ML12177A174

Entergy Operations, Inc.'S Answer Opposing Petition to Suspend Final Licensing Decisions Pending Completion of Remanded Waste Confidence Proceedings

ML12177A174
Person / Time
Site:	Grand Gulf, 05200024
Issue date:	06/25/2012
From:	Bessette P M, Rund J M, Sutton K M Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
License Renewal, RAS 22702, 50-416-LR, 52-024-COL
Download: ML12177A174 (12)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-416-LR ENTERGY OPERATIONS, INC. )

) June 25, 2012 (Grand Gulf, Unit 1) )

) )

In the Matter of )

) Docket No. 52-024-COL ENTERGY OPERATIONS, INC. )

) June 25, 2012 (Grand Gulf, Unit 3) )

) ENTERGY OPERATIONS, INC.'S ANSWER OPPOSING PETITION TO SUSPEND FINAL LICENSING DECI SIONS PENDING COMPLETION OF REMANDED WASTE CONFIDENCE PROCEEDINGS I. INTRODUCTION On June 18, 2012, Beyond Nuclear, Inc. and vari ous other organizations (collectively, "Petitioners") submitted a "Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Completion of Remanded Wa ste Confidence Proceedings" ("Petition") to the U.S. Nuclear Regulatory Commission ("NRC" or "Commission"). Based on the recent D.C.

Circuit New York v. NRC decision vacating and remanding the NRC's Waste Confidence Decision ("WCD") Update and Temporary Storage Rule ("TSR"), 1 Petitioners request that the Commission: (1) suspend all final reactor licensing decisions pending conclusion of the New York remand proceeding; (2) allow public comment on any Environmental Assessment ("EA")

1 New York v. NRC, No. 11-1045, 2012 WL 2053581 (D.C. Cir. June 8, 2012); see also Clerk's Order, New York v. NRC, No. 11-1045 (D.C. Cir. June 8, 2012) (unpublished) (withholding mandate until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc).

2or Environmental Impact Statement ("EIS") prepared by NRC on remand; and (3) provide at least 60 days for raising site-specific contentions in i ndividual licensing proceedings.

2 Pursuant to 10 C.F.R. § 2.323(c) and the Commission's June 19, 2012 Order, Entergy Operations, Inc. ("Entergy") files this Answer opposing the Petitions filed in the Grand Gulf Nuclear Station, Unit 1 license renewal and Grand Gulf Nuclear Station, Unit 3 combined license

("COL") proceedings.

3 As discussed below, the Petition should be rejected on procedural grounds because Petitioners are not (and are not seeking to be) parties to these proceedings. Additionally, the Petition is premature because New York is not yet final, and the Petitioners fail to justify the drastic action of suspending final licensing decisions in ongoing licensing proceedings that are a year or more from conclusion. Regardless of how the Commission proceeds to address New York-through either a rulemaking or case-by-case path-denial of the Petition will not hamper implementation of any potential long-term spent fuel storage environmental impact rule or policy change. Furthermore, whether long-term spent fuel storage issues are addressed generically or in indi vidual licensing proceedi ngs, NRC's established processes allow for fair and efficient resolution of such issues without th e need to suspend final licensing decisions. Moreover, no basis exists to conclude that fi nal decisions in the Grand Gulf Unit 1 and Unit 3 proceedings would present any immediate threat to public health and safety. Finally, special public participation procedures in the environmenta l review process or for filing contentions are unnecessary because existing NRC regulations sufficiently address such issues.

2 Petition at 12.

3 Entergy addresses only Petitioners' request to suspend the above-captioned proceedings b ecause Petitioners' request to suspend other proceedings is not cognizable in these individual adjudicatory proceedings. See Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-28, 54 NRC 393, 399 n.9 (2001). Furthermore, none of the organizations joining the Petition-including Beyond Nuclear-have ever made a hearing request or sought permission to participate in these proceedings on any other basis.

Certainly, any request by the other organizations has "no legitimate place" in the Grand Gulf Unit 1 and Unit 3 proceedings and hereafter this Answer refers only to Beyond Nuclear as Petitioners.

See, e.g., id. at 398.

3 II. BACKGROUND Entergy filed the Grand Gulf Unit 1 licen se renewal application in November 2011.

After the NRC published a notic e of opportunity for hearing, 4 no party requested a hearing. The NRC is not expected to make a final decision on the Grand Gulf Unit 1 license renewal for more than a year.

5 Entergy submitted the Grand Gulf Unit 3 COL application in 2008. After the NRC published a hearing notice, 6 no party sought to intervene. NRC review of the COL application is on hold pending Entergy's reevaluati on of reactor design technologies.

7 Accordingly, any final decision on the Grand Gulf Unit 3 COL is at least several years away.

III. LEGAL STANDARDS As an initial matter, the Petition does not comport with any pleading form contemplated or authorized by the NRC Rules of Practice.

8 Commission precedent, however, makes clear that suspension of licensing decisions is not warranted absent compelling circumstances.

9 In considering requests to, among other things, suspend licensing decisions following the Fukushima accident, the Commission considered whether denying such requests would prevent

4 See Notice of Acceptance for Docketing of the Application, Notice of Opportunity for Hearing, Regarding Renewal of Facility Operating License No. NPF-29 for an Additional 20-Year Period; Entergy Operations, Inc.; Grand Gulf Nuclear Station, Unit 1, 76 Fed. Reg. 80,980 (Dec. 27, 2011).

5 See Letter from Melanie A. Galloway, NRC, to Michael Perito, Entergy (Dec. 16, 2011), available at ADAMS Accession No. ML11335A340.

6 See Entergy Operations, Inc. et al.; Notice of Hearing and Opportunity to Petition for Leave to Intervene on a Combined License for the Grand Gulf Unit 3, 73 Fed. Reg. 37,511, 37,511 (July 1, 2008).

7 See Letter from David B. Matthews, NRC, to William K. Hughey, Entergy (Jan. 12, 2009), available at ADAMS Accession No. ML090080523 8 The Petition in fact states that it is not a request for a stay pursuant to 10 C.F.R. § 2.342 or a request for any other form of equitable relief recognized by the Commission. See Petition at 4.

9 Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-05, 74 NRC __, slip op. at 19 (Sept. 9, 2011).

4appropriate implementation of any pertinent rule or policy change s, prove an obstacle to fair and efficient decisionmaking, or jeop ardize public health and safety.

10 IV. ARGUMENT A. The Petition Should Be Summarily Denied on Procedural Grounds As a procedural matter, an organization seeking suspension must have formal "party" status (or at least have a timel y petition to intervene pending).

11 As noted above, Petitioners have never attempted to intervene in either the Grand Gulf Unit 1 license renewal or Grand Gulf Unit 3 COL proceedings, and therefore are not parties to these proceedings. Accordingly, to obtain the status necessary to file the instant Petition, Petitioners were required to proffer facts demonstrating standing and propose a contention.

12 Petitioners have elected not to do so.

13 Therefore, the Petition should be denied because it has "no legitimate place" in the Grand Gulf Unit 1 and Unit 3 proceedings.

14 B. The Petition Should Be Denied as Premature Based on the D.C. Circuit's recent New York decision, Petitioners argue that NRC no longer has a "valid basis for any NRC reactor licensing decision."

15 The D.C. Circuit, however, has not yet issued its "mandate" formally returning the proceeding to the Commission. In fact, in accordance with Federal Rule of Appellate Procedure 41(b), the mandate will not issue until the later of seven days after the time to file a petition for rehearing expires or seven days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or

10 Id. at 19-21.

11 See Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-02-23, 56 NRC 230, 235 n.6 (2002); Savannah River, CLI-01-28, 54 NRC at 398.

12 See 10 C.F.R. § 2.309(a).

13 See Petition at 6 (indicating that hearing requests and standing declarations may be filed in the future).

14 Diablo Canyon, CLI-02-23, 56 NRC at 235 n.6; Savannah River, CLI-01-28, 54 NRC at 398; see also Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 330 (1983) (ruling that an untimely intervention petitioner has no status to file second motion, concurrently, to disqualify Commissioner).

15 Petition at 3.

5motion for stay of mandate.

16 As such, the mandate will not issue, at the earliest, until late July 2012.17 Because the mandate is the certified copy of the final judgment and the order that makes the decision effective, the New York decision establishes no binding legal "requirements" at this time, contrary to Petitioners' assertion.

18 As such, the Petition shoul d be denied as premature. Recognizing that their request is premature, Petitioners ask the Commission to hold the Petition in abeyance pending the mandate's issuance.

19 Such a request, however, is inconsistent with Commission precedent. Specifically, in Diablo Canyon, the Commission denied a similarly premature motion seeking relief in advance of an appellate court's mandate.

20 As the Commission recognized, a premature re lief request should be denied because the facts relevant to the request may change before the mandate issues.

21 So too here, where fu rther judicial review, administrative action, or both, may well obviate the need for Petitioners' requested relief.

22 C. The Petition Fails to Demonstrate Compelling Circumstances to Suspend Final Licensing Decisions Even had the mandate already issued, the Commission should deny the Petition for failing to demonstrate compelling circumstances justifying suspendi ng final licensing decisions.

Petitioners ignore the leading and most recent Commission precedent that establishes the framework within which requests for suspension of licensing decisions must be evaluated. In Callaway, the Commission considered petitions that requested, among other things, suspending

16 In addition, upon motion, the court's mandate also may be stayed pending an application to the U.S. Supreme Court for a writ of certiorari.

See Fed. R. App. P. 41(d)(2).

17 See Fed. R. App. P. 40(a)(1) (indicating that in cases where a federal agency is a party, the time seeking rehearing is 45 days after entry of judgment, unless an order shortens or extends the time).

18 See Petition at 4.

19 Id. at 4 n.1.

20 Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-06-23, 64 NRC 107, 109 (2006).

21 See id. at 108-09.

22 Moreover, as discussed above, the NRC will not make any licensing decisions concerning Grand Gulf Units 1 and 3 for more than a year. Given this length of time and the numerous potential intervening events that may take place before any licensing decision, the requested relief is premature for this additional reason.

6licensing decisions pending a Commission National Environmental Policy Act ("NEPA") review following the Fukushima accident.

23 As discussed below, none of the three Callaway criteria justifies suspending final licensing decisions in either of the Grand Gulf proceedings.

1. Continuing Final Licensing Decisions Will Not Prevent Appropriate Rule or Policy Change Implementation Petitioners argue that, absent final action by the NRC on remand, the NRC no longer has a valid NEPA basis to issue any reactor licenses.

24 If and when the mandate issues, however, the Commission has broad discreti on as to how it responds to the remand, whether through rulemaking or case-by-case.

25 Suspending licensing is not necessary in either case. If the Commission continues its long-standing practice of addressing NEPA-based waste issues generically through rulemaking, then, consistent with federal case law, licensing suspension is unnecessary to implement any rule changes.

26 In Minnesota v. NRC , based upon an apparent NEPA violation, the D.C. Circuit ordered the NRC to consider long-term spent fuel storage issues.

27 On remand, the Commission instituted the first WCD rulemaking and issued a Notice of Proposed Rulemaking establishing that "

licensing practices need not be altered" during the rulemaking because all licensing proceedings then underway would be subject to the final rulemaking determination.

28 Thus, the Commission allowed li censing to continue, because once the rulemaking eventually concluded, the WCD could be applied retroactively.

29 Between the

23 See Callaway, CLI-11-05, slip op. at 19-21.

24 Petition at 3.

25 See, e.g., Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 100-01 (1983) (finding that rulemaking is an appropriate method for complying with NEPA); Minnesota v. NRC, 602 F.2d 412, 416-17 (D.C. Cir. 1979).

26 See Potomac Alliance v. NRC, 682 F.2d 1030, 1031 (D.C. Cir. 1982) (affirming Va. Elec. & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-584, 11 NRC 451 (1980)); Notice of Proposed Rulemaking, Storage and Disposal of Nuclear Waste, 44 Fed. Reg. 61,372, 61,373 (Oct. 25, 1979).

27 See Minnesota, 602 F.2d at 418-19.

28 Notice of Proposed Rulemaking, Storage and Disposal of Nuclear Waste, 44 Fed. Reg. at 61,373.

29 See North Anna, ALAB-584, 11 NRC at 464-66; Notice of Proposed Rulemaking, Storage and Disposal of Nuclear Waste, 44 Fed. Reg. at 61,373.

7Notice of Proposed Rulemaking and conclusion of the WCD proceeding, the NRC issued 17 reactor operating licenses ("OLs").

30 Moreover, this practice passed the test of judicial scrutiny.

Following the direction in the Notice of Proposed Rulemaking, the Atomic Safe ty and Licensing Appeal Board rejected a request to delay a spent fuel-related OL amendment pending the completion of the WCD proceeding.

31 The D.C. Circuit upheld the decision to proceed with licensing absent a final WCD in Potomac Alliance v. NRC, declining to stay challenged licensing actions.

32 Accordingly, this precedent demonstrates that licensing suspension is not required pending completion of rule changes.

33 Furthermore, should the Comm ission elect to address the New York decision on a case-by-case basis, the issues raised by New York will be resolved prior to any final licensing decision in the Grand Gulf proceedings. NRC regulations and case law establis h procedures allowing participation in such proceedings.

34 Thus, suspension is unnecessary even if the Commission elects to proceed on a case-by-case basis.

30 See NUREG-1350, Vol. 23, Information Digest, 2011-2012, App. A at 102-13 (Aug. 2011).

31 See North Anna, ALAB-584, 11 NRC at 464-66.

32 See Potomac Alliance, 682 F.2d at 1031.

33 Contrary to Petitioners' claim, the Commission's Indian Point decision does not support the conclusion that the NRC committed to suspend licensing in that (or any other) proceeding until the WCD Update rulemaking concluded. See Petition at 10 (citing Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-10-19, 72 NRC __, slip op. (July 8, 2010)). Instead, after directing the Board to deny two proposed contentions concerning potential impacts of long-term spent fuel storage, the Commission simply observed that the Indian Point license renewal proceeding would not be completed before the then-pending WCD Update. See Indian Point, CLI-10-19, slip op. at 3. This prediction proved accurate, as the WCD Update was issued in December 2010 and the Indian Point proceeding continues.

See Waste Confidence Decision Update, 75 Fed. Reg. 81,037 (Dec. 23, 2010); Atomic Safety and Licensing Board; Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3); Notice of Hearing (Application for License Renewal), 77 Fed. Reg. 36,015, 36,016 (June 15, 2012). Further, this Commission observation did not establish a "precedent" that all licenses must be withheld until the WCD Update concluded. In fact, the NRC issued two renewed licenses (Cooper and Duane Arnold) after the Indian Point decision and before the final WCD Update.

See NUREG-1350, Vol. 23, App. A at 103-04.

34 See, e.g., 10 C.F.R. § 2.309(f)(2).

8 In summary, regardless of how the Commi ssion elects to proceed in response to the New York remand, no compelling reason warrants suspending final licensing decisions.

35 2. Continuing Final Licensing Decisions Will Not Prevent Fair and Efficient Decisionmaking Concerning the New York Remand Issues Regardless of how the Commission proceeds, the NRC's established processes provide proven, fair, and efficient means to resolve long-term spent fuel storage environmental impact issues in response to the New York remand without the need to susp end final licensing decisions. For example, NRC's Rules of Practice provide for public comment on any generic rulemaking proceedings.

36 Should the Commission decide on a case-by-case approach, NRC regulations and case law provide for ample public participation.

37 In addition, whether a rulemaking or case-specific approach is taken, NRC's NEPA regulations provide public comment opportunities.

38 Just as the NRC continued to issue licenses during the first WCD proceeding and during the recent WCD Update, the Commission can continue to issue licenses during any New York remand proceeding. The Commission's policy of providing prompt, efficient, and fair resolution of adjudications demands as much.

39 3. Continuing Final Licensing Decisions Poses No Immediate Public Health and Safety Threat The Petition provides no basis upon which to co nclude that final decisions in the Grand Gulf Unit 1 and Unit 3 licensing proceedings would present any public health and safety threat, 35 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-13, 67 NRC 396, 399-400 (2008) (finding no reason to stay licensing decision where issuance of the license is not imminent and proposed contention pending before Board).

36 See 10 C.F.R. § 2.805(a).

37 See 10 C.F.R. § 2.309(f)(2); Entergy Nuclear Vt. Yankee, L.L.C. (Vt. Yankee Nuclear Power Station), CLI-11-2, 73 NRC __, slip op. at 10 n.43 (Mar. 10, 2011) (indicating that the Commission and its Boards generally consider approximately 30 to 60 days as the limit for timely filings based on new information).

38 See, e.g., 10 C.F.R. §§ 51.33(a)-(e), 51.73.

39 See Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 381 (2001) (quoting Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 19 (1998)).

9much less an immediate threat. Nor could the Petition so provide, because, as a general matter, the WCD does not address "immediate" risks but instead concerns the long-term storage of spent nuclear fuel. Moreover, to the extent that any rule changes are implemented following any generic proceedings, as discussed above, those rules can then be applied retroactively. Accordingly, there simply is no risk of any immediate threat to pub lic health and safety.

D. Petitioners Fail to Establish th e Need for Special Procedures Aside from suspending final licensing decisi ons, Petitioners also ask the Commission for an opportunity to comment on any EA or EIS issued by the NRC, and establish deadlines for

contentions raising site-specifi c concerns that are not suffici ently addressed in any generic rulemaking.

40 This request is unnecessary and should be denied. As discussed above, NRC regulations already establish ample and appropr iate public participa tion opportunities. Furthermore, to the extent Petitioners seek an additional opportunity to raise contentions in individual licensing proceedings even if the NRC proceeds with a generic rulemaking, Commission precedent bars such contentions. As the Commission explained in Indian Point , when the Commission elects to proceed with WCD issues through rulemaking, it does so for the specific purpose of avoiding inefficiencies of case-by-case adjudication of generic issues.

41 Thus, a contention that raises a matter that is, or is about to become, the subject of a rulemaking cannot be litigated in an i ndividual licensing proceeding.

42

40 Petition at 11-12.

41 See Indian Point, CLI-10-19, slip op. at 2.

42 See id. at 2-3.

10 V. CONCLUSION Suspending final licensing decisions is an extraordinary remedy that is not warranted and should not be granted. Not only is the Petition procedurally deficient and premature, it fails to demonstrate compelling circumstances justifying the requested action. Furthermore, NRC rules already provide appropri ate public participation opportunities. Accordi ngly, for all of these reasons, the Petition should be denied in its entirety. Respectfully submitted, Signed (electronically) by Jonathan M. Rund Paul M. Bessette Kathryn M. Sutton

Jonathan M. Rund

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

Phone: 202-739-5796

Fax: 202-739-5061 E-mail: jrund@morganlewis.com

COUNSEL FOR ENTERGY OPERATIONS, INC. Dated in Washington, DC this 25th day of June 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-416-LR ENTERGY OPERATIONS, INC. )

) June 25, 2012 (Grand Gulf, Unit 1) )

) )

In the Matter of )

) Docket No. 52-024-COL ENTERGY OPERATIONS, INC. )

) June 25, 2012 (Grand Gulf, Unit 3) )

) CERTIFICATE OF SERVICE I certify that, on this date , a copy of "Entergy Operations, Inc.'s Answer Opposing Petition to Suspend Final Licensing Decisions Pending Completion of Remanded Waste Confidence Proceedings" was filed with the Electronic Information Exchange in the above-captioned proceeding on the following recipients.

Office of the Secretary U.S. Nuclear Regulatory Commission Rulemakings and Adjudications Staff

Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov

Office of Commission Appellate Adjudication

U.S. Nuclear Regulatory Commission Mail Stop: O-16C1

Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov

Paul Gunter Beyond Nuclear

6930 Carroll Ave., Suite 400 Takoma Park, MD 20912

Phone: 301-270-2209 E-mail: paul@beyondnuclear.org

Beth N. Mizuno, Esq.

Patrick Moulding, Esq.

Office of the General Counsel

U.S. Nuclear Regulatory Commission Mail Stop - O-15 D21

Washington, DC 20555-0001 E-mail: Beth.Mizuno@nrc.gov E-mail: Patrick.Moulding@nrc.gov 2 DB1/ 70107536 Signed (electronically) by Jonathan M. Rund Jonathan M. Rund Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

Phone: 202-739-5061

Fax: 202-739-3001 E-mail: jrund@morganlewis.com

COUNSEL FOR ENTERGY OPERATIONS, INC.