ML14002A455
| ML14002A455 | |
| Person / Time | |
|---|---|
| Site: | Byron, Braidwood  |
| Issue date: | 01/02/2014 |
| From: | Vickers J Environmental Law & Policy Ctr |
| 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 25461 | |
| Download: ML14002A455 (6) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 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 ASLBP No. 13-929-02-LR-BD01 and Byron Nuclear Station, Units 1 and 2)
January 2, 2014 ELPC REPLY IN SUPPORT OF ITS APPEAL OF THE ASLB DENIAL OF ELPCS PETITION FOR INTERVENTION AND HEARING REQUEST Petitioner Environmental Law & Policy Center (ELPC) hereby files this Reply to the Answers of the Nuclear Regulatory Commission (Commission) Staff and Exelon to ELPCs appeal of the Atomic Safety and Licensing Boards (ASLB) Order denying ELPCs hearing request and petition to intervene. ELPC filed its appeal as a request for protective stay while it prepares its forthcoming petition for a rulemaking to require need for power analyses for merchant plant relicensings. The protective stay is meant to preserve ELPCs rights with regard to the Byron 1 & 2 and Braidwood 1 & 2 license renewal applications as the rulemaking process moves forward. First, the protective stay will preserve ELPCs right ensure that any rule coming out of its petition for rulemaking is enforced in this relicensing proceeding. Second, the protective stay will preserve ELPCs right to seek a 10 C.F.R. §2.802(d) stay if its petition for rulemaking is pending at the time that the NRC intends to issue its final decision on these applications.
Staff ultimately agrees that [i]f the NRC determines that rulemaking is warranted, the Commission could revisit whether Byron and Braidwood licensing reviews should be held in abeyance based on the complexity of the issues raised and the Staffs review schedule. Staff 1
Answer at 9-10. In addition, ELPC requests that the Commission allow it to request a stay under 10 C.F.R. §2.802(d) in the future if the Commission has not acted on ELPCs forthcoming rulemaking petition before it makes a final determination on the Byron 1 & 2 and Braidwood 1
& 2 license renewal requests.
Moreover, contrary to Staffs and Exelons arguments, ELPCs appeal is timely and does not waive the merits of its Contention 1 that the National Environmental Policy Act (NEPA) requires a need for power analysis as part of Byron 1 & 2s and Braidwood 1 & 2s environmental reviews.
I. ELPCS REQUEST FOR PROTECTIVE STAY SHOULD BE GRANTED.
Staff argues that ELPC is now seeking to suspend the adjudicatory proceeding or defer a licensing decision. Staff Answer at 9. However, ELPC is not asking the Commission to suspend or change the schedule of the Byron 1 & 2 and Braidwood 1 & 2 license renewal processes at this time.1 Instead, ELPC is seeking to preserve its right to raise its need for power analysis issue with respect to Byron 1 & 2 and Braidwood 1 & 2 in the future once the NRC has addressed ELPCs rulemaking petition. The ASLBs November 19, 2013 Order at page 4 states that ELPCs sole remedy to challenge the wisdom or lawfulness of 10 C.F.R. § 51.53(c)(2) is to file a petition for rulemaking with the Commission itself. ELPC is simply following this course, while making sure that it will be able to have these issues applied to the Byron 1 & 2 and Braidwood 1 & 2 license renewals.
Staff seems to agree that ELPC has the ability to raise its rulemaking petition need for power issue with respect to Byron 1 & 2 and Braidwood 1 & 2 once the NRC considers its 1
See ELPCs Appeal of ASLB Denial of ELPCs Petition for Intervention and Hearing Request as Request for Protective Stay (December 16, 2013) at 3 (stating that ELPC is not requesting that the NRC stop work on the license renewal because the current license renewal schedule should allow ample time for the Commission to consider ELPCs petition for rulemaking before a final decision on Byron 1 & 2 and Braidwood 1 & 2 license renewals).
2
rulemaking petition. Staff states that [i]f the NRC determines that rulemaking is warranted, the Commission could revisit whether Byron and Braidwood licensing reviews should be held in abeyance based on the complexity of the issues raised and the Staffs review schedule. Staff Answer at 9-10. ELPC is asking the Commission to confirm that - in the situation that Staff poses - it would revisit the need for power issue before it decides upon license renewals for Byron 1 & 2 and Braidwood 1 & 2. If the situation arises where the Commission has not addressed ELPCs rulemaking petition by the time it will make a final decision on the Byron 1 &
2 and Braidwood 1 & 2 license renewals, ELPC seeks to preserve its ability to seek a stay of the license renewals under the NRCs petition for rulemaking regulations at 10 C.F.R. §2.802(d).
This would allow ELPC to request that the Commission act on ELPCs rulemaking petition before these largest-ever license renewals are finally determined.
II. ELPCS APPEAL AS REQUEST FOR PROTECTIVE STAY DOES NOT WAIVE THE MERITS OF ITS CONTENTION 1 ARGUMENT.
Staff argues that ELPC has waived its right to appeal the merits of its originally filed Contentions because ELPC does not specifically challenge the ASLBs Order in this appeal.
Staff Answer at 7. However, by filing this appeal as a request for a protective stay, ELPC is not waiving the merits of its argument in Contention 1 - that Exelon has not conducted a need for power analysis as NEPA requires. The very purpose of ELPCs request for protective stay is to preserve its right to raise this issue with respect to the Byron 1 & 2 and Braidwood 1 & 2 license renewals. ELPC does not specifically address the merits of its argument in this appeal because it is following the procedural course prescribed by the ASLB, which as stated above, is to file a petition for rulemaking. ELPCs ultimate aim is to have its need for power analysis issue heard with respect to the Byron 1 & 2 and Braidwood 1 & 2 license renewals. Therefore, ELPC is not waiving this argument, but is following the ASLBs direction to file it as a petition for 3
rulemaking and then raise the issue for the Byron 1 & 2 and Braidwood 1 & 2 license renewals after the NRC addresses ELPCs petition for rulemaking. At this juncture, the Commission need only determine whether ELPCs request for a preservation stay should be granted. Staff Answer at 7.
III. ELPCS REQUEST FOR A PROTECTIVE STAY IS TIMELY.
Contrary to Staffs and Exelons argument, ELPCs appeal as request for protective stay is timely. Staff argues that ELPCs request for protective stay is untimely because under 10 C.F.R. § 2.342(a) [s]tays of the effectiveness of a Board order must be filed within ten (10) days. Staff Answer at 7; see also Exelon Answer at 5. However, ELPC is not filing for an instant stay of the effectiveness of the ASLBs November 19, 2013 Order, and ELPC is not requesting that the Byron 1 & 2 and Braidwood 1 & 2 license renewal processes be stayed at this time. ELPC is seeking to preserve its right to raise its need for power analysis issue in the future, after the NRC addresses ELPCs petition for rulemaking. This petition for rulemaking is the procedural course prescribed by the ASLBs Order. ELPC is following the ASLBs Order, not seeking to have the relicensing process stayed immediately. Meanwhile, ELPC is properly seeking to preserve its ability to intervene in the Byron 1 & 2 and Braidwood 1 & 2 license renewals if its petition is granted. ELPC is not seeking a stay of the ASLBs Order under § 2.342(a) and its appeal is not somehow untimely under that section.
ELPCs appeal as request for protective stay is timely as an appeal under 10 C.F.R. § 2.311(a)(1) & (2), as it was filed on December 16, 2013, within §2.311s 25-day time requirement. As stated above, ELPCs request for protective stay is not a request for an instant stay under § 2.342(a) and it is not a stand-alone motion under 10 C.F.R. § 2.323. Rather, it is a response to the ASLBs Order that seeks to preserve ELPCs rights while following the ASLBs 4
prescribed procedural course. ELPC filed its appeal as request for protective stay as an appeal under §2.311 because it is the proper procedure for the Commission to review the terms of an ASLB decision denying intervention (§2.311(a)(2)) and hearing requests (§2.311(a)(1)).
Therefore, ELPCs appeal as request for protective stay is timely because it is not a stay request under § 2.342, nor a stand-alone motion under § 2.323, but was properly and timely filed as an appeal for Commission review under § 2.311.
IV. CONCLUSION.
For the foregoing reasons, Staff fails to demonstrate that ELPCs request for protective stay should be denied. ELPCs appeal as a request for protective stay: (1) is an appropriate way to preserve ELPCs right to intervene in the Byron 1 & 2 and Braidwood 1 & 2 license renewals while it follows the ASLB Orders recommended procedure, (2) does not constitute a waiver of its Contention 1 argument, and (3) is timely under 10 C.F.R. § 2.311. Therefore, the Commission should grant ELPCs request for a protective stay.
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 2nd day of January, 2014 5
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) ) January 2, 2014
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that on this date, a copy of ELPC Reply in Support of its Appeal of the ASLB Denial of ELPCs Petition for Intervention and Hearing Request was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.
Signed (electronically) by Justin Vickers 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