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| issue date = 10/31/2014
| issue date = 10/31/2014
| title = NRC Staff Consolidated Answer to Petitions to Suspend Final Reactor Licensing Decisions, Motions to Admit a New Contention, and Motions to Reopen the Record
| title = NRC Staff Consolidated Answer to Petitions to Suspend Final Reactor Licensing Decisions, Motions to Admit a New Contention, and Motions to Reopen the Record
| author name = Harris B G
| author name = Harris B
| author affiliation = NRC/OGC
| author affiliation = NRC/OGC
| addressee name =  
| addressee name =  
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| page count = 52
| page count = 52
}}
}}
=Text=
{{#Wiki_filter:UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
                                                )
In the Matters of                              )
                                                )
DTE ELECTRIC COMPANY                            )    Docket No. 50-341 (Fermi Nuclear Power Plant, Unit 2)            )
                                                )
DTE ELECTRIC CO.                                )    Docket No. 52-033-COL (Fermi Nuclear Power Plant, Unit 3)            )
                                                )
DUKE ENERGY CAROLINAS, L.L.C.                  )    Docket Nos. 52-018-COL (William States Lee III Nuclear Station,        )                52-019-COL Units 1 and 2)                                  )
                                                )
ENTERGY NUCLEAR OPERATIONS, INC.                )    Docket Nos. 50-247-LR (Indian Point Nuclear Generating                )                50-286-LR Units 1 and 2)                                  )
                                                )
FIRSTENERGY NUCLEAR OPERATING CO.              )    Docket No. 50-346-LR (Davis-Besse Nuclear Power Station, Unit 1)    )
                                                )
FLORIDA POWER & LIGHT CO.                      )    Docket Nos. 52-040-COL, (Turkey Point, Units 6 and 7)                  )                52-035-COL
                                                )
LUMINANT GENERATION CO. L.L.C.                  )    Docket Nos. 52-034-COL, (Comanche Peak Nuclear Power Plant,            )                52-035-COL Units 3 and 4)                                  )
                                                )
NEXTERA ENERGY SEABROOK, L.L.C.                )    Docket No. 50-443-LR (Seabrook Station, Unit 1)                      )
                                                )
NUCLEAR INNOVATION                              )    Docket Nos. 52-012-COL, NORTH AMERICA L.L.C                            )                52-013-COL (South Texas Project, Units 3 and 4)            )
                                                )
PACIFIC GAS & ELECTRIC CO.                      )    Docket Nos. 50-275-LR, (Diablo Canyon Nuclear Power Plant,            )                50-323-LR Units 1 and 2)                                  )
                                                )
PROGRESS ENERGY FLORIDA, INC.                  )    Docket Nos. 52-029-COL, (Levy County Nuclear Power Plant,              )                52-030-COL Units 1 and 2)                                  )
                                                )
SOUTH TEXAS PROJECT                        )    Docket Nos. 50-498-LR, NUCLEAR OPERATING CO.                      )                50-499-LR (South Texas Project, Units 1 and 2)        )
                                            )
TENNESEE VALLEY AUTHORITY                  )    Docket Nos. 52-014-COL, (Bellefonte Nuclear Power Plants,          )                52-015-COL Units 3 and 4)                              )
                                            )
TENNESSEE VALLEY AUTHORITY                  )    Docket Nos. 50-327-LR, (Sequoyah Nuclear Plant,                    )                50-328-LR Units 1 and 2)                              )
                                            )
TENNESSEE VALLEY AUTHORITY                  )    Docket No. 50-391-OL (Watts Bar Nuclear Plant, Unit 2)          )
                                            )
UNION ELECTRIC CO.                          )    Docket No. 50-483-LR (Callaway Nuclear Power Plant, Unit 1)      )
                                            )
VIRGINIA ELECTRIC AND POWER CO.            )    Docket No. 52-017-COL d/b/a DOMINION VIRGINIA POWER and          )
OLD DOMINION ELECTRIC COOPERATIVE          )
(North Anna Power Station, Unit 3)          )
________________________________________ )
NRC STAFF CONSOLIDATED ANSWER TO PETITIONS TO SUSPEND FINAL REACTOR LICENSING DECISIONS, MOTIONS TO ADMIT A NEW CONTENTION, AND MOTIONS TO REOPEN THE RECORD Brian G. Harris Counsel for NRC Staff October 31, 2014
                                                            -i-TABLE OF CONTENTS PAGE INTRODUCTION ....................................................................................................................... 2 PROCEDURAL BACKGROUND ................................................................................................ 3 DISCUSSION............................................................................................................................. 8 I. The Petition Does Not State a Sufficient Basis for Suspending or Staying Final Decisions in Reactor Licensing Proceedings .................................................................................. 8 A.      Petitioners Have Not Established a Proper Legal Basis for Suspending Final Decisions in Reactor Licensing Proceedings....................................................... 8 B.      The Petition Does Not Satisfy the Requirements for Staying Final Reactor Licensing Decisions .......................................................................................... 11 II. Petitioners Contention that the NRC Has Failed to Make Required AEA Findings in Connection with Disposal of SNF is Invalid and Inadmissible ....................................... 13 A.      Summary .......................................................................................................... 13 B.      The AEA Does Not Require Findings Regarding Disposal Prior to Issuance of Reactor Operating Licenses ............................................................................. 15
: 1.        Minnesota v. NRC Did Not Overrule the Commissions Interpretation of the AEA ................................................................................................. 18
: 2.        The Commission Did Not Interpret Minnesota v. NRC to Require Findings Regarding Disposal of Spent Nuclear Fuel Prior to Licensing Reactors Under the AEA....................................................................................... 23
: 3.        New York v. NRC Did Not Address the AEA, Nor Did it Hold That Minnesota Required Explicit Findings Regarding Disposal of Spent Nuclear Fuel Prior to Licensing Reactors............................................... 24 C.      The Commission Policy On Safe Disposal of Waste Remains Unchanged ....... 26 D.      The Continued Storage GEIS and Rule Do Not Attempt to Substitute for Any Findings Required Under the AEA .................................................................... 30 E.      Petitioners Contention Does Not Meet Admissibility Requirements Under 10 C.F.R. § 2.309(f)(1) ...................................................................................... 31
                                                          - ii -
: 1.      Petitioners New Contention Does Not Raise Issues Material to the NRCs Licensing Decisions and Therefore Is Not Within the Scope of the Proceeding ...................................................................................... 32
: 2.      Petitioners New Contention Raises No Genuine Dispute with Any Specific Application ............................................................................... 34 III. Petitioners Do Not Meet the Reopening Standards ...................................................... 35 A.      Petitioners Do Not Address a Significant Safety Issue ...................................... 37 B.      Petitioners Have Not Shown that a Materially Different Result Would Be Likely ........................................................................................................... 40 CONCLUSION ......................................................................................................................... 42
                                                          - iii -
TABLE OF AUTHORITIES Page JUDICIAL DECISIONS U.S. Courts of Appeal:
Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979) ............................................................. passim New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012) ............................................................. passim NRDC v. NRC, 582 F.2d 166 (2nd Cir. 1978).................................................................17, 18, 38 Porter County Chapter of the Izaak Walton League of America v. NRC, 606 F.2d 1363 (D.C. Cir. 1979) ............................................................................................... 22 Potomac Alliance v. NRC, 682 F.2d 1030 (D.C. Cir. 1982) ..................................................20, 21 STATUTES Atomic Energy Act of 1954, as amended, § 81a., 42 U.S.C. § 2111 (2005) .............................. 27 Atomic Energy Act of 1954, as amended, § 103d., 42 U.S.C. § 2133 (2005) ............................ 14 Atomic Energy Act of 1954, as amended, § 185b., 42 U.S.C. § 2235 (1992) ............................ 22 ADMINISTRATIVE DECISIONS Commission:
Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111 (2006) ................................................................................................................ 32 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658 (2008) ................................................................................................................ 35 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLl-09-7, 69 NRC 235 (2009) ................................................................................................................ 36 Calvert Cliffs 3 Nuclear Project, LLC & Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63 (Aug. 7, 2012) ................. 6 Calvert Cliffs 3 Nuclear Project, LLC, & Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-08, 80 NRC __ (Aug. 26, 2014) (slip op.) . 7 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349 (2001), pet. for reconsideration denied, CLI-02-01, 55 NRC 1 (2002) ................ 32 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115 (2009) ................................................................................................................ 35
                                                            - iv -
DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-07, 80 NRC __ (July 17, 2014) (slip op.) ........................................................................................ 8 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-09, 80 NRC __ (Oct. 7, 2014) (slip op.) .......................................................................................... 2 Duke Energy Corp. (McGuire Nuclear Station Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-01-27, 54 NRC 385 (2001) .......................................................................9, 10 Duke Energy Corp. (Oconee Nuclear Station Units 1, 2 & 3), CLI-99-11, 49 NRC 328 (1999) .................................................................................................................. 9 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704 (2012) .....................................................................34 Entergy Nuclear Vermont Yankee LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-06-8, 63 NRC 235 (2006) ........................................11, 12 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301 (2012) .............................................................................................................9, 15 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376 (2001) .................................................................................................................10 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345 (2005) .................................................................................................................36 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318 (1999) .................................................................................................................32 Sequoyah Fuels Corp. & General Atomics (Gore, Oklahoma Site), CLI-94-9, 40 NRC 1 (1994) .....................................................................................................................11 Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141 (2011) ...................................10 Atomic Safety and Licensing Appeal Board:
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),
ALAB-455, 7 NRC 41 (1978) ...................................................................................................19 Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-940, 32 NRC 225 (1990) ...........................................................................................................36, 39 Atomic Safety and Licensing Board:
Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-83-41, 18 NRC 104 (1983) .................................................................................................................37
                                                                        -v-REGULATIONS 10 C.F.R. § 2.202......................................................................................................................12 10 C.F.R. 2.309(c)(1)(i)-(iii) .................................................................................................15, 31 10 C.F.R. § 2.309(f)(1) ........................................................................................................ 31-32 10 C.F.R. § 2.309(f)(1)(iii) and (iv).......................................................................................15, 41 10 C.F.R. § 2.326(a)(1)-(3) .......................................................................................................35 10 C.F.R. § 2.326(b) .................................................................................................................36 10 C.F.R. § 50.54(bb) ...............................................................................................................28 10 C.F.R. § 50.82......................................................................................................................27 10 C.F.R. § 52.97(a)(1)(i) ..........................................................................................................33 10 C.F.R. § 72.240(b) ................................................................................................................ 9 10 C.F.R. Part 50, Appendix A, Criterion 61...............................................................................28 10 C.F.R. Part 60 ......................................................................................................................33 10 C.F.R. Part 63 ......................................................................................................................33 MISCELLANEOUS Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 75 Fed. Reg. 81,032 (Dec. 23, 2010) (Final Rule) ......... passim Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014)
(Final Rule) .....................................................................................................................7, 14, 31 Denial of Petition for Rulemaking, 42 Fed. Reg. 34,391 (July 5, 1977).............................. passim Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,263 (Sept. 19, 2014) ...................................................................................7, 14 NUREG-1536, Rev. 1, Final Report, Standard Review Plan for Spent Fuel Dry Storage Systems at a General License Facility (July 2010) (ADAMS Accession No. ML091060180) ..............29, 33 NUREG-1801, Rev. 2, Generic Aging Lessons Learned Report (Dec. 2010) (ADAMS Accession No. ML103490041) .................................................................................................................... 9 NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Aug. 2014) (ADAMS Accession No. ML14188B749) ............................................ 7 NUREG-2157, Vol. 1, Final Report, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Sept. 30, 2014) (ADAMS Accession No. ML14196A105)
.....................................................................................................................................16, 29, 40 NUREG-2157, Vol. 2, Final Report, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Sept. 30, 2014) (ADAMS Accession No. ML14196A107)
......................................................................................................................................... passim
                                                              - vi -
Part 50-Licensing of Production and Utilization Facilities, 21 Fed. Reg. 355 (Jan. 19, 1956) ... 22 Requirements for Licensee Actions Regarding the Disposition of Spent Fuel Upon Expiration of Reactor Operating License, 49 Fed. Reg. 34,688 (Aug. 31, 1984) (Final Rule) ... 28 Waste ConfidenceContinued Storage of Spent Nuclear Fuel, 78 Fed. Reg. 56,776 (Sept. 13, 2013) ....................................................................................................................... 31 Waste Confidence Decision, 49 Fed. Reg. 34,658 (Aug. 31, 1984) ................................... passim Waste Confidence Decision Review, 55 Fed. Reg. 38,474 (Sept. 18, 1990) .............................. 4 Waste Confidence Decision Review: Status, 64 Fed. Reg. 68,005 (Dec. 6, 1999) ..................... 4 Waste Confidence Decision Update, 75 Fed. Reg. 81,037 (Dec. 23, 2010) ............................... 5
October 31, 2014 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
                                              )
In the Matters of                              )
                                              )
DTE ELECTRIC COMPANY                          )    Docket No. 50-341 (Fermi Nuclear Power Plant, Unit 2)            )
                                              )
DTE ELECTRIC CO.                              )    Docket No. 52-033-COL (Fermi Nuclear Power Plant, Unit 3)            )
                                              )
DUKE ENERGY CAROLINAS, L.L.C.                  )    Docket Nos. 52-018-COL (William States Lee III Nuclear Station,      )                52-019-COL Units 1 and 2)                                )
                                              )
ENTERGY NUCLEAR OPERATIONS, INC.              )    Docket Nos. 50-247-LR (Indian Point Nuclear Generating              )                50-286-LR Units 1 and 2)                                )
                                              )
FIRSTENERGY NUCLEAR OPERATING CO.              )    Docket No. 50-346-LR (Davis-Besse Nuclear Power Station, Unit 1)    )
                                              )
FLORIDA POWER & LIGHT CO.                      )    Docket Nos. 52-040-COL, (Turkey Point, Units 6 and 7)                  )                52-035-COL
                                              )
LUMINANT GENERATION CO. L.L.C.                )    Docket Nos. 52-034-COL, (Comanche Peak Nuclear Power Plant,            )                52-035-COL Units 3 and 4)                                )
                                              )
NEXTERA ENERGY SEABROOK, L.L.C.                )    Docket No. 50-443-LR (Seabrook Station, Unit 1)                    )
                                              )
NUCLEAR INNOVATION                            )    Docket Nos. 52-012-COL, NORTH AMERICA L.L.C                            )                52-013-COL (South Texas Project, Units 3 and 4)          )
                                              )
PACIFIC GAS & ELECTRIC CO.                    )    Docket Nos. 50-275-LR, (Diablo Canyon Nuclear Power Plant,            )                50-323-LR Units 1 and 2)                                )
                                              )
PROGRESS ENERGY FLORIDA, INC.                  )    Docket Nos. 52-029-COL, (Levy County Nuclear Power Plant,              )                52-030-COL Units 1 and 2)                                )
                                              )
SOUTH TEXAS PROJECT                                      )      Docket Nos. 50-498-LR, NUCLEAR OPERATING CO.                                    )                      50-499-LR (South Texas Project, Units 1 and 2)                      )
                                                          )
TENNESEE VALLEY AUTHORITY                                )      Docket Nos. 52-014-COL, (Bellefonte Nuclear Power Plants,                        )                      52-015-COL Units 3 and 4)                                            )
                                                          )
TENNESSEE VALLEY AUTHORITY                                )      Docket Nos. 50-327-LR, (Sequoyah Nuclear Plant,                                  )                      50-328-LR Units 1 and 2)                                            )
                                                          )
TENNESSEE VALLEY AUTHORITY                                )      Docket No. 50-391-OL (Watts Bar Nuclear Plant, Unit 2)                        )
                                                          )
UNION ELECTRIC CO.                                        )      Docket No. 50-483-LR (Callaway Nuclear Power Plant, Unit 1)                    )
                                                          )
VIRGINIA ELECTRIC AND POWER CO.                          )      Docket No. 52-017-COL d/b/a DOMINION VIRGINIA POWER and                        )
OLD DOMINION ELECTRIC COOPERATIVE                        )
(North Anna Power Station, Unit 3)                        )
________________________________________ )
NRC STAFF CONSOLIDATED ANSWER TO PETITIONS TO SUSPEND FINAL REACTOR LICENSING DECISIONS, MOTIONS TO ADMIT A NEW CONTENTION, AND MOTIONS TO REOPEN THE RECORD INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c) and the October 7, 2014, Commission Memorandum and Order, 1 the staff of the U.S. Nuclear Regulatory Commission (Staff) hereby provides its consolidated answer to filings submitted by Petitioners in the captioned proceedings on September 29, 2014. 2 1
DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-09, 80 NRC __ (Oct. 7, 2014) (slip op.).
2 The Petitioners in the captioned proceedings filed substantively identical filings that vary in their pagination. In order to provide consistency, the NRC Staff refers to the pagination in the filings submitted in the South Texas Project License Renewal proceeding. See, Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Issuance of Waste Confidence Safety Findings (Sept.
29, 2014) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML14272A615); Petitioners Motion for Leave to File a New Contention Concerning the Absence of
The Petitioners filings are as follows. The suspension petition (Petition) requests the suspension of final decisions in reactor licensing proceedings for the issuance of renewed licenses (LR), combined licenses (COLs), and operating licenses (OLs). 3 The motion for leave to file a new contention (New Contention) 4 requests admission of a contention asserting that the Nuclear Regulatory Commission (Commission or NRC) has failed to make findings required by the Atomic Energy Act (AEA) associated with spent nuclear fuel (SNF) disposal. The motion to reopen the record (Motion to Reopen), which was filed in several proceedings, requests reopening of closed proceedings, and was filed on some dockets with supporting affidavits. The Petitioners submissions, as described below, do not satisfy the relevant legal requirements for suspending or staying proceedings, admitting a contention, or reopening the record in a closed proceeding. Accordingly, the Petitioners requests should be denied.
PROCEDURAL BACKGROUND Required Waste Confidence Safety Findings in the Licensing Proceeding at South Texas Project Electric Generating Station Units 1 and 2 (Sept. 29, 2014) (ADAMS Accession No. ML14272A614) (filed in the South Texas license renewal docket). In some proceedings, petitioners also filed motions to reopen the record. See, e.g., Motion to Reopen the Record for South Texas Project Units 1 & 2 Nuclear Power Plant (Sept. 29, 2014) (ADAMS Accession No. ML14272A609). Unlike the other licensing proceedings where a suspension petition was filed, Friends of the Coast and New England Coalition did not submit a motion to admit a related contention.
3 From a procedural standpoint, the captioned proceedings can be divided into three categories.
: 1) In eight proceedings (Watts Bar OL, South Texas Project LR, Sequoyah LR, Callaway LR, Levy County COL, North Anna COL, Comanche Peak COL, and William States Lee III COL), other than the instant filing, there are no adjudicatory matters pending before either the Commission or the Licensing Board; 2) In seven proceedings (Turkey Point COL, Bellefonte COL, Fermi LR, Indian Point LR, Diablo Canyon LR, Seabrook LR, and Davis-Besse LR), there are other admitted or proposed contentions pending before a Licensing Board; and 3) in two proceedings (Fermi COL and South Texas COL), there are no admitted or proposed contentions pending before a Licensing Board, but there are matters (e.g.,
petitions for review) pending before the Commission.
4 In the Fermi license renewal proceeding, Petitioners filed a motion to amend and supplement an already filed contention. See Petitioners Motion for Leave to Amend and Supplement Contention 3 Concerning the Absence of Required Waste Confidence Safety Findings in the Relicensing Proceeding for Fermi 2 Nuclear Power Plant, (Sept. 29, 2014) (ADAMS Accession No. ML14272A275).
On August 31, 1984, the Commission issued its Waste Confidence Decision (WCD). 5 Therein, the Commission made five central findings of reasonable assurance that:
(1) [S]afe disposal of high level radioactive waste [(HLW)]
and [SNF] in a mined geologic repository is technically feasible.
(2) [O]ne or more mined geologic repositories for commercial [HLW] and [SNF] will be available by the years 2007-2009, and that sufficient repository capacity will be available within 30 years beyond the expiration of any reactor operating license to dispose of existing commercial [HLW] and [SNF] originating in such reactor and generated up to that time.
(3) [HLW] and [SNF] will be managed in a safe manner until sufficient repository capacity is available to assure the safe disposal of all [HLW] and [SNF].
(4) [I]f necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 30 years beyond the expiration of that reactor's operating license at that reactor's spent fuel storage basin, or at either onsite or offsite independent spent fuel storage installations [(ISFSIs)].
(5) [S]afe independent onsite or offsite spent fuel storage will be made available if such storage capacity is needed. 6 In 1990, the Commission issued an update to the WCD, in which it revised Findings (2) and (4), finding reasonable assurance that:
(2) [A]t least one mined geologic repository will be available within the first quarter of the twenty-first century, and that sufficient repository capacity will be available within 30 years beyond the licensed life for operation (which may include the term of a revised or renewed license) of any reactor to dispose of the commercial [HLW] and [SNF] originating in such reactor and generated up to that time.
(4) [I]f necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 30 years beyond the licensed life for operation (which may 5
Waste Confidence Decision, 49 Fed. Reg. 34,658 (Aug. 31, 1984).
6 Id. at 34,659-60.
include the term of a revised or renewed license) of that reactor at its spent fuel storage basin, or at either onsite or offsite [ISFSIs]. 7 In 1999, the Commission again reviewed the WCD, and left it in place without revision. 8 In 2010, following its consideration of public comments on a proposed rule, the Commission adopted a second update to the WCD. 9 Therein, the Commission (a) reaffirmed three of its previous WCD Findings, and (b) updated WCD Findings (2) and (4), finding reasonable assurance that:
(2) [S]ufficient mined geologic repository capacity will be available to dispose of the commercial [HLW and SNF] when necessary.
(4) [I]f necessary, spent fuel generated in any reactor can be stored safely without significant environmental impacts for at least 60 years beyond the licensed life for operation (which may include the term of a revised or renewed license) of that reactor in a combination of storage in its spent fuel storage basin or at either onsite or [ISFSIs]. 10 Based on these findings, the Commission then amended 10 C.F.R. § 51.23(a) titled Temporary storage of spent fuel after cessation of reactor operationgeneric determination of no significant environmental impact, and known as the Temporary Storage Rule (TSR). 11 The Commissions 2010 revision of 10 C.F.R. § 51.23(a) was challenged by several petitioners before the U.S. Court of Appeals for the District of Columbia Circuit. On June 8, 2012, the court rendered its decision in New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012), in which it held, inter alia, that the Commissions 2010 WCD Update and its revision of 10 C.F.R.
§ 51.23(a) were invalid. Specifically, the court found that the Commission's evaluation of the 7
Waste Confidence Decision Review, 55 Fed. Reg. 38,474 (Sept. 18, 1990) (emphasis added).
8 Waste Confidence Decision Review: Status, 64 Fed. Reg. 68,005, 68,006-07 (Dec. 6, 1999).
9 Waste Confidence Decision Update, 75 Fed. Reg. 81,037 (Dec. 23, 2010).
10 Id. at 81,038 (emphasis added).
11 Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation 75 Fed. Reg. 81,032 (Dec. 23, 2010) (Final Rule) (Emphasis added).
risks of spent nuclear fuel was deficient in that: (a) the Commissions conclusion that permanent storage will be available when necessary did not calculate the environmental effects of failing to secure permanent storage, 12 and (b) its determination that spent fuel can safely be stored at nuclear plant sites for sixty years after the expiration of the plant's license failed to properly examine future dangers and key consequences, 13 by not properly examining the risk of [spent fuel pool] leaks and the potential consequences of pool fires. 14 On this basis, the court vacated the Commission's WCD Update and Temporary Storage Rule, and remanded the matter to the Commission. 15 The courts ruling in New York v. NRC prompted the filing of new contentions in various NRC proceedings. On August 7, 2012, the Commission issued CLI-12-16, in which it announced that it will not issue licenses dependent upon the [WCD] or Temporary Storage Rule until the courts remand is appropriately addressed. 16 Further, the Commission stated that [t]o the extent that [it] takes action with respect to waste confidence on a case-by-case basis, litigants can challenge such site-specific agency actions in NRC adjudications; and it directed affected Atomic Safety and Licensing Boards (Boards) to hold all of the newly filed waste confidence/temporary storage contentions in abeyance pending further Commission order. 17 12 New York v. NRC, 681 F.3d at 471-473; cf. id. at 478-79.
13 Id. at 473; cf. id. at 478-79.
14 Id. at 479; cf. id. at 481-82.
15 Id. at 483.
16 Calvert Cliffs 3 Nuclear Project, LLC & Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63, 67 (Aug. 7, 2012).
17 Id. at 67-69, citing Union Elec. Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 168-71 (2011).
Following its issuance of a generic environmental impact statement (GEIS) and affirmation of a revised rule codifying its generic determinations regarding the environmental impacts of continued spent fuel storage beyond a reactors licensed operating life (continued storage), 18 on August 26, 2014, the Commission issued its decision in CLI-14-08. 19 Therein, the Commission held that the GEIS and revised rule cured the deficiencies identified by the New York Court, adopted the revised rule, and lifted its suspension of final licensing decisions based on the revised rule and supporting GEIS. In addition, the Commission dismissed the long term storage/waste confidence-related contentions in seven COL and license renewal proceedings and terminated those proceedings; it directed the Boards in all proceedings other than Indian Point 20 to reject the spent fuel storage/waste confidence contentions pending before them; and it directed the Indian Point Board to dismiss the contentions pending before it to the extent that they are resolved by the Commissions generic determinations and to resolve all other portions of those contentions in accordance with the contention admissibility standards in 10 C.F.R. § 2.309(c) and (f).
On September 19, 2014, the Commission published the final Continued Storage Rule and supporting GEIS in the Federal Register. 21 Subsequently, Petitioners filed their Petition, New Contention, and Motion to Reopen 22 in numerous individual license renewal, COL, and OL 18 See NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Aug. 2014) (ADAMS Accession No. ML14188B749) (GEIS) (NUREG-2157). The Final Report of NUREG-2157 is available in two volumes at ADAMS Accession No. ML14196A105 and ML14196A107 (Sept. 2014).
19 Calvert Cliffs 3 Nuclear Project, LLC, & Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-08, 80 NRC __ (Aug. 26, 2014) (slip op.).
20 Calvert Cliffs, CLI-14-08, 80 NRC at _ (Aug. 26, 2014) (slip op. at 10).
21 Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,263 (Sept. 19, 2014); Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept.
19, 2014) (Final Rule). The rule became effective on October 20, 2014. 79 Fed. Reg. at 56,238.
22 On October 1, 2014, on some dockets, Petitioners submitted a set of errata to their Petition to remove references to two organizations erroneously listed as participating in the Petition. See, e.g.,
proceedings on September 29, 2014. On October 20, 2014, the Continued Storage Rule became effective.
DISCUSSION The Petition, New Contention, and Motion to Reopen fail to meet the applicable Commission requirements for the reasons discussed in the following sections. Each of these should, therefore, be dismissed.
I.        The Petition Does Not State a Sufficient Basis for Suspending or Staying Final Decisions in Reactor Licensing Proceedings Petitioners suspension request is based on a legal argument that the NRC has not made required findings under the AEA in connection with the disposal of spent nuclear reactor fuel before it may issue reactor licenses. However, the Petitioners failed to address, much less satisfy, the legal standards that apply to this extraordinary remedy. 23 The Petition also may be understood as a request for an adjudicatory stay of reactor licensing decisions. To the extent that the Petition constitutes a stay request, it does not address or meet the well-established criteria for justifying a stay. Furthermore, the Commission has adequate regulatory means to address any unlikely disposal-related risk to the public health and safety. As detailed below, therefore, Petitioners suspension request should be denied.
A.      Petitioners Have Not Established a Proper Legal Basis for Suspending Final Decisions in Reactor Licensing Proceedings Errata to Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Issuance of Waste Confidence Safety Findings (Oct. 1, 2014) (ADAMS Accession No. ML14274A547)
(filed in the Levy COL docket). Petitioners in the Levy COL proceeding filed a motion to withdraw their Motion to Reopen on October 2, 2014, because the Board had not yet closed the record in that proceeding. See Intervenors Unopposed Motion to Withdraw Their Motion to Reopen the Record (Oct. 2, 2014) (ADAMS Accession No. ML14275A224). Staff does not oppose that motion.
23 See Fermi, CLI-14-07, 80 NRC at ___, __ (July 17, 2014) (slip op. at 8), quoting Union Elec.
Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 158 (2011) (Suspending a proceeding is a drastic action that we will not take absent immediate threats to public health and safety, or other compelling reason.)
When determining whether to suspend a proceeding, the Commission considers whether moving forward with the adjudication will jeopardize the public health and safety, prove an obstacle to fair and efficient decision making, or prevent appropriate implementation of any pertinent rule or policy changes. 24 Absent some immediate threat to public health and safety, the Commission is reluctant to suspend proceedings in light of the substantial public interest in efficient and expeditious administrative proceedings. 25 Petitioners have not shown that moving forward with reactor licensing proceedings will jeopardize the public health and safety. 26 Indeed, Petitioners request is based on a legal argument, not a factual argument related to circumstances where public health and safety is immediately implicated. The need to dispose of SNF, the issue to which the Petitioners claims are directed, is not imminent for any of the captioned facilities. Moreover, currently-operating reactors that may have their licenses renewed are already safely storing spent nuclear fuel onsite, and new facilities that are not yet licensed (or that may be licensed during the pendency of resolving Petitioners claims) will not have an imminent need to dispose of SNF. 27 Petitioners 24 Duke Energy Corp. (McGuire Nuclear Station Units 1 & 2; Catawba Nuclear Station, Units 1 &
2), CLI-01-27, 54 NRC 385, 389-90 (2001) (McGuire-Catawba), quoting Private Fuel Storage, L.L.C.
(Independent Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 380 (2001) (PFS).
25 Duke Energy Corp. (Oconee Nuclear Station Units 1, 2 & 3), CLI-99-11, 49 NRC 328, 339 (1999), quoting Duke Power Co.(Catawba Nuclear Station, Units 1 & 2), 17 NRC 1041, 1048 (1983)
(citing WSTE-TV, Inc. v. FCC, 566 F.2d 333, 337 (D.C. Cir. 1977)).
26 In certain proceedings where Petitioners filed a Motion to Reopen, they also submitted declarations alleged to include information supporting their claims that the motion raises a significant safety issue. See, e.g., Declaration of Dr. Arjun Makhijani In Support of Motions to Reopen the Record of NRC Reactor Licensing and Re-Licensing Proceedings (Sept. 29, 2014) (ADAMS Accession No. ML14272A636) (filed in the William S. Lee III COL docket). Notably, the Petition does not reference any of these declarations. The declarations are voluminous and pertain largely to claims of economic harms and safety risks in the distant future. Not only do these declarations not address immediate threats to public health and safety, but their lengthy and unspecified claims contradict longstanding Commission precedent that information incorporated by reference should not force a reader to sift through it in search of asserted factual support. NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 332 (2012).
27 See NUREG-1801, Rev. 2 Generic Aging Lessons Learned Report at VII.A2 (Dec. 2010)
(ADAMS Accession No. ML103490041); see also 10 C.F.R. § 72.240(b) (conditions for spent fuel storage cask renewal include submission of aging analyses demonstrating continued safety for extended
have presented no evidence that permanent disposal is currently necessary, or that AEA findings regarding disposal are needed prior to licensing a reactor, to avoid jeopardizing public health and safety, or that it will become so in the immediate future.
Past instances where the Commission has declined to suspend a proceeding reinforce the high bar that exists for this remedy. Indeed, the Commission did not find this threshold met even where, in contrast to Petitioners present request, an immediate threat to the public health and safety was alleged. In one recent example, the Commission denied a petition to suspend reactor licensing decisions following the earthquake and tsunami events affecting the power plants at Fukushima Daiichi. 28 Additionally, following two other events in the United States with potential implications for reactor licensing, namely the Three Mile Island accident and the terrorist attacks on September 11, 2001, the Commission declined to suspend pending adjudications. 29 Given that the Commission did not consider suspending reactor licensing decisions to be justified even following these events, where immediate public health and safety threats were alleged, no reading of the Petition justifies granting such a remedy.
Not only have Petitioners failed to show that proceeding with reactor licensing represents any immediate threat to public health and safety, they also have not addressed or shown sufficient legal authority to justify a suspension of licensing. The Commissions decision to suspend licensing decisions in light of the holding in New York v. NRC was predicated on the D.C. Circuits invalidation of generic environmental findings underpinning reactor licensing.
Petitioners own generalized arguments regarding the AEAs requirements provide no similarly operation and a description of the aging management program to be used to ensure that aging does not affect the safety function of components).
28 Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 166 (2011).
29 See McGuire-Catawba, CLI-01-27, 54 NRC at 390; PFS, CLI-01-26, 54 NRC at 381-82.
conclusive basis to support an extraordinary remedy like the suspension of reactor licensing. 30 Moreover, the Commissions recent decision to lift the suspension on final reactor licensing decisionsfollowing a multi-year process in which the agency developed the legal and technical bases for the Continued Storage Rule, developed a multi-volume supporting analysis in the GEIS, and engaged in substantial public outreach and thorough response to public comments reflects a deliberate determination that the Continued Storage Rule and the GEIS satisfy the courts concerns in New York v. NRC and are legally sufficient to resume making final decisions in reactor licensing proceedings. For these reasons, the Petitioners have shown no legally sufficient basis to grant the Petition; it should be dismissed.
B.      The Petition Does Not Satisfy the Requirements for Staying Final Reactor Licensing Decisions The Petitioners have also provided no arguments to justify a stay under 10 C.F.R.
§ 2.342(e). In effect, the Petition seeks a stay of the Commissions decision in CLI-14-08 lifting the suspension of final reactor licensing decisions. Under 10 C.F.R. § 2.342(e), the factors used to analyze whether a stay is appropriate are (1) whether the moving party has made a strong showing that it is likely to prevail on the merits, (2) whether the party would be irreparably injured absent the stay, (3) whether the granting of the stay would harm other parties, and (4) where the public interest lies. The most important factor is irreparable harm, 31 and a party urging a stay must show that any irreparable harm is imminent, certain, and great. 32 The Commission has stated that non-specific claims such as raising the specter of a nuclear 30 See infra at 15-18.
31 Sequoyah Fuels Corp. & General Atomics (Gore, Oklahoma Site), CLI-94-9, 40 NRC 1, 6 (1994).
32 Entergy Nuclear Vermont Yankee LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-06-8, 63 NRC 235, 237-38 (2006) (quoting Massachusetts Coalition of Citizens with Disabilities v. Civil Defense Agency, 649 F.2d 71, 75 (1st Cir. 1981)).
accident does not demonstrate irreparable harm. 33 Absent any showing of irreparable harm, the moving party must make an overwhelming showing of the likelihood of success on the merits. 34 Petitioners have not even addressed any of the four stay factors and have also not demonstrated that they are entitled to a stay. With respect to the irreparable harm standard, Petitioners have not shown any harm, much less irreparable harm, in the absence of a stay in any particular proceeding. Refusing to grant the stay here will not harm Petitioners because for most pending new reactor applications the operation of the proposed reactors (let alone the end of licensed operation and the need for permanent disposal) is still years in the future, while operating plants that seek license renewal are safely storing spent nuclear fuel onsite, and both new and operating reactor licensees must also show that SNF will be safely stored onsite during the period of licensed operation. 35 The need for disposal for new facilities and currently operating reactors is, therefore, distant in time and the NRCs comprehensive regulatory framework, as discussed infra at 27-29, demonstrates the NRCs ability to make whatever findings are required under the AEA or other statutes regarding spent fuel disposal, at the appropriate time. Petitioners will not be harmed by having their concerns adjudicated through the NRCs standard hearing procedures, without an extraordinary stay on the effectiveness of licensing decisions put in place, because there is no likelihood that any harm will occur during the adjudication of their claims. In the extremely unlikely event that a health or safety threat related to the disposal of SNF arisesduring the pendency of resolving Petitioners New 33 Id.
34 Sequoyah, CLI-94-9, 40 NRC at 6.
35 Cf. Vermont Yankee, CLI-06-8, 63 NRC at 237-38 (showing irreparable harm is the most important factor).
Contention or any subsequent periodthe Commission has sufficient means in place to appropriately respond to ensure adequate protection of public health and safety. 36 Petitioners also have not shown that they are likely to prevail on the merits in any particular case because they merely raise a series of legal assertions, ones which are contrary to applicable regulatory history and case law and the Commissions recent determination that the Continued Storage Rule and GEIS are sufficient to lift the suspension on final licensing decisions. Given the absence of any showing of imminent irreparable harm if the Petition is not granted, the public interest is not served by creating greater expense and uncertainty by delaying final reactor licensing decisions where no countervailing benefit exists. For these reasons, Petitioners have not shown that they are entitled to a stay of final licensing decisions.
II.      Petitioners Contention that the NRC Has Failed to Make Required AEA Findings in Connection with Disposal of SNF is Invalid and Inadmissible A.      Summary As explained below, Petitioners have incorrectly characterized the legal and regulatory history relevant to whether the NRC must make findings under the AEA on disposal of spent nuclear fuel. 37 Further, the history cited by Petitioners does not support their assertion that the 36 See, e.g., 10 C.F.R. § 2.202.
37 The Petitioners do not use consistent terminology to describe the findings they assert are required by the AEA with respect to SNF disposal. For example, they assert that the Waste Confidence findings  included both general safety findings and supporting technical analysis. New Contention at 7-8. The Petitioners quote the 1984 Waste Confidence Findings 1 and 2, which they characterize as address[ing] both the technical feasibility of siting a repository and the sufficiency of repository capacity.
New Contention at 6. In addition, they refer to technical findings of reasonable assurance, definitive findings about the safety of repository disposal, predictive findings regarding the ultimate safety of spent fuel disposal, Waste Confidence findings regarding the safety of spent fuel disposal, and AEA safety findings. New Contention at 7-9. The Petitioners assert these findings are required pursuant to AEA sections 103d., 161b., and 182a. New Contention at 4-5. But as discussed in more detail below, the NRC has previously determined that the AEA does not require findings regarding SNF disposal prior to reactor licensing. See Denial of Petition for Rulemaking, 42 Fed. Reg. 34,391 (July 5, 1977) (hereafter PRM Denial). However, for consistency in responding to the diverse terms employed in the Petitioners pleadings, the Staffs Response will generally refer to findings under the AEA regarding disposal.
Commissions recent issuance of the Continued Storage Rule and GEIS left a gap in findings required under the AEA that should bar the NRC from issuing final licenses for reactors.
Significantly, the NRC is not required by the AEA, or any judicial precedent, to make explicit findings regarding spent fuel disposal before issuing a license (or renewed license) for power reactors. Rather, all licensing decisions made under the NRCs regulatory framework already address health and safety of the public in this regard, to the extent the Commission deems necessary. Section 103.d. of the AEA prohibits the Commission from issuing a license if, in the opinion of the Commission, the issuance of a license  would be inimical to the common defense and security or to the health and safety of the public. 38 Petitioners assert that the NRC has interpreted the AEA to require Waste Confidence safety findings since 1977. 39 That assertion is incorrect. To the contrary, the Commission has previously determined that the NRC is not required under the AEA to make findings regarding disposal before licensing nuclear reactors. 40 If the Commission had determined that such findings were necessary as a condition for reactor licensing, it would have instructed the Staff to commence a rulemaking to address those findings in the relevant regulatory provisions when it approved the NRCs departure from prior Waste Confidence Decisions in the GEIS and final Continued Storage Rule. 41 While not required by the AEA, the Commission historically expressed a policy that it would not license reactors unless it believed wastes generated by the reactor could be disposed of safely when necessary. 42 The Waste Confidence Decision historically embodied that policy, 43 38 The Atomic Energy Act of 1954, as amended, § 103d., 42 U.S.C. § 2133 (2005).
39 New Contention at 7.
40 See PRM Denial at 34,391-92 (emphasis added).
41 79 Fed. Reg. at 56,263; 79 Fed. Reg. at 56,238.
42 See PRM Denial at 34,393.
but the Commission has not changed that policy. Although a departure from the Waste Confidence Decisions of the past, the Continued Storage GEIS and rule expands on those prior Waste Confidence efforts using the NEPA process to provide the public with the most complete picture to date of the environmental impacts of post-reactor-operation safe spent fuel management. While the Continued Storage GEIS fulfills the NRCs NEPA obligations to examine the environmental impacts of continued storage, nothing in the revised rule or GEIS is inconsistent with the Commissions longstanding policy of only licensing reactors if wastes generated by the reactor can be disposed of safely when necessary.
Finally, over the last thirty years, the NRC has developed a comprehensive regulatory framework for the storage and disposal of spent nuclear fuel, and the framework undergirds that longstanding policy. These developments in the NRCs regulatory framework, reinforced by the Commissions consistent position that explicit findings regarding spent fuel disposal are unnecessary prior to reactor licensing, are fatal to the Petitioners claims.
Because the NRC is not required to make the findings that the Petitioners claim are needed, their New Contention is inadmissible under the NRCs rules of practice. The Petitioners claim does not relate to any findings the NRC must make in granting, denying, or renewing a reactor license and, as a result, is also outside the scope of these adjudicatory proceedings. 44 The New Contention also does not raise a genuine dispute with the particular applications in the many proceedings that it was filed, as it does not specify any allegedly deficient content inor omission fromany particular application as 10 C.F.R. §2.309(f)(1)(vi) requires. 45 For these reasons, the New Contention should be dismissed.
43 See, e.g., 49 Fed. Reg. at 34,658.
44 10 C.F.R. § 2.309(f)(1)(iii) and (iv).
45 See Seabrook, CLI-12-5, 75 NRC at 323 (When large portions of a contention are taken from one or more other NRC proceedings it is especially important to ensure the existence of a genuine material dispute with [the] particular application.) (emphasis in original). The Amended and Supplemented contention filed in the Fermi 2 license renewal proceeding is also inadmissible because it
B. The AEA Does Not Require Findings Regarding Disposal Prior to Issuance of Reactor Operating Licenses In 1976, the Natural Resources Defense Council (NRDC) petitioned the Commission to determine, through rulemaking, whether spent fuel can be disposed of without undue risk to the public health and safety and to cease granting operating licenses until that definitive finding is made. 46 Similar to Petitioners position here, NRDC argued that the AEA and NRC regulations require such a determination. In 1977, the Commission denied that petition and set forth its interpretation of the AEA as it relates to the production, storage, and disposal of spent fuel:
[T]he Atomic Energy Act clearly requires that some kind of safety finding be made prior to issuance of an operating license for a nuclear power reactor. It seems clear, however, that the statutory findings required by section 103 [of the Act] apply specifically to the proposed activities and activities under such licenses. These activities include some interim storage activities for spent fuel. They do not include the permanent disposal of high-level wastes though wastes are, in fact, generated by operation of the reactor.
The emphasis [in section 182] on information pertaining to the facility and applicant to be licensed is especially-significant. No such information is required regarding high-level waste disposal facilities. Such information would be necessary were the Commission to make the detailed safety finding regarding high-level waste disposal activities requested by petitioner. 47 Thus, the scope of the NRCs regulatory authority for licenses issued under the AEA is limited to the proposed activities that would be authorized by the requested license.
Nevertheless, the Commission assured the petitioner, NRDC, and the public that
[t]he Commission would not continue to license reactors if it did is not based on new and materially different information from information previously available. See 10 C.F.R. § 2.309(c)(1)(i)-(iii). Instead, the initial contention cited to the same cases (NRDC v. NRC, NewYork v. NRC, and Minnesota v. NRC) and made the same substantive claim that the NRC must make waste confidence safety findings in the Fermi 2 relicensing proceeding.
46 See PRM Denial.
47 PRM Denial at 34,391-92 (internal citations omitted).
not have reasonable confidence that the wastes can and will in due course be disposed of safely. The accumulating evidence  continues to support the Commission's implicit finding of reasonable assurance that methods of safe permanent disposal of high-level wastes can be available when they are needed. 48 Thus, as matter of policy, the NRC will not license a reactor if it did not believe that the wastes can safely be disposed of when necessary.
The Petitioners here assert that this discussion of Commission policy constitutes an agency interpretation that the AEA requires a finding regarding the spent fuel disposal prior to reactor licensing. 49 The Petitioners are mistaken. The Commission explicitly interpreted the AEA not to require such findings, but assured the public that the Commission, as a matter of policy, 50 would not issue licenses if it believed spent fuel could not be disposed of in due course.
NRDC appealed the Commissions denial to the Second Circuit. Rejecting NRDCs claims of an AEA-based obligation to make such explicit findings, that court held that the petitioners simply read[] too much into the AEA. 51 Noting that the Atomic Energy Commission found no such requirement in the AEA, and being unable to find any doubt over the intent of Congress (1) not to require NRC to make the definitive determination requested by NRDC and (2) not to require a moratorium on nuclear power reactor licensing pending an affirmative determination, 52 the court held that:
[The] NRC is not required  to withhold action on pending or 48 Id. at 34,392. The Staff notes that the analysis in Appendix B of the Continued Storage GEIS documents the current status of the scientific consensus on spent fuel disposal in a geologic repository; it explains that such disposal remains technically feasible. See NUREG-2157, Vol. 1, Final Report, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, at Appendix B (Sept. 30, 2014) (ADAMS Accession No. ML14196A105) (GEIS) (NUREG-2157 Vol. 1).
49 New Contention at 6.
50 See Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 75 Fed. Reg. 81,032, 81,032-33 (Dec. 23, 2010) (Final Rule).
51 NRDC v. NRC, 582 F.2d 166, 171 (2nd Cir. 1978).
52 Id. at 174.
future applications for nuclear power reactor operating licenses until it makes a determination that high-level radioactive wastes can be permanently disposed of safely. 53 The Petitioners suggest that the Second Circuit conditioned its decision on the Commissions implicit finding of reasonable assurance. In support of that assertion, the Petitioners misquote a portion of the Second Circuits opinion, 54 which says NRC maintains that  its long-continued regulatory practice  is in accord with the intent of Congress underlying the AEA and [Energy Reorganization Act]. 55 The Petitioners incorrectly characterize that discussion, describing it as the Second Circuits conclusion, and omit the crucial words NRC maintains from the quote. 56 Contrary to the Petitioners claims, although NRDC upheld NRCs practices, it did not conclude that the NRCs practices were in accordance with or required under the AEA. Rather Congress expressly recognized and impliedly approved NRCs regulatory scheme and practice under which the safety of interim storage of high-level wastes at commercial nuclear power reactor sites has been determined separately from the safety of Government-owned permanent storage facilities which have not, as yet, been established. 57 Further, even if the AEA did require the practices upheld in NRDC, those practices did not include the explicit findings under the AEA, which the Petitioners argue the NRC must make before licensing reactors.
However, even if the Petitioners understanding were correct, it would not support the Petitioners contention, because the Commission has not abandoned the policy asserted in the 53 Id. at 175 (emphasis added). Addressing the possibility of doubt, the NRDC court said if there were any doubt  we are persuaded that the matter was laid to rest by enactment of the Energy Reorganization Act of 1974. Id. at 174 (citations omitted). See also Minnesota v. NRC, 602 F.2d 412, 417 (D.C. Cir. 1979) (The NRCs decision [in the PRM Denial] was one of statutory interpretation, concluding that Congress did not intend in enacting the Atomic Energy Act to require a demonstration that nuclear wastes could be safely disposed of before licensing of nuclear plants was permitted. The Second Circuit affirmed on this basis.)
54 New Contention at 8.
55 NRDC, 582 F.2d at 170.
56 New Contention at 8.
57 NRDC, 582 F.2d at 174.
1977 denial of NRDCs petition for rulemaking regarding SNF disposal findings, as discussed in section II.C. below, nor has that policy been invalidated by the courts.
: 1.      Minnesota v. NRC Did Not Overrule the Commissions Interpretation of the AEA In 1976, the same year NRDC submitted its petition for rulemaking, two power reactor licensees applied for license amendments to increase the amount of fuel stored in their spent fuel pools. Before the Atomic Safety and Licensing Appeal Board, the intervenors argued that increasing uncertainty as to the feasibility of spent fuel disposal raised the prospect that spent fuel would be stored onsite indefinitely. 58 Therefore, the intervenors argued, the Commission is required to consider the environmental and safety implications of continuing to store spent fuel onsite after decommissioning of the reactor before it may grant a license amendment authorizing expanded onsite storage capacity. 59 The Appeal Board held that under NEPAs rule of reason an analysis was required only where it was reasonably probable that a solution would not be reached. 60 However, the Appeal Board found that question foreclosed by the PRM Denial, which it described as a policy declaration that, for the purposes of licensing actions, it both can and should be presumed that there will be spent fuel repositories available when needed. 61 The Commission denied an appeal, 62 and intervenors appealed to the U.S. Court of Appeals for the District of Columbia Circuit in Minnesota v. NRC. 63 58 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 45-46 (1978).
59 Id. at 44-46.
60 Minnesota, 602 F.2d at 415.
61 See Prairie Island, 7 NRC at 50-51.
62 Minnesota, 602 F.2d at 416.
63 Id. at 418-419.
The Appeal Boards holding that NEPAs rule of reason controls whether an analysis of disposal is required was not challenged on appeal to the D.C. Circuit. 64 Rather, the Minnesota petitioners argued that the NRC was required to decide that issue through adjudication. 65 Minnesota held that the NRC is entitled to answer that question generically, but that the PRM Denial was insufficient for that purpose because it was not the product of a rulemaking record devoted to expressly answering the questions. 66 Nevertheless, Minnesota held that NRC may chose the appropriate procedures to answer the question required under NEPAs rule of reason. 67 Therefore, [t]he court confine[d] its action  to rejection of certain contentions by petitioners, notably the claim of need for an adjudicatory proceeding, and remand[ed] the balance of these cases, and issues raised, for further consideration by the Commission with such procedure as it may deem appropriate. 68 64 Id. at 415-416.
65 Id. at 416.
66 Id. at 417. It is worth noting that Appeals Court judges have twice written separately to assert that this result is mandated by both NEPA and the AEA. In Minnesota, Judge Tamm wrote a concurring opinion to emphasize [his] belief that NEPA and section 103(d) [sic] of the Atomic Energy Act of 1954 mandate that prior to approval of a license  there must be a determination whether it is reasonably probable that an offsite fuel repository will be available when the operating license  expires. Minnesota, 602 F.2d at 419 (Tamm concurring). In a later per curiam opinion, Potomac Alliance v. NRC, 682 F.2d 1030 (D.C. Cir. 1982), the D.C. Circuit noted that Minnesota, despite an apparent NEPA violation had declined to vacate or stay the license amendment in question in 1979. Potomac Alliance, 682 F.2d at 1031. The Potomac Alliance court, on the same basis, likewise declined to vacate or stay the challenged license amendments at issue in 1982. Judge Bazelon, concurring in Potomac Alliance, argued that the fact that the court [in Minnesota] remanded the case to the Commission indicates that the court found an underlying violation of the law. Otherwise, there would be no grounds for the remand. Id. at 1038 n.44 (Bazelon concurring). Judge Bazelon also noted that the underlying violation found by Minnesota is implicit in the opinion, but agreed with Judge Tamm that both NEPA and the AEA required that result. Id.
at 1038. In light of these concurrences, the fact that neither majority opinion cited the AEA as a basis for its decision reinforces the understanding of Minnesota as based on NEPA rather than AEA considerations.
67 See Minnesota, 602 F.2d at 419, citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) (holding that a court cannot impose rulemaking procedures on a federal agency, though a court may find the administrative record insufficient to support an agency action).
68 Id. at 419. Minnesota also declined to vacate or stay the license amendments, which would effectively shut down the plants. Id. at 418.
The Petitioners assert that the court in Minnesota v. NRC affirmed the NRCs reliance for reactor licensing on duly promulgated technical findings of reasonable confidence. 69 The Petitioners further assert that Minnesota required the NRC to issue[] the findings and their supporting technical analyses in draft form for public comment. 70 However, no such duly promulgated findings 71 existed in 1979 for Minnesota to have affirmed, and Minnesota did not specify what procedure the NRC should use to address the remand. The Petitioners are correct that Minnesota found the PRM Denial insufficient to deny consideration of disposal on a generic basis. 72 However, Petitioners appear to be inferring from Minnesotas use of the phrase reasonable assurance that the D.C. Circuit had found such a requirement in the AEA. 73 The Petitioners are mistaken for two reasons. First, Minnesota relied upon NEPA in reaching its conclusions. Second, Minnesota did not cite the AEA as a basis for its holding.
First, as described above, the Minnesota petitioners did not challenge the Appeal Boards conclusion that disposal is relevant to operating licenses only if, per NEPAs rule of reason, it is reasonably probable that no disposal solution will be available by the end of the reactors licenses. 74 Therefore, Minnesotas opinion was restricted to deciding what procedures would be necessary for the NRC to answer that question generically. 75 Given that procedural posture, Minnesotas holding can logically be understood as based solely on NEPA grounds. 76 69 New Contention at 8, citing Minnesota v. NRC, 602 F.2d 412, 417 (D.C. Cir. 1979).
70 Id. at 6.
71 Id. at 8.
72 See Minnesota, 602 F.2d at 415-416.
73 See New Contention at 8.
74 Minnesota, 602 F.2d at 415-416.
75 Id. at 419.
76 See also Potomac Alliance (reaching the same result, but expressly limited to NEPA grounds).
Second, contrary to the Petitioners inference, the Minnesota courts use of the phrase reasonable assurance does not indicate that the court had concluded that the NRC had violated the AEA. The court in Minnesota did use the phrase reasonable assurance in describing its remand:
the court contemplates consideration on remand of the specific problem isolated by petitioners determining whether there is reasonable assurance that an off-site storage solution will be available by the years 2007-09, the expiration of the plants' operating licenses, and if not, whether there is reasonable assurance that the fuel can be stored safely at the sites beyond those dates. 77 However, at the time Minnesota was decided, reasonable assurance was a regulatory standard developed by the Atomic Energy Commission, not a statutory standard included in the language of the AEA, making it even less plausible that the Minnesota court, without citation or emphasis, was invoking the AEA as a basis for its holding. 78 Minnesota also explicitly linked assurance to a substantive NEPA requirement: NEPA requires the Commission fully to assure 77 Minnesota, 602 F.2d at 418. Compare that specific remand without citation to the AEA or the NRCs regulations with Judge Leventhals opinion, issued just months after Minnesota, in Porter County Chapter of the Izaak Walton League of America v. NRC, 606 F.2d 1363, 1369 (D.C. Cir. 1979) (emphasis added):
In Power Reactor Development Co. v. International Union, 367 U.S. 396, 407 (1961), the Supreme Court rejected the proposition that the Atomic Energy Act required the Commission to make the same definitive finding of safety of operation as it admittedly will have to make before it licenses actual operation of the facility. Thus, while a utility must demonstrate reasonable assurances that a proposed plant can be operated safely before it may obtain an operating license, 10 C.F.R. § 50.57(a)(3) (1979),
the unresolved safety questions do not require denial of a construction permit.
That opinion makes the absence of citation to the AEA or NRC regulations in Minnesota conspicuous, and belies Petitioners assertion that the D.C. Circuit found a requirement in the AEA for the NRC to make findings regarding disposal prior to reactor licensing.
78 The requirement that the Commission have reasonable assurance in reactor licensing was not added to the AEA until 1992, as part of an amendment adding provisions for combined licenses (COL).
See, e.g., AEA § 185b.The phrase reasonable assurance has been a part of the NRCs regulations since Part 50 was first promulgated in 1956. Part 50-Licensing of Production and Utilization Facilities, 21 Fed. Reg. 355 (Jan. 19, 1956). Section 1502 of the AEA provided that the Commission may implement the privatization plan if  privatization will  provide reasonable assurance that adequate enrichment capacity will remain available to meet the domestic electric utility industry. (emphasis added).
itself that safe and adequate storage methods are technologically and economically feasible. 79 Therefore, the courts use of the phrase reasonable assurance fails by itself to demonstrate that Minnesotas remand was based on an AEA requirement rather than on the readily ascertainable NEPA grounds.
: 2.      The Commission Did Not Interpret Minnesota v. NRC to Require Findings Regarding Disposal of Spent Nuclear Fuel Prior to Licensing Reactors Under the AEA Petitioners are also incorrect in sugesting that the NRC has interpreted Minnesota to require explicit findings under the AEA regarding disposal of spent nuclear fuel prior to licensing reactors. 80 In 1979, the Commission approved a letter denying a Motion for Reconsideration in light of Minnesota, stating that:
Judge Leventhal was quite careful not to make law in
[Minnesota]. His opinion for the court was consciously limited to a remand to the Commission for further consideration in light of new information and did not accept petitioners contentions that the Commission had erred both procedurally and substantively in declining to consider the possibility of long-term on-site storage. 81 Because a holding by the D.C. Circuit in Minnesota that the NRC is required to publish a waste confidence safety finding prior to licensing nuclear power reactors would have been a marked departure from the 2nd Circuits decision in NRDC, the Commissions recognition that the D.C.
Circuit was quite careful not to make law 82 shows that it did not interpret the courts decision to include such a holding. Nevertheless, the Commissions response to the Minnesota remand was consciously broader than the court had contemplated:
79 Minnesota, 602 F.2d at 417 n.6. (quoting NRDC v. NRC, 547 F. 2d at 658 D.C. Cir. (Tamm, J.,
concurring)) (emphasis added).
80 New Contention at 6.
81 Letter from Samuel J. Chilk, Secretary of the Commission, to Karin P. Sheldon, representing Christa-Maria, at 1 (Jan 2, 1980) (ADAMS Accession No. 8001140161).
82 Id.
The Commission recognized that the scope of this generic proceeding would be broader than the Court's instruction, which required the Commission to address the questions of whether off-site storage for spent fuel would be available by the expiration of reactor operating licenses and if not, whether spent fuel could continue to be safely stored on-site. [citation omitted]
However, the Commission believed that the primary public concern was whether nuclear waste could be disposed of safely rather than with an off-site solution to the storage problem per se. 83 Since then, the NRC has updated the Waste Confidence Decision as the Commission has deemed appropriate in light of new information. 84
: 3.      New York v. NRC Did Not Address the AEA, Nor Did it Hold That Minnesota Required Explicit Findings Regarding Disposal of Spent Nuclear Fuel Prior to Licensing Reactors Petitioners assert that New York v. NRC, 85 which vacated and remanded the 2010 waste confidence rule, 86 supports Petitioners assertion that the NRC is obligated under the AEA to make explicit findings regarding the disposal of spent nuclear fuel prior to licensing reactors. 87 In the Petitioners view, this conclusion is necessary because New York considered the Waste Confidence Decision rulemaking to be a licensing decision. 88 Petitioners are mistaken and read too much into that decision. The court in New York found that if the NRC is going to base its licensing decisions, in part, on preclusive findings in a rulemaking, then that rulemaking is a major federal action requiring either a FONSI or an EIS, because the preclusive findings are, in 83 Waste Confidence Decision, 49 Fed. Reg. 34,658 (Aug. 31, 1984) (citation omitted) (emphasis added).
84 See Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 75 Fed. Reg. 81,032, 81,038 (Dec. 23, 2010) (Final Rule).
85 New York, 681 F.3d at 471.
86 The previous rule could be found at 10 C.F.R. § 51.23(a) (2010).
87 See New Contention at 8-9.
88 See id. (citing New York v. NRC, 681 F.3d at 476-77).
effect, a predetermined stage of each licensing decision.89 But contrary to the Petitioners suggestion that this has AEA implications, that aspect of the holding is simply a prerequisite to the courts finding that the NRCs environmental assessment did not satisfy the requirements of NEPA for the evaluation of the environmental impacts of continued storage. New York simply means that the NRCs 2010 Waste Confidence Decision did not meet the NRCs NEPA obligations with respect to continued storage in a manner sufficient to preclude those NEPA issues from further consideration in licensing proceedings.
Indeed, New York reinforces the NRCs position that explicit findings regarding disposal of spent nuclear fuel are not required under the AEA prior to licensing reactors. The Waste Confidence Decision was developed in the context established by Minnesota, and was addressed by the court in New York entirely on NEPA grounds. The New York court discussed Minnesota in two places, neither of which supports the Petitioners claims. In the first instance, the court characterized its prior opinion in Minnesota as:
direct[ing]the Commission to consider whether there is reasonable assurance that an off-site storage solution [for spent fuel] will be available by  the expiration of the plants operating licenses, and if not, whether there is reasonable assurance that the fuel can be stored safely at the sites beyond those dates. 90 The second reference in New York to the decision in Minnesota appears where the court summarizes the Commissions argument that the waste confidence decision was not a major federal action because it did not authorize any reactor or storage facility license, stating that [t]o the Commission, the [Waste Confidence Decision] is simply an answer to this courts mandate in Minnesota to ensure that plants are only licensed while the NRC has reasonable assurance 89 New York, 681 F.3d at 476.
90 New York, 681 F.3d at 474-475 (quoting Minnesota v. NRC, 602 F.2d 412, 418 (D.C. Cir. 1979))
(emphasis added).
that permanent disposal of the resulting waste will be available. 91 Petitioners omit the crucial words [t]o the Commission from this quote; 92 this is the D.C. Circuit interpreting the NRCs briefs, not the D.C. Circuit interpreting Minnesota.
The Minnesota court used the term reasonable assurance without explanation.
However, the New York courts discussion of Minnesota places that decision squarely within the D.C. Circuits NEPA jurisprudence. Nowhere does the New York opinion discuss, cite, or mention the AEA. 93 Therefore, this decision likewise fails to support the Petitioners assertion of an AEA requirement that the NRC make explicit findings regarding disposal of spent nuclear fuel prior to licensing power reactors.
C.        The Commission Policy On Safe Disposal of Waste Remains Unchanged Although the Commission has discarded the format of the Waste Confidence Decision where the five findings essentially embodied the historic Commission policy expressed in the 1977 PRM denial 94the crux of that policy continues to remain in place to this day.
As demonstrated in the 2010 waste confidence rulemaking the Commission chose to reinforce that policy in the face of anticipated combined license proceedings:
Prior to NRC's original Waste Confidence proceeding, the Commission stated that, as a matter of policy, it would not continue to license reactors if it did not have reasonable confidence that the wastes can and will in due course be disposed of safely. 95 91 Id.
92 New Contention at 8.
93 It is also notable that New York did not address the AEA, because the petitioners in New York had also argued that the NRCs schedule for revisiting waste confidence violated the AEA. See Opening Brief for Petitioners at 28 (available at http://harmoncurran.com/library/Petitioners Opening Brief in NY v NRC 9-15-11.pdf). However, the court agreed with the petitioners NEPA arguments and did not address the AEA claim. New York, 681 F.3d at 471.
94 See PRM Denial at 34,393.
95 75 Fed. Reg. at 81,032-33 (citation omitted) (emphasis added).
This reiteration reinforces a conclusion that the Commission was making a finding of confidence in the availability of a repository, grounded in policy, rather than satisfying any AEA obligation to publish such a finding. Neither the Continued Storage GEIS, nor the rule which codifies it, abandons or in any way alters the Commission policy expressed in the PRM Denial that the Commission would not license reactors unless it believed that wastes generated by those reactors could be disposed of safely when necessary. 96 Instead, the Continued Storage rule and GEIS are consistent with that historic Commission policy. The robust analysis in the GEIS supports the conclusion contained in Appendix B to the GEIS that disposal in a geologic repository is technically feasible.
Further, the NRC continues to have in place a comprehensive regulatory structure that substantiates this policy. The regulatory framework is designed to assure adequate protection of the health and safety of the public, as well as maintaining the common defense and security, when licensing power reactors and storage facilitiesand licenses issued under the NRCs regulatory framework inherently address the health and safety of the public with respect to the spent fuel generated by NRC-licensed reactors. The Commissions regulations address both management of spent fuel (in 10 C.F.R. Parts 72, 50 and 52) as well as disposal of spent fuel (in 10 C.F.R. Parts 60 and 63). 97 These regulations include rigorous safety requirements, and the licensees obligations to safely control spent fuel continue pursuant to these requirements even after the licensed facility ceases to operate. 98 Further, an integral part of any regulatory agencys jurisdiction is the ability to enforce compliance with its regulations; the NRCs 96 See PRM Denial at 34,393.
97 These are separate from regulations focused on safety of other power plant components, such as those safety requirements in Part 54 dealing with aging management issues for license renewal.
98 See, e.g., 10 C.F.R. § 50.82, Termination of license.
enforcement authority stems from the AEA 99 and gives the NRC continued authority to assure the safe storage of spent fuel pursuant to its regulations after the cessation of operation.
In particular, the NRC has developed regulations that specifically address both storage and geologic disposal of spent nuclear fuel, including provisions designed to assure the safety of such facilities. Safe management of spent fuel storage in both dry cask and pools is addressed by provisions in Parts 72, 50 and 52. 100 In addition, Part 60 establishes general and prescriptive requirements for the construction and operation of geologic repositories, and Part 63 lays out the requirements pertinent to construction and operation of a geologic repository at Yucca Mountain. 101 Of particular significance, several regulatory provisions directly address safe storage of fuel after the licensed life of a reactor. For instance, 10 C.F.R. § 50.54(bb) requires licensees to submit to the NRC for approval a program for the management, including funding, of all spent nuclear fuel after the licensed life of the reactor ceases and until the Department of Energy takes title and possession of the fuel. 102 Criterion 61 of Appendix A to 10 99 For instance, the Atomic Energy Act of 1954, as amended, § 81a., 42 U.S.C. § 2111 (2005),
regarding domestic distribution of byproduct material, states in part, The Commission shall not permit the distribution of any byproduct material to any licensee, and shall recall or order the recall of any distributed material from any licensee, who is not equipped to observe or who fails to observe such safety standards to protect health as may be established by the Commission . . . .
100 For example, 10 C.F.R. § 50.34 sets out the required contents of an application, and § 50.34(i), in particular, requires the applicant to include a description and plans for strategies to maintain or restore spent fuel cooling capabilities after a loss of areas of the plant due to explosions or fire. Similarly, 10 C.F.R. Part 72 a regulatory section that was not in place in 1984 when the first Waste Confidence proceeding was completedaddresses the safety standards for ISFSIs.
101 These requirements for disposal in geologic repositories implicitly provide the technical foundation for the assurance necessary to meet the standard of adequate protection in the AEA, and any application submitted to the NRC pursuant to these regulations would have to demonstrate the capability to meet these requirements before a license to construct and operate a geologic repository could be issued.
102 10 C.F.R. § 50.54(bb) was published in 1984 as part of the first Waste Confidence rulemaking.
Note that this provision was published in Part 50, Domestic Licensing of Production and Utilization Facilities, while 10 C.F.R. § 51.23, then the Temporary Storage Rule, now the Continued Storage Rule, was published in Subpart A of Part 51, National Environmental Policy ActRegulations Implementing Section 102(2). Requirements for Licensee Actions Regarding the Disposition of Spent Fuel Upon Expiration of Reactor Operating License, 49 Fed. Reg. 34,688, 34,694-95 (Aug. 31, 1984)
(Final Rule) The program must be filed with the NRC within 2 years following permanent cessation of
C.F.R. Part 50 requires that the systems which contain radioactivity, including fuel storage and waste systems, be designed to assure adequate safety under normal and postulated accident conditions under a variety of different criteria. 103 Since the first waste confidence proceeding, the experience and knowledge of the agency has evolved considerably. 104 As discussed in the analysis in Appendix B of the Continued Storage GEIS, the NRC has a strong scientific and technical foundation of knowledge upon which to base its conclusions of technical feasibility regarding storage and ultimate disposal of spent nuclear fuel. 105 In addition to these extensive technical studies and the stringent regulatory standards, the NRC has developed numerous guidance documents to assist in assuring that spent fuel is managed safely. 106 In its entirety, the NRC regulatory framework establishes a broad foundation upon which the NRC continues to ensure the safety of both continued management and disposal of spent fuel. Licenses issued by the NRC under this framework intrinsically include a finding that the operation of the reactor or 5 years before expiration of the reactor operating license, whichever comes first. 10 C.F.R. § 50.54(bb).
103 These criteria include, but are not limited to: shielding for radiation protection; the ability to allow inspections; and appropriate containment, confinement and filtering systems. 10 C.F.R. Part 50, Appendix A, Criterion 61.
104 Waste Confidence Decision, 49 Fed. Reg. 34,658 (Aug. 31, 1984).
105 See, e.g., NUREG-2157, Vol. 1, Appendix B, at B-3-B-4 (Scientific and Technical Basis for the Geologic Disposal of Radioactive Wastes Technical Reports Series No. 413 [IAEA 2003a], Geological Repository Systems for Safe Disposal of Spent Nuclear Fuels and Radioactive Wastes [Ahn and Apted 2010], Lessons Learnt from Ten Performance Assessment Studies [NEA 1997], Radioactive Waste Management Studies and Trends, IAEA/WMDB/ST/4 [IAEA 2005], The Use of Scientific and Technical Results from Underground Research Laboratory Investigations for the Geologic Disposal of Radioactive Waste [IAEA 2001], Joint Convention on Safety of Spent Fuel Management and on Safety of Radioactive Waste Management, INFCIRC/546 [IAEA 1997], Strategy for the Management and Disposal of Used Nuclear Fuel and High-Level Radioactive Waste [DOE2014]
106 See, e.g., NUREG-1536, Rev. 1, Final Report, Standard Review Plan [(SRP)] for Spent Fuel Dry Storage Systems at a General License Facility (July 2010) (ADAMS Accession No. ML091060180);
Letter from E. William Brach, Director, NMSS, to Lynnette Hendricks, Director of Plant Support, Nuclear Energy Institute, Interim Staff Guidance-5, Confinement Evaluation (Nov. 30, 1999) (ADAMS Accession No. ML993370589); Interim Staff Guidance-2, Rev.1, Fuel Retrievability (Feb. 22, 2010) (ADAMS Accession No. ML100550861).
applicant has demonstrated the ability to meet the safety requirements for the license. Finally, continued NRC oversight and regulation of the licensee, its activities, and licensed materials even after operation ceases, provides further assurance of the safe management and eventual disposal of the licensees spent fuel. Accordingly, this comprehensive framework buttresses the Commissions policy that reactor licensing would not occur absent a belief that safe disposal can occur when necessary.
D.      The Continued Storage GEIS and Rule Do Not Attempt to Substitute for Any Findings Required Under the AEA In their submittals, the Petitioners assert [t]he NRCs rationale for eliminating Waste Confidence findings ignores the separate and independent roles of the AEA and NEPA. In doing so, the Petitioners have misunderstood why the NRC concluded that the Waste Confidence Decision is no longer necessary. 107 Contrary to the Petitioners claims, the NRC did not state that the assumptions in the Continued Storage GEIS substitute for the Waste Confidence Decision. 108 The Waste Confidence findings once provided a regulatory basis for the temporary storage rule. Today, similar assumptions for the sake of analysis provide a reasonable framework in which to analyze the environmental impacts of continued storage.
However, the regulatory basis for the continued storage rule is provided by the robust environmental analysis in the Continued Storage GEIS, which goes beyond the analysis supporting the historic temporary storage rule. For example, a finding that a repository for spent fuel will be available by a particular time is no longer necessary because the GEIS analyzes the environmental impacts of failing to secure a repository for an indefinite period into the future.
In addition, the Petitioners assert that the NRC has somehow conflated its obligations 107 New Contention at 9.
108 Id.
under the AEA and NEPA. 109 To the contrary, the NRC specifically clarified that the role of 10 C.F.R. § 51.23 in licensing is strictly limited to satisfying the NRCs NEPA obligation with respect to continued storage. As the Commission explained, this change was motivated by the desire to eliminate confusion regarding the Waste Confidence Decisions role with respect to the AEA and NEPAconfusion which the NRC had observed in the response to the 2010 Waste Confidence Decision. 110 The Federal Register notice for the Continued Storage Rule makes clear that it was promulgated solely to satisfy the agencys NEPA obligations. 111 The NRC is able to continue licensing in the absence of the Waste Confidence findings because it is now satisfying its NEPA obligations through a comprehensive generic environmental impact statement. For the reasons described above, the NRC does not need the Waste Confidence findings regarding disposal to satisfy any other legal obligations prior to licensing.
E.        Petitioners Contention Does Not Meet Admissibility Requirements Under 10 C.F.R. § 2.309(f)(1) 112 109 Id.
110 See, e.g., Continued Storage GEIS at D-28-D-31.
111 See GEIS Appendix D at D-33-34 and D-64; 79 Fed. Reg. 56238, 56242 (As a result of preparing its environmental analysis of continuing storage impacts in the GEIS, the NRC found it no longer necessary to have a separate Waste Confidence Decision with findings.); see also Waste ConfidenceContinued Storage of Spent Nuclear Fuel, 78 Fed. Reg. 56,776, 56,780-82 (Sept. 13, 2013).
111 See, e.g., Continued Storage GEIS at, D-10-D-11 & D-71-D-74.
111 See, e.g., 79 Fed. Reg. 56,238, 56,254 (The [Continued Storage] GEIS fulfills the NRC's NEPA obligations and provides a regulatory basis for the rule rather than addressing the agency's responsibilities to protect public health and safety under the Atomic Energy Act (AEA), of 1954 as amended.)
112 The NRC Staff does not contest the timeliness of the New Contention under 10 C.F.R. § 2.309(c). However, Amended and Supplemented contention filed in the Fermi 2 license renewal proceeding is also inadmissible because it is not based on new and materially different information than information previously available. See 10 C.F.R. § 2.309(c)(1)(i)-(iii). Instead, the initial contention cited to the same cases (NRDC v. NRC, New York v. NRC, and Minnesota v. NRC) and made the same substantive claim that the NRC must make waste confidence safety findings in the Fermi 2 relicensing proceeding.
It is well established that contentions must comply with the contention admissibility requirements set forth in 10 C.F.R. § 2.309(f)(1). In accordance with 10 C.F.R. § 2.309(f)(1), an admissible contention must:
(i)      provide a specific statement of the legal or factual issue sought to be raised; (ii)    provide a brief explanation of the basis for the contention; (iii)    demonstrate that the issue raised is within the scope of the proceeding; (iv)    demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (v)      provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents, that support the petitioners position and upon which the petitioner intends to rely at the hearing; (vi)    . . . provide sufficient information to show that a genuine dispute with the Applicant exists with regard to a material issue of law or fact, including references to specific portions of the application that the petitioner disputes, or in the case when the application is alleged to be deficient, the identification of such deficiencies and supporting reasons for this belief . . . .
10 C.F.R. § 2.309(f)(1). The Commission has emphasized that the rules on contention admissibility are strict by design. 113 Mere notice pleading does not suffice. 114 Failure to comply with any of these requirements is grounds for [the dismissal of a] contention. 115
: 1.      Petitioners New Contention Does Not Raise Issues Material to the NRCs Licensing Decisions and Therefore Is Not Within the Scope of the Proceeding 113 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 24, 54 NRC 349, 358 (2001), pet. for reconsideration denied, CLI-02-01, 55 NRC 1 (2002).
114 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 119 (2006) (internal quotation omitted).
115 PFS, CLI-99-10, 49 NRC at 325.
For the reasons described in detail in Section II, supra, the New Contentions principal claim that the NRC has not made findings required by the AEA regarding SNF management does not raise a material issue relating to findings that the NRC must make to support reactor licensing as required by 10 C.F.R. § 2.309(f)(1)(iv). Because the NRC need not make the findings that Petitioners claim it must, the New Contention is not within the scope of the captioned licensing proceedings as required by 10 C.F.R. § 2.309(f)(1)(iii).
Similarly, while the Petitioners claim that issues raised in their New Contention are material to findings that the NRC must make under the AEA in order to support reactor licensing and license renewal decisions, 116 the AEA does not require the NRC to make explicit findings on post-licensing disposal of spent nuclear fuel. 117 Rather, the NRC has a comprehensive regulatory framework that addresses the management of SNF. 118 When the Commission makes a specific reactor licensing decision, it determines that all applicable standards and requirements of the regulations have been met to support the action. 119 In addition, in taking the reactor licensing action, the NRC implicitly recognizes that it has in place a separate regulatory framework governing the disposal of spent fuel, which will apply to any application for disposal and which will assure the safety of such disposal. This implicit finding that SNF can be disposed of when necessary is supported by an extensive framework of regulatory and technical material, 120 including NRC regulations and guidance documents. 121 It is also supported by the 116 New Contention at 15-18.
117 See supra at 15-18.
118 See supra at 27-29.
119 See, e.g., 10 C.F.R. § 52.97(a)(1)(i).
120 See supra at 27-29.
121 See, e.g., 10 C.F.R. Parts 60 and 63; NUREG-1536, Rev. 1, Final Report, Standard Review Plan for Spent Fuel Dry Storage Systems at a General License Facility; Letter from E. William Brach, Director, NMSS, to Lynnette Hendricks, Director of Plant Support, Nuclear Energy Institute, Interim Staff Guidance-5, Confinement Evaluation (Nov. 30, 1999) (ADAMS Accession No. ML993370589); Interim
longstanding policy 122 that the Commission would not issue licenses if spent fuel could not be safely managed. 123 Contrary to Petitioners assertions, the NRC has consistently interpreted its legal obligations in the Waste Confidence area as derived from NEPA. 124 This interpretation has remained undisturbed by Federal court rulings for over thirty years, including by the D.C. Circuit in New York v. NRC. 125 Therefore, the New Contentions central premise is unsupported, and there is simply no AEA requirement pertaining to SNF disposal that is material to the NRCs reactor licensing decisions in any of the captioned proceedings. Because there is no requirement for such a finding as a condition precedent to reactor licensing, Petitioners proposed Contention must be rejected as not within the scope of the proceeding.
: 2.      Petitioners New Contention Raises No Genuine Dispute with Any Specific Application The Petitioners claim that their New Contention raises a genuine dispute with the applicant regarding whether a license should be granted in the proceedings in which it was filed. 126 They make no attempt, however, to identify relevant sections in any application to allege an insufficiency or omission. Rather, Petitioners purport to generically challenge the legal basis of reactor licensing decisions that the NRC has not yet made. It is well established that an admissible contention must raise a genuine dispute with the license application to demonstrate Staff Guidance-2, Rev.1, Fuel Retrievability (Feb. 22, 2010) (ADAMS Accession No. ML100550861).
The technical feasibility analysis in Appendix B of the Continued Storage GEIS also summarizes the present scientific consensus on the technical feasibility of spent fuel disposal in a geologic repository, explaining that such disposal remains technically feasible.
122 See, e.g., 75 Fed. Reg. at 81,032-33.
123 Supra at 26-27.
124 Id. at 24-26.
125 Id.
126 New Contention at 12.
that a material issue for hearing exists. 127 Assuming that the NRC was required to make explicit findings under the AEA on disposal of SNF to support reactor licensing decisions, it could do so based either on generic determinations or specific material presented in a license application.
Petitioners make no reference, however, to any specific application as 10 C.F.R.
§ 2.309(f)(1)(vi) fundamentally requires.
In sum, the New Contention incorrectly states the legal obligations of the NRC and fails to identify a genuine and material dispute with any license application within the scope of the proceeding. For the foregoing reasons, it should be rejected.
III.      Petitioners Do Not Meet the Reopening Standards On September 29, 2014, Petitioners submitted motions to reopen the record in several closed proceedings for the purpose of admitting the proposed contention challenging the purported failure of the NRC to make findings under the AEA regarding the disposal of nuclear waste in these reactor licensing proceedings. 128 In their motion, Petitioners contend that reopening the record and admitting the new contention is necessary to ensure that the NRC fulfills its statutory obligation under the Atomic Energy Act [] to protect public health and safety from the risks posed by irradiated reactor fuel generated during the reactors license term. 129 The Commission has stated that a petitioner seeking to introduce a new contention after the record has been closed should address the reopening standards contemporaneously with a late-filed intervention petition, which must satisfy the standards for both contention admissibility 127 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 709 (2012).
128 Motions to reopen were filed in the following proceedings: Comanche Peak COL, North Anna COL, William States Lee III COL, Callaway LR, Sequoyah LR, South Texas Project LR, and Watts Bar OL. See, e.g., Motion to Reopen the Record for South Texas Project Units 1 & 2 Nuclear Power Plant, at 1-2 (Sept. 29, 2014) (ADAMS Accession No. ML14272A609) (Motion to Reopen).
129 Id. at 2.
and late filing. 130 Section 2.326(a) of the Commissions regulations sets forth the reopening standards, which requires that the motion to reopen must be timely, must address a significant safety or environmental issue, and must demonstrate that a materially different result would have been likely had the newly proffered evidence been considered in the first instance. 131 To demonstrate a significant safety issue, petitioners must establish either that uncorrected
. . . errors endanger safe plant operation, or that there has been a breakdown of the quality assurance program sufficient to raise legitimate doubt as to the plant's capability of being operated safely. 132 Thus, a motion to reopen the record to address a safety issue must essentially challenge a plants capacity to operate safely. 133 Additionally, one or more affidavits showing that the motion to reopen meets the above criteria must accompany the motion under 10 C.F.R. § 2.326(b). Each affidavit must contain statements from competent individuals with knowledge of the facts alleged or experts in disciplines appropriate to the issues raised. 134 Moreover, the motion and its supporting documentation must be strong enough, in the light of any opposing filings, to avoid summary disposition. 135 The Commission has previously held that [t]he burden of satisfying the reopening requirements is a heavy one, and proponents of a reopening motion bear the burden of meeting all of [these] requirements. 136 Thus, [b]are assertions and speculation . . . do not 130 Millstone, CLI-09-5, 69 NRC at 124.
131 10 C.F.R. § 2.326(a)(1)-(3); Oyster Creek, CLI-08-28, 68 NRC at 668.
132 Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-940, 32 NRC 225, 243 (1990).
133 Seabrook, ALAB-940, 32 NRC at 243.
134 10 C.F.R. § 2.326(b). See also Oyster Creek, CLl-09-7, 69 NRC at 291-93.
135 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345, 350 (2005).
136 Oyster Creek, CLI-09-7, 69 NRC at 287 (citations omitted, alteration in original).
supply the requisite support, and a mere showing of a possible violation is not enough. 137 Under section 2.326(d), a motion to reopen that relates to a contention not previously in controversy among the parties must also satisfy the section 2.309(c) requirements for contentions filed after the deadline. However, even though a matter is timely raised and involves significant safety considerations, no reopening of the evidentiary hearing will be required if the affidavits submitted in response to the motion demonstrate that there is no genuine unresolved issue of fact, i.e., if the undisputed facts establish that the apparently significant safety issue does not exist, has been resolved, or for some other reason will have no effect upon the outcome of the licensing proceeding. 138 Insofar as the New Contention is based upon the Commissions issuance of the Continued Storage Rule, the Staff does not dispute the Petitioners claim that their motion to reopen is timely and meets the § 2.309(c) requirements for contentions filed after the deadline to intervene. However, Petitioners do not meet the reopening standards outlined in
§ 2.326(a)(2)-(3) because their proffered contention does not address a significant safety issue, nor does it demonstrate that a materially different result would be likely if the new contention had been raised at the beginning of the proceeding. Moreover, as explained in Section II.E, supra, the Petitioners do not meet the Commissions contention admissibility standards under
§ 2.309(f)(1). Accordingly, the Petitioners motions to reopen the record in these closed proceedings should be denied.
A.        Petitioners Do Not Address a Significant Safety Issue Petitioners assert that they address the significant safety issue that the NRC has made no currently valid findings of confidence or reasonable assurance that the hundreds of tons of 137 Id. (citations omitted, first alteration in original).
138 Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-83-41, 18 NRC 104, 108-109 (1983) (citing Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 A.E.C. 520, 523 (1973)).
radioactive spent fuel that will be generated during any reactors 40-year licensing term or subsequent relicensing term can be disposed of safely in a repository. 139 However, Petitioners claims are without merit because, as discussed above, the NRC is not required by the AEA, or any judicial precedent, to make explicit findings regarding the disposal of spent nuclear fuel before issuing a license for power reactors. 140 Additionally, the Commission has previously determined that the NRC is not required under the AEA to determine whether spent fuel will be disposed of before issuing a license for a nuclear reactor. 141 Further, NUREG-2157 specifically addresses and refutes Petitioners claim that the NRC must make such findings under the AEA regarding the disposal of nuclear waste. 142 During the public comment period on the draft Waste Confidence GEIS, the Commission received and considered comments that the holdings in New York, NRDC v. NRC, and Minnesota v. NRC required the NRC to make certain safety and environmental findings before issuing a license. 143 In response to these comments, the Staff explained that NUREG-2157 was prepared to satisfy the Commissions NEPA obligations with respect to continued storage. The Staff further stated that the Commissions AEA obligations, including safety determinations, are separate from its NEPA obligations and will continue to be governed under the license and regulatory controls after the expiration of a facilitys current license, relying on the experience gained over the past 30 years and the current regulatory framework to ensure adequate protection of public health 139 Motion to Reopen at 3.
140 See supra at 13.
141 See supra at 14.
142 See Motion to Reopen at 1-2, 3 (citing New York v. NRC, 681 F.3d 471, at 478; (D.C. Circuit 2012); NRDC v. NRC, 582 F.2d 166, 169 (2nd Cir. 1978); Minnesota v. NRC, 602 F.2d 412, 416 (D.C.
Cir. 1979)).
143 See, e.g., NUREG-2157, Vol. 2, at Section D.2.4 Comments Concerning Miscellaneous Issues, Pages D D-37.
and safety. 144 The Commissions extensive regulatory framework ensures the safety of both continued management and disposal of spent fuel. 145 These regulations include rigorous safety requirements for SNF management that apply to all licenses issued by the NRC, which continue to apply, as appropriate, after the licensed reactor ceases operations. 146 As discussed above, in taking a reactor licensing action, the NRC implicitly recognizes that it has in place a separate regulatory framework governing the disposal of spent fuel, which will apply to any application for disposal and which will assure the safety of such disposal. 147 Moreover, Petitioners do not present a significant safety issue because they have not presented an issue challenging a plants capacity to operate safely in conformance with applicable NRC regulations. 148 Indeed, Petitioners do not identify any specific safety issue that the Commission deems necessary to consider as a condition for issuance of an initial or renewed license in any of these closed proceedings. Instead, Petitioners challenge findings related to the disposal of spent fuel after the end of the license terms for initial and renewed licenses. However, the licensing decisions in these closed proceedings will not include an 144 See id. at D-30. See also id. at D-29. (noting that the decision to issue a license must be predicated on a Commission determination that the licensed activity can be performed in a manner adequate to protect public health and safety).
145 See id. at D-31 (noting that some of the provisions for reactor safety bear directly upon the safe storage of spent fuel after licensed life for operation including 10 C.F.R. § 50.54(bb) and 10 C.F.R.
Part 50, Appendix A, Criterion 51).
146 See id. at D-31 (The source of the NRCs determination that the licensed activity, once the license is granted, will not endanger public health is the fact that these facilities will remain under license after the end of the facilitys period of operation, and therefore will still need to meet these safety standards, which are found in 10 CFR Part 50 or 52 for reactors and their spent fuel pools and 10 CFR Part 72 for ISFSIs).
147 See supra at 33. This implicit finding that SNF can be disposed of when necessary is supported by an extensive framework of regulatory and technical material, and a statement of policy that the Commission would not issue licenses if spent fuel could not be safely managed. See supra notes 122-125, at 33.
148 See Seabrook, ALAB-940, 32 NRC at 243.
explicit finding for spent fuel disposal subsequent to the term of the initial or renewed licenses.
Findings required under the AEA for the disposal of nuclear waste subsequent to the end of the initial renewed license term will be addressed in other licensing decisions or regulatory approvals. 149 In sum, Petitioners have not addressed a significant safety issue because they have not presented a safety issue challenging a plants capacity to operate safely in any of these closed proceedings. For the reasons discussed above, Petitioners have not addressed a significant safety issue for reopening, as required under 10 C.F.R. § 2.326(a)(2). Therefore, Petitioners motions to reopen should be denied.
B.      Petitioners Have Not Shown that a Materially Different Result Would Be Likely Petitioners also assert that a materially different result would be likely if they prevail on the contention, because the NRC would be required to either, conduct a new safety analysis of the feasibility of spent fuel disposal and the capacity of future spent fuel repositories . . . or deny the license. 150            However, these assertions are without merit because Appendix B of NUREG-2157 specifically analyzes the technical feasibility of a geologic repository and the availability of sufficient repository capacity and concludes that a geologic repository is technically feasible. 151 As demonstrated in Appendix B, the NRC has a strong scientific and technical foundation of knowledge upon which to base conclusions of technical feasibility regarding storage and ultimate disposal of spent nuclear fuel. 152 Petitioners have not demonstrated that any reanalysis of the feasibility of spent fuel disposal and the availability of 149 See NUREG 2157, Vol. 2, at D-371; see also infra at 41.
150 Motion to Reopen at 4.
151 See generally, NUREG-2157, Vol. 1, at Appendix B. Appendix B also states that the timeframe needed to develop a repository is approximately 25 to 35 years and that a repository is likely to become available by the end of the short-term timeframe. Id. at Section B.2.2, B-5. See generally, NUREG-2157 Vol. 1, at Appendix B.
152
            . See supra note 105, at 29; note 121, at 33.
sufficient repository capacity would result in something different from the analysis in Appendix B. Therefore, Petitioners have failed to demonstrate that a materially different result would be likely.
Petitioners also assert that the NRC would also be required to prepare an environmental impact statement or environmental assessment addressing the environmental impacts of spent fuel disposal and reasonable alternatives for avoiding those impacts. 153 Further, Petitioners assert that if the NRC fully assesses the safety risks and associated costs of spent fuel storage and disposal, its cost-benefit analysis may lead the NRC to decide not to issue licenses in these closed proceedings. 154 These assertions are also without merit and would not lead to a materially different result.
During the public comment period on the draft GEIS, the Commission received and considered comments that an updated analysis of the environmental impacts of spent fuel disposal is necessary to support the NRCs feasibility determination. 155 In response to these comments, the Staff explained that specific impacts of final disposal of fuel would be addressed in a separate site-specific repository EIS and that the safety and environmental impact of any site that is chosen as a repository would be reviewed during that licensing process. 156 Moreover, any cost-benefit analysis regarding spent fuel disposal would be addressed in these site-specific analyses. Therefore, Petitioners have failed to demonstrate that a materially different result would be likely because a new environmental analysis of the environmental impacts of disposal, including a cost-benefit analysis, would be conducted in a separate 153 Motion to Reopen at 4.
154 Id.
155 See, e.g., NUREG-2157 Vol. 2, at Section D.2.37 Comments Concerning the Feasibility of Geologic Disposal, D-370 - D-385.
156 See id. at D-371-72 (noting that Any repository application must be approved by the NRC.
The NRC review would address the safety and environmental aspects of disposal in a repository during the licensing review. As part of that licensing review, the NRC would address how the repository meets applicable regulations.).
proceeding on an application for disposal, not as part of an individual reactor licensing proceeding.
Finally, Petitioners have not shown that a materially different result would be likely because, as explained above, they have failed to proffer an admissible contention under 10 C.F.R. § 2.309(f)(1). Petitioners argue that the NRC must make explicit findings concerning spent nuclear fuel disposal, but this is not material to the findings the NRC must make in order to issue a reactor license, and, as such, this claim is also not within the scope of these licensing proceedings. 157 In addition, Petitioners raise no genuine dispute with any specific application as required by 10 C.F.R. § 2.309(f)(1)(vi).
As explained above, Petitioners have not raised a significant safety issue warranting reopening of the record in these closed proceedings because, contrary to the Petitioners assertions, the NRC is not required to make findings under the AEA regarding the disposal of nuclear waste before issuing a license in this proceeding. Additionally, Petitioners have not presented a safety issue challenging a plants capacity to operate safely in any of these closed proceedings, and have not shown that a materially different result would have been likely had the newly proffered evidence been considered in the first instance. Petitioners have thus failed to meet the reopening standards in 10 C.F.R. § 2.326. Accordingly, Petitioners motions to reopen the record in these closed proceedings should be denied.
CONCLUSION Each of the Petitioners submissionstheir Petition, New Contention, and Motion to Reopen in certain proceedingsare legally deficient for the reasons explained above. As such, each should be dismissed.
                                                  /Signed (electronically) by/
157 10 C.F.R. § 2.309(f)(1)(iii) and (iv).
Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301)415-1392 Brian.Harris@nrc.gov Dated at Rockville, Maryland this 31st day of October, 2014
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of                                )
                                                )
NEXTERA ENERGY SEABROOK, L.L.C.                )    Docket No. 50-443-LR (Seabrook Station, Unit 1)                      )
                                                )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (revised), I hereby certify that copies of the foregoing NRC STAFF CONSOLIDATED ANSWER TO PETITIONS TO SUSPEND FINAL REACTOR LICENSING DECISIONS, MOTIONS TO ADMIT A NEW CONTENTION, AND MOTIONS TO REOPEN THE RECORD dated October 31, 2014, have been served upon the Electronic Information Exchange, the NRCs E-Filing System, in the above captioned proceeding, this 31st day of October, 2014.
                                                /Signed (electronically) by/
Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15-D21 Washington, DC 20555 Telephone: (301)415-1392 E-mail: Brian.Harris@nrc.gov Dated at Rockville, Maryland this 31st day of October, 2014}}

Latest revision as of 16:57, 5 February 2020

NRC Staff Consolidated Answer to Petitions to Suspend Final Reactor Licensing Decisions, Motions to Admit a New Contention, and Motions to Reopen the Record
ML14304A709
Person / Time
Site: Seabrook NextEra Energy icon.png
Issue date: 10/31/2014
From: Harris B
NRC/OGC
To:
NRC/OCM
SECY RAS
References
50-443-LR, ASLBP 10-906-02-LR-BD01, RAS 26817
Download: ML14304A709 (52)
v • d • e


Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matters of )

)

DTE ELECTRIC COMPANY ) Docket No. 50-341 (Fermi Nuclear Power Plant, Unit 2) )

)

DTE ELECTRIC CO. ) Docket No. 52-033-COL (Fermi Nuclear Power Plant, Unit 3) )

)

DUKE ENERGY CAROLINAS, L.L.C. ) Docket Nos. 52-018-COL (William States Lee III Nuclear Station, ) 52-019-COL Units 1 and 2) )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR (Indian Point Nuclear Generating ) 50-286-LR Units 1 and 2) )

)

FIRSTENERGY NUCLEAR OPERATING CO. ) Docket No. 50-346-LR (Davis-Besse Nuclear Power Station, Unit 1) )

)

FLORIDA POWER & LIGHT CO. ) Docket Nos. 52-040-COL, (Turkey Point, Units 6 and 7) ) 52-035-COL

)

LUMINANT GENERATION CO. L.L.C. ) Docket Nos. 52-034-COL, (Comanche Peak Nuclear Power Plant, ) 52-035-COL Units 3 and 4) )

)

NEXTERA ENERGY SEABROOK, L.L.C. ) Docket No. 50-443-LR (Seabrook Station, Unit 1) )

)

NUCLEAR INNOVATION ) Docket Nos. 52-012-COL, NORTH AMERICA L.L.C ) 52-013-COL (South Texas Project, Units 3 and 4) )

)

PACIFIC GAS & ELECTRIC CO. ) Docket Nos. 50-275-LR, (Diablo Canyon Nuclear Power Plant, ) 50-323-LR Units 1 and 2) )

)

PROGRESS ENERGY FLORIDA, INC. ) Docket Nos. 52-029-COL, (Levy County Nuclear Power Plant, ) 52-030-COL Units 1 and 2) )

)

SOUTH TEXAS PROJECT ) Docket Nos. 50-498-LR, NUCLEAR OPERATING CO. ) 50-499-LR (South Texas Project, Units 1 and 2) )

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TENNESEE VALLEY AUTHORITY ) Docket Nos. 52-014-COL, (Bellefonte Nuclear Power Plants, ) 52-015-COL Units 3 and 4) )

)

TENNESSEE VALLEY AUTHORITY ) Docket Nos. 50-327-LR, (Sequoyah Nuclear Plant, ) 50-328-LR Units 1 and 2) )

)

TENNESSEE VALLEY AUTHORITY ) Docket No. 50-391-OL (Watts Bar Nuclear Plant, Unit 2) )

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UNION ELECTRIC CO. ) Docket No. 50-483-LR (Callaway Nuclear Power Plant, Unit 1) )

)

VIRGINIA ELECTRIC AND POWER CO. ) Docket No. 52-017-COL d/b/a DOMINION VIRGINIA POWER and )

OLD DOMINION ELECTRIC COOPERATIVE )

(North Anna Power Station, Unit 3) )

________________________________________ )

NRC STAFF CONSOLIDATED ANSWER TO PETITIONS TO SUSPEND FINAL REACTOR LICENSING DECISIONS, MOTIONS TO ADMIT A NEW CONTENTION, AND MOTIONS TO REOPEN THE RECORD Brian G. Harris Counsel for NRC Staff October 31, 2014

-i-TABLE OF CONTENTS PAGE INTRODUCTION ....................................................................................................................... 2 PROCEDURAL BACKGROUND ................................................................................................ 3 DISCUSSION............................................................................................................................. 8 I. The Petition Does Not State a Sufficient Basis for Suspending or Staying Final Decisions in Reactor Licensing Proceedings .................................................................................. 8 A. Petitioners Have Not Established a Proper Legal Basis for Suspending Final Decisions in Reactor Licensing Proceedings....................................................... 8 B. The Petition Does Not Satisfy the Requirements for Staying Final Reactor Licensing Decisions .......................................................................................... 11 II. Petitioners Contention that the NRC Has Failed to Make Required AEA Findings in Connection with Disposal of SNF is Invalid and Inadmissible ....................................... 13 A. Summary .......................................................................................................... 13 B. The AEA Does Not Require Findings Regarding Disposal Prior to Issuance of Reactor Operating Licenses ............................................................................. 15

1. Minnesota v. NRC Did Not Overrule the Commissions Interpretation of the AEA ................................................................................................. 18
2. The Commission Did Not Interpret Minnesota v. NRC to Require Findings Regarding Disposal of Spent Nuclear Fuel Prior to Licensing Reactors Under the AEA....................................................................................... 23
3. New York v. NRC Did Not Address the AEA, Nor Did it Hold That Minnesota Required Explicit Findings Regarding Disposal of Spent Nuclear Fuel Prior to Licensing Reactors............................................... 24 C. The Commission Policy On Safe Disposal of Waste Remains Unchanged ....... 26 D. The Continued Storage GEIS and Rule Do Not Attempt to Substitute for Any Findings Required Under the AEA .................................................................... 30 E. Petitioners Contention Does Not Meet Admissibility Requirements Under 10 C.F.R. § 2.309(f)(1) ...................................................................................... 31

- ii -

1. Petitioners New Contention Does Not Raise Issues Material to the NRCs Licensing Decisions and Therefore Is Not Within the Scope of the Proceeding ...................................................................................... 32
2. Petitioners New Contention Raises No Genuine Dispute with Any Specific Application ............................................................................... 34 III. Petitioners Do Not Meet the Reopening Standards ...................................................... 35 A. Petitioners Do Not Address a Significant Safety Issue ...................................... 37 B. Petitioners Have Not Shown that a Materially Different Result Would Be Likely ........................................................................................................... 40 CONCLUSION ......................................................................................................................... 42

- iii -

TABLE OF AUTHORITIES Page JUDICIAL DECISIONS U.S. Courts of Appeal:

Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979) ............................................................. passim New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012) ............................................................. passim NRDC v. NRC, 582 F.2d 166 (2nd Cir. 1978).................................................................17, 18, 38 Porter County Chapter of the Izaak Walton League of America v. NRC, 606 F.2d 1363 (D.C. Cir. 1979) ............................................................................................... 22 Potomac Alliance v. NRC, 682 F.2d 1030 (D.C. Cir. 1982) ..................................................20, 21 STATUTES Atomic Energy Act of 1954, as amended, § 81a., 42 U.S.C. § 2111 (2005) .............................. 27 Atomic Energy Act of 1954, as amended, § 103d., 42 U.S.C. § 2133 (2005) ............................ 14 Atomic Energy Act of 1954, as amended, § 185b., 42 U.S.C. § 2235 (1992) ............................ 22 ADMINISTRATIVE DECISIONS Commission:

Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111 (2006) ................................................................................................................ 32 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658 (2008) ................................................................................................................ 35 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLl-09-7, 69 NRC 235 (2009) ................................................................................................................ 36 Calvert Cliffs 3 Nuclear Project, LLC & Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63 (Aug. 7, 2012) ................. 6 Calvert Cliffs 3 Nuclear Project, LLC, & Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-08, 80 NRC __ (Aug. 26, 2014) (slip op.) . 7 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349 (2001), pet. for reconsideration denied, CLI-02-01, 55 NRC 1 (2002) ................ 32 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115 (2009) ................................................................................................................ 35

- iv -

DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-07, 80 NRC __ (July 17, 2014) (slip op.) ........................................................................................ 8 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-09, 80 NRC __ (Oct. 7, 2014) (slip op.) .......................................................................................... 2 Duke Energy Corp. (McGuire Nuclear Station Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-01-27, 54 NRC 385 (2001) .......................................................................9, 10 Duke Energy Corp. (Oconee Nuclear Station Units 1, 2 & 3), CLI-99-11, 49 NRC 328 (1999) .................................................................................................................. 9 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704 (2012) .....................................................................34 Entergy Nuclear Vermont Yankee LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-06-8, 63 NRC 235 (2006) ........................................11, 12 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301 (2012) .............................................................................................................9, 15 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376 (2001) .................................................................................................................10 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345 (2005) .................................................................................................................36 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318 (1999) .................................................................................................................32 Sequoyah Fuels Corp. & General Atomics (Gore, Oklahoma Site), CLI-94-9, 40 NRC 1 (1994) .....................................................................................................................11 Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141 (2011) ...................................10 Atomic Safety and Licensing Appeal Board:

Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),

ALAB-455, 7 NRC 41 (1978) ...................................................................................................19 Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-940, 32 NRC 225 (1990) ...........................................................................................................36, 39 Atomic Safety and Licensing Board:

Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-83-41, 18 NRC 104 (1983) .................................................................................................................37

-v-REGULATIONS 10 C.F.R. § 2.202......................................................................................................................12 10 C.F.R. 2.309(c)(1)(i)-(iii) .................................................................................................15, 31 10 C.F.R. § 2.309(f)(1) ........................................................................................................ 31-32 10 C.F.R. § 2.309(f)(1)(iii) and (iv).......................................................................................15, 41 10 C.F.R. § 2.326(a)(1)-(3) .......................................................................................................35 10 C.F.R. § 2.326(b) .................................................................................................................36 10 C.F.R. § 50.54(bb) ...............................................................................................................28 10 C.F.R. § 50.82......................................................................................................................27 10 C.F.R. § 52.97(a)(1)(i) ..........................................................................................................33 10 C.F.R. § 72.240(b) ................................................................................................................ 9 10 C.F.R. Part 50, Appendix A, Criterion 61...............................................................................28 10 C.F.R. Part 60 ......................................................................................................................33 10 C.F.R. Part 63 ......................................................................................................................33 MISCELLANEOUS Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 75 Fed. Reg. 81,032 (Dec. 23, 2010) (Final Rule) ......... passim Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014)

(Final Rule) .....................................................................................................................7, 14, 31 Denial of Petition for Rulemaking, 42 Fed. Reg. 34,391 (July 5, 1977).............................. passim Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,263 (Sept. 19, 2014) ...................................................................................7, 14 NUREG-1536, Rev. 1, Final Report, Standard Review Plan for Spent Fuel Dry Storage Systems at a General License Facility (July 2010) (ADAMS Accession No. ML091060180) ..............29, 33 NUREG-1801, Rev. 2, Generic Aging Lessons Learned Report (Dec. 2010) (ADAMS Accession No. ML103490041) .................................................................................................................... 9 NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Aug. 2014) (ADAMS Accession No. ML14188B749) ............................................ 7 NUREG-2157, Vol. 1, Final Report, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Sept. 30, 2014) (ADAMS Accession No. ML14196A105)

.....................................................................................................................................16, 29, 40 NUREG-2157, Vol. 2, Final Report, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Sept. 30, 2014) (ADAMS Accession No. ML14196A107)

......................................................................................................................................... passim

- vi -

Part 50-Licensing of Production and Utilization Facilities, 21 Fed. Reg. 355 (Jan. 19, 1956) ... 22 Requirements for Licensee Actions Regarding the Disposition of Spent Fuel Upon Expiration of Reactor Operating License, 49 Fed. Reg. 34,688 (Aug. 31, 1984) (Final Rule) ... 28 Waste ConfidenceContinued Storage of Spent Nuclear Fuel, 78 Fed. Reg. 56,776 (Sept. 13, 2013) ....................................................................................................................... 31 Waste Confidence Decision, 49 Fed. Reg. 34,658 (Aug. 31, 1984) ................................... passim Waste Confidence Decision Review, 55 Fed. Reg. 38,474 (Sept. 18, 1990) .............................. 4 Waste Confidence Decision Review: Status, 64 Fed. Reg. 68,005 (Dec. 6, 1999) ..................... 4 Waste Confidence Decision Update, 75 Fed. Reg. 81,037 (Dec. 23, 2010) ............................... 5

October 31, 2014 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matters of )

)

DTE ELECTRIC COMPANY ) Docket No. 50-341 (Fermi Nuclear Power Plant, Unit 2) )

)

DTE ELECTRIC CO. ) Docket No. 52-033-COL (Fermi Nuclear Power Plant, Unit 3) )

)

DUKE ENERGY CAROLINAS, L.L.C. ) Docket Nos. 52-018-COL (William States Lee III Nuclear Station, ) 52-019-COL Units 1 and 2) )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR (Indian Point Nuclear Generating ) 50-286-LR Units 1 and 2) )

)

FIRSTENERGY NUCLEAR OPERATING CO. ) Docket No. 50-346-LR (Davis-Besse Nuclear Power Station, Unit 1) )

)

FLORIDA POWER & LIGHT CO. ) Docket Nos. 52-040-COL, (Turkey Point, Units 6 and 7) ) 52-035-COL

)

LUMINANT GENERATION CO. L.L.C. ) Docket Nos. 52-034-COL, (Comanche Peak Nuclear Power Plant, ) 52-035-COL Units 3 and 4) )

)

NEXTERA ENERGY SEABROOK, L.L.C. ) Docket No. 50-443-LR (Seabrook Station, Unit 1) )

)

NUCLEAR INNOVATION ) Docket Nos. 52-012-COL, NORTH AMERICA L.L.C ) 52-013-COL (South Texas Project, Units 3 and 4) )

)

PACIFIC GAS & ELECTRIC CO. ) Docket Nos. 50-275-LR, (Diablo Canyon Nuclear Power Plant, ) 50-323-LR Units 1 and 2) )

)

PROGRESS ENERGY FLORIDA, INC. ) Docket Nos. 52-029-COL, (Levy County Nuclear Power Plant, ) 52-030-COL Units 1 and 2) )

)

SOUTH TEXAS PROJECT ) Docket Nos. 50-498-LR, NUCLEAR OPERATING CO. ) 50-499-LR (South Texas Project, Units 1 and 2) )

)

TENNESEE VALLEY AUTHORITY ) Docket Nos. 52-014-COL, (Bellefonte Nuclear Power Plants, ) 52-015-COL Units 3 and 4) )

)

TENNESSEE VALLEY AUTHORITY ) Docket Nos. 50-327-LR, (Sequoyah Nuclear Plant, ) 50-328-LR Units 1 and 2) )

)

TENNESSEE VALLEY AUTHORITY ) Docket No. 50-391-OL (Watts Bar Nuclear Plant, Unit 2) )

)

UNION ELECTRIC CO. ) Docket No. 50-483-LR (Callaway Nuclear Power Plant, Unit 1) )

)

VIRGINIA ELECTRIC AND POWER CO. ) Docket No. 52-017-COL d/b/a DOMINION VIRGINIA POWER and )

OLD DOMINION ELECTRIC COOPERATIVE )

(North Anna Power Station, Unit 3) )

________________________________________ )

NRC STAFF CONSOLIDATED ANSWER TO PETITIONS TO SUSPEND FINAL REACTOR LICENSING DECISIONS, MOTIONS TO ADMIT A NEW CONTENTION, AND MOTIONS TO REOPEN THE RECORD INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c) and the October 7, 2014, Commission Memorandum and Order, 1 the staff of the U.S. Nuclear Regulatory Commission (Staff) hereby provides its consolidated answer to filings submitted by Petitioners in the captioned proceedings on September 29, 2014. 2 1

DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-09, 80 NRC __ (Oct. 7, 2014) (slip op.).

2 The Petitioners in the captioned proceedings filed substantively identical filings that vary in their pagination. In order to provide consistency, the NRC Staff refers to the pagination in the filings submitted in the South Texas Project License Renewal proceeding. See, Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Issuance of Waste Confidence Safety Findings (Sept.

29, 2014) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML14272A615); Petitioners Motion for Leave to File a New Contention Concerning the Absence of

The Petitioners filings are as follows. The suspension petition (Petition) requests the suspension of final decisions in reactor licensing proceedings for the issuance of renewed licenses (LR), combined licenses (COLs), and operating licenses (OLs). 3 The motion for leave to file a new contention (New Contention) 4 requests admission of a contention asserting that the Nuclear Regulatory Commission (Commission or NRC) has failed to make findings required by the Atomic Energy Act (AEA) associated with spent nuclear fuel (SNF) disposal. The motion to reopen the record (Motion to Reopen), which was filed in several proceedings, requests reopening of closed proceedings, and was filed on some dockets with supporting affidavits. The Petitioners submissions, as described below, do not satisfy the relevant legal requirements for suspending or staying proceedings, admitting a contention, or reopening the record in a closed proceeding. Accordingly, the Petitioners requests should be denied.

PROCEDURAL BACKGROUND Required Waste Confidence Safety Findings in the Licensing Proceeding at South Texas Project Electric Generating Station Units 1 and 2 (Sept. 29, 2014) (ADAMS Accession No. ML14272A614) (filed in the South Texas license renewal docket). In some proceedings, petitioners also filed motions to reopen the record. See, e.g., Motion to Reopen the Record for South Texas Project Units 1 & 2 Nuclear Power Plant (Sept. 29, 2014) (ADAMS Accession No. ML14272A609). Unlike the other licensing proceedings where a suspension petition was filed, Friends of the Coast and New England Coalition did not submit a motion to admit a related contention.

3 From a procedural standpoint, the captioned proceedings can be divided into three categories.

1) In eight proceedings (Watts Bar OL, South Texas Project LR, Sequoyah LR, Callaway LR, Levy County COL, North Anna COL, Comanche Peak COL, and William States Lee III COL), other than the instant filing, there are no adjudicatory matters pending before either the Commission or the Licensing Board; 2) In seven proceedings (Turkey Point COL, Bellefonte COL, Fermi LR, Indian Point LR, Diablo Canyon LR, Seabrook LR, and Davis-Besse LR), there are other admitted or proposed contentions pending before a Licensing Board; and 3) in two proceedings (Fermi COL and South Texas COL), there are no admitted or proposed contentions pending before a Licensing Board, but there are matters (e.g.,

petitions for review) pending before the Commission.

4 In the Fermi license renewal proceeding, Petitioners filed a motion to amend and supplement an already filed contention. See Petitioners Motion for Leave to Amend and Supplement Contention 3 Concerning the Absence of Required Waste Confidence Safety Findings in the Relicensing Proceeding for Fermi 2 Nuclear Power Plant, (Sept. 29, 2014) (ADAMS Accession No. ML14272A275).

On August 31, 1984, the Commission issued its Waste Confidence Decision (WCD). 5 Therein, the Commission made five central findings of reasonable assurance that:

(1) [S]afe disposal of high level radioactive waste [(HLW)]

and [SNF] in a mined geologic repository is technically feasible.

(2) [O]ne or more mined geologic repositories for commercial [HLW] and [SNF] will be available by the years 2007-2009, and that sufficient repository capacity will be available within 30 years beyond the expiration of any reactor operating license to dispose of existing commercial [HLW] and [SNF] originating in such reactor and generated up to that time.

(3) [HLW] and [SNF] will be managed in a safe manner until sufficient repository capacity is available to assure the safe disposal of all [HLW] and [SNF].

(4) [I]f necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 30 years beyond the expiration of that reactor's operating license at that reactor's spent fuel storage basin, or at either onsite or offsite independent spent fuel storage installations [(ISFSIs)].

(5) [S]afe independent onsite or offsite spent fuel storage will be made available if such storage capacity is needed. 6 In 1990, the Commission issued an update to the WCD, in which it revised Findings (2) and (4), finding reasonable assurance that:

(2) [A]t least one mined geologic repository will be available within the first quarter of the twenty-first century, and that sufficient repository capacity will be available within 30 years beyond the licensed life for operation (which may include the term of a revised or renewed license) of any reactor to dispose of the commercial [HLW] and [SNF] originating in such reactor and generated up to that time.

(4) [I]f necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 30 years beyond the licensed life for operation (which may 5

Waste Confidence Decision, 49 Fed. Reg. 34,658 (Aug. 31, 1984).

6 Id. at 34,659-60.

include the term of a revised or renewed license) of that reactor at its spent fuel storage basin, or at either onsite or offsite [ISFSIs]. 7 In 1999, the Commission again reviewed the WCD, and left it in place without revision. 8 In 2010, following its consideration of public comments on a proposed rule, the Commission adopted a second update to the WCD. 9 Therein, the Commission (a) reaffirmed three of its previous WCD Findings, and (b) updated WCD Findings (2) and (4), finding reasonable assurance that:

(2) [S]ufficient mined geologic repository capacity will be available to dispose of the commercial [HLW and SNF] when necessary.

(4) [I]f necessary, spent fuel generated in any reactor can be stored safely without significant environmental impacts for at least 60 years beyond the licensed life for operation (which may include the term of a revised or renewed license) of that reactor in a combination of storage in its spent fuel storage basin or at either onsite or [ISFSIs]. 10 Based on these findings, the Commission then amended 10 C.F.R. § 51.23(a) titled Temporary storage of spent fuel after cessation of reactor operationgeneric determination of no significant environmental impact, and known as the Temporary Storage Rule (TSR). 11 The Commissions 2010 revision of 10 C.F.R. § 51.23(a) was challenged by several petitioners before the U.S. Court of Appeals for the District of Columbia Circuit. On June 8, 2012, the court rendered its decision in New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012), in which it held, inter alia, that the Commissions 2010 WCD Update and its revision of 10 C.F.R.

§ 51.23(a) were invalid. Specifically, the court found that the Commission's evaluation of the 7

Waste Confidence Decision Review, 55 Fed. Reg. 38,474 (Sept. 18, 1990) (emphasis added).

8 Waste Confidence Decision Review: Status, 64 Fed. Reg. 68,005, 68,006-07 (Dec. 6, 1999).

9 Waste Confidence Decision Update, 75 Fed. Reg. 81,037 (Dec. 23, 2010).

10 Id. at 81,038 (emphasis added).

11 Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation 75 Fed. Reg. 81,032 (Dec. 23, 2010) (Final Rule) (Emphasis added).

risks of spent nuclear fuel was deficient in that: (a) the Commissions conclusion that permanent storage will be available when necessary did not calculate the environmental effects of failing to secure permanent storage, 12 and (b) its determination that spent fuel can safely be stored at nuclear plant sites for sixty years after the expiration of the plant's license failed to properly examine future dangers and key consequences, 13 by not properly examining the risk of [spent fuel pool] leaks and the potential consequences of pool fires. 14 On this basis, the court vacated the Commission's WCD Update and Temporary Storage Rule, and remanded the matter to the Commission. 15 The courts ruling in New York v. NRC prompted the filing of new contentions in various NRC proceedings. On August 7, 2012, the Commission issued CLI-12-16, in which it announced that it will not issue licenses dependent upon the [WCD] or Temporary Storage Rule until the courts remand is appropriately addressed. 16 Further, the Commission stated that [t]o the extent that [it] takes action with respect to waste confidence on a case-by-case basis, litigants can challenge such site-specific agency actions in NRC adjudications; and it directed affected Atomic Safety and Licensing Boards (Boards) to hold all of the newly filed waste confidence/temporary storage contentions in abeyance pending further Commission order. 17 12 New York v. NRC, 681 F.3d at 471-473; cf. id. at 478-79.

13 Id. at 473; cf. id. at 478-79.

14 Id. at 479; cf. id. at 481-82.

15 Id. at 483.

16 Calvert Cliffs 3 Nuclear Project, LLC & Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63, 67 (Aug. 7, 2012).

17 Id. at 67-69, citing Union Elec. Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 168-71 (2011).

Following its issuance of a generic environmental impact statement (GEIS) and affirmation of a revised rule codifying its generic determinations regarding the environmental impacts of continued spent fuel storage beyond a reactors licensed operating life (continued storage), 18 on August 26, 2014, the Commission issued its decision in CLI-14-08. 19 Therein, the Commission held that the GEIS and revised rule cured the deficiencies identified by the New York Court, adopted the revised rule, and lifted its suspension of final licensing decisions based on the revised rule and supporting GEIS. In addition, the Commission dismissed the long term storage/waste confidence-related contentions in seven COL and license renewal proceedings and terminated those proceedings; it directed the Boards in all proceedings other than Indian Point 20 to reject the spent fuel storage/waste confidence contentions pending before them; and it directed the Indian Point Board to dismiss the contentions pending before it to the extent that they are resolved by the Commissions generic determinations and to resolve all other portions of those contentions in accordance with the contention admissibility standards in 10 C.F.R. § 2.309(c) and (f).

On September 19, 2014, the Commission published the final Continued Storage Rule and supporting GEIS in the Federal Register. 21 Subsequently, Petitioners filed their Petition, New Contention, and Motion to Reopen 22 in numerous individual license renewal, COL, and OL 18 See NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Aug. 2014) (ADAMS Accession No. ML14188B749) (GEIS) (NUREG-2157). The Final Report of NUREG-2157 is available in two volumes at ADAMS Accession No. ML14196A105 and ML14196A107 (Sept. 2014).

19 Calvert Cliffs 3 Nuclear Project, LLC, & Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-08, 80 NRC __ (Aug. 26, 2014) (slip op.).

20 Calvert Cliffs, CLI-14-08, 80 NRC at _ (Aug. 26, 2014) (slip op. at 10).

21 Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,263 (Sept. 19, 2014); Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept.

19, 2014) (Final Rule). The rule became effective on October 20, 2014. 79 Fed. Reg. at 56,238.

22 On October 1, 2014, on some dockets, Petitioners submitted a set of errata to their Petition to remove references to two organizations erroneously listed as participating in the Petition. See, e.g.,

proceedings on September 29, 2014. On October 20, 2014, the Continued Storage Rule became effective.

DISCUSSION The Petition, New Contention, and Motion to Reopen fail to meet the applicable Commission requirements for the reasons discussed in the following sections. Each of these should, therefore, be dismissed.

I. The Petition Does Not State a Sufficient Basis for Suspending or Staying Final Decisions in Reactor Licensing Proceedings Petitioners suspension request is based on a legal argument that the NRC has not made required findings under the AEA in connection with the disposal of spent nuclear reactor fuel before it may issue reactor licenses. However, the Petitioners failed to address, much less satisfy, the legal standards that apply to this extraordinary remedy. 23 The Petition also may be understood as a request for an adjudicatory stay of reactor licensing decisions. To the extent that the Petition constitutes a stay request, it does not address or meet the well-established criteria for justifying a stay. Furthermore, the Commission has adequate regulatory means to address any unlikely disposal-related risk to the public health and safety. As detailed below, therefore, Petitioners suspension request should be denied.

A. Petitioners Have Not Established a Proper Legal Basis for Suspending Final Decisions in Reactor Licensing Proceedings Errata to Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Issuance of Waste Confidence Safety Findings (Oct. 1, 2014) (ADAMS Accession No. ML14274A547)

(filed in the Levy COL docket). Petitioners in the Levy COL proceeding filed a motion to withdraw their Motion to Reopen on October 2, 2014, because the Board had not yet closed the record in that proceeding. See Intervenors Unopposed Motion to Withdraw Their Motion to Reopen the Record (Oct. 2, 2014) (ADAMS Accession No. ML14275A224). Staff does not oppose that motion.

23 See Fermi, CLI-14-07, 80 NRC at ___, __ (July 17, 2014) (slip op. at 8), quoting Union Elec.

Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 158 (2011) (Suspending a proceeding is a drastic action that we will not take absent immediate threats to public health and safety, or other compelling reason.)

When determining whether to suspend a proceeding, the Commission considers whether moving forward with the adjudication will jeopardize the public health and safety, prove an obstacle to fair and efficient decision making, or prevent appropriate implementation of any pertinent rule or policy changes. 24 Absent some immediate threat to public health and safety, the Commission is reluctant to suspend proceedings in light of the substantial public interest in efficient and expeditious administrative proceedings. 25 Petitioners have not shown that moving forward with reactor licensing proceedings will jeopardize the public health and safety. 26 Indeed, Petitioners request is based on a legal argument, not a factual argument related to circumstances where public health and safety is immediately implicated. The need to dispose of SNF, the issue to which the Petitioners claims are directed, is not imminent for any of the captioned facilities. Moreover, currently-operating reactors that may have their licenses renewed are already safely storing spent nuclear fuel onsite, and new facilities that are not yet licensed (or that may be licensed during the pendency of resolving Petitioners claims) will not have an imminent need to dispose of SNF. 27 Petitioners 24 Duke Energy Corp. (McGuire Nuclear Station Units 1 & 2; Catawba Nuclear Station, Units 1 &

2), CLI-01-27, 54 NRC 385, 389-90 (2001) (McGuire-Catawba), quoting Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 380 (2001) (PFS).

25 Duke Energy Corp. (Oconee Nuclear Station Units 1, 2 & 3), CLI-99-11, 49 NRC 328, 339 (1999), quoting Duke Power Co.(Catawba Nuclear Station, Units 1 & 2), 17 NRC 1041, 1048 (1983)

(citing WSTE-TV, Inc. v. FCC, 566 F.2d 333, 337 (D.C. Cir. 1977)).

26 In certain proceedings where Petitioners filed a Motion to Reopen, they also submitted declarations alleged to include information supporting their claims that the motion raises a significant safety issue. See, e.g., Declaration of Dr. Arjun Makhijani In Support of Motions to Reopen the Record of NRC Reactor Licensing and Re-Licensing Proceedings (Sept. 29, 2014) (ADAMS Accession No. ML14272A636) (filed in the William S. Lee III COL docket). Notably, the Petition does not reference any of these declarations. The declarations are voluminous and pertain largely to claims of economic harms and safety risks in the distant future. Not only do these declarations not address immediate threats to public health and safety, but their lengthy and unspecified claims contradict longstanding Commission precedent that information incorporated by reference should not force a reader to sift through it in search of asserted factual support. NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 332 (2012).

27 See NUREG-1801, Rev. 2 Generic Aging Lessons Learned Report at VII.A2 (Dec. 2010)

(ADAMS Accession No. ML103490041); see also 10 C.F.R. § 72.240(b) (conditions for spent fuel storage cask renewal include submission of aging analyses demonstrating continued safety for extended

have presented no evidence that permanent disposal is currently necessary, or that AEA findings regarding disposal are needed prior to licensing a reactor, to avoid jeopardizing public health and safety, or that it will become so in the immediate future.

Past instances where the Commission has declined to suspend a proceeding reinforce the high bar that exists for this remedy. Indeed, the Commission did not find this threshold met even where, in contrast to Petitioners present request, an immediate threat to the public health and safety was alleged. In one recent example, the Commission denied a petition to suspend reactor licensing decisions following the earthquake and tsunami events affecting the power plants at Fukushima Daiichi. 28 Additionally, following two other events in the United States with potential implications for reactor licensing, namely the Three Mile Island accident and the terrorist attacks on September 11, 2001, the Commission declined to suspend pending adjudications. 29 Given that the Commission did not consider suspending reactor licensing decisions to be justified even following these events, where immediate public health and safety threats were alleged, no reading of the Petition justifies granting such a remedy.

Not only have Petitioners failed to show that proceeding with reactor licensing represents any immediate threat to public health and safety, they also have not addressed or shown sufficient legal authority to justify a suspension of licensing. The Commissions decision to suspend licensing decisions in light of the holding in New York v. NRC was predicated on the D.C. Circuits invalidation of generic environmental findings underpinning reactor licensing.

Petitioners own generalized arguments regarding the AEAs requirements provide no similarly operation and a description of the aging management program to be used to ensure that aging does not affect the safety function of components).

28 Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 166 (2011).

29 See McGuire-Catawba, CLI-01-27, 54 NRC at 390; PFS, CLI-01-26, 54 NRC at 381-82.

conclusive basis to support an extraordinary remedy like the suspension of reactor licensing. 30 Moreover, the Commissions recent decision to lift the suspension on final reactor licensing decisionsfollowing a multi-year process in which the agency developed the legal and technical bases for the Continued Storage Rule, developed a multi-volume supporting analysis in the GEIS, and engaged in substantial public outreach and thorough response to public comments reflects a deliberate determination that the Continued Storage Rule and the GEIS satisfy the courts concerns in New York v. NRC and are legally sufficient to resume making final decisions in reactor licensing proceedings. For these reasons, the Petitioners have shown no legally sufficient basis to grant the Petition; it should be dismissed.

B. The Petition Does Not Satisfy the Requirements for Staying Final Reactor Licensing Decisions The Petitioners have also provided no arguments to justify a stay under 10 C.F.R.

§ 2.342(e). In effect, the Petition seeks a stay of the Commissions decision in CLI-14-08 lifting the suspension of final reactor licensing decisions. Under 10 C.F.R. § 2.342(e), the factors used to analyze whether a stay is appropriate are (1) whether the moving party has made a strong showing that it is likely to prevail on the merits, (2) whether the party would be irreparably injured absent the stay, (3) whether the granting of the stay would harm other parties, and (4) where the public interest lies. The most important factor is irreparable harm, 31 and a party urging a stay must show that any irreparable harm is imminent, certain, and great. 32 The Commission has stated that non-specific claims such as raising the specter of a nuclear 30 See infra at 15-18.

31 Sequoyah Fuels Corp. & General Atomics (Gore, Oklahoma Site), CLI-94-9, 40 NRC 1, 6 (1994).

32 Entergy Nuclear Vermont Yankee LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-06-8, 63 NRC 235, 237-38 (2006) (quoting Massachusetts Coalition of Citizens with Disabilities v. Civil Defense Agency, 649 F.2d 71, 75 (1st Cir. 1981)).

accident does not demonstrate irreparable harm. 33 Absent any showing of irreparable harm, the moving party must make an overwhelming showing of the likelihood of success on the merits. 34 Petitioners have not even addressed any of the four stay factors and have also not demonstrated that they are entitled to a stay. With respect to the irreparable harm standard, Petitioners have not shown any harm, much less irreparable harm, in the absence of a stay in any particular proceeding. Refusing to grant the stay here will not harm Petitioners because for most pending new reactor applications the operation of the proposed reactors (let alone the end of licensed operation and the need for permanent disposal) is still years in the future, while operating plants that seek license renewal are safely storing spent nuclear fuel onsite, and both new and operating reactor licensees must also show that SNF will be safely stored onsite during the period of licensed operation. 35 The need for disposal for new facilities and currently operating reactors is, therefore, distant in time and the NRCs comprehensive regulatory framework, as discussed infra at 27-29, demonstrates the NRCs ability to make whatever findings are required under the AEA or other statutes regarding spent fuel disposal, at the appropriate time. Petitioners will not be harmed by having their concerns adjudicated through the NRCs standard hearing procedures, without an extraordinary stay on the effectiveness of licensing decisions put in place, because there is no likelihood that any harm will occur during the adjudication of their claims. In the extremely unlikely event that a health or safety threat related to the disposal of SNF arisesduring the pendency of resolving Petitioners New 33 Id.

34 Sequoyah, CLI-94-9, 40 NRC at 6.

35 Cf. Vermont Yankee, CLI-06-8, 63 NRC at 237-38 (showing irreparable harm is the most important factor).

Contention or any subsequent periodthe Commission has sufficient means in place to appropriately respond to ensure adequate protection of public health and safety. 36 Petitioners also have not shown that they are likely to prevail on the merits in any particular case because they merely raise a series of legal assertions, ones which are contrary to applicable regulatory history and case law and the Commissions recent determination that the Continued Storage Rule and GEIS are sufficient to lift the suspension on final licensing decisions. Given the absence of any showing of imminent irreparable harm if the Petition is not granted, the public interest is not served by creating greater expense and uncertainty by delaying final reactor licensing decisions where no countervailing benefit exists. For these reasons, Petitioners have not shown that they are entitled to a stay of final licensing decisions.

II. Petitioners Contention that the NRC Has Failed to Make Required AEA Findings in Connection with Disposal of SNF is Invalid and Inadmissible A. Summary As explained below, Petitioners have incorrectly characterized the legal and regulatory history relevant to whether the NRC must make findings under the AEA on disposal of spent nuclear fuel. 37 Further, the history cited by Petitioners does not support their assertion that the 36 See, e.g., 10 C.F.R. § 2.202.

37 The Petitioners do not use consistent terminology to describe the findings they assert are required by the AEA with respect to SNF disposal. For example, they assert that the Waste Confidence findings included both general safety findings and supporting technical analysis. New Contention at 7-8. The Petitioners quote the 1984 Waste Confidence Findings 1 and 2, which they characterize as address[ing] both the technical feasibility of siting a repository and the sufficiency of repository capacity.

New Contention at 6. In addition, they refer to technical findings of reasonable assurance, definitive findings about the safety of repository disposal, predictive findings regarding the ultimate safety of spent fuel disposal, Waste Confidence findings regarding the safety of spent fuel disposal, and AEA safety findings. New Contention at 7-9. The Petitioners assert these findings are required pursuant to AEA sections 103d., 161b., and 182a. New Contention at 4-5. But as discussed in more detail below, the NRC has previously determined that the AEA does not require findings regarding SNF disposal prior to reactor licensing. See Denial of Petition for Rulemaking, 42 Fed. Reg. 34,391 (July 5, 1977) (hereafter PRM Denial). However, for consistency in responding to the diverse terms employed in the Petitioners pleadings, the Staffs Response will generally refer to findings under the AEA regarding disposal.

Commissions recent issuance of the Continued Storage Rule and GEIS left a gap in findings required under the AEA that should bar the NRC from issuing final licenses for reactors.

Significantly, the NRC is not required by the AEA, or any judicial precedent, to make explicit findings regarding spent fuel disposal before issuing a license (or renewed license) for power reactors. Rather, all licensing decisions made under the NRCs regulatory framework already address health and safety of the public in this regard, to the extent the Commission deems necessary. Section 103.d. of the AEA prohibits the Commission from issuing a license if, in the opinion of the Commission, the issuance of a license would be inimical to the common defense and security or to the health and safety of the public. 38 Petitioners assert that the NRC has interpreted the AEA to require Waste Confidence safety findings since 1977. 39 That assertion is incorrect. To the contrary, the Commission has previously determined that the NRC is not required under the AEA to make findings regarding disposal before licensing nuclear reactors. 40 If the Commission had determined that such findings were necessary as a condition for reactor licensing, it would have instructed the Staff to commence a rulemaking to address those findings in the relevant regulatory provisions when it approved the NRCs departure from prior Waste Confidence Decisions in the GEIS and final Continued Storage Rule. 41 While not required by the AEA, the Commission historically expressed a policy that it would not license reactors unless it believed wastes generated by the reactor could be disposed of safely when necessary. 42 The Waste Confidence Decision historically embodied that policy, 43 38 The Atomic Energy Act of 1954, as amended, § 103d., 42 U.S.C. § 2133 (2005).

39 New Contention at 7.

40 See PRM Denial at 34,391-92 (emphasis added).

41 79 Fed. Reg. at 56,263; 79 Fed. Reg. at 56,238.

42 See PRM Denial at 34,393.

but the Commission has not changed that policy. Although a departure from the Waste Confidence Decisions of the past, the Continued Storage GEIS and rule expands on those prior Waste Confidence efforts using the NEPA process to provide the public with the most complete picture to date of the environmental impacts of post-reactor-operation safe spent fuel management. While the Continued Storage GEIS fulfills the NRCs NEPA obligations to examine the environmental impacts of continued storage, nothing in the revised rule or GEIS is inconsistent with the Commissions longstanding policy of only licensing reactors if wastes generated by the reactor can be disposed of safely when necessary.

Finally, over the last thirty years, the NRC has developed a comprehensive regulatory framework for the storage and disposal of spent nuclear fuel, and the framework undergirds that longstanding policy. These developments in the NRCs regulatory framework, reinforced by the Commissions consistent position that explicit findings regarding spent fuel disposal are unnecessary prior to reactor licensing, are fatal to the Petitioners claims.

Because the NRC is not required to make the findings that the Petitioners claim are needed, their New Contention is inadmissible under the NRCs rules of practice. The Petitioners claim does not relate to any findings the NRC must make in granting, denying, or renewing a reactor license and, as a result, is also outside the scope of these adjudicatory proceedings. 44 The New Contention also does not raise a genuine dispute with the particular applications in the many proceedings that it was filed, as it does not specify any allegedly deficient content inor omission fromany particular application as 10 C.F.R. §2.309(f)(1)(vi) requires. 45 For these reasons, the New Contention should be dismissed.

43 See, e.g., 49 Fed. Reg. at 34,658.

44 10 C.F.R. § 2.309(f)(1)(iii) and (iv).

45 See Seabrook, CLI-12-5, 75 NRC at 323 (When large portions of a contention are taken from one or more other NRC proceedings it is especially important to ensure the existence of a genuine material dispute with [the] particular application.) (emphasis in original). The Amended and Supplemented contention filed in the Fermi 2 license renewal proceeding is also inadmissible because it

B. The AEA Does Not Require Findings Regarding Disposal Prior to Issuance of Reactor Operating Licenses In 1976, the Natural Resources Defense Council (NRDC) petitioned the Commission to determine, through rulemaking, whether spent fuel can be disposed of without undue risk to the public health and safety and to cease granting operating licenses until that definitive finding is made. 46 Similar to Petitioners position here, NRDC argued that the AEA and NRC regulations require such a determination. In 1977, the Commission denied that petition and set forth its interpretation of the AEA as it relates to the production, storage, and disposal of spent fuel:

[T]he Atomic Energy Act clearly requires that some kind of safety finding be made prior to issuance of an operating license for a nuclear power reactor. It seems clear, however, that the statutory findings required by section 103 [of the Act] apply specifically to the proposed activities and activities under such licenses. These activities include some interim storage activities for spent fuel. They do not include the permanent disposal of high-level wastes though wastes are, in fact, generated by operation of the reactor.

The emphasis [in section 182] on information pertaining to the facility and applicant to be licensed is especially-significant. No such information is required regarding high-level waste disposal facilities. Such information would be necessary were the Commission to make the detailed safety finding regarding high-level waste disposal activities requested by petitioner. 47 Thus, the scope of the NRCs regulatory authority for licenses issued under the AEA is limited to the proposed activities that would be authorized by the requested license.

Nevertheless, the Commission assured the petitioner, NRDC, and the public that

[t]he Commission would not continue to license reactors if it did is not based on new and materially different information from information previously available. See 10 C.F.R. § 2.309(c)(1)(i)-(iii). Instead, the initial contention cited to the same cases (NRDC v. NRC, NewYork v. NRC, and Minnesota v. NRC) and made the same substantive claim that the NRC must make waste confidence safety findings in the Fermi 2 relicensing proceeding.

46 See PRM Denial.

47 PRM Denial at 34,391-92 (internal citations omitted).

not have reasonable confidence that the wastes can and will in due course be disposed of safely. The accumulating evidence continues to support the Commission's implicit finding of reasonable assurance that methods of safe permanent disposal of high-level wastes can be available when they are needed. 48 Thus, as matter of policy, the NRC will not license a reactor if it did not believe that the wastes can safely be disposed of when necessary.

The Petitioners here assert that this discussion of Commission policy constitutes an agency interpretation that the AEA requires a finding regarding the spent fuel disposal prior to reactor licensing. 49 The Petitioners are mistaken. The Commission explicitly interpreted the AEA not to require such findings, but assured the public that the Commission, as a matter of policy, 50 would not issue licenses if it believed spent fuel could not be disposed of in due course.

NRDC appealed the Commissions denial to the Second Circuit. Rejecting NRDCs claims of an AEA-based obligation to make such explicit findings, that court held that the petitioners simply read[] too much into the AEA. 51 Noting that the Atomic Energy Commission found no such requirement in the AEA, and being unable to find any doubt over the intent of Congress (1) not to require NRC to make the definitive determination requested by NRDC and (2) not to require a moratorium on nuclear power reactor licensing pending an affirmative determination, 52 the court held that:

[The] NRC is not required to withhold action on pending or 48 Id. at 34,392. The Staff notes that the analysis in Appendix B of the Continued Storage GEIS documents the current status of the scientific consensus on spent fuel disposal in a geologic repository; it explains that such disposal remains technically feasible. See NUREG-2157, Vol. 1, Final Report, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, at Appendix B (Sept. 30, 2014) (ADAMS Accession No. ML14196A105) (GEIS) (NUREG-2157 Vol. 1).

49 New Contention at 6.

50 See Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 75 Fed. Reg. 81,032, 81,032-33 (Dec. 23, 2010) (Final Rule).

51 NRDC v. NRC, 582 F.2d 166, 171 (2nd Cir. 1978).

52 Id. at 174.

future applications for nuclear power reactor operating licenses until it makes a determination that high-level radioactive wastes can be permanently disposed of safely. 53 The Petitioners suggest that the Second Circuit conditioned its decision on the Commissions implicit finding of reasonable assurance. In support of that assertion, the Petitioners misquote a portion of the Second Circuits opinion, 54 which says NRC maintains that its long-continued regulatory practice is in accord with the intent of Congress underlying the AEA and [Energy Reorganization Act]. 55 The Petitioners incorrectly characterize that discussion, describing it as the Second Circuits conclusion, and omit the crucial words NRC maintains from the quote. 56 Contrary to the Petitioners claims, although NRDC upheld NRCs practices, it did not conclude that the NRCs practices were in accordance with or required under the AEA. Rather Congress expressly recognized and impliedly approved NRCs regulatory scheme and practice under which the safety of interim storage of high-level wastes at commercial nuclear power reactor sites has been determined separately from the safety of Government-owned permanent storage facilities which have not, as yet, been established. 57 Further, even if the AEA did require the practices upheld in NRDC, those practices did not include the explicit findings under the AEA, which the Petitioners argue the NRC must make before licensing reactors.

However, even if the Petitioners understanding were correct, it would not support the Petitioners contention, because the Commission has not abandoned the policy asserted in the 53 Id. at 175 (emphasis added). Addressing the possibility of doubt, the NRDC court said if there were any doubt we are persuaded that the matter was laid to rest by enactment of the Energy Reorganization Act of 1974. Id. at 174 (citations omitted). See also Minnesota v. NRC, 602 F.2d 412, 417 (D.C. Cir. 1979) (The NRCs decision [in the PRM Denial] was one of statutory interpretation, concluding that Congress did not intend in enacting the Atomic Energy Act to require a demonstration that nuclear wastes could be safely disposed of before licensing of nuclear plants was permitted. The Second Circuit affirmed on this basis.)

54 New Contention at 8.

55 NRDC, 582 F.2d at 170.

56 New Contention at 8.

57 NRDC, 582 F.2d at 174.

1977 denial of NRDCs petition for rulemaking regarding SNF disposal findings, as discussed in section II.C. below, nor has that policy been invalidated by the courts.

1. Minnesota v. NRC Did Not Overrule the Commissions Interpretation of the AEA In 1976, the same year NRDC submitted its petition for rulemaking, two power reactor licensees applied for license amendments to increase the amount of fuel stored in their spent fuel pools. Before the Atomic Safety and Licensing Appeal Board, the intervenors argued that increasing uncertainty as to the feasibility of spent fuel disposal raised the prospect that spent fuel would be stored onsite indefinitely. 58 Therefore, the intervenors argued, the Commission is required to consider the environmental and safety implications of continuing to store spent fuel onsite after decommissioning of the reactor before it may grant a license amendment authorizing expanded onsite storage capacity. 59 The Appeal Board held that under NEPAs rule of reason an analysis was required only where it was reasonably probable that a solution would not be reached. 60 However, the Appeal Board found that question foreclosed by the PRM Denial, which it described as a policy declaration that, for the purposes of licensing actions, it both can and should be presumed that there will be spent fuel repositories available when needed. 61 The Commission denied an appeal, 62 and intervenors appealed to the U.S. Court of Appeals for the District of Columbia Circuit in Minnesota v. NRC. 63 58 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 45-46 (1978).

59 Id. at 44-46.

60 Minnesota, 602 F.2d at 415.

61 See Prairie Island, 7 NRC at 50-51.

62 Minnesota, 602 F.2d at 416.

63 Id. at 418-419.

The Appeal Boards holding that NEPAs rule of reason controls whether an analysis of disposal is required was not challenged on appeal to the D.C. Circuit. 64 Rather, the Minnesota petitioners argued that the NRC was required to decide that issue through adjudication. 65 Minnesota held that the NRC is entitled to answer that question generically, but that the PRM Denial was insufficient for that purpose because it was not the product of a rulemaking record devoted to expressly answering the questions. 66 Nevertheless, Minnesota held that NRC may chose the appropriate procedures to answer the question required under NEPAs rule of reason. 67 Therefore, [t]he court confine[d] its action to rejection of certain contentions by petitioners, notably the claim of need for an adjudicatory proceeding, and remand[ed] the balance of these cases, and issues raised, for further consideration by the Commission with such procedure as it may deem appropriate. 68 64 Id. at 415-416.

65 Id. at 416.

66 Id. at 417. It is worth noting that Appeals Court judges have twice written separately to assert that this result is mandated by both NEPA and the AEA. In Minnesota, Judge Tamm wrote a concurring opinion to emphasize [his] belief that NEPA and section 103(d) [sic] of the Atomic Energy Act of 1954 mandate that prior to approval of a license there must be a determination whether it is reasonably probable that an offsite fuel repository will be available when the operating license expires. Minnesota, 602 F.2d at 419 (Tamm concurring). In a later per curiam opinion, Potomac Alliance v. NRC, 682 F.2d 1030 (D.C. Cir. 1982), the D.C. Circuit noted that Minnesota, despite an apparent NEPA violation had declined to vacate or stay the license amendment in question in 1979. Potomac Alliance, 682 F.2d at 1031. The Potomac Alliance court, on the same basis, likewise declined to vacate or stay the challenged license amendments at issue in 1982. Judge Bazelon, concurring in Potomac Alliance, argued that the fact that the court [in Minnesota] remanded the case to the Commission indicates that the court found an underlying violation of the law. Otherwise, there would be no grounds for the remand. Id. at 1038 n.44 (Bazelon concurring). Judge Bazelon also noted that the underlying violation found by Minnesota is implicit in the opinion, but agreed with Judge Tamm that both NEPA and the AEA required that result. Id.

at 1038. In light of these concurrences, the fact that neither majority opinion cited the AEA as a basis for its decision reinforces the understanding of Minnesota as based on NEPA rather than AEA considerations.

67 See Minnesota, 602 F.2d at 419, citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) (holding that a court cannot impose rulemaking procedures on a federal agency, though a court may find the administrative record insufficient to support an agency action).

68 Id. at 419. Minnesota also declined to vacate or stay the license amendments, which would effectively shut down the plants. Id. at 418.

The Petitioners assert that the court in Minnesota v. NRC affirmed the NRCs reliance for reactor licensing on duly promulgated technical findings of reasonable confidence. 69 The Petitioners further assert that Minnesota required the NRC to issue[] the findings and their supporting technical analyses in draft form for public comment. 70 However, no such duly promulgated findings 71 existed in 1979 for Minnesota to have affirmed, and Minnesota did not specify what procedure the NRC should use to address the remand. The Petitioners are correct that Minnesota found the PRM Denial insufficient to deny consideration of disposal on a generic basis. 72 However, Petitioners appear to be inferring from Minnesotas use of the phrase reasonable assurance that the D.C. Circuit had found such a requirement in the AEA. 73 The Petitioners are mistaken for two reasons. First, Minnesota relied upon NEPA in reaching its conclusions. Second, Minnesota did not cite the AEA as a basis for its holding.

First, as described above, the Minnesota petitioners did not challenge the Appeal Boards conclusion that disposal is relevant to operating licenses only if, per NEPAs rule of reason, it is reasonably probable that no disposal solution will be available by the end of the reactors licenses. 74 Therefore, Minnesotas opinion was restricted to deciding what procedures would be necessary for the NRC to answer that question generically. 75 Given that procedural posture, Minnesotas holding can logically be understood as based solely on NEPA grounds. 76 69 New Contention at 8, citing Minnesota v. NRC, 602 F.2d 412, 417 (D.C. Cir. 1979).

70 Id. at 6.

71 Id. at 8.

72 See Minnesota, 602 F.2d at 415-416.

73 See New Contention at 8.

74 Minnesota, 602 F.2d at 415-416.

75 Id. at 419.

76 See also Potomac Alliance (reaching the same result, but expressly limited to NEPA grounds).

Second, contrary to the Petitioners inference, the Minnesota courts use of the phrase reasonable assurance does not indicate that the court had concluded that the NRC had violated the AEA. The court in Minnesota did use the phrase reasonable assurance in describing its remand:

the court contemplates consideration on remand of the specific problem isolated by petitioners determining whether there is reasonable assurance that an off-site storage solution will be available by the years 2007-09, the expiration of the plants' operating licenses, and if not, whether there is reasonable assurance that the fuel can be stored safely at the sites beyond those dates. 77 However, at the time Minnesota was decided, reasonable assurance was a regulatory standard developed by the Atomic Energy Commission, not a statutory standard included in the language of the AEA, making it even less plausible that the Minnesota court, without citation or emphasis, was invoking the AEA as a basis for its holding. 78 Minnesota also explicitly linked assurance to a substantive NEPA requirement: NEPA requires the Commission fully to assure 77 Minnesota, 602 F.2d at 418. Compare that specific remand without citation to the AEA or the NRCs regulations with Judge Leventhals opinion, issued just months after Minnesota, in Porter County Chapter of the Izaak Walton League of America v. NRC, 606 F.2d 1363, 1369 (D.C. Cir. 1979) (emphasis added):

In Power Reactor Development Co. v. International Union, 367 U.S. 396, 407 (1961), the Supreme Court rejected the proposition that the Atomic Energy Act required the Commission to make the same definitive finding of safety of operation as it admittedly will have to make before it licenses actual operation of the facility. Thus, while a utility must demonstrate reasonable assurances that a proposed plant can be operated safely before it may obtain an operating license, 10 C.F.R. § 50.57(a)(3) (1979),

the unresolved safety questions do not require denial of a construction permit.

That opinion makes the absence of citation to the AEA or NRC regulations in Minnesota conspicuous, and belies Petitioners assertion that the D.C. Circuit found a requirement in the AEA for the NRC to make findings regarding disposal prior to reactor licensing.

78 The requirement that the Commission have reasonable assurance in reactor licensing was not added to the AEA until 1992, as part of an amendment adding provisions for combined licenses (COL).

See, e.g., AEA § 185b.The phrase reasonable assurance has been a part of the NRCs regulations since Part 50 was first promulgated in 1956. Part 50-Licensing of Production and Utilization Facilities, 21 Fed. Reg. 355 (Jan. 19, 1956). Section 1502 of the AEA provided that the Commission may implement the privatization plan if privatization will provide reasonable assurance that adequate enrichment capacity will remain available to meet the domestic electric utility industry. (emphasis added).

itself that safe and adequate storage methods are technologically and economically feasible. 79 Therefore, the courts use of the phrase reasonable assurance fails by itself to demonstrate that Minnesotas remand was based on an AEA requirement rather than on the readily ascertainable NEPA grounds.

2. The Commission Did Not Interpret Minnesota v. NRC to Require Findings Regarding Disposal of Spent Nuclear Fuel Prior to Licensing Reactors Under the AEA Petitioners are also incorrect in sugesting that the NRC has interpreted Minnesota to require explicit findings under the AEA regarding disposal of spent nuclear fuel prior to licensing reactors. 80 In 1979, the Commission approved a letter denying a Motion for Reconsideration in light of Minnesota, stating that:

Judge Leventhal was quite careful not to make law in

[Minnesota]. His opinion for the court was consciously limited to a remand to the Commission for further consideration in light of new information and did not accept petitioners contentions that the Commission had erred both procedurally and substantively in declining to consider the possibility of long-term on-site storage. 81 Because a holding by the D.C. Circuit in Minnesota that the NRC is required to publish a waste confidence safety finding prior to licensing nuclear power reactors would have been a marked departure from the 2nd Circuits decision in NRDC, the Commissions recognition that the D.C.

Circuit was quite careful not to make law 82 shows that it did not interpret the courts decision to include such a holding. Nevertheless, the Commissions response to the Minnesota remand was consciously broader than the court had contemplated:

79 Minnesota, 602 F.2d at 417 n.6. (quoting NRDC v. NRC, 547 F. 2d at 658 D.C. Cir. (Tamm, J.,

concurring)) (emphasis added).

80 New Contention at 6.

81 Letter from Samuel J. Chilk, Secretary of the Commission, to Karin P. Sheldon, representing Christa-Maria, at 1 (Jan 2, 1980) (ADAMS Accession No. 8001140161).

82 Id.

The Commission recognized that the scope of this generic proceeding would be broader than the Court's instruction, which required the Commission to address the questions of whether off-site storage for spent fuel would be available by the expiration of reactor operating licenses and if not, whether spent fuel could continue to be safely stored on-site. [citation omitted]

However, the Commission believed that the primary public concern was whether nuclear waste could be disposed of safely rather than with an off-site solution to the storage problem per se. 83 Since then, the NRC has updated the Waste Confidence Decision as the Commission has deemed appropriate in light of new information. 84

3. New York v. NRC Did Not Address the AEA, Nor Did it Hold That Minnesota Required Explicit Findings Regarding Disposal of Spent Nuclear Fuel Prior to Licensing Reactors Petitioners assert that New York v. NRC, 85 which vacated and remanded the 2010 waste confidence rule, 86 supports Petitioners assertion that the NRC is obligated under the AEA to make explicit findings regarding the disposal of spent nuclear fuel prior to licensing reactors. 87 In the Petitioners view, this conclusion is necessary because New York considered the Waste Confidence Decision rulemaking to be a licensing decision. 88 Petitioners are mistaken and read too much into that decision. The court in New York found that if the NRC is going to base its licensing decisions, in part, on preclusive findings in a rulemaking, then that rulemaking is a major federal action requiring either a FONSI or an EIS, because the preclusive findings are, in 83 Waste Confidence Decision, 49 Fed. Reg. 34,658 (Aug. 31, 1984) (citation omitted) (emphasis added).

84 See Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 75 Fed. Reg. 81,032, 81,038 (Dec. 23, 2010) (Final Rule).

85 New York, 681 F.3d at 471.

86 The previous rule could be found at 10 C.F.R. § 51.23(a) (2010).

87 See New Contention at 8-9.

88 See id. (citing New York v. NRC, 681 F.3d at 476-77).

effect, a predetermined stage of each licensing decision.89 But contrary to the Petitioners suggestion that this has AEA implications, that aspect of the holding is simply a prerequisite to the courts finding that the NRCs environmental assessment did not satisfy the requirements of NEPA for the evaluation of the environmental impacts of continued storage. New York simply means that the NRCs 2010 Waste Confidence Decision did not meet the NRCs NEPA obligations with respect to continued storage in a manner sufficient to preclude those NEPA issues from further consideration in licensing proceedings.

Indeed, New York reinforces the NRCs position that explicit findings regarding disposal of spent nuclear fuel are not required under the AEA prior to licensing reactors. The Waste Confidence Decision was developed in the context established by Minnesota, and was addressed by the court in New York entirely on NEPA grounds. The New York court discussed Minnesota in two places, neither of which supports the Petitioners claims. In the first instance, the court characterized its prior opinion in Minnesota as:

direct[ing]the Commission to consider whether there is reasonable assurance that an off-site storage solution [for spent fuel] will be available by the expiration of the plants operating licenses, and if not, whether there is reasonable assurance that the fuel can be stored safely at the sites beyond those dates. 90 The second reference in New York to the decision in Minnesota appears where the court summarizes the Commissions argument that the waste confidence decision was not a major federal action because it did not authorize any reactor or storage facility license, stating that [t]o the Commission, the [Waste Confidence Decision] is simply an answer to this courts mandate in Minnesota to ensure that plants are only licensed while the NRC has reasonable assurance 89 New York, 681 F.3d at 476.

90 New York, 681 F.3d at 474-475 (quoting Minnesota v. NRC, 602 F.2d 412, 418 (D.C. Cir. 1979))

(emphasis added).

that permanent disposal of the resulting waste will be available. 91 Petitioners omit the crucial words [t]o the Commission from this quote; 92 this is the D.C. Circuit interpreting the NRCs briefs, not the D.C. Circuit interpreting Minnesota.

The Minnesota court used the term reasonable assurance without explanation.

However, the New York courts discussion of Minnesota places that decision squarely within the D.C. Circuits NEPA jurisprudence. Nowhere does the New York opinion discuss, cite, or mention the AEA. 93 Therefore, this decision likewise fails to support the Petitioners assertion of an AEA requirement that the NRC make explicit findings regarding disposal of spent nuclear fuel prior to licensing power reactors.

C. The Commission Policy On Safe Disposal of Waste Remains Unchanged Although the Commission has discarded the format of the Waste Confidence Decision where the five findings essentially embodied the historic Commission policy expressed in the 1977 PRM denial 94the crux of that policy continues to remain in place to this day.

As demonstrated in the 2010 waste confidence rulemaking the Commission chose to reinforce that policy in the face of anticipated combined license proceedings:

Prior to NRC's original Waste Confidence proceeding, the Commission stated that, as a matter of policy, it would not continue to license reactors if it did not have reasonable confidence that the wastes can and will in due course be disposed of safely. 95 91 Id.

92 New Contention at 8.

93 It is also notable that New York did not address the AEA, because the petitioners in New York had also argued that the NRCs schedule for revisiting waste confidence violated the AEA. See Opening Brief for Petitioners at 28 (available at http://harmoncurran.com/library/Petitioners Opening Brief in NY v NRC 9-15-11.pdf). However, the court agreed with the petitioners NEPA arguments and did not address the AEA claim. New York, 681 F.3d at 471.

94 See PRM Denial at 34,393.

95 75 Fed. Reg. at 81,032-33 (citation omitted) (emphasis added).

This reiteration reinforces a conclusion that the Commission was making a finding of confidence in the availability of a repository, grounded in policy, rather than satisfying any AEA obligation to publish such a finding. Neither the Continued Storage GEIS, nor the rule which codifies it, abandons or in any way alters the Commission policy expressed in the PRM Denial that the Commission would not license reactors unless it believed that wastes generated by those reactors could be disposed of safely when necessary. 96 Instead, the Continued Storage rule and GEIS are consistent with that historic Commission policy. The robust analysis in the GEIS supports the conclusion contained in Appendix B to the GEIS that disposal in a geologic repository is technically feasible.

Further, the NRC continues to have in place a comprehensive regulatory structure that substantiates this policy. The regulatory framework is designed to assure adequate protection of the health and safety of the public, as well as maintaining the common defense and security, when licensing power reactors and storage facilitiesand licenses issued under the NRCs regulatory framework inherently address the health and safety of the public with respect to the spent fuel generated by NRC-licensed reactors. The Commissions regulations address both management of spent fuel (in 10 C.F.R. Parts 72, 50 and 52) as well as disposal of spent fuel (in 10 C.F.R. Parts 60 and 63). 97 These regulations include rigorous safety requirements, and the licensees obligations to safely control spent fuel continue pursuant to these requirements even after the licensed facility ceases to operate. 98 Further, an integral part of any regulatory agencys jurisdiction is the ability to enforce compliance with its regulations; the NRCs 96 See PRM Denial at 34,393.

97 These are separate from regulations focused on safety of other power plant components, such as those safety requirements in Part 54 dealing with aging management issues for license renewal.

98 See, e.g., 10 C.F.R. § 50.82, Termination of license.

enforcement authority stems from the AEA 99 and gives the NRC continued authority to assure the safe storage of spent fuel pursuant to its regulations after the cessation of operation.

In particular, the NRC has developed regulations that specifically address both storage and geologic disposal of spent nuclear fuel, including provisions designed to assure the safety of such facilities. Safe management of spent fuel storage in both dry cask and pools is addressed by provisions in Parts 72, 50 and 52. 100 In addition, Part 60 establishes general and prescriptive requirements for the construction and operation of geologic repositories, and Part 63 lays out the requirements pertinent to construction and operation of a geologic repository at Yucca Mountain. 101 Of particular significance, several regulatory provisions directly address safe storage of fuel after the licensed life of a reactor. For instance, 10 C.F.R. § 50.54(bb) requires licensees to submit to the NRC for approval a program for the management, including funding, of all spent nuclear fuel after the licensed life of the reactor ceases and until the Department of Energy takes title and possession of the fuel. 102 Criterion 61 of Appendix A to 10 99 For instance, the Atomic Energy Act of 1954, as amended, § 81a., 42 U.S.C. § 2111 (2005),

regarding domestic distribution of byproduct material, states in part, The Commission shall not permit the distribution of any byproduct material to any licensee, and shall recall or order the recall of any distributed material from any licensee, who is not equipped to observe or who fails to observe such safety standards to protect health as may be established by the Commission . . . .

100 For example, 10 C.F.R. § 50.34 sets out the required contents of an application, and § 50.34(i), in particular, requires the applicant to include a description and plans for strategies to maintain or restore spent fuel cooling capabilities after a loss of areas of the plant due to explosions or fire. Similarly, 10 C.F.R. Part 72 a regulatory section that was not in place in 1984 when the first Waste Confidence proceeding was completedaddresses the safety standards for ISFSIs.

101 These requirements for disposal in geologic repositories implicitly provide the technical foundation for the assurance necessary to meet the standard of adequate protection in the AEA, and any application submitted to the NRC pursuant to these regulations would have to demonstrate the capability to meet these requirements before a license to construct and operate a geologic repository could be issued.

102 10 C.F.R. § 50.54(bb) was published in 1984 as part of the first Waste Confidence rulemaking.

Note that this provision was published in Part 50, Domestic Licensing of Production and Utilization Facilities, while 10 C.F.R. § 51.23, then the Temporary Storage Rule, now the Continued Storage Rule, was published in Subpart A of Part 51, National Environmental Policy ActRegulations Implementing Section 102(2). Requirements for Licensee Actions Regarding the Disposition of Spent Fuel Upon Expiration of Reactor Operating License, 49 Fed. Reg. 34,688, 34,694-95 (Aug. 31, 1984)

(Final Rule) The program must be filed with the NRC within 2 years following permanent cessation of

C.F.R. Part 50 requires that the systems which contain radioactivity, including fuel storage and waste systems, be designed to assure adequate safety under normal and postulated accident conditions under a variety of different criteria. 103 Since the first waste confidence proceeding, the experience and knowledge of the agency has evolved considerably. 104 As discussed in the analysis in Appendix B of the Continued Storage GEIS, the NRC has a strong scientific and technical foundation of knowledge upon which to base its conclusions of technical feasibility regarding storage and ultimate disposal of spent nuclear fuel. 105 In addition to these extensive technical studies and the stringent regulatory standards, the NRC has developed numerous guidance documents to assist in assuring that spent fuel is managed safely. 106 In its entirety, the NRC regulatory framework establishes a broad foundation upon which the NRC continues to ensure the safety of both continued management and disposal of spent fuel. Licenses issued by the NRC under this framework intrinsically include a finding that the operation of the reactor or 5 years before expiration of the reactor operating license, whichever comes first. 10 C.F.R. § 50.54(bb).

103 These criteria include, but are not limited to: shielding for radiation protection; the ability to allow inspections; and appropriate containment, confinement and filtering systems. 10 C.F.R. Part 50, Appendix A, Criterion 61.

104 Waste Confidence Decision, 49 Fed. Reg. 34,658 (Aug. 31, 1984).

105 See, e.g., NUREG-2157, Vol. 1, Appendix B, at B-3-B-4 (Scientific and Technical Basis for the Geologic Disposal of Radioactive Wastes Technical Reports Series No. 413 [IAEA 2003a], Geological Repository Systems for Safe Disposal of Spent Nuclear Fuels and Radioactive Wastes [Ahn and Apted 2010], Lessons Learnt from Ten Performance Assessment Studies [NEA 1997], Radioactive Waste Management Studies and Trends, IAEA/WMDB/ST/4 [IAEA 2005], The Use of Scientific and Technical Results from Underground Research Laboratory Investigations for the Geologic Disposal of Radioactive Waste [IAEA 2001], Joint Convention on Safety of Spent Fuel Management and on Safety of Radioactive Waste Management, INFCIRC/546 [IAEA 1997], Strategy for the Management and Disposal of Used Nuclear Fuel and High-Level Radioactive Waste [DOE2014]

106 See, e.g., NUREG-1536, Rev. 1, Final Report, Standard Review Plan [(SRP)] for Spent Fuel Dry Storage Systems at a General License Facility (July 2010) (ADAMS Accession No. ML091060180);

Letter from E. William Brach, Director, NMSS, to Lynnette Hendricks, Director of Plant Support, Nuclear Energy Institute, Interim Staff Guidance-5, Confinement Evaluation (Nov. 30, 1999) (ADAMS Accession No. ML993370589); Interim Staff Guidance-2, Rev.1, Fuel Retrievability (Feb. 22, 2010) (ADAMS Accession No. ML100550861).

applicant has demonstrated the ability to meet the safety requirements for the license. Finally, continued NRC oversight and regulation of the licensee, its activities, and licensed materials even after operation ceases, provides further assurance of the safe management and eventual disposal of the licensees spent fuel. Accordingly, this comprehensive framework buttresses the Commissions policy that reactor licensing would not occur absent a belief that safe disposal can occur when necessary.

D. The Continued Storage GEIS and Rule Do Not Attempt to Substitute for Any Findings Required Under the AEA In their submittals, the Petitioners assert [t]he NRCs rationale for eliminating Waste Confidence findings ignores the separate and independent roles of the AEA and NEPA. In doing so, the Petitioners have misunderstood why the NRC concluded that the Waste Confidence Decision is no longer necessary. 107 Contrary to the Petitioners claims, the NRC did not state that the assumptions in the Continued Storage GEIS substitute for the Waste Confidence Decision. 108 The Waste Confidence findings once provided a regulatory basis for the temporary storage rule. Today, similar assumptions for the sake of analysis provide a reasonable framework in which to analyze the environmental impacts of continued storage.

However, the regulatory basis for the continued storage rule is provided by the robust environmental analysis in the Continued Storage GEIS, which goes beyond the analysis supporting the historic temporary storage rule. For example, a finding that a repository for spent fuel will be available by a particular time is no longer necessary because the GEIS analyzes the environmental impacts of failing to secure a repository for an indefinite period into the future.

In addition, the Petitioners assert that the NRC has somehow conflated its obligations 107 New Contention at 9.

108 Id.

under the AEA and NEPA. 109 To the contrary, the NRC specifically clarified that the role of 10 C.F.R. § 51.23 in licensing is strictly limited to satisfying the NRCs NEPA obligation with respect to continued storage. As the Commission explained, this change was motivated by the desire to eliminate confusion regarding the Waste Confidence Decisions role with respect to the AEA and NEPAconfusion which the NRC had observed in the response to the 2010 Waste Confidence Decision. 110 The Federal Register notice for the Continued Storage Rule makes clear that it was promulgated solely to satisfy the agencys NEPA obligations. 111 The NRC is able to continue licensing in the absence of the Waste Confidence findings because it is now satisfying its NEPA obligations through a comprehensive generic environmental impact statement. For the reasons described above, the NRC does not need the Waste Confidence findings regarding disposal to satisfy any other legal obligations prior to licensing.

E. Petitioners Contention Does Not Meet Admissibility Requirements Under 10 C.F.R. § 2.309(f)(1) 112 109 Id.

110 See, e.g., Continued Storage GEIS at D-28-D-31.

111 See GEIS Appendix D at D-33-34 and D-64; 79 Fed. Reg. 56238, 56242 (As a result of preparing its environmental analysis of continuing storage impacts in the GEIS, the NRC found it no longer necessary to have a separate Waste Confidence Decision with findings.); see also Waste ConfidenceContinued Storage of Spent Nuclear Fuel, 78 Fed. Reg. 56,776, 56,780-82 (Sept. 13, 2013).

111 See, e.g., Continued Storage GEIS at, D-10-D-11 & D-71-D-74.

111 See, e.g., 79 Fed. Reg. 56,238, 56,254 (The [Continued Storage] GEIS fulfills the NRC's NEPA obligations and provides a regulatory basis for the rule rather than addressing the agency's responsibilities to protect public health and safety under the Atomic Energy Act (AEA), of 1954 as amended.)

112 The NRC Staff does not contest the timeliness of the New Contention under 10 C.F.R. § 2.309(c). However, Amended and Supplemented contention filed in the Fermi 2 license renewal proceeding is also inadmissible because it is not based on new and materially different information than information previously available. See 10 C.F.R. § 2.309(c)(1)(i)-(iii). Instead, the initial contention cited to the same cases (NRDC v. NRC, New York v. NRC, and Minnesota v. NRC) and made the same substantive claim that the NRC must make waste confidence safety findings in the Fermi 2 relicensing proceeding.

It is well established that contentions must comply with the contention admissibility requirements set forth in 10 C.F.R. § 2.309(f)(1). In accordance with 10 C.F.R. § 2.309(f)(1), an admissible contention must:

(i) provide a specific statement of the legal or factual issue sought to be raised; (ii) provide a brief explanation of the basis for the contention; (iii) demonstrate that the issue raised is within the scope of the proceeding; (iv) demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents, that support the petitioners position and upon which the petitioner intends to rely at the hearing; (vi) . . . provide sufficient information to show that a genuine dispute with the Applicant exists with regard to a material issue of law or fact, including references to specific portions of the application that the petitioner disputes, or in the case when the application is alleged to be deficient, the identification of such deficiencies and supporting reasons for this belief . . . .

10 C.F.R. § 2.309(f)(1). The Commission has emphasized that the rules on contention admissibility are strict by design. 113 Mere notice pleading does not suffice. 114 Failure to comply with any of these requirements is grounds for [the dismissal of a] contention. 115

1. Petitioners New Contention Does Not Raise Issues Material to the NRCs Licensing Decisions and Therefore Is Not Within the Scope of the Proceeding 113 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 24, 54 NRC 349, 358 (2001), pet. for reconsideration denied, CLI-02-01, 55 NRC 1 (2002).

114 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 119 (2006) (internal quotation omitted).

115 PFS, CLI-99-10, 49 NRC at 325.

For the reasons described in detail in Section II, supra, the New Contentions principal claim that the NRC has not made findings required by the AEA regarding SNF management does not raise a material issue relating to findings that the NRC must make to support reactor licensing as required by 10 C.F.R. § 2.309(f)(1)(iv). Because the NRC need not make the findings that Petitioners claim it must, the New Contention is not within the scope of the captioned licensing proceedings as required by 10 C.F.R. § 2.309(f)(1)(iii).

Similarly, while the Petitioners claim that issues raised in their New Contention are material to findings that the NRC must make under the AEA in order to support reactor licensing and license renewal decisions, 116 the AEA does not require the NRC to make explicit findings on post-licensing disposal of spent nuclear fuel. 117 Rather, the NRC has a comprehensive regulatory framework that addresses the management of SNF. 118 When the Commission makes a specific reactor licensing decision, it determines that all applicable standards and requirements of the regulations have been met to support the action. 119 In addition, in taking the reactor licensing action, the NRC implicitly recognizes that it has in place a separate regulatory framework governing the disposal of spent fuel, which will apply to any application for disposal and which will assure the safety of such disposal. This implicit finding that SNF can be disposed of when necessary is supported by an extensive framework of regulatory and technical material, 120 including NRC regulations and guidance documents. 121 It is also supported by the 116 New Contention at 15-18.

117 See supra at 15-18.

118 See supra at 27-29.

119 See, e.g., 10 C.F.R. § 52.97(a)(1)(i).

120 See supra at 27-29.

121 See, e.g., 10 C.F.R. Parts 60 and 63; NUREG-1536, Rev. 1, Final Report, Standard Review Plan for Spent Fuel Dry Storage Systems at a General License Facility; Letter from E. William Brach, Director, NMSS, to Lynnette Hendricks, Director of Plant Support, Nuclear Energy Institute, Interim Staff Guidance-5, Confinement Evaluation (Nov. 30, 1999) (ADAMS Accession No. ML993370589); Interim

longstanding policy 122 that the Commission would not issue licenses if spent fuel could not be safely managed. 123 Contrary to Petitioners assertions, the NRC has consistently interpreted its legal obligations in the Waste Confidence area as derived from NEPA. 124 This interpretation has remained undisturbed by Federal court rulings for over thirty years, including by the D.C. Circuit in New York v. NRC. 125 Therefore, the New Contentions central premise is unsupported, and there is simply no AEA requirement pertaining to SNF disposal that is material to the NRCs reactor licensing decisions in any of the captioned proceedings. Because there is no requirement for such a finding as a condition precedent to reactor licensing, Petitioners proposed Contention must be rejected as not within the scope of the proceeding.

2. Petitioners New Contention Raises No Genuine Dispute with Any Specific Application The Petitioners claim that their New Contention raises a genuine dispute with the applicant regarding whether a license should be granted in the proceedings in which it was filed. 126 They make no attempt, however, to identify relevant sections in any application to allege an insufficiency or omission. Rather, Petitioners purport to generically challenge the legal basis of reactor licensing decisions that the NRC has not yet made. It is well established that an admissible contention must raise a genuine dispute with the license application to demonstrate Staff Guidance-2, Rev.1, Fuel Retrievability (Feb. 22, 2010) (ADAMS Accession No. ML100550861).

The technical feasibility analysis in Appendix B of the Continued Storage GEIS also summarizes the present scientific consensus on the technical feasibility of spent fuel disposal in a geologic repository, explaining that such disposal remains technically feasible.

122 See, e.g., 75 Fed. Reg. at 81,032-33.

123 Supra at 26-27.

124 Id. at 24-26.

125 Id.

126 New Contention at 12.

that a material issue for hearing exists. 127 Assuming that the NRC was required to make explicit findings under the AEA on disposal of SNF to support reactor licensing decisions, it could do so based either on generic determinations or specific material presented in a license application.

Petitioners make no reference, however, to any specific application as 10 C.F.R.

§ 2.309(f)(1)(vi) fundamentally requires.

In sum, the New Contention incorrectly states the legal obligations of the NRC and fails to identify a genuine and material dispute with any license application within the scope of the proceeding. For the foregoing reasons, it should be rejected.

III. Petitioners Do Not Meet the Reopening Standards On September 29, 2014, Petitioners submitted motions to reopen the record in several closed proceedings for the purpose of admitting the proposed contention challenging the purported failure of the NRC to make findings under the AEA regarding the disposal of nuclear waste in these reactor licensing proceedings. 128 In their motion, Petitioners contend that reopening the record and admitting the new contention is necessary to ensure that the NRC fulfills its statutory obligation under the Atomic Energy Act [] to protect public health and safety from the risks posed by irradiated reactor fuel generated during the reactors license term. 129 The Commission has stated that a petitioner seeking to introduce a new contention after the record has been closed should address the reopening standards contemporaneously with a late-filed intervention petition, which must satisfy the standards for both contention admissibility 127 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 709 (2012).

128 Motions to reopen were filed in the following proceedings: Comanche Peak COL, North Anna COL, William States Lee III COL, Callaway LR, Sequoyah LR, South Texas Project LR, and Watts Bar OL. See, e.g., Motion to Reopen the Record for South Texas Project Units 1 & 2 Nuclear Power Plant, at 1-2 (Sept. 29, 2014) (ADAMS Accession No. ML14272A609) (Motion to Reopen).

129 Id. at 2.

and late filing. 130 Section 2.326(a) of the Commissions regulations sets forth the reopening standards, which requires that the motion to reopen must be timely, must address a significant safety or environmental issue, and must demonstrate that a materially different result would have been likely had the newly proffered evidence been considered in the first instance. 131 To demonstrate a significant safety issue, petitioners must establish either that uncorrected

. . . errors endanger safe plant operation, or that there has been a breakdown of the quality assurance program sufficient to raise legitimate doubt as to the plant's capability of being operated safely. 132 Thus, a motion to reopen the record to address a safety issue must essentially challenge a plants capacity to operate safely. 133 Additionally, one or more affidavits showing that the motion to reopen meets the above criteria must accompany the motion under 10 C.F.R. § 2.326(b). Each affidavit must contain statements from competent individuals with knowledge of the facts alleged or experts in disciplines appropriate to the issues raised. 134 Moreover, the motion and its supporting documentation must be strong enough, in the light of any opposing filings, to avoid summary disposition. 135 The Commission has previously held that [t]he burden of satisfying the reopening requirements is a heavy one, and proponents of a reopening motion bear the burden of meeting all of [these] requirements. 136 Thus, [b]are assertions and speculation . . . do not 130 Millstone, CLI-09-5, 69 NRC at 124.

131 10 C.F.R. § 2.326(a)(1)-(3); Oyster Creek, CLI-08-28, 68 NRC at 668.

132 Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-940, 32 NRC 225, 243 (1990).

133 Seabrook, ALAB-940, 32 NRC at 243.

134 10 C.F.R. § 2.326(b). See also Oyster Creek, CLl-09-7, 69 NRC at 291-93.

135 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345, 350 (2005).

136 Oyster Creek, CLI-09-7, 69 NRC at 287 (citations omitted, alteration in original).

supply the requisite support, and a mere showing of a possible violation is not enough. 137 Under section 2.326(d), a motion to reopen that relates to a contention not previously in controversy among the parties must also satisfy the section 2.309(c) requirements for contentions filed after the deadline. However, even though a matter is timely raised and involves significant safety considerations, no reopening of the evidentiary hearing will be required if the affidavits submitted in response to the motion demonstrate that there is no genuine unresolved issue of fact, i.e., if the undisputed facts establish that the apparently significant safety issue does not exist, has been resolved, or for some other reason will have no effect upon the outcome of the licensing proceeding. 138 Insofar as the New Contention is based upon the Commissions issuance of the Continued Storage Rule, the Staff does not dispute the Petitioners claim that their motion to reopen is timely and meets the § 2.309(c) requirements for contentions filed after the deadline to intervene. However, Petitioners do not meet the reopening standards outlined in

§ 2.326(a)(2)-(3) because their proffered contention does not address a significant safety issue, nor does it demonstrate that a materially different result would be likely if the new contention had been raised at the beginning of the proceeding. Moreover, as explained in Section II.E, supra, the Petitioners do not meet the Commissions contention admissibility standards under

§ 2.309(f)(1). Accordingly, the Petitioners motions to reopen the record in these closed proceedings should be denied.

A. Petitioners Do Not Address a Significant Safety Issue Petitioners assert that they address the significant safety issue that the NRC has made no currently valid findings of confidence or reasonable assurance that the hundreds of tons of 137 Id. (citations omitted, first alteration in original).

138 Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-83-41, 18 NRC 104, 108-109 (1983) (citing Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 A.E.C. 520, 523 (1973)).

radioactive spent fuel that will be generated during any reactors 40-year licensing term or subsequent relicensing term can be disposed of safely in a repository. 139 However, Petitioners claims are without merit because, as discussed above, the NRC is not required by the AEA, or any judicial precedent, to make explicit findings regarding the disposal of spent nuclear fuel before issuing a license for power reactors. 140 Additionally, the Commission has previously determined that the NRC is not required under the AEA to determine whether spent fuel will be disposed of before issuing a license for a nuclear reactor. 141 Further, NUREG-2157 specifically addresses and refutes Petitioners claim that the NRC must make such findings under the AEA regarding the disposal of nuclear waste. 142 During the public comment period on the draft Waste Confidence GEIS, the Commission received and considered comments that the holdings in New York, NRDC v. NRC, and Minnesota v. NRC required the NRC to make certain safety and environmental findings before issuing a license. 143 In response to these comments, the Staff explained that NUREG-2157 was prepared to satisfy the Commissions NEPA obligations with respect to continued storage. The Staff further stated that the Commissions AEA obligations, including safety determinations, are separate from its NEPA obligations and will continue to be governed under the license and regulatory controls after the expiration of a facilitys current license, relying on the experience gained over the past 30 years and the current regulatory framework to ensure adequate protection of public health 139 Motion to Reopen at 3.

140 See supra at 13.

141 See supra at 14.

142 See Motion to Reopen at 1-2, 3 (citing New York v. NRC, 681 F.3d 471, at 478; (D.C. Circuit 2012); NRDC v. NRC, 582 F.2d 166, 169 (2nd Cir. 1978); Minnesota v. NRC, 602 F.2d 412, 416 (D.C.

Cir. 1979)).

143 See, e.g., NUREG-2157, Vol. 2, at Section D.2.4 Comments Concerning Miscellaneous Issues, Pages D D-37.

and safety. 144 The Commissions extensive regulatory framework ensures the safety of both continued management and disposal of spent fuel. 145 These regulations include rigorous safety requirements for SNF management that apply to all licenses issued by the NRC, which continue to apply, as appropriate, after the licensed reactor ceases operations. 146 As discussed above, in taking a reactor licensing action, the NRC implicitly recognizes that it has in place a separate regulatory framework governing the disposal of spent fuel, which will apply to any application for disposal and which will assure the safety of such disposal. 147 Moreover, Petitioners do not present a significant safety issue because they have not presented an issue challenging a plants capacity to operate safely in conformance with applicable NRC regulations. 148 Indeed, Petitioners do not identify any specific safety issue that the Commission deems necessary to consider as a condition for issuance of an initial or renewed license in any of these closed proceedings. Instead, Petitioners challenge findings related to the disposal of spent fuel after the end of the license terms for initial and renewed licenses. However, the licensing decisions in these closed proceedings will not include an 144 See id. at D-30. See also id. at D-29. (noting that the decision to issue a license must be predicated on a Commission determination that the licensed activity can be performed in a manner adequate to protect public health and safety).

145 See id. at D-31 (noting that some of the provisions for reactor safety bear directly upon the safe storage of spent fuel after licensed life for operation including 10 C.F.R. § 50.54(bb) and 10 C.F.R. Part 50, Appendix A, Criterion 51).

146 See id. at D-31 (The source of the NRCs determination that the licensed activity, once the license is granted, will not endanger public health is the fact that these facilities will remain under license after the end of the facilitys period of operation, and therefore will still need to meet these safety standards, which are found in 10 CFR Part 50 or 52 for reactors and their spent fuel pools and 10 CFR Part 72 for ISFSIs).

147 See supra at 33. This implicit finding that SNF can be disposed of when necessary is supported by an extensive framework of regulatory and technical material, and a statement of policy that the Commission would not issue licenses if spent fuel could not be safely managed. See supra notes 122-125, at 33.

148 See Seabrook, ALAB-940, 32 NRC at 243.

explicit finding for spent fuel disposal subsequent to the term of the initial or renewed licenses.

Findings required under the AEA for the disposal of nuclear waste subsequent to the end of the initial renewed license term will be addressed in other licensing decisions or regulatory approvals. 149 In sum, Petitioners have not addressed a significant safety issue because they have not presented a safety issue challenging a plants capacity to operate safely in any of these closed proceedings. For the reasons discussed above, Petitioners have not addressed a significant safety issue for reopening, as required under 10 C.F.R. § 2.326(a)(2). Therefore, Petitioners motions to reopen should be denied.

B. Petitioners Have Not Shown that a Materially Different Result Would Be Likely Petitioners also assert that a materially different result would be likely if they prevail on the contention, because the NRC would be required to either, conduct a new safety analysis of the feasibility of spent fuel disposal and the capacity of future spent fuel repositories . . . or deny the license. 150 However, these assertions are without merit because Appendix B of NUREG-2157 specifically analyzes the technical feasibility of a geologic repository and the availability of sufficient repository capacity and concludes that a geologic repository is technically feasible. 151 As demonstrated in Appendix B, the NRC has a strong scientific and technical foundation of knowledge upon which to base conclusions of technical feasibility regarding storage and ultimate disposal of spent nuclear fuel. 152 Petitioners have not demonstrated that any reanalysis of the feasibility of spent fuel disposal and the availability of 149 See NUREG 2157, Vol. 2, at D-371; see also infra at 41.

150 Motion to Reopen at 4.

151 See generally, NUREG-2157, Vol. 1, at Appendix B. Appendix B also states that the timeframe needed to develop a repository is approximately 25 to 35 years and that a repository is likely to become available by the end of the short-term timeframe. Id. at Section B.2.2, B-5. See generally, NUREG-2157 Vol. 1, at Appendix B.

152

. See supra note 105, at 29; note 121, at 33.

sufficient repository capacity would result in something different from the analysis in Appendix B. Therefore, Petitioners have failed to demonstrate that a materially different result would be likely.

Petitioners also assert that the NRC would also be required to prepare an environmental impact statement or environmental assessment addressing the environmental impacts of spent fuel disposal and reasonable alternatives for avoiding those impacts. 153 Further, Petitioners assert that if the NRC fully assesses the safety risks and associated costs of spent fuel storage and disposal, its cost-benefit analysis may lead the NRC to decide not to issue licenses in these closed proceedings. 154 These assertions are also without merit and would not lead to a materially different result.

During the public comment period on the draft GEIS, the Commission received and considered comments that an updated analysis of the environmental impacts of spent fuel disposal is necessary to support the NRCs feasibility determination. 155 In response to these comments, the Staff explained that specific impacts of final disposal of fuel would be addressed in a separate site-specific repository EIS and that the safety and environmental impact of any site that is chosen as a repository would be reviewed during that licensing process. 156 Moreover, any cost-benefit analysis regarding spent fuel disposal would be addressed in these site-specific analyses. Therefore, Petitioners have failed to demonstrate that a materially different result would be likely because a new environmental analysis of the environmental impacts of disposal, including a cost-benefit analysis, would be conducted in a separate 153 Motion to Reopen at 4.

154 Id.

155 See, e.g., NUREG-2157 Vol. 2, at Section D.2.37 Comments Concerning the Feasibility of Geologic Disposal, D-370 - D-385.

156 See id. at D-371-72 (noting that Any repository application must be approved by the NRC.

The NRC review would address the safety and environmental aspects of disposal in a repository during the licensing review. As part of that licensing review, the NRC would address how the repository meets applicable regulations.).

proceeding on an application for disposal, not as part of an individual reactor licensing proceeding.

Finally, Petitioners have not shown that a materially different result would be likely because, as explained above, they have failed to proffer an admissible contention under 10 C.F.R. § 2.309(f)(1). Petitioners argue that the NRC must make explicit findings concerning spent nuclear fuel disposal, but this is not material to the findings the NRC must make in order to issue a reactor license, and, as such, this claim is also not within the scope of these licensing proceedings. 157 In addition, Petitioners raise no genuine dispute with any specific application as required by 10 C.F.R. § 2.309(f)(1)(vi).

As explained above, Petitioners have not raised a significant safety issue warranting reopening of the record in these closed proceedings because, contrary to the Petitioners assertions, the NRC is not required to make findings under the AEA regarding the disposal of nuclear waste before issuing a license in this proceeding. Additionally, Petitioners have not presented a safety issue challenging a plants capacity to operate safely in any of these closed proceedings, and have not shown that a materially different result would have been likely had the newly proffered evidence been considered in the first instance. Petitioners have thus failed to meet the reopening standards in 10 C.F.R. § 2.326. Accordingly, Petitioners motions to reopen the record in these closed proceedings should be denied.

CONCLUSION Each of the Petitioners submissionstheir Petition, New Contention, and Motion to Reopen in certain proceedingsare legally deficient for the reasons explained above. As such, each should be dismissed.

/Signed (electronically) by/

157 10 C.F.R. § 2.309(f)(1)(iii) and (iv).

Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301)415-1392 Brian.Harris@nrc.gov Dated at Rockville, Maryland this 31st day of October, 2014

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

)

NEXTERA ENERGY SEABROOK, L.L.C. ) Docket No. 50-443-LR (Seabrook Station, Unit 1) )

)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (revised), I hereby certify that copies of the foregoing NRC STAFF CONSOLIDATED ANSWER TO PETITIONS TO SUSPEND FINAL REACTOR LICENSING DECISIONS, MOTIONS TO ADMIT A NEW CONTENTION, AND MOTIONS TO REOPEN THE RECORD dated October 31, 2014, have been served upon the Electronic Information Exchange, the NRCs E-Filing System, in the above captioned proceeding, this 31st day of October, 2014.

/Signed (electronically) by/

Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15-D21 Washington, DC 20555 Telephone: (301)415-1392 E-mail: Brian.Harris@nrc.gov Dated at Rockville, Maryland this 31st day of October, 2014

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