ML18330A294
| ML18330A294 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 11/26/2018 |
| From: | Connolly E, Domeyer T, Eskelsen G, Leidich A, Matthews J, Silberg J, Walsh T Exelon Generation Co, Holtec Decommissioning International, Holtec, Morgan, Morgan, Lewis & Bockius, LLP, Oyster Creek Environmental Protection, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-219-LT, 72-015-LT, License Transfer, RAS 54653 | |
| Download: ML18330A294 (7) | |
Text
4840-3196-3776.v3 November 26, 2018 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of
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Docket No. 50-219-LT Exelon Generation Company, LLC
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72-15-LT
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(Oyster Creek License Transfer)
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Exelon Generation Company, LLC, Oyster Creek Environmental Protection, LLC and Holtec Decommissioning International, LLCs Answer Opposing Sierra Clubs Letter Requesting a Hearing on the Proposed License Transfer of the Oyster Creek Nuclear Generating Station I.
INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(1), Exelon Generation Company, LLC (Exelon),
Oyster Creek Environmental Protection, LLC (OCEP), and Holtec Decommissioning International, LLC (HDI), (collectively, Applicants) submit their answer to the November 1, 2018 letter (Letter) from the New Jersey Sierra Club (Sierra Club). The Letter requests a public hearing regarding Docket No. 50-219; NRC-2018-0175.1 Sierra Club states that it is request[ing] a public hearing on the Oyster Creek license transfer docket because Sierra Club still ha[s] question [sic] that need to answered [sic] before the Nuclear Regulatory Commission approves the transfer of the license from Exelon to Holtec. Letter at 1.
The intent of the Letter is unclear. Because the Letter makes no attempt to meet the Nuclear Regulatory Commissions (NRC or the Commission) requirements to intervene or 1 Sierra Club states that it is requesting a public hearing on NRC-2018-0175. In Docket NRC-2018-0175, the NRC issued an environmental assessment and finding of no significant impact on proposed exemptions allowing for the withdrawal of funds from the Oyster Creek decommissioning trust funds. This docket reference appears to be an error, as the Letter contains no mention of the use of decommissioning trust funds.
4840-3196-3776.v3 to request a hearing, it may be a request by Sierra Club that the NRC host a public meeting regarding Applicants request that the NRC approve the transfer of Renewed Facility Operating License No. DPR-16 for Oyster Creek, and the general license for the Oyster Creek Independent Spent Fuel Storage Installation. If the NRC interprets the Letter as a request for a public meeting, Applicants do not oppose that request.
In the event that the Commission interprets the Letter as a petition to intervene and request for hearing, Applicants submit this Answer. As the following makes clear, the Commissions regulations and case law set forth the requirements that a petitioner must satisfy to demonstrate standing and to propose an admissible contention. The petitioner bears the burden of establishing standing and pleading contentions that meet the Commissions heightened threshold for the admission of contentions. Sierra Clubs one-page Letter wholly fails to meet these standards. Accordingly, the Letterif considered a petition to intervene and a request for hearingmust be denied.
II.
THE PETITION MUST BE DENIED A.
Sierra Club Has Failed to Assert or Demonstrate Standing.
The Atomic Energy Act allows individuals whose interest may be affected by the proceeding to intervene in NRC licensing proceedings. 42 U.S.C. § 2239(a). The Commission has long applied judicial concepts of standing to determine whether a petitioners interest provides a sufficient basis for intervention. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-98-13, 48 N.R.C. 26, 30 (1998). Essential to establishing standing are findings of (1) injury, (2) causation, and (3) redressability. EnergySolutions, LLC (Radioactive Waste Import/Export Licenses), CLI-11-3, 73 N.R.C. 613, 621 (2011). Both the
4840-3196-3776.v3 Commission's Hearing Notice2 for this proceeding and its Rules of Practice require a petitioner to set forth: (1) the nature of its right under the Atomic Energy Act to be made a party to the proceeding; (2) the nature and extent of its property, financial, or other interest in the proceeding; and (3) the possible effect of any decision or order that may be issued in the proceeding on its interest. [T]he petitioner bears the burden to provide facts sufficient to establish standing.
PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 N.R.C. 133, 139 (2010).
Sierra Club makes no effort to demonstrate that it has standing, which alone is reason to deny the Petition. As an organization, it also fails to identify specific members with standing to intervene to support representational standing. Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 389-400 (1979). Additionally, Sierra Club only lists a series of general concerns and questions, admitting that it does not have a position on the license transfer. Letter at 1 (raising nonspecific questions of oversight and transparency, dry cask storage design, shipping, and third-party involvement). At no point does it raise an injury [that] is certainly impending to demonstrate injury-in-fact for standing.
Northwest Airlines, Inc. v. Federal Aviation Admin., 795 F.2d 195, 201 (D.C. Cir. 1986)
(emphasis in original) (citing Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)).
For these reasons, Sierra Club has failed to demonstrate standing.
B.
Sierra Club Has Failed to Put Forth an Admissible Contention.
All contentions must meet the admissibility standards under 10 C.F.R. § 2.309(f)(1).
Specifically, contentions must:
2 Oyster Creek Nuclear Generating Station; Consideration of Approval of Transfer of License and Conforming Amendment, 83 Fed. Reg. 53,119, 53,120 (Oct. 19, 2018); 10 C.F.R. § 2.309(d)(1).
4840-3196-3776.v3 (i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; (vi) In a proceeding other than one under 10 CFR 52.103, provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief.
10 C.F.R. § 2.309(f)(1)(i)-(vi). These standards are enforced rigorously. If any one... is not met, a contention must be rejected. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 N.R.C. 149, 155 (1991) (citation omitted); USEC, Inc.
(American Centrifuge Plant), CLI-06-9, 63 N.R.C. 433, 437 (2006) (These requirements are deliberately strict, and we will reject any contention that does not satisfy the requirements.
(footnotes omitted)).
The Letter failed to advance any contentions. It raised questions on transparency, dry cask storage technology, the shipment of spent nuclear fuel from the site, and third-party involvement in the project. Letter at 1. However, these questions are not related to the license transfer application, as Sierra Club took no position on the license transfer. Id. Sierra Club cannot raise a contention without specifically addressing the portions of the application that it
4840-3196-3776.v3 claims are in dispute. 10 CFR § 2.309(f)(1)(vi). Additionally, Sierra Clubs questions are insufficient to support a contention: a statement that simply alleges that some matter ought to be considered does not provide a sufficient basis for a contention. Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-93-23, 38 N.R.C. 200, 246 (1993),
review declined, CLI-94-2, 39 N.R.C. 91 (1994). Sierra Clubs questions also fail to meet the other basic requirements of 10 CFR § 2.309(f)(1), such as supporting facts or expert opinion, or a showing that the issue is within the scope of the proceeding.
In short, Sierra Clubs questions do not rise the level of an admissible contention, and Sierra Club has failed to put forth an admissible contention.
III.
CONCLUSION For the foregoing reasons, the Commission should determine that Sierra Club lacks standing in this proceeding and has not put forth an admissible contention. Therefore, to the extent that the Letter is treated as a hearing request and petition to intervene, Applicants respectfully request that it be denied.
Tamra S. Domeyer Exelon Generation Company, LLC 4300 Winfield Road, 5th Floor Warrenville, IL 60555 Telephone: 630-657-3753 Facsimile: 630-657-4323 tamra.domeyer@exeloncorp.com Counsel for EXELON GENERATION COMPANY, LLC AND Respectfully submitted, Executed in accord with 10 C.F.R. § 2.304(d)
MORGAN LEWIS & BOCKIUS John E. Matthews Grant W. Eskelsen 1111 Pennsylvania Ave., N.W.
Washington, D.C. 20004 Telephone: 202-739-5524 Facsimile: 202-739-3001 john.matthews@morganlewis.com grant.eskelsen@morganlewis.com
4840-3196-3776.v3 Erin E. Connolly Corporate Counsel Holtec International Krishna P. Singh Technology Campus 1 Holtec Boulevard Camden, NJ 08104 Telephone: (856) 797-0900 x 3712 e-mail: e.connolly@holtec.com Counsel for OYSTER CREEK ENVIRONMENTAL PROTECTION, LLC and HOLTEC DECOMMISSIONING INTERNATIONAL, LLC Jay E. Silberg Timothy J. V. Walsh Anne R. Leidich PILLSBURY WINTHROP SHAW PITTMAN LLP 1200 Seventeenth Street, NW Washington, DC 20036 Telephone: 202-663-8063 Facsimile: 202-663-8007 jay.silberg@pillsburylaw.com timothy.walsh@pillsburylaw.com anne.leidich@pillsburylaw.com November 26, 2018
4840-3196-3776.v3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of
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Docket No. 50-219-LT Exelon Generation Company, LLC
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72-15-LT
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(Oyster Creek License Transfer)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Exelon Generation Company, LLC, Oyster Creek Environmental Protection, LLC, and Holtec Decommissioning International, LLCs Answer Opposing Sierra Clubs Letter Requesting a Public Hearing on the Proposed License Transfer of the Oyster Creek Nuclear Generating Station has been served through the E-Filing system on the participants in the above-captioned proceeding this 26th day of November, 2018.
/signed electronically by Anne R. Leidich/
Anne R. Leidich