ML11318A203

Energy Northwests Answer in Opposition to Petition for Review of LBP-11-27

ML11318A203
Person / Time
Site:	Columbia
Issue date:	11/14/2011
From:	Frantz S, Kuyler R Energy Northwest, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
RAS 21422, 50-397-LR, ASLBP 11-912-03-LR-BD01, LBP-11-27
Download: ML11318A203 (21)

Text

DB1/ 68487273 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of

)

)

Docket No. 50-397-LR ENERGY NORTHWEST

)

)

November 14, 2011 (Columbia Generating Station)

)

_____________________________________________)

ENERGY NORTHWESTS ANSWER IN OPPOSITION TO PETITION FOR REVIEW OF LBP-11-27 Steven P. Frantz, Esq.

Raphael P. Kuyler, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-3000 Fax: 202-739-3001 E-mail: sfrantz@morganlewis.com Counsel for Energy Northwest

TABLE OF CONTENTS Page i

DB1/ 68487273 I.

INTRODUCTION............................................................................................................. 1 II.

PROCEDURAL HISTORY............................................................................................... 2 III.

STANDARD OF REVIEW............................................................................................... 4 IV.

THE PETITION FOR REVIEW SHOULD BE REJECTED............................................ 6 A.

NWEAs Petition for Review Should be Rejected as Procedurally Deficient................................................................................................................. 6

1.

NWEAs Petition for Review Should be Rejected as Untimely Pursuant to 10 C.F.R. § 2.311.................................................................... 6

2.

NWEAs Petition for Review Should be Rejected As Improper in Light of Its Pending Motion Before the Board.......................................... 6 B.

Petitioner Fails to Show that the Board Committed an Error of Law or Abuse of Discretion............................................................................................... 7

1.

The Board Did Not Err in Its Interpretation of CLI-11-05........................ 7

2.

The Board Did Not Err in its Interpretation of NEPA............................... 9 C.

The Commission Should Affirm the Boards Decision Based on Additional Reasons Set Forth in the Record........................................................ 11

1.

NWEAs Motion Raises Issues that Are Likely to Become the Subject of Rulemaking............................................................................. 12

2.

NWEAs Motion Does Not Raise a Genuine Dispute Regarding the Environmental Impacts of Severe Accidents or SAMAs................... 13 V.

CONCLUSION................................................................................................................ 13

TABLE OF AUTHORITIES Pages ii DB1/ 68487273 U.S. Court of Appeals Decisions Concerned Citizens on I-190 v. Secretary of Transportation, 641 F.2d 1 (1st Cir. 1981)............11 Hertz v. Luzenac America, Inc., 370 F.3d 1014 (10th Cir. 2004)..................................................12 New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir. 1978).....................11 Sierra Club v. Froehlke, 816 F.2d 205 (5th Cir. 1987).................................................................10 Sierra Club v. U.S. Army Corps of Engineers, 295 F.3d 1209 (11th Cir. 2002)...........................11 South Trenton Residents Against 29 v. Federal Highway Administration, 176 F.3d 658 (3d Cir. 1999).................................................................................................................................11 Township of Springfield v. Lewis, 702 F.2d 426 (3d Cir. 1983)....................................................11 Wisconsin v. Weinberger, 745 F.2d 412 (7th Cir. 1984)...............................................................10 U.S. District Court Decision Alliance to Save the Mattaponi v. U.S. Army Corps of Engineers, 606 F. Supp. 2d 121 (D.D.C. 2009)................................................................................................................................11 Administrative Decisions Advanced Med. Sys., Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC 285 (1994)..........................................................................................................................5 AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111 (2006)........................................................................................5 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Unit 1), LBP-07-11, 66 NRC 41 (2007)........................................................................................................................................12 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631 (2004)..........................................................................................................................5 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 & 3), CLI-99-11, 49 NRC 328 (1999).............................................................................................................................................12

DB1/ 68487273 TABLE OF AUTHORITIES (continued)

Pages iii Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-07-2, 65 NRC 10 (2007)...........................................................................................................................................4, 6 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-10-19, 72 NRC __, slip op. (July 8, 2010)................................................................................................12 Hydro Res., Inc. (2929 Coors Rd., Suite 101, Albuquerque, N.M. 87120), CLI-99-22, 50 NRC 3 (1999)............................................................................................................................10 Intl Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-97-9, 46 NRC 23 (1997)...............7 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-855, 24 NRC 792 (1986)..............................................................................................................................................5 Next Era Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-28, 74 NRC __, slip op.

(Oct. 19, 2011)...........................................................................................................................4, 13 Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 AEC 13 (1974)...............................................................................................................................12 Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2),

ALAB-218, 8 AEC 79 (1974)........................................................................................................12 PPL Bell Bend, L.L.C. (Bell Bend Nuclear Power Plant), LBP-11-27, 74 NRC__, slip op. (Oct. 18, 2011)................................................................................................................. passim Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318 (1999)........................................................................................................................................5 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1 (2001)...............................................................................................................................................7 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160 (2005).............................................................................................................................................12 Progress Energy Fla., Inc. (Combined License Application, Levy County Nuclear Power Plant, Units 1 & 2), CLI-10-02, 71 NRC 27 (Jan. 7, 2010).............................................................5 Pub. Serv. Co. of N.H. (Seabrook Station, Unit 1), CLI-91-14, 34 NRC 261 (1991).....................6 S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-01, 71 NRC 1 (2010)...............................................................................................................................................5

DB1/ 68487273 TABLE OF AUTHORITIES (continued)

Pages iv Union Electric Co. (Callaway Plant, Unit 2), CLI-11-05, 74 NRC __, slip op.

(Sept.9, 2011)......................................................................................................................... passim Federal Regulations 10 C.F.R. § 2.309.....................................................................................................................12, 13 10 C.F.R. § 2.311.................................................................................................................1, 4, 5, 6 10 C.F.R. § 2.323.............................................................................................................................6 10 C.F.R. § 2.341.........................................................................................................................5, 7 10 C.F.R. § 2.1015...........................................................................................................................5 10 C.F.R. § 51.92...........................................................................................................................10 Federal Register 75 Fed. Reg. 11,572 (March 11, 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...........................................................................................................................2 Other Authorities Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Diichi Accident (July 12, 2011),

ADAMS Accession No. ML111868071................................................................................ passim Staff Requirements - SECY-11-0124 - Recommended Actions To Be Taken Without Delay From the Near-Term Task Force Report (Oct. 18, 2011), ADAMS Accession No. ML112911571........................................................................................................................ passim

DB1/ 68487273 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of

)

)

Docket No. 50-397-LR ENERGY NORTHWEST

)

)

November 14, 2011 (Columbia Generating Station)

)

_____________________________________________)

ENERGY NORTHWESTS ANSWER IN OPPOSITION TO PETITION FOR REVIEW OF LBP-11-27 I.

INTRODUCTION In accordance with 10 C.F.R. § 2.311(b), Energy Northwest submits this Answer in Opposition to the Petition for Review of LBP-11-27 (Petition for Review), filed by Northwest Environmental Advocates (NWEA or Petitioner) on November 2, 2011.1 The Petition for Review seeks to reverse the Atomic Safety and Licensing Board (Board) decision in LBP-11-27,2 which rejected NWEAs Petition for Hearing and Leave to Intervene along with a single proposed contention (Fukushima Contention) claiming to address the environmental implications of the NRC Task Force Report on Fukushima (Task Force Report).3 For the reasons discussed below, the Petition for Review should be denied on both procedural and substantive grounds. Specifically: (1) the appeal is not timely; (2) NWEA 1

The same Petition for Review was filed by various other petitioners on the dockets of three other proceedings:

the Comanche Peak Units 3 and 4 combined license (COL) proceeding; the Vogtle Units 3 and 4 COL proceeding, and the W. S. Lee Units 1 and 2 COL proceeding. See Petition for Review at 1.

2 PPL Bell Bend, L.L.C. (Bell Bend Nuclear Power Plant), LBP-11-27, 74 NRC __, slip op. (Oct 18, 2011).

3 Petition for Hearing and Leave to Intervene in Operating License Renewal for Energy Northwests Columbia Generating Station (Aug. 22, 2011) (Hearing Petition). The Hearing Petition also attached the Declaration of Dr. Arjun Makhijani Regarding Safety and Environmental Significance of NRC Task Force Report Regarding Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (Aug. 8, 2011) (Makhijani Declaration). The Task Force Report (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)) is available at ADAMS Accession No. ML111861807.

DB1/ 68487273 2

impermissibly seeks Commission review immediately after submitting a motion for reconsideration of the same underlying decision; and (3) the Petition for Review fails to show that the Board committed an error of law or abuse of discretion. On the contrary, there are ample grounds in the record upon which the Commission should affirm the Boards decision.

Accordingly, the Commission should deny the Petition for Review.

II.

PROCEDURAL HISTORY The current operating license for Columbia Generating Station (Columbia) expires on December 20, 2023.4 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.5 The NRC accepted the Application for docketing and published a Hearing Notice in the Federal Register on March 11, 2010.6 Requests for hearing and petitions for leave to intervene were due 60 days from the publication of the Hearing Notice, or by May 10, 2010.7 No person or entity filed a petition to intervene in response to the Hearing Notice.

Over a year later, on April 18, 2011, NWEA belatedly began its attempts to intervene in this proceeding by filing a petition seeking to suspend all decisions and hearings in this (and other) proceedings, perform a National Environmental Policy Act (NEPA) analysis to evaluate whether the Fukushima accident constitutes new and significant information for NEPA 4

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).

5 See id.

6 See id.

7 See id. at 11,572-73.

DB1/ 68487273 3

purposes, and take other related action (Suspension Petition).8 Thereafter, on August 22, 2011, NWEA filed its Hearing Petition, containing its Fukushima Contention, which alleges:

The ER [Environmental Report] for CGS [Columbia Generating Station] license renewal fails to satisfy the requirements of NEPA because it does not address the new and significant environmental implications of the findings and recommendations raised by the NRCs Fukushima Task Force Report. As required by NEPA and the NRC regulations, these implications must be addressed in the ER.9 The NRC Staff opposed the Hearing Petition in its Answer to Petition for Hearing and Leave to Intervene, filed on September 15, 2011, as did Energy Northwest in its Answer in Opposition to Petition for Hearing and Leave to Intervene (Energy Northwests Answer), filed on September 16, 2011.

In the interim, on September 9, 2011, the Commission issued a decision in this proceeding and a number of other proceedings, CLI-11-05, rejecting the Suspension Petition.10 In CLI-11-05, the Commission held that the Fukushima accident and the Task Force Report do not constitute new and significant information and that the petitioners request was premature given that the full picture of what happened at Fukushima is still far from clear.11 Following CLI-11-05, on October 18, 2011, the Board issued LBP-11-27, rejecting the 8

See 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 (dated Apr. 14-18, 2011, but served on Apr. 18, 2011). All references made herein to the Suspension Petition cite to its corrected version dated April 18, 2011. A number of other organizations submitted substantially the same petition on the dockets of numerous other NRC proceedings.

9 Hearing Petition at 20. Again, numerous other organizations submitted versions of the Hearing Petition on other dockets, attaching the same Makhijani Declaration.

10 Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-05, 74 NRC __, slip op. (Sept. 9, 2011).

11 See id. at 30-31.

DB1/ 68487273 4

Fukushima Contention in this and a number of other proceedings.12 Relying on CLI-11-05, the Board ruled that the Fukushima Contention was premature.13 On October 28, 2011, NWEA filed a Motion to Reinstate and Supplement the Basis for Fukushima Task Force Report Contention (Motion to Reinstate). NWEAs Motion to Reinstate points to a Staff Requirements Memorandum (SRM) on SECY-11-012414 issued by the Commission on October 18, 2011 (SRM/SECY-11-0124),15 and argues that its Fukushima Contention is no longer premature because the Task Force recommendations have now been accepted by the Commission.16 The Motion to Reinstate remains pending before the Board as of this date.

Five days after filing the Motion to Reinstate, Petitioner filed the Petition for Review, raising before the Commission substantially the same issues that Petitioner placed before the Board via the Motion to Reinstatenamely, the validity of LBP-11-27.

III.

STANDARD OF REVIEW An order denying a petition to intervene and/or request for hearingsuch as LBP 27is appealable by the petitioner and/or requester pursuant to 10 C.F.R. § 2.311.17 Section 2.311(b) explicitly directs that No other appeals from rulings on requests for hearing are allowed.18 Contrary to this rule, NWEA does not rely on Section 2.311 in its Petition for 12 Similarly, the licensing board in the Seabrook license renewal proceeding also recently rejected a proposed contention that was substantially identical to the contention offered by the Petitioner. See NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-28, 74 NRC __, slip op. at 2-3, 9 (Oct. 19, 2011).

13 See Bell Bend, LBP-11-27, slip op. at 13.

14 SECY-11-0124, Recommended Actions to be Taken Without Delay From the Near-Term Task Force Report (Sept. 9, 2011), available at ADAMS Accession No. ML11245A127.

15 Staff Requirements - SECY-11-0124 - Recommended Actions To Be Taken Without Delay from the Near Term Task Force Report (Oct. 18, 2011), available at ADAMS Accession No. ML112911571.

16 See Motion to Reinstate at 3.

17 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-07-2, 65 NRC 10, 11 (2007).

18 10 C.F.R. § 2.311(b) (emphasis added).

DB1/ 68487273 5

Review; instead, it cites to 10 C.F.R. § 2.341(b),19 which simply does not apply to this appeal.20 Indeed, § 2.341 explicitly excludes appeals subject to Section 2.311, stating that: Except for requests for review or appeals under § 2.311 or in a proceeding on the high-level radioactive waste repository (which are governed by § 2.1015), review of decisions and actions of a presiding officer are treated under this section....21 The Commission reviews Board decisions on contention admissibility under a standard of substantial deference,22 and such decisions are subject to reversal only due to an error of law or abuse of discretion.23 The appellant bears the responsibility of clearly identifying the errors in the decision below and ensuring that its brief contains sufficient information and cogent argument to alert the other parties and the Commission to the precise nature of and support for the appellants claims.24 As discussed in detail below, in addition to a number of threshold procedural deficiencies, the Petition for Review fails to demonstrate any abuse of discretion or error of law in the Boards decision. Therefore, the Petition for Review should be denied and the Boards order should be affirmed.

19 Petition for Review at 1.

20 See 10 C.F.R. § 2.341(a)(1). Under 10 C.F.R. § 2.311 there is no opportunity for reply as there is under 10 C.F.R. § 2.341. Compare 10 C.F.R. § 2.311(b) with 10 C.F.R. § 2.341(c)(2). Petitioner is therefore not authorized to file a reply to this answer. It certainly should not be afforded such an opportunity because it relied upon the incorrect regulation in filing its appeal.

21 10 C.F.R. § 2.341(a)(1) (emphasis added).

22 AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 121 (2006) (citing Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 324 (1999); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-855, 24 NRC 792, 795 (1986)).

23 See S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-01, 71 NRC 1, 5-6 & n.24 (2010); Progress Energy Fla., Inc. (Combined License Application, Levy County Nuclear Power Plant, Units 1

& 2), CLI-10-02, 71 NRC 27, 29 (2010).

24 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 639

n. 25 (2004) (quoting Advanced Med. Sys., Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC 285, 297 (1994)).

DB1/ 68487273 6

IV.

THE PETITION FOR REVIEW SHOULD BE REJECTED A.

NWEAs Petition for Review Should be Rejected as Procedurally Deficient

1.

NWEAs Petition for Review Should be Rejected as Untimely Pursuant to 10 C.F.R. § 2.311 NWEAs Petition for Review should be rejected as untimely. As discussed above, challenges to Board rulings denying a request for hearing or petition to intervenesuch as NWEAs Hearing Petitionfall under 10 C.F.R. § 2.311.25 Section 2.311 specifies that appeals of an order with respect to a request for hearing or petition to intervene must be made... within ten (10) days after the service of the order.26 The Boards decision in LBP-11-27 was issued on October 18, 2011. Petitioners filed their Petition for Review on November 2, 2011, five days past the deadline for a timely petition. Accordingly, the Petition for Review should be denied as untimely.27

2.

NWEAs Petition for Review Should be Rejected As Improper in Light of Its Pending Motion Before the Board NWEAs Petition for Review should be denied in light of its pending Motion to Reinstate before the Board. NWEA filed its Motion to Reinstate on October 28, 2011, citing 10 C.F.R.

§ 2.323(e), which applies to motions for reconsideration. NWEAs Petition for Review should be disallowed because the Motion to Reinstate remains pending before the Board.28 Because the Motion to Reinstate is pending before the Board, it would be wasteful of the resources of the 25 See Pilgrim, CLI-07-2, 65 NRC at 11 (explaining that 10 C.F.R. § 2.311 applies to appeals where a petitioner challengers an order denying a petition to intervene and/or request for hearing and no other appeals from rulings on requests for hearings are allowed).

26 10 C.F.R. § 2.311(b).

27 See Pub. Serv. Co. of N. H. (Seabrook Station, Unit 1), CLI-91-14, 34 NRC 261, 264-66 (1991) (denying appeal of Boards order denying petition to intervene because brief in support of appeal was not filed within ten days after service of Boards order).

28 See Intl Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-97-9, 46 NRC 23, 23 (1997) (The Commission disapproves of the practice of simultaneously seeking reconsideration of a Presiding Officers decision and filing an appeal of the same ruling, because taking that approach would call for rulings on the same issues at the same time from both a trial and appellate forum.) (citation omitted).

DB1/ 68487273 7

Commission to rule on the Petition for Review, and both case law and regulations indicate that a petition for review under such circumstances should be rejected.29 The inappropriateness of the Petition for Review is further highlighted by the fact that the Petition for Review repeats arguments in the Motion to Reinstate,30 and by NWEAs request that the Commission hold the Petition for Review in abeyance pending a Board ruling on the Motion to Reinstate Accordingly, NWEAs Petition for Review should be denied.

B.

Petitioner Fails to Show that the Board Committed an Error of Law or Abuse of Discretion NWEA fails to show that the Board committed an error of law or abuse of discretion.

Accordingly, NWEA has not met its burden to justify Commission review of the Boards decision.

1.

The Board Did Not Err in Its Interpretation of CLI-11-05 In CLI-11-05, the Commission held that the Fukushima accident and the Task Force Report do not constitute new and significant information and that the petitioners request was premature given that the full picture of what happened at Fukushima is still far from clear.31 NWEA argues that Boards decision in LBP-11-27 is based on a fundamental misperception of CLI-11-05, and that in CLI-11-05 the Commission ruled only that, to date, there is insufficient basis for a generic NEPA review.32 NWEA stresses that the Commission did not make a 29 See id.; see also Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1, 3 (2001); cf. 10 C.F.R. § 2.341(b)(6) (A petition for review will not be granted as to issues raised before the presiding officer on a pending motion for reconsideration.).

30 Compare Petition for Review at 2, 9 n.5 (arguing that SRM/SECY-11-0124 provides new and significant information under NEPA) with Motion to Reinstate at 1-3 (arguing the same).

31 Callaway, CLI-11-05, slip op. at 30-31.

32 Petition for Review at 6.

DB1/ 68487273 8

determination as to whether the Task Force Report raises new and significant information that should be considered in individual licensing proceedings.33 Petitioner offers no explanation as to why the Commissions rationale or result would be different in the context of a site-specific proceeding. Petitioner also failed to make any site-specific arguments to the Board and does not claim that the Board ignored any site-specific considerations. Thus, Petitioner offers no reason to conclude that the Board erred in citing to CLI-11-05.

The Board relied on the following Commission analysis in CLI-11-05:

This request is premature. Although the Task Force completed its review and provided its recommendations to us, the agency continues to evaluate the accident and its implications for U.S.

facilities and the full picture of what happened at Fukushima is still far from clear. In short, we do not know today the full implications of the Japan events for U.S. facilities. Therefore, any generic NEPA duty - if one were appropriate at all - does not accrue now.34 There is nothing in the Commissions decision that would limit its reasoning to a generic NEPA analysisits reasoning is equally applicable to site-specific proceedings.

In CLI-11-05, the Commission ruled that the Task Force Report does not contain new and significant information under NEPA.35 The proposed Fukushima Contention presented the Board with an argument virtually identical to the argument ruled on by the Commission in CLI-11-05.36 Due to the generic nature of the Fukushima Contention and its reliance on the Task 33 See id.

34 Bell Bend, LBP-11-27, slip op. at 12 (citing Callaway, CLI-11-05, slip op. at 30).

35 Callaway, CLI-11-05, slip op. at 30.

36 Compare Suspension Petition at 26-30, with Hearing Petition at 20-33.

DB1/ 68487273 9

Force Report, it was entirely appropriate for the Board to rely on CLI-11-05 which addressed the same underlying facts.

The Petition for Review cites to a Commission statement that the Commissions rules provide ample provisions for litigants in reactor adjudications to seek admission of new or amended contentions arising out of the Fukushima events.37 This, however, is not tantamount to a Commission holding that the Task Force Report raises new and significant information for individual licensing proceedings. Accordingly, Petitioner falls far short of showing that the Board legally erred or abused its discretion.

2.

The Board Did Not Err in its Interpretation of NEPA NWEA argues that the Board misinterpreted the NEPA requirement to evaluate new and significant information.38 NWEA alleges that the Board erred in holding that information is not new and significant for purposes of NEPA consideration unless and until it is acted upon.39 The Board, however, did not so hold, and instead clearly applied the correct standard for evaluating whether a NEPA analysis must be performed.

NRC need only supplement an EIS 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 and bearing on the proposed action or its impacts.40 The new information must present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.41 37 Petition for Review at 7-8.

38 Id. at 8-9.

39 See id. at 8.

40 10 C.F.R. § 51.92(a); see also Callaway, CLI-11-05, slip op. at 31; Hydro Res., Inc. (2929 Coors Rd., 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)).

41 Bell Bend, LBP-11-27, slip op. at 12-13 (quoting Callaway, CLI-11-05, slip op. at 31).

DB1/ 68487273 10 NWEA fails to identify any information that comes close to presenting a seriously different picture of the environmental impact of the proposed project from what was previously envisioned. Instead, the Petition for Review merely contains the conclusory statement that the Task Forces recommendation easily surpasses the objective new and significant test because it paints a seriously different picture of the environmental impact of the licensing and re-licensing of nuclear reactors.42 However, the Petition for Review does not point to anything in the Task Force Report that discusses environmental impacts.

Indeed, the Task Force Report contains no new and significant information that might indicate deficiencies in the ER or Draft Supplemental Environmental Impact Statement (DSEIS) that was issued in August 2011.43 Nothing in the Task Force Report addresses or even mentions Columbia, the ER or the DSEIS for license renewal. The Makhijani Declaration is similarly silent on any Columbia-specific issue.44 Moreover, the Task Force Report does not bear on or even discuss the environmental impacts from this (or any other) proposed licensing action. In fact, the Task Force Report does not discuss NEPA issues at all. Thus, Petitioner fails to meet its burden to present new and significant information.

In a footnote on the final page of the Petition for Review, NWEA suggests that SRM/SECY-11-0124, in which the Commission approved the Staffs proposed actions to implement the Near-Term Task Force recommendations, somehow constitutes new and significant information for NEPA purposes.45 Although SRM/SECY-11-0124 is new, it is not significant under NEPA with respect to the Columbia license renewal. The SRM does not even 42 Petition for Review at 9.

43 See CLI-11-05, slip op. at 31.

44 See Makhijani Declaration.

45 See Petition for Review at 9 n.5. This is precisely the issue Petitioner has raised with the Board in the Motion for Reinstatement.

DB1/ 68487273 11 mention Columbia. More fundamentally, the SRM does not discuss any environmental matters.

There is nothing in the SRM that would indicate that the ER or DSEIS has either underestimated the environmental impacts of severe accidents or inadequately evaluated severe accident mitigation alternatives (SAMAs).

Although it is possible that actions discussed in SRM/SECY-11-0124 may improve plant safety, that issue is not material in the context of the environmental analysis in this proceeding.

Such actions may serve to reduce the environmental impacts of the project below the level currently specified in the ER or DSEIS. NEPA case law is clearan agency need not prepare a supplemental EIS when a change will cause less environmental harm than the original project.46 SRM/SECY-11-0124, therefore, does not cure any defects in NWEAs contention and cannot serve as a basis for arguing that additional environmental reviews are required by NEPA.

C.

The Commission Should Affirm the Boards Decision Based on Additional Reasons Set Forth in the Record The Commission may affirm the Boards decision based on any ground finding support in the record, whether relied upon by the Board or not.47 Here, Energy Northwests Answer demonstrated that the Fukushima Contention should be rejected because: (1) it impermissibly 46 See Sierra Club v. U.S. Army Corps of Engrs, 295 F.3d 1209, 1221-22 (11th Cir. 2002); S. Trenton Residents Against 29 v. Fed. Highway Admin., 176 F.3d 658, 663-668 (3d Cir. 1999) (holding that design changes that cause less environmental harm do not require a supplemental EIS); Township of Springfield v. Lewis, 702 F.2d 426, 436 (3d Cir. 1983) (acknowledging that changes which unquestionably mitigate adverse environmental effects of the project do not require a supplemental EIS); Concerned Citizens on I-190 v. Secy of Transp.,

641 F.2d 1, 6 (1st Cir. 1981) (holding that adoption of a new environmental protection statute or regulation clearly does not constitute a change in the proposed action or any information in the relevant sense); New Eng. Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 94 (1st Cir. 1978) (holding that NRC need not supplement an EIS even though the EIS did not discuss the new cooling intake location that would have a smaller impact on the aquatic environment than would the original location); Alliance to Save the Mattaponi

v. U.S. Army Corps of Engrs, 606 F. Supp. 2d 121, 137-138 (D.D.C. 2009) (When a change reduces the environmental effects of an action, a supplemental EIS is not required.).

47 Private Fuel Storage, L.L.C (Indep. Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 166 (2005)

(citing Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1017 (10th Cir. 2004)).

DB1/ 68487273 12 challenges current NRC regulations and requirements; and (2) it does not dispute any specific information related to severe accidents in the Columbia ER or DSEIS.48

1.

NWEAs Motion Raises Issues that Are Likely to Become the Subject of Rulemaking NRC case law makes clear that any contention that collaterally attacks the basic structure of the NRC regulatory process must be rejected as outside the scope of the proceeding.49 Thus, a contention that simply states the petitioners views about what regulatory policy should be does not present a litigable issue. Similarly, Commission precedent dictates that a contention that raises a matter that is, or is about to become, the subject of a rulemaking, is outside the scope of a licensing proceeding and, thus, does not provide the basis for a litigable contention.50 The Fukushima Contention is inadmissible under both of these principles, because it advocates standards beyond those currently contained in NRC regulations and pertains to matters that are about to become the subject of rulemaking.

The Petitioners reference to SRM/SECY-11-0124 does not cure this defect. In fact, it exacerbates the defect. In particular, the SRM directs the Staff to initiate the rulemaking process for some of the Task Force recommendations. Accordingly, the Contention is inadmissible 48 Energy Northwests Answer also demonstrated that NWEAs Hearing Petition was inexcusably late under 10 C.F.R. § 2.309(c) and that the issues raised in the Petition are untimely under 10 C.F.R. § 2.309(f)(2). Energy Northwests Answer at 15-24. The Board, however, did not address those issues because it rejected the Hearing Petition on other grounds. See Bell Bend, LBP-11-27, slip op. at 5. The Commission, however, may affirm the denial of the Hearing Petition on those grounds. Private Fuel Storage, CLI-05-1, 61 NRC at 166 (citing Hertz, 370 F.3d at 1017).

49 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Unit 1), LBP-07-11, 66 NRC 41, 57-58 (2007) (citing Phila. Elec. Co. (Peach Bottom Atomic Power Station, Units 2 &3), ALAB-216, 8 AEC 13, 20 (1974)).

50 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-10-19, 72 NRC __, slip op. at 2-3 (July 8, 2010)); see also Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 & 3), CLI-99-11, 49 NRC 328, 345 (1999) (holding that while the topic petitioners sought to raise was not governed by a current rule, the issuance of an SRM for the NRC Staff to initiate a rulemaking on the topic was sufficient to preclude the topic from litigation in individual licensing proceedings) (citing Potomac Elec. Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-218, 8 AEC 79, 85 (1974)).

DB1/ 68487273 13 because it deals with matters that are to become a subject of rulemaking in accordance with the Commissions directions in SRM/SECY-11-0124.

2.

NWEAs Motion Does Not Raise a Genuine Dispute Regarding the Environmental Impacts of Severe Accidents or SAMAs The Fukushima Contention does not controvert relevant information in Section 4.20 in the ER regarding the environmental impacts of severe accidents and SAMAs. Neither the Fukushima Contention nor the Motion to Reinstate discusses that section of the ER (or the DSEIS issued in August, 2011). Instead, NWEAs Fukushima Contention and Motion to Reinstate are generic in nature and similar to contentions and motions filed in a number of other proceedings.51 Similarly, as discussed above, the Task Force Report and SRM/SECY-11-0124 do not mention Columbia, let alone controvert anything in ER Section 4.20.52 Accordingly, the Fukushima Contention as supplemented by Petitioners reference to SRM/SECY-11-0124 does not satisfy 10 C.F.R. § 2.309(f)(1)(vi) and should be rejected.

V.

CONCLUSION For the reasons discussed above, the Petition for Review is untimely, should be rejected in light of the pending Motion to Reinstate, and fails to show that the Board erred as a matter of law or abused its discretion. Finally, there are several other grounds that support affirming the Boards decision. Accordingly, the Commission should deny the Petition for Review and affirm the decision by the Board.

51 See, e.g., Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant Units 3 and 4), Nos.52-034,-

035, Motion to Reinstate and Supplement the Basis for Fukushima Task Force Report Contention (Oct. 28, 2011); FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), No. 50-346, Motion for Leave to Supplement Basis of Contention Regarding NEPA Requirement to Address Safety and Environmental Implications of the Fukushima Task Force Report (Oct. 28, 2011).

52 See also Seabrook, LBP-11-28, slip op. at 7 (rejecting a substantially similar contention because [n]either the Near-Term Task Force Report nor the declaration of Dr. Makhijani says anything at all about Seabrook, much less tries to link specific recommendations in the Near-Term Task Force Report to specific aspects of the Seabrook LRA. The contention now before us rests on speculation built on speculation.).

DB1/ 68487273 14 Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Steven P. Frantz Raphael P. Kuyler Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-3000 Fax: 202-739-3001 E-mail: sfrantz@morganlewis.com Counsel for Energy Northwest Dated in Washington, DC this 14th day of November 2011

DB1/ 68487273 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of

)

)

Docket No. 50-397-LR ENERGY NORTHWEST

)

)

November 14, 2011 (Columbia Generating Station)

)

_____________________________________________)

CERTIFICATE OF SERVICE I hereby certify that on November 14, 2011, a copy of Energy Northwests Answer in Opposition to Petition for Review of LBP-11-27 was served electronically with the Electronic Information Exchange on the following recipients:

Alan S. Rosenthal Dr. Gary S. Arnold Dr. William H. Reed Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: alan.rosenthal@nrc.gov gary.arnold@nrc.gov William.Reed@nrc.gov Office of the Secretary U.S. Nuclear Regulatory Commission Rulemakings and Adjudications Staff Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Nina Bell Northwest Environmental Advocates P.O. Box 12187 Portland, OR 97212-0187 E-mail: nbell@advocates-nwea.org Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 Lloyd B. Subin Maxwell Smith E-mail: lloyd.subin@nrc.gov maxwell.smith@nrc.gov

DB1/ 68487273 Signed (electronically) by Raphael P. Kuyler Raphael P. Kuyler Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: 202-739-3000 Fax: 202-739-3001 E-mail: rkuyler@morganlewis.com COUNSEL FOR ENERGY NORTHWEST