ML22066B335
| ML22066B335 | |
| Person / Time | |
|---|---|
| Site: | Peach Bottom  |
| Issue date: | 03/07/2022 |
| From: | Ferraro D, Leidich A, Doris Lewis Constellation Energy Generation, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-277-SLR, 50-278-SLR, ASLBP 19-960-01-SLR-BD01, CLI-22-04, RAS 56362 | |
| Download: ML22066B335 (8) | |
Text
March 7, 2022
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
Before the Commission
In the Matter of )
)
Constellation Energy Generation, LLC ) Docket Nos. 50- 277-SLR (f/k/a Exelon Generation Company, LLC) ) 50- 278-SLR
)
Peach Bottom Atomic Power Station, )
Units 2 and 3 )
Petition for Partial Reconsideration of CLI 04
Pursuant to 10 C.F.R. § 2.341(d) and 10 C.F.R. § 2.323(e), Constellation Energy
Generation, LLC (Constellation, formerly known as Exelon Generation Company, LLC)
hereby requests reconsideration of the portion of the Commissions decision in CLI 04,
Memorandum and Order (February 24, 2022) directing the Nuclear Regulatory Commission
(NRC) Staff to amend the expiration dates in the subsequent renewed licenses for the Peach
Bottom Atomic Power Station (Peach Bottom), Units 2 and 3. 1 Constellation requests that the
Commission entertain this petition because t he Commissions order directing the license
amendments constitute s a clear and material error that : (1) Constellation could not have
reasonably anticipated as the Commission gave no notice that i t was reconsidering the
applicability of its environmental rules and its generic environmental impact statement on license
renewal (GEIS) 2 to subsequent license renewal proceedings, and (2) as discussed below,
renders the decision to amend the license expiration dates invalid.
1 CLI 04, slip op. at 3.
2 NUREG-1437, Revision 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013).
4882-2693-9666.v4 The Commissions decision directing the amendment of the expirationdates in the Peach
Bottom licenses is arbitrary and capricious, and an abuse of discretion, be cause it is not
supported by an adequate explanation or reasoned analysis of the effects of this partial vacatur of
the Peach Bottom licenses. As discussed below, the Commission should applythe standards in
Oglala Sioux Tribe v. NRC, 896 F.3d 520(D.C. Cir. 2018), and Allied -Signal, Inc. v. NRC, 988
F.2d 146 (D.C. Cir. 1993). The Commissions decision is also arbitrary and capricious, and an
abuse of discretion, because it is inconsistent with the timely renewal provisions in the
Administrative Procedure Act, which give Constellation an absolute statutory right to continue to
operate the Peach Bottom units until its subsequent license renewal application has been finally
determined by the agency. 3 Consequently, shortening the expiration date in the licenses is
contrary to law, serves absolutely no purpose, and among other potentially disruptive effects
discussed below, sows confusion with the public and other stakeholders. 4 And unfortunately, the
3 5 U.S.C. § 558(c) (When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.). See also 10 C.F.R. § 2.109(b) ( If the licensee of a nuclear power plant licensed under 10 CFR 50.21(b) or 50.22 files a sufficient application for renewal of either an operating license or a combined license at least 5 years before the expiration of the existing license, the existing license will not be deemed to have expired until the application has been finally determined. ). The application for subsequent license renewal of the Peach Bottom units was determined by the NRC Staff to be sufficient before docketing. Letter from G. Wilson, NRC, to M. Gallagher, Exelon, Peach Bottom Atomic Power Station, Units 2 and 3, Determination of Acceptability and Sufficiency for Docketing, Proposed Review Schedule, and Opportunity for a Hearing Regarding Exelon Generation Company LLC Application for Subsequent License Renewal (Aug. 27, 2018) (ADAMS Accession No. ML18191B085); see also 83 Fed. Reg.
45,285 (Sept. 6, 2018) (By letter dated August 28, 2018, the NRC Staff determined that Exelon had submitted sufficient information in accordance with 10 CFR 54.19, 54.21, 54.22, 54.23, 51.45, and 51.53(c), to enable the staff to undertake review of the application, and that the application is therefore acceptable for docketing.).
4 Leaving the subsequent renewed licenses for the Peach Bottom units in place with the license expiration dates unchanged is the best approach for recognizing and allowing their operation under the timely renewal doctrine.
While reinstating the previous Peach Bottom licenses would also preserve Constellations rights under the t imely renewal doctrine, that approach would eliminate the license conditions that were imposed as part of subsequent license renewal, which adopt the Updated Final Safety Analysis Repor t Supplement developed for subsequent license renewal and require compliance with the subsequent license renewal commitments (including enhancement to aging management programs) that must be completed prior to the second period of extended operation. Peach Bottom Atomic Power Station, Unit 2 - Subsequent Renewed Facility Operating License (ADAMS Accession No. ML052720266), License Condition 2.C(19); Peach Bottom Atomic Power Station, Unit 3 - Subsequent Renewed Facility Operating License (ADAMS Accession N o. ML052720269), License Condition
2 4882-2693-9666.v4 Commissions failure to consider the disruptive effects of its decision comes at this unique
moment in time when our country must take urgent action to address the climate crisis and
energy security.The current Russian -Ukraine conflict and the uncertain state of geopolitics
make clear, now more than ever, the importance of our nations largest source of non -fossil fuel
electric generation. Our nations existing nuclear fleet,by its very nature, is needed to keep
America on a path toward energy independence and to help protect against the adverse effects on
all Americans of fossil fuel supply disruptions and soaring energy prices.
In Oglala Sioux, the U.S. Court of Appeals for the District of Columbia Circuit applied
the standard in Allied -Signal in determining whether a license should be vacated following a
finding that the environmental review under the National Environmental Policy Act (NEPA)
supporting issuance of the license was deficient. 5 On remand, t he Commission then relied on
this sam e analysis in determining that the license at issue should remain in effect. 6 Moreover,
the Commission stated:
[W]e expect that the principles discussed in this order, and in the courts Oglala Sioux Tribe opinion, will help to frame and inform conside ration of any future questions regarding remedy that may arise in those limited categories of NRC hearings for which post-license-issuance hearings are permissible under § 2.1202(a). 7
These same principles appear equally applicable regarding remedyarisin g from post-license-
issuance decisions on Commission review.
2.C(19). In short, reinstating the prior license would accomplish nothing other than to eliminate beneficial license conditions supporting the second period of extended operation.
5 Oglala Sioux, 896 F.3d at 536-38.
6 Powertech (USA), Inc. (Dewey Burdock In Situ Uranium Recovery Facility), CLI 01, 89 N.R.C. 1, 8 (2019)
( [T]he courts choice of remedy suggests to us that vacating Powertechs license will continue to remain inappropriate unless there is som e material change in the circumstances the court considered under its Allied -
Signal analysis. ).
7 Id. at 11. While Commissioner Baran dissented regarding the Commissions decision not to perform its own equitable analysis de novo, his dissent recognized the need for the Commission to weigh the equities at stake and make a fact-based decision about whether to leave the license in place prior to the NRC Staffs completion of an adequate NEPA analysis. Id. at 13.
3 4882-2693-9666.v4 Under the standards set forth in Oglala Sioux and Allied -Signal, a decision to vacate a
license to remedy a perceived deficiency in the NEPA review should consider (1) the seriousness
of the deficiency in the NRC Staffs review and thus the extent of doubt whether the agency
chose correctly, and (2) the disruptive consequences of an interim change that may itself be
changed. 8 More important (as the Court stated in Oglala Sioux ), the decision should consider
whether any harmirreparable or otherwise would occur from a dispositionthat leaves the
license in effect for now. 9 An analysis under these standards weighs strongly in favor of keeping
the subsequent renewed licenses in place without modifying the expiration dates to eliminate the
subsequent period of operation, since eliminating the second period of extended operation will
only cause significant uncertainty and harm to Constellation without benefitting any NEPA
interests.
First, with respect to the seriousness of the NEPA deficiency perceived by the
Commission, there is nothing in the current record showing that the NRC Staffs evaluation of
the impacts from any Category 1 issue in the Supplement to the GEIS for Peach Bottom is
incorrect or will need to be changed. 10 T here is nothing in the record of the Peach Bottom
proceeding indicating that the en vironmental effects of a Category 1 issue might not be the same
in a second period of extended operation as in the first.In fact, t he Commission acknowledged
in CLI-22-02 that the Staff may have intended the 2013 GEIS to address subsequent license
8 Oglala Sioux, 896 F.3d at 538 (quoting Allied-Signal, 988 F.2d at 150- 51).
9 Oglala Sioux, 896 F.3d at 538.
10 The only issue that remained before the Commission in this proceeding was whether the discussion of the environmental impacts of design-basis accidents in Draft Supplement 10 to Generic Environmental Impact Statement for Subsequent License Renewal of Peach Bottom Operating License was adequate. See Beyond Nuclear, Inc.s Motion to Reopen the Record for Purposes of Considering and Admitting a New Contention Based on Draft Supplement 10 to Generic Environmental Impact Statement for Subsequent License Renewal of Peach Bottom Operating License and Request for Consideration of Some Elements of the Motion Out of Time (Sept. 23, 2019) at 1. There is nothing in the re cord establishing that these impacts are anything other than small.
4 4882-2693-9666.v4 renewal. 11 Further, both Constellation and the NRC Staff considered whether there was any new
and significant information affecting the applicability of the Category 1 findings to Peach
Bottom. Consequently, when the NRC Staff performs its revision to the GEIS, it may well be
the case that all the analyses of Category 1 issues in the 2013 GEIS are found to be applicable to
Peach Bottom in the second period of extended operation.Thus, whether any of the
environmental findings currently supporting such operation will need to be changed is in doubt.
Second, amending the expiration dates in the subsequent renewed licenses for the Peach
Bottom units will have disruptive consequences. First, amending the expiration dates creates
confusion (and misleads the public a nd other stakeholders) regarding Constellations statutory
right and authority to operate those units under the timely renewal provision in the
Administrative Procedure Act while the Staff is performing additional environmental review,
regardless of whether that review and any further hearings are completed by 2033-2034. 12 Other
disruptive effects that could occur if the Commission proceeds with the license amendments
include, but are not limited to: (i) accelerated depreciation expense(estimated to be tens of
millions of dollars per year for Constellations 50% share of Peach Bottom ), affectingthe
income statement for the parent company, (ii) an increase in the asset retirement obligation
(ARO) attributable to the change in license expiration dates, which results in a larger liability
11 CLI 02, slip op. at 10.
12 See, e.g., Robert Bryce, Forbes NRC Rescinds License Extensions, Creates More Uncertainty For Investment In Nuclear Sector (Feb. 28, 2022) ([G] iving a license extension and then a couple of years later snatching it back on what appears to be little more than a whim - adds yet more uncertainty to an industry that desperately needs stability and a clear regulatory framework. ); The Guggenheim Daily Transmission, Power & Utilities (Mar. 1, 2022) (The truncating of two existing SLRs and overturning of the prior framework is somewhat perplexing, with the Chair himself noting that it was not a light decision. We do not see this as a technical issue - but rather a legal one, with extensions still possible after the current expirations. Stay tuned.); Vertical Research Partners, Utilities & Power (Feb. 27, 2022) (The NRC directed staff to change the Peach Bottom license expiration dates back to 2033 and 2034 until completion of further NEPA analysis. How this plays out remains unclear, although shortening the licenses, even temporarily, could require re -working depreciation schedules and trigger non-cash charges.).
5 4882-2693-9666.v4 on the balance sheet (estimated to range from tens of millions to over a hundred million dollars
for Constellations 50% share of Peach Bottom), and (iii) delays in beneficial capital projects
that can no longer be justified when licensed plant life is shortenedand the resultant impact on
union labor that performs these capital projects in Pennsylvania. In addition, the increase in the
ARO may well have a real impact on consumers, as the ratepayers of PECO Electric Company
would likely experience an increase in their continued decommissioning funding obligations
associated with PECOs prior 50% ownership in Peach Bottom.
Finally, because Constellation has the statutory right under the Administrative Procedure
Act to continue to operate the Peach Bottom units until its subsequent renewed license
application is finally determined, there is no harm to any person from leaving the expiration
dates in the subsequent renewed licenses unchanged. 13 In short, ame nding the expiration date
serves absolutely no purpose. Further, because the second period of extended operation will not
commence for over a decade, no environmental effects related to subsequent license renewal will
occur until then, and there is plentyof time for the NRC Staff to perform the additional NEPA
review and take any further actions that might result before the second period of extended
operation. Indeed, as the Commission has stated, itexpects that the Staff will be able to
evaluate the environmental impacts [and cure the NEPA deficiency] prior to [Constellation]
entering the subsequent license renewal period. 14
For all these reasons, the Commission should reconsider its order directing amendment of
the expiration dates in the subsequent renewed licenses for Peach Bottom Units 2 and 3. Further,
to avoid any precipitous action by the NRC Staff while this petition is being considered,
13 The lack of harm is underscored by the Commission having left unchanged the license expiration dates in the subsequent renewed licenses for the Surry Power Station.
14 CLI 04, slip op. at 4.
6 4882-2693-9666.v4 Constellation requests that the Commission directthe NRC Staff to defer any action on
amending the license expiration date pending further order from the Commission.
Counsel for Constellation spoke with counsel for Beyond Nuclear and counsel for the
NRC Staff in aneffort to resolve the issues raised i n this petition but were informed that the
NRC Staff and Beyond Nuclear have not yet taken a position on the instant petition.
Respectfully submitted,
Donald P. Ferraro /signed electronically by Anne Leidich/
Assistant General Counsel David R. Lewis Constellation Energy Generation, LLC Anne Leidich 200 Exelon Way, Suite 305 PILLSBURY WINTHROP SHAW Kennett Square, PA 19348 PITTMAN LLP Telephon e : 610.765.5381 1200 Seventeenth Street, NW E -mail: donald.ferraro@constellation.com Washington, DC 20036 Telephone: 202-663 -8474 Facsimile: 202-663-8007 david.lewis@pillsburylaw.com
March 7, 2022 Counsel for Constellation
7 4882-2693-9666.v4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
Before the Commission
In the Matter of )
)
Constellation Energy Generation, LLC ) Docket Nos. 50- 277-SLR (f/k/a Exelon Generation Company, LLC) ) 50- 278-SLR
)
Peach Bottom Atomic Power Station, )
Units 2 and 3 )
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Petition for Partial Reconsideration of CLI -
22- 04has been served through the E -Filing system on the participants in the above-captioned
proceeding this 7 th day of March, 2022.
/signedelectronically by Anne Leidich /
Anne Leidich
8 4882-2693-9666.v4