Text

Beyond Nuclears Hearing Request and Petition to Intervene in License Renewal Proceeding for Fermi Unit 2 Nuclear Power Plant
	ML15338A332
Person / Time
Site:	Fermi
Issue date:	12/04/2015
From:	Lodge T; Beyond Nuclear
To:	; NRC/SECY
	SECY RAS
References
	50-341-LR, ASLBP 14-933-01-LR-BD01, RAS 28616
	Download: ML15338A332 (15)
	v • d • e

December 4, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY OF THE COMMISSION In the Matter of

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DTE ELECTRIC CO.

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Docket No. 50-341-LR (Fermi Nuclear Power Plant, Unit 2)

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BEYOND NUCLEARS HEARING REQUEST AND PETITION TO INTERVENE IN LICENSE RENEWAL PROCEEDING FOR FERMI UNIT 2 NUCLEAR POWER PLANT I. INTRODUCTION Pursuant to 10 C.F.R. §§ 2.309(c), 2.309(f)(1), and 2.309(f)(2), Beyond Nuclear requests a hearing and seeks leave to intervene in the Nuclear Regulatory Commissions (NRCs) combined licensing (COL) proceeding for the Fermi Unit 2 nuclear power plant. This Petition to Intervene is supported by the attached Beyond Nuclear Motion to Reopen the Record of License Renewal Proceeding for the Fermi Unit 2 Nuclear Power Plant (December 4, 2015).

Beyond Nuclear seeks admission of a single place-holder contention challenging the NRCs reliance, in proposing to re-license Fermi Unit 2, on the Continued Storage of Spent Nuclear Fuel Rule (79 Fed. Reg. 56,238, Sept. 19, 2014) (Continued Spent Fuel Storage Rule))

and the Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (NUREG-2157, September 2014) (Continued Spent Fuel Storage GEIS). While Beyond Nuclear seeks admission of its contention, it does not seek to litigate the substantive content in an adjudicatory hearing. Beyond Nuclear has already raised its concerns about the Continued Spent Fuel Storage Rule and the Continued Spent Fuel Storage GEIS in comments on draft versions of those documents, and the NRC has already either rejected or disregarded Beyond

Nuclears comments in the final versions of the Rule and GEIS. Beyond Nuclear also has appealed the final versions to the U.S. Court of Appeals for the District of Columbia Circuit.

See Beyond Nuclear v. NRC, Docket No. 14-1216 (filed October 29, 2014).1 The sole purpose of this contention is to lodge a formal challenge to the NRCs complete and unqualified reliance, in the individual licensing proceeding for Fermi Unit 2, on the legally deficient Continued Spent Fuel Storage Rule and Continued Spent Fuel Storage GEIS. Beyond Nuclear submits its contention with the reasonable expectation that it will be denied, because the subject matter of the contention is generic. Beyond Nuclear respectfully contends that nevertheless, the filing of a contention is the only procedural means offered by Commission regulations for ensuring that any court decision resulting from Beyond Nuclears appeal of the generic Continued Spent Fuel Storage Rule and GEIS will also be applied to the individual Fermi Unit 2 license renewal proceeding, which relies on the Continued Spent Fuel Storage Rule and Continued Spent Fuel Storage GEIS.2 This Petition to Intervene and the attached Motion to Reopen the Record are virtually identical to motions to admit new contentions that have been filed and denied in eleven other reactor licensing proceedings. See e.g., Duke Energy Carolinas, LLC (William States Lee III 1 Beyond Nuclear v. NRC was consolidated with four other cases and is now captioned New York et al. v. NRC, Docket Nos. 14-1210, 14-1212, 14-1216, and 14-1217 (Consolidated) (filed October 31, 2014) (New York II).

2In this context, Beyond Nuclear notes that its contention is not accompanied by a petition for a waiver of 10 C.F.R. §§ 51.71(d), 51.95(c)(2), or any of the other regulations on which the Commission relies to bar members of the public from litigating generic NEPA issues in individual licensing proceedings. No purpose would be served by such a waiver, because Beyond Nuclear does not seek an adjudicatory hearing on the NRCs generic environmental findings. Instead, Beyond Nuclear only purpose in raising its contention is to ensure that any decision by the U.S. Court of Appeals regarding the validity of the Continued Spent Fuel Storage Rule and GEIS will also be applied to this proceeding, in which the NRC relies on them.

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Nuclear Station, Units 1 and 2), et al., CLI-15-15, 81 NRC 803 (2015); Union Electric Co.

(Callaway Nuclear Power Plant, Unit 1), CLI-15-11, 81 NRC 546 (Apr. 23, 2015); DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-12, 81 NRC 551 (2015). These decisions are now on appeal to the U.S. Court of Appeals for the District of Columbia Circuit, where they have been held in abeyance pending the courts decision in New York II.3 If this Petition to Intervene and the attached Motion to Reopen the Record are rejected, Beyond Nuclear intends to appeal the NRCs decision to the U.S. Court of Appeals.

II.

DEMONSTRATION OF STANDING Headquartered in Takoma Park, Maryland, Beyond Nuclear is a national watchdog organization on the nuclear power and radioactive waste industries, as well as on the federal government agencies that are supposed to protect the public and the environment from the risks of radiation and radioactive waste to human health and ecosystems. Beyond Nuclear aims to educate and activate the public about the connections between nuclear power and nuclear weapons and the need to abandon both to safeguard our future, including on the risks associated 3See Missouri Coalition for the Environment v. United States Nuclear Regulatory Commission and the United States of America, D.C. Cir. No. 15-1114 (filed Apr. 23, 2015); Beyond Nuclear vs. United States Nuclear Regulatory Commission and the United States of America, D.C.

Cir. No. 15-1173 (filed June 19, 2015); and Blue Ridge Environmental Defense League v. United States Nuclear Regulatory Commission and the United States of America, No. 15-1258 (filed Aug.

6, 2015) (consolidated by Order dated August 7, 2015 with Blue Ridge Environmental Defense League v. United States Nuclear Regulatory Commission and the United States of America, No. 15-1259 (filed Aug. 6, 2015); Blue Ridge Environmental Defense League v. United States Nuclear Regulatory Commission and the United States of America, No. 15-1260 (filed Aug. 6, 2015);

Nuclear Information and Resource Service v. United States Nuclear Regulatory Commission and the United States of America, No. 15-1261 (filed Aug. 6, 2015); Sustainable Energy and Economic Development Coalition v. United States Nuclear Regulatory Commission and the United States of America, No. 15-1262 (field Aug. 6, 2015); and Beyond Nuclear v. United States Nuclear Regulatory Commission and the United States of America, D.C. Cir. No. 15-1263 (filed Aug. 6, 2015).

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with the inevitable generation of radioactive waste by the nuclear industry. Beyond Nuclear advocates for an energy future that is sustainable, benign, and democratic.

Beyond Nuclear seeks admission of its contention in order to protect its members interest in a clean and healthy environment, including protection from the health and environmental hazards posed by generation of spent fuel at the Fermi Unit 2 nuclear reactor.

The organization has standing to intervene through members who live, work, and/or own property within 50 miles of the Fermi Unit 2 reactor, and their interests may be affected by the results of the proceeding. Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979). Their health, safety, property value, and means of livelihood will be adversely affected if the NRC renews the operating license for Fermi Unit 2 and thereby allows it to operate in a manner that is unsafe or harmful to the environment.

Beyond Nuclear has attached declarations from members Michael Keegan and Keith Gunter, who have authorized Beyond Nuclear to bring this legal action on their behalves.

III.

FACTUAL AND PROCEDURAL BACKGROUND For several decades, the NRC relied on its Waste Confidence decision and Temporary Storage Rule to address, in reactor licensing and re-licensing proceedings, safety and environmental issues associated with spent fuel storage and disposal. In 2010, the NRC published updates to the Waste Confidence decision (the Waste Confidence Update) and Temporary Storage Rule, which were challenged by several state governments, an Indian tribe, and environmental organizations. Waste Confidence Decision Update, 75 Fed. Reg. 81,037 (Dec. 23, 2010) and Temporary Storage Rule, 75 Fed Reg. 81,032 (Dec. 23, 2010). In New York

v. NRC, 681 F.3d 471 (D.C. Cir. 2012) (New York I), the U.S. Court of Appeals vacated the 4

Waste Confidence Update and Temporary Storage Rule, and remanded them to the NRC for further proceedings.

On September 13, 2013, in response to the Courts remand in New York I, the NRC published a proposed rule entitled Waste Confidence - Continued Storage of Spent Nuclear Fuel, 78 Fed. Reg. 56,776 (Sept. 13, 2013) (Proposed Waste Confidence Rule). The NRC also published a Draft Waste Confidence GEIS (NUREG-2157, noticed at 78 Fed. Reg. 56,621 (Sept. 13, 2013)). Beyond Nuclear joined thirty-two other environmental organizations in submitting Comments by Environmental Organizations on Draft Waste Confidence Generic Environmental Impact Statement and Proposed Waste Confidence Rule and Petition to Revise and Integrate All Safety and Environmental Regulations Related to Spent Fuel Storage and Disposal (Dec. 20, 2013, corrected Jan. 7, 2014) (Corrected comments posted on ADAMS at ML14024A297) (Beyond Nuclear et al. Comments). The Beyond Nuclear et al. Comments were supported by expert declarations by Dr. Arjun Makhijani, David Lochbaum, Dr. Gordon Thompson, and Mark Cooper (ADAMS Accession No. ML14030A152). The comments and supporting declarations made detailed and comprehensive criticisms of the Proposed Waste Confidence Rule and Draft Waste Confidence GEIS, charging that they were inadequate to satisfy the National Environmental Policy Act (NEPA) or the Atomic Energy Act on both legal and technical grounds. Other organizations, as well as state and local governments, also filed comments critical of the Proposed Rule and Draft GEIS.

Despite receiving significant criticisms of the Proposed Waste Confidence Rule and Draft Waste Confidence GEIS, in September 2014, the NRC published the Final Continued Spent Fuel Storage Rule and Final Continued Spent Fuel Storage GEIS, without changing its 5

environmental analysis in any significant respect. The Final Continued Spent Fuel Storage Rule also omitted Waste Confidence safety findings required by the Atomic Energy Act. Upon issuance of the Rule and GEIS, the Commission lifted the suspension of licensing and re-licensing for Fermi Unit 2 and other reactors. Calvert Cliffs 3 Nuclear Power Project, LLC et al., CLI-12-08, 80 NRC 71 (2014).

In October 2014, Beyond Nuclear joined seven other environmental organizations in seeking judicial review of the Rule and GEIS by the U.S. Court of Appeals for the District of Columbia Circuit under NEPA, the Atomic Energy Act, and the Administrative Procedure Act, inter alia. Beyond Nuclear et al. v. NRC, No. 14-1216 (filed Oct. 29, 2014). The case was consolidated with similar appeals by the States of New York, Connecticut, Massachusetts, and Vermont; the Prairie Island Indian Community; and Natural Resources Defense Council in New York II. See note 2 above. The case has been briefed and the parties are now awaiting the scheduling of oral argument.

In October 2015, the NRC issued Draft Supplement 56 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (Draft SEIS) for the Fermi Unit 2 nuclear power plant (NUREG-1437, Supp. 56, Oct. 2015). Notice of the issuance of the Draft SEIS was published at 80 Fed. Reg. 68,881 (Nov. 6, 2015). The Draft SEIS cross-references the Continued Spent Fuel Storage GEIS findings regarding the safety and environmental impacts of storing and disposing of spent fuel after license termination. Id. at 4-82.

IV.

CONTENTION 6

A.

Statement of Contention For all of the reasons stated in Beyond Nuclear et al.s Comments on the Proposed Rule and Draft GEIS, the NRC lacks a lawful basis under NEPA for re-licensing Fermi Unit 2 because it relies on the Continued Spent Fuel Storage GEIS. To summarize, the Draft SEIS for Fermi 2 incorporates the Continued Spent Fuel Storage Rule, which in turn incorporates the GEIS, into the Draft SEIS.4 Draft SEIS at 4-82. The Continued Spent Fuel Storage GEIS is inadequate to support the re-licensing of Fermi 2 because it suffers from the following failures:

In blatant violation of NEPA and the Courts decision in New York I, the Continued Spent Fuel Storage GEIS fails to examine the probability and consequences of failure to site a repository. Instead of examining the risk of failing to site a repository, the GEIS rationalizes the risk away, by arbitrarily assuming that spent fuel will be protected by institutional controls for an infinite period of time at reactor sites. This assumption is not only absurd and inconsistent with the Nuclear Waste Policy Act (NWPA), but it also defeats the Courts purpose of forcing NRC to reckon with the environmental consequences of its failure to site a repository.

The GEIS fails to acknowledge that the Continued Spent Fuel Storage Rule is a licensing action, and therefore it distorts the statement of purpose and need for the rule as relating to administrative rather than environmental concerns. As a result, the GEIS also mischaracterizes the alternatives that must be considered. Instead of evaluating alternatives related to storage and disposal of spent fuel, the GEIS examines alternatives related to the administrative question of how to prepare an EIS. The result is a farcical cost-benefit analysis that utterly fails to address alternatives for avoiding or mitigating the environmental impacts of storing spent fuel or siting a repository.

The GEIS analysis of the environmental impacts of extended spent fuel storage ignores the fact that NRC knows very little about the behavior of spent fuel in long-term or indefinite storage conditions, especially the potentially significant effects of long-term dry cask storage on high burnup fuel integrity. In violation of NEPA, the NRC makes no attempt to quantify these uncertainties.

The GEIS fails to fully consider the environmental impacts of spent fuel pool leaks and 4 10 C.F.R. § 51.23(b) states that the Continued Spent Fuel Storage GEIS is deemed incorporated into EISs prepared under 10 C.F.R. § 51.95 (which governs preparation of draft and final supplemental EISs for reactor licensing and license renewal).

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fires. In violation of NEPA, the GEIS relies upon incomplete data, adopts a flawed concept of risk, and ignores a range of causes for accidents.

In violation of NEPA, the GEIS makes no attempt to show how the environmental impacts associated with the Continued Spent Fuel Storage Rule will be quantified and incorporated into cost-benefit analyses for nuclear reactors. Although spent fuel disposal and long-term storage costs are high enough to tip the balance of a cost-benefit analysis for reactor licensing away from licensing, nowhere does the NRC explain how it will take these costs into account in reactor licensing decisions.

In violation of NEPA, the GEIS fails to support the limited conclusions in the Continued Spent Fuel Storage Rule and GEIS regarding the technical feasibility of spent fuel disposal.

The NRC has splintered the analysis of environmental impacts associated with storage and disposal of spent fuel into an array of safety findings and environmental analyses.

While the issues covered by these separate findings and analyses overlap and involve cumulative impacts, the NRC refuses to integrate them. The NRC also refuses to correct inconsistencies between them.

B.

Statement of Basis for the Contention The basis for Beyond Nuclear contention is provided in the Beyond Nuclear et al.

Comments and attachments (including the declarations of Dr. Arjun Makhijani, Dr. Gordon Thompson, David Lochbaum, and Mark Cooper).

C.

Demonstration that the Contention is Within the Scope of the Proceeding The contention is within the scope of the proceeding because it challenges the adequacy of the NRCs NEPA review for the relicensing of the Fermi Unit 2 reactor.

D.

Demonstration that the Contention is Material to the Findings the NRC Must Make to Relicense This Reactor The contention is material to the findings that the NRC must make in order to relicense this reactor because it asserts that the environmental findings in the Continued Spent Fuel Storage Rule and the Continued Spent Fuel Storage GEIS are not supported and are legally 8

deficient.

E.

Concise Statement of the Facts or Expert Opinion Supporting the Contention, Along with Appropriate Citations to Supporting Scientific or Factual Materials The statements of fact or expert opinion supporting the contention are set forth in the Beyond Nuclear et al. Comments and attachments (including the declarations of Dr. Arjun Makhijani, Dr. Gordon Thompson, David Lochbaum, and Mark Cooper).

F.

A Genuine Dispute Exists with the Applicant on a Material Issue of Law or Fact This contention raises a genuine dispute with both the applicant and the NRC regarding whether the NRC has satisfied NEPA for the purpose of renewing the operating license for Fermi Unit 2.

V.

THE CONTENTION IS TIMELY PURSUANT TO 10 C.F.R. §§ 2.309(c) and 2.309(f)(2)

NRC regulations 10 C.F.R. § 2.309(c) and § 2.309(f)(2) call for a showing that:

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

This Petition to Intervene is timely because it does not depend at all on past information.

Instead, it is a place-holder that depends on an event that will occur in the future: the U.S.

Court of Appeals decision in New York II. Beyond Nuclear contention seeks the denial (or revocation) of a renewed license for Fermi Unit 2 in the event that the Court of Appeals reverses 9

the Continued Spent Fuel Storage Rule and/or GEIS.

VI.

CONSULTATION CERTIFICATION PURSUANT TO 10 C.F.R. § 2.323(b)

Counsel for Intervenors hereby certifies that on November 27, 2015, I contacted counsel for the applicant and the NRC Staff in an attempt to obtain their consent to this Hearing Request/Petition to Intervene. Counsel for the NRC staff and for DTE Energy both stated, via email response, that they intend to oppose it.

VII.

CONCLUSION For the reasons stated, Beyond Nuclear respectfully requests that its contention be admitted.

Respectfully submitted, Signed (electronically) by:

/s/ Terry J. Lodge Terry J. Lodge, Esq.

316 N. Michigan St., Suite 520 Toledo, OH 43604-5627 (419) 255-7552 tjlodge50@yahoo.com Counsel for Beyond Nuclear 10

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Secretary of the Commission In the Matter of DTE Electric Company (Fermi Nuclear Power Plant, Unit 2)

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Docket No. 50-341

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December 4, 2015

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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing BEYOND NUCLEARS HEARING REQUEST AND PETITION TO INTERVENE IN LICENSE RENEWAL PROCEEDING FOR FERMI UNIT 2 NUCLEAR POWER PLANT were served by me upon the parties to this proceeding via deposit into the NRCs Electronic Information Exchange system this 4th day of December, 2015.

/s/ Terry J. Lodge Terry J. Lodge (OH #0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 255-7552 Fax (419) 255-7552 Tjlodge50@yahoo.com Counsel for Intervenors 11