ML12199A376: Difference between revisions
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proceeding and has provided three admissible National Environmental Policy Act (NEPA)-related contentions. See | proceeding and has provided three admissible National Environmental Policy Act (NEPA)-related contentions. See | ||
[MCE] Hearing Request and Petition to Intervene in License Renewal Proceeding for Callaway Nuclear Power Plant (Apr. 24, 2012) at 1-2 [hereinafter MCE | |||
Hearing Request]. Following the NRC Secretary's April 27 referral of the MCE petition, the | Hearing Request]. Following the NRC Secretary's April 27 referral of the MCE petition, the | ||
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environmental contentions were admissible. See | environmental contentions were admissible. See | ||
[MCE] Reply to Ameren's and NRC Staff's Oppositions to Hearing Request and Petition to Intervene in License Renewal Proceeding for | |||
Callaway Nuclear Power Plant (May 29, 2012) at 1 [hereinafter MCE Reply]. Thereafter, during | Callaway Nuclear Power Plant (May 29, 2012) at 1 [hereinafter MCE Reply]. Thereafter, during | ||
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Appeals for the District of Columbia Circuit in New York v. NRC , No. 11-1045 (D.C. Cir. June 8, 2012). See | Appeals for the District of Columbia Circuit in New York v. NRC , No. 11-1045 (D.C. Cir. June 8, 2012). See | ||
[MCE's] Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Callaway Nuclear Power Plant (July 9, 2012) at 4 | |||
[hereinafter Callaway New Contention Motion]. Similar motions to admit a new contention were | [hereinafter Callaway New Contention Motion]. Similar motions to admit a new contention were | ||
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UNION ELECTRIC COMPANY D/B/A AmerenUE ) | UNION ELECTRIC COMPANY D/B/A AmerenUE ) | ||
) | ) | ||
) Docket No. 50-483-LR (Callaway Power Plant, Unit 1) ) ) | ) Docket No. 50-483-LR (Callaway Power Plant, Unit 1) ) ) | ||
(License Renewal) ) | (License Renewal) ) | ||
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Email: showmenocwip@gmail.com dcurran@harmoncurran.com hrobertson@greatriverslaw.org | Email: showmenocwip@gmail.com dcurran@harmoncurran.com hrobertson@greatriverslaw.org | ||
[Original signed by Herald M. Speiser] Office of the Secretary of the Commission | |||
Dated at Rockville, Maryland | Dated at Rockville, Maryland | ||
this 17 th day of July, 2012}} | this 17 th day of July, 2012}} |
Revision as of 22:36, 29 April 2019
ML12199A376 | |
Person / Time | |
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Site: | Callaway |
Issue date: | 07/17/2012 |
From: | Bollwerk G P, Froehlich W J, Trikouros N G Atomic Safety and Licensing Board Panel |
To: | |
SECY RAS | |
References | |
50-483-LR, ASLBP 12-919-06-LR-BD01, LBP-12-15, RAS 23014 | |
Download: ML12199A376 (32) | |
Text
UNITED STATES OF AMERICALBP-12-15 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before the Licensing Board:
G. Paul Bollwerk, III, Chair William J. Froehlich Nicholas G. Trikouros In the Matter of Union Electric Company (Callaway Plant, Unit 1)
Docket No. 50-483-LR ASLBP No. 12-919-06-LR-BD01
July 17, 2012 MEMORANDUM AND ORDER (Ruling on Standing and Hearing Petition Contention Admissibility)
By application dated December 15, 2011, Union Electric Company, d/b/a Ameren Missouri (Ameren), seeks a twenty-year extension of the October 18, 2024 expiration date on
the 10 C.F.R. Part 50 operating license for its Callaway Plant, Unit 1, located in Callaway
County, Missouri. See Ameren, License Renewal Application, Callaway Plant Unit 1, Facility Operating License No. NPF-30, at 1.1-1 (Dec. 15, 2011) (ADAMS Accession
No. ML113530372). Pending with this Licensing Board is a hearing request/intervention petition
submitted by petitioner Missouri Coalition for the Environment (MCE) challenging certain
aspects of the environmental report (ER) Ameren also submitted in support of its renewal
application. Specifically, MCE's petition contests the ER's failure to include (1) information
regarding the impacts of, and status of compliance with, a recent agency order outlining
required responses to the events at the Fukushima Daiichi facility following the March 2011
earthquake and tsunami in Japan; and (2) an adequate discussion of wind as an alternative
energy source. Both Ameren and the Nuclear Regulatory Commission (NRC) staff assert that none of the three contentions proffered by MCE regarding these subjects is admissible, so that its hearing request should be denied.
For the reasons set forth below, we conclude that although MCE has established its standing as of right to intervene in this proceeding, none of the contentions set forth in its
hearing petition is admissible.
I. BACKGROUND Subsequent to the December 2011 submission of Ameren's license renewal application for Callaway Unit 1 and in response to a February 16, 2012 hearing opportunity notice, see Renewal of Facility Operating License No. NPF-30, Union Electric Company, Callaway Plant, Unit 1, 77 Fed. Reg. 11,173 (Feb. 24, 2012), on April 24, 2012, MCE submitted a hearing
request in which MCE maintains that it has standing to intervene in this license renewal
proceeding and has provided three admissible National Environmental Policy Act (NEPA)-related contentions. See
[MCE] Hearing Request and Petition to Intervene in License Renewal Proceeding for Callaway Nuclear Power Plant (Apr. 24, 2012) at 1-2 [hereinafter MCE
Hearing Request]. Following the NRC Secretary's April 27 referral of the MCE petition, the
Atomic Safety and Licensing Board Panel's Chief Administrative Judge established this
Licensing Board to rule upon the validity of that hearing request and conduct an adjudicatory
proceeding on the merits of any admissible contentions. See Memorandum from Andrew L.
Bates, Acting Secretary of the Commission, to E. Roy Hawkens, Chief Administrative Judge (Apr. 27, 2012); Union Electric Company; Establishment of Atomic Safety and Licensing Board, 77 Fed. Reg. 26,792 (May 7, 2012).
By filings dated May 21, 2012, although not contesting MCE's standing as of right to intervene, both Ameren and the staff opposed the grant of the MCE petition for failing to provide an admissible contention. See Ameren's Answer Opposing the [MCE] Hearing Request and Petition to Intervene (May 21, 2012) at 1-2 & n.3 [hereinafter Ameren Answer]; NRC Staff's
Answer to [MCE] Hearing Request and Petition to Intervene (May 21, 2012) at 1 [hereinafter
Staff Answer]. In a reply submitted on May 29, 2012, MCE reasserted that all three of its
environmental contentions were admissible. See
[MCE] Reply to Ameren's and NRC Staff's Oppositions to Hearing Request and Petition to Intervene in License Renewal Proceeding for
Callaway Nuclear Power Plant (May 29, 2012) at 1 [hereinafter MCE Reply]. Thereafter, during
a half-day initial prehearing conference held in Fulton, Missouri, on June 7, 2012, the Board
entertained arguments from the participants regarding the admissibility of the three contentions.
See Tr. at 1-171.
II. ANALYSISA.MCE's Standing1.Standards Governing Standing
For an individual or organization to be deemed a "person whose interest may be affected by the proceeding" under Atomic Energy Act (AEA) section 189a, 42 U.S.C. § 2239(a)(1)(A), so
as to have standing "as of right" such that party status can be granted in an agency adjudicatory
proceeding, the intervention petition must include a statement of (1) the petitioner's name, address, and telephone contact information; (2) the nature of the petitioner's right under the
AEA to be made a party; (3) the nature of the petitioner's interest in the proceeding, whether
property, financial or otherwise; and (4) the possible effect of any decision or order that might be
issued in the proceeding on the petitioner's interest. See 10 C.F.R. § 2.309(d)(1)(i)-(iv). In assessing this information in a section 189a adjudicatory proceeding to determine whether the
petitioner has established its standing, the Commission generally applies contemporaneous judicial standing concepts, inquiring whether the participant has established that (1) it has suffered or will suffer a distinct and palpable injury that constitutes injury-in-fact within the zones
of interest arguably protected by the governing statutes (e.g., the AEA, NEPA, 42 U.S.C.
§ 4321, et seq.); (2) the injury is fairly traceable to the challenged action; and (3) the injury is
likely to be redressed by a favorable decision. See Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 6 (1996). An entity may seek to demonstrate its standing
to intervene on behalf of its members, i.e., representational standing, but that entity must then
show it has an individual member who can fulfill all the necessary standing elements and who
has authorized the entity to represent his or her interests. See Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 163 (2000).
Finally, in assessing a petition submitted in a 10 C.F.R. Part 54 power reactor license renewal proceeding to determine whether these elements are met, which a licensing board must
do even if there are no objections to a petitioner's standing, the board may apply the proximity
presumption. Under this presupposition, for an entity seeking representational standing, the
standing elements associated with causation are deemed fulfilled if a member of the entity that
is seeking representational standing resides or has significant contacts in an area within a fifty-
mile radius of the facility in question.
1 1 From the earliest 10 C.F.R. Part 54 contested operating license renewal (OLR) proceedings, licensing boards consistently have applied the same 50-mile proximity
presumption that has been employed in Part 50 reactor construction permit and operating
license (OL) cases and in Part 52 early site permit and combined license (COL) proceedings.
See, e.g., Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-6, 53 NRC 138, 150 (applying proximity presumption in reactor OLR proceeding), aff'd on other grounds , CLI-01-17, 54 NRC 3, 26 n.20 (2001) (Commission need not reach question of whether proximity presumption applies to reactor OLR proceedings). Although the
Commission has never explicitly endorsed utilizing this presumption in an OLR proceeding, in
the context of a COL hearing it did cite favorably to a licensing board's application of the
presumption in a reactor life extension case. See Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 n.15 (2009). 2.Ruling on Standing DISCUSSION: MCE Hearing Request at 1-2; Ameren Answer at 2 n.3; Staff Answer at 4-5; MCE Reply at 1; Tr. at 6.
RULING: Based on the showing provided in MCE's petition and the five accompanying affidavits of individuals in which each asserts that he or she (1) resides from between fifteen
and thirty-five miles of the Callaway facility; and (2) authorizes MCE to represent his or her
interests in challenging the Ameren renewal application because it poses safety or
environmental concerns, 2 both applicant Ameren and the staff have indicated that they do not contest MCE's representational standing to intervene in this proceeding. After assessing the
petition and these affidavits under the standards set forth in section II.A.1 above, we agree that
MCE as an organization has established its representational standing to intervene as of right in
accord with 10 C.F.R. § 2.309(d)(1).
B.Admissibility of MCE's Contentions With MCE having established its standing, we turn to the question of the admissibility of its three proffered contentions. 1.Contention Admissibility Standards
Section 2.309(f)(1) of the Commission's rules of practice specifies the requirements that must be met if a contention is to be deemed admissible. Specifically, a contention must provide
(1) a specific statement of the legal or factual issue sought to be raised; (2) a brief explanation
of its basis; (3) a concise statement of the alleged facts or expert opinions, including references
to specific sources and documents, that support the petitioner's position and upon which the 2 See MCE Hearing Request, exh. 1A (Declaration of Ruth Schaefer (Apr. 23, 2012)); id.
exh. 1B (Declaration of Mary A. Mosley (Apr. 13, 2012)); id.
exh. 1C (Declaration of Mark Haim (Apr. 23, 2012)); id.
exh. 1D (Declaration of Carla T. Klein (Apr. 23, 2012)); id.
exh. 1E (Declaration of Patrick J. Wilson (Apr. 23, 2012)). petitioner intends to rely at hearing; and (4) sufficient information demonstrating that a genuine dispute 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. See 10 C.F.R. § 2.309(f)(1)(i), (ii), (v), (vi). In addition, the petitioner must demonstrate that the issue raised in the contention is both "within the scope of the proceeding" and "material
to the findings the NRC must make to support the action that is involved in the proceeding." Id.
§ 2.309(f)(1)(iii), (iv). Failure to comply with any of these requirements is grounds for dismissing
a contention. See South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI-10-1, 71 NRC 1, 7 & n.33 (2010).
Moreover, as is pertinent to this proceeding, NRC case law has further developed these requirements, as summarized below:a.Challenges Outside Scope of Proceeding All proffered contentions must be within the scope of the proceeding as defined by the Commission in its initial hearing notice and directive referring the proceeding to the Licensing
Board. See 10 C.F.R. § 2.309(f)(1)(iii); Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-00-23, 52 NRC 327, 329 (2000); Duke Power Co.(Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790-91 (1985). As a
consequence, any contention that falls outside the specified scope of the proceeding must be
rejected. See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC
, (slip op. at 11) (Oct. 12, 2011).b.Materiality To be admissible, the regulations require that all contentions assert an issue of law or fact that is material to the outcome of a licensing proceeding, meaning that the subject matter of the contention must impact the grant or denial of a pending license application. See 10 C.F.R.
§ 2.309(f)(1)(iv); see Luminant Generation Co. LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), CLI-12-07, 75 NRC
, (slip op. at 10-11) (Mar. 16, 2012). This requirement of materiality often dictates that any contention alleging deficiencies or errors in an application also
indicate some significant link between the claimed deficiency and either the public health and
safety or the environment. See Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61, 75-76 (1996), rev'd in part on other grounds , CLI-96-7, 43 NRC 235 (1996); see also Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), LBP-02-23, 56 NRC 413, 439-41 (2002), petition for review denied
, CLI-03-12, 58 NRC 185, 191 (2003).c.Need for Adequate Factual Information or Expert Opinion It is the petitioner's obligation to present the factual allegations and/or expert opinion necessary to support its contention. See 10 C.F.R. § 2.309(f)(1)(v); USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006). While a board may appropriately view a
petitioner's supporting information in a light favorable to the petitioner, failure to provide such
information regarding a proffered contention requires that the contention be rejected. See Ariz.Pub. Serv. Co. (Palo Verde Nuclear Stations, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991). Neither speculation nor conclusory assertions, even by an expert, alleging that a matter
fails to satisfy the AEA or NEPA will suffice to allow the admission of a proffered contention.
See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC , n.139 (slip op. at 34 n.139) (Oct. 12, 2011); Amer. Centrifuge Plant , CLI-06-10, 63 NRC at 472; Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003). If a petitioner neglects to provide the requisite support for its contentions, it is not within
the board's power to make assumptions or draw inferences that favor the petitioner, nor may the board supply information that is lacking. See Crow Butte Res., Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 553 (2009); Palo Verde , CLI-91-12, 34 NRC at 155. Likewise, simply attaching material or documents as a basis for a contention, without setting forth an
explanation of that information's significance, is inadequate to support the admission of the
contention. See Fansteel , CLI-03-13, 58 NRC at 204-05. d.Insufficient Challenges to the Application All properly formulated contentions must focus on the license application in question, challenging either specific portions of, or alleged omissions from, the application (including the
safety analysis report/technical report and the ER) so as to establish there is a genuine dispute
with the application on a material issue of law or fact. See 10 C.F.R. § 2.309(f)(1)(vi). Any contention that fails directly to controvert the application or that mistakenly asserts the
application does not address a relevant issue will be dismissed. See N. Trend Expansion Project , CLI-09-12, 69 NRC at 557; Amer. Centrifuge Plant , CLI-06-10, 63 NRC at 462-63; see also Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-06, 75 NRC
, (slip op. at 25) (Mar. 8, 2012); Nextera Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC
, (slip op. at 54-57) (Mar. 8, 2012), petition for review filed sub nom.
Beyond Nuclear v. NRC , No. 12-1561 (1st Cir. May 7, 2012). Similarly, a petitioner that fails to provide sufficient factual or expert support for the claims in its contention in contravention of
section 2.309(f)(1)(v), see supra section II.B.1.c, also may have failed to show a genuine dispute with the application as required under section 2.309(f)(1)(vi). See FirstEnergy Nuclear Operating Co., (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-08, 75 N.R.C.
, (slip op. at 15, 16) (Mar. 17, 2012); see also Comanche Peak , CLI-12-07, 75 NRC at
& n.43 (slip op. at 13 & n.43). 2.MCE's Contentionsa.Contention 1: Environmental Report Lacks Information Regarding Proposed Modifications to Callaway Facility CONTENTION: The Environmental Report fails to satisfy 10 C.F.R. § 51.53(c)(2) because it does not include information
about Ameren's plans to modify the Callaway facility in response
to post-Fukushma enforcement order EA-12-049 (March 12, 2012), Order Modifying Licenses With Regard to Requirements for
Mitigation Strategies for Beyond-Design-Basis External Events (Effective Immediately) ("Order EA-12-049") (ML12056A045). As
also required by 10 C.F.R. § 51.53(c)(2), the Environmental
Report must include a discussion of a reasonable array of
alternative measures for modifying the facility in accordance with
Order EA-12-049.
DISCUSSION: MCE Hearing Petition at 2-6; Ameren Answer at 11-17; Staff Answer at 11-19; MCE Reply at 1-5; Tr. at 19-43, 45-82, 83-96.
RULING: Inadmissible , in that with this contention MCE fails to demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the
proposed reactor operating license renewal action and that a genuine dispute exists with the
applicant on a material issue of law or fact. See 10 C.F.R. §§ 2.309(f)(1)(iv), (vi).
As the principal support for this issue statement, MCE cites 10 C.F.R. § 51.53(c)(2), which provides in pertinent part:
The [ER] must contain a description of the proposed action, including the applicant's plans to modify the facility or its
administrative control procedures as described in accordance with
§ 54.21 of this chapter. This report must describe in detail the
modifications directly affecting the environment or affecting plant effluents that affect the environment. In addition, the applicant
shall discuss in this report the environmental impacts of
alternatives and any other matters described in § 51.45.
According to MCE, this provision is implicated by the agency's March 12, 2012 immediately effective enforcement order, EA-12-049, that is intended to address the March 2011 events at
the Fukushima Daiichi facility. As the order outlines, following an earthquake and an associated tsunami in Japan, that facility suffered a loss of offsite and onsite power that ultimately resulted in a loss of core, containment, and spent fuel pool cooling capabilities in Units 1, 2, and 3 that, in turn, caused damage to the nuclear fuel in the reactors. In response to this unfortunate
circumstance, in EA-12-049 the agency directs the licensee at each operating reactor facility, including Callaway Plant, Unit 1, to take two actions. First, by no later than February 28, 2013, provide the agency with an overall integrated plan (OIP), including a description of how the
licensee intends to comply with requirements being imposed to achieve the necessary
mitigation strategies for maintaining and restoring core cooling, containment, and spent fuel
pool cooling capabilities following a beyond-design-basis external event that might result in an
extended loss of power. Thereafter, by no later than December 31, 2016, implement those
strategies per the agency-reviewed OIP, including having in place necessary procedures, guidance, and training as well as the acquisition, staging, and installation of any needed
equipment. See Order Modifying Licenses With Regard to Requirements for Mitigation Strategies for Beyond-Design-Basis External Events (Effective Immediately),
77 Fed. Reg. 16,091, 16,093, 16,098 (Mar. 19, 2012) [hereinafter EA-12-049].
As its primary claim in support of this contention, MCE maintains that the staff anticipates that the response to this order by a licensee such as Ameren will cause the licensee
to "'supplement those of the permanently installed plant structures, systems, and components that could become unavailable following beyond-design-basis external events.'" MCE Hearing
Request at 3 (quoting EA-12-049, 77 Fed. Reg. at 16,092). That being the case, MCE asserts, regardless of whether they are imposed in the context of a required Part 54 analysis (i.e., as an
integrated plant assessment or time-limited aging analysis) or otherwise bear any relationship to
age-related degradation or aging management, those measures nonetheless will be causally
related to license renewal because they will be safe operation conditions for Callaway Unit 1 during any term of extended operation.
3 See MCE Reply at 3. Further, according to MCE, NEPA consideration of the purported impacts of EA-12-049 clearly is mandated now because
the design-associated measures the order will engender are unlikely to be the subject of a
NEPA analysis under section 51.53(c)(2) before the final supplemental environmental impact 3 Although not discussed in this context by any of the participants, it may well be that the best support for this more expansive MCE approach can be found in the agency's inclusion of
severe accident mitigation alternatives (SAMAs) as category 2 items under the
10 C.F.R. Part 51, subpart A, app. B generic environmental impact statement (GEIS) for reactor
license renewal. In the original proposed rule for the license renewal GEIS, the agency
indicated that a NEPA analysis of severe accident mitigation design alternatives (SAMDAs), a
predecessor to and close relative of the SAMA, would not be required because "Commission
policy is to consider SAMDAs only at the initial construction stage (during which plant design
features may be more easily incorporated). Accordingly, SAMDA evaluations at the license
renewal stage are not necessary." Environmental Review of Renewal for Operating Licenses, 56 Fed. Reg. 47,016, 47,022 (Sept. 17, 1991). Subsequently, when a final rule was adopted
that included SAMDAs as category 2 items requiring a plant-specific analysis if one had not been done previously, the agency made no reference to SAMDAs having any relationship to
aging degradation or aging management concerns, but stated:
Based on an evaluation of the comments, the Commission has reconsidered its previous conclusion in the draft GEIS
concerning site-specific consideration of severe accident
mitigation. The Commission has determined that a site-specific
consideration of alternatives to mitigate severe accidents will be
required at the time of license renewal unless a previous
consideration of such alternatives regarding plant operation has
been included in a final environmental impact statement or a
related supplement. Because the third criterion required to make
a Category 1 designation for an issue requires a generic
consideration of mitigation, the issue of severe accidents must be
reclassified as a Category 2 issue that requires a consideration of
severe accident mitigation alternatives, provided this consideration
has not already been completed. The Commission's
reconsideration of the issue of severe accident mitigation for
license renewal is based on the Commission's NEPA regulations
that require a consideration of mitigation alternatives in its [EISs]
and supplements to EISs, as well as a previous court decision that
required a review of severe mitigation alternatives (referred to as
SAMDAs) at the operating license stage. See, Limerick Ecology Action v. NRC , 869 F.2d 719 (3d Cir. 1989).
Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed.
Reg. 28,467, 28,480 (June 5, 1996). statement (SEIS) is issued in this proceeding, which currently is scheduled for September 2013.
See MCE Reply at 3; Tr. at 17-19. As a consequence, MCE declares, those impacts must be discussed in the Ameren ER, along with the relative effectiveness and cost of a range of
alternatives for meeting the order's requirements. See MCE Hearing Request at 5.
In response to this asserted basis for the admission of contention 1, Ameren and the staff claim that contention 1 is inadmissible under one or more of the requisite elements of
10 C.F.R. § 2.309(f)(1)(ii)-(vi), in that the contention raises issues that are outside the scope of
this license renewal proceeding, lacks sufficient basis, is immaterial to this proceeding, lacks
adequate factual or expert support, and otherwise fails to demonstrate a genuine dispute with
the Ameren application.
In sum, in seeking the admission of contention 1, what MCE essentially requests from us is a declaratory judgment that any EA-12-049-related measures must, by their very nature, have
NEPA implications in this license renewal proceeding that must be analyzed by Ameren in its ER. In contrast, the clear implication of the arguments made by Ameren and the staff is that
any EA-12-049 measures that might be proposed and ultimately adopted by Ameren are wholly
outside the bounds of the matters that are the appropriate subject of consideration in a Part 54
license renewal proceeding.
In the Board's estimation, however, there is a serious question about whether what is lacking or (perhaps better put) what still needs to be become choate relative to this contention
is, at a minimum, a showing based on what measures Ameren actually proposes to adopt to
address the terms of EA-12-049. Indeed, at this juncture we conclude that the exact nature of
the measures that will be proposed by Ameren under the May 2012 enforcement order are
simply too uncertain to permit a determination whether one or more of them will require a NEPA analysis of their environmental impact implications as part of this license renewal proceeding.
4 Rather, in these circumstances, an appropriate challenge and a board determination will need to abide at least the Ameren proposal, now due by the end of February 2013, regarding the
particular measures it intends to implement to comply with the requirements of EA-12-049. At
that point, which under the current staff review schedule for this proceeding would be roughly
contemporaneous with the issuance of the staff's draft SEIS, MCE (or any other interested
person) could submit a contention supported by the specific information (not now available)
about those measures that might meet the requirements for an admissible contention under
section 2.309(f)(1).
4 In its May 31, 2012 draft interim guidance regarding compliance with EA-12-049, the staff provides a general outline of the approach a licensee is expected to consider in attempting
to mitigate beyond-design-basis external events (such as seismic activity, external flooding, high
winds, snow/ice/extreme cold, or extreme high temperatures) so as to maintain or restore core
cooling, containment, and spent fuel pool cooling capabilities following such events. According
to that guidance, this would entail three phases: an initial response phase using installed
equipment and resources; a transition phase using portable equipment and consumables; and a
third phase of indefinite sustainment using off-site resources. See Japan Lessons-Learned Project Directorate, NRC, Compliance with Order EA-12-049, Order Modifying Licenses with
Regard to Requirements for Mitigation Strategies for Beyond-Design-Basis External Events, JLD-ISG-2012-01, at 2 (rev. 0 May 31, 2012) (draft issued for public comment) (ADAMS
Accession No. ML12146A014) [hereinafter Draft Interim Staff Guidance Memorandum].
Relative to these phases, the staff also provides guidance on various strategy elements that
must be considered, including evaluating external hazards; command, control, and
communications; operations actions; damage assessment; core cooling strategies; decay heat
removal; engineering basis for flow; cool down/depressurization rate control; reactor coolant
system inventory management; fuel condition monitoring; human factors; spent fuel pool and
containment functions strategies; equipment quality, protection, storage, and deployment;
off-site resources; strategy maintenance; and reporting requirements. See id. attach. 1, at 1-12 (Guidance for Developing, Implementing and Maintaining Mitigation Strategies). While the staff
indicates that it is endorsing, with some exceptions, the methodologies developed by the
Nuclear Energy Institute (NEI) for satisfying these various strategies, see Draft Interim StaffGuidance Memorandum at 1 (citing NEI, Diverse and Flexible Coping Strategies (FLEX)
Implementation Guide, NEI 12-06 (rev. B1 May 2012) (ADAMS Accession No. ML12143A232)),
in our estimation neither of these guidance documents provides the specific information
necessary to assess whether the measures taken by Ameren to comply with EA-12-049 require
the NEPA assessment requested under MCE's contention 1. But with regard to contention 1 as it is now before us, that issue statement lacks the necessary materiality and fails to frame a genuine dispute with the requisite licensing document, missing elements that render contention 1 inadmissible under section 2.309(f)(1)(iv), (vi).
b.Contention 2: Environmental Report Lacks Information on Status of Compliance With Federal Requirements and Approvals CONTENTION: In violation of 10 C.F.R. § 51.45(d), the Environmental Report fails to describe the status of Ameren's
compliance with NRC post-Fukushima orders and requests for
additional information relevant to the environmental impacts of the
Callaway nuclear power plant during the license renewal term.
These requests for information and orders for actions originate
with both the NRC and the U.S. Congress. See Order EA-12-049 at 4-7; Requirements of Request for Information Pursuant to
Title 10 of the Code of Federal Regulations, 50.54(f) Regarding
Recommendations 21.1, 2.3, and 9.3 of the Near-Term Task
Force Review of Insights From the Fukushima Dai-ichi Accident
at 2 (March 12, 2012) ("3/12/12 Information Request")
(ML12053A340).
The Environmental Report for renewal of the Callaway operating license is inadequate to comply with NEPA and NRC
implementing regulations because it lacks the following
information regarding Ameren's compliance with NRC
requirements and approvals: (a) Requirement of Order EA-12-049 to: "develop, implement and maintain guidance and strategies to restore or
maintain core cooling, containment, and SFP [spent fuel pool]
cooling capabilities in the event of a beyond-design-basis external
event." Id.
at 6.(b) The following requirements of the 3/12/12 Information Request: (i) "Requested Information" regarding Seismic Hazard Evaluation and Seismic Risk Evaluation. Id., Enclosure 1 at 7-8.(ii) "Required Response" related to item (i) above. Id.
, Enclosure 1 at 9. Details of these requirements are provided in to Enclosure 1.(iii) "Requested Information" regarding Hazard Evaluation Report and Integrated Assessment Report. 3/12/12 Information
Request, Enclosure 2 at 7-8.(iv) "Required Response" related to item (iii) above.
3/12/12 Information Request, Enclosure 2 at 9-10. Details of
these requirements are provided in Attachment 1 Enclosure 2. (v) "Requested Actions," "Requested Information," and "Requested Response" regarding communication systems and
equipment used during an emergency event, assuming that (a)
the potential onsite and offsite damage is a result of a large scale
natural event resulting in the loss of all alternating current (ac)
power and (b) the large scale natural event causes extensive
damage to normal and emergency communications systems both
onsite and in the area surrounding the site. 3/12/12 Information
Request, Enclosure 5 at 2-3.
Moreover, to the extent that Ameren proposes modifications to the Callaway facility in response to the 3/12/12
Request for Information, NEPA also requires the consideration of
the effectiveness and relative costs of a range of alternatives for
satisfying the NRC's concerns. See 10 C.F.R. § 51.53(c)(2) and
[Exelon Generation Co., LLC (Limerick Generating Stations, Units 1 and 2), LBP-12-08, NRC (April 4, 2012).]
DISCUSSION: MCE Hearing Petition at 7-10; Ameren Answer at 17-20; Staff Answer at 20-25; MCE Reply at 5-7; Tr. at 43-45, 82-83.
RULING: Inadmissible , in that this contention is outside the scope of this proceeding and with this contention MCE fails to show that a genuine dispute exists with the applicant on a
material issue of law or fact. See 10 C.F.R. § 2.309(f)(1)(iii), (vi).
As was the case with contention 1, MCE's contention 2 focuses on a single regulatory provision. In this instance, the provision in question is section 51.45(d) of the agency's rules, which provides in pertinent part that an applicant's ER "shall list all Federal permits, licenses, approvals and other entitlements which must be obtained in connection with the proposed
action and shall describe the status of compliance with these requirements." With this
contention, MCE claims that, notwithstanding the requirements of section 51.45(d), Ameren has
not set forth in its ER any information regarding its status of compliance with either EA-12-049
or a same-day staff request for information directed to all power reactor construction permit and
operating license holders, including Ameren. See MCE Hearing Petition at 9. In that regard, the March 12, 2012 information request is described as intended to gather information to support the evaluation of the staff's recommendations for the Near-Term Task Force review of the Fukushima Daiichi nuclear facility accident to enable the staff to determine whether nuclear
plant licenses should be modified, suspended, or revoked. See Letter from Eric J. Leeds, Director, NRC Office of Nuclear Reactor Regulation & Michael R. Johnson, Director, NRC Office of New Reactors, to All Power Reactor Licensees and Holders of Construction Permits in Active
or Deferred Status at 1 (Mar. 12, 2012) (ADAMS Accession No. ML12053A340) [hereinafter
Staff Information Request]. Further, that information request asks that each permit or license
holder re-evaluate the seismic and flooding hazards at its site using updated seismic and
flooding hazard information and present-day regulatory guidance and methodologies and, if
necessary, perform a risk evaluation. See id. at 4.Ameren and the staff both oppose the admission of contention 2. Ameren argues that
"[n]one of the post-Fukushima orders or information requests can be characterized as approvals
that must be obtained 'in connection with the proposed action,'" which in this case is the
renewal of the Callaway operating license. Ameren Answer at 18 (quoting
10 C.F.R. § 51.45(d)). The staff agrees, claiming that "Ameren's compliance with the Order and
the [information request] is unrelated to license renewal." Staff Answer at 22. The staff also
asserts that EA-12-049 and the March 2012 information request are not "approvals" under
section 51.45(d), noting that this regulation "has only been applied to approvals needed from
Federal, State, and local agencies other than the NRC such as permits issued by the U.S.
Environmental Protection Agency and the U.S. Fish and Wildlife Service." Id.
at 21. As such, the staff contends contention 2 is outside the scope of this proceeding. See id.In its reply, MCE argues that EA-12-049 and the March 2012 information request constitute "approvals" under section 51.45(d) "because they must be complied with in order for
Ameren to continue operating Callaway." MCE Reply at 7. In addition, MCE states: The approvals have a "connection with the proposed action" because (a) any modifications that result from Ameren's
compliance with the orders will apply during Callaway's license
renewal term, (b) the requirement has arisen while Ameren's
license renewal application is pending and will be resolved before
issuance of the EIS, and (c) neither Ameren nor the NRC has
previously analyzed the environmental implications of the
modifications that may be imposed as a result of Ameren's
compliance with the orders.
Id.As noted above, section 51.45(d) requires that an applicant provide in its ER information regarding its status of compliance with "Federal permits, licenses, approvals and other
entitlements which must be obtained in connection with the proposed action." The language of
this regulation, in turn, presents two separate questions: first, whether EA-12-049 and/or the
March 2012 information request constitute a federal permit, license, approval, or other
entitlement within the meaning of this section; and second, if so, whether either EA-12-049 or
the March 2012 information request must be "obtained in connection with the proposed action,"
i.e., the Callaway Unit 1 operating license renewal.
Regarding the first question, as we observed above, MCE contends the March 2012 enforcement order and information request are "approvals" under section 51.45(d) "because
they must be complied with in order for Ameren to continue operating Callaway." MCE Reply
at 7. But the implication of MCE's argument, which is that any agency prerequisite with which
Ameren must comply to operate the Callaway plant during an extended term constitutes an
"approval" under section 51.45(d), would entail an unreasonably strained definition of
"approval." Ameren must comply with any number of NRC regulations to continue operating
Callaway, but those regulations cannot be considered "approvals" such that an applicant would
be required to describe its compliance with each provision in its ER. This is clearly not the
intent of section 51.45(d). Moreover, the plain meaning of the word "approval," which requires an affirmative action on the part of an approver, clearly establishes that requiring compliance is different from granting an approval. See Webster's Third New International Dictionary 106 (Philip B. Gove ed. in chief, unabr. 1976) (defining "approval" as "the act of approving" and
"certification as to acceptability").
This analysis does not, however, necessarily determine whether either EA-12-049 or the March 2012 information request constitutes an "approval." Nonetheless, we find they do not.
With regard to the March 2012 information request, as the name implies, that information
directive simply requires that licensees provide certain information to the agency. See Staff Information Request at 3. While the information request does explain that the NRC will evaluate
the information provided by licensees to determine whether further regulatory actions are
required, see id. at 1, 5, it does not state that the information is required for the NRC to grant (or deny) a permit, license, approval, or other entitlement. As such, the staff's March 2012
information request is not an "approval" under section 51.45(d).
5 And because section 51.45(d) does not obligate Ameren to list its compliance with the March 2012 information request in its
ER, this portion of contention 2 is inadmissible as outside the scope of this proceeding and
because it does not raise a genuine dispute with Ameren's application. See 10 C.F.R.
§ 2.309(f)(1)(iii), (vi).
Similarly, we conclude that EA-12-049 does not constitute an "approval" for the purpose of section 51.45(d). By its terms, EA-12-049 requires that all licensees "develop, implement and
maintain guidance and strategies to restore or maintain core cooling, containment, and SFP 5 In addition, as staff counsel noted at the prehearing conference, "requests for information are not terribly unusual, and . . . it would [be] a quite extensive list if applicants are
required to include in their [ER] a list of their compliance with the various generic letters, bulletins, [and] information requests[] that have been issued over the years." Tr. at 83. In our
view, to consider any or all of these staff documents as "approvals" by reason of the fact that
they request information that will be used to assess compliance with agency requirements
would impose a reporting encumbrance that section 51.45(d) was not intended to levy. cooling capabilities in the event of a beyond-design-basis external event." EA-12-049, 77 Fed.
Reg. at 10,692. These strategies and guidance are to be submitted to the NRC in an OIP by no
later than February 28, 2013. See id. at 10,693. Because the NRC will then review the OIP provided by Ameren and decide whether that plan satisfies EA-12-049, it might appear that this
constitutes an "approval" under section 51.45(d) (i.e., the NRC must "approve" Ameren's OIP).
EA-12-049, however, is essentially a directive to all licensees to achieve compliance with the
order's requirements by a certain date. That EA-12-049 has the unique feature of allowing
licensees to propose their own strategies for coming into compliance, rather than mandating a
certain set of plant alterations, does not change the fundamental character of EA-12-049 and transform it into an "approval." We thus treat EA-12-049 as we would any other enforcement
order and hold that it does not establish an "approval" process under section 51.45(d). Ameren, therefore, is not required to list that order, or Ameren's compliance with the order's terms, in its
ER. Consequently, with regard to EA-12-049, contention 2 is not admissible because it is
outside of the scope of this proceeding and MCE has not raised a genuine dispute with
Ameren's application.
6 See 10 C.F.R. § 2.309(f)(1)(iii), (vi).
6 We would add that even if compliance with the March 2012 information request and/or EA-12-049 were deemed to be a prerequisite for license renewal, Ameren arguably would have
already satisfied its duty under section 51.45(d). In its ER, Ameren notes that one of the
"Federal permits, licenses, approvals [or] other entitlements" that it must receive is a license
renewal from the NRC. See Ameren, Callaway Plant Unit 1, Applicant's Environmental Report; Operating License Renewal Stage, Final § 9.3, at 6 (tbl. 9-2) [hereinafter Ameren ER]. By
noting that it must receive a license renewal from the NRC, Ameren necessarily implies that it
must satisfy all of the requirements established by the NRC to receive that renewal.
Section 51.45(d) surely does not require that an applicant explain every aspect of the process it
must pursue in the course of obtaining a federal permit, license, or approval. See Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-12-12, 75 NRC
, (slip op. at 27)(June 21, 2012). Accordingly, Ameren would not have to list either of these items as a required
permit, license, or approval given that Ameren already has listed its NRC license renewal
generally as a federal permit, license, or approval. c.Contention 3: Inadequate Discussion of Wind Energy Alternative CONTENTION: The Environmental Report is inadequate to satisfy NEPA or 10 C.F.R. § 51.53(c)(2) because it dismisses and
refuses to consider the relative merits of the reasonable energy
alternative of wind energy operating in the Midwest Independent
Transmission System Operator ("MISO") grid. Wind energy
operating in the MISO grid warrants serious consideration as an
alternative because it is currently available and sufficient to
entirely replace the energy to be generated by Callaway during
the license renewal term. Wind energy also has the relative
benefits that it is less dangerous than renewed operation of
Callaway, depends on a renewable energy source and would save
millions of gallons of water now used by Callaway every day.
DISCUSSION: MCE Hearing Petition at 10-12; Errata to Hearing Request and Petition to Intervene (May 7, 2012) at 1; Ameren Answer at 20-39; Staff Answer at 25-37; MCE Reply
at 7-15; Tr. at 96-165.
RULING: Inadmissible , in that this contention lacks adequate factual or expert support and with this contention MCE fails to demonstrate that a genuine dispute exists with the
applicant on a material issue of law or fact. See 10 C.F.R. § 2.309(f)(1)(v)-(vi).
In support of its contention 3 challenge to the discussion of alternative energy sources in the Ameren ER, MCE states that Ameren's ER provides only a brief discussion of the wind
alternative and dismisses the wind alternative as "'not reasonable.'" MCE Hearing Petition at 10 (quoting Ameren ER § 7.2.1.5, at 15). Further, MCE proffers the declaration of Dr. Arjun
Makhijani in which he declares that "Ameren should have examined wind energy operating in
the MISO grid and compared it to nuclear operating in the grid, taking into account the specific
patterns of unavailability of each, including unplanned outages." MCE Hearing Petition, attach. 2, at 3 (Declaration of Dr. Arjun Makhijani in Support of [MCE's] Hearing Request
Regarding Callaway License Renewal Application) [hereinafter Makhijani Declaration]. More
specifically in this regard, Dr. Makhijani asserts that energy generation from Callaway will not be
constantly available during the license term due to planned and unplanned outages, so that a proper "apples-to-apples comparison" requires that Ameren analyze the patterns of unavailability of nuclear and wind and how the regional MISO grid would compensate for each
during such outages. Id.
at 4. Dr. Makhijani also states that electrical storage or full standby fossil fuel replacement capacity would not be needed because wind energy "is currently
available and sufficient to entirely replace the energy generated by Callaway during the license
renewal term." Id.
at 3.Ameren and the staff oppose contention 3, stating that it fails to raise a genuine dispute with the application, is unsupported, is immaterial, and raises issues that are beyond the scope
of the proceeding in contravention of 10 C.F.R. § 2.309(f)(1)(iii), (iv), (v), and (vi). See Ameren Answer at 1; Staff Answer at 2.
In implementing NEPA section 102, 42 U.S.C. § 4332(2)(C)(i)-(iii), section 51.53(c)(2) of the Commission's regulations requires that an ER submitted by a license renewal applicant
address the environmental impacts of the proposed action and compare those impacts to the
impacts of alternative actions. But the Commission has held repeatedly that an applicant need
only consider those alternatives that are reasonable. See, e.g., Seabrook , CLI-12-05, 75 NRC at (slip op. at 52). Ameren claims it has provided such an analysis in section 7 of its ER. See Ameren Answer at 23. Specifically, in ER section 7 Ameren analyzed several potential electrical supply alternatives to determine which were reasonable alternatives to
replace Callaway Unit 1 and hence merited a full impacts critique. In addition to evaluating
power supply strategies that would not involve additional Ameren generation, see Ameren ER
§ 7.2.1.3, at 12-13 (purchased power); id.
§ 7.2.1.4, at 13-14 (demand side management), Ameren also considered wind and solar power, both alone and in combination with fossil-fueled
generation or energy storage facilities, see id. § 7.2.1, at 6-7; id.
§ 7.2.1.5, at 15-18. But because Ameren defined the proposed action as the replacement of the existing Callaway unit's generation capacity of 1190 megawatts electric (MWe) of "baseload power," the applicant determined that an in-depth alternatives analysis was only merited for those supply alternatives
capable of producing 1190 MWe of baseload power.
7 See id. § 7.2.1, at 6.
In that regard, before us Ameren references a definition of "baseload power" utilized by the United States Court of Appeals for the Seventh Circuit, and quoted by the Commission in its
recent Seabrook decision, that declares "baseload power" as power generating "'"energy intended to continuously produce electricity at or near full capacity, with high availability."'"
Ameren Answer at 26 (quoting Seabrook , CLI-12-05, 75 NRC at n.223 (slip op. at 50 n.223)(quoting Envtl. Law & Policy Ctr. v. NRC , 470 F.3d 676, 679 (7th Cir. 2006))). Further, in this instance our consideration of MCE's wind power contention is governed by that same Seabrook decision. Considering the admissibility of a contention claiming that an applicant's license
renewal ER had inadequately evaluated offshore wind farms as an electrical generation
alternative, in Seabrook the Commission declared:
In sum, to submit an admissible contention on energy alternatives in a license renewal proceeding, a petitioner ordinarily
must provide "alleged facts or expert opinion" sufficient to raise a
genuine dispute as to whether the best information available today
suggests that commercially viable alternate technology (or
combination of technologies) is available now, or will become so in
the near future, to supply baseload power. As a general matter, a
"reasonable" energy alternative-one that must be assessed in
the environmental review associated with a license renewal
application-is one that is currently commercially viable, or will
become so in the near term.
CLI-12-05, 75 NRC at (slip op. at 53-54) (footnote omitted). Here, the proposed action (i.e., license renewal for Callaway) involves the continued production of 1190 MWe of baseload 7 As a consequence, Ameren provided a full impacts analysis of the power supply alternatives of pulverized coal-fired generation, gas-fired generation, construction and operation
of new nuclear generation, and purchased power. See Ameren ER § 7.2.2, at 21. power during the license renewal term.
8 As such, for an electrical generation alternative to qualify for the kind of in-depth review that MCE seeks here, the alternative must be able to
provide 1190 MWe of baseload power during the license renewal term. See Seabrook , CLI-12-05, 75 NRC at __ (slip op. at 48-55); see also Davis-Besse , CLI-12-08, 75 NRC at __(slip op. at 11-12) (rejecting admissibility of contention seeking full impacts generation
alternative analysis of wind, either alone or in combination with solar and storage, as failing
adequately to demonstrate the capacity to produce baseload power).
Apparently cognizant of the Seabrook and Davis-Besse decisions cited above, see Makhijani Declaration at 4, seeking to level the "baseload" playing field, MCE attempts to
demonstrate that nuclear, like wind, is an intermittent generation source to the degree that
nuclear plants like Callaway Unit 1 experience outages for which the surrounding MISO grid
compensates, just as the grid will do for wind generation facilities that might be implemented as
an alternative. As a consequence, according to MCE, if sufficient wind generation capacity is
developed by Ameren, wind generation is just as capable of providing the necessary 1190 MWe
as a renewed Callaway facility, and hence effectively should be considered as adequate to
replace such a "baseload" source so as to merit a full alternatives analysis. See MCE Reply at 9-10.Given the Commission's recent Seabrook and Davis-Besse holdings, we see this proffer as deficient in several respects. In those reactor license renewal rulings on wind-related NEPA
alternatives contentions, the Commission was very clear that petitioners must demonstrate that 8 The Commission has also held that the staff's EIS "need only discuss those alternatives that . . . 'will bring about the ends' of the proposed action," Hydro Res., Inc. (P.O.Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 55 (2001) (quoting Citizens Against Burlington, Inc. v. Busey , 938 F.2d 190, 195 (D.C. Cir.), cert. denied , 502 U.S. 994 (1991)), a principle equally applicable to an ER, see Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-09-16, 70 NRC 227, 263, aff'd , CLI-09-22, 70 NRC 932 (2009). wind generation can provide sufficient baseload power to replace the nuclear plant at issue by showing that such wind power is both technically feasible and commercially viable in the near
future.9 See Davis-Besse , CLI-12-08, 75 NRC at (slip op. at 12); Seabrook , CLI-12-05, 75 NRC at (slip op. at 53-54). Dr. Makhijani does claim that "Callaway can be replaced with wind energy with technology that is commercially available now." Makhijani Declaration at 15.
Yet, assuming arguendo this is sufficient to meet the technical feasibility prerequisite of the
Seabrook and Davis-Besse decisions, nothing provided by Dr. Makhijani or MCE provides information to support an adequate showing that such technology is capable of providing
1190 MWe baseload power that is commercially viable in the relatively near term.
10 Indeed, instead of demonstrating how Ameren can, in a commercially viable way, obtain 1190 MWe of continuously produced, high availability electricity via wind generation in the near
future, MCE simply places reliance on "the grid" to compensate for what, as the Commission
has recognized, see Seabrook , CLI-12-05, 75 NRC at (slip op. at 55), is the intermittent, non-baseload nature of wind power in its near term state of development. But the grid in and of
itself is not, as MCE's argument seems to suggest, the continuously produced, highly available 9 As was noted above, the showing needed under the Commission's Seabrook and Davis-Besse cases relates to the discussion necessary to support a NEPA alternatives contention in a 10 C.F.R. Part 54 reactor license renewal proceeding, which involves the
replacement of an existing electrical generation source with an alternative source that likely has
yet to be constructed, rather than in a Part 52 combined license proceeding, in which the
proposed construction of an entirely new generation source seemingly would involve a different, and likely broader, set of considerations.
10 Per the Commission's Seabrook decision, see CLI-12-05, 75 NRC at
, (slip op.
at 53, 55), the use of the terms "in the relatively near term" and "in the near future" describe the
period within which an otherwise technically feasible generation alternative would become
commercially viable. These terms clearly denote temporal proximity to the present rather than
measuring possible feasibility nearer to the extended term of the subject reactor, at least absent
a showing that the technology "while not commercially viable at the time of the application, is
under development for large-scale use and is 'likely to' be available during the period of
extended operation," id.
at & n.245 (slip op. at 53-54 & n.245), a demonstration that has not been made in this instance. source of electricity that will counterbalance the intermittent nature of wind generation.
11 Rather, the grid is the sum of its parts, with some generation elements being recognized as more reliable than others as the source of the continuous power that is necessary to provide
uninterrupted electrical service. Hence the distinction between "baseload" and other generation
sources and the root of an electric utility's constant concern that, with its baseload and other
generation sources, it has enough margin to provide electricity on an uninterrupted basis.
12 And while, as Dr. Makhijani's declaration suggests, any of the parts of the grid, baseload or
otherwise, can at any given time be unavailable, voluntarily or involuntarily, that is really beside
the point. MCE and its supporting affiant Dr. Makhijani have not shown that the grid has any
particular impact in determining whether nuclear or wind generation provides the requisite 11 Although MCE relies upon the capacity of the "MISO grid" to replace the output of the Callaway plant, it is apparent that the MISO is not a generation source. See Tr. at 140-41.
Rather, it is a privately owned, federally regulated transmission network. On December 20, 2001, MISO became the first Federal Energy Regulatory Commission (FERC)-approved
regional transmission organization (RTO) in the nation. See Midwest Indep. Transmission Sys.
Operator, Inc., 97 FERC ¶ 61,326 (2001). FERC granted MISO RTO status to provide open access to MISO's electricity transmission system to all member utilities in 15 Midwestern states, including Missouri, and one Canadian province. See Midwest Indep. Transmission Sys.
Operator, Inc., 122 FERC ¶ 61,283, ¶ 57 (2008). Accordingly, MISO provides transmission service under the terms and conditions of a single open access transmission tariff, the Open
Access Transmission and Energy Markets Tariff (TEMT), approved in an August 2004 FERC
order. See Midwest Indep. Transmission Sys. Operator, Inc., 108 FERC ¶ 61,163 (2004).
MISO's member transmission providers, including Ameren, see Ameren Answer at 33-34, are the owners of transmission facilities, with MISO exercising functional control over those
facilities, calculating available transmission capability, and receiving, approving, and scheduling
transmission service. See Midwest ISO Transmission Owners v. FERC , 373 F.3d 1361, 1365 (D.C. Cir. 2004).
12 And relative to the MISO grid margin, MCE acknowledges that the capacity value assigned by MISO to wind generation in 2012 is 15 percent or less. See Tr. at 100-01; see also Makhijani Declaration at 10. In contrast, although MISO apparently does not designate such a
value for the Callaway facility, the MISO-assigned capacity credit for that unit, a figure based on
the facility's unforced capacity (or U-Cap) that does not incorporate any planned outages, runs
at about 95 percent, with the unit's 2002 through 2011 actual capacity factor, which takes into
account both forced and unforced plant outages, being as low as 76 percent (in 2004) and as
high was 95 percent (in 2009). See Tr. at 143-44. baseload power for the purpose of a NEPA alternatives analysis. Instead, in the context of a license renewal proceeding, such a determination rests on whether the power generation
source is, as a matter of technical feasibility and commercially viable implementation, one that in
the near term can produce electricity continuously with high availability.
13 Finally, in terms of providing the requisite support for the commercial viability of wind generation as an alternative to an existing generation asset like the Callaway facility, to the
degree MCE's assertions about the availability of wind power as a viable alternative generation
source to the Callaway facility depend on the construction by Ameren or others of new wind
capacity, see Makhijani Declaration at 15, MCE has failed to offer any specific information about the possible location of any proposed wind generation facilities or about the availability of
sufficient transmission capacity to deliver the output of any wind generation facilities to
Ameren's service area, including what would be involved in providing new power transmission 13 The concern about outages at Callaway Unit 1 (and other reactor facilities) highlighted by Dr. Makhijani, see Makhijani Declaration at 4-8, appears to go more to a consideration of how much margin Ameren (and other utilities with nuclear power plants) should plan to provide
in meeting service area needs than to the general status of nuclear generation as baseload
power.Indeed, the MCE claim that existing excess capacity in the MISO grid is sufficient to establish the viability of wind generation as a replacement for Callaway Unit 1 seems to
emphasize this point given that assertion apparently rests on the supposition that natural gas
reserve margin available to Ameren via the MISO grid currently can be utilized, in conjunction
with wind generation, to replace the Callaway facility. See MCE Reply at 14 (citing Makhijani Declaration at 14). And relative to MCE's assertion regarding existing excess capacity, we
would add that, even assuming this claim is not an otherwise improper attempt to raise (1) a
"need for power" issue in this license renewal proceeding; or (2) a new issue regarding the
adequacy of the purchased power alternatives analysis in the Ameren ER, see Ameren Answer at 34-35, in the context of the commercial viability showing mandated by the Commission's
recent Seabrook and Davis-Besse decisions, see supra p. 24, this concern likewise lacks any discussion regarding the transmission aspects of such an alternative. See infra text accompanying note 14. lines to connect any proposed wind generation facilities into the existing MISO grid, a likely critical component for determining the near term commercial viability of wind power.
14 Contention 3 thus is inadmissible because it (1) lacks adequate factual or expert support to demonstrate that wind power is capable of providing baseload power to replace Callaway;
and (2) fails to raise a genuine dispute with Ameren's discussion of power generation
alternatives in its license renewal application. See 10 C.F.R. § 2.309(f)(1)(v)-(vi).
III. CONCLUSION For the reasons set forth above, the Board concludes that although petitioner MCE has established its standing as of right to intervene in this proceeding, the three contentions MCE
has proffered cannot be accepted for litigation in this proceeding because each fails to meet
one or more of the admissibility requirements of section 2.309(f)(1).
For the foregoing reasons, it is this seventeenth day of July 2012, ORDERED, that:
- 1. Although MCE has established its representational standing, its request to admit the 14 To be sure, MCE declares that this contention is intended to present wind power as a stand-alone substitute for the Callaway facility without the need for additional replacement
generation or an electrical storage source (or the need to consider the environmental impacts of
such backup resources). See MCE Reply at 14. It is apparent, however, that the viability of this approach also relies on the supposed ubiquitous nature of the current and future MISO grid.
See MCE Hearing Request at 11; MCE Reply at 13-14; Tr. at 113-14. Nonetheless, in the face of the Commission's recent Seabrook and Davis-Besse decisions, this is a supposition we cannot indulge, at least given the MCE information now before us. three contentions proffered with its April 24, 2012 hearing request as litigable issues in this proceeding is denied
.15 15 Although this ruling is dispositive of the three contentions MCE submitted in support of its April 24, 2012 intervention petition, it does not conclude this proceeding at this juncture
because on July 9, 2012, MCE filed with the Board a motion to admit a new environmental
contention. In that new issue statement, MCE asserts that the Ameren ER is deficient because
it fails to include a discussion of the environmental impacts of SFP leakage, SFP fires, and the
lack of a spent fuel repository, as required by the recent decision of the United States Court of
Appeals for the District of Columbia Circuit in New York v. NRC , No. 11-1045 (D.C. Cir. June 8, 2012). See
[MCE's] Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Callaway Nuclear Power Plant (July 9, 2012) at 4
[hereinafter Callaway New Contention Motion]. Similar motions to admit a new contention were
also filed that day, and are pending, in other ongoing reactor OL, COL, and OLR proceedings.
See, e.g., Southern Alliance for Clean Energy's Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Spent Reactor Fuel at Watts Bar
Unit 2 (July 9, 2012) [hereinafter Watts Bar New Contention Motion]; Intervenors' Motion for
Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of
Nuclear Waste at Bellefonte (July 9, 2012) [hereinafter Bellefonte New Contention Motion];
Intervenors' Motion for Leave to File a New Contention Concerning Temporary Storage and
Ultimate Disposal of Nuclear Waste at Davis-Besse Nuclear Power Station (July 9, 2012)
[hereinafter Davis-Besse New Contention Motion].
This Board will proceed with having the new contention motion briefed and is fully prepared, in due course, to rule on the admissibility of the new contention (as undoubtedly is the
case with other licensing boards before which similar contentions are pending). We note, however, that there is a June 18, 2012 petition before the Commission that (1) was filed by MCE
and other petitioners/intervenors associated with nineteen reactor OL, COL, and OLR
proceedings pending with the agency; and (2) appears to raise the same issues as MCE's
July 9 new contention, as well as the other new contentions filed that date. Compare Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Completion of
Remanded Waste Confidence Proceedings (June 18, 2012) at 8-12, with Callaway New Contention Motion at 2-7, and Watts Bar New Contention Motion at 2-6, and Bellefonte New Contention Motion at 2-6, and Davis-Besse New Contention Motion at 2-7. As a consequence, this could be an instance in which the goal of efficient judicial administration would be well
served by any guidance/direction that the Commission might wish to provide relative to the
June 18 petition. 2. As it rules upon a hearing request/intervention petition, under the provisions of 10 C.F.R. § 2.311 any appeal to the Commission from this memorandum and order that may be
appropriate must be taken within ten (10) days after this issuance is served.
THE ATOMIC SAFETY AND LICENSING BOARD G. Paul Bollwerk, III
CHAIR William J. Froehlich
ADMINISTRATIVE JUDGE Nicholas G. Trikouros
ADMINISTRATIVE JUDGE Rockville, Maryland
July 17, 2012 CONCURRING OPINION BY TRIKOUROS, A.J., I write separately to note that, although I concur fully with the reasons provided in this Licensing Board's decision as to why petitioner Missouri Coalition for the Environment's
contentions 1 and 2 are inadmissible as failing to meet one or more of the requirements of
10 C.F.R. § 2.309(f)(1), another basis for rejecting those contentions, albeit one not specifically
championed by the applicant or the NRC staff here, see Tr. at 64, 73-74, is set forth in the recent determination of the Licensing Board in the Diablo Canyon license renewal proceeding.
In its decision deeming inadmissible two contentions that were essentially identical to
contentions 1 and 2 before this Board, the Diablo Canyon Board concluded that the applicant had no legal duty to update its environmental report to encompass matters that occurred after
that report was filed with the agency. See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-12-13, 75 NRC
, (slip op. at 3) (June 27, 2012). The situation here is the same as the one extant there. Consequently, contentions 1 and 2 also could be
dismissed on this basis for failing to raise a genuine dispute with the applicant and as not
material to the compliance status of the ER. See 10 C.F.R. § 2.309(f)(1)(iv), (vi).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of ) )
UNION ELECTRIC COMPANY D/B/A AmerenUE )
)
) Docket No. 50-483-LR (Callaway Power Plant, Unit 1) ) )
(License Renewal) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Ruling on Standing and Hearing Petition Contention Admissibility) have been served upon the following persons by Electronic Information Exchange.
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
E-mail: ocaamail@nrc.gov
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, DC 20555-0001
G. Paul Bollwerk, III, Chair Administrative Judge E-mail: paul.bollwerk@nrc.gov
William J. Froehlich
Administrative Judge
E-mail: william.froehlich@nrc.gov Dr. Nicholas G. Trikouros
Administrative Judge
E-mail: nicholas.trikouros@nrc.gov Matthew Flyntz, Law Clerk Email: matthew.flyntz@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 Union Electric Company
Pillsbury Winthrop Shaw Pittman, LLP
2300 N. Street, NW Washington, DC 20037-1122 David R. Lewis, Esq.
Counsel for the Applicant
E-mail: david.lewis@pillsburylaw.com
Callaway Power Plant, Unit 1, Docket No. 50-483-LR MEMORANDUM AND ORDER (Ruling on Standing and Hearing Petition Contention Admissibility) 2U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15 D21 Washington, DC 20555-0001 Edward Williamson, Esq. Mary Spencer, Esq.
Catherine Kanatas, Esq.
Anita Ghosh, Esq.
Beth N. Mizuno, Esq.
Brian Newell, Paralegal Email: edward.williamson@nrc.gov mary.spencer@nrc.gov catherine.kanatas@nrc.gov anita.ghosh@nrc.gov beth.mizuno@nrc.gov brian.newell@nrc.gov
OGG Mail Center: ogcmailcenter@nrc.gov
Missouri Coalition for the Environment Edward Smith, Safe Energy Director
Diane Curran, Esq.
Henry B. Robertson, Esq.
Email: showmenocwip@gmail.com dcurran@harmoncurran.com hrobertson@greatriverslaw.org
[Original signed by Herald M. Speiser] Office of the Secretary of the Commission
Dated at Rockville, Maryland
this 17 th day of July, 2012