ML14122A202

Commission Memorandum and Order (CLI-14-06)

ML14122A202
Person / Time
Site:	Byron, Braidwood
Issue date:	05/02/2014
From:	Annette Vietti-Cook NRC/SECY
To:	NRC/OCM
SECY RAS
References
50-454-LR, 50-455-LR, 50-456-LR, 50-457-LR, ASLBP 13-929-02-LR-BD01, CLI-14-06, RAS 25902
Download: ML14122A202 (9)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Allison M. Macfarlane, Chairman Kristine L. Svinicki George Apostolakis William D. Magwood, IV William C. Ostendorff

)

In the Matter of )

) Docket Nos. 50-454-LR EXELON GENERATION COMPANY, LLC ) 50-455-LR

) 50-456-LR (Byron Nuclear Station, Units 1 and 2; ) 50-457-LR Braidwood Nuclear Station, Units 1 and 2) )

)

CLI-14-06 MEMORANDUM AND ORDER This proceeding stems from the application of Exelon Generation Company, LLC to renew the operating licenses for Byron Nuclear Station, Units 1 and 2 and Braidwood Nuclear Station, Units 1 and 2.1 Before us is the appeal of the Environmental Law and Policy Center (ELPC) of LBP-13-12, an Atomic Safety and Licensing Board decision that denied ELPCs request for hearing and petition to intervene.2 ELPC styles its filing as an appeal pursuant to 10 C.F.R. § 2.311(a), as if it were an appeal of the Boards decision to reject ELPCs intervention petition and hearing request. But ELPCs appeal does not challenge any of the Boards grounds for rejecting ELPCs hearing 1

See Byron Nuclear Station, Units 1 and 2, and Braidwood Nuclear Station Units 1 and 2; Exelon Generation Company, LLC, 78 Fed. Reg. 44,603 (July 24, 2013).

2 See Notice of Appeal of ASLBP No. 13-929-02-LR-BD01 by Environmental Law and Policy Center (Dec. 16, 2013); Appeal of ASLB Denial of ELPCs Petition for Intervention and Hearing Request As Request for Protective Stay (Dec. 16, 2013) (Appeal); LBP-13-12, 78 NRC __ (Nov.

19, 2013) (slip op.).

request and instead requests a protective stay of the proceeding.3 We consider ELPCs submission as a request for a protective stay and, for the reasons outlined below, we deny the request.

I. BACKGROUND On September 23, 2013, ELPC requested a hearing on Exelons license renewal application and submitted two contentions with its petition to intervene.4 In Contention 1, ELPC claimed that Exelons environmental reports for the Byron and Braidwood plants failed to include an analysis of the need for power, resulting in material legal flaws in Exelons environmental analysis of reasonable alternatives to the nuclear stations.5 ELPC argued that the lack of a need-for-power analysis led Exelon to improperly reject potentially better, lower-cost, safer and environmentally preferable energy efficiency, renewable energy resource, and distributed generation alternatives.6 ELPC acknowledged that, under our regulations (specifically, 10 C.F.R. § 51.53(c)(2)), license renewal applicants need not include a need-for-power discussion in their environmental reports. ELPC argued, however, that section 51.53(c)(2) improperly constrained the alternatives analysis, in clear violation of the National Environmental Policy Act (NEPA).7 In Contention 2, ELPC claimed that the proposed license renewals are premature, given that the current operating licenses for the Byron and Braidwood units will not expire for another eleven to fourteen years.8 3

See Appeal at 1, 3.

4 See Hearing Request and Petition to Intervene by the Environmental Law and Policy Center (Sept. 23, 2013) (Petition), Ex. 4, Contentions Included with Petition to Intervene by the Environmental Law and Policy Center, at 1-6 (Contentions).

5 See Contentions at 1-4.

6 See id. at 2.

7 See id.

8 See id. at 4-6.

In LBP-13-12, the Board rejected both contentions, finding that each impermissibly challenged an NRC regulation, fell beyond the scope of the renewal proceeding, and failed to meet contention pleading requirements.9 The Board explained that absent a rule waiver, NRC rules and regulations are not subject to attack in an adjudicatory proceeding, and that ELPC had neither sought a rule waiver nor pointed to any special circumstances that might warrant one.10 The Board further explained that ELPCs sole remedy to challenge the lawfulness of a regulation is to file a petition for rulemaking with the Commission.11 In addition, the Board concluded that the contentions lacked even minimal factual support for their underlying claims and failed to identify a genuine dispute with the applicant on a material issue.12 Having found both contentions inadmissible, the Board denied ELPCs intervention petition and terminated the proceeding before it.13 In its appeal, ELPC addresses only Contention 1. We address the appeal below.

II. ELPCS APPEAL While styled an appeal of the Boards decision, ELPC nowhere contests any of the Boards grounds for rejecting its contentions. Instead, ELPC characterizes its appeal as a petition for a protective stay of the license renewal proceeding.14 Specifically, ELPC requests a stay to preserve ELPCs right to intervene in the [Byron and Braidwood] license renewal proceeding while it pursues the [Boards] recommended course of filing a petition for 9

LBP-13-12, 78 NRC at __ (slip op. at 3-7).

10 See id. at __ (slip op. at 5-7); see also 10 C.F.R. § 2.335.

11 See LBP-13-12, 78 NRC at __ (slip op. at 4) (citing 10 C.F.R. § 2.802).

12 See id. at __ (slip op. at 6-7) (citing contention admissibility requirements of 10 C.F.R.

§ 2.309(f)(1)(v)-(vi)).

13 See id. at __ (slip op. at 8).

14 See Appeal at 3.

rulemaking.15 ELPC acknowledges that the proper avenue for challenging an NRC rule is to file a petition for rulemaking, as the Board described.16 ELPC goes on to state that it plans to file a rulemaking petition to request the NRC to require a cost/benefit need for power analysis for license renewals.17 ELPC stresses that while it is not currently asking the NRC to suspend its review of the license renewal application, it may wish to seek a suspension of the proceeding later, under 10 C.F.R. § 2.802(d).18 Section 2.802(d) allows a rulemaking petitioner the opportunity to request a suspension of a licensing proceeding in which the petitioner is a participant, pending disposition of the rulemaking petition.19 Critically, however, ELPC has not yet filed a petition for rulemaking. It merely seeks a protective stay to preserve an opportunity to later request a suspension of the proceeding under § 2.802(d) if its petition for rulemaking is pending at the time that the NRC intends to issue its final decision on the renewal applications.20 ELPC also requests that the NRC defer any final decision on the renewal application until the agency has made a final ruling on ELPCs forthcoming rulemaking [petition] and has provided sufficient 15 Id.

16 See id. at 1-2.

17 See id. at 2.

18 Id. at 3.

19 See 10 C.F.R. § 2.802(d).

20 See ELPC Reply in Support of Its Appeal of the ASLB Denial of ELPCs Petition for Intervention and Hearing Request (Jan. 2, 2014), at 1-4 (Reply). Exelon moved to strike ELPCs reply as unauthorized. See Exelons Motion to Strike Environmental Law & Policy Centers Unauthorized Reply (Jan. 13, 2014); see also ELPCs Answer Opposing Exelons Motion to Strike ELPCs Reply (Jan. 23, 2014); NRC Staff Answer Opposing Environmental Law and Policy Center Motion for Leave to File Reply (Feb. 3, 2014). Section 2.311 does not contemplate replies. We have considered ELPCs reply only as additional clarification of arguments presented in the appeal, and, specifically, its identification of the relief it seeks (namely, a protective stay).

time for ELPC to raise its Contention 1 that Exelon has not conducted the need for power analysis necessary under NEPA.21 We deny the request for a protective stay. What ELPC seeks is to keep the door to the adjudicatory proceeding open although no contention remains before the Boardin effect, to hold the proceeding in abeyance indefinitely pending potential future events. But ELPCs request is inconsistent with our longstanding interest in sound case management and regulatory finality and would be unfair to the other parties.22 Under our practice, once all contentions have been decided, the contested [adjudicatory] proceeding is terminated.23 We generally have denied requests to hold adjudicatory proceedings in abeyance pending the outcome of other Commission actions.24 Nor do our rules contemplate motions filed as a placeholder for a further motion to be filed later.25 And rarely do we grant an indefinite or very lengthy stay . . .

on the mere possibility of change.26 Here, ELPC has not filed a rulemaking petition even though it has known since at least the date of the Boards decision (November 19, 2013) that rulemaking is the appropriate avenue for challenging an NRC rule.27 Nor does ELPC suggest when it plans to submit its petition for rulemaking. We are not inclined to issue a protective stay based on ELPCs bare assertion that 21 See Appeal at 3.

22 See, e.g., Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2), CLI-01-27, 54 NRC 385, 391 (2001).

23 See Virginia Electric and Power Co. d/b/a Dominion Virginia Power and Old Dominion Electric Cooperative (North Anna Power Station, Unit 3), CLI-12-14, 75 NRC 692, 699-700 (2012).

24 See Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 10 & n.36 (2010).

25 See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 120 (2009).

26 See Petition for Rulemaking to Amend 10 C.F.R. § 54.17(c), CLI-11-1, 73 NRC 1, 4 (2011).

27 See Florida Power & Light Co. (Turkey Point Power Plant, Unit Nos. 3 & 4), DD-82-2, 15 NRC 1343, 1345 (1982) (section 2.802(d) suspension request inapplicable where no petition for rulemaking before the Commission).

it intends to file a petition for rulemaking at some unknown time in the future.28 Moreover, ELPC does not address the standards weighed for licensing proceeding suspension requests29 or stay requests,30 and it otherwise provides insufficient reason for holding the adjudicatory proceeding open.

ELPC can raise its concerns through established agency processes. As ELPC describes, a final decision on the Byron and Braidwood license renewal application is not expected before August 2015.31 It may be in ELPCs interest, therefore, to file its petition for rulemaking without delay.

We leave for another day any arguments regarding the propriety or merits of a request under section 2.802(d) to suspend the Byron and Braidwood licensing proceeding pending disposition of a rulemaking petition, or for some other form of relief. No section 2.802(d) request is before us, no rulemaking petition is pending, and a decision on the renewal 28 Cf. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-09-10, 69 NRC 521, 527-28 (2009) (ensuring that results of judicial review of rulemaking petition denial would be implemented in a meaningful way where state timely ha[d] taken every conceivable procedural step to assure that the ultimate outcome of its rulemaking petition . . . would inform the NEPA analysis of the licensing proceedings).

29 See, e.g., Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Station), CLI-12-6, 75 NRC 352, 373 (2012); Union Electric Co. (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141,173-74 (2011).

30 When considering stays or other forms of temporary injunctive relief, we have applied the stay factors outlined in 10 C.F.R. § 2.342(e), which restate commonplace principles of equity.

See Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station),

CLI-06-8, 63 NRC 235, 237 n.4 (2008); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-13, 67 NRC 396, 399 (2008) (applying section 2.342(e) standards to motion to stay issuance of license); see also 10 C.F.R. § 2.342(e) (regarding requests to stay presiding officer decisions).

31 See Appeal at 3; Byron and Braidwood Nuclear Stations, Units 1 and 2: License Renewal Application; License Renewal Review Schedule, available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/byron-braidwood.html (last visited Apr. 21, 2014) (reflecting the Staffs current estimated review schedule, which provides for a decision on the application by the Director, Office of Nuclear Reactor Regulation, in August 2015).

application is not expected for at least another year and a half. 32 The only matter before us today is ELPCs request for a protective stay, which we deny.33 IT IS SO ORDERED.

For the Commission

[NRC Seal]

/RA/

Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland this 2nd day of May 2014.

32 In this regard, ELPCs request that we defer a decision on the license renewal applications pending disposition of its forthcoming rulemaking and other potential events is premature.

See Appeal at 3. To the extent that this relief is independent of ELPCs request for a protective stay, we deny it on this basis. See Oyster Creek, CLI-08-13, 67 NRC at 399-400; Callaway, CLI-11-5, 74 NRC at 163.

33 Exelon and the Staff both also argue that ELPCs stay request was filed out of time. Exelons Answer Opposing Appeal of ASLB Denial of ELPCs Petition for Intervention and Hearing Request as Request for Protective Stay (Dec. 26, 2013), at 5; NRC Staff Answer to Environmental Law and Policy Center Appeal of LBP-13-12 and Request for Protective Stay (Dec. 26, 2013), at 7. Given our decision to deny ELPCs request, we need not reach questions regarding its timeliness.

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

)

EXELON GENERATION COMPANY, LLC )

)

BYRON NUCLEAR STATION, UNITS 1 AND 2 ) Docket Nos. 50-454-LR, 50-455-LR, BRAIDWOOD NUCLEAR STATION, UNITS 1 ) 50-456-LR AND 50-457-LR AND 2 (License Renewal) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-14-06) have been served upon the following persons by Electronic Information Exchange and by electronic mail as indicated by an asterisk*.

Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Hearing Docket E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission.

Atomic Safety and Licensing Board Panel Justin Vickers, Esq.

Mail Stop T-3F23 Environmental Law and Policy Center Washington, DC 20555-0001 35 East Wacker, Suite 1600 Chicago, IL 60601 Paul S. Ryerson, Chairman E-mail: jvickers@elpc.org Administrative Judge E-mail: paul.ryerson@nrc.gov Exelon Generation Company, LLC Dr. Paul B. Abramson Morgan, Lewis & Bockius, LLP Administrative Judge 1111 Pennsylvania Ave., NW E-mail: paul.abramson@nrc.gov Washington, DC 20004 Donald Ferraro, Esq.

• Dr. Gary S. Arnold Ray P. Kuyler, Esq.

Administrative Judge Alex Polonsky, Esq.

E-mail: gary.arnold@nrc.gov Kathryn M. Sutton, Esq.

E-mail:

Nicholas Sciretta donald.ferraro@exeloncorp.com Law Clerk rkuyler@morganlewis.com E-mail: Nicholas.Sciretta@nrc.gov apolonsky@morganlewis.com ksutton@morganlewis.com

2 Docket Nos. 50-454-LR, 50-455-LR, 50-456-LR AND 50-457-LR COMMISSION MEMORANDUM AND ORDER (CLI-14-06)

U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15D21 Washington, DC 20555-0001 Christina England, Esq.

Anita Ghosh, Esq.

Edward Williamson, Esq.

Mitzi Young, Esq.

John Tibbetts, Paralegal E-mail:

christina.england@nrc.gov anita.ghosh@nrc.gov john.tibbetts@nrc.gov edward.williamson@nrc.gov mitzi.young@nrc.gov OGC Mail Center: OGCMailCenter@nrc.gov

[Original signed by R. Giitter ]

Office of the Secretary of the Commission Dated at Rockville, Maryland, this 2nd day of May, 2014