ML15124A765

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Firstenergy Nuclear Operating Company Response Opposing Motion to Reopen and Placeholder Contention Regarding Continued Storage Rule
ML15124A765
Person / Time
Site: Davis Besse Cleveland Electric icon.png
Issue date: 05/04/2015
From: Burdick S J, Jenkins D W, Matthews T P, Sutton K M
FirstEnergy Nuclear Operating Co, Firstenergy Service Company, Morgan, Morgan, Lewis & Bockius, LLP
To:
NRC/OCM
SECY RAS
References
50-346-LR, ASLBP 11-907-01-LR-BD01, RAS 27666
Download: ML15124A765 (24)
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Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION )

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) May 4, 2015

)

______________________________________________________________________________

FIRSTENERGY NUCLEAR OPERATING COMPANY RESPONSE OPPOSING MOTION TO REOPEN AND "PLACEHOLDER" CONTENTION REGARDING CONTINUED STORAGE RULE

______________________________________________________________________________

Timothy P. Matthews Kathryn M. Sutton

Stephen J. Burdick

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004

Phone: 202-739-5527 E-mail: tmatthews@morganlewis.com

David W. Jenkins

Senior Corporate Counsel II

FirstEnergy Service Company Mailstop: A-GO-15

76 South Main Street

Akron, OH 44308

Phone: 330-384-5037 E-mail: djenkins@firstenergycorp.com

Counsel for FirstEnergy Nuclear Operating Company TABLE OF CONTENTS Page -i- I. INTRODUCTION ............................................................................................................. 1 II. BACKGROUND ...............................................................................................................

3 A. The NRC's Ongoing Review of the License Renewal Application ...................... 3 B. The Related Adjudicatory Proceeding and the Continued Storage Rule ............... 4 III. LEGAL STANDARDS ..................................................................................................... 6 A. Timeliness .............................................................................................................. 6 B. Motions to Reopen ................................................................................................. 7 C. Contention Admissibility ....................................................................................... 8 IV. THE PETITION AND MOTION SHOULD BE REJECTED .......................................... 9 A. The Petition Is Untimely ........................................................................................ 9 B. The Motion Does Not Satisfy the Standards for Reopening the Record ............. 10 1. The Motion Is Not Timely ....................................................................... 10

2. The Motion Does Not Address a Significant Safety or Environmental Issue................................................................................. 11 3. The Motion Does Not Demonstrate that a Materially Different Result Would Be Likely Had the Proposed Contention Been Considered ............................................................................................... 12 4. The Motion Is Not Supported by Affidavits ............................................ 14 C. The Proposed Contention Is Not Admissible....................................................... 15 1. The Proposed Contention Constitutes an Impermissible Challenge to the Continued Storage Rule and Therefore Does Not Satisfy Criterion (iii) of 10 C.F.R. § 2.309(f)(1).................................................. 15 2. The Proposed Contention Does Not Satisfy Criterion (vi) of 10 C.F.R. § 2.309(f)(1) ................................................................................. 18 V. CONCLUSION ................................................................................................................

19 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION )

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) May 4, 2015

) FIRSTENERGY NUCLEAR OPERATING COMPANY RESPONSE OPPOSING MOTION TO REOPEN AND "PLACEHOLDER" CONTENTION REGARDING CONTINUED STORAGE RULE I. INTRODUCTION In accordance with 10 C.F.R. §§ 2.309(i), 2.323(c), and 2.326, FirstEnergy Nuclear Operating Company ("FENOC") files this Answer opposing both the motion to reopen the record ("Motion")

1 and the petition to intervene ("Petition")

2 filed by Beyond Nuclear on April 22, 2015.3 Beyond Nuclear seeks to reopen the record and admit a "placeholder" contention challenging the NRC's reliance on the Continued Storage Rule 4 and associated Generic Environmental Impact Statement ("GEIS")

5 to re-license Davis-Besse Nuclear Power Station, Unit 1 ("Davis-Besse").

6 Substantively identical motions an d petitions have been filed by other

1 See Beyond Nuclear's Motion to Reopen the Record of License Renewal Proceeding for Davis-Besse Nuclear Power Plant (Apr. 22, 2015) ("Motion").

2 See Beyond Nuclear's Hearing Request and Petition to Intervene in License Renewal Proceeding for Davis-Besse Nuclear Power Plant (Apr. 22, 2015) ("Petition").

3 Although 10 C.F.R. § 2.309(i) allows for 25 days for an answer to a hearing request, FENOC is submitting this Answer early and is responding in a single filing to both the Petition and the Motion given the necessary overlap between the issues raised in Beyond Nuclear's filings and given that similar filings have recently been rejected by the Commission.

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

5 NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, Final Report (Sept. 2014) ("GEIS").

6 Petition at 1-2.

2petitioners in a number of other proceedings, including motions and petitions that were rejected by the Commission in Callaway (CLI-15-11) and Fermi (CLI-15-12).

7 Beyond Nuclear states that it does not seek to litigate the pr oposed contention and expects that its contention will be denied for addressing a generic issue.

8 It nonetheless claims that the contention is the only procedural mean s for ensuring that "any court decision resulting from Beyond Nuclear's appeal of the generic Continued Spent Fuel Storage Rule and GEIS will

also be applied to the individual Da vis-Besse license renewal proceeding."

9 For the reasons discussed below, both the Petition and the Motion should be rejected in their entirety. First, the Petition should be rejected as untimely under 10 C.F.R. § 2.309(c). The proposed contention is based on Beyond Nuclear's ch allenges to the Conti nued Storage Rule and GEIS, which the Commission issued over seven months ago. Nothing has changed in the interim to provide good cause for this late filing.

Second, the Motion does not satisfy any of the requirements in 10 C.F.R. § 2.326 to reopen the closed record in this proceeding. The Motion is untimely for the same reasons as the Petition. The Motion does not a ddress any significant safety or environmental issue; Beyond Nuclear admits its only purpose is procedural po sturing-seeking to creat e an appeal opportunity where none may exist as of right. The Motion does not demonstrate that a materially different result would be or would have been likely had the proposed contention been considered initially, because, as Beyond Nuclear concedes, it raises issues that impermissibly challenge a generic rulemaking. The Motion also is not accompanie d by the affidavits re quired by Section 2.326(b).

7 See Union Elec. Co. (Callaway Nuclear Power Plant, Unit 1), CLI-15-11, 81 NRC __, slip op. (Apr. 23, 2015); DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-12, 81 NRC __, slip op. (Apr. 23, 2015).

8 Petition at 2.

9 Id.

3 Third, the Petition does not include an admissible contention. As a threshold matter, the proposed contention is outside the scope of this proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii), because it impermissibly challenges the Continued Storage Rule. Beyond Nuclear has not submitted a waiver petition pursuant to 10 C.F.R. § 2.335(b), much less made a prima facie showing that any of the "stringent" requirements for a waiver of the rule has been met.10 The proposed contention also fails to challenge the Davis-Besse License Renewal Application, and therefore does not demonstrat e a genuine dispute with the applicant on a material issue, contrary to 10 C.F.R. § 2.309(f)(1)(vi). Finally, the Motion and Petition are nearly identical to filings that the Commission recently rejected in Callaway (CLI-15-11) and Fermi (CLI-15-12) on April 23, 2015. The Commission concluded that those proposed contentions imperm issibly challenged an NRC regulation and failed to demonstrate a genuine dispute with the applicant, the motions to reopen did not raise a significant environmental issue and had not demonstrated that a materially different result would be likely if the contention had been considered initially, and a placeholder contention is not necessary to ensure that the challenges are considered.

11 For the same reasons, the current Motion and Petition should be denied.

II. BACKGROUND A. The NRC's Ongoing Review of the License Renewal Application In August 2010, FENOC filed an application to renew the 10 C.F.R. Part 50 operating license for Davis-Besse for an additional 20-year term.

12 The NRC Staff published its Safety Evaluation Report ("SER") with open items on July 31, 2012, and its final SER on September 3, 10 See 10 C.F.R. § 2.335(b)-(d); Exelon Generation Co., LLC (Limerick Generating Station, Units 1 & 2), CLI-13-7, 78 NRC 199, 207 (2013).

11 See Callaway, CLI-15-11, slip op. at 4-6; Fermi, CLI-15-12, slip op. at 4-5.

12 License Renewal Application; Davis-Besse Nuclear Power Station at 1.0-1 (Aug. 2010). The current operating license for Davis-Besse expires on April 22, 2017.

42013. The NRC Staff continues to review emer gent technical issues and the Advisory Committee on Reactor Safeguards has yet to meet on the final SER.

13 The Staff published the Draft Supplemental Environmental Impact Statement ("SEIS") in February 2014 and recently published the Final SEIS in April 2015, subs equent to the instant Motion and Petition.

14 B. The Related Adjudicatory Proceeding and the Continued Storage Rule On December 27, 2010, Beyond Nuclear and othe r petitioner groups first petitioned to intervene in this proceeding.

15 Since that time, this proceeding has seen many different filings and adjudicatory activities, including new and amended contentions, dispositive motions, oral arguments, petitions to suspend, and appeals to the Commission. Following rejection of the last proposed contention, the Atomic Safety and Licensing Board ("Board") terminated this proceeding on March 10, 2015.

16 The current Petition is the third filing by Beyond Nuclear over the years related to waste confidence issues and the Continue d Storage Rule. All of the prev ious filings have been denied by either the Board or the Commission. On July 9, 2012, Beyond Nuclear filed with the Board a motion to admit a new environmental contention that challenged the alleged failure of FENOC's Environmental Report to address the environmental impacts that may occur if a spent fuel repository does not become available.

17 The proposed contention was based on the U.S. Court of Appeals for the District of

13 See http://www.nrc.gov/reactors/operating/licensing/renewal/applications/davis-besse.html.

14 See NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 52, Regarding Davis-Besse Nuclear Power Station (Apr. 2015), available at ADAMS Accession Nos. ML15112A098 and ML15113A187.

15 See Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Don't Waste Michigan, and the Green Party of Ohio Request for Public Hearing and Petition for Leave to Intervene (Dec. 27, 2010).

16 See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-15-9, 81 NRC __ (Mar. 10, 2015).

17 See Intervenors' Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Davis-Besse Nuclear Power Station (July 9, 2012).

5Columbia Circuit's decision in New York v. NRC , 681 F.3d 471 (D.C. Cir. 2012), 18 which invalidated and remanded the NRC's Waste Confidence Decision Update 19 and related final rule.20 Following approval of the final Continued Storage Rule and the associated GEIS, the Commission ordered licensing boards to dismiss the proposed cont ention in this proceeding and similar contentions in other proceedings.

21 The Board in the Davis-Besse license renewal proceeding dismissed the proposed contention on October 8, 2014.

22 On September 29, 2014, Beyond Nuclear and the other petitioners f iled a new contention and a suspension petition claiming that the NRC is required by the Atomic Energy Act of 1954, as amended, to make "predictive safety findings" regarding the safety of permanent spent nuclear fuel disposal before issui ng any reactor licensing decision.

23 The Commission rejected these filings on February 26, 2015.

24 Beyond Nuclear filed the current Motion and Petition on April 22, 2015. It seeks admission of a "placeholder" contention challe nging NRC's reliance on the Continued Storage Rule and GEIS for Davis-Besse license renewal.

25 The proposed contention states:

In the [Draft SEIS], the NRC proposes to rely on the generic conclusions of the Continued Spen t Fuel Storage Rule and GEIS for its analysis of the environmental impacts of spent fuel storage.

18 See id. 19 Waste Confidence Decision Update, 75 Fed. Reg. 81,037 (Dec. 23, 2010).

20 Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 75 Fed. Reg. 81,032 (Dec. 23, 2010).

21 See Calvert Cliffs 3 Nuclear Project, LLC & UniStar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-08, 80 NRC __, slip op. at 12 (Aug. 26, 2014).

22 See Order (Denying Motion to File a New Contention Concerning Temporary Storage of Nuclear Waste) (Oct. 8, 2014) (unpublished).

23 See Intervenors' Motion for Leave to File a New Contention Concerning the Absence of Required Waste Confidence Safety Findings in the Relicensing Proceeding for Davis-Besse Nuclear Power Station (Sept. 29, 2014); Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Issuance of Waste Confidence Safety Findings (Sept. 29, 2014).

24 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-4, 81 NRC __, slip op. at 31 (Feb. 26, 2015).

25 Petition at 1-2.

6This reliance is also codified in 10 C.F.R. § 51.23(b), which provides that the Continued Sp ent Fuel Storage GEIS is incorporated by reference into the Davis Besse [Draft SEIS]. For all of the reasons stated in Beyond Nuclear et al.'s Comments on the Draft Waste Confidence GEIS, however, the Continued Spent Fuel Storage Rule and GEIS fail to provide the NRC with a lawful basis under NEPA for licensing Davis-Besse.

26 Beyond Nuclear then identifies seven alleged "failures" from those comments to support the proposed contention.

27 As shown below, the Motion and Petition are procedurally and substantively infirm and should be denied, similar to the previous filings by Beyond Nuclear

related to the Continued Storage Rule.

III. LEGAL STANDARDS A. Timeliness Pursuant to the hearing notice in this proceeding 28 and 10 C.F.R. § 2.309(b)(3), the deadline for timely petitions to intervene in this proceeding expired on December 27, 2010, well over four years ago. As the Commission explained in Vermont Yankee: "We likewise frown on intervenors seeking to introduce a new contention later than th e deadline established by our regulations, and we accordingly hold them to a higher standard for the admission of such contentions."

29 A new hearing request and contention filed after the original deadline must meet the requirements of 10 C.F.R. § 2.309(c)(1)(i)

-(iii). Section 2.309(c)(1) states: Hearing requests, intervention petitions, and motions for leave to file new or amended contentions filed after the deadline in paragraph (b) of this section will not be entertained absent a

26 Id. at 4 (citation omitted).

27 Id. at 4-5. 28 Notice of Acceptance for Docketing of the Application, Notice of Opportunity for Hearing for Facility Operating License No. NPF-003 for an Additional 20-Year Period; Firstenergy Nuclear Operating Company, Davis-Besse Nuclear Power Station, Unit 1, 75 Fed. Reg. 65,528 (Oct. 25, 2010).

29 Entergy Nuclear Vt. Yankee, LLC & Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station), CLI-11-02, 73 NRC 333, 338 (2011).

7determination by the presiding officer that a participant has demonstrated good cause by showing 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.

B. Motions to Reopen The general requirements for a motion to re open in 10 C.F.R. § 2.326(a) are threefold:

(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 ha ve been likely had the newly proffered evidence been considered initially.

When it codified its rules for reopening a record in 1986, the Commission described reopening a record as an "extraordinary act ion," emphasized the "heavy burden" on the petitioner, and noted the D.C. Circuit Court's characterization of these requirements as "high" and "stringent."

30 10 C.F.R. § 2.326(b) further requires that the motion be accompanied by affidavits that support each of the bases satisfying the cr iteria in Section 2.326(a).

30 See Final Rule, Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535, 19,538-539 (May 30, 1986) ("The purpose of this rule is not to foreclose the raising of important safety issues, but to ensure that, once a record has been closed and all timely-raised issues have been resolved, finality will attach to the hearing process. Otherwise, it is doubtful whether a proceeding could ever be completed."); see also Va. Elec. & Power Co. (Combined License for North Anna Unit 3), CLI-12-14, 75 NRC 692, 700 (2012)

("The courts of appeals have repeatedly approved our practice of . . . holding new contentions to the higher

'reopening' standard.");

Vt. Yankee, CLI-11-02, 73 NRC at 337-38 (characterizing the Section 2.326 requirements as a "deliberately heavy" burden to ensure finality).

8 C. Contention Admissibility A newly-proposed contention must meet the strict admissibility requirements set forth in 10 C.F.R. § 2.309(f)(1)(i) to (vi). Under 10 C.F.R. § 2.309(f)(1), a hearing request "must set forth with particularity the contentions sought to be raised." Further, each contention must: (1) provide a specific statement of the legal or factual i ssue sought to be raised; (2) provide a brief explanation of the basis for the contention; (3) demonstrate that the issue raised is within the scope of the proceeding; (4) demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (5) provide a concise statement of th e alleged facts or expert opinions, including references to specific sources and documents that support the petitioner's position and upon which the pe titioner intends to rely; and (6) provide sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact.

31 The purpose of these six criteria is to "focus litigation on concrete issues and result in a clearer and more focused record for decision."

32 The NRC's contention admissibility rules are "strict by design."

33 Failure to comply with any one of the six admissibility criteria is grounds for rejecting a proposed contention.

34 31 See 10 C.F.R. § 2.309(f)(1)(i)-(vi). The seventh contention admissibility requirement-10 C.F.R. § 2.309(f)(1)(vii)-is on ly applicable to proceedings arising under 10 C.F.R. § 52.103(b) and, therefore, has no bearing on the admissibility of proposed contentions in this proceeding.

32 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).

33 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), petition for recons. denied, CLI-02-1, 55 NRC 1 (2002).

34 Changes to Adjudicatory Process, 69 Fed. Reg. at 2221; Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

9 IV. THE PETITION AND MOTION SHOULD BE REJECTED A. The Petition Is Untimely Because Beyond Nuclear submitted the Petition years after the initial deadline for petitions to intervene in this proceeding, it must demonstrate good cause for filings after the deadline by satisfying the requirements in 10 C.F.R. § 2.309(c)(1). Beyond Nuclear has not satisfied any of those requirements and, therefore, the Petition should be rejected. As explained above, the proposed contention challenges the Continued Storage Rule at 10 C.F.R. § 51.23(b) and the referenced GEIS and the treatment of those issu es in the Draft SEIS for Davis-Besse license renewal.

35 The Commission, however, pub lished the final Continued Storage Rule codifying the current requirements in Section 51.23(b) and the associated GEIS in September 2014-seven months prior to Beyond Nuclear submitting the Petition. Similarly, the NRC published the Draft SEIS for Davis-Bess e license renewal in February 2014-14 months prior to the Petition. Beyond Nuclear has not identified any new information beyond these documents that supports the proposed contention. There is no good cause under Section 2.309(c)(1) for this extensive delay in submitting the Petition. In this regard, Beyond Nuclear has conceded that it "has already raised its concerns" many months ago in the form of co mments on the proposed Continued Storage Rule and GEIS.36 As a result, Beyond Nuclear has not submitted the Petition in a timely fashion (typically considered 30-60 days) based on the availability of this information. Beyond Nuclear also has not discussed why it could not have submitted its contention shortly after issuance of the Continued Storage Rule and GEIS.

35 Petition at 4.

36 Id. at 2.

10 Beyond Nuclear argues that the Petition "is timely because it does not depend at all on past information," but instead "depends on an event that will occur in the future."

37 That claim is disingenuous, given that the Statement of Contention directly ch allenges the Continued Storage Rule and GEIS and incorporation of those documents in the Draft SEIS, 38 and Beyond Nuclear repeats arguments from its earlier comments on th e draft Continued Storage Rule and GEIS that it submitted in December 2013.

39 Moreover, Beyond Nuclear has not identified any authority that would allow it to submit a premature fili ng of a contention based on a future event. Even if the Petition were based on Beyond Nuclear's petition to the U.S. Court of Appeals for review of the Con tinued Storage Rule, that actio n took place in October 2014-six months prior to Beyond Nuclear submitting the Petition. Thus, the Petition is untimely if based upon the petition for review by the Court.

B. The Motion Does Not Satisfy the Standards for Reopening the Record The record of this proceeding is closed.

40 Although Beyond Nuclear has submitted a Motion seeking reopening of the record, the Motion does not satisfy the "high" and "stringent" reopening standards.

41 1. The Motion Is Not Timely The first reopening criterion in Section 2.326(a) requires the petitioner to show that its motion is timely.

42 Beyond Nuclear has not done so. As discussed above in Section IV.A, the

37 Id. at 5-6. 38 Id. at 4. 39 Id. at 4-5. 40 See Davis-Besse, LBP-15-9, slip op. at 3.

41 See Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Re

g. at 19,538.

42 See 10 C.F.R. § 2.326(a)(1). For the motion to be timely, the petitioner must show that "the issue sought to be raised could not have been raised earlier." Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-775, 19 NRC 1361, 1366-67 (1984); see also Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-1, 35 NRC 1, 7-8 (1992) (finding a motion to reopen untimely where the supporting evidence was presented earlier in the proceeding).

11Petition is untimely because it relies on the Continued Storage Rule, GEIS, and Draft SEIS, all of which have been available for many months , and Beyond Nuclear has not identified any intervening event or information that would extend the deadline for filings based on those documents. For those same reasons, the Motion is untimely. Beyond Nuclear could have submitted the Motion and Petition many months ago. Beyond Nuclear also repeats the same arguments it made in the Petition to claim that the Motion does not depend on past information, but only on future action by the U.S. Court of Appeals.

43 That argument should be rejected for the same reasons discussed above in Section IV.A regarding the timeliness of the Petition.

2. The Motion Does Not Address a Signif icant Safety or Environmental Issue The second reopening criterion requi res a petitioner to establis h that the motion addresses a "significant safety or environmental issue."

44 It is well established that the motion to reopen standards convey a "heavier bur den" on petitioners than do the contention admissibility standards of 10 C.F.R. § 2.309(f)(1).

45 The Commission will consider an untimely motion only if the matter is "exceptionally grave."

46 In codifying that exception, the Commission defined an "exceptionally grave" issue as one that raises "a sufficiently grave threat to public safety," and noted its anticipation "that this exception will be granted rarely and only in truly extraordinary circumstances."

47 The Motion does not raise such a significant safety or environmental issue, nor does it claim that it raises any issue that is "excep tionally grave." Indeed, Beyond Nuclear concedes

43 Motion at 3.

44 See 10 C.F.R. § 2.326(a)(2).

45 See, e.g., Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-05, 74 NRC 141, 169 (2011) ("[O]ur rules deliberately place a heavy burden on proponents of contentions, who must challeng e aspects of license applications with specificity, backed up with substantive technical support; mere conclusions or speculation will not suffice. An even heavier burden applies to motions to reopen.").

46 10 C.F.R. § 2.326(a)(1).

47 Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. at 19,536.

12that it does not even seek to litigate these issues and that it already has raised these concerns in other contexts.

48 Moreover, the relief requested by Beyond Nuclear is a "placeholder" contention, not resolution of a significant safety or environmental issue.

Beyond Nuclear argues that the Motion and prop osed contention "rai se the significant environmental issue that the Davis-Besse [Draft SEIS] is not supported by an adequate analysis of the environmental impacts of spent fuel storage and disposal."

49 However, given that the requested relief is a placeholder contention, and given that Beyond Nuclear is seeking to litigate the same issues that have already been rejected by the Commission as part of the rulemaking for the Continued Storage Rule, the Motion obviousl y does not raise a significant environmental issue. The Commission reached the same logical conclusion in Callaway on a similar contention and motion to reopen: "Because [the petitioner] has not submitted an admissible contention, it necessarily has not satisfied our reopening standards because it has not raised a significant environmental issue . . . ."

50 The same result is appropriate here.

3. The Motion Does Not Demonstrate that a Materially Different Result Would Be Likely Had the Proposed Contention Been Considered Consistent with the third criterion, a motion to reopen must be denied if the petitioner fails to show that a "materially different result" would have occurred or been likely to occur if the newly proffered evidence were considered initially.

51 In other words, the petitioner must demonstrate that consideration of the new evidence or contention woul d likely result in the

48 Motion at 1-2.

49 Id. at 4. 50 Callaway, CLI-15-11, slip op. at 4 n.17.

51 10 C.F.R. § 2.326(a)(3) (emphasis added).

13denial or conditioning of the license application at issue.

52 This standard is meaningfully higher than that of Section 2.309(c) for new or ame nded contentions, which requires only that the new information be materially different from that which was previously available. Beyond Nuclear has not demonstr ated that the proposed cont ention would result in the rejection or conditioning of the Davis-Besse License Renewal App lication. As discussed above, Beyond Nuclear is re-raising the sa me issues that have already been rejected by the Commission as part of the rulemaking for the Continued Storage Rule. Therefore, it follows that a materially different result would not have occurred if Beyond Nuclear had raised its contention earlier.

Beyond Nuclear speculates that if the U.S. Cour t of Appeals grants the pending appeal of the Continued Storage Rule and GEIS and vacates them, then "the NRC will withdraw the Davis-Besse [Draft SEIS] as a basis for re-licen sing Davis-Besse, and ther efore reject or revoke a license renewal permit for Davis-Besse."

53 However, speculation a bout a future court decision does not provide a sufficient basis for reopening the record now, because it does not "demonstrate" that a materially different result would occur if the Commission were to consider the contention now. Furthermore, as discussed below in Sec tion IV.C, the proposed contention is not admissible. As the Commission ruled in Callaway on a similar contention and motion to reopen: "Because [the petitioner] has not submitted an admissible contention, it necessarily has not

satisfied our reopening standards because it . . . has not demonstrated that a materially different result would be likely if the contention had been considered initially."

54 The same logical result is compelled here.

52 See, e.g., AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-08-12, 68 NRC 5, 23 (2008), aff'd, CLI-08-28, 68 NRC 658 (2008).

53 Motion at 4.

54 Callaway, CLI-15-11, slip op. at 4 n.17.

14 4. The Motion Is Not Supported by Affidavits When submitting a motion to reopen the record, a petitioner must include affidavits with the motion that set forth the factual or technical bases for the petitioner's claim that the three criteria discussed above have been satisfied.

55 The affidavit requirement ensures that a petitioner submits a motion to reopen that sets forth "a de gree of particularity in excess of the basis and specificity requirements contained in [10 C.

F.R. § 2.309(f)(1)] for admissible contentions."

56 The Commission has distinguished the "more rigor ous evidentiary standard" of Section 2.326(a) from those general admissibility requirements.

57 Indeed, the Commission has explained that a presiding officer reviewing a motion to reopen must "apply its expertise and make a record-based judgment on the evidence," and that to prevail, the evidence provided with the motion "must be sufficiently compelling to suggest a likelihood of materially affecting the ultimate results of the proceeding."

58 Not only has Beyond Nuclear failed to satisfy these requirements, it has not even attempted to do so. In fact, Beyond Nuclear ha s not provided any affida vits whatsoever to support the Motion. It argues that affidavits are not necessary "because the bases for this motion are purely legal."

59 This argument fails because Section 2.326(b) requires affidavits to address "each of the criteria" in Section 2.326(a). In this regard, the affidavits were needed to address why the Motion was timely, why the issue raised in the proposed conten tion is a significant environmental issue, and why a materially di fferent result would have been likely had the

55 See 10 C.F.R. § 2.326(b).

56 Diablo Canyon, 19 NRC at 1366; see also 51 Fed. Reg. at 19,535 (". . . the Commission is requiring that motions to reopen be accompanied by affidavits setting forth with particularity the bases for the movant's claim").

57 See Vt. Yankee, CLI-11-02, 73 NRC at 347.

58 Entergy Nuclear Generation Co. &

Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 498-99 (2012).

59 Motion at 4.

15 proposed contention been considered. All of thes e issues involve facts that should have been addressed by affidavits. Accordi ngly, the Motion should be denied.

C. The Proposed Contention Is Not Admissible

1. The Proposed Contention Constitutes an Impermissible Challenge to the Continued Storage Rule and Therefore Does Not Satisfy Criterion (iii) of 10

C.F.R. § 2.309(f)(1) The Commission stated unequivocally with respect to the Continued Storage Rule that its "generic determinations will not be revisited and may not be challenged in individual licensing proceedings without the grant of a waiver under 10 CFR 2.335."

60 Contrary to that explicit prohibition, Beyond Nuclear now proposes a contention challenging the Continued Storage Rule. Specifically, Beyond Nuclear seeks admission of a contention th at challenges reliance on the "generic conclusions of the Continued Spen t Fuel Storage Rule and GEIS" in the Davis-Besse license renewal proceeding.

61 In this regard, Section 51.23(a) of the Rule directly states that "[t]he Commission has generically determined that the environmental impacts of continued storage of spent nuclear fuel beyond the licensed life for operation of a reactor are those impacts identified in NUREG-2157, 'Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel.'" Moreover, Section 51.23 (b) of the Rule states that the impact determinations in the GEIS "shall be deemed inco rporated" into the EISs for individual projects. Beyond Nuclear's attempt to admit a placeholder contention to challenge NRC's reliance on the GEIS in this proceeding, therefore, is a direct challenge to the Rule. As provided in 10 C.F.R. § 2.335(a), a proposed contention that challenges an NRC rule is outside the scope of this proceeding because, absent a waiver, "no rule or regulation of the

60 Continued Storage Rule, 79 Fed. Reg. at 56,243.

61 Petition at 4.

16Commission . . . is subject to attack . . . in any adjudicatory proceeding."

62 Indeed, with respect to the GEIS, the Commission has stated that "[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."

63 Beyond Nuclear has not requested a waiver, much less satisfied the stringent requirements governing such a waiver request. In order to seek waiver of a rule in a particular adjudicatory proceeding, a petitioner must submit a petition pursuant to 10 C.F.R. § 2.335. The requirements for a Section 2.335 petition are as follows:

The sole ground for petition of waiver or exception is that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or a provision of it) would not serve the purposes for which the rule or regulation was adopted.

64 Further, such a petition "must be accompanied by an affidavit that identifies the specific aspect or aspects of the subject matter of the proceeding as to which the application of the rule or regulation (or provision of it) w ould not serve the purposes for wh ich the rule or regulation was adopted," and "

must state with particularity the special circumstances alleged to justify the waiver or exception requested."

65 Beyond Nuclear has not submitted such an affidavit, nor has it identified any "special circumstances."

62 The Commission consistently has affirmed licensing boards' rejections of proposed contentions that challenge generically-applicable rulemaking determinations, including those codified in 10 C.F.R. § 51.23.

See, e.g., Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-10-19, 72 NRC 98, 100 (2010) (directing the board, upon certification of the issue, to deny admission of a proposed contention due to the NRC's then-pending rulemaking on waste confidence issues).

63 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-8, 80 NRC __, slip op. at 9 (Aug. 26, 2014); see also id. at 9 n.27 (stating that "[c]ontentions that are the subject of general rulemaking by the Commission may not be litigated in individual license proceedings").

64 10 C.F.R. § 2.335(b).

65 Id. (emphasis added).

17 In accordance with NRC precedent, a Section 2.335 petition "can be granted only in unusual and compelling circumstances."

66 The Commission decision in the Millstone case states the test for Section 2.335 petitions, under which the petitioner must demonstr ate that it satisfies each of the following four criteria: (i) the rule's strict applicati on "would not serve the purposes for which [it] was adopted"; (ii) the movant has alleged "special circumstances" that were "not c onsidered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the

rule sought to be waived"; (iii) those circumstances are "unique" to the facility rather than "common to a large class of facilities"; and (iv) a waiver of the regulation is necessary to reach a "significant safety problem."

67 If the petitioner fails to satisfy any of the factors of the four-part test, then the matter may not be litigated, and "the presiding officer may not further consider the matter."

68 Even if it had submitted a waiver request, Beyond Nuclear has not identified any special circumstances with respect to Davis-Besse license renewal that would justify waiver of the Continued Storage Rule. Furthermore, given the generic nature of the proposed contention, ther e is no basis for any argument that special circumstances exist in this proceeding. Indeed, Beyond Nuclear concedes that "the subject matter of the contention is generic."

69 66 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-895, 28 NRC 7, 16 (1988), aff'd, CLI-88-10, 28 NRC 573, 597 (1988), recons. denied, CLI-89-3, 29 NRC 234 (1989) (citation omitted).

67 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 559-60 (2005) (citing Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-89-20, 30 NRC 231, 235 (1989)); see Exelon Generation Co., LLC (Limerick Generating Station, Units 1 & 2), CLI-13-7, 78 NRC 199, 207-09 (2013) (discussing the four Millstone factors); Seabrook, CLI-88-10, 28 NRC at 597; see also Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-11-11, 74 NRC 427, 444-50 (2011) (denying intervenor's waiver request, filed contemporaneously with petition to intervene, for failure to show special circumstances at Diablo Canyon requiring site-specific analysis of the environmental impacts of spent fuel pool storage).

68 10 C.F.R. § 2.335(c);

see also Millstone, CLI-05-24, 62 NRC at 560 ("The use of 'and' in this list of requirements is both intentional and significant. For a waiver request to be granted, all four factors must be met."). 69 Petition at 2.

18 In summary, the proposed contention, by its terms, challenges the adequacy of the Continued Storage Rule and, as such, should be re jected as outside the scope of this proceeding in accordance with 10 C.F.R. §§ 2.309(f)(1)(iii) and 2.335(a). Beyond Nuclear has not submitted a waiver request pursuant to 10 C.F.R. § 2.335(b), much less satisfied the operative test for the waiver of a rule, as established in Millstone. Nor could it, given the clear lack of any special circumstances that would support a waiver of the rule in this proceeding. This conclusion is consistent with the Commission's holding in Callaway in which it rejected a similar contention, c oncluding that "the proposed contention is not admissible under our rules of practice because it impermissibly challenges an agency regulation and is therefore outside the scope of this i ndividual licensing proceeding."

70 A similar outcome is appropriate here. 2. The Proposed Contention Does Not Sa tisfy Criterion (vi) of 10 C.F.R.

§ 2.309(f)(1) Section 2.309(f)(1)(vi) requires that a proposed contention "incl ude references to specific portions of the application (including applicant's environmental re port and safety report) that the petitioner disputes and the supporting reasons for each dispute." To raise a genuine dispute admissible under Section 2.309(f)(1)(vi), a petitioner must "read the pertinent portions of the license application, . . . state the applicant's position and the petitioner's opposing view," and explain why it disagrees with the applicant.

71 The Commission has stated that "general assertions, without some effort to show why the assertions undercut findings or analyses in the

70 Callaway, CLI-15-11, slip op. at 4; see also Fermi, CLI-15-12, slip op. at 4 ("[A] contention that challenges an agency regulation does not raise an issue appropriately within the scope of this individual licensing proceeding and is not admissible absent a waiver.").

71 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989); see also Millstone, CLI-01-24, 54 NRC at 358.

19[application], fail to satisfy the requirements of Section 2.309(f)(1)(vi)."

72 Section 2.309(f)(2) also allows new environmental contentions to be based on the Draft SEIS rather than the Environmental Report. Because Beyond Nuclear's proposed contention fails to challenge any portion of the License Renewal Application (including the Environmental Report) or the Draft SEIS, it has not demonstrated a genuine dispute with the applicant. Beyond Nuclear does not identify any sp ecific portions of the License Renewal Application or the Draft SEIS that it challenges. Instead, it challenges the reliance on the Continued Storage Rule and GEIS in the Davis-Besse Draft SEIS.

73 In this regard, Beyond Nuclear identifies seven bases for the proposed c ontention, all of which challenge generic issues related to the GEIS.

74 None of those bases specifically relates to the Davis-Besse License Renewal Application or to the Davis-Besse Dr aft SEIS. Therefore, the proposed contention should be denied because it simply does not demonstrate a genuine dispute on a material issue of law or fact as required by 10 C.F.R. § 2.309(f)(1)(vi).

75 V. CONCLUSION As demonstrated above, the Petition is untimely under 10 C.F.R. § 2.309(c); the Motion does not satisfy the requirements in 10 C.F.R.

§ 2.326 for reopening the record of this proceeding; and the Petition does not include an admissible contention under 10 C.F.R. § 2.309, because it impermissibly challenges the Continue d Storage Rule and it does not satisfy other contention admissibility requirements.

72 See S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, 71 NRC 1, 21-22 (2010). 73 See Petition at 4.

74 See id. at 4-5. 75 See Callaway, CLI-15-11, slip op. at 4; see also Fermi, CLI-15-12, slip op. at 4 (stating that "because the contention does not engage the Fermi combined license application, Beyond Nuclear has not demonstrated a genuine dispute with the applicant on a material issue").

20 As the Commission concluded in Callaway with respect to an essentially identical contention: [T]he proposed contention is not admissible under our rules of practice because it impermissibly challenges an agency

regulation and is therefore outside the scope of this individual licensing proceeding. [The petitioner] provides seven bases for its contention, all of which challenge th e generic findings in the GEIS.

None of the contention's bases pe rtain specifically to the Callaway license renewal application.

The contention therefore does not provide sufficient information to demonstrate a genuine dispute with the applicant on a material issue. For these reasons, we decline to admit the contention.

In [petitioner's] view, its "placeholder contention" is "the only procedural means" available for ensuring that any court decision resulting from the pending appeal of the Continued Storage Rule and GEIS will be applied to the Callaway license renewal matter. However, [the petitioner]

cannot litigate the Continued Storage Rule and GEIS here. We addressed the environmental impacts of conti nued storage generically, via the rulemaking process, in accordance with NEPA and general principles of administrative law. [The petitioner] had-and took

advantage of-the opportunity to provide comments on the

proposed rule and draft GEIS. Now that the rule has been adopted, [the petitioner] has sought review of the rule and GEIS in the appropriate venue, the court of appeals. Absent a successful petition that the rule should be waived in accordance with 10

C.F.R. § 2.335, [the petitioner's]

challenges to the Continued Storage Rule and GEIS are appropr iately brought before the court of appeals. Should the D.C. Circuit find any infirmities in the Continued Storage Rule or GE IS, we would take appropriate action consistent with the court' s direction. In the meantime, however, admission of a "placeholder" contention is not necessary to ensure that [the petitioner's] challenges to the Continued Storage Rule and GEIS receive a full and fair airing. 76 For these same reasons, the Petition and Mo tion should be rejected in their entirety.

77 76 Callaway, CLI-15-11, slip op. at 4-5 (emphasis added) (citations omitted).

77 The Commission also does not permit placeholder contentions. The Commission has rejected pleadings intended to function as "placeholders" for future pleadings, stating that "our regulations do not contemplate such filings, which are tantamount to impermissible 'notice pleadings.'" Dominion Nuclear Conn., Inc.

(Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 120 (2009). The Commission recently reiterated this principle in Byron/Braidwood, rejecting the use of "placeholder" motions as impermissible under its Rules of Practice and "inconsistent with [its] longstanding interest in sound case management and 21 Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

/s/ Timothy P. Matthews Timothy P. Matthews Kathryn M. Sutton

Stephen J. Burdick

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

Phone: 202-739-5527 E-mail: tmatthews@morganlewis.com

David W. Jenkins

Senior Corporate Counsel II

FirstEnergy Service Company Mailstop: A-GO-15

76 South Main Street

Akron, OH 44308

Phone: 330-384-5037 E-mail: djenkins@firstenergycorp.com

Counsel for FirstEnergy Nuclear Operating Company Dated in Washington, D.C.

this 4th day of May 2015

regulatory finality." See, e.g., Exelon Generation Co., LLC (Byron Nuclear Station, Units 1 & 2; Braidwood Nuclear Station, Units 1 & 2), CLI-14-06, 79 NRC __, slip op. at 5 (May 2, 2014). Beyond Nuclear specifically characterizes its proposed contention as a placeholder contention. See, e.g., Petition at 1.

DB1/ 83226292 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION )

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) May 4, 2015

) CERTIFICATE OF SERVICE I hereby certify that on this date a copy of "FirstEnergy Nuclear Operating Company Response Opposing Motion to Reopen and 'Pla ceholder' Contention Regarding Continued Storage Rule" was submitted through the NRC's E-filing system.

Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5059

Fax: 202-739-3001 E-mail: sburdick@morganlewis.com Counsel for FirstEnergy Nuclear Operating Company

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