ML15065A222
| ML15065A222 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 03/06/2015 |
| From: | Burdick S, Jenkins D, Matthews T, Sutton K Firstenergy Service Company, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-346-LR, ASLBP 11-907-01-LR-BD01, RAS 27337 | |
| Download: ML15065A222 (9) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of ) Docket No. 50-346-LR
)
FIRSTENERGY NUCLEAR OPERATING COMPANY )
)
(Davis-Besse Nuclear Power Station, Unit 1) ) March 6, 2015
) FENOC'S MOTION FOR CLARIFICATION REGARDING TERMINATION OF THE DAVIS-BESSE LICENSE RENEWAL ADJUDICATORY PROCEEDING I. INTRODUCTION On January 15, 2015, the Atomic Safety and Licensing Board ("Board") issued Order LBP-15-1, rejecting the last propos ed contention (Contention 7) pending before it in the Davis-Besse Nuclear Power Station, Unit 1 ("Da vis-Besse") license renewal proceeding.
1 The Board stated: "As the Board has not ruled on all pr oposed contentions, awaiti ng further action by the Commission on the remaining continued storage contention, the adjudicatory process remains open."2 Subsequently, on February 26, 2015, the Commission issued Order CLI-15-4 rejecting the last proposed conten tion in the Davis-Besse li cense renewal proceeding.
3 No other contentions or other issues remain pending before the Board or the Commission in this proceeding.
1 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-15-1, 81 NRC __, slip op. (Jan. 15, 2015).
2 Id. at 36. 3 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-4, 81 NRC __, slip op. (Feb. 26, 2015).
2 In accordance with 10 C.F.R. § 2.323, 4 FirstEnergy Nuclear Operating Company
("FENOC"), the applicant in this proceeding, submits this Moti on for Clarification that the Commission's Order CLI-15-4 automatically terminated this proceeding as a matter of law.
5 That conclusion is consistent with Commission case law and practice. Indeed, the Commission recently stated that "once all contentions have been decided, the contested proceeding is terminated."
6 Therefore, FENOC requests that the Board issue an order clarifying that the adjudicatory proceeding in the instant matter is terminated. Such an order should prevent future disagreements over the status of the proceeding.
II. BACKGROUND In August 2010, FENOC filed an application to renew the 10 C.F.R. Part 50 operating license for Davis-Besse for an additional 20-year term.
7 The NRC Staff p ublished its final Safety Evaluation Report ("SER") on September 3, 2013 and plans to issue a supplement to the SER in May 2015.
8 The Staff published the Draft Supplemental Environmental Impact Statement ("SEIS") in February 2014, and anti cipates publishing the Final SEIS in March 2015.
9 4 As required by 10 C.F.R. § 2.323(b), FENOC counsel certifies that it contacted counsel for Intervenors and the NRC Staff and made a sincere effort to resolve the issues raised in this Motion, and these attempts have been unsuccessful. Intervenors oppose the Motion. Counsel for the NRC Staff stated that the Staff does not oppose the Motion.
5 If the Board concludes that it no longer has jurisdiction over the proceeding, and therefore is unable to rule on this Motion, such an outcome would render this Motion moot. FENOC files this Motion with the Board, however, in response to the Board's statement in its Order LBP-15-1 that the adjudicatory process remains open because "the Board has not ruled on all proposed contentions." Davis-Besse, LBP-15-1, slip op. at 36 (emphasis added). This statement implies that the Board may believe that it needs to take affirmative action to terminate the proceeding.
6 Va. Elec. & Power Co. (North Anna Power Station, Unit 3), CLI-12-14, 75 NRC 692, 699 (2012).
7 License Renewal Application; Davis-Besse Nuclear Power Station at 1.0-1 (Aug. 2010). The current operating license for Davis-Besse expires on April 22, 2017.
8 See http://www.nrc.gov/reactors/operating/licensing/renewal/applications/davis-besse.html#licrenapp.
9 See id.
3 On December 27, 2010, Intervenors petitioned to intervene in this proceeding, proffering four contentions.
10 On April 26, 2011, the Board admitted contentions regarding renewable energy alternatives (Contention 1) and FENOC's severe accident mitigation alternatives
("SAMA") analysis (Contention 4).
11 FENOC appealed the Board's ruling admitting the two contentions and, on March 27, 2012, the Commission reversed the Board's admission of Contention 1, and reversed, in part, the Board's admission of Contention 4.
12 FENOC later moved for summary disposition as to the remaining part of Contention 4.
13 The Board granted that motion on December 28, 2012.
14 On January 10, 2012, Intervenors moved to admit proposed Contention 5 concerning laminar concrete cracking in the Davis-Besse Shield Building.
15 Subsequently, Intervenors submitted five motions to amend and/or supplement that proposed contention. On December 28, 2012, the Board denied Contention 5, along with its amendments/supplements.
16 Intervenors also filed proposed Contention 6 on April 22, 2014, 17 raising further challenges related to the Shield Building. The Board reject ed that contention on July 25, 2014.
18 In early September
10 See Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Don't Waste Michigan, and the Green Party of Ohio Request for Public Hearing and Petition for Leave to Intervene (Dec. 27, 2010).
11 See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-11-13, 73 NRC 534, 588-89 (2011).
12 See generally FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC 393 (2012).
13 See FirstEnergy's Motion for Summary Disposition of Contention 4 (SAMA Analysis Source Terms) (July 26, 2012). 14 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-12-26, 76 NRC 559 (2012). 15 See Motion for Admission of Contention No. 5 on Shield Building Cracking (Jan. 10, 2012).
16 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-12-27, 76 NRC 583 (2012). 17 Motion for Admission of Contention No. 6 on Shield Building Concrete Void, Cracking and Broken Rebar Problems (dated Apr. 21, 2014).
18 Board Memorandum and Order (Denying Intervenors' Motion for Admission of Contention No. 6 on Shield Building Concrete Void, Cracking and Broken Rebar Problems), at 9-17 (July 25, 2014) (unpublished).
4 2014, Intervenors filed yet another newly-proposed Contention 7 related to aging management of the Shield Building, which they supplemented on September 8, 2014 and December 30, 2014.
19 The Board rejected that contention and its supplements on January 15, 2015.
20 In the interim, Intervenors filed with the Board a motion to admit a new environmental contention that challenges the alleged failure of FENOC's Environmental Report to address the environmental impacts that may occur if a spent fuel repository does not become available.
21 The proposed contention was based on the U.S. Court of Appeals for the District of Columbia Circuit's decision in New York v. NRC , 681 F.3d 471 (D.C. Cir. 2012), 22 which invalidated and remanded the NRC's Waste Confidence Decision Update 23 and related final rule.
24 Following approval of the final Continued Storage Rule and the associated Generic Environmental Impact Statement ("GEIS"), the Commission ordered the Board to dismiss the proposed contention.
25 The Board did so on October 8, 2014.
26 Finally, Intervenors filed bot h a petition to suspend reactor licensing decisions and a proposed contention that generally claimed that because the NRC did not include "Waste Confidence safety findings" in the recent Continued Storage Rule and associated GEIS, the NRC
19 See Intervenors' Motion for Admission of Contention No. 7 on Worsening Shield Building Cracking and Inadequate AMPs in Shield Building Monitoring Program (Sept. 2, 2014); Intervenors' Motion to Amend and Supplement Contention No. 7 on Worsening Shield Building Cracking and Inadequate AMPs in Shield Building Monitoring Program (Sept. 8, 2014); Intervenors' Second Motion to Supplement Contention No. 7 on Worsening Shield Building Cracking and Inadequate AMPs in Shield Building Monitoring Program (Dec. 30, 2014). 20 See Davis-Besse, LBP-15-1, slip op.
21 See 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).
22 See id. 23 Waste Confidence Decision Update, 75 Fed. Reg. 81,037 (Dec. 23, 2010).
24 Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 75 Fed. Reg. 81,032 (Dec. 23, 2010).
25 See Calvert Cliffs 3 Nuclear Project, LLC, & UniStar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-08, 80 NRC __, slip. op at 12 (Aug. 26, 2014).
26 See Board Order (Denying Motion to File a New Contention Concerning Temporary Storage of Nuclear Waste) (Oct. 8, 2014) (unpublished).
5lacks a lawful basis under the Atomic Energy Act to issue reactor licenses, unless it makes those findings in individual licensing proceedings.
27 The Commission rejected both the petition to suspend and the proposed contention-the last pending issues in this proceeding-in Order CLI-15-4 on February 26, 2015.
III. DISCUSSION As demonstrated below, the Davis-Besse license renewal proceeding automatically terminated, as a matter of law, when the Commission rejected the last remaining issues in this proceeding in Order CLI-15-4.
28 FENOC requests that the Board clarify for all parties the status and confirm the termination of the adjudicatory proceeding. Contested proceedings terminate once all contentions have been decided. The Commission reaffirmed this position in a 2012 decision (CLI 14) related to the North Anna new reactor proceeding. In 2011, the North Anna licensing board rejected the last pending contention in that proceeding, but nonetheless stated that any cont entions based on later information should be filed according to the deadlines set forth in previous scheduling orders.
29 In response, the applican t filed a "Motion for Clarification" as king the board to clarify that it had terminated the contested proceeding.
30 After further briefing, the board denied the motion for a
27 Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Issuance of Waste Confidence Safety Findings (Sept. 29, 2014); Intervenors' Motion for Leave to File a New Contention Concerning the Absence of Required Waste Confidence Safety Findings in the Relicensing Proceeding for Davis-Besse Nuclear Power Station (Sept. 29, 2014).
28 In LBP-15-1, the Board denied Contention 7, but "encouraged" the Commission to direct further Staff review of Shield Building issues.
Davis-Besse, LBP-15-1, slip op. at 35-36. The Board's suggestion did not create or extend any adjudicatory action. Nor has the Commission initiated any adjudicatory action based upon the Board's suggestion. Accordingly, all adjudicatory actions have terminated. As discussed below, the Commission has concluded that a proceeding terminates at the resolution of all contentions. See North Anna , CLI-12-14, 75 NRC at 699-700. No contentions remain pending in this proceeding. Th e Board recognized exactly this result in LBP-15-1, stating that the adjudicatory process remains open only because the Commission had not ruled on the "remaining continued storage contention." Davis-Besse, LBP-15-1, slip op. at 36. The Commission has now dismissed that contention. Accordingly, the proceeding has terminated.
29 North Anna, CLI-12-14, 75 NRC at 694-96.
30 Id. at 695-97.
6number of reasons, including the bo ard's reasoning that the intervenor should not have to meet the higher reopening standard for new contentions, the Staff's review was still ongoing, and the final review documents (e.g., SER, Final EIS) had not been issued.
31 The applicant petitioned the Commission for review of the board's decision.
32 The Commission reversed the North Anna board's decision, finding that the board erred in denying the applicant's motion and not terminating the proceeding once all of the pending contentions had been resolved.
33 The Commission concluded: We find that the Board erred in denying Dominion's motion. The Board's approach cannot be squared with the longstanding practice in our proceedings that, once all contentions have been decided, the contested proceeding is terminated. Our review of agency case law reveals no situa tion where a Board has held a proceeding open after the resolution of the last contention because new information triggering fresh contentions might appear later in the Staff's final review documents.
The courts of appeals have repeatedly approved our practice of closing the hearing record after resolution of the last "l ive" contention, and of holding new contentions to the hi gher "reopening" standard. Agencies need not keep adjudications open inde finitely to await potential new developments.
34 31 Id. at 696. 32 Id. at 693. 33 Id. at 699-703.
34 Id. at 699-700 (emphasis added) (citations omitted) (citing New Jersey Envtl. Fed'n v. NRC, 645 F.3d 220, 232-33 (3d Cir. 2011); State of Ohio v. NRC, 814 F.2d 258, 262-64 (6th Cir. 1987); Oystershell Alliance v.
NRC, 800 F.2d 1201, 1207-08 (D.C. Cir. 1986)). The Commission also referenced a variety of proceedings that were terminated once all contentions had been decided.
See id. at 699 n.51 (citing Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-3, 75 NRC 132, 140-41 (2012); Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), CLI-11-9, 74 NRC 233, 236 (2011); Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-8, 74 NRC 214, 217 n.1 (2011); Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), LBP-05-19, 62 NRC 134, 183 (2005) ("There being no admitted contention remaining to be litigated, the contested portion of this proceeding is terminated.")).
7The Commission further stated unequivocally that "the Board lost jurisdiction once it completed action on [the intervenor's] last remaining contention. Any new contentions must satisfy our reopening standards."
35 Thus, the Commission reiterated that a contested proceeding terminates once all contentions have been decided-even when the Staff has yet to issue the EIS and SER in a proceeding.
36 Consistent with North Anna , the contested proceeding for Davis-Besse license renewal should be terminated.
Furthermore, the licensing boards in the Sequoyah license renewal and Levy County new reactor proceedings both issued orders on March 3, 2015 terminating those proceedings for the same reason.
37 Specifically, the Commission rejected the last pending contention in the Davis-Besse , Sequoyah , and Levy County proceedings on February 26, 2015.
38 The Sequoyah board issued an order stating: "Because no other admitted or proffered contention remains before this Board for disposition, the adjudicatory proceedi ng before this Board concerning Tennessee Valley Authority's application to renew its licen ses to operate two nuclear power reactors at Sequoyah Nuclear Plant is terminated
."39 The Levy County board's order similarly stated:
"There being no other pending contentions or outstanding issues, the contested adjudicatory hearing before this Board is terminated
."40 Similar to those proceedings, the Board should clarify that the Davis-Besse adjudi catory proceeding has terminated.
35 North Anna, CLI-12-14, 75 NRC at 701.
36 See id. at 699-700.
37 Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 & 2), LBP-15-7, 81 NRC __, slip op. at 1-2 (Mar. 3, 2015); Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 & 2), LBP-15-8, 81 NRC __, slip op. at 1-2 (Mar. 3, 2015).
38 Fermi, CLI-15-4, slip op. at 1-4, 31.
39 Sequoyah, LBP-15-7, slip op. at 1-2.
40 Levy County, LBP-15-8, slip op. at 2.
8 IV. CONCLUSION For the above reasons, FENOC requests that the Board issue an order clarifying and confirming that the Davis-Besse adjudicatory proceeding is terminated. Such clarification should prevent any future disagreements over the status of the proceeding, or confusion over the applicability of the reopening standards to any future filings.
41 Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
David W. Jenkins Timothy P. Matthews Senior Corporate Counsel II Kathryn M. Sutton FirstEnergy Service Company Stephen J. Burdick Mailstop: A-GO-15 Morgan, Lewis & Bockius LLP 76 South Main Street 1111 Pennsylvania Avenue, N.W.
Akron, OH 44308 Washington, DC 20004 Phone: 330-384-5037 Phone: 202-739-5527 E-mail: djenkins@firstenergycorp.com E-mail: tmatthews@morganlewis.com
COUNSEL FOR FENOC Dated in Washington, D.C.
this 6th day of March 2015
41 See North Anna, CLI-12-14, 75 NRC at 701.
DB1/ 82472782 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of ) Docket No. 50-346-LR
)
FIRSTENERGY NUCLEAR OPERATING COMPANY )
)
(Davis-Besse Nuclear Power Station, Unit 1) ) March 6, 2015
) CERTIFICATE OF SERVICE I hereby certify that, on this date, a c opy of "FENOC's Motion for Clarification Regarding Termination of the Davis-Besse License Renewal Adjudicatory Proceeding" was filed through the Nuclear Regulatory Commission's E-Filing system.
Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, DC 20004
Phone: 202-739-5059 E-mail: sburdick@morganlewis.com
COUNSEL FOR FENOC