ML13079A551

Natural Resources Defense Council'S Response Brief in Support of Waiver of 10 C.F.R. Section 51.53(c)(3)(ii)(L) as Applied to Application for Renewal of Licenses for Limerick Units 1 and 2

ML13079A551
Person / Time
Site:	Limerick
Issue date:	03/20/2013
From:	Crystal H, Fettus G, Roisman A Meyer Glitzenstein & Crystal, National Legal Scholars Law Firm, PC, Natural Resources Defense Council
To:	NRC/OCM
SECY RAS
References
RAS 24252, 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01
Download: ML13079A551 (16)

Text

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

)

EXELON GENERATION COMPANY, LLC ) Docket No. 50-352-LR

) Docket No. 50-353-LR (Limerick Generating Station, Units 1 and 2) )

March 20, 2013 (License Renewal Application)

NATURAL RESOURCES DEFENSE COUNCILS RESPONSE 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 Howard M. Crystal Meyer Glitzenstein & Crystal 1601 Connecticut Ave., N.W., Suite 700 Washington, D.C. 20009 (202) 588-5206 hcrystal@meyerglitz.com Anthony Z. Roisman Geoffrey H. Fettus National Legal Scholars Law Firm, P.C. Natural Resources Defense Council 241 Poverty Lane, Unit 1 1152 15th Street, NW, Suite 300 Lebanon, NH 03766 Washington, D.C. 20005 603-443-4162 202-289-2371 aroisman@nationallegalscholars.com gfettus@nrdc.org

TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... ii GLOSSARY ................................................................................................................................. iv INTRODUCTION ......................................................................................................................... 1 ARGUMENT ................................................................................................................................. 2 A. New and Significant Information Concerning SAMAs Must be Considered During Relicensing, and a Petitioner May Challenge the Adequacy of That Consideration ......... 2 B. NRDC Meets the Standards for Waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L)........................ 6

1. Barring NRDCs Contentions Based on the Regulation Would Violate NEPA and Run Contrary to the Regulations Purpose...................................................... 6

2. Special Circumstances Unique to Limerick and Concerning a Significant Environmental Concern Warrant a Waiver Here ................................................... 8

TABLE OF AUTHORITIES FEDERAL CASES PAGE Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) .................................................................................................................... 4 Ala. Wilderness Recreation & Tourism Ass'n v. Morrison, 67 F.3d 723 (9th Cir. 1995) ........................................................................................................ 4 Bonte v. U.S. Bank, N.A.,

624 F.3d 461 (7th Cir. 2010) ...................................................................................................... 8 Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989)........................................................................................................ 6 Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989) .................................................................................................................... 1 New Hampshire v. Maine, 532 U.S. 742 (2001) .................................................................................................................... 7 Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996) ........................................................................................................ 1 United States v. Coal. v. For Buzzards Bay, 644 F.3d 26 (1st Cir. 2011) ..................................................................................................... 6, 9 COMMISSION DECISIONS Entergy Nuclear Vermont Yankee, L.L.C.,

60 N.R.C. 548 (2004) .................................................................................................................. 3 Louisiana Energy Services, L.P.,

60 N.R.C. 223 (2004) .................................................................................................................. 8 N. State Power Co.,

68 N.R.C. 905 (2008) .................................................................................................................. 4 Private Fuel Storage, L.L.C.,

60 N.R.C. 125 (2004) .................................................................................................................. 3 ii

STATUTES 5 U.S.C. § 702 ............................................................................................................................. 2, 4 42 U.S.C. § 4321 ............................................................................................................................. 1 REGULATIONS 10 C.F.R. 2.309(f)(1)(vi)................................................................................................................. 4 10 C.F.R. § 2.335(b) ....................................................................................................................... 8 10 C.F.R. § 51.53(c)(3)(ii)(L) ................................................................................................ passim 10 C.F.R. § 51.53(c)(3)(iv) .................................................................................................... passim 10 C.F.R. § 51.103(a)(4) ................................................................................................................. 3 40 C.F.R. § 1502.9(c)...................................................................................................................... 1 iii

GLOSSARY APA Administrative Procedure Act Comm. Op. In re Exelon Generation Co., CLI 19 ER Environmental Report EIS Environmental Impact Statement Ex. Br. Mar. 13, 2013 Initial Brief of Exelon Generation Company, LLC Exelon Exelon Generating Co., LLC First ASLB Op. In re Exelon Generation Co., LBP-12-8 NEPA National Environmental Policy Act NRDC Natural Resources Defense Council SAMAs Severe Accident Mitigation Alternatives Second ASLB Op. In re Exelon Generation Co. LBP-13-1 Staff NRC Staff Staff Br. Mar. 13, 2013 Brief of NRC Staff iv

INTRODUCTION1 Acknowledging, as they must, that a waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L) could be granted, Exelon Generating Co., LLC (Exelon) and NRC Staff (Staff) seek to erect an insurmountable barrier to waiver by conflating the standard for waiver with their own, unsupported assertion that to obtain a waiver a party must meet heightened contention pleading standards. Thus, they assert that Natural Resources Defense Council (NRDC) can only obtain a waiver by proving, at the contention admissibility stage, the existence of major design changes or major plant modifications that would be cost-beneficial at Limerick. Ex. Br. at 2 (emphasis added); Staff Br. at 14. Millstone contains no such requirement.

Moreover, they fail to explain how this approach can be reconciled with the framework governing their compliance with - and a petitioners opportunity to challenge their compliance with - the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq., particularly where, as here, NRDC challenges a failure to adequately address an issue required to be addressed in the Environmental Report (ER). Under NEPA, governing case law, and the Commissions regulations, when a prior Environmental Impact Statement (EIS) has been completed, additional environmental analysis is required to address any significant new circumstances, or new information relevant to environmental concerns. 40 C.F.R. § 1502.9(c); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 368 (1989); 10 C.F.R. § 51.53(c)(3)(iv). Thus, if NRDC ultimately demonstrates that new information may have significant environmental impacts, further NEPA review is necessary. E.g. Ramsey v. Kantor, 96 F.3d 434, 445 (9th Cir. 1996). This is a far cry from Exelon and Staffs attempt to impose a 1

The parties concur that the Commission should accept review of the Boards referral.

See Mar. 13, 2013 Initial Brief of Exelon Generation Company, LLCs (Ex. Br.) at 2; Mar. 13, 2013 Brief of NRC Staff (Staff Br.) at 10.

burden of definitive proof, at the contention pleading stage, that the missing mitigation measures will result in a major environmental improvement.

Under the Administrative Procedure Act (APA), an interested party is also entitled to challenge whether an agency has adequately complied with this fundamental NEPA obligation.

5 U.S.C. § 702. An agency may not remove this right to judicial review. Accordingly, because NRDC has easily satisfied its obligation to come forward with sufficient allegations and evidence that there is new information relevant to environmental concerns at Limerick - in particular, that the ER fails to adequately address new and significant information relevant to Severe Accident Mitigation Alternatives (SAMAs) - and meets the waiver standards, the Commission should grant the waiver and allow NRDCs contentions to be heard.

ARGUMENT A. New and Significant Information Concerning SAMAs Must be Considered During Relicensing, and a Petitioner May Challenge the Adequacy of That Consideration.

As Exelon concedes, Exelon and NRC Staff have obligations to address new and significant information related to SAMAs in their NEPA analyses . . . . Ex. Br. at 16, n.77 (emphasis added); see also Staff Br. at 8. Thus, in its ER Exelon included a purported discussion of new and significant information concerning SAMAs. See NRDC March 13, 2013 Opening Brief at 1 n.1 (citing ER). The parties real dispute, then, is not whether new and significant information informing SAMAs must be considered during relicensing, but, rather, what burden NRDC must meet in order to challenge the adequacy of that analysis in the ER.

Under Exelon and Staffs view, because of 10 C.F.R. § 51.53(c)(3)(ii)(L), it is insufficient for a petitioner like NRDC to simply identify new and significant information concerning SAMAs for Limerick. Rather, they claim that in order to pursue its Contentions 2

NRDC must meet an extremely high burden to demonstrate - at the outset - the existence of cost-beneficial major design changes or major plant modifications. Ex. Br. at 2, 18 (emphasis added); Staff Br. at 14. This argument fails on several levels.

First, it is well-established that a petitioner is not required to prove its contentions in order to have them admitted. Rather, a petitioner must simply raise a material issue of fact on the matter. Entergy Nuclear Vermont Yankee, L.L.C., 60 N.R.C. 548, 555-556 (2004) (At the contention admissibility stage all that is required is some alleged fact or facts in support and

[d]etermining whether the contention is adequately supported by a concise allegation of the facts or expert opinion is . . . not a hearing on the merits)(citations omitted); Private Fuel Storage, L.L.C., 60 N.R.C. 125, 139 (2004) (we do not expect a petitioner to prove its contention at the pleading stage).2 Exelon and Staffs arguments conflate the standards for a waiver with those for contention admissibility. The waiver standards do not require proof that specific additional analyses sought will cause a major change, only that the issues sought to be raised are significant. Indeed, the requirement to fully consider mitigation measures, and new and significant information regarding mitigation, are embodied in NRC regulations, and thus have already been deemed to be significant issues. See 10 C.F.R. §§ 51.53(c)(3)(iv), 51.103(a)(4).

While Staff and Exelon seek to require NRDC itself to come forward with the analysis demonstrating whether there are new cost-effective SAMAs for Limerick, that is Exelons (and 2

Exelon claims NRDC alleges that the mere assertion of new information warrants admission. Ex. Br. at 3. NRDCs Contentions included a declaration explaining in detail the bases for NRDCs claims, see NRDC Opening Br., Ex. A at 36 claims that: (a) the Board found meet contention admissibility standards (First ASLB Op. at 20-21, 23-25) and (b) the Commission concluded may be admitted if NRDC meets waiver standards. Comm. Op. at 13.

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NRCs) job. The purpose of a NEPA analysis is to, inter alia, require the applicant - and ultimately the agency - to analyze appropriate alternatives and their environmental impacts.

Accordingly, NRDC need only come forward with sufficient information showing an aspect of the required analysis is missing. If the admitted contention succeeds, then the agency/applicant must conduct the requisite analysis. E.g. 10 C.F.R. 2.309(f)(1)(vi); N. States Power Co., 68 N.R.C. 905, 932 (2008) (Because Petitioner sets forth a contention of omission . . . Petitioner is not required to provide supporting facts or expert opinion at this stage).

Second, Exelon and Staffs approach would deny Petitioners their basic APA rights to challenge compliance with NEPA. The APA affords NRDC a statutory right to review of NRCs compliance with NEPA. 5 U.S.C. § 702 (a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof). That right cannot be reconciled with Exelons assertion that, while it and the Commission must address new and significant information related to SAMAs during relicensing, there is no inherent right under NEPA to litigate an ERs discussion of new and significant information. Ex. Br. at 16, n.77 (emphasis added). In short, if new and significant information concerning SAMAs must be considered during the relicensing process, NRDC is entitled to challenge the adequacy of that analysis, without proving up front that such an analysis will require major plant modifications. E.g.

Abbott Lab. v. Gardner, 387 U.S. 136, 140 (1967) (judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress); Ala. Wilderness Recreation & Tourism Assn v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995) (alternatives are the heart of the environmental impact statement, and 4

when new reasonable alternatives arise following completion of an EIS they must be independently considered in the NEPA process).

Finally, Exelon and Staff fail to recognize the Commissions own regulatory scheme already recognizes the obligation to supplant prior NEPA analyses, requiring the EIS for license renewal to contain any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware. 10 C.F.R. § 51.53(c)(3)(iv) (emphasis added).

Nowhere does this - or any other - NRC regulation state or imply that this obligation is only triggered if the Petitioner proves that major design changes or major plant modifications will result. Accordingly, Exelons extended discussion of why the issues raised by NRDC do not meet its self-created major modification standard - which, Exelon explains, would require a petitioner to demonstrate the need for a plant change that results in the permanent installation of a new structure, system, or a redundant train of an existing system that changes the footprint of the facility, Ex. Br. at 18 is a non-sequitur, as no such standard exists. Moreover, the fact that Exelon found it necessary to submit a declaration challenging NRDCs evidence of the existence and potential importance of additional SAMAs merely serves to highlight the existence of a factual dispute that cannot be resolved at the Contention admissibility stage.

10 C.F.R. § 51.53(c)(3)(ii)(L) does not, and cannot, change this result. The Commission may have anticipated that any additional SAMAs in the future would be minor (and thus presumably would fall below the significant new information standard), Staff Br. at 28, and that as a result they could be more appropriately addressed outside of the SAMA context, Staff Br. at 28-29, but the only purpose for the regulation that would be consistent with NEPA (and the APA) would be that this simply meant that if, after a contention is admitted based on the 5

failure to consider new and significant information, a Petitioner was unable to demonstrate that that the new information is significant, new SAMAs need not be considered. It could not have been the Commissions purpose to set a higher burden, or to otherwise substitute the IPE and IPEE processes for further NEPA review. E.g. United States v. Coal. For Buzzards Bay, 644 F.3d 26, 38 (1st Cir. 2011) (rejecting argument that alternative process can substitute for NEPA);

Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 729 (3d Cir. 1989) (AEA procedures cannot substitute for compliance with NEPA).3 Accordingly, an adequate consideration of new and significant information related to SAMA must be included in the ER for Limerick relicensing, and NRDC has the right to challenge the adequacy of that analysis.

B. NRDC Meets The Standards For Waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L).

1. Barring NRDCs Contentions Based on the Regulation Would Violate NEPA And Run Contrary To The Regulations Purpose.

Before the Board, it was Staffs position that the purpose of 10 C.F.R. § 51.53(c)(3)(ii)(L) is . . . that a plant that has previously considered [SAMAs] need not reassess severe accident mitigation for license renewal. NRC Staff Answer to Waiver Petition (Dec. 14, 2012) at 12-13 (emphasis added). The Board accepted this argument, concluding that the purpose of the regulation is to exempt those plants that have already performed SAMA analyses 3

Staff suggests that the regulation is intended to foreclose further NEPA review on SAMAs unless they will result in major plant modifications because the Commission recognized that the risk of severe accidents was small. Staff Br. at 14-15. But this seeks to reargue the position that the Third Circuit rejected in Limerick Ecology, where the Court expressly ruled that, particularly in light of the significant harms that a severe accident would cause, SAMA analysis is required in the NEPA process irrespective of the fact that the risk of an accident may be small. Limerick Ecology Action, Inc. v. U.S. Nuclear Regulatory Commn, 869 F.2d at 741 (after Three Mile Island, it would be irrational for the NRC to maintain that severe accident risks are too remote to require consideration).

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from [considering SAMAs] at license renewal, and thus, that [e]ven if a petitioner could demonstrate that there exists a group of cost-effective SAMA candidates that would greatly reduce the impacts of severe accidents and that have not been considered in the previous analysis, that petitioner could not successfully seek a waiver . . . . Second ASLB Op. at 10.

The Boards referral to the Commission was based on that conclusion, because it would mean that a waiver could never be granted.

Recognizing this problem, Staff now take a contrary position, claiming that a waiver could be granted, and that it would be within the purpose of the regulation to require further consideration of SAMAs, if a petitioner could demonstrate, at the outset, that those SAMAs would provide a serious reduction in the risk of severe accidents . . . . Staff Br. at 27. We have explained above why this newly minted standard is inappropriate, see supra at 2-6, but in any event this kind of bait-and-switch approach should not be permitted. New Hampshire v.

Maine, 532 U.S. 742, 749 (2001) ([W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position). Rather, the Commission should simply reject Staffs original argument, and conclude that, as compelled by the Commissions regulations and NEPA, further analysis is required where, as here, a petitioner sufficiently alleges that an ER inadequately addresses new and significant information concerning SAMAs.4 4

Elsewhere Staff itself suggests this standard, stating that the Boards conclusion -

which Staff itself had urged - must be wrong because otherwise NRDC would have no opportunity to bring claims of new and significant information regarding SAMAs in this adjudication. Staff Br. at 18.

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This result is arguably compelled by the Commissions earlier decision remanding this proceeding to the Board, where the Commission explained that NRDC may challenge the adequacy of the new information provided in the Limerick ER, Comm. Op. at 13 (emphasis added), but stated that the appropriate vehicle to pursue such a claim concerning new and significant information is a waiver petition. Id. at 10. Accordingly, the Commission should conclude that it would be contrary to the purpose of the regulation to preclude such a waiver based on the impossibility that such a waiver could be granted.

Alternatively, the Commission should conclude that the narrow purpose of 10 C.F.R. § 51.53(c)(3)(ii)(L) is to exempt Exelon from reconsidering the SAMA candidates that were previously considered. See NRDC Mar. 13, 2013 Opening Brief at 15-18. This more narrow purpose would reconcile the regulations with NEPA and with 10 C.F.R. § 51.53(c)(3)(iv) by allowing NRDC to challenge whether Exelon has adequately considered new and significant information that may serve to identify new SAMA candidates, and has used more current analyses and cost considerations in doing so.

2. Special Circumstances Unique to Limerick and Concerning a Significant Environmental Concern Warrant A Waiver Here.5 Exelon does not contest that NRDC meets the remainder of the waiver test, and should not be permitted to so argue in its response brief. Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010); Louisiana Energy Services, L.P., 60 N.R.C. 223, 225 (2004) (new arguments 5

The Board concluded that the Millstone test contains an appreciably higher burden for would-be waiver seekers than does 10 C.F.R. § 2.335(b), because the regulation does not require the waiver request to be unique to the facility or concern a significant safety issue.

Second ASLB Op. at 7. While NRDC agrees with the Board that it should not be required to satisfy these factors here, they are nonetheless amply met.

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may not be raised for the first time in a reply brief). While Staff contests whether NRDC meets the remaining factors, the arguments have no merit.

First, Staff claims that NRDCs request is not unique because the regulation could apply to other license renewals or reactors applying for subsequent license renewal . . . . Staff Br. at

26. Of course, if there were any such plants Staff would have named them, and NRDC is aware of none. As for subsequent renewals, the notion that the regulation will exempt further SAMA analysis when plants are again renewed in the mid-twenty-first century flatly contradicts the GEIS, which was prepared only to address environmental impacts of renewing the licenses of and operating individual nuclear power plants for an additional twenty years, not second - and third, and fourth - generation renewals. See GEIS Executive Summary; id. at § 1.1. Thus, in fact, the request only covers Limerick, since, of the three plants covered by the exception to 10 C.F.R. § 51.53(c)(3)(ii)(L) - Limerick, Companche Creek, and Watts Barr - only Limerick is a Boiling Water Reactor. See 61 Fed. Reg. at 28,481.

Second, Staff claims there are no special circumstances or significant environment concerns because, in promulgating 10 C.F.R. § 51.53(c)(3)(ii)(L), the Commission anticipated that additional cost-effective SAMAs would be developed in the future. Staff Br. at 25; id. at 28 (arguing that in promulgating the regulation the Commission explicitly recognized that future SAMA analyses done at other plants may identify other cost-beneficial SAMAs). Of course, if that were the governing standard then, again, a waiver could never be granted. But, having already determined that NRDC may challenge the adequacy of the new information Exelon provided concerning SAMAs, Comm. Op. at 13 (emphasis added), and that the appropriate 9

mechanism through which to do so is the waiver process, the Commission has already, in effect, concluded that such a challenge meets these remaining criteria.6 Moreover, Staffs view of how these factors can be satisfied here is at odds with the Statement of Consideration, where, in responding to concerns that new information may undermine the bases for generic licensing determinations, the Commission itself recognized that if subsequent information demonstrates that the analysis of an impact codified in the rule is incorrect with respect to [a] particular plant, a waiver of the rule will be appropriate. 61 Fed.

Reg. at 28,470. NRDC has produced more than sufficient information to challenge the adequacy of Exelons analysis of new and significant information concerning SAMAs in its ER. Thus, a waiver must be granted. Respectfully Submitted, s/ (electronically signed) s/(electronically signed)

Howard M. Crystal Geoffrey H. Fettus Meyer Glitzenstein & Crystal Natural Resources Defense Council 1601 Connecticut Ave., N.W., Suite 700 1152 15th Street, NW, Suite 300 Washington, D.C. 20009 Washington, D.C. 20005 (202) 588-5206 202-289-2371 hcrystal@meyerglitz.com gfettus@nrdc.org s/ (electronically signed)

Anthony Z. Roisman National Legal Scholars Law Firm, P.C.

241 Poverty Lane, Unit 1 Lebanon, NH 03766 603-443-4162 aroisman@nationallegalscholars.com Filed this date of March 20, 2013 6

Staffs reliance on a decision rejecting an effort to reopen the record in another proceeding based on contentions concerning a SAMA analysis is misplaced. Staff Br. at 29 n.158. The reopening standards are not at issue here, and, the fact that claims related to SAMAs are not necessarily significant, Staff Br. at 29 (emphasis added), has nothing to do with whether NRDC has raised significant issues here.

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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRDC RESPONSE IN SUPPORT OF REQUEST 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 and supporting documents in the captioned proceeding were served via the Electronic Information Exchange (EIE) on the 20th day of March 2013, which to the best of my knowledge resulted in transmittal of same to those on the EIE Service List for the captioned proceeding.

Chief Judge Roy Hawkens U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Office of the Secretary of the Commission Mail Stop: T-3F23 Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 hearingdocket@nrc.gov Roy.Hawkens@nrc.gov U.S. Nuclear Regulatory Commission Exelon Generation Company, LLC Office of Commission Appellate Adjudication 4300 Warrenville Road Mail Stop: O-16C1 Warrenville, IL 60555 Washington, DC 20555-0001 J. Bradley Fewell, Deputy General Counsel ocaamail@nrc.gov Bradley.Fewell@exeloncorp.com Morgan, Lewis & Bockius LLP Office of the General Counsel 1111 Pennsylvania Avenue, N.W. U.S. Nuclear Regulatory Commission Washington, DC 20004 Mail Stop O-15D21 Alex S. Polonsky, Esq. Washington, DC 20555-0001 apolonsky@morganlewis.com ogcmailcenter@nrc.gov Kathryn M. Sutton, Esq. Catherine Kanatas catherine.kanatas@nrc.gov ksutton@morganlewis.com Brian Newell brian.newell@nrc.gov Brooke E. Leach Maxwell Smith maxwell.smith@nrc.gov bleach@morganlewis.com Mary Spencer mary.spencer@nrc.gov Ed Williamson edward.williamson@nrc.gov

/Signed (electronically) by/

Howard M. Crystal 11