ML102590679

NRC Staffs Answer to Beyond Nuclears Request for Ninety-Day Extension

ML102590679
Person / Time
Site:	Seabrook
Issue date:	09/16/2010
From:	Mary Spencer NRC/OGC
To:	NRC/SECY
SECY RAS
References
50-443-LR, License Renewal 6, RAS 18654
Download: ML102590679 (11)

Text

September 16, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY TO THE COMMISSION In the Matter of

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Docket No. 50-443 FPL Energy Seabrook, LLC

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(Seabrook Station, Unit 1)

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NRC STAFFS ANSWER TO BEYOND NUCLEARS REQUEST FOR NINETY-DAY EXTENSION INTRODUCTION On September 15, 2010, Beyond Nuclear filed a request that the New Hampshire Attorney Generals request for an extension of time be granted and applied to Beyond Nuclear and any other potential party as a matter of uniformity.1 Each request for an extension must be judged on the demonstrated good cause of the requestor,2 and not simply because another requestor has sought or been granted its own extension of time to respond. Beyond Nuclear has not provided its own special circumstances that would amount to good cause for an extension for it. Therefore, Beyond Nuclears request should be denied.

1 Beyond Nuclear Request for Extension of Time to Petition for Hearing in the Matter of FPL Energy Seabrook, LLC License Renewal Application (Sept. 14, 2010) (Beyond Nuclear Extension Request). Beyond Nuclear also filed Beyond Nuclear Reply in Support of the New Hampshire Attorney General Request for Ninety (90) Day Extension of Time to File Petition for Leave to Intervene ( Sept. 14, 2010) in response to the Staffs September 14, 2010, Answer to the State of New Hampshires Request.

See NRC Staffs Answer to New Hampshire Attorney Generals Request for Ninety-Day Extension (Staff Answer). Beyond Nuclears pleadings were filed via the NRCs electronic filing system on September 15, 2010. However, both documents are dated September 14, 2010.

2 See 10 C.F.R. § 2.307(a). This regulation also allows for an extension by stipulation approved by the Commission or the presiding officer.

BACKGROUND On June 16, 2010, the NRC published a notice in the Federal Register stating that the license renewal application for Seabrook Station was available on the Nuclear Regulatory Commissions (NRC) public website.3 On July 21, 2010, the Staff published a notice in the Federal Register stating that the license renewal application was acceptable for docketing and establishing September 20, 2010, as the deadline for filing Hearing Requests.4 On August 18, 2010, six organizations, including Beyond Nuclear, filed a joint petition for rulemaking (Rulemaking Petition) under 10 C.F.R. § 2.802 requesting a rulemaking to amend 10 C.F.R.

§ 54.17 such that license renewal applications may not be submitted earlier than 10 years before expiration of the existing license and that the Commission suspend all license renewal reviews pending resolution of the Rulemaking Petition.5 The Commission has not yet docketed or otherwise taken any action on the Rulemaking Petition.6 3 See NextEra Energy Seabrook, LLC; Notice of Receipt and Availability of Application for Renewal of Seabrook Station, Unit 1 Facility Operating License No. NPF-86 for an Additional 20-Year Period, 75 Fed. Reg. 34180 (June 16, 2010).

4 See Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License No. NPF-86 for an Additional 20-Year Period; NextEra Energy Seabrook, LLC; Seabrook Station, Unit 1, 75 Fed. Reg. 42462 (July 21, 2010).

5 See Earth Day Commitment/Friends of the Coast-Opposing Nuclear Pollution, Beyond Nuclear, New England Coalition on Nuclear Pollution, Seacoast Anti-Pollution League, Pilgrim Watch, C-10 Research & Education Foundation Petition for Rulemaking Pursuant to 10 CFR § 2.802 Seeking to Amend 10 CFR § 54.17(c) (Aug. 17, 2010) (ADAMS Accession No. ML102380379) (Rulemaking Petition). While Beyond Nuclear is a petitioner for rulemaking, it is not a party to a proceeding for purposes of invoking 10 C.F.R. § 2.802(d). Section 2.802(d) allows a rulemaking petitioner that is also a party to a proceeding to request suspension of all or part of a proceeding pending disposition of the petition for rulemaking. See 10 C.F.R. § 2.802(d). This provision is, however, limited to parties and interested states. See Entergy Nuclear Vermont Yankee (Vermont Yankee Nuclear Power Station), CLI-07-13, 65 NRC 211, 214-15 (2007). Party status requires a showing of standing and proffering of at least one admissible contention. See id. See also infra note 6.

6 As noted in the Staffs Answer, it is speculative to assume that such a rule would be applied (continued...)

On September 10, 2010, New Hampshire requested a 90-day extension of time from the later of 90 days from September 19, 2010, or from the date on which a decision on the Rulemaking Petition becomes final.7 On September 14, 2010, the Staff filed an Answer to New Hampshires Request. The Staff argued that New Hampshire had not demonstrated good cause for a 90-day extension either from September 20, 2010, or from the date on which a decision on the Rulemaking Petition becomes final. However, the Staff recognized New Hampshires unique governmental position, and did not oppose granting New Hampshire a reasonable extension to October 13, 2010 to file a request for hearing. Subsequently, counsel for the Staff was contacted by New Hampshire about a 30-day extension. The Staff informed New Hampshire that it would not oppose an extension to October 20, 2010 for New Hampshire. Although New Hampshire has not shown good cause, the Staff believes that a 30-day extension is reasonable given New Hampshires unique governmental interest as the representative of the State of New Hampshire and its residents.8

(...continued) retroactively to any and all applications for license renewal that are currently docketed and under review by the Staff. Seabrook is not the first nor the only applicant to have availed itself of seeking license renewal more than 15 years before expiration of its current license. See NUREG-1350 Vo. 22 NRC Information Digest 2010-2011 (Aug. 2010) at Appendix A (listing operating commercial nuclear power plants including date of issuance construction permit (CP), date of issuance of operating license (OL),

start of commercial operations, date of license renewal, and license expiration date).

7 Letter from Michael A. Delaney, New Hampshire Attorney General, to Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission (September 9, 2010) (New Hampshire Request). Although the letter is dated September 9, 2010, the letter was filed via the NRCs electronic filing system on September 10, 2010.

8 See Leave to File Reply and Reply to the Response of NextEra Energy Seabrook to the Request of the State of New Hampshire for An Extension of Time to Respond to the Notice of Opportunity (continued...)

On September 15, 2010, Beyond Nuclear filed the instant request for an extension of time equal to any extension granted to New Hampshire. In support of its request, Beyond Nuclear asserts that the State of New Hampshire has significantly more resources than most public interest organizations equally concerned about representing their own constituent issues, yet the complex nature and extensive volume of the material is the same for both State and public interest.9 Beyond Nuclear also asserted that it and any other potential party should receive any extension granted to New Hampshire in the interest of judicial economy.10 DISCUSSION I.

Legal Standards Unless specifically stated, the granting of an extension request applies only to the party who has requested it.11 The standard for obtaining an extension of time for filing a hearing request is a showing of good cause.12 A showing of good cause requires more than the normal difficulties of participating in a hearing.13 In Fermi, petitioners requested a 90-day extension to

(...continued) for Hearing Regarding the Renewal of Seabrooks Operating License (Sept. 15, 2010) (NH Reply).

9 Beyond Nuclear Extension Request at 2.

10 Id. at 2-3.

11 See Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 2), LBP-09-26, 70 NRC __

(Nov. 19, 2009) (slip op. at 6), affd Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 2), CLI 12, 71 NRC __ (Mar. 26, 2010) (slip. op. at 1).

12 10 C.F.R. § 2.307(a).

13 Detroit Edison Co. (Enrico Fermi Atomic Power Plant Unit 3), CLI-09-4, 69 NRC 80, 82 (2009)

(Fermi).

the deadline for filing hearing requests, petitions to intervene, and contentions 14 to accommodate the difficulties in coordinating action among volunteers and large public interest organizations and the challenge of simultaneously preparing for an environmental scoping meeting on the [application] while drafting contentions.15 The Commission rejected the petitioners request for the 90-day extension and stated that [p]etitioners have shown no special circumstances amounting to good cause for an extension.16 The Commission noted that many, if not most, groups that seek to intervene in NRC proceedings are organizations that rely on volunteers and must draft contentions while also balancing other obligations.17 The Commission has also viewed motions for extensions of time for filing hearing requests with disfavor when the underlying application has been available for an extended period of time.18 The time for potential parties to review an application begins when the NRC publishes notice of availability of the application in the Federal Register.19 Similarly, in Salem and Hope Creek, the petitioner citizens organizations sought a 60-day extension of the deadline for filing hearing requests, claiming that coordinating the submission of contentions related to two reactor license renewal applications involving three 14 Id.

15 Id.

16 Id. (emphasis added).

17 Id.

18 Id. See also Dominion Virginia Power (Combined License Application for North Anna Unit 3),

Order (May 1, 2008) (unpublished).

19 See e.g., Fermi (CLI-09-4, 69 NRC at 82 (noting that the combined operating license application at issue had been a matter of public record since the NRC published notice of its availability in the Federal Register).

units requires many meetings and a great deal of consultation and cooperation, all of which takes a significant amount of time.20 The organizations asserted that they did not have the staff and resources necessary to review the extensive and complex application for relicensing within 60 days, nor could they accomplish the process of identifying and retaining experts to assist with the review within that period.21 Nevertheless, the Commission denied the petitioners request, granting only a 16-day extension of the deadline.22 II.

Beyond Nuclear Has Not Shown Good Cause for the Requested Extension Beyond Nuclear has not demonstrated that it faces special circumstances amounting to good cause for an extension. Beyond Nuclears Extension Request simply asks that it and any other potential party wishing to intervene be granted the same extension as the Commission may grant to New Hampshire.23 In other words, Beyond Nuclear does not seek for itself an extension for any specific period of time, but rather asks that it be granted an extension that is uniform with the time as the Commission may afford in response to the State of New Hampshires request, whatever that period of time may be.24 As justification for this vague request, Beyond Nuclear states only that the Staff has not offered a reason for why an 20 Requests for Extension of Time to Petition for Hearing in the Matter of PSEG Nuclear, LLC License Renewal Applications, Nov. 2, 2009 (Salem & Hope Creek Extension Request).

21 Id.

22 PSEG Nuclear LLC (Salem Nuclear Generating Station, Units 1 & 2, Hope Creek Generating Station, Unit 1) Dkt. Nos. 50-272-LR, 50-311-LR, & 50-354-LR, Order (Nov. 13, 2009) (unpublished)

(ADAMS Accession Nos. ML0931707322 & ML0931707720) (Salem & Hope Creek Order).

23 Beyond Nuclear Extension Request at 2.

24 Id. at 1.

extension should be granted only to New Hampshire and not uniformly to all potential parties.25 However, in its Answer to the New Hampshire Request, the Staff did provide a reason: Each petitioner seeking an extension must independently demonstrate good cause for an extension.26 Beyond Nuclears reason for tying its extension request to New Hampshires appears to be its desire to establish a new, uniform filing deadline for all potential parties to this proceeding.27 However, this is not the kind of special circumstance that amounts to good cause for obtaining the same extension as New Hampshire, because it does not affect Beyond Nuclears ability to comply with the contention filing timetable set out in the regulations.

In any event, Beyond Nuclear has not shown good cause for receiving an extension of any duration. There is a distinction between the position of New Hampshire and that of Beyond Nuclear and other public interest organizations. Beyond Nuclear does not share New Hampshires unique position as the representative of a State and its residents, a position that may justify a reasonable extension for the purposes of making a considered assessment of whether intervening in the present proceeding is in the public interest.28 Rather, Beyond Nuclears primary concern is the interests of its constituent members. 29 Moreover, Beyond Nuclears reasons for seeking an extension are no different from 25 Id. at 2.

26 See Staff Answer at 6-8. See also NH Reply at 3 (noting the recognition of states unique interests in the Commissions regulations).

27 Beyond Nuclear Extension Request at 3.

28 See Staff Answer at 8.

29 Notably, Beyond Nuclear claims that its members have the same interests and concerns as New Hampshires citizens. Beyond Nuclear Extension Request at 2. This lends more support to New Hampshires extension request than Beyond Nuclears.

those put forward by the petitioner organizations in Salem and Hope Creek. Like the petitioners in Salem and Hope Creek, Beyond Nuclear is a public interest organization, and the resource constraints that it asserts as justification for an extension are no more substantial than those raised by the organizations in that proceeding.30 Regardless, the Commission has held that a public interest organizations time and resource limitations do not constitute the kind of special circumstances warranting an extension.31 In Salem and Hope Creek, the petitioner organizations were involved in coordinating a review of two distinct license renewal applications for three unitstwo pressurized reactors and one boiling water reactor.32 Here, there is only one application involving a single unit. Furthermore, Beyond Nuclear has had more time to review one application for a single unit than the petitioners in Salem and Hope Creek had to review two applications for three units. In Salem and Hope Creek, the notices of availability were published on September 8, 2009,33 and the petitioners requested a 60-day extension on November 2, 2009, approximately two months later.34 The notice of availability in this case was published in the Federal Register on June 16, 2010, giving Beyond Nuclear three months to 30 See Salem & Hope Creek Extension Request at 1.

31 Fermi, CLI-09-4, 69 NRC at 82.

32 Salem & Hope Creek Extension Request at 1.

33 See PSEG Nuclear LLC; Notice of Receipt and Availability of Application for Renewal of Hope Creek Generating Station for An Additional 20-Year Period, 74 Fed. Reg. 46238 (Sept. 8, 2009); PSEG Nuclear LLC; Notice of Receipt and Availability of Application for Renewal of Salem Nuclear Generating Station, Units 1 and 2 Facility Operating Licenses Nos. DPR-70 and DPR-75 for an Additional 20-Year Period, 74 Fed. Reg. 46238 (Sept. 8, 2009).

34 See Letter from Mary K. van Rossum, Delaware Riverkeeper Network, to Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission (Nov. 2, 2009); Letter from Jane Nogaki, Vice Chair, New Jersey Environmental Federation, to Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission (Nov. 2, 2009).

review the application.35 Thus, while a modest extension was warranted in Salem and Hope Creek, no extension is warranted in this case.

Finally, Beyond Nuclears assertion that considerations of judicial economy justify the application of an extension to all potential parties is not persuasive. As previously discussed, the standard for obtaining an extension under NRC regulations is a showing of good cause.36 Beyond Nuclear has not shown its own special circumstances that provide good cause for an extension for them.

CONCLUSION For the reasons discussed above, Beyond Nuclears request for an extension should be denied for lack of good cause.

Respectfully submitted, Signed (electronically) by Mary Baty Spencer Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-1324 mary.baty@nrc.gov Dated at Rockville, Maryland this 16th day of September, 2010 35 See infra note 3.

36 See 10 C.F.R. § 2.307(a).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY TO THE COMMISSION In the Matter of

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Docket No. 50-443 FPL Energy Seabrook, LLC

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(Seabrook Station, Unit 1)

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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFFS ANSWER TO BEYOND NUCLEARS REQUEST FOR NINETY-DAY EXTENSION in the above-captioned proceeding have been served on the following by Electronic Information Exchange this 16th day of September, 2010.

Office of the Secretary Attn: Rulemakings and Adjudications Staff Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov Office of Commission Appellate Adjudication Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.gov Steven Hamrick, Esq.

NextEra Energy Seabrook, LLC 801 Pennsylvania Ave NW Suite 220 Washington, DC 20004 Steven.hamrick@fpl.com Michael A. Delaney, Esq.

K. Allen Brooks, Esq.

Peter Roth, Esq.

Office of the Attorney General 33 Capitol Street Concord, NH 03301 E-mail: michael.a.delaney@doj.nh.gov E-mail.k.allen.brooks@doj.nh.gov E-mail: peter.roth@doj.nh.gov Mitchell Ross, Esq.

Antonio Fernandez, Esq.

NextEra Energy Seabrook, LLC 700 Universe Boulevard Juno Beach, FL 33408 E-mail: mitch.ross@fpl.com E-mail: antonio.fernandez@fpl.com Paul Gunter, Director Beyond Nuclear 6930 Carroll Ave Suite 400 Takoma Park, MD 20912 E-mail: paul@beyondnuclear.org Signed (electronically) by Mary Baty Spencer Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-1324 mary.baty@nrc.gov