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| issue date = 05/02/2014
| issue date = 05/02/2014
| title = Commission Memorandum and Order (CLI-14-06)
| title = Commission Memorandum and Order (CLI-14-06)
| author name = Vietti-Cook A L
| author name = Vietti-Cook A
| author affiliation = NRC/SECY
| author affiliation = NRC/SECY
| addressee name =  
| addressee name =  
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=Text=
=Text=
{{#Wiki_filter:UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION  
{{#Wiki_filter: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.).


COMMISSIONERS:
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
Allison M. Macfarlane, Chairman Kristine L. Svinicki George Apostolakis William D. Magwood, IV William C. Ostendorff
See Appeal at 1, 3.
 
In the Matter of EXELON GENERATION COMPANY, LLC 
 
(Byron Nuclear Station, Units 1 and 2; Braidwood Nuclear Station, Units 1 and 2)
) ) ) )
)
)
) )  Docket Nos. 50-454-LR                      50-455-LR 50-456-LR 50-457-LR CLI-14-06 MEMORANDUM AND ORDER This proceeding stems from the applicati on 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 ELPC's 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 Board's decision to reject ELPC's intervention petition and hearing request. But ELPC's "appeal" does not challenge any of the Board's grounds for rejecting ELPC's 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 ELPC's 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 ELPC's 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 Exelon's license renewal application and submitted two contentions with its petition to intervene.
4 In Contention 1, ELPC claimed that Exelon's environmental reports for the Byron and Braidwood plants failed to include an analysis of the need for power, resulting in "material legal flaws" in Exelon's 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).
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.
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.
6 See id. at 2.
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.
7 See id.
10 The Board further explained that ELPC's "sole remedy" to challenge the lawfulness of a regulation is to file a petition for rulemaking with the Commission.
8 See id. at 4-6.
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 ELPC's intervention petition and terminated the proceeding before it.
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.
13 In its appeal, ELPC addresses only Contention 1. We address the appeal below. II. ELPC'S APPEAL While styled an "appeal" of the Board's decision, ELPC nowhere contests any of the Board's grounds for rejecting its contentions. Instead, ELPC characterizes its appeal as a "petition for a protective stay" of the license renewal proceeding.
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
14 Specifically, ELPC requests a stay to "preserve ELPC's right to intervene in the [Byron and Braidwood] license renewal proceeding while it pursues the [Board's] recommended course of filing a petition for 9 LBP-13-12, 78 NRC at __ (slip op. at 3-7).
LBP-13-12, 78 NRC at __ (slip op. at 3-7).
10 See id. at __ (slip op. at 5-7);
10 See id. at __ (slip op. at 5-7); see also 10 C.F.R. § 2.335.
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).
11 See LBP-13-12, 78 NRC at __ (slip op.
12 See id. at __ (slip op. at 6-7) (citing contention admissibility requirements of 10 C.F.R.
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)).
§ 2.309(f)(1)(v)-(vi)).
13 See id. at __ (slip op. at 8).
13 See id. at __ (slip op. at 8).
14 See Appeal at 3. rulemaking."
14 See Appeal at 3.
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."
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.
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).
16 See id. at 1-2.
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.
17 See id. at 2.
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.
18 Id. at 3.
20 ELPC also requests that the NRC defer any final decision on the renewal application until the agency has made a "final ruling on ELPC's forthcoming rulemaking [petition]" and has provided "sufficient 15 Id. 16 See id. at 1-2.
19 See 10 C.F.R. § 2.802(d).
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).
20 See ELPC Reply in Support of Its Appeal of the ASLB Denial of ELPC's Petition for Intervention and Hearing Request (Jan. 2, 2014), at 1-4 (Reply). Exelon moved to strike ELPC's reply as unauthorized. See Exelon's Motion to Strike Environmental Law & Policy Center's Unauthorized Reply (Jan. 13, 2014); see also ELPC's Answer Opposing Exelon's Motion to Strike ELPC's 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 ELPC's 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 Board-in effect, to hold the proceeding in abeyance indefinitely pending potential future events. But ELPC's request is inconsistent with our longstanding interest in sound case management and regulatory finality and would be unfair to the other parties.
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 . . .
22 Under our practice, "once all contentions have been decided, the contested [adjudicatory] proceeding is terminated."
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.
23 We generally have denied requests to hold adjudicatory proceedings in abeyance "pending the outcome of other Commission actions."
22 See, e.g., Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2), CLI-01-27, 54 NRC 385, 391 (2001).
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 Board's 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 ELPC's 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).
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.  
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).
(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).
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).
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.
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).
28  Moreover, ELPC does not address the standards weighed for licensing proceeding suspension requests 29 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 ELPC's 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/renew al/applications/byron-braidwood.html (last visited Apr. 21, 2014) (reflecting the Staff's 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 ELPC's 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, ELPC's 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 ELPC's 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 ELPC's stay request was filed out of time. Exelon's Answer Opposing Appeal of ASLB Denial of ELPC's 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 ELPC's 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 Adjudication U.S. Nuclear Regulatory Commission Washington, DC  20555-0001
 
E-mail:
ocaamail@nrc.gov
 
U.S. Nuclear Regulatory Commission.
Atomic Safety and Licensing Board Panel
 
Mail Stop T-3F23 Washington, DC  20555-0001
 
Paul S. Ryerson, Chairman
 
Administrative Judge
 
E-mail:
paul.ryerson@nrc.gov Dr. Paul B. Abramson Administrative Judge
 
E-mail:
paul.abramson@nrc.gov Dr. Gary S. Arnold Administrative Judge E-mail:
gary.arnold@nrc.gov Nicholas Sciretta
 
Law Clerk
 
E-mail:  Nicholas.Sciretta@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission
 
Mail Stop O-16C1 Washington, DC  20555-0001
 
Hearing Docket E-mail:  hearingdocket@nrc.gov
 
Justin Vickers, Esq.
Environmental Law and Policy Center 35 East Wacker, Suite 1600 Chicago, IL 60601


E-mail: jvickers@elpc.org
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).


Exelon Generation Company, LLC Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Ave., NW Washington, DC  20004
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
Donald Ferraro, Esq.
[NRC Seal]
* Ray P. Kuyler, Esq.
                                                              /RA/
Alex Polonsky, Esq. Kathryn M. Sutton, Esq.  
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:
E-mail:
donald.ferraro@exeloncorp.com rkuyler@morganlewis.com apolonsky@morganlewis.com ksutton@morganlewis.com
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)
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.
U.S. Nuclear Regulatory Commission Office of the General Counsel  
 
Mail Stop O-15D21 Washington, DC 20555-0001 Christina England, Esq.  
 
Anita Ghosh, Esq.
Anita Ghosh, Esq.
Edward Williamson, Esq.  
Edward Williamson, Esq.
 
Mitzi Young, Esq.
Mitzi Young, Esq. John Tibbetts, Paralegal E-mail:
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:
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
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}}
[Original signed by R. Giitter                   ]       Office of the Secretary of the Commission  
 
Dated at Rockville, Maryland,  
 
this 2nd day of May, 2014}}

Latest revision as of 20:34, 5 February 2020

Commission Memorandum and Order (CLI-14-06)
ML14122A202
Person / Time
Site: Byron, Braidwood  Constellation icon.png
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)
v • d • e


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

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