ML14080A593

Firstenergy Nuclear Operating Company Response to Petition to Suspend Licensing Decisions Pending Completion of Rulemaking

ML14080A593
Person / Time
Site:	Davis Besse
Issue date:	03/21/2014
From:	Burdick S, Jenkins D, Matthews T, Sutton K FirstEnergy Nuclear Operating Co, Firstenergy Service Company, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
50-346-LR, ASLBP 11-907-01-LR-BD01, RAS 25732
Download: ML14080A593 (32)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) March 21, 2014

)

FIRSTENERGY NUCLEAR OPERATING COMPANY RESPONSE TO PETITION TO SUSPEND LICENSING DECISIONS PENDING COMPLETION OF RULEMAKING Timothy P. Matthews Kathryn M. Sutton Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5527 E-mail: tmatthews@morganlewis.com David W. Jenkins Senior Corporate Counsel II FirstEnergy Service Company Mailstop: A-GO-15 76 South Main Street Akron, OH 44308 Phone: 330-384-5037 E-mail: djenkins@firstenergycorp.com Counsel for FirstEnergy Nuclear Operating Company

TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 II. BACKGROUND ............................................................................................................... 2 A. Current Status of the Davis-Besse License Renewal Proceeding .......................... 2

1. The NRCs Ongoing Review of the License Renewal Application .......... 2

2. The Related Adjudicatory Proceeding ....................................................... 3 B. NRC Staffs Evaluation of Expedited Transfer of Spent Fuel to Dry Cask Storage ................................................................................................................... 5 C. The Petition for Rulemaking .................................................................................. 7 D. The Petition to Suspend NRC Licensing Decisions .............................................. 9 III. THE SUSPENSION PETITION SHOULD BE REJECTED............................................ 9 A. The Suspension Petition Does Not Provide an Adequate Basis to Suspend the NRCs License Renewal Decision ................................................................... 9

1. Moving Forward with the Renewed License Will Not Jeopardize Public Health and Safety .......................................................................... 10

2. Suspending the Davis-Besse License Renewal Decision Would Frustrate Fair and Efficient Decisionmaking ........................................... 11

3. Moving Forward with the Renewed License Will Not Hamper Implementation of Any Potential Rule or Policy Changes ...................... 14 B. The Suspension Petition Does Not Identify New and Significant Information .......................................................................................................... 15

1. NEPA Imposes a High Standard with Respect to the Need for Supplemental Environmental Analyses or Documentation ..................... 15

2. The Suspension Petition and Rulemaking Petition Have Not Identified Any New and Significant Information Related to Davis-Besse License Renewal ............................................................................ 17

3. The Information in the Expedited Fuel Transfer Proceeding Is Not New and Significant as Evaluated Under NEPA ..................................... 17 C. The Suspension Petition Also Should Be Rejected for Procedural Deficiencies.......................................................................................................... 27 IV. CONCLUSION ................................................................................................................ 28

-i-

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) March 21, 2014

)

FIRSTENERGY NUCLEAR OPERATING COMPANY RESPONSE TO PETITION TO SUSPEND LICENSING DECISIONS PENDING COMPLETION OF RULEMAKING I. INTRODUCTION In accordance with 10 C.F.R. § 2.323(c) and the Secretary of the Commissions March 4, 2014 Order, FirstEnergy Nuclear Operating Company (FENOC) files this Answer opposing the Suspension Petition filed by the Intervenors on February 27, 2014.1 Intervenors request that the Commission suspend the issuance of the renewed operating license for the Davis-Besse Nuclear Power Station, Unit 1 (Davis-Besse) pending the Nuclear Regulatory Commissions (NRC) completion of a requested rulemaking proceeding concerning the environmental impacts of accidents involving fires in high-density spent fuel pools (SFP) and related mitigation measures.2 Intervenors contend that such extraordinary action is necessary for compliance with the National Environmental Policy Acts (NEPA) requirement that new and 1

See Petition to Suspend Reactor Licensing Decisions and Reactor Re-Licensing Decisions Pending Completion of Rulemaking Proceeding Regarding Environmental Impacts of High-Density Pool Storage of Spent Fuel and Mitigation Measures (Feb. 27, 2014) (Suspension Petition). The Introduction to the Suspension Petition only identifies two of the Davis-Besse license renewal Intervenors (Beyond Nuclear and Dont Waste Michigan) as submitting the petition. Id. at 2. However, the signature block for Terry Lodge, counsel for Intervenors, also lists the two remaining Intervenors (Citizens Environment Alliance of Southwestern Ontario and the Green Party of Ohio). Id. at 16. For ease of reference, this Answer uses the phrase Intervenors.

2 See Environmental Organizations Petition to Consider New and Significant Information Regarding Environmental Impacts of High-Density Spent Fuel Storage and Mitigation Alternatives in Licensing Proceedings for New Reactors and License Renewal Proceedings for Existing Reactors and Duly Modify all NRC Regulations Regarding Environmental Impacts of Spent Fuel Storage During Reactor Operation (Feb. 18, 2014) (Rulemaking Petition) (attached to Suspension Petition).

significant information be incorporated into reactor licensing decisions before those decisions are finalized.3 As set forth below, the Suspension Petition should be denied in its entirety. First, the Suspension Petition seeks relief that is premature, unwarranted, and contrary to Commission precedent that disfavors holding adjudicatory proceedings and licensing decisions in abeyance.

Second, Intervenors fail to support their core claim; i.e., that new and significant information on the environmental impacts of high-density SFP storage warrants supplemental rulemaking by the NRC and a concomitant suspension of NRC licensing decisions. To the contrary, the environmental impacts of SFP fires have long been well understood and have been determined to be small. The NRC Staff Consequence Study4 relied upon by Intervenors provides information that is consistent with previous studies; thus, no further NEPA evaluation or rulemaking is warranted. Furthermore, the Suspension Petition is procedurally deficient because it is untimely.

II. BACKGROUND A. Current Status of the Davis-Besse License Renewal Proceeding

1. The NRCs Ongoing Review of the License Renewal Application In August 2010, FENOC filed an application to renew the 10 C.F.R. Part 50 operating license for Davis-Besse for an additional 20-year term.5 The NRC Staff published its Safety Evaluation Report (SER) with open items on July 31, 2012, and its final SER on September 3, 2013. The Advisory Committee on Reactor Safeguards still must meet on the final SER. The 3

Suspension Petition at 4.

4 See Consequence Study of a Beyond-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling Water Reactor (Oct. 2013) (Consequence Study) (attached to SECY-13-0112 (Oct. 9, 2013)),

available at ADAMS Accession No. ML13256A334 (package); Suspension Petition at 3-5, 13.

5 License Renewal Application; Davis-Besse Nuclear Power Station at 1.0-1 (Aug. 2010). The current operating license for Davis-Besse expires on April 22, 2017.

2

Staff published the Draft Supplemental Environmental Impact Statement (SEIS) in February 2014, and anticipates that it will publish the Final SEIS in September 2014.6

2. The Related Adjudicatory Proceeding On December 27, 2010, Intervenors petitioned to intervene in this proceeding, proffering four contentions.7 On April 26, 2011, the Atomic Safety and Licensing Board (Board) admitted Contention One; a reformulated and consolidated version of Contentions One, Two, and Three regarding renewable energy alternatives; and Contention Four, a narrowed version of a contention concerning FENOCs severe accident mitigation alternatives (SAMAs) analysis.8 FENOC appealed the Boards ruling admitting the two contentions and, on March 27, 2012, the Commission reversed the Boards admission of Contention One, and reversed, in part, the Boards admission of Contention Four.9 FENOC later moved for summary disposition as to the remaining part of Contention Four.10 On January 10, 2012, Intervenors moved to admit proposed Contention Five concerning laminar concrete cracking of the Davis-Besse shield building.11 Subsequently, Intervenors submitted five motions to amend and/or supplement the proposed cracking contention.

On November 5 and 6, 2012, the Board held oral argument on FENOCs motion for summary disposition of Contention Four, the admissibility of proposed Contention Five, and the 6

See Davis-Besse Nuclear Power Station, Unit 1 - License Renewal Application, available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/davis-besse.html.

7 See Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio Request for Public Hearing and Petition for Leave to Intervene (Dec. 27, 2010).

8 See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station), LBP-11-13, 73 NRC 534, 588-89 (2011).

9 See generally FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station), CLI-12-8, 75 NRC 393 (2012).

10 See FirstEnergys Motion for Summary Disposition of Contention 4 (SAMA Analysis Source Terms) (July 26, 2012).

11 See Motion for Admission of Contention No. 5 on Shield Building Cracking (Jan. 10, 2012).

3

five motions to supplement or amend. On December 28, 2012, the Board granted FENOCs motion for summary disposition of Contention Four,12 and denied Intervenors motion to admit proposed Contention Five.13 In the interim, Intervenors also filed with the Board a motion to admit a new environmental contention that challenges the alleged failure of FENOCs Environmental Report to address the environmental impacts that may occur if a spent fuel repository does not become available.14 The proposed contention is based on the U.S. Court of Appeals for the District of Columbia Circuits decision in New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012),15 which invalidated and remanded the NRCs Waste Confidence Decision Update16 and related final rule.17 On August 7, 2012, the Commission issued CLI-12-16, in which it directed all licensing boards to hold numerous pending waste confidence contentions in abeyance pending further Commission order.18 Consequently, in an August 8, 2012 Order, the Board held any participant or Board activity concerning Intervenors proposed waste confidence contention in abeyance pending further Commission direction.19 12 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station), LBP-12-26, 76 NRC 559 (2012).

13 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station), LBP-12-27, 76 NRC 583 (2012).

14 See Intervenors Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Davis-Besse Nuclear Power Station (July 9, 2012).

15 See id.

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

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

18 See Calvert Cliffs Nuclear Project, LLC, et al. (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63, 68-69 (2012).

19 See Licensing Board Order (Suspending Procedural Date Related to Proposed Waste Confidence Decision) at 1 (Aug. 8, 2012) (unpublished).

4

On September 23, 2013, FENOC filed with the Board a petition seeking certification of a waste confidence-related question to the Commission.20 Specifically, FENOC sought clarification as to whether the Commission intended to authorize the Board to lift the abeyance on Intervenors proposed waste confidence issues. The Board denied FENOCs certification petition on November 18, 2013.21 Thus, the Commission-ordered abeyance remains in place.22 B. NRC Staffs Evaluation of Expedited Transfer of Spent Fuel to Dry Cask Storage Intervenors Suspension Petition stems from their belief that the NRC Staff has identified new and significant information as part of ongoing post-Fukushima review activities related to SFP storage.23 Specifically, in a May 7, 2013 memorandum to the Commission, the Staff outlined a plan for evaluating whether the NRC should undertake a regulatory action to require the expedited transfer of spent fuel from pools to dry cask storage containers at U.S. nuclear power plants.24 As part of that effort, the NRC Staff performed the aforementioned Consequence Study to examine the risks and consequences of postulated SFP accidents. The Consequence Study (one of many SFP-related studies performed by the NRC over the years) is the principal focus of Intervenors Suspension Petition.

20 See FENOCs Petition for Certification of Waste Confidence-Related Question to the Commission Pursuant to 10 C.F.R. § 2.323(f)(2) (Sept. 23, 2013).

21 See Order (Denying FENOCs Petition for Certification of Waste Confidence-Related Question to the Commission) (Nov. 18, 2013) (unpublished).

22 In the Sequoyah license renewal proceeding, the Commission stated that the direction it provided in Calvert Cliffs (CLI-12-16) remains in place, and that the Commission will provide further direction regarding pending waste confidence contentions concurrent with issuance of the NRCs final waste confidence rule in Fall 2014.

See Tenn. Valley Auth. (Sequoyah Nuclear Plant, Units 1 & 2), CLI-14-03, 79 NRC __, slip op. at 8-9 (Feb. 12, 2014).

23 The Suspension Petition refers to these NRC activities collectively as the NRCs Expedited Spent Fuel Pool Transfer Proceeding. Suspension Petition at 3.

24 Memorandum from Michael R. Johnson, Deputy Executive Director for Reactors and Preparedness Programs, NRC, to the Commissioners, Updated Schedule and Plans for Japan Lessons-Learned Tier 3 Issue on Expedited Transfer of Spent Fuel (May 7, 2013), available at ADAMS Accession No. ML13105A122.

5

On June 24, 2013, the NRC Staff published a draft version of its Consequence Study for public comment, which was followed by the Staffs publication of the final version of the Consequence Study in October 2013.25 The Consequence Study is intended to help the NRC Staff evaluate whether the accelerated transfer of spent fuel from the SFP to dry cask storage would significantly reduce risks to public health and safety.26 The study provides consequence estimates for a hypothetical SFP accident initiated by a low-likelihood seismic event at a reference plant for both a fully loaded (high-density) and minimally loaded (low-density) SFP.27 The postulated accident scenario involved a failure of the SFP liner, drainage of the pool, and initiation of a fire involving the Zircaloy cladding of the spent fuel.28 The NRC Staff concluded that SFPs are likely to withstand severe earthquakes without leaking.29 Further, the regulatory analysis included in the study indicates that expediting movement of spent fuel from the pool does not provide a cost-justified substantial safety enhancement (i.e., backfit) for the reference plant.30 Based on the Consequence Study and previous studies,31 the NRC Staff reiterated its conclusion that high-density storage of spent fuel in pools ensures adequate protection of public health and safety.32 25 See Draft Report; Request for Comment, Consequence Study of a Beyond-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling Water Reactor (June 2013), available at ADAMS Accession No. ML13133A132; Consequence Study (attached to SECY-13-0112 (Oct. 9, 2013)). The NRC sought comments on the draft report via a notice published in the Federal Register. See Consequence Study of a Beyond-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling Water Reactor, 78 Fed. Reg.

39,781 (July 2, 2013).

26 See Consequence Study at vi. The NRC plans to use the Consequence Study results to inform its broader regulatory analysis of the SFPs at all U.S. operating nuclear reactors as part of its Japan Lessons-Learned Tier 3 plan. Id. at v.

27 See id. at v.

28 See id. at D-16.

29 See id. at v.

30 See id.

31 See, e.g., NUREG-1353, Regulatory Analysis for the Resolution of Generic Issue 82, Beyond Design Basis Accidents in Spent Fuel Pools (Apr. 1989); NUREG/CR-6451, A Safety and Regulatory Assessment of 6

After the Consequence Study, the NRC Staff submitted a memorandum (COMSECY 0030) to the Commission, setting forth the Staffs overall evaluation and recommendation related to expedited transfer of spent fuel.33 Therein, the Staff concluded that the expedited transfer of spent fuel to dry cask storage would provide only a minor or limited safety benefit, and that its expected implementation costs would not be warranted.34 The Staff recommended no further generic assessments be pursued related to possible regulatory actions to require the expedited transfer of spent fuel to dry cask storage, and that this Tier 3 Japan lessons-learned activity be closed.35 The Commissions response to COMSECY-13-0030 is pending.

C. The Petition for Rulemaking On February 18, 2014, Intervenors and numerous other groups submitted their Rulemaking Petition to the NRC.36 The Rulemaking Petition claims that following the Fukushima accident, the NRC Staff generated new and significant information regarding purportedly adverse environmental impacts of high-density SFP storage and alternatives for avoiding those impacts.37 The Rulemaking Petition asserts that the NRC Staff has revealed for the first time that: (1) as many as 9,400 square miles could be rendered uninhabitable by a relatively small SFP fire, displacing over 4 million people for decades; (2) reducing the density of spent fuel storage in reactor pools may be a cost-beneficial mitigation alternative; and (3) the Generic BWR and PWR Permanently Shutdown Nuclear Power Plants (Apr. 1997); NUREG-1738, Technical Study of Spent Fuel Pool Accident Risk at Decommissioning Nuclear Power Plants (Feb. 2001).

32 See Consequence Study at v.

33 See COMSECY-13-0030, Staff Evaluation and Recommendation for Japan Lessons-Learned Tier 3 Issue on Expedited Transfer of Spent Fuel (Nov. 12, 2013).

34 See id. at 1-2.

35 See id. at 10.

36 See generally Rulemaking Petition.

37 Id. at 1-2.

7

likelihood of SFP fires could be affected by reactor accidents.38 The Rulemaking Petition cites the Consequence Study and its associated Regulatory Analysis as the sources of that allegedly new and significant information.39 The Rulemaking Petition suggests that this information is new because it has not been previously addressed by the NRC Staff in any environmental impact statement (EIS) for reactor licensing, the generic EIS (GEIS) for license renewal, or any environmental assessment for standardized design certification.40 It further states that the information is significant because it undermines the NRCs conclusion in previous environmental studies for reactor licensing and license renewal that the impacts of spent fuel storage during reactor operation are small.41 The Rulemaking Petition claims that this purportedly new and significant information must be considered now under NEPA, and requests that the Commission: (1) modify NRCs regulations that make or rely on findings regarding the environmental impacts of spent fuel storage during reactor operation; (2) suspend the effectiveness of NRC regulations related to the environmental impacts of spent fuel storage during the license renewal term; (3) re-publish for public comment the NRCs GEIS for license renewal and the EISs for all new reactors; and (4) suspend all new reactor licensing decisions and license renewal decisions pending completion of the rulemaking.42 38 See id. at 2-3.

39 See id. at 2-3 nn. 5, 7, & 9 (citing Consequence Study at 29, 162 (Table 33) & 232 (Table 62)); Regulatory Analysis for Japan Lessons-Learned Tier 3 Issue on Expedited Transfer of Spent Fuel (Attachment 1 to COMSECY-13-0013) at 7, 46-51 (Nov. 12, 2013) (Regulatory Analysis), available at ADAMS Accession No. ML13273A628).

40 Rulemaking Petition at 2-3, 27.

41 Id.

42 See id. at 4-5, 35-36. The Suspension Petition (sponsored by Intervenors in this proceeding) is narrower in scope, insofar as it is confined to a limited number of pending licensing and license renewal adjudications.

8

D. The Petition to Suspend NRC Licensing Decisions On February 27, 2014, Intervenors and various other adjudicatory participants filed the instant Suspension Petition pursuant to 10 C.F.R. § 2.802(d), seeking to suspend certain final NRC licensing decisions until the NRC Staff addresses the allegedly new and significant information identified in the February 18, 2014 Rulemaking Petition (as summarized above).

Intervenors cite, and incorporate by reference, the Rulemaking Petition as support for the Suspension Petition.43 Thus, the Suspension Petition is fundamentally generic, and does not address any specific issues or concerns for Davis-Besse.

III. THE SUSPENSION PETITION SHOULD BE REJECTED A. The Suspension Petition Does Not Provide an Adequate Basis to Suspend the NRCs License Renewal Decision The Suspension Petition should be rejected for failure to include adequate bases and justification for suspension of the Davis-Besse license renewal decision. The Commission considers the suspension of licensing proceedings or decisions to be a drastic action that is not warranted absent immediate threats to public health and safety, or other compelling reason.44 As discussed in Callaway, the Commission applies three criteria in determining whether to suspend an adjudication or licensing decision: (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 decisionmaking; and (3) whether going forward will prevent appropriate implementation of any pertinent rule or policy changes that might emerge from [the NRCs] . . .

This was confirmed by the Secretary of the Commissions March 4, 2014 Order, which likewise only applied to a limited number of proceedings.

43 See Suspension Petition at 3.

44 Union Elec. Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 158 (2011) (quoting AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 484 (2008))

(internal quotation marks omitted).

9

ongoing evaluation.45 As set forth below, the Suspension Petition satisfies none of the three criteria for suspension of a licensing action.46

1. Moving Forward with the Renewed License Will Not Jeopardize Public Health and Safety Although Intervenors acknowledge the three-pronged Callaway test for evaluating suspension requests,47 nowhere in their Suspension Petition do they explicitly address the first criterion. Instead, Intervenors assert only that suspension of reactor licensing and re-licensing decisions is necessary for compliance with NEPAs requirement that new and significant information be incorporated into reactor licensing decisions before those decisions are finalized.48 Accordingly, they do not challenge the adequacy of the NRCs safety regulations, or the NRCs ability to ensure adequate protection of the public health and safety.49 Intervenors thus fail to show that issuance of the renewed license before resolution of the Rulemaking Petition poses an imminent risk to public health and safety.50 Further, as discussed below, Intervenors have not identified any new and significant information that requires supplemental agency analysis under NEPA. Therefore, Intervenors have presented no information or argument to suggest that the first Callaway criterion is met, or that suspension of the NRCs license renewal decision is warranted.

45 Id. at 158-59 (quoting Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 380 (2001)).

46 NRC regulations also address stays in 10 C.F.R. §§ 2.342 and 2.1213, but those regulations are not applicable in this situation. Even if these regulations did apply, Intervenors have not addressed the factors for a stay. For example, Intervenors have not demonstrated that they will prevail in this proceeding or that they will be irreparably injured if the licensing decisions were to move forward.

47 See Suspension Petition at 9.

48 Id. at 3-4 (emphasis added).

49 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Plants, Units 3 & 4), CLI-01-17, 54 NRC 3, 13 (2001) (citing Limerick Ecology Action v. NRC, 869 F.2d 719, 729-31 (3d Cir. 1989) (The AEA and NEPA contemplate separate NRC reviews of proposed licensing actions.)).

50 Callaway, CLI-11-5, 74 NRC at 163, 166.

10

2. Suspending the Davis-Besse License Renewal Decision Would Frustrate Fair and Efficient Decisionmaking With regard to the second Callaway criterion, Intervenors aver that because the well-established legal standard for new and significant information is easily satisfied by NRCs own documents . . ., to refuse to stay licensing decisions that are affected by that information would frustrate fair and effective decisionmaking under NEPA.51 Even assuming that the Suspension Petition identified new and significant information (which it does not), it still fails to demonstrate that a stay of the NRCs license renewal decision is warranted in these circumstances.

The suspension of licensing actions runs counter to the Commissions long-standing commitment to efficient and expeditious processing of applications and associated hearings.52 The unnecessary postponement of licensing adjudications and decisions contravenes the Commissions interest in regulatory finality and sound case management.53 Here, the NRC has not had an opportunity to review the Rulemaking Petition to assess its merit and the potential need for rulemaking. As the Commission has ruled under similar circumstances, proceedings should not be suspended absent this threshold determination.54 Indeed, staying licensing actions 51 Suspension Petition at 10.

52 See, e.g., Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 18, 24 (1998).

53 See Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-01-27, 54 NRC 385, 390-91 (2001) (citing Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC at 24); Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 39 (2001)).

54 See, e.g., Petition for Rulemaking to Amend 10 C.F.R. § 54.17(c), CLI-11-1, 73 NRC 1, 5 (2011) (quoting Private Fuel Storage, CLI-01-26, 54 NRC at 383) (stating that Petitioners concerns are untested and remain to be examined after receipt of comments on the rulemaking petition, and that holding up these proceedings is not necessary to ensure that the public will realize the full benefit of our ongoing regulatory review of Petitioners concerns).

11

in these circumstances would frustratenot advancethe Commissions objective of promoting expeditious decision-making and regulatory certainty.55 Here, the drastic relief sought by Intervenorssuspension of the Commissions license renewal decisionis premature given the current status of both the Rulemaking Petition and the Davis-Besse proceeding. Although NRC regulations in 10 C.F.R. § 2.802(d) permit the concurrent filing of rulemaking petitions and suspension requests, such suspension requests are not, ipso facto, warranted. Indeed, Intervenors acknowledge that [s]ome NRC cases have suggested that a motion under 10 C.F.R. § 2.802 should not be submitted until the conclusion of the rulemaking proceeding,56 thereby allowing the rulemaking petitioners concerns to be scrutinized by public comment and agency review.57 The Rulemaking Petition on which Intervenors rely has not even been docketed by the NRC, much less made available for public comment.

The Commission also has expressly stated that suspension requests are premature when no final licensing decision is imminent:

The [petitioners] rulemaking petition [] asked the NRC to withhold final decisions in the Vermont Yankee and Pilgrim license renewal proceedings until the rulemaking petition is resolved. But final decisions in those proceedings are not expected for another year or more. Those proceedings involve many issues unrelated to the [petitioners] rulemaking petition. It is therefore premature to consider suspending proceedings or delaying final decisions.58 55 See id. at 4 (Absent extraordinary cause, however, seldom do we interrupt licensing reviews or our adjudicationsparticularly by an indefinite or very lengthy stay as contemplated hereon the mere possibility of change. Otherwise, the licensing process would face endless gridlock.).

56 Suspension Petition at 14 (citing Petition for Rulemaking to Amend 10 C.F.R. § 54.17(c), CLI-11-1, 73 NRC at 4-5) (emphasis added).

57 Petition to Amend 10 C.F.R. § 54.17(c), CLI-11-1, 73 NRC at 5.

58 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station; Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13, 22 n.37 (2007), affd, Mass. v. United States, 522 F.3d 115 (1st Cir. 2008) (emphasis added).

12

In the multi-docket Callaway proceeding, the Commission similarly rejected various petitioners requests to suspend licensing proceedings pending disposition of their post-Fukushima rulemaking petitions.59 Citing its ruling in Vermont Yankee and Pilgrim, and to its finding that none of the implicated license applications was on the verge of being granted, the Commission ruled that the petitioners request to suspend was premature.60 In Callaway, the Commission also emphasized the ongoing nature of its post-Fukushima review. It noted that until we have a complete understanding of the Fukushima events, and have provided direction as to potential changes to regulatory requirements, we will not know whether, or the extent to which, an individual NEPA review might be impacted.61 The Commission further explained that if changes to its current environmental assessment rules are warranted, then it can revisit whether an individual licensing review or adjudication should be held in abeyance pending the outcome of a relevant rulemaking.62 This Commission precedent governs the disposition of Intervenors Suspension Petition.

First, the Rulemaking Petition on which it is based stems from the NRCs ongoing post-Fukushima evaluations. Second, Intervenors seek to suspend the effectiveness of NRC regulations related to the environmental impacts of spent fuel storage.63 Finally, issuance of the Davis-Besse renewed operating license is not imminent in view of ongoing adjudicatory activities. Accordingly, the Commissions rulings in the Vermont Yankee and Callaway decisions control here and compel denial of the Suspension Petition.

59 Callaway, CLI-11-5, 74 NRC at 173-75. Not unlike the instant rulemaking petitioners, the petitioners in Callaway sought to rescind regulations in 10 C.F.R. Part 51 that draw generic conclusions about the environmental impacts of severe reactor and spent fuel pool accidents and that preclude consideration of those issues in individual licensing proceedings. Id. at 173.

60 Id. at 174 (citing Vt. Yankee, CLI-07-3, 65 NRC at 22 n.37).

61 Id.

62 Id. (emphasis added).

63 Suspension Petition at 8.

13

3. Moving Forward with the Renewed License Will Not Hamper Implementation of Any Potential Rule or Policy Changes Intervenors also fail to explain why suspension of the Davis-Besse license renewal decision is necessary under the third Callaway criterion. Issuance of the Davis-Besse renewed operating license is not imminent for the reasons stated above.64 Thus, there is time for the NRC Staff to review the Rulemaking Petition, evaluate its merits, and determine whether rulemaking is warrantedall without the need to suspend the final licensing decision.65 As Intervenors fully acknowledge, the Consequence Study is part of the NRCs continuing post-Fukushima reviews.66 As explained in Callaway, the NRC has well-established processes for imposing any new requirements necessary to protect public health and safety and the common defense and security.67 Further, with respect to its post-Fukushima NEPA review obligations, the Commission has noted that [i]f the NRC determines that changes to its current environmental assessment rules are warranted, then [i]t can revisit whether an individual licensing review or adjudication should be held in abeyance pending the outcome of a relevant rulemaking.68 Therefore, [m]oving forward with [its] decisions and proceedings will have no effect on the NRCs ability to implement necessary rule or policy changes that might come out of

[its] review of the Fukushima Daiichi events.69 64 In this regard, the Commission already suspended licensing decisions when it stated that it will not issue licenses dependent on the Waste Confidence Decision or the Temporary Storage Rule until the D.C. Circuits remand in New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012) has been appropriately addressed. See Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63 (2012).

65 See Callaway, CLI-11-5, 74 NRC at 174-75; Petition to Amend 10 C.F.R. § 54.17(c), CLI-11-1, 73 NRC at 5; AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-13, 67 NRC 396, 399-400 (2008); Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-03-4, 57 NRC 273, 277 (2003).

66 See Suspension Petition at 13.

67 See Callaway, CLI-11-5, 74 NRC at 166.

68 See id. at 174.

69 Id. at 166. See also Diablo Canyon, CLI-03-4, 57 NRC at 277 (As every license the Commission issues is subject to the possibility of additional requirements, moving forward with the current . . . licensing proceeding 14

For all of the above reasons, the Suspension Petition fails to demonstrate that staying the Davis-Besse license renewal decision pending the NRCs disposition of the Rulemaking Petition is necessary to protect the public health and safety, to facilitate fair and efficient decisionmaking, or to ensure appropriate implementation of any pertinent rule or policy changes. Accordingly, the Suspension Petition can be rejected on this ground alone.

B. The Suspension Petition Does Not Identify New and Significant Information Contrary to Intervenors claims, the Rulemaking Petition does not identify any new and significant information that would affect the site-specific environmental review for Davis-Besse license renewal or the NRCs generic determinations regarding the environmental impacts of spent fuel storage. Thus, there is no factual or legal foundation for Intervenors claim that suspension of this proceeding is necessary to ensure that the NRC Staff supplements its environmental review to account for the purportedly new and significant information.70

1. NEPA Imposes a High Standard with Respect to the Need for Supplemental Environmental Analyses or Documentation Under NEPA and NRC regulations, the NRC Staff is obligated to undertake a supplemental EIS only when it is presented with substantial changes in the proposed action that are relevant to environmental concerns or new and significant circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts after the EIS is assembled.71 The U.S. Supreme Court has held that an agency need not supplement an does not foreclose implementation of any new rules originating from the pending rulemaking petition.)

(quoting Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI 23, 56 NRC 230, 240 (2002)).

70 See Suspension Petition at 4.

71 See 10 C.F.R. §§ 51.92(a)(1)-(2), 51.72(a)(1)-(2).

15

EIS every time new information comes to light after the EIS is finalized.72 In determining whether new information requires supplementation, courts apply a rule of reason that turns on the value of the new information to the still pending decision-making process.73 Specifically, if there remains major federal action to occur, and if the new information is sufficient to show that the remaining action will affec[t] the quality of the human environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.74 The Commission has looked to federal jurisprudence in construing its obligation to prepare supplemental environmental analyses in response to potentially new and significant information. It has summarized the applicable standard as follows: A supplemental EIS is needed where new information raises new concerns of sufficient gravity such that another, formal in-depth look at the environmental consequences of the proposed action is necessary.

The new information must paint a seriously different picture of the environmental landscape.75 Thus, not all new information that might emerge following issuance of an EIS requires a supplement to the impacts analysisonly that which significantly alters the findings and conclusions in the EIS.76 It is not enough that the information may be worthy of further inquiry 72 See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 373 (1989) (stating that a requirement to supplement an EIS every time new information comes to light would render agency decisionmaking intractable, always awaiting updated information only to find the new information outdated by the time a decision is made).

73 Id. at 374.

74 Id. (emphasis added).

75 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-06-3, 63 NRC 19, 28 (2006)

(quoting Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir. 1984) (holding that new information regarding biological effects of extremely low frequency electromagnetic radiation was not of such significance as to find that the Navy was arbitrary or capricious in not responding with a supplemental environmental impact statement)); Friends of the River v. FERC, 720 F.2d 93, 109 (D.C. Cir. 1983) (holding that a decision to grant a license for the construction of a hydroelectric power plant would not have to be continually reassessed every time new forecasts for power consumption came to light if such forecasts were speculative and subject to frequent changes, because review and reassessment of [a licensing] decision, absent sufficient reason, should not continue indefinitely).

76 Hydro Res., Inc. (P.O. Box 777, Crownpoint, NM 87313), CLI-06-29, 64 NRC 417, 419, 421-22 (2006).

16

or may be considered important research.77 Similarly, a petitioners mere pointing to a piece of information and speculating that the results of the environmental risk analysis may be different is insufficient to trigger the need for supplemental NEPA analyses or documentation.78

2. The Suspension Petition and Rulemaking Petition Have Not Identified Any New and Significant Information Related to Davis-Besse License Renewal As a threshold matter, the Suspension Petition and the Rulemaking Petition have not identified any new and significant information related to Davis-Besse license renewal. Neither of the petitions addresses the environmental documents for Davis-Besse (e.g., the Draft SEIS) to show how those documents are affected, and why the information identified by Intervenors is significant. In particular, Intervenors have not shown that the Rulemaking Petition raises environmental impacts that differ significantly from the impacts that the NRC has already reviewed and addressed in the Draft SEIS for Davis-Besse license renewal.79 Notably, Intervenors do not even allege that the type of event evaluated in the Consequence Study (a low-likelihood seismic event leading to draining of the SFP) is even possible at Davis-Besse.

Instead, they reference general information without applying it to this specific licensing action.80

3. The Information in the Expedited Fuel Transfer Proceeding Is Not New and Significant as Evaluated Under NEPA The Suspension Petition does not meet the high standard imposed by NEPA and related case law regarding the need for supplemental environmental analyses or documentation. It relies 77 Wisconsin, 745 F.2d at 420.

78 Blue Ridge Envtl. Def. League v. NRC, 716 F.3d 183, 199 (D.C. Cir. 2013) (quoting Mass. v. NRC, 708 F.3d 63, 76-77 (1st Cir. 2013).

79 S. Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 & 4), CLI-12-11, 75 NRC 523, 533 (2012); see also id. at 534 (Petitioners simply have not shown, from a NEPA perspective, that the Fukushima events or our potential regulatory responses to those events reveal environmental impacts that differ significantly from those the NRC has already studied.).

80 See id. at 533-34 (Petitioners stay motion never even refers to the analyses in the ESP FEIS and the COL FSEIS.).

17

almost exclusively on information in the NRC Staffs Consequence Study. As the Suspension Petition itself acknowledges,81 the environmental impacts (or risks) of an accident are a product of the probability of the accident and the consequences of the accident.82 As discussed below, the Consequence Study does not contain any information that is significantly different than information previously available regarding the probability and consequences of SFP fires. If anything, the Consequence Study indicates that the environmental impacts of a SFP fire are less than previously estimated.

a. Probability of a Spent Fuel Pool Fire The Consequence Study states that the probability of a SFP fire is 1.1 x 10-7 per year without accounting for the SFP mitigation required by 10 C.F.R. § 50.54(hh)(2).83 It further states that the probability is a factor of 20 lower when mitigation is credited.84 Thus, when accounting for § 50.54(hh)(2) mitigation measures, which have been deployed at Davis-Besse, the Consequence Study indicates that the probability of a SFP fire is approximately 6 x 10-9 per year.85 Therefore, when determining the probability of SFP fires at Davis-Besse based upon the Consequence Study, the appropriate probability is approximately 6 x 10-9 per year. That probability is substantially less than the probabilities of SFP fires estimated in previous NRC studies.86 Thus, the probabilities of a SFP fire as used in the Consequence Study cannot be 81 See Suspension Petition at 12.

82 See, e.g., City of New York v. Dept of Transp., 715 F.2d 732, 738 (2d Cir. 1983) (The concept of overall risk incorporates the significance of possible adverse consequences discounted by the improbability of their occurrence.).

83 See Consequence Study at x, 151-52 (including Table 31), 247.

84 See id. at x, 171, 247.

85 See id. at 152, 247.

86 For example, NUREG-1353 estimated that the probability of a SFP fire was 2 x 10-6 per year for two older spent fuel pools. NUREG-1353 at ES-2 and -3. NUREG-1738 estimated the probability of a SFP fire to be 6 x 10-7 to 2 x 10-6 per year for a SFP that has a decay time of one year. NUREG-1738 at 3-7.

18

considered significant new information when determining whether there is a need for a supplemental EIS.87 Furthermore, the probabilities of a SFP fire, as discussed in the Consequence Study, are so small that they render it unnecessary even to consider the potential for a SFP fire under NEPA. As both the courts and the NRC long have recognized, it is not necessary under NEPA to consider those severe accidents that are remote and speculative.88 Although the Commission has not specified a particular threshold probability for designating an accident as remote and speculative, the licensing board in the Calvert Cliffs combined license proceeding held that only events with frequencies of greater than one in a million (1 x 10-6 per year) need to be considered under NEPA.89 Based upon that criterion, a SFP fire as evaluated in the Consequence Study is remote and speculative for purposes of NEPA evaluation.

Also, in 2008, when the Commission denied two rulemaking petitions filed by the Attorney Generals of Massachusetts and California related to SFP accidents, 90 it relied on, inter 87 Citing the Consequence Study, Intervenors also assert that the NRC Staff concluded for the first time that the likelihood of [SFP] fires could be affected by reactor accidents. Suspension Petition at 6. As an initial matter, the portion of the study cited by Intervenors does not support that claim. Instead, it only describes the four broad interplays that can be defined between the SFP and the reactor, and states that [t]o the extent practicable, this study has attempted to qualitatively account for some of these effects. Consequence Study at 28-29. In any event, the Consequence Study does not speak to the effects of reactor accidents on the probability of SFP fires, much less suggest that reactor accidents increase that probability to any appreciable degree.

88 See, e.g., Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 739 (3d Cir. 1989) (It is undisputed that NEPA does not require consideration of remote and speculative risks.); San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1300-01 (D.C. Cir. 1984), rehg en banc granted on other grounds, 760 F.2d 1320 (D.C. Cir.

1985), affd on rehg en banc, 789 F.2d 26 (D.C. Cir. 1986), cert. denied, 479 U.S. 923 (1986); Carolina Envtl.

Study Grp. v. United States, 510 F.2d 796, 799 (D.C. Cir. 1975); Vt. Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-90-4, 31 NRC 333, 335 (1990).

89 See Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), LBP-09-4, 69 NRC 170, 209 (2009).

90 See The Attorney General of Commonwealth of Massachusetts, The Attorney General of California; Denial of Petitions for Rulemaking, 73 Fed. Reg. 46,204 (Aug. 8, 2008) (2008 Rulemaking Denial). Similar to Intervenors Rulemaking Petition, rulemaking petitions requested that the Commission consider purported new and significant information showing that the license renewal GEIS mischaracterized the impacts of spent fuel storage as insignificant, and revoke the regulations that codify this conclusion so as to exclude consideration of spent fuel storage impacts in plant-specific NEPA review documents. See id. at 46,205.

19

alia, its decision in the Shearon Harris SFP expansion proceeding.91 In that proceeding, the licensing board concluded that the probability of the postulated sequence of events resulting in a SFP zirconium fire was conservatively in the range described by the Staff: 2.0E-7 per year (two occurrences in 10 million reactor years) or less.92 The Board concluded that an event having this probability of occurrence falls within the category of remote and speculative matters.93 The Commission affirmed the boards decision, and the U.S. Court of Appeals for the D.C.

Circuit upheld the Commissions decision.94 Thus, by any reasonable standard, an accident with a probability of 6 x 10-9 per year is remote and speculative. In fact, the Commission itself has found that SFP accidents are remote.95 In summary, given prior NRC determinations that SFP fires are remote events, and given the substantially lower probability of a SFP fire as identified in the Consequence Study and resulting from the protective and mitigative features for Davis-Besse, it is evident that the potential for a SFP fire at Davis-Besse is remote and speculative. As a result, the Commission may reject the Suspension Petition on that basis alone, without considering any further information from the Consequence Study related to SFP fires. Nevertheless, even if that information is considered, it would not represent significant new information, as discussed below.

91 See id. at 46,210 (citing Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-01-9, 53 NRC 239, 244-45 (2001)).

92 Shearon Harris, LBP-01-9, 53 NRC at 267.

93 Id. at 268.

94 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370 (2001), pet. for review denied, sub nom, Orange County, NC v. NRC, 2002 WL 31098379 (D.C. Cir. 2002).

95 For example, the Commission recently stated that the likelihood of major accidents at spent fuel pools resulting in offsite consequences is remote. Waste ConfidenceContinued Storage of Spent Nuclear Fuel, 78 Fed. Reg. 56,776, 56,797 (Sept. 13, 2013) (Proposed Waste Confidence Rule) (emphasis added). Notably, that finding was based on the probabilities presented in NUREG-1738, not on the even lower probabilities identified in the Consequence Study.

20

b. Consequences of a Spent Fuel Pool Fire Intervenors also fail to identify any information indicating that SFP fire consequences differ significantly from those the NRC has already studied.96 The environmental consequences of a SFP fire are largely dependent on the amount of radioactive material released during the accident. As stated in the Consequence Study, [t]he releases of radioactive material

[calculated by the Consequence Study] are generally comparable to past studies.97 Table 62 of the Consequence Study provides a line-by-line comparison of five evaluations of SFP accidents, including the Consequence Study.98 In each case, the consequences calculated by the Consequence Study are similar to, or substantially less than, the previously-estimated consequences.99 For example, the Consequence Study notes that [t]he collective dose values predicted in this study are consistent with the lower end of the range reported in past SFP studies.100 The Suspension Petition claims that the Consequence Study contains new and significant information related to land contamination.101 It is true that, unlike previous SFP evaluations, the Consequence Study includes a quantitative estimate of land interdiction (i.e., land from which individuals would be temporarily relocated following an accident) as opposed to condemnation (i.e., land from which individuals would be permanently relocated if decontamination and natural processes cannot reduce contamination levels to habitability 96 Vogtle, CLI-12-11, 75 NRC at 534.

97 Consequence Study at x.

98 See id. at 232.

99 See id.

100 Id. at 233 (emphasis added).

101 See Suspension Petition at 5.

21

limits).102 However, the Consequence Study makes clear that this information is not significant for purposes of NEPA.

Specifically, Table 62 of the Consequence Study compares the studys results to the results of several previous evaluations with respect to condemned land from a SFP accident.103 The study states that it is clear that both this study and past studies have predicted that SFP accidents can lead to significant land contamination.104 Thus, the observation that a postulated SFP fire could result in significant land contamination is not new or previously undocumented.

Moreover, Table 62 shows that the Consequence Study predicts substantially less land condemnation (and permanent dislocation of individuals) than previous NRC studies reported in the table.105 In summary, the Consequence Study does not contain significant new information regarding the consequences of a SFP fire, especially as applied to Davis-Besse. On the contrary, the study concludes that the consequences of a SFP fire are similar to, or substantially less than, the consequences of a SFP fire as calculated in previous NRC studies and reflected in 10 C.F.R. Part 51.

102 See Consequence Study at 233-34 (including Table 62).

103 See id. at 232 (Table 62).

104 Id. at 169.

105 See id. at 232 (Table 62). Furthermore, the Consequence Study reports the interdicted land as a range, spanning from 170 to 9,400 square miles. See id. Intervenors cite the upper end of that range, and fail to note that the underlying calculation does not credit the mitigation provided by the equipment required by 10 C.F.R.

§ 50.54(hh)(2). When such equipment is credited, the value drops substantiallyto only 230 square miles.

Id. at 168 (Table 35). As noted above, Davis-Besse includes the mitigation required by 10 C.F.R. § 50.54(hh)(2); therefore, the smaller value is the appropriate measurenot the thousands of square miles cited in the Suspension Petition. Suspension Petition at 11. In particular, the 230 square miles of interdicted land is comparable to or less than the amount of condemned land predicted in previous studies. See Consequence Study at 232 (Table 62).

22

c. Environmental Impacts of a Spent Fuel Pool Fire Intervenors claim that the NRC Staff made a prima facie case or an admission that the environmental impacts of a SFP fire are greater than previously estimated, and that mitigation is likely to be cost-effective.106 However, as the Suspension Petition acknowledges,107 the environmental impacts (or risk) of an accident are a product of the accidents probability and consequences. Thus, even if the consequences of a potential accident are high, the environmental impacts of the accident may still be low if the probability of the accident is low.

Consistent with the findings of previous NRC studies, the Consequence Study indicates that the environmental impacts (i.e., probability times consequences) of a SFP fire are small:

In conclusion, past SFP risk studies have shown that high-density spent fuel storage is safe and risk of a release due to an accident is low. This study is consistent with earlier research conclusions that spent fuel pools are robust structures that are likely to withstand severe earthquakes without leaking.108 This conclusion also is reflected in the NRCs proposed waste confidence rule, which states that the NRC has determined that the risk of a SFP zirconium fire, whether caused by an accident or a terrorist attack, is very low.109 With respect to land interdiction and displacement of individuals, the Consequence Study also demonstrates that the impacts are low.110 As stated in the Consequence Study: High-106 Suspension Petition at 9-10.

107 See id. at 12.

108 Consequence Study at xii (emphasis added). See also Turkey Point, CLI-01-17, 54 NRC at 22 (stating, in the context of a contention regarding the need for an environmental evaluation of SFP accidents, that past studies have demonstrated that the risk of such accidents is acceptably small).

109 Proposed Waste Confidence Rule, 78 Fed. Reg. at 56,797.

110 Consequence Study at 168, 169 (When the number of displaced individuals is weighted by the annual likelihood of occurrence (no greater than 1 x 10-7 per year, and 6 x 10-9 when 10 C.F.R. § 50.54(hh)(2) mitigation is credited) the expected impact is relatively low).

23

density loading releases without 10 CFR 50.54(hh)(2) mitigation measures are calculated to result in release frequency-weighted land interdiction values of 0.001 mi2 per year and 0.5 displaced individuals per year which are arrived at by multiplying the estimated frequency and the estimated consequence.111 As discussed above, with 10 C.F.R. § 50.54(hh)(2) mitigation measures (such as deployed by Davis-Besse), the probability of an SFP fire is lower by a factor of approximately 20.112 When that factor is taken into account, the frequency-weighted impacts due to land contamination are approximately 0.00005 mi2 of interdicted land per year and 0.025 displaced individuals per year. Such impacts are not significant and do not warrant a supplemental EIS under NEPA.

In short, the Consequence Studys overall conclusions regarding the impacts of a SFP fire are consistent with the conclusions of previous studies on SFP fires. NEPA requires EIS supplementation only where new information identifies a previously unknown environmental concern, but not where the new information amounts to mere additional evidence supporting one side or the other of a disputed environmental effect.113 The Consequence Study does not identify a previously unknown environmental concern that requires EIS supplementation.

Accordingly, the Suspension Petition is without basis and should be denied for that reason too.

d. Environmental Impacts of a Spent Fuel Pool Fire Versus a Reactor Accident The NRC has long excluded explicit evaluation of SFP fires in its EISs for nuclear power plants. Instead, the NRCs EISs for nuclear power plants address severe accidents involving the reactor core.114 The reasons for this are readily apparent. As the NRC has stated, even under 111 Id. at x-xi.

112 See id. at x.

113 Vogtle, CLI-12-11, 75 NRC at 533 n.53 (quoting Private Fuel Storage, CLI-06-3, 63 NRC at 28).

114 See, e.g., NUREG-1555, Environmental Standard Review Plan (Oct. 1999), Section 7.2, Severe Accidents.

24

the worst probable cause of a loss of spent-fuel pool coolant (a severe seismic-generated accident causing a catastrophic failure of the pool), the likelihood of a fuel-cladding fire is highly remote (55 FR 38474).115 In other words, the NRC has determined that the probability of SFP accidents is less than reactor accidents.116 Furthermore, the NRC has reached similar conclusions when looking at the environmental impacts of SFP fires versus the impacts of reactor severe accidents. For example, the 1996 GEIS for license renewal discussed qualitatively the reasons why the impact of accidents at SFPs would be much less than that from reactor accidents.117 The 2013 update of the GEIS, which accounts for more recent studies such as NUREG-1738, reached the same conclusion:

[I]t is concluded that the environmental impacts from accidents at SFPs (as [conservatively] quantified in NUREG-1738) can be comparable to those from reactor accidents at full power (as estimated in NUREG-1150[NRC 1990b]). Subsequent analyses performed, and mitigative measures employed since 2001, have further lowered the risk of this class of accidents. In addition, even the conservative estimates from NUREG-1738 are much less than the impacts from full power reactor accidents as estimated in the 1996 GEIS. Therefore, the environmental impacts stated in the 1996 GEIS bound the impact from SFP accidents.118 This is an important point, given that Intervenors assert that the NRC should republish the 2013 revised GEIS for license renewal for public comment.119 But Intervenors present no information in the Suspension Petition or Rulemaking Petition to undermine the GEIS 115 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Main Report (May 1996), Section 6.4.6.1.

116 See, e.g., NUREG-1353, at ES-3 and -4. See also Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station, CLI-10-14, 71 NRC 449, 475 (2010) (quoting 2008 Rulemaking Denial, 73 Fed. Reg. at 46,207-208, 46,211-212) (stating that [spent fuel pool] accidents would not be expected to have a significant impact on total risk for the site because the spent fuel pool accident risk level is less than that for a reactor accident).

117 NUREG-1437, Rev. 1, App. E at E-34.

118 Id. at E-39 (internal citations omitted; emphasis added).

119 See Suspension Petition at 8.

25

conclusions that (1) the environmental impacts of a full-power reactor accident bound those of a SFP accident, and (2) SFP storage impacts are appropriately treated as a Category 1 issue (for which generic analysis is appropriate) in Table B-1 of the NRCs Part 51 regulations.

Furthermore, there is nothing in the Consequence Study that would indicate that the environmental impacts of SFP fires are comparable to the environmental impacts of severe reactor accidents. As a result, there is no reason for the NRC to supplement its FSEIS, or to republish the 2013 revised license renewal GEIS, to account for the information in the Consequence Study on SFP fires, as the environmental impacts of a SFP fire are bounded by the environmental impacts of a severe reactor accident.

e. Spent Fuel Pool Mitigation Measures In its Suspension Petition, Intervenors also claim that the NRC Staff has newly acknowledged that a combination of reduced-density pool storage and dry storage constitutes a reasonable alternative for mitigating the risks of high-density pool storage of spent fuel.120 That argument is both factually and legally unfounded. First and foremost, it runs counter to the NRC Staffs overarching conclusion that the expedited transfer of spent fuel to dry cask storage would provide only a marginal increase in the overall protection of public health and safety, and would not be warranted due to the expected implementation costs.121 120 See id. at 6; Rulemaking Petition at 3. Intervenors also point to an NRC Staff non-concurrence, which claims a billion dollars of benefit from removing spent fuel from pools. See Suspension Petition at 12-13. However, that non-concurrence is not the agencys position. Additionally, it appears that the non-concurrence discusses certain data associated with the high estimates for the combined sensitivity analyses and uses the worst net present value assumptions. This represents a worst case scenario that need not be evaluated under NEPA.

See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 354 (1989). Furthermore, Intervenors ignore the results of other sensitivity analyses that support the NRC Staffs ultimate conclusion that the costs outweigh the benefits (see COMSECY-13-0030, Encl. 1, at 50-53) such that the expedited transfer of spent fuel to dry cask storage would provide only a minor or limited safety benefit, and that its expected implementation costs would not be warranted. COMSECY-13-0030, at 10.

121 Regulatory Analysis at 54. Intervenors cite the Staffs Regulatory Analysis as the basis for its claim, namely sensitivity studies performed as part of the Staffs cost-benefit analyses. See Suspension Petition at 6 (citing Regulatory Analysis at 7, 46-51). The Staff performed sensitivity analyses on key factors to measure each 26

Intervenors argument also fails when viewed within NEPAs legal framework. NEPA requires that possible mitigation measures be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated.122 Given the remote and speculative likelihood of a SFP fire, and thus the very low probability-weighted environmental impacts of a SFP fire, there is no need for the SEIS to consider mitigation alternatives of the type suggested by Intervenors. As the D.C. Circuit has held, an agency may decline to discuss mitigation measures when it believes an actions environmental impact will be minor or fall within the scope of the original NEPA analysis.123 In view of the above, there is no factual or legal basis for Intervenors claim of new and significant information related to SFP risk mitigation strategies.

C. The Suspension Petition Also Should Be Rejected for Procedural Deficiencies Finally, Intervenors claim that the Suspension Petition is timely because it is being filed within ten days of the filing of Petitioners Rulemaking Petition, i.e., the event or circumstance from which the petition arises. 10 C.F.R. 2.323.124 But that assertion is misleading and reflects attributes effect on the overall result. For each sensitivity analysis, the Staff provided a low and a high estimate that combines the range of expected SFP attributes with conservative assumptions to model the range of pool accidents postulated. The Regulatory Analysis states that [t]hese high and low estimates are expected to over and under estimate the consequences from SFP accidents, and that even the high estimate sensitivity cases yielded only a marginal safety improvement in terms of public health and safety. Regulatory Analysis at 44, 54. Thus, the Regulatory Analysis in no way suggests the existence of reasonable mitigation alternatives.

122 Methow Valley, 490 U.S. at 352.

123 See, e.g., Transmission Access Policy Study Grp. v. FERC, 225 F.3d 667, 737 (D.C. Cir. 2000) (upholding agencys decision to decline to adopt mitigation measures to address a problem that it believed might not even develop). See also Pilgrim, CLI-10-14, 71 NRC at 475 (quoting 2008 Rulemaking Petition Denial, 73 Fed.

Reg. at 46,212 (stating that a mitigation measure that addresses SFP accidents would not be expected to have a significant impact on total risk for the site because the spent fuel pool accident risk level is less than that for a reactor accident.)); Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (finding that where a proposed action is a minimizing measure, the agency does not need to supplement the EIS because a minimizing measures effects on the environment will usually fall within the scope of the original NEPA analysis).

124 Suspension Petition at 14. In the past, the Commission has treated suspension petitions as general motions.

See Diablo Canyon, CLI-02-23, 56 NRC at 237; Oyster Creek, CLI-08-23, 68 NRC at 484-85.

27

Intervenors attempt to rehabilitate an otherwise untimely filing. Intervenors state that the Rulemaking Petition is based exclusively on purportedly new and significant information contained in NRC Staff documents.125 The specific sources of that informationas cited in the Suspension Petition itselfinclude the NRC Staffs Consequence Study and associated Regulatory Analysis, issued in October and November 2013, respectively.126 Thus, the documents on which Intervenors rely have been available for four to five months, with drafts of those documents available even earlier.127 Intervenors are not timely in their filing.128 Basic fairness dictates that Intervenors should not be permitted to delay the submittal of their suspension request under the guise that it is timely filed because it is based on a generic rulemaking petition. Accordingly, the Suspension Petition should be rejected as untimely.

IV. CONCLUSION Suspending the NRCs final license renewal decision is an extraordinary remedy that is not warranted and should not be granted under the present circumstances. Intervenors have not substantiated that such extraordinary relief is warranted in this proceeding, as their Suspension Petition is marred by the numerous substantive and procedural deficiencies discussed above. For all of these reasons, the Suspension Petition should be denied in its entirety.

125 See Suspension Petition at 9 (citing Section III of the Rulemaking Petition).

126 See id. at 5-6.

127 Drafts of the Consequence Study and Regulatory Analysis were available even in July 2013 and September 2013, respectively. See COMSECY-13-0030 at 9, available at ADAMS Accession Nos. ML13133A132 (draft Consequence Study) & ML13256A348 (draft Regulatory Analysis).

128 Additionally, even if Intervenors had filed a contention, which they have not, they still would be untimely.

According to the Initial Scheduling Order in this proceeding, new or amended contentions must be filed within 60 days of the date when the material information on which it is based first becomes available. See Initial Scheduling Order at 12 (June 15, 2011) (unpublished). Intervenors filing was well past that deadline.

28

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

/s/ Timothy P. Matthews Timothy P. Matthews Kathryn M. Sutton Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5527 E-mail: tmatthews@morganlewis.com David W. Jenkins Senior Corporate Counsel II FirstEnergy Service Company Mailstop: A-GO-15 76 South Main Street Akron, OH 44308 Phone: 330-384-5037 E-mail: djenkins@firstenergycorp.com Counsel for FirstEnergy Nuclear Operating Company Dated in Washington, D.C.

this 21st day of March 2014 29

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) March 21, 2014

)

CERTIFICATE OF SERVICE I hereby certify that on this date a copy of FirstEnergy Nuclear Operating Company Response to Petition to Suspend Licensing Decisions Pending Completion of Rulemaking was submitted through the NRCs E-filing system.

Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5059 Fax: 202-739-3001 E-mail: sburdick@morganlewis.com Counsel for FirstEnergy Nuclear Operating Company DB1/ 78045135