ML14304A719

STP Nuclear Operating Company Combined Response to Proposed Contention and Petition to Suspend Related to Alleged Need for Issuance of Waste Confidence Safety Findings

ML14304A719
Person / Time
Site:	South Texas
Issue date:	10/31/2014
From:	Burdick S, Frantz S Morgan, Morgan, Lewis & Bockius, LLP, South Texas
To:	NRC/OCM
SECY RAS
References
50-498-LR, 50-499-LR, ASLBP 11-909-02-LR-BD01, RAS 26825
Download: ML14304A719 (43)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of

)

)

Docket Nos. 50-498-LR STP NUCLEAR OPERATING COMPANY

)

50-499-LR

)

(South Texas Project, Units 1 and 2)

)

October 31, 2014

)

STP NUCLEAR OPERATING COMPANY COMBINED RESPONSE TO PROPOSED CONTENTION AND PETITION TO SUSPEND RELATED TO ALLEGED NEED FOR ISSUANCE OF WASTE CONFIDENCE SAFETY FINDINGS Steven P. Frantz Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5460 Fax: 202-739-3001 E-mail: sfrantz@morganlewis.com COUNSEL FOR STP NUCLEAR OPERATING COMPANY

TABLE OF CONTENTS Page

-i-I.

INTRODUCTION............................................................................................................. 1 II.

BACKGROUND............................................................................................................... 4 A.

Status of the STP License Renewal Proceeding.................................................... 4

1.

The NRCs Ongoing Review of the License Renewal Application.......... 4

2.

The Related Adjudicatory Proceeding....................................................... 5 B.

Evolution of the Waste Confidence Rule and Continued Storage Rule................ 6 III.

THE PROPOSED CONTENTION SHOULD BE REJECTED........................................ 9 A.

The Proposed Contention Does Not Satisfy the Admissibility Requirements......................................................................................................... 9

1.

Legal Standards for Contentions................................................................ 9

2.

The Proposed Contention Constitutes an Impermissible Challenge to the Continued Storage Rule and Therefore Does Not Satisfy Criterion (iii) of 10 C.F.R. § 2.309(f)(1).................................................. 10

3.

The Proposed Contention Does Not Satisfy Criterion (iv) of 10 C.F.R. § 2.309(f)(1)................................................................................. 13

a.

The AEA Does Not Require the NRC to Make Findings Concerning the Safety of Ultimate Disposal of Spent Fuel as Part of a Reactor Licensing Action.......................................... 13

b.

The Commissions 2010 Waste Confidence Decision Did Not Contain AEA-Required Safety Findings........................... 19

c.

The Commission Did Not Abandon Pertinent Waste Confidence Environmental Findings in Its Continued Storage Rule and GEIS................................................................ 21

4.

The Proposed Contention Does Not Satisfy Criterion (iii) of 10 C.F.R. § 2.309(f)(1)................................................................................. 23

5.

The Proposed Contention Does Not Satisfy Criterion (vi) of 10 C.F.R. § 2.309(f)(1)................................................................................. 25 B.

The Filings Suffer from Procedural Deficiencies................................................ 27

1.

The Proposed Contention Does Not Satisfy the Requirements for Untimely Contentions in 10 C.F.R. § 2.309(c)........................................ 27

2.

Petitioners Have Not Submitted a Request for Hearing Pursuant to 10 C.F.R. § 2.309(a)................................................................................. 29

3.

The Motion to Reopen the Record Does Not Satisfy the Applicable Standards.................................................................................................. 29

TABLE OF CONTENTS (continued)

Page

-ii-IV.

THE SUSPENSION PETITION SHOULD BE REJECTED AS SUBSTANTIVELY AND PROCEDURALLY DEFECTIVE....................................... 32 A.

The Suspension Petition Relies Entirely on Erroneous Legal and Factual Premises............................................................................................................... 32 B.

The Suspension Petition Does Not Provide an Adequate Basis to Suspend the NRCs STP License Renewal Decision......................................................... 33

1.

Proceeding with Issuance of the Renewed Licenses Will Not Jeopardize Public Health and Safety........................................................ 34

2.

Suspending the Issuance of the STP Renewed Licenses Would Frustrate Fair and Efficient Decisionmaking........................................... 36

3.

Moving Forward with the Renewed Licenses Will Not Hamper Implementation of Any Potential Rule or Policy Changes...................... 37 V.

CONCLUSION................................................................................................................ 38

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of

)

)

Docket Nos. 50-498-LR STP NUCLEAR OPERATING COMPANY

)

50-499-LR

)

(South Texas Project, Units 1 and 2)

)

October 31, 2014

)

STP NUCLEAR OPERATING COMPANY COMBINED RESPONSE TO PROPOSED CONTENTION AND PETITION TO SUSPEND RELATED TO ALLEGED NEED FOR ISSUANCE OF WASTE CONFIDENCE SAFETY FINDINGS I.

INTRODUCTION In accordance with 10 C.F.R. §§ 2.309(i) and 2.323(c) and the Commissions October 7, 2014 Order,1 STP Nuclear Operating Company (STPNOC) files this combined Answer opposing both (1) the motion for leave to file a new contention (Motion)2; and (2) the petition to suspend final reactor licensing decisions (Suspension Petition) filed by Sustainable Energy and Economic Development (SEED) Coalition, Inc. and Susan Dancer (Petitioners) on September 29, 2014.3 This Answer also opposes the motion to reopen the record in this 1

DTE Elec. Co. et al. (Fermi Nuclear Power Plant, Unit 3), CLI-14-09, 80 NRC __, slip op. (Oct. 7, 2014).

2 See Petitioners Motion for Leave to File a New Contention Concerning the Absence of Required Waste Confidence Safety Findings in the Relicensing Proceeding at South Texas Project Electric Generating Statio[n]

Units 1 and 2 (Sept. 29, 2014) (Motion).

3 See Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Issuance of Waste Confidence Safety Findings (Sept. 29, 2014) (Suspension Petition). Petitioners are among several environmental organizations that filed identical petitions in numerous ongoing Nuclear Regulatory Commission (NRC) licensing proceedings. Petitioners subsequently filed errata to the Suspension Petition to remove references to two organizations that were erroneously listed as participants to the Petition. See Errata to Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Issuance of Waste Confidence Safety Findings (Oct. 1, 2014).

2 proceeding (Motion to Reopen) that Petitioners filed because the record of this proceeding is closed.4 Petitioners request that the Commission admit the proposed contention and suspend the issuance of the renewed licenses for South Texas Project (STP), Units 1 and 2, due to the NRCs alleged failure to make waste confidence safety findings that they claim are required by the Atomic Energy Act of 1954, as amended (AEA).5 Specifically, they assert that the AEA requires the Commission to issue predictive safety findings regarding the safety of permanent spent nuclear fuel (SNF) disposal before issuing any reactor licensing decision.6 They further claim that the NRCs alleged failure to incorporate generic safety findings in its final Continued Storage Rule7 divests the agency of any legal basis for issuing initial or renewed operating licenses for any reactor.8 Petitioners thus contend that [t]he NRC must either issue new generic Waste Confidence safety findings or it must address the same issues in individual reactor licensing proceedings.9 As demonstrated below, the proposed contention should be rejected in its entirety. As a threshold matter, the proposed contention impermissibly challenges the Continued Storage Rule.

Petitioners have not submitted a waiver petition pursuant to 10 C.F.R. § 2.335(b), much less made a prima facie showing that the stringent requirements for a waiver of the rule have been met.10 This alone is grounds for dismissal of the contention.

4 Motion to Reopen the Record for South Texas Project Units 1 & 2 Nuclear Power Plant (Sept. 29, 2014).

5 Motion at 1, 3; Suspension Petition at 7, 10.

6 Motion at 3; Suspension Petition at 7-8.

7 See Final Rule, Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014) (Continued Storage Rule).

8 Motion at 3, 10; Suspension Petition at 7-8.

9 Suspension Petition at 9; see also Motion at 4.

10 See 10 C.F.R. § 2.335(b)-(d); Exelon Generation Co., LLC (Limerick Generating Station, Units 1 & 2), CLI-13-7, 78 NRC 199, 207 (2013).

3 Petitioners also inaccurately characterize the Commissions Continued Storage Rule and associated Generic Environmental Impact Statement (GEIS).11 In doing so, they rely on three plainly erroneous factual assertions: (1) they claim that the AEA requires the NRC to make Waste Confidence safety findings related to ultimate spent fuel disposal at the time of reactor licensing; (2) they claim that the now-vacated 2010 Waste Confidence Decision Update contained safety findings; and (3) they claim that the Commission chose not to replace those findings in its Continued Storage Rule and supporting GEIS. As none of those assertions is correct, the proposed contention does not satisfy the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1) and should be rejected. Furthermore, the GEIS explicitly concludes that a repository is technically feasible, and it provides an analysis to support that conclusion.

Additionally, the proposed contention is procedurally deficient. First, the proposed contention is untimely because it is not based on any information that is new and materially different from information previously available to Petitioners. Indeed, the specific issue raised by Petitioners was resolved by the Commission and the courts over 35 years ago.

Second, Petitioners Motion does not satisfy the NRCs strict standards for reopening a closed hearing record. Specifically, the Motion is not timely, does not address a significant safety or environmental issue, and does not demonstrate that a materially different result would have occurred had the contention been considered previously.

Third, Petitioners have not submitted a sufficient request for hearing, because they have failed to address the standing requirements set forth in 10 C.F.R. § 2.309(d).

Finally, the Suspension Petition should be summarily rejected because it relies on the same flawed legal and factual premises as the proposed contention. Petitioners, moreover, 11 NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, Final Report (Sept. 2014) (GEIS).

4 completely ignore the Commissions well-established criteria for evaluating suspension requests.

Their failure to address those criteria further dictates dismissal of the Suspension Petition. In any event, a reasoned application of those criteria to the present circumstances reveals no basis for granting the extraordinary relief sought by Petitioners. In particular, Petitioners ask only to suspend final licensing decisions, not the ongoing reviews. Therefore, if Petitioners proposed contentionfiled at the same time as the Suspension Petitionis admitted, then their Suspension Petition is irrelevant, because a license would not be issued until the admitted contention has been fully addressed. If their proposed contention is denied, then the Suspension Petition should be denied for the same reason the contention is objectionable.

II.

BACKGROUND A.

Status of the STP License Renewal Proceeding

1.

The NRCs Ongoing Review of the License Renewal Application The operating licenses (OLs) for STP Units 1 and 2 expire at midnight on August 20, 2027 and December 15, 2028, respectively.12 On October 25, 2010, STPNOC submitted its License Renewal Application, requesting that the NRC renew the OLs for STP Units 1 and 2 for an additional 20 years; i.e., until midnight on August 20, 2047 and December 15, 2048, respectively.13 The NRC Staff published the Draft Supplemental Environmental Impact Statement (SEIS) in December 2012 and the Final SEIS in November 2013.14 The NRC Staff published its Safety Evaluation Report (SER) with open items in February 2013, but has not 12 Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Numbers NPF-76 and NPF-80 for an Additional 20-Year Period, STP Nuclear Operating Company, South Texas Project, Units 1 and 2, 76 Fed. Reg. 2426, 2426 (Jan. 13, 2011).

13 Id.

14 See http://www.nrc.gov/reactors/operating/licensing/renewal/applications/south-texas-project.html.

5 published the final SER or completed the Advisory Committee on Reactor Safeguards meetings.15

2.

The Related Adjudicatory Proceeding SEED Coalition filed a Petition to Intervene on March 14, 2011.16 The Atomic Safety and Licensing Board (Board) ruled that the SEED Coalition had failed to proffer an admissible contention, and therefore denied the Petition to Intervene.17 Subsequently, in 2012, SEED Coalition filed with the Board a motion to admit a new environmental contention that challenged the alleged failure of STPNOCs Environmental Report to address the environmental impacts that may occur if a spent fuel repository does not become available.18 The proposed contention was 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),19 which invalidated and remanded the NRCs Waste Confidence Decision Update20 and related final rule.21 Following approval of the final Continued Storage Rule and the associated GEIS, the Commission dismissed the proposed contention.22 Petitioners filed their Motion with the proposed contention, Motion to Reopen, and Suspension Petition, which STPNOC herein opposes, on September 29, 2014. Petitioners provided the following statement of their proposed contention:

15 See id.

16 South Texas Project Nuclear Operating Co. (South Texas Project, Units 1 & 2), LBP-11-21, 74 NRC 115, 120 (2011).

17 Id. at 119, 138.

18 See Petition for Intervention to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at STP Units 1 & 2 (July 9, 2012).

19 See id.

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

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

22 See Calvert Cliffs 3 Nuclear Project, LLC, & UniStar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-08, 80 NRC __, slip. op at 12 (Aug. 26, 2014).

6 The NRC lacks a lawful basis under the Atomic Energy Act (AEA) for issuing or renewing an operating license in this proceeding because it has not made currently valid findings of confidence or reasonable assurance that the hundreds of tons of highly radioactive spent fuel that will be generated during any reactors 40-year license term or 20-year license renewal term can be safely disposed of in a repository. The NRC must make these predictive safety findings in every reactor licensing decision in order to fulfill its statutory obligation under the AEA to protect public health and safety from the risks posed by irradiated reactor fuel generated during the reactors license term.23 The Commission issued its Order CLI-14-09 on October 7, 2014 to consolidate these issues before it and to set a briefing schedule.

B.

Evolution of the Waste Confidence Rule and Continued Storage Rule The evolution of the waste confidence issues is set forth in detail in Section I of the Statement of Considerations (SOC) for the Continued Storage Rule that was published by the NRC in the Federal Register on September 19, 2014.24 In 1977, the Commission denied a petition for rulemaking submitted by the Natural Resources Defense Council (NRDC), which requested that the NRC determine whether high-level radioactive wastes generated in nuclear power reactors can be permanently disposed of without undue risk to the public health and safety and withhold actions on reactor licenses until such an affirmative determination can be made.25 The U.S. Court of Appeals for the Second Circuit affirmed the NRCs conclusion in NRDC v. NRC, 582 F.2d 166 (2d Cir. 1978).26 Shortly thereafter, following challenges to license amendments for spent fuel pool expansion, the U.S. Court of Appeals for the District of Columbia Circuit, in Minnesota v. NRC, 23 Motion at 3-4 (citations omitted).

24 Continued Storage Rule, 79 Fed. Reg. at 56,240-241.

25 Id.; NRDC v. NRC, 582 F.2d 166, 167 (1978).

26 In describing the holding of NRDC, the NRC stated that [t]he court found that the NRC was not required to make a finding under the AEA that SNF could be disposed of safely at the time a reactor license was issued.

Waste Confidence Decision Update, 75 Fed. Reg. at 81,045.

7 602 F.2d 412 (D.C. Cir. 1979), rejected the challenges raised by the petitioners and remanded to the Commission questions about whether an offsite storage solution would be available for spent fuel following completion of operation and, if not, whether spent fuel could be stored safely onsite beyond that time.27 In 1984, in response to the Minnesota v. NRC decision, the Commission issued its initial Waste Confidence Decision and Temporary Storage Rule, which added a new section (10 C.F.R. § 51.23) to its environmental regulations in 10 C.F.R. Part 51.28 The 1984 Waste Confidence Decision included five findings, including Findings 1 and 2 that are most relevant to the proposed contention:

1. The Commission finds reasonable assurance that safe disposal of high level radioactive waste and spent fuel in a mined geologic repository is technically feasible.

2. The Commission finds reasonable assurance that one or more mined geologic repositories for commercial high-level radioactive waste and spent fuel will be available by the years 2007-09, and that sufficient repository capacity will be available within 30 years beyond expiration of any reactor operating license to dispose of existing commercial high level radioactive waste and spent fuel originating in such reactor and generated up to that time.29 The new 10 C.F.R. § 51.23 stated that the Commission had made a generic determination that for at least 30 years beyond the expiration of reactor operating licenses no significant environmental impacts will result from spent fuel storage, and thus no discussion of any environmental impacts from post-operation storage is needed in environmental licensing documents.30 27 Id.

28 See Rulemaking on the Storage and Disposal of Nuclear Waste (Waste Confidence Rulemaking), CLI-84-15, 20 NRC 288, 293 (1984); Final Waste Confidence Decision, 49 Fed. Reg. 34,658, 34,658 (Aug. 31, 1984);

Requirements for Licensee Actions Regarding the Disposition of Spent Fuel Upon Expiration of Reactor Operating Licenses, 49 Fed. Reg. 34,688, 34,694 (Aug. 31, 1984).

29 Final Waste Confidence Decision, 49 Fed. Reg. at 34,658.

30 Requirements for Licensee Actions Regarding the Disposition of Spent Fuel Upon Expiration of Reactor Operating Licenses, 49 Fed. Reg. at 34,694.

8 The Commission first updated the Waste Confidence Decision and Temporary Storage Rule in 199031 and then again in 2010.32 The updates did not change Finding 1, but did update Finding 2. The 2010 update to Finding 2 stated:

Finding 2: The Commission finds reasonable assurance that sufficient mined geologic repository capacity will be available to dispose of the commercial high-level radioactive waste and spent fuel generated in any reactor when necessary.33 The Commission also updated the Temporary Storage Rule at 10 C.F.R. § 51.23 to be consistent with the changes to the findings, but retained the overall approach of a generic conclusion on the environmental impacts.34 Four States, an Indian community, and several environmental groups (but not Petitioners) challenged that 2010 rulemaking in the D.C. Circuit. On June 8, 2012, the D.C. Circuit issued a decision in New York v. NRC, vacating and remanding the Waste Confidence Decision and Temporary Storage Rule update.35 The Court identified deficiencies related to (1) the Commissions conclusion that permanent disposal will be available when necessary; (2) consideration of spent fuel pool leaks in a forward-looking fashion; and (3) consideration of the consequences of potential spent fuel pool fires.

The NRC subsequently decided that it would address the Courts decision generically through rulemaking. The NRC published a proposed rule in the Federal Register (78 Fed. Reg.

31 Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 55 Fed. Reg. 38,472 (Sept. 18, 1990); Waste Confidence Decision Review, 55 Fed. Reg. 38,474 (Sept. 18, 1990).

32 Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 75 Fed. Reg. 81,032 (Dec. 23, 2010); Waste Confidence Decision Update, 75 Fed. Reg. 81,037 (Dec. 23, 2010).

33 Waste Confidence Decision Update, 75 Fed. Reg. at 81,038.

34 Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 75 Fed. Reg. at 81,037.

35 New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012).

9 56,776) on September 13, 2013. The NRC also prepared the Draft GEIS (NUREG-2157) to support the proposed rule.36 The Commission thereafter approved the final Continued Storage Rule and the associated GEIS on August 26, 2014.37 The final Continued Storage Rule was published in the Federal Register on September 19, 2014. Although the current rule (10 C.F.R. § 51.23) does not list the previous Waste Confidence Findings, it codifies the environmental impact determinations reflected in the GEIS, which provides the technical and regulatory bases for the Continued Storage Rule.38 As the SOC explains, the GEIS address[es] the issues assessed in the previous five Findings as conclusions regarding the technical feasibility and availability of a repository and conclusions regarding the technical feasibility of safely storing spent fuel in an at-reactor or away-from-reactor storage facility.39 III. THE PROPOSED CONTENTION SHOULD BE REJECTED As discussed below, the proposed contention is both substantively and procedurally deficient. As a result, it fails to satisfy both the NRCs contention admissibility and timeliness requirements. Accordingly, it should be rejected in its entirety.

A.

The Proposed Contention Does Not Satisfy the Admissibility Requirements

1.

Legal Standards for Contentions In addition to being timely, a newly-proposed contention must meet the strict admissibility requirements set forth in 10 C.F.R. § 2.309(f)(1)(i) to (vi). Under 10 C.F.R.

36 See NUREG-2157, Waste Confidence Generic Environmental Impact Statement, Draft Report for Comment (Aug. 2013).

37 See Staff Requirements - SECY-14-0072 - Final Rule, Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20) (Aug. 26, 2014). The Commission paper and its attachments can be found at ADAMS Accession No. ML14177A482 (package).

38 Continued Storage Rule, 79 Fed. Reg. at 56,242; see also id. at 56,245 (The analysis in the GEIS constitutes a regulatory basis for the rule at 10 CFR 51.23.).

39 Id. at 56,244.

10

§ 2.309(f)(1), a hearing request must set forth with particularity the contentions sought to be raised. Further, each contention must:

(1) provide a specific statement of the legal or factual issue sought to be raised; (2) provide a brief explanation of the basis for the contention; (3) demonstrate that the issue raised is within the scope of the proceeding; (4) demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (5) provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents that support the petitioners position and upon which the petitioner intends to rely; and (6) provide sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact.40 The purpose of these six criteria is to focus litigation on concrete issues and result in a clearer and more focused record for decision.41 The NRCs contention admissibility rules are strict by design.42 Failure to comply with any one of the six admissibility criteria is grounds for rejecting a proposed contention.43

2.

The Proposed Contention Constitutes an Impermissible Challenge to the Continued Storage Rule and Therefore Does Not Satisfy Criterion (iii) of 10 C.F.R. § 2.309(f)(1)

The proposed contention alleges that the Continued Storage Rule is inadequate because it does not include Findings 1 and 2 of the previous Waste Confidence Decision.44 That argument 40 See 10 C.F.R. § 2.309(f)(1)(i)-(vi). The seventh contention admissibility requirement10 C.F.R.

§ 2.309(f)(1)(vii)is only applicable to proceedings arising under 10 C.F.R. § 52.103(b) and, therefore, has no bearing on the admissibility of proposed contentions in this proceeding.

41 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).

42 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), petition for recons. denied, CLI-02-1, 55 NRC 1 (2002).

43 Changes to Adjudicatory Process, 69 Fed. Reg. at 2221; Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

44 Motion at 2-3.

11 impermissibly challenges the Continued Storage Rule, and therefore should be rejected as outside the scope of this proceeding pursuant to 10 C.F.R. §§ 2.335 and 2.309(f)(1).45 The argument raised by the proposed contention was also raised in comments on the GEIS for the Continued Storage Rule. For example, some commenters argued that NRC must assess the availability of sufficient and safe spent fuel disposal capacity when it is necessary.

Those comments were rejected by the NRC on their merits.46 Thus, the proposed contention constitutes a challenge to the content of the Continued Storage Rule.

As provided in 10 C.F.R. § 2.335(a), a proposed contention that challenges an NRC rule is outside the scope of this proceeding because, absent a waiver, no rule or regulation of the Commission... is subject to attack... in any adjudicatory proceeding.47 Petitioners have not requested a waiver, much less satisfied the stringent requirements governing such a waiver request. In order to seek waiver of a rule in a particular adjudicatory proceeding, a petitioner must submit a petition pursuant to 10 C.F.R. § 2.335. The requirements for a Section 2.335 petition are as follows:

45 See Exelon Generation Co. (Limerick Generating Station, Units 1 & 2), CLI-12-19, 76 NRC 377, 384 (2012).

46 GEIS at D-28 to D-32. Additionally, the SOC for the Continued Storage Rule directly explains why the rulemaking no longer includes Findings 1 and 2 regarding a geological repository. Continued Storage Rule, 79 Fed. Reg. at 56,254-255.

47 The Commission consistently has affirmed licensing boards rejections of proposed contentions that challenge generically-applicable rulemaking determinations, including those codified in 10 C.F.R. § 51.23. See, e.g.,

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-10-19, 72 NRC 98, 100 (2010) (directing the board, upon certification of the issue, to deny admission of proposed contention due to the NRCs then-pending rulemaking on waste confidence issues); Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station) & Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13, 20 (2007), reconsid. denied, CLI-07-13, 65 NRC 211 (2007) (holding that any contention on a

[license renewal] Category 1 issue amounts to a challenge to our regulation that bars challenges to generic environmental findings); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI 4, 59 NRC 31, 39 (2004) (finding that an intervenor impermissibly challenged the NRCs rulemaking-associated determinations that spent fuel cladding, once encased in a canister, is no longer important to safety); Curators of the Univ. of Missouri, CLI-95-1, 41 NRC 71, 170 (1995) (Intervenors are, in essence, contending that those regulatory provisions are themselves insufficient to protect the public health and safety.

This assertion constitutes an improper collateral attack upon our regulations.); see also Limerick, CLI-12-19, 76 NRC at 384.

12 The sole ground for petition of waiver or exception is that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or a provision of it) would not serve the purposes for which the rule or regulation was adopted.48 Further, such a petition must be accompanied by an affidavit that identifies the specific aspect or aspects of the subject matter of the proceeding as to which the application of the rule or regulation (or provision of it) would not serve the purposes for which the rule or regulation was adopted, and must state with particularity the special circumstances alleged to justify the waiver or exception requested.49 Petitioners have not submitted such an affidavit.

In accordance with NRC precedent, a Section 2.335 petition can be granted only in unusual and compelling circumstances.50 The Commission decision in the Millstone case states the test for Section 2.335 petitions, under which the petitioner must demonstrate that it satisfies each of the following four criteria:

(i) the rules strict application would not serve the purposes for which [it] was adopted; (ii) the movant has alleged special circumstances that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived; (iii) those circumstances are unique to the facility rather than common to a large class of facilities; and (iv) a waiver of the regulation is necessary to reach a significant safety problem.51 48 10 C.F.R. § 2.335(b).

49 Id. (emphasis added).

50 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-895, 28 NRC 7, 16 (1988), affd, CLI-88-10, 28 NRC 573, 597 (1988), recons. denied, CLI-89-3, 29 NRC 234 (1989) (citation omitted).

51 Millstone, CLI-05-24, 62 NRC at 559-60 (citing Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-89-20, 30 NRC 231, 235 (1989)); see Limerick, CLI-13-7, 78 NRC at 207-09 (discussing the four Millstone factors); Seabrook, CLI-88-10, 28 NRC at 597; see also Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-11-11, 74 NRC at 444-49 (denying intervenors waiver request, filed contemporaneously with petition to intervene, for failure to show special circumstances at Diablo Canyon requiring site-specific analysis of the environmental impacts of spent fuel pool storage).

13 If the petitioner fails to satisfy any of the factors of the four-part test, then the matter may not be litigated, and the presiding officer may not further consider the matter.52 Even if they had submitted a waiver request, Petitioners have not identified any special circumstances with respect to STP Units 1 and 2 that would justify waiver of the Continued Storage Rule.

Furthermore, given the generic nature of the proposed contention, there is no basis for any argument that special circumstances exist in this proceeding. Indeed, Petitioners concede that their concerns are generic in nature.53 In summary, the proposed contention, by its terms, challenges the adequacy of the Continued Storage Rule and, as such, should be rejected as outside the scope of this proceeding in accordance with 10 C.F.R. §§ 2.309(f)(1)(iii) and 2.335(a). Petitioners have not submitted a waiver request pursuant to 10 C.F.R. § 2.335(b), much less satisfied the operative test for the waiver of a rule, as established in Millstone. Nor could they, given the clear lack of any special circumstances that would support a waiver of the rule in this proceeding.

3.

The Proposed Contention Does Not Satisfy Criterion (iv) of 10 C.F.R.

§ 2.309(f)(1)

The proposed contention does not satisfy Criterion (iv) of 10 C.F.R. § 2.309(f)(1) because the issues raised by the proposed contention are not material to the findings that the NRC must make in this proceeding.

a.

The AEA Does Not Require the NRC to Make Findings Concerning the Safety of Ultimate Disposal of Spent Fuel as Part of a Reactor Licensing Action Petitioners assert that [t]he NRC has consistently interpreted the AEA to require the agency make waste confidence safety findings regarding the safety of ultimate spent fuel 52 10 C.F.R. § 2.335(c); see also Millstone, CLI-05-24, 62 NRC at 560 (The use of and in this list of requirements is both intentional and significant. For a waiver request to be granted, all four factors must be met.).

53 Suspension Petition at 3.

14 disposal before issuing a reactor license.54 Contrary to that claim, the AEA includes no such requirement, and the Commission has concluded that there is none.

Petitioners quote Section 182a. of the AEA,55 but the relevant statutory language refers only to the utilization and production of special nuclear material, not to the disposal of such material. Thus, the cited section of the AEA provides no support for Petitioners argument.56 The same argument advanced by Petitioners here was raised more than 35 years ago and expressly rejected by the Commission and the courts at that time. Specifically, in July 1977, the Commission denied a rulemaking petition in which the NRDC contended that the NRC is obligated to make a definitive finding that safe methods of high-level waste disposal are available before it can issue a reactor operating license.57 In rejecting that argument, the Commission considered the applicable statutory requirements imposed by the AEA. For example, under a section entitled Statutory Requirements, the Commission stated:

It seems clear, however, that the statutory findings required by section 103 [of the AEA regarding licensing of nuclear power reactors] apply specifically to the proposed activities and activities under such licenses. (42 U.S.C. 2133). These activities include some interim storage activities for spent fuel.

They do not include the permanent disposal of high-level wastes though wastes are, in fact, generated by operation of the reactor.

That detailed questions regarding the safety or permanent disposal of these wastes are to be addressed in connection with the licensing of an actual high-level waste disposal facility, rather than in connection with licensing of reactor operation, is clear from the statutory treatment of radioactive wastes. Historically, the Atomic Energy Act has provided that nuclear materials licensing proceedings involving possession or use of nuclear materials off-54 Motion at 2; see also id. at 3-9.

55 See id. at 3 n.11, 5-6. Petitioners also state that AEA Section 103d. (42 U.S.C. § 2133(d)) prohibits issuance of reactor licenses that would be inimical to public health safety. See Motion at 5-6. However, Petitioners simply presuppose that the AEA requires such a finding with respect to spent fuel disposal at the time of initial licensing or relicensing. As explained below, that is not the case.

56 See AEA Section 182a., 42 U.S.C. § 2232(a).

57 See Natural Resources Defense Council, Denial of Petition for Rulemaking, 42 Fed. Reg. 34,391 (July 5, 1977), pet. for rev. dismissed sub nom., NRDC v. NRC, 582 F.2d 166 (2d Cir. 1978).

15 site from the facility, which include high-level radioactive waste disposal proceedings, are to be treated as separate and distinct from the facility licensing proceeding itself....

The statutory provisions cited above regarding make it clear that no statutory requirement exists that the Commission determine the safety of ultimate high-level waste disposal activities in connection with licensing of individual reactors.58 Beyond the language of the AEA, the Commission also considered the fact that Congress had ratified NRCs actions to license nuclear power reactors, despite that the problem of permanent disposal of high-level waste had not been solved. In that regard, the Commission found:

In the instant case, Congress was clearly aware of the Commissions actions and the high-level waste disposal question, yet though major revisions of the legislation relating to the Commissions authority were made Congress neither amended the statutes to require such a finding nor did it direct the Commission to stop licensing reactors pending resolution of the waste disposal problem. Such a course of conduct reinforces the conclusion reached above, based on the clear language of the statute, that the Commission is not required to make a finding that radioactive wastes can be disposed of safely prior to the issuance of an operating for a reactor.59 In summary, based on its review of the AEA, its legislative history, and NRC regulations, the Commission concluded that no statutory requirement exists that the Commission determine the safety of ultimate high-level waste disposal activities in connection with licensing of individual reactors.60 This conclusion squarely refutes Petitioners legal basis for the proposed contention.

NRDC appealed the Commissions decision. The U.S. Court of Appeals for the Second Circuit affirmed the NRCs conclusion in NRDC v. NRC, 582 F.2d 166 (2d Cir. 1978). The Court stated:

58 Id. at 34,391-392 (footnotes omitted; emphasis added).

59 Id. at 34,393 (emphasis added).

60 Id. at 34,392.

16 It is our conclusion that NRDC simply reads too much into the AEA. Indeed, if the AEC [Atomic Energy Commission] had interpreted the statute to require the affirmative determination regarding permanent disposal of high-level waste sought by NRDC, no commercial production or utilization facilities would be in operation today. We are satisfied that Congress did not intend such a condition. If it did, the silence from Capitol Hill has been deafening. It is incredible that AEC and its successor NRC would have been violating the AEA for almost twenty years with no criticism or statutory amendment by Congress, which has been kept well informed of developments.61 Accordingly, the Court held that the NRC is not required to withhold action on pending or future applications for nuclear power reactor operating licenses until it makes a determination that high-level radioactive wastes can be permanently disposed of safely.62 Significantly, the NRDC decision was issued long before the Commission issued the findings contained in the Waste Confidence Decision. The Court thus permitted the continued licensing of nuclear power plants, even in the absence of the Waste Confidence Findings now cited by Petitioners.63 No subsequent Court or Commission decision has questioned this conclusion and Petitioners cite none.

The NRC has continued to maintain the position over the years that the AEA does not require a safety finding on the technical feasibility of a repository. For example, in response to 61 NRDC v. NRC, 582 F.2d at 171.

62 Id. at 175; see also id. at 174 (Congress expressly recognized and impliedly approved NRCs regulatory scheme and practice under which the safety of interim storage of high-level radioactive wastes at commercial nuclear power reactor sites has been determined separately from the safety of Government-owned permanent storage facilities which have not, as yet, been established.). The Court thus acknowledged the NRCs long-standing regulatory practice of issuing operating licenses with an implied finding. There is nothing in the Courts decision that would require the NRC to make the type of finding requested by the proposed contention.

63 The SOC for the 2014 Continued Storage Rule notes that when the Commission denied NRDCs rulemaking petition in 1977, it stated that as a matter of policy, it... would not continue to license reactors if it did not have reasonable confidence that the wastes can and will in due course be disposed of safely. Continued Storage Rule, 79 Fed. Reg. at 56,240 (quoting Natural Resources Defense Council, Denial of Petition for Rulemaking, 42 Fed. Reg. at 34,393). The SOC further states that the Continued Storage Rule and GEIS do not pre-approve any particular waste storage or disposal site technology, and that individual licensees and applicantsincluding any applicant seeking to build and operate a high-level radioactive waste repository are required to have a license from the NRC before storing or disposing of any spent fuel. Id. at 56,243. These statements reflect the Commissions continuing view that the AEA does not require it to determine the safety of ultimate high-level waste disposal activities in connection with the licensing of individual reactors.

17 the 2010 update to the Waste Confidence Rule, commenters argued that the AEA precludes the NRC from licensing any new nuclear power plant or relicensing any existing plant because the NRC has no well-documented safety findings supporting its conclusion that there is reasonable confidence that spent fuel can in due course be disposed of safely.64 In response, the NRC reiterated the conclusions from the NRDC case and stated:

The Commission will make the safety finding with respect to SNF disposal envisioned by the commenters in the context of a licensing proceeding for a geologic repository. The Commission does make the safety findings with respect to storage of SNF envisioned by the commenters in the context of licensing proceedings for NPPs [nuclear power plants] and ISFSIs

[independent spent fuel storage installations] for the terms of those licenses.65 The proposed contention attempts to discount the NRDC case on several grounds. None of those grounds has merit.

First, Petitioners argue that NRDC addressed the need for definitive findings regarding the safety of repository disposal of spent fuel, whereas the proposed contention is only requesting the NRC to make a reasonable assurance finding of safe disposal of spent fuel.66 However, NRDC does not draw a distinction between a definitive finding and a reasonable assurance finding with respect to the requirements of the AEA.

Both the Commission and the Court referred to the NRCs implied finding of reasonable assurance [of] safe permanent disposal of spent fuel as part of its practice of issuing operating licenses for reactors.67 However, neither the Commission nor the Court found that such an implied finding of reasonable assurance was required by the AEA. To the contrary, the 64 Waste Confidence Decision Update, 75 Fed. Reg. at 81,044.

65 Id. at 81,045.

66 Motion at 8.

67 NRDC v. NRC, 582 F.2d at 170; see also Natural Resources Defense Council, Denial of Petition for Rulemaking, 42 Fed. Reg. at 34,391.

18 Commission explicitly categorized such a finding under the heading of Policy Considerations rather than Statutory Requirements.68 Furthermore, the Commission rejected the concept that the AEA requires either a definitive finding or a reasonable assurance finding, stating:

Even if, contrary to the Commissions view, some kind of prior finding on waste disposal safety were required under the statutory scheme, such a finding would not have to be a definitive conclusion that permanent disposal of high-level-wastes can be accomplished safely at the present time.69 This passage clearly indicates that the Commission did not consider any finding, whether definitive or not, to be required by the statute.

Second, Petitioners argue that, [b]y failing to promulgate new Waste Confidence findings after the Court of Appeals vacated the 2010 [Waste Confidence Decision] Update, the NRC has eliminated a necessary element of its AEA-required safety determination for this reactor.70 However, while the text of the Continued Storage Rule does not include Findings 1 (technical feasibility of a geologic repository) and 2 (availability of a repository) from the Waste Confidence Decision, the Commission did not revoke the implicit finding of reasonable assurance that is discussed in the NRDC case. Significantly, NRDC was decided years before the Commission issued its 1984 findings in the Waste Confidence Decision.71 In NRDC, the Commission and the Court permitted continued licensing of nuclear power plants, despite the fact that Findings 1 and 2 in the Waste Confidence Decision did not yet exist. Since the NRDC case was not predicated upon Findings 1 and 2 in the Waste Confidence Decision, the absence of 68 Cf. Natural Resources Defense Council, Denial of Petition for Rulemaking, 42 Fed. Reg. at 34,393 with Natural Resources Defense Council, Denial of Petition for Rulemaking, 42 Fed. Reg. at 34,391. The NRC has continued to classify that statement as a policy consideration, not as a legal requirement under the AEA. See GEIS at D-30.

69 Natural Resources Defense Council, Denial of Petition for Rulemaking, 42 Fed. Reg. at 34,393 (emphasis added).

70 Motion at 9.

71 Requirements for Licensee Actions Regarding the Disposition of Spent Fuel Upon Expiration of Reactor Operating Licenses, 49 Fed. Reg. 34,694 (Aug. 31, 1984).

19 such findings from the Continued Storage Rule has no bearing on whether the NRC is complying with its obligations under the AEA as determined in NRDC.

Third, Petitioners point to the subsequent Court decisions in Minnesota v. NRC72 and New York v. NRC,73 arguing that those cases are relevant to the licensing of nuclear power plants.

However, neither of those cases took any position that is inconsistent with the Commissions and the Courts conclusions in the NRDC case. To the contrary, in Minnesota v. NRC the Court did not require the NRC to go beyond NRDC. Instead, the Court remanded the issue to the NRC to consider whether under the National Environmental Policy Act (NEPA) there was reasonable assurance that a repository would be available by the time of expiration of the plants operating license and, if not, whether there was reasonable assurance that spent fuel could be safely stored at the plant beyond those dates.74 Thus, Minnesota v. NRC involved issues related to reasonable assurance of safe storage beyond the term of a plants operating license, not reasonable assurance of safe disposal in a repository. Furthermore, New York v. NRC is not relevant at all to the AEA, since it deals with the NRCs obligations under NEPA.

b.

The Commissions 2010 Waste Confidence Decision Did Not Contain AEA-Required Safety Findings Petitioners also claim that the now-vacated 2010 Waste Confidence Decision Update contained safety findings that the Commission failed to replace or re-promulgate in the 2014 Continued Storage Rule. Petitioners then argue that the Commission must now make such findings in individual licensing proceedings because the Continued Storage Rule does not contain such a finding.75 72 Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979).

73 New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012).

74 Minnesota v. NRC, 602 F.2d at 418.

75 Motion at 1-4, 9.

20 Petitioners are mistaken. First, the 2010 Waste Confidence Decision Update findings on the technical feasibility of a repository were not safety findings made under the AEA. Instead, they were environmental findings made under NEPA. The Commission was explicit on this point in the Waste Confidence Decision Update, stating that the NRCs update to the Waste Confidence Decision and Rule are not licensing decisions or determinations.76 Rather, [t]he revised findings and generic determination are conclusions of the Commissions environmental analyses, under NEPA, of the foreseeable environmental impacts stemming from the storage of SNF after the end of reactor operation.77 The SOC for the Continued Storage Rule further reflects the NEPA underpinnings of the NRCs previous Waste Confidence proceedings and findings:

Historically, the Commissions Waste Confidence proceeding represented the Commissions generic determination and generic environmental analysis that spent fuel could be stored safely and without significant environmental impacts for a period of time past the licensed life for operation of a reactor. This generic environmental determination was reflected in 10 CFR 51.23, which addressed the NRCs NEPA obligations with respect to the continued storage of spent fuel.78 The SOC also makes clear that the new Continued Storage Rule (like the predecessor Waste Confidence Decision) is not a substitute for licensing actionsincluding the licensing of a high-level radioactive waste repositorythat typically include site-specific NEPA and safety analyses.79 As such, there simply is no factual basis for the central premise underlying the 76 See Waste Confidence Decision Update, 75 Fed. Reg. at 81,044.

77 Id. at 81,044-045.

78 Continued Storage Rule, 79 Fed. Reg. at 56,241-242 (emphasis added). In this regard, Petitioners reliance on New York v. NRC, 681 F.3d at 474, is misplaced. The generalized findings of reasonable confidence to which Petitioners refer (Suspension Petition at 9) are fundamentally environmental findings made as part of the Waste Confidence proceedings, not AEA-mandated predictive safety findings. Id.

79 Continued Storage Rule, 79 Fed. Reg. at 56,243.

21 proposed contention; i.e., that the Commissions previous Waste Confidence Decision Update contained safety findings related to the feasibility and safety of spent fuel disposal.

Petitioners also cite to the NRCs brief in New York v. NRC for the proposition that the findings in the Waste Confidence Decision fulfill[ed] NRCs important responsibilities under the AEA.80 However, New York v. NRC was a NEPA case, not an AEA case. Furthermore, the NRCs brief in that case did not explain, or otherwise provide, any basis for that proposition, and the Court never mentioned the AEA in its decision. In light of the lack of relevance of NRCs statement to the case and the absence of any explanation or support for that statement, it is not entitled to any weight in this proceeding.

Finally, the proposed contention argues that the GEIS for the Continued Storage Rule recognizes that the safety finding must be made as part of individual licensing actions.81 However, Petitioners have quoted that statement out of context. In context, the quoted statement applies to safety determinations regarding continued storage of spent fuel at the reactor site, not a safety finding regarding the technical feasibility of a repository.82

c.

The Commission Did Not Abandon Pertinent Waste Confidence Environmental Findings in Its Continued Storage Rule and GEIS Petitioners claim that the Commission has effectively abandoned its previous Waste Confidence findings.83 That claim is substantively incorrect and, indeed, is contrary to Commission statements in the SOC for the Continued Storage Rule.

As discussed above, the current rule (10 C.F.R. § 51.23) does not list the previous Waste Confidence Findings. However, it codifies the environmental impact determinations reflected 80 Motion at 6.

81 Id. at 11 n.52.

82 GEIS, Vol. 2, App. D at D-9.

83 See Motion at 3 (In the Continued Storage Rule recently issued by the NRC on remand from the Courts decision, the NRC chose not to replace the vacated Waste Confidence findings.); see also id. at 8-9.

22 in the GEIS, which provide the technical and regulatory bases for the Continued Storage Rule.84 As the SOC explains, the GEIS address[es] the issues assessed in the previous five Findings as conclusions regarding the technical feasibility and availability of a repository and conclusions regarding the technical feasibility of safely storing spent fuel in an at-reactor or away-from-reactor storage facility.85 Particularly relevant here, the issue of the technical feasibility of a geologic repository (Waste Confidence Finding 1) is now discussed in Section B.2.1 of the GEIS, and the availability of a repository (Waste Confidence Finding 2) is now discussed in Section B.2.2 of the GEIS.86 Thus, Petitioners wrongly suggest that the NRC opted not to replace the substantive findings made as part of its previous Waste Confidence proceedings in connection with its latest rulemaking.87 Furthermore, to the extent that Petitioners may be complaining that the Commission has altered the form of its findings, they point to nothing that would suggest that the Commissions findings must be in any particular form. In that regard, as stated in the NRDC case, the Commission has long issued licenses for nuclear power plants with an implicit finding of reasonable assurance that safe permanent disposal would be available,88 and that practice has been upheld by the courts.89 84 Continued Storage Rule, 79 Fed. Reg. at 56,242; see also id. at 56,245 (The analysis in the GEIS constitutes a regulatory basis for the rule at 10 CFR 51.23.).

85 Id. at 56,244.

86 See id. GEIS Section B.2.1 states: Based on the national and international research, proposals, and experience with geologic disposal, the NRC concludes that a geologic repository continues to be technically feasible.

GEIS at B-5. GEIS Section B.2.2 states: In sum, based on experience in licensing similarly complex facilities in the United States and national and international experience with repositories already in progress, the NRC concludes a reasonable period of time for the development of a repository is approximately 25 to 35 years. Id. at B-9.

87 See Motion at 3.

88 Natural Resources Defense Council, Denial of Petition for Rulemaking, 42 Fed. Reg. at 34,393.

89 NRDC v. NRC, supra.

23 In summary, the proposed contention is predicated on several faulty premises that amount to an invalid syllogism: (1) the AEA requires the NRC to make Waste Confidence safety findings related to ultimate spent fuel disposal at the time of reactor licensing; (2) the now-vacated 2010 Waste Confidence Decision Update contained safety findings; and (3) the Commission chose not to replace those findings in its Continued Storage Rule and supporting GEIS. Contrary to these faulty premises of Petitioners, the NRC is not required by the AEA or case law to make a safety finding regarding the technical feasibility of ultimate geologic disposal before licensing a nuclear power reactor; the Waste Confidence Decision did not include safety findings; and the GEIS for the Continued Storage Rule includes a discussion of the technical feasibility of a geologic repository. Accordingly, the proposed contention raises an issue that is not material and should be rejected pursuant to 10 C.F.R. § 2.309(f)(1)(iv).

4.

The Proposed Contention Does Not Satisfy Criterion (iii) of 10 C.F.R.

§ 2.309(f)(1)

The proposed contention does not satisfy Criterion (iii) of 10 C.F.R. § 2.309(f)(1) because the issue raised by the proposed contention is not within the scope of this proceeding.

Contentions are necessarily limited to issues that are germane to the specific application pending before the presiding officer.90 The Commission has stated that [a]djudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review, for our hearing process (like our Staffs review) necessarily examines only the questions our safety rules make pertinent.91 In this regard, the Commission has specifically limited its license renewal safety review to the matters specified in 10 C.F.R. §§ 54.21 and 54.29, which 90 See Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 204 (1998); see also Portland Gen. Elec. Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289 n.6 (1979) (holding that any contention that falls outside the specified scope of the proceeding must be rejected).

91 Fla. Power & Light Co. (Turkey Point Nuclear Power Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 10 (2001);

see also Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,482 n.2 (May 8, 1995).

24 focus on the management of aging of certain systems, structures and components, and the review of time-limited aging analyses.92 Indeed, the safety standards applicable to a license renewal proceeding are specified in 10 C.F.R. § 54.29(a). Those standards pertain to:

(1) managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified to require review under § 54.21(a)(1); and (2) time-limited aging analyses that have been identified to require review under § 54.21(c).

Thus, the potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs are the issues that define the scope of the safety review in license renewal proceedings.93 The issues raised by the proposed contention do not pertain to any of those safety issues that fall within the scope of a license renewal proceeding. To the contrary, the proposed contention addresses whether the AEA requires currently valid findings of confidence or reasonable assurance that the hundreds of tons of highly radioactive spent fuel that will be generated during any reactors... 20-year license renewal term can be safely disposed of in a repository.94 It further claims that [t]he NRC must make these predictive safety findings in every reactor licensing decision in order to fulfill its statutory obligation under the AEA to protect public health and safety from the risks posed by irradiated reactor fuel generated during the reactors license term.95 These issues do not relate to the potential detrimental effects of aging as specified in 10 C.F.R. Part 54.

92 See Turkey Point, CLI-01-17, 54 NRC at 7-8; Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2),

CLI-02-26, 56 NRC 358, 363 (2002).

93 Turkey Point, CLI-01-17, 54 NRC at 7. Detrimental aging effects can result from, for example, metal fatigue, erosion, corrosion, thermal and radiation embrittlement, microbiologically induced effects, creep, and shrinkage. See id. at 7-8.

94 Motion at 3.

95 Id. (citations omitted).

25 Accordingly, the proposed contention is outside the scope of this proceeding and should be dismissed for failing to satisfy 10 C.F.R. § 2.309(f)(1)(iii).

5.

The Proposed Contention Does Not Satisfy Criterion (vi) of 10 C.F.R.

§ 2.309(f)(1)

The proposed contention does not satisfy Criterion (vi) of 10 C.F.R. § 2.309(f)(1) because it does not show that a genuine dispute exists on a material issue of law or fact.

The proposed contention argues that, because Findings 1 and 2 from the Waste Confidence Decision are not contained in the Continued Storage Rule, the NRC has not made a finding regarding the technical feasibility of a repository. However, the proposed contention mischaracterizes the rulemaking proceeding for the Continued Storage Rule. As the SOC for the Continued Storage Rule explains, the GEIS addresses the issues assessed in the previous five Findings as conclusions regarding the technical feasibility and availability of a repository, and conclusions regarding the technical feasibility of safely storing spent fuel in an at-reactor or away-from-reactor storage facility.96 In particular, Section B.2 of the GEIS for the Continued Storage Rule includes an analysis of the technical feasibility of a repository explicitly and concludes that a repository is technically feasible. For example, page B-2 of the GEIS includes the following conclusions:

• The Commission has consistently determined that current knowledge and technology support the technical feasibility of deep geologic disposal.

• Today, the consensus within the scientific and technical community engaged in nuclear waste management is that safe geologic disposal is achievable with currently available technology (see, e.g., Blue Ribbon Commission on Americas Nuclear Future [BRC 2012], Section 4.3).

• Since 1984, the technical feasibility of a geological repository has moved significantly beyond a theoretical concept.

96 Continued Storage Rule, 79 Fed. Reg. at 56,244.

26

• Ongoing research in both the United States and other countries supports a conclusion that geological disposal remains technically feasible and that acceptable sites can be identified.

Additionally, the SOC for the Continued Storage Rule explicitly states that the NRC has determined that a repository is technically feasible.97 Contrary to the allegations in the proposed contention, these conclusions are not deficient. First, Petitioners argue that the conclusions in the GEIS and the SOC are insufficient because they are made without any level of assurance.98 However, unlike NRCs previous findings, the current GEIS and SOC provide an unqualified determination of technical feasibility.

Because the statements in the GEIS and SOC are presented as absolutes, their conclusions regarding the technical feasibility are actually stronger than NRCs previous findings in the Waste Confidence Decision, which only found that there was reasonable assurance of technical feasibility. As the NRC discussed in Section B.2.1 of the GEIS, the findings in the GEIS are based in part upon information that was not available for the last update of the Waste Confidence Decision, including information developed during NRCs review of the Yucca Mountain repository and by the Blue Ribbon Commission.

The proposed contention also argues that the NRCs current views on technical feasibility of a repository are not supported by an environmental impact statement or an environmental assessment.99 That argument is patently frivolous, since the proposed contention itself refers to the discussion on technical feasibility in Section B.2 of the GEIS for the Continued Storage Rule.100 97 Id. at 56,254.

98 Motion at 9.

99 Id. § III.B.3.

100 See id. at 9. Footnote 45 of the Motion includes a placeholder citation that states [CITE]. In versions of the Motion filed by petitioners in other proceedings, that same footnote specifically references GEIS at B-2.

27 In summary, the proposed contention is based upon a mischaracterization of the rulemaking record for the Continued Storage Rule. Contrary to the arguments of Petitioners, the rulemaking record for the Rule including the GEIS contains an analysis and conclusions regarding the technical feasibility of a repository. It has long been held that mischaracterizations of the record are not sufficient to establish that a genuine dispute exists on a material issue of law or fact.101 Because the proposed contention is based upon a mischaracterization of the rulemaking record, it does not satisfy 10 C.F.R. § 2.309(f)(1)(vi) and should be rejected.

B.

The Filings Suffer from Procedural Deficiencies In addition to its failure to satisfy several of the criteria in 10 C.F.R. § 2.309(f)(1),102 Petitioners filings should be rejected for failure to satisfy procedural requirements.

1.

The Proposed Contention Does Not Satisfy the Requirements for Untimely Contentions in 10 C.F.R. § 2.309(c)

Petitioners filings should be rejected for failure to satisfy requirements for an untimely contention. 10 C.F.R. § 2.309(c) states:

Hearing requests, intervention petitions, and motions for leave to file new or amended contentions filed after the deadline in paragraph (b) of this section will not be entertained absent a determination by the presiding officer that a participant has demonstrated good cause by showing that:

101 See, e.g., Crowe Butte Res. Inc. (In Situ Leach Facility, Crawford, Neb.), CLI-09-9, 69 NRC 331, 363 (2009)

(affirming a licensing boards dismissal of a proposed safety contention as lacking adequate support and failing to demonstrate a genuine dispute, in part because petitioners mischaracterize the application); Tenn. Valley Auth. (Bellefonte Nuclear Power Plants Units 3 & 4), LBP-08-16, 68 NRC 361, 401 (2008) (stating that a mischaracterization of the Environmental Report does not establish a genuine issue of material fact); Tenn.

Valley Auth. (Bellefonte Nuclear Plant, Units 1 & 2), LBP-10-7, 71 NRC 391, 425 (2010) (finding that the foundational support for the contention is either inaccurate or inadequate to establish that a genuine dispute on a material factual or legal issue exists so as to warrant admission of the contention); Exelon Generation Co.

LLC (Early Site Permit for Clinton ESP Site), LBP-05-19, 62 NRC 134, 179 n.182 (finding a contention inadmissible because an inaccurate comparison cannot be deemed to create a genuine dispute) (citation omitted).

102 In addition to the criteria discussed above, Petitioners admit that the contention is not based upon factual arguments. Motion at 12. Therefore, the proposed contention also could be viewed as failing to satisfy Criterion (v) of 10 C.F.R. § 2.309(f)(1).

28 (i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously available; and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.

A petitioner bears the burden of successfully addressing the stringent late-filing standards.103 The proposed contention does not satisfy any of these criteria. As discussed above in Section III.A.3, it has long been known that the findings in the Waste Confidence Decision are environmental findings, not safety findings. This was not new information that arose from the publication of the Continued Storage Rule in September 2014. Furthermore, as discussed above, the GEIS includes an analysis of the technical feasibility of a repository, and that analysis reaches conclusions that are similar toand, in fact, stronger thanthe conclusions in the Waste Confidence Decision.104 Therefore, (i) the information upon which the filing is based was previously available; (ii) the information upon which the filing is based is not materially different from information previously available; and (iii) the filing has not been submitted in a timely fashion based on the availability of the subsequent information. Accordingly, the proposed contention should be rejected for failure to satisfy 10 C.F.R. § 2.309(c).

103 See, e.g., AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 260-61 (2009).

104 Petitioners claim in their Motion to Reopen that the proposed contention satisfies the requirements of 10 C.F.R.

§ 2.309(c) because they filed it within 30 days of the September 19, 2014 publication of the Continued Storage Rule and that Rule does not include the safety findings from prior versions of the Waste Confidence Decision.

Motion to Reopen at 5-6. As demonstrated above, the Waste Confidence Decision never included safety findings. Therefore, the September 19 publication was not the trigger date for the proposed contention.

29

2.

Petitioners Have Not Submitted a Request for Hearing Pursuant to 10 C.F.R.

§ 2.309(a)

Petitioners are not currently parties to the proceeding and have no pending contentions other than the proposed contention. Under these circumstances, Petitioners are required to submit a request for hearing satisfying the requirements of 10 C.F.R. § 2.309(a), including a demonstration of their standing under 10 C.F.R. § 2.309(d).105 Petitioners have not addressed the standing requirements of 10 C.F.R. § 2.309. The fact that Petitioners supplied such information years ago is not sufficient. The Commission has explained that a petitioner may rely on prior determinations of standing if the petitioner: (1) specifically identifies its prior standing determinations, and (2) shows that its prior standing determinations correctly reflect the current status of its standing.106 Petitioners have done neither of these. Additionally, while Petitioners have attached declarations from various individuals, they have not stated that any of the declarations are for the purpose of establishing the standing of Petitioners. Accordingly, the Motion should be denied for failure to satisfy 10 C.F.R.

§ 2.309(a).

3.

The Motion to Reopen the Record Does Not Satisfy the Applicable Standards Motions to reopen the record are governed by 10 C.F.R. § 2.326(a). That regulation includes the following requirements:

A motion to reopen a closed record to consider additional evidence will not be granted unless the following criteria are satisfied:

105 As stated by the Vogtle combined license licensing board: With the first licensing boards May 2010 unchallenged summary disposition ruling in favor of SNC regarding the sole admitted contention in this proceeding (i.e., contention SAFETY-1), the contested portion of this case was terminated. As a consequence, to interpose a new contention now requires the submission of a fresh intervention petition that fulfills the applicable standards that govern such filings, presumably including an appropriate standing demonstration. S.

Nuclear Operating Co. (Vogtle Elec. Generating Plant, Units 3 & 4), LBP-10-21, 72 NRC 616, 640 (2010),

affd, CLI-11-8, 74 NRC 214 (2011).

106 Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-4, 37 NRC 156, 163 (1993).

30 (1) The motion must be timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; (2) The motion must address a significant safety or environmental issue; and (3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.

Those requirements have not been satisfied in this case.107 First, the Motion to Reopen is not timely. Contrary to Petitioners arguments, the findings in the previous Waste Confidence Decision regarding the technical feasibility of a repository were not safety findings; they were environmental findings.108 In fact, Petitioners could have raised their safety contention years ago (at least as early as 2010 when the Commission stated the findings in question were environmental findings under NEPA and not safety findings under the AEA).109 Accordingly, contrary to Petitioners claims,110 the alleged absence of those findings in the Continued Storage Rule111 should not be viewed as a trigger point for the filing of a safety contention and the Motion to Reopen. Therefore, the proposed 107 In codifying this standard, the Commission emphasized the heavy burden involved and characterized these requirements as high and stringent. Final Rule, Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535, 19,538 (May 30, 1986).

108 See, e.g., Waste Confidence Decision Update, 75 Fed. Reg. at 81,044-045.

109 Id. For a reopening motion to be timely, the movant must show that the issue sought to be raised could not have been raised earlier. Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-775, 19 NRC 1361, 1366 (1984), affd sub. nom. San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), affd on rehg en banc, 789 F.2d 26 (1986).

110 Motion to Reopen at 2-3.

111 In fact, Section B.2 of the GEIS includes conclusions similar to the previous findings in the Waste Confidence Decision regarding the technical feasibility of a repository. Thus, contrary to Petitioners allegations, the Continued Storage Rule does not represent a significant change in NRCs position on the technical feasibility of a repository.

31 contention and the Motion to Reopen are untimely, and the Motion to Reopen should be rejected.112 Second, the Motion to Reopen does not address a significant safety or environmental issue. As the proposed contention itself states, Petitioners are raising a legal issue and not a significant safety or environmental issue.113 Although Petitioners make the conclusory statement in the Motion to Reopen that they are raising a significant safety issue that the NRC has made no currently valid findings of confidence or reasonable assurance, they do not actually identify any safety issue stemming from the alleged failure to make safety findings.114 Furthermore, as discussed above, the Commission has found that a repository is technically feasible, and has also concluded that it is technically feasible to safely store the spent fuel pending disposal in a repository.115 Therefore, the Motion to Reopen does not address a significant safety or environmental issue and accordingly should be denied.

Finally, the Motion to Reopen does not demonstrate that a materially different result would have occurred if the information in the contention had been considered previously.116 As discussed above, the NRC is not required to make a safety finding on the technical feasibility of a repository, and therefore the proposed contention does not raise an issue that is material to licensing. Accordingly, the Motion to Reopen should be denied for failure to demonstrate that a materially different result would have occurred if the proposed contention had been considered previously.

112 In one example, the Appeal Board concluded that a motion to reopen was untimely when it was based on information that had been available almost a year. Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-815, 22 NRC 198, 201 (1985).

113 Motion at 12 (This contention primarily makes legal arguments rather than factual arguments.).

114 Motion to Reopen at 3.

115 Continued Storage Rule, 79 Fed. Reg. at 56,254; see also GEIS Section B.2.

116 See Motion to Reopen at 3-4.

32 In summary, the Motion to Reopen does not satisfy any of the three requirements for reopening of the record. Accordingly, the Motion to Reopen should be denied for failure to satisfy 10 C.F.R. § 2.326(a).117 IV.

THE SUSPENSION PETITION SHOULD BE REJECTED AS SUBSTANTIVELY AND PROCEDURALLY DEFECTIVE A.

The Suspension Petition Relies Entirely on Erroneous Legal and Factual Premises As a threshold matter, the Suspension Petition rests on several patently erroneous factual premises that render the Petition devoid of any foundation in law or in fact. This fact alone warrants dismissal of the Suspension Petition.

First, Petitioners assert that the NRC has consistently interpreted the AEA to require that at the time of reactor licensing, the NRC must make Waste Confidence safety findings regarding the safety of ultimate spent fuel disposal.118 As discussed above in Section III.A.3.a, the AEA includes no such requirement, and the Commission has concluded that there is none.119 This same argument was rejected by the NRC and the courts more than 35 years ago.120 Second, Petitioners also claim that the now-vacated 2010 Waste Confidence Decision Update contained safety findings that the Commission failed to replace or re-promulgate 117 Although Petitioners provide two declarations that they claim support the Motion to Reopen as required by 10 C.F.R. § 2.326(b), those two declarations suffer from the same deficiencies discussed above for why the Motion to Reopen fails to satisfy the requirements of 10 C.F.R. § 2.326(a). Declaration of Dr. Arjun Makhijani in Support of Motions to Reopen the Record of NRC Reactor Licensing and Re-Licensing Proceedings (Sept. 29, 2014); Declaration of Mark Cooper in Support of Motions to Reopen the Record of NRC Reactor Licensing and Re-Licensing Proceedings (Sept. 29, 2014). Namely, they are based on the faulty premise that the NRC must make waste confidence safety findings.

118 Suspension Petition at 6.

119 In Minnesota v. NRC, the Court stated that Congress has chosen to rely on the NRCs (and its predecessors) assurances of confidence that a solution will be reached, and that staying the license amendments necessary for re-racking would effectively shut down the plantsa result the Court found unnecessary under the circumstances. Minnesota v. NRC, 602 F.2d at 418-19.

120 Natural Resources Defense Council, Denial of Petition for Rulemaking, 42 Fed. Reg. at 34,392 (concluding that no statutory requirement exists that the Commission determine the safety of ultimate high-level waste disposal activities in connection with licensing of individual reactors); NRDC v. NRC, 582 F.2d at 175 (holding that the NRC is not required to withhold action on pending or future applications for nuclear power reactor operating licenses until it makes a determination that high-level radioactive wastes can be permanently disposed of safely).

33 in the 2014 Continued Storage Rule.121 As discussed above in Section III.A.3.b, Petitioners are mistaken. There simply is no factual basis for the central premise underlying the Suspension Petition; i.e., that the Commissions previous Waste Confidence Decision Update contained safety findings related to the feasibility and safety of spent fuel disposal.

Third, as discussed above in Section III.A.3.c, Petitioners claim122 that the Commission has effectively abandoned its previous Waste Confidence findings is substantively incorrect and, indeed, is contrary to Commission statements in the SOC for the Continued Storage Rule.

Section B.2 of the GEIS includes an analysis and conclusions related to the technical feasibility of a repository. Thus, Petitioners suggest,123 incorrectly, that the NRC opted not to replace the substantive findings made as part of its previous Waste Confidence proceedings in connection with its latest rulemaking.

In summary, the Suspension Petition is predicated on several faulty premises. As none of those premises is correct, the Suspension Petition is unwarranted and should be summarily rejected.

B.

The Suspension Petition Does Not Provide an Adequate Basis to Suspend the NRCs STP License Renewal Decision The Suspension Petition also should be rejected for failing to include adequate bases and justification for suspension of the STP license renewal decision. Conspicuously, Petitioners fail even to identifymuch less satisfythe well-established criteria that govern requests to suspend licensing actions. That failure is especially egregious given Petitioners representation by 121 Suspension Petition at 7.

122 See id. (In the final Rule recently issued by the NRC on remand from the Courts decision, the NRC chose not to replace the vacated Waste Confidence findings.).

123 See id.

34 counsel and the Commissions explicit application of those criteria in a recent Memorandum and Order (CLI-14-07) rejecting another suspension request filed by the same petitioners.124 In Fermi, the Commission reiterated that the suspension of licensing proceedings or decisions is a drastic action that is warranted only when there are immediate threats to public health and safety or other compelling reasons.125 As discussed in Fermi and 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]... ongoing evaluation.126 As demonstrated below, none of these criteria has been satisfied here.

1.

Proceeding with Issuance of the Renewed Licenses Will Not Jeopardize Public Health and Safety The issues raised in the Suspension Petition relate solely to the future safe disposal of high-level radioactive waste and spent fuel in a mined geologic repository127issues that are separate and distinct from any issue material to issuance of the STP renewed licenses. The ultimate disposal of any spent fuel generated by STP Units 1 and 2 during operation would occur many years in the future, and the safety of such disposal would be the subject of a separate NRC 124 See DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-07, 80 NRC __, slip op. at 8-11 (July 17, 2014).

125 Id. at 8 (quoting Union Elec. Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 158 (2011)).

126 Callaway, CLI-11-5, 74 NRC at 158-59 (quoting Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 380 (2001)). 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, Petitioners have not addressed the factors for a stay. For example, Petitioners 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.

127 See Suspension Petition at 1 (asserting that the NRC lacks a legal basis under the AEA to issue operating licenses or license renewals until it makes valid findings of confidence or reasonable assurance that the spent fuel that will be generated during any reactors license term can be safely disposed of in a repository).

35 licensing action. Petitioners thus fail to show that issuance of the STP renewed licenses, before resolution of the issues they raise, poses an imminent risk to public health and safety.128 Furthermore, as demonstrated above, Petitioners claims regarding the need for Waste Confidence safety findings are without merit. The Commission has made clear that it will make the safety finding with respect to SNF disposal envisioned by [Petitioners] in the context of a licensing proceeding for a geologic repository.129 No such finding is required as part of initial licensing or license renewal for a nuclear power plant.

Finally, Petitioners incorrectly claim that the NRC has not considered the technical feasibility of spent fuel disposal.130 In fact, the NRCs Continued Storage Rule and GEIS indicate precisely the opposite. As stated in the SOC, the GEIS does address the technical feasibility of a repository in Appendix B of the GEIS and concludes that a geologic repository for spent fuel is technically feasible, and that the same analysis applies to the feasibility of geologic disposal for high-level waste.131 As discussed in GEIS Section B.2.1, the consensus within the scientific and technical community engaged in nuclear waste management is that safe geologic disposal is achievable with currently available technology.132 Therefore, Petitioners have presented no information or argument to suggest that the first Callaway criterion is satisfied; i.e., that issuance of STP renewed licenses (or any other nuclear power plant licensing action for that matter) will jeopardize public health and safety.

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

129 Waste Confidence Decision Update, 75 Fed. Reg. at 81,045.

130 Suspension Petition at 4, 9.

131 Continued Storage Rule, 79 Fed. Reg. at 56,250.

132 Id. at 56,251.

36

2.

Suspending the Issuance of the STP Renewed Licenses Would Frustrate Fair and Efficient Decisionmaking The Suspension Petition fares no better with respect to the second Callaway criterion.

The suspension of licensing actions runs counter to the Commissions long-standing commitment to efficient and expeditious processing of applications and associated hearings.133 The unnecessary postponement of licensing adjudications and decisions contravenes the Commissions interest in regulatory finality and sound case management.134 Indeed, staying licensing actions in these circumstances would frustratenot advancethe Commissions objective of promoting expeditious decision-making and regulatory certainty.135 As discussed above, the issues raised by Petitioners relate to the disposal of spent fuel in a geologic repository that would not occur for many years, and which would be the subject of a separate NRC licensing proceeding. Although the siting and licensing of such a facility are complex endeavors that involve many variables, the SOC for the Continued Storage Rule plainly reflects the Commissions view that the deployment of a repository is technically feasible within the timeframes discussed therein.136 Thus, suspending this or other NRC licensing decisions would not advance fair and efficient decision making.

Furthermore, in addition to the Suspension Petition, Petitioners have submitted a proposed contention that raises the same issue; i.e., the alleged need to reinstate the Waste Confidence safety findings. The Commission will address the admissibility of the proposed 133 See, e.g., Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 18, 24 (1998).

134 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)).

135 See Petition for Rulemaking to Amend 10 C.F.R. § 54.17(c), CLI-11-1, 73 NRC 1, 4 (2011) (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.).

136 See Continued Storage Rule, 79 Fed. Reg. at 56,251.

37 contention as part of the ongoing adjudicatory proceeding. Accordingly, no final action on the renewed licenses can occur until the NRC sufficiently addresses all pending contentions, including Petitioners pending proposed contention. Thus, suspension of a licensing decision is entirely unnecessary.

3.

Moving Forward with the Renewed Licenses Will Not Hamper Implementation of Any Potential Rule or Policy Changes Petitioners also fail to explain why suspension of the STP license renewal decision is necessary under the third Callaway criterion, which concerns the effect of the licensing action on the NRCs ability to implement possible rule or policy changes. There is time for the Commission to review the proposed contention and to determine whether any actions are needed, without the need to suspend licensing at this time.137 More fundamentally, Petitioners provide no reason to conclude that issuance of the renewed licenses would preclude implementation of any rule or policy changes regarding whether a repository can safely accommodate the disposal of spent fuel and high-level waste (if the Commission were ever to consider making such changes).

In summary, Petitioners have failed to demonstrate that suspending the STP license renewal decision is necessary to protect the public health and safety, facilitate fair and efficient decisionmaking, or ensure implementation of any pertinent rule or policy changes. In particular, Petitioners ask only to suspend final licensing decisions, not the ongoing reviews. Therefore, if Petitioners proposed contentionfiled at the same time as the Suspension Petitionis admitted, then their Suspension Petition is irrelevant, because a license would not be issued until the contested hearing ends. If their proposed contention is denied, then the Suspension Petition is 137 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).

38 also irrelevant for the same reason the contention is objectionable. Accordingly, the Suspension Petition must be rejected.

V. CONCLUSION As demonstrated above, the proposed contention should be rejected in its entirety. First, the proposed contention constitutes an impermissible challenge to the Continued Storage Rule under 10 C.F.R. § 2.335. Second, the proposed contention is based on faulty assertions, and as such, does not satisfy the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1).

Finally, the proposed contention suffers from procedural deficiencies, including untimeliness and failing to satisfy the high standards for motions to reopen.

Additionally, suspending the NRCs final STP license renewal decision is an extraordinary remedy. Petitioners 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.

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

Signed (electronically) by Steven P. Frantz Steven P. Frantz Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5460 Fax: 202-739-3001 E-mail: sfrantz@morganlewis.com COUNSEL FOR STP NUCLEAR OPERATING COMPANY Dated in Washington, DC this 31st day of October 2014

DB1/ 80974883 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

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In the Matter of

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Docket Nos. 50-498-LR STP NUCLEAR OPERATING COMPANY

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50-499-LR

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(South Texas Project, Units 1 and 2)

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October 31, 2014

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CERTIFICATE OF SERVICE I hereby certify that on this date a copy of the STP Nuclear Operating Company Combined Response to Proposed Contention and Petition to Suspend Related to Alleged Need for Issuance of Waste Confidence Safety Findings was submitted through the NRCs E-filing system.

Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5059 Fax: 202-739-3001 E-mail: sburdick@morganlewis.com COUNSEL FOR STP NUCLEAR OPERATING COMPANY