ML14255A497
| ML14255A497 | |
| Person / Time | |
|---|---|
| Site: | Fermi  |
| Issue date: | 09/12/2014 |
| From: | Harris B NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-341-LR, ASLBP 14-933-01-LR-BD01, RAS 26489 | |
| Download: ML14255A497 (59) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
DTE ELECTRIC CO. ) Docket No. 50-341-LR
)
(Fermi Nuclear Power Plant, Unit 2) )
)
NRC STAFFS ANSWER TO PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING OF DONT WASTE MICHIGAN, CITIZENS ENVIRONMENT ALLIANCE OF SOUTHWESTERN ONTARIO AND BEYOND NUCLEAR Catherine E. Kanatas Brian G. Harris Jeremy Wachutka Joseph Lindell Counsel for NRC Staff September 12, 2014
TABLE OF CONTENTS PAGE INTRODUCTION ................................................................................................................... BACKGROUND ..................................................................................................................... DISCUSSION......................................................................................................................... I. Representational Standing to Intervene Has Been Established ................................. II. Contention Admissibility Requirements ..................................................................... III. The Scope of the NRCs Safety and Environmental Review for License Renewal Proceedings .............................................................................................................. A. General Overview of Scope of License Renewal Review .......................................... B. The License Renewal Safety Review ........................................................................ C. License Renewal Environmental Review ................................................................... IV. Petitioners Proposed Contentions Do Not Meet the Admissibility Criteria ............... A. Proposed Contention 1 ........................................................................................... 1. The NRCs Consideration of Severe Accident Mitigation Alternatives In License Renewal Proceedings............................................................................. 2. Petitioners SAMA Claims Do Not Raise a Genuine Material Dispute with DTEs SAMA Analysis ......................................................................................... a. Petitioners Fail to Identify Information that Is Actually Missing From Fermi 2s SAMA Analysis ........................................................................................... i. Fermi 2s SAMA Analysis Considered and Evaluated the Installation of Filtered Vents .............................................................. ii. Fermi 2s SAMA Analysis Evaluated Accidents Resulting in Uncontrolled and Unmitigated Releases ............................................ b. Petitioners Have Not Shown That the National Academy of Science Report Would Materially Affect the Fermi 2 SAMA Analysis ......................................... i. The NAS Report Provides No Basis to Conclude That Fermi 2s SAMA Analysis is Flawed or Inadequate ........................................... ii. The Two Recommendations Cited By Petitioners Do Not Identify Any Errors or Flaws in the Fermi 2 SAMA Analysis ........................... 3. Proposed Contention 1s Safety Claims Raise Safety Issues Outside the Scope of License Renewal ..................................................................................
ii B. Proposed Contention 2 ........................................................................................... 1. This Contention Relates to a Category 1 Environmental Issue That Is Not Subject to Challenge Absent a Waiver ................................................................. 2. Waste Confidence Claims Are Impermissible Challenges to Generic Determinations .................................................................................................... 3. Claims of New and Significant Information Do Not Render Challenges to Category 1 Issues Admissible .............................................................................. 4. The Information Provided in Proposed Contention 2 Does Not Suggest Special Circumstances ........................................................................................ 5. Claims Related To the Fermi 2 Crane Are Outside the Scope of This License Renewal Proceeding............................................................................................ C. Proposed Contention 3 ........................................................................................... D. Proposed Contention 4 ........................................................................................... 1. Petitioners Raise Issues Outside the Scope of License Renewal ........................ a. Spent Fuel Pool Accidents Are Outside the Scope of this Proceeding.............. b. The Adequacy of Fermi 3 Design, Operation, and COLA Proceeding are Outside the Scope of This Proceeding ............................................................. c. Petitioners Challenge to the Fermi 2 CLB Are Outside the Scope of a License Renewal Proceeding ........................................................................... d. Petitioners Challenge to the License Renewal GEISs Category 1 Finding is Outside the Scope of This Proceeding ............................................................. 2. There is No Requirement to Conduct a Site-Level SAMA Analysis ...................... 3. Petitioners Attempt to Incorporate Fermi 3 Into the Fermi 2 SAMA Analysis Is Contrary to the Commissions Regulations .......................................................... 4. Petitioners Comparison of Costs of Each Mitigation Measure to the Revenue and Profits of Fermi 2s Operation is Not Material ................................................ 5. The Cumulative Impacts of Fermi 3s Construction an Operation Have Been Evaluated in the Environmental Report ................................................................ CONCLUSION .....................................................................................................................
iii TABLE OF AUTHORITIES PAGE JUDICIAL DECISIONS U.S. Supreme Court:
Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)....................... , , U.S. Courts of Appeals:
Massachusetts v. United States, 522 F.3d 115 (1st Cir. 2008) ............................................. Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979) ............................................................... New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012) ............................................................. passim NRDC v. NRC, 582 F.2d 166 (2nd Cir. 1978) ...................................................................... Union of Concerned Scientists v. NRC, 824 F.2d 108, 109 (D.C. Cir. 1987) ........................ ADMINISTRATIVE DECISIONS Commission:
Calvert Cliffs Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3),
CLI-14-08, 80 NRC __ (Aug. 26, 2014).......................................................................... passim Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Plant, Unit 3)
CLI-09-20, 70 NRC 911 (2009) ........................................................................................... Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551 (2005) ................................................. , , DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-07, 80 NRC __ (July 17, 2014) ............................................................................................... Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2, Catawba Nuclear Station, Units 1 & 2), CLI-03-17, 58 NRC 419 (2003) .......................................... Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-17, 56 NRC 1 (2002) ..............................................
iv Duke Energy Corp., (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-01-20, 54 NRC 211 (2001) .......................................... Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3),
CLI-99-11, 49 NRC 328 (1999). ........................................................................................ Entergy Nuclear Co. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704 (2012) ............................................................................................................... Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),
CLI-12-01, 75 NRC 39 (2012) ....................................................................................... passim Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC 202 (2010).............................. , Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449 (2010).................... , , Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287 (2010)................................... passim Entergy Nuclear Generation Co. & Entergy Nuclear Operations (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC 529 (2009)...................................... Enteregy Nuclear Generating Co. and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), CLI-07-03, 65 NRC 13 (2007)..................................... passim Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13 (2007).................................................. , , Exelon Generation Co. LLC (Limerick Generating Station, Units 1 and 2),
CLI-13-07, 78 NRC 199 (2013) ......................................................................................... Exelon Generation Co. LLC (Limerick Generating Station, Units 1 and 2),
CLI-12-19, 76 NRC 377 (2012) ...................................................................................... passim FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-08, 75 NRC 393 (2012) .................................................................. ,
v Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3 (2001) ..................................................................... passim NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC 301 (2012) .............................................................................................................. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481 (2010) ................................................................. Atomic Safety and Licensing Appeal Board:
Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2),
ALAB-218, 8 AEC 79 (1974). Atomic Safety and Licensing Board Decisions:
Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Plant, Unit 3), LBP-09-04, 69 NRC 170 (2009)... Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421 (2008)... Entergy Nuclear Operations Inc. (Indian Point Nuclear Generating Units 2 & 3),
LBP-10-13, 71 NRC 673 (2010)........................................................................................ FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1),
LBP-12-27, 76 NRC 583 (2012)........................................................................................ Union Electric Co. (Callaway Plant, Unit 1), LBP-14-12, 80 NRC __ (Sept. 8, 2014) ............ STATUTES:
42 U.S.C. § 2232 ................................................................................................................... 42 U.S.C. § 4331 ...................................................................................................................
vi REGULATIONS 10 C.F.R. § 2.206............................................................................................. , , 10 C.F.R. § 2.309(a) ...................................................................................................... , 10 C.F.R. § 2.309(f) ............................................................................................................... 10 C.F.R. § 2.309(f)(1) ...................................................................................................... passim 10 C.F.R. § 2.309(f)(1)-(2) ..................................................................................................... 10 C.F.R. § 2.309(f)(1)(iii) ............................................................................................ , 10 C.F.R. § 2.309(i) ............................................................................................................... 10 C.F.R. § 2.335.............................................................................................................. passim 10 C.F.R. § 2.4....................................................................................................................... 10 C.F.R. § 2.802.............................................................................................................. passim 10 C.F.R. § 51.2..................................................................................................................... 10 C.F.R. § 51.20(b)(2) .......................................................................................................... 10 C.F.R. § 51.23.............................................................................................................. passim 10 C.F.R. § 51.23(b) ............................................................................................................ 10 C.F.R. § 51.53(c)(2) ........................................................................................................ 10 C.F.R. § 51.53(c)(3)(i) ..................................................................................................... 10 C.F.R. § 51.53(c)(3)(i)-(ii) ................................................................................................ 10 C.F.R. § 51.53(c)(3)(ii)(L) ............................................................................................. passim 10 C.F.R. § 51.53(c)(3)(iii) ................................................................................................... 10 C.F.R. § 54.21(a)(1) .......................................................................................................... 10 C.F.R. § 54.21(c)............................................................................................................... 10 C.F.R. § 54.29........................................................................................................... , 10 C.F.R. § 54.3................................................................................................................... 10 C.F.R. § 54.30............................................................................................. , , 10 C.F.R. § 54.31...................................................................................................................
vii 10 C.F.R. § 54.4(a)(1)-(3) ...................................................................................................... 10 C.F.R. §§ 54.29, 54.30 .................................................................................................... 10 C.F.R. §2.309(f)(1)(vi) ..................................................................................................... 10 C.F.R. §51.53(c)(3)(i) ...................................................................................................... 10 C.F.R. §51.53(c)(3)(iv) .................................................................................................... 10 C.F.R. 2.309(f)(1) .................................................................................................. , 10 C.F.R. 2.309(f)(1)(iii) ....................................................................................................... 10 C.F.R. Part 51 .............................................................................................................. passim 10 C.F.R. Part 51, Subpart A, Appendix B ........................................................................... 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1 .......................................................... 10 C.F.R. Part 54 .............................................................................................................. passim 10 C.F.R. Part 50 ................................................................................................................. 10 C.F.R. Part 52 ................................................................................................................. 10 C.F.R. Part 72 ................................................................................................................. MISCELLANEOUS Consequence Study of Beyond-Design-Basis Earthquake Affecting the Spent Fuel Pool for U.S. Mark I Boiling Water Reactor (Oct. 2013) ............................................ DTE Electric Company; Fermi 2, 79 Fed. Reg. 34,787 (June 18, 2014) ................................. Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses 61 Fed. Reg. 28, 467 (June 5, 1996) ....................................................... , Nuclear Power Plant License Renewal; Revisions, 56 Fed. Reg. 64,943 (Dec. 13, 1991)......................................................................................................... , NUREG-1437, Rev. 1 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report, (June 2013) ............................................................... ,
viii NUREG-1437, Rev. 0, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, (May 1996) .......................................................................................... NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel .................................................................................................... passim SECY-14-0072, Ensloure1-Final Rule: Continued Storage of Spent Nuclear Fuel at 5 (Jul. 21, 2014) ....................................................................................................
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
DTE ELECTRIC CO. ) Docket No. 50-341-LR
)
(Fermi Nuclear Power Plant, Unit 2) )
)
NRC STAFFS ANSWER TO PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING OF DONT WASTE MICHIGAN, CITIZENS ENVIRONMENT ALLIANCE OF SOUTHWESTERN ONTARIO AND BEYOND NUCLEAR INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i), the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby files its answer to the Petition for Leave to Intervene and Request for Hearing of Dont Waste Michigan, Citizens Environment Alliance of Southwestern Ontario and Beyond Nuclear (Petition) 1 regarding DTE Electric Co.s (DTE) license renewal application (LRA) for Fermi Nuclear Power Plant, Unit 2 (Fermi 2). 2 As discussed below, the Petitioners have established standing to intervene in this proceeding. However, because none of the proposed contentions are admissible, the Atomic Safety and Licensing Board (Board) should deny the Petition.
1 See Petition for Leave to Intervene and Request for Hearing of Dont Waste Michigan, Citizens Environment Alliance of Southwestern Ontario and Beyond Nuclear (Aug. 18, 2014) (Petition)
(Agencywide Documents Access and Management System (ADAMS) Accession No. ML14230B040).
The Petition was supported by organizational and individual declarations of standing. See Organizational and Individual Declarations In Support of Petition for Leave to Intervene of Dont Waste Michigan, Citizens Environment Alliance of Southwestern Ontario and Beyond Nuclear (Standing Declarations)
(ADAMS Accession No. ML14231A000).
2 Letter from J. Todd Conner, Site Vice President, dated April 24, 2014, transmitting the license renewal application for Fermi 2 (ADAMS Accession No. ML14121A532) (LRA). The LRA is available at ADAMS Package No. ML14121A554. DTE submitted an administrative amendment to the LRA on June 5, 2014 (ADAMS Accession No. ML14156A237).
BACKGROUND This proceeding concerns DTEs April 24, 2014 license renewal application (LRA) to renew its operating license for Fermi 2 for an additional twenty years from the current expiration date of March 20, 2025. 3 Fermi 2 is a boiling-water reactor (BWR) designed by General Electric and is located near Frenchtown Township, Monroe County, Michigan. The Staff accepted the LRA for review, and published a Federal Register Notice on June 18, 2014, providing a Notice of Opportunity for Hearing. 4 On August 18, 2014, Petitioners filed a petition to intervene proposing four contentions. 5 DISCUSSION As discussed in detail below, the Petition should be denied because, while Petitioners have established representational standing, they have not submitted an admissible contention.
I. Representational Standing to Intervene Has Been Established Any person whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for hearing or petition for leave to intervene and a specification of the contentions which the person seeks to have litigated in the hearing. 6 10 C.F.R. § 2.309(a). An organization, such as Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, and Dont Waste Michigan, may establish representational standing to intervene if it identifies a member of the organization by name and address who would qualify for standing, shows that the member has authorized the organization to represent his or her interests, and demonstrates that the interest the organization seeks to protect is germane to its 3
LRA at 1-1. If the LRA is approved, Fermi 2s new license expiration date would be March 20, 2045. Id. at 1-6.
4 DTE Electric Company; Fermi 2, License renewal application; opportunity to request a hearing and to petition for leave to intervene, 79 Fed. Reg. 34,787 (June 18, 2014).
5 See generally Petition.
6 The definition of person in 10 C.F.R. § 2.4 includes public interest groups, such as Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, and Dont Waste Michigan.
own purposes. 7 In license renewal proceedings, a petitioner is presumed to have standing to intervene without the need specifically to plead injury, causation, and redressability if the petitioner lives within 50 miles of the nuclear power reactor. 8 The Commission has explained that this presumption rests on the Commissions finding, in construction permit and operating license cases, that persons living within the roughly 50-mile radius of the facility face a realistic threat of harm if a release from the facility of radioactive material were to occur. 9 In this case, several named members of the above organizations have provided affidavits that establish that they live within 50 miles of Fermi 2, authorize the respective organization to represent them in this proceeding, and raise concerns that are germane to the organizations purposes. 10 Therefore, Petitioners have established representational standing under 10 C.F.R. § 2.309(a) to represent these individuals. 11 II. Contention Admissibility Requirements In addition to establishing standing, to intervene in a license renewal proceeding, a petitioner must also submit at least one admissible contention. The legal requirements governing the admissibility of contentions are well-established and set forth in 10 C.F.R.
§ 2.309(f) of the Commissions Rules of Practice. Specifically, in order to be admitted, a contention must satisfy the following requirements:
(f) Contentions. (1) A request for hearing or petition for leave to intervene must set forth with particularity the 7
Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 409 (2007).
8 Entergy Nuclear Operations, Inc., (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 60 (2008).
9 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Plant, Unit 3), CLI-09-20, 70 NRC 911, 917 (2009) (citing Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear plant, Unit 3), LBP 04, 69 NRC 170, 183 (2009)).
10 Petition at 1-5; Standing Declarations.
11 Because proximity-based standing has been established, the Staff will not address whether the Petitioners have standing based on traditional standing concepts. Petition at 5 (asserting locus standii based on injury, causation, and redressability).
contentions sought to be raised. For each contention, the request or petition must:
(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and (vi) Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petition disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief.
(2) Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicants environmental report . . .
10 C.F.R. § 2.309(f)(1)-(2). The requirements governing the admissibility of contentions are strict by design. 12 Thus, they have been strictly applied in NRC adjudications, including license renewal proceedings. 13 III. The Scope of the NRCs Safety and Environmental Review for License Renewal Proceedings As noted, to be admissible, contentions must be within the scope of the proceeding. The Petitioners contentions raise both safety and environmental claims; therefore, the Staff will briefly discuss the scope of its safety and environmental review in license renewal proceedings.
A. General Overview of the Scope of License Renewal Review The Commissions regulations in 10 C.F.R. Part 54 14 limit the scope of a license renewal proceeding to the specific matters that must be considered for the license renewal application to be granted. Pursuant to 10 C.F.R. § 54.29, the Commission considers the following standards in determining whether to grant a renewed license:
A renewed license may be issued by the Commission up to the full term authorized by § 54.31 if the Commission finds that:
(a) Actions have been identified and have been or will be taken with respect to the matters identified in Paragraphs (a)(1) and (a)(2) of this section, such that there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB, and that any changes made to the plant's CLB in order to comply with this paragraph are in accord with the Act and the Commission's regulations. These matters are:
(1) managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified to require review under
§ 54.21(a)(1); and 12 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).
13 AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006).
14 See generally, Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943 (Dec. 13, 1991);
Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461 (May 8, 1995).
(2) time-limited aging analyses that have been identified to require review under § 54.21(c).
(b) Any applicable requirements of Subpart A of 10 C.F.R. Part 51 have been satisfied.
(c) Any matters raised under § 2.335 have been addressed.
These standards, along with other regulations in 10 C.F.R. Part 54, and the environmental regulations related to license renewal set forth in 10 C.F.R. Part 51 and Appendix B, 15 establish the scope of issues that may be considered in a license renewal proceeding. The failure of a proposed contention to demonstrate that the issue is within the scope of the proceeding is grounds for its dismissal. 16 The Commission has provided guidance for license renewal adjudications regarding which safety and environmental issues properly fall within or beyond its license renewal requirements. See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 &
4), CLI-01-17, 54 NRC 3, 6-7 (2001). Specifically, the NRC conducts a technical review pursuant to 10 C.F.R. Part 54, to assure that pertinent public health and safety requirements have been satisfied. Id. at 6. In addition, the NRC performs an environmental review pursuant to 10 C.F.R. Part 51 to assess the potential impacts of twenty additional years of operation. Id.
at 6-7. 17 NEPA requires that agencies take a hard look at environmental consequences; 15 Part 51 of the NRCs regulations contains the agencys implementation of NEPA. 10 C.F.R. § 51.2.
16 10 C.F.R. § 2.309(f)(1)(iii); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 567 (2005).
17 Under Part 51, the NRC must prepare an environmental impact statement (EIS) for license renewals. 10 C.F.R. § 51.20(b)(2). As the Supreme Court explained, preparing an EIS furthers the policies of NEPA in two ways: (1) It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts and (2) [I]t also guarantees that the relevant information will be made available to the larger audience, and thus provides a springboard for public comment. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
NEPA does not mandate particular results. 18 Further, NEPAs requirements are tempered by a practical rule of reason. 19 Importantly, regardless of whether a license renewal application has been filed for a facility, the Commission has a continuing responsibility to oversee the safety and security of ongoing plant operations, and it routinely oversees a broad range of operating issues under its statutory responsibility to assure the protection of public health and safety for operations under existing operating licenses. Therefore, for license renewal, the Commission has found it unnecessary to include a review of issues already monitored and reviewed as part of ongoing regulatory oversight processes. Turkey Point, CLI-01-17, 54 NRC at 8-10.
B. The License Renewal Safety Review The Commission clearly indicated that its license renewal safety review focuses on plant systems, structures, and components for which current [regulatory] activities and requirements may not be sufficient to manage the effects of aging in the period of extended operation. Id. at 10 (quoting 60 Fed. Reg. at 22,469). For example, the Commission has held that emergency planning issues are not within the scope of license renewal because
[e]mergency planning is, by its very nature, neither germane to age-related degradation nor unique to the period of extended operation. Millstone, CLI-05-24, 62 NRC at 560-61. Further, the Commission stated that: Adjudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review, for our hearing process (like our Staffs review) necessarily examines only the [safety] questions our safety rules make pertinent. Turkey Point, CLI-01-17, 54 NRC at 10.
With respect to the safety review, the Commission has provided significant guidance on the structures, systems, and components within the scope of license renewal, as well as the 18 Robertson, 490 U.S. at 349 (internal quotations omitted).
19 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC 202, 208 (2010).
intended functions of those structures, systems, and components that require aging management review in CLI-10-14. 20 Therein, the Commission stated, aging management review for license renewal does not focus on all aging-related issues, but rather, on structures and components that perform passive intended functions that are of princip[le] importance to safety. 21 The Commission explained that 10 C.F.R § 54.4(a)(1)-(3) defines the general scope of license renewal safety review, 22 and further stated that 10 C.F.R. § 54.29, which lists the standards for issuance of a renewed license, does not expand the scope of license renewal aging management review beyond the intended functions outlined in § 54.4. 23 C. License Renewal Environmental Review In addition to its safety review, the NRC performs an environmental review pursuant to 10 C.F.R. Part 51 to assess the potential environmental impacts of twenty additional years of operation. 24 Contentions raising environmental issues in a license renewal proceeding are similarly limited to those issues which are affected by license renewal and have not been addressed by rulemaking or on a generic basis. Turkey Point, CLI-01-17, 54 NRC at 11-12. In 10 C.F.R. Part 51, the Commission divided the environmental requirements for license renewal into generic and plant-specific components. Id. at 11. The Generic Environmental Impact Statement (GEIS) contains Category 1 issues for which the NRC has reached generic conclusions. 25 Id. Applicants for license renewal do not need to submit analyses of Category 1 20 See Pilgrim, CLI-10-14, 71 NRC 449 (2010).
21 Id. at 454.
22 Id. at 455.
23 Id. at 462 n.71.
24 Turkey Point, CLI-01-17, 54 NRC at 6-7.
25 NUREG-1437, Rev. 1 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report, (June 2013) (ADAMS Accession No. ML13106A241). To qualify as a Category 1 issue, an environmental issue must meet three criteria. First, the environmental impacts associated with that issue must apply to all plants or groups of plants. Second, those impacts must have a single significance level across all plants. Finally, additional plant-specific mitigation measures must not
issues in their Environmental Reports, but instead may reference and adopt the generic findings. Id. Applicants, however, must provide a plant-specific review of the non-generic Category 2 issues. Id. Category 1 issues "are not subject to site-specific review and thus fall beyond the scope of individual license renewal proceedings." Id. at 12; 26 see 10 C.F.R.
§ 51.53(c)(3)(i)-(ii).
The Commission recently reiterated this principle, and specified that the GEIS Category 1 conclusions, which are expressly incorporated into Part 51 regulations, generally may not be challenged in a license renewal proceeding unless the rule is waived by the Commission for a particular proceeding or the rule itself is suspended or altered in a rulemaking proceeding. 27 Thus, challenges to Category 1 issues, like challenges to all of the Commissions regulations, are outside the scope of NRC adjudications. Moreover, claims of new and significant information with respect to Category 1 issues cannot be litigated in individual proceedings. 28 Consequently, a party seeking to litigate a Category 1 issue or challenging a determination in Table B-1 in a license renewal proceeding must seek a waiver of the be likely to be sufficiently beneficial to warrant implementation. In the 2013 GEIS, which applies in this proceeding, the Commission changed the categorization of a number of issues from the previous GEIS (i.e., the 1996 GEIS, available at ADAMS Accession No. ML040690705). See GEIS at 1 1-35 (summarizing these changes).
26 In Turkey Point, the Commission recognized that even generic findings sometimes need revisiting in particular contexts. . . . In the hearing process, for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule." Turkey Point, CLI-01-17, 54 NRC at 12.
27 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13, 17 (footnotes omitted), reconsid. denied, CLI 13, 65 NRC 211, 214 (2007).
28 In the hearing process, for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule." Turkey Point, CLI-01-17, 54 NRC at 12. When a claim of new and significant information applies to many plants that are subject to a generic rule, the appropriate solution is a petition for a new rulemaking rather than a grant of a waiver. Vermont Yankee, CLI-07-3, 65 NRC at 20-21.
Commissions regulations, pursuant to 10 C.F.R. § 2.335. 29 These clear procedural rules have been upheld in the First Circuit 30 and do not substitute for or impact in any way the other non-adjudicatory channels through which the NRC receives and considers claims of new and significant information. 31 IV. Petitioners Proposed Contentions Do Not Meet the Admissibility Criteria For the reasons discussed below, none of the Petitioners four contentions meet all of the 10 C.F.R. § 2.309(f)(1) criteria. 32 Therefore, the Petitioners have not submitted an admissible contention and their Petition should be denied.
A. Proposed Contention 1 The Petitioners Proposed Contention 1 states:
The Applicants Fermi 2 Environmental Report fails to accurately and thoroughly conduct Severe Accident Mitigation Alternatives (SAMA) analysis to the long-recognized and unaddressed design vulnerability of the General Electric Mark 1 Boiling Water Reactor pressure suppression containment system and the environmental consequences of a to-be-anticipated severe accident post-Fukushima Daiichi. 33 Proposed Contention 1 is labeled as an environmental contention. 34 However, the contention raises both environmental 35 and safety issues. 36 For the reasons discussed below, Petitioners 29 Turkey Point, CLI-01-17, 54 NRC at 12, 22-23.
30 See Massachusetts v. United States, 522 F.3d 115, 127 (1st Cir. 2008).
31 E.g., license renewal applicants environmental report, public comments on a draft supplemental EIS, and rulemaking petitions. See Massachusetts v. United States, 522 F.3d 115, 127 (1st Cir. 2008); Exelon Generation Co. LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC 377, 386 (2012) (citing Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.
(Vermont Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 20-21 (2007)).
32 A contention must comply with every requirement listed in 10 C.F.R. 2.309(f)(1) to be admissible. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421 (2008).
33 Petition at 6. Petitioners raise two contentions, Contention 1 and Contention 4, related to Fermis SAMA analysis. Thus, the Staff answers Contention 1 and 4 and then addresses Contentions 2 and 3.
34 Petition at 6.
Proposed Contention 1 does not raise an admissible safety or environmental license renewal claim. Therefore, Proposed Contention 1 should be denied.
- 1. The NRCs Consideration of Severe Accident Mitigation Alternatives In License Renewal Proceedings Petitioners claim that DTEs ER fails to accurately and thoroughly conduct [SAMA]
analysis to the long-recognized and unaddressed design vulnerability of the General Electric Mark 1 Boiling Water Reactor pressure suppression containment system and the environmental consequences of a to-be-anticipated severe accident post-Fukushima Daiichii. 37 SAMAs are an aspect of the environmental license renewal review. 38 Thus, certain license renewal applicants, including DTE, are required to consider SAMAs in the ER prepared in connection with their license renewal application. 39 Mitigation alternatives or SAMAs refer to safety enhancements such as a new hardware item or procedure intended to reduce the risk of severe accidents. 40 The SAMA review ensures that any plant changes - in hardware, procedures, or training - that 35 See, e.g., Petition at 13, 19, 24 (claiming that SAMA analysis failed to analyze engineered filtered vents as one potential mitigation measure, failed to account for the uncontrolled release of radionuclides in the consequences, and failed to fully incorporate the National Academy of Sciences Report).
36 Petition at 12 (claiming that Fermi 2 is not in compliance with General Design Criteria 16). See id. at 10 (claiming that Fermi 2s Updated Final Safety Analysis Report (UFSAR) fails to acknowledge the long-recognized and still unresolved vulnerabilities of the General Electric Mark I boiling water reactor pressure containment system.).
37 Petition at 6.
38 The SAMA analysis is not a safety review performed under the Atomic Energy Act. The mitigation measures examined are supplemental to those we already require under our safety regulations for reasonable assurance of safe operation. Entergy Nuclear Generation Co., (Pilgrim Nuclear Power Station) CLI-12-01, 75 NRC 39, 57 (2012).
39 See 10 C.F.R. § 51.53(c)(3)(ii)(L) (noting that ER must provide a consideration of alternatives to mitigate severe accidents if the staff has not previously considered such alternatives for the plant in a NEPA document). See also Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 290 (2010) reconsideration denied, CLI-10-15, 71 NRC 479 (2010).
40 Pilgrim, CLI-10-11, 71 NRC at 290-91.
have a potential for significantly improving severe accident safety performance are identified and assessed. 41 In short, the SAMA analysis evaluates a number of potential accident progression sequences (scenarios) and the possible safety enhancements that may reduce the risk of those accident scenarios. Pilgrim, CLI-10-11, 71 NRC at 291. The analysis determines whether particular SAMAs would sufficiently reduce risk - e.g., by reducing frequency of core damage or frequency of containment failure - for the SAMA to be cost-effective to implement. Id. Thus, the analysis is inherently probabilistic. Id. If the cost of implementing a particular SAMA is greater than its estimated benefit, the SAMA is not considered cost-beneficial to implement. Id.
Importantly, the Commission has explained that in a highly predictive analysis such as a SAMA analysis, there are bound to be significant uncertainties, and therefore an uncertainty analysis is performed. 42 The NRC Staffs obligation regarding SAMAs under NEPA and Part 51 is met by taking a hard look at those SAMAs identified as potentially cost beneficial. 43 Only those SAMAs that are cost-beneficial and bear on adequately managing the effects of aging need be implemented as part of the license renewal safety review, pursuant to 10 C.F.R. Part 54. 44 41 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 &
2), CLI-02-17, 56 NRC 1, 5 (2002); FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-08, 75 NRC 393, 406 (2012).
42 Pilgrim, CLI-12-01, 75 NRC at 58.
43 Entergy Nuclear Operations Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-10-13, 71 NRC 673, 679 (2010).
44 Pilgrim, CLI-10-11, 71 NRC at 294.
- 2. Petitioners SAMA Claims Do Not Raise a Genuine Material Dispute with DTEs SAMA Analysis The Staff recognizes that SAMAs are a Category 2 issue that must be discussed in DTEs ER. 45 However, Petitioners SAMA claims do not raise a litigable issue. In explaining another SAMA contention, the Commission noted that it has long stressed that NRC adjudicatory hearings are not EIS editing sessions. 46 Under NEPA, mitigation (and the SAMA issue is one of mitigation) need only be discussed in sufficient detail to ensure that environmental consequences [of the proposed project] have been fairly evaluated. 47 Thus, the Commission has stated that the ultimate concern for a SAMA analysis is whether any additional SAMA should have been identified as potentially cost beneficial, not whether further analysis may refine the details in the SAMA NEPA analysis. 48 The Commission has explained that when it comes to admissibility of SAMA contentions, the proper question is not whether there are plausible alternative choices for use in the analysis, but whether the analysis that was done is reasonable under NEPA. 49 Unless a petitioner sets forth a supported contention pointing to an apparent error or deficiency that may have significantly skewed the environmental conclusions, there is no genuine material dispute for hearing. 50 45 See Table B-1 (noting that alternatives to mitigate severe accidents must be considered for all plants have not considered such alternatives).
46 Entergy Nuclear Generation Co. & Entergy Nuclear Operations (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC 529, 533 (2009) (internal quotations omitted).
47 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2, Catawba Nuclear Station, Units 1 &
2), CLI-03-17, 58 NRC 419, 431 (2003) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 353 (1989) (alteration in original)).
48 Pilgrim, CLI-09-11, 69 NRC at 533.
49 Davis-Besse, CLI-12-08, 75 NRC 393, 406 (2012) (alterations in original) (citing NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC 301, 323-24 (2012).
50 Id. at 407 (internal citations omitted).
DTEs ER contains a SAMA analysis, 51 as required by 10 C.F.R. § 51.53(c)(3)(ii)(L).
Petitioners make several claims that the SAMA is deficient. However, none of these claims are admissible.
- a. Petitioners Fail to Identify Information that Is Actually Missing From Fermi 2s SAMA Analysis Petitioners claim that Fermi 2s SAMA analysis failed to account for engineered filter vents and the potential for uncontrolled and unmitigated releases. 52 A careful review of the ER, however, shows that Fermi 2s SAMA analysis analyzed filtered vents and uncontrolled releases into the environment.
- i. Fermi 2s SAMA Analysis Considered and Evaluated the Installation of Filtered Vents Petitioners state:
The Applicant's Environmental Report and SAMA analysis is significantly defective in that its containment performance under severe accident conditions does not provide a thorough, complete and accurate analysis of the available state-of-the-art severe accident mitigation alternatives as required by the regulations.
The Petitioners contend that the NRC staff has recognized that severe accident mitigation alternatives can be significantly improved by the incorporation of an external engineered filtered venting system. However, the Applicants ER fails to take into account, analyze and consider this alternative. Its SAMA for the Fermi-2 Mark I is therefore incomplete and inadequate. 53 Petitioners add additional assertions regarding the Staffs opinion regarding the benefit of filtered vents for BWR Mark I containments, the benefit achieved through filtering strategies and mitigation measures, and Japans installation of engineered filter vents. 54 These arguments and 51 ER at 4.9.3.4.
52 See Petition at 13 and 19.
53 Petition at 13.
54 Petition at 13 - 18
assertions are premised on Petitioners mistaken understanding of the scope of Fermi 2s SAMA analysis.
Fermi 2s SAMA analysis explicitly analyzed engineered filter vents as one of the mitigation measures for severe accidents. Specifically, Fermi 2s ER states:
SAMA 123: Install an A TWS sized filtered containment vent to remove decay heat To evaluate the change in plant risk from installing an ATWS sized filtered containment vent, an analysis was performed decreasing the concentration of all radionuclides, excluding noble gases, by fifty percent. Since no modifications were made to the Level 1 or Level 2 PRA model, there was no change in core damage frequency or release category frequency. The averted cost risk was calculated by comparing the base modified MACR to the modified MACR using a fifty percent reduction in radionuclide concentrations.
With the model changes discussed above, the averted cost risk relative to the base case is $1,102,769. 55 Continuing, the ER evaluates the benefit of the filter against the cost and concludes that it is not cost-beneficial. 56 Thus, Petitioners claim that the SAMA analysis did not analyze filters is incorrect and cannot support an admissible contention. Thus, this portion of Proposed Contention 1 is inadmissible.
ii. Fermi 2s SAMA Analysis Evaluated Accidents Resulting in Uncontrolled and Unmitigated Releases Similar to its assertions regarding DTEs failure to account for engineered filters as a mitigation measure, Petitioners allege that the containment venting operations result in uncontrolled venting that is not fully accounted for by SAMA analysis. Specifically, the contention states:
The Petitioners contend that the uncontrolled nature of such radiological releases under accident conditions commences with a loss of the fuel cladding integrity, the initial barrier against uncontrolled radiological releases, constituting a post-fuel damage 55 ER at D-120 (emphasis in original).
56 ER at D-137 and D-148.
accident in the reactor core. At this point, the reactor operators efforts to control containment over pressure, temperature and an explosive hydrogen gas atmosphere inside containment by containment venting necessitate the uncontrolled and unfiltered release of radioactivity to the environment. These uncontrolled and unfiltered radiological releases and their environmental consequences are not thoroughly or adequately addressed by the Applicants SAMA analysis. 57 Additionally, Petitioners claim that the Fermi 2 SAMA analysis is overly and unrealistically optimistic by not anticipating the potential for fuel damage in the analysis and do not thoroughly or adequately address the failure of the pressure suppression containment with the uncontrolled and unfiltered radiological releases to the environment. 58 Petitioners provide no other support or explanation for their challenge.
Contrary to these claims, Fermi 2s SAMA analysis contemplates accidents with significant uncontrolled releases. For example, Fermi 2s ER explains that a large number of potential accident source term end states were evaluated and grouped together into bins 59 based on the timing and quantity of fission products released. 60 The source terms were binned into nine (9) distinct groups. 61 For the purposes of evaluating SAMAs, the potential benefits of the SAMA can be evaluated from a source term selected to represent all the accident scenarios within an individual bin, that is, all accidents with similar release magnitudes and timing. 62 Of particular 57 Petition at 19-20.
58 Petition at 21.
59 An atmospheric source term is binned into separate files based on similar into a limited number of release categories, each of which represents all postulated accident scenarios that would produce a similar fission product source term. ER at D-49. The primary criteria used to group or bin thes source terms are the estimated magnitude of total release and the timing of the first significant release of radionuclides. Id.
60 ER at D-55.
61 Id. at D-56.
62 Id. D D-56.
note, Fermi 2s SAMA modeled a set of accidents with large early releases without containment isolation. 63 Fermi 2s SAMA also separately considered a set of accidents with large early releases with containment isolation. 64 Thus, Petitioners claim is simply incorrect. The SAMA does take into account that the venting of containment during a severe accident would result in a large uncontrolled release.
Regardless of Petitioners claims, the source terms utilized in the large early release for either an isolated containment or unisolated containment are sufficient for modeling the precise accident contemplated by Petitioners. 65 Thus, this accident has been accounted for by the SAMA analysis. For Petitioners to claim that accident is not contemplated by the SAMA analysis, they would need to demonstrate that this particular accident alleged to be missing does not fall into any one of the nine accident bins. Petitioners have not, however, identified how this accident is different from any of the modeled accidents, and thus, it is inadmissible.
- b. Petitioners Have Not Shown That the National Academy of Science Report Would Materially Affect the Fermi 2 SAMA Analysis Petitioners argue that Fermi 2s SAMA analysis is inadequate because of particular information in the National Academy of Sciences (NAS) Report. 66 Specifically, Petitioners argue that Recommendation 5.2A and 5.2C indicate that the SAMA analysis is deficient. 67 Petitioners contend that NEPA requires DTE to incorporate the concerns, findings, and recommendations of the NAS expert committee into the Fermi 2 SAMA analysis. 68 63 ER at D D-57.
64 Id.
65 The National Research Council, Lessons Learned from the Fukushima Nuclear Accident for Improving Safety of U.S. Nuclear Plants (NAS Report) (2014) (located at http://www.nap.edu/openbook.
php?record_id= 18294).
66 Petition at 22.
67 Petition at 22-23.
68 Petition at 24.
- i. The NAS Report Provides No Basis to Conclude That Fermi 2s SAMA Analysis is Flawed or Inadequate As cited by Petitioners when the NAS Report was discussing the Staffs filtered vent analysis in comparison to the costs projected for the Japanese recovery, it was simply highlighting that different assumptions can impact the cost estimates. 69 For example, the report highlights that one large difference between the NRCs analysis and the costs being borne by the Japanese relate to the assumption of continued nuclear plant operation. In Japan, all nuclear plants were shut-down, imposing high costs on the country to replace this power. 70 The NRCs analysis assumes that nuclear plants will continue to operate and provide power. 71 The NAS Report explains that it is not critiquing the Staffs analysis and in fact did not perform a review of that analysis. 72 The report states that [t]he point of this appendix is not to critique the
[NRCs] analysisthe committee did not perform an in-depth review of this analysis because it is outside the statement of task for the study. 73 As such, the NAS report provides no insight or critique of Fermi 2s SAMA analysis beyond the unremarkable conclusion that alternative inputs and assumptions could alter the analysis. 74 ii. The Two Recommendations Cited By Petitioners Do Not Identify Any Errors or Flaws in the Fermi 2 SAMA Analysis Petitioners state that the Fermi 2 SAMA analysis should incorporate the NAS Report findings, particularly Recommendation 5.2A and 5.2C. These recommendations are 69 NAS Report at L-3.
70 See id.
71 NAS Report at L-3.
72 NAS Report at L-3.
73 NAS Report at L-3.
74 NAS Report L-3. The Commission has indicated similarly in discussing SAMA contention. For example, the Commission has emphasized that it is insufficient to merely propose alternative inputs or methods to the SAMA analysis without identifying why the analysis is unreasonable under NEPA.
Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC 39, 57 (2012)..
Here, the NAS Report does not even propose alternatives to the SAMA analysis. NAS Report at L-3.
unremarkable. In 5.2A, the NAS Report recommends that the NRC and nuclear industry seek to improve their ability to identify beyond design basis events, model plant system and operator actions, and estimate the impacts. 75 Importantly, the NAS Report makes no conclusion that current analysis is flawed but simply urges the NRC to continue to make improvements in its ability to identify and understand these type events.
In 5.2C, the NAS Report indicates that as the NRC improves its ability to identify and model beyond design basis events it should concentrate its efforts on risks from beyond-design-basis events that have the potential to affect large geographic regions and multiple nuclear plants. 76 Here again, the NAS Report does not indicate that Fermi 2s SAMA analysis is unreasonable or flawed. 77 Petitioners provide no facts or expert opinions indicating how any of this information is applicable to Fermi 2s current SAMA analysis. Petitioners have not identified any specific portion of the SAMA analysis that is incorrect. Instead, they offer only a generalized complaint that Fermi 2s SAMA analysis must address the NAS Report. This type of unsupported assertion does not indicate that Fermi 2s SAMA analysis is unreasonable or contains errors. Thus, this portion of Proposed Contention 1 is inadmissible.
- 3. Proposed Contention 1s Safety Claims Raise Safety Issues Outside the Scope of License Renewal Proposed Contention 1 also raises safety concerns. For example, Petitioners assert that Fermi 2, a BWR Mark I reactor, is not in compliance with GDC 16:
As previously stated, the Petitioners contend that the Applicant is required to comply with General Design Criterion 16. DTE has not been granted by NRC any relaxation, waiver or exemption for compliance with GDC 16. Current NRC post-Fukushima corrective actions, including EA 2013-109, do not effectively address nor actively mitigate Fermi 2s compliance with GDC 16 and the acknowledged lack of a reliable containment system for an 75 NAS Report at S-5 -S-6.
76 NAS Report at S-6.
77 NAS Report at S-6.
essentially leak tight barrier against the uncontrolled release of radioactivity to the environment and to assure that the containment design conditions important to safety are not exceeded for as long as postulated accident conditions require for the current licensing basis nor the requested license renewal period. Order Modifying Licenses with Regard to Reliable Hardened Containment Vents Capable of Operation Under Severe Accident Conditions, NRC, EA 2013-109, June 6, 2013. 78 However, compliance with the current licensing basis, the GDCs, or other current operating issues are outside the limited scope of license renewal. Turkey Point, CLI-01-17, 54 NRC at 3.
Proposed Contention 1 also raises current safety issues, which are beyond the scope of a license renewal proceeding. 79 As discussed, the scope of the license renewal safety review is narrow; it is limited to plant structures and components that will require an aging management review for the period of extended operation and the plants systems, structures and components that are subject to an evaluation of time-limited aging analyses. 80 For each structure or component requiring an aging management review, a license renewal applicant must demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the [current licensing basis (CLB)] for the period of extended operation. 81 Challenges to the adequacy of a plants CLB, however, are beyond the scope of license renewal. 82 The adequacy of the containment structure to satisfy GDC 16 or the CLB is simply 78 Petition at 18.
79 See Davis-Besse, LBP-12-27, 76 NRC at 609 (citing Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 8-10 (2001)).
80 Duke Energy Corp., (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 &
2), CLI-01-20, 54 NRC 211, 212 (2001). See Motion for Admission of Contention 6 at 16-17 and 27-29.
81 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449, 453-456 (2010).
82 See Turkey Point, CLI-01-17, 54 NRC at 8-9 (stating that the Commissions on-going regulatory oversight ensures the adequacy of the plants current licensing basis, thus there is no reason to reanalyze the adequacy of the CLB for license renewal).
beyond the scope of this proceeding. 83 If Fermi 2 was not in compliance with its CLB or GDC 16, it is a current operating issue and Fermi would need to correct the problem. 84 Therefore, to the extent that Contention 1 seeks to challenge the adequacy of the Commissions safety regulations and the adequacy of Fermi 2s CLB to provide reasonable assurance of adequate protection of public health and safety, 85 it is beyond the scope of this proceeding and must be rejected.
Notably, Petitioners own statement of Proposed Contention 1 and what Proposed Contention 1 alleges makes clear that Contention 1 raises current safety issues. For example, proposed Contention 1 states:
The Petitioners contend that DTE is required to comply with 10 C.F.R. Part 50 Apx. A General Design Criteria (GDC). The NRC states, The principal design criteria establish the necessary design, fabrication, construction, testing, and performance requirements for structures, systems, and components important to safety; that is, structures, systems, and components that provide reasonable assurance that the facility can be operated without undue risk to the health and safety of the public. 10 C[F]R 50, Appendix A, General Design Criteria.
This compliance includes GDC 16, Containment design which states, Reactor containment and associated systems shall be provided to establish an essentially leak-tight barrier against the uncontrolled release of radioactivity to the environment and to assure that the containment design conditions important to safety are not exceeded for as long as postulated accident conditions require. 10 C[F]R 50 Appendix A, Criterion 16, Containment Design.
83 If Petitioners believe that Fermi 2 is not in compliance with its CLB, they can seek to resolve this issue through a 10 C.F.R. § 2.206 petition.
84 See 10 C.F.R. § 54.30.
85 The AEA requires the NRC to ensure the safe operation of nuclear power plants. Union of Concerned Scientists v. NRC, 824 F.2d 108, 109 (D.C. Cir. 1987). Under Section 182.a of the AEA, the Commission must ensure that the utilization or production of special nuclear material will provide adequate protection to the health and safety of the public. Id. (quoting 42 U.S.C. § 2232(a) (alterations in original).
The current operation of Fermi-2 and the requested 20-year extension of operations are not subject to any relaxation, waiver or exemption for compliance with GDC 16. 86 The ability of the containment structure to perform its intended function is a current licensing issue; not an issue unique to license renewal. The Commission issued orders in response to Fukushima Dai-ichi accident and each plant, including Fermi 2, are in the process of implementing these orders in a timely manner. 87 The NRCs ongoing oversight of the reactor and inspections related to the implementation of the orders would address any safety-significant issue arising during the current license period. 88 Thus, to the extent Petitioners claim that Fermi 2 is not in compliance with GDC 16, it is outside the scope of the proceeding. 89 To the extent Petitioners believe there are existing operational issues at Fermi 2 that warrant immediate action, their remedy is to file a § 2.206 petition. 90 B. Proposed Contention 2 The Petitioners Proposed Contention 2 states:
The Environmental Report for Fermi 2 does not satisfy the National Environmental Policy Act (NEPA) or 10 C.F.R. § 51.45(c) because it does not consider a range 86 Petition at 12.
87 The Commission, by order, has required the installation of severe accident capable vents, mitigation of beyond design basis external events, and installation of spent fuel pool instrumentation.
See, e.g NRC Order EA-12-051, "Order Modifying Licenses with Regard to Reliable Spent Fuel Pool (SFP) Instrumentation," March 12, 2012; NRC Order EA-12-049 Order Modifying Licenses with Regard to Requirements for Mitigation Strategies for Beyond-Design-Basis External Events (BDBEE). The Staff is also considering what impact, if any, this has on a license renewal decision. See Staffs April 15, 2014 RAI (ADAMS Accession No. ML14097A454). However, as discussed further below, Intervenors have not raised a genuine material dispute with the LRA because they have not identified how, the SAMA analysis should be modified to account for these orders.
88 See, e.g., 10 C.F.R. § 54.30(a) and (b).
89 Turkey Point, CLI-01-17, 54 NRC at 8-10 (noting that the Commission has a continuing responsibility to oversee the safety and security of ongoing plant operations, and it routinely oversees a broad range of operating issues under its statutory responsibility to assure the protection of public health and safety for operations under existing operating licenses; therefore, for license renewal, the Commission has found it unnecessary to include a review of issues already monitored and reviewed in the ongoing regulatory oversight processes).
90 See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI 11, 74 NRC 427, 437 (2011).
of mitigation measures to mitigate the risk of catastrophic fires in the densely packed, closed-frame spent fuel storage pools at Fermi 2. 91 Petitioners assert that the ER omits a discussion of the safety and environmental findings that the NRC must make regarding the environmental impacts of spent fuel storage and disposal, and a range of mitigation measures, before it can legally re-license Fermi Unit
- 2. 92 Thus, although labeled an environmental contention, 93 Proposed Contention 2 raises both safety and environmental claims. For the reasons discussed below, Proposed Contention 2 does not raise an admissible environmental or safety issue and thus should be denied.
- 1. This Contention Relates to a Category 1 Environmental Issue That Is Not Subject to Challenge Absent a Waiver The Commission has determined that certain environmental issues (i.e., Category 1 issues in the license renewal GEIS), are not subject to challenge in an individual license renewal proceeding absent a waiver. 94 The environmental impacts of onsite spent fuel storage during the period of extended operation, including spent fuel accident risks and their mitigation, are one such Category 1 issue. 95 Specifically, the 2013 license renewal GEIS provides the Commissions generic determination that for all license renewal proceedings, the environmental impacts of the onsite 91 Petition at 26.
92 Petition at 32. See id. (noting that contention 2 is a an contention of omission).
93 Petition at 26 (noting that contention 2 is environmental contention).
94 Turkey Point, CLI-01-17, 54 NRC at 23 (Part 51's license renewal provisions cover environmental issues relating to onsite spent fuel storage generically[; therefore,] [a]ll such issues, including accident risk, fall outside the scope of license renewal proceedings.); Pilgrim, CLI-07-03, 65 NRC at 20 (Fundamentally, any contention on a Category 1 issue amounts to a challenge to our regulation that bars challenges to generic environmental findings.).
95 See Appendix B to Subpart A of 10 C.F.R. Part 51, Table B-1 (stating that [o]nsite storage of spent nuclear fuel is a Category 1 issue for which the NRC generically found that [t]he expected increase in the volume of spent fuel from an additional 20 years of operation can be safely accommodated onsite during the license renewal term with small environmental effects through dry or pool storage at all plants).
storage of spent nuclear fuel are small for the license renewal term. 96 Importantly, the Commission found that this generic determination encompasses spent fuel accident risks and their mitigation. 97 Consequently, 10 C.F.R. § 51.53(c)(3)(i) states that, [t]he environmental report for the operating license renewal stage is not required to contain analyses of the environmental impacts of the license renewal issues identified as Category 1 issues in appendix B to subpart A of this part and 10 C.F.R. § 51.53(c)(3)(iii) states that no consideration of alternatives for reducing adverse impacts is required for Category 1 issues either. 98 Thus, no discussion of mitigation alternatives is needed in a license renewal application for a Category 1 issue. 99 Instead, license renewal applicants need only to discuss mitigation alternatives with respect to Category 2 issues. 100 Importantly, spent fuel accident risks do not fall under the site-specific category of severe accident mitigation alternatives because this category only applies to nuclear reactor accidents, not spent fuel storage accidents. 101 Consistent with the Commissions generic determinations and rules, DTE did not address the Category 1 issue of onsite spent fuel storage in its ER. Contrary to Petitioners claim, however, this is not an omission in the ER; instead, DTE did not include a discussion of this issue because it was not required to do so. Likewise, DTE did not discuss mitigation on this subject because it was not required to do so. Absent a waiver, Petitioners challenges that there 96 See 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1.
97 Turkey Point, CLI-01-17, 54 NRC at 21.
98 See also, Turkey Point, CLI-01-17, 54 NRC at 11-12; Baltimore Gas & Electric Co., 462 U.S.
87, 101 (1983) (Administrative efficiency and consistency of decision are both furthered by a generic determination of these effects without needless repetition of the litigation in individual proceedings, which are subject to review by the Commission in any event.).
99 Pilgrim, CLI-07-03, 65 NRC at 21.
100 Id. at 21.
101 Id. (emphasis in original). See supra Section IV.D.1.a.
are omissions in the ER 102 are challenges to the Commissions generic determinations and are outside the scope of this proceeding.
Likewise, Petitioners attempts to argue that spent fuel pool accidents are a site-specific Category 2 103 issue should be denied as challenges to the Commissions generic determinations on the issue. 104 Notably, the Commission rejected substantively identical arguments in the Turkey Point 105 and Pilgrim 106 license renewal proceedings. This portion of Proposed Contention 2 inadmissible for the reasons discussed here and below in Section IV.D.1.a.
- 2. Waste Confidence Claims Are Impermissible Challenges to Generic Determinations Contention 2 also relies on the 2010 remand of the waste confidence decision and rule as support for its admissibility. 107 For example, Petitioners contend that the Commissions regulations support admission of Contention 2 because Table B-1 reveals that no category is presently assigned for Offsite radiological impacts of spent nuclear fuel and high-level waste disposal because of [u]ncertain impact. The generic conclusion on offsite radiological impacts of spent nuclear fuel and high-level waste is no[w] being finalized pending the completion of a generic environmental impact statement on waste confidence. 108 Petitioners further state that [w]ithout the analysis in the Waste Confidence Decision and Rule regarding the technical feasibility and availability of a repository, the NRC cannot assess how 102 Petition, at 26 (claiming that the Applicants ER is insufficient under both the Commissions regulations and NEPA because it does not consider a range of mitigation measures to mitigate the risk of catastrophic fires in the densely packed, closed-frame spent fuel storage pools at Fermi 2.).
103 Petition at 32-33.
104 See Turkey Point, CLI-01-17, 54 NRC 3 (2001).
105 See Turkey Point, CLI-01-17, 54 NRC 3 (2001).
106 See Pilgrim, CLI-10-22, 72 NRC 202 (2010).
107 See, e.g., Petition at 28; id. at 32.
108 Petition at 28 (internal cites omitted).
long the spent fuel will need to be stored onsite. 109 Petitioners also argue that the NRC must make predictive safety findings and conduct an environmental analysis regarding the environmental impacts of spent fuel storage and disposal, and a range of mitigative measures, before it can legally re-license Fermi Unit 2. 110 These waste confidence-related challenges should be rejected as impermissible challenges to the Commissions regulations and generic determinations. In response to the courts ruling in New York, 111 the Commission directed the Staff to develop a generic environmental impact statement [(GEIS)] to identify the environmental impacts of continued storage, address the issues raised by the court, and support an updated rule. 112 On August 26, 2014, the Commission completed its action on the remanded Waste Confidence proceeding by issuing a revised rule at 10 C.F.R. § 51.23 and associated Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (NUREG-2157). The revised rule (1) revises the Commissions generic determination regarding the environmental impacts of the continued storage of spent nuclear fuel beyond a reactors licensed life for operation and prior to ultimate disposal and (2) concludes that NUREG-2157 generically determines the environmental impacts of continued storage of spent nuclear fuel beyond the licensed life for operation of a reactor. 113 109 Petition at 28 (internal cites omitted).
110 Petition at 32 (noting that [t]hose findings do not appear in the Environmental Report).
111 New York v. NRC, 681 F.3d 471, 478, 481-82 (D.C. Cir. 2012) (holding that the NRC must include an evaluation of failure to secure permanent disposal, as well as an improved analysis of spent fuel pool leaks and spent fuel pool fires).
112 Calvert Cliffs, CLI-14-08, 80 NRC __, __ (Aug. 26, 2014) (slip op. at 6) (citing Staff RequirementsCOMSECY 0016Approach for Addressing Policy Issues Resulting from Court Decision to Vacate Waste Confidence Decision and Rule (Sept. 6, 2012). See New York, 681 F.3d at 480 ([W]e see no reason that a comprehensive general analysis would be insufficient to examine on-site risks that are essentially common to all plants.).
113 See Memorandum to Mark A. Satorius, NRC EDO, from Annette L. Vietti-Cook, NRC Secretary,
Subject:
Staff Requirements - Affirmation Session, 10:00 a.m., Tues., Aug. 26, 2014, Commissioners Conference Room, One White Flint North, Rockville, Maryland (Open to Public
In CLI-14-08, the Commission held that the revised 10 C.F.R. § 51.23 and associated NUREG-2157 cure the deficiencies identified by the court in New York, and stated that the rule satisfies the NRCs NEPA obligations with respect to continued storage for renewed reactor licenses. 114 As directed by 10 C.F.R. § 51.23(b), the impacts assessed in NUREG-2157 are deemed incorporated into an EIS for a license renewal application and are not subject to litigation in individual licensing proceedings. 115 In view of the issuance of the revised 10 C.F.R. § 51.23 and associated NUREG-2157, the Commission lifted the suspension on all final licensing decisions for affected applications, which would include Fermi 2s LRA, as of the effective date of the final rule. 116 Importantly, the Commission also determined that several proposed continued storage contentions pending before it 117 were inadmissible because they were the subject of general rulemaking by the Commission [and] may not be litigated in individual license proceedings. 118 For the same Attendance) at 2 (Aug. 26, 2014) (ADAMS Accession No. ML14237A092). See also Union Electric Co.
(Callaway Plant, Unit 1), LBP-14-12, 80 NRC __ (Sept. 8, 2014) (slip op. at 2-3). The Staffs evaluation of the potential environmental impacts of continued storage of spent fuel presented in NUREG-2157 identifies an impact level, or a range of impacts, for each resource area for a range of site conditions and timeframes. The timeframes analyzed in NUREG-2157 include the short-term timeframe (60 years beyond the licensed life of a reactor), the long-term timeframe (an additional 100 years after the short-term timeframe), and an indefinite timeframe (see Section 1.8.2).
114 Calvert Cliffs, CLI-14-08, 80 NRC __, __ (Aug. 26, 2014) (slip op. at 5 n. 8).
115 Calvert Cliffs, CLI-14-08, 80 NRC __, __ (Aug. 26, 2014) (slip op. at 9). Id. at n. 27 116 Calvert Cliffs, CLI-14-08, 80 NRC __, __ (Aug. 26, 2014) (slip op. at 7). The Staff recognizes that it cannot make a final licensing decision on renewing Fermi-2s operating license until the effective date of the final rule and until it accounts for the revised rule and NUREG 2157, among other things. Id.
at 3.
117 Calvert Cliffs, CLI-14-08, 80 NRC __, __ (Aug. 26, 2014) (slip op. at 10) (noting pending continued storage contentions in William States Lee, Grand Gulf, Shearon Harris, Comanche Peak, and North Anna combined licensing proceedings).
118 Calvert Cliffs, CLI-14-08, 80 NRC __, __ (Aug. 26, 2014) (slip op. at 10); id. at 9 n.27.
reason, the Commission directed the Boards to reject the continued storage contentions held in abeyance. 119 Thus, the Commission has now made generic determinations related to each of Petitioners waste confidence claims. Specifically, Table B-1 now provides that the Offsite radiological impacts of spent nuclear fuel and high-level waste disposal issue is reclassified as a Category 1 issue with no impact level assigned and the finding entry is revised to address existing radiation standards. 120 The Onsite storage of spent nuclear fuel issue is still a Category 1 issue, but is revised to include the impacts during the license renewal term and the impacts from the continued storage period. 121 Further, Appendix B of NUREG-2157 analyzes the technical feasibility of a geologic repository and the availability of sufficient repository capacity. 122 This analysis undergirds the NRCs evaluation of the environmental impacts of continued storage activities. 123 Appendix B states that the timeframe needed to develop a repository is approximately 25 to 35 years and that a repository is likely to become available by the end of the short-term timeframe. 124 NUREG-2157 also analyzed the technical feasibility of wet and dry storage in spent fuel pools 119 The Commission noted that two contentions filed in the Indian Point license renewal proceeding should not be dismissed because [t]hese proposed contentions appear to include issues beyond the scope of the Continued Storage Rule. Calvert Cliffs, CLI-14-08, 80 NRC __, __ (slip op. at 10). See Union Electric Co. (Callaway Plant, Unit 1), LBP-14-12, 80 NRC __, __ (Sept. 8, 2014) (slip op.
at 4) (Callaway Board finding waste confidence contention that was held in abeyance inadmissible and dismissing it from the license renewal proceeding).
120 See SECY-14-0072-Ensloure1-Final Rule: Continued Storage of Spent Nuclear Fuel at 5 (Jul.
21, 2014) (ADAMS Accession No. ML14177A477) (SECY-14-0072).
121 See SECY-14-0072 at 5.
122 See NUREG-2157 Vol 1, "Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel: Final Report." at Appendix B (Sept. 30, 2014) (ADAMS Accession No. ML14196A105) (NUREG-2157).
123 NUREG-2157 at comment response at D-30.
124 NUREG-2157 at B.2.2.
and casks, respectively, for continued storage. 125 Given the experience and technical knowledge about the storage of spent fuel, the Staff concluded that spent fuel can be stored safely for the short-term, long-term, and indefinite timeframes. 126 Moreover, NUREG 2157 explains that any safety findings are made separate and distinct from the Commissions generic findings on the onsite storage of spent fuel. Thus, to the extent that the Petitioners claim that the ER was inadequate for not making safety findings on on-site spent fuel storage, 127 the Petitioners do not raise a genuine dispute with the application.
The license renewal decision on Fermi 2 will not include a safety finding for waste storage subsequent to the term of the renewed license. Instead, the license renewal application requests to renew the Fermi 2 operating license for 20 more years (i.e., until March 20, 2045).
Safety findings required under the AEA for the continued storage of nuclear waste subsequent to the end of the renewed license will be addressed in later licensing decisions or regulatory approvals To the extent that the Petitioners seek to litigate these issues in a site-specific fashion, they must seek and obtain a waiver of the rule. 128 Petitioners have not submitted or been granted a waiver. Therefore, these claims should be rejected.
- 3. Claims of New and Significant Information Do Not Render Challenges to Category 1 Issues Admissible In addition to making direct challenges to the Commissions Category 1 findings, Petitioners also claim that there is new and significant information that undermines the Commissions generic findings regarding the onsite storage of spent fuel such that a site-125 See NUREG-2157 at B.3.
126 See D.2.4 Comments Concerning Miscellaneous Issues (citing to Appendix B of NUREG-2157).
127 Petition at 32 (stating that the NRC must make predictive safety findings regarding the environmental impacts of spent fuel storage and disposal and that the findings do not appear in the ER).
128 To the extent Petitioners believe the issues they raise are generic, they can submit a petition for rulemaking. 10 C.F.R. § 2.802.
specific adjudication is appropriate. 129 In particular, Petitioners claim that the following developments suggest that the offsite consequences of spent fuel pool accidents should be considered as potentially severe as reactor accidents if not more severe: the 2010 remand of the waste confidence decision and rule, 130 the 2013 final license renewal rule and GEIS, 131 the findings developed as part of the Staffs expedited spent fuel transfer proceeding in its Consequence Study of a Beyond-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling Water Reactor (Consequence Study), 132 and Chairman Macfarlanes comments on these findings. 133 However, as the Commission has repeatedly explained, 134 claims of new and significant information do not bring Category 1 issues into the scope of individual license renewal 129 See Petition at 28 (asserting that, the NRC Staffs analysis lacked the rigor that NEPA requires for a finding that environmental impacts are insignificant or that mitigation measures are unwarranted.).
130 See Petition at 32-33 (citing Recent pertinent changes caused by the New York v. NRC court decision as a development that has altered expectations and now require plant-specific treatment under NEPA. Decision) 131 See Petition at 29 (appearing to claim that severe accidents should be considered a category 2 issue).
132 Consequence Study of a Beyond-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling Water Reactor (Oct. 2013) (ADAMS Accession No. ML13256A342) (Consequence Study); Consequence Study of a Beyond-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling-Water Reactor, Commission Paper SECY-13-0112 (Oct. 9, 2013) (ADAMS Accession No. ML13256A339) (transmitted to the Commission for information).
133 Petition at 26-28, 32. From these sources the Petitioners conclude that environmental impacts from accidents involving spent fuel pools are comparable to those from reactor accidents (due to the lack of containment, the much greater quantity of irradiated nuclear fuel, and the strong probability of much larger environmental releases of hazardous radioactivity) and, therefore, that the mitigation measures for spent fuel pool accidents could be cost-effective.
134 See Turkey Point, CLI-01-17, 54 NRC at 12 (In the hearing process, for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule. . . . Petitioners with evidence that a generic finding is incorrect for all plants may petition the Commission to initiate a fresh rulemaking. See 10 C.F.R. § 2.802. Such petitioners may also use the SEIS notice-and-comment process to ask the NRC to forgo use of the suspect generic finding and to suspend license renewal proceedings, pending a rulemaking or updating of the GEIS.);
see also id. at 16 (Generic Category 1 issues are not subject to site-specific review and thus fall beyond the scope of individual license renewal proceedings.); Pilgrim, CLI-07-03, 65 NRC at 22 ([W]hatever the ultimate fate of the [petitioners] new information claim, admitting the [petitioners] contention for an
proceedings. 135 Instead, Petitioners must submit and be granted a waiver to litigate supposed new and significant information regarding the environmental impacts of onsite spent fuel storage in a license renewal proceeding. 136 The Petitioners did not submit a waiver petition 137 or address the waiver standards 138 in their Petition. Further, the issues raised by Petitioners are generic to all plants, and thus, would not satisfy the waiver requirements, as discussed below.
Therefore, Petitioners challenges to Category 1 issues and findings in the license renewal GEIS, as well as claims challenging generic findings and analyses in the Continued Storage GEIS, are outside the scope of this proceeding. Absent a waiver, the proper forum to raise these concerns is a 10 C.F.R. § 2.802 petition for rulemaking.
adjudicatory hearing is not necessary to ensure that the claim receives a full and fair airing.); Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC 377, 384 (2012)
(summarizing a previous Commission ruling in which it upheld the rejection of a contention as an improper challenge to the Commissions regulations because the Commission found that the new and significant information requirement in 10 C.F.R. §51.53(c)(3)(iv) did not override, for the purposes of litigating the issues in an adjudicatory proceeding, the exclusion of Category 1 issues in 10 C.F.R.
§51.53(c)(3)(i) from site-specific review. Specifically, [a]djudicating Category 1 issues site by site based merely on a claim of new and significant information, would defeat the purpose of resolving generic issues in a GEIS. Therefore, a waiver is required to litigate any new and significant information relating to a Category 1 issue.) (quoting Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 21 (2007)).
135 Adjudicating Category one issues site by site based merely on a claim of new and significant information, would defeat the purpose of resolving generic issues in a GEIS. Pilgrim, CLI-07-3, 65 NRC at 21.
136 See Pilgrim, CLI-07-03, 65 NRC at 22.
137 That is, the Petitioner did not provide an affidavit identifying the specific aspect or aspects of the subject matter of the proceeding as to which the application of the rule or regulation would not serve the purposes for which the rule or regulation was adopted and stating with particularity the special circumstances alleged to justify the waiver.
138 See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),
CLI-05-24, 62 NRC 551, 559-60 (2005) (providing four-factor standard for waiver). See Exelon Generation Co. LLC (Limerick Generating Station, Units 1 and 2), CLI-13-07, 78 NRC 199, 209 (2013)
(clarifying that the fourth Millstone factor also may apply to a significant environmental issue).
- 4. The Information Provided in Proposed Contention 2 Does Not Suggest Special Circumstances While Petitioners did not submit a waiver as required by 10 C.F.R. § 2.335(b), they did include site-specific information on Fermi 2, 139 presumably in an attempt to demonstrate that there were special circumstances or that unique or unusual characteristics at Fermi 2 that undermine the license renewal GEISs generic determinations. 140 However, Petitioners have not shown any special circumstances or that Fermi 2 is unique. Thus, a waiver of the Commissions generic findings is not warranted here.
First, as the Petitioner itself concedes, high-density spent fuel storage is not unique to Fermi 2, instead, it is typical in much of the rest of the industry. 141 Moreover, the use of high-density spent fuel storage at Fermi 2 does not call into question the Commissions generic Category 1 determination regarding onsite spent fuel storage with respect to Fermi 2 because the basis for this generic rule expressly considered high-density spent fuel storage. 142 Second, proposed Contention 2 primarily relies on the Consequence Study for support; however, the information in the Consequence Study does not suggest special circumstances unique to Fermi 2. In the Consequence Study the Staff analyzed the likelihood and consequences of a spent fuel pool accident initiated by a severe earthquake on a Mark I boiling 139 For example, Petitioners note that Fermi 2 currently holds approximately 600 metric tons of spent fuel in its spent fuel pool, that this spent fuel is racked more densely than was originally planned through the use of high-density, closed-frame racks, and that, with a loss of offsite power, the spent fuel pool would boil within 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> and 12 minutes. Petition at 30-31.
140 Pilgrim, CLI-07-03, 65 NRC at 20.
141 Petition at 31.
142 See NUREG-1437, Revision 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, at 1 1-29 (June 2013) (ADAMS Accession No. ML13106A241) (2013 License Renewal GEIS); NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, at 6-85 (May 1996) (1996 License Renewal GEIS) (finding with respect to expanding fuel pool capacity that [r]adioactive exposures, waste generation, and releases were evaluated and found to be incrementally small. The only nonradiological effluent is additional heat rejected from the plant. This additional heat is small compared to the total rejected by the rest of the plant, and it will have a negligible effect on the environment. The risks due to accidents and their environmental effects are found to be not significant.).
water reactor with assumed less robust spent fuel pools than exist at U.S. plants and resulting in ground motion more challenging for the spent fuel pool structure than that experienced at Fukushima. 143 The Consequence Study discussed spent fuel pool fires 144 and discussed the potential effect of concurrent reactor accidents. 145 The Staff also compared the potential accident consequences for a nearly full pool to one where all sufficiently cooled fuel had been removed and concluded that expediting movement of spent fuel from the pool does not provide a substantial safety enhancement. 146 In response to the Consequence Study, a 10 C.F.R. § 2.802 petition for rulemaking was filed asserting that the Consequence Study had generated new and significant information regarding the generic, Category 1 environmental impacts of onsite spent fuel storage delineated in 10 C.F.R. Part 51, Subpart A, Appendix B. 147 Like Petitioners Contention 2, that petition sought to suspend licensing until the Staff could further consider the issue of expedited spent fuel transfer. 148 The Commission denied this relief because there was no evidence that moving forward with licensing proceedings would jeopardize public health and safety. 149 The Commission noted that this was consistent with the Consequence Study, which concluded that spent fuel pools are robust structures that are likely to withstand severe earthquakes without leaking and that, consistent with prior studies, high density storage of spent fuel in pools 143 See DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-07, 80 NRC __, __ (July 17, 2014) (slip op. at 3).
144 See, e.g., Consequence Study, at 126-146.
145 Id. at E E-72, E-75, E-87.
146 Id. at iv; Fermi, CLI-14-07, 80 NRC at __ (slip op. at 3-4).
147 Fermi, CLI-14-07, 80 NRC at __ (slip op. at 4-5).
148 Id.
149 Id. at 8.
protects public health and safety. 150 Further, the Commission stated that, NEPA does not require that we suspend our licensing decisions upon receipt of a new and significant information claim and that such a requirement would render our decisionmaking intractable. 151 Therefore, not only is Proposed Contention 2 inadmissible because it is a challenge to a Category 1 determination without a waiver request, but Proposed Contention 2 also does not provide any information that suggests that the special circumstances requirement for such a waiver request are satisfied.
- 5. Claims Related To the Fermi 2 Crane Are Outside the Scope of This License Renewal Proceeding In support of Proposed Contention 2, Petitioners raise a concern with a Fermi 2 crane.
Specifically, Petitioners argue that:
All of Fermi 2's irradiated fuel is stored in its pool, because the plants structure is missing welds. There is concern that the walls and floor of Fermi 2 cannot support the combined heavy weight of a crane and storage cask for transfer operations. Missing structural welds have delayed offloading of [spent fuel] from the storage pool for years. 152 This argument is analogous to an argument made in the Turkey Point license renewal proceeding. In that proceeding, the petitioner challenged that facilitys spent fuel storage system citing inadequate construction practices and lack of defense in depth. 153 In response, the Commission ruled that these claims go to the adequacy of the plants current licensing basis, which is not within the scope of the license renewal review. 154 For this same reason, 150 Id. at 8-9 (quoting Consequence Study at xii).
151 Id. at 9.
152 Petition, at 30 (internal citations omitted).
153 Turkey Point, CLI-01-17, 54 NRC at 23.
154 Id.
Petitioners crane argument in support of Contention 2 should be ruled an inadmissible challenge to Fermi 2s current licensing basis. If the Petitioners have a concern with the current design of Fermi 2, then they can petition under 10 C.F.R. § 2.206 for NRC action on the Fermi 2 license. 155 C. Proposed Contention 3 The Petitioners Proposed Contention 3 states:
The Environmental Report for Fermi 2 does not satisfy the Atomic Energy Act or NEPA because (1) it does not make any site-specific safety and environmental findings regarding the storage and ultimate disposal of the spent fuel that will be generated during the license renewal term and (2) the NRC has no valid generic findings on which the Environmental Report could rely. 156 The Petitioners Proposed Contention 3 raises both safety and environmental issues 157 and is based on the vacatur and remand to the NRC of its 2010 update to the Waste Confidence Decision and accompanying temporary storage rule. 158 For the reasons discussed in response to Proposed Contention 2, 159 the Fermi 2 Board should reject the Petitioners Contention 3, consistent with the Commissions decision in CLI-14-08. 160 155 Id.
156 Petition at 33.
157 Petition at 33 (claiming that AEA is not satisfied and that contention raises technical issue); id.
at 34 (asserting that NRC does not have any valid generic safety findings regarding the disposal and storage of the spent fuel that will be generated during the license renewal term for Fermi 2).
158 Petition at 33-34 (providing basis of contention). See New York v. NRC, 681 F.3d 471, 478, 481-82 (D.C. Cir. 2012) (holding that the NRC must include an evaluation of failure to secure permanent disposal, as well as an improved analysis of spent fuel pool leaks and spent fuel pool fires).
159 See supra at IV.B.2 (providing detailed history of waste confidence remand and NRCs response).
160 In CLI-14-08, the Commission held that a petitioner in an individual adjudication cannot challenge generic decisions made by the Commission in rulemaking. Calvert Cliffs, CLI-14-08, 80 NRC
__ (Aug. 26, 2014) (slip op. at 9) (citing Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3),
CLI-99-11, 49 NRC 328, 345 (1999) (quoting Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974)) and 10 C.F.R. 2.309(f)(1)(iii)
(requiring contention to be within the scope the proceeding to be admissible)).
Both the text of Contention 3 and its stated bases impermissibly attack the Commissions findings in the revised 10 C.F.R. § 51.23 and NUREG-2157. For example, the Petitioners claims that the NRC has not issued final regulations to replace the Waste Confidence Decision and Temporary Storage Rule are no longer accurate given the Commissions decision in CLI-14-08. 161 Moreover, DTE can now rely on the generic findings in NUREG-2157, which are deemed incorporated by rule. 162 Finally, NUREG-2157 addresses and refutes Petitioners claim that the NRC must make predictive safety findingsregarding the safety and environmental impacts of spent fuel storage and disposal before relicensing Fermi Unit 2. 163 Specifically, during the robust public comment period on the draft Waste Confidence DGEIS, the Commission received and considered comments that the holdings in New York, NRDC v. NRC, and Minnesota v. NRC required the NRC to make certain safety and environmental findings before issuing a license. 164 In response to these comments, the Staff explained that NUREG-2157 was prepared to satisfy the Commissions NEPA obligations with respect to continued storage. The Staff further stated that the Commissions AEA obligations, including safety determinations, are separate from its NEPA obligations and will continue to be governed under the license and regulatory controls after the end of a facilitys current license, relaying on the experience gained over the past 30 years and the current regulatory framework 161 Petition at 35 (statement of the contention).
162 Petition at 34-35 (asserting that a genuine dispute exists with the applicant on a material issue of law or fact because DTE proposes to rely on generic waste confidence findings that do not exist.).
163 Petition at 34 (citing New York, 681 F.3d at 478; NRDC v. NRC, 582 F.2d 166, 169 (2nd Cir.
1978); Minnesota v. NRC, 602 F.2d 412, 416 (D.C. Cir. 1979)). See also id. (asserting that the NRC has not replaced the Waste Confidence Decision or the Temporary Spent Fuel Storage Rule with new regulations and that therefore, the NRC lacks any valid generic safety or environmental findings regarding the disposal and storage of the spent fuel that will be generated during the license renewal term for Fermi Unit 2.).
164 See, e.g., D.2.4 Comments Concerning Miscellaneous Issues.
to ensure adequate protection of public health and safety. 165 Thus, NUREG-2157 explains that reasonable assurance findings made in past waste confidence proceedings should not be confused with AEA safety determinations made in accordance with a specific licensing process. 166 In particular, NUREG-2157 provides that:
While specific reasonable assurance findings were historically included in the waste confidence proceeding, those findings are not appropriate for this GEIS and are not necessary. Circumstances have evolved considerably since the inception of the waste confidence proceeding in the early 1980s. Since then, decades-long experience with the storage of spent fuel either in spent fuel pools or ISFSIs has demonstrated that spent fuel can be safely stored beyond the operating life of a reactor so long as that storage remains under the licensing and inspection processes currently in place. 167 Appendix B of NUREG-2157 analyzes the technical feasibility of a geologic repository and the availability of sufficient repository capacity. 168 This analysis undergirds the NRCs evaluation of the environmental impacts of continued storage activities. 169 Appendix B states that the timeframe needed to develop a repository is approximately 25 to 35 years and that a repository is likely to become available by the end of the short-term timeframe. 170 NUREG-2157 also analyzed the technical feasibility of wet and dry storage in spent fuel pools and casks, 165 See D.2.4 Comments Concerning Miscellaneous Issues. See also id. (noting that the decision to issue a license must be predicated on a Commission determination that the license activity can be performed in a manner adequate to protect public health and safety).
166 See D.2.4 Comments Concerning Miscellaneous Issues. See id. at D-31 (The source of the NRCs determination that the licensed activity, once the license is granted, will not endanger public health is the fact that these facilities will remain under license after the end of the facilitys period of operation, and therefore will still need to meet these safety standards, which are found in 10 CFR Part 50 or 52 for reactors and their spent fuel pools and 10 CFR Part 72 for ISFSIs).
167 See NUREG-2157 at D.2.4 Comments Concerning Miscellaneous Issues.
168 See NUREG-2157 at Appendix B.
169 NUREG-2157 at D.2.4 Comments Concerning Miscellaneous Issues.
170 NUREG-2157 at B.2.2.
respectively, for continued storage. 171 Given the experience and technical knowledge about storage of spent fuel and the expectation that the current, or even a more stringent, regulatory framework will continue to exist, the Staff concluded that spent fuel can be stored safely for the short-term, long-term, and indefinite timeframes. 172 As noted, the Commission adopted the revised rule at 10 C.F.R. § 51.23 and supporting NUREG-2157. Thus, challenges to the rule and supporting analyses are not litigable in this proceeding. To the extent that the Petitioners seek to litigate these issues in a site-specific fashion, they must seek and obtain a waiver of the rule. 173 Moreover, to the extent that the Petitioners claim that the ER was inadequate for not making safety findings on this issue, 174 the Petitioners do not raise a genuine dispute with the application. The license renewal decision on DTEs LRA for Fermi 2 will not include a safety finding for waste storage subsequent to the term of the renewed license. Instead, the license renewal application requests to renew the Fermi 2 operating license for 20 more years (i.e., until March 20, 2045). Safety findings required under the AEA for the continued storage of nuclear waste subsequent to the end of the renewed license will be addressed in later licensing decisions or regulatory approvals.
D. Proposed Contention 4 Proposed Contention 4 states:
Fermi 2 and Fermi 3s safety and environmental risks due to common mode failures, and the potential for mutually 171 See NUREG-2157 at B.3.
172 See NUREG-2157 at D.2.4 Comments Concerning Miscellaneous Issues (citing to Appendix B of NUREG-2157).
173 To the extent Petitioners believe the issues they raise are generic, they can submit a petition for rulemaking. 10 C.F.R. § 2.802.
174 Petition at 33 (statement of the contention asserting that ER does not satisfy AEA because it does not make any site-specific safety findings regarding the storage and ultimate disposal of the spent fuel that will be generated during the license renewal term).
initiating/exacerbating radiological catastrophes, involving the common Transmission Corridor (TC) shared by both units reactors and pools, have been inadequately addressed in DTEs Fermi 2 License Renewal Application (LRA) and Environmental Report (ER). Also, the cumulative impacts associated with the proposed new Fermi 3 reactor cannot be excluded from DTEs own proposal, and is required on this unique local problem specific to Fermi 2 and 3. It can, and must, be dealt with in Severe Accident Mitigation Alternatives (SAMA) analyses, and must be treated as Category 2 Issues in NRCs forthcoming Draft Supplemental Environmental Impact Statement (DSEIS), as required by NEPA and the AEA. 175 Petitioners assert a multitude of issues in support of this contention including re-asserting every contention filed the separate Fermi 3 combined operating license (COL) (Docket No. 52-033-COL) proceeding in the instant Fermi 2 license renewal proceeding. However, as shown below, Petitioners confuse the scope of license renewal proceedings and COL proceedings; raise issues that are outside the scope of license renewal including the safety of Fermi 3 and Fermi 2s compliance with both the AEA and its current licensing basis. Similar to Proposed Contention 1, Petitioners Proposed Contention 4 incorrectly states that cumulative environmental impacts are missing from DTEs ER. Finally, Petitioners misunderstand the cost-beneficial analysis for SAMA by substituting profits for the benefits of mitigation. For these reasons and other discussed in further detail below, Proposed Contention 4 is inadmissible.
- 1. Petitioners Raise Issues Outside the Scope of License Renewal In support of Proposed Contention 4, Petitioners raise five issues that are outside the scope of this proceedings and are, thus, inadmissible. These five issues are (1) spent fuel pool accidents, (2) challenges to the adequacy of the Fermi 3 COL design, (3) challenges to Fermi 2s current licensing basis, (4) the GEIS conclusion that the impact of severe accidents for all reactors is small, and (5) the requirement to conduct a site-level SAMA including both Fermi 2 and Fermi 3.
175 Petition at 35.
- a. Spent Fuel Pool Accidents Are Outside the Scope of this Proceeding Petitioners argue that the SAMA analysis submitted as part of the Fermi 2 LRA should have considered common mode failures from an initiating event affecting the Transmission Corridor (TC 176) that would lead to severe accidents at both reactors and both plants spent fuel pools (SFP). This argument is outside the scope of this proceeding. Pursuant to 10 C.F.R. § 51.53(c)(2), DTE is not required to provide information regarding the storage and disposal of spent fuel, and the Commission has clearly stated that SAMA considerations apply only to the active fuel in the reactor core, not the SFPs. 177 Therefore, this portion of Petitioners argument is inadmissible because it is contrary to Commission precedent and a direct attack on the Commissions regulations. 178 Petitioners also argue that Fermi 2s SAMA analysis should have considered a severe accident in the SFP in combination with a reactor core accident. 179 Specifically, Petitioners argue that SFP shares the TC systems such that a failure affecting the TC could lead to severe accidents in both Fermi 2 and its SFP. 180 To the extent this argument asserts that a SAMA analysis should include SFPs, it is outside the scope of this proceeding. 181 As discussed above, Part 51s reference to SAMAs applies to nuclear reactor accidents, not spent fuel storage accidents. Id. at 21-22. Thus, this portion of Contention 4 is inadmissible.
176 Petition at 35 and 37.
177 Pilgrim, CLI-10-14, 71 NRC at __ (slip op. at 32); Turkey Point, CLI-01-17, 54 NRC at 21-22.
178 Notably, Petitioners have not sought a waiver of the Commissions generally applicable rules, petitioned for a rulemaking, or pointed to any new and significant information that calls into question the Commissions generic findings regarding SFPs. See 10 C.F.R. §§ 2.335, 2.802, and 51.53(c)(iv),
respectively.
179 Petition at 35-36.
180 Petition at 29. Petitioners also argue that Fermi 3 and its SFP should be included in this analysis.
181 Turkey Point, CLI-01-17, 54 NRC at 6.
- b. The Adequacy of Fermi 3 Design, Operation, and COLA Proceeding are Outside the Scope of This Proceeding Petitioners argue that the Fermi 3 COL proceeding failed to address, among other things, the common mode failure of the TC in COLA, [Fermi 3] ER, and [Fermi 3] FSAR. 182 These arguments regarding the adequacy of the Fermi 3 design and the Fermi 3 COLA proceeding are outside the scope of this proceeding. As discussed above, the scope of a license renewal proceeding is narrow and limited to the license at issue, here, Fermi 2s request to renew its license. 183 Thus, issues regarding the issuance of a license in the Fermi 3 COLA proceeding cannot be litigated here or attacked collaterally. As Petitioners state, they have participated in the Fermi 3 COL proceeding and proposed numerous contentions in that separate proceeding. 184 To the extent that Petitioners believe that the Fermi 3 proceeding was decided in error, they will have or have had opportunities to seek redress of those issues in that proceeding.
Petitioners also incorporate each contention from the Fermi 3 COLA proceeding into their proposed Contention 4. In Fermi 3, Petitioners proposed approximately 27 separate contentions over 4 years. In essence, they are asking for this Board and the other parties to sort through the morass of their filings and try to discern, which, if any, are applicable to the Fermi 2 license renewal proceeding. This fails to satisfy the Commissions strict contention admissibility requirements because Petitioners do not identify specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes. 185 The contentions filed in Fermi 3 point to disputes, if any, in the Fermi 3 COL 182 Petition at 38.
183 See generally supra Section I.A.C. It would not be proper to collateraly attack decisions made by the Board in the Fermi 3 licensing decision, here.
184 Petition at 35.
185 10 C.F.R. § 2.309(f)(1)(vi).
application, not the license renewal application submitted in Fermi 2. For example, in Fermi 3s Contention 1, 186 petitioners challenge the DCD, the COLA, and the Fermi 3 ER. 187 At no point does this contention or apparently any other contention challenge any portion of the materials submitted in this license renewal proceeding. Therefore, even if the Fermi 3 COLA contentions were considered by this Board, they would not raise a genuine material dispute with the application at issue and should, therefore, be rejected.
In another example from Fermi 3, Petitioners apparently want this Board to suspend the proceeding pending the rulemaking for ESBWR design. Specifically, Petitioners state that the Commission must suspend the COL adjudication pending completion of the NRC review of the ESBWR reactor design and the obligatory design rulemaking. 188 The review of the ESBWR reactor design is not material to this Part 54 proceeding. Moreover, Petitioners do not reference how this Fermi 3 contention relates to the Fermi 2 license renewal proceeding or indicates any deficiency in DTEs LRA. Thus, Petitioners attempt to incorporate the Fermi 3 contentions into its Petition to intervene in this license renewal proceeding should be rejected.
- c. Petitioners Challenge to the Fermi 2 CLB Are Outside the Scope of a License Renewal Proceeding Petitioners assert that Fermi 2 is not operating in compliance with its current license requirements and that the CLB is inadequate for safety. 189 For example, Petitioners state The common TC and its primary offsite electricity supply to run vital safety, cooling, and monitoring SSCs at Fermi 2 and Fermi 3, wherever situated, must all be considered as in-scope. There are potentially catastrophic impacts from several loss-of-power scenarios to public health, safety, the environment, and the 186 In order to distinguish contentions filed in the Fermi 3 COL proceeding, those contentions will be referred to as Fermi 3 Contention X, where X is the contention number.
187 See Petitioners Initial Proposed Contentions Filed in the Fermi 3 COL Proceeding (Fermi 3 Proposed Contentions) at 7 (ADAMS Accession No.ML090680878).
188 See Fermi 3 Proposed Contentions at 45.
189 See Petition at 38-39.
common defense which must be identified and discussed under both NEPA and the AEA. 190 As discussed above, the Commissions license renewal safety review focuses on safety questions related to plant aging. 191 Reviewing all safety issues would be duplicative, unnecessary, and wasteful because, the Commission noted, such safety issues were thoroughly reviewed when the facility was first licensed, and now are routinely monitored and assessed by ongoing agency oversight and agency-mandated licensee programs. 192 Regardless of whether or not a license renewal application has been filed for a facility, the NRC has a continuing responsibility to oversee the safety and security of ongoing plant operations, and it routinely oversees a broad range of operating issues under its statutory responsibility to assure the protection of public health and safety for operations under existing operating licenses. 193 Therefore, for license renewal, the Commission has found it unnecessary to include a review of issues already monitored and reviewed in ongoing regulatory oversight processes. 194 This includes safety matters pertaining to severe accident mitigation [which] are assessed on an ongoing basis through the NRCs regulatory oversight functions[.] 195 Thus, the Commissions license renewal regulations specifically remove compliance issues from the license renewal review. Specifically, 10 C.F.R. § 54.30(b) identifies compliance issues as [m]atters not subject to a renewal review:
190 Petition at 38-39 (emphasis added).
191 Turkey Point, CLI-01-17, 54 NRC at 9. See Final Rule, Nuclear Power Plant License Renewal; Revisions, 56 Fed. Reg. 64,943, 64,946 (Dec. 13, 1991). The term current licensing basis is defined in 10 C.F.R. § 54.3. See also 10 C.F.R. §§ 54.29, 54.30.
192 Turkey Point, CLI-01-17, 54 NRC at 7.
193 See Final Rule, Nuclear Power Plant License Renewal; Revisions, 56 Fed. Reg. 64,943, 64,946 (Dec. 13, 1991).
194 Turkey Point, CLI-01-17, 54 NRC at 9 (citing Final Rule, Nuclear Power Plant License Renewal; Revisions, 56 Fed. Reg. 64,943, 64,946 (Dec. 13, 1991)).
195 Entergy Nuclear Co. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 707 (2012).
(a) If the reviews required by § 54.21(a) or (c) show that there is not reasonable assurance during the current license term that licensed activities will be conducted in accordance with the CLB, then the licensee shall take measures under its current license, as appropriate, to ensure that the intended function of those systems, structures or components will be maintained in accordance with the CLB throughout the term of its current license.
(b) The licensees compliance with the obligation under Paragraph (a) of this section to take measures under its current license is not within the scope of the license renewal review. 196 Accordingly, contentions that raise compliance issues are inadmissible as they raise issues beyond the scope of license renewal adjudication. 197 Thus, Petitioners challenge the current licensing basis of Fermi 2 is not within the scope of this license renewal proceeding and thus, is inadmissible.
- d. Petitioners Challenge to the License Renewal GEISs Category 1 Finding is Outside the Scope of This Proceeding Petitioners appear to argue that the small impact finding for societal and economic impacts in Table B-1 of Appendix B of Part 51, Subpart A (Table B-1), as supported by the GEIS, is challengeable in this proceeding. 198 Specifically, Petitioners argue that DTE has inadequately analyzed the combined, inextricably interlinked TC risks of a severe accident causing disaster or catastrophe associated with a 20-year license extension at Fermi 2 (2025 to 2045), overlapping for years or even decades on end with a yet-to-be-specified 40-year operational license at Fermi
- 3. 199 This argument is a direct challenge to the Commissions regulations in Table B-1 and is therefore not within the scope of this licensing proceeding. 10 C.F.R. § 2.309(f)(1)(iii).The 196 See Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 10 (2001) (stating that [a]djudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review, for our hearing process (like our Staffs review) necessarily examines only the [safety] questions our safety rules make pertinent.).
197 Northern States Power Co. (Prairie Island Nuclear Generating Plant, units 1 and 2), CLI-10-27, 72 NRC 481, 491-92 (2010).
198 Petition at 39-40.
199 Petition at 40.
Commission has limited contentions raising environmental issues in license renewal proceedings to those issues that are affected by license renewal and have not been addressed by rulemaking or on a generic basis. Turkey Point, CLI-01-17, 54 NRC at 11, 16. While severe accident mitigation alternatives is a Category 2 issue, 200 the impact finding of small for societal and economic impacts from severe accidents is a generic determination for all plants.
See Table B-1. This generic finding, codified in NRCs regulations, is not subject to challenge absent a waiver. See 10 C.F.R. § 2.335(a). Petitioners have not submitted or been granted a waiver. Therefore, this argument is outside the scope of the proceeding and does not support the admissibility of this aspect of Contention 4.
- 2. There is No Requirement to Conduct a Site-Level SAMA Analysis Petitioners also argue that Fermi 2s SAMA analysis must necessarily consider benefits of mitigating common mode failure accidents for both Fermi 2 and Fermi 3. 201 Petitioners state:
Petitioners are requesting the Commission to find that under both statu[t]es, NEPA and the AEA, the cumulative and/or synergistic effects, and conceivable environmental consequences, of various accident possibilities be considered together. 202 They argue that because of the age of each reactor both are likely to experience more accidents. 203 In support of this argument, Petitioners point to 13 SAMAs that were determined to be not cost-beneficial in the Fermi 2 SAMA analysis.
200 See Table B-1 (citing 10 C.F.R. § 51.53(c)(3)(ii)(L)) and noting that alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives). See also Pilgrim, CLI-10-11, 71 NRC at __ (slip op. at 37, 39).
201 Petition at 41.
202 Petition at 41.
203 Petition at 42 (citing Nuclear Plant Risk Studies: Failing the Grade, by David Lochbaum, UCS, 2000, posted online at: http://www.ucsusa.org/assets/documents/nuclear_power/nuc_risk.pdf)
- 3. Petitioners Attempt to Incorporate Fermi 3 Into the Fermi 2 SAMA Analysis Is Contrary to the Commissions Regulations Petitioners assert that Fermi 3 must be considered in a site-level SAMA analysis for Fermi 2s license renewal proceeding. 204 In other words, Petitioners argue that Fermi 2s SAMA analysis is inadequate unless it explicitly considers Fermi 3. The Commissions rules regarding SAMA analysis are not so prescriptive as to require any particular method or set of events to be considered.
The rule does not provide particular requirements for a SAMA analysis, just that a consideration of SAMAs be included in the license renewal ER if such consideration has not previously been included in a NEPA document. See § 51.53(c)(3)(ii)(L). As the Commission explained, the purpose of § 51.53(c)(3)(ii)(L) is not to prescribe by rule the scope of an acceptable consideration of severe accident mitigation alternatives for license renewal [or] to mandate consideration of alternatives identical to those evaluated previously. 61 Fed. Reg. at 28,481. Instead, the Commission described how applicants could use different approaches, including quantitative approaches, in performing SAMA analyses. Id.
For example, the Commission explicitly stated that a site-specific Level 3 PRA was not required to determine whether an alternative under consideration was cost-beneficial. Id.
Instead, the Commission explained that it would review each severe accident mitigation consideration provided by a license renewal applicant on its merits and determine whether it constitutes a reasonable consideration of severe accident mitigation alternatives. Id. at 28,481-
- 82. Moreover, the Commission recognized that the NRC would continue to study severe accidents generically and at other facilities in those intervening years, updating the agencys understanding of severe accident progression and risks as well as identifying new SAMA candidates. Id. at 28.481. Neither the rule nor Commission precedent requires an applicant to 204 Petition at 35.
use the most up-to-date methodology to perform SAMA analyses. See Pilgrim, CLI-10-11, 71 NRC at 315. In light of the non-prescriptive rule and the above Commission precedent, Petitioners do not indicate why DTEs SAMA analysis is unreasonable or deficient for not including Fermi 3. Thus, this portion of Petitioners claim is inadmissible because it lacks an adequate basis and does not raise a genuine material dispute.
To the extent that Petitioners are seeking to have an additional SAMA analysis performed for Fermi 3, it is contrary to the Commissions regulations. As the Commission recently made clear, 10 C.F.R. § 51.53(c)(3)(ii)(L) requires a plant to conduct only one SAMA or severe accident mitigation design analysis (SAMDA). 205 As part of the COL proceeding, Fermi 3 has conducted a SAMDA analysis, as required by § 51.53(c)(3)(ii)(L). While that COL proceeding is not complete, no contentions remain that challenge the Fermi 3 SAMDA analysis.
Thus, admitting Petitioners Proposed Contention 4 would allow Petitioners to collaterally attack the Commissions regulations on this point and avoid the Commissions waiver requirements.
Thus, this portion of the proposed contention is inadmissible, absent a waiver.
- 4. Petitioners Comparison of Costs of Each Mitigation Measure to the Revenue and Profits of Fermi 2s Operation is Not Material Petitioners conclude that DTE failed to properly identify potentially cost-beneficial SAMAs because the costs to implement the SAMAs represented only a few days of profit.
Specifically, Petitioners argue that DTE determined that none of the TC SAMAs were cost-beneficial.
This, despite the fact that, of those SAMAs listed above, the highest Fermi Cost Estimate ($) was for SAMA 016: Install tornado protection on gas turbine generator, at $2.1 million. Two million dollars represents a few days worth of net profit at Fermi 2.
Many of the rest were even significantly less expensive fixes, such as SAMA 018 at $100,000. cost, or SAMA 023 at $50,000 cost, to 205 10 C.F.R. § 51.53(c)(3)(ii)(L); 42 U.S.C. § 4331. Limerick, CLI-12-19, 76 NRC at 386 (holding that 1989 SAMDA conducted as part of Limericks operating license application was a SAMA for purposes of 10 C.F.R. § 51.53(c)(3)(ii)(L) and that therefore the applicant was not required to include a SAMA in its license renewal ER); See also Part 51 Amendments, 61 Fed. Reg. at 28,481; GEIS at 4-160.
name but a couple examples - representing mere hours, or less, of net profit at Fermi 2. 206 Petitioners misunderstand how SAMA analyses are conducted. Contrary to Petitioners analysis, the cost effectiveness of a SAMA is compared to the benefit from implementing the change, not the profitability of the plant. 207 If one was to follow Petitioners logic to its ultimate conclusion, plants operating unprofitability for whatever reason would never have to consider even cost-beneficial mitigation measures. The profitability of the plant does not and cannot alter the application of the Staffs regulations.
DTE determined that benefit from implementing SAMA 016 was only $244,796 208 While the cost of installing tornado protection for the gas turbine generator was over $1.8 million more expensive than the expected benefits. 209 Thus, the issue about whether a SAMA should be considered does not depend solely on the cost to implement but must be compared to the projected benefit of the mitigation.
Importantly, Petitioners have not provided adequate support showing that DTEs evaluation of which SAMAs are potentially cost-beneficial is in error. In fact Petitioners analysis is not material to the findings and analysis that NRC Staff must make. Thus, this portion of Proposed Contention 4 is inadmissible.
- 5. The Cumulative Impacts of Fermi 3s Construction an Operation Have Been Evaluated in the Environmental Report Petitioners argue that the ER has not accounted for a bundle of potential cumulative effects (including construction impacts) which must be included within the scope of Fermis 2 206 Petition at 49-50 (internal citations omitted).
207 NUREG/BR-0058; NUREG/BR-0184.
208 Fermi ER at D-112.
209 Fermi ER at D-132. Similarly, Petitioners other two SAMA references SAMA 018 and SAMA 023 were likewise not cost-beneficial. The estimated cost for SAMA 018 was $100,000 but the benefit was only $8,447. For SAMA 023, the respective costs and benefits were $50,000 and $8,155.
20-year LRA. 210 But DTEs ER explicitly analyzes the cumulative impacts from Fermi 3s potential construction and operation. 211 Thus, DTEs ER has met its obligations under the NEPA to discuss the cumulative impacts for Fermi 2s license renewal, including any environmental impacts from the potential construction and operation of Fermi 3. Petitioners do not point to any other supposed missing information in Fermi 2s cumulative impacts analysis.
Thus, Petitioners have not identified or disputed specific portions of Fermi 2s license renewal application or its ER; therefore, this portion of Proposed Contention 4 is inadmissible.
CONCLUSION For the reasons set forth above, the Board should deny Petitioners Petition.
Respectfully submitted, Signed (electronically) by Brian G. Harris Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Date of Signature: September 12, 2014 210 Petition at 39.
211 ER at 3-288, 4 4-77.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
DTE Electric Co. ) Docket No. 50-341-LR
)
(Fermi Nuclear Power Plant, Unit 2) )
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (revised), I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING OF DONT WASTE MICHIGAN, CITIZENS ENVIRONMENT ALLIANCE OF SOUTHWESTERN ONTARIO AND BEYOND NUCLEAR, dated September 12, 2014, have been filed through the Electronic Information Exchange, the NRCs E-Filing System, in the above-captioned proceeding, this 12th day of September, 2014.
/Signed (electronically) by/
Brian G. Harris Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Date of Signature: September 12, 2014