ML14352A464

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NRC Staff Answer to Missouri Coalition for the Environment'S Hearing Request and Petition to Intervene and Motion to Reopen the Record in the License Renewal Proceeding for Callaway Unit 1 Nuclear Power Plant
ML14352A464
Person / Time
Site: Callaway Ameren icon.png
Issue date: 12/18/2014
From: Mizuno B
NRC/OGC
To:
NRC/OCM
SECY RAS
References
50-483-LR, ASLBP 12-919-06-LR-BD01, RAS 27025
Download: ML14352A464 (30)
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Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

_________________________________________

)

In the Matter of )

)

UNION ELECTRIC CO. ) Docket No. 50-483-LR (Callaway Nuclear Power Plant, Unit 1) )

)

________________________________________ )

NRC STAFF ANSWER TO MISSOURI COALITION FOR THE ENVIRONMENTS HEARING REQUEST AND PETITION TO INTERVENE AND MOTION TO REOPEN THE RECORD IN THE LICENSE RENEWAL PROCEEDING FOR CALLAWAY UNIT 1 NUCLEAR POWER PLANT Beth Mizuno Brian Harris Anita Ghosh Counsel for NRC Staff December 18, 2014

-i-TABLE OF CONTENTS PAGE INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 DISCUSSION ................................................................................................................................ 5 I. Legal Standards ................................................................................................................ 5 A. Legal Standards for Admission of Contentions ............................................................ 5 B. Legal Standards for Reopening ................................................................................... 8 II. The Petition Should Be Denied for Failing to Proffer an Admissible Contention ............. 10 A. The Proposed Contention Complains of Rulemaking That Is Beyond the Scope of This Proceeding .............................................................................................................. 10 B. The Proposed Contention Fails to Raise a Genuine Material Issue .......................... 12 III. The Proposed Contention Is Untimely ............................................................................ 15 IV. MCE Does Not Meet the Reopening Standards ............................................................. 17 A. MCEs Motion is Untimely and Does Not Raise an Exceptionally Grave Issue ......... 18 B. MCE Does Not Address a Significant Environmental Issue....................................... 19 C. MCE Has Not Shown that a Materially Different Result Would Be Likely ................. 21 CONCLUSION ............................................................................................................................ 23

- ii -

TABLE OF AUTHORITIES Page STATUTES National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§ 4321-4347 (1982) ............................................................................................... 10 ADMINISTRATIVE DECISIONS Commission:

Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-08-28, 68 NRC 658 (2008) ............................................................................................. 9, 18 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 NRC 235 (2009) ............................................................................................... 9, 18 Calvert Cliffs 3 Nuclear Project, LLC & Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63 (2012) ............................... 3 Calvert Cliffs 3 Nuclear Project, LLC & Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-08, 80 NRC __, __ (Aug. 26, 2014)

........................................................................................................................................ 4, 11, 16 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-01-24, 54 NRC 349 (2001), petition for reconsidn denied, CLI-02-01, 55 NRC 1 (2002) ... 6 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3),

CLI-09-5, 69 NRC 115 (2009) ............................................................................................8-9, 18 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479 (2012) .................................................................................. 21 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704 (2012) .................................................................................. 14 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-21, 76 NRC 491 (2012) .................................................................................... 8 Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13 (2007) ............................................................ 11

- iii -

Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),

CLI-12-19, 76 NRC 377 (2012), remanding, LBP-13-1, 77 NRC 57 (2013),

affg on other grounds, CLI-13-7, 78 NRC 199 (2013) ........................................................ 11, 12 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

CLI-01-17, 54 NRC 3 (2001) ................................................................................................. 6, 11 Hydro Resources, Inc. (P.O. Box 15910 Rio Rancho, NM 87174),

CLI-00-12, 52 NRC 1 (2000) ..................................................................................................... 19 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),

CLI-10-27, 72 NRC 481(2010) .............................................................................................. 8, 15 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-99-10, 49 NRC 318 (1999) ................................................................................................... 6 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-05-12, 61 NRC 345 (2005) ............................................................................................. 9, 18 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-06-03, 63 NRC 19 (2006) ................................................................................................... 20 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4),

CLI-11-8, 74 NRC 214 (2011) ............................................................................................... 8, 19 Atomic Safety and Licensing Appeal Board:

Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 and 3),

ALAB-216, 8 AEC 13 (1974) ................................................................................................. 6, 11 Atomic Safety and Licensing Board:

Arizona Pub. Serv. Co. (Palo Verde Nuclear Station, Units No. 1, 2, and 3),

LBP-91-19, 33 NRC 397 (1991), appeal granted in part, CLI-91-12, 34 NRC 149 (1991).... 6, 11 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257 (2006) ................................................................................... 7 Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-10-19, 72 NRC 529 (2010) ......................................................... 21 Exelon Generation Co., LLC (Braidwood Nuclear Power Station, Units 1 and 2; Byron Nuclear Power Station, Units 1 and 2), LBP-13-12, 78 NRC 239 (2013) ....................... 13

- iv -

Exelon Generation Co., LLC (Limerick Genrating Station, Units 1 and 2),

LBP-12-8, 75 NRC 539 (2012), revd in part, CLI-12-19, 76 NRC 377 (2012),

remanding LBP-13-1, 77 NRC 57 (2013), affd on other grounds, CLI-13-7, 78 NRC 199 (2013)

........................................................................................................................................ 7, 13, 14 Nextera Energy Seabrook, LLC (Seabrook Station, Unit 1),

LBP-11-28, 74 NRC 604 (2011) .................................................................................................. 7 Union Elec. Co. (Callaway Plant, Unit 1), LBP-12-15, 76 NRC 14 (2012) .................................... 3 Union Elec. Co. (Callaway Plant, Unit 1), LBP-14-12, 80 NRC ___, ___ (Sept. 8, 2014) ............. 4 REGULATIONS 10 C.F.R. § 2.309(a) ..................................................................................................................... 5 10 C.F.R. § 2.309(b) ........................................................................................................... 5, 8, 10 10 C.F.R. § 2.309(c) ......................................................................................................... 8, 15, 22 10 C.F.R. § 2.309(f)(1) .........................................................................................................5-6, 22 10 C.F.R. § 2.309(f)(1)(iii) ..................................................................................................... 10, 22 10 C.F.R. § 2.309(f)(1)(vi) ....................................................................................................... 7, 22 10 C.F.R. § 2.309(f)(2) ................................................................................................................ 15 10 C.F.R. § 2.309(i)(1) .................................................................................................................. 1 10 C.F.R. § 2.323(c) ..................................................................................................................... 1 10 C.F.R. § 2.326........................................................................................................................ 23 10 C.F.R. § 2.326(a) ..................................................................................................................... 9 10 C.F.R. § 2.326(a)(1) ......................................................................................................... 18, 19 10 C.F.R. § 2.326(a)(1)-(3) ......................................................................................................... 18 10 C.F.R. § 2.326(a)(2) ............................................................................................................... 19 10 C.F.R. § 2.326(a)(3) ............................................................................................................... 21

-v-10 C.F.R. § 2.326(b) ..................................................................................................................... 9 10 C.F.R. § 2.335(a) ................................................................................................................... 11 10 C.F.R. § 2.335(b) ............................................................................................................... 7, 12 10 C.F.R. § 2.335(c) ..................................................................................................................... 7 10 C.F.R. § 2.335(d) ..................................................................................................................... 7 10 C.F.R. § 2.335(e) ..................................................................................................................... 7 10 C.F.R. § 51.23........................................................................................................................ 14 10 C.F.R. § 51.92(a)(1)-(2) ......................................................................................................... 20 MISCELLANEOUS Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014) (Final Rule) ................................................... 4, 14, 16, 19 Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535 (May 30, 1986) (Final Rule) .................................................................... 19 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),

Order (Dismissing Contentions NYS-39/RK-EC-9/CW-EC-10 and CW-SC-4) (Nov. 10, 2014)

(unpublished Licensing Board Order) (ADAMS Accession No. ML14314A350) ....................... 14 Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,263 (Sept. 19, 2014) ...................................................................................... 19 Memorandum and Order (Initial Prehearing Order) (May 4, 2012)

(unpublished ) (ADAMS Accession No. ML12125A168) ................................................. 8, 15, 17 Renewal of Facility Operating License No. NPF-30, Union Electric Company, Callaway Plant, Unit 1, License Renewal Application, Docketing and Opportunity for Hearing and Petition for Leave to Intervene, 77 Fed. Reg. 11,173 (Feb. 24, 2012) .................................................... 8, 10

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

_________________________________________

)

In the Matter of )

)

UNION ELECTRIC CO. ) Docket No. 50-483-LR (Callaway Nuclear Power Plant, Unit 1) )

)

________________________________________ )

NRC STAFF ANSWER TO MISSOURI COALITION FOR THE ENVIRONMENTS HEARING REQUEST AND PETITION TO INTERVENE AND MOTION TO REOPEN THE RECORD IN THE LICENSE RENEWAL PROCEEDING FOR CALLAWAY UNIT 1 NUCLEAR POWER PLANT INTRODUCTION In accordance with the Nuclear Regulatory Commission (NRC) regulations in 10 C.F.R.

§§ 2.309(i) and 2.323(c), the staff of the U.S. Nuclear Regulatory Commission (Staff) respectfully submits its combined answer to the Petition to Intervene1 and Motion to Reopen the Record2 filed by the Missouri Coalition for the Environment (MCE) on December 8, 2014, in the above-captioned proceeding.3 1

Missouri Coalition for the Environments Hearing Request and Petition to Intervene in License Renewal Proceeding for Callaway Nuclear Power Plant (Dec. 8, 2014) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML14342B010) (Petition).

2 Missouri Coalition for the Environments Motion to Reopen the Record of License Renewal Proceeding for Callaway Unit 1 Nuclear Power Plant (Dec. 8, 2014) (ADAMS Accession No.

ML14342B011) (Motion to Reopen).

3 The regulation in 10 C.F.R. § 2.309(i)(1) provides that an answer to a petition to intervene is due within 25 days of the filing of the contention, while 10 C.F.R. § 2.323(c) provides that a reply to a motion is due within 10 days of the filing of the motion. In this instance, the petition to intervene and the motion to reopen the proceeding were both filed on December 8, 2014. Because the issues in the motion to reopen are intrinsically bound up with issues in the petition to intervene, a 25 day filing period to respond to both pleadings is appropriate. The Staff is not using the full 25 day filing period; by doing so, it does not concede that the 10 day period for responding to a motion to reopen should apply to a combined response to a petition to intervene and a motion to reopen.

The Petition to Intervene should be denied for the following reasons: it challenges a Commission rule and thus raises an issue that is beyond the scope of this proceeding; it should have been accompanied by a request for waiver of the regulation at 10 C.F.R. § 2.335(a) that prohibits challenges to regulations in licensing adjudications, but no waiver request was submitted; it fails to raise a genuine issue of material fact or law; and it was filed late without good cause. The Motion to Reopen should also be denied because the motion is untimely, does not address a significant environmental issue, and does not demonstrate that a materially different result would be likely if the new contention had been raised at the beginning of the proceeding. In summary, MCEs submissions do not satisfy the requirements for intervention or reopening the record and should, therefore, be denied.

BACKGROUND On December 15, 2011, Union Electric Co., doing business as Ameren Corp.

(Applicant), filed a license renewal application and environmental report for Callaway Nuclear Power Plant, Unit 1 (Callaway).4 MCE filed a petition to intervene and proffered three contentions.5 Subsequently, MCE filed a fourth contention asserting that the Applicants environmental report was deficient because it failed to address the environmental impacts associated with spent fuel pool leakage and fires and the lack of a permanent spent fuel storage facility and a petition to suspend licensing.6 The Atomic Safety and Licensing Board (Board) 4 See Callaway Plant Unit 1, Facility Operation License NPF-30, License Renewal Application (Dec. 15, 2011) (ADAMS Accession No. ML113530372) (Application); Callaway Plant Unit 1 Applicants Environmental Report, Operating License Renewal Stage (Dec. 15, 2011) (ADAMS Accession No.

ML113540349) (ER).

5 Missouri Coalition for the Environments Hearing Request and Petition to Intervene in License Renewal Proceeding for Callaway Nuclear Power Plant (May 7, 2012) (ADAMS Accession No.

ML12128A169).

6 Intervenors 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) (ADAMS Accession No. ML12191A359); Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Completion of Remanded Waste Confidence Proceedings (June 18, 2012) (ADAMS Accession

established in this matter found the first three contentions inadmissible.7 The Commission instructed the Board to hold the fourth contention in abeyance pending further Commission order.8 On August 26, 2014, the Commission approved a final rule and a generic environmental impact statement (GEIS) regarding the environmental impacts of continued storage of spent fuel (Continued Storage Rule and Continued Storage GEIS, respectively).9 At the same time, the Commission issued its decision in CLI-14-08. In CLI-14-08, the Commission stated that in the Continued Storage GEIS, it had determined that the environmental impacts of continued storage would not vary significantly from site to site and could, therefore, be analyzed generically. The Commission explained that, because the generic impacts of continued storage had been the subject of extensive public participation in the Continued Storage rulemaking, those generic determinations are excluded from litigation in individual proceedings.10 Citing longstanding precedent, the Commission reiterated that [c]ontentions that are the subject of general rulemaking by the Commission may not be litigated in individual license proceedings.11 The Commission observed that the Staff could make decisions on the issuance of final licenses once No. ML12170A896). Substantively similar contentions were filed in 18 other reactor licensing proceedings.

7 Union Elec. Co. (Callaway Plant, Unit 1), LBP-12-15, 76 NRC 14 (2012). MCE did not appeal the Boards decision.

8 Calvert Cliffs 3 Nuclear Project, LLC & Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63 (2012).

9 See SRM-SECY-14-0072, Final Rule: Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20), at 2, Attachment 5 (Aug. 26, 2014) (ML14237A092); see SECY-14-0072, Final Rule: Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20) (July 21, 2014) (attaching the GEIS and the draft Final Rule, Continued Storage of Spent Nuclear Fuel (Continued Storage Rule)). The Commission paper, the Continued Storage Final Rule and the Continued Storage GEIS may be found at ADAMS Accession No.

ML14177A482 (package).

10 Calvert Cliffs 3 Nuclear Project, LLC & Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-08, 80 NRC __, __ (Aug. 26, 2014) (slip op. at 9) (CLI-14-08).

11 Id. at 9 n.27.

it completed its review of the affected applications and has implemented the Continued Storage Rule[.]12 The Commission then directed the Board to dismiss the spent fuel contention in Callaway consistent with the Commissions reasoning.13 In accordance with CLI-14-08, the Board ruled that MCEs spent fuel contention was inadmissible and, as that ruling disposed of the only remaining contention, the Board terminated the proceeding on September 8, 2014.14 On September 19, 2014, the Continued Storage Rule was published in the Federal Register with an effective date of October 20, 2014.15 On September 29, 2014, MCE submitted a motion for leave to file a new contention with the Commission in which it asserted that the NRC had failed to make safety findings regarding the feasibility and capacity for spent fuel disposal in connection with the Callaway license renewal.16 The motion was accompanied by a petition to suspend licensing actions and a motion to reopen the record, all of which are currently pending before the Commission.17 The Staff completed its environmental review of the Callaway license renewal application and published the resulting environmental impacts statement (Callaway EIS) in ADAMS on November 6, 2014.18 MCE filed its current hearing request, petition to intervene, 12 Id. at 7.

13 Id. at 10.

14 Union Elec. Co. (Callaway Plant, Unit 1), LBP-14-12, 80 NRC ___, ___ (Sept. 8, 2014) (slip op. at 4), Memorandum and Order (Dismissing Contention and Terminating Proceeding) (unpublished Licensing Board Order) (ADAMS Accession No. ML14251A352).

15 Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014) (Final Rule).

16 Missouri Coalition for the Environments Motion for Leave to File a New Contention Concerning the Absence of Required Waste Confidence Safety Findings in the Relicensing Proceeding at Callaway 1 Nuclear Power Plant (Sept. 29, 2014) (ADAMS Accession No. ML14272A549).

17 Petition to Suspend Final Decisions in all Pending Reactor Licensing Proceedings Pending Issuance of Waste Confidence Safety Findings (Sept. 29, 2014) (ADAMS Accession No. ML14272A546),

and a Motion to Reopen the Record for Callaway Nuclear Power Plant (Sept. 29, 2014) (ADAMS Accession No. ML14272A548).

18 Letter from David Wrona, Chief, Environmental Review and Guidance Update Branch, to Sara Pauley, State Historic Preservation Office, Re: Notice of Availability of the Final Supplement

and motion to reopen on December 8, 2014, asserting that the Callaway EIS lacked an adequate legal basis because it relies entirely for its evaluation of the environmental impacts of spent fuel storage and disposal on the [Continued Storage Rule and Continued Storage GEIS].19 DISCUSSION I. Legal Standards A. Legal Standards for Admission of Contentions For a hearing request to be granted, the requestor must propose at least one admissible contention that meets all of the requirements of 10 C.F.R. § 2.309(f)20 and must submit that contention in a timely filing.21 The requirements for an admissible contention are set out in 10 C.F.R. § 2.309(f), which provides that a contention is admissible if it:

(i) Provide[s] a specific statement of the issue of law or fact to be raised or controverted . . .;

(ii) Provide[s] a brief explanation of the basis for the contention; (iii) Demonstrate[s] that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate[s] that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide[s] a concise statement of the alleged facts or expert opinions which support the requestor's/petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; [and]

Environmental Impact Statement for Callaway Plant, Unit 1 (MO SHPO LOG #008-CY-10) (Nov. 6, 2014)

(ADAMS Accession No. ML14304A584).

19 Petition at 1-3. See also Motion to Reopen at 1-2.

20 10 C.F.R. § 2.309(a).

21 10 C.F.R. § 2.309(b).

(vi) . . . provide[s] sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application . . . .[22]

The Commission has emphasized that the 10 C.F.R. § 2.309(f)(1) contention admissibility requirements are strict by design.23 Failure to comply with any one of the 10 C.F.R. § 2.309(f)(1) requirements is grounds for dismissing the proposed contention.24 Subsection (iii) above explicitly provides that a contention must raise an issue that is within the scope of the proceeding. The scope of the proceeding in a license renewal case is limited to the specific matters that must be considered for the license renewal application to be granted. Contentions raising environmental issues in a license renewal proceeding are limited to issues that are affected by license renewal and have not been addressed by rulemaking or on a generic basis.25 Thus, challenges to Commissions regulations and generic determinations are beyond the scope of NRC adjudications.26 A proposed contention otherwise inadmissible as an out-of-scope collateral attack on a Commission rule may, however, be entertained if (1) the proponent of the contention petitions for the waiver of the rule in the particular proceeding, (2) the presiding officer determines that the waiver petition has made a prima facie showing that the application of the specific rule 22 10 C.F.R. § 2.309(f)(1).

23 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 24, 54 NRC 349, 358 (2001), petition for reconsidn denied, CLI-02-01, 55 NRC 1 (2002).

24 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999), citing Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3),

CLI-91-12, 34 NRC 149, 155-56 (1991).

25 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 11-12 (2001).

26 See Arizona Pub. Serv. Co. (Palo Verde Nuclear Station, Units No. 1, 2, and 3), LBP-91-19, 33 NRC 397, 410 (1991), appeal granted in part, CLI-91-12, 34 NRC 149 (1991); Philadelphia Elec. Co.

(Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974), citing Florida Power & Light Co. (Turkey Point Units No. 3 and 4), 4 AEC 787, 788 (1972) ([A] licensing proceeding before this agency is plainly not the proper forum for an attack on applicable statutory requirements or for challenges to the basic structure of the Commission's regulatory process.).

would not serve the purposes for which the rule was adopted and then certifies the matter directly to the Commission, and (3) the Commission makes a determination on the matter.27 If the presiding officer determines that the petitioner has not made the required prima facie showing, no evidence may be received on [the] matter and no discovery, cross examination, or argument directed to the matter will be permitted, and the presiding officer may not further consider the matter.28 Instead, the participant may challenge the rule by filing a petition for rulemaking under 10 C.F.R. § 2.802.29 Contentions must also raise a genuine material issue of law or fact with the specific license renewal application at bar.30 In other words, the proponent on the contention must show how resolution of the dispute would make a difference in the outcome of the licensing proceeding.31 A contention that raises only a generic issue and fails to link that issue to any specific aspect of the pertinent license renewal application, is inadmissible for failure to raise a genuine material issue.32 While a disagreement as to the interpretation of the language of a rule may raise a genuine issue of law, a challenge to the rule itself does not.33 Such a challenge fails because it does not raise a material issue of law as contemplated by the regulation.

27 10 C.F.R. § 2.335(b) and (d).

28 10 C.F.R. § 2.335(c).

29 10 C.F.R. § 2.335(e).

30 10 C.F.R. § 2.309(f)(1)(vi).

31 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 354 (2006) citing Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989)(Final Rule).

32 Nextera Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-28, 74 NRC 604, 609 (2011).

33 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), LBP-12-8, 75 NRC 539, 566 (2012), revd in part, CLI-12-19, 76 NRC 377 (2012), remanding LBP-13-1, 77 NRC 57 (2013),

affd on other grounds, CLI-13-7, 78 NRC 199 (2013).

Where the original date for filing of contentions has passed,34 the provisions of 10 C.F.R.

§ 2.309(c) apply. Section 2.309(c) provides that a contention may be filed after the original deadline provided that:

(i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously available; and (iii)The filing has been submitted in a timely fashion based on the availability of the subsequent information.

Whether a contention is timely filed depends in large part on when the new information became available. The Commission generally considers a contention based on new information to be filed in a timely fashion if the contention is filed within 30 days of the availability of the information.35 When information is later repeated in a Staff document, the date that controls for timeliness purposes is the date that the information first became available, not the later date when the Staff collects, summarizes and places into context the facts supporting the contention.36 B. Legal Standards for Reopening The Commission has stated that a petitioner seeking to introduce a new contention after the record has been closed should address the reopening standards contemporaneously with a 34 The original deadline for filing contentions in this proceeding was April 24, 2012. See 10 C.F.R. § 2.309(b); Renewal of Facility Operating License No. NPF-30, Union Electric Company, Callaway Plant, Unit 1, 77 Fed. Reg. 11,173, 11,174 (Feb. 24, 2012).

35 The licensing board in this proceeding set a 30 day deadline for new contentions.

Memorandum and Order (Initial Prehearing Order), at 4 n.3 (May 4, 2013) (unpublished) (ADAMS Accession No. ML12125A168) (Initial Prehearing Order). Cf. Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-21, 76 NRC 491, 499 (2012) (noting that licensing boards, typically consider 30 to 60 days from the initiating event a reasonable deadline for proposing new or amended contentions.)

36 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI 27, 72 NRC 481, 496 (2010). See also Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-8, 74 NRC 214, 224-225 (2011).

late-filed intervention petition, which must satisfy the standards for both contention admissibility and late filing.37 Section 2.326(a) of the Commissions regulations sets forth the reopening standards:

(1) The motion must be timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; (2) The motion must address a significant safety or environmental issue; and (3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.38 Additionally, one or more affidavits showing that the motion to reopen meets the above criteria must accompany the motion under 10 C.F.R. § 2.326(b). Each affidavit must contain statements from competent individuals with knowledge of the facts alleged or experts in disciplines appropriate to the issues raised.39 Moreover, the motion and its supporting documentation must be strong enough, in the light of any opposing filings, to avoid summary disposition.40 The Commission has held that [t]he burden of satisfying the reopening requirements is a heavy one [and that] proponents of a reopening motion bear the burden of meeting all of [these] requirements.41 Section 2.326(d) further provides that a motion to reopen that relates to a contention not previously in controversy among the parties must also satisfy the requirements in 10 C.F.R. § 2.309(c) (discussed above) for contentions submitted after the 37 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 124 (2009).

38 10 C.F.R. § 2.326(a). Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-08-28, 68 NRC 658, 668 (2008).

39 10 C.F.R. § 2.326(b). See also Oyster Creek, CLl-09-7, 69 NRC at 291-93.

40 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345, 350 (2005) (PFS), citing Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523-4 (1973).

41 Oyster Creek, CLI-09-7, 69 NRC at 287 (internal quotations omitted, alteration in original).

original deadline for filing.42 II. The Petition Should Be Denied for Failing to Proffer an Admissible Contention MCEs proposed contention asserts that the NRC lacks a lawful basis under NEPA [the National Environmental Policy Act] for re-licensing Callaway Unit 1. To summarize, License Renewal GEIS Supp. 51 [the Callaway License Renewal EIS]

incorporates the generic conclusions of the Continued Spent Fuel Storage Rule and GEIS.43 The Petition goes on to identify seven specific alleged failures in the Continued Storage Rule and GEIS.44 Simply stated, MCEs proposed contention is an impermissible challenge to the Commissions Continued Storage Rule and GEIS.45 MCE also raises no site-specific environmental issue with respect to the Callaway license renewal application and thus does not raise a genuine issue of material fact or law. Moreover, its petition was untimely filed.

A. The Proposed Contention Complains of Rulemaking that Is Beyond the Scope of this Proceeding MCEs proposed contention is a challenge to the Continued Storage Final Rule and Continued Storage GEIS and, as a challenge to a Commission rule, is a challenge that is beyond the scope of this proceeding.46 Every alleged failure and violation of NEPA that MCE complains of is an alleged failure or violation by virtue of the Continued Storage Rule or the Continued Storage GEIS.47 Its only complaint with the Staffs environmental impact statement 42 The original deadline for filing contentions in this proceeding was April 24, 2012. See 10 C.F.R. § 2.309(b); 77 Fed. Reg. at 11,174.

43 Petition at 7.

44 Id. at 8.

45 Id. at 1-2.

46 10 C.F.R. § 2.309(f)(1)(iii).

47 Petition at 8-9.

for the Callaway license renewal is the fact that the Continued Storage Rule adopted the environmental impacts described in the Continued Storage GEIS and deemed it incorporated into the Staffs environmental impact statement.48 Commission regulations bar such challenges to its rules: 10 C.F.R. § 2.335(a) provides that no rule or regulation of the Commission, or any provision thereof . . . is subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding subject to this part. Contentions that challenge Commission regulations or its regulatory processes are beyond the scope of adjudicatory proceedings and have been regularly dismissed as such.49 Most recently and to the point, in its Continued Storage decision in CLI-14-08, the Commission wrote: Contentions that are the subject of general rulemaking by the Commission may not be litigated in individual license proceedings.50 For the same reason, contentions that challenge the NRCs generic environmental impact statement for license renewal have been rejected in case after case.51 In CLI-14-08, the Commission explained, [b]ecause these generic impact determinations have been the subject of extensive public participation in the rulemaking process, they are excluded from litigation in individual proceedings.52 Consistent with CLI 08 and longstanding case law, MCEs challenge to the Continued Storage GEIS, should be rejected.

48 Id. at 7.

49 See e.g., Palo Verde, LBP-91-19, 33 NRC at 400, 410, appeal granted in part, CLI-91-12, 34 NRC 149 (1991); Peach Bottom, ALAB-216, 8 AEC at 20, citing Florida Power & Light Co. (Turkey Point Units No. 3 and 4), 4 AEC 787, 788 (1972) ([A] licensing proceeding before this agency is plainly not the proper forum for an attack on applicable statutory requirements or for challenges to the basic structure of the Commission's regulatory process.).

50 Calvert Cliffs, CLI-14-08, 80 NRC __ (slip op. at 9 n.27).

51 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC 377, 386 (2012), remanding, LBP-13-1, 77 NRC 57 (2013), affg on other grounds, CLI-13-7, 78 NRC 199 (2013); Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13, 20 (2007); Turkey Point, CLI-01-17, 54 NRC at 11-12.

52 Calvert Cliffs, CLI-14-08, 80 NRC __ (slip op. at 9).

Nevertheless, in accordance with the provisions of 10 C.F.R. § 2.335(b), MCE could challenge the rule in an adjudicatory proceeding if it sought and obtained a waiver of the prohibition against such challenges. In support of a satisfactory waiver petition, it would have to demonstrate that special circumstances exist such that application of the regulation would not serve the purpose for which it was adopted and it would have been required to file an affidavit with its petition that stated with particularity the special circumstances justifying the waiver.53 But MCE has not sought a waiver. Instead, MCE has explicitly stated that its contention is not accompanied by a petition for a waiver of [the regulations] on which the Commission relies to bar members of the public from litigating generic NEPA issues in individual licensing proceedings.54 MCE explains that it will not seek a waiver because [n]o purpose would be served by such a waiver, because MCE does not seek an adjudicatory hearing on the NRCs generic environmental findings.55 Given that MCEs proposed contention challenges the NRCs Continued Storage Rule and GEIS, MCEs affirmative decision to forego a waiver petition compels rejection of the contention.56 B. The Proposed Contention Fails to Raise a Genuine Material Issue MCE incorrectly asserts that its contention raises a genuine dispute on a material issue of fact or law because it raises the question whether the NRC has satisfied NEPA for the purpose of renewing the operating license for Callaway, Unit 1.57 As explained above, the contention is inadmissible as an impermissible attack on the Commissions Continued Storage Rule and GEIS. As the contention constitutes an impermissible attack on an agency regulation, 53 10 C.F.R. § 2.335(b).

54 Petition at 2-3, n.3.

55 Id.

56 Limerick, CLI-12-19, 76 NRC at 386-87.

57 Petition at 9-10.

it cannot raise a genuine issue for dispute as required by 10 C.F.R. § 2.309(f)(1)(vi); the dispute is, per se, not a genuine one.58 The Braidwood/Byron case is instructive here because the proposed contention in that case suffered from some of the same deficiencies as the contention at issue in this case. The Byron/Braidwood petitioner challenged the regulation in 10 C.F.R. § 54.17(c) that allows an applicant to apply for license renewal 10 year prior to the expiration of its license. As in this case, the petitioner in Byron/Braidwood attacked the regulation per se.59 The Board held that the contention improperly challenges the reasonableness under NEPA of 10 C.F.R. § 54.17(c) and rejected it as beyond the scope of the proceeding and for failure to raise a material issue of fact or law.60 The Board observed that the Commission had recently denied a rulemaking petition to change the regulation and noted that the Commission considered and rejected the very same arguments and proposed remedy that the [petitioner] seeks this Board to address through Contention 2.61 Here, MCE proffers the same arguments and expert declarations that it submitted as comments in the Continued Storage rulemaking.62 MCE readily acknowledged that it already raised its concerns about the [Continue Storage Rule and GEIS] in comments on draft versions of those documents, and the NRC has already either rejected or disregarded MCEs comments in the final version of the Rule and GEIS.63 The repetition of the arguments and bases made in a rulemaking did not avail the petitioner in Byron/Braidwood and do not support admission of the contention in this proceeding.

58 Limerick, LBP-12-8, 75 NRC at 566, revd on other grounds, CLI-12-16, 76 NRC 377 (2012).

59 Exelon Generation Co., LLC (Braidwood Nuclear Power Station, Units 1 and 2; Byron Nuclear Power Station, Units 1 and 2), LBP-13-12, 78 NRC 239, 244 (2013) (Byron/Braidwood).

60 Id. at 244.

61 Id.

62 Petition at 2, 5 and 9.

63 Id. at 2.

In addition, it is well established that an admissible contention must raise a genuine dispute with the license application to demonstrate that a material issue for hearing exists.64 MCE makes no reference, however, to any specific part of the Callaway license renewal application or to any part of the Staffs license renewal EIS. All MCE disputes is the incorporation of the Continued Storage Rule and GEIS into the Callaway license renewal EIS.

The incorporation was, however, mandated by the Commission. The Continued Storage Rule itself provides:

The environmental reports described in . . . § 51.53 [Postconstruction environmental reports] are not required to discuss the environmental impacts of spent nuclear fuel storage in a reactor facility storage pool or an ISFSI for the period following the term of the reactor operating license[.] . . . The impact determinations in NUREG-2157 [the Continued Storage GEIS] regarding continued storage shall be deemed incorporated into the environmental impact statements described in . . . § 51.95

[Postconstruction environmental impact statements]. 65 As the Limerick board observed, while a disagreement over the proper interpretation of NRC regulations may give rise to an admissible contention, an interpretation that is in direct conflict with the plain meaning of a regulation and the agencys Statement of Considerations fails to present a genuine dispute of fact or law . . . as required by NRC regulations.66 MCEs contention, which is in direct conflict with the Continued Storage Rule thus fails to present a genuine dispute as required by 10 C.F.R. § 2.309(f)(1)(vi).67 64 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 709 (2012).

65 10 C.F.R. § 51.23 (revised), see Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg.

56,238, 56,260 (Sept. 19, 2014) (Final Rule).

66 Limerick, LBP-12-8, 75 NRC at 566.

67 The Indian Point licensing board dismissed a site-specific environmental contention challenging the Continued Storage GEIS noting that the Commission has determined that site-specific environmental aspects of continued storage should not be considered in individual licensing proceedings. See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),

Order (Dismissing Contentions NYS-39/RK-EC-9/CW-EC-10 and CW-SC-4), at 3 (Nov. 10, 2014)

(unpublished Licensing Board Order) (ADAMS Accession No. ML14314A350).

III. The Proposed Contention Is Untimely MCEs contention was not timely filed because the date that MCE relies on as the date that new information was available is incorrect. MCE argues that its contention was timely filed under 10 C.F.R. § 2.309(c) and 2.309(f)(2) because it was filed within 30 days of November 6, 2014, the date on which the Callaway license renewal EIS was published.68 Since this is a challenge to the Continued Storage Rule, the correct date for calculating timeliness was, in fact, October 20, 2014, the effective date of that rule. Accordingly, MCE filed 49 days after the correct triggering event and 19 days late.69 Thus, its filing is untimely.

In order to admit its new contention under 10 C.F.R. § 2.309(f)(2), MCE must show that the information on which the contention is based was not previously available, that such information is materially different, and that it submitted the contention in a timely manner based on the first availability of that information.70 The Commission has stressed that petitioners have an iron-clad obligation to examine the publicly available documentary material with sufficient care to enable [them] to uncover any information that could serve as the foundation for a specific contention.71 Further, the Commission has made clear that the petitioners cannot delay filing a contention until a document becomes available that collects, summarizes and places into context the facts supporting that contention.72 68 Petition at 10 (citing Shaw Areva MOX Services (Mixed Oxide Fuel Fabrication Facility), LBP-08-11, 67 NRC 460, 493 (2008)).

69 The scheduling order in force prior to the termination of the proceeding provided that to be considered timely [motions submitting new or amended contentions] should be filed within 30 days of the date upon which the information that is the basis of the motion becomes available to the petitioner/intervenor[.] See Memorandum and Order (Initial Prehearing Order), at 4 n.3 (May 4, 2012)

(unpublished) (ADAMS Accession No. ML12125A168).

70 10 C.F.R. § 2.309 (c) and (f)(2); Prairie Island, CLI-10-27, 72 NRC at 496.

71 Id. (quoting Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 135, 147 (1993)).

72 Id.

MCE asserts that November 6, 2014, was the trigger date for filing a new or amended contention challenging the Staffs Callaway license renewal EIS because the letter providing the FSEIS was made publicly available in ADAMs on that date.73 In support of its timeliness argument, MCE asserts that the information in the license renewal EIS is materially different from the information contained in the preceding draft EIS.74 MCEs Petition makes it clear that MCEs dissatisfaction is with the Continued Storage Rule and GEIS; its only criticism of the Callaway license renewal EIS is that it incorporates the Continued Storage Rule and GEIS.75 Since MCEs Petition is actually a challenge to the Continued Storage Rule and GEIS, the timely filing requirements should be determined based on the effective date of the rule and no later. While the Continued Storage Rule went into effect on October 20, 2014, the language of the rule and the analysis behind it were available to the public months in advance of the effective date. The Continued Storage Rule and GEIS were available as early as September 19, 2014, when the Continued Storage Rule and GEIS were published in the Federal Register.76 Even earlier, on August 26, 2014, the Commission stated it was adopting the Continued Storage Rule and GEIS.77 MCE had an obligation to raise its 73 Petition at 10.

74 Id.

75 Petition at 7-8.

76 79 Fed. Reg. at 56,260 77 On August 26, 2014, the Commission stated:

We have now approved a final Continued Storage Rule and associated generic environmental impact statement (GEIS). In the GEIS, the NRC has assessed generically the environmental impacts of continued storage of spent nuclear fuel and has addressed the issues raised in the D.C. Circuits decision. The revised rule, in turn, codifies the environmental impacts reflected in the GEIS and reflects that these impact determinations will inform the decision-makers in individual licensing proceedings of the impacts of continued storage.

Calvert Cliffs, CLI-14-08, 80 NRC __ (slip op. at 4-5) (footnotes omitted).

challenge in a timely manner based on the Continued Storage Rules effective date, at the latest.78 Its failure to do so is difficult to excuse given the months of advance notice it had. ,

Pursuant to the scheduling order previously issued in this proceeding, which provided a 30 day filing deadline for new contentions,79 MCE should have filed its challenge to the Continued Storage Rule and GEIS in this proceeding no later than November 19, 2014. Its filing on December 8, 2014 was 19 days late. MCEs Petition should, therefore, be dismissed as untimely.

IV. MCE Does Not Meet the Reopening Standards MCE does not meet the reopening standards outlined in 10 C.F.R. § 2.326(a)(1)-(3) because its proffered contention is untimely, does not address a significant environmental issue, and does not demonstrate that a materially different result would be likely if the new contention had been raised at the beginning of the proceeding. Moreover, as explained above, MCEs contention does not meet the Commissions contention admissibility standards under 10 C.F.R.

§§ 2.309(f)(1) and 2.309(c). Accordingly, MCEs motion to reopen the record in this closed proceeding should be denied.

On December 8, 2014, MCE submitted a Motion to Reopen the record in the Callaway license renewal proceeding for the purpose of admitting a new contention challenging the legal adequacy of the Callaway EIS.80 In its motion, MCE contends that the Callaway EIS does not provide the NRC with an adequate legal basis to re-license Callaway because it relies entirely 78 MCE did file challenges to the Continued Storage Rule and the GEIS before the Commission and the Court of Appeals for the D.C. Circuit on other grounds. MCE filed its challenge before the Commission on September 29, 2014, and before the Court of Appeals on October 29, 2014. See Petition to Suspend Final Decisions in all Pending Reactor Licensing Proceedings Pending Issuance of Waste Confidence Safety Findings (Sept. 29, 2014) (ADAMS Accession No. ML14272A615), and a Motion to Reopen the Record for Callaway Nuclear Power Plant (Sept. 29, 2014) (ADAMS Accession No.

ML14272A548); Petition for Review, Beyond Nuclear, Inc. v. NRC, Case No.14-126 (D.C. Cir. Oct. 29, 2014).

79 Initial Prehearing Order, at 4 n.3.

80 See generally Motion to Reopen.

on the Continued Storage Rule and Continued Storage GEIS for its evaluation of the environmental impacts of spent fuel storage and disposal.81 The Commission has stated that a petitioner seeking to introduce a new contention after the record has been closed should address the reopening standards contemporaneously with a late-filed intervention petition, which must satisfy the standards for both contention admissibility and late filing.82 Section 2.326(a) of the Commissions regulations sets forth the reopening standards, which requires that a motion to reopen be timely, address a significant safety or environmental issue, and demonstrate that a materially different result would have been likely had the newly proffered evidence been considered in the first instance.83 The motion and its supporting documentation must be strong enough, in the light of any opposing filings, to avoid summary disposition.84 The Commission has previously held that [t]he burden of satisfying the reopening requirements is a heavy one, [and that] proponents of a reopening motion bear the burden of meeting all of [these] requirements.85 Thus, [b]are assertions and speculation . . .

do not supply the requisite support[,] and a mere showing of a possible violation is not enough.86 Finally, under § 2.326(d), a motion to reopen that relates to a contention not previously in controversy among the parties must also satisfy the § 2.309(c) requirements for contentions filed after the deadline.

A. MCEs Motion Is Untimely and Does Not Raise an Exceptionally Grave Issue Under 10 C.F.R. § 2.326(a)(1), a motion to reopen a closed record must be timely. As discussed above, the issues raised in MCEs contention are not timely because they are based 81 Id. at 1-2.

82 Millstone, CLI-09-5, 69 NRC at 124.

83 10 C.F.R. § 2.326(a)(1)-(3); Oyster Creek, CLI-08-28, 68 NRC at 668.

84 PFS, CLI-05-12, 61 NRC at 350.

85 Oyster Creek, CLI-09-7, 69 NRC at 287 (internal quotations omitted, alteration in original).

86 Id. (internal quotations omitted, first alteration in original).

on the analysis contained in the Continued Storage Rule and GEIS, not the Callaway EIS.87 The final version of the Continued Storage Rule was published on September 19, 2014, and became effective on October 20, 2014.88 Nonetheless, § 2.326(a)(1) provides an exception to the timeliness requirement when the motion to reopen raises an exceptionally grave issue.89 The Commission anticipates that this exception will be granted rarely and only in truly extraordinary circumstances.90 Moreover, the Commission has found that an exceptionally grave issue is one that calls into question the safety of the licensed activity.91 An untimely request to reopen a closed record, must present a sufficiently grave threat to public safety.92 MCEs new environmental contention alleges no concerns calling into question the safety of the facility. Consequently, it does not raise an exceptionally grave issue under Commission precedent.

B. MCE Does Not Address a Significant Environmental Issue In addition, a motion to reopen must address a significant safety or environmental issue.93 When a motion to reopen is untimely, the § 2.326(a)(1) exceptionally grave test supplants the § 2.326(a)(2) significant safety or environmental issue test.94 As discussed 87 See supra at Section III.

88 See Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,263 (Sept. 19, 2014) (GEIS); 79 Fed. Reg. at 52, 238 .

89 10 C.F.R. § 2.326(a)(1).

90 Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535, 19,536 (May 30, 1986) (Final Rule).

91 Hydro Resources, Inc. (P.O. Box 15910 Rio Rancho, NM 87174), CLI-00-12, 52 NRC 1, 5 (2000).

92 51 Fed. Reg. at 19,536 (quoting Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 AEC 358, 365 n.10 (1973)).

93 10 C.F.R. § 2.326(a)(2).

94 Vogtle, CLI-11-8, 74 NRC at 225 n.44 (citing Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-886, 27 NRC 74, 78 (1988)).

above, the claims in MCEs new contention are untimely and do not raise an exceptionally grave issue. Therefore, MCE does not meet the requirements of 10 C.F.R. § 2.326(a)(2).

Moreover, even if MCE had raised their issues in a timely fashion, it still does not raise a significant environmental issue under § 2.326(a)(2). For environmental issues, the Commission has found that the standard for showing significance to reopen a closed record is analogous to the standard for supplementing an EIS.95 The Staff must prepare a supplement to a final environmental impact statement if: (1) [t]here are substantial changes in the proposed action that are relevant to environmental concerns; or (2) [t]here are new and significant circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.96 Any new information must paint a seriously different picture of the environmental landscape.97 MCE asserts that its motion and new contention raise the significant environmental issue that the Callaway EIS lacks an adequate analysis of the environmental impacts of spent fuel storage and disposal, and therefore fails to provide sufficient support for the proposed re-licensing of Callaway Unit 1.98 However, the Continued Storage Rule and Continued Storage GEIS were issued on September 19, 2014, and became effective on October 20, 2014. To the extent that the Motion to Reopen asserts that the Callaway EIS is inadequate because of its reliance on the Continued Storage Rule and GEIS, MCE does not point to any new information.

Further, MCE does not explain how the analysis in the Continued Storage GEIS is new and significant or how the GEIS paints a seriously different picture of the environmental landscape 95 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-06-03, 63 NRC 19, 29 (2006).

96 10 C.F.R. § 51.92(a)(1)-(2).

97 PFS, CLI-06-3, 63 NRC at 28 (quoting Natl Comm. for the New River, Inc. v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004) (emphasis in original)).

98 Motion to Reopen at 3-4.

for Callaway. Accordingly, MCEs claims do not constitute a significant environmental issue under 10 C.F.R. § 2.326(a)(2).

C. MCE Has Not Shown that a Materially Different Result Would Be Likely Under 10 C.F.R. § 2.326(a)(3), a motion to reopen a closed record must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.99 One Board has explained that under this standard [t]he movant must show that it is likely that the result would have been materially different, i.e., that it is more probable than not that [the movant] would have prevailed on the merits of the proposed new contention.100 While the quality of evidence presented for reopening must be at least of a level sufficient to withstand a motion for summary disposition, the Commission has made clear that the reopening standard requires more.101 The evidence must be sufficiently compelling to suggest a likelihood of materially affecting the ultimate results in the proceeding.102 MCE has not demonstrated that a materially different result would be likely in this proceeding. In its motion, MCE claims that the purpose of its new contention is to ensure that the U.S. Court of Appeals grants MCEs petition for review of the Continued Storage Rule and GEIS and reverses the NRC for failure to comply with NEPA which would result in the withdrawal of the Callaway EIS as a basis for re-licensing Callaway Unit 1.103 MCE therefore asserts that admission of this contention would likely produce a materially different result in this 99 10 C.F.R. § 2.326(a)(3) (emphasis added).

100 Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-10-19, 72 NRC 529, 549 (2010) (emphasis in original).

101 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 498.

102 Id.

103 Motion to Reopen at 4.

proceeding.104 MCEs logic is flawed. If the contention is admitted and MCE were to prevail on the merits of its contention, MCE would not have an appealable issue for federal court review, which is MCEs stated purpose for filing this new contention. Moreover, MCE appears to contradict itself in asserting that admission of its contention would produce a materially different result because it also concedes that it is submitting its new contention with the reasonable expectation that it will be denied, because the subject matter of the contention is generic.105 Further, MCE provides no evidence to establish the likelihood that, should it prevail, the Callaway EIS will be withdrawn as a basis for re-licensing; MCE simply speculates that it is reasonably likely that the U.S. Court of Appeals will reverse the NRC for failure to comply with NEPA which will result in the withdrawal of the Callaway EIS.106 Finally, MCE has not shown that a materially different result would be likely because, as explained above, MCE has failed to proffer an admissible contention under 10 C.F.R.

§§ 2.309(f)(1) and 2.309(c). MCEs new contention raises issues beyond the scope of this license renewal proceeding.107 In addition, MCE does not raise a genuine dispute with any specific portion of the Callaway application as required by 10 C.F.R. § 2.309(f)(1)(vi).

For the reasons discussed above, MCEs motion to reopen is untimely, does not address an extremely grave issue, does not address a significant environmental issue, and does not demonstrate that a materially different result would be likely if the new contention had been raised at the beginning of the proceeding. Moreover, MCE does not meet the Commissions contention admissibility standards under §§ 2.309(f)(1) and 2.309(c). MCE has thus failed to 104 Id.

105 Petition at 2 (emphasis added).

106 Motion to Reopen at 4.

107 10 C.F.R. § 2.309(f)(1)(iii).

meet the reopening standards in 10 C.F.R. § 2.326. Accordingly, MCEs motion to reopen the record in this closed proceeding should be denied.

CONCLUSION MCEs Petition to Intervene impermissibly challenges a Commission rule and thus raises an issue beyond the scope of this proceeding, does not include a request for waiver of 10 C.F.R. § 2.335(a), fails to raise a genuine issue of material fact or law, and was untimely filed without good cause. In addition, the Motion to Reopen is untimely, does not address an extremely grave issue, does not address a significant environmental issue, and does not demonstrate that a materially different result would be likely if the new contention had been raised at the beginning of the proceeding. Accordingly, both the Petition to Intervene and the Motion to Reopen should be denied.

/Signed (electronically) by/

Beth Mizuno Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-3122 Beth.Mizuno@nrc.gov Dated at Rockville, Maryland This 18th day of December, 2014

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

)

UNION ELECTRIC CO. ) Docket No. 50-483-LR (Callaway Nuclear Power Plant, Unit 1) )

)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (revised), I hereby certify that copies of the foregoing NRC STAFF ANSWER TO MISSOURI COALITION FOR THE ENVIRONMENTS HEARING REQUEST AND PETITION TO INTERVENE AND MOTION TO REOPEN THE RECORD IN THE LICENSE RENEWAL PROCEEDING FOR CALLAWAY UNIT 1 NUCLEAR POWER PLANT dated December 18, 2014, have been served upon the Electronic Information Exchange, the NRCs E-Filing System, in the above captioned proceeding, this 18th day of December, 2014.

/Signed (electronically) by/

Beth Mizuno Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15-D21 Washington, DC 20555 Telephone: (301) 415-3122 E-mail: Beth.Mizuno@nrc.gov Dated at Rockville, Maryland this 18th day of December, 2014

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