ML11322A119
| ML11322A119 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 11/18/2011 |
| From: | Polonsky A Morgan, Morgan, Lewis & Bockius, LLP, FirstEnergy Nuclear Operating Co |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 21454, 50-346-LR, ASLBP 11-907-01-LR-BD01 | |
| Download: ML11322A119 (13) | |
Text
DB1/ 68438485 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY
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(Davis-Besse Nuclear Power Station, Unit 1)
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November 18, 2011
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FIRST ENERGY NUCLEAR OPERATING COMPANYS ANSWER OPPOSING INTERVENORS MOTION FOR LEAVE TO SUPPLEMENT BASIS OF CONTENTION REGARDING FUKUSHIMA TASK FORCE REPORT I.
INTRODUCTION This past August 11 and 12, Intervenors1 filed a new contention related to the accident at Fukushima Daiichi.2 On September 6, FirstEnergy Nuclear Operating Company (FENOC) and the NRC Staff filed answers opposing admission of that contention.3 Nearly two months later, on October 28, 2011, Intervenors filed a motion for leave to supplement the basis of that contention.4 1
Intervenors are Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio.
2 Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-Ichi Accident (Aug. 11, 2011) (Motion to Admit). Intervenors filed their Contention in Support of Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-Ichi Accident (Contention) on August 12, 2011. The Task Force Report is available at ADAMS Accession No. ML111861807.
3 FirstEnergys Answer Opposing Joint Petitioners Motion to Admit and Proposed Contention Regarding Fukushima Task Force Report (Sept. 6, 2011) (FENOCs Answer); NRC Staffs Answer in Opposition to Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-Ichi Accident (Sept. 6, 2011).
4 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) (Intervenors Motion).
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Intervenors Motion relies on a Staff Requirements Memorandum (SRM) issued by the Commission on October 18, 2011,5 and asserts that this SRM provides further support in addition to the language of the Task Force Report itself and the Declaration of Dr. Arjun Makhijani, for Intervenors contention that the information set forth in the Task Force Report must be considered before issuance of a License Renewal for the Davis-Besse reactor.6 As discussed below, the Commissions issuance of the SRM does not cure the defects in the proffered contention. Moreover, the Intervenors Motion mischaracterizes the SRM and recent licensing board decisions. Accordingly, the Intervenors Motion should be denied in its entirety.
II.
BACKGROUND The Contention, incorporate[d] by reference, states:
The [environmental report] for Seabrook 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 NRC regulations, these implications must be addressed in the ER.7 FENOCs Answer demonstrates that the August 11 Motion to Admit the contention should be summarily dismissed on procedural grounds;8 the Motion to Admit does not satisfy the timeliness requirements of 10 C.F.R. § 2.309(c) and (f)(2);9 and the proffered contention itself fails to satisfy the NRCs admissibility requirements.10 For example, FENOCs Answer demonstrates that:
5 Staff Requirements - SECY-11-0124 - Recommended Actions To Be Taken Without Delay from the Near Term Task Force Report (Oct. 18, 2011) (SRM), available at ADAMS Accession No. ML112911571.
SECY-11-0124 is available at ADAMS Accession No. ML11245A127.
6 See Intervenors Motion at 2.
7 Contention at 5.
8 See FENOCs Answer at 5-8.
9 See id. at 9-16.
10 See id. at 16-27.
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- The contention mischaracterizes the Task Force recommendations and, at its core, is an impermissible challenge to current NRC regulations and requirements.11
- The contention fails to demonstrate that anything in the Task Force Report constitutes new and significant information within the meaning of NRC regulations and case law implementing the National Environmental Policy Act (NEPA).12
- Nothing in the Task Force Report disputes or even discusses any specific information related to severe accidents in the Davis-Besse Nuclear Power Station (Davis-Besse)
Environmental Report (ER).13 After FENOC submitted its Answer, several developments occurred that relate to the Contention. First, the Commission issued a decision in this proceeding (and a number of other proceedings), rejecting a petition submitted by Intervenors to suspend this proceeding pending preparation of a NEPA analysis to address the Fukushima accident.14 That decision 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.15 Second, licensing boards in other proceedings issued decisions (e.g., Bell Bend) rejecting proposed contentions that were substantially identical to the contention proffered by the Intervenors in this proceeding.16 Citing to the Commissions decision in CLI-11-05, those licensing boards ruled that the contentions were premature because the Task Force Report did not constitute new and significant information.17 11 See id. at 17-20.
12 See id. at 20-23.
13 See id. at 25-27.
14 Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-05, 74 NRC __, slip op. (Sept. 9, 2011).
15 Id. at 30-31.
16 See PPL Bell Bend, L.L.C. (Bell Bend Nuclear Power Plant), LBP-11-27, 74 NRC __, slip op. (Oct. 18, 2011);
NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-28, 74 NRC __, slip op. (Oct. 19, 2011).
17 Bell Bend, LBP-11-27, slip op. at 13; Seabrook, LBP-11-28, slip op. at 5-6.
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Third, on October 18, 2011, the Commission issued the SRM, which forms the basis for the Intervenors October 28 motion to supplement the contention. The SRM approved actions to implement the Near-Term Task Force recommendations as proposed by the Staff in SECY 0124. In so doing, the Commission directed the Staff to develop approaches that are flexible and able to accommodate a diverse range of circumstances and conditions.18 Intervenors Motion argues that the pre-condition for accepting the contention, as discussed in Bell Bend, has been satisfied; namely, that litigation of the Task Force recommendations is no longer premature given that the SRM accepts some of those recommendations.19 As demonstrated below, Intervenors overstate the implications of the SRM.
In particular, Intervenors reference to the SRM does not cure the defects in the contention as identified in FENOCs Answer, CLI-11-05, and Bell Bend.
III.
ARGUMENT A.
The SRM Does Not Cure the Defects in the Intervenors Motion to Admit and Contention As discussed above, FENOCs Answer demonstrates that the Contention should be rejected because: (1) it impermissibly challenges current NRC regulations and requirements; (2) it fails to identify any new and significant information under NEPA; and (3) it does not dispute any specific information in the Davis-Besse ER. The issuance of the SRM does not cure any of these defects, or render the supplemented contention admissible.
- 1.
The Contention Raises Issues that Are Likely to Become the Subject of Rulemaking As discussed in Section IV.C.1 of FENOCs Answer, NRC case law makes clear that any contention that collaterally attacks the basic structure of the NRC regulatory process must be 18 SRM at 1.
19 See Intervenors Motion at 2.
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rejected as outside the scope of the proceeding.20 Thus, a contention that simply states the Intervenors views about what regulatory policy should be does not present a litigable issue.
Similarly, as also discussed in Section IV.C.1 of FENOCs Answer, 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.21 FENOCs Answer demonstrates that the contention is inadmissible under both of these principles. Intervenors reliance on the SRM cannot cure this defect. Since the SRM directs the NRC Staff to initiate the rulemaking process for some of the Task Force recommendations, Intervenors reliance on the SRM can be interpreted only as an attempt to interject matters that are about to become the subject of rulemaking into this proceeding. Thus, under well-established case law, the contention is inadmissible.
- 2.
Intervenors Motion Does Not Identify Any New and Significant Information under NEPA As discussed in Section IV.C.2 of FENOCs Answer, NRC need only supplement a NEPA document 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.22 In order to be 20 FENOCs Answer at 17.
21 FENOCs Answer at 18 (citing 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).
22 10 C.F.R. § 51.92(a).
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significant, new information must present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.23 Although the SRM is new, it is not significant with respect to NEPA. As an initial matter, the SRM does not discuss any environmental matters, or mention Davis-Besse.24 Nor is there anything in the SRM that would indicate that the Davis-Besse ER has underestimated any environmental impacts. Intervenors argue that the SRM makes clear that [the Commission]
believes the lessons learned from the Fukushima accident have safety and environmental significance.25 But they misrepresent the SRM and ignore the Commissions holding in CLI-11-05, as applied by the Bell Bend board. The SRM does not comment on the safety or environmental significance of the Fukushima accident, or make reference to NEPA or any agency obligations flowing from that statute. The SRM thus has nothing to do with the Contention. Rather, it directs the Staff to implement the Task Force recommendations as described in SECY-11-0124, subject to the Commissions related guidance in the SRM.
Moreover, Intervenors disregard the Commissions holding in CLI-11-05 that the Task Force Report does not contain any new and significant information that would trigger the need for an immediate generic NEPA review by the NRC or supplementation of any NEPA documents prepared in connection with individual licensing proceedings. CLI-11-05 is explicit:
To merit this additional [NEPA] review, information must be both new and significant, and it must bear on the proposed action or its impacts. As we have explained, [t]he new information must 23 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)).
24 See, e.g., FENOCs Answer at 7 (citing Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2),
LBP-92-37, 36 NRC 370, 384 (1992), vacated as moot, CLI-93-10, 37 NRC 192 (1993)) (explaining that a contention that does not directly controvert a position taken by the applicant in the application is subject to dismissal).
25 Intervenors Motion at 2.
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present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.
That is not the case here, given the current state of information available to us.26 The SRM, which is silent on the issue of environmental impacts or NEPA analysis thereof, does not remotely suggest that the Commission changed the conclusion set forth in CLI-11-05, i.e.,
that the Near-Term Task Force Report contains no new and significant information for purposes of NEPA.
Although it is possible that actions discussed in the SRM would improve plant safety, that issue is not material in the context of the environmental analysis in this proceeding. Such actions would serve to reduce the environmental impacts of the project below the level currently specified in the ER. NEPA case law is clear: an agency need not prepare a supplemental NEPA evaluation when a change will cause less environmental harm than the original project.27 The SRM, therefore, cannot serve as a basis for arguing that there is a material defect in the Davis-Besse ER.
26 Callaway, CLI-11-05, slip op. at 31 (citing Hydro Res., Inc., CLI-99-22, 50 NRC at 14; Marsh v. Or. Natural Res. Council, 490 U.S. 360, 373 (1989); Froehlke, 816 F.2d at 210) (emphasis added).
27 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.).
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- 3.
Intervenors Motion Does Not Raise a Genuine Dispute Regarding Davis-Besses Environmental Impacts As discussed in Section IV.C.5 of FENOCs Answer,28 the contention does not controvert relevant information in the Davis-Besse ER regarding environmental impacts. Instead, Intervenors Motion is generic in nature and is similar to motions filed in a number of other proceedings.29 Similarly, as discussed above, the SRM does not mention Davis-Besse, let alone controvert anything in the ER. Accordingly, the Contention as supplemented by the SRM does not satisfy 10 C.F.R. § 2.309(f)(1)(vi) and should be rejected.
B.
The SRM Does Not Undermine the Recent Ruling of Another Board Rejecting Contentions that are Materially Indistinguishable from the Intervenors Contention Intervenors also argue that the SRM somehow vitiates the rationale underlying the Bell Bend decision to reject materially indistinguishable contentions, purportedly because the Commission itself had not yet accepted or implemented the Task Force Reports conclusions and recommendations when that board ruled.30 But the Commissions ruling in CLI-11-05 did not hinge on its then-pending approval of the Task Force recommendations. Rather, in ruling that any supplemental NEPA review in response to the accident at Fukushima is premature, the Commission cited the NRCs ongoing evaluation of the Fukushima accident and its implications for U.S. facilities.31 As the Commission put it, the full picture of what happened at Fukushima is still far from clear and thus any related NEPA duty does not accrue now.32 28 See FENOCs Answer at 25-27.
29 See, e.g., Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant Units 3 & 4), Nos.52-034,-
035, Motion to Reinstate and Supplement the Basis for Fukushima Task Force Report Contention (Oct. 28, 2011); Energy Nw. (Columbia Generating Station), No. 50-397, Motion to Reinstate and Supplement the Basis for Fukushima Task Force Report Contention (Oct. 28, 2011).
30 Intervenors Motion at 2.
31 Callaway, CLI-11-05, slip op. at 30.
32 Id.
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The SRM cited by Intervenors not only lacks a discernible connection to NEPA, but also reflects the ongoing nature of the NRCs Fukushima-related review. For example, it states: As the staff evaluates Fukushima lessons-learned and proposes modifications to NRCs regulatory framework, it should develop approaches that are flexible and able to accommodate a diverse range of circumstances and conditions.33 The SRM also directs the Staff to inform the Commission of any gaps that the Staff may later identify in its understanding of the reactor accidents at Fukushima, and which might interfere with its ability to make informed regulatory decisions.34 And it states that the Staff should seek Commission approval of certain orders once the Staff has engaged stakeholders and established the requisite technical bases and acceptance criteria.35 These statements reinforce the Commissions holding in CLI-11-05 that, because the Staffs assessment of Fukushimas implications is ongoing, any related analysis under NEPA, if one were appropriate at alldoes not accrue now.36 Similarly, the Bell Bend board did not cite the pendency of the Commissions approval of the Near-Term Task Force recommendations as the basis for rejecting the intervenors contentions. Instead, the board stressed the uncertainty surrounding the environmental implications, if any, of the Fukushima accident for pending licensing proceedings. The Bell Bend board found that it is much too early in the process of assessing the Fukushima event in the context of the operation of reactors in the United States to allow any informed conclusion 33 SRM at 1 (emphasis added). See also VR-SECY-11-0124, Recommended Actions to be Taken Without Delay from the Near-Term Task Force Report, Att. 2, at 1 (Oct. 18, 2011) (Commission Vote Sheets, Commissioner Svinickis Comments on SECY-11-0124 Recommended Actions to be Taken Without Delay from the Near-Term Task Force Report, at 1 (Oct. 6, 2011)), available at ADAMS Accession No. ML112930036 (As others have said, much work remains before us in learning the lessons from the events at Fukushima Dai-ichi, and
[t]he staff should not feel driven to get ahead of the availability of reliable information in formulating recommendations for the Commission.).
34 SRM at 1.
35 Id. at 2.
36 Callaway, CLI-11-05, slip op. at 30.
DB1/ 68438485 10 regarding the possible safety or environmental implications of that event regarding such operation.37 The foregoing statements apply with equal force here, notwithstanding the subsequent issuance of the SRM. As noted above, the SRM does not address environmental issues at all, much less present any information suggesting that revision or supplementation of the ER is required. And the potential impact of the SRM on any individual plant, including Davis-Besse Unit 1, remains speculative at best.
37 Bell Bend, LBP-11-27, slip op. at 13.
DB1/ 68438485 11 IV.
CONCLUSION As discussed above, the SRM does not cure the defects in the Intervenors Motion to Admit and Contention. In particular, the Contention impermissibly challenges current NRC regulations and requirements, fails to identify any new and significant information under NEPA, and does not dispute any specific information in the Davis-Besse ER. Additionally, the SRM does not undermine the Bell Bend boards ruling rejecting materially indistinguishable contentions, as Intervenors contend. Rather, the Bell Bend boards rationale still stands and applies here with equal force. Accordingly, Intervenors Motion should be denied.
Respectfully submitted, Signed (electronically) by Alex S. Polonsky Kathryn M. Sutton Alex S. Polonsky Martin J. ONeill Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, DC 20004 Phone: 202-739-3000 Fax: 202-739-3001 E-mail: aspolonsky@morganlewis.com Counsel for FirstEnergy Dated in Washington, D.C.
this 18th day of November 2011
DB1/ 68438485 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY
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(Davis-Besse Nuclear Power Station, Unit 1)
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November 18, 2011
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CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of FENOCs Answer Opposing Intervenors Motion for Leave to Supplement Basis of Contention Regarding Fukushima Task Force Report was filed with the Electronic Information Exchange in the above-captioned proceeding on the following recipients:
Administrative Judge William J. Froehlich, Chair Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: wjf1@nrc.gov Administrative Judge Dr. William E. Kastenberg Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: wek1@nrc.gov Office of the Secretary U.S. Nuclear Regulatory Commission Rulemakings and Adjudications Staff Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Administrative Judge Dr. Nicholas G. Trikouros Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: nicholas.trikouros@nrc.gov Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 Edward L. Williamson Lloyd B. Subin Brian G. Harris Richard S. Harper Brian P. Newell edward.williamson@nrc.gov; lloyd.subin@nrc.gov; brian.harris@nrc.gov; richard.harper@nrc.gov brian.newell@nrc.gov
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Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Kevin Kamps Paul Gunter Beyond Nuclear 6930 Carroll Avenue, Suite 400 Takoma Park, MD 20912 E-mail: kevin@beyondnuclear.org; paul@beyondnuclear.org Michael Keegan Dont Waste Michigan 811 Harrison Street Monroe, MI 48161 E-mail: mkeeganj@comcast.net Terry J. Lodge 316 N. Michigan St., Ste. 520 Toledo, OH 43604 E-mail: tjlodge50@yahoo.com Signed (electronically) by Alex S. Polonsky Kathryn M. Sutton Alex S. Polonsky Martin J. ONeill Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, DC 20004 Phone: 202-739-3000 Fax: 202-739-3001 E-mail: aspolonsky@morganlewis.com COUNSEL FOR FIRSTENERGY