ML19231A477

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Beyond Nuclear Reply Brief on Appeal of LBP-19-05 (Refiled)
ML19231A477
Person / Time
Site: Peach Bottom  Constellation icon.png
Issue date: 08/19/2019
From: Curran D
Beyond Nuclear, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP
To:
NRC/OCM
SECY RAS
References
50-277-SLR, 50-278-SLR, ASLBP 19-960-01-SLR-BD01, LBP-19-05, RAS 55181
Download: ML19231A477 (12)
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1 August 19, 2019 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION ___________________________________ ) In the Matter of ) Exelon Generation Company, LLC ) Docket Nos. 50-277/278 SLR Peach Bottom Atomic Power Station, ) Units 2 & 3 ) ___________________________________ ) BEYOND NUCLEAR, INC.REPLY BRIEF ON APPEAL OF LBP-19-05 I. INTRODUCTION U.S. Nuclear Regulatory in opposition to Brief on Appeal of LBP-19-05 (July 15, 2019) Appeal of LBP-19-Beyond Nuclear Appeal of LBP The arguments are factually erroneous and without legal merit, and therefore should be rejected.1 II. ARGUMENT Exelon and the NRC Staff contend that Beyond Nuclear should be barred from improperly incorporated Category 1 findingat 8. See also NRC Br. at 12. They also urge the Commission to disregard applicable case law, regulations, and guidance setting forth the requirements for 1 By not replying to other incorrect arguments, Beyond Nuclear does not concede them.

2 incorporation by reference , on the ground that Beyond Nuclear did not cite them previously before the ASLB. Id. See also Appeal Brief at 6 (citing Florida Power & Light Co. (Turkey Point Nuclear Generating, Units 3 and 4), LBP-16-08, 83 N.R.C. 417, 432 (2016), grounds, CLI-16--16-; 10 C.F.R. Part 51, Subpart A, described respectively in 40 CFR ; and NUREG-1555, Standard Review Plans for -). Exelon and the Staff are correct that the NRC prohibits parties from raising new issues on appeal; but they are wrong on the law and the facts. i. Exelon and the Staff are wrong on the law. Exelon and the Staff cite no legal authority, nor is Beyond Nuclear aware of any, that prohibits a party from citing additional authorities in support of an argument made below. assertion 10 C.F.R. § 51.53(a), LBP-16-08 and 10 C.F.R. Part 51, Subpart A, App. A § 1(b)) in its hearing request (NRC Staff Br. at 12 (citing Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-687, 16 N.R.C. 460, 468 (1982), vacated in part on other grounds, CLI-83-19, 17 NRC 1401 (1983)) is simply absurd. Beyond Nuclear had an made no mention of 10 C.F.R. § 51.53(a). Instead, the Environmental Report cited 10 C.F.R. § 51.53(c)(3) forty-five times. Mention of 10 C.F.R. § 51.53(a) did not appear in any public document until . Exelon Response 3 at 31, NRC Staff Response at 57. Even then, their brief post hoc rationalizations failed to explain how 10 C.F.R. § 51.53(a) could be deemed to carve out a wholesale exception to 10 C.F.R. § 51.53Peach Bottom Units 2 and 3 in a subsequent license renewal term, simply by referring summ was at least equivalent to the level of briefing provided by Exelon and the Staff. ii. Beyond Nuclear has consistently raised the claim on appeal. From the beginning of this proceeding, starting with the language of Contention 2, Beyond Nuclear has pursued the claim it now raises on appeal. Beyond Nuclear has consistently and repeatedly argued that NEPA and NRC implementing regulation 10 C.F.R. § 51.5impacts of operating Peach Bottom Units 2 and 3 with aging equipment; and that the single regulation that would excuse Beyond Nuclear from discussing those impacts, 10 C.F.R. § 51.53(c)(3), does not apply. Beyond Nuclear also agreed, in the proceeding before the ASLB, that Exelon was entitled to incorporate the License Renewal GEIS into its Environmental Report, but argued that Exelon must do more than just cite to the Category 1 findings. While acknowledging that incorporation by reference of other relevant environmental studies is a common and accepted practice, Beyond Nuclear argued that enough information must be provided to show that the environmental impacts of operating Peach Bottom Units 2 and 3 with aging equipment up to 80 years had been adequately addressed.2 2 It bears noting that tentire discussion of the environmental impacts of design-basis accidents is to cross-4 Beyond Nuclear has consistently taken this position throughout the proceeding before the ASLB, as follows: Contention 2 itself asserts that: Exelon violated [NEPA] and NRC implementing regulation 10 C.F.R. § 51.53(c)(2) by failing to address the accident risk posed by operating aging reactor equipment during a second license renewal term. Exelon incorrectly claims that the risk of operating Peach Bottom with aging consideration under 10 C.F.R. § 51.53(c)(3) and Table B-1 of 10 C.F.R. Part 50 (sic), Appendix A. Hearing Request and Petition to Intervene at 6-7 (Nov. 19, 2018 (emphasis added). Contention 2 also criticizes the Environmental Report for failing to discuss the existing body of literature and a high-level NRC Staff memorandum raising concerns about safety and environmental risks of operating nuclear reactors with aging equipment, including specific studies of safety and environmental risks of operating Peach Bottom with aging equipment. Id. at 7-9 (citing NUREG/CR-7153, Expanded Materials Degradation Assessment (EMDA), a five-volume making the slightest attempt to describe or cite the specific environmental conclusions of the License Renewal GEIS. As stated at page 4-69 of the Environmental Report: The 2013 GEIs defines postulated accidents to include the following Category 1 issues: Issue 65 Design-basis accidents. No new and significant information was identified regarding impacts from the design-basis accidents. Therefore, the conclusions in the 2013 GEIS are considered appropriate for the PBAPS SLR, are incorporated herein by reference, and need no further analysis.

5 (ORNL/TM-2013/532, Oct. 2014); and SECY-14-0016, Memorandum from Mark A. Satorius, NRC Executive Director of Operations, to NRC Commissioners, re: Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal (Jan. 31, 2014) (NRC ADAMS Accession No. ML14050A306)). Thus, the contention gives examples of the types of information that must be addressed in the Environmental Report.3 In replying to shown that the Environmental Report does not discuss the risk of accidents due to aging of equipment at Peach Bottom at all, and that Oppositions to Hearing Request and Petition to Intervene at 32 (Dec. 21, 2018) (emphasis in original). discussion of environmental impacts due to aging reactor equipment constitutes a Id. Beyond Nuclear laimed right to incorporate the License Renewal GEIS by reference. See Tr. 189 (Lewis) (asserting that even if 3 Beyond Nuclear respectfully submits that Contention 2 is an admissible contention of omission because it asserts that (a) 10 C.F.R. § 51.53(c)(3) is inapplicable and Exelon he environmental impacts of design-basis accidents during a second license renewal term. While Beyond Nuclear has identified documents that should have been discussed in the Environmental Report, it is appropriate to remand the Environmental Report to Exelon for a discussion of the environmental impacts of design-basis accidents and then allow failure to address certain specific information could be raised.

6 10 C.F.R. § 51.53(c)(3) does not apply, we still have these findings from the GEIS incorporated into our ER as permitted by 51.53(a).insisted that Exelon must do more than make a summary reference to the Category 1 findings. Tr. 189 (Curran) (4 As counsel explained, [I]t would be fine to go back and cross reference the old GEIS and say, we still think that we did 4 Exelon selectively argument and misconstrues it with Exelon about the adequacy of the Environmental Report to incorporate the License Renewal GEIS by reference. Exelon Br. at 9 (quoting tr. 189 (Curran). In fact, Beyond Nuclear asserted that if Exelon had sought to incorporate the License Renewal GEIS without environmental impacts of design basis accidents during a subsequent license renewal term, then Beyond Nuclear could raise an admissible contention of omission by simply The entirety of the relevant portion of the statement is as follows: [Mr. Lewis, counsel for Exelon] was saythink so because accidents are treated by Exelon as a Category 1 issue, and they 51.53(c)(3). that you thought were exempted under that regulation. So and then if they do and if what they say is nothing is we rely on the GEIS. That analysis is good enough for us. on that or raise new contentions about it and probably challenge that. But if omission. Tr. 188-89 (Curran).

7 Beyond Nuclear also consistently attacked the applicability of the only regulation in the NRC code that would allow a license renewal applicant to incorporate another environmental study by reference, without addressing the sufficiency of that study to evaluate the environmental impacts of the proposed action at issue: 10 C.F.R. 51.53(c)(3). Under this unique regulation, holders of reactor operating licenses issued before June 30, 1995 who an initial renewed license need do no more than mention the Category 1 findings in Table B-1 and state that they are aware of no new or significant information. These initial license renewal requirement to discuss the environmental impacts of the proposed action because the Category 1 findings are binding as a matter of law. Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses 61 Fed. Reg. 28,467, 28,464 (June 5, 1996).5 As conceded in the rulemaking notice, this practice of codifying environmental findings for initial license applications 5 As explained in the preamble to the Final Rule: The amendment codifies certain environmental impacts associated with license renewal that were analyzed in NUREGGeneric (xxxx 1996). Accordingly, absent new and significant information, the analyses for certain impacts codified by this rulemaking need only be incorporated by reference in an applilicense renewal adjudicatory officers, and the Commission itself) draft and final SEIS and other environmental documents developed for the proceeding. Id. (emphasis added).

8 Id. As Beyond Nuclear has maintained throughout the proceeding, because Exelon is not an initial license renewal applicant, it has no legal right to claim the exception in 10 C.F.R. § 51.53(c)(3). See Hearing Request at 6-7, 9-11, 11-18-32, Oral Argument Tr. 162-66, 175-77, 188-190, 210.6 Accordingly, contrary to the argument by Exelon and the NRC Staff, Beyond Nuclear of Category 1 environmental findings into its Environmental Report. The only new information provided by Beyond Nuclear consisted of providing additional citations to support its position, which is permissible. B. Exelon and the Staff Erroneously Confuse the Differing Standards for Incorporation by Reference in 10 C.F.R. §§ 51.53(c)(3) and 51.53(a). Exelon and the NRC Staff erroneously conflate and confuse the standards for incorporation by reference in 10 C.F.R. § 51.53(c)(3) and 10 C.F.R. § 51.53(a), as if they were the same. For instance, Exelon accuses Beyond Nuclear of continuously i.e., the Environmental Report] incorporating And the NRC Staff accuses Beyond Nuclear of flyspeckEnvironmental Report by failing to read through the 6 Beyond Nuclear notes that the ASLB instructed the parties not to address issues related to 10 C.F.R. § 51.53(c)(3) that already had been decided by a different ASLB panel in Florida Power & Light Co. (Turkey Point Units 3 and 4), LBP-19-03, 89 N.R.C. __ (March 7, 2019). See Notice and Order (Providing Instructions for Oral Argument) at 2 the applicability of 10 C.F.R. § 51.53(c)(3) were necessarily limited.

9 In making these arguments, Exelon and the Staff overlook the fundamental difference between 10 C.F.R. § 51.53(c)(3) and 10 C.F.R. § 51.53(a). Section 51.53(c)(3) codifies the Table B-1 findings, such that they may be incorporated by reference into an No further description of environmental impacts is required, because as a matter of law the NRC has determined for the purposes of initial license renewal that the 1996 License Renewal GEIS, as revised in 2013, provides sufficient support. If 10 C.F.R. § 51.53(c)(3) did design-basis accidents as a issue would be sufficient for purposes of incorporating those findings by reference under that regulation. In contrast, 10 C.F.R. § 51.53(a) makes no assumptions about the adequacy of the environmental analysis that a license applicant seeks to incorporate into an environmental report. The applicant must give reviewers enough information to (a) show that the applicant has reviewed the incorporated analysis and determined it is sufficient, and (b) allow an independent review. With respect to the License Renewal GEIS, for example, the Environmental Report is completely inadequate, because it amounts to shorthand. It would be reasonable, for example, to expect Exelon to cite the specific discussion in Appendix E, citing the volume and page number of the License Renewal GEIS, Rev. 1. It would also be reasonable to expect Exelon to include in the Environmental Report the relevant information in Appendix E about the environmental impacts of design-basis accidents:

10 Rev. 1 of the License Renewal GEIS, is severe accidents,because the NRC considers the environmental impacts of design-basis accidents Id. at E-1. NRC has made no update to the analysis of design-basis accidents found in the 1996 License Renewal GEIS. Id. Rev. 1 of the License Renewal GEIS contains only the following two-sentence explanation of why the analysis was not updated: As stated in Section 5.3.2, the environmental impact from design-basis accidents was assessed in the individual plant-specific EISs at the time of the initial license application review. Since the licensee is required to maintain the plant within acceptable design and performance criteria, including any license renewal term, these impacts are not expected to Id. at E-5 E-6. The above short squibs regarding design-basis accident impacts constitutes the totality of the environmental analysis of design-basis accident impacts in the 2013 revised License Renewal GEIS. Exelon must summarize this analysis (which would consist of copying what is already just a summary), provide citations to it, and give some explanation of how and why the analysis addresses the environmental impacts of design basis accidents at Peach Bottom Units 2 and 3 if the reactors are permitted to operate for a full 80 years. Contention 2 is admissible b 11 such information, and because it is not entitled to protection from a legal challenge under 10 C.F.R. § 51.53(c)(3).7 III. CONCLUSION For the foregoing reasons, the Commission should reverse LBP-19-05 and remand it to the ASLB to address the applicability of 10 C.F.R. § 51.53(c)(3) Environmental Report. Respectfully submitted, ___/signed electronically by/__ Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P. 1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com August 19, 2019 7 Beyond Nuclear notes that the ASLB declined to address the applicability of 10 C.F.R. 12 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION ___________________________________ ) In the Matter of ) Exelon Generation Company, LLC ) Docket Nos. 50-277/278 SLR Peach Bottom Atomic Power Station, ) Units 2 & 3 ) ___________________________________ ) CERTIFICATE OF SERVICE I certify that on August 19Reply Brief on Appeal of LBP-19-System. ___/signed electronically by/__ Diane Curran

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