ML21109A387
| ML21109A387 | |
| Person / Time | |
|---|---|
| Site: | Point Beach  |
| Issue date: | 04/19/2021 |
| From: | Jones T, Jeremy Wachutka, Matt Young NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-266-SLR, 50-301-SLR, RAS 56066, Subsequent License Renewal | |
| Download: ML21109A387 (47) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of NEXTERA ENERGY POINT BEACH, LLC (Point Beach Nuclear Plant, Units and )
Docket Nos. - & --SLR NRC STAFFS ANSWER OPPOSING PHYSICIANS FOR SOCIAL RESPONSIBILITY WISCONSINS PETITION TO INTERVENE Mitzi A. Young Jeremy L. Wachutka Travis C. Jones Counsel for NRC Staff Dated: April,
TABLE OF CONTENTS INTRODUCTION...........................................................................................................................
BACKGROUND............................................................................................................................
DISCUSSION................................................................................................................................
I.
Standing............................................................................................................................
A.
The Requirement for Standing..............................................................................
B.
PSR WI Has Satisfied its Burden of Demonstrating Standing...............................
II.
Contention Admissibility....................................................................................................
A.
The Requirements for Contention Admissibility.....................................................
The Scope of Initial and Subsequent License Renewal Proceedings......
The Environmental Review Requirements of Initial and Subsequent License Renewal Applications................................................................
B.
PSR WI Has Not Satisfied its Burden of Proposing at Least One Admissible Contention..........................................................................................
Proposed Contention Is Not Admissible.................................................
- a.
Proposed Contention Does Not Show a Genuine Dispute Exists.................................................................
- i. Consideration of Cooling Towers Is Not Required or a Reasonable Alternative.............................................................
ii.
NRC Regulations Require Reliance on Water Quality Permits..............................................................
Proposed Contention Is Not Admissible...............................................
- a.
Proposed Contention Does Not Meet C.F.R. §.(f)()(vi)
Because it Does Not Show that a Genuine Dispute Exists..............
- b.
Proposed Contention Challenges the NRCs Regulations without a Waiver.............................................................................
- c.
Proposed Contention Does Not Meet C.F.R. §.(f)()(iii)
Because it Challenges Current Operating Issues...........................
Proposed Contention Is Not Admissible...............................................
- a.
Proposed Contention Does Not Meet C.F.R. §.(f)()(iii)
Because it is Not Within the Scope of the Proceeding.................
- b.
Proposed Contention Does Not Meet C.F.R. §.(f)()(vi)
Because it Does Not Provide Sufficient Information to Show that a Genuine Dispute Exists with the Application on a Material Issue of Law or Fact.....................................................................
Proposed Contention Is Not Admissible................................................
CONCLUSION............................................................................................................................
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of NEXTERA ENERGY POINT BEACH, LLC (Point Beach Nuclear Plant, Units and )
Docket Nos. - & --SLR NRC STAFFS ANSWER OPPOSING PHYSICIANS FOR SOCIAL RESPONSIBILITY WISCONSINS PETITION TO INTERVENE INTRODUCTION In accordance with C.F.R. §.(i), the U.S. Nuclear Regulatory Commission Staff files this answer opposing Physicians for Social Responsibility Wisconsins (PSR WI, Petitioner) petition to intervene1 challenging a NextEra Energy Point Beach, LLC (NextEra) application for subsequent renewal of the renewed facility operating licenses for Point Beach Nuclear Plant, Units and (Point Beach).2 Although the Staff does not challenge Petitioners standing, the Petition is insufficient because it does not propose at least one admissible contention that meets 1 Petition of Physicians for Social Responsibility Wisconsin for Leave to Intervene in Point Beach Nuclear Plant, Units and Subsequent License Renewal Proceeding, and Requesting an Adjudicatory Hearing (Mar., ) (MLA) (Petition).
Attached to Petition are: Declarations in Support of Petition of Physicians for Social Responsibility Wisconsin for Leave to Intervene (Mar., ) (MLA) (Member and Organizational Declarations); Declaration of Arnold Gundersen (Mar., ) (MLA) (Gundersen Declaration);
Declaration of Alvin Compaan, PH. D. (Mar., ) (MLA) (Compaan Declaration);
Declaration of Mark Cooper, PH. D. (Mar., ) (MLA) (Cooper Declaration).
2 Letter from Michael Strope, Site Vice President, NextEra, to NRC, Application for Subsequent Renewed Facility Operating Licenses (Nov., ) (MLA).
The enclosures to this letter include: Encl., Att., Point Beach Nuclear Plant Units and Subsequent License Renewal Application (Public Version) (Nov. ) (MLA) (Subsequent License Renewal Application (SLRA)); Encl., Att., Appendix E Applicants Environmental Report Subsequent Operating License Renewal Point Beach Nuclear Plant Units and (Nov. ) (MLA) (Environmental Report).
the requirements of C.F.R. §.(f). Specifically, proposed Contention is not admissible in that it does not show a genuine dispute exists with NextEra on a material issue of law or fact as required by C.F.R. §.(f)()(vi). Proposed Contention is not admissible because it does not show that a genuine dispute exists with NextEra on a material issue of law or fact as required by C.F.R. §.(f)()(vi), because it challenges the NRCs regulations without a waiver of those regulations, and because its arguments regarding Point Beachs current compliance with the NRCs regulations do not satisfy the scope requirement of C.F.R.
§.(f)()(iii). Proposed Contention is not admissible because its challenges to the need for power from Pont Beach during the subsequent renewed license term do not satisfy the scope requirement of C.F.R. §.(f)()(iii) and because it does not show that a genuine dispute exists with NextEra on a material issue of law or fact as required by C.F.R. §.(f)()(vi).
Finally, proposed Contention is not admissible because its arguments related to the physical alignment of Point Beachs buildings do not satisfy the scope requirement of CFR
§.(f)()(iii). Because none of its proposed contentions are admissible, consistent with C.F.R. §.(a), the Petition should be denied.
BACKGROUND The Point Beach units are pressurized-water reactors designed by Westinghouse Electric Corporation and are located on the western shore of Lake Michigan in Manitowoc County, Wisconsin, approximately miles ( km) north-northeast of Manitowoc.3 By letter dated November,, NextEra applied to renew the Point Beach operating licenses for an additional years, which would extend the Unit license to October, and the Unit license to March,.4 3 See Environmental Report at -, ---.
4 See SLRA at -.
Under C.F.R. §., the NRC may grant a license renewal application if, among other things, it finds that specific safety and environmental requirements are satisfied; the NRC review of a license renewal application consists of two concurrent reviewsa safety review and an environmental review. To support these safety and environmental reviews, NextEra submitted as part of its application a subsequent license renewal application (SLRA) and an Environmental Report.
On January,, the NRC published a notice of opportunity to request a hearing and to petition for leave to intervene on the Point Beach application.5 In response, PSR WI submitted the instant petition, which asserts that a hearing should be granted on four proposed contentions, with proposed Contentions and raising challenges to the Environmental Report and proposed Contentions and raising challenges to the SLRA.
DISCUSSION Under the Commissions Rules of Practice in C.F.R. Part, any person (petitioner) whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for hearing or petition for leave to intervene (petition).6 The petition must include the contentions that the petitioner seeks to have litigated in the hearing.7 The presiding officer will grant the petition if it determines that the petitioner has standing under C.F.R.
§.(d) and has proposed at least one admissible contention that meets the requirements of C.F.R. §.(f).8 5 NextEra Energy Point Beach, LLC; Point Beach Nuclear Plant, Units and, Fed. Reg.
(Jan., ).
6 C.F.R. §.(a). As defined in C.F.R. §., Person means () any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, government agency other than the Commission, any State or any political subdivision of, or any political entity within a State, any foreign government or nation, or other entity; and () any legal successor, representative, agent, or agency of the foregoing.
7 C.F.R. §.(a).
8 Id.
I.
Standing A. The Requirements for Standing Under the general standing requirements set forth in C.F.R. §.(d)(), a petition must state:
(i)
The name, address, and telephone number of the petitioner; (ii)
The nature of the petitioners right under the Atomic Energy Act of, as amended (AEA), to be made a party to the proceeding; (iii)
The nature and extent of the petitioners property, financial, or other interest in the proceeding; and (iv)
The possible effect of any decision or order that may be issued in the proceeding on the petitioners interest.9 The regulations state that in ruling on a petition, the presiding officer must determine, among other things, whether the petitioner has an interest affected by the proceeding considering the factors enumerated in C.F.R. §.(d)().10 As the Commission has observed, the NRC has long applied contemporaneous judicial concepts of standing, which require an actual or threatened injury that is fairly traceable to the challenged action, is likely to be redressed by a favorable decision, and arguably falls within the zone of interest protected by the AEA.11 The injury must be both concrete and particularized, not conjectural, or hypothetical.12 Further, at the heart of the standing inquiry is whether the 9 C.F.R. §.(d)().
10 C.F.R. §.(d)(). The presiding officer may also consider a request for discretionary intervention when a petitioner is determined to lack standing to intervene as a matter of right, where a sufficient showing is made with respect to the factors enumerated in C.F.R. §.(e).
11 El Paso Elec. Co. (Palo Verde Nuclear Generating Station, Units,, and ), CLI--, NRC __, __
(Sep., ) (slip op. at ) (quoting Calvert Cliffs Nuclear Project, LLC, and Unistar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit ), CLI--, NRC, ()).
12 Palo Verde, CLI--, NRC at __ (slip op. at -) (quoting Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI--, NRC, ()).
petitioner has alleged such a personal stake in the outcome of the controversy as to demonstrate that a concrete adverseness exists [that] will sharpen the presentation of issues.13 While the Commission generally requires the elements of standing to be pled with specificity, standing to intervene has been found to exist in construction permit and operating license proceedings based upon a proximity presumption.14 In such proceedings, standing is presumed for persons who reside in, or have frequent contact with, the zone of possible harm around the nuclear reactor.15 In practice, the Commission has found standing based on the proximity presumption for persons who reside within approximately miles ( km) of the facility.16 As noted by the Commission, licensing boards have also employed the proximity presumption to establish standing to intervene in reactor operating license renewal proceedings.17 An organization seeking to intervene must satisfy the same standing requirements as an individual seeking to intervene.18 The organization may establish standing based on organizational standing (showing that its own organizational interests could be adversely affected by the proceeding) or representational standing (based on the standing of its members). Where an organization seeks to establish representational standing, the organization must demonstrate that at least one of its members may be affected by the proceeding and that these members, who must be identified by name, have authorized the 13 Sequoyah Fuels, CLI--, NRC at (citing Duke Power Co. v. Carolina Environmental Study Group, Inc., U.S., () and quoting Baker v. Carr, U.S., ()).
14 See, e.g., Calvert Cliffs, Unit, CLI--, NRC at - (quoting Cleveland Elec. Illuminating Co.
(Perry Nuclear Power Plant, Unit ), CLI--, NRC, ()).
15 Id. at.
16 Id. at -.
17 Id. at n. (noting that the Board in Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units and ), LBP--, NRC,, affd on other grounds, CLI--, NRC () was applying [the] proximity presumption in [a] reactor operating license renewal proceeding).
18 Palo Verde, CLI--, NRC at __ (slip op. at ).
organization to represent them and to request a hearing on their behalf.19 Further, the member seeking representation must qualify for standing in [their] own right; the interests that the representative organization seeks to protect must be germane to its purpose; and neither the asserted claim nor the requested relief must require an individual member to participate in the organizations legal action.20 B. PSR WI Has Satisfied its Burden of Demonstrating Standing PSR WI is a nonprofit organization of health professionals and other concerned individuals that works to end commercial nuclear power generation and engages in public education and legal and administrative advocacy to that end.21 The Petition includes the organizations address and telephone number.22 PSR WI seeks to establish representational standing to intervene in the Point Beach subsequent license renewal proceeding based on the standing of several of its members.23 The Petition includes signed and dated declarations from these members. The members provided their names and home addresses, stated that they live and have significant contact within a -mile radius of Point Beach, and stated that they are concerned that, as a result of the Point Beach subsequent license renewal, they and their families may be killed, injured, or sickened by airborne or waterborne radioactive releases, and that there may be irreparable damage to real and personal property and the environment.24 The 19 FirstEnergy Nuclear Operating Co. and FirstEnergy Nuclear Generation, LLC (Beaver Valley Power Station, Units and ; Davis-Besse Nuclear Power Station, Unit ; Perry Nuclear Power Plant, Unit ),
CLI--, NRC, (); Consumers Energy Co. (Palisades Nuclear Power Plant), CLI--,
NRC, - ().
20 Beaver Valley, CLI--, NRC at (citing Entergy Nuclear Operations, Inc. and Entergy Nuclear Palisades, LLC (Palisades Nuclear Plant), CLI--, NRC, - (); Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI--, NRC, ()).
21 Petition at.
22 Id.
23 Id.
24 See id. at -; see also Member and Organizational Declarations.
members also stated that they authorize PSR WI to represent their interests in the Point Beach subsequent license renewal proceeding.25 The Petition and declarations demonstrate that at least one of the members of PSR WI has authorized it to represent them in this proceeding and that they would have standing to intervene in their own right based on the proximity presumption; that the interests that PSR WI seeks to protect are germane to its purpose; and that neither the asserted claim nor the requested relief require an individual member to participate in this proceeding. Therefore, the Staff does not oppose the standing of PSR WI in this proceeding.
II. Contention Admissibility A. The Requirements for Contention Admissibility The legal requirements governing the admissibility of contentions are set forth in C.F.R. §.(f)()-(). Specifically, a petition must set forth with particularity the contentions that a petitioner seeks to raise and, for each contention, the petition must:
(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;26 (iii)
Demonstrate that the issue raised in the contention is within the scope of the proceeding;27 25 See Member and Organizational Declarations.
26 Contentions cannot be based on speculation and must have some reasonably specific factual or legal basis. Entergy Nuclear Vt. Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI--, NRC, ().
27 All proffered contentions must be within the scope of the proceeding as defined by the Commission in its initial hearing notice and order referring the proceeding to the licensing board panel. See, e.g., Fla.
Power & Light Co. (Turkey Point Nuclear Generating Plant, Units and ), CLI--, NRC, -
(). As a consequence, any contention that falls outside the specified scope of the proceeding must be rejected. See, e.g., Pacific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units and
), CLI--, NRC, - ().
(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;28 (v)
Provide a concise statement of the alleged facts or expert opinions that support the 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 petitioner intends to rely to support its position on the issue;29 and (vi)
Provide sufficient information to show that a genuine dispute exists with the applicant or 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.30 Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner.31 On issues arising under the National Environmental Policy Act of, as 28 A dispute at issue is material if its resolution would make a difference in the outcome of the licensing proceeding. Holtec Intl (HI-STORE Consolidated Interim Storage Facility), CLI--, NRC,
() (internal quotations omitted).
29 The petitioner is obligated to present the facts and expert opinions necessary to support its contention.
See USEC Inc. (American Centrifuge Plant), CLI--, NRC, () (it is the petitioners responsibility to satisfy the basic contention admissibility requirements; it is not up to the boards to search through pleadings or other materials to uncover arguments and support never advanced by the petitioners themselves [and] boards may not simply infer unarticulated bases of contentions). See also Ariz. Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units,, and ), CLI--, NRC,
().
30 To show that a genuine dispute exists the contention must include references to specific portions of the application that the petitioner disputes and the supporting reasons for each dispute and if the petitioner believes that the application fails to contain information on a relevant matter, the contention must identify each failure and the supporting reasons for the petitioners belief. Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units and ), CLI--, NRC __, __ (Nov., ) (slip op. at ).
31 C.F.R. §.(f)().
amended (NEPA),32 the petitioner shall file contentions based on the applicants environmental report.33 The Commissions regulations governing contention admissibility are intended to focus litigation on concrete issues and result in a clearer and more focused record for decision.34 The Commission has explained that the contention admissibility rules are strict by design.35 Failure to satisfy any one of the six pleading requirements renders a contention inadmissible.36 The rules require a clear statement as to the basis for the contentions and the submission of supporting information and references to specific documents and sources that establish the validity of the contention.37 Although a petitioner does not have to prove its contention at the admissibility stage,38 the contention admissibility standards are meant to only afford hearings to those who proffer at least some minimal factual and legal foundation in support of their contentions.39 The petitioner must provide some support for the contention, either in the form 32 U.S.C. § et seq.
33 Id.
34 See e.g., S. Nuclear Operating Co., Inc. (Vogtle Elec. Generating Plant, Unit ), LBP--, NRC,
() (quoting Changes to Adjudicatory Process, Fed. Reg., (Jan., )).
35 Entergy Nuclear Operations, Inc. (Indian Point, Unit ) CLI--, NRC, () (citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units and ), CLI--, NRC,
() and S. Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units and ), CLI--,
NRC, ()). The Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing. Fed. Reg. at.
36 Indian Point, CLI--, NRC at ; see also Duke Energy Corp. (Oconee Nuclear Station, Units,,
and ), CLI--, NRC, - () (the heightened contention admissibility rules are designed to preclude contentions that appear to be based on little more than speculation). The requirements are intended, among other things, to ensure that a petitioner reviews the application and supporting documents prior to filing contentions; that contentions are supported by at least some facts or expert opinion known to the petitioner at the time of filing; and that there exists a genuine dispute before a contention is admitted for litigation, to avoid the practice of filing contentions that lack any factual support and seeking to flesh them out later through discovery. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit ), LBP--, NRC, - ().
37 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI--, NRC, -
() (quoting Palo Verde, CLI--, NRC at -).
38 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI--, NRC, ().
39 Oconee, CLI--, NRC at.
of facts or expert testimony, and failure to do so requires that the contention be rejected.40
[N]either mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention.41 Any supporting material provided by the petitioner is subject to scrutiny by the presiding officer and the presiding officer must confirm that the proffered material provides adequate support for the contention.42 The Commission has long held that the basis requirements are intended to:
() ensure that the contention raises a matter appropriate for adjudication in a particular proceeding; () establish a sufficient foundation for the contention to warrant further inquiry into the assertion; and () put other parties sufficiently on notice of the issues to be litigated.43 If a petitioner neglects to provide the requisite support for its contentions, then the presiding officer should not make assumptions of fact that favor the petitioner or search for or supply information that is lacking.44 Moreover, providing any material or document as a basis for a contention, without setting forth an explanation of its significance, is grounds for the presiding officer to reject the contention.45 In sum, the information, facts, and expert opinions 40 Palo Verde, CLI--, NRC at ; accord, Indian Point, CLI--, NRC at. See Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, Fed.
Reg.,,, (Aug., ) (This requirement does not call upon the intervener to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time which provide the basis for its contention.).
41 S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP--, NRC, ()
(citing Fansteel, Inc. (Muskogee, Oklahoma Site), CLI--, NRC, ()).
42 See Vt. Yankee Nuclear Power Co. (Vermont Yankee Nuclear Power Station), ALAB-, NRC,
(), vacated in part on other grounds and remanded, CLI--, NRC (); see also Tenn.
Valley Authority (Bellefonte Nuclear Plant, Units and ), LBP--, NRC, ().
43 Oconee, CLI--, NRC at ; See also Phila. Elec. Co. (Peach Bottom Atomic Power Station, Units and ), ALAB-, AEC, - ().
44 See Am. Centrifuge Plant, CLI--, NRC at.
45 See Fansteel, CLI--, NRC at.
provided by the petitioner are to be examined by the presiding officer to determine whether they provide adequate support for the proffered contentions.46 Under the Commissions caselaw, and absent a waiver, a contention must be rejected if it challenges applicable statutory requirements, regulations, or the basic structure of the Commissions regulatory process.47 Contentions that are nothing more than a generalization regarding the petitioners view of what applicable policies ought to be must also be rejected.48 Further, attempts to advocate for requirements stricter than those imposed by regulation constitute collateral attacks on the Commissions rules and are therefore inadmissible.49
. The Scope of Initial and Subsequent License Renewal Proceedings The Commissions regulations in C.F.R. Part limit the scope of license renewal proceedings to those matters that must be considered for the license renewal application to be granted and that have not been addressed by rulemaking or on a generic basis.50 Under 46 Am. Centrifuge Plant, CLI--, NRC at ; see Bellefonte Nuclear Plant, LBP--, NRC at 47 As set forth in C.F.R. §.(a), no rule or regulation of the Commission is subject to attack in any adjudicatory proceeding in the absence of a waiver petition granted by the Commission. See also Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit ), CLI--, NRC,
(). Accordingly, any contention that amounts to an attack on applicable statutory requirements or represents a challenge to the basic structure of the Commissions regulatory process without a waiver must be rejected. Id.
48 Millstone, CLI--, NRC at.
49 NextEra Energy Seabrook, LLC (Seabrook Station, Unit ), CLI--, NRC, () (citations omitted); See Peach Bottom, ALAB-, AEC at - (explaining that a contention that seeks to raise an issue that is not proper for adjudication in the proceeding or that does not apply to the facility in question, or seeks to raise an issue that is not concrete or litigable must also be rejected).
50 Oyster Creek, CLI--, NRC at -; see also C.F.R. §.; Turkey Point, CLI--,
NRC at -.
The standards in C.F.R. Part and the environmental regulations related to license renewal set forth in C.F.R. Part and Appendix B thereto establish the scope of issues that may be considered in a license renewal proceeding. See generally Nuclear Power Plant License Renewal, Fed. Reg.,
(Dec., ); Nuclear Power Plant License Renewal; Revisions, Fed. Reg., (May, ). As the Commission made clear in, the existing regulatory framework and regulatory process for license renewal also apply to subsequent license renewal. See Staff Requirements - SECY-- - Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal (Aug., ) (MLA) (SRM-SECY--) (declining rulemaking; directing the Staff to update license renewal guidance as needed to provide clarity and to address emerging technical issues and operating experience through alternative vehicles).
C.F.R. §.(a), when determining whether to grant a license renewal application, the Commission requires actions be identified that have been or will be taken with regard to:
()
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 C.F.R. §.(a)(); and
()
time-limited aging analyses that have been identified to require review under C.F.R. §.(c).
The effects of aging are typically managed through aging management programs; time-limited aging analyses are plant-specific safety analyses that were based on an explicitly assumed period of time51 and must remain valid for the period of extended operation, or have been projected to the end of the period of extended operation, or be adequately managed for the period of extended operation.52 The actions with regard to aging management and time-limited aging analyses must provide reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the current licensing basis,53 and that any changes made to the plants current licensing basis are in accordance with the AEA and the Commissions regulations.54 Additionally, a renewed license may be issued if the Commission finds that the applicable requirements of Subpart A of C.F.R. Part have been satisfied and any matters raised under C.F.R. §. have been addressed.55 The adequacy and manner of the Staffs review may not be challenged in a license renewal proceeding.56 51 Fed. Reg. at,.
52 C.F.R. §.(c).
53 As defined in C.F.R. §., the current licensing basis is the set of NRC requirements applicable to a specific plant and a licensees written commitments for ensuring compliance with and operation within applicable NRC requirements and the plant-specific design basis (including all modifications and additions to such commitments over the life of the license) that are docketed and in effect.
54 C.F.R. §.(a).
55 C.F.R. §.(b)-(c).
56 See, e.g., Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units and ), CLI--
, NRC, n. () (citations omitted) (noting that adjudicatory challenges that focus on the
These standards, along with other regulations in C.F.R. Part and the environmental regulations related to license renewal set forth in C.F.R. Part and Appendix B thereto, establish the scope of issues that may be considered in a license renewal proceeding. Any contention that falls outside this scope is inadmissible and must be rejected.57 The NRCs license renewal regulations derive from years of extensive technical study, review, interagency input, and public comment.58 In license renewal proceedings, the Commission has found it generally unnecessary to review issues that are already monitored and reviewed in ongoing regulatory oversight processes; the NRC conducts a technical review under C.F.R. Part to ensure that pertinent public health and safety requirements have been satisfied.59 Regardless of whether a license renewal application has been filed for a facility, the Commission has a continuing responsibility to oversee the safety of ongoing plant operations, and it routinely oversees a broad range of operating issues under its statutory responsibility to ensure the protection of the public health and safety. In contrast, the NRCs license renewal safety review focuses on plant systems, structures, and components for which current [regulatory] activities and requirements Staffs review of the application rather than on errors or omissions in the application itself are not permitted in NRC adjudications); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),
CLI--, NRC, - () (citations omitted) (stating that [t]he NRC has not, and will not, litigate claims about the adequacy of the Staffs safety review in licensing adjudications and that it is the applicant, not the Staff, that has the burden of proof in litigation). Further, licensing boards are not generally empowered to correct or supervise the Staffs performance of its research activities. See C.F.R. §.. Licensing boards simply have no jurisdiction over nonadjudicatory activities of the Staff that the Commission has clearly assigned to other offices unless the Commission itself grants that jurisdiction to the Board. Duke Energy Corp. (Catawba Nuclear Station, Units and ), CLI--,
NRC, () (citations omitted). Staff non-adjudicatory functions include safety reviews and the approaches to conducting environmental reviews. See id. ([L]icensing boards do not sit to correct NRC Staff misdeeds or to supervise or direct NRC Staff regulatory reviews.).
57 C.F.R. §.(f)()(iii); see, e.g., Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units and ), CLI--, NRC, ().
58 Turkey Point, CLI--, NRC at.
59 See, e.g., id. at, - (holding that [i]ssues like emergency planningwhich already are the focus of ongoing regulatory processesdo not come within the NRC's safety review at the license renewal stage).
may not be sufficient to manage the effects of aging in the period of extended operation.60 Adjudicatory proceedings on license renewal applications are bounded by the same rules and scope as the NRCs license renewal review.61
. The Environmental Review Requirements of Initial and Subsequent License Renewal Applications NEPA requires Federal agencies to include in any recommendation or report on proposals for major Federal actions significantly affecting the quality of the human environment, a detailed statement on:
(i) the environmental impact of the proposed action, (ii) any adverse environmental effects that cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented.62 In accordance with its NEPA responsibilities, the NRC is required to take a hard look at the environmental impacts of a proposed major Federal action that could significantly affect the environment, as well as reasonable alternatives to that action.63 This hard look is tempered by a rule of reason in that consideration of environmental impacts need not address all theoretical possibilities, but rather only those that have some reasonable possibility of 60 Id. at (quoting Fed. Reg. at,).
61 Id. (Adjudicatory 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.).
62 See NEPA § ()(C), U.S.C. § ()(C).
63 See Crow Butte Resources, Inc. (Marsland Expansion Area), LBP--, NRC, () (citing Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI--, NRC, - ()).
occurring.64 An agency thus need only address impacts that are reasonably foreseeable; the agency need not perform analyses concerning events that would be considered worst case scenarios or those considered remote and highly speculative.65 Further, NEPA does not call for certainty or precision, but an estimate of anticipated (not unduly speculative) impacts.66 Neither does NEPA call for Federal agencies to do the impossible.67 Moreover, NEPA gives agencies broad discretion to keep their inquiries within appropriate and manageable boundaries.68 As the Commission has observed, NEPA requires consideration of reasonable alternatives, not all conceivable ones.69 Further, the Staffs environmental impact statements need only discuss those alternatives that will bring about the ends of the proposed actiona principle equally applicable to Environmental Reports.70 The NRC has adopted regulations in C.F.R. Part to implement the agencys NEPA responsibilities. These regulations divide the license renewal environmental review into Category generic issues and Category site-specific issues71 based on NUREG-,
64 Id. (quoting Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit ), ALAB-, AEC,
()).
65 Holtec Intl (HI-STORE Consolidated Interim Storage Facility), LBP--, NRC, ()
(quoting Limerick Ecology Action, Inc. v. NRC, F.d, - (d Cir. )).
66 Marsland, LBP--, NRC at (quoting Louisiana Energy Services, L.P. (National Enrichment Facility), CLI--, NRC, ()).
67 Kleppe v. Sierra Club, U.S., - () (observing that where it is not possible for an agency to analyze the environmental consequences of a proposed action or alternatives to it, requiring such analysis would have no factual predicate and under those circumstances an environmental impact statement is not required).
68 Marsland, LBP--, NRC at (quoting Claiborne, CLI--, NRC at ).
69 Seabrook, CLI--, at (quoting Natural Resources Defense Council, Inc. v. Morton, F.d
,,, (D.C. Cir. )).
70 Id. at (footnotes and quotation marks omitted).
71 See Appendix B to Subpart A of C.F.R. Part (The Commission has assessed the environmental impacts associated with granting a renewed operating license for a nuclear power plant and Table B-summarizes the Commissions findings subject to an evaluation of those issues identified in Category as requiring further analysis and possible significant new information.).
Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS). 72 The findings of the environmental impact analyses conducted for the GEIS are listed in Table B-of Appendix B to Subpart A of C.F.R. Part, which lists each issue and its categorization.
The NRC can satisfy its NEPA obligations for license renewal by combining the site-specific analysis of the Category issues with the generic analysis of the Category issues, including consideration of any new and significant information.73 In its Environmental Report, a license renewal applicant is required to include analyses of the environmental impacts of the proposed action for those issues identified as Category issues.74 The Environmental Report is not required to contain analyses of the environmental impacts of the license renewal issues identified as Category 75 except to the extent that there is any new and significant information regarding the environmental impacts.76 The Environmental Report is also not required to include discussion of need for power or the economic costs and economic benefits of the proposed action or of alternatives to the proposed action except insofar as such costs and benefits are either essential for a determination regarding the inclusion of an alternative in the range of alternatives considered or relevant to mitigation or other issues not related to the environmental effects of the proposed action and the alternatives.77 Accordingly, an applicant must provide a plant-specific review of the Category issues in its Environmental Report and must address any new and significant 72 NUREG-, Rev., Vols. -, Generic Environmental Impact Statement for License Renewal of Nuclear Plants () (MLA, MLA, and MLA) (identifying environmental impact issues for license renewal, of which were determined to be generic Category issues, are site-specific Category issues, and are uncategorized).
73 See Massachusetts v. NRC, F.d, - (st Cir. ).
74 C.F.R. §.(c)()(ii).
75 C.F.R. §.(c)()(i).
76 C.F.R. §.(c)()(iv).
77 C.F.R. §.(c)().
information that might render the Commissions Category determinations inapplicable in that proceeding.78 Based on the Environmental Report, the Staff is required to prepare an environmental impact statement that is a supplement to the GEIS and that is referred to as an SEIS.79 Like the Environmental Report, the SEIS integrate[s] the conclusions in the [GEIS] for issues designated as Category with information developed for those Category issues applicable to the plant and any new and significant information.80 The Staffs license renewal environmental review is guided by NUREG-, Standard Review Plans for Environmental Reviews for Nuclear Power PlantsOperating License Renewal.81 Contentions raising environmental issues in a license renewal proceeding are limited to those issues that are affected by license renewal and have not been addressed by rulemaking or on a generic basis.82 Therefore, as the Commission has stated, Category issues fall beyond the scope of individual license renewal proceedings.83 Because these generic environmental analyses were incorporated into an NRC rule, their conclusions may not be challenged in litigation unless the rule is waived by the Commission for a particular proceeding 78 See, e.g., Exelon Generation Co., LLC (Limerick Generating Station, Units and ), CLI--, NRC
, - (); Turkey Point, CLI--, NRC at -; Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI--, NRC,
- ().
79 C.F.R. §.(c).
80 C.F.R. §.(c)(). Following publication of an SEIS, further supplementation is required only if there are significant new circumstances or information [that] paint[s] a dramatically different picture of impacts compared to the description of impacts in the [SEIS]. Massachusetts v. NRC, F.d at -
(quoting Town of Winthrop v. FAA, F.d,, (st Cir. )).
81 NUREG-, Supp., Rev., Standard Review Plans for Environmental Reviews for Nuclear Power PlantsOperating License Renewal () (MLA).
82 Turkey Point, CLI--, NRC at -.
83 Id. at. In Turkey Point, the Commission recognized that the NRCs rules provide a number of opportunities for individuals to alert the Commission to new and significant information that might render a generic finding invalid, either with respect to all nuclear power plants or for one plant in particular. In the hearing process, for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule. Id.
or the rule itself is suspended or altered in a rulemaking proceeding.84 Accordingly, a contention challenging a Category generic determination, even if based on new and significant information, can only be admitted if the Commission grants a waiver of its regulations.85 B. PSR WI Has Not Satisfied its Burden of Proposing at Least One Admissible Contention Although the Petition demonstrates standing under the provisions of C.F.R.§.(d),
it does not demonstrate that at least one of its four proposed contentions meets the requirements of C.F.R. §.(f). Therefore, pursuant to C.F.R. §.(a), the Petition should be denied.
. Proposed Contention Is Not Admissible Proposed Contention states that The Environmental Report fails to consider a reasonable range of alternatives to the proposed action because of a failure to analyze thermal pollution mitigation as a means of reducing aquatic biota and migratory bird impingement, entrainment, and damage from thermal pollution, as required by NEPA and the NRC.
This proposed contention, read together with the basis and arguments presented, alleges that Environmental Report §., Alternatives for Reducing Adverse Impacts, fails to comply with the C.F.R. §§.(c) and.(c)()(iii) requirements to consider alternatives available for reducing or avoiding adverse environmental effects because it unlawfully fails consider the reasonable mitigation alternative of replacing Point Beachs once-through cooling system with a closed-cycle cooling tower system.86 Petitioner claims the alternative would reduce the adverse environmental effects of Category issues (impingement and entrainment 84 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI--, NRC, (footnotes omitted), reconsid. denied, CLI--, NRC,
(). This approach has been found to comply with NEPA. See, e.g., Massachusetts v. NRC, F.d at -.
85 Florida Power & Light Co. (Turkey Point Nuclear Generating Units and ), CLI--, NRC,
- ().
86 Id. at -.
of aquatic organisms; thermal impacts on aquatic organisms), and would also reduce occasional bird mortality from impingement.87 Petitioner also claims that the Environmental Reports analysis is inaccurate or incomplete because () it presents an insufficient analysis of thermal discharges between and because of limited data and scientific weaknesses88 and
() NextEra wrongly concludes that [b]ecause there are no planned operational changes during the proposed [subsequent license renewal] operating term that would increase the temperature of [Point Beachs] existing thermal discharge, impacts are anticipated to be SMALL and mitigation measures are not warranted.89 Proposed Contention claims the Environmental Report is deficient for failing to includeas a reasonable alternative to the proposed action or as a mitigation alternative the use of a cooling tower system to reduce or avoid adverse effects from thermal impacts, and entrainment and impingement, on aquatic organisms.90 Thus, this contention appears to be a contention of omission.91 87 Id. at -. See C.F.R. Part, Subpart A, Appendix B, Table B- (Table B-) (listing Category issues: Impingement and entrainment of aquatic organisms (plants with once-through cooling systems or cooling ponds); and Thermal impacts on aquatic organisms (plants with once-through cooling systems or cooling ponds)). Petitioner also claims that Point Beach is a super predator[]. Petition at (citing Gundersen Declaration at ). But Gundersen describes the function of cooling systems and states generalized concerns, without reference to specific Point Beach data, to conclude that cooling towers are required to save Lake Michigan biome. Gundersen Declaration at -. Conclusory assertions, even by an expert, do not provide adequate support for a contention. See Fansteel, CLI--, NRC at.
88 Petition at -; Petition at (citing Pub. Serv. Co. of N.H. (Seabrook Station, Units and ), National Pollutant Discharge Elimination System Permit, E.A.D., __ () ( WL, at ) (where the U.S. Environmental Protection Agency (EPA) Administrator stated,[A] determination of the effect of the thermal discharge cannot be made without considering all other effects on the environment, including the effects of the intake (i.e., entrainment and entrapment).). This statement addressed the interdependence of CWA § (a) and (b) determinations, acknowledging a determination of best available technology for cooling is made on a case-by-case basis that considers the discharge environment.
89 Petition at (quoting Environmental Report at -). Petitioner omits the immediately preceding discussion in the Environmental Report explaining that the impacts to aquatic organisms during the proposed subsequent license renewal period would be SMALL because Point Beach complies with its Clean Water Act § (a) discharge permit. See Environmental Report at ---.
90 See, e.g., Petition at -, -.
91 A contention of omission alleges an application suffers from an improper omission, whereas a contention of adequacy raises a specific substantive challenge to how particular information or issues
But the information Petitioner provides is not sufficient to show a genuine dispute as to a material issue of law or fact concerning whether a cooling tower system must be considered as a reasonable mitigation alternative to reduce adverse impacts at Point Beach. Neither NEPA nor NRC regulations applicable to license renewal require consideration of Petitioners proposed alternative because NEPAs hard look requirement is subject to a rule of reason. Moreover, unlike the circumstances Petitioner describes surrounding the Oyster Creek and Indian Point license renewals, where state authorities required the use of cooling towers,92 Petitioner does not show that the State of Wisconsin water quality permitting authority has changed [its]
regulatory view and imposed a cooling tower requirement at Point Beach.
Petitioner does not identify sufficient information to show a genuine dispute with the Environmental Report as to whether the consideration of their proposed mitigation alternative is required or reasonable in the circumstances presented here. Therefore, the contention is inadmissible under C.F.R. §.(f)()(vi).
have been discussed in the application. Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units & ), LBP--, NRC, n. (); accord Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units & ), CLI--, NRC, (). If missing information is later supplied by the applicant or considered by the Staff in a draft EIS, the contention is moot and should be dismissed. See Duke Energy Corp. (McGuire Nuclear Station, Units and ; Catawba Nuclear Station Units and,), CLI--, NRC, (); accord USEC, Inc. (American Centrifuge Plant), CLI-
-, NRC, ().
See, e.g., Fla. Power & Light Co. (Turkey Point Nuclear Generating Units and ), LBP--, NRC
() (admitting a contention claiming an Environmental Report omitted consideration of mechanical draft cooling alternative due to impacts on species and water); Fla. Power & Light Co. (Turkey Point Nuclear Generating Units and ), LBP--, NRC, - () (dismissing the contention as moot based because information in the NRC Draft SEIS cured the omission identified in the contention).
92 See Petition at -.
(a) Proposed Contention Does Not Show a Genuine Dispute Exists Petitioner does not provide sufficient information to show a genuine dispute with the application.
- i.
Consideration of Cooling Towers Is Not Required or a Reasonable Alternative Petitioners claims lack an adequate factual or legal basis to show consideration of cooling towers as a reasonable alternative to the proposed action or as a reasonable mitigation alternative that is required for the Point Beach subsequent license renewal.93 Neither NEPA nor the NRCs regulations implementing NEPA require the evaluation of the continued operation of Point Beach with cooling towers as a reasonable alternative.
As noted in section II.B., supra, NEPAs hard look requirement for consideration of the environmental impacts of a proposed action that could significantly affect the environment, and reasonable alternatives to that action,94 dictates a process, not a particular action or result, and is tempered by a rule of reason.95 NRC regulations implementing NEPA instruct a license renewal applicant, as well as the Staff, to consider the environmental impacts of alternatives to the proposed action, and alternatives available for reducing or avoiding adverse environmental effects.96 NRC regulations applicable to subsequent license renewal, however, do not specify the alternative actions or mitigation measures that must be considered. Instead, a reasonable range of alternatives needs to be considered.97 Additionally, agencies have broad discretion to 93 Petition at.
94 See Marsland, LBP--, NRC at ; Claiborne, CLI--, NRC at -.
95 See Marsland, LBP--, NRC at (quoting Shoreham, ALAB-, AEC at ); see also Dept of Transp. v. Pub. Citizen, U.S., - () (explaining that inherent in NEPA is a rule of reason which ensures that agencies determine whether and to what extent to prepare an EIS).
96 C.F.R. §§.(c) and.(d).
97 See id. (no discussion required at the license renewal stage regarding economic or technical benefits and costs unless they are either essential for a determination regarding the inclusion of an alternative in the range of alternatives considered or relevant to mitigation).
keep their inquiries within appropriate and manageable boundaries.98 As the Commission has noted, this means that NEPA requires consideration of reasonable alternatives, not all conceivable ones.99 Under basic NEPA principles, it is reasonable to tailor the degree of mitigation analyses to the significance of the impact to be mitigated.100 Petitioner does not show a genuine dispute as to whether there is a legal requirement to consider a mitigation measure as a project alternative. Petitioner aptly identifies case law indicating that an agency should explore a reasonable range of alternatives to permit a reasoned choice, to aid the decisionmaker by illuminating whether the purpose of the action can be achieved with less impact.101 Petitioner, however, incorrectly argues that an obviously superior standard applies to consideration of alternatives in license renewal proceedings.102 That standard, codified at C.F.R. §.(b), applies to comparison of alternate sites being considered at the site selection stage and it is not appropriate here.
In license renewal, the NRC also considers the environmental impacts of the proposed action, alternatives to a proposed action, and any mitigation measures for a facility that is 98 Marsland, LBP--, NRC at (quoting Claiborne, CLI--, NRC at ); see generally South Louisiana Environmental Council, Inc. v. Sand, F.d, (th Cir. ).
99 Seabrook, CLI--, NRC at (citing NRDC v. Morton, F.d,,, (D.C. Cir.
)).
100 Entergy Nuclear Operations, Inc. (Indian Point, Units & ), CLI--, NRC, n. ()
(citing C.F.R. §.(b) (Environmental impact statements shall discuss impacts in proportion to their significance.)).
101 See, e.g., Petition at - (citing Methow Valley Citizens Council v. Regional Forester, F.d,
(th Cir. ) (discussion of alternative must permit a reasoned choice); Union Neighbors United, Inc. v. Jewell, F.d, (D.C. Cir. ) (rigorous exploration and objectively evaluation of all reasonable alternatives as required C.F.R. §.); Idaho Conservation League v. Mumma, F.
d, - (th Cir. ) (existence of a viable but unexamined alternative renders an impact statement inadequate); North Buckhead Civic Assn v. Skinner, F.d, (th Cir. )
(consideration of a highway project alternative that partially satisfies the purpose of a proposed project may allow the decision-maker to conclude that it should meet part of the goal with less impact, but its consideration may or may not needed depending on whether it can be considered a "reasonable alternative".).
102 See Petition at (citing Pub. Serv. Co. of New Hampshire (Seabrook Station, Units and ), ALAB-
, NRC, ().
already constructed and has an operating license.103 Under C.F.R. §.(c)(), the NRC Staff recommends (and an NRC licensing board presiding over a contested proceeding must determine) whether or not the adverse impacts are so great that preserving the option of renewal for energy decisionmakers would be unreasonable. NRC guidance indicates that consideration of the no action alternative and viable replacement power alternatives in lieu of the proposed action is reasonable.104 With respect to mitigation, NRC license renewal guidance states that license renewal environmental reports should include a brief description of alternatives considered that would reduce or avoid adverse effects.105 That guidance emphasizes that mitigation alternatives are to be considered in proportion to the significance of the impact,106 which reflects Commission 103 See C.F.R. §§.(c),.,.(c).
104 See Regulatory Guide., Supp., Rev., Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications,, (June ) (MLA) (RG.). This guidance generally refers to alternatives to the proposed action as replacement power alternatives and mitigation as alternatives for reducing adverse impacts. See id. at -.
105 RG. at. Guidance to the Staff similarly instructs the Staff to consider the environmental impacts of alternatives, and alternatives to reduce or avoid adverse environmental impacts (e.g., constructing and operating a new cooling system). NUREG-, Supp., Rev., Standard Review Plans for Environmental Reviews for Nuclear Power Plants, Operating License Renewal, Final Report (June )
(MLA), at.-.
106 RG., Section A., General Guidance to Applicants (at -) states that C.F.R. §.(c) requires applicants to consider alternatives available for reducing or avoiding any adverse effects, indicating that applicants should identify any ongoing mitigation and discuss the potential need for additional mitigation.
Mitigation alternatives should be considered in proportion to the significance of the impact. Applicants should identify all relevant, reasonable mitigation measures that could reduce or avoid adverse effects, even if they are outside the jurisdiction of the NRC.
Reg. Guide., Section, Environmental Consequences of the Proposed Action and Mitigating Actions, id. at, similarly states that an applicant should consider mitigation measures to reduce or avoid adverse effects where applicable and identify and discuss possible mitigation measures in proportion to the significance of the adverse impact. If there is no adverse impact to be mitigated, the applicant should present the basis for that determination. Id.
Section. (id. at -) notes that alternatives considered to reducing adverse impacts typically include closed-cycle cooling or intake modification options for nuclear power plants that currently use once-through cooling. Applicants should describe the impacts of the alternatives for reducing adverse effects identified for detailed study and analyze each alternative on a site-specific basis and in proportion to its significance.
expectations for discussions of mitigation and is consistent with NEPA case law.107 The lesser the impact, the lesser the detail or alternative required to address it.
ii.
NRC Regulations Require Reliance on Water Quality Permits For the Category issues raised by the contention (thermal impacts on aquatic organisms, and entrainment and impingement impacts on aquatic organisms), the decisive factor is the NPDES permit issued under Section of the Federal Water Pollution Control Act, as amended (FWPCA), and the regulations at CFR Part.108 The FWPCA, also known as the Clean Water Act (CWA), authorizes the EPA to approve state programs for the issuance of National Pollutant Discharge Elimination System [NPDES] permits.109 Permits issued under the NPDES program impose effluent limitations and other requirements on facilities that discharge pollutants into the waters of the United States. Section (c)() of the CWA precludes [the NRC] from either second-guessing the conclusions in NPDES permits or imposing our own effluent limitations thermal or otherwise.110 The general intent of Congress evidenced in CWA § is that the CWA [is] to be implemented in a way that avoids needless duplication and unnecessary delays at all levels of government.111 The permitting agency (the EPA or a state agency) determines what cooling system a nuclear power facility may use; the 107 Indian Point, CLI--, NRC at n. (Under basic NEPA principles, it is reasonable to tailor the degree of mitigation analyses to the significance of the impact to be mitigated.). For example, RG
. (at ) states that an Environmental Report should identify mitigation measures to reduce or avoid any impacts if the cumulative analysis indicates that a moderate to large contribution would occur as a result of license renewal.
108 U.S.C. §.
109 U.S.C. § (b).
110 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI--, NRC, () (citing U.S.C. § (c)().
111 Vermont Yankee, CLI--, NRC at - (quoting Carolina Power and Light Co. (H.B. Robinson, Unit ), ALAB-, NRC, n. () (internal quotations and citations omitted).
NRC then considers the impacts resulting from the use of that system. The Commission has held that NRC licensing boards should defer to the agency that issued the (a) permit.112 NRC regulations require that the NRC rely, in part, on water quality and thermal impact determinations and requirements established under the CWA, including by States that implement the statute. Specifically, C.F.R. §.(c)()(ii)(B) requires license renewal applicants for plants that use once-through cooling heat dissipation systems to provide a current CWA § (b) determination, and, if necessary, a CWA § (a) variance113 in accordance with C.F.R. Part, or equivalent State permits and supporting documentation. If not provided, the license renewal applicant must assess the impact of the proposed action on fish and shellfish resources resulting from thermal changes and impingement and entrainment.114 Section (b) of the CWA requires that the location, design, construction and capacity of the cooling water intake structures to reflect the best technology available to minimize adverse impacts. The current Wisconsin NPDES permit (i.e., the WPDES permit), which expires in June, is appended to the Environmental Report and provides an interim determination regarding the technology available to reduce impacts.115 Cooling towers are not required by this permit and Petitioner proffers no information to indicate that Wisconsin will impose that technology as a condition of the renewal of the § (a) variance. In addition, Petitioner does not show why NextEra cannot rely on its compliance with 112 Vermont Yankee, NRC at.
113 A CWA § (a) variance allows a thermal effluent discharger to demonstrate that thermal discharge limits are more stringent than necessary and obtain alternate, facility-specific limits. U.S.C. §.
National Pollutant Discharge Elimination SystemFinal Regulations To Establish Requirements for Cooling Water Intake Structures at Existing Facilities and Amend Requirements at Phase I Facilities, Fed. Reg., (Aug., ) (effective October, ).
114 C.F.R. §.(c)()(ii)(B).
115 See Environmental Report at - and Attachment B at (effective July, ) (containing water quality-based effluent limitations that are necessary to ensure water quality standards for Lake Michigan are met) It states that the current cooling water intake system includes a crib with an acoustic deterrent system located offshore and makes an interim determination that the cooling water intake system is the best technology available).
its WPDES requirement to conduct its analysis. In fact, C.F.R. §.(d) requires the applicant to include in its Environmental Report a discussion of applicable environmental standards and requirements, including water pollution limitations or requirements which have been imposed by Federal, State, regional, and local agencies having responsibility for environmental protection.116 Thus, Petitioner has not shown a genuine dispute with the Environmental Report regarding the impacts resulting from impingement and entrainment of aquatic organisms or why NextEra cannot rely on adherence to the CWA (b) regulation.117 The Environmental Report relies on compliance with the WPDES permit to ensure that Point Beach complies with CWA requirements for thermal discharge.118 A SMALL impact significance level means that the environmental effects are not detectable or are so minor that they will neither destabilize nor noticeably alter any important attribute of the resource.119 Petitioner does not show that consideration of cooling towers would reduce an impact finding significance level from LARGE to MODERATE, or MODERATE to SMALL. 120 Such a showing is consistent with NEPAs rule of reason and the efficiencies the Commission sought to 116 Under C.F.R. §.(d), the NRC will consider the same information, including water pollution limitations and requirements issued or imposed under the [FWPCA]. However, note to §.(d) emphasizes that compliance with standards imposed by EPA or designated permitting states is not a substitute for the requirement that the NRC weigh all environmental effects weigh effects and consider alternatives that are available to reduce adverse effects.
117 See National Pollutant Discharge Elimination SystemFinal Regulations To Establish Requirements for Cooling Water Intake Structures at Existing Facilities and Amend Requirements at Phase I Facilities, Fed. Reg., (Aug., ). See also Environmental Report at §.. (noting that NextEra also relies on Wisconsin legislation, and the Point Beach Wisconsin Pollutant Discharge Elimination System (WPDES) permit, as well as NextEras identification of potential concerns via ongoing studies to minimize or maintain existing SMALL impacts. To the extent that Petitioner seeks to challenge the NRC reliance on water quality permits, it would appear to challenge NRC regulations without the requisite petition for waiver or exception required by C.F.R. §..
118 Environmental Report at §...
119 Note in Table B-to C.F.R. Part, Subpart A, Appendix B. For the only two Category issues implicated by the concerns in proposed Contention, Table B-, indicates impacts from impingement and entrainment are small at many plants, but could be moderate or large depending on cooling system withdrawal rates and volumes, and the aquatic resources at the site.
120 Table B-states that MODERATE means environmental effects are sufficient to alter noticeably, but not to destabilize, important attributes of the resource and that LARGE means environmental effects are clearly noticeable and are sufficient to destabilize important attributes of the resource.
gain in the conduct of license renewal reviews. If the environmental effects from thermal impacts, entrainment and impingement are SMALLnot detectable or so minor they will neither destabilize nor noticeably alter any important attribute of the resourcethen it would not be reasonable to consider a further reduction. The absence of meaningful differences in impact about impacts would likely not assist the NRC determination, required by C.F.R. §.(c)(),
on whether the impacts of license renewal are so great that preserving the option of license renewal for energy-planning decisionmakers would be unreasonable. Moreover, consideration of a closed cycle cooling system not imposed on the continued operation of the facility would appear to second guess the permitting agencys determination.121 But such circumstances are not identified by the Petitioner here. Petitioners argument that use of cooling towers is a reasonable alternative and would reduce impacts at the facility,122 implies that the NRC staff (and, if the contention is admitted, the licensing board) should second guess Wisconsins water quality oversight or ignore the presumption that the permitting authority will appropriately fulfill its duties.123 Petitioners reliance on events surrounding the renewal of the Oyster Creek and Indian Point power plants as showing a genuine dispute that consideration of cooling towers is a reasonable mitigation alternative applicable to Point Beach is also misplaced.124 As indicated by Petitioners summary, the consideration of cooling towers was prompted by the actions of the respective Clean Water Act (CWA) § (b) permitting authority that required cooling towers as 121 Vermont Yankee, CLI--, NRC at.
122 See Petition at -. At this juncture, however, the Staff takes no position on the propriety of impact significance levels in the ER.
123 The NRC recognizes a presumption that other regulatory authorities will continue to regulate an applicants activities and will take enforcement action, as necessary, to ensure compliance with requirements imposed by those authorities. See Fla Power & Light Co. (Turkey Point Units & ), LBP-
-, NRC, ().
124 See Petition at -.
the best technology available for minimizing adverse environmental impacts from the operation of those facilities.125 Petitioners reliance on an EPA Inspector General Report, which estimates annual aquatic species mortality due to impingement and entrainment at named power facilities, does not provide support for the contention as required by C.F.R. §.(f)()(v); Point Beach is not mentioned in the EPA report.126 Thus, it provides no site-specific information and does not show a genuine dispute.
In addition, Petitioners recitation of information in the Environmental Report, including WPDES permit limits for waste heat discharges into Lake Michigan, impact information in the previous license renewal ( SEIS), water withdrawal rates, and temperatures associated with previous power uprates in and, does not support its claim that cooling towers must be considered a reasonable alternative to mitigate adverse thermal impacts of subsequent license renewal.127 The uprates occurred before the current WPDES permit.
125 Although not discussion in the petition, the examination of cooling towers alternative at the Seabrook cite was done under unique circumstances, necessary only because the [ U.S. Environmental Protection Agency (EPA)] might require the utilization of towers and at the behest of the applicant as a backup plan to accommodate EPAs determination. Seabrook, ALAB-, NRC at. If the applicants were sure ultimately to obtain EPAs approval of an open-cycle cooling system, we would not have to ascertain whether other alternatives for providing power are obviously superior to Seabrook with cooling towers.
Id. Irrespective of EPAs determination regarding a cooling tower requirement, the Commission standard for comparison of a proposed site for power plant was not to be rejected unless an alternative site was found obviously superior. Id. at.
126 See Petition at n. (citing U.S. EPA Office of Inspector General, EPA Oversight Addresses Thermal Variance and Cooling Water Permit Deficiencies But Needs to Address Compliance With Public Notice Requirements, Report No. -P-at (May, )
https://www.epa.gov/sites/production/files/-/documents/--p-.pdf) 127 Petition at - (citing Environmental Report at -). The uprate captured a measurement uncertainty and was subject to a categorical exclusion in C.F.R. §.(c)(). See Measurement Uncertainty Recapture Power Uprate Amendments, (Nov., ) (Package ML). Based on an environment assessment (published Fed. Reg., Apr., ), the NRC made a finding of no significant impact regarding the extend power uprate, Point Beach Nuclear Plant (PBNP), Units and - Issuance of License Amendments Regarding Extended Power Uprate (TAC Nos. ME and ME) (May, ) (ML).
Petitioner provides nothing to indicate that Point Beach is operating inconsistent with its WPDES permit, which determined thermal discharge, impingement, and entrainment impacts to be minimal.128 Even Petitioner acknowledges that an August memorandum attached to the current WPDES permit concludes that the thermal plume authorized by the thermal discharge limit would cause minimal impacts to such fish and invertebrates communities, although portions of the mixing zone will not be not suitable for all stages of representative species.129 In addition, general and conclusory statements about occasional bird mortality and the cumulative impact analysis do not raise a genuine dispute with the application.130 In short, the contention that NEPA and NRC regulations require consideration a cooling tower mitigation as a reasonable alternative to reduce adverse impacts during subsequent license renewal is inadmissible because it fails to satisfy the requirements of C.F.R.
§.(f)()(vi). While Petitioner raises a site-specific issue, identifies adverse impacts, and correctly states that an applicants Environmental Report needs to consider mitigation alternatives (i.e., means to reduce or avoid adverse impacts), Petitioner does not provide sufficient information to show a genuine dispute on a material issue of law or fact. Therefore, proposed Contention is not admissible.
. Proposed Contention Is Not Admissible Proposed Contention states that:
Point Beachs continued operation violates [C.F.R.] Part,
Appendix A, [General Design] Criterion [(GDC)] because the reactor coolant pressure boundary has not been tested so as to have an extremely low probability of abnormal leakage, of rapidly propagating failure, and of gross rupture, and the aging management plan does not provide the requisite reasonable assurance.131 128 See Environmental Report at Attachment B; SEIS at §.. through...
129 Petition at (citing WPDES permit at / of pdf).
130 See Petition at, -,.
131 Petition at.
Proposed Contention is related to reactor pressure vessel neutron embrittlement and pressurized thermal shock. Reactor pressure vessel neutron embrittlement results from the neutron irradiation of the reactor pressure vessel during reactor operation, which reduces the fracture toughness of ferritic steel in the vessel.132 Neutron embrittlement could lead to brittle failure during normal and off-normal operating conditions.133 The NRCs regulations at C.F.R.
Part, Appendix H require the monitoring of reactor pressure vessel neutron embrittlement to ensure that, consistent with C.F.R.. and C.F.R. Part, Appendix G, the vessel continues to have adequate fracture toughness to prevent brittle failure.134 And C.F.R.
§. defines pressurized thermal shock as an event or transient that causes severe overcooling (thermal shock) concurrent with or followed by significant pressure in the reactor vessel.135 Capsules (alternatively referred to as coupons by Petitioner)136 are specimens of the reactor vessel material that are placed near the inside vessel wall so that they duplicate, as closely as possible, the neutron spectrum, temperature history, and maximum neutron fluence experienced at the reactor vessels inner surface, while also typically receiv[ing] neutron fluence exposures that are higher than the inner surface of the reactor vessel.137 This allows capsules to be withdrawn and tested [for fracture toughness data] prior to the inner surface receiving an equivalent neutron fluence so that the surveillance test results bound the conditions at the end of operation.138 132 See NUREG-, Standard Review Plan for Review of Subsequent License Renewal Applications for Nuclear Power Plants,.- (July ) (MLA) (SRP-SLR).
133 Id.
134 See id.; NUREG-, Vol., Generic Aging Lessons Learned for Subsequent License Renewal (GALL-SLR) Report, XI.M (July ) (MLA) (GALL-SLR Report).
135 C.F.R. §.(a)().
136 See, e.g., Petition at.
137 GALL-SLR Report at XI.M-.
138 Id.
Petitioner claims that the [Point Beach] reactors contained enough coupons to last for years of operation and there are not enough coupons in the reactor core to test for
[reactor vessel neutron] embrittlement out to years of Point Beach operations.139 According to Petitioner, this is a concern because in a seriously embrittled reactor there is the risk of pressurized thermal shock, which could cause the reactor vessel to break open and release massive radioactivity into the surrounding area and the environment.140 And to avoid this scenario, Petitioner contends that there needs to be a complete physical analysis of the coupons from [the Point Beach] reactors and the five other reactors that are its embrittled cohorts141 to determine the reactor vessels actual embrittlement as opposed to using error-prone analytical calculations.142 Without such an analysis, there is no scientific basis by which the Point Beach reactors should continue operating.143 (a) Proposed Contention Does Not Meet C.F.R. §.(f)()(vi) Because it Does Not Show that a Genuine Dispute Exists As an initial matter, proposed Contention is not admissible because it does not show that a genuine dispute exists with NextEra on a material issue of law or fact by referencing to specific portions of the SLRA as required by C.F.R. §.(f)()(vi). A petitioner is required to read the pertinent portions of an application, state the applicants position and the petitioners opposing view, and explain why it disagrees with the applicant;144 Petitioner does not do this.
The only references made to the SLRA as part of proposed Contention are that an unidentified aging management plan does not provide requisite reasonable assurance concerning the 139 Petition at.
140 Id. at.
141 Id. at.
142 Id. at.
143 Id. at.
144 Fed. Reg. at,-.
reactor coolant pressure boundary145 and that Point Beach is storing two capsules in the spent fuel pool, one from each unit and that each reactor still contains a Capsule N held on standby.146 Proposed Contention then proceeds to fault the SLRA for not discussing the withdrawal and testing of coupons and the consideration of embrittlement data from other facilities, but does not reference the specific portions of the SLRA that it claims fail to do this.147 The Petitioner asserts without specificity to the SLRA and the aging management programs (AMPs) and time-limited aging analyses (TLAAs) therein that an unnamed AMP does not provide the requisite reasonable assurance concerning the reactor coolant pressure boundary and that the withdrawal and testing of coupons and the consideration of data from other facilities is insufficient with respect to neutron embrittlement and pressurized thermal shock. The Staff notes, however, that the SLRA identifies several AMPs and TLAAs to address these issues; specifically, the Neutron Fluence Monitoring AMP, the Reactor Vessel Material Surveillance AMP, and the Reactor Pressure Vessel Neutron Embrittlement TLAAs,148 which are based on NRC guidance.149 These portions of the SLRA provide that NextEra has committed to the withdrawal and testing of the Supplemental A surveillance capsule, which will receive between one to two times the peak reactor vessel neutron fluence of interest at the 145 Petition at.
146 Id. at.
147 Id. at -.
148 SLRA at.--.-;.-. Table.- of the SLRA also provides that reactor vessel neutron embrittlement is addressed as a TLAA in Section. of the SLRA and managed with the Reactor Vessel Material Surveillance and Neutron Fluence Monitoring AMPs. SLRA at.--.-. In total, the issues of neutron embrittlement and pressurized thermal shock raised in proposed Contention are discussed in the TLAA in Section. of the SLRA (pages.--.-), the capsule withdrawal schedule and reactor vessel neutron embrittlement discussions and the licensee commitments in Appendix A of the SLRA (pages A--A-, A--A-, A-, and A-), and the Neutron Fluence Monitoring and Reactor Vessel Material Surveillance AMPs in Appendix B of the SLRA (pages B--B-and B--B-).
149 See GALL-SLR Report at X.M and XI.M (discussing a reactor vessel material surveillance AMP and a neutron fluence monitoring AMP that would satisfy C.F.R. Part, C.F.R. §., and C.F.R. Part, Appendices G and H); SRP-SLR at. (discussing Reactor Pressure Vessel Neutron Embrittlement Analyses and describing how pressurized thermal shock may be addressed consistent with C.F.R. Part and C.F.R. §.).
end of the subsequent license renewal period.150 The SLRA also provides that Point Beach is part of an irradiation surveillance program in which member materials are irradiated at host plants and will use the data from this program as supplemental data.151 Moreover, the SLRA discusses the consistency of the proposed Point Beach Neutron Fluence Monitoring and Reactor Vessel Material Surveillance AMPs with the corresponding AMPs in the GALL-SLR Report.152 Therefore, the SLRA contains an extensive discussion of the issues that Petitioner seeks to dispute; however, Petitioner does not address any of this discussion.
Because Petitioner does not acknowledge, let alone dispute, the portions of the SLRA pertinent to its arguments, its proposed Contention does not satisfy the genuine dispute requirement of C.F.R. §.(f)()(vi) and thus is not admissible.153 (b) Proposed Contention Challenges the NRCs Regulations without a Waiver Proposed Contention is also not admissible because its argument that there is no scientific basis by which the Point Beach reactors should continue operating unless there is a complete physical analysis of the coupons from its reactors and the five other reactors that are its embrittled cohorts154 challenges the NRCs regulations without a waiver of those regulations.
150 SLRA at B--B-; see also id. at A-.
151 SLRA at B--B-.
152 Id. at B-, B-. See Seabrook, CLI--, at (citing Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI--, NRC, (); Oyster Creek, CLI--,
NRC at -) (While referencing an AMP in the GALL Report does not insulate that program from challenge in litigation, as discussed above, [petitioners] have not submitted an adequately supported challenge here.).
153 Proposed Contention also contains numerous statements that criticize the NRC. See e.g., Petition at, ([T]he NRC has systematically removed conservative calculational aspects of the embrittlement process to allow continued operation.). However, the sole focus of the hearing is on whether the application satisfies NRC regulatory requirements, rather than the adequacy of the NRC staff performance. Fed. Reg. at,. Therefore, these generalized grievances about NRC policies also fail to satisfy the genuine dispute requirement of C.F.R. §.(f)()(vi) and do not amount to an admissible contention. See Millstone, CLI--, NRC at (quoting Oconee, CLI--, NRC at
).
154 Petition at.
Neither the NRCs license renewal guidance and regulations in C.F.R. Part nor the related regulations governing operation of a nuclear power plant in C.F.R. Part require the actions sought by Petitioner. The guidance supporting subsequent license renewal explains that neutron embrittlement and pressurized thermal shock are addressed by the requirements in C.F.R.. and C.F.R. Part, Appendices G and H and that the guidance provides one acceptable method of satisfying these requirements during the subsequent license renewal period.155 For example, this guidance provides one acceptable program, which requires less testing than Petitioner contends should be required. Under this guidance, an acceptable program could involve the withdrawal and testing of at least one capsule that has attained neutron fluence between one and two times the peak reactor vessel wall neutron fluence of interest at the end of the subsequent license renewal period and that this capsule could come from either the facilitys reactor or, if the facility is part of an integrated surveillance program, another host reactor.156 Therefore, Petitioners contention seeks to require of NextEra actions that are not required by the NRCs regulations. The Commissions longstanding practice has been to reject such challenges as collateral attacks on the NRCs regulations.157 Under C.F.R. §., the NRCs regulations may not be challenged in adjudicatory proceedings absent a waiver; and Petitioner has not requested a waiver here.
Because proposed Contention challenges the NRCs regulations without a waiver of those regulations, it is not admissible.158 155 See GALL-SLR Report at X.M and XI.M; SRP-SLR at..
156 GALL-SLR Report at XI.M--XI.M- (For an [integrated surveillance program], in some cases the plant Reactor Vessel Material Surveillance program may result in no surveillance capsules being irradiated in the plants reactor vessel, with the plant relying on data from testing of the [integrated surveillance program] capsules from the host plants of the capsules.).
157 Seabrook, CLI--, NRC at -.
158 To the extent that Petitioner disagrees with the NRCs regulatory framework with respect to neutron embrittlement and pressurized thermal shock, it may submit a petition for rulemaking pursuant to C.F.R. §.. See, e.g., NextEra Energy Seabrook, LLC (Seabrook Station, Unit ), CLI--, NRC,
().
(c) Proposed Contention Does Not Meet C.F.R. §.(f)()(iii) Because it Challenges Current Operating Issues Finally, proposed Contention is not admissible because its arguments regarding Point Beachs current compliance with GDC do not satisfy the scope requirement of C.F.R.
§.(f)()(iii).
Proposed Contention claims that there are not enough coupons for Point Beach to operate for years,159 that neutron embrittlement is a present danger,160 that there is no record of coupon samples being tested at Point Beach for at least ten years,161 that, [d]uring the last years of operation, Point Beach has failed to develop an adequate coupon program to physically test the integrity of the [reactor pressure vessels],162 that [t]here is inadequate coupon data specific to Point Beach to justify its continued operation beyond its th year,163 and that, therefore, [Point Beach] has been violating GDC,164 because the Point Beach reactor vessels [have] not been tested so as to have an extremely low probability of abnormal leakage, of rapidly propagating failure, and of gross rupture for perhaps more than years.165 To the extent that these arguments assert that Point Beach is not in compliance with GDC under its current licenses, they do not satisfy the scope requirement of C.F.R.
§.(f)()(iii) in this subsequent license renewal proceeding166 and thus proposed Contention is not admissible.
159 Petition at,.
160 Id. at.
161 Id.
162 Id. at.
163 Id.
164 Id.
165 Id. at - (quoting GDC ).
166 C.F.R. §.(b) (The licensees compliance with the obligation to take measures under its current license is not within the scope of the license renewal review.); Turkey Point, CLI--, NRC at (Adjudicatory hearings in individual license renewal proceedings will share the same scope of
. Proposed Contention Is Not Admissible Proposed Contention 3 states that:
The Environmental Report fails to adequately evaluate the full potential for renewable energy sources, such as solar electric power (photovoltaics) to offset the loss of energy production from
[Point Beach], and to make the requested license renewal action from 2030 to 2053 unnecessary.167 In this contention, Petitioner argues that the Environmental Report should include a solar and storage alternative.168 Further, Petitioner asserts that the subsequent renewal of the Point Beach licenses is not necessary because the need for power will be greatly reduced during the subsequent license renewal term, due to a combination of the decreasing costs of renewables and increasing energy efficiency.169 As discussed below, this contention fails to satisfy the contention admissibility requirements at 10 C.F.R. § 2.309(f)(1)(iii) and (vi). First, to the extent that Petitioner challenges the need for power, the contention is outside the scope of this proceeding.170 Under the NRCs regulations, the Environmental Report need not include a discussion of the need for power.171 Second, to the extent that Petitioner asserts that a solar and storage alternative should have been considered as an alternative in the Environmental Report, Petitioner has not provided sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact.172 Petitioner has not provided sufficient information to challenge the applicants conclusion that a solar and storage alternative is not reasonable because this issues as our NRC Staff review, for our hearing process (like our Staffs review) necessarily examines only the questions our safety rules make pertinent.).
167 Petition at.
168 Id. at -.
169 Id. at -.
170 C.F.R. §.(f)()(iii).
171 C.F.R. §.(c)(); C.F.R. §.(c).
172 C.F.R. §.(f)()(vi).
proposed alternative would not be commercially viable on a utility scale and operational prior to the expiration of the current Point Beach licenses.173 (a) Proposed Contention 3 Does Not Meet 10 C.F.R. § 2.309(f)(1)(iii) Because it is Not Within the Scope of the Proceeding Insofar as proposed Contention 3 states that the requested license renewal action from 2030 to 2053 [is] unnecessary,174 it is inadmissible.175 Petitioner has not demonstrated that the contention is within the scope of this proceeding, as is required by 10 C.F.R. § 2.309(f)(1)(iii).
Further, Petitioner asserts that its experts have wreck[ed] the notion of any alleged economic justification for the continued operation of [Point Beach] today through the early 2030s, let alone the early 2050s176 by contending that improvements in solar generation, battery storage, and energy efficiency will make it so that there will be no need for the power generated by Point Beach. But as Petitioner admits, the scope of the environmental review in a license renewal proceeding is defined by 10 C.F.R. Part 51;177 and under 10 C.F.R.
§ 51.53(c)(2), an applicants environmental report is not required to include discussion of need for power or economic costs. Therefore, to the extent proposed Contention 3 challenges the need for power from Pont Beach during the subsequent license renewal period, it is outside the scope of this proceeding and cannot satisfy 10 C.F.R. § 2.309(f)(iii).178 173 See NUREG-, Rev., Vol., at -; see also NextEra Energy Seabrook, LLC (Seabrook Station, Unit ), CLI--, NRC, () (internal quotations omitted).
174 Petition at.
175 C.F.R. §.(c)(). Additionally, C.F.R. §.(c) states that [e]nvironmental reports prepared at the license renewal stage under [ C.F.R.] §.(c) need not discuss the economic benefits and costs of either the proposed action or alternatives.
176 Petition at.
177 Id. at.
178 Further, under C.F.R. §., to challenge the need for power in this subsequent license renewal proceeding, Petitioner would first have to request a waiver of C.F.R. §.(c)() and would have to demonstrate special circumstances unique to Point Beach. Petitioner has not requested such a waiver, nor has it satisfied the related procedural requirements. Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units and ), CLI--, NRC, - ().
(b) Proposed Contention 3 Does Not Meet 10 C.F.R. § 2.309(f)(1)(vi) Because it Does Not Provide Sufficient Information to Show that a Genuine Dispute Exists with the Application on a Material Issue of Law or Fact Proposed Contention 3 further challenges the Environmental Report by claiming that it fails to adequately evaluate the full potential for renewable energy sources such as a solar and storage alternative. But the contention is not admissible on these grounds because Petitioner does not provide sufficient information to show that a genuine dispute exists with the Environmental Report as is required by 10 C.F.R. § 2.309(f)(1)(vi).
NEPA requires agencies to take a hard look at the environmental impacts of a proposed major Federal Action that could significantly affect the environment, as well as reasonable alternatives to that action.179 Under NEPA, agencies have broad discretion to keep their inquiries within appropriate and manageable boundaries.180 As the Commission has observed, NEPA requires consideration of reasonable alternatives, not all conceivable ones.181 The NRC has provided clear guidance on reasonable alternatives that should be considered in license renewal proceedings. In the 1996 final rule regarding the environmental review for renewal of nuclear power plant operating licenses, the NRC indicated that [i]n preparing the alternatives analysis, the applicant may consider information regarding alternatives in [the GEIS]182 And the GEIS clarifies that a reasonable alternative must be commercially viable on a utility scale and operational prior to the expiration of the reactors 179 See Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), LBP--, NRC,
() (quoting Robertson v. Methow Valley Citizens Council, U.S., ()); see also Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI--, NRC, - ().
180 Crow Butte Resources, Inc. (Marsland), LBP--, NRC, (quoting Claiborne, CLI--,
NRC at ).
181 NextEra Energy Seabrook, LLC (Seabrook Station, Unit ), CLI--, NRC, ().
182 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, Fed. Reg.,,
, (Jun., ). The NRC reaffirmed this guidance in the final rule that adopted revision to the GEIS. See Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, Fed. Reg., (Jun., ).
operating license, or expected to become commercially viable on a utility scale and operational prior to the expiration of the reactors operating license.183 The Commission has explained that to raise a genuine dispute, contentions regarding reasonable alternatives in license renewal proceedings must provide alleged facts or expert opinion sufficient to raise a genuine dispute as to whether commercially viable alternate technology is available now, or will become so in the near future.184 Petitioner has failed to raise a genuine dispute here because it does not provide sufficient information to demonstrate that its proposed solar and storage option is commercially viable on a utility scale or that it will become so in the near future.
The crux of Petitioners argument is that the determination in the Environmental Report that discrete solar is an unreasonable alternative to the proposed action due to the acreage requirements is incorrect.185 But Petitioner fails to articulate a genuine dispute with the Environmental Reports conclusion that the solar alternative is unreasonable due to the environmental impacts of installing such a large solar array. Moreover, Petitioners claim that commercial and residential rooftop installations could provide the needed land area ignores the practical and legal realities of such a proposal, which render the suggestion unreasonable in an environmental review.
Despite the lengthy discussion in the Petition, Petitioner does not demonstrate a genuine dispute of a material fact with the Environmental Report. In the Environmental Report, NextEra addresses this very issue: solar with battery storage could be a reasonable alternative; 183 NUREG-, Rev., Vol., at -. This is consistent with guidance provided by the Council on Environmental Quality that reasonable alternatives comprise those that are practical or feasible from the technical and economic standpoint and using common sense. Forty Most Asked Questions Concerning CEQs National Environmental Policy Act Regulations, Fed. Reg.,,, (Mar.,
).
184 NextEra Energy Seabrook, LLC (Seabrook Station, Unit ), CLI--, NRC, () (internal quotations omitted).
185 Compaan Declaration at ; Petition at.
however, its generation capacity is far less than nuclear generation [and] the solar generation capacity estimated for a Wisconsin location is also approximately two-thirds of that estimated by
[the Energy Information Administration] as a U.S. average.186 Even Petitioners expert acknowledges that [NextEras] discussion of the solar resource appropriate for flat solar modules in Wisconsin is approximately valid.187 Petitioners expert does claim to use a more appropriate estimation method that includes optimally tilted panels and the small losses that occur with inverters that convert DC to AC power;188 but this minor difference is not sufficient to create a genuine dispute with the Environmental Report.
Further, Petitioner does not explain how NextEra, a merchant generator, would have access to the residential and commercial rooftops or the conserved farmlands required for installation of solar arrays. Aside from noting that rooftops and conserved farmlands exist, Petitioner provides no details on how NextEra would acquire the legal authority to install solar arrays on private rooftops or on the farmlands already entered into the conservation program, both of which would be necessary to implement the alternative proposed in the contention.
Even if NextEra were to gain access to these rooftops and farmlands, Petitioner has not shown that this distributed generation would be viable by the time Point Beachs current licenses expire and at the scale needed to replace the power generated by the reactors.189 As noted above,
[a] reasonable alternative must be commercially viable on a utility scale and operational prior to the expiration of the reactors operating license.190 NextEra considered solar power as an alternative, determined that it was not commercially viable, and listed several reasons to support 186 Environmental Report at §.....
187 Compaan Declaration at.
188 Id.
189 See NUREG-, Rev., Vol., at -.
190 Id. (emphasis added).
that conclusion.191 Proposed Contention 3 does not address these material issues. Because Petitioner has failed to provide sufficient information showing that a genuine dispute exists with the Environmental Report on a material issue of law or fact, Petitioner has failed to proffer an admissible contention under 10 C.F.R. § 2.309(f)(1)(vi).
In sum, proposed Contention 3 is not admissible under 10 C.F.R. § 2.309(f)(1)(iii) or 10 C.F.R. § 2.309(f)(1)(vi). To the extent that Petitioner challenges the need for power, the contention is outside the scope of the proceeding because the Environmental Report need not include a discussion of the need for power.192 To the extent that Petitioner asserts that a solar and storage alternative should have been considered as a reasonable alternative, Petitioner has not provided sufficient information to show that a genuine dispute exists with the Environmental Report on a material issue of law or fact because Petitioner has not provided sufficient information to challenge NextEras conclusion that this alternative would not be commercially viable on a utility scale and operational prior to the expiration of the current Point Beach licenses.193
. Proposed Contention Is Not Admissible Proposed Contention states that
[Point Beach] has an elevated risk of a turbine missile accident owing to the poor alignment of its major buildings and structures.194 This contention argues that Point Beach has a turbine hall that is dangerously aligned relative to the reactor buildings and control rooms and that this design is unsafe, because a turbine failure will send [pound] pieces of shrapnel hurtling at [miles per hour] into the 191 See Environmental Report at §.....
192 C.F.R. §.(c)().
193 See NUREG-, Rev., Vol., at -; see also NextEra Energy Seabrook, LLC (Seabrook Station, Unit ), CLI--, NRC, () (internal quotations omitted).
194 Petition at.
containment, safety-related components, and the control room.195 It also argues that, although the application discusses aging management to guard against missiles from fragmented components, it does not discuss missiles from steam turbine shafts or blades.196 Proposed Contention concludes that to reduce the risk of damage to safety-related systems, structures, and components, [Point Beach] should be required to install an energy-absorbing turbine missile shield around its turbine.197 As conceded by Petitioner, the danger from these potential turbine missiles has to do with the physical alignment of Point Beachs buildings as part of the original design of the facility,198 which has existed since the construction of Point Beach. The physical alignment of Point Beachs buildings is, by its very nature, neither germane to age-related degradation nor unique to the period covered by the SLRA;199 operation during the subsequent license renewal period will not affect the alignment of Point Beachs buildings. Therefore, the potential danger due to turbine missiles based on this alignment of buildings is a current operating issue that is not unique to whether the Point Beach licenses should be renewed.200 A central principle of
[the NRCs] license renewal regulations is that such issues must be addressed as they arise.201 Accordingly, proposed Contention is not within the scope of this subsequent license renewal proceeding as required by C.F.R. §.(f)()(iii) and thus is not admissible.202 195 Id. at.
196 Id. at.
197 Id.
198 Id. at.
199 See Millstone, CLI--, NRC at -.
200 See Pacific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units and ), CLI--, NRC
, - () (internal quotations omitted).
201 Id. at (citing Fed. Reg. at,-; Millstone, CLI--, NRC at -).
202 Petitioners assertion that Point Beach should be required to install an energy-absorbing turbine missile shield around its turbine, Petition at, is more appropriately pursued under C.F.R. §.,
see Millstone, CLI--, NRC at.
CONCLUSION The Board should deny the PSR WI petition for failure to proffer at least one admissible contention.
Respectfully submitted,
/Signed (electronically) by/
Mitzi A. Young Counsel for NRC Staff Mail Stop: O--A U.S. Nuclear Regulatory Commission Washington, DC -
Telephone: () -
E-mail: Mitzi.Young@nrc.gov Executed in Accord with CFR.(d)
Jeremy L. Wachutka Counsel for NRC Staff Mail Stop: O--A U.S. Nuclear Regulatory Commission Washington, DC -
Telephone: () -
E-mail: Jeremy.Wachutka@nrc.gov Executed in Accord with CFR.(d)
Travis C. Jones Counsel for NRC Staff Mail Stop: O--A U.S. Nuclear Regulatory Commission Washington, DC -
Telephone: () -
E-mail: Travis.Jones@nrc.gov Dated this th day of April
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of NEXTERA ENERGY POINT BEACH, LLC (Point Beach Nuclear Plant, Units and )
Docket No. - & --SLR Certificate of Service Pursuant to C.F.R §., I hereby certify that copies of the foregoing NRC STAFFS ANSWER OPPOSING PHYSICIANS FOR SOCIAL RESPONSIBILITY WISCONSINS PETITION TO INTERVENE, dated April,, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this th day of April.
/Signed (electronically) by/
Mitzi A. Young Counsel for NRC Staff Mail Stop: O--A U.S. Nuclear Regulatory Commission Washington, DC -
Telephone: () -
E-mail: Mitzi.Young@nrc.gov Dated at Rockville, Maryland this th day of April