ML13308D017
| ML13308D017 | |
| Person / Time | |
|---|---|
| Site: | Byron, Braidwood  |
| Issue date: | 11/04/2013 |
| From: | Vickers J Environmental Law & Policy Ctr |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-454-LR, 50-455-LR, 50-456-LR, 50-457-LR, ASLBP 13-929-02-LR-BD01, RAS 25309 | |
| Download: ML13308D017 (16) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of: ) Docket Nos. 50-454-LR
) 50-455-LR EXELON GENERATION COMPANY, LLC ) 50-456-LR
) 50-457-LR (Byron Nuclear Station, Units 1 and 2; )
Braidwood Nuclear Station, Units 1 and 2) ) November 4, 2013
)
REPLY IN SUPPORT OF THE ENVIRONMENTAL LAW AND POLICY CENTERS HEARING REQUEST AND PETITION TO INTERVENE Justin Vickers Environmental Law and Policy Center 35 East Wacker Drive, Suite 1600 Chicago, Illinois 60601 (312) 673-6500 jvickers@elpc.org Allen Gleckner Environmental Law and Policy Center 2356 University Ave West, Suite 403 St. Paul, MN 55114 (651) 789-1407 agleckner@elpc.org Counsel for Environmental Law & Policy Center
TABLE OF CONTENTS Page I. EXELONS FAILURE TO INCLUDE NEED FOR POWER ANALYSES IN ITS LICENSE RENEWAL APPLICATIONS VIOLATES NEPA (CONTENTION 1)... 2 A. Exelon and Staff Do Not Provide Legal Justification For Their Claim That NEPA Does Not Require a Need For Power Analysis. 2 B. The NRCs Policy Justification For Failing to Require a Need For Power Analysis Does Not Apply In This Case 5 C. The Clinton ESP Case Is Irrelevant In This Proceeding.. 7 D. Exelons Alternatives Analysis Does Not Satisfy NEPAs Cost/Benefit Requirement..... 8 II. ELPC HAS RAISED AN ADMISSIBLE CONTENTION REGARDING THE PREMATURE EVALUATION OF LICENSE RENEWAL APPLICATIONS ELEVEN TO FOURTEEN YEARS PRIOR TO THE EXPIRATION OF EXISTING LICENSES (CONTENTION 2)... 9 A. Contention 2 Does Not Attack a NRC Regulation and Therefore Is Not Out of Scope 9 B. The Relevant Timeframe For Determination of Compliance With NEPA Is the Period of Extended Operation, Not the Period Already Covered By the Existing Operating Licenses. 10 C. ELPCs Support for Contention 2 is Sufficient 11 III. CONCLUSION 13 i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket Nos. 50-454, 50-455, 50-456, 50-Exelon Generation Company, LLC 457; 2013-0169 (Braidwood Nuclear Station, Units 1 and 2 and Byron Nuclear Station, Units 1 and 2) ASLBP No. 13-929-02-LR-BD01 REPLY IN SUPPORT OF THE ENVIRONMENTAL LAW AND POLICY CENTERS HEARING REQUEST AND PETITION TO INTERVENE Petitioner Environmental Law and Policy Center (ELPC) hereby replies to the Answers of Exelon Generation (Exelon) and the Nuclear Regulatory Commission (NRC or Commission) Staff (Staff) to ELPCs Contentions Included with Petition to Intervene (Contentions). In its Contentions, ELPC raised two contentions - Failure to Include Need for Power Analyses and Premature License Renewals - that satisfy the NRCs admissibility requirements set forth in 10 C.F.R. § 2.309(f).
The Staff and Exelon Answers fail to demonstrate that ELPCs Contentions 1 and 2 are inadmissible. ELPCs Contention 1 argues that the Commission must interpret its regulations as requiring Exelon to conduct need for power analyses of the Byron and Braidwood nuclear facilities in order to comply with the National Environmental Policy Acts (NEPA) cost/benefit analysis requirement. This is especially true in light of the Commissions ruling that need for power analyses are particularly important for unregulated merchant plants such as Exelons Byron and Braidwood facilities. See 68 Fed. Reg. 55,905, 55,910-911 (Sept. 29, 2003).
ELPCs Contention 2 argues that renewal of the Byron and Braidwood operating licenses is 1
premature at this time. Contention 2 is neither an attack on a NRC regulation nor does it lack sufficient factual support.
For these reasons, ELPC has demonstrated standing and admissible contentions.
Therefore, the Atomic Safety and Licensing Board (Board) should grant ELPCs request for hearing and petition to intervene.
I. EXELONS FAILURE TO INCLUDE NEED FOR POWER ANALYSES IN ITS LICENSE RENEWAL APPLICATIONS VIOLATES NEPA (CONTENTION 1).
Exelons failure to include need for power analyses in its Environmental Reports violates NEPAs cost/benefit requirement. Exelon claims that the NRC fully meets its NEPA obligations for license renewal without an inquiry into the need for power. (Exelon Ans. at 7). However, NEPA requires a basic cost/benefit analysis in environmental review. The need for power analysis is a necessary and required component of this cost/benefit analysis. While 10 C.F.R. §§ 51.53(c)(2) and 51.95(c)(2) removes the need for power analysis requirement in license renewal proceedings, reliance on these regulations in this proceeding violates NEPAs cost/benefit analysis requirement. The Board should interpret 10 C.F.R. §§ 51.53(c)(2) and 51.95(c)(2) to require a need for power analysis in this proceeding in order to avoid violating NEPA.
A. Exelon and Staff Do Not Provide Legal Justification For Their Claim That NEPA Does Not Require a Need For Power Analysis Exelon relies on 10 C.F.R. §§ 51.53(c)(2) to justify excluding a need for power analysis in this relicensing proceeding. 10 C.F.R. §§ 51.53(c)(2) states that for license renewals, the
[environmental] report is not required to include discussion of need for power or the economic costs and economic benefits of the proposed action or of alternatives. Where, as here, the applicant seeking relicense is a merchant generator, 10 C.F.R. § 51.53(c)(2) violates NEPAs requirement that federal agencies environmental reviews include at least a basic cost/benefit 2
analysis. The need for power analysis component constitutes the benefits portion of a cost/benefits analysis in the context of a nuclear license renewal because the benefit of continuing to operate a plant is the electricity it provides. See 68 Fed. Reg. 55,905, 55909 (Sept.
29, 2003). Without the need for power analysis, the benefits of a renewed license are not analyzed and cannot be weighed against the environmental impacts, or costs, as NEPA requires.
Although NEPA does not explicitly require a cost/benefit analysis, courts have long held that at least a basic cost/benefit analysis must be done for a proposed federal action. For example, in Calvert Cliffs Coordinating Committee, Inc. v. AEC, the D.C. Circuit held that economic and technical benefits of planned actions must be assessed and then weighed against the environmental costs. 449 F.2d 1109, 1123 (D.C. Cir. 1971). Similarly, in Ill. Commerce Com. v. Interstate Commerce Com., the court affirmed that NEPA was intended to ensure that decisions about federal actions would be made only after responsible decision-makers had fully adverted to the environmental consequences of the actions, and had decided that the public benefits flowing from the actions outweighed their environmental costs. 848 F.2d 1246, 1259 (D.C. Cir. 1988) quoting Jones v. District of Columbia Redevelopment Land Agency, 499 F.2d 502, 512 (D.C. Cir. 1974), cert denied, 423 U.S. 937 (1975)). Further, the NRC acknowledges this requirement, for example stating in its denial of a petition for rulemaking requesting that the NRC no longer require the need for power analysis for new plant licensing that [a]lthough NEPA does not explicitly mention cost-benefit balancing, judicial interpretations of the statute have established that Federal agencies must balance environmental costs against the anticipated benefits of the action in the EIS. 68 Fed. Reg. at 55,909. Commission regulations recognize this requirement, providing that an EIS will include a consideration of the economic, technical, and 3
other benefits and costs of the proposed action and alternatives. 10 C.F.R. § 51.71(d).
Therefore, by not requiring a need for power analysis in the license renewal environmental review, the NRC violates NEPAs requirement that environmental review include at least a basic cost/benefit analysis.
As part of its argument that ELPC Contention 1 is out of the scope of the proceeding under 10 C.F.R. 2.309(f)(iii), Exelon claims that the NRC fully meets its NEPA obligations for license renewal without an inquiry into the need for power. (Exelon Ans. at 7). Exelon argues that the significant environmental impacts associated with the siting and construction of a nuclear power plant have already occurred by the time a licensee is seeking renewed license.
Because the impacts for license renewal are more limited, the NRC determines only whether or not the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decisionmakers would be unreasonable. (Exelon Ans. at 9, internal quotations omitted). This justification explains why Exelon believes that license renewal has fewer environmental impacts than plant construction, but it does not explain why NEPAs clear cost/benefit requirement should not apply to license renewal.
Exelons justification parrots the NRCs justification for why it believes that NEPA requires a cost/benefit analysis (including a need for power analysis) in the environmental review for initial licensing and plant construction, but not for the environmental review of license renewal. In 2003, the NRC denied a petition for rulemaking by the Nuclear Energy Institute requesting that the NRC remove the need for power requirement for initial licensing, just as it had for license renewal. 68 Fed. Reg. at 55,905. The NRC denied the petition, finding that the petitioner has not demonstrated that consideration of the need for power is no longer a necessary part of the Commissions NEPA obligations for reactor licensing decisions. The need for power 4
must be addressed in connection with new power plant construction so that the NRC may weigh the likely benefits (e.g., electrical power) against the environmental impacts of constructing and operating a nuclear power reactor. Id. at 55,910. In its denial, the NRCs justification for the different treatment of license renewal is the same as Exelons here, essentially that the environmental impacts from plant construction have already occurred at license renewal and that the impacts from continuing operation are much less significant that the plant construction. Id.
This rationale misses the point because NEPAs cost/benefit requirement is not tied to the relative severity of environmental impacts, but is a requirement that applies to environmental review for all major federal actions. 42 U.S.C. § 4332(2)(C). License renewal is a major federal action under NEPA and regardless of the relative severity of environmental impacts, NEPAs requirements apply to all major federal actions. Id.; 78 Fed. Reg. 37,282, 37,282 (June 20, 2013). Neither Exelon nor Staff cite any case law or provide any relevant explanation as to why NEPAs cost/benefit requirement does not apply to license renewal. 1 B. The NRCs Policy Justification For Failing to Require a Need For Power Analysis Does Not Apply In This Case In the absence of legal justification for exempting license renewals from NEPAs need for power requirement, both Staff and Exelon point to the NRCs policy justifications to support their proposed rejection of Contention 1. (Exelon Ans. at 8-9; Staff Ans. at 12-14).
Notwithstanding that the NRCs policy justifications cannot in and of themselves undo NEPAs requirements, these policy justifications do not apply to Exelon as a merchant generator.
1 The NRC rejected the Nuclear Energy Institutes claim that NEPAs cost/benefit requirement need not apply to initial licensing, in part, for a similar lack of support or case law. The NRC denied the petition for rulemaking in part because [t]he petitioner failed to cite any recent judicial decisions which interpret NEPA which hold (or otherwise suggest) that a Federal agency, acting on a project proposal presented by a private sponsor or applicant, need not conduct an independent review of the need for the project, but may simply accept the applicants assertion with respect to need. 68 Fed. Reg. at 55,910.
5
The NRCs policy reason for removing need for power analyses in license renewals was that the change was necessary to address the concern of some states that their traditional authority over electricity resource planning would be lessened or usurped by a need for power requirement. 59 Fed. Reg. 37,724, 37,724 (July 25, 1994). The Commissions rationale for the change was that states and utilities with planning requirements would demand a need for power analysis or equivalent, and that the ultimate decision regarding whether continued operation of a plant is necessary would be made by another regulatory body or a regulated utility. The Commission stated that, [b]ecause the objectives of the utility and State decisionmakers will ultimately be the determining factors in whether a nuclear power plant will continue to operate, NRCs proposed decision standard is appropriate. 61 Fed. Reg. 28,467, 28,473 (June 5, 1996).
These policy justifications for removing the need for power analysis requirement do not apply to Exelons Byron and Braidwood plants because Exelon is a merchant generator and Byron and Braidwood operate in Illinois, which is a de-regulated state. (Exelon Ans. at 12 (Exelon is still a merchant generator)); U.S. Energy Information Administration, Status of Electricity Restructuring by State, available at:
http://www.eia.gov/electricity/policies/restructuring/restructure_elect.html. There is no regulatory body other than the NRC to require a need for power analysis or deciding whether continued operation of Byron and Braidwood is necessary or prudent. See Byron and Braidwood License Renewal Application at 1-3 (not listing any state utility regulator as a Regulating Agency). Indeed, the Commission recognized that its policy justification does not apply to merchant generators like Exelon precisely because of this lack of non-NRC regulatory oversight. In rejecting the Nuclear Energy Institutes petition for rulemaking discussed above, the Commission stated that, in the non-regulated environment foreseen by the petition, NRC consideration of the need for power 6
may become more, not less, crucial because a State decisionmaker may no longer conduct need for power assessments. 68 Fed. Reg. 55,909-55,910 (internal quotations and comments omitted).
The Commission should interpret 10 C.F.R. §§ 51.53(c)(2) and 51.95(c)(2) as not applying to Exelon because requiring a need for power analysis in the Environmental Reports and in the SEIS will not intrude adversely on traditional State regulatory authority over these matters, 59 Fed. Reg. at 37,724. Further, as the NRC recognized in its denial of NEIs petition, for merchant plants like Byron and Braidwood, absent NRC action, there is no regulatory body making the need determination required by NEPA.
C. The Clinton ESP Case Is Irrelevant In This Proceeding Exelon argues that the Clinton nuclear power plant Early Site Permitting proceedings and 7th Circuit decision in that case bars ELPCs need for power contention in this case. (Exelon Ans.
at 13). The 7th Circuits decision in Envtl. Law & Policy Ctr. v. NRC, however, is inapposite and ELPC is not making the same argument here as it did in the Clinton proceedings. 470 F.3d 676 (7th Cir. 2006) (hereinafter Clinton ESP). In Clinton ESP, the court held that a need for power analysis was not required at the Early Site Permitting stage because the cost/benefit analysis required by NEPA would be done later in the licensing process before any actual construction or reactor operation could take place. Id. at 684. The Court implicitly affirmed NEPAs cost/benefit requirement and held that the NRCs Early Site Permit regulations are not inconsistent with the environmental law [NEPA], because all relevant issues will eventually be considered. Id. In this case, there is no later proceeding before Byron and Braidwood will be allowed to extend operations, and so there is no future point where the cost/benefit analysis will eventually be 7
considered. Id. Therefore, NEPAs need for power requirement must be satisfied at this license renewal stage.
D. Exelons Alternatives Analysis Does Not Satisfy NEPAs Cost/Benefit Requirement Exelon and Staff attempt to frame ELPCs contention as ELPC seeking to redefine the purpose of the proposed action. (Exelon Ans. at 10; Staff Ans. at 22). That portrayal misconstrues ELPCs argument. ELPC is merely arguing that a need for power analysis is required by NEPA, and that such an analysis is necessary both to verify the need for Exelons claimed purpose of baseload generation, and to accurately assess alternatives.
The Commission and Exelon do not perform the alternatives analysis in a vacuum. The overall costs and benefits of each alternative are compared to the costs and benefits of the proposed action. In this way, NEPA also requires a cost/benefit analysis for alternatives. For example, the court in Idaho v. Interstate Commerce Commn., held that NEPA requires that the particular economic and technical benefits of planned action must be assessed and then weighed against the environmental costs; alternatives must be considered which would affect the balance of values. The point of the individualized balancing analysis is to ensure that, with possible alterations, the optimally beneficial action is finally taken. 35 F.3d 585, 595 (D.C. Cir. 1994)
(emphasis added, internal quotations omitted)) quoting Calvert Cliffs, 449 F.2d at 112. Without a need for power analysis for alternatives, the alternatives analysis is constrained because the relative benefits of each alternative are left unknown.
A need for power analysis could find that energy efficiency and renewables will greatly minimize the need for future baseload power. Or, as stated in ELPCs contentions, if a need for power analysis determined a future need for peak capacity rather than baseload power, it would significantly change the relative benefit of solar. Therefore, ELPC is not seeking to disregard 8
Exelons purpose in seeking a license renewal or seeking to engage in a broad-reaching inquiry into topics of apparent interest to ELPC. (Exelon Ans. at 11). Rather, ELPC is simply seeking to have the NRC confirm whether Exelons proposed purpose is necessary and actually provides a benefit that outweighs its environmental costs by undertaking a need for power analysis, as NEPA requires.
As noted above, the Commission can avoid violating federal law by interpreting its rules to require a need for power analysis where, as here, there is no state or utility body responsible for conducting a need for power analysis in place of the NRCs analysis.
II. ELPC HAS RAISED AN ADMISSIBLE CONTENTION REGARDING THE PREMATURE EVALUATION OF LICENSE RENEWAL APPLICATIONS ELEVEN TO FOURTEEN YEARS PRIOR TO THE EXPIRATION OF EXISTING LICENSES (CONTENTION 2)
Staff and Exelon mistakenly argue that Contention 2, which contends that license renewal is premature, is not admissible because it attacks NRC regulations, misstates the date on which agency action happens for the purposes of NEPA, and is not supported by sufficient facts. As explained below, each of Staff and Exelons arguments against Contention 2 fails. The Board should require Exelon to wait until closer to the Byron and Braidwood license expiration dates before seeking renewal.
A. Contention 2 Does Not Attack a NRC Regulation and Therefore Is Not Out of Scope Exelon and Staff assert that because 10 C.F.R. § 54.17(c) forbids a licensee from filing a license renewal application more than 20 years before the existing license expires, any contention alleging that the NRC should postpone evaluation of an application until closer to the expiration of the existing license is an attack on a NRC rule. (See Exelon Ans. at 17; Staff Ans.
9
at 26). Exelon and Staff mischaracterize both the language of 10 C.F.R. § 54.17(c) and ELPCs Contention 2.
10 C.F.R. § 54.17(c) states, [a]n application for a renewed license may not be submitted to the Commission earlier than 20 years before the expiration of the operating license or combined license currently in effect. The plain language of this rule indicates that it does not grant an applicant the right to have its renewal application reviewed or approved by the NRC in any specific timeframe. The rule merely restricts how early an application can be submitted. In fact, the Commission has stated that [t]ypically, such applications have been filed some 5-10 years before license expiration. Shaw Areva Mox Servs. (Mixed Oxide Fuel Fabrication Facility), 66 NRC 169, 207 (2007).
The license renewals at issue in this case fall well outside of the typical five to ten-year timeframe. Exelon seeks renewal eleven to fourteen years before the existing licenses expire.
Neither Exelon nor the Commission has indicated why it is prudent to issue a new license so far in advance. ELPCs contention is not an attack on 10 CFR 54.17(c). ELPC merely contends that renewal is premature in this case, especially since the proper need for power analyses have yet to be conducted.
B. The Relevant Timeframe For Determination of Compliance With NEPA Is the Period of Extended Operation, Not the Period Already Covered By the Existing Operating Licenses Exelon and Staff mistakenly argue that a federal action for the purposes of NEPA is triggered when the Commission issues a renewed license. (Exelon Ans. at 19; Staff Ans. at 31-33). In fact, the relevant date for establishing a federal action is the date on which the existing license expires. In this case, the first of the existing licenses does not expire until 2024.
Therefore, the first agency action for the purposes of NEPA would not occur until 2024.
10
While 10 C.F.R. § 54.31(c) states that a renewed license will become effective immediately upon its issuance, Exelon and Staff misinterpret this language to mean that the relevant federal action is the issuance of the renewed license. For the purposes of NEPA, the relevant federal action is not the act of issuing renewed licenses, but rather allowing the plants to operate past their existing licenses. The Commission has ruled that for license renewals, the relevant environmental analysis timeframe is considerably broader than the present time.
NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), 75 NRC 301, 341 (2012). In fact,
[i]t is the future environmental effect of activities during the renewal period that must be considered, not current environmental effects. Id. Staff and Exelons interpretation would create an environmental review and alternatives analysis that is stale by the time the actual action of continued operation takes place. (See ELPC Petition at 5).
Given the likelihood of significant changes in the electricity market between today and 2024 that could affect the license renewals cost/benefit and alternatives analyses, the Board should postpone license renewal for the Byron and Braidwood units until closer to the expiration of the existing operating licenses. ELPC recommends using the Commissions previously suggested five to ten-year time frame.
C. ELPCs Support for Contention 2 is Sufficient Exelon and Staff assert that ELPCs support for Contention 2 is insufficient because it relies on bare assertions in claiming that the Commission should postpone relicensing until closer to the time that the current licenses expire. (Exelon Ans. at 22-23; Staff Ans. at 37-38). 10 C.F.R. § 2.309(f)(1)(v) requires that a petitioner provide a concise statement of the alleged facts supporting its contention. ELPC met this standard by concisely stating that the changes in electric demand and generation technology will lead to a vastly different energy landscape from 11
today as we get closer to the expiration date of the existing operating licenses. As noted above, the Commission has held that the relevant timeframe for evaluating future environmental effects of the relicensing period is the renewal period. Seabrook Station, 75 NRC at 341. Future changes in the market could have a dramatic impact on the alternatives analysis conducted by Exelon, and therefore could change the cost/benefit determination for license renewal.
For example, the Edison Electric Institute (EEI) report cited in ELPCs Contention 2 notes that distributed solar alone could have massive impacts on the electric outlook by 2020, let alone by 2024 when the first of the first operating license at issue in this case expires. Citing Bloomberg New Energy Finance, EEI notes that distributed solar could reduce load by ten percent by 2020. Edison Electric Institute, Disruptive Challenges: Financial Implications and Strategic Responses to a Changing Retail Electric Business, 5 (Jan. 2013) available at, http://www.eei.org/ourissues/finance/Documents/disruptivechallenges.pdf. This kind of substantial change in just the next six years must be considered when evaluating the costs and benefits of, and alternatives to, license renewal.
ELPC has not claimed that it knows what the energy outlook will look like by 2024 when the first of the existing operating licenses at issue in this case will expire. Rather, ELPC has alleged facts to support its contention that waiting until closer to the expiration dates will provide better information on the costs and benefits of relicensing these plants and prevent a stale environmental review. The NRC should be under no rush to relicense these plants when the landscape of electricity demand and generation is so rapidly changing. Therefore, the Board should postpone license renewal until closer to the end of the existing licenses when it is reasonable to evaluate whether or not license renewal is necessary.
12
III. CONCLUSION For the foregoing reasons, Staff and Exelon fail to demonstrate that ELPCs Need For Power and License Renewal Timing contentions are inadmissible under 10 C.F.R. § 2.309(f). The record demonstrates that ELPC has standing in this proceeding and has raised admissible contentions.
Therefore, the Board should grant ELPCs request for a hearing and petition to intervene in this proceeding.
Respectfully Submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
Justin Vickers Environmental Law and Policy Center 35 East Wacker Drive, Suite 1600 Chicago, Illinois 60601 (312) 673-6500 jvickers@elpc.org Counsel for Environmental Law & Policy Center Dated in Chicago, IL this 4th day of November, 2013 13
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of: ) Docket Nos. 50-454-LR
) 50-455-LR EXELON GENERATION COMPANY, LLC ) 50-456-LR
) 50-457-LR (Byron Nuclear Station, Units 1 and 2; )
Braidwood Nuclear Station, Units 1 and 2) ) November 4, 2013
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that on this date, copies of Reply in Support of the Environmental Law and Policy Centers Hearing Request and Petition to Intervene were served upon the Electronic Information Exchange (the NRCs E-Filing System),
in the above-captioned proceeding.
Signed (electronically) by Justin Vickers Justin Vickers Allen Gleckner Environmental Law and Policy Center 35 East Wacker Drive, Suite 1600 Chicago, Illinois 60601 (312) 673-6500 jvickers@elpc.org Counsel for Environmental Law & Policy Center