ML13193A050
| ML13193A050 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 07/12/2013 |
| From: | William Froehlich, Kastenberg W, Kennedy M Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-352-LR, 50-353-LR, ASLBP 12-916-01-LR-BD01, RAS 24812 | |
| Download: ML13193A050 (8) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
William J. Froehlich, Chairman Dr. Michael F. Kennedy Dr. William E. Kastenberg In the Matter of EXELON GENERATION COMPANY, LLC (Limerick Generating Station, Units 1 and 2)
Docket Nos. 50-352-LR, 50-353-LR ASLBP No. 12-916-04-LR-BD01 July 12, 2013 MEMORANDUM AND ORDER (Ruling on Resubmission of Contentions)
Before this Atomic Safety and Licensing Board (Board) is a motion by the Natural Resources Defense Council (NRDC) to resubmit a number of contentions.1 Essentially, these contentions are identical to contentions previously proffered in this proceeding, but they are directed toward the Nuclear Regulatory Commissions (NRC) Draft Supplemental Environmental Impact Statement (DSEIS) rather than Exelon Generation Company, LLCs (Exelon)
Environmental Report (ER). NRDC does not seek to litigate the admissibility of these contentions at this juncture, but simply asks that the Board accept these contentions.2 For the reasons discussed below, the Board does not accept these new contentions, but tolls the deadline for NRDC to resubmit these contentions pending resolution of a waiver proceeding currently pending before the Commission.
1 [NRDCs] Resubmission of Contentions in Response to Staffs Supplemental Draft Environmental Impact Statement (May 30, 2013) [hereinafter Motion].
2 See id. at 9.
I.
BACKGROUND The history of this proceeding is somewhat convoluted, and need not be fully recounted here, as we have adequately explained it elsewhere.3 It is sufficient here simply to note that NRDC has submitted a waiver petition pursuant to 10 C.F.R. § 2.335(b) in order to litigate its original contentions. This Board ruled on that waiver petition in LBP-13-01, finding that NRDC had not met the standards for waiver of a regulation, and referring our ruling to the Commission pursuant to 10 C.F.R. § 2.323(f)(1) because NRDCs petition presented a novel issue of law that deserved the Commissions immediate attention.4 Our referral of LBP-13-01 is presently pending before the Commission.
On April 30, 2013, the NRC published the DSEIS for Limerick Generating Station, Units 1 and 2 (Limerick).5 NRDC filed the instant motion on May 30, 2012. Exelon and the NRC Staff filed answers opposing the motion on June 24, 2013.6 NRDC filed a reply to these answers on July 8, 2013.7 3 See LBP-13-01, 77 NRC __, __-__ (slip op. at 1-5) (Feb. 6, 2013).
4 Id. at 13.
5 See Office of Nuclear Reactor Regulation, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supp. 49, Regarding Limerick Generating Station, Units 1 and 2, Draft Report for Comment (Apr. 2013) (ADAMS Accession No. ML13120A078).
6 See Exelons Answer Opposing [NRDCs] Resubmission of Contentions in Response to Staffs Supplemental Draft Environmental Impact Statement (June 24, 2013) [hereinafter Exelon Answer]; NRC Staff Answer to [NRDCs] Resubmission of Contentions in Response to Staffs Supplemental Draft Environmental Impact Statement (June 24, 2013) [hereinafter NRC Staff Answer].
7 See [NRDCs] Reply in Support of Resubmission of Contentions (July 8, 2013) [hereinafter Reply].
II.
ANALYSIS AND RULING A.
Positions of the Parties NRDC states that the purpose of the update is to simply direct the original Contentions to the DSEIS rather than the [ER], since the bases for the Contentions has not changed.8 That is, NRDC does not appear to argue that there is some new and significant information within the DSEIS that makes its previously inadmissible9 contentions admissible. Indeed, NRDC states that [o]ther than accepting these updated Contentions NRDC seeks no action from the Board at this time.10 Both Exelon and the NRC Staff oppose this request.
Exelon contends that NRDCs motion is without legal basis, and argues that the Board should reject the Resubmitted Contentions.11 Exelon claims that this Board lacks jurisdiction to accept these resubmitted contentions because NRDCs waiver petition (which seeks a waiver in order to litigate an essentially identical set of contentions) is currently pending before the Commission.12 Exelon also contends that the motion is untimely and fails to satisfy the Commissions contention admissibility requirements.13 The NRC Staff argues that [t]he Board should not accept or admit any of NRDCs resubmitted contentions because NRDC has not demonstrated that its contentions meet the 8 Motion at 2.
9 In addition to finding NRDCs waiver petition lacking in LBP-13-01, this Board earlier found a number of NRDCs contentions inadmissible in its initial ruling on NRDCs initial petition to intervene in LBP-12-08. 75 NRC 539, 570-71 (2012).
10 Motion at 9.
11 Exelon Answer at 3.
12 Id. at 10.
13 Id. at 10-18.
Commissions timeliness and contention admissibility requirements.14 The NRC Staff does note, however, that it 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.15 B.
Analysis It appears to us that Exelon and the NRC Staff have built up and burned down a straw man version of NRDCs request. Despite NRDCs explanation that its motion is not intended to litigate any issue not yet ripe for resolution16 and does not seek any action from the Board other than acceptance of its new contentions,17 both Exelon and the NRC Staff stress that NRDC has not satisfied the Commissions contention admissibility criteria.18 As NRDC states in its reply, each of Exelon and Staffs arguments ignore that NRDC is not asking the Board to admit Contentions previously rejected, but simply to accept that NRDC has directed them to the DSEIS so they are preserved for further review.19 We agree with NRDC and therefore do not analyze the admissibility of these new contentions.
Some confusion on the part of Exelon and the NRC Staff is surely understandable, though, as it is unclear what, if any, regulatory basis NRDC has for asking this Board to accept, but not admit, new contentions. Despite this regulatory ambiguity, NRDCs intent in filing this motion is clear - it simply wishes to preserve its right to litigate these contentions 14 NRC Staff Answer at 2.
15 Id. at 5.
16 Motion at 2.
17 Id. at 9.
18 Exelon Answer at 12-18; NRC Staff Answer at 2-3.
19 Reply at 6.
directed at the DSEIS should the Commission rule in its favor on the pending waiver petition. In other words, it seems that NRDC is reasonably concerned that if it had waited to submit these new contentions until after a potential ruling in its favor by the Commission on the pending waiver petition, Exelon and/or the NRC Staff would have opposed the contentions on the grounds that they are untimely - that is, that they were filed too late after the publication of the DSEIS.20 We believe that the NRC Staffs proposal of tolling the deadline to submit DSEIS-related contentions (or, we might add, Final SEIS-related contentions, should the NRC issue the FSEIS prior to a Commission ruling on the waiver petition) pending Commission action on the waiver petition is a reasonable approach to addressing NRDCs concerns. Indeed, NRDC states in its reply that if the Board is not inclined to [accept the contentions], at minimum it should adopt the Staffs suggested approach.21 Because we are unaware of any regulatory authority for licensing boards to accept, but not admit, contentions (and indeed, because we are unaware what such acceptance would even entail, from an administrative perspective), we do not do so here. Rather, we will toll the deadline for NRDC to resubmit these contentions after the Commission rules on the pending waiver petition, should NRDC deem it appropriate to do so.
20 See Reply at 6.
21 Id. at 2.
III.
CONCLUSION For the reasons discussed above, NRDCs motion for the Board to accept its new contentions is DENIED. However, consistent with the approach advanced by the NRC Staff, we hereby toll the deadline for NRDC to re-file these DSEIS-related contentions.22 NRDC may re-submit these contentions within 30 days of the issuance of any Commission order granting the currently pending waiver petition.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD William J. Froehlich, Chairman ADMINISTRATIVE JUDGE Dr. Michael F. Kennedy ADMINISTRATIVE JUDGE Dr. William E. Kastenberg ADMINISTRATIVE JUDGE Rockville, Maryland July 12, 2013 22 Should the NRC issue the Limerick FSEIS prior to ruling on the waiver petition, NRDCs deadline to update these contentions to challenge the FSEIS will be tolled as well. The NRC Staff currently projects that the FSEIS will be issued in November 2013. See http://www.nrc.gov/reactors/operating/licensing/renewal/applications/limerick.html.
/RA/
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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Exelon Generation Company, LLC
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Docket Nos. 50-352-LR and 50-353-LR (Limerick Generating Station, Units 1 and 2)
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ASLBP No. 12-916-04-LR-BD01 (License Renewal)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Ruling on Resubmission of Contentions) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Mail Stop T-3F23 Washington, DC 20555-0001 William J. Froehlich, Chair Administrative Judge E-mail: william.froehlich@nrc.gov Michael F. Kennedy Administrative Judge E-mail: michael.kennedy@nrc.gov William E. Kastenberg Administrative Judge E-mail: William.kastenberg@nrc.gov Matthew Flyntz Law Clerk E-mail: matthew.flyntz@nrc.gov Onika Williams, Law Clerk Email: onika.williams@nrc.gov U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop O-16C1 Washington, DC 20555-0001 OCAA Mail Center: ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop O-16C1 Washington, DC 20555-0001 Hearing Docket: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15D21 Washington, DC 20555-0001 Catherine Kanatas, Esq.
Mary Spencer, Esq.
Edward Williamson, Esq.
Christina England, Esq.
catherine.kanatas@nrc.gov mary.spencer@nrc.gov edward.williamson@nrc.gov christina.england@nrc.gov
Limerick Generating Station, Units 1 and 2, Docket Nos. 50-362-LR and 50-363-LR MEMORANDUM AND ORDER (Ruling on Resubmission of Contentions) 2 Exelon Generation Company, LLC Exelon Business Services Company 200 Exelon Way, Suite 305 Kennett Square, PA 19348 Donald Ferraro, Asst. General Counsel donald.ferraro@exeloncorp.com Exelon Generation Company, LLC 4300 Warrenville Road Warrenville, IL 60555 J. Bradley Fewell, Dep. General Counsel bradley.fewell@exeloncorp.com Natural Resources Defense Counsel Meyer Glitzenstein & Crystal 1601 Connecticut Ave., N.W. Suite 700 Washington, D.C. 20009 Howard M. Crystal, Esq.
hcrystal@meyerglitz.com Natural Resources Defense Council (NRDC) 1152 - 15th Street, N.W., #300 Washington, DC 20005 Geoffrey H. Fettus, Sr. Project Attorney gfettus@nrdc.org National Legal Scholars Law Firm, P.C.
241 Poverty Lane, Unit 1 Lebanon, New Hampshire 03766 Anthony Roisman, Managing Partner aroisman@nationallegalscholars.com Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, N.W.
Washington, DC 20004 Alex Polonsky, Esq.
Kathryn Sutton, Esq.
Anna Jones, Esq.
Laura Swett, Esq.
Angela Tieperman, Paralegal Mary Freeze, Legal Secretary Doris Calhoun, Legal Secretary apolonsky@morganlewis.com ksutton@morganlewis.com anna.jones@morganlewis.com lswett@morganlewis.com atieperman@morganlewis.com mfreeze@morganlewis.com dcalhoun@morganlewis.com Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 Brooke Leach, Esq.
bleach@morganlewis.com
[Original signed by Clara I. Sola ]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 12th day of July 2013