ML13175A214
| ML13175A214 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 06/24/2013 |
| From: | Catherine Kanatas NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24714, 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01 | |
| Download: ML13175A214 (8) | |
Text
June 24, 2013 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
EXELON GENERATION COMPANY, LLC ) Docket Nos. 50-352-LR
) 50-353-LR (Limerick Generating Station, Units 1 and 2) )
)
NRC STAFF ANSWER TO THE NATURAL RESOURCES DEFENSE COUNCILS RESUBMISSION OF CONTENTIONS IN RESPONSE TO STAFFS SUPPLEMENTAL DRAFT ENVIRONMENTAL IMPACT STATEMENT Pursuant to 10 C.F.R. § 2.309(i)(1), the staff of the Nuclear Regulatory Commission (Staff) files its answer to the Natural Resources Defense Councils [NRDC] Resubmission of Contentions in Response to Staffs Supplemental Draft Environmental Impact Statement (Resubmission). 1 The Resubmission updates three sets of previously submitted contentions to challenge Staffs Draft Supplemental Environmental Impact Statement (DSEIS) 2 instead of Exelons Environmental Report (ER) and asks that the Board accept the revisions. 3 Specifically, NRDC resubmits (1) the three severe accident mitigation alternatives (SAMA) contentions and no-action alternative contention submitted in NRDCs November 22, 1
Natural Resources Defense Councils Resubmission of Contentions in Response to Staffs Supplemental Draft Environmental Impact Statement (May 30, 2013) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML13150A420) (Resubmission).
2 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants, Supplement 49, Regarding Limerick Generating Station, Units 1 and 2, Draft Report for Comment (April 2013) (ADAMS Accession No. ML13120A078).
3 See Resubmission at 9. See id. at 2 (noting that update is provided simply to preserve the contentions for consideration).
2011 Petition to Intervene, 4 (2) the three SAMA contentions submitted with NRDCs November 21, 2012 waiver petition, 5 and (3) its Waste Confidence contention. 6 NRDC does not offer any new facts or evidence in support of its contentions or seek to modify the bases of its contentions. 7 NRDC simply asks the Board to accept these contentions, which substitute the Staffs DSEIS for Exelons ER as the challenged document, 8 and claims that the DSEIS and ER contain the same fundamental analytical flaws and deficiencies. 9 The Board should not accept or admit any of NRDCs resubmitted contentions because NRDC has not demonstrated that its contentions meet the requirements of both 10 C.F.R. §§ 2.309(c) and 2.309(f)(1). 10 Instead, guided by its own rulings in LBP-12-8 and LBP-13-1 and the Commissions rulings in CLI-12-19 and CLI-12-16, the Board should: find NRDCs no-action alternative contention inadmissible; 11 find NRDCs SAMA contentions 4
Natural Resources Defense Council Petition to Intervene and Notice of Intention to Participate (Nov. 22, 2011) (ADAMS Accession No. ML11326A320) (Petition to Intervene). Resubmission at 1-2.
5 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). Resubmission at 2.
6 NRDCs Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Limerick (July 9, 2012) (ADAMS Accession No. ML12191A408) and NRDCs Waste Confidence Contention (July 9, 2012) (ADAMS Accession No. ML12191A409).
Resubmission at 2-3.
7 Resubmission at 2, 3, 4, 5, 6 (stating that bases for contentions have not changed).
8 Id. at 9.
9 Id. at 2, 3, 4.
10 Pursuant to 10 C.F.R. § 2.309, contentions may be initially submitted in accordance with
§ 2.309(b). New or amended contentions may be filed after the deadline defined by § 2.309(b) in accordance with § 2.309(c). Regardless of when they are submitted, new or amended contentions must meet the requirements of 10 C.F.R. § 2.309(f)(1). AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station) (Oyster Creek), CLI-09-7, 69 NRC 235, 261 (2009).
11 See Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), LBP-12-8, 75 NRC __, __ (Apr. 4, 2012) (slip op. at 40).
inadmissible as impermissible challenges to the Commissions regulations; 12 and hold NRDCs Waste Confidence contention in abeyance. 13 Specifically, in LBP-12-8, the Board ruled that NRDCs no-action alternative contention and SAMA contentions, with the exception of specific portions of SAMA contention 1-E, were inadmissible. 14 NRDCs no-action alternative contention challenged the ERs discussion of the no-action alternative. 15 The Board rejected this contention for lacking sufficient factual or expert support. 16 NRDCs Resubmission does not add any basis to its no-action alternative contention; 17 instead, NRDC only direct[s] the original Contentions to the DSEIS rather than the
[ER]. 18 Therefore, NRDCs no-action alternative contention still does not meet the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1) and should be denied. 19 12 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2) (Limerick), CLI 19, 76 NRC __, __ (Oct. 23, 2012) (slip op. at 1, 3, 17) (reversing the Boards decision in LBP-12-8 to admit portions of NRDCs SAMA contention 1-E in the absence of a waiver because the contention was an impermissible challenge to § 51.53(c)(3)(ii)(L)). Id. at 8 (noting that Board considered NRDCs challenges to Exelons 1989 SAMDA analysis an impermissible challenge to § 51.53(c)(3)(ii)(L)). See also Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), LBP-13-1, 76 NRC at ___
(Feb. 6, 2013) (slip op. at 1) (denying NRDCs Waiver Petition but referring the decision to the Commission).
13 Calvert Cliffs Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 2) (Calvert Cliffs),
CLI-12-16, 76 NRC __, __ (Aug. 7, 2012) (slip op. at 6) (directing that Waste Confidence contentions submitted, including NRDCs Waste Confidence contention, id. at 5 n.10, be held in abeyance pending the Commissions further order).
14 LPB-12-8, 75 NRC at __ (slip op. at 27).
15 Petition to Intervene at 23-24, 31.
16 LBP-12-8, 75 NRC at __ (slip op. at 37-39).
17 See also Resubmission at 2 (accepting the Boards ruling on the admissibility of the contention as binding on the contention as applied to the DSEIS).
18 Resubmission at 1-2, 9. Contrary to NRDCs assertion that all four contentions in its Petition to Intervene challenged the adequacy of the ERs consideration of SAMAs, id. at 1, only three of its initial contentions concerned SAMAs. The fourth contention concerned the ERs analysis of the no-action alternative. See Petition to Intervene at 23.
19 See Oyster Creek, CLI-09-7, 69 NRC at 261 (contentions must meet the requirements of (footnote continued)
NRDCs SAMA contentions likewise should be denied. In CLI-12-19, the Commission held that the Board erred in admitting portions of NRDCs SAMA contention 1-E20 because the contention was an impermissible challenge to the regulations. 21 Specifically, the Commission held that because the Commissions rules expressly provide that a supplemental SAMA analysis need not be performed [for Limerick], the proper procedural avenue for NRDC to raise its concerns is to seek a waiver of the relevant provision in section 51.53(c)(3)(ii)(L). 22 Accordingly, the Commission remanded the proceeding to the Board for the limited purpose of considering a waiver petition. 23 The Board denied NRDCs Waiver Petition in LBP-13-1, but referred its decision to the Commission. 24 As NRDC recognizes, the Commission has not ruled on its Waiver Petition. 25 Moreover, NRDCs Resubmission does not add any basis or evidence in support of its SAMA contentions or seek a waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L). 26 Therefore, NRDCs SAMA contentions remain impermissible challenges to the regulations.
Finally, the Board should not admit NRDCs resubmitted Waste Confidence contention given the Commissions directions in CLI-12-16. As NRDC notes, in CLI-12-16, the (footnote continued) 10 C.F.R. § 2.309(f)(1)).
20 Limerick, CLI-12-19, 76 NRC __ (slip op. at 1, 3, 14, 17).
21 Id. at 17.
22 Id. at 13.
23 Id. at 17. The Commission did not suggest that NRDC could resubmit its no-action alternative contention, which the Board found inadmissible. Id. at 2 n.7.
24 See Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), LBP-13-1, 76 NRC at ___ (Feb. 6, 2013) (slip op. at 1).
25 Resubmission at 6 (noting that Nov. 21, 2012 Waiver Petition was pending before the Commission). Notably, NRDC recognizes that the Commission must grant its pending Waiver Petition in order to litigate its SAMA contentions. Id. at 4.
26 Resubmission at 2.
Commission directed licensing boards in receipt of Waste Confidence contentions to hold those contentions in abeyance pending further order. 27 Consistent with the Commissions directive, this Board issued an order holding NRDCs Waste Confidence contention in abeyance. 28 Because the Commission has issued no further order, 29 the Board should hold NRDCs resubmitted Waste Confidence contention in abeyance. 30 While the Board should not admit any of NRDCs resubmitted contentions, the Staff is not opposed to tolling the deadline for NRDC to file updated SAMA contentions based on the Staffs DSEIS until the Commission rules on NRDCs pending Waiver Petition. 31 If the Commission grants NRDCs Waiver Petition, the parties to this proceeding could then respond to any updated SAMA contentions filed 32 and the Board could rule on whether NRDCs updated contentions raise a genuine material dispute with the Staffs DSEIS, which contains a different analysis than Exelons ER.
27 Resubmission at 7 (discussing Calvert Cliffs, CLI-12-16, 76 NRC __ (slip op.)).
28 Memorandum and Order (Suspending Procedural Date Related to Waste Confidence Contention) (Aug. 8, 2012) (unpublished) (ADAMS Accession No. ML12221A277).
29 Instead, the Commission directed the Staff to complete a revised Waste Confidence rule.
Resubmission at 7.
30 As stated in the Staffs August 2, 2012 answer to NRDCs Motion and Waste Confidence Contention, the portions of the contention based upon the D.C. Circuits decision in New York et al. v.
NRC, 681 F.3d 471 (D.C. Cir. 2012), would be admissible. NRC Staffs Response to NRDCs Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Limerick and NRDCs Waste Confidence Contention (Aug. 2, 2012) (ADAMS Accession No. ML12215A457). To the extent that NRDCs resubmitted Waste Confidence contention, like its predecessor, goes beyond New York et al. v. NRC, the Staff maintains its position that these claims are outside the scope of this proceeding and lack adequate basis. Id. at 7-11.
31 See 10 C.F.R. § 2.309(f)(2); See Resubmission at 1 (noting that filing was triggered by May 1, 2013 notification of availability of the DSEIS).
32 If the deadline for filing was tolled, the trigger for filing new SAMA contentions based on the DSEIS would be the date on which the Commission ruled on NRDCs Waiver Petition, not the date the DSEIS was published.
In short, Exelons ER analyzed whether potentially new and significant information would change the results of its 1989 SAMDA. In contrast, the Staffs DSEIS evaluates whether any new and significant information would change the generic conclusion codified in the Commissions regulations that Exelon need not reassess SAMAs at Limerick Generating Station (LGS) for license renewal 33 and the Staff need not reconsider SAMAs at license renewal. 34 The purpose of the Staffs evaluation of new and significant information is to determine whether any new and significant information exists that provides a seriously different picture of the environmental impacts than what was previously envisioned regarding the determination in 10 C.F.R. 51.53(c)(3)(ii)(L), Table B-1 [of 10 C.F.R. Part 51, Subpart A, Appendix B], and the clarifications in the statement of considerations. 35 The Staff considered Exelons evaluation, as well as public comments, and other information. 36 After completing its independent assessment of new information, the Staff concluded that there was no new and significant information with respect to the NRCs determination not to conduct a second SAMA analysis at LGS for license renewal and the studies and assumptions underlying that determination. DSEIS at 5-14.
For the reasons stated above, the Board should deny NRDCs resubmitted no-action alternative and SAMA contentions and should hold NRDCs Waste Confidence contention in abeyance. The Staff is not opposed to tolling the deadline for NRDC to file updated SAMA 33 10 C.F.R. § 51.53(c)(3)(ii)(L). See DSEIS at 5-7.
34 Table B-1 of 10 C.F.R. Part 51, Subpart A, Appendix B. See DSEIS at 5-7. Contrary to NRDCs claim, Resubmission at 3, it has never been the Staffs position that new and significant information concerning SAMAs need not be considered as part of the Limerick relicensing process. The Staff has always maintained that both Exelon and the Staff must consider new and significant information.
See, e.g., DSEIS at 5-7 (noting that both Exelon and the Staff must and did consider new and significant information).
35 DSEIS at 5-7.
36 Id. at 5-7-5-14.
contentions based on the Staffs DSEIS until the Commission rules on NRDCs pending Waiver Petition, but requests the opportunity to respond to any contentions submitted.
Respectfully submitted,
/Signed (electronically) by/
Catherine E. Kanatas Counsel for NRC Staff U.S. Nuclear Regulatory Commission (301) 415-2321 catherine.kanatas@nrc.gov Dated at Rockville, Maryland this 24th day of June, 2013
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
EXELON GENERATION COMPANY, LLC ) Docket Nos. 50-352-LR
) 50-353-LR (Limerick Generating Station, Units 1 and 2) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFF ANSWER TO NATURAL RESOURCES DEFENSE COUNCILS RESUBMISSION OF COTENTIONS IN RESPONSE TO STAFFS SUPPELMENTAL DRAFT ENVIRONMENTAL IMPACT STATEMENT have been submitted through the E-filing System this 24th day of June, 2013.
/Signed (electronically) by/
Catherine E. Kanatas Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-2321 E-mail: catherine.kanatas@nrc.gov