ML13360A183
| ML13360A183 | |
| Person / Time | |
|---|---|
| Site: | Byron, Braidwood  |
| Issue date: | 12/26/2013 |
| From: | Ferraro D, Kuyler R, Polonsky A Exelon Generation Co, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-454-LR, 50-455-LR, 50-456-LR, 50-457-LR, ASLBP 13-929-02-LR-BD01, RAS 25436 | |
| Download: ML13360A183 (11) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
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) ) December 26, 2013
)
EXELONS ANSWER OPPOSING APPEAL OF ASLB DENIAL OF ELPCS PETITION FOR INTERVENTION AND HEARING REQUEST AS REQUEST FOR PROTECTIVE STAY I. INTRODUCTION On November 19, 2013, the Atomic Safety and Licensing Board (Board) denied a request for hearing filed by the Environmental Law and Policy Center (ELPC) and terminated the contested portion of this proceeding.1 ELPC does not seek review of that decision.2 Instead, twenty-seven days after the Boards Order, ELPC has filed an Appeal of ASLB Denial of ELPCs Petition for Intervention and Hearing Request as Request for Protective Stay, dated December 16, 2013 (Stay Request). While the precise relief ELPC seeks is unclear, it is clear that there is no regulatory basis whatsoever to stay or suspend this proceeding, as ELPC suggests. Because ELPC labels its request as a stay, however, Exelon Generation Company, 1
See Exelon Generation Co., LLC (Braidwood Nuclear Station, Units 1 & 2 and Byron Nuclear Station, Units 1
& 2), LBP-13-12, 77 NRC __, slip op. at 8 (Nov. 19, 2013) (Boards Order); Hearing Request and Petition to Intervene by the Environmental Law and Policy Center (Sept. 23, 2013) (Petition).
2 See also Notice of Appeal of ASLBP No. 13-929-02-LR-BD01 by Environmental Law & Policy Center (Dec.
16, 2013) (Notice of Appeal). Although ELPC filed a Notice of Appeal, in its filings it does not actually seek review of the Boards Order.
LLC (Exelon) hereby answers and opposes ELPCs Stay Request pursuant to 10 C.F.R.
§ 2.342(d).3 As further explained below, ELPCs Stay Request is procedurally and substantively deficient and, for numerous reasons, should be rejected in its entirety. First, the Stay Request is untimely and unauthorized. Second, it fails to address, much less meet, the standards required to obtain a stay. Third, ELPC has not filed a rulemaking petition, so 10 C.F.R. § 2.802(d) provides no basis for relief. Finally, even if the Commission considers the substance of ELPCs request to delay a decision on license renewal, the Stay Request fails to addressmuch less meetthe high threshold required for obtaining such drastic relief.
II. BACKGROUND On May 29, 2013, Exelon filed the license renewal application (LRA) for Byron Station Units 1 and 2 (Byron) and Braidwood Station, Units 1 and 2 (Braidwood).4 On September 23, 2013, ELPC filed its Petition, proffering two contentions (Contentions 1 and 2).
Contention 1 alleged that Exelons evaluation of reasonable alternatives to renewal of the facilities licenses is deficient because it is improperly constrained by 10 CFR 51.53(c)(2),
which provides, in clear violation of [the National Environmental Policy Act], that the application need not analyze the need for power at the stations.5 Contention 2 alleged that Exelons LRA for Byron and Braidwood was premature.6 3
ELPC invokes 10 C.F.R. § 2.311(a) as the regulatory basis for its Stay Request. See Notice of Appeal.
Exelons response conforms to the requirements for briefs in opposition to appeal under Section 2.311(b).
4 See Byron Nuclear Station Units 1 & 2 and Braidwood Stations, Units 1 & 2 (May 29, 2013), Exelon Generation Company, 78 Fed. Reg. 44,603 (July 24, 2013).
5 See Petition, Exhibit 4, Contentions Included with Petition to Intervene by the Environmental Law and Policy Center at 2 (Sept. 23, 2013).
6 Id. at 5.
2
On November 19, 2013, the Board denied ELPCs Petition, because neither contention was admissible.7 With regard to Contention 1, the Board not only found that it directly and impermissibly challenged a Commission rule,8 but also held that ELPC had failed to make even the minimal factual showingas opposed to bare assertions and speculationthat is necessary to raise a genuine dispute as required by 10 C.F.R. § 2.309(f)(1)(v)-(vi).9 In so ruling, the Board further noted that ELPC supplied no factual support for Contention 1 whatsoever.10 Nearly four weeks later, ELPC filed the instant Stay Request.
III. LEGAL STANDARDS ELPC cites to no legal basis whatsoever for its requested relief. However, the sole NRC regulation authorizing stay applications to be filed as part of an adjudicatory proceeding is 10 C.F.R. § 2.342, which permits parties to seek a stay of a decision or action of a presiding officer pending the filing and resolution of a petition for review.11 Parties requesting a stay must do so within ten days after service of the decision at issue.12 In determining whether to grant or deny an application for a stay under 10 C.F.R. § 2.342, the Commission considers:
(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties; and (4) Where the public interest lies.13 7
See Boards Order at 3, 6-7. ELPCs Stay Request does not mention or raise any issues related to Contention 2.
8 See id. at 4.
9 Id. at 5-6 (footnote omitted).
10 Id. at 6.
11 See Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 158 (2011); see also 10 C.F.R.
§ 2.342(a).
12 10 C.F.R. § 2.342(a).
13 Id. § 2.342(e).
3
The Commission has further explained:
Of these factors, irreparable injury is the most important.
Specifically, [a] party seeking a stay must show it faces imminent, irreparable harm that is both certain and great. Without a showing of irreparable injury, Petitioners must make an overwhelming showing of likely success on the merits. (This has also been referred to as a demonstration of virtual certainty.)
And if a movant makes neither of these first two showings, then we need not consider the remaining factors.14 Failure to address these stay standards is reason enough to deny a request for a stay.15 In addition, 10 C.F.R. § 2.802(d) allows a rulemaking petitioner to request the Commission to suspend all or any part of any licensing proceeding to which the petitioner is a participant pending disposition of the petition for rulemaking.16 The Commission considers suspension of a licensing proceeding to be a drastic action that is not warranted absent immediate threats to public health and safety or other compelling reason.17 In deciding whether to suspend a licensing proceeding, the Commission considers three criteria: (1) whether moving forward will jeopardize the public health and safety; (2) whether continuing the review process will prove an obstacle to fair and efficient decision-making; and (3) whether going forward will prevent appropriate implementation of any pertinent rule or policy changes that might emerge from the Commissions ongoing evaluation.18 Absent extraordinary cause, seldom does the 14 S. Nuclear Operating Co. (Vogtle Elec. Generating Plant, Units 3 and 4), CLI-12-11, 75 NRC 523, 529 (2012)
(citations omitted).
15 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-13, 67 NRC 396, 399 (2008)
(citing State of Ill. (Amendment Number One to the Section 274 Agreement between the NRC and Illinois),
CLI-90-11, 32 NRC 333, 334 (1990)).
16 10 C.F.R. § 2.802(d).
17 Callaway, CLI-11-5, 74 NRC at 158 (internal quotations omitted) (citing AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 484 (2008)).
18 Id. at 158-159.
4
Commission interrupt licensing reviews or adjudications, particularly by an indefinite or very lengthy stay, on the mere possibility of change.19 IV. ARGUMENT As indicated above, ELPCs Stay Request should be summarily denied on multiple grounds. The bases for and specifics of their request (e.g., its duration) are vague and uncertain.
At best, ELPC seems to request the Commission to grant a protective stay that preserves [its]
ability to seek a stay under 10 C.F.R. § 2.802(d), but it then goes on to request that the Commission [n]ot make a determination on the pending license renewals . . . until the Commission makes a final ruling on ELPCs forthcoming rulemaking [petition] and allows sufficient time for ELPC to raise its Contention 1.20 The latter aspect of the request suggests that ELPC would like the stay to remain in place for a significant period of time. Regardless of how the Stay Request is interpreted, as shown below, ELPC falls far short of satisfying the standards necessary for obtaining its desired relief.
A. The Stay Request Is Untimely and Unauthorized ELPCs Stay Request is both untimely and unauthorized as a matter of law under 10 C.F.R. § 2.342(a). ELPC filed its Stay Request on December 16, 2013, twenty-seven days after the Boards November 19, 2013 Order denying ELPCs Petition. As previously noted, stay applications are due within ten days after service of the decision or action at issue.21 Accordingly, ELPCs Stay Request should be rejected as untimely.
19 Petition for Rulemaking to Amend 10 C.F.R. § 54.17(c), CLI-11-1, 73 NRC 1, 4 (2011).
20 Stay Request at 3.
21 10 C.F.R. § 2.342(a).
5
Second, 10 C.F.R. § 2.342 applies only to a decision or action of a presiding officer . . .
pending filing of and a decision on a petition for review.22 This provision does not authorize ELPCs Stay Request because ELPC is requesting a stay of a future decision on Exelons LRA, not a stay of the Boards decision denying ELPCs hearing request and petition to intervene.23 Further, ELPC has not filed a petition for reviewonly the Stay Request itselfand the time for filing such a petition has now already passed, so ELPCs requested stay is unauthorized as a matter of law.
B. ELPCs Filing Fails to Address or Satisfy the Requirements for a Stay Application Even if the Commission considers ELPCs Stay Request on its merits, it should be denied because it neither addresses nor satisfies the 10 C.F.R. § 2.342(e) standards for seeking a stay.
ELPCs failure to even address the stay standards is reason enough to deny its Stay Request.24 Even on the merits, however, the Stay Request is wholly deficient. The most important stay factor is the requirement to show imminent irreparable harm that is both certain and great.25 ELPC clearly faces no imminent, irreparable harm. Indeed, as ELPC admits, the Commissions decision on Exelons LRA is scheduled for August 2015 at the earliesttwenty months from now.26 Since ELPC has failed to make a showing of irreparable injury, it must make an overwhelming showing of likely success on the merits for the Commission to consider granting its stay request.27 ELPC, however, has made no such showing. It has not even filed its 22 Id.
23 See Stay Request at 1; Oyster Creek, CLI-08-13, 67 NRC at 400.
24 See Oyster Creek, 67 NRC at 399 (citing State of Ill., CLI-90-11, 32 NRC at 334).
25 Vogtle, CLI-12-11, 75 NRC at 529.
26 See Stay Request at 3.
27 Vogtle, CLI-12-11, 75 NRC at 529.
6
rulemaking petition, so it cannot show that it is overwhelmingly likely to be successful in changing the Commissions rules. Even if ELPC were to be successful in precipitating a rule change, as the Board held, ELPC has failed to show that a need for power analysis would be expected to lead to a different result with respect to its contention or the review of Exelons LRA.28 On the contrary, the Board found ELPCs need-for-power contention inadmissible for the additional reason that it was completely unsupported.29 Thus, since ELPC has failed to make either of the first two showings required by 10 C.F.R. § 2.342(e), the Commission need not consider the remaining factors.30 C. ELPC Has No Basis to Request a Stay Pending a Rulemaking Although not cited as the basis for ELPCs Stay Request, 10 C.F.R. § 2.802(d) allows a rulemaking petitioner to request the Commission to suspend all or any part of any licensing proceeding to which the petitioner is a participant pending disposition of the petition for rulemaking.31 While ELPC may eventually file a rulemaking petition,32 no such petition is pending before the Commission. Requests to stay or suspend an adjudicatory proceeding will not be granted based on prospective future actions.33 Thus, ELPC has no basis to request a stay under 10 C.F.R. § 2.802(d).
28 See Boards Order at 6.
29 Id.
30 See Vogtle, CLI-12-11, 75 NRC at 529.
31 10 C.F.R. § 2.802(d) (emphasis added).
32 See Stay Request at 1.
33 Cf. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-92-04, 35 NRC 69, 80 (1992)
(declining to hold license transfer action in abeyance pending resolution of the question of Long Island Power Authoritys corporate existence where no state court action seeking such a resolution had been filed); Tenn.
Valley Auth. (Bellefonte Nuclear Power Plant, Units 3 & 4), LBP-08-16, 68 NRC 361, 423 n.21 (2008) (noting that intent to file rulemaking regarding Table S-3 of Part 51 analysis of Greater-than-Class-C (GTCC) waste did not support intervenors claim that the GTCC waste portion of its proposed contention challenging NRC regulations should be admitted and held in abeyance pending the outcome of NRC action on its future rulemaking petition); see also Fla. Power & Light Co. (Turkey Point Power Plant, Unit Nos. 3 & 4), DD-82-2, 7
D. ELPCs Stay Request Fails to Demonstrate That the Drastic Relief Requested is Warranted Finally, even if the Commission were to overlook all of the foregoing deficiencies and consider ELPCs Stay Request under the three criteria for requesting suspensions of licensing proceedings or licensing decisions set forth in Callaway and discussed in Section III above, the Stay Request fails. The Commission has made clear that suspension of a licensing decision is a drastic action that is not warranted absent a compelling reason.34 ELPCs Stay Request falls far short of this mark.
First, the continuation of this license renewal proceeding presents no immediate threat to public health and safety.35 A licensing decision is well over a year away.36 So there is certainly no immediate concern.37 And while ELPC expresses concern over its purported need to preserve [its] right to intervene after resolution of its forthcoming rulemaking petition,38 such a desire to protect a litigation position does not raise a public health and safety threat.39 Second, ELPC has not alleged any obstacles to fair and efficient decision-making. To the contrary, ELPCs request to suspend this proceeding is inimical to the Commissions policy of 15 NRC 1343, 1345 (1982) (finding no basis to suspend the effectiveness of the Turkey Point license amendments under Section 2.802(d) where rulemaking petition was not yet docketed due to filing deficiencies).
34 Callaway, CLI-11-5, 74 NRC at 158 (internal quotations and citations omitted).
35 See, e.g., id. at 163-65 (finding no imminent risk to public health and safety that requires suspension of licensing proceedings or decisions pending the Commissions review of the Fukushima Daiichi events); Petition for Rulemaking to Amend 10 C.F.R. § 54.17, CLI-11-1, 73 NRC at 5 (concluding that continuation of license renewal proceeding would not jeopardize the public health and safety, particularly where ample time remained to decide the rulemaking before the licenses may be renewed).
36 See Boards Order at 2; Stay Request at 3 (acknowledging that the final license renewal determination is not scheduled until at least August 2015).
37 See Callaway, CLI-11-5, 74 NRC at 163 (finding no imminent threat to public health and safety that requires suspension of pending license renewal proceedings where the period of extended operation, provided renewed licenses were issued, would not begin for at least one year), appeal denied, Mass. v. NRC, 708 F.3d 63 (2013).
38 Stay Request at 3.
39 See Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),
CLI-12-6, 75 NRC 352, 373-374 (2012) (holding that a petitioners desire to protect its litigation position does not raise a public health and safety threat).
8
providing prompt, efficient, and fair resolution of adjudications.40 Significantly, the Commission has stated that its reluctance to suspend licensing proceedings is particularly strong when the suspension would last for a long period of time and where the duration of the suspension would depend on the completion of other pending Commission actions.41 ELPCs vague request, which could become a protracted stay to allow it to prepare and file a rulemaking petition, would actually undermine fair and efficient decision-making on this important licensing action for Exelon by generating significant and needless delay.
Third, denial of the Stay Request will not thwart implementation of any potential rule change or policy change that might emerge from the Commissions ongoing evaluation of any issue.42 ELPC has proffered no rulemaking petition, so there is no ongoing evaluation of any rule or policy change. Thus, ELPC cannot meet the third Callaway factor.43 Thus, stated simply, ELPC has offered no compelling reason justifying the drastic action of suspending the final licensing determination in this proceeding and the Board should therefore reject the Stay Request.
40 See, e.g., Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 381 (2001) (denying suspension request based on, among other things, the Commissions obligation to achieve expeditious decision making in a licensing proceeding even while terrorism-related standards are reviewed);
Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 19 (1998) (applicants for a license are also entitled to a prompt resolution of disputes concerning their applications).
41 See, e.g., Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 10 (2010) (We generally have declined to hold proceedings in abeyance pending the outcome of other Commission actions or adjudications.); Petitions for Rulemaking: Denial, 71 Fed. Reg. 74,848 (Dec. 13, 2006); Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-03-4, 57 NRC 273, 275-77 (2003) (rejecting request for suspension pending completion of the NRCs review of measures to protect against terrorist attacks); Vt. Yankee Nuclear Power Corp. & AmerGen Vt., LLC (Vt. Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 173-74 (2000) (refusing to suspend all license transfer proceedings pending analysis of limited liability companies).
42 See Callaway, CLI-11-5, 74 NRC at 159 (emphasis added).
43 In any event, if ELPCs apparently-forthcoming rulemaking petition leads to the promulgation of any new or amended regulations, then Exelon would comply with those regulations, as applicable.
9
V. CONCLUSION In summary, ELPCs Stay Request is untimely, has no basis, and fails to demonstrate that a stay or suspension is warranted in this proceeding. For the foregoing reasons, Exelon respectfully requests that the Commission deny ELPCs Stay Request in its entirety.
Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
Alex S. Polonsky Raphael P. Kuyler Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5146 Fax: 202-739-3001 E-mail: apolonsky@morganlewis.com E-mail: rkuyler@morganlewis.com Donald P. Ferraro Assistant General Counsel Exelon Business Services Company 200 Exelon Way, Suite 305 Kennett Square, PA 19348 Phone: 610-756-5381 Fax: 610-765-5730 E-mail: donald.ferraro@exeloncorp.com Counsel for Exelon Generation Co., LLC Dated in Washington, D.C.
this 26th day of December, 2013 10
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
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) ) December 26, 2013
)
CERTIFICATE OF SERVICE I hereby certify that on December 26, 2013 copies of Exelons Answer to Appeal of ASLB Denial of ELPCs Petition for Intervention and Hearing Request as Request for Protective Stay were served upon the Electronic Information Exchange (the NRCs e-filing system), in the above-captioned proceeding.
Signed (electronically) by Laura V. Swett Laura V. Swett Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5677 Fax: (202) 739-3001 E-mail: lswett@morganlewis.com DB1/ 76965373