ML12191A421
| ML12191A421 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 07/09/2012 |
| From: | Lodge T - No Known Affiliation, Beyond Nuclear, Citizens Environmental Alliance of Southwestern Ontario, Don't Waste Michigan, Green Party of Ohio |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 22952, 50-346-LR, ASLBP 11-907-01-LR-BD01 | |
| Download: ML12191A421 (11) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
Docket No. 50-346-LR First Energy Nuclear Operating Company )
(Davis-Besse Nuclear Power Station, Unit 1) July 9, 2012
)
INTERVENORS MOTION FOR LEAVE TO FILE A NEW CONTENTION CONCERNING TEMPORARY STORAGE AND ULTIMATE DISPOSAL OF NUCLEAR WASTE AT DAVIS-BESSE NUCLEAR POWER STATION I. INTRODUCTION Now come Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario (CEA), Dont Waste Michigan, and the Green Party of Ohio (collectively, Intervenors), by and through counsel, and pursuant to 10 C.F.R. §§ 2.309(f)(1) and 2.309(f)(2), seek leave to file a new contention which challenges the failure of the First Energy Nuclear Operating Companys (FENOC) Environmental Report (ER) to address the environmental impacts of spent fuel pool leakage and fires as well as the environmental impacts that may occur if a spent fuel repository does not become available. The contention is based on the U.S. Court of Appeals for the District of Columbia Circuits recent decision in State of New York v. NRC, No. 11-1045 (June 8, 2012), which invalidated the Nuclear Regulatory Commissions (NRC) Waste Confidence Decision Update (75 Fed. Reg. 81,037 (Dec. 23, 2010)) (WCD) and the NRCs final rule regarding Consideration of Environmental Impacts of Spent Fuel After Cessation of Reactor Operation (75 Fed. Reg. 81,032 (Dec. 23, 2010)) (Temporary Storage Rule or TSR).
State of New York vacated the generic findings in 10 C.F.R. § 51.23(a) regarding the safety and environmental impacts of spent fuel storage. As a result, the NRC no longer has any legal basis for § 51.23(b), which relies on those findings to exempt both the agency staff and license applicants from addressing long-term spent fuel storage impacts under NEPA in individual licensing proceedings.
Intervenors recognize that because the mandate has not yet issued in State of New York, this contention may be premature. Nevertheless, Intervenors are submitting the contention within 30 days of becoming aware of the courts ruling, in light of Commission precedents judging the timeliness of motions and contentions according to when petitioners became aware of a decisions potential effect on their interests. Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 386 (2002). If the Atomic Safety and Licensing Board determines that this contention is premature, Intervenors request that consideration of the contention be held in abeyance pending issuance of the mandate.
II. FACTUAL BACKGROUND In 1984, the NRC issued its first WCD, making findings regarding the safety of spent fuel disposal and the safety and environmental impacts of spent fuel storage. Over the several decades that have passed since then, the NRC has updated the WCD. The latest update was issued in December 2010. On June 8, 2012, the U.S. Court of Appeals for the D.C. Circuit took review of the NRCs 2010 WCD Update and TSR and vacated those rules in their entirety. In the course of reviewing the WCD Update, the court found that the WCD is a major federal action under the National Environmental Policy Act (NEPA), therefore requiring either a finding of no significant impact (FONSI) or an environmental impact statement (EIS). Id., slip op. at 8.
The court also found it was eminently clear that the WCD will be used to enable licensing decisions based on its findings because the WCD renders uncontestable general conclusions about the environmental effect of plant licensure that will apply in every licensing decision. Id.,
slip op. at 9 (citing 10 C.F.R. § 51.23(b)).
With respect to the WCDs conclusions regarding spent fuel disposal, the court observed that the NRC has no long-term plan other than hoping for a geologic repository and that spent reactor fuel will seemingly be stored on site at nuclear plants on a permanent basis if the government continues to fail in its quest to site a permanent repository. Id., slip op. at 13.
Thus, the court concluded that the WCD must be vacated with respect to its conclusion in Finding 2 that a suitable spent fuel repository will be available when necessary. Id., slip op. at
- 11. In order to comply with NEPA, the court found that the NRC must examine the environmental effects of failing to establish a repository. Id., slip op. at 12.
With respect to the TSRs conclusions regarding the environmental impacts of temporary storage of spent reactor fuel at reactor sites, the court concluded that the NRCs environmental assessment (EA) and FONSI issued as part of the TSR are not supported by substantial evidence on the record in two respects. First, the NRC had reached a conclusion that the environmental impacts of spent fuel pool leaks will be insignificant, based on an evaluation of past leakage. The court concluded that the past incidence of leaks was not an adequate predictor of leakage thirty years hence, and therefore ordered the NRC to examine the risks of spent fuel pool leaks in a forward-looking fashion. Id., slip op. at 14. In addition, the court found that the NRCs analysis of the environmental impacts of pool fires was deficient because it examined only the probability of spent fuel pool fires and not their consequences. Id., slip op. at 18-19.
Depending on the weighing of the probability and the consequences, the court observed, an EIS may or may not be required. Id., slip op. at 19.
In remanding the WCD Update and the TSR to the NRC, the court purposely did not express an opinion regarding whether an EIS would be required or an EA would be sufficient.
Instead, it left that determination up to the discretion of the NRC. Id., slip op. at 12, 20.
III. CONTENTION A. Statement of the Contention The ER for the Davis-Besse license renewal application (LRA) does not satisfy NEPA, because it does not include a discussion of the environmental impacts of spent fuel storage after cessation of operation, including the impacts of spent fuel pool leakage, spent fuel pool fires, and failing to establish a spent fuel repository, as required by the U.S. Court of Appeals in State of New York v. NRC, No. 11-1045 (June 8, 2012). There-fore, unless and until FENOC produces new and additional information within the ER, it must be deemed legally incomplete and insufficient for the NRC Staff to review as the basis for the Staffs Draft Supplemental Environmental Impact Statement (DSEIS).
Consequently, no license may be issued.
B. The Contention Satisfies the NRCs Admissibility Requirements in 10 C.F.R. § 2.309(f)(1)
- 1. Brief Summary of the Basis for the Contention The contention is based on the United States Court of Appeals for the District of Colum-bia Circuits decision in State of New York v. NRC, which invalidated the NRCs generic findings in 10 C.F.R. § 51.23(a) regarding the safety and environmental impacts of spent fuel storage after cessation of reactor operation with respect to spent fuel pool leakage, pool fires, and the envi-ronmental impacts of failing to establish a repository. As a result, the NRC no longer has any legal basis for § 51.23(b), which relies on those findings to exempt both the agency staff and license applicants from addressing spent fuel storage impacts in individual licensing proceedings.
When they petitioned in December 2010 to intervene, the Intervenors did not propose a contention suggesting the invalidity or inadequate scope of the NRCs waste confidence policy because they justifiably expected such a contention would be challenged, succesfully, as a forbidden attack on NRC regulations.
At page 4.0-1 of the Environmental Report, FENOC states as follows:
Category 1 issues met the following criteria:
> a single significance level (i.e., SMALL, MODERATE, or LARGE) has been assigned to the impacts that would occur at any plant, regardless of which plant is being evaluated (except for collective offsite radiological impacts from the fuel cycle and from high-level waste and spent-fuel disposal); and NRC rules do not require analyses of Category 1 issues that the NRC resolved using generic findings (10 CFR Part 51, Appendix B, Table B-1) as described in the GEIS NRC 1996). An applicant may reference the generic findings or GEIS analyses for Category 1 issues.
At p. A-10 of the ER, the Generic Environmental Impact Statement is cross-referenced to the disposal of high-level radioactive wastes.1 Thus to the extent that the FENOC ER addresses spent fuel storage impacts, it does not address the concerns raised by the Court in State of New York. Before Davis-Besse can receive a license extension, those impacts must be addressed. The courts expected order, if implemented, will require extensive revamping of the Davis-Besse ER.
Intervenors do not currently take a position on the question of whether the environmental impacts of post-operational spent fuel storage should be discussed in an individual EIS or environmental assessment for this facility or a generic EIS or environmental assessment. That question must be decided by the NRC in the first instance. Baltimore Gas and Electric Co. v.
1 GEIS referents which are cross-indexed to Chapter 4 of the ER include: 6.1/6-1 (intro);
6.2.2.1/6-8 (effluents); 6.2.3/6-22 (sensitivity); 6.2.4/6-27 (conclusions)
NRDC, 462 U.S. 87 (1983). Intervenors reserve the right to challenge the adequacy of any generic analysis the NRC may prepare in the future to address the site-specific environmental conditions at Davis-Besse. The current circumstances, however, are such that neither FENOC nor the NRC have any valid analysis, either generic or site-specific, respecting radioactive waste confidence on which to base the issuance of a license extension for this facility.
- 2. The Contention is Within the Scope of the Proceeding The contention is within the scope of this licensing proceeding because it seeks to ensure that the NRC complies with the NEPA before issuing a license renewal for a 20 year extension for Davis-Besse. There is no doubt that the environmental impacts of spent fuel storage must be addressed in all NRC reactor licensing decisions. State of New York, slip op. at 8 (holding that the WCD is a predicate to every licensing decision); Minnesota v. NRC, 602 F.2d 412 (D.C.
Cir. 1979).
- 3. The Issues Raised Are Material to the Findings that the NRC Must Make to Support the Action that is Involved in this Proceeding The issues raised in this contention are material to the findings the NRC must make to support the action that is involved in this proceeding, in that the NRC must render findings pursuant to NEPA covering all potentially significant environmental impacts. See discussion above in subsection (2). As such, in the absence of 10 C.F.R. § 51.23(a), it is clear that this contention addresses a material omission in FENOCs ER, and consequently in the NRC staffs review of that ER for purposes of the DSEIS under NEPA.
- 4. Concise Statement of Facts of Expert Opinion Support the Contention This contention is based primarily on law rather than facts. Intervenors have adequately supported their contention by citing State of New York and discussing its legal effect on this proceeding. Intervenors also rely on the undisputed fact that the NRC has taken no steps to cure the deficiencies in the basis for 10 C.F.R. § 51.23(a) as, that the Court identified in State of New York. The NRCs inaction includes the failure to require FENOC to update its ER.
- 5. A Genuine Dispute Exists with the Applicant on a Material Issue of Law or Fact.
The Intervenors have a genuine dispute with the applicant regarding the legal adequacy of the environmental analysis on which the applicant relies in seeking a license renewal and extension in this proceeding. Unless or until the NRC cures the deficiencies identified in State of New York or the applicant withdraws its application, this dispute will remain alive.
IV. THE CONTENTION IS TIMELY PURSUANT TO 10 C.F.R. § 2.309(f)(2)
The contention meets the timeliness requirements of 10 C.F.R. § 2.309(f)(2), which call for a showing that:
(i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.
Id.
Intervenors satisfy all three prongs of this test. First, the information on which the contention is based -- i.e., the invalidity of 10 C.F.R. § 51.23(b) and the findings on which it is based -- is new and materially different from previously available information. Prior to June 8, 2012, 10 C.F.R. § 51.23 was presumptively valid. Subsequent to the issuance of State of New York by the U.S. Court of Appeals, the NRC no longer has a lawful basis for relying on that regulation to exempt itself or license applicants from considering the environmental impacts of post-operational spent fuel storage, including onsite use of pools, casks or other methods, and offsite repository or other storage, in the environmental analyses for individual reactor license applications. By the same token, the generic analyses in the WCD and the TSR, on which the NRC relied for all of its reactor licensing decisions, are no longer sufficient to support the issuance of a license. Therefore the NRC lacks an adequate legal and/or factual basis to issue a license renewal or extension for Davis-Besse Nuclear Power Station.
Finally, the contention is timely because it has been submitted within 30 days of June 8, 2012, the date the U.S. Court of Appeals issued State of New York.
V. CONSULTATION CERTIFICATION PURSUANT TO 10 C.F.R. § 2.323(b)
Intervenors certify that on July 6, 2012, they contacted counsel for FirstEnergy and the NRC Staff in an attempt to obtain their consent to this Motion. Counsel for the applicant stated that FENOC opposes the proposed new contention as untimely (premature) and reserves consideration of applicable admissibility criteria until it has been afforded an opportunity to review the proposed contention and its bases. Counsel for the NRC staff said that the Staff does not oppose the filing of the motion, but that it did not have enough information to take a take a position on the admissibility of the proposed contention. The Staff reserved the right to respond to the contention in accordance with 10 C.F.R. 2.309 when filed.
VI. CONCLUSION For the reasons stated, Intervenors respectfully request that they be granted leave to file their contention for admission.
Respectfully submitted,
/s/ Terry J. Lodge Terry J. Lodge (Ohio Bar #0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 Phone/fax (419) 255-7552 tjlodge50@yahoo.com Counsel for Intervenors UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
Docket No. 50-346-LR First Energy Nuclear Operating Company )
(Davis-Besse Nuclear Power Station, Unit 1) July 9, 2012
. )
CERTIFICATE OF SERVICE I hereby certify that a copy of the INTERVENORS MOTION FOR LEAVE TO FILE A NEW CONTENTION CONCERNING TEMPORARY STORAGE AND ULTIMATE DISPO-SAL OF NUCLEAR WASTE AT DAVIS-BESSE NUCLEAR POWER STATION was sent by me to the following persons via electronic deposit filing with the Commissions EIE system on the 9th day of July, 2012:
Administrative Judge Washington, DC 20555-0001 William J. Froehlich, Chair E-mail: hearingdocket@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: wjf1@nrc.gov Mail Stop O-15D21 Washington, DC 20555-0001 Administrative Judge Catherine Kanatas Dr. William E. Kastenberg catherine.kanatas@nrc.gov Atomic Safety and Licensing Board Panel Brian G. Harris U.S. Nuclear Regulatory Commission E-mail: Brian.Harris@nrc.gov Washington, DC 20555-0001 Lloyd B. Subin E-mail: wek1@nrc.gov lloyd.subin@nrc.gov Administrative Judge Office of Commission Appellate Nicholas G. Trikouros Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ngt@nrc.gov E-mail: ocaamail@nrc.gov Office of the Secretary Michael Keegan U.S. Nuclear Regulatory Commission Dont Waste Michigan Rulemakings and Adjudications Staff 811 Harrison Street Monroe, MI 48161 Timothy Matthews, Esq.
E-mail: mkeeganj@comcast.net Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Stephen J. Burdick Washington, DC 20004 Morgan, Lewis & Bockius LLP Phone: (202) 739-5830 1111 Pennsylvania Avenue, N.W. Fax: (202) 739-3001 Washington, D.C. 20004 E-mail: tmatthews@morganlewis.com Phone: 202-739-5059 Fax: 202-739-3001 E-mail: sburdick@morganlewis.com Respectfully submitted,
/s/ Terry J. Lodge Terry J. Lodge (Ohio Bar #0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 Phone/fax (419) 255-7552 tjlodge50@yahoo.com Counsel for Intervenors