ML13150A420
| ML13150A420 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 05/30/2013 |
| From: | Crystal H, Fettus G, Roisman A Meyer Glitzenstein & Crystal, National Legal Scholars Law Firm, PC, Natural Resources Defense Council |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24602, 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01 | |
| Download: ML13150A420 (11) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )
)
EXELON GENERATION COMPANY, LLC ) Docket No. 50-352-LR
) Docket No. 50-353-LR (Limerick Generating Station, Units 1 and 2) )
May 30, 2013 (License Renewal Application)
NATURAL RESOURCES DEFENSE COUNCILS RESUBMISSION OF CONTENTIONS IN RESPONSE TO STAFFS SUPPLEMENTAL DRAFT ENVIRONMENTAL IMPACT STATEMENT I. INTRODUCTION Pursuant to 10 C.F.R. § 2.309, and the Scheduling Order dated September 4, 2012, Natural Resources Defense Council (NRDC) hereby sets forth updated Contentions regarding the Draft Supplemental Environmental Impact Statement (DSEIS) for the relicensing of the Limerick Generating Station, Units 1 and 2 (LGS), whose public availability was announced May 1, 2013. See NRC Staff letter of May 1, 2013. Three sets of Contentions are addressed by this submission. First, on November 22, 2011, NRDC presented four Environmental Contentions over the adequacy of consideration concerning Severe Accident Mitigation Alternatives (SAMAs) in Exelon Generation Company, LLCs (Exelon) Environmental Report (ER). The Atomic Safety Licensing Board (ASLB) admitted some components of those Contentions, and denied admission of others. See In re Exelon Generation Co., LBP-12-8 (ASLB Apr. 4, 2012) (ASLB Op). With regard to these Contentions, the purpose of the update is to simply direct the original Contentions to the DSEIS rather than the Environmental Report
(ER), since the bases for the Contentions has not changed. As explained below, this update is provided simply to preserve those Contentions for consideration by a reviewing Court, is not intended to relitigate any issue already resolved in the administrative process concerning their admissibility. For purposes of this proceeding, at this point in time, and without waiving any rights to appeal either by a timely motion for reconsideration or to the Commission or an appellate court, NRDC accepts the Boards ruling on the admissibility of these contentions as they applied to the ER as binding on them as applied to the DSEIS.
Second, on March 13, 2013, NRDC submitted a brief in support of its Waiver Petition seeking the admission of certain aspects of the original Contentions. See NRDC Brief in Support of Waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L) (NRDC Waiver Br.) (Mar. 13, 2013); see also CLI-12-19 (Oct. 23, 2012) (authorizing NRDC to submit a Waiver Petition seeking admission of Contentions 1E, 2E and 3E). Again, as to these Contentions, by this submission NRDC simply intends to direct the Contentions and their Bases presently under consideration to the DSEIS, which contains the same fundamental analytical flaws as the Exelon ER. No other changes to the Contentions or their Bases are requested.
Third, on July 9, 2012, NRDC submitted a supplemental new contention based on the United States Court of Appeals for the District of Columbia Circuits decision in the matter of New York. et al.v. NRC, 681 F.3d 471 (D.C. Cir. 2012), which invalidated NRCs Waste Confidence Decision Update, Temporary Storage Rule and the major portions of 10 C.F.R. § 51.23(a) upon which Exelon relied in issuing the ER in support of its license application. As explained below, this update is also provided simply to preserve this Contention for consideration, and also is not intended to litigate any issue not yet ripe for resolution in the 2
administrative process. Thus, again, as to this Contention and cognizant that this matter is currently in abeyance, by this submission NRDC intends to direct the Contention and its Basis presently under consideration to the DSEIS, which contains the same fundamental analytical flaws as the Exelon ER. No other changes to the Contention or its Basis are requested.
II. UPDATED CONTENTIONS As to all of NRDCs Contentions, the only change from the ER to the DSEIS is the Staffs discussion of reasons that the NRC will not consider potential new severe accident mitigation alternatives (SAMAs) and new and significant information regarding those SAMAs. See DSEIS at Section 5.3. None of this discussion resolves NRDCs Contentions, which are not to be resolved on the merits at this stage of the proceeding. E.g. Private Fuel Storage, L.L.C., 60 N.R.C. 125, 139 (2004) (we do not expect a petitioner to prove its contention at the pleading stage).
Indeed, as in the ER, the DSEIS states point blank that no analysis of SAMAs for
[Limerick] is required . . . . DSEIS at 5-3; id at 5-13 (Exelon was not required to, and did not, submit a SAMA in its license renewal ER). Rather, NRC Staff takes the same legal position as Exelon - i.e., that 10 C.F.R. § 51.53(c)(3)(ii)(L) exempts Exelon from its NEPA obligation, codified at 10 C.F.R. § 51.53(c)(3)(iv), to fully and fairly consider new and significant information concerning SAMAs as part of the Limerick relicensing process.
In addition, NRC Staff claims in the DSEIS that this analysis is neither required nor necessary because NRC has been engaged in other processes to address these issues. DSEIS at 5-4 to 5-5 (discussing, e.g., IPE process). This assertion must fail, for it is well-established that alternative processes cannot substitute for NEPA review. E.g. United States v. Coal. For 3
Buzzards Bay, 644 F.3d 26, 38 (1st Cir. 2011) (rejecting argument that alternative process can substitute for NEPA); Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 729 (3d Cir. 1989)
(AEA procedures cannot substitute for compliance with NEPA). As regards these processes in particular, since there is no obligation in them for the licensee or the Commission to explain why it has or has not adopted a particular SAMA, it is even more evident that they cannot substitute for the NEPA process, as part of which the Commission must either take[ ] all practicable measures within its jurisdiction to avoid or minimize environmental harm from the alternative selected, or, at minimum, explain why those measures were not adopted. 10 C.F.R. § 51.103(a)(4) (emphasis added). Indeed, that is why the Commission previously rejected the industry effort to avoid all SAMA analyses in favor of these alternative review procedures. 66 Fed. Reg. 10,834, 10,836 (2001) (determining that the Commission should continue to consider SAMAs for individual license renewal applications to continue to meet its responsibilities under NEPA). Similarly, the purported evaluation of new information in the DSEIS contains the same deficiencies as in the ER, DSEIS at 5-8 to 5-14, and thus the Bases and supporting evidence for NRDCs Contentions remain unchanged.
A. Update to Contentions As Submitted In NRDCs Petition To Intervene NRDCs Petition to Intervene raised four Environmental Contentions concerning the consideration of new and significant information related to SAMAs in the Limerick ER. As noted, the ASLB admitted aspects of several of the Contentions, and denied others.
Subsequently, the Commission ruled that the proper procedural vehicle for NRDC to pursue its Contentions was by way of a Waiver Petition, see In re Exelon Generation Co., CLI 19, 2012 WL 5266118 (N.R.C. Oct. 23, 2012), which is now pending before the Commission.
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By this submission NRDC updates its original Contentions, as follows:
CONTENTION 1E: THE DSEIS APPLICANTS ENVIRONMENTAL REPORT (§ 5.3) ERRONEOUSLY CONCLUDES THAT NEW INFORMATION RELATED TO THE APPLICANTS ITS SEVERE ACCIDENT MITIGATION DESIGN ALTERNATIVES (SAMDA) ANALYSIS IS NOT SIGNIFICANT, IN VIOLATION OF 10 C.F.R. § 51.53(c)(3)(iv), AND THUS THE DSEIS ER FAILS TO PRESENT A LEGALLY SUFFICIENT ANALYSIS OF SEVERE ACCIDENT MITIGATION ALTERNATIVES.
CONTENTION 2E: THE DSEIS APPLICANTS ENVIRONMENTAL REPORT (§ 5.3) IN RELYING ON A SAMDA ANALYSIS FROM 1989 FAILS TO COMPLY WITH 10 C.F.R. §§ 51.45, 51.53(c)(2) AND 51.53(c)(3)(iii) BECAUSE IT DOES NOT INCLUDE AN ACCURATE OR COMPLETE ANALYSIS OF ALTERNATIVES AVAILABLE FOR REDUCING OR AVOIDING ADVERSE ENVIRONMENTAL EFFECTS, DOES NOT CONTAIN SUFFICIENT DATA TO AID THE COMMISSION IN ITS DEVELOPMENT OF AN INDEPENDENT ANALYSIS OF ALTERNATIVES AND DOES NOT CONTAIN AN ADEQUATE CONSIDERATION OF ALTERNATIVES FOR REDUCING ADVERSE IMPACTS . . . FOR ALL CATEGORY 2 LICENSE RENEWAL ISSUES.
CONTENTION 3-E: THE DSEIS APPLICANTS ENVIRONMENTAL REPORT ERRONEOUSLY CONCLUDES THAT THE SAMDA ANALYSIS CONDUCTED IN 1989 IS A SAMA ANALYSIS WITHIN THE MEANING OF 10 C.F.R. § 51.53(c)(3)(ii)(L) AND THUS THE DSEIS ER IS DEFICIENT FOR ITS FAILURE TO INCLUDE A SAMA ANALYSIS.
CONTENTION 4-E: THE DSEIS APPLICANTS ENVIRONMENTAL REPORT (§ 7.2) FAILS TO ADEQUATELY CONSIDER THE NO ACTION ALTERNATIVE IN VIOLATION OF 10 C.F.R. §§ 51.45 (c), 51.53(c)(2) AND 51.53(c)(iii).1 As noted, NRDC submits these updated Contentions simply to preserve them for subsequent judicial review, and incorporates by reference the bases and supporting evidence for these Contentions submitted at the time the Contentions were originally filed. NRDC is not requesting that the Board revisit its determinations as to the admissibility of these Contentions, 1
As noted, the Bases for these Contentions are the Bases provided in NRDCs Petition to Intervene, with the references to the ER substituted to refer to the DSEIS, and are not repeated here.
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and thus no further Board action is requested or required at this time.
B. Update To Contentions Under Consideration In Waiver Petition Pending Before The Commission With respect to the Contentions pending before the Commission in NRDCs Waiver Petition, NRDC similarly hereby resubmits the Contentions, with the DSEIS substituted for the ER as follows:
- a. NRC StaffExelon has omitted from the DSEIS its ER a required analysis of new and significant information regarding potential new severe accident mitigation alternatives previously considered for other BWR Mark II Containment reactors (Contention 1E-1)
- b. NRC Staffs Exelons reliance on data from TMI in its analysis of the significance of new information regarding economic cost risk constitutes an inadequate analysis of new and significant information (1E-2).
- c. A legally sufficient analysis of newly identified severe accident mitigation alternatives for Limerick must utilize modern techniques for assessing whether those alternatives are cost-beneficial, and the DSEIS Exelons ER erroneously concluded that new mitigation alternatives can be evaluated without use of those modern techniques (3E).2 All other references to the ER in NRDCs Contention Bases are similarly updated to refer to the DSEIS. Similarly, at this time NRDC incorporates by reference the supporting evidence offered at the time these Contentions were originally submitted.
C. Update to Waste Confidence Contention On July 9, 2012, NRDC submitted a supplemental new contention based on the ruling in New York. et al.v. NRC, 681 F.3d 471 (D.C. Cir. 2012), which invalidated NRCs Waste Confidence Decision (WCD) Update, Temporary Storage Rule and the major portions of 10 2
These are the Contentions as framed in NRDCs Waiver Brief (at 20-21).
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C.F.R. § 51.23(a) upon which Exelon relied in issuing the ER in support of its license application. NRDC filed two clarifying Errata on July 10, 2012. On August 2, 2012, NRC Staff and Exelon filed answers objecting to the contention, asserting it was premature, not within the scope of the proceedings, not material to the findings the agency must make to support its licensing action, and that no adequate basis has been provided to support the contention.
In response to the Courts ruling and before NRDC could reply to Exelon and Staff, the Commission determined that it would not issue licenses dependent upon the WCD, until the issues identified in the courts decision are appropriately addressed. CLI-12-16 (NRC 2012a), at
- 4. Further, the Commission, availing itself of its inherent supervisory authority over adjudications, directed that these contentions be held in abeyance pending further order. Id. at 6; see also this Boards decision in ASLBP No. 12-916-04-LR-BD01, August 8, 2012, Order (Suspending Procedural Date Related to Proposed Waste Confidence Contention) (Given the Commissions direction in CLI-12-16 that the proceedings before the boards be held in abeyance, the August 16, 2012 deadline for any NRDC reply is suspended.).
Subsequently, the Commissioners indicated their intent to develop a revised Waste Confidence Decision and Rule that addressed the courts remand and directed the staff to continue with licensing reviews and proceedings during this rulemaking. The Commission directed the staff to complete a revised, final Waste Confidence Decision and Rule by September 5, 2014. See SECY-12-0132, Catherine Haney, Director Office of Nuclear Material Safety and Safeguards, Implementation Of Commission Memorandum And Order CLI-12-16 Regarding Waste Confidence Decision And Rule, October 3, 2012. On October 25, 2012, NRC published in the Federal Register the Waste Confidence Scoping Notice, its Consideration of Environmental 7
Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation: Request for comments on the notice of intent to prepare and environmental impact statement and notice of public meetings. See 77 Fed. Reg. 65137 (October 25, 2012). This EIS process is currently underway.
Turning to the instant matter, as with the ER, the Draft SEIS states the offsite radiological impacts resulting from spent fuel and high-level waste disposal and the onsite storage of spent fuel, which will occur after the reactors have been permanently shut down, are addressed in the Commissions Waste Confidence Decision Rule, citing 10 C.F.R. § 51.23. See DSEIS at 6-1 to 6-3. However, the DSEIS acknowledges the DC Circuits decision in New York et al., and the Commissions subsequent direction to produce an EIS, and notes that it will not issue a renewed license before the resolution of waste confidence-related issues. Id.
In order to preserve our contention for further review, NRDC similarly hereby resubmits this Contention, with the DSEIS substituted for the ER as follows:
SUPPLEMENTAL CONTENTION 1 THE DSEIS ENVIRONMENTAL REPORT FOR LIMERICK RELICENSING FAILS TO COMPLY WITH THE REQUIREMENTS OF THE NATIONAL ENVIRONMENTAL POLICY ACT AND ALL RELEVANT IMPLEMENTING REGULATIONS INCLUDING BUT NOT LIMITED TO 10 C.F.R. §§ 51.20(b)(2), 51.45, 51.53(c)(1) and (2), 51.71(d), 51.90, 51.91(c), 51.95(c)(1), 51.95(c)(2), AND 51.101(a)
BECAUSE IT FAILS TO INCLUDE OR INCORPORATE A LEGALLY SUFFICIENT ANALYSIS OF THE ENVIRONMENTAL IMPACTS OF ON-SITE STORAGE OF NUCLEAR WASTE AFTER THE CONCLUSION OF THE EXTENDED OPERATING PERIOD, INCLUDING THE IMPACTS IN THE EVENT THAT NO PERMANENT REPOSITORY IS EVER ESTABLISHED, AND FAILS TO CONSIDER ALTERNATIVES TO MITIGATE THOSE IMPACTS; BECAUSE THERE IS NO VALID ANALYSIS OF THESE ISSUES, NRC MAY NOT REACH A FINAL DECISION ON WHETHER TO RENEW LIMERICKS OPERATING LICENSES UNITL SUCH A VALID ANALYSIS HAS BEEN COMPLETED IN COMPLIANCE WITH APPLICABLE FEDERAL LAW AND REGULATIONS.
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III. CONCLUSION For the foregoing reasons, NRDC respectfully requests that the Board accept these updated Contentions, which simply direct NRDCs original and still-pending Contentions and Supplemental Contention to the newly released DSEIS. Other than accepting these updated Contentions NRDC seeks no action from the Board at this time.
Respectfully Submitted, s/ (electronically signed)
Howard M. Crystal Meyer Glitzenstein & Crystal 1601 Connecticut Ave., N.W., Suite 700 Washington, D.C. 20009 (202) 588-5206 hcrystal@meyerglitz.com s/ (electronically signed) s/(electronically signed)
Anthony Z. Roisman Geoffrey H. Fettus National Legal Scholars Law Firm, P.C. Natural Resources Defense Council 241 Poverty Lane, Unit 1 1152 15th Street, NW, Suite 300 Lebanon, NH 03766 Washington, D.C. 20005 603-443-4162 202-289-2371 aroisman@nationallegalscholars.com gfettus@nrdc.org Filed this 30th of May, 2013 9
CERTIFICATE OF SERVICE I hereby certify that copies of the NATURAL RESOURCES DEFENSE COUNCILS RESUBMISSION OF CONTENTIONS IN RESPONSE TO STAFFS SUPPLEMENTAL DRAFT ENVIRONMENTAL IMPACT STATEMENT in the captioned proceeding were served on the 30th day of May, 2013 via the Electronic Information Exchange (EIE) on the following ,
which to the best of my knowledge resulted in transmittal of same to those on the EIE Service List for the captioned proceeding:
Chief Judge Roy Hawkens U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Office of the Secretary of the Commission Mail Stop: T-3F23 Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 hearingdocket@nrc.gov Roy.Hawkens@nrc.gov U.S. Nuclear Regulatory Commission Exelon Generation Company, LLC Office of Commission Appellate Adjudication 4300 Warrenville Road Mail Stop: O-16C1 Warrenville, IL 60555 Washington, DC 20555-0001 J. Bradley Fewell, Deputy General Counsel ocaamail@nrc.gov Bradley.Fewell@exeloncorp.com 10
Morgan, Lewis & Bockius LLP Office of the General Counsel 1111 Pennsylvania Avenue, N.W. U.S. Nuclear Regulatory Commission Washington, DC 20004 Mail Stop O-15D21 Alex S. Polonsky, Esq. Washington, DC 20555-0001 apolonsky@morganlewis.com ogcmailcenter@nrc.gov Kathryn M. Sutton, Esq. Catherine Kanatas ksutton@morganlewis.com catherine.kanatas@nrc.gov Brooke E. Leach Brian Newell bleach@morganlewis.com brian.newell@nrc.gov Maxwell Smith maxwell.smith@nrc.gov Mary Spencer mary.spencer@nrc.gov Ed Williamson edward.williamson@nrc.gov
/Signed (electronically) by/
Howard M. Crystal 11