed. Reg. 45,086.
On May 15, 2009, as supplemented on May 29, 2009, ENO requested that the effectiveness of the seven Orders approving the requested transfers be extended by six months to January 28, 2010.2 Letter from Michael R. Kansler, Entergy, to NRC Document Control Room (May 15, 2009) available at ADAMS No. ML091420271. In its request, ENO affirmed that there had been no material change to the conditions under which the NRC issued the original Orders, and that the facts continued to support those Orders. Id. at 2. Specifically, ENO affirmed as follows:
1 Order(s) Approving Indirect Transfer of Facility Operating License, 73 Fed. Reg. 45,083 (Aug. 1, 2008);
73 Fed. Reg. 45,085 (Aug. 1, 2008); 73 Fed. Reg. 45,086 (Aug. 1, 2008); 73 Fed. Reg. 45,088 (Aug. 1, 2008);
73 Fed. Reg. 45,252 (Aug. 4, 2008); 73 Fed. Reg. 45,253 (Aug. 4, 2008); 73 Fed. Reg. 45,255 (Aug. 4, 2008);
2 In the subsequent letter dated May 29, 2009, ENO clarified that it intended to request that the effectiveness of the Orders be extended to January 28, 2010. Letter from Michael R. Kansler, Entergy, to NRC Document Control Room (May 29, 2009) available at ADAMS No. ML091600059.
4 The technical qualifications of the new organization and other bases for approving the transfers remain intact, and the various inter-company contractual arrangements... as described in the application and supplemental information, remain valid and fully support the NRC Staffs findings regarding the financial qualifications of the Applicants.
Id.
ENO also provided good cause to extend the approvals. Id. Specifically, ENO described how, despite its diligent efforts, additional time would be required to complete the approval processes with the New York State Public Service Commission and the State of Vermont Public Service Board, both of which must be obtained prior to closing the transactions. Id.
Furthermore, approval from New York and Vermont is a prerequisite for finalizing the financing arrangements required to close the transactions. Id. ENO did not anticipate that it would get the requisite state approvals and finalize the requisite financing within the one year period ending July 28, 2009, as provided for in the July 28, 2008 order. Id.
On June 3, 2009, in response to a newspaper article describing ENOs request for an extension of the effectiveness of the Order, Mr. Martinelli submitted an e-mail to the Office of the Secretary and the Chairman of the NRC.3 Order (July 24, 2009) (unpublished), available at ADAMS No. ML092050796 (July 24 Order). In the e-mail, Mr. Martinelli stated that he believes the extension request should be denied with regard to Indian Point Nuclear Generating Unit Numbers 1, 2, and 3. Id. at 2. In addition, if the NRC decides to grant the request, he requested a formal hearing on ENOs request. Id.
On July 24, 2009, based on ENOs request, the NRC Staff approved an extension of the effectiveness of the Order. The Order states that the approval is based on ENOs representation that there has been no material change in the technical and financial qualifications presented in 3
Mr. Martinellis e-mail was not, however, served on ENO. July 24 Order at 2.
5 the original application, and because ENO demonstrated good cause for needing the extension.
Order Extending the Effectiveness of the Approval of the Indirect Transfer of Facility Operating Licenses at 4-5 (July 24, 2009) available at ADAMS No. ML091520154. 73 Fed. Reg. 38,476 (Aug. 3, 2009).
Also on July 24, 2009, in response to Mr. Martinellis e-mail, the Secretary of the Commission issued an Order asking ENO and the NRC Staff to address whether the proposed extension (i.e., the extension of effectiveness of the NRCs approval of the indirect transfer) is effectively a license amendment or change in a license condition requiring the opportunity for interested persons to request a hearing. July 24 Order at 2.
III.
ARGUMENT The Commission asked ENO and the NRC Staff to brief whether an order extending the effectiveness of a license transfer approval order is the equivalent of a license amendment.
Section 189a. of the AEA grants hearing rights to persons whose interest may be affected by [a]
proceeding for the granting, suspending, revoking, or amending of any license or construction permit. 42 U.S.C. § 2239(a)(1)(A). The Commission has held that Section 189a. deliberately limit[s] hearing rights to those particular types of administrative actions that [are] listed in that section. Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-00-5, 51 NRC 90, 94-95 (2000) (citing United States Dept of Energy (Clinch River Breeder Reactor Plant), CLI-82-23, 16 NRC 412 (1982)); see also Zion, CLI-00-5, 51 NRC at 96 (reviewing the legislative history of Section 189a. and stating that [t]he upshot of this history is that Congress intentionally limited the opportunity for a hearing to certain designated agency actions).
Consequently, [i]f the form of Commission action does not fall within the limited categories enumerated in Section 189a, the Commission need not grant a hearing. Cleveland Elec.
Illuminating Co. (Perry Nuclear Power Plant, unit 1), CLI-96-13, 44 NRC 315, 326 (citing San
6 Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1315 (D.C. Cir. 1984), rehg on other grounds, 789 F.2d 26, cert denied, 479 U.S. 923 (1986)).4 Thus, unless an order extending the effectiveness of a transfer approval order is the equivalent of a license amendment, there is no hearing right under the AEA for interested parties.5 To determine whether a particular NRC authorization is a license amendment, courts have consistently asked the following question: did the challenged approval grant the licensee any greater operating authority, or otherwise alter the original terms of the license? If so, hearing rights likely were implicated. Perry, CLI-96-13, 44 NRC at 326 (citing as examples Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284, 295 (1st Cir. 1995) (CAN))6. In other words, the key consideration... is whether the agency action supplements the existing operating authority prescribed in the license. Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Units 2 and 3), LBP-01-10, 53 NRC 273, 308-09 (2001) (citations omitted). As discussed below, an order extending the effectiveness of an order approving a license transfer is not the equivalent of a license amendment, which means that such an extension does not trigger a hearing right under the AEA.
4 The federal courts also have consistently construed Section 189a.(1)(A) and its legislative history to strictly limit hearing rights to the agency actions enumerated in that provision. See, e.g., Mass. v. NRC, 878 F.2d 1516, 1522 (1st Cir. 1989) ([W]hat legislative history there exists suggests that Congress intended the provisions of [Section 189a.] to be construed quite literally. If a particular form of Commission action does not fall within one the eight categories of actions set forth in the section, no hearing need be granted by the Commission.); San Luis Obispo Mothers for Peace, 751 F.2d at 1314 (lifting of license suspension is not an amendment to the license).
5 The Commission has not asked ENO and the NRC Staff to address whether an order extending the effectiveness of a license transfer approval order is the equivalent of granting, suspending, or revoking a licensethe other types of NRC actions triggering a hearing right under the AEA.
6 In CAN, the Court found that the NRC made a de facto amendment to a license when the Commission changed its policy in a way that allowed the licensee to engage in [r]egulated conduct which is neither delineated, nor reasonably encompassed within delineated categories of authorized conduct allowed by the license. CAN, 59 F.3d at 294. Because it was a de facto license amendment, a hearing right was triggered under the AEA.
Id. at 294-95.
7 A.
An approval to extend the effectiveness of an order approving a transfer is not a license amendment.
Because it does not give the licensee greater operating authority or otherwise alter the terms of the license, an order extending the effectiveness of an order approving a transfer is not a license amendment. In Perry, the Commission dealt with the issue of whether a change to the material specimen withdrawal schedule should be considered a license amendment. See Perry, CLI-96-13, 44 NRC 315. The Intervenors argued that any change to the plants material specimen withdrawal schedule would be a de facto license amendment. Id. at 319. Although the licensee is required to submit all schedule changes to the Staff for approval, the Commission held that any changes to the material specimen withdrawal schedule that conform to the ASTM
[American Society for Testing and Materials] standard referenced in Appendix H will not alter the Perry license, and will not permit the Licensee to operate in any greater capacity than the original license prescribes. Id. at 327-28. Thus, a scheduling change is not a license amendment, provided that it does not expand the scope of regulated activities that a licensee is authorized to undertake. Extension of the July 28, 2008 Orders similarly does not change the scope or terms of the authorized activity. In addition, the Commission in Perry found that the terms of the Perry license... already provide foralready authorizesome possible schedule changes. Id. at 328. This is consistent with the present case, where each of the Commissions July 28, 2008 Orders explicitly states that it is subject to extension.
B.
The NRC Staff routinely approves requests to extend the effectiveness of license transfer approval orders without providing an opportunity to request a hearing.
In practice, the NRC Staff has not provided an opportunity to request a hearing regarding an order to extend the effectiveness of an existing transfer approval order, because the scheduling change is not the equivalent of a license amendment and does not involve any change
8 to a license condition. Typically, the NRC staff also confirms that there is no material change to the conditions underlying the original approval that might render extension of approval unjustified. In PSEG Nuclear LLC, for example, PSEG, acting on behalf of itself and another applicant, requested, in a supplemental application dated October 10, 2000, that the effectiveness of the NRC Order approving the proposed transfers be extended, and that the Order be modified to allow the transfers to occur in two phases rather than one. On December 19, 2000, the NRC approved the request for an extension of the effectiveness of the Order approving the transfer.7 On December 21, 2000, in a separate Order, the NRC approved allowing the transfers to occur in two phases instead of one. 65 Fed. Reg. 82,406 (Dec. 28, 2000). The December 21, 2000 Order further found that:
[T]he supplemental application [dated October 10, 2000] related only to schedular matters and did not involve any changes to the underlying basis for the transfer approval Order Therefore, the supplemental application was within the scope of the February 18, 2000, Federal Register notice and did not require renoticing or a new opportunity for a hearing.
Id.
This result is also supported by a number of other NRC orders extending approvals of applications to transfer licenses. See Wisconsin Public Service Corp.,
et al. (Kewaunee Nuclear Power Plant, Unit No. 1), 70 Fed. Reg. 33,537, 33,537 (June 8, 2005) (extending the effectiveness of an approval, and observing that no conditions under which the NRC order was granted have been significantly changed or detrimentally affected since the order was issued); Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), Order Extending the Effectiveness of the 7
PSEG Nuclear LLC and Atlantic City Electric Company (Hope Creek Generating Station), Order Extending the Effectiveness of the Approval of the Transfer of License and Conforming Amendment, 65 Fed. Reg.
81,550 (Dec. 26, 2000).
9 Approval of the Indirect Transfer of Licenses (Merger of Central and South West Corporation and American Electric Power Company), 64 Fed. Reg. 70,071 (Dec.
15, 1999) (extending effectiveness of the order approving the transfer where the applicants reviewed the original transfer application and the information relied on by the NRC, as reflected in the Safety Evaluation Report, and found no material change in the information); Baltimore Gas Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2, and the Independent Spent Fuel Storage Installation),
Order Extending the Effectiveness of the Approval of the Transfer of Licenses, 62 Fed. Reg. 67,667 (Dec. 29, 1997) (extending the effectiveness of the order approving the transfer where a pending lawsuit and request for rehearing did not change information on which approval was based).
C.
ENOs request for an extension of the effectiveness of the orders approving the license transfers does not trigger a hearing right under the AEA.
In this case, an extension of the effectiveness of the July 28, 2008 Orders is not a license amendment, or even a de facto license amendment, because it does not expand the regulated activity in which ENO can engage or the material terms under which the authorized license transfer can take place. In the orders, the NRC approved ENOs request to transfer certain licenses, but stated that the transfers must occur within one year of the date of the orders, unless good cause was shown to extend this period. Thus, like in Perry, the original order, by its own terms, contemplated that the license transfer authorization might be extended beyond the initial one year term. ENO provided such good cause to extend the effectiveness of the orders, because of delays in obtaining approvals from state regulatory bodies.
Moreover, when the NRC approved the schedule change (i.e., extended the effectiveness), it cited and relied upon ENOs affirmation that there were no material changes to
10 the submitted technical or financial qualifications, which are the basis for authorizing the license transfers. In other words, because there have been no material changes to the conditions underlying the original approval, the approval can continue in effect without fear that the conditions to the approval might need to be revisited due to some intervening change in circumstance. The extension of the effectiveness of those orders only allows ENO to conduct activity for which it already had approval, i.e., a corporate restructuring involving indirect transfers of control of certain licenses under the circumstances previously reviewed by the NRC and pursuant to the substantive conditions previously imposed. The extension does not grant ENO any type of expanded authority that it did not already have. Therefore, because ENO only sought a necessary schedule change or extension and did not seek any expanded authority, the request for an extension of effectiveness is not the equivalent of a license amendment or change in license condition and does not trigger a hearing right under the AEA.
D.
If the Commission finds that there is a hearing right, Mr. Martinelli has not met the requirements set forth in Section 2.309 to be admitted as a party.
If the Commission finds that there is a hearing right in this case, Mr. Martinelli must show that he has a right to intervene as a party by filing a petition to intervene that meets the requirements of 10 C.F.R. § 2.309(a). In lieu of a petition to intervene, Mr. Martinelli has submitted an e-mail claiming that he has a right to be a party to any proceeding regarding this matter. Mr. Martinellis petition to intervene is required to show that he is entitled to standing in this proceeding and to proffer at least one admissible contention. Id. As explained below, Mr. Martinelli has failed to demonstrate that he has standing and has failed to proffer any contentions, let alone an admissible one. Thus, even if the Commission finds that a hearing right is triggered by the request to extend the effectiveness of the transfer approval orders, Mr. Martinellis petition to intervene (i.e., e-mail) must be denied.
11 Mr. Martinelli has not demonstrated that he has standing. In his e-mail, Mr. Martinelli makes one statement that could be read to support a claim of standingthat he lives within three miles of the Indian Point nuclear power plant. In an indirect transfer case like this one, however, living or working near or around a reactor is not sufficient to demonstrate standing. Entergy Nuclear Operations, CLI-08-19, 68 NRC at 260-61. To demonstrate standing, Mr. Martinelli must show that his interest may be affected in [this] proceeding. Id. at 258. In that regard, Mr.
Martinelli must demonstrate: (1) an actual or threatened, concrete and particularized injury that is (2) fairly traceable to the challenged action, (3) likely to be redressed by a favorable decision, and (4) arguably lies within the zone of interests protected by the AEA and the National Environmental Policy Act. Id. Mr. Martinelli has not shown how extending the effectiveness of the orders approving the indirect transfers will cause him any injury. As a result, he has not demonstrated that he has standing in this proceeding.
In addition, Mr. Martinelli has not proffered an admissible contention. For a contention to be admissible, it must meet the six standards set forth in Section 2.309(f). Here, a discussion about the specifics of contention admissibility is not required because, as even the Commission recognized, Mr. Martinelli did not submit any proposed contentions. July 24 Order at 2. As such, even if the Commission finds that there is a hearing right in connection with a request to extend the effectiveness of an order, Mr. Martinelli has not made the showing necessary to be a party to a proceeding.
12 IV.
CONCLUSION For the foregoing reasons, the Commission should find that an order extending the effectiveness of orders approving license transfers is not the equivalent of a license amendment or change in license condition. Interested parties are not entitled to any opportunity to request a hearing under the AEA.
Respectfully submitted, Signed (electronically) by8
/s/ Paul M. Bessette on behalf of John E. Matthews John E. Matthews, Esq.
Martin J. ONeill, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, DC 20004 Phone: (202) 739-5524 E-mail: jmatthews@ morganlewis.com E-mail: martin.oneill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.
Dated in Washington, D.C.
this 3rd day of August 2009 8
Messrs. Matthews and ONeill have entered appearances in the above-captioned license transfer proceeding.
However, the Commissions Order has been served on the Electronic Information Exchange docket for the pending license renewal proceeding. Mr. Matthews does not have access to that docket. Mr. ONeill does have access, because he coincidentally has entered an appearance in the license renewal proceeding. However, Mr. ONeill is unavailable due to an unplanned event beyond his control.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
ENTERGY NUCLEAR OPERATIONS, INC.,
) Docket Nos. 50-003-LT-2 ENTERGY NUCLEAR INDIAN POINT 2, LLC, and )
50-247-LT-2, and ENTERGY NUCLEAR INDIAN POINT 3, LLC.
)
50-286-LT-2.
)
72-51-LT (Indian Point Nuclear Generating Unit Nos. 1, 2, and 3) )
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the Entergy Nuclear Operations, Inc.s Brief Regarding Hearing Rights Associated with Extension of Order Approving License Transfer, dated August 3, 2009, was served this 3rd day of August, 2009 upon the persons listed below, by the Electronic Information Exchange, and by electronic mail to persons marked with an asterisk.
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 (E-mail: ocaamail@nrc.gov)
U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop O-16C1 Washington, DC 20555-0001 (E-mail: hearingdocket@nrc.gov)
U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15D21 Washington, DC 20555-0001 (E-mail: OGCMailCenter@nrc.gov)
Beth N. Mizuno, Esq.
David E. Roth, Esq.
Brian G. Harris, Esq.
Andrea Z. Jones, Esq.
Office of the General Counsel Mail Stop: O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: bnm1@nrc.gov)
(E-mail: david.roth@nrc.gov)
(E-mail: brian.harris@nrc.gov)
(E-mail: andrea.jones@nrc.gov)
14 William C. Dennis*
Assistant General Counsel Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 (E-mail: wdennis@entergy.com)
Sherwood Martenelli*
351 Dyckman Street Peekskill, NY 10566 (E-mail: SMartinelliGHS@aol.com)
Signed (electronically) by
/s/ Paul M. Bessette John E. Matthews, Esq.
Martin J. ONeill, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, DC 20004 Phone: (202) 739-5524 E-mail: jmatthews@ morganlewis.com E-mail: martin.oneill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.
Dated in Washington, D.C.
this 3rd day of August 2009