ML24047A300
| ML24047A300 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 02/16/2024 |
| From: | Sherwin Turk NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 56931, LBP-24-01, 50-338-SLR-2, 50-339-SLR-2 | |
| Download: ML24047A300 (0) | |
Text
February 16, 2024 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of VIRGINIA ELECTRIC AND POWER COMPANY (North Anna Power Station, Units 1 and 2)
Docket Nos. 50-338-SLR-2 and 50-339-SLR-2 NRC STAFFS ANSWER TO BEYOND NUCLEAR AND SIERRA CLUBS NOTIFICATION OF RELEVANCE OF LBP-24-01 TO THIS PROCEEDING AND REQUEST TO IMMEDIATELY SUSPEND HEARING REQUEST DEADLINE PENDING RESOLUTION OF CERTIFIED QUESTION RAISED IN LBP-24-01 Pursuant to 10 C.F.R. § 2.323(c), the Staff of the U.S. Nuclear Regulatory Commission hereby responds to the Notification of Relevance of LBP-24-01 to This Proceeding and Request to Immediately Suspend Hearing Request Deadline Pending Resolution of Certified Question Raised in LBP-24-01 (Motion to Suspend) filed by Beyond Nuclear and the Sierra Club (Movants) on February 12, 2024. In their Motion, the Movants (a) inform the Commission of a recent decision by the Atomic Safety and Licensing Board (Board) in the Turkey Point subsequent license renewal (SLR) proceeding, in which the Board certified a question to the Commission, and (b) request that the deadline for filing petitions to intervene in this proceeding be suspended to await the Commissions resolution of the Turkey Point Boards certified question. For the reasons set forth below, the NRC staff opposes the Motion to Suspend and recommends that it be denied.
BACKGROUND The Movants Motion to Suspend represents the third motion filed by the Movants in which they have sought to delay the filing of petitions to intervene in this proceeding. Three weeks earlier, on January 18, 2024, the Movants filed their Motion for Withdrawal of Premature Hearing Notice (First Motion), in which they asked the Commission to order the Secretary of the Commission to withdraw the premature Hearing Opportunity Notice published on January 8, 2024, based on their assertion that the Commission did not intend the hearing process... to begin until after publication of a final EIS.1 And, on February 1, 2024, the Movants filed a second, conditional motion, seeking to extend their deadline for filing a petition to intervene if the Commission should deny their First Motion.2 The procedural history of this proceeding was described, in detail, in the Staffs January 29, 2024, Answer to the Movants First Motion.3 The Staff hereby incorporates that discussion here. As pertinent here, the Staff published a Notice of Opportunity for Hearing in this proceeding on October 15, 2020,4 and published a second Notice of Opportunity for 1 Motion for Withdrawal of Premature Hearing Notice (First Motion) (Jan. 18, 2024), as corrected (Jan. 22, 2024). The NRC staff and Virginia Electric and Power Company (Applicant) filed answers opposing the First Motion on January 29, 2024. See (1) NRC Staffs Answer to Beyond Nuclear and Sierra Clubs Motion for Withdrawal of Premature Hearing Notice (Jan. 29, 2024) (Staff Answer to First Motion); and (2) Applicants Answer Opposing Beyond Nuclears and Sierra Clubs Motion For Withdrawal Of Hearing Notice (Jan. 29, 2024) (Applicants Answer to First Motion).
2 Conditional Motion by Beyond Nuclear and Sierra Club for Extension of Time to Submit Hearing Request (Feb. 1, 2024) (Conditional Motion). See also, Applicants Answer Opposing Beyond Nuclears and Sierra Clubs Conditional Motion for Extension of Time to Submit Hearing Request (Feb. 2, 2024).
The Staff did not file a response to the Movants Conditional Motion but, as noted in the Movants Certificate of Counsel Pursuant to 10 C.F.R. § 2.323(b) appended to the Conditional Motion, the Staff stated that it opposes a 6-week extension of time, but would not oppose a two-week extension.
Conditional Motion, at 10.
3 Staff Answer to First Motion, at 2-6.
4 North Anna Power Station, Units 1 and 2, Subsequent license renewal application; opportunity to request a hearing and to petition for leave to intervene, 85 Fed. Reg. 65,438 (Oct. 15, 2020).
Hearing on January 8, 2024,5 following the issuance of the Staffs site-specific Draft Environmental Impact Statement (Draft EIS or DEIS) for North Anna SLR.6 In issuing the second Notice, the Staff followed the Commissions direction in CLI-22-3,7 which required the Staff to issue a notice of opportunity for hearing after [a]fter each site-specific review is complete;8 the second Notice afforded members of the public an opportunity to comment on the site-specific Draft EIS and to file new or amended contentions based on new information presented in the Draft EIS.9 The Movants Third Motion asks the Commission to suspend the time for filing petitions to intervene in this proceeding until the Commission has ruled upon the certified question issued by the Board in the Turkey Point SLR proceeding in LBP-24-01. There, the Board certified the following question to the Commission:
Should the NRC Staff have waited to issue the notice of opportunity for hearing until it completed the Final SEIS
[Supplemental Environmental Impact Statement], and if so, how does that impact the conduct of this proceeding?10 5 Virginia Electric and Power Company; North Anna Power Station Units 1 and 2; Draft Environmental Impact Statement, Request for comment; public comment meetings; opportunity to request a hearing and to petition for leave to intervene, 89 Fed. Reg. 960 (Jan. 8, 2024).
6 NUREG-1437, Supplement 7a, Second Renewal, Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 7a, Second Renewal, Regarding Subsequent License Renewal for North Anna Power Station Units 1 and 2, Draft Report for Comment (December 2023)
(ML23339A047).
7 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3), Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), NextEra Energy Point Beach, LLC (Point Beach Nuclear Plant, Units 1 and 2),
Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), CLI-22-3, 95 NRC 40 (2022).
8 Id., 95 NRC at 42.
9 89 Fed. Reg. at 960. Cf. Oconee, CLI-22-3, 95 NRC at 41-43. The Commission stated that members of the public will have an opportunity to comment during the development of the site-specific EISs, and that
[a]fter each site-specific review is complete, a new notice of opportunity for hearing -- limited to contentions based on new information in the site-specific environmental impact statement -- will be issued. Id. at 42.
10 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), Memorandum (Certifying Question to the Commission Regarding Timing of Notice of Opportunity for Hearing), LBP-24-01, 99 NRC ___ (Jan. 31, 2024) (slip op.).
The Movants observe that the certified question in LBP-24-01 is relevant to this proceeding, and assert that [t]he Commissions disposition of LBP-24-01 may moot or otherwise affect Movants pending motion to the Commissioners to withdraw the hearing notice for this proceeding.11 Further, the Movants assert that [a] temporary suspension of this proceeding will allow the Commission to determine whether submission of hearing requests is necessary at this time, potentially saving the parties and the ASLB a wasted effort.12 Finally, the Movants argue that the criteria for a stay in 10 C.F.R. § 2.342 should be applied, [t]o the extent the Commissions standard for injunctive relief is applicable here.13 DISCUSSION The Movants appear to base their arguments and their request for a stay on a misunderstanding of when the Staffs environmental review is complete. In their First Motion, the Movants argued that the Federal Register Notice published on January 8, 2024 was premature, based on their assertion that in CLI-22-3, the Commission contemplated that hearings on site-specific EISs for SLR applications -- including the SLR application for North Anna -- must await completion of the entire environmental review process.14 In support of this claim, they quoted the Commissions statements in CLI-22-3 that [a]fter each site-specific review is complete, a new notice of opportunity for hearing limited to contentions based on new information in the site-specific environmental impact statement will be issued.15 They further asserted that [t]he Commissions repeated use of the word complete to describe the status of the environmental review demonstrates unequivocally that the Commission did not 11 Motion to Suspend, at 1.
12 Id. at 2.
13 Id.
14 First Motion at 2, 3.
15 Id. at 3, quoting CLI-22-3, 95 NRC at 42 (emphasis in original).
intend the hearing process for these particular site-specific environmental reviews to begin until after publication of a final EIS.16 In their Motion to Suspend, the Movants point to the Turkey Point Boards certified question, in which the Board asked the Commission to decide whether the NRC Staff should have waited to issue the notice of opportunity for hearing until it completed the Final SEIS.17 While the Turkey Point Board suggested that the Staffs environmental review can not be considered complete until a final EIS is issued,18 nowhere did the Board point to any language in CLI-22-3 in which that view was expressed. Moreover, as the Staff noted in its Answer to the Movants First Motion, the Commission did not state that a notice of opportunity for hearing is to be published following issuance of either a final EIS or a draft EIS. Rather,... the Commission directed that [a]fter each site-specific review is complete, a new notice of opportunity for hearing... will be issued.19 Thus, the Boards reading of the Commissions direction in CLI-22-3 is not grounded on any explicit statement in CLI-22-3, and fails to consider the fact (as explained in the Staffs Answer to the First Motion), that the Staffs environmental review is complete at the time the draft EIS is issued.
In this regard, the Staffs long standing guidance for conducting environmental reviews of nuclear power plant applications is instructive. Specifically, the Environmental Standard Review Plan (ESRP), NUREG-1555, states as follows:
When the review and evaluation of the applicants ER have progressed to the point at which the EPM [environmental project manager] and reviewers have completed their review and 16 Id. at 3-4. The Staff responded to the Movants arguments in full, in its Answer to the First Motion. See Staff Answer to First Motion, at 6-10.
17 Motion to Suspend, at 1.
18 LBP-24-01, slip op. at 6 (complete means complete, not substantially complete; and here, the Staff issued the notice of opportunity for hearing simultaneously with the opportunity to comment on the Draft SEISduring the development processcalling into question whether the site-specific review was complete.).
19 Staff Answer to First Motion, at 7 (emphasis added).
evaluation, sections of the draft environmental impact statement (DEIS) are prepared; depending on the licensing application, the DEIS may be a stand alone document or a supplement to an existing EIS or generic environmental impact statement (GEIS).20 Similarly, the ESRP for license renewal states as follows:
When the review and evaluation of the applicants ER have progressed to the point at which the EPM and reviewers have completed their review and evaluation, sections of a draft supplemental environmental impact statement (SEIS) are prepared.21 Thus, the DEIS is prepared after the Staffs environmental reviewers have completed their review and evaluation. As part of that evaluation, the Staff gathers information from the applicants Environmental Report, the scoping process and its own independent research; evaluates that information; and prepares a summary of its review and evaluation which it then publishes as a draft EIS. At that point, the Staffs review and evaluation is complete.
Nor does a draft EIS represent an incomplete evaluation of the proposed action, as the Board in LBP-24-01 apparently believed. As stated in NUREG-1555 and recited above, the draft EIS presents the Staffs completed evaluation, subject only to possible revisions, if any, that might be made in response to public comments.22 Similarly, the Staffs response to the 20 NUREG-1555, Standard Review Plans for Environmental Reviews for Nuclear Power Plants:
Environmental Standard Review Plan for New Site/Plant Applications (Initial ESRP) (Oct. 1999) (ML ML17060A994), at 3.
21 NUREG-1555, Supp. 1, Standard Review Plans for Environmental Reviews for Nuclear Power Plants:
Environmental Standard Review Plan for Operating License Renewal (NUREG-1555, Supplement 1)
(Oct. 1999) (ML ML003702019, at 3.
22 As stated in NUREG-1555, Supplement 1:
The draft SEIS issued to the public is a summary of the staffs initial conclusions regarding an application. The draft SEIS is not a draft in the sense of being incomplete. Rather, it is a draft discussion of the proposed action and the staffs assessment of its potential benefits and environmental costs that is presented to the public to provide them with an opportunity to comment, request clarification, and recommend changes. The public can also provide additional information to the staff on whether or not the adverse environmental impacts of license renewal (continued...)
Movants First Motion recognizes that the Staffs environmental review is complete when the draft EIS is issued.23 Accordingly, the NRC Staff should not have waited to issue the notice of opportunity for hearing until it completed the Final EIS, and litigation in the proceeding should therefore move forward.
To be sure, the Staff does not contest the Movants view that the certified question in LBP-24-01 is relevant to this proceeding, or that a Commission ruling on the certified question in LBP-24-01 could affect the Movants motion to withdraw the North Anna hearing notice and the deadline for filing contentions in this proceeding.24 Indeed, the Staff recognizes that the Commission may wish to consider the certified question in LBP-24-01 prior to ruling on the pending motions in this proceeding.
The Staff, however, opposes the Movants argument that the criteria for a stay in 10 C.F.R. § 2.342 should be applied, that those criteria support a stay of this proceeding, and that the Commissions standard for injunctive relief is applicable here.25 First, the Movants reliance on 10 C.F.R. § 2.342 is misplaced, in that the cited regulation explicitly applies only to a request to stay a decision or action of a presiding officer pending the filing and resolution of a are so great that preserving the option of license renewal for energy planning decision makers would be unreasonable.
If no comments are received, the draft SEIS can be published as a final SEIS. If comments are received, they are considered by the staff, and staff responses are located in one section of the final SEIS so that readers can determine the staffs response to comments. Responses to comments may take one or more of several forms: a portion of the draft SEIS may be changed, new material may be added to the appropriate section identified in the discussion of comments, or no change may ensue.
Id., at 4 (emphasis added). Cf. NUREG-1555, at 4 (providing a substantially similar statement). The Staff notes that this discussion was omitted in later revisions of the ESRP-LR: (NUREG-1555, Supplement 1, Rev. 1, Final Report) (June 2013) (ML13106A246) and (NUREG-1555, Supplement 1, Rev. 2, Final Report (Feb. 2024) (ML23201A227)).
23 Staff Answer to First Motion, at 7 (emphasis added 24 Motion to Suspend, at 1, 2.
25 Id. at 2.
petition for review thereof.26 No decision or action by a presiding officer is at issue here, and
§ 2.342 therefore does not apply.
Second, the criteria set forth in 10 C.F.R. § 2.342 do not support the Movants request.
Contrary to their assertions, they have not demonstrated a strong likelihood of prevailing on the merits. Rather, as discussed above and in the Staffs response to the Movants First Motion, the Staffs issuance of the notice of opportunity for hearing was consistent with the Commissions direction in CLI-22-3 and established NRC practice.
Further, the Movants have not demonstrated that they will suffer irreparable harm if this proceeding is not suspended.27 Indeed, the only harm they allege is that they will have to invest significant time and resources to prepare a hearing request that may be unnecessary if they were allowed to wait for the Final EIS - but they, themselves, recognize that economic expenditures are not generally recognized as irreparable harm.28 Indeed, it is well established that the threat of additional litigation expense and effort does not establish irreparable harm,29 even for nonprofit organizations and ordinary citizens who may lack the same scale of staffing and financial resources as the federal government and the nuclear industry.30 26 10 C.F.R. § 2.342(a).
27 As the Commission has held, the most crucial factor in considering a stay request is whether denying a stay will cause irreparable harm to the party requesting the stay. The requestor must show that it faces imminent, irreparable harm that is both certain and great, actual and not theoretical.. Entergy Nuclear Operations, Inc., Entergy Nuclear Generation Co., Holtec International, and Holtec Decommissioning International, LLC (Pilgrim Nuclear Power Station), CLI-19-11, 90 NRC 258, 264 (2019).
28 Motion to Suspend at 3.
29 See, e.g., Powertech (USA) Inc. (Dewey-Burdock In Situ Uranium Recovery Facility), CLI-18-7, 88 NRC 1, 7 (2018) (in applying the standard for interlocutory review in 10 C.F.R. § 2.341(f)(2), the Commission held that a partys claim that it will be harmed by delay and expense did not establish irreparable harm, noting that the Commission has uniformly rejected arguments that expenses of any kind constitute irreparable injury.).
30 Motion to Suspend, at 3.
With respect to the third criterion (harm to other parties), the Movants have not shown that the suspension of this proceeding will not cause harm to any other party based on their claim that more than a decade remains before expiration of the operating licenses for North Anna Units 1 and 2.31 While it is true that there is little likelihood that the current licenses would expire prior to the conclusion of this SLR proceeding,32 further delays could arise during the course of litigation, and any delay could result in additional expense, uncertainty and harm to other parties. For example, in Turkey Point, the applicant asserted that delays in the resolution of its SLR application could harm the applicant.33 Such concerns have not been addressed by the Movants. Accordingly, they have not shown that this factor weighs in favor of a suspension.
Similarly, with respect to the fourth criterion (the public interest), the Staff agrees that the public interest favors the conduct of a fair and meaningful adjudicatory proceeding34 - but the January 2024 notice of opportunity for hearing, in fact, actually affords the Movants a fair and meaningful opportunity to litigate their concerns - both in response to the Draft EIS as well as in response to the final EIS when it is issued. Further, as the Staff stated previously, the public interest also favors the conduct of proceedings in an efficient and expeditious manner, so as not to cause delay in the issuance of licensing decisions, while assuring that petitioners rights are protected.35 Accordingly, the Movants have not shown that this factor weighs in their favor.
31 Id. at 4.
32 See also 10 C.F.R. § 2.109 (Effect of timely renewal application)..
33 See, e.g., Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), Florida Power &
Light Co.s Views on License Status as Requested in Commission Order CLI-22-02, at 6-7, 11 (Mar. 21, 2022) (ML22080A233) (citing potential impacts to the applicants current and long-term business planning and operations, including the companys energy rates and cost structures; licensing of other nuclear power facilities; planning, construction and operation of other electric generation, transmission and distribution facilities; transportation, processing and storage facilities; acquisition, disposal, depreciation and amortization of facilities and other assets; decommissioning costs and funding; service reliability; commodities trading and derivatives transactions; and implementation of aging management programs).
34 Motion to Suspend, at 4.
35 Staff Answer to First Motion, at 9 and n.34, citing Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 19 (1998).
Finally, the Staff notes that the Movants included in their request for suspension of the proceeding a wholly unrelated request, that if the Commission leaves the January 8, 2024, Notice in place, the Commission should provide a new 60-day period for the submission of hearing requests.36 However, the Movants request is vague, and does not explain under what circumstances they believe an additional 60-day period should be provided for the filing of hearing requests. Moreover, three weeks remain before the March 8 deadline for filing petitions to intervene in this proceeding.37 Nowhere in their Motion to Suspend do the Movants explain why an additional period of 60 days for the filing of petitions challenging the new, site-specific information evaluated in the Staffs DEIS is necessary or appropriate. Accordingly, the Staff opposes their request for an additional 60 days for the filing of petitions to intervene.38 CONCLUSION For the reasons set forth above, the Staff opposes the Movants request that this proceeding be suspended and/or that an additional 60 days be provided for the filing of petitions to intervene in this proceeding, and respectfully submits that their Motion should be denied.
Respectfully submitted,
/signed electronically by/
Sherwin E. Turk Counsel for NRC Staff Dated at Rockville, Maryland this 16th day of February 2024 36 Motion to Suspend, at 4-5.
37 89 Fed. Reg. at 960.
38 As the Staff has stated previously, the Staff would not oppose a two-week extension of time for the filing of the Movants petition to intervene. See Certificate of Counsel Pursuant to 10 C.F.R. § 2.323(b) appended to the Movants Conditional Motion, at 10.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of VIRGINIA ELECTRIC AND POWER COMPANY (North Anna Power Station, Units 1 and 2)
. Docket Nos. 50-338-SLR-2 50-339-SLR-2 Certificate of Service Pursuant to 10 C.F.R. §2.305, I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO BEYOND NUCLEAR AND SIERRA CLUBS NOTIFICATION OF RELEVANCE OF LBP-24-01 TO THIS PROCEEDING AND REQUEST TO IMMEDIATELY SUSPEND HEARING REQUEST DEADLINE PENDING RESOLUTION OF CERTIFIED QUESTION RAISED IN LBP-24-01, dated February 16, 2024, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 16th day of February 2024.
/Signed (electronically) by/
Sherwin E. Turk Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: 301-287-9194 E-mail: Sherwin.Turk@nrc.gov Dated at Rockville, MD this 16th day of February 2024