ML13079A501

NRC Staff Reply on the Boards' Referred Ruling in LBP-13-1

ML13079A501
Person / Time
Site:	Limerick
Issue date:	03/20/2013
From:	Catherine Kanatas, Matthew Smith NRC/OGC
To:	NRC/OCM
SECY RAS
References
RAS 24251, 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01
Download: ML13079A501 (11)

Text

March 20, 2013 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

EXELON GENERATION COMPANY, LLC ) 50-352-LR/ 50-353-LR

)

(Limerick Generating Station, Units 1 and 2) )

)

NRC STAFFS REPLY ON THE BOARDS REFERRED RULING IN LBP-13-1 INTRODUCTION Pursuant to the Commissions February 26, 2013 Order,1 the NRC Staff files its reply brief to the Natural Resources Defense Councils (NRDC) brief2 regarding the Atomic Safety and Licensing Boards (Board) referred ruling in LBP-13-1.3 The ruling in LBP-13-1 denied NRDCs Petition for Waiver (Waiver Petition) of 10 C.F.R. § 51.53(c)(3)(ii)(L) (sub-section (L)) in the license renewal proceeding for Limerick Generating Station, Units 1 and 2 (Limerick).4 NRDCs Opening Brief illustrates the importance of Commission review because it asserts that the Boards interpretation of sub-section (L) does not comport with the National 1

Order at 1 (Feb. 26. 2013) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML13057A822).

2 Natural Resources Defense Councils Brief in Support of Waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L) as Applied to Application for Renewal of Licenses for Limerick Units 1 and 2 (Mar. 13, 2013) (ADAMS Accession No. ML13072B038) (NRDCs Opening Brief). The Applicant and Staff also filed briefs on LBP-13-1. NRC Staffs Brief on the Boards Referred Ruling in LBP-13-1 (Mar. 13, 2013) (ADAMS Accession No. ML13072A804) (Staffs Opening Brief); Exelons Initial Brief in Response to the Referral of LBP-13-1 to the Commission (Mar. 13, 2013) (ADAMS Accession No. ML13072B433). The Staffs reply brief will not respond to the Applicants opening brief, as it largely echoes arguments in the Staffs Opening Brief.

3 Exelon Generation Co., LLC (Limerick Generating Station Units 1 and 2), LBP-13-1, 77 NRC __,

__ (Feb. 6, 2013) (slip op. at 13).

4 Id. at 1. Natural Resources Defense Councils Petition, By Way of Motion, for Waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L) as Applied to Application for Renewal of Licenses for Limerick Units 1 and 2 (Nov. 21, 2012) (ADAMS Accession No. ML12326A976) (Waiver Petition).

Environmental Policy Act of 1969 (NEPA). However, NRDC incorrectly claims that waiver of the sub-section (L) rule is required to comply with NEPA. Moreover, NRDCs arguments rest on an interpretation of sub-section (L) that is contrary to the rules plain text and Commission descriptions of the rule. Finally, while recognizing that the four-factor Millstone test is the appropriate waiver standard, NRDCs Opening Brief does not provide a prima facie showing on any of the four factors. Instead, it largely repeats arguments made in its Waiver Petition, which the Staff previously rebutted, or provides arguments that do not justify waiver. Thus, the Commission should uphold the Boards denial of the Waiver Petition.5 BACKGROUND This proceeding concerns Exelon Generation Company, LLCs (Exelon) June 22, 2011 license renewal application for Limerick.6 The Staffs Opening Brief fully discussed the relevant procedural history and legal standards in this proceeding.7 As explained in that brief, the Boards referral of LBP-13-1 raises three primary issues. First, whether NRDCs petition to waive sub-section (L), a regulation excusing Exelon from considering severe accident mitigation alternatives (SAMAs) in its NEPA analysis for the Limerick license renewal, meets the Commissions waiver standards. Second whether the Board appropriately found that waiving sub-section (L) is seemingly impossible.8 And last, whether the Board appropriately interpreted the Commissions waiver standard and 10 C.F.R. § 2.335.9 5

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-08, 61 NRC 129, 166 (2005) (noting that on review the Commission may affirm a Board decision on any ground finding support in the record, whether previously relied on or not).

6 Application for Renewed Operating Licenses (June 22, 2011) (ADAMS Accession No. ML11179A096); License Renewal Application, Limerick Generating Station, Units 1 and 2 (June 22, 2011) (ADAMS Accession No. ML11179A101).

7 Staffs Opening Brief at 2-10.

8 Limerick, LBP-13-1, 77 NRC at __ (slip op. at 13).

9 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 559-60 (2005). NRDCs Opening Brief comports with the Staffs position on this issue.

Compare NRDCs Opening Brief at 14 (discussing Millstones four factor test and claiming its contentions

ARGUMENT I. NRDCs Brief Illustrates the Importance of Commission Review NRDC observes that the Boards interpretation of sub-section (L) in LBP-13-1 conflicts with NEPA. The Staffs Opening Brief also noted that the Boards interpretation of sub-section (L) does not fully consider the purpose and the stated justification for that regulation.10 Specifically, NRDC argues that the Boards interpretation of sub-section (L) provides no opportunity to challenge Exelons NEPA consideration of new and significant information regarding sub-section (L) in the licensing process.11 NRDC analogizes this interpretation of sub-section (L) to the Atomic Energy Commission regulations which the D.C. Circuit found incompatible with NEPA in Calvert Cliffs Coordinating Committee Inc. v. Atomic Energy Commission.12 Those regulations, like the Boards interpretation of sub-section (L), excluded consideration of NEPA issues in certain agency adjudicatory proceedings.13 As NRDC notes, the D.C. Circuit overturned those regulations.14 Thus, the Commission should review LBP-13-1 and resolve any conflicts between the Boards interpretation of sub-section (L) and NEPA.15 II. NEPA Does Not Mandate Waiver of Sub-Section (L)

However, NRDCs Opening Brief and Waiver Petition do not justify waiver here.

Throughout its brief, NRDC argues that regardless of the purpose for which the Commission meet all four factors) with Staffs Opening Brief at 19-21. Therefore, the Staffs reply will not further discuss this issue.

10 Staffs Opening Brief at 11-19.

11 NRDCs Opening Brief at 25. See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 373-74 (1989).

12 NRDCs Opening Brief at 25 (citing Calvert Cliffs Coordinating Comm. v. AEC, 449 F.2d 1109, 1117 (D.C. Cir. 1971) (describing those regulations)).

13 Id.

14 NRDCs Opening Brief at 25.

15 10 C.F.R. § 2.323(f)(1); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Facility),

CLI-00-13, 52 NRC 23, 29 (2000) (encouraging licensing boards to refer to the Commission rulings that present novel questions that could benefit from early resolution).

promulgated [sub-section (L)], a waiver must be granted to insure compliance with NEPA.16 NRDC claims that NEPAs mandate for consideration of new and significant information . . .

plainly trumps any contrary regulation.17 Thus, NRDC argues that even if the Commission were to conclude the waiver criteria set forth in 10 C.F.R. § 2.335(a) were not satisfied here, NRDC nonetheless would be entitled to have its Contentions admitted.18 This argument ignores the very purpose of a waiver petition for environmental regulations, which is to provide a principled consideration of claims regarding new and significant environmental information in NRC adjudications. As the Commission has explained, its rules provide a number of opportunities for individuals to alert the Commission to new and significant information . . . for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule.19 Consequently, a waiver petition itself provides a petitioner with a way pursue a claim that new and significant information renders a codified generic environmental finding inadequate.

The First Circuit has explained that NEPA does not require any specific approach to considering new and significant information:

16 NRDCs Opening Brief at 20, 28-30. NRDC advanced a similar argument in its Waiver Petition, NRDC Waiver Petition at 14, 19-20, 22, to which the Staff fully responded, NRC Staff Answer to Natural Resources Defense Council Petition for Waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L), at 9-11 (Dec. 14, 2012)

(ADAMS Accession No. ML12349A384) (Staff Answer to Waiver Petition).

17 NRDCs Opening Brief at 18 (citing Marsh, 490 U.S. at 365; Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 844 (1984)).

18 NRDCs Opening Brief at 28. NRDC contends that the Commission has previously recognized that sub-section (L) is incompatible with NEPA in denying a petition for rulemaking from the Nuclear Energy Institute (NEI). Id. at 19 (citing Nuclear Energy Institute; Denial of Petition for Rulemaking, 66 Fed. Reg. 10,834, 10,834 (Feb. 20, 2001)). But, that denial of a rulemaking petition did not consider the exception to the SAMA requirement in sub-section(L). 66 Fed. Reg. at 10,834. Rather, it simply denied NEIs request to eliminate consideration of SAMAs from license renewal altogether. Id. at 10,837-39.

The Commission did not address a case, such as this one, where a license renewal applicant sought to rely on the exception in sub-section (L).

19 Florida Power & Light Co. (Turkey Point Nuclear Generating Plan, Units 3 and 4), CLI-01-17, 54 NRC 3, 12 (2001).

NEPA does impose a requirement that the NRC consider any new and significant information regarding environmental impacts before renewing a nuclear power plants operating license. However, NEPA does not require agencies to adopt any particular internal decisionmaking structure. Here, the NRC procedures anticipate a situation . . . in which a generic finding adopted by agency rule may have become obsolete.20 Indeed, the First Circuit recently upheld the NRCs application of the Millstone factors to a NEPA claim.21 As a result, 10 C.F.R. § 2.335 provides an acceptable way for the NRC to consider claims of new and significant information in adjudicatory proceedings because the NRC will waive generic environmental findings upon a site-specific showing that new, or unconsidered, information is significant.22 The waiver process appropriately balances the agencys interest in the finality of its rules with the intervenors right to raise new and significant information under NEPA.23 Therefore, NRDCs argument that the NRC must automatically waive the sub-section (L) rule to comply with NEPA is incorrect. The NRC appropriately considers claims of new and significant information under NEPA in agency adjudications through the 10 C.F.R. § 2.335 waiver process in determining contention admissibility.

III. NRDCs View of Sub-Section (L) is Contrary to the Text of the Rule and Commission Statements Regarding the Purpose of the Rule Understanding the purpose of a rule is important to making a demonstration under the first Millstone factor, which requires a petitioner to demonstrate that the rules strict application 20 Massachusetts v. United States, 522 F.3d 115, 127 (2008) (quoting Balt. Gas & Elec. Co. v.

NRDC, 462 U.S. 87, 100 (1983)).

21 Massachusetts v. NRC, Nos. 12-1404, 12-1772, 2013 WL 668468 at *8 & n.17 (1st Cir. Feb.

25, 2013).

22 Compare Millstone, CLI-05-24, 62 NRC at 559-60 (requiring a Petitioner to show that application of the rule would not serve the purposes for which the Commission adopted it) with Hydro Resources, Inc., CLI-01-04, 53 NRC 31, 52 (2001) (finding that a significant environmental issue for purposes of supplementing an environmental impact statement is one that shows a seriously different picture of the projects impacts than previously understood).

23 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13, 21 (2007) (holding that adjudicating previously resolved environmental issues site-by-site based merely on a claim of new and significant information, would defeat the purpose of resolving environmental issues generically).

would not serve the purposes for which [it] was adopted.24 NRDC asks the Commission to adopt its view of the purpose of sub-section (L), which NRDC itself recognizes is contrary to the text of the regulation.25 Specifically, NRDC claims that despite its language,26 the purpose of sub-section (L) is to simply limit facilities that had previously considered SAMAs from being obligated to reconsider the same SAMAs during relicensing.27 The Commission should not adopt NRDCs interpretation of the purpose of sub-section (L), as it is not supported by the text of the rule and is contrary to the Commissions statements on the purpose of the rule.28 The text of the rule states that a consideration of alternatives to mitigate severe accidents must be provided if the staff has not previously considered severe accident mitigation alternatives for the applicants plant in an [EIS] or related supplement.29 Thus, it is a consideration of SAMAs, in the form of a SAMA analysis, that is contemplated by the rule; not, as NRDC claims, an analysis of particular SAMA candidates. The Commission made this purpose clear in CLI-12-19 when stating that our rules expressly provide that a supplemental SAMA analysis need not be performed in this case.30 Indeed, the Board found 24 Millstone, CLI-05-24, 62 NRC at 560 (emphasis added) (internal quotations omitted). To meet this factor, NRDC must, at a minimum, show that there are special circumstances that undercut the rationale for the rule sought to be waived. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-88-10, 28 NRC 573, 597 (1988).

25 Waiver Petition at 17.

26 Id.

27 NRDCs Opening Brief at 15 (emphasis in original).

28 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (noting that an agency may not adopt an interpretation of a regulation that conflicts with its plain language).

29 10 C.F.R. § 51.53(c)(3)(ii)(L) (emphasis added). This regulatory text matches the Commissions description of the purpose of the rule in the SOC, where the Commission stated that a site-specific consideration of severe accident mitigation alternatives is required at license renewal for those plants for which this consideration has not been performed. 61 Fed. Reg. 28,481 (emphasis added).

30 Exelon Generation Co., LLC (Limerick Generating Station Units 1 and 2), CLI-12-19, 76 NRC

__, __ (Oct. 23, 2012) (slip op. at 13) (emphasis added).

NRDCs interpretation of the purpose of sub-section (L) strained and inappropriate.31 Despite the rules plain language, NRDC claims that its view finds support in portions of the SOC supporting sub-section (L),32 a Third Circuit decision,33 and an NEI rulemaking proposal.34 But as discussed in the Staffs initial answer to NRDCs Waiver Petition, NRDC reads these documents out of context to support its view of the purpose of sub-section (L).35 For example, NRDC reads the ruling in N.J. Dept. of Envtl. Prot. v. NRC as supporting its position because that case states that the purpose of the Category 2 regulationsis to require evaluations of site-specific Category 2 issues - including a consideration of [SAMAs] for those issues that have not previously been considered. 36 But when read in proper context, the Third Circuits decision simply contrasts Category 2 issues to Category 1 issues to establish the familiar principle that site-specific evaluations must consider issues not addressed in generic evaluations.37 Thus, this decision only describes the Commissions process for environmental reviews of license renewal applications.

IV. NRDC Does Not Make a Prima Facie Showing on the Millstone Factors Last, NRDCs Opening Brief repeats arguments from the Waiver Petition regarding additional SAMA candidates, advanced computer modeling, and economic inputs to support 31 Limerick, LBP-13-1, 77 NRC __ (slip op. at 9).

32 See NRDCs Opening Brief at 15-16.

33 Id. at 17 (citing N.J. Dept of Envtl. Prot. v. NRC, 561 F.3d 132, 135 (3d Cir. 2009).

34 Id. at 19; see supra n. 18 (discussing why the NEI rulemaking proposal does not further NRDCs claims).

35 Staff Answer Waiver Petition, at 12-21. NRDCs citation to the SOC accompanying sub-section (L), when read in context, only confirms the language in the text of the regulation that a consideration of SAMAs is not needed at license renewal if the Staff previously considered the issue. Id. at 19.

36 NRDCs Opening Brief at 17 (quoting New Jersey, 561 F.3d at 135) (emphasis added by NRDC). See also 10 C.F.R. Part 51, Subpt. A, Appx. B, Table B-1 (noting that the NRC has already reached generic conclusions for Category 1 issues in a Generic Environmental Impact Statement for License Renewal but must consider Category 2 issues on a site-specific basis for license renewal).

37 New Jersey, 561 F.3d at 134-35.

waiver of sub-section (L), but none of these arguments meet the Millstone factors.38 First, NRDC argues that its list of potentially cost-beneficial SAMAs identified at other plants demonstrates that sub-section (L) should not apply here.39 But, when it promulgated sub-section (L), the Commission recognized that future SAMA analyses at other plants could identify certain additional SAMA candidates.40 With this knowledge, the Commission stated that the previous analysis of severe accident mitigation at Limerick was a SAMA analysis and another need not be done for license renewal.41 The Commission based this determination, in part, on its expectation that future SAMA analysis would likely only uncover procedural and programmatic fixes or minor hardware changes.42 Despite these clear statements, NRDC argues that its list of potentially cost-beneficial SAMAs identified at other plants demonstrates that sub-section (L) should not apply here.43 But NRDC has not discussed how these SAMAs are different from the procedural, programmatic, and minor hardware modification changes the Commission explicitly recognized could be identified in future SAMA analyses at other plants.44 Moreover, as discussed in the Staffs Opening Brief, when it promulgated sub-section (L), the Commission foresaw that future SAMA 38 NRDCs Opening Brief at 20-22; Waiver Petition at 20-21.

39 NRDCs Opening Brief at 20-21; Waiver Petition at 20.

40 61 Fed. Reg. at 28,481.

41 Id. NRDC suggests that the Commission inappropriately relied on safety studies to support this finding. NRDCs Opening Brief at 17-18. But, the agency considered these studies in a generic environmental impact statement, meant to comply with NEPA. NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report, at 5-106 to 5-114 (May 1996).

Additionally, the exception in sub-section(L) rests on the assumption that the staff will have considered severe accidents under NEPA at least once, as the Staff did for Limerick. Final Environmental Statement Related to the Operation of Limerick Generating Station, Units 1 and 2, NUREG-0974 Supplement (Aug.

1989) (ADAMS Accession No. ML11221A204). In any event, agencies may rely on analyses or research completed in other contexts to support a NEPA analysis. E.g., Hells Canyon Alliance v. U.S. Forest Service, 227 F.3d 1170, 1182-85 (9th Cir. 2000).

42 61 Fed. Reg. at 28,481 43 NRDCs Opening Brief at 20-21; Waiver Petition at 20.

44 61 Fed. Reg. at 28,481.

analyses may take differing approaches to severe accident modeling and it understood that the agency had considered economic data in a variety of ways in the past.45 NRDC has not provided any additional information to support its claim that economic data and advances in modeling could undermine the Commissions stated rationale for sub-section (L).46 Thus, NRDC has not shown that the Commissions determination in sub-section (L) should be waived in this proceeding.

NRDCs Opening Brief also does not make a prima facie showing on Millstone factors 2, 3, or 4, which require a showing that there are unforeseen special circumstances, that are unique to the facility in question, and that waiver is necessary to reach a significant issue, respectively.47 Instead of showing special circumstances, NRDC points to information and circumstances explicitly considered by the Commission when it promulgated sub-section (L).48 Thus, NRDC does not make a prima facie showing of special circumstances.

Instead of making a prima facie showing of uniqueness, NRDCs Opening Brief simply repeats arguments made in its Waiver Petition that the Staff has already rebutted. For example, NRDCs Opening Brief argues that there are unique circumstances at Limerick because the Third Circuits Limerick decision held that severe accident issues vary tremendously across all plants. 49 But, NRDC misreads the decision. The Third Circuit did not hold that Limerick was a unique facility; it only decided that the Commission had not provided an adequate basis in a challenged-policy statement for resolving severe accident mitigation generically and noted that 45 Staffs Opening Brief at 23-24 (citing 61 Fed. Reg. 28,481-82; NUREG-1530, Reassessment of NRC's Dollar Per Person-Rem Conversion Factor Policy, at 3, 6-7 (Dec. 1995) (ADAMS Accession No. ML063470485)).

46 NRDCs Opening Brief at 20-22.

47 Millstone, CLI-05-24, 62 NRC at 559-60.

48 NRDCs Opening Brief at 22-26; See Staffs Opening Brief at 24-26, Staff Answer to Waiver Petition at 27-34 (addressing these claims).

49 NRDCs Opening Brief at 22-23 (quoting Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 738 (1989) (emphasis added by NRDC); Waiver Petition at 22-23; see Staff Answer to Waiver Petition at 36.

reactors will pose different severe-accident risks based on design and location.50 Similarly, NRDCs Opening Brief repeats arguments that its claims on economic data, computer modeling, and other SAMA candidates are significant simply because they relate to severe accident mitigation.51 But NRDC has not made a showing of significance. For example, while NRDC lists additional SAMA candidates from other plants, it does not indicate how these SAMAs reveal a seriously different picture of the environmental impact of the proposed project52 or lead to a substantial reduction in risk of severe accidents at Limerick.53 Therefore, NRDC has not met any of the Millstone factors, and its Waiver Petition must be denied.

CONCLUSION NRDCs Opening Brief recognizes that the Boards interpretation of sub-section (L) in LPB-13-1 does not comport with NEPA or Commission precedent on waiver. However, NRDCs Opening Brief incorrectly claims that NEPA mandates waiver of sub-section (L), incorrectly interprets the purpose of sub-section (L), and does not provide a prima facie case on any of the Millstone factors. Therefore, the Commission should (1) take review of the Boards referral of LBP-13-1, (2) overrule the portions of LBP-13-1 that are contrary to NEPA and prior Commission holdings on waiver, and (3) affirm the Boards denial of NRDCs Waiver Petition.

/Signed (electronically) by/ Executed in Accord with 10 CFR 2.304(d)

Maxwell C. Smith Catherine E. Kanatas Counsel for NRC Staff Counsel for NRC Staff 50 Limerick, 869 F.2d at 738-39. In light of differences across plants, the court doubted whether severe accident mitigation can be treated as a generic issue. Id. at 739. But, the Commission partially based its generic resolution of SAMAs in sub-section (L) on site-specific studies. 61 Fed. Reg. 28,481.

51 NRDCs Opening Brief at 27 (arguing that by definition its claims are significant because they relate to severe accident mitigation); Waiver Petition at 26-27.

52 Hydro Resources, Inc., CLI-01-04, 53 NRC 31, 52 (2001) (quoting Hydro Resources, Inc., CLI-99-22, 50 NRC 3, 14 (1999)).

53 Staff Answer to Waiver Petition at 39-40.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

EXELON GENERATION COMPANY, LLC ) 50-352-LR/ 50-353-LR

)

(Limerick Generating Station, Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS REPLY ON THE BOARDS REFERRED RULING IN LBP-13-1 in the above captioned proceeding have been served over the Electronic Information Exchange, the NRCs E-Filing System, this 20th day of March, 2013.

/Signed (electronically) by/

Maxwell C. Smith Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1246 E-mail: maxwell.smith@nrc.gov Date of signature: March 20, 2013