ML14140A731

Motion for Leave to File Amicus Curiae Brief and Amicus Curiae Brief in Response to Sierra Club Hearing Request

ML14140A731
Person / Time
Site:	Fort Calhoun
Issue date:	05/20/2014
From:	Ginsberg E, Rund J Nuclear Energy Institute
To:	NRC/OCM
SECY RAS
References
50-285-LA, Pending, RAS 25962
Download: ML14140A731 (13)

Text

May 20, 2014 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: )

)

OMAHA PUBLIC POWER DISTRICT ) Docket No. 50-285

)

(Fort Calhoun Station, Unit 1) )

NUCLEAR ENERGY INSTITUTE MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF Pursuant to 10 C.F.R. § 2.323, the Nuclear Energy Institute, Inc. (NEI) moves for leave to file the attached brief as amicus curiae addressing whether the U.S. Nuclear Regulatory Commission (NRC or Commission) should grant Sierra Clubs hearing request.1 Sierra Club argues that Omaha Public Power District (OPPD) must make significant modifications to Fort Calhoun Station to ensure it complies with its licensing basis and these modifications will require a license amendment. NEIs brief addresses the precedent establishing the enforcement processnot the hearing processas the means to resolve safety and noncompliance allegations. NEI believes the attached brief complements the parties filings and will assist the Commission in deciding whether to grant the hearing request.2 1

Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (dated Apr. 23, 2014; served Apr. 25, 2014).

2 In accordance with 10 C.F.R. § 2.323(b), counsel for NEI certifies that he made a sincere effort to contact counsel for the other participants in this matter, explain to them the issues raised in this motion, and seek their consent to submit NEIs amicus brief. Counsel for OPPD has authorized NEI to state OPPD supports NEIs motion. Counsel for Sierra Club has stated Sierra Club does not oppose NEIs motion. Counsel for the NRC Staff takes no position on NEIs motion, but reserves the right to respond.

NEI seeks leave to participate as amicus curiae3 because Sierra Clubs request has generic implications for the efficiency and stability of the NRC regulatory process. Under Commission precedent, the NRC addresses licensee efforts to restore compliance and take corrective actions through the oversight and enforcement processnot through the licensing and hearing process. The NRC also uses the enforcement process rather than licensing hearings to address assertions that a licensee must do more than what its license requires or that the NRC must take different or additional actions to resolve a safety issue. Sierra Clubs hearing request, if granted, would upend the NRCs regulatory framework by allowing adjudicatory challenges to any licensee corrective action and any NRC oversight and enforcement decision.

NEI is the Washington-based policy organization responsible for representing the commercial nuclear energy industry on generic regulatory, legal, and technical issues.4 NEI is in a unique position to address the policy and practical implications presented by Sierra Clubs hearing request. Sierra Clubs hearing request, if granted, would circumvent NRCs enforcement process, increase regulatory uncertainty, and frustrate NRCs ability to monitor licensees and enforce regulations because potentially every licensee corrective action and noncompliance issue would be subject to a hearing opportunity.

Accepting NEIs perspective on the issues presented through its participation in this matter as amicus curiae will not prejudice or unduly burden any other participant or result in delay.5 As an amicus, NEI necessarily takes the proceeding as it finds it and does not propose to 3

See Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-862, 25 NRC 144, 150 (1987) (amicus participation may be appropriate at any stage because there is no real difference between an appellate brief amicus curiae and a brief or other submission presented to a trial tribunal).

4 NEIs members include all entities licensed by the NRC to operate commercial nuclear power plants, as well as nuclear plant designers, major architect-engineer firms, fuel cycle facilities, nuclear materials licensees, universities, and other organizations and entities involved in the nuclear industry.

5 See La. Energy Servs. (Claiborne Enrichment Ctr.), CLI-97-4, 45 NRC 95, 96 (1997).

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inject any new issues into the proceeding. For the foregoing reasons, NEI respectfully requests that the Commission accept its accompanying brief amicus curiae.

Respectfully submitted, Signed (electronically) by Jonathan M. Rund Ellen C. Ginsberg Jonathan M. Rund Nuclear Energy Institute 1201 F Street, N.W., Suite 1100 Washington, D.C. 20004 Phone: 202-739-8000 E-mail: ecg@nei.org E-mail: jmr@nei.org COUNSEL FOR THE NUCLEAR ENERGY INSTITUTE, INC.

Dated in Washington, D.C.

this 20th day of May 2014 3

May 20, 2014 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: )

)

OMAHA PUBLIC POWER DISTRICT ) Docket No. 50-285

)

(Fort Calhoun Station, Unit 1) )

AMICUS CURIAE BRIEF OF THE NUCLEAR ENERGY INSTITUTE IN RESPONSE TO SIERRA CLUB HEARING REQUEST I. INTRODUCTION Sierra Club has requested a hearing on license amendments it claims Omaha Public Power District (OPPD) needed or will need for Fort Calhoun Station, Unit 1.1 According to Sierra Club, the NRC oversight process pursuant to Inspection Manual Chapter (IMC) 03502 identified significant modifications OPPD must make to ensure Fort Calhoun complies with its licensing basis. These modifications are purportedly needed to address flood protection, design basis reconstitution, repairs to structural beams and columns, and karsts beneath the site. Sierra Club maintains these modifications require license amendments and the Commission should hold a hearing on these issues.

The Nuclear Energy Institute, Inc. (NEI) believes Sierra Clubs hearing request raises substantial legal, policy, and regulatory issues. The Commissions decision on these issues has the potential to increase regulatory uncertainty. Accordingly, NEI submits this brief as amicus 1

Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (dated Apr. 23, 2014; served Apr. 25, 2014) (Hearing Request).

2 NRC Inspection Manual Chapter 0350, Oversight of Reactor Facilities in a Shutdown Condition Due to Significant Performance and/or Operational Concerns (Dec. 15, 2006) (ML063400076).

curiae pursuant to 10 C.F.R. § 2.309(i)(1) and asks that the Commission deny Sierra Clubs hearing request.3 II. STATEMENT OF THE CASE Fort Calhoun shut down in April 2011 for a scheduled refueling outage. During the shutdown, the NRC Staff identified several issues requiring additional NRC oversight. As a result, the NRC Staff increased its regulatory oversight of Fort Calhoun in December 2011 by placing it under the IMC 0350 process rather than the usual IMC 0305, Operating Reactor Assessment Program.4 The IMC 0350 process establishes criteria for licensee oversight, documenting major regulatory and licensee actions taken and technical issues resolved leading to approval for restart, verifying licensee corrective actions are sufficient prior to restart, and providing assurance after restart the plant will be operated in a manner adequately protecting public health and safety.5 After almost three years of implementing plant and procedural improvements, OPPD completed the actions necessary to restart Fort Calhoun.6 The NRC Staff confirmed the plant was ready to restart by performing a readiness assessment involving a thorough review of the extensive actions OPPD committed to take prior to restart, including those OPPD commitments 3

The Commission typically requires a person seeking to participate as amicus to file their brief (together with a motion for leave to do so) within the time allowed to parties whose position the brief supports.

10 C.F.R. § 2.315(d). Accordingly, NEI files this brief within the time allowed for OPPD and the NRC Staff to respond to the hearing request.

4 Letter from E. Collins, NRC, to D. Bannister, OPPD, Notification of Change to Regulatory Oversight of Fort Calhoun Station (Dec. 13, 2011) (ML113470721).

5 IMC 0350 at 1.

6 Letter from L. Cortopassi, OPPD, to M. Dapas, NRC, Integrated Report to Support Restart of Fort Calhoun Station and Post-Restart Commitments for Sustained Improvement (Dec. 2, 2013) (ML13336A785).

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the NRC Staff documented in a confirmatory action letter.7 OPPD then safely restarted Fort Calhoun in December 2013.

In June 2012, while OPPD was implementing the improvements necessary for Fort Calhouns restart, Sierra Club filed a petition pursuant to 10 C.F.R. § 2.206 for enforcement action.8 The petition alleged numerous regulatory violations but requested no immediate action.9 The NRC accepted the petition, referred it to the Office of Nuclear Reactor Regulation, and committed to take appropriate action within a reasonable time.10 Sierra Clubs hearing request concedes it is not tied to any specific, pending licensing action or any published notice of opportunity for hearing.11 Rather, the hearing request is entirely based on OPPD purportedly not yet seeking license amendments Sierra Club believes are needed for Fort Calhoun to operate safely. Sierra Club claims NRCs IMC 0350 inspections, along with other information obtained by Sierra Club, identified significant modifications OPPD must make to ensure Fort Calhoun complies with its licensing basis.12 Sierra Club also alleges OPPD must make additional modifications to remedy safety issues associated with current operations. Sierra Club argues all these modifications require license amendments.

7 Letter from to M. Dapas, NRC, to L. Cortopassi, OPPD, Fort Calhoun Closure of Confirmatory Action Letter (Dec. 17, 2013) (ML13351A423). The NRC also issued a post-restart confirmatory action letter to confirm actions OPPD has agreed to take to ensure long-term improved performance. Letter from to M. Dapas, NRC, to L. Cortopassi, OPPD, Confirmatory Action Letter - Fort Calhoun Station (Dec. 17, 2013) (ML13351A395).

8 10 CFR 2.206 Petition Requesting the Nuclear Regulatory Commission to Revoke Omaha Public Power Districts License to Operate the Fort Calhoun Nuclear Power Station (June 21, 2012) (ML12180A124).

9 Letter from E. Leeds, NRC, to Wallace Taylor, Sierra Club at 1 (May 23, 2013) (ML13092A248).

10 Omaha Public Power District, Fort Calhoun Station, Unit 1, 78 Fed. Reg. 39,019, 39,020 (June 28, 2013).

11 Hearing Request at 5.

12 Id. at 3.

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As discussed below, Sierra Clubs hearing request raises issues that should be addressed through the NRC oversight process rather than through a hearing. The hearing request challenges the adequacy and timing of OPPDs corrective actions and the basis for current operations. Corrective actions, however, aim to restore compliance and do not necessarily require a license amendment. Any challenge to a licensee corrective action or current operations (including operability determinations or other safety, compliance, or operational issues) must be raised through the Section 2.206 process. The NRC enforcement processes, including the Section 2.206 process, ensure safety and provide appropriate public participation opportunities.

III. DISCUSSION A. NRCs Enforcement Process Provides the Exclusive Means to Challenge Licensee Corrective Actions and Raise Other Safety and Compliance Issues Sierra Clubs central argument is that OPPD has not taken adequate or timely corrective actions to remedy safety and compliance issues associated with current operations. However, the Atomic Energy Act (AEA) contains no legal mechanism for the public to enforce NRC regulations. Nor does the AEA contain a citizen suit enforcement provision allowing members of the public to commence an action for against a licensee for not complying with an NRC requirement. Instead, to the extent Sierra Club has concerns about Fort Calhouns corrective actions or current operations, the 10 C.F.R. § 2.206 process is the only means for raising these issues before the agency.13 The Section 2.206 process provides the public with a meaningful opportunity to request agency action based on safety or compliance issues such as those alleged by Sierra Club. Specifically, Section 2.206(a) provides any person with the opportunity to 13 So. Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), CLI-12-20, 76 NRC 437, 439-40 (2012); Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-94-3, 39 NRC 95, 101 n.7 (1994); Fla. Power & Light Co. (Turkey Point Nuclear Generating Station, Units 3 & 4), CLI-01-17, 54 NRC 3, 23 (2001).

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request the institution of a proceeding to modify, suspend, or revoke a license, or for any other action as may be proper.

If the NRC Staff identifies a safety or compliance issue through the Section 2.206 process, it has ample authority to take appropriate action. As an example, if the NRC Staff finds a licensee improperly implemented a plant or procedure change without obtaining a license amendment, it may take enforcement action. In such a case, the licensee would then need to apply for a license amendment and, at that time, hearing rights would attach to the license amendment request. But Sierra Club cannot substitute its views on the need for enforcement for those of the NRC Staff and convert its Fort Calhoun safety and compliance concerns into a license amendment proceeding simply by presenting them in the form of a hearing request.

Sierra Clubs hearing request should be rejected as inconsistent with the NRCs long-established regulatory processes, and incompatible with effective and efficient regulation. NRC does not convene an adjudicatory proceeding in order to determine whether an adjudicatory proceeding is warranted.14 Requiring licensees to devote hearing resources to address compliance and safety claims made by interested parties distorts the NRCs established processes and regulatory framework, creates an unnecessary burden, and greatly increases regulatory uncertainty. As such, the Commission should summarily deny any hearing request arguing a licensee should have taken different or additional actions to resolve a safety or compliance issue.

Consistent with Commission precedent, such challenges must be brought under Section 2.206 or not at all.

14 N. Ind. Pub. Serv. Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 432 (1978), affd sub nom. Porter County Chapter of Izaak Walton League v. NRC, 606 F.2d 1363 (D.C. Cir. 1979).

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B. NRCs Enforcement Process Provides the Public with a Meaningful Avenue to Raise Safety and Compliance Issues Sierra Club is already pursuing relief through the 10 C.F.R. § 2.206 process but argues this process does not provide a meaningful vehicle for the public to ensure that Fort Calhoun will be operated safely with protection for the environment.15 As discussed below, the U.S.

Court of Appeals for the D.C. Circuit and the Commission have both rejected arguments similar to Sierra Clubs argument.

In Bellotti v. NRC, the D.C. Circuit held a Section 2.206 petition is not a futile gesture, for the Commission may not deny it arbitrarily.16 Likewise, in San Onofre, the Commission rebuffed a claim that the Section 2.206 process is not a viable alternative for a petitioner seeking relief to address alleged regulatory violations.17 The Commission held:

The 2.206 process provides stakeholders a forum to advance their concerns and to obtain full or partial relief, or written reasons why the requested relief is not warranted. We may then review the NRC Staffs findings on our own motion. If [the petitioner]

prevails on its 2.206 argument that [the licensee] needed a license amendment . . ., then it may be able to obtain the adjudicatory hearing it seeks. Section 189a of the Atomic Energy Act (AEA) grants an opportunity for a hearing on (among other things) license amendments.18 Thus, Section 2.206 provides Sierra Club with a viable opportunity to assert its safety claims.19 Sierra Clubs proposed approach to skirt the Section 2.206 process would increase regulatory uncertainty and frustrate the NRCs ability to effectively and efficiently monitor 15 Hearing Request at 10.

16 Bellotti v. NRC, 725 F.2d 1380, 1382 (D.C. Cir. 1983).

17 San Onofre, CLI-12-20, 76 NRC at 439-40.

18 Id.

19 See, e.g., NRC Staff Response to Board Order Regarding Petitions Under 10 C.F.R. § 2.206, Attachment (June 15, 2012) (ML12167A524) (listing numerous Section 2.206 petitions that were granted in whole or in part, or that otherwise prompted responsive action by the NRC Staff).

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licensees and enforce regulations by potentially subjecting every compliance review to a hearing opportunity. Assuming a noncompliance exists, licensees are obligated to take corrective actions in accordance with 10 C.F.R. Part 50, Appendix B, Criterion XVI, plant technical specifications, and NRC Inspection Manual Part 9900 operability guidance.20 Licensees must evaluate corrective actions that involve plant or procedure changes in accordance with 10 C.F.R. § 50.59 to determine whether an NRC approval is required (in which case, hearing rights would attach).

If the NRC determines that design changes are necessary to assure adequate protection of safety, it also has the authority to issue an order requiring specific changes or other appropriate action.

The AEA, however, does not provide for a hearing opportunity merely based on an identified noncompliance. The Commission has made clear the only right to an opportunity for a hearing under section 189 exists for those actions that are identified in section 189.21 Congress could have written Section 189a to require a hearing opportunity for noncompliance issues but, based on sound reasoning, did not do so.22 The Commission should follow its precedent and pay particular attention to the AEAs structure in determining its applicability.

IV. CONCLUSION Sierra Club should not be permitted to manufacture a hearing opportunity or second-guess the NRCs exercise of its enforcement responsibilities merely by challenging OPPDs corrective actions or claiming OPPD should do more to address safety. The NRCs existing 20 NRC Inspection Manual, Part 9900: Technical Guidance, Operability Determinations & Functionality Assessments for Resolution of Degraded or Nonconforming Conditions Adverse to Quality (Apr. 16, 2008)

(ML073531346).

21 Yankee, CLI-94-3, 39 NRC at 101; see also Massachusetts v. NRC, 878 F.2d 1516, 1522 (1st Cir. 1989)

(noting the AEAs legislative history suggests that Congress intended the provisions of [Section 189a] to be construed quite literally. If a particular form of Commission action does not fall within one of the eight categories set forth in the section, no hearing need be granted by the Commission.).

22 See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 738-79 (1985) (discussing Congresss decision to narrowly tailor the Section 189 hearing requirement to focus on licensing actions).

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processes assure safety and provide adequate opportunities for stakeholder participation. The Commission should therefore deny Sierra Clubs hearing request. Given the potential for future hearing requests arguing a licensee should have taken or NRC Staff should have required different or additional corrective actions to resolve a safety or compliance issue, NEI urges the Commission to take this opportunity to provide clear direction discouraging such requests as a means to circumvent the enforcement process.

Respectfully submitted, Signed (electronically) by Jonathan M. Rund Ellen C. Ginsberg Jonathan M. Rund Nuclear Energy Institute 1201 F Street, N.W., Suite 1100 Washington, D.C. 20004 Phone: 202-739-8000 E-mail: ecg@nei.org E-mail: jmr@nei.org COUNSEL FOR THE NUCLEAR ENERGY INSTITUTE, INC.

Dated in Washington, D.C.

this 20th day of May 2014 8

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: )

)

OMAHA PUBLIC POWER DISTRICT ) Docket No. 50-285

)

(Fort Calhoun Station, Unit 1) )

NOTICES OF APPEARANCE In accordance with 10 C.F.R. § 2.314(b), the following attorneys, admitted to practice and in good standing in the jurisdictions noted, enter appearances as counsel for the Nuclear Energy Institute, Inc.

Name: Jonathan M. Rund Address: Nuclear Energy Institute 1201 F Street, N.W., Suite 1100 Washington, D.C. 20004 E-Mail: jmr@nei.org Telephone Number: (202) 739-8000 Facsimile Number: (202) 533-0140 Admissions: District of Columbia, Virginia Name: Ellen C. Ginsberg Address: Nuclear Energy Institute 1201 F Street, N.W., Suite 1100 Washington, D.C. 20004 E-Mail: ecg@nei.org Telephone Number: (202) 739-8000 Facsimile Number: (202) 533-0140 Admissions: District of Columbia, New York Signed (electronically) by Jonathan M. Rund Jonathan M. Rund Nuclear Energy Institute 1201 F Street, N.W., Suite 1100 Washington, D.C. 20004 Phone: 202-739-8000 E-mail: jmr@nei.org Dated in Washington, D.C.

this 20th day of May 2014

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: )

)

OMAHA PUBLIC POWER DISTRICT ) Docket No. 50-285

)

(Fort Calhoun Station, Unit 1) )

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that I electronically served via the Electronic Information Exchange (the NRCs E-Filing system) copies of the NUCLEAR ENERGY INSTITUTE MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF, AMICUS CURIAE BRIEF OF THE NUCLEAR ENERGY INSTITUTE IN RESPONSE TO SIERRA CLUB HEARING REQUEST, and NOTICES OF APPEARANCE on this 20th day of May 2014.

Respectfully submitted, Signed (electronically) by Jonathan M. Rund Jonathan M. Rund Nuclear Energy Institute 1201 F Street, N.W., Suite 1100 Washington, D.C. 20004 Phone: 202-739-8000 E-mail: jmr@nei.org Dated in Washington, D.C.

this 20th day of May 2014