ML111220549

Energy Northwests Answer in Opposition to Emergency Petition to Suspend Licensing Proceedings

ML111220549
Person / Time
Site:	Columbia
Issue date:	05/02/2011
From:	Sutton K, Bradley P Energy Northwest, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
Shared Package
ML111220547	List: ML111220548 ML111220549 ML111220550
References
License Renewal, RAS 20105, 50-397-LR
Download: ML111220549 (29)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-397-LR ENERGY NORTHWEST )

)

(Columbia Generating Station) ) May 2, 2011

)

ENERGY NORTHWESTS ANSWER IN OPPOSITION TO EMERGENCY PETITION TO SUSPEND LICENSING PROCEEDINGS Pamela R. Bradley Kathryn M. Sutton Assistant General Counsel Raphael P. Kuyler Energy Northwest Morgan, Lewis & Bockius LLP P.O. Box 968, PE13 1111 Pennsylvania Avenue, N.W.

Richland, WA 99352-0968 Washington, DC 20004 Phone: 509-377-8617 Phone: 202-739-5738 E-mail: prbradley@energynorthwest.com E-mail: ksutton@morganlewis.com E-mail: rkuyler@morganlewis.com Counsel for Energy Northwest Counsel for Energy Northwest DB1/ 67121103

TABLE OF CONTENTS Pages I. INTRODUCTION ....................................................................................................... 1 II. BACKGROUND ......................................................................................................... 2 III. LEGAL STANDARDS ............................................................................................... 4 A. Procedural Requirements for Suspension of Proceedings ..................................... 4 B. Standing ................................................................................................................. 5 C. Timeliness .............................................................................................................. 7 D. Participation in a Proceeding ................................................................................. 7 E. Substantive Standards for Suspension of Proceeding ............................................ 8 IV. ARGUMENT ............................................................................................................... 9 A. The Petition Should Be Summarily Dismissed as a Procedurally Deficient Motion .................................................................................................... 9 B. Petitioner Lacks Standing .................................................................................... 10

1. Petitioner Fails to Show Standing Under the Proximity Presumption .......... 11

2. Petitioner Does Not Assert or Establish Organizational Standing................. 12

3. Petitioner Does Not Assert or Establish Representational Standing ............. 12 C. The Petition is Untimely ...................................................................................... 13 D. The Petition Should Not Be Considered Because Petitioners Are Not Participants in This Proceeding ........................................................................... 13 E. The Petition Provides No Basis for Suspending the Proceeding, Requiring Supplemental NEPA Documentation, or Establishing Special Procedures ......... 14

1. Petitioners Do Not Provide a Sufficient Basis for Suspending the Proceeding...................................................................................................... 14

a. Moving Forward with the Proceeding Poses No Immediate Threat to Public Health and Safety .......................................................... 15

b. Moving Forward with the Proceeding Would Not Prove to Be an Obstacle to Fair and Efficient Decisionmaking .................................. 17

c. Moving Forward with the Proceeding Will Not Hamper Implementation of Any Potential Rule or Policy Changes ................................................ 19

2. Petitioners Are Incorrect in Asserting that Supplemental NEPA Documentation Is Required ........................................................................... 20

3. Petitioners Do Not Provide a Sufficient Basis for Changing Well-Established Procedural Regulations ............................................................... 24 V. CONCLUSION .......................................................................................................... 26 DB1/ 67121103

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-397-LR ENERGY NORTHWEST )

)

(Columbia Generating Station) ) May 2, 2011

)

ENERGY NORTHWESTS ANSWER IN OPPOSITION TO EMERGENCY PETITION TO SUSPEND LICENSING PROCEEDINGS I. INTRODUCTION Beginning on April 14, 2011, and continuing through April 21, 2011, several individuals and organizations filed a series of documents and corrected documents on the dockets of several ongoing licensing proceedings, all seeking to suspend those proceedings. As part of that effort, on April 18, 2011, Northwest Environmental Advocates (NEA or Petitioner) and various other organizations (collectively, Petitioners)1 submitted in this proceeding a Petition to Suspend Licensing Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (Petition) to the U.S. Nuclear Regulatory Commission (NRC or Commission).2 1

We address only Petitioners request to suspend this proceeding because Petitioners request to suspend other proceedings is not cognizable in this individual adjudicatory proceeding. See Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-28, 54 NRC 393, 399 n.9 (2001).

Furthermore, none of the organizations joining the Petitionincluding NEAhave ever made a hearing request or sought permission to participate in this proceeding on any other basis. Certainly, any request by the other organizations has no legitimate place in this proceeding and hereafter we refer only to NEA as the Petitioners. See Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-02-23, 56 NRC 230, 235 n.6 (2002); Savannah River, CLI-01-28, 54 NRC at 398. As explained below, even NEAs request is deficient in this regard.

2 Emergency Petition to Suspend All Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (Apr. 18, 2011) (corrected version); Decl. of Dr. Arjun Makhijani in Support of Emergency Petition to Suspend All DB1/ 67121103

Energy Northwest is filing this answer with the Commission pursuant to 10 C.F.R.

§ 2.323(c) and the Commissioners Order dated April 19, 2011, in opposition to the Petition.3 As discussed below, the Petition should be denied in its entirety because: (1) it fails to comply with basic procedural requirements; (2) NEA does not demonstrate standing; (3) NEAs participation in this proceeding is egregiously late; (4) NEA lacks the requisite status as a party (or even a potential party) to this proceeding to request suspension of the proceeding; and (5) it does not meet Petitioners burden to demonstrate the requisite justification for the requested actions.

II. BACKGROUND The Columbia Generating Station (Columbia) is located in Washington State and generates approximately 1,150 MWe of baseload electrical power.4 The current operating license for Columbia expires on December 20, 2023.5 On January 19, 2010, Energy Northwest submitted its License Renewal Application, requesting that the NRC renew the operating license for Columbia for an additional twenty years (i.e., until December 20, 2043).6 The NRC accepted the Application for docketing and published a Hearing Notice in the Federal Register on March Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (dated Apr. 19, 2011, filed on this docket Apr. 20, 2011) (Makhijani Declaration). In some proceedings, Petitioners filed a Petition and later filed an Amendment and Errata to the Petition. In this proceeding, only a Corrected version of the Petition was filed. Energy Northwest responds to the Corrected Petition, as filed in this proceeding.

3 NEA filed its Petition directly with the Commission. Although the Commission has entertained similar requests pursuant to its inherent supervisory authority of proceedings, such filings are discouraged. See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 476 n.63 (2008); Diablo Canyon, CLI-02-23, 56 NRC at 237; Savannah River, CLI-01-28, NRC at 398 n.7.

4 Applicants Environmental Report, Operating License Renewal Stage, Columbia Generating Station, at 7-5 (Jan. 2010) (ER), available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/columbia/columbia-er.pdf.

5 Notice of Acceptance for Docketing of the Application, Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License No. NPF-21 for an Additional 20-Year Period Energy Northwest; Columbia Generating Station, 75 Fed. Reg. 11,572, 11,572 (Mar. 11, 2010) (Hearing Notice).

6 See id.

DB1/ 67121103 11, 2010.7 Requests for hearing and petitions for leave to intervene were due 60 days from the publication of the Hearing Notice, or by 11:59 p.m. Eastern Time on May 10, 2010.8 No person or entity filed a petition to intervene in response to the Hearing Notice.

Now, nearly one year later, on April 18, 2011, Petitioners filed, directly with the Commission, the instant Petition requesting that the Commission take the following actions:

(1) suspend all decisions regarding the issuance of various reactor licenses, including renewed operating licenses, pending completion of the NRC Task Force evaluation of the agencys regulatory requirements, programs, and processes in light of the Fukushima Daiichi accident in Japan, following the March 11 earthquake and tsunami; (2) suspend all hearings on reactor-related or spent fuel-related issues identified for investigation in the Task Forces charter; (3) perform a National Environmental Policy Act (NEPA) analysis of whether the earthquake and Fukushima Daiichi accident constitute new and significant information that must be considered in an environmental impact statement (EIS);

(4) perform a safety analysis of the regulatory implications of the earthquake and Fukushima Daiichi accident; (5) establish procedures and a timetable for raising new issues relevant to the Fukushima Daiichi accident in pending licensing proceedings; (6) suspend all decisions and proceedings pending the outcome of any independent investigation of the Fukushima Daiichi accident; and (7) request that the President establish an independent investigation of the Fukushima Daiichi accident.9 As discussed further below, the Petition has a host of procedural and substantive deficiencies, lacks a factual or regulatory basis, and should be denied in its entirety.

7 See id.

8 See id. at 11,572-73.

9 Petition at 1-3, 28-30.

DB1/ 67121103 III. LEGAL STANDARDS A. Procedural Requirements for Suspension of Proceedings As an initial matter, the Petition does not comport with any of the specific forms of authorized pleading specified in the NRC Rules of Practice. The Commission has, however, provided some guidance through its rulings on somewhat similar petitions seeking suspension of proceedings. For example, following the September 11 terrorist attacks, the Commission determined that a petition requesting suspension of the Diablo Canyon independent spent fuel storage installation (ISFSI) proceeding, pending the Commissions comprehensive review of anti-terrorist measures at licensed facilities, should be treated as a general motion under the Rules of Practice (then designated as 10 C.F.R. § 2.730, but now designated as 10 C.F.R.

§ 2.323).10 More recently, the Commission determined in its Oyster Creek decision that joint petitions filed in four license renewal proceedings requesting suspension of those proceedings pending requested revisions to the license renewal process should also be treated as general motions brought under 10 C.F.R. § 2.323.11 Barring further guidance, therefore, the Petition is most appropriately considered to be a general motion under this regulation and is treated as such herein.

Two provisions of 10 C.F.R. § 2.323 are of particular relevance to the Commissions consideration of the Petition. First, motions must be made no later than 10 days after the occurrence or circumstance from which the motion arises.12 Second, a motion must be rejected 10 Diablo Canyon, CLI-02-23, 56 NRC at 237.

11 See Oyster Creek, CLI-08-23, 68 NRC at 484-85.

12 10 C.F.R. § 2.323(a).

DB1/ 67121103 if it does not include a certification that the moving party has made a sincere effort to contact other parties in the proceeding and resolve the issues raised in the motion.13 B. Standing To participate as a party in any NRC proceeding, an intervenor must demonstrate standing.14 In this regard, under 10 C.F.R. § 2.309(d)(1), a petitioner must provide specified information to support a claim of standing, including the nature of the petitioners right under the Atomic Energy Act to be made a party to the proceeding, the nature and extent of the petitioners property, financial, or other interest in the proceeding, and the possible effect of any decision or order on that interest. In interpreting these requirements, judicial concepts of standing are generally followed in NRC proceedings.15 To demonstrate standing a petitioner must show: (1) an actual or threatened, concrete and particularized injury that is (2) fairly traceable to the challenged action and (3) likely to be redressed by a favorable decision.16 These three criteria are commonly referred to as injury-in-fact, causation, and redressability, respectively. Alternatively, under NRC case law, a petitioner may be presumed to have fulfilled the judicial standards for standing based on his or her geographic proximity to a facility or source of radioactivity.17 The Commission has held that 13 Id. § 2.323(b).

14 See id. § 2.309(a).

15 See Nuclear Mgmt. Co., LLC (Monticello Nuclear Generating Plant), CLI-06-6, 63 NRC 161, 163 (2006);

Calvert Cliffs 3 Nuclear Project, LLC (Combined License Application for Calvert Cliffs, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009) (noting that the Commission is not strictly bound by judicial standing doctrines).

16 See Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 6 (1996); see also Calvert Cliffs, CLI-09-20, 70 NRC at 915.

17 See, e.g., Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-10-15, slip op. at 5 (Aug. 4, 2010) (citing Calvert Cliffs, CLI-09-20, 70 NRC at 914-17).

DB1/ 67121103 working or living within a 50-mile radius of an existing or planned nuclear power reactor is generally sufficient to invoke the proximity presumption.18 An organization that wishes to intervene in a proceeding may do so either in its own right (by demonstrating injury to its organizational interests), or in a representative capacity (by demonstrating harm to the interests of its members).19 To intervene in a representative capacity, an organization must show that: (1) its members would otherwise have standing to sue in their own right; (2) the interests that the organization seeks to protect are germane to its purpose; and (3) neither the claims asserted nor the relief requested require an individual member to participate in the organizations lawsuit.20 NRC case law also requires that the organization identify the member upon whom it is relying for standing by name and address, and show, preferably by affidavit, that the member has authorized that organization to request a hearing on his or her behalf.21 Finally, [w]here an organization is represented by one of its members, the member must also demonstrate authorization by that organization to represent it.22 As explained below, NEA does not demonstrate that it has organizational or representational standing to intervene in this proceeding.

18 See id.; see also Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 60 (2008) (applying the proximity presumption to the renewal of an operating license).

19 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 195 (1998) (citing Ga.

Inst. of Tech. (Ga. Tech Research Reactor, Atlanta, Ga.), CLI-95-12, 42 NRC 111, 115 (1995)).

20 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26, 30-31 (1998)

(citing Hunt v. Wash. State Apple Adver. Commn, 432 U.S. 333 (1977)) (presenting the test for representational standing).

21 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 408-10 (2007); see also N.

States Power Co. (Monticello Nuclear Generating Plant, Prairie Island Nuclear Generating Plant, Units 1 & 2; Prairie Island Indep. Spent Fuel Storage Installation), CLI-00-14, 52 NRC 37, 47 (2000); GPU Nuclear Inc.

(Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 202 (2000).

22 Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575, 583 (1978) (citing Tenn. Valley Auth. (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 1421 (1977)); see also Ga. Power Co. (Vogtle Elec. Generating Plant, Units 1 & 2), LBP-90-29, 32 NRC 89, 92 (1990) (holding that a group must also demonstrate that it has authorized the particular representative appearing before us . . . to represent the groups interest).

DB1/ 67121103 C. Timeliness As noted above, under the Hearing Notice and 10 C.F.R. § 2.309(b)(3), the deadline for timely petitions to intervene in this proceeding expired on May 10, 2010, nearly one year ago.

Therefore, the Petition falls under 10 C.F.R. § 2.309(c), which governs all [n]ontimely requests and/or petitions and contentions . . . .23 The Petitioner bears the burden of successfully addressing the stringent late-filing criteria in Section 2.309(c)(1)(i)-(viii).24 As the Commission recently explained in Oyster Creek, Section 2.309(c)(2) clearly provides that a petitioner shall address all eight factors set forth in Section 2.309(c)(1). Failure to comply with our pleading requirements for late filings constitutes sufficient grounds for rejecting intervention and hearing requests.25 The first factor identified in Section 2.309(c)(1), whether good cause exists for the failure to file on time, is entitled to the most weight.26 Without good cause, a petitioners demonstration on the other factors must be particularly strong.27 As explained below, the instant Petition is untimely and fails to meet the standards for untimely filings.

D. Participation in a Proceeding As noted above, to become a party to an NRC proceeding, a petitioner must show standing and an admissible contention.28 A petitioner that does not even submit a hearing 23 See also Tex. Utils. Elec. Co. (Comanche Peak Steam Elec. Station, Units 1 & 2), CLI-92-01, 35 NRC 1 (1992)

(holding that new petitioners may only become parties by filing a petition for late intervention under 10 C.F.R. 2.714(a)(1), predecessor of 10 C.F.R. § 2.309(c)); Gulf States Utils. Co. (Blue Hills Station, Units 1

& 2), LBP-81-10, 13 NRC 382, 386 (1981) (rejecting a petition to intervene filed in an otherwise uncontested proceeding approximately five months after the deadline in the notice of hearing).

24 AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), CLI-09-07, 69 NRC 235, 260-61 (2009).

25 Id. (internal quotations and alterations in original omitted).

26 See id. at 261.

27 Tex. Utils. Elec. Co. (Comanche Peak Steam Elec. Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 73 (1992)

(quoting Duke Power Co. (Perkins Nuclear Station, Units 1, 2 & 3), ALAB-431, 6 NRC 460, 462 (1977)).

28 See 10 C.F.R. § 2.309(a).

DB1/ 67121103 request or otherwise seek permission to participate in an adjudicatory proceeding does not have the requisite status to further participate in that proceeding by filing a motion to suspend.29 E. Substantive Standards for Suspension of Proceedings The Commission considers suspension of licensing proceedings a drastic action that is not warranted absent immediate threats to public health and safety.30 Following the September 11 terrorist attacks, the Commission considered a number of requests to suspend proceedings or hold them in abeyance in the exercise of the Commissions inherent supervisory authority pending the Commissions comprehensive review of measures to protect against terrorism.31 In the Private Fuel Storage ISFSI proceeding, the leading case on the subject, the Commission set forth the standard for requests to suspend or hold a proceeding in abeyance and considered whether moving forward with the adjudication (1) will jeopardize the public health and safety; (2) prove an obstacle to fair and efficient decision-making; or (3) prevent appropriate implementation of any pertinent rule or policy changes that might emerge from [the Commissions] important ongoing evaluation of its terrorism related policies.32 As explained below, the instant Petition meets none of these standards.

29 See Savannah River, CLI-01-28, 54 NRC at 398. Cf. Comanche Peak, CLI-92-01, 35 NRC at 6 (Unless and until petitioners petition for, and are granted, intervention in the proceeding, they cannot move to reopen the record.).

30 Vt. Yankee Nuclear Power Corp.(Vt. Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 173-74 (2000)

(refusing request to suspend all license transfer proceedings involving a particular transferee while the Commission examined effects of ownership by limited liability companies).

31 See Diablo Canyon, CLI-02-23, 56 NRC at 236-37; Savannah River, CLI-01-28, 54 NRC at 398-99; Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-01-27, 54 NRC 385, 390-91 (2001); Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 377 (2001).

32 Private Fuel Storage, CLI-01-26, 54 NRC at 380.

DB1/ 67121103 IV. ARGUMENT A. The Petition Should Be Summarily Dismissed as a Procedurally Deficient Motion Turning first to its procedural deficiencies, the Commission should dismiss the Petition because Petitioners failed to comply with several applicable procedural requirements, each of which constitutes an adequate independent reason for dismissal.

First, a motion must be made no later than 10 days after the occurrence or circumstance from which the motion arises.33 The Petition cites a number of potential trigger events which could have prompted the Petition, including the March 11 Tohoku-Taiheiyou-Oki earthquake and resulting tsunami; the March 18 issuance of NRC Information Notice 2011-05, Tohoku-Taiheiyou-Oki Earthquake Effects On Japanese Nuclear Power Plants; the Commissions March 23 approval of an action plan to review the accident at the Fukushima Daiichi facility; and the April 1 release of the charter for the Task Force responsible for assessing NRC regulatory requirements, programs, and processes in view of the Fukushima Daiichi accident.34 All of these events occurred before the 10 days preceding the initial filing of the Petition in another proceeding.

Furthermore, although the Petitioners attach an April 12 New York Times article to their filing to show that information about the Fukushima Daiichi accident continues to change and be augmented in the process, that fact was clear and widely acknowledged well before April 12. It simply cannot be considered, in any way, to be a new circumstance giving rise to the relief 33 10 C.F.R. § 2.323(a).

34 See NRC Information Notice 2011-05, Tohoku-Taiheiyou-Oki Earthquake Effects On Japanese Nuclear Power Plants (Mar. 18, 2011), available at ADAMS Accession No. ML110760432; Staff Requirements Memorandum on COMGBJ-11-0002 - NRC Actions Following the Events in Japan (Mar. 23, 2011), available at ADAMS Accession No. ML110820875; Charter for the NRC Task Force to Conduct a Near-Term Evaluation of the Need for Agency Actions Following the Events in Japan (Mar. 30, 2011), available at ADAMS Accession No. ML11089A045.

DB1/ 67121103 requested in the Petition or otherwise tolling the filing deadline.35 In fact, NRC Information Notice 2011-05 explicitly made that very pointnoting that the situation continues to evolve.36 The Commission has made clear in other contexts that a petitioner may not rely on documents that merely summarize or collect existing information to justify the timeliness of a filing.37 Therefore, the Petition is untimely and should be denied as a matter of law.

Second, a motion must be rejected if it does not include a certification by the moving party that it has made a sincere effort to contact the other parties and resolve the issues raised in the motion.38 No such certification is included with the Petition. Moreover, Petitioners made no attempt to contact Energy Northwest or its counsel and resolve the issues raised in the Petition.

In fact, Energy Northwest was not even informed by the Petitioners that the Petition was contemplated. Accordingly, the Petition is procedurally defective and should be denied.

B. Petitioner Lacks Standing As explained above, because NEA is an organization, it must either demonstrate that it has standing in its own right or that it has representational standing on behalf of one or more of its members to file the Petition. Contrary to 10 C.F.R. § 2.309(d), NEA makes no attempt to 35 See Petition at 23 (citing Att. 1, Matthew L. Wald, Japans Reactors Still Not Stable, N.Y. Times, Apr. 12, 2011, at A6, http://www.nytimes.com/2011/04/13/world/asia/13safety.html). Although the Makhijani Declaration references an April 15 document discussing hydrogen generation, this document clearly was not the trigger for the Petition, as it is dated the day after the Petition was initially filed. See Makhijani Declaration

¶ 32.

36 NRC Information Notice 2011-05 at 1.

37 See N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, 72 NRC __, slip op. at 17-18 (Sept. 30, 2010); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP 22, 64 NRC 229, 238 (2006) (the information contained in AmerGens April 2006 responses to the NRC Staffs AMP Questions is by no means new, nor was it previously unavailable), affd CLI-09-07, 69 NRC 235, 272 (2009) .

38 10 C.F.R. § 2.323(b).

DB1/ 67121103 show organizational or representational standing, whether under traditional judicial concepts of standing (injury-in-fact, causation and redressability) or through the proximity presumption.39

1. Petitioner Fails to Show Standing Under the Proximity Presumption Regardless of whether one analyzes NEAs standing under the organizational or representational theories, it has still failed to show standing through the NRCs proximity presumption. The only individual associated with NEA identified in the Petition or NEAs filings is Nina Bell.40 Even if one assumes, arguendo, that NEA is located at the Portland, Oregon Post Office Box identified on page 30 of the Petition, or that NEA is authorized to seek a hearing on behalf of Ms. Bell and that she either lives or works or otherwise has frequent contacts with that Portland, Oregon location, then NEA still fails to show standing.41 This is because Portland, Oregon is approximately 170 miles from Columbia Generating Stationfar beyond the 50 miles radius within which a petitioner may be presumed to have standing.42

2. Petitioner Does Not Assert or Establish Organizational Standing In order to establish organizational standing, NEA must demonstrate a discrete institutional injury to itself, other than general environmental and policy interests.43 NEA does 39 NEA also fails to demonstrate that any individual is authorized to represent it in this proceeding, either through a notice of an appearance filed by an attorney or otherwise. Instead, the generic Petition merely states that Nina Bell is the [d]uly authorized representative of NEA. Where an organization is represented by one of its members, the member must also demonstrate authorization by that organization to represent it. Enrico Fermi, LBP-78-37, 8 NRC at 583 (1978) (emphasis added) (citing Watts Bar, ALAB-413, 5 NRC at 1421).

See also Vogtle, LBP-90-29, 32 NRC at 92 (holding that a group must also demonstrate that it has authorized the particular representative appearing before us . . . to represent the groups interest). An attorneys Notice of Appearance can meet this requirement, see N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-08-26, 68 NRC 905, 912-13 (2008), but no attorney has submitted a notice of appearance on behalf of NEA.

40 See Petition at 30.

41 The Petition, however, establishes none of these facts.

42 See PPL Bell Bend (Bell Bend Nuclear Power Plant), CLI-10-07, 71 NRC __, slip op. at 9 (Jan. 7, 2010)

(affirming the Boards denial of standing to a petitioner who failed to show the requisite significant contacts within a 50-mile radius), affg LBP-09-18, 70 NRC 385 (Aug. 9, 2009).

43 Intl Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 252 (2001).

DB1/ 67121103 not articulate any specific organizational interests. Indeed, the Petition does not assert a discrete institutional injury, as is required to establish organizational standing. The general assertion that NEA is extremely concerned about the implications of the Fukushima accident with respect to the safety of operating the Columbia Generating Station44 is the type of broad interest, shared with many others, that has been found insufficient to establish injury-in-fact and therefore organizational standing.45 Absent any identified organizational interest beyond general concerns for the health and safety of the public, NEA cannot demonstrate organizational standing.

3. Petitioner Does Not Assert or Establish Representational Standing As noted above, when an organization asserts a right to represent the interest of its members, the organization must show that the identified members would otherwise have standing in their own right. NEA has not even attempted to carry this burden.46 The Petition identifies no individual who has authorized NEA to submit the Petition or otherwise participate in this proceeding on his or her behalf. Nor has any individual submitted an affidavit to that effect. Even if we assumeagain without any basisthat NEA is authorized to seek a hearing on behalf of Ms. Bell, NEA provides no information suggesting that she meets the injury-in-fact, 44 Petition at 8.

45 See, e.g., Sierra Club v. Morton, 405 U.S. 727, 731, 735, 741 (1972) (a general statement that an organization has a special interest in the conservation and the sound maintenance of the national parks, game refuges and forests of the country is insufficient to provide organizational standing); White Mesa , CLI-01-21, 54 NRC at 252 (affirming the Presiding Officers determination that an intervenor lacked standing because the Group showed no discrete institutional injury to itself, other than general environmental and policy interests of the sort we repeatedly have found insufficient for organizational standing); Transnuclear, Inc. (Export of 93.15%

Enriched Uranium), CLI-94-1, 39 NRC 1, 5 (1994) (The Commission has long held that institutional interest in providing information to the public and the generalized interest of their memberships in minimizing danger from proliferation are insufficient for standing . . . .).

46 Bell Bend, LBP-09-18, 70 NRC at 400 (Aug. 9, 2009) (holding that a petitioner has the burden to clearly state the facts it is relying upon for its showing of standing).

DB1/ 67121103 causation and redressability elements which are required to show standing under the ordinary judicial standing test.47 Therefore, NEA has failed to establish representational standing.48 C. The Petition Is Untimely As explained above, because the deadline for timely petitions to intervene in this proceeding has passed, in order to become a party to this proceeding NEA bears the burden of showing that its Petition is timely under the eight-part test set forth in 10 C.F.R. § 2.309(c)(1).

NEA, however, makes no attempt to make this showing. The Commission should not be required to articulate for NEA why it satisfies the balancing test in that regulation.49 The Commission should therefore reject the Petition as untimely.

D. The Petition Should Not Be Considered Because Petitioners Are Not Participants in This Proceeding NEA not only makes no attempt to show standing or the timeliness of its Petition, but it also submits no contentions. Because NEA has made no attempt to request a hearing or seek to intervene in this adjudicatory proceeding, it does not have the requisite status to further participate by requesting suspension of the proceeding. For example, in Savannah River, following the events of September 11, 2001, two organizations filed a joint petition with the Commission seeking to suspend that proceeding and proceedings for construction of all new facilities until the NRC Staff complete[d] the Commission-mandated regulatory review of terrorism-related rules.50 One of the two organizations had petitioned to intervene, and its request was pending at the time it filed the suspension petition.51 Therefore, the Commission 47 See generally Petition.

48 See, e.g., Private Fuel Storage, CLI-98-13, 48 NRC at 30-31.

49 See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-08-12, 68 NRC 5, 28, affd on other grounds, CLI-08-28, 68 NRC 658 (2008).

50 Savannah River, 54 NRC at 397-98 (citation omitted).

51 See id. at 397.

DB1/ 67121103 considered, but rejected, that organizations suspension request.52 The second organization, however, had neither made a hearing request . . . nor sought permission to participate in this adjudication on any other basis. Therefore, [it had] no legitimate place in this proceeding.53 As a result, the Commission considered only the first organization as the petitioner.54 Like the second petitioner in Savannah River, NEA has filed no hearing request or otherwise sought to participate in this proceeding, nor does the Petition even attempt to show standing and an admissible contention.55 Therefore, NEAs Petition should not be further considered.

E. The Petition Provides No Basis for Suspending the Proceeding, Requiring Supplemental NEPA Documentation, or Establishing Special Procedures

1. Petitioners Do Not Provide a Sufficient Basis for Suspending the Proceeding Even if the Commission were to overlook all of the procedural deficiencies in the Petition and NEAs lack of standing and address the merits of the Petition, the Commission should reject it for failure to include adequate bases and justification for suspension of the Columbia license renewal proceeding. As explained above, following the September 11 terrorist attacks, the Commission considered similar petitions that requested the suspension of various licensing proceedings pending the Commissions comprehensive review of measures to protect against terrorism. In Private Fuel Storage, the Commission considered whether moving forward with the adjudication (1) will jeopardize the public health and safety; (2) prove an obstacle to fair and efficient decision-making; or (3) prevent appropriate implementation of any pertinent rule 52 See id. at 398, 401.

53 Id. at 398.

54 See id.

55 See also Comanche Peak, CLI-92-01, 35 NRC at 3, 10 (holding that petitioners could not move to reopen the record of a proceeding unless and until they were admitted as parties).

DB1/ 67121103 or policy changes that might emerge from [the Commissions] important ongoing evaluation of its terrorism related policies.56 As discussed below, none of these considerations justifies suspension of the Columbia license renewal proceeding.

As an initial matter, the Petition sets forth two unsupported assertions related to Columbia and Energy Northwest. First, the Petitioner asserts, without any basis, its concern about earthquake risks to the Columbia Generating Station based on [unspecified] new findings that are scheduled for publication later this year.57 This bare allegation falls woefully short of the requisite support and specificity required for an admissible contention under 10 C.F.R. § 2.309(f)(1). Nor does Petitioner explain the relationship between this allegation and the recent accident in Japan or why such anticipated findings demand suspension of this proceeding. Second, Petitioners vaguely assertagain without reference to any factsthat the Fukushima accident highlights the hazards associated with facility mismanagement which has been a chronic problem at the Columbia Generating Station.58 Energy Northwest respectfully objects to this baseless attempt to disparage its reputation.

a. Moving Forward with the Proceeding Poses No Immediate Threat to Public Health and Safety The Petition provides no basis upon which to conclude that continuation of the Columbia license renewal proceeding would present any threat to public health and safety. To the contrary, in an April 12, 2011 written statement before the U.S. Senate, Chairman Jaczko stated:

The NRCs primary responsibility is to ensure the adequate protection of the public health and safety of the American people.

Toward that end, we have been very closely monitoring the 56 Private Fuel Storage, CLI-01-26, 54 NRC at 380. The Commission applied the same standard in a wide-variety of licensing proceedings, including license renewal proceedings. See, e.g., McGuire-Catawba, CLI 27, 54 NRC at 389-90.

57 Petition at 8-9.

58 Id. at 9.

DB1/ 67121103 activities in Japan and reviewing all currently available information. Review of this information, combined with our ongoing inspection and licensing oversight, gives us confidence that the U.S. plants continue to operate safely. . . .59 The Chairman further outlined the Commissions plans to identify lessons learned from the Fukushima Daiichi accident and to evaluate whether the NRC should adopt additional regulatory or policy improvements.60 Thus, the Commission has concluded that continued operation of power plants does not pose an imminent risk to public health and safety. Certainly then, there is no reason to believe that any danger to public health and safety would result from mere continuation of this pending licensing proceeding.

As part of the Commissions plans to identify lessons learned, an NRC Task Force is examining a broad range of issues relating to the Fukushima Daiichi accident, including issues related to external events, station blackout, severe accident measures, 10 C.F.R. § 50.54(hh)(2)

(i.e., accident mitigation measures for large fires and explosions), and emergency preparedness.

The NRC is performing inspections at all currently operating plants pursuant to Temporary Instruction 2515/183, Followup to the Fukushima Daiichi Nuclear Station Fuel Damage Events.61 These inspections, through ongoing regulatory oversight programs, will review the current licensing basis (CLB) issues identified in the Task Force Charter and will determine each facilitys preparedness for beyond design-basis events. Any necessary changes will be made outside of the license renewal process and will be considered by the NRC Task Force looking at improvements and lessons learned from the Fukushima Daiichi accident. Therefore, 59 Written Statement by Gregory B. Jaczko, Chairman, NRC, to U.S. Senate Environment and Public Work Committee and Clean Air and Nuclear Safety Committee at 3 (Apr. 12, 2011), available at ADAMS Accession No. ML111020070 (emphasis added).

60 See id. at 6-9.

61 NRC Inspection Manual, Temporary Instruction 2515/183, Followup to the Fukushima Daiichi Nuclear Station Fuel Damage Event (Mar. 23, 2011), available at ADAMS Accession No. ML110880327.

DB1/ 67121103 suspension of this proceeding is unnecessary to ensure that any issues identified during the Task Force review are incorporated at Columbia.

Furthermore, the current operating license for Columbia does not expire until December 20, 2023.62 Therefore, there is no risk here of any immediate threat to public health and safety.

b. Moving Forward with the Proceeding Would Not Prove to Be an Obstacle to Fair and Efficient Decisionmaking The Commission has long emphasized its commitment to efficient and expeditious processing of applications and any associated hearings.63 While the NRC Task Force review of issues relating to the Fukushima Daiichi accident is pending, there are safety and environmental issues that must be resolved in this proceeding, many with no conceivable connection to the accident in Japan or the issues identified in the Task Force Charter. Under these circumstances, there is simply no basis for suspending the ongoing licensing proceeding.

Commission practice is to carefully limit and confine orders delaying proceedings to the duration and scope necessary to promote the dual goals of public safety and timely adjudication.64 Even after the accident at Three Mile Island, Unit 2 (TMI-2) on March 28, 1979, the Commission chose not to suspend ongoing licensing proceedings, but instead, on June 5, 1979, temporarily stopped issuing licenses for a short period pending its initial assessment of the accident.65 Shortly thereafter, in October 1979, the Commission issued an Interim Statement 62 See Hearing Notice, 75 Fed. Reg. at 11,572.

63 See, e.g., Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 18, 24 (1998).

64 Private Fuel Storage, CLI-01-26, 54 NRC at 381.

65 See id. at 381-82 (discussing the Commissions actions following the TMI-2 accident, including the temporary pause in licensing initiated by an unpublished order dated June 5, 1979); Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-728, 17 NRC 777, 784-85 (1983) (same).

DB1/ 67121103 of Policy announcing the Commission itself would decide whether to grant final approval of new construction permits, limited work authorizations, and operating licenses.66 Later, in November 1979, the Commission provided additional guidance on this procedural change and explained that it did not impact the issuance of operating licenses in uncontested cases and cases where the Board issued an initial decision before the effective date of the Statement of Policy.67 The November 1979 Statement of Policy also made clear that Boards should apply existing safety regulations and policies with the understanding that the analysis of the TMI-2 accident was ongoing and changes to regulations and regulatory policies may be forthcoming.68 Following issuance of lessons learned reports on the TMI-2 accident, the Commission provided further guidance on the litigation of TMI-related issues in a December 1980 Revised Statement of Policy. Therein, it made clear that existing regulations regarding late-filed contentions and the reopening of hearing records were to be applied by individual Boards.69 Thus, Petitioners are simply incorrect in asserting that NRC suspended all licensing decisions until conclusion of the lessons learned process following the TMI-2 accident.70 66 Interim Statement of Policy and Procedure, 44 Fed. Reg. 58,559, 58,559 (Oct. 10, 1979).

67 See Domestic Licensing Proceedings; Modified Adjudicatory Procedures, 44 Fed. Reg. 65,049, 65,051 (Nov.

9, 1979).

68 See id. at 65,050.

69 Statement of Policy: Further Commission Guidance for Power Reactor Operating Licenses, CLI-80-42, 12 NRC 654, 661 (1980).

70 Petition at 22. Although the first operating license following the TMI-2 accident was not issued until August 1980, the Commission did not preclude new plants that had already received operating licenses from commencing operations until the conclusion of the lessons learned process. See NUREG-1350, Vol. 22, Information Digest, 2010-2011, App. A at 102, 106 (Aug. 2010) (indicating that Edwin I. Hatch Nuclear Plant, Unit 2 began commercial operations in September 1979, and North Anna Power Station, Unit 2 received its OL in August 1980). In addition, the NRC rejected a petition requesting that all similar operating reactors be immediately shut down. Petition to Suspend All Operating Licenses for Pressurized Water Reactors, DD-81-8, 13 NRC 767, 767 (1981). The NRC also rejected a petition requesting suspension of further licensing of nuclear facilities pending completion of a study and report on the Chernobyl accident. See Potential Implications of Chernobyl Accident for All NRC-Licensed Facilities, DD-87-21, 26 NRC 520, 520-21 (1987).

DB1/ 67121103 Similarly, following the September 11 terrorist attacks, the Commission denied several similar requests to suspend a number of types of proceedings, including license renewal proceedings.71 In these cases, the Commission emphasized the strong public interest in moving forward with proceedings in an efficient and expeditious manner.72 As with these cases, suspending all further proceedings would be contrary to the Commissions goal of providing prompt yet fair resolution of contested issues in adjudicatory proceedings.73

c. Moving Forward with the Proceeding Will Not Hamper Implementation of Any Potential Rule or Policy Changes Petitioners also assert that the proceeding should be suspended pending the Task Forces investigation of the Fukushima Daiichi accident because the current climate of uncertainty prevents the NRC from making a definitive finding on safety issues as required by the Atomic Energy Act.74 This conclusory statement is offered without any apparent basis in fact or law.

Speculation about the possible outcome of the Task Force review (i.e., potential recommendations to improve the regulatory program), however, is not a compelling reason to delay this proceeding. It is clear from the Chairmans statements that the Commission continues to have confidence that plants are operating safely under the current regulatory program, and moving forward with the proceeding will not prevent appropriate implementation of any rule or policy changes arising from the NRCs review. If the Task Force recommendations result in a rule or policy change, then the Commission has ample authority to modify requirements by rule, 71 See Diablo Canyon, CLI-02-23, 56 NRC at 236; Savannah River, CLI-01-28, 54 NRC at 397; McGuire-Catawba, CLI-01-27, 54 NRC at 390; Private Fuel Storage, CLI-01-26, 54 NRC at 378.

72 See Diablo Canyon, CLI-02-23, 56 NRC at 239; Savannah River, CLI-01-28, 54 NRC at 400; McGuire-Catawba, CLI-01-27, 54 NRC at 389-90; Private Fuel Storage, CLI-01-26, 54 NRC at 381, 383.

73 Private Fuel Storage, CLI-01-26, 54 NRC at 381 (quoting Statement of Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC at 19).

74 Petition at 26 (citing Power Reactor Dev. Corp. v. Intl Union of Elec., Radio & Mach. Workers, 367 U.S. 396, 402 (1961)).

DB1/ 67121103 regulation, or orderboth for applicants and licensees.75 Therefore, notwithstanding the pure conjecture in the Makhijani Declaration suggesting that the Task Force review will reveal some inadequacy in NRC regulations,76 there is no need to delay this proceeding to ensure that the public will realize the full benefit of the ongoing regulatory review.

The Task Force will examine issues related to external events, station blackout, severe accident measures, 10 C.F.R. § 50.54(hh)(2), and emergency preparedness.77 Given the limited scope of license renewal safety reviews, issues related to the CLB are outside the scope of the proceeding and most, if not all, of the Task Force review focuses on CLB issues. Instead, the only safety issues within the scope of this proceeding relate to aging management programs and time-limited aging analyses.78 Nothing in the Petition addresses these aging-related issues, so there is every reason to believe any regulatory or policy change that might be identified by the Task Force would be outside the scope of this license renewal proceeding. Thus, it is unnecessary to await potential regulatory changes that will have no bearing on license renewal reviews.

2. Petitioners Are Incorrect in Asserting that Supplemental NEPA Documentation Is Required Petitioners next argue that NEPA requires that NRC consider new and significant information resulting from its ongoing consideration of the Fukushima Daiichi accident and which could affect the outcome of the environmental analysis in individual licensing 75 See Diablo Canyon, CLI-02-23, 56 NRC at 240; Savannah River, CLI-01-28, 54 NRC at 400; Private Fuel Storage, CLI-01-26, 54 NRC at 383-84. See generally 42 U.S.C. § 2201(b); 10 C.F.R. §§ 2.202, 50.109.

76 Makhijani Declaration ¶ 16.

77 See Charter for the NRC Task Force to Conduct a Near-Term Evaluation of the Need for Agency Actions Following the Events in Japan (Mar. 30, 2011), available at ADAMS Accession No. ML11089A045.

78 See Fla. Power & Light Co. (Turkey Point Nuclear Power Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 7-10 (2001); see also McGuire-Catawba, CLI-01-27, 54 NRC at 391.

DB1/ 67121103 proceedings.79 Thus, according to Petitioners, suspension of this proceeding is necessary to protect the integrity of the NEPA process.80 Although it appears Petitioners are asking that NRC prepare some sort of generic NEPA evaluation of the Fukushima Daiichi accident and resulting NRC Task Force recommendations, there is no dispute that, in this proceeding, the NRC will prepare a FSEIS for the Columbia license renewal. In accordance with existing regulations and guidance, severe accidents and severe accident mitigation alternatives (SAMAs) are already considered as part of this NEPA review process.81 The Petition identifies nothing suggesting that the existing evaluation of these issues in this proceeding is or will be inadequate when NRC issues its FSEIS for this proceeding.82 Furthermore, it is important to recognize that NRC regulations already require new and significant information to be addressed in ongoing licensing proceedings.83 Specifically, once the NRC issues an EIS in these proceedings, NRC regulations require that an EIS be supplemented if there are (1) substantial changes in the proposed action that are relevant to environmental concerns, or (2) significant new circumstances or information relevant to environmental concerns that bear on the proposed action or its impacts.84 The Petition fails to acknowledge this existing regulatory requirement, much less explain why it is insufficient in 79 Petition at 26-28.

80 Id. at 27.

81 See, e.g., 10 C.F.R. §§ 51.53(c)(3)(ii)(L), 51.75(c)(2), Part 51, App. B.; NUREG-1555, Environmental Standard Review Plan: Standard Review Plans for Environmental Reviews for Nuclear Power Plants §§ 7.2, 7.3 (Mar. 2000); NUREG-1555, Supp.1, Standard Review Plans for Environmental Reviews for Nuclear Power Plants: Environmental Standard Review Plan for Operating License Renewal §§ 5.1.1, 5.2 (Mar. 2000).

82 Although the Makhijani Declaration generally discusses issues related to severe accidents, it only addresses prior generic NRC evaluations of severe accidents and spent fuel pool accidents without any attempt to link information from the Fukushima Daiichi to the relevant evaluation in this proceeding. See Makhijani Declaration ¶¶ 29-31.

83 See 10 C.F.R. §§ 51.53(c)(3)(iv), 51.72(a)(2), 51.92(a)(2).

84 See 10 C.F.R. §§ 51.72(a)(2), 51.92(a)(2).

DB1/ 67121103 these circumstances or why suspension of this proceeding is otherwise necessary to ensure compliance with NEPA. Absent any such showing, it is inappropriate to suspend all proceedings as an open-ended placeholder for the filing of potential future contentions or motions to reopen the record based on the ungrounded presumption that the NRC Staff will fail to follow its own regulations.85 Petitioners also claim that NRC must prepare a supplemental EIS or environmental assessment (EA) assessing the significance of the Fukushima Daiichi accident simply because NRC allegedly has conceded that new information based on the accident could have a significant effect on regulatory programs.86 In accordance with NRC regulations, an EIS need not be supplemented merely because the NRC is investigating the implications of the Fukushima Daiichi accident or any other new information. Instead, a supplemental EIS need only be prepared to address significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.87 In order to be significant, new information must present a seriously different picture of the environmental impact of the proposed project from what was previously considered.88 It is not enough that the information may be worthy of further inquiry or may be considered important research.89 The Petition provides nothing indicating that this high standard will be met and instead only speculates about potential new information that could have a significant 85 S. Nuclear Operating Co. (Vogtle Elec. Generating Plant, Units 3 & 4), LBP-09-3, 69 NRC 139, 158 (2009);

see also Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-9, 53 NRC 232, 235 (2001) ([I]n the absence of evidence to the contrary, the NRC does not presume that a licensee will violate agency regulations wherever the opportunity arises.).

86 See Petition at 4 n.2, 27-28.

87 See 10 C.F.R. § 51.72(a)(2), 51.92(a)(2).

88 Hydro Res., Inc. (2929 Coors R., Suite 101, Albuquerque, N.M. 87120), CLI-99-22, 50 NRC 3, 14 (1999)

(citing Sierra Club v. Froehlke, 816 F.2d 205, 210 (5th Cir. 1987)); accord Wisconsin v. Weinberger, 745 F.2d 412, 420 (7th Cir. 1984)).

89 Wisconsin, 745 F.2d at 420.

DB1/ 67121103 effect on its regulatory programs and the outcome of its licensing decisions for individual reactors.90 Such conjecture is, again, inadequate to support the Petition or to justify the requested relief.

Furthermore, in the license renewal context, issues related to environmental impacts of severe accidents are resolved generically and may not be challenged absent a waiver. Based on the Generic Environmental Impact Statement for License Renewal (GEIS), and as codified in NRC regulations, the Commission generically determined that the probability weighted environmental impacts from severe accidents are small for all plants.91 The Commission recently emphasized this aspect of the GEIS and Part 51 in the Pilgrim license renewal proceeding stating that, [b]ecause the GEIS provides a severe accident impacts analysis that envelopes the potential impacts at all existing plants, the environmental impacts of severe accidents during the license renewal term already have been addressed generically in bounding fashion.92 The Commission has made clear that adjudicating generic issues such as these based merely on a claim of new and significant information, would defeat the purpose of resolving generic issues in a GEIS.93 Rather, in order to challenge this conclusion, Petitioners would have to seek a waiver of the regulations pursuant to 10 C.F.R. § 2.335 and, among other things, show that there are special circumstances with respect to the facility at issue that warrants 90 Petition at 26-27 (emphasis added).

91 10 C.F.R. Part 51, Subpt. A, App. B, Tbl. B-1 (emphasis added).

92 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, slip op. at 38 (Mar. 26, 2010)

(emphasis in original).

93 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 21 (2007).

DB1/ 67121103 setting aside the Commissions generic findings.94 Petitioners, however, have made no attempt to satisfy these requirements.

Petitioners are also incorrect in claiming that NRC must follow NEPA procedures and prepare an EA even if it concludes that new information based on the Fukushima Daiichi accident does not meet the standards for supplementing an EIS. NEPA does not require that the NRC generate an EA or any NEPA-document as part of its evaluation of whether information is significant for purposes of supplementing an EIS.95 Instead, as noted above, NRC regulations only require the preparation of a supplemental EIS to address significant new circumstances or information relevant to the proposed action.96

3. Petitioners Do Not Provide a Sufficient Basis for Changing Well-Established Procedural Regulations Petitioners also request that the Commission allow the future filing of new yet-to-be-defined contentions and motions to reopen closed hearing records within 60 days following the publication of any future proposed regulatory measures or environmental decisions resulting from the reviews related to the Fukushima Daiichi accident.97 According to Petitioners, the 94 Turkey Point, CLI-01-17, 54 NRC at 12 (In the hearing process, . . . petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule. See 10 C.F.R. § [2.355].).

95 See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 379 (1989) (upholding an agencys decision not to supplement an EIS based on the agencys supplemental information report); Hodges v. Abraham, 300 F.3d 432, 446 (4th Cir. 2002) (holding that an agency is entitled to conduct a preliminary inquiry to determine whether changed circumstances are significant); Idaho Sporting Cong. Inc. v. Alexander, 222 F.3d 562, 566 (9th Cir. 2000) (finding that an agency may use non-NEPA environmental evaluation procedures to determine whether supplementation of an EA or an EIS is necessary). See generally Daniel R. Mandelker, NEPA Law and Litigation, § 10:49, at 10-187 (2nd ed. 2010) (An agency does not have to prepare an environmental assessment as the basis for deciding to prepare a supplemental impact statement. It may instead rely on a non-NEPA document, such as a supplementary report or a reevaluation, as the basis for making this decision.).

96 10 C.F.R. §§ 51.72(a)(2), 51.92(a)(2).

97 Petition at 3, 23-24, 29.

DB1/ 67121103 establishment of this procedural toehold is needed, purportedly because it may be difficult to judge the timeliness of future motions to add new contentions or to reopen the record.98 NRC regulations and case law already provide clear and uniform standards to determine the timeliness of motions to add new contentions or to reopen the record.99 This situation is no different and warrants no such special treatment. Indeed, even after the TMI-2 accident, the Commission made clear that it expected adherence to these well-established procedural requirements.100 Similarly, in responding to requests to suspend licensing proceedings pending the NRCs regulatory review following the events of September 11, the Commission again made clear that its regulations already establish appropriate standards for late-filed contentions and motions to reopen the record.101 Thus, as the Commission stated, the hearing rules . . . contain sufficient flexibility to deal with any new developments that occur during the pendency of this proceeding.102 Petitioners also generally claim that, given their limited resources, it would be an unfair burden to require the filing of new contentions or motions to reopen the record before NRC has completed its analysis of the Fukushima Daiichi accident in the first instance.103 This argument amounts to nothing more than a generic attack on NRC regulations that require the filing of contentions at the initiation of the adjudicatory process, before the NRC Staff has completed its review, and that any new contentions be introduced when new, material information justifies 98 Id. at 23.

99 See 10 C.F.R. §§ 2.309(f)(2), 2.323(a); Entergy Nuclear Vt. Yankee, L.L.C. (Vt. Yankee Nuclear Power Station), CLI-11-02, slip op. at 10 n.43 (Mar. 10, 2011) (indicating that the Commission and its Boards generally consider approximately 30 to 60 days as the limit for timely filings based on new information).

100 See Statement of Policy, CLI-80-42, 12 NRC at 661.

101 See Private Fuel Storage, CLI-01-26, 54 NRC at 383; Savannah River, CLI-01-28, 54 NRC at 400 n.12 (citing the then-in-place regulations on late-filed contentions and motions to reopen the record).

102 Savannah River, CLI-01-28, 54 NRC at 400.

103 Petition at 24.

DB1/ 67121103 such late filings.104 In the McGuire-Catawba license renewal proceedings, the Commission rejected similar arguments in responding to requests to suspend licensing proceedings pending NRCs regulatory review following the events of September 11. Specifically, the Commission held:

[Petitioner] will suffer no cognizable injury from going forward with the hearing process. We are unpersuaded by [petitioner]s assertion that the piecemeal nature of the adjudication makes it impossible to perform a complete or effective evaluation of the issues . . . within the scope of the current hearing and is wasteful of [the Petitioners] resources. . . . We have repeatedly rejected such resource-related arguments in prior proceedings, and do so again here. As we stated . . . in Indian Point, CLI-01-8, 53 NRC at 229-30, litigation invariably results in the parties loss of both time and money. We cannot postpone cases for many weeks or months simply because going forward will prove difficult for litigants or their lawyers.105 In summary, no efficiency is gained by establishing special procedures for Petitioners to file new contentions or motions to reopen the record. Instead, efficiency is maintained through compliance with the current requirements; i.e., if Petitioners can develop well-founded new contentions for review based upon truly new and materially different information, they are allowed to make appropriate and timely filings pursuant to 10 C.F.R. § 2.309.

V. CONCLUSION Suspending ongoing proceedings is an extraordinary remedy that is not warranted and should not be granted. Petitioners have not made a compelling demonstration that such extraordinary relief is warranted. Petitioners also have not shown that additional supplementary NEPA documents are required. NRC rules are sufficiently robust, flexible, and comprehensive to deal with any new developments that occur in the future as a result of the tragic accidents at 104 See 10 C.F.R. § 2.309.

105 McGuire-Catawba, CLI-01-27, 54 NRC at 391.

DB1/ 67121103 Fukushima Daiichi. The Petition also suffers from numerous procedural deficiencies that, individually and collectively require the Commission to reject it. Accordingly, for all of these reasons, the Petition should be denied in its entirety.

Respectfully submitted, Signed (electronically) by Raphael P. Kuyler Kathryn M. Sutton Raphael P. Kuyler Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: 202-739-5738 E-mail: ksutton@morganlewis.com E-mail: rkuyler@morganlewis.com Pamela R. Bradley Assistant General Counsel Energy Northwest P.O. Box 968, PE13 Richland, WA 99352-0968 Phone: 509-377-8617 E-mail: prbradley@energynorthwest.com COUNSEL FOR ENERGY NORTHWEST Dated in Washington, D.C.

this 2nd day of May 2011 DB1/ 67121103