ML12177A100

Nextera'S Answer Opposing Petition to Suspend Final Licensing Decisions

ML12177A100
Person / Time
Site:	Seabrook
Issue date:	06/25/2012
From:	Doris Lewis NextEra Energy Seabrook, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	NRC/OCM
SECY RAS
References
RAS 22688, 50-443-LR, ASLBP 10-906-02-LR-BD01
Download: ML12177A100 (9)

Text

June 25, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

) Docket No. 50-443-LR NextEra Energy Seabrook, LLC )

) ASLBP No. 10-906-02-LR (Seabrook Station, Unit 1) )

NEXTERAS ANSWER OPPOSING PETITION TO SUSPEND FINAL LICENSING DECISIONS I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323, and the Order of the Secretary issued June 19, 2012,1 NextEra Energy Seabrook, LLC (NextEra) hereby answers and opposes the Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Completion of Remanded Waste Confidence Proceedings (Petition), which Friends of the Coast and the New England Coalition (Friends/NEC) filed on June 18, 2012 in the Seabrook license renewal proceeding. The Petition, which was filed in nineteen separate proceedings by some twenty-three individuals and organizations (Petitioners) that have intervened, or attempted to intervene, in opposition to those proceedings, requests the (1) suspension of all final licensing decisions until completion of the proceedings on the Commissions Waste Confidence Decision Update (WCD Update) and Temporary Storage Rule (TSR) remanded by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit)2; and (2) establishment of special procedures and timetable for Petitioners to comment on any generic determinations that 1

Calvert Cliffs Nuclear Project, L.L.C., et al. (Calvert Cliffs Nuclear Power Plant, Unit 3, et al.), Order (June 19, 2012), Order (June 19, 2012) (directing that any response to the Petition be filed no later than 12:00 p.m. EDT Monday, June 25, 2012, and not exceed ten pages).

2 New York, et al. v. NRC, No. 11-1045, 2012 WL 2053581, at *1 (D.C. Cir. June 8, 2012).

result from the remanded proceedings, and to submit contentions on site-specific issues where Petitioners believe a generic determination is insufficient. Petition at 3, 10-11.

Petitions to the Commission to suspend proceedings or to hold them in abeyance are treated as motions under 10 C.F.R. § 2.323. Ameren Missouri, et al. (Callaway Plant, Unit 2, et al.), CLI-11-05, 74 N.R.C. __, slip op. at 18-19 & n.65 (Sept. 9, 2011); AmerGen Energy Co.,

LLC, et al. (Oyster Creek Nuclear Generating Station et al.), CLI-08-23, 68 N.R.C. 461, 476 (2008); Pacific Gas & Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-02-23, 56 N.R.C. 230, 237 (2002). While the NRC rules require that motions be addressed to the Presiding Officer when a proceeding is pending, the Commission has previously indicated that suspension motions such as this are best addressed to it. Callaway, CLI-11-05, 74 N.R.C. __, slip op. at 19 n.65; Oyster Creek, CLI-08-23, 68 N.R.C. at 476; Diablo Canyon, CLI-02-23, 56 N.R.C. at 237.

As discussed below, the Petition is without merit and should be denied for multiple reasons. With respect to this license renewal proceeding, a final licensing decision is currently not expected until next year. Thus, any request now to delay the final licensing decision is premature, to say the least. Further, the Commission considers a request to suspend a licensing proceedings, including a request to suspend final licensing decisions, a drastic action that is not warranted absent immediate threats to public health and safety. Callaway, CLI-11-05, 74 N.R.C. __, slip op. at 19, quoting Oyster Creek, CLI-08-23, 68 N.R.C. at 484. See also Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 N.R.C.

151, 173-74 (2000). The Petition neither addresses nor satisfies this standard, and otherwise provides no information even remotely suggesting any threat to public health and safety.

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Nor should Petitioners (or any other person) be accorded any special procedural rights with respect to commenting on the WCD Update and TSR remand proceedings, or for requesting late-intervention or hearings on late-contentions in any proceeding. Although the Commission has not yet indicated how it will handle the generic remand proceedings,3 public participation should be consistent with the established processes for any actions the Commission directs in response to the D.C. Circuit remand. Callaway, CLI-11-05, 74 N.R.C. __, slip op. at 37. And with respect to individual licensing proceedings, the Commission has previously rejected similar requests for special procedures and timetables, making it abundantly clear that its existing procedures are more than adequate. Id. at 35.

II. DISCUSSION A. Suspension of Final Licensing Decisions is Premature and Inappropriate in the Absence of Any Immediate Threat to Public Health and Safety The Commission should reject the Petition in the first instance because it is premature.

As an initial matter, Petitioners acknowledge that the mandate has not issued from the D.C.

Circuit. Petition at 3-4 n.1. Indeed, the mandate could be further delayed should, for example, rehearing be requested. Thus, there is no basis for the Commission to grant the relief requested by the Petition now. And even beyond the status of the Courts mandate, any suspension request is premature because issuance of a renewed license for Seabrook is not expected until at least the 3

The Commissions historical approach has been to treat temporary spent fuel storage and waste confidence generically by rule. The Court in New York, et al (slip opinion at 20) also recognized that the temporary spent fuel storage and waste confidence issues may be appropriate for generic resolution, consistent with longstanding precedent. NextEra endorses the procedural steps outlined in the comments to the Commission by the Nuclear Energy Institute (letter dated June 25, 2012). (1) The Commission should announce its intent to expeditiously conduct a rulemaking to supply the analyses required to support the WCD Update and TSR. (2) The Commission should make clear that the issues involved in the rulemaking will not be accepted for hearing in individual adjudications. (3) The Commission should direct the Atomic Safety and Licensing Boards in ongoing contested proceedings to hold in abeyance any contentions seeking to raise waste confidence or temporary spent fuel storage issues until the Commission formally initiates a rulemaking; at that point, contentions held in abeyance should be dismissed.

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middle of next year.4 There simply is no need for the Commission to suspend this proceeding now, or even when the Courts mandate issues. See Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station & Pilgrim Nuclear Power Station), CLI-07-3, 65 N.R.C. 13, 22 n.37 (2007) (holding that a request to withhold final decisions pending action on a rulemaking petition was premature when final decisions are not expected for another year or more.).

Further, the Petition falls far short of the Commissions high standard for suspending a final licensing decision. The Petition does not even address the standard. The Commission has rejected analogous petitions that requested, among other things, suspension of final licensing decisions in numerous matters in light of the Commissions ongoing review of the Fukushima accident. Callaway, CLI-11-05, 74 N.R.C. __, slip op. at 3, 20. The Commission applied its longstanding precedent holding that such suspension would be a drastic action that is not warranted absent immediate threats to public health and safety. Id. at 19, quoting Oyster Creek, CLI-08-23, 68 N.R.C. at 484. See also Vermont Yankee, CLI-00-20, 52 N.R.C. at 173-

74. The same analysis applies here. The Petition specifically requests suspen[sion of] final licensing decisions in all pending NRC licensing proceedings. Petition at 3. The Commission should reject the Petition because it does not even claim, let alone show, any threat to the public health and safety.

The Petition incorrectly argues that the Commissions decision in Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-10-19, 72 N.R.C. 98 (2010) is precedent 4

See review schedule at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/seabrook.html The draft supplemental environmental impact statement (SEIS) in this proceeding is not scheduled to be issued until December of this year, and the final SEIS is not scheduled to be issued until April 2013. The Staff has not yet scheduled a date for issuance of the final Safety Evaluation Report or for a final licensing decision, but a final licensing decision would occur after issuance of the final SEIS and after completion of the pending adjudicatory hearing. A contention relating to severe accident mitigation alternatives remains pending before the Atomic Safety and Licensing Board for hearing. See NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI 05, 75 N.R.C. __ (Mar. 8, 2012).

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applicable here. Petition at 5, 10. Petitioners mischaracterize Indian Point. Contrary to Petitioners assertions, the Commission did not order suspension of the Indian Point license renewal decision pending resolution of the Commissions initial waste confidence ruling. See Petition at 10. In that case, the Commission ruled that a proffered contention seeking to challenge onsite waste storage issues was inadmissible under longstanding NRC policy that licensing boards should not accept in individual licensing proceedings contentions that are, or are about to become, the subject of a general rulemaking by the Commission. Indian Point, CLI 19, 72 N.R.C. at 100. The Commission stated that, at that time, its deliberations on the waste confidence update were continuing, and that in any event [the Commission] will not conclude action on the Indian Point license renewal application until the rulemaking is resolved.

Id. The Commissions statement amounted to a mere observation that, as a practical matter, it would complete action on the waste confidence rulemaking before renewing Indian Points operating license, which is, in fact, what occurred.5 Moreover, the Indian Point decision provides no indication that the Commission intended that decision to result in suspension of the license renewal decision pending resolution of the rulemaking because the Commission nowhere addressed its own high threshold for such a suspension - a showing of an immediate threat to public health and safety. Thus, Petitioners characterization of CLI-10-19 as precedent for suspending a final licensing decision pending completion of a rulemaking is far off the mark and provides no support for the present suspension request.

5 At the time CLI-10-19 was issued, the Staff had not yet issued the final supplement to the safety evaluation report or the final supplemental environmental impact statement supporting license renewal, and would not do so for a number of months. See Milestone Schedule for Indian Point Units 2 and 3 License Renewal, available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/indian-point.html#schedule. The WCD Update issued in December 2010, and the Indian Point proceeding remains ongoing.

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B. No Special Procedures or Timetable Are Required The Commission should reject Petitioners requests for special procedures and timetables on the same grounds that the Commission rejected similar requests in Callaway. First, Petitioners request that the Commission allow them to comment on any generic determination that the NRC may make with respect to the remanded WCD Update and TSR. Petition at 11.

More specifically, the Petitioners request that, if the Commission prepares an environmental assessment to address the remanded issues, the Commission provide Petitioners an opportunity to comment on that assessment. Second, Petitioners request that the Commission allow them to raise contentions in individual licensing proceedings where they believe that the generic rulemaking is insufficient to address its concerns, and be provided with at least 60 days to seek consideration of site-specific safety or environmental concerns raised by the remanded proceeding. Id. The Commission should reject both requests.

With respect to the first request, it should be denied because it is premature and unsupported. It is premature because the Commission has not yet established the processes it will employ to address the generic issues raised by the D.C. Circuit remand. Further, the Petition provides no support for requesting a level of public participation different from that which would typically accompany agency processes. Once the Commission does establish the processes for addressing those generic issues, any public participation should be consistent with the established processes for any actions that [the Commission] directs the NRC Staff to undertake.

Callaway, CLI-11-05, slip op. at 37 (rejecting Commonwealth of Massachusetts request for additional reasonable time following completion of the release of the NRCs own findings on the lessons of Fukushima to comment on them and propose licensing or regulatory changes as appropriate). The Petition nowhere justifies any deviation from the normal course.

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The second request should also be denied because [n]either new procedures nor a separate timetable for raising new issues is warranted. Callaway, CLI-11-05, slip op. at 35.

When rejecting similar requests for new procedures and new timetables, including a sixty-day period for raising new issues following the publication of regulatory proposals or environmental decisions, id. at 32, the Commission held that its procedural rules contain ample provisions through which litigants may seek admission of new or amended contentions, seek stays of licensing board decisions, appeal adverse decisions, and file motions to reopen the record, as appropriate.

Id. at 35. Thus, for example, should Friends/NEC conclude that any generic rulemaking promulgated to address the issues raised by the remand is insufficient to address its site-specific concerns, Friends/NEC could petition for waiver of that rule under 10 C.F.R. § 2.335.6 In other words, the Commissions rules already specify the precise means for Petitioners to seek redress of any site-specific concern they may have.

III. CONCLUSION For all of the above stated reasons, the Petition should be denied.

Respectfully Submitted,

/Signed electronically by David R. Lewis/

David R. Lewis PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Tel. (202) 663-8474 Counsel for NextEra Dated: June 25, 2012 6

One of the four criteria used to evaluate a Section 2.335 petition for waiver is that the waiver petition raises circumstances . . . unique to the facility rather than common to a large class of facilities. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 N.R.C. 551, 559-60 (2005)

(quotations and citations omitted).

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

) Docket No. 50-443-LR NextEra Energy Seabrook, LLC )

) ASLBP No. 10-906-02-LR (Seabrook Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that NextEras Answer Opposing Petition to Suspend Final Licensing Decisions, dated June 25, 2012, was provided to the Electronic Information Exchange for service to those individuals on the service list in this proceeding, this 25th day of June, 2012.

Secretary Office of Commission Appellate Attn: Rulemakings and Adjudications Staff Adjudication U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 hearingdocket@nrc.gov E-mail: OCAAMAIL@nrc.gov Administrative Judge Administrative Judge Paul S. Ryerson, Esq., Chair Dr. Michael Kennedy Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Email: psr1@nrc.gov Email: michael.kennedy@nrc.gov Administrative Judge Mary Spencer, Esq.

Dr. Richard E. Wardwell Maxwell C. Smith, Esq.

Atomic Safety and Licensing Board Office of the General Counsel Mail Stop T-3 F23 Mail Stop O-15 D21 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Email: richard.wardwell@nrc.gov E-mail: mary.spencer@nrc.gov

Raymond Shadis Matthew Brock, Esq.

New England Coalition Assistant Attorney General Post Office Box 98 Environmental Protection Division Edgecomb, Maine 04556 Office of the Attorney General E-mail: shadis@prexar.com One Ashburton Place, 18th Floor Boston, Massachusetts 02108 E-mail: matthew.brock@state.ma.us

/Signed electronically by David R. Lewis/

David R. Lewis 2