Text

NRC Staff'S Answer to Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Completion of Remanded Waste Confidence Proceedings
	ML12177A046
Person / Time
Site:	South Texas
Issue date:	06/25/2012
From:	Matthew Smith; NRC/OGC
To:	; Atomic Safety and Licensing Board Panel
	SECY RAS
References
	RAS 22680, 50-498-LR, 50-499-LR, ASLBP 11-909-02-LR-BD01
	Download: ML12177A046 (9)
	v • d • e

June 25, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

Calvert Cliffs 3 Nuclear Project, L.L.C. ) Docket No. 52-016-COL (Calvert Cliffs Nuclear Power Plant, Unit 3) )

In the Matter of )

Detroit Edison Co. ) Docket No. 52-033-COL (Fermi Nuclear Power Plant, Unit 3) )

In the Matter of )

Duke Energy Carolinas, L.L.C. ) Docket Nos. 52-018-COL (William States Lee III Nuclear Station, ) 52-019-COL Units 1 and 2) )

In the Matter of )

Entergy Operations, Inc. ) Docket No. 50-416-LR (Grand Gulf Nuclear Station, Unit 1) )

In the Matter of )

Entergy Operations, Inc. ) Docket No. 52-024-COL (Grand Gulf Nuclear Station, Unit 3) )

In the Matter of )

FirstEnergy Nuclear Operating Co. ) Docket No. 50-346-LR (Davis-Besse Nuclear Power Station, )

Unit 1) )

In the Matter of )

Florida Power & Light Co. ) Docket Nos. 52-040-COL (Turkey Point, Units 6 and 7) ) 52-041-COL In the Matter of )

Luminant Generation Co., L.L.C. ) Docket Nos. 52-034-COL (Comanche Peak Nuclear Power Plant, ) 52-035-COL Units 3 and 4) )

In the Matter of )

Nextera Energy Seabrook, L.L.C. ) Docket No. 50-443-LR (Seabrook Station, Unit 1) )

In the Matter of )

Pacific Gas and Electric Co. ) Docket Nos. 50-275-LR (Diablo Canyon Nuclear Power Plant, ) 50-323-LR Units 1 and 2) )

In the Matter of )

PPL Bell Bend, L.L.C. ) Docket No. 52-039-COL (Bell Bend Nuclear Power Plant) )

In the Matter of )

Progress Energy Carolinas, Inc. ) Docket Nos. 52-022-COL (Shearon Harris Nuclear Power Plant, ) 52-023-COL Units 2 and 3) )

In the Matter of )

Progress Energy Florida, Inc. ) Docket Nos. 52.029-COL (Levy County Nuclear Power Plant, ) 52-030-COL Units 1 and 2) )

In the Matter of )

South Texas Nuclear Operating Co. ) Docket Nos. 50-498-LR (South Texas Project, Units 1 and 2) ) 50-499-LR In the Matter of )

Nuclear Innovation North America LLC ) Docket Nos. 52-012-COL (South Texas Project, Units 3 and 4) ) 52-013-COL In the Matter of )

Tennessee Valley Authority ) Docket Nos. 52-014-COL (Bellefonte Nuclear Power Plant, Units 3 and 4) ) 52-015-COL In the Matter of )

Tennessee Valley Authority ) Docket No. 50-0391-OL (Watts Bar Unit 2) )

In the Matter of )

Union Electric Co. ) Docket No. 50-483-LR (Callaway Plant Unit 1) )

In the Matter of )

Virginia Electric and Power Co. ) Docket No. 52-017-COL d/b/a Dominion Virginia Power and )

Old Dominion Electric Cooperative )

(North Anna Unit 3) )

NRC STAFFS ANSWER TO PETITION TO SUSPEND FINAL DECISIONS IN ALL PENDING REACTOR LICENSING PROCEEDINGS PENDING COMPLETION OF REMANDED WASTE CONFIDENCE PROCEEDINGS Pursuant to 10 C.F.R. § 2.323(c) and the June 19, 2012 Commission Order, the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby provides its answer to the Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Completion of Remanded Waste Confidence Proceedings (Petition), served June 18 and 19, 2012. Multiple organizations and individuals filed essentially identical petitions in several reactor licensing proceedings.1 The Petition sought the suspension of final decisions in all reactor licensing proceedings as a result of the D.C. Circuit Court of Appeals recent decision in State of New York v. NRC, No. 11-1045. sl. op. at 3 (D.C. Cir. June 8, 2012). The D.C. Circuits decision vacated the NRCs updated Waste Confidence Decision and its Temporary Storage Rule and remanded those rulemakings to the NRC. Id. at 21 (citing Waste Confidence Decision Update, 75 Fed. Reg. 81,037 (Dec. 23, 2010) (Waste Confidence Decision); Consideration of Environmental Impacts of Temporary Storage of Spent Fuel after Cessation of Reactor Operation, Final Rule, 75 Fed. Reg. 81,032 (Dec. 23, 2010) (Temporary Storage Rule)).

In addition to seeking the suspension of all reactor licensing decisions, the Petition seeks a declaration from the Commission that any [Environmental Assessments (EA)] or

[Environmental Impact Statements (EIS)] issued by the NRC will be published in [draft] form with a reasonable opportunity for public comment. Petition at 12. Finally, petitioners requested 1

In the petitions filed in the Fermi combined license (COL) proceeding and Davis-Besse license renewal (LR) proceeding, the petitioners indicated in their 10 C.F.R. § 2.323(b) certification that

[c]ounsel for the staff stated that the NRC Staff would oppose the motion. Petition at 16. However, this was not the Staffs position. In responding to petitioners inquiry, the Staff stated that Based on the representation in your email, we do not have enough information to take a position on this petition. We will respond to the petition after it is filed. The Staffs response was accurately represented in petitions filed in the other proceedings.

a generic modification to each proceedings timely filing standards as applied by the NRC regulations or the applicable scheduling orders. The Petition asks that a period of at least 60 days [be allowed] for raising site-specific concerns relating to the remanded proceedings in individual licensing proceedings.2 Id.

The Commission has not yet indicated how it intends to respond to the D.C. Circuits ruling. While the Staff agrees that no final decision to grant a combined license (COL),

operating license, or renewed operating license should be made in the captioned proceedings until the NRC has appropriately dispositioned the issues remanded by the court, there are no imminent final initial or renewed reactor licensing decisions.3 Second, to the extent the Commission chooses to disposition the remanded Waste Confidence Decision through the preparation of either an environmental analysis or, if necessary, an environmental impact statement, the Staff will provide a reasonable opportunity for public comment consistent with the NRCs regulations, the National Environmental Policy Act, and the current staff practice.4 See generally 10 C.F.R. Part 51.

Finally, with respect to the petitioners request for a 60-day period to raise site-specific concerns in individual proceedings, the Commissions normal adjudicatory procedures in 2

In linking the 60-day filing period to remanded proceedings, the Petition is unclear as to what remanded proceedings are the triggering events for invoking the 60- day filing period.

3 With respect to license renewal proceedings, Indian Point is perhaps the closest to a final decision by the Board. The Indian Point license renewal still has three contentions that are not currently scheduled for a hearing and are waiting on the Staff to issue a draft supplement environmental impact statement (EIS), final supplemental EIS, and a supplemental safety evaluation report, which is currently anticipated to issue no earlier than December 2012. With respect to COL proceedings, the Levy County COL will most likely be the next application for which a decision to grant or deny a combined license will be reached; a contested hearing before the Board is scheduled for October 2012. The date for the uncontested hearing has not been established by the Commission.

4 While not legally required, the Staff typically provides for public participation on environmental assessments of significant public interest.

10 C.F.R. Part 2 already provide well-understood and appropriate means for raising contentions based on new information and site-specific considerations. See Union Electric Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-05, 74 NRC __, __ (slip op. at 32-36, 42)

(Sept. 9, 2011); cf. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-12-13, 75 NRC __, __ (slip op. at 7) (Jun. 7, 2012) ([T]he trigger point for the timely submission of new or amended contentions is when new information becomes available, and our process places on the intervenor the obligation to raise new contentions based on such information.). Given the varying procedural postures of the captioned proceedings, as well as the uncertainty as to what site-specific concerns petitioners may decide to raise, it is unnecessary to establish a generic 60-day timetable as petitioners propose.5 Rather, the appropriate timeframe for raising concerns associated with the Waste Confidence Decision (and/or the NRCs response to the court ruling) will necessarily depend on the nature of those concerns and can be appropriately resolved under each proceedings scheduling order or the applicable NRC regulations as appropriate.

5 As the petition acknowledges, in the event petitioners seek participation in individual licensing proceedings, they may need to submit hearing requests or petitions to intervene, standing declarations, or motions to reopen the record, depending on the posture of the particular proceeding. See Petition at 11-

12. Some of the captioned proceedings have admitted contentions including Bellefonte COL, Calvert Cliffs COL, Fermi COL, Levy County COL, South Texas Project COL, Turkey Point COL, Davis-Besse license renewal (LR), Seabrook LR, and Diablo Canyon LR, and Watts Bar. For others, although intervention was granted, all admitted contentions were subsequently dismissed or otherwise resolved including Comanche Peak COL and North Anna COL; for still others, a hearing was either not granted or was never requested including Bell Bend COL, Shearon Harris COL, W.S. Lee COL, Grand Gulf COL, South Texas LR, and Grand Gulf LR. In Callaway LR, contentions were filed, but the Board has not yet ruled on the admissibility of the contentions. Accordingly, the Staffs view is that any contentions filed in an individual proceeding would still need to satisfy all the applicable requirements of 10 C.F.R. Part 2, including the reopening standard for those proceedings with a closed record, for example.

Respectfully submitted,

/Signed (electronically) by/6 /Signed (electronically) by/

Brian G. Harris Maxwell Smith Counsel for NRC Staff Counsel for NRC Staff Davis-Besse LR Diablo Canyon LR, Seabrook LR, U.S. Nuclear Regulatory Commission South Texas LR Mail Stop O15-D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Mail Stop O15-D21 (301) 415-1392 Washington, DC 20555-0001 Brian.Harris@nrc.gov (301) 415-1246 Maxwell.Smith@nrc.gov