ML13316C421

Exelons Petition for Certification of Waste Confidence-Related Question to the Commission Pursuant to 10CFR2.323(f)(2)

ML13316C421
Person / Time
Site:	Limerick
Issue date:	11/12/2013
From:	Mcglinn B Exelon Generation Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01, RAS 25325
Download: ML13316C421 (18)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of:

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Docket Nos. 50-352-LR

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50-353-LR EXELON GENERATION COMPANY, LLC

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(Limerick Generating Station, Units 1 and 2)

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November 12, 2013

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EXELONS PETITION FOR CERTIFICATION OF WASTE CONFIDENCE-RELATED QUESTION TO THE COMMISSION PURSUANT TO 10 C.F.R. § 2.323(f)(2)

I.

INTRODUCTION On October 31, 2013, the Nuclear Regulatory Commission (NRC or Commission) issued its decision in CLI-13-07, taking review of the Atomic Safety and Licensing Boards (Board) referred ruling in LBP-13-11 and denying Natural Resource Defense Councils (NRDC) waiver petition.2 Therein, NRDC sought to litigate contentions related to severe accident mitigation alternatives (SAMAs) in this license renewal proceeding.3 The Commissions decision in CLI-13-07 resolved and effectively dismissed all such pending SAMA-related contentions.4 This Commission decision left NRDCs proposed contention related to waste 1

Exelon Generation Co., LLC (Limerick Generating Station, Units 1 & 2), LBP-13-1, 77 NRC ___, slip op.

(Feb. 6, 2013) (LBP-13-1) (denying NRDCs waiver petition pursuant to 10 C.F.R. § 2.335(b) and referring its ruling to the Commission under 10 C.F.R. § 2.323(f)(1)).

2 See Exelon Generation Co., LLC (Limerick Generating Station, Units 1 & 2), CLI-13-07, 77 NRC ___, slip op.

(Oct. 31, 2013) (CLI-13-07).

3 See id. at 22-23 (affirming the Boards denial of NRDCs waiver petition for failure to demonstrate that the SAMA issues it sought to litigate in an adjudicatory proceeding were unique to Limerick).

4 See id. at 23. In addition, the Commission referred NRDCs waiver petition to the NRC Staff as additional comments for consideration in its environmental review of Exelons license renewal application. See id. at 22-23.

2 confidence issues (NRDCs Proposed Contention)5 as the only unresolved contested issue in this proceeding.

On September 13, 2013, the Commission published its proposed waste confidence rule (Proposed Rule) and a request for comments on the related draft generic environmental impact statement (DGEIS) in the Federal Register.6 In view of the foregoing, and pursuant to 10 C.F.R. § 2.323(f)(2),7 Exelon Generation Company, LLC (Exelon) petitions the Board to certify the following question to the Commission:

Given the advanced stage of its waste confidence rulemaking (i.e., issuance of the Proposed Rule and supporting DGEIS), does the Commission intend to promptly authorize the Board to lift the abeyance on NRDCs Proposed Contention related to waste confidence issues, such that the Board may disposition the only remaining contention in the adjudicatory proceeding on Exelons license renewal application for Limerick Generating Station, Units 1 and 2 (Limerick)?8 Exelon respectfully submits that certification is warranted in these circumstances. The Board has held NRDCs Proposed Contention in abeyance for more than one year pursuant to the 5

See NRDCs Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Limerick (July 9, 2012) (Motion); NRDCs 2nd Corrected Waste Confidence Contention (July 9, 2012), available at ADAMS Accession No. ML1292A370 (Proposed Contention).

6 See Waste ConfidenceContinued Storage of Spent Nuclear Fuel, 78 Fed. Reg. 56,776 (Sept. 13, 2013); Draft Waste Confidence Generic Environmental Impact Statement, 78 Fed. Reg. 56,621 (Sept. 13, 2013); NUREG-2157, Waste Confidence Generic Environmental Impact Statement, Draft Report for Comment (Aug. 2013),

available at ADAMS Accession No. ML13224A106.

7 In accordance with 10 C.F.R. § 2.323(b), counsel for Exelon certifies that it made a sincere effort to contact the other parties in this proceeding on November 6, 2013, to explain to them the factual and legal issues raised in this Petition, and to resolve those issues to the extent practicable, and certifies that its efforts to avoid the need for this Petition have been unsuccessful. During the parties consultations, NRDC stated that it opposes this Petition and any request to take [NRDCs Proposed Contention] out of abeyance at this time. E-mail from Howard Crystal, Counsel for NRDC, to Alex Polonsky, Counsel for Exelon (Nov. 8, 2013). The NRC Staff stated that it does not oppose Exelons request for certification to the Commission.

8 Under the Boards Initial Scheduling Order, all motions this proceeding, except for dispositive motions, must be filed no later than ten (10) days after the occurrence or circumstance from which the motion arises, as specified in 10 C.F.R. § 2.323(a). See Initial Scheduling Order, slip op. at 9-10 (May 7, 2012) (unpublished). Out of an abundance of caution, this Petition has been timely filed within 10 days of the issuance of CLI-13-07. As explained below, the issuance of CLI-13-07 is the appropriate trigger for this Petition because that decision leaves NRDCs Proposed Contention as the final unresolved contested issue in this proceeding.

3 Commissions directive in CLI-12-16.9 As a threshold policy matter, this situation is contrary to the Commissions previously-stated general reluctance to hold adjudications in abeyance pending the results of an ongoing reexamination of [its] rules.10 Furthermore, the Commission and other licensing boards routinely have ruled that an otherwise-inadmissible contention should not be held in abeyance pending further developments, such as the conclusion of a generic rulemaking.11 As explained below, NRDCs Proposed Contention is, without question, inadmissible as a matter of law. The issues it raises fall squarely within the scope of the Proposed Rule and its supporting DGEIS. Specifically, NRDCs Proposed Contention alleges that Exelons license renewal stage environmental report (ER) omits a discussion of the environmental impacts of the continued onsite storage of spent fuel and the failure to establish a spent fuel repository after cessation of licensed plant operation.12 These issues are directly addressed by the Proposed Rule and DGEIS, both of which have been made available to the publicincluding NRDCfor review and comment. Therefore, NRDCs Proposed Contention requests analyses that are outside the scope of this license renewal proceeding.

9 See Calvert Cliffs Nuclear Project, LLC, et al. (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63, 68-69 (2012) (CLI-12-16); Licensing Board Order (Suspending Procedural Date Related to Proposed Waste Confidence Decision) at 3 (Aug. 8, 2012) (unpublished) (Suspension Order) (holding NRDCs Proposed Contention on waste confidence issues in abeyance pending further Commission order).

10 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 & 2), CLI-01-27, 54 NRC 385, 390 (2001). Although the Commission stated in CLI-12-16 that licensing reviews and proceedings should continue to move forward, Calvert Cliffs, CLI-12-16, 76 NRC at 67, as discussed below, NRDCs Proposed Contention is the sole contention remaining before the Board. Thus, the Boards disposition of the Proposed Contention and termination of the contested adjudication presently is contingent upon Commission authorization to lift the longstanding abeyance directive.

11 See, e.g., South Carolina Elec. & Gas (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-01, 71 NRC 1, 10 (2010) (holding that even under special procedures governing challenges to design certification issues, Before a Board may refer such a contention to the Staff and hold it in abeyance, the contention must first be admissible.); Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 & 3), CLI-09-08, 69 NRC 317, 325 (2009); Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 186 (2008).

12 See Motion at 3, 9-10; Proposed Contention at 3.

4 Finally, granting certification would materially advance the disposition of this adjudication.13 The Board dismissed NRDCs energy alternatives contention more than eighteen months ago.14 Earlier this year, the Board rejected NRDCs attempt to resubmit certain contentions.15 The remaining contentions proffered by NRDC, addressing SAMA issues, remained unresolved at the time of the NRCs issuance of the Proposed Rule and DGEIS, due to the Boards referral of NRDCs petition to waive 10 C.F.R. § 51.53(c)(3)(ii)(L). The issuance of CLI-13-07, however, has now resolved these issues.16 Notwithstanding, because NRDCs Proposed Contention continues to be held in abeyance pending further Commission directive, the Board cannot close this proceeding.17 For the reasons stated below, Exelon respectfully submits that the time for that directive in this proceeding is now.

II.

BACKGROUND The Boards April 4, 2012 and February 6, 2013 decisions (LBP-12-8 and LBP-13-1), as well as the Commissions decisions in CLI-12-19 and CLI-13-07, fully describe the procedural history of this adjudication. As a result of those decisions, NRDCs Proposed Contention is the only contention still pending before the Board. To assist the Board, Exelon briefly summarizes 13 Exelon recognizes that certain milestones in this proceedingincluding publication of the NRC Staffs final supplemental environmental impact statement (SEIS)await completion. That fact, however, does not negate the fundamental policy and legal considerations raised in this Petition. Specifically, as discussed below, the Commission historically has disfavored holding adjudicatory issues in abeyance pending the results of an ongoing generic rulemaking. Further, it has been the Commissions longstanding practice to address long-term waste storage issues generically by rulemaking rather than on a case-by-case adjudicatory basis.

14 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 & 2), LBP-12-8, 75 NRC 539, 569-70 (2012)

(denying the energy alternatives contention because it was not supported by an adequate basis).

15 See Memorandum and Order (Ruling on Resubmission of Contentions) slip op. (July 12, 2013) (unpublished)

(denying NRDCs request for the Board to accept its resubmitted energy alternatives, SAMA, and waste confidence contentions); Memorandum (Clarifying the Boards July 12, 2013 Order) slip op. (Aug. 6, 2013)

(unpublished) (Clarification Order).

16 Limerick, CLI-13-07, slip op. at 19-23.

17 See Clarification Order at 2 (Because we are aware of no Commission Order on this subject, [NRDCs Proposed Contention] remains in abeyance.).

5 the history of NRDCs Proposed Contention as well as the Proposed Rule and DGEIS on continued storage of spent nuclear fuel.

A.

NRDCs Proposed Contention on Waste Confidence Issues On July 9, 2012, while the appeal of the Boards original decision in LBP-12-8 to grant NRDCs hearing request was pending, NRDC filed with the Board a motion to admit a new environmental contention that challenges the alleged failure of Exelons ER to address the environmental impacts of continued onsite storage of spent fuel, as well as the environmental impacts that may occur if a spent fuel repository does not become available.18 NRDCs Proposed Contentionby NRDCs own admission19is based on the U.S. Court of Appeals for the District of Columbia Circuits (D.C. Circuit) decision in State of New York v. NRC, 681 F.3d 471 (D.C.

Cir. 2012), which invalidated and remanded the NRCs Waste Confidence Decision Update20 and related final rule.21 On August 7, 2012, the Commission issued CLI-12-16, addressing waste confidence issues raised in numerous pending licensing proceedings. That order stated, [i]n view of the special circumstances of this case, as an exercise of our inherent supervisory authority over adjudications, we direct that [numerous pending waste confidence] contentionsand any related contentions that may be filed in the near termbe held in abeyance pending our further order.22 The Commission noted that should we determine at a future time that case-specific challenges are appropriate for consideration, our normal procedural rules will apply.23 Consequently, the Board in this 18 See Motion at 5, 7-9; Proposed Contention at 3.

19 See Motion at 1, Proposed Contention at 13.

20 Waste Confidence Decision Update, 75 Fed. Reg. 81,037 (Dec. 23, 2010).

21 Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operations, 75 Fed. Reg. 81,032 (Dec. 23, 2010).

22 Calvert Cliffs, CLI-12-16, 76 NRC at 68-69.

23 Id. at 69 n.11.

6 proceeding issued an Order holding any participant or Board activity concerning NRDCs Proposed Contention in abeyance pending further Commission direction.24 B.

NRCs Generic Rulemaking Activities Related to Waste Confidence Decision On September 6, 2012, the Commission issued a Staff Requirements Memorandum (SRM) that directed the NRC Staff to proceed directly with developing a GEIS to support an updated waste confidence decision and rule.25 The Commission further directed the Staff to develop and publish a final rule and GEIS within 24 months of the date of the SRM (i.e., by September 2014).26 It also recommended that the Staff draw from and build upon its prior Waste Confidence determinations, and focus on addressing the three deficiencies identified in the D.C.

Circuits New York v. NRC decision, as discussed further below.27 The Staff followed this direction by initiating a NEPA scoping process, holding public meetings and webinars, and, on September 13, 2013, publishing the Proposed Rule in the Federal Register. The Proposed Rule concludes that the analysis provided in the DGEIS generically addresses the environmental impacts of continued storage of spent nuclear fuel; and supports determinations that it is feasible to safely store such fuel beyond the licensed life for operation of a reactor, and to have a mined geologic repository within 60 years following the licensed life for operation of a reactor.28 As discussed below, the Proposed Rule and the supporting DGEIS directly address the three issues identified by the D.C. Circuit in its remand order: (1) the impacts 24 As noted by the Commission, the Board continued to hold NRDCs Proposed Contention in abeyance following NRDCs resubmission of all of its prior contentions following issuance of the draft SEIS on April 30, 2013. See Limerick, CLI-13-07, slip op. at 16 n.68 (citing Clarification Order at 2; Suspension Order at 3).

25 See Staff Requirements - COMSECY-12-0016 - Approach for Addressing Policy Issues Resulting from Court Decision to Vacate Waste Confidence Decision and Rule at 1 (Sept. 6, 2012), available at ADAMS Accession No. ML12250A032.

26 See id.

27 See id.

28 See Proposed Rule, 78 Fed. Reg. at 56,766, 56,787, 56,799.

7 of failing to establish a permanent repository, (2) the probability and consequences of future spent fuel pool leaks, and (3) the probability and consequences of spent fuel pool fires.

III.

LEGAL STANDARD 10 C.F.R. § 2.341(f)(1) provides for review of questions certified to the Commission under 10 C.F.R. § 2.319(l),29 or of rulings referred or issues certified to the Commission under 10 C.F.R. § 2.323(f).30 These questions or rulings may be certified to the Commission by the presiding officer in his or her discretion, or on the petition of a party requesting that the presiding officer exercise this discretion.31 When determining whether to certify such a question or refer a ruling, the presiding officer must find, as a threshold matter, that it either: (1) raises significant and novel legal or policy issues, or (2) the resolution of the issues would materially advance the orderly disposition of the proceeding.32 Petitions initiating this process are timely if made no later than ten days after the occurrence or circumstance from which the motion arises.33 The Commission recently stated that it encourages licensing boards to refer rulings that raise significant and novel legal or policy issues, the resolution of which would materially 29 Section 2.319(l) states that a licensing board may [r]efer rulings to the Commission under § 2.323(f)(1), or certify questions to the Commission for its determination, either in the presiding officers discretion, or on petition of a party under § 2.323(f)(2), or on direction of the Commission.

30 Section 2.323(f)(2) states that a party may petition the presiding officer to certify a question to the Commission for early review, and that the presiding officer shall apply the criteria in Section 2.341(f)(1) in determining whether to grant the petition for certification. Section 2.341(f)(1) states that, if in the judgment of the presiding officer the petition for certification raises significant and novel legal or policy issues, or prompt decision by the Commission is necessary to materially advance the orderly disposition of the proceeding, then the presiding officer may promptly refer the ruling to the Commission.

31 10 C.F.R. § 2.323(f)(1)-(2).

32 Id. §§ 2.323(f)(1), 2.341(f)(1); see also Amendments to Adjudicatory Process Rules and Related Requirements; Final Rule, 77 Fed. Reg. 46,562, 46,576 (Aug. 3, 2012) (Final § 2.341(f) provides the Commission with maximum flexibility by allowing, but not requiring, the Commission to review an issue if it raises significant legal or policy issues, or if resolution of the issue would materially advance the orderly disposition of the proceeding.).

33 10 C.F.R. § 2.323(a)(2). As noted above, this Petition is timely because it was filed within 10 days of the Commissions decision in CLI-13-07, resolving all other pending contested issues in this proceeding.

8 advance the orderly disposition of the proceeding.34 It also has stated that, [t]raditionally, we have accepted Board certifications or referrals.35 IV.

ARGUMENT A.

This Petition Raises Novel Policy and Legal Issues Because the Prolonged Abeyance Resulting from CLI-12-16 Represents a Significant Departure from Longstanding Commission Policy and Adjudicatory Precedent

1.

The Commission Historically Has Disfavored Holding Adjudicatory Issues in Abeyance Pending the Results of an Ongoing Generic Rulemaking The extended abeyance resulting from CLI-12-16 appears to be an anomaly. Specifically, the Commission has long stated its desire to promote expeditious decision-making and regulatory certainty:

[T]he Commission historically has been reluctant to suspend pending adjudications to await developments in other... proceedings. For example, we did not hold adjudications in abeyance pending the results of an ongoing reexamination of our rules in the aftermath of the Three Mile Island accident.... This general reluctance is firmly grounded in our longstanding commitment to efficient and expeditious decisionmaking, as reiterated in our 1998 Adjudicatory Policy Statement (balancing the applicants and licensees interest in a prompt decision on their applications with the intervenors and petitioners interest in an opportunity for a hearing).36 34 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-12-13, 75 NRC 681, 685 (2012)

(citing Union Electric Co. d/b/a Ameren Mo. (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 170 (2011));

Tenn. Valley Auth. (Bellefonte Nuclear Power Plant, Units 3 & 4), CLI-09-3, 69 NRC 68, 72 (2009). The Commission has since revised Section 2.323(f) to clarify that either a novel legal or policy issue or the fact that resolution of the issues would materially advance the orderly disposition of the proceeding is sufficient reason for the Commission to review a referred or certified issue. See Amendments to Adjudicatory Process Rules and Related Requirements; Final Rule, 77 Fed. Reg. at 46,576, 46,583.

35 Bellefonte, CLI-09-3, 69 NRC at 72; see also, e.g., Limerick, CLI-13-07, slip op. at 7 (accepting Board referral of questions regarding waiver of 10 C.F.R. §51.53(c)(3)(ii)(L) to litigate SAMA issues); Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 &3), CLI-10-19, 72 NRC 98, 100 (2010) (directing Board to deny proposed contentions raising issues involving potential impacts of long-term spent fuel storage at reactor sites in response to Board certification); Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-11, 59 NRC 203, 209 (2004) (accepting Board certification of questions regarding a security contention).

36 McGuire/Catawba, CLI-01-27, 54 NRC at 390-91 (internal quotation marks omitted) (citing Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 24 (1998); 63 Fed. Reg. 41,872 (Aug. 5, 1998);

Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 39 (2001)).

9 The Commission further stated that postponement of license renewal adjudications contravenes the Commissions interest in regulatory finality and sound case management, and emphasized its commitment to expeditious consideration of license renewal applications.37 But the effect of the Commissions directive in CLI-12-16 has been to hold the Limerick contested license renewal adjudicationwhich otherwise could now be terminatedin indefinite abeyance. The current situation is at odds with established Commission principles and precedent, thereby raising significant and novel legal and policy issues. Therefore, Exelon asks the Board to exercise its discretion to grant this petition and seek further action, or at least direction, from the Commission.38

2.

The Proposed Contention Is Inadmissible As a Matter of Law, and Holding It in Abeyance Contravenes Established Commission Policy and Precedent

a.

NRDCs Proposed Contention Is Facially Inadmissible Because It Raises Issues That Are the Subject of a Generic Rulemaking Given the NRCs proposed generic rulemaking on continued storage of spent fuel, NRDCs Proposed Contention is not admissible in this proceeding and the Board should now be permitted to disposition it. It has long been agency policy that Licensing Boards should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission.39 Here, NRDCs Proposed Contention asserts that Exelons ER omits an evaluation of issues that are the subject of the Proposed Rule.

37 Id. at 391 (quoting Hydro Res., CLI-01-4, 53 NRC at 40).

38 The significance of the policy issues raised in this Petition is underscored by the fact that Exelon is not the only applicant faced with this situation. FirstEnergy Nuclear Operating Company (FENOC) recently petitioned the licensing board in the Davis-Besse license renewal proceeding to certify the same question to the Commission.

See FENOCs Petition for Certification of Waste Confidence-Related Question to the Commission Pursuant to 10 C.F.R. Section 2.323(f)(2) (Sept. 23, 2013), available at ADAMS Accession No. ML13236A432. In both proceedings, the sole barrier to closure of the adjudicatory record is a pending waste confidence contention held in abeyance in accordance with CLI-12-16.

39 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 343 (1999) (citing Potomac Elec. Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-218, 8 AEC 79, 85 (1974); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-813, 22 NRC 59, 86 (1985); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 179 (1998)).

10 Indeed, NRDC explicitly stated that its Proposed Contention is based on the D.C. Circuits recent New York decision, and that insofar as Exelons ER addresses spent fuel storage impacts, it does not address the environmental impacts caused by the storage of nuclear waste at Limerick following the end of the requested operating license and the environmental effects of failing to establish a repository, as required by that decision.40 The Proposed Rule, with its supporting DGEIS,41 specifically addresses the three concerns raised by the D.C. Circuit in the New York decision, including the spent fuel storage issues NRDC has proposed to litigate in the Limerick license renewal plant-specific adjudication. Furthermore, the Proposed Rule does so in a manner that generically addresses the environmental impacts of continued storage of spent nuclear fuel for all operating reactorsincluding Limerick.42 As the Proposed Rule states:

On September 6, 2012, the Commission instructed NRC staff to proceed with a generic EIS to analyze the environmental impacts of continued storage and address the issues raised in the Courts decision and to update the Waste Confidence rule in accordance with the analysis in the EIS. The DGEIS and the proposed rule implement the Commissions direction.43 With regard to the first issue identified by the court in New Yorkthe potential failure to secure permanent disposalthe DGEIS analyzed the impacts of three time frames that represent various scenarios for the length of time for which continued spent fuel storage may be required.44 Relevant here, the indefinite time frame assumes, for analysis purposes, that a repository never 40 Motion at 1, 8, 11; Proposed Contention at 1, 3, 13; see also Motion at 5 (asserting that the New York decision removes any legal bar on consideration of the impacts of onsite storage of nuclear waste in the post-operation period and the feasibility of ultimate disposal); Proposed Contention at 9 (same).

41 See Proposed Rule 78 Fed. Reg. at 56,784 (The analysis in the GEIS constitutes a regulatory basis for the proposed rule at 10 CFR 51.23, which codifies the NRCs conclusions in the GEIS on the environmental impacts of continued storage, including the Commissions expectations on the availability of a geologic repository.).

42 See id. (A generic environmental analysis, such as the one conducted in the DGEIS, would apply to the issuance of a license, amendment, or license renewal of any power reactor or of any [Independent Spent Fuel Storage Installation].) (emphasis added).

43 Id. at 56,780 (emphasis added).

44 See id. at 56,784, 56,789.

11 becomes available, and that spent fuel must be stored indefinitely in either at-reactor or away-from reactor storage facilities.45 The DGEIS evaluated the indefinite storage scenario to fully cover any likely environmental impacts associated with continued storage and in direct response to the D.C. Circuits New York decision.46 As stated in the DGEIS, [f]or most of the resource areas, the impact determinations for all three timeframes are SMALL.47 With regard to the potential offsite impacts of spent fuel pool leaks to groundwater, surface water, soils, and public healththe second issue cited by the court in New YorkAppendix E of the DGEIS concludes that the impacts are SMALL.48 Finally, the DGEIS analyzes spent fuel pool firesthe third area of concern raised by the court in New Yorkand concludes that the probability-weighted impacts (i.e., risk) of spent fuel pool fires during the short-term storage time frame are SMALL for all plants.49 Importantly, the Proposed Rule states that [t]he DGEIS and this rulemaking are intended to generically resolve the NRCs NEPA obligations with respect to the continued storage of spent nuclear fuel.50 The advantage of a generic rulemaking in these circumstances is not only clear and well-established, it is expressly stated in the Proposed Rule as follows: to enhance efficiency in individual licensing reviews by comprehensively analyzing environmental impacts that are the 45 See id.

46 Id. at 56,785; see also id. at 56,779 ([T]he Court held that the Commission needed to include an evaluation of the environmental effects of failing to secure permanent disposal since there was a degree of uncertainty regarding whether a repository would be built.).

47 DGEIS at 4-90.

48 See Proposed Rule, 78 Fed. Reg. at 56,797; DGEIS, App. E at E-19.

49 See Proposed Rule, 78 Fed. Reg. at 56,783, 56,797; DGEIS, App. F at F-12. As discussed in DGEIS Section 1.8, the NRC assumes that all spent fuel is removed from the pools and placed in dry-cask storage by the end of the short-term storage timeframe. Appendix F, therefore, does not analyze the impacts of a spent fuel pool fires after the short-term storage timeframe because a spent fuel pool will not be used to store spent fuel after that time.

50 Proposed Rule, 78 Fed. Reg. at 56,789.

12 same or largely similar for each nuclear power reactor or storage site, thereby avoiding the need to repeat the identical or substantially similar analysis in individual licensing actions.51 In view of the above, it is clear that the DGEIS and the generically-applicable Proposed Rule address the deficiencies in the basis for 10 C.F.R. § 51.23 identified by the D.C. Circuit in New York. Hence, NRDCs Proposed Contention is plainly inadmissible as a matter of law.

Furthermore, the Commissions longstanding practice has been to address long-term waste storage issues generically by rulemaking rather than on a case-by-case adjudicatory basis.52 This practice has been sanctioned by the federal courts, including the D.C. Circuit in New York v. NRC,53 and avoids the obvious inefficiencies attendant to case-by-case adjudication of generic environmental issues.54 As the Commission explained in Oconee:

The Commission sensibly has chosen to address high-level waste disposal generically rather than unnecessarily to revisit the same waste disposal questions, license-by-license, when reviewing individual applications.

High-level waste storage and disposal, we have said, is a national problem of essentially the same degree of complexity and uncertainty for every renewal application and it would not be useful to have a repetitive reconsideration of the matter. 61 Fed. Reg. 66,537, 66,538 (Dec. 11, 1996). The petitioners have presented no reason for the Commission to depart from its generic waste storage determinations in this proceeding and instead litigate the question in an individual case. If petitioners are 51 Id. at 56,784.

52 See Indian Point, CLI-10-19, 72 NRC at 99-100 (citing Oconee, CLI-99-11, 49 NRC at 343; Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995)) (directing denial of the admission of waste confidence contentions that were the subject of general rulemaking).

53 See Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 101 (1983) (The generic method chosen by the agency is clearly an appropriate method of conducting the hard look required by NEPA.);

Minnesota v. NRC, 602 F.2d 412, 416-17 (D.C. Cir. 1979); New York v. NRC, 681 F.3d at 480 ([W]e see no reason that a comprehensive general analysis would be insufficient to examine on-site risks that are essentially common to all plants.).

54 See Indian Point, CLI-10-19, 72 NRC at 100 (quoting Oconee, CLI-99-11, 49 NRC at 346) (The Commission has stated that it would be counterproductive (and contrary to longstanding agency policy) to initiate litigation on an issue that by all accounts very soon will be resolved generically.); Natural Res. Def. Council v. NRC, 547 F.2d 633 (D.C. Cir. 1976), revd and remanded, 435 U.S. 519 (1978), on remand, 685 F.2d 459 (D.C. Cir. 1982),

revd, 462 U.S. 87 (1983) (stating that generic proceedings are a more efficient forum in which to develop issues without needless repetition and potential for delay).

13 dissatisfied with our generic approach to the problem, their remedy lies in the rulemaking process, not in this adjudication.55 As in Oconee, NRDC has presented no reason for the Commission to depart from its use of the generic rulemaking process, and no basis for the Board to adjudicate waste confidence issues in the Limerick plant-specific license renewal proceeding.56 In these circumstances, NRDCs Proposed Contention plainly is inadmissible, and the appropriate, alternative remedy lies in the rulemaking process.57

b.

NRC Adjudicatory Precedent Dictates That an Inadmissible Contention Be Dismissed and Not Be Held in Abeyance Under longstanding precedent, an inadmissible contention should not be held in abeyance pending further developments, such as the conclusion of a generic rulemaking. For example, in the Shearon Harris proceeding, the Commission remanded a board decision admitting a contention that: (1) raised a design-related issue addressed in a design certification application and (2) challenged the completeness of a combined operating license (COL) application.58 In doing so, the Commission directed the Board to determine whether the contention was otherwise admissible under 10 C.F.R. § 2.309(f)(1), in which case it might be held in abeyance.59 On remand, the Board reassessed the contention and found it to be inadmissible and terminated that proceeding.60 The Commission later applied its Shearon Harris ruling in the V.C. Summer COL 55 Oconee, CLI-99-11, 49 NRC at 345 (emphasis added); see also Indian Point, CLI-10-19, 72 NRC at 100 (same).

56 Aside from its filing on the Limerick docket, there is nothing site-specific about NRDCs Proposed Contention.

NRDC has furnished no basis to conclude that spent fuel storage risks differ significantly from site to site, or that Limerick presents unique considerations with respect to the environmental impacts of continued spent fuel storage.

57 Oconee, CLI-99-11, 49 NRC at 345.

58 See Shearon Harris, CLI-09-08, 69 NRC at 317.

59 Id. at 327.

60 See Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 & 3), LBP-09-8, 69 NRC 736, 745 (2009).

14 proceeding, stating that [b]efore a Board may refer such a contention to the Staff and hold it in abeyance, the contention must first be admissible.61 Importantly, licensing boards have applied this same principle in the context of prior contentions related to the onsite storage and disposal of spent fuel. For example, in the Indian Point license renewal proceeding, the board rejected such a proposed contention and refused to hold the contention in abeyance pending resolution of multiple petitions for rulemaking that addressed spent fuel pool fires.62 The board stated that if the NRC denied the rulemaking petitions, then the current rule would remain in force, rendering any adjudicatory challenge to the validity of the rule impermissible as a matter of law.63 It further noted that if the Commission modified the rule, then petitioners would have the opportunity to file new contentions at that time.64 This same logic and reasoning applies to NRDCs Proposed Contention in this proceeding.

Another example is the Fermi COL proceeding, where the board denied admission of a proposed contention because it challenged a pending rulemaking and, therefore, did not present a matter appropriate for adjudication.65 Specifically, the board cited the Commissions then-proposed updates to the Waste Confidence Decision and associated rule.66 The board rejected the petitioners request to admit the contention and hold it in abeyance, finding no legal basis upon which to admit an otherwise inadmissible contention.67 61 V.C. Summer, CLI-10-01, 71 at 10 (emphasis added).

62 See Indian Point, LBP-08-13, 68 NRC at 186 (citing Entergy Nuclear Vt. Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 17 (2007)).

63 See id.

64 See id.

65 Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-09-16, 70 NRC 227, 249-51 (2009).

66 See id. at 250-51.

67 Id. at 251.

15 Finally, in the Comanche Peak COL proceeding, another board rejected a proposed waste confidence contention, noting that it is clear that the Commission is currently assessing the applicability of the Waste Confidence Rule to all reactorsboth current and anticipated.68 Relying on Oconee, the board found the contention inadmissible, and rejected petitioners suggestion to admit the contention and then hold it in abeyance pending issuance of the NRCs 2010 updated Waste Confidence Rule.69 In summary, in view of the Commission law and policy discussed above, NRDCs Proposed Contention is inadmissible as a matter of law because the Proposed Rule and supporting GEIS fully address the issues it raises. Accordingly, NRDCs Proposed Contention should no longer be held in abeyance. The abeyance order covering NRDCs Proposed Contention appears to be an unprecedented anomaly. Furthermore, in the wake of the Commissions decision in CLI-13-07, this is the only matter preventing the closure of the Limerick license renewal adjudicatory proceeding. For these reasons, the Board should certify the question raised in this Petition to the Commission.

B.

Commission Resolution of the Issue Raised in this Petition Would Materially Advance the Disposition of the Contested Adjudication Certifying the question raised in this Petition also would advance the timely disposition of this contested adjudication. As noted above, the Board dismissed NRDCs energy alternatives contention in LBP-12-8. More recently, in CLI-13-07, the Commission resolved the litigation of NRDCs SAMA contentions. Accordingly, the only remaining impediment to closure of the Limerick license renewal adjudicatory proceeding is NRDCs Proposed Contention on waste 68 Luminant Generation Co. (Comanche Peak Power Plant, Units 3 & 4), LBP-09-17, 70 NRC 311, 340-41 (2009)

(quoting Oconee, CLI-99-11, 49 NRC at 345) (It has long been agency policy that Licensing Boards should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission.). The Comanche Peak board also cited the petitioners right to petition the Commission to go in a different direction in its rulemaking approach to high-level waste management by plants.

Id.

69 Comanche Peak, LBP-09-17, 70 NRC at 341.

16 confidence issues, which is still held in abeyance.70 In CLI-13-07, the Commission recognized that NRDCs Proposed Contention is currently held in abeyance, but that decision addressed other matters and so the Commission declined to take sua sponte action on waste confidence issues.71 Therefore, it would be appropriate for the Board to certify to the Commission the question of whether the abeyance on NRDCs Proposed Contention may now be lifted and the contention dismissed.72 The Commissions prompt consideration of this question and subsequent authorization of the Boards removal of the single impediment to closure of the Limerick license renewal adjudicatory proceeding is necessary to materially advance the orderly disposition of this proceeding, consistent with 10 C.F.R. §§ 2.319(l), 2.323(f) and 2.341(f)(1).

70 See Clarification Order at 2.

71 See Limerick, CLI-13-07, slip op. at 2 n.3 (noting that the Board is holding NRDCs Proposed Contention in abeyance in accordance with the Commissions direction in CLI-12-16).

72 Importantly, if the Commission authorizes the Board to lift the abeyance and dismiss NRDCs Proposed Contention, then NRDC would not be prejudiced or without procedural recourse. NRDC, like other stakeholders, has the opportunity to comment on the proposed rule and DGEIS. Indeed, NRDC has actively participated in the rulemaking process, including submission of comments on the scoping process for the Proposed Rule. See, e.g.,

Comment (155) of Geoffrey Fettus on Behalf of Natural Resources Defense Council on the Consideration of Environmental Impacts on Temporary Storage of Spent Fuel After Cessation of Reactor Operations (Jan. 2, 2013), available at ADAMS Accession No. ML13010A145. Further, in CLI-12-16, the Commission stated that if it later determines that case-specific challenges are appropriate for consideration, then its normal procedural rules would apply. See Calvert Cliffs, CLI-12-16, 76 NRC at 67-68. Those rules contain ample provisions through which litigants may seek admission of new or amended contentions, seek stays of licensing board decisions, appeal adverse decisions, and file motions to reopen the record, as appropriate. Union Elec. Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 145 (2011).

17 IV.

CONCLUSION For the foregoing reasons, the Board should grant Exelons Petition and promptly certify the question raised herein to the Commission for resolution.

Executed in Accord with 10 C.F.R. § 2.304(d)

Signed (electronically) by Brooke E. McGlinn J. Bradley Fewell Vice President & Deputy General Counsel Exelon Generation Company, LLC 200 Exelon Way Kennett Square, PA 19348 Phone: 630-657-3769 Fax: 630-657-4335 E-mail: Bradley.Fewell@exeloncorp.com Dated in Washington, DC this 12th day of November 2013 Kathryn M. Sutton Alex S. Polonsky MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: 202-739-3000 Fax: 202-739-3001 E-mail: ksutton@morganlewis.com E-mail: apolonsky@morganlewis.com Brooke E. McGlinn MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Phone: 215-963-5404 Fax:

215-963-5001 E-mail: bmcglinn@morganlewis.com Counsel for Exelon Generation Company, LLC

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of

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Docket Nos. 50-352-LR EXELON GENERATION COMPANY, LLC

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50-353-LR

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(Limerick Generating Station, Units 1 and 2)

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November 12, 2013

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CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that on November 12, 2013, Exelon served a copy of Exelons Petition For Certification Of Waste Confidence-Related Question to the Commission Pursuant to 10 C.F.R. § 2.323(f)(2) in this proceeding through the NRCs E-Filing system.

Signed (electronically) by Brooke E. McGlinn Brooke E. McGlinn Morgan, Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103 Phone: (215) 963-5404 Fax: (215) 963-5001 E-mail: bmcglinn@morganlewis.com Counsel for Exelon Generation Company, LLC