ML11311A303
| ML11311A303 | |
| Person / Time | |
|---|---|
| Site: | Columbia  |
| Issue date: | 11/07/2011 |
| From: | Subin L NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 21384, 50-397-LR, ASLBP 11-912-03-LR-BD01 | |
| Download: ML11311A303 (12) | |
Text
November 7, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
Energy Northwest ) Docket No. 50-397-LR
)
(Columbia Generating Station) ) ASLBP No. 11-912-03-LR-BD01 NRC STAFFS RESPONSE TO NORTHWEST ENVIRONMENTAL ADVOCATES MOTION TO REINSTATE AND SUPPLEMENT THE BASIS FOR FUKUSHIMA TASK FORCE REPORT CONTENTION INTRODUCTION Pursuant to 10 C.F.R.§ 2.323(c) and (e),1 the Staff of the U.S. Nuclear Regulatory Commission (NRC Staff or Staff) responds to the Motion to Reinstate and Supplement the Basis for Fukushima Task Force Report Contention (Motion) filed on October 28, 2011 by petitioner Northwest Environmental Advocates (NWEA or Petitioner) under the 10 C.F.R.§ 2.323(e) standard for motions for reconsideration.2 Petitioners seek reinstatement of their contention based upon SRM-SECY-11-0124 (SRM)3 and assert that it establishes the environmental significance of the Fukushima Near-Task Forces recommendations, and thus makes their contention ripe for adjudication.
As set forth below, the Atomic Safety and Licensing Board (Board) should deny the Motion. NWEA did not seek the required leave to file a motion for reconsideration, does not 1
The Petitioner specifically references 10 C.F.R. § 2.323(e) as the basis for its motion. Motion at
- 1. Therefore, the NRC Staff is complying with the rules regarding replies to such motions and is treating NWEAs Motion as a motion for reconsideration. To the extent that the title and substance of the Motion implies that NWEA is seeking to reinstate or supplement its contention, NWEA does not cite or address the standards for doing so.
2 Motion to Reinstate and Supplement the Basis for the Fukushima Task Force Report Contention (Oct. 28, 2011) (ADAMS Accession No. ML11301A362) (Motion).
3 SRM - SECY-11-0124 - Recommended Action to be Taken Without Delay from the Near Term Task Force Report (Oct. 18, 2011) (ADAMS Accession No. ML112911571).
address the standard for reconsideration, and does not meet the standard for reconsideration because NWEA does not identify any compelling circumstances that render the Boards Order invalid. To the extent that NWEA seeks to reinstate or supplement its contention, NWEA may not do so where a proceeding has never been established, the contention was never admitted, and the Petitioner does not address the standards for amending contentions. SRM-SECY 0124 does not provide any support for the underlying contention, does not demonstrate a genuine dispute unique to the Columbia Generating Station (CGS) license renewal proceeding, and does not show that the concerns the motion raises are ripe for adjudication. Thus, the Board should deny the motion.
BACKGROUND On January 19, 2010, Energy Northwest filed an application to renew the operating license for Columbia Generating Station for a period of an additional 20 years.4 Petitions to intervene were due by May 10, 2010.5 No person filed a timely petition to intervene and therefore no adjudicatory proceedings were established. NWEA has not been admitted as a party.
On August 22, 2011, NWEA filed a contention alleging that the Environmental Report for the CGS license renewal failed to satisfy NEPA because it does not address the new and significant environmental implications of the findings and recommendations raised by the NRC's Fukushima Task Force Report.6 On October 18, 2011, the Board issued an Order Denying 4
Letter from WS Oxenford, Vice President, Nuclear Generation & Chief Nuclear Officer, dated January 19, 2010, transmitting application for license renewal for CGS, operating license NPF-21 (ADAMS Accession No. ML100250656) (LRA or Application).
5 Energy Northwest; Notice of Receipt and Availability of Application for Renewal of Columbia Generating Station Facility Operating License No. NPF-21 for an Additional 20-Year Period, 75 Fed. Reg.
5,353 (February 2, 2010); 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 (March 11, 2010).
6 Petition for Hearing and Leave to Intervene in Operating License Renewal for Energy Northwests Columbia Generating Station at 20 (August 22, 2011) (ADAMS Accession No. ML11234A532).
Motions to Reopen Closed Proceedings and Intervention Petition / Hearing Request as Premature that generically denied reopening in four proceedings for combined license applications for new reactors and denied the petition to intervene in the CGS license renewal application based on a substantially similar contention filed in all of the proceedings.7 The Board held, consistent with the Commissions recent decision in CLI-11-05,8 that the contention was premature and that the information contained in the Task Force Report (TFR),9 in and of itself, did not constitute new and significant information that would require the supplementation of the environmental documents that NWEA requests.10 Moreover, the Board found it worthy of note that NWEA did not point to any unique characteristics of the site of the particular reactor that might make the content of the Task Force report of greater environmental significance to that reactor than to United States reactors in general11 in light of the Commissions reiteration of the requirement that new and significant information must present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.12 NWEAs Motion requests that the Board reinstate and supplement the basis of its contention seeking consideration of the environmental implications of the TFR, but states that 7
PPL Bell Bend, LLC (Callaway Plant, Unit 2), LBP-11-27, 74 NRC __ (Oct. 18, 2011) (slip op.)
(Order). The Board primarily addressed the legal arguments from the Vogtle combined license application proceeding and applied them generically to all five proceedings. Order at 6. Because the NRC reviews combined license applications under different standards than license renewal applications, the NRC Staff is filing separately for the CGS license renewal application. The NRC reviews combined license applications under Part 52 and conducts a full environmental review while the review for license renewal applications is more limited in scope under Part 54 and utilizes the Generic Environmental Impact Statement for license renewal.
8 Union Electric Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-05, 74 NRC __
(Sept. 9, 2011) (slip op.) (CLI-11-05).
9 Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident (July 12, 2011) (ADAMS Accession No. ML111861807).
10 Order at 12-13.
11 Id. at 13-14.
12 Id. at 12-13 (emphasis added).
10 C.F.R.§ 2.323(e), the standard for motions for reconsideration, is the basis for its motion.13 NWEA contends that the Commissions issuance of SRM-SECY-11-0124 directing the NRC Staff to strive to complete and implement the lessons learned from the Fukushima accident within five years- by 2016 renders the contention no longer premature and should be allowed to supplement the basis of NWEAs original contention.14 Petitioners ask the Board to reinstate the underlying contention, supplement the basis of that contention to include SRM-SECY-11-0124, and rule on the admissibility of the supplemented contention.
DISCUSSION I. Legal Standards Governing Motions for Reconsideration A motion for reconsideration pursuant to 10 C.F.R.§ 2.323(e) may not be filed except upon leave of the adjudicatory body that rendered the decision. Failure to seek leave to file a motion for reconsideration is alone sufficient reason to deny a motion for reconsideration.15 If leave is granted, the motion must show compelling circumstances, such as the existence of an unanticipated, clear and material error, which could not have been anticipated, that renders the decision invalid.16 The purpose of a motion for reconsideration is to permit reconsideration only where manifest injustice would occur in the absence of reconsideration, and the claim could not have been raised earlier.17 Such a motion should be an extraordinary action and should not be 13 Motion at 1. Pursuant to NWEAs citation that the Motion is filed pursuant to 10 C.F.R. § 2.323(e), the NRC Staff will treat the Motion as a motion for reconsideration. Motion at 1. To the extent that this is an appeal of the contention, the Commissions rules do not allow for such a motion. Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI-10-9, 71 NRC 245, 252 (2010).
14 See Motion at 1-2.
15 Shearon Harris, CLI-10-9, 71 NRC at 252. See also Dominion Nuclear Connecticut, Inc.
(Millstone Nuclear Power Station, Units 2 and 3), CLI-02-1, 55 NRC 1, 2 (2002).
16 Id.
17 Changes to the Adjudicatory Process, 69 Fed. Reg. 2,182, 2,207 (Jan. 14, 2004). The 2004 changes to the standard for motions to reopen were intended to raise the standard above that established by existing case law. Id.
used as an opportunity to reargue facts and rationales which were (or should have been) discussed earlier.18 In keeping with the notion that, in a motion for reconsideration a party should not raise arguments previously presented, the Commission has held that a party cannot incorporate[ ] by reference the legal arguments made in the previous motions and pleadings, but must provide new justification as to why [a decision] deserves reconsideration.19 Further, a party raising new arguments must not previously have been able to make those arguments.20 Moreover, a motion for reconsideration is not an opportunity for a party to attempt to cure an unsatisfactory outcome on a particular issue. Instead, a party seeking reconsideration must demonstrate a fundamental . . . misunderstanding of a key point by the Board.21 Indeed,
[r]econsideration petitions must establish an error in a . . . decision, based upon an elaboration or refinement of an argument already made, an overlooked controlling decision or principle of law, or a factual clarification.22 II. NWEA Does Not Identify a Compelling Circumstance that Would Justify Reconsideration Notwithstanding NWEAs failure to seek leave to file the Motion,23 NWEA does not address the standards for a motion for reconsideration discussed above. Moreover, NWEA does not explain why its Motion meets the high showing required to demonstrate compelling circumstances . . .such as clear and material errorthat renders the decision invalid or that 18 Id.
19 Shearon Harris, CLI-10-9, 71 NRC at 252.
20 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-22, 65 NRC 525, 527 (2007)
(citing Consumers Energy Co. (Big Rock Point Independent Spent Fuel Storage Installation), CLI-07-21, 65 NRC 519 (2007)).
21 See, e.g., Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622 (2004).
22 Millstone, CLI-02-1, 55 NRC at 2.
23 Shearon Harris, CLI-10-9, 71 NRC at 252 (failure to seek leave to file a motion for reconsideration is alone sufficient reason to deny a motion for reconsideration).
manifest injustice would occur as required by the standard for motions for reconsideration.24 NWEA contends that the Commissions issuance of SRM-SECY-11-0124 indicates that the Commission has accepted the TFR in significant respects.25 According to NWEA, this demonstrates the admissibility of the underlying contention because it establishes the environmental significance of the Task Forces recommendations. Although the Board noted, in part, that the contentions were premature in light of the fact that none of the findings and recommendations of the TFR had been accepted by the Commission,26 the issuance of the SRM is not a compelling circumstance that renders the decision denying the petition invalid.
The Commission never stated that acceptance of the information in the TFR would create new and significant information. Rather, the Commission required the discovery of new and significant information specifically relating to a proposed action beyond the information contained in the TFR.27 The Commissions decision in CLI-11-05 took account of the contents of the TFR,28 and found that the information in the TFR, in conjunction with the agencys present understanding of the events at Fukushima, did not constitute new and significant information so as to require supplementation of environmental documents in licensing-specific cases.29 The Commission emphasized that the new information must present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned and 24 Shearon Harris, CLI-10-9, 71 NRC at 252. See also Entergy Nuclear Vermont Yankee, L.L.C.
(Vermont Yankee Nuclear Power Station and Pilgrim Nuclear Power Station), CLI-07-13, 65 NRC 211 (2007).
25 Motion at 3.
26 Order at 13. Although the Board was probably unaware of the issuance of the SRM on the same day that the Order was issued, that does not change the fact that NWEA does not meet the standard for reconsideration.
27 CLI-11-05 at 30-31.
28 The Commission stated that [a[lthough the Task Force completed its review and provided its recommendations to us, the agency continues to evaluate the accidentthe full picture of what happened at Fukushima is still far from clear. CLI-11-05 at 30 (emphasis added).
29 CLI-11-05 at 30.
found that that is not the case here, given the current state of information available to us.30 The SRM, which authorizes the NRC Staff to initiate actions to implement some of the safety recommendations in the TFR, does not add any information to the contents of the TFR that creates new and significant information in individual licensing proceedings.31 Specifically, the SRM authorizes the Staff to initiate actions such as engaging with stakeholders, developing technical basis documents, and publishing advanced notices of proposed rulemaking, as it works on implementing certain Task Force recommendations. The SRM also reaffirms the Commissions prior direction to the Staff to separately address Task Force Recommendation 1, regarding redefining what level of protection of public health and safety should be regarded as adequate, in a Commission paper no later than January 2013.32 Because the SRM does not address the environmental significance of these recommendations, the obligation falls to NWEA to demonstrate how the SRM constitutes sufficient additional information to warrant further NEPA consideration in this proceeding. NWEA makes no attempt to do so. As a result, NWEA has not demonstrated that its environmental concerns are ripe at this time.
NWEA also does not identify any link to the CGS license renewal application in either its Petition or the SRM. Under the Commissions standard for supplementation of an environmental impact statement, not only must NWEA put forth information that is both new and significant, the information must be relevant to environmental concerns and bearing upon the proposed action or its impacts.33 The Board found in its Order that NWEA did not point to any unique 30 Order at 12-13 citing CLI-11-05 at 30-31.
31 CLI-11-05 at 30-31 (citing 10 C.F.R. § 51.72(a) and emphasizing that any new circumstances or information must bear upon the proposed action or its impacts).
32 SRM at 2 (directing Staff to submit a separate Commission notation vote paper providing option to disposition Task Force Recommendation 1 within 18 months of issuance of this SRM).
33 CLI-11-05 at 31 (emphasis added by the Commission). The Commission noted in CLI-11-05 that part of the reason that it denied the petition for suspension was that the Petition fails to identify specific problems with any captioned COL application or license renewal application. CLI-11-05 at 22.
This lack of a specific link between the relief requested and the particulars of the individual applications makes it difficult to conclude that moving forward with any individual licensing decision or proceeding will
characteristics of the site of the particular reactor that might make the content of the Task Force report of greater environmental significance to that reactor than to United States reactors in general.34 Neither the SRM nor NWEAs motion provides any indication of how the recommendations or the implementation of the recommendations specifically affects the CGS license renewal application.35 The SRM does not disturb the Boards decision because it does not establish the environmental significance of the Task Forces recommendations and it does not contain any information unique to the Columbia license renewal proceeding that would establish a genuine dispute with the application.36 Accordingly, there are no compelling circumstances or changed circumstances rendering a clear and material error in the Boards decision to deny the petition as premature.37 III. NWEA Impermissibly Seeks to Reinstate and Supplement the Contentions Basis Although NWEA cites 10 C.F.R.§ 2.323(e) as the basis for its Motion, NWEA states it seeks to reinstate and supplement the contentions basis to assert that the Commissioners of the [NRC] have recognized the safety and environmental significance of the conclusions and recommendations of the TFR by issuing the SRM.38 To the extent that NWEA seeks to reinstate its contention, the contention was never admitted and cannot be reinstated, especially as NWEA has not yet been admitted as a party to this proceeding. NWEA furthermore does not address have a negative impact on public health and safety. Id.
34 Order at 14.
35 The Board in Seabrook found a substantially similar contention inadmissible not only because it was premature but also because it and its supporting Declaration from Dr. Makhijani completely failed to reference the specific application and therefore could not meet the contention admissibility standards.
NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-28, 74 NRC __ (slip op. at 7) (Oct.
19, 2011).
36 10 C.F.R. § 2.309(f)(1)(vi).
37 Shearon Harris, CLI-10-9, 71 NRC at 252.
38 Motion at 1.
either the 10 C.F.R.§ 2.309(f)(2) or the 10 C.F.R.§2.309(c) standards that are required to supplement the basis for a contention or file a new contention.39 Nor does the contention meet the standards of 10 C.F.R.§ 2.309(f)(1) for contention admissibility, which must be met in order to supplement a contention.40 IV. The SRM Does Not Provide a Basis for a Hearing in License Renewal To the extent that the Board addressed the Petition generically in conjunction with four combined license applications, the scope of license renewal proceedings is more limited than that for combined license applications. As the Commission stated in CLI-11-05, the scope of license renewal review is a limited one[i]t is not clear whether any enhancements or changes considered by the Task Force will bear on our license renewal regulation, which encompass a more limited review.41 To the extent that the Commission intended to apply the recommendations of the Task Force by orders or by rulemaking, it anticipated that the public would be allowed to participate via the normal processes [for rulemaking and Commission orders], which include appropriate opportunities for public and stakeholder input.42 Accordingly, the SRM, which directs the NRC Staff to initiate actions to implement certain TFR safety recommendations, directs implementation through rulemaking, orders, 50.54(f) letters, or generic letters43 with the corresponding avenues for public participation in those types of actions. The actual specific licensing or rulemaking activities that may in themselves trigger 39 Nuclear Management Company, LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006).
40 Shaw Areva Mox Services, LLC (Mixed Oxide Fuel Fabrication Facility), CLI-09-2, 69 NRC 55, 66 (2009).
41 CLI-11-05 at 26 (emphasis added by the Commission). The Commission noted that it can modify a facilitys operating license outside of a renewal proceeding and made clear that it will use the information from these activities to impose any requirement it deems necessary, irrespective of whether a plant is applying for or has been granted a renewed operating license. Id. at 26-27.
42 CLI-11-05 at 32.
43 SRM at 1.
NEPA requirements have not occurred and are expected to be implemented and completed within five years. Many of these activities await the development of additional information, significant input and comment opportunities from external stakeholders and the potential for further Commission involvement or approval before the activities are formally implemented.
Moreover, NWEA may address its environmental concerns by submitting comments on the draft SEIS for CGS that was noticed in the Federal Register on September 1, 2011, and remains open for comments until November 11, 2011.44 CONCLUSION For all of these reasons, the Board should deny the motion.
Respectfully submitted,
/Signed (electronically) by/
Lloyd B. Subin Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop- O-15D21 Washington, DC 20555 Telephone: (301) 415-1988 E-mail: Lloyd.Subin@nrc.gov Date of signature: November 7, 2011 44 Energy Northwest, Columbia Generating Station; Notice of Availability of Draft Supplement 47 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants and Public Meetings for License Renewal of Columbia Generating Station, 76 Fed. Reg. 54,502 (Sep. 1, 2011).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENERGY NORTHWEST ) Docket No. 50-397-LR
)
(Columbia Generating Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFFS RESPONSE TO NORTHWEST ENVIRONMENTAL ADVOCATES MOTION TO REINSTATE AND SUPPLEMENT THE BASIS FOR FUKUSHIMA TASK FORCE REPORT CONTENTION in the above captioned proceeding have been served upon the following by the Electronic Information Exchange, this 7th day of November, 2011:
Administrative Judge U.S. Nuclear Regulatory Commission Alan S. Rosenthal, Chair Office of Commission Appellate Adjudication Atomic Safety and Licensing Board Panel Mail Stop: O-16C1 Mail Stop - T-3 F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission ocaamail@nrc.gov Washington, DC 20555-0001 E-mail: Alan.Rosenthal@nrc.gov Administrative Judge U.S. Nuclear Regulatory Commission Dr. Gary S. Arnold Office of the Secretary of the Commission Atomic Safety and Licensing Board Panel Mail Stop: O-16C1 Mail Stop - T-3 F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission hearingdocket@nrc.gov Washington, DC 20555-0001 E-mail: Gary.Arnold@nrc.gov Administrative Judge Energy Northwest Dr. William H. Reed P.O. Box 968, MD PE13 Atomic Safety and Licensing Board Panel Richland, WA 99352 Mail Stop - T-3 F23 Pamela Bradley, Assistant General Counsel U.S. Nuclear Regulatory Commission prbradley@energy-northwest.com Washington, DC 20555-0001 E-mail: William.Reed@nrc.gov
Northwest Environmental Advocates Morgan, Lewis & Bockius LLP P.O. Box 12187 1111 Pennsylvania Avenue, N.W.
Portland, OR 972112 Washington, DC 20004 Nina Bell, Executive Director Raphael P. Kuyler, Esq.
nbell@advocates-nwea.org rkuyler@morganlewis.com Kathryn M. Sutton, Esq.
ksutton@morganlewis.com
/Signed (electronically) by/
Lloyd B. Subin Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop- O-15D21 Washington, DC 20555 Telephone: (301) 415-1988 E-mail: Lloyd.Subin@nrc.gov