ML25245A249
| ML25245A249 | |
| Person / Time | |
|---|---|
| Site: | Peach Bottom  |
| Issue date: | 09/02/2025 |
| From: | Curran D Beyond Nuclear, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Sierra Club |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57469, 50-277-SLR-2, 50-278-SLR-2, ASLBP 25-989-01-SLR-BD01 | |
| Download: ML25245A249 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
Constellation Energy Generation, LLC
) Docket Nos. 50-000277 & 50-000278 SLR Peach Bottom Units 2 & 3
) September 2, 2025
)
REPLY BY BEYOND NUCLEAR, INC. AND THE SIERRA CLUB, INC.
TO OPPOSITIONS TO THEIR HEARING REQUEST, PETITION TO INTERVENE, AND REQUEST TO HOLD PROCEEDING IN ABEYANCE I.
INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(2) and the Atomic Safety and Licensing Boards (ASLBs) Initial Prehearing Order (Aug. 8 2025), Petitioners Beyond Nuclear, Inc. (Beyond Nuclear) and the Sierra Club, Inc. (the Sierra Club) hereby reply to oppositions by Constellation Energy Generation, LLC (Constellation) and the U.S. Nuclear Regulatory Commission (NRC or Commission) Staff to Petitioners Hearing Request, Petition to Intervene, and Request to Hold Proceeding in Abeyance (July 29, 2025).1 Constellation and the Staff argue that Petitioners have failed to demonstrate their standing or the admissibility of their single contention challenging the adequacy of the License Renewal Generic Environmental Impact Statement, Supplement 10, Second Renewal, Regarding Subsequent License Renewal (SLR) for Peach Bottom Atomic Power Station, Supplement 1, Draft Report for Comment (May 2025) (Draft SGEIS) to support a twenty-year subsequent license renewal (SLR) term for Constellations Peach Bottom Atomic Power Station Units 2 and 3 (Peach Bottom). They also 1 See Constellations Answer Opposing Beyond Nuclear and Sierra Clubs Hearing Request, Petition for Leave to Intervene, and Request to Hold Proceeding in Abeyance (Aug. 25, 2025)
(Constellations Answer); NRC Staff Answer Opposing the Beyond Nuclear and Sierra Club Hearing Request, Petition to Intervene, and Request to Hold Proceeding in Abeyance (Aug. 22, 2025) (NRC Staffs Answer).
2 oppose Petitioners request to hold the proceeding in abeyance pending the outcome of Beyond Nuclear and the Sierra Club v. NRC (D.C. Cir. No. 24-1318) (Beyond Nuclear), Petitioners judicial appeal of the NRCs 2024 License Renewal Rule and the supporting Generic Environmental Impact Statement for License Renewal of Nuclear Plants (NUREG-1437, Rev. 2, August 2024) (License Renewal GEIS).
II.
ARGUMENT As discussed in their Petition, Petitioners sole purpose in submitting their Petition is to clearly establish that any decision by the U.S. Court of Appeals on their appeal will be applied retroactively to the Peach Bottom SLR proceeding, despite the fact that the NRC approved Constellations SLR application in 2020.2 Thus, Petitioners have submitted a single contention asserting that the Draft SGEIS violates the National Environmental Policy Act (NEPA) because it rests on the License Renewal GEIS, which in turn violates NEPA by failing to address significant environmental impacts related to the aging of reactor safety equipment and climate change or to recognize the potentially site-specific nature of climate change impacts.3 In addition, Petitioners request that their contention be admitted and held in abeyance pending the Courts decision.4 The NRC Staff argues that the circumstances of Union Electric Co. (Callaway Plant, Unit 1), CLI-15-11, 81 N.R.C. 546, 550 (2015) (Callaway) mirror the instant circumstances and therefore requires the ASLB to dismiss the contention and deny Petitioners request to hold the 2 See Petition at 1-2 (citing Exelon Generation Company, LLC (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-22-4, 95 N.R.C. 44, 45 (2022) (CLI-22-4).
3 See Id. at 4-5.
4 See Id. at 6-7.
3 proceeding in abeyance.5 Petitioners agree that to some extent, the circumstances of Callaway are like the circumstances of the instant case; and yet they are different in a fundamental respect that prevents Callaway from being dispositive of this case. In Callaway, as here, the petitioners sought the admission of a placeholder contention to keep an ongoing license renewal proceeding open and ensure that a court decision regarding the NRCs Continued Storage Rule and GEIS would be applied to the license renewal decision in that case.6 As here, the bases of the contention related to the Continued Storage GEIS.7 And the NRC Staff renewed the license before the Commission issued CLI-15-11.8 Yet, the circumstances differ in the key respect that the operating licenses for Peach Bottom Units 2 and 3 had already been renewed even before issuance of CLI-22-4 or the 2024 License Renewal GEIS.9 This unique circumstance appears to be addressed by language in CLI-22-4 concluding that where the Peach Bottom adjudicatory proceeding remain[ed] open, the Commission had the authority to modify suspend, or revoke [then-licensee] Exelons licenses, as appropriate.10 This language suggests that if the Peach Bottom adjudicatory proceeding were to close, the Commission may find it lacks authority to modify the Peach Bottom renewed 5 NRC Staffs Answer at 17.
6 81 N.R.C. at 549.
7 Id.
8 CLI-15-11 was decided on April 23, 2015. The NRC Staff had re-licensed the Callaway reactor in the preceding month, on March 6, 2015. See https://www.nrc.gov/reactors/operating/licensing/renewal/applications/callaway.html.
9 See Petition at 2 n.1 (citing CLI-22-4, 92 N.R.C. at 46).
10 95 N.R.C. at 46 (citing AmerGen. Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-13, 67 N.R.C. 396, 400 (2008) (Amergen). See also Exelon Generation Company, LLC (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-22-7, 95 N.R.C. 116, 121 (2022) (noting that while environmental impacts must ordinarily be evaluated before approving issuance of a license that covers the period of subsequent license renewal, the NRC had the authority to modify licenses due to pending agency litigation.).
4 licenses if, on subsequent... judicial review, the U.S. Court of Appeals were to revoke or revise the License Renewal GEIS.11 In light of CLI-22-4s qualification regarding the extent of the Commissions authority to apply NEPA to the already-issued Peach Bottom license, Petitioners exercise an abundance of caution by seeking admission of their contention and an order that it be held in abeyance pending the outcome of Beyond Nuclear. In the alternative, Petitioners seek clarification that the NRC will apply to Peach Bottom any future court decision that may invalidate or modify the License Renewal GEIS, as promised under the somewhat different circumstances of Callaway.12 Constellation further argues that Petitioners contention is like the contention found inadmissible in Callaway because its bases relate to the inadequacy of the License Renewal GEIS and are not specific to the Draft SGEIS, and therefore Petitioners make an impermissible challenge to the License Renewal Rule.13 But Petitioners have, in fact, identified a material, admissible dispute with the Draft SGEIS regarding its reliance on an inadequate generic environmental analysis.14 Petitioners do not seek to litigate their claims before the ASLB, but only to have them held in abeyance pending the Courts decision in Beyond Nuclear. Given that the NRC already renewed Constellations license five years ago, no harm to Constellation would 11 AmerGen, 67 N.R.C. at 400 (A license renewal may be set aside (or appropriately conditioned) even after it has been issued, upon subsequent administrative or judicial review.).
12 Callaway, 81 N.R.C. at 550 (Should the D.C. Circuit find any infirmities in the Continued Storage Rule or GEIS, we would take appropriate action consistent with the courts direction.).
Notably, no such statement has been made by the Commission in this proceeding.
13 Constellations Answer at 11.
14 Contrary to the Staffs assertion, NRC Staff Answer at 7, Petitioners do not explicitly acknowledge that their sole contention is outside the scope of this proceeding. To the contrary, the Petition explicitly states that the contention is within the scope of this proceeding because it raises issues of compliance with NEPA by the NRC in conducting its environmental review of Constellations SLR application for Peach Bottom. Petition at 5.
5 be caused by such an action.15 Instead, it would preserve the integrity and completeness of the NEPA review process commenced in CLI-22-4.
Finally, the NRC Staff cites Callaway for the proposition that Petitioners lack standing to make their requests to admit their contention and hold the proceeding in abeyance, because regardless of any decision in this individual licensing proceeding on the 2025 draft supplement, the Commission would take appropriate action consistent with any court of appeals direction.16 As discussed above, however, the qualified language in CLI-22-4 creates doubt regarding the extent to which the Commission would interpret a decision by the Court in Beyond Nuclear to apply to Peach Bottom. If the Commission declines to apply to Peach Bottom a decision reversing or modifying the License Renewal Rule and GEIS, Petitioners interest in a complete environmental analysis may be injured. Thus, Petitioners have sufficiently stated their claim to standing by asserting:
By intervening in this proceeding, Petitioners seek to protect their members health, safety and lives, as well as the health and safety of the general public and the environment.
Petitioners seek to ensure that Constellations operating license is not approved for a second renewal term unless and until Constellation demonstrates full compliance with NEPAs requirements for protection of public health and the environment.17 15 The NRC Staff also argues that the contention is immaterial to the required findings for Peach Bottom subsequent license renewal because resolution of the contention would not make a difference in the outcome of the action. NRC Staff Answer at 8. To the contrary, if the NRC considers aging effects and/or site-specific climate change effects on accident risk at Peach Bottom, it could result in the consideration of different alternatives than previously considered, including the no-action alternative.
16 NRC Staffs Answer at 11 (citing Callaway, 81 N.R.C. at 550). See also Constellation Answer at 10.
17 Petition at 3.
6 III.
CONCLUSION For the foregoing reasons, the Commission should grant Petitioners hearing request and petition to intervene and hold the proceeding in abeyance.
Respectfully submitted,
___/signed electronically by/__
Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com September 2, 2025
7 CERTIFICATE OF SERVICE I certify that on September 2, 2025, I posted copies of the foregoing REPLY BY BEYOND NUCLEAR, INC. AND THE SIERRA CLUB, INC. TO OPPOSITIONS TO THEIR HEARING REQUEST, PETITION TO INTERVENE AND REQUEST TO HOLD PROCEEDING IN ABEYANCE on the NRCs Electronic Information Exchange.
___/signed electronically by/__
Paul Gunter