ML11353A393
| ML11353A393 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 12/19/2011 |
| From: | Jenkins D, Polonsky A, Sutton K FirstEnergy Nuclear Operating Co, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 21579, 50-346-LR, ASLBP 11-907-01-LR-BD01 | |
| Download: ML11353A393 (13) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )
)
(Davis-Besse Nuclear Power Station, Unit 1) ) December 19, 2011
)
FIRSTENERGY NUCLEAR OPERATING COMPANYS MOTION TO DISMISS CONTENTION 11 I. INTRODUCTION In accordance with 10 C.F.R. § 2.323(a), FirstEnergy Nuclear Operating Company (FENOC), hereby requests that the Atomic Safety and Licensing Board (Board) dismiss Contention 1, in its entirety, as moot. As admitted by the Board, Contention 1 alleges that FENOCs Environmental Report (ER) failed to adequately consider certain renewable energy alternatives to renewal of the operating license for Davis-Besse Nuclear Power Station, Unit 1 (Davis-Besse). As discussed below, FENOC recently revised its ER to include this information, thus rendering Contention 1 moot. Accordingly, the Board should dismiss Contention 1.2 1
This Motion was filed twice on the NRC Electronic Information Exchange. The first version was not consistent with technical filing requirements and had the wrong attorney signing the certificate of service. The text of the Motion remains unchanged between both versions.
2 Pursuant to Section 2.323(b), on October 19, 2011, counsel for FENOC made a sincere effort to contact the other parties in this proceeding, to explain to them the factual and legal issues raised in this motion, and to resolve those issues. Although counsel for the Intervenors and counsel for FENOC did discuss the revised ER and this motion, counsel for the Intervenors does not agree that the revised ER moots any part of Contention 1.
Counsel for the NRC staff has stated that the staff does not oppose FENOC filing this motion.
II. PROCEDURAL BACKGROUND On August 27, 2010, FENOC submitted an Application to the Nuclear Regulatory Commission (NRC) to renew its operating license for Davis-Besse.3 The ER, as originally submitted in Appendix E to the Application, included a discussion of renewable energy alternatives.
The original ER Section 7.2.2.2 evaluated whether wind power is a reasonable alternative to Davis-Besse license renewal. It stated that although wind power is a feasible alternative to Davis-Besse license renewal in theory, it concluded that wind power by itself is not suitable for large base-load capacity.4 Additionally, the ER stated that although energy storage might provide baseload power, it concluded that current energy storage technologies are too expensive for wind power to serve as a large base-load generator.5 For these reasons, the ER concluded that FENOC does not consider a utility-scale commercial wind power project a reasonable alternative to Davis-Besse license renewal.6 Similarly, the original ER Section 7.2.2.2 also briefly evaluated solar power but determined that its intermittent nature made it an unreasonable alternative under the National Environmental Policy Act (NEPA).7 Finally, the original ER Section 7.2.2.2 also evaluated the reasonableness of a combination of alternatives as an alternative to Davis-Besse license renewal.8 This section 3
Notice of Receipt and Availability of Application for a Renewal of Davis[-]Besse Nuclear Power Station, Unit 1, Facility Operating License No. NPF-003 for an Additional 20-Year Period, 75 Fed. Reg. 57, 299 (Sept. 20, 2010).
4 ER at 7.2-9 (emphasis added).
5 Id.
6 Id.
7 See id. at 7.2-9 to 7.2-10.
8 See id. at 7.2-12 to 7.2-13.
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considered a combination of renewable sources, such as wind and solar power, combined with natural gas generation to ensure baseload generation is provided.9 The ER concluded that a combination of alternatives is not reasonable due to the fluctuations of wind and solar resources and the combined environmental impacts.10 Beyond Nuclear, Citizens Environmental Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio (jointly, Intervenors) filed a Request for Public Hearing and Petition for Leave to Intervene (Petition) on December 27, 2010, proffering four contentions.11 The Petitions first three contentions claimed that the ER did not adequately analyze, as reasonable alternatives to the renewal of Davis-Besses operating license, certain renewable energy sources - namely, wind power, solar power, and a combination of wind and solar power - with compressed air storage.12 Specifically, the Intervenors argued that the ER was deficient because FENOC has not undertaken the requisite hard look at commercial wind energy or solar as alternatives.13 The Board addressed Contentions 1, 2, and 3 as a single contention (Contention 1) that challenges the sufficiency of the ERs analysis of renewable energy sources and FENOCs conclusions that the proffered alternatives are not reasonable alternatives to the renewal of Davis-Besses operating license.14 The Board stated that [w]hen a contention alleges the need for further study of an alternative, from an environmental perspective, such reasonableness 9
See id. at 7.2-12.
10 Id. at 7.2-13.
11 Intervenors fourth contention relates to the ERs discussion of Severe Accident Mitigation Alternatives (SAMAs). This Motion to Dismiss does not address the SAMA contention.
12 See Petition at 10, 15-17, 27-28, 68-69, 71, 82-83, 93.
13 Id. at 98.
14 See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-11-13, slip op. at 24, 34 (Apr. 26, 2011).
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determinations are the merits, and should only be decided after the contention is admitted.15 The Board restated and admitted Contention 1 as follows:
[FENOCs ER] fails to adequately evaluate the full potential for renewable energy sources, specifically wind power in the form of interconnected wind farms and/or solar photovoltaic power, in combination with compressed air energy storage, to offset the loss of energy production from Davis-Besse, and to make the requested license renewal action unnecessary. The FENOC Environmental Report (§7.2) treats all of the alternatives to license renewal except for natural gas and coal plants as unreasonable and does not provide a substantial analysis of the potential for significant alternatives in the Region of Interest.16 On September 19, 2011, FENOC docketed revisions to the ER that significantly expand the discussion of renewable energy alternatives.17 Specifically, the revisions modify ER Chapters 7 and 8 to evaluate the following renewable energy alternatives: (1) interconnected wind farms; (2) wind farms with compressed air energy storage (CAES); (3) photovoltaic power combined with CAES; and (4) combinations of wind farms and solar photovoltaic power with CAES.18 The NRC Staff has shifted the date for issuing the Draft Supplemental Environmental Impact Statement (DSEIS) for the Davis-Besse license renewal from October 2011, to January 2012, to consider, among other things, the in-depth alternatives presented in FENOCs revised ER.19 15 Id. at 33.
16 Id. at 34-35.
17 See Letter from K. Byrd, FENOC, to NRC, License Renewal Application Amendment 16 for the Review of the Davis-Besse Nuclear Power Station, Unit No. 1, License Renewal Application Environmental Report (September 19, 2011) (ER Letter), available at ADAMS Accession No. ML11266A062.
18 See id. Encl. A §§ 7.2.1.3, 7.3.3 to 7.3.3.4, 8.0.
19 See Letter to B. Allen, FENOC, from M. Galloway, NRC, Schedule Revision for the Environmental and Safety Review of the Davis-Besse Nuclear Power Station, Unit No. 1, License Renewal Application (October 31, 2011), available at ADAMS Accession No. ML11256A164.
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II. LEGAL STANDARDS Contentions may take three forms: a challenge to the applications adequacy based on the validity of the information that is in the application; a challenge to the applications adequacy based on the alleged omission of relevant information; or some combination of these two challenges.20 In determining which of these three forms is involved in any contention, the Commission first looks to the language of the contention, but if that proves unavailing, the language of the bases provided to support the contention may be examined to determine the sponsors intent relative to the contentions scope and meaning.21 Contention 1, as narrowed and admitted by the Board, challenges the ERs adequacy based on its alleged omission of relevant information.
The focus of Contention 1 is that the ERs consideration of renewable energy resources as alternatives to the relicensing of Davis Basis is inadequate because it does not provide a substantial analysis of interconnected wind farms, wind farms combined with energy storage, solar photovoltaic energy combined with energy storage, and combinations of wind farms and solar photovoltaic energy with energy storage.22 Now that FENOC has revised the ER to include the information that the Intervenors alleged to be missing, the Board should dismiss Contention 1 now as moot.
In this regard, the Commission has expressly held that where a contention is superseded by the subsequent issuance of licensing-related documents whether a draft EIS or an 20 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), LBP-01-23, 54 NRC 163, 171 (2001)
(citing 10 C.F.R. §2.714(b)(2)(iii)).
21 See Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373, 383 at n.45 (2002); accord Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-06-16, 63 NRC 737, 742 (2006); Pub. Serv. Co. of N. H. (Seabrook Station, Units 1 & 2), ALAB-899, 28 NRC 93, 97 (1988).
22 Davis-Besse, LBP-11-13, slip op. at 34-35.
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applicants response to a request for additional information the contention must be disposed of or modified.23 Similarly, the Commission has stated: Where a contention alleges the omission of particular information or an issue from an application, and the information is later supplied by the applicant or considered by the Staff in a draft EIS, the contention is moot.24 In order to raise specific challenges to the later-supplied information, an intervenor must timely file a new or amended contention that addresses the factors in section [2.309].25 Without such a requirement, contentions of omission could readily be transformed without basis or support into a broad series of disparate new claims, effectively circumventing the purposes of the rules governing contention admission: (1) providing notice of the issues to be litigated; (2) ensuring the existence of at least minimal factual and legal foundation for the alleged claims; and (3) ensuring there exists an actual genuine dispute on a material issue of law or fact.26 In the context of a contention challenging the sufficiency of an applicants ER, the Board has stated:
[A] significant change in the nature of the purported NEPA imperfection, from one focusing on comprehensive information omission to one centered on a deficient analysis of subsequently supplied information, warrants issue modification by the complaining party. Otherwise, absent any new pleading the other parties would be left to speculate whether the concerns first expressed had been satisfied by the new information.27 23 See McGuire/Catawba, CLI-02-28, 56 NRC at 382 (citing Duke Power Co. (Catawba Nuclear Station, Units 1
& 2), CLI-83-19, 17 NRC 1041, 1050 (1983)).
24 Id. at 383.
25 Id. The Initial Scheduling Order allows 60 days for Intervenors to amend their contention and counsel for FENOC emailed a copy of the revised ER to counsel for Intervenors on September 21, 2011. Accordingly, the time for Intervenors to amend their contention expired on November 22, 2011. See Initial Scheduling Order at 12, 14 (June 15, 2011), available at ADAMS Accession No. ML111662021.
26 See McGuire/Catawba, CLI-02-28, 56 NRC at 383.
27 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), LBP-02-2, 55 NRC 20, 30 (2002)
(citation omitted).
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Notably, in a recent decision in the Comanche Peak new reactor proceeding, the Board found that parts of a contention alleging that the applicants ER was inadequate because it failed to evaluate certain combinations of renewable energy sources as reasonable alternatives to initial licensing, were moot with respect to those renewable energy sources once included in the applicants revised ER.28 As with the contention in Comanche Peak,29 Contention 1 alleges that FENOC failed to consider in detail certain combinations of renewable energy sources. As demonstrated below, FENOCs revisions provided the detailed discussion of renewable energy alternatives that Contention 1 states was missing from the ER, thus rendering Contention 1 moot.
III. CONTENTION 1 IS MOOT FENOCs September 19, 2011 revisions to the ER, described in ER Chapters 7 and 8,30 render Contention 1 moot. As restated and admitted by the Board, Contention 1 alleges that FENOC failed to adequately evaluate as reasonable alternatives the following renewable energy sources: wind power in the form of interconnected wind farms and/or solar photovoltaic power, in combination with compressed air energy storage, to offset the loss of energy production from Davis-Besse.31 28 See Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), LBP-10-10, slip op. at 10-14 (June 25, 2010).
29 In Comanche Peak, the Board restated and admitted the contention as follows:
The Comanche Peak Environmental Report is inadequate because it fails to include consideration of alternatives to the proposed Comanche Peak Units 3 and 4, consisting of combinations of renewable energy sources such as wind and solar power, with technological advances in storage methods and supplemental use of natural gas, to create baseload power.
LBP-10-10, slip op. at 4 (quoting Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 &
4), LBP-09-17, 70 NRC 311, 380 (2009)).
30 See ER Letter Encl. A.
31 Davis-Besse, LBP-11-13, slip op. at 34-35(emphasis added).
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The revised ER Section 7.2.1.3 now provides a detailed discussion of interconnected wind farms, including the potential for integrating offshore wind generation.32 Section 7.2.1.3 now includes a discussion of CAES individually, and in combination with interconnected wind farms and solar photovoltaic sources.33 Moreover, Section 7.2.1.3 discusses CAES in general, and in the specific context of the Norton Energy Storage facility, which an affiliate of FENOC purchased the rights to develop in 2009,34 and which Intervenors mention by name in their Petition.35 Similarly, ER Section 7.3.3, now includes an environmental impacts analysis of (1) interconnected wind farms, (2) wind farms with CAES, (3) photovoltaic power combined with CAES, and (4) combinations of wind farms and solar photovoltaic power with CAES.36 Likewise, ER Chapter 8.0 now includes a comparison to interconnected wind, and wind with renewables and CAES.37 Accordingly, Contention 1 is now moot because FENOC has 32 See ER Letter Encl. A at 7.2-5 to 7.2-8. Solar photovoltaic energy by itself is excluded as an alternative because FENOC and Intervenors agree that solar power by itself cannot meet baseload generation requirements because the sun is an intermittent source that does not shine 24-hours a day. See Petition at 85 (conceding that
[s]olar power naturally is an intermittent resource); March 1, 2011 Tr. at 74:7-15, 76:22 - 77:9 (Lodge);
FirstEnergys Answer Opposing Request for Public Hearing and Petition for Leave to Intervene at 55-56 (Jan.
21, 2011) (FENOC Answer); see also, e.g., Davis-Besse, LBP-11-13, slip op. at 27 (According to Dr.
Compaan, [e]conomical sources of energy storage and back-up power are available to provide good base-load power, in conjunction with solar. Dr. Compaan further concludes that widescale installation of solar power combined with a storage facility . . . is a very viable alternative to the requested Davis-Besse license extension.) (citations omitted) (emphasis added).
33 See id. at 7.2-8 to 7.2-12.
34 See id. at 7.2-8 to 7.2-10.
35 See Petition at 28-29, 72, 88-89.
36 See ER Letter Encl. A at 7.3-13 to 7.3-30, 7.3-33.
37 See id. Tbls. 8.0-1 to 8.0-2 8
specifically addressed and included a detailed evaluation of each of the renewable energy sources identified in Contention 1.38 Finally, the contention as admitted by the Board refers to the Region of Interest (ROI).
FENOCs original ER for license renewal did not define an ROI. In Section 7.0.2, the revised ER now defines the ROI as the State of Ohio, consistent with NRC NEPA guidance. FENOCs alternatives analysis is not dependent upon the definition of the ROI, because the discussion of renewable energy alternatives in Section 7.2.3 conservatively assumes that sufficient wind and solar resources exist within the ROI - however defined - to support the number of turbines and/or solar photovoltaic panels needed to produce the electrical output equivalent to Davis-Besse. The environmental impacts of these renewable energy alternatives are presented in Section 7.3.3.
FENOCs revised ER at Section 7.0.2 defines the ROI as the State of Ohio, consistent with NRC NEPA guidance:
NRC environmental guidance for siting new reactors defines the Region of interest (ROI) as the geographic area considered in searching for candidate sites. NUREG-1555, at 9.3-1 (1999). That definition is not directly applicable to this license renewal action because Davis-Besse is already sited as an operating reactor in Ohio.
The application here is for license renewal, and not for initial plant siting, construction, or operation. However, that same environmental guidance explains that the basis for an ROI is the State in which the proposed site is located or the relevant service area for the proposed plant. NUREG-1555, at 9.3-2. This explanation, or basis for selecting the ROI for siting new reactors, is applicable for defining the ROI for purposes of license renewal. Accordingly, FENOC is adopting an ROI for this Environmental Report as the State in which Davis-Besse is located: Ohio. The second portion of the explanation in NUREG-1555the relevant service area for the proposed plant 38 As stated in the ER, FENOC does not believe that any of these are reasonable alternatives under NEPA.
However, in order to resolve the issues raised in the admitted contention, FENOC has revised this ER to evaluate the renewable energy alternatives listed above as an alternative to replace the rated electrical output of Davis-Besse by 2017. Id. at 7.2-2.
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is not applicable to Davis-Besse, because the electricity that Davis-Besse generates is sold on the wholesale power market. Accordingly, there is no relevant service area for the plant.
In summary, the alleged failure of the ER to adequately evaluate renewable energy sources consisting of combinations of interconnected wind energy, wind with CAES and photovoltaic power combined with CAES, has been fully addressed by revised ER Chapters 7 and 8. Accordingly, Contention 1 has been mooted by FENOCs revised ER and it should be dismissed.
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IV. CONCLUSION For the foregoing reasons, Contention 1 as admitted by the Board is moot and the Board should grant FENOCs request to dismiss this contention.
Respectfully submitted, Executed in Accord with 10 C.F.R. §2.304(d)
Signed (electronically) by Alex S. Polonsky Kathryn M. Sutton Alex S. Polonsky Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, DC 20004 Phone: 202-739-5830 E-mail: apolonsky@morganlewis.com David W. Jenkins Senior Corporate Counsel FirstEnergy Service Company Mailstop: A-GO-15 76 South Main Street Akron, OH 44308 Phone: 330-384-5037 E-mail: djenkins@firstenergycorp.com COUNSEL FOR FENOC Dated in Washington, D.C.
this 19th day of December 2011 11
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
In the Matter of )
) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )
)
(Davis-Besse Nuclear Power Station, Unit 1) ) December 19, 2011
)
CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of First Energy Operating Companys Motion Dismiss Contention 1 as Moot was filed with the Electronic Information Exchange in the above-captioned proceeding on the following recipients.
Administrative Judge Administrative Judge William J. Froehlich, Chair Dr. Nicholas G. Trikouros Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: wjf1@nrc.gov E-mail: nicholas.trikouros@nrc.gov Administrative Judge Office of the General Counsel Dr. William E. Kastenberg U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Edward L. Williamson E-mail: wek1@nrc.gov Lloyd B. Subin Brian G. Harris Richard S. Harper Office of the Secretary Brian P. Newell U.S. Nuclear Regulatory Commission edward.williamson@nrc.gov; Rulemakings and Adjudications Staff lloyd.subin@nrc.gov; Washington, DC 20555-0001 brian.harris@nrc.gov; E-mail: hearingdocket@nrc.gov richard.harper@nrc.gov brian.newell@nrc.gov
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Washington, DC 20555-0001 Michael Keegan E-mail: ocaamail@nrc.gov Dont Waste Michigan 811 Harrison Street Monroe, MI 48161 E-mail: mkeeganj@comcast.net Kevin Kamps Paul Gunter Beyond Nuclear 6930 Carroll Avenue, Suite 400 Terry J. Lodge Takoma Park, MD 20912 316 N. Michigan St., Ste. 520 E-mail: kevin@beyondnuclear.org; Toledo, OH 43604 paul@beyondnuclear.org E-mail: tjlodge50@yahoo.com Signed (electronically) by Brooke E. Leach Brooke E. Leach Morgan, Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103 Phone: 215-963-5404 Fax: 215-963-5001 E-mail: bleach@morganlewis.com 2