ML20311A660
| ML20311A660 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 11/06/2020 |
| From: | Ommen T Elisabeth Haub School of Law, Pace Environmental Litigation Clinic, Riverkeeper |
| To: | NRC/OCM, NRC/SECY |
| SECY RAS | |
| References | |
| 50-003-LT-3, 50-247-LT-3, 50-286-LT-3, 72-051-LT-2, License Transfer, RAS 55857 | |
| Download: ML20311A660 (11) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY AND THE COMMISSION
)
In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, )
INC.; ENTERGY NUCLEAR INDIAN )
POINT 2, LLC; ENTERGY NUCLEAR ) Docket Nos.
INDIAN POINT 3, LLC; HOLTEC ) 50-3 INTERNATIONAL; and HOLTEC ) 50-247 DECOMMISSIONING ) 50-348 INTERNATIONAL, )72-051 L.L.C.; APPLICATION )
FOR ORDER CONSENTING TO ) November 6, 2020 TRANSFERS OF CONTROL OF )
LICENSES AND APPROVING )
CONFORMING LICENSE )
AMENDMENTS )
___________________________________ )
MOTION OF RIVERKEEPER, INC FOR FULL ADJUDICATION OF ITS PENDING CONTENTION PRIOR TO ANY DECISION BY NRC ON THE LICENSE TRANSFER
Riverkeeper (Riverkeeper) respectfully requests, pursuant to 10 C.F.R. 2.1325 (c), that the Nuclear Regulatory Commission (NRC) fully adjudicate Riverkeepers pending petition to intervene and Riverkeepers motion to supplement the basis of its contention, filed on February 12, 2020, and October 27, 2020, respectively, prior to any decision on the pending license transfer application. To the extent necessary to accomplish this adjudication as described above, Riverkeeper respectfully requests a waiver of 10 C.F.R. § 2.1316(a). As outlined in the accompanying declaration, 1 the unusual circumstances surrounding this proceeding, i.e., a pending criminal investigation into Holtec International (Holtec) and ongoing civil litigation that may be determine Holtecs future financial security, both of which go to the heart of whether Holtec is qualified to hold the licenses at issue, necessitates adjudication of Riverkeepers petition before any NRC decision to approve or deny the license transfer.
On September 22, 2020, at a public information session, NRC indicated that NRC staff's decision on the license transfer request may be issued prior to the hearing request being resolved. 2 NRCs responsibilities under the Atomic Energy Act [AEA] are to protect public health and safety and national security and to ensure meaningful opportunities for public participation in license transfer proceedings. See, e.g., A.E.A. § 189-a, 42 U.S.C. 2239. NRC undermines the entire purpose of this proceeding by choosing a segmented review, meant to speed up the process, over the AEAs clear substantive requirements of due process and consideration of the significant issues raised concerning the applicants character, truthfulness, and willingness to abide by NRC regulatory requirements.
1 See Ex. A, Lochbaum Declaration, dated Nov. 6, 2020.
2 Dunne. A., NRC Staff Discuss Timeline For Indian Point Shift To Decommissioning, WAMC (Sept. 25, 2020) available at https://www.wamc.org/post/nrc-staff-discuss-timeline-indian-point-shift-decommissioning
The State of New York and members of Congress have recently submitted letters setting forth in great detail why the license transfer application cannot be granted prior to consideration of the Contentions. 3 Riverkeeper fully joins in these arguments and will not repeat them here.
For the reasons that follow, it is equally if not more important that Riverkeepers contention be adjudicated prior to any license transfer.
A. Issuing a Decision on the License Transfer Before a Full Adjudication of Riverkeepers Contention Would Run Counter to the AEA and Would Violate Riverkeepers Hearing Right. 4 An application of NRCs authority under 10 C.F.R. § 2.1316 (a) to allow the license transfer without first adjudicating the contentions would run counter to congressional intent and text of the AEA. Issuing a decision on the license transfer prior to adjudicating the contention would effectively violate Riverkeepers hearing right under 42 U.S.C. § 2239(a)(1)(A). 5 When a statute requires a "hearing" in an adjudicatory matter, such as licensing, the agency must generally provide an opportunity for submission and challenge of evidence as to any and all issues of material fact. See General Motors Corp. v. Federal Energy Regulatory Commission, 211 U.S. App. D.C. 202, 656 F.2d 791, 795 & n.7 (D.C. Cir. 1981)(emphasis added); Public Service Co. v. Federal Energy Regulatory Commission, 195 U.S. App. D.C. 130, 600 F.2d 944, 955 (D.C. Cir.), cert. denied, 444 U.S. 990, 62 L. Ed. 2d 419, 100 S. Ct. 520 (1979); Independent 3
See generally Letter from the State of New York Office of Attorney General to NRC Commissioners (Oct. 7, 2020) and Letter from Members of the United States House of Representatives and Senate to NRC Commissioners (Oct. 22, 2020).
4 While Riverkeeper recognizes that under NRC regulation 10 C.F.R. § 2.1322 (d), the Commission may forbid parties from requesting special procedures or formal hearings, Riverkeeper does not request a "special procedure" or an additional formal hearing beyond adjudication of its currently pending petition. Therefore, Riverkeeper first urges NRC to use its discretion under 10 C.F.R. § 2.1322 (d) to adjudicate all pending contentions before approving the license transfer.
5 See Amergen Energy Co., L.L.C. (Three Mile Island Nuclear Station, Unit 1), CLI-05-25, 62 NRC 572, 573 (2005)
(Section 189-a (1) (A) of the Atomic Energy Act requires the Commission to offer an opportunity for a hearing in certain kinds of "proceedings" such as those involving transfers of control over licensed facilities).
1
Bankers Association of Georgia v. Board of Governors of the Federal Reserve System, 170 U.S.
App. D.C. 278, 516 F.2d 1206, 1220 (D.C. Cir. 1975); see also Siegel v. A.E.C., 130 U.S. App.
D.C. 307, 400 F.2d 778, 784 (D.C. Cir. 1968) ("the hearing granted by the [A.E.C.] presumably must embrace all relevant matters").
In Union of Concerned Scientists v. NRC (UCS I), the U.S. Court of Appeals held that the NRC may not act to deny the right to a hearing across-the-board on an issue it deems necessary to a licensing determination. 6 Courts have recognized that UCS I held that the NRC may not preclude all parties from raising a specified material issue. Union of Concerned Scientists v. United States Nuclear Regulatory Com., 920 F.2d 50, 54 (1990). Accordingly, the AEA prohibits the NRC from preventing all parties from raising, in a hearing on a licensing decision, a specific issue it agrees is material to that decision. Here, Riverkeepers contention outlines issues that NRC has deemed necessary to its decision, i.e., whether the transferee is qualified to be the holder of the license 7 based on the transferees character, truthfulness, and willingness to abide by NRC regulatory requirements. 8 If NRC approves the license transfer before adjudicating the pending petitions and contentions across-the-board, which it appears to be the intention, NRC will have precluded all of the parties with pending petitions from raising issues which NRC agrees are necessary and material to its decision on the license transfer application. NRCs intended timeline would run counter to the AEA, congressional intent, and due process.
6 See 735 F.2d 1438, 1444 (D.C. Cir. 1984).
7 See 10 C.F.R. § 50.80(c).
8 See Georgia Power Co., et al. (Vogtle Elec. Generating Plant, Units 1 & 2), CLI-93-16, 38 NRC 25, 30-31 (1993)
(citing 10 C.F.R. § 50.80(c), 42 U.S.C. § 2232) (the character of a proposed licensee is an appropriate issue and lack of either technical competence or character qualifications on the part of licensee or applicant is sufficient grounds for the revocation of a license or the denial of a license application.) (citing Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), CLI-80-32, 12 N.R.C. 281, 291 (1980)).
2
The regulatory exception to approving an application prior to an adjudicatory hearing does not apply under these circumstances. Under the 1982 Sholly Amendment, 9 the AEA expressly authorizes NRC to make certain approvals during the pendency of a request for a hearing, however this is narrowly limited to amendments to an operating license or any amendment to a combined construction and operating license, upon a determination by the Commission that such amendment involves no significant hazards consideration. 10 Congress made a choice to exclude license transfers from the scope of 42 U.S.C. § 2239 (2)(A) by only including a reference to certain amendments to operating licenses and excluding any mention of the issuance of licenses themselves or their transfer to new parties. [W]here Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of a contrary legislative intent. Schatz v. Access Grp., Inc., 602 B.R.
411, 425-26 (B.A.P. 1st Cir. 2019) (citing Hillman v. Maretta, 569 U.S. 483, 496 (2013)). The canon of expressio unius est exclusio alteriuswhich translates to the expression of one thing is the exclusion of other things applies in circumstances supporting a sensible inference that the term left out must have been meant to be excluded. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81 (2002). Had Congress intended that decisions on license transfers receive similar expedited treatment by NRC, it would have included such language in the AEA. While certain license transfers may theoretically be akin to amendments, that is not the case here. Accordingly, allowing the transfer to proceed prior to a hearing would violate section 2239(2)(A), which 9
See San Luis Obispo Mothers for Peace v. United States Nuclear Regulatory Com., 799 F.2d 1268, 1269-70 (9th Cir. 1986) (explaining that Prior to 1980, if the NRC staff found that a license amendment presented no significant hazards consideration, the staff issued the amendment without notice or an opportunity for a prior hearing. 42 U.S.C.
§ 2239(a) (1) (1962) (amended 1982). In Sholly v. Nuclear Regulatory Commission, 209 U.S. App. D.C. 59 (D.C.
Cir. 1980), vacated to consider mootness, 459 U.S. 1194 (1983), the District of Columbia Circuit held that the NRC could not make an amendment immediately effective in this manner if there was an outstanding request for a hearing. This decision prompted an amendment to Section 189 (a), enacted in 1982, known as the "Sholly" amendment.).
10 See 42 U.S.C. § 2239 (2)(A).
3
allows for no such exception. Moreover, issuing an approval of the license transfer before adjudicating Riverkeepers contention would result in a failure by NRC to secure full information prior to its determination as required by the AEA. 11 Moreover, Riverkeeper fully joins the State of New York and members of Congress who similarly argue that as a matter of public policy, NRC should hear the pending contentions prior to issuing a decision on the license transfer.
B. Issuing a Decision on the License Transfer Before a Full Adjudication of Riverkeepers Contention Would Not Serve the Purpose for Which 10 C.F.R. § 2.1316 (a) Was Adopted and Thus the Provision Should Be Waived.
Should the Commission nevertheless hold that 10 C.F.R. § 2.1316 (a) can be applicable to this proceeding, Riverkeeper requests a waiver of 10 C.F.R. § 2.1316 (a) in this proceeding.
Section 2.1316 (a) allows NRC staff to approve certain applications while a hearing is pending. 12 Under 10 C.F.R. § 2.335 (b), a participant to an adjudicatory proceeding may petition that the application of a specified Commission rule or regulation be waived, or an exception be made for the particular proceeding. The regulation goes on to state:
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.
10 C.F.R. § 2.335 (b). (emphasis added). As set forth herein and in the supporting declaration, the special circumstances in this matter make application of section 2.1316(a) inappropriate and 11 See 42 U.S.C. § 2234 (No license granted hereunder and no right to utilize or produce special nuclear material granted hereby shall be transferred, assigned or in any manner disposed of, either voluntarily or involuntarily, directly or indirectly, through transfer of control of any license to any person, unless the Commission shall, after securing full information, find that the transfer is in accordance with the provisions of this Act) 12 See 10 C.F.R. § 2.1316 (a) (During the pendency of any hearing under this subpart, consistent with the NRC staff's findings in its Safety Evaluation Report (S.E.R.), the staff is expected to promptly issue approval or denial of license transfer requests.).
4
violative of the AEA. 13 As outlined in Mr. Lochbaums declaration, NRC must adjudicate the question of Holtecs character before a decision on the license transfer on the basis of two considerations. First, NRC adjudicated a similar contention before issuing a decision on the 1996 license transfer application of Southern Nuclear; there, NRC determined that Southern Nuclear needed to meet the necessary character and competence before it could be granted a license transfer. 14 Second, NRC has a demonstrated history of carrying out enforcement actions against individuals who NRC determined lacked the character and trustworthiness necessary to hold an operating license or participate in NRC-licensed activities. 15 Section 2.1316 (a), as part of Subpart M, was adopted for the purpose of creating an expedited but effective process for ruling on license transfer requests. 16 In 1998, when NRC amended its Subpart M regulations to provide a streamlined hearing process for NRC approval of license transfers, the agency did so while acknowledging that in general, license transfers do not involve any technical changes to plant operations. Rather, they involve changes in ownership
. . . at a corporate level. 17 The circumstances surrounding this proceeding make it, in part, a departure from the general license transfers contemplated by NRC in 1998, i.e., those warranting an expedited process. Holtecs license transfer application involves technical changes to plant operations insofar as the transfer is for the purposes of decommissioning, rather than continued operation as a nuclear generating facility. Conversely, the evidence that Riverkeeper has presented must be heard and adjudicated because it pertains to Holtecs fitness to be a license holder based on the companys decision-making at a corporate level, as contemplated in 13 Id. at 2 Supra note 1.
14 Id. at 2-4.
15 Id. at 5-7.
16 Streamlined Hearing Process for NRC Approval of License Transfers, 63 Fed. Reg. 66721, 66722 (Dec. 3, 1998)
(Final Rule).
17 Id.
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Subpart M. Specifically, Riverkeepers evidence concerns the potentially criminal actions of Holtecs CEO and controlling shareholder Dr. Krishna P. Singh, who has, on behalf of Holtec, demonstrated a pattern lack of truthfulness and accountability. 18 Approving the transfer prior to adjudicating Riverkeepers contention under 10 C.F.R. § 2.1316 (a) would undermine the time and cost-saving purpose for which Subpart M was adopted. 19 Were NRC to allow the transfer to take place, then later determine that Holtec does not have the requisite trustworthiness or character to hold the license in of light of the ongoing criminal investigation into Holtec and ongoing civil litigation that could determine the Holtecs financial security, 20 Holtec will have been deemed unfit to conduct the decommissioning but will nevertheless be the legal holder of the licenses. This scenario would require a complex post-effectiveness proceeding that would cost NRC additional time and resources. Moreover, NRC would be in the undesirable and complicated position of having granted a license transfer to an entity that it has found to be unsuitable to be a licensee. Even if NRC then sought to revoke the license, it is entirely unclear who would then be the holder of the license. Accordingly, even more so than financial issues, permitting the transfer to go forward prior to consideration of Riverkeepers Contention is entirely unwarranted and should not be contemplated because it may also run counter to the intent of Congress under the AEA as discussed above.
For forgoing reasons, the NRC should waive operation of 10 C.F.R. § 2.1316 (a) and fully adjudicate all pending contentions before it issues a decision in the above captioned proceeding.
18 See Motion of Riverkeeper, Inc. to Supplement the Basis of its Contention with New Evidence not Previously Available, at 3. ML20296A283 19 Id. at 66722 Supra note 13.
20 Id. at 3-5 6
Respectfully submitted,
___/signed electronically by/__
Todd D. Ommen Pace Environmental Litigation Clinic, Inc. Elisabeth Haub School of Law 78 N. Broadway White Plains, NY 10603 tommen@law.pace.edu 7
CERTIFICATE OF COUNSEL PURSUANT TO 10 C.F.R. § 2.323(b)
I certify that on November 6, 2020, I contacted counsel for all parties to this proceeding and the NRC in a sincere effort to resolve the issues raised in this motion. Counsel for applicant stated that it does not consent and will decide whether to oppose the motion upon viewing the contents.
Counsel for the State of New York stated that it would decide how to respond upon seeing the motion.
___/signed electronically by/__
Todd D. Ommen Pace Environmental Litigation Clinic, Inc. Elisabeth Haub School of Law 78 N. Broadway White Plains, NY 10603 tommen@law.pace.edu 8
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, )
INC.; ENTERGY NUCLEAR INDIAN )
POINT 2, LLC; ENTERGY NUCLEAR ) Docket Nos.
INDIAN POINT 3, LLC; HOLTEC ) 50-3 INTERNATIONAL; and HOLTEC ) 50-247 DECOMMISSIONING ) 50-348 INTERNATIONAL, LLC; APPLICATION )72-051 FOR ORDER CONSENTING TO )
TRANSFERS OF CONTROL OF )
LICENSES AND APPROVING )
CONFORMING LICENSE )
AMENDMENTS )
___________________________________ )
CERTIFICATE OF SERVICE I certify that on November 6, 2020, I posted copies of the foregoing MOTION OF RIVERKEEPER, INC FOR FULL ADJUDICATION OF ITS PENDING CONTENTION PRIOR TO ANY DECISION BY NRC ON THE LISENCE TRANSFER on the NRCs Electronic Information Exchange System.
___/signed electronically by/__
Todd D. Ommen Pace Environmental Litigation Clinic, Inc. Elisabeth Haub School of Law 78 N. Broadway White Plains, NY 10603 tommen@law.pace.edu 9