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UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION
Before the Commission
In the Matter of )Progress Energy Carolinas, Inc. ) Docket Nos. 52-022-COL
52-023-COL(Shearon Harris Nuclear Power Plant, )Units 2 and 3) )
BRIEF OF PROGRESS ENERGY CAROLINAS, INC. IN OPPOSITION TO NCWARN'S NOTICE OF APPEAL, REQUEST FOR ORAL ARGUMENT, AND BRIEF
SUPPORTING NOTICE OF APPEAL
John H. O'Neill, Jr.Michael G. LepreRobert B. HaemerTimothy J.V. WalshAlison M. CranePILLSBURY WINTHROP SHAW PITTMAN LLP2300 N Street, NWWashington, DC 20037-1128Telephone: (202) 663-8148Facsimile : (202) 663-8007Email: john.o'[email protected]
Counsel for Progress Energy Carolinas, Inc.
August 3, 2009
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
I. INTRODUCTION .................................................................................................................... 1
II. BACKGROUND ...................................................................................................................... 1
III. STANDARD OF REVIEW ...................................................................................................... 4
IV. ARGUMENT ............................................................................................................................ 5
A. Contentions TC-1 and TC-1(AP1000 Certification) .......................................................... 5
B. Contention TC-2 (Track Record of Fire Violations) ........................................................ 14
C. Contentions TC-3 (Aircraft Attacks) and TC-4 (Aviation Attacks and Fires) ................. 15
D. Contention TC-5 (High Density Spent Fuel Pools ) .......................................................... 17
E. Contention TC-6 (Reliability of Uranium Fuel) ............................................................... 19
F. Contention EC-1 (Underestimation of Costs) ................................................................... 20
G. Contention EC-2 (Carbon Footprint) ................................................................................ 23
H. Contention EC-3 (Water Requirements) ........................................................................... 25
1. Contention EC-4 (Deficiencies in Emergency Planning) ................................................. 27
J. Contention EC-5 (Waste Disposal) ................................................................................... 29
V. CONCLUSION ....................................................................................................................... 30
i
TABLE OF AUTHORITIES
Cases Page
AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24,
64 N.R.C. 111 (2006) .......................................................................................................................4
AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station ), CLI-07-8,65 N.R.C. 124 (2007) ................................................................................................................17,19
Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11,53 N.R.C. 370 (2001) .......................................................................................................................6
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-458,7 N.R.C. 155 (1978) ................................................................................................................. 21-22
Crow Butte Resources, Inc. (License Renewal for In Situ Leach Facility,Crawford, Nebraska), CLI-09-09, 69 N.R.C. (May 18, 2009) ...................................................4
Detroit Edison Co. (Fermi Unit 3), CLI-09-04, 69 N.R.C. (Feb. 17, 2009) ...............................7
Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),CLI-01-24, 54 N.R.C. 349 (2001) ..................................................................................................15
Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),CLI-04-36, 50 N.R.C. 631 (2004) .....................................................................................4,18,24,27
Hydro Resources, Inc., CLI-01-4, 53 N.R.C. 31 (2001) ..................................................................5
International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21,54 N.R.C. 247 (2001) .....................................................................................................................16
Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-06-15,63 N.R.C. 687 (2006) .......................................................................................................................5
N.J. Dep't Envtl. Prot. v. NRC, 561 F.3d 132 (3d Cir. 2009) .......................................................17
Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n,461 U.S. 190 (1983) ......................................................................................................................22
Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845,24 N.R.C. 220 (1986) ................................................................................................................19,22
PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2),CLI-07-25, 66 N.R.C. 101 (2007) ...............................................................................................4,30
ii
Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),CLI-00-21, 53 N.R.C. 261 (2000) .............................................................................................19,22
Progress Energy Carolinas , Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3),CLI-08- 15, 68 N .R.C. 1 (2008) ..........................................................................................1,3,6,7,27
Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3),LBP-08-21, 68 N.R.C. 554 (2008) ......................................................................................... passim
Progress Energy Carolinas , Inc. (Shearon Harris Nuclear Power Plant , Units 2 and 3),
CLI-09-08, 69 N.R.C. (May 18, 2009) ............................................................................. passim
Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3),LBP-09-08, 69 N.R.C. (June 30, 2009) ............................................................................ passim
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-947,33 N.R.C. 299 (1991) ......................................................................................................................16
San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006),cert. denied, 549 U.S. 1166 (2007) ................................................................................................17
Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4),CLI-09-13, 69 N.R.C. (June 25, 2009) ................................................................................11,13
Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2),CLI-92-12, 36 N.R.C. 62 (1992) ......................................................................................................1
U.S. Department of Energy (High Level Waste Repository), CLI-09-14,69 N.R.C._ (June 30, 2009) ...........................................................................................................4
USEC, Inc. (American Centrifuge Plant), LBP-05-28, 62 N.R.C.585 (2005) ...............................15
Statutes & Regulations
10 C.F.R. § 2.309(c) .......................................................................................................................12
10 C.F.R. § 2.309(f)(1) ..................................................................................................5,8,18,24,25
10 C.F.R. § 2.309(D(1)(i) .................................................................................................................9
10 C.F.R. § 2.309(f)(1)(iii) ............................................................................................................19
10 C.F.R. § 2.309(f)(1)(iv) ..........................................................................................................9,28
10 C.F.R. § 2.309(f)(1)(v) ............................................................................................9,10,15,18,20
10 C.F.R. § 2.309(f)(1)(vi) ..................................................................................................... passim
iii
10 C.F .R. § 2.311 (b) ........................................................................................................................1
10 C.F .R. § 2.335 ...........................................................................................................................30
10 C.F .R. § 2.335(a) .......................................................................................................................29
10 C.F .R. § 2.335 (b) ......................................................................................................................29
10 C.F.R . § 51.45 ...........................................................................................................................21
10 C.F .R. Part 52 ............................................................................................................................13
10 C.F .R. § 52.55(c) .........................................................................................................................7
10 C.F.R. § 52.63 (a)(1) ..................................................................................................................19
72 Fed . Reg. 56 ,287 (Oct. 3, 2007) ................................................................................................16
73 Fed . Reg. 20 ,963 (Apr . 17, 2008 ) ...............................................................................................7
iv
UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION
Before the Commission
In the Matter ofProgress Energy Carolinas, Inc. Docket Nos . 52-022-COL
52-023-COL(Shearon Harris Nuclear Power Plant,Units 2 and 3)
BRIEF OF PROGRESS ENERGY CAROLINAS, INC. IN OPPOSITION TO NCWARN'S NOTICE OF APPEAL, REQUEST FOR ORAL ARGUMENT, AND BRIEF
SUPPORTING NOTICE OF APPEAL
1. INTRODUCTION
Pursuant to 10 C.F.R. § 2.311(b), Progress Energy Carolinas, Inc. ("Progress" or
"Applicant") hereby files this brief in opposition to the North Carolina Waste Awareness and
Reduction Network, Inc.'s ("NC WARN" or "Petitioner") July 22, 2009 appeal ("Appeal") of
certain Atomic Safety and Licensing Board ("Board") Orders and Commission Orders in the
above-captioned proceeding.' For the reasons set forth below, Progress respectfully requests
that the Commission affirm the Board's decisions, which found all of NC WARN's contentions
inadmissible, and wholly deny NC WARN's Appeal.2
II. BACKGROUND
This proceeding involves Progress's application (the "Application" or "COLA"), dated
February 18, 2008 , for a combined license ("COL") to construct and operate two Westinghouse
NC WARN states that it is appealing the following Commission and Board decisions: CommissionMemorandum and Order, CLI-08-15 (July 23, 2008); Board Memorandum and Order, LBP-08-21 (Oct. 30,2008); Board Memorandum and Order (Dec. 23, 2008); Commission Memorandum and Order, CLI-09-08 (May18, 2009); Board Memorandum and Order, LBP-09-08 (June 30, 2009). Appeal at 1.
NC WARN requests that the Commission conduct oral argument regarding the merits of its Appeal. Appeal at 1,30. The Commission has granted oral argument in licensing proceedings only on extremely rare occasions.There is no apparent reason, nor has NC WARN adequately explained (Texas Utilities Electric Co. (ComanchePeak Steam Electric Station, Units 1 and 2), CLI-92-12, 36 N.R.C. 62, 68-69 (1992)), why the routine issuesraised by the Appeal merit the extraordinary step of conducting oral argument.
2
1
AP 1000 pressurized water reactors at the Shearon Harris Nuclear Power Plant site in North
Carolina ("Harris").3 The Board's Memorandum and Order (Ruling on Standing and Contention
Admissibility), LBP-08-21, 68 N.R.C. 544 (2008) ("LBP-08-21") accurately sets forth the
procedural history of this matter through NC WARN's filing of its Petition for Intervention and
Request for Hearing ("Petition")4 and parties' responses thereto. LBP-08-21, 68 N.R.C. at 558-
59.5
On October 30, 2008, the Board issued LBP-08-21, rejecting as inadmissible ten of the
eleven Contentions proposed by NC WARN in its Petition. The Board referred the sole
remaining Contention, designated Contention TC-1, to the NRC Staff for further review. Id. at
564. On November 10, 2008, both Progress and the NRC Staff filed appeals seeking
Commission review of the Board's admission and referral of Contention TC-1.6 On November
20, 2008, NC WARN filed a brief in opposition to both appeals.7
On November 13, 2008 , NC WARN filed a motion to hold this proceeding in abeyance
pending completion of the rulemaking relating to the standard design certification for the
3 Shearon Harris Units 2 and 3 Combined Construction Permit and Operating License Application (Rev. 0, Feb.2008), transmittal letter available at ADAMS Accession No. ML080580078. Entire application available athttp://www.nrc.gov/reactors/new-reactors/col/harris.html. Revision 1 to the COLA was submitted by Progress on
April 17, 2009.
Petition for Intervention and Request for Hearing by the North Carolina Waste Awareness and Reduction
Network (Aug. 4, 2008).
In addition to that procedural history, on September 11, 2008, the Commission denied the request forreconsideration contained in the Petition, finding that the motion for reconsideration was "on its face procedurallydefective." Commission Order (Sept. 11, 2008) at 1.
Progress Energy's Appeal of the Atomic Safety and Licensing Board's Decision Admitting the North CarolinaWaste Awareness And Reduction Network (Nov. 10, 2008); NRC Staff Notice of Appeal of LBP-08-21,Memorandum and Order (Ruling on Standing and Contention Admissibility), and Accompanying Brief (Nov. 10,
2008).Response by NC WARN in Opposition to NRC Staff and Progress Energy Appeals from LBP-08-21 (Nov. 20,
2008).
4
5
G
7
2
AP 1000 reactor design.8 On that same date, NC WARN also filed a motion seeking the
admission of a new, twelfth contention, designated as Contention TC-7.9 On November 24,
2008, Progress filed its response to NC WARN's motion to hold the proceeding in abeyance. 10
Progress and the NRC Staff also filed separate responses to NC WARN's motion to file a new
contention." On December 23, 2008, the Board found Contention TC-7 inadmissible and denied
NC WARN's motion. 12
On May 18, 2009, the Commission remanded consideration of Contention TC-1 to the
Board. 13 The Commission also denied a motion by NC WARN to hold the proceeding in
abeyance pending the completion of the NRC's rulemaking on the AP 1000 certified design and
an embedded request by NC WARN for reconsideration of the Commission's holding in CLI-08-
15. Upon reconsideration of Contention TC-1 as directed by the Commission, on June 30, 2009,
the Board in LBP-09-08 held that Contention inadmissible and denied NC WARN's petition to
intervene because NC WARN had not alleged an admissible contention.14 On July 22, 2009, NC
WARN filed its Appeal.
8 Motion by NC WARN to Hold the Harris Combined License Application Adjudication in Abeyance PendingCompletion of Rulemaking on the Standard Design Certification Application of the AP 1000 Reactor Design(Nov. 13, 2008) (`November 2008 Motion for Stay").
9 Motion by NC WARN to Allow New Contention (Nov. 13, 2008).
10 Progress Response to the North Carolina Waste Awareness and Reduction Network Second Motion to HoldProceeding in Abeyance (Nov. 24, 2008) ("Progress Response to November 2008 Stay Motion").
11 Progress Response Opposing the Motion by the North Carolina Waste Awareness and Reduction Network ForLeave to File a New Contention (November 24,2008); NRC Staff Answer to "Motion by NC WARN to AllowNew Contention" (November 24, 2008).
12 Memorandum and Order (Ruling on Request to Admit New Contention) (Dec. 23, 2008) ("Dec. 23, 2008Order").
13 Projzress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI-09-08. 69 N.R.C.slip op. at 14, 16 (May 18, 2009) ("CLI-09-08").
14 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3), LBP-09-08, 69 N.R.C.(June 30, 2009) ("LBP-09-08").
3
III. STANDARD OF REVIEW
The Commission generally defers to a Board's ruling on contention admissibility "in the
absence of clear error or abuse of discretion."15 Accordingly, the Commission has plainly stated:
"We regularly affirm `Board decisions on the admissibility of contentions where the appellant
points to no error of law or abuse of discretion. "'16 Moreover, an appellant cannot ignore the
Board's explanations of why contentions failed to meet the contention admissibility requirements
and simply repeat claims that the Board found inadequate. 17 The Commission, therefore, will
reject an appeal where the appellant "has failed ... to address adequately (if at all) the Board's
grounds for refusing to admit" the contention, 18 or where the appellant simply repeats claims
previously rejected by the Board. 19
As described below, NC WARN's Appeal fails to demonstrate that the Board committed
clear error or abused its discretion. The Appeal often ignores or does not adequately address the
Board's reasons for finding the proposed contentions inadmissible. The Appeal also incorrectly
alleges that the Board made factual determinations, and repeats arguments previously raised and
rejected by the Board. In addition, the Appeal ignores controlling precedent and raises matters -
such as challenges to Commission rules - that are outside the scope of the proceeding.
15 Crow Butte Resources , Inc. (License Renewal for In Situ Leach Facility , Crawford, Nebraska), CLI-09-09, 69
N.R.C. _, slip op. at 4 (May 18, 2009) (footnote omitted); see also U.S . Department of Energy (High Level
Waste Repository), CLI-09-14, 69 N.R. C. _, slip op. at 4 (June 30, 2009).16 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 N.R.C. 111, 121 (2006)
(footnote omitted).
17 PPL Susquehanna LLC (Susquehanna Steam Electric Station , Units 1 and 2), CLI-07-25, 66 N.R.C. 101, 104-06
(2007).
18 Dominion Nuclear Connecticut , Inc. (Millstone Nuclear Power Station, Units 2 and 3 ), CLI-04-36, 60 N.R.C.
631, 637 (2004).
19 Susquehanna , CLI-07-25, 66 N.R.C. at 104-06.
Finally, although NC WARN requests in passing that the Commission perform a "de
novo review on [sic] the entire record before it" (Appeal at 30), such a review would be
inappropriate here. The Commission may review factual findings de novo.20 However, with
respect to contention admissibility, there are no factual findings to review.
IV. ARGUMENT
A. Contentions TC-1 and TC-7 (AP1000 Certification)
The statement and background of Contention TC-1 is discussed in CLI-09-08, slip op. at
3-5. On remand, the Board properly followed the Commission's instructions to reassess the
admissibility of Contention TC-1 based upon the contention admissibility criteria in 10 C.F.R.
2.309(f)(1).
1. The Board Properly Found Contention TC-1 Wholly Inadmissible OnRemand
As admitted, the Board in LBP-08-21 limited Contention TC-1 to nine specific alleged
omissions from the COLA. On remand, the Board evaluated Contention TC-1 so limited against
the Commission's six contention admissibility factors in 10 C.F.R. § 2.309(f)(1) and properly
found Contention TC-1 wholly inadmissible. The Board did not err in applying those factors as
required by Commission regulations and as specifically directed by the Commission in the
remand order. CLI-09-08, slip op. at 12. On appeal, NC WARN generally reargues the same
points rejected by the Board on remand.21 NC WARN alleges that (1) Contention TC-1 should
20 See Louisiana Energy Services , L.P. (National Enrichment Facility), CLI-06-15, 63 N.R.C. 687, 697 (2006).21 Throughout the Appeal, NC WARN incorporates by reference certain prior pleadings rather than alleging with
specificity errors made by the Board. It is improper for NC WARN to ask the Commission to sift unaidedthrough earlier-filed briefs in order to piece together and determine the grounds for NC WARN's claims. HydroResources Inc., CLI-01-4, 53 N.R.C. 31, 46 (2001). In addition, NC WARN generally "adopts by reference" thelegal and factual arguments in eight pleadings it has submitted in this proceeding, "[b]ecause of the regulatorymandate that limits the length of the brief supporting the notice of appeal." Appeal at 2. That approach "runs
5
not have been limited by LBP-08-21; and (2) the Board erred in a vague, undefined way in
interpreting CLI-09-08. As discussed below, neither of these allegations of error is valid.
a. NC WARN Apparently Alleges That The Board Erred By NotWholly Admitting Contention TC-1
While its Appeal is not a model of clarity, NC WARN apparently alleges that the Board
in LBP-08-21 should have admitted all of Contention TC-1. NC WARN argues that there is
error inherent in not knowing the final design and operating procedures for Harris, citing a
petition filed by another petitioner (Texans for a Sound Energy,Policy ("TSEP")) in an unrelated
case. Appeal at 17 n.9.
(i) NC WARN' s Reliance On The TSEP Petition IsMisplaced
This Appeal is the second time NC WARN has attempted before the Commission to
incorporate the TSEP petition by reference . NC WARN unsuccessfully first raised the TSEP
petition in its November 13, 2008 Motion for Stay, and here provides no additional reason to find
the TSEP petition applicable to this proceeding . As Progress explained in response to NC
WARN's stay motion, the arguments in the TSEP petition are neither applicable nor persuasive
in this case . 22 NC WARN' s repetition of concerns about finalizing designs and operating
procedures and reliance on the TSEP petition do not demonstrate that the Board erred. As the
Commission found in responding to NC WARN' s November 13, 2008 Motion for Stay, "[t]he
arguments in the TSEP Petition - which NC WARN now adopts but could have made earlier -
do not provide a compelling substantive basis for reconsidering CLI-08-15." CLI-09-08, slip op.
at 14.
afoul" of the Commission's page limitation rules. Id.; Carolina Power & Light Co. (Shearon Harris NuclearPower Plant), CLI-01-11, 53 N.R.C. 370,393 (2001).
22 Progress Response to November 2008 Stay Motion at 6-7.
6
0i) NC WARN's Alleged Re-characterization OfContention TC-1 Supports The Board's Decision
NC WARN alleges without specificity that the Board erred when it did not admit NC
WARN's allegations regarding the lack of final designs and operating procedures in the COLA.
Appeal at 11-12. NC WARN's attempts to re-characterize Contention TC-1 as a challenge to the
lack of finality in design and operating procedures do not demonstrate that the Board erred. NC
WARN is correct in one respect: in LBP-08-21, the Board did not interpret Contention TC-1 as a
challenge to the lack of finality in the design certification information. The Board found,
"[h]owever, we disagree with Staff as to its characterization of Petitioner's challenges. We find
that Petitioner's Contention TC-1 is not a challenge to the AP 1000 design review process, but
rather a challenge to the Application itself." LBP-08-21, 68 N.R.C. at 563. As the Board found
on remand, if Contention TC-1 is a challenge to the AP 1000 design review process as NC
WARN now alleges, it is an impermissible challenge to NRC regulations. LPB-09-08, slip op. at
6-7, 9-10,11.
Commission regulations allow COL applications to reference a docketed design
certification application, 23 and the Commission repeatedly has found that applicants can
incorporate a docketed design certification into their COLAs. 24 Accordingly, the Board did not
err on remand by allowing Progress to do so.
b. NC WARN Alleges Vague Non-Specific Error By The BoardWhen It Applied CLI-09-08 On Remand
23 10 C.F.R. § 52.55(c).
24 Luminant Generating Co. (Comanche Peak Nuclear Power Plant, Units 3 and 4), Order (denying the Petitioners'request to stay the Comanche Peak COLA proceeding) (Apr. 27, 2009) at 1; Detroit Edison Co. (Fermi Unit 3),CLI-09-04, 69 N.R.C. _, slip op. at 6 (Feb. 17, 2009); Harris, CLI-08-15, 68 N.R.C. 1, 3 (2008); see also 73Fed. Reg. 20,963, 20,972-73 (Apr. 17, 2008).
7
The Commission found that the Board admitted Contention TC-1 as a contention of
omission. CLI-09-08, slip op. at 8-9. On remand, the Board - as directed by the Commission -
applied the six contention admissibility factors in 10 C.F.R. § 2.309(f)(1) and found Contention
TC-1 inadmissible. In its Appeal, NC WARN either does not address or argues unpersuasively
that the Board erred in the remand decision.
(i) Portions Of Contention TC-1 Did Not DemonstrateOmissions
On remand, the Board first found that "NC WARN fails to identify, let alone discuss any
specific flaws in, those portions of the COLA where the safety reviews are set forth." LBP-09-
08, slip op. at 6. The Board concluded, "[t]hus, as this portion of Contention TC-1 erroneously
asserts an omission from the application, it is inadmissible because no such omission exists and it
therefore fails to satisfy the requirements of 10 C.F.R. § 2.309(f)(1)(vi)." Id. at 6. In its Appeal,
NC WARN implicitly concedes that the COLA is not incomplete as filed. NC WARN now
asserts "the omissions are of the final designs and operating procedures, not that the COLA did
not mention them." Appeal at 16 (emphasis in original). The Board did not err in finding that
portions of Contention TC-1 do not support a contention of omission.
0i) Contention TC-1 Does Not Allege With SpecificitySafety Deficiencies In The AP1000 Design
Next, the Board addressed NC WARN's allegations that there remain a number of serious
safety inadequacies in the AP 1000 Revision 16 design that have not been satisfactorily
addressed, including allegations of unresolved sump design issues and impossibility of
performing a Probabilistic Risk Analysis ("PRA"). In addition to finding that NC WARN did
not allege any omissions from the COLA as discussed above, the Board concluded that NC
WARN did not "identify any error in any specific part of the application" and did not "present
8
sufficient information to show the existence of a genuine dispute with the applicant, thereby also
failing to satisfy the requirements of 10 C.F.R. § 2.309(f)(1)(vi)." LBP-09-08, slip op. at 7. On
appeal, NC WARN does not specifically address the Board's finding. Thus, no error by the
Board is alleged by NC WARN, nor is one patent.
The Board also discussed NC WARN's general and generic allegations about the AP 1000
design and found them inadmissible. The Board concluded: "NC-WARN fails to relate these
statements to any asserted specific flaw in or omission from the application, thus failing to
satisfy the requirements of 10 C.F.R. § 2.309(f)(1)(i), (iv), (v), and (vi)." LBP-09-08, slip op. at
8. NC WARN does not contest that finding, and there is no error in the Board's conclusion that
NC WARN's general and generic safety allegations do not meet the contention admissibility
factors.
The Board Found That The Nine Specifically AllegedOmissions Are Not Omitted From The Application
Finally, the Board addressed NC WARN's allegations that there were nine specific
omissions from the COLA, and properly found on remand that in each case the information was
not omitted. According to the Board:
[S]ince NC-WARN neither controverts any specific portion of the application, noridentifies any error in the application relating to these specific matters, andprovides no support whatsoever for the proposition that there is any potentialerror, it fails to present an admissible contention because it does not satisfy therequirements of 10 C.F.R. § 2.309(f)(v) and (vi).
LBP-09-08, slip op . at 9. NC WARN alleges without specificity that the Board misinterpreted
the Commission ' s remand order in some vague way . NC WARN states that "[e]ven after the
Commission addressed the issue in its remand order , CLI-09-08, the ASLB continued to err in
discounting the `nine specific asserted omission[s] as well as the assertions as set out in
9
Contention TC-1."' Appeal at 15 . Nothing in this vague allegation25 contradicts the Board's
finding that NC WARN' s non-specific laundry list of nine areas does not raise a genuine dispute
with the COLA.
(iv) The Board Properly Found Inadmissible NC WARN'sUnsupported Allegations That Severe AccidentMitigation Design Alternatives ("SAMDAs") And RiskAssessment Cannot Be Performed
NC WARN also argues that the Board erred in concluding that the SAMDAs set out in
the COLA are free of error. Appeal at 16-17. In fact, the Board found that, to the extent that NC
WARN raised a contention at all, a generalized statement that the SAMDA analysis cannot be
done is rebutted by the very SAMDA analysis provided in ER Chapter 7.3. LBP-09-08, slip op.
at 10 & n.41.
Contrary to NC WARN' s allegation that the Board found the SAMDA analysis in the ER
unassailable, the Board cogently observed, "[w]hile NC-WARN plainly asserts that SAMDA
analysis cannot be performed until there is a final design, there is indeed a SAMDA analysis in
the current application." LBP-09-08, slip op. at 11 n.42. Because NC WARN did not cite, let
alone challenge, the SAMDA analysis in the COLA, the Board did not err in finding that NC
WARN had failed to raise a genuine dispute on a material issue as required by 10 C.F.R. §
2.309(f)(1)(v) and (vi). LBP-09-08, slip op. at 10-11.
Furthermore , it was not unreasonable for the Board to conclude that SAMDAs based on
current information were acceptable . As the Board stated , NC WARN can file late-filed
contentions as changes in the design certification are made and incorporated into the COLA.
25 In fact, because LBP-08-21 originally admitted Contention TC-1 limited to these nine areas, it is unclear what NCWARN means when it alleges "discounting."
10
LBP-09-08, slip op. at 11. The Board did not err; that statement is consistent with similar
statements made by the Commission. 26
2. Contention TC-7 Was Filed Impermissibly Late
The Board found that Contention TC-7 (lack of final AP 1000 Design in the COLA after
DCD Revision 17) was filed impermissibly late for three independent reasons: (1) NC WARN
had not identified with specificity what change in Revision 17 allegedly was material; (2) NC
WARN had not justified its six-week delay in submitting the Contention; and (3) NC WARN
had not addressed the eight late-filed contention factors. On appeal, NC WARN either does not
argue, or argues unpersuasively, that there is an error in the Board's decision.
a. NC WARN Does Not State With Specificity What Change InRevision 17 Was Material
NC WARN reasserts in its Appeal the same alleged deficiencies in Revision 17 of the
AP 1000 DCD that the Board in LBP-08-21 found immaterial. NC WARN highlights "the
complete lack of a timetable for review and certification." Appeal at 15 n.8. NC WARN fails to
explain why Revision 17 should contain a schedule or how its absence is material to a decision
on the COLA. Because the review.is by the Staff, there is no reason to think that a review
schedule is an essential part of any application. 27 The Board did not err in finding that NC
WARN had not identified any material changes to the COLA warranted by Revision 17.
26 See, e.g., Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-09-13, 69
N.R.C. _, slip op. at 4-5 (June 25, 2009).
27 There has been, and continues to be, an active dialog between the Staff and Westinghouse regarding the schedulefor review of Revision 17, even before Revision 17 was submitted. See, e.g., Westinghouse letter to the NRCdated August 21, 2008 (ADAMS Accession No. ML082380866). Also, in another proceeding, the Staff recentlyidentified the schedule for near-term key events in the AP 1000 Design Certification Amendment review. NRCletter to Bellefonte Board dated June 11, 2009 (ADAMS Accession No. ML091620429). NC WARN's concernthat there is no timetable for review of Revision 17 is unfounded even if the concern were relevant to thisproceeding.
11
b. NC WARN Did Not Explain A Six-Week Delay In FilingContention TC-7
NC WARN did not address the Board's fundamental point regarding the six-week delay.
In fact, NC WARN apparently concedes that Contention TC-7 should have been filed in a timely
manner, stating that Contention TC-7 was filed "[r]ather than wait[ing] for Revision 17 to be
available ... as soon as it became apparent to NC WARN that Revision 17 would be significantly
different from Revision 16." Appeal at 15. NC WARN does not, however, explain why it took
six weeks before the issue "became apparent" to NC WARN. The unexplained delay of six
weeks between the DCD Revision 17 "cover letter" and "presentations by Westinghouse" that
NC WARN purports present new information (Appeal at 15) and NC WARN's untimely filing of
Contention TC-7 is sufficient reason for the Commission to reject NC WARN's Appeal with
respect to that Contention.
C. NC WARN Did Not Address The Eight Late-Filed ContentionFactors
The Board found NC WARN' s request to file Contention TC-7 to be impermissible
because it did not address the eight late-filed contention factors set forth in 10 C.F.R. § 2. 309(c).
The Board found that NC WARN had not addressed these factors in its motion , but had in its
reply. The Board concluded that , even if the Board were to consider the discussion in NC
WARN's reply, it was "vague and non-specific ." Dec. 23 , 2008 Order at 6. In its Appeal, NC
WARN did not address the applicability of 10 C.F.R. § 2.309 (c). That failure alone is reason for
the Commission to reject NC WARN 's appeal of the Board's decision to reject Contention TC-7.
d. In the Alternative , The Board Properly Found ThatContention TC-7 Was Outside The Scope Of This Proceeding
12
In the alternative to finding Contention TC-7 that was impermissibly untimely, the Board
made a sua sponte finding28 that Contention TC-7 is inadmissible as outside the scope of this
proceeding . Contention TC-7 is not admissible because, rather than focusing on a deficiency in
the COLA, it focuses on the existence of Revision 17 in the Design Certification Amendment
proceeding . The Board stated that changes in the Design Certification Amendment proceeding
are not applicable to the COLA proceeding until the COLA is revised to either accept or depart
from changes in the Design Certification Amendment proceeding . Dec. 23, 2008 Order, slip op.
at 10-11 & n .46. The Board concluded , "[t]herefore , even had NC WARN satisfied the criteria
relating to untimeliness , the substantive focus of Contention TC-7 on the revisions in the design
certification process would present an inadmissible contention ." Id. at 11 . NC WARN
complains that "it does not make sense" that its only avenue to address site -specific changes to
the final design and operating procedures is when a revision to incorporate those changes into the
COLA is made. 29 Appeal at 17. The Board explained the carefully crafted process for
promoting standardization and other benefits of the 10 C.F.R. Part 52 rules and concluded that
the process provides adequate procedural protections for NC WARN' s interests . 30 Such a
conclusion is rational , not an abuse of discretion. 31
28 Consistent with a Board scheduling order, Progress and the Staff only addressed timeliness and not theadmissibility of Contention TC-7. See Order (Scheduling Order for Responses to Late-Filed Contentions) (Nov.19, 2008) at 1-2.
29 Progress has filed Revision 1 to the COLA that reflects changes, including those that reflect Revision 17 to theAP1000 DCD. See Progress Letter to the Board (June 22, 2009) (ADAMS Accession No. ML091730590).
30 NC WARN vaguely alleges that after review of Revision 17, the factual allegations in Contention TC-7 remainvalid. Appeal at 15. Whatever these non-specified factual allegations are, NC WARN does not explain why theycannot be raised pursuant to the NRC regulations.
31 See generally, Vogtle, CLI-09-13, declining to review a question certified by the Vogtle Licensing Board ondenial of contentions essentially identical to TC-1 and TC-7 in this proceeding, and finding that "[w]e recentlyhave had the opportunity to review this very issue in a number of other COL matters, and need not revisit it here."CLI-09-13, slip op. at 4 (citing COL proceedings).
13
For these reasons , NC WARN has failed to demonstrate clear error or abuse of discretion
in the decisions of the Board and Commission in dismissing Contentions TC-1 and TC-7.
B. Contention TC-2 (Track Record of Fire Violations)
On appeal of Contention TC-2, NC WARN generally does no more than reargue points
rejected by the Board . Specifically , NC WARN alleges that the Board erred by concluding that
Progress ' s track record on fire protection compliance was irrelevant. In fact, the Board
considered all of NC WARN' s allegations , including that aspect highlighted by NC WARN on
appeal, and correctly found Contention TC-2 inadmissible. There is no clear error or abuse of
discretion.
NC WARN alleges that the Board erred in not addressing Progress's track record on fire
protection. Appeal at 20. NC WARN, without substantiation, states, "[t]he issue is not whether
a fire at Harris Unit 1 will adversely affect the two proposed units, but rather, whether an
applicant that blatantly ignores one set of safety rules can be trusted to follow those same rules,
or any other rule, at two additional reactors." Appeal at 19-20. Despite the unfocused nature of
Contention TC-2, the Board recognized that NC WARN was primarily concerned about future
non-compliance with fire protection regulations. The Board stated, "[a]lthough Petitioner makes
numerous arguments advocating admission of this contention, its central concern appears to be
the perception that the preexisting fire safety condition of Harris Unit 1 should raise sufficient
concern about the future potential noncompliance at the proposed Harris Units 2 and 3 to
preclude their approval." LBP-08-21, 68 N.R.C. at 565. Considering the issue, the Board found
no factual or expert support linking the past performance to future events. Id. It is long standing
Commission precedent that allegations about past management practice must relate directly to
14
the proposed licensing action . 32 Because NC WARN misstates the Board' s findings, this
allegation of error is not valid.
The Board also found that NC WARN' s allegation regarding the track record of fire
protection at Harris Unit 133 lacked adequate support , contrary to 10 C .F.R. § 2.309 (f)(1)(v).
LBP-08 -21, 68 N.R.C. at 566. NC WARN's Appeal does not address this additional reason for
the Board ' s denial of Contention TC-2. The failure by NC WARN to address this alternate basis
for denial is sufficient reason for the Commission to deny the Appeal regarding Contention TC-
2.
The Board found the other aspects of Contention TC-2 not admissible, given the six
contention admissibility factors . LBP-08-21 , 68 N.R . C. at 565 -66. NC WARN' s Appeal does
not challenge these aspects of the Board's ruling . Because NC WARN either does not challenge
each independent reason for the Board ' s ruling, or raises an invalid challenge (as discussed
above), the Board did not err in finding Contention TC-2 inadmissible.
C. Contentions TC-3 (Aircraft Attacks) and TC-4 (Aviation Attacks and Fires)
Contentions TC-3 and TC-4 originally raised both safety and environmental issues.
Contention TC-3 challenged the COLA's alleged failure to consider deliberate aircraft attacks
and their consequences, and also challenged the ER's alleged failure to address the
environmental impacts of a successful attack. Petition at 24, 25, 29-30. Contention TC-4
claimed that the design for the structures protecting certain electric circuits were vulnerable to
32 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 N.R.C.349, 365-67 (2001); USEC, Inc. (American Centrifuge Plant), LBP-05-28, 62 N.R.C. 585, 618 (2005).
33 As Progress explained, NC WARN trots out tired, old shibboleths that have been found not persuasive in otherNRC proceedings and meetings. See Progress Energy's Answer Opposing Petition for Intervention and Requestfor Hearing by the North Carolina Waste Awareness and Reduction Network (Aug. 29. 2008) ("ProgressAnswer") at 25-30.
15
successful aircraft attacks, and that the COLA could not be approved without an analysis of the
"risks associated with fires and explosions caused by aviation attacks." Id. at 32, 33.
NC WARN identifies no error of law or abuse of discretion in the Board's rejection of
both Contentions. The Board ruled Contention TC-3 inadmissible because it (1) sought to raise
issues that were the subject of an ongoing rulemaking34 and therefore outside the scope of the
proceeding, and (2) challenged controlling Commission precedent which holds that NEPA does
not require the analysis of potential terrorist attacks on a proposed nuclear facility. LBP-08-21,
68 N.R.C. at 567-68. The Board ruled Contention TC-4 inadmissible for the same reasons as
Contention TC-3, noting that Contention TC-4 raised issues regarding aircraft impact
consequences concerns that were being addressed as part of the ongoing rulemakings on the
AP1000 DCD Revision 16 and on power reactor security. Id. at 569.
On appeal , NC WARN has abandoned all of its original safety -related claims with respect
to Contentions TC-3 and TC-4. NC WARN now claims only that "aircraft impacts, either
intentional or accidental, and the multiple fires caused by those attacks, should be fully analyzed
as part of the Applicant's SAMDA analysis in its ER ." Appeal at 20 (emphasis added). NC
WARN has thus limited its Appeal to challenging a perceived deficiency in the ER. 35
With respect to its NEPA claim, NC WARN concedes that the Board followed
controlling Commission precedent. Rather than fault the Board, NC WARN claims that it was
"arbitrary and capricious" for the Commission to find that, for actions arising outside the Ninth
34 Consideration of Aircraft Impacts for New Nuclear Power Reactor Designs, 72 Fed. Reg. 56,287 (Oct. 3, 2007).35 Petitioner's failure to reiterate or explain claims on appeal, even though they were raised before the Board, means
that Petitioner has abandoned them. International Uranium (USA) Corp. ()White Mesa Uranium Mill), CLI-01-21,54 N.R.C. 247,253 (2001), citin Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),ALAB-947, 33 N.R.C. 299, 322 & n.62 (1991).
16
Circuit, no analysis of environmental consequences resulting from terrorist attacks is required.
Appeal at 21. NC WARN suggests that there be a "case by case analysis ," and that the Fourth
Circuit has not addressed this issue. Id.
NC WARN's arguments have no merit. Since the Ninth Circuit's ruling in San Luis
Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006), cert. denied, 549 U.S. 1166
(2007), the Commission has explicitly held that it would not apply Mothers for Peace outside the
Ninth Circuit and would continue to adhere to its longstanding precedent that NEPA requires no
terrorism inquiry in all other cases. 36 Thus, the Board was obligated under the Commission's
controlling Oyster Creek (CLI-07-8) precedent to reject the one aspect of Contentions TC-3 and
TC-4 that NC WARN has appealed. Because NC WARN has failed to identify any abuse of
discretion or clear error of law in the Board's rejection of Contentions TC-3 and TC-4, the
Commission should affirm the Board's rulings here.
D. Contention TC-5 (High Density Spent Fuel Pools)
The Board ruled Contention TC-5 inadmissible on multiple, independent grounds. LBP-
08-21, 68 N.R.C. at 571-72. However, on Appeal, NC WARN does not challenge two
fundamental aspects of the Board's rulings: (1) Contention TC-5 lacks adequate support; and (2)
if considered an environmental contention, Contention TC-5 would raise issues that are not
required to be addressed under by NEPA and, therefore, would be outside the scope of this
36 Amergen Energy Co. LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 N.R.C. 124, 128-29 (2007).The Commission's decision in Oyster Creek, CLI-07-8, not to apply Mothers for Peace outside the Ninth Circuitappears prescient in light of the Third Circuit's recent ruling in N.J. Dep't Envtl. Prot. v. NRC, 561 F.3d 132 (3dCir. 2009), which expressly refuted Mothers for Peace. 561 F.3d at 142. There, the Third Circuit held that,because "`no reasonably close causal relationship"' exists between the licensing proceeding at issue in the caseand the environmental effects of a hypothetical aircraft attack, "such an attack does not warrant NEPA
evaluation." Id. at 136, 142.
17
proceeding . NC WARN' s failure to address these bases for rejecting the Contention is fatal for
its Appeal.
As detailed by Progress and the Staff, NC WARN failed to comply with the specificity
requirements of 10 C.F.R. § 2.309(f)(1), and its allegations regarding spent fuel pool accidents
were otherwise specious. 37 The Board agreed that NC WARN had failed to support Contention
TC-5 with specific references and information, contrary to 10 C.F.R. § 2.309(f)(1)(v). LBP-08-
21, 68 N.R.C. at 571. On appeal, NC WARN does not challenge that Board conclusion, but cites
only vaguely to "studies and testimony cited in the Petition." Appeal at 21. NC WARN's failure
to address this fundamental aspect of the Board's ruling is alone sufficient for the Commission to
reject the Appeal.38
NC WARN fails to challenge a second fundamental aspect of the Board's ruling. If
Contention TC-5 is considered an environmental contention, 39 the Board found that spent fuel
pool accidents are remote and speculative and, therefore, require no NEPA review. LBP-08-21,
68 N.R.C. at 572. Again, NC WARN's failure to address this aspect of Contention TC-5 is itself
sufficient for the Commission to reject its Appeal .40
NC WARN also alleges that the Board erred in relying on the AP 1000 Design
Certification Rule and the ongoing AP 1000 Design Certification Amendment rulemaking
proceeding because neither "is in effect," since Revision 17 has been submitted for Staff review.
37 Progress Answer at 51-57; NRC Staff Answer to Petition For Intervention And Request For Hearing By TheNorth Carolina Waste Awareness And Reduction Network (Aug. 29, 2008) ("Staff Answer") at 31.
38 Millstone, CLI-04-36, 60 N.R.C. at 637.39 On appeal, NC WARN does not specifically argue that Contention TC-5 is an environmental contention, but such
an issue is implicit because NC WARN raises SAMDA analysis (an analysis performed pursuant to NEPA) andNC WARN references its terrorism-related issues with the NRC interpretation of NEPA from Contentions TC-3and TC-4. Appeal at 22.
40 Millstone, CLI-04-36, 60 N.R.C. at 637.
18
Appeal at 21-22.41 NC WARN has not previously made this novel and baseless assertion. The
Commission should not entertain this new argument raised for the first time on appeal.42 Even if
the Commission were to consider this argument, NC WARN fails to identify any abuse of
discretion or clear error of law by the Board. NC WARN's claim that the filing of AP 1000 DCD
Revision 17 has nullified the AP1000 DC rule or the amendment rulemaking is baseless.
Revision 17 is part of the same AP 1000 Design Certification Amendment rulemaking as
Revision 16.43 Filing an amendment to a design certification does not impact the issued rule
until the amendment is enacted by rulemaking. 10 C.F.R. § 52.63(a)(1). Consequently, the
Commission should affirm the Board's ruling rejecting Contention TC-5.44 There was no abuse
of discretion or clear error by the Board in finding Contention TC-5 inadmissible.
E. Contention TC-6 (Reliability of Uranium Fuel)
Contention TC-6 alleged that the COLA did not support the assumption that uranium is a
reliable fuel source for Harris. Petition at 36-37. According to NC WARN, the Board erred
when it found Contention TC-6 inadmissible because that determination was based "wholly on
[the Board's] assessment of the credibility of factual allegations in the Petition." Appeal at 22.
NC WARN erroneously claims that the Board prematurely "made evidentiary findings," and
41 NC WARN does not address the Board's statement that "Contention TC-5 is impermissible because it challengesmatters that are the subject of an ongoing rulemaking in violation of 10 C.F.R. § 2.309(f)(1)(iii)." LBP-08-21, 68N.R.C. at 571. Even if this statement is considered in light of the Commission's direction in CLI-09-08, anyBoard error in this dicta would be harmless as the Board's fundamental reasons to deny Contention TC-5 are not
affected.
42 See Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-21, 52 N.R.C. 261, 264(2000); Philadelphia Electric Co. (Limerick Generating Station, Units land 2), ALAB-845, 24 N.R.C. 220, 235,248 n.29 (1986).
43 Letter from Robert Sisk, Manager Licensing and Customer Interface, Regulatory Affairs and Standardization,Westinghouse, to NRC (Sept. 22, 2008) at 3 (ADAMS Accession No. ML082800315).
44 As a parting shot, NC WARN states, "[t]o the extent that the ASLB's determination is based on downplaying thepossibility and impact of a terrorist attack, NC WARN adopts the arguments regarding the aircraft attackcontentions (Contentions TC-3 and TC-4) above." Appeal at 22. As discussed supra regarding Contentions TC-3and TC-4, the Board was obligated under the Commission's controlling Oyster Creek precedent to reject thisportion of Contention TC-5. Oyster Creek, CLI-07-8, 65 N.R.C. at 128-29.
19
found Contention TC-6 inadmissible based "on their own biases and beliefs outside any hearing
record." Id.
According to the Board , if Contention TC-6 were a Contention of omission, it was
inadmissible under 10 C .F.R. § 2.309(f)(1)(vi) because the COLA included the very analysis that
NC WARN alleged was missing. LBP-08-21, 68 N.R.C. at 573-74. It was neither clear error
nor an abuse of discretion for the Board to find that ER Section 10.2.2.3 - which discusses
"Uranium Fuel and Energy Consumption " - directly addressed the effects of the uranium fuel
cycle at Harris, which NC WARN claimed was omitted. That was not an evidentiary finding or
an assessment of the credibility of a factual allegation.
The Board also found that, if Contention TC-6 were a contention asserting errors in the
COLA' s analysis of the uranium fuel cycle , it failed to offer sufficient support for that claim as
required under 10 C.F.R. §§ 2.309(f)(1)(v) and (vi) because (a) NC WARN' s "mere reference to
general materials on a website" is insufficient support for a contention; and (b) the material on
the referenced website stands for "precisely the opposite proposition than the one for which
Petitioner offers it." LBP-08-21, 68 N.R.C. at 574. Contrary to NC WARN 's claims, the Board
did not decide - or even discuss - whether Petitioner ' s factual arguments had merit . Nor did the
Board rely on anything outside the hearing record . Rather, the Board found that the website NC
WARN referenced did not support - and indeed contradicted - the point alleged in the
Contention . NC WARN does not claim otherwise in its Appeal . Accordingly, the Board did not
err or abuse its discretion when it found that Contention TC-6 failed to satisfy 10 C.F.R. § §
2.309(f)(1)(v) and (vi).
F. Contention EC-1 (Underestimation of Costs)
20
In relevant part, Contention EC-1 alleged that Progress ' s ER underestimated the costs of
the proposed Harris reactors . Petition at 38. According to the Appeal , the Board improperly
found Contention EC-1 inadmissible when it concluded that, under NEPA, estimated
construction costs for a proposed project are relevant only where there is an environmentally
preferable alternative to the proposal . Appeal at 23. The Board, however, did not err or abuse its
discretion when it found Contention EC-1 inadmissible . Rather , it correctly applied Commission
precedent.
As LBP-08-21 found: "Commission precedent establishes that NEPA requires an
Applicant to present a cost-benefit analysis (and therefore provide cost estimates) for nuclear
alysis indicates that there ispower plants and facilities only where the Applicant's alternatives an
an environmentally preferable alternative." LBP-08-21, 68 N.R.C. at 576 (emphasis in
original).45 In support of that finding, the Board quoted the Appeals Board in Midland,46 which
states:
[NEPA] requires us to consider whether there are environmentally preferablealternatives to the proposal before us . If there are, we must take the steps we canto see that they are implemented if that can be accomplished at a reasonable cost,i.e., one not out of proportion to the environmental advantages to be gained. Butif there are no preferable environmental alternatives , such cost-benefit balancingdoes not take place.
LBP-08-21, 68 N.R.C. at 576 ( emphasis in original).
As the Midland decision also states : "NEPA requires the NRC to look for
environmentally preferable alternatives, not cheaper ones." Id. at 162-63. "In other words,
45 The Board also found that the applicable Commission regulation, 10 C.F.R. § 51.45, did not require that costs beconsidered in the ER. LBP-08-21, 68 N.R.C. at 576 & n.25. As the Board states, the plain language of thatregulation makes it clear that inclusion of cost information in an ER is not mandatory, especially in light ofMidland. Id. at 576-77.
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-458, 7 N.R.C. 155 (1978).46
21
neither NEPA nor any other statute gives us the authority to reject an applicant's proposal solely
because an alternative might prove less costly financially." Id. at 163 n .25. Indeed , the NRC
leaves matters regarding the cost reasonableness of a proposed project "to the business judgment
of the State regulatory agencies responsible for scrutinizing the purely economic aspects of
proposals to build generating facilities ." Id. at 162-63 (footnote omitted).47
NC WARN also claims the Board failed to understand that "the `no reactor ' option
always has far fewer environmental impacts than the proposed `two reactor' option and is
therefore environmentally preferable." Appeal at 23 . In addition, NC WARN alleges that other
"environmentally preferable alternative energy sources" should be compared with Harris and that
the Board "erroneously leaps to [the] conclusion' ' that "reactors are environmentally preferable
to all other alternatives ." Appeal at 23-24.48
The ER, however, did analyze "alternative energy sources" to Harris in substantial
detail. Specifically, ER Section 9.2.2 contains a twenty-nine page analysis of a wide range of
alternative energy sources. See ER at 9-4 - 9-33. As the Board stated, that analysis, "which has
not been properly challenged" by NC WARN, "did not find any environmentally preferable
alternative" to Harris. LBP-08-21, 68 N.R.C. at 576 & n.25; see ER at 9-33. The Board did not
47 See also Pac Gas & Elec Co v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 205 (1983) (theAtomic Energy Act "intended that the federal government should regulate the radiological safety aspects involvedin the construction and operation of a nuclear plant, but that the States retain their traditional responsibility in thefield of regulating electrical utilities for determining questions of need, reliability, cost, and other state-related
concerns.")
Progress notes that NC WARN did not argue before the Board that the "no reactor option" is alwaysenvironmentally preferable to the "two reactor option," nor did NC WARN "properly challenge" the ER'sconclusion which found there were no environmentally preferable alternatives to Harris. LBP-08-21, 68 N.R.C.at 576. NC WARN should not be permitted to make new arguments on appeal. See Private Fuel Storage, CLI-00-21, 52 N.R.C. at 264; Limeri ck, ALAB-845, 24 N.R.C. at 248 n.29.
48
22
err or abuse its discretion - nor did it "leap" to a conclusion - when it cited the ER's
unchallenged finding that there is no environmentally preferable alternative to Harris. 49
Finally, as NC WARN admits in the Appeal, Contention EC-1 is moot. Petition at 24.
NC WARN's challenge to the ER's construction cost estimate was based on a comparison of that
estimate with the publicly available construction cost estimate of similar nuclear power plants,
specifically Progress Energy Florida's proposed Levy County Nuclear Plant ("Levy"). LBP-08-
21, 68 N.R.C. at 574; Petition at 39-40. As the Appeal points out, on October 6, 2008, Progress
notified the Board that it was amending ER Section 10.4 to adopt, in its cost-benefit analysis, the
estimated overnight capital costs for Levy as the upper bounding estimate of the overnight
capital cost for Harris. Appeal at 24.50 Progress, therefore, has addressed NC WARN's concern
that the ER underestimates the cost to construct Harris when compared with cost estimates for
Levy. Accordingly, if the Commission finds that the Board erred or abused its discretion when it
failed to admit Contention EC-1, that Contention is nevertheless inadmissible because - as NC
WARN acknowledges - it is moot. 51
G. Contention EC-2 (Carbon Footprint)
Contention EC-2 alleged that Progress "fails to present evidence or analysis of the
`carbon footprint' ... associated with the proposed Harris reactors in its ER." Petition at 43. The
49 To the extent that NC WARN's "no reactor option" argument is to be interpreted as a claim that the "no action"alternative (i.e., Harris would not be built nor would any other facility be built or other strategy implemented totake its place) is environmentally preferable to Harris, that claim also fails. It amounts to an untimely (thePetition did not make that argument), unsupported challenge to both the need for power analysis set forth inChapter 8 of the ER and to the analysis in ER Section 9.1 ("No-Action Alternative") of the costs and benefits offailing to construct new generation in Progress's service territory to meet the demonstrated need.
See Letter from James Scarola, Senior Vice President and Chief Nuclear Officer, Progress Energy Carolinas, Inc.to the NRC, Docket Nos. 52-022, 52-023 (Oct. 3, 2008). ADAMS Accession No. ML082800314.
NC WARN states that Contention EC-1 is "in large part moot." Appeal at 24. It is not clear from the Appealwhat portion(s) of Contention EC-1 NC WARN believes is not moot. In any event, Progress has addressed all ofthe substantive issues raised by the Appeal.
50
51
23
Board found the Contention inadmissible because it failed to satisfy the requirements of 10
C.F.R. § 2.309(f)(1). LBP-08-21, 68 N.R.C. at 579. Rather than addressing "the Board's
grounds for refusing to admit"52 the Contention, the Appeal challenges a portion of LBP-08-21
that the Board expressly stated was irrelevant to its finding.
The Board determined that Contention EC-2 was inadmissible, because, contrary to the
Contention's claims, "the COLA did in fact include information on the carbon footprint of the
entire fuel cycle." LBP-08-21, 68 N.R.C. at 579. The Board further found that "even had [it]
viewed this contention as one attacking the analysis of the carbon footprint actually contained in
the COLA, [NC WARN] fails to point to any specific error and fails to point to any specific
portion of the COLA." Id. (footnote omitted). The Appeal does not challenges these
conclusions.
Instead, the Appeal alleges that the Board's decision was "based primarily on its
determination that the `contention fails to create a genuine issue of material fact."' Appeal at 24
(emphasis in original). The Board, however, did not base its decision on such a determination.
Contrary to NC WARN's assertions, the Board expressly stated that the statement to which NC
WARN objects was irrelevant to its holding. After explaining its rationale for rejecting the
Contention, the Board in dicta "address[ed] one fundamental aspect of this subject not relevant
to our finding." LBP-08-21, 68 N.R.C. at 579 (emphasis added). The Board went on to
"suggest" that, in order to address concerns raised by Licensing Boards in two other COL
proceedings, the Commission should consider amending Table S-3 based on a study referenced
in the Harris COLA which, if accurate, would show that a contention challenging the carbon
footprint of the nuclear fuel cycle would fail to raise a material issue of fact. Id. at 579-80. The
52 See Millstone, CLI-04-36, 60 N.R.C. at 637.
24
Board, however, had clearly explained that its "suggestion " regarding the Commission ' s future
use of the study was "not relevant" to its reasons for rejecting Contention EC-2.
Furthermore, contrary to NC WARN' s claims, the Board did not make any "evidentiary
findings" regarding the accuracy of the carbon footprint data pfesented in the COLA or the
"contrary facts or opinions ... contained in the Petition ." Appeal at 25. The Board rejected
Contention EC-2 for failing to meet the requirements of 10 C.F.R. § 2.309(f)(1)(vi ) because it
incorrectly asserted that the COLA did not consider Harris's carbon footprint and failed to point
to any alleged error in the COLA' s actual analysis. LBP-08 -21, 68 N.R.C. at 579. The Board
did not need to make any such evidentiary findings to reach its conclusion regarding
admissibility ; nor did it do so in its extraneous suggestion that the Commission consider
amending Table S-3.53
H. Contention EC-3 (Water Requirements)
Contention EC-3 alleged that the COLA did not "identify the plans for meeting water
requirements for the Harris reactors with sufficient detail ...." Petition at 45-48. After dividing
Contention EC-3's allegations into three categories, the Board explained in detail why each
category of allegations failed to satisfy various requirements of 10 C.F.R. §2.309(f)(1). LBP-08-
21, 68 N.R.C. at 582-83. The Board generally found that (1) the COLA actually discussed issues
that NC WARN alleged were omitted; and (2) the Contention failed to "identify any error or
omission" in the challenged analyses. Id.
53 The Board explicitly noted that the COLA's information on the carbon footprint of the nuclear fael cycle shouldbe "confirmed by Commission technical staff' before being relied upon, plainly demonstrating that it had notreached any finding of fact regarding the accuracy of such information. LBP-08-21, 68 N.R.C. at 579.
25
Unable to identify any error or abuse of discretion in the Board's decision, NC WARN's
Appeal inaccurately states that the Board's "determination that the contention is inadmissible is
based wholly on its assessment of the credibility of the factual allegations in the Petition."
Appeal at 26. NC WARN, however, does not point to any such alleged factual determination.
Indeed, the Board did not make one. Rather, the Board simply found that the COLA addressed
matters which the Petition claimed were omitted, and that the Petition failed to controvert any of
the information or analyses contained in the COLA or failed to explain why any additional
analysis was necessary. LBP 08-21, 68 N.R.C. at 582-83.
The Appeal also alleges that the Board criticized NC WARN for "not stating which
specific sections of the COLA or ER lack the necessary analysis of the environmental impacts of
water withdrawals and discharge of heated water even though it is clear in the contention that
this analysis was not included in any section." Appeal at 26-27. According to NC WARN, 10
C.F.R. § 2.309(f)(1)(vi) "does not require the petitioner to identify all sections in which the
information or analysis could possibly be located in the COLA or ER." Id. at 27.
NC WARN is correct that if "the petitioner believes that the application fails to contain
information on a relevant matter as required by law," it should identify "each failure and the
supporting reasons for the petitioner's belief." 10 C.F.R. § 2.309(f)(1)(vi). In the instances
where NC WARN alleged such an omission, however, the Board found that the information was
provided. The Appeal does not specifically challenge any of those findings. On the other hand,
where the COLA does in fact contain information regarding the alleged matter, the Petitioner
must refer "to specific portions of the application (including the applicant's environmental report
and safety report) that the petitioner disputes and the supporting reasons for each dispute." 10
C.F.R. § 2.309(f)(1)(vi). The Board found that NC WARN also failed to meet that requirement,
26
and the Appeal does not challenge those findings . In short , NC WARN' s complaint that the
Board required it to identify all sections in which missing information could possibly be located
in the COLA does not "come to grips with the Board ' s reasons for rejecting" Contention EC-3."
NC WARN, therefore , has not demonstrated a clear error or abuse of discretion in the Board's
decision.
The Appeal also repeats the claim - previously made in NC WARN's June 24, 2008
motion to suspend the hearing notice, its Petition, and its Reply - that "the NRC staff recognized
[in a letter to Progress accepting the COLA for docketing55] the deficiencies in the COL [sic]
regarding the impacts of water withdrawal," and those deficiencies render the COLA incomplete.
Appeal at 26 (footnote omitted). See also Harris, CLI-08-15, 68 N.R.C. at 3; Petition at 46;
Reply at 21-22. As the NRC Staff's Answer explained, NC WARN's Petition "badly
mischaracterize[d] what the letter actually states." NRC Staff Answer at 45. Moreover, the
Commission already has addressed the issue in this proceeding, finding that the "NRC Staff did
not state the application was incomplete.... The mere fact that the Staff is asking for more
information does not make an application incomplete." CLI-08-15, 68 N.R.C. at 3. Because the
Commission previously rejected NC WARN's argument, it was not a clear error or abuse of
discretion for the Board to refrain from further discussion of the matter.
1. Contention EC-4 (Deficiencies in Emergency Planning)
In its appeal of Contention EC-4, NC WARN simply reargues its points rejected by the
Board. Specifically, NC WARN alleges that the Board erred by not considering the affidavit of
sa Millstone, CLI-04-36, 60 N.R.C. at 639.ss Letter to J. Scarola from S. Sanders, Division of New Reactor Licensing, re: Acceptance Review for the Shearon
Harris Nuclear Power Plant Units 2 and 3 Combined License Application (Apr. 17, 2008) (ADAMS AccessionNo. ML081070226).
27
Dr. Wing regarding the purported need for a baseline health study of certain susceptible
populations. Appeal at 27. The Board considered all of NC WARN's assertions, including the
affidavit by Dr. Wing prepared for another proceeding, and properly found Contention EC-4
inadmissible.
NC WARN, quoting the Board out of context , alleges:
The ASLB apparently did not fully review the attachments to the contention in itsstatement that `Petitioner asserts ... without any support , the need for a baselinehealth study' of certain susceptible populations . LBP-08 -21, at 35. In directcontradiction to this statement , Dr. Wing in his affidavit and report clear [sic]demonstrates that the COLA is inadequate precisely because of that reason.
Appeal at 27-28. In context , the Board ' s explanation that Contention EC-4 lacks support is
specifically referring to the affidavit and report of Dr . Wing prepared for Harris Unit 1 license
renewal . See LBP-08 -21, 68 N .R.C. at 584 & n . 34. The Board found that Dr. Wing ' s material,
prepared for another proceeding , was not relevant to the Harris COLA proceeding. The Board
concluded, "we find the information referring to prior testimony of Dr. Wing is not relevant to
the present proceeding .... Petitioner made no attempt to address how Dr . Wing's opinions on
the emergency planning issues on Harris Unit 1 are relevant to the current COLA emergency
plan, failing to comply with the requirements of 10 C.F.R. § 2.309(f)(1)(iv)." LBP-08-21, 68
N.R.C. at 585-86.
NC WARN also incorrectly asserts that the Board assessed the credibility of the factual
allegations in NC WARN's Petition. Appeal at 27. As explained by Progress and the Staff, the
allegedly omitted information is discussed in the COLA. Progress Answer at 117-122; Staff
Answer at 47-50. The Board evaluated each of NC WARN's assertions of omissions from the
Emergency Plan in the COLA and found each assertion invalid as a mischaracterization of the
28
COLA' s content . LBP-08-21, 68 N.R . C. at 586. A mischaracterization of the COLA 's content
cannot be the basis for a valid contention . Progress Answer at 13 (and cites therein). Because
NC WARN mischaracterizes the nature of Board ' s findings , this allegation of error is not valid.
The Board found the assertions in Contention EC-4 inadmissible considering the six contention
admissibility factors. Id. at 585-86 . The Board did not err or abuse its discretion in finding
Contention EC-4 inadmissible.
J. Contention EC-5 (Waste Disposal)
The Board rejected Contention EC-5 ("the problem of the disposal of high-level waste
has not been resolved," Appeal at 4, 28-29) because it is a direct challenge to the Commission's
Waste Confidence rule, finding (as many other Licensing Boards have found) that the Waste
Confidence rule applies to new reactors. LBP-08-21, 68 N.R.C. at 587. On appeal, NC WARN
candidly
agrees with the ASLB's determination that this contention is a direct challenge toNRC regulations. Without question, the contention is meant to be a directchallenge to an arbitrary and capricious regulation that does not have any basis inthe real world.
Appeal at 28 (citations omitted). NC WARN' s sole basis for appeal is its bald assertion that the
Commission ' s "restriction" in not allowing challenges to its rules is a "policy" that can be
reviewed on a case by case basis . Id. at 29.
To the contrary, the Commission has promulgated a rule that prohibits challenges to its
rules in individual licensing proceedings absent a waiver of the rule, and such a waiver is
possible only upon a showing that special circumstances exist such that the rule would not serve
the purposes for which it was adopted. 10 C.F.R. §§ 2.335(a) & (b). In promulgating that rule,
the Commission has established a high threshold that must be met before any of its rules can be
29
challenged in individual licensing proceedings. This is not, as NC WARN contends, a mere
"policy" to be whimsically ignored whenever its suits Petitioner. 56 NC WARN failed to seek
waiver of the rule, and thus there was no basis for the Board to even consider the issues raised in
Contention EC-5, let alone admit the Contention. Aside from the fact that multiple other
Licensing Boards have rejected similar contentions in numerous other proceedings, NC WARN's
failure to follow the requirements of Section 2.335 rendered Contention EC-5 fatally flawed
from the first instance. In short, it would have been a clear error of law for the Board to have
ruled in any other way.
V. CONCLUSION
For the foregoing reasons, Progress respectfully requests that the Commission deny NC
WARN's Appeal in its entirety.
Respectfully Submitted,
/Signed electronically by John H. O'Neill, Jr./
John H. O'Neill, Jr.Michael G. LepreRobert B. HaemerTimothy J.V. WalshAlison M. CranePILLSBURY WINTHROP SHAW PITTMAN LLP2300 N Street, NWWashington, DC 20037-1128Tel. (202) 663-8148
Counsel for Progress Energy Carolinas, Inc.
August 3, 2009
56 An appellant must show Board error or abuse of discretion , not merely set forth what it "believes NRC policyought to be ." Susquehanna, CLI-07-25, 66 N.R.C. at 104-06.
30
UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION
August 3, 2009
Before the Commission
In the Matter of
Progress Energy Carolinas, Inc.
(Shearon Harris Nuclear Power Plant,Units 2 and 3)
Docket Nos. 52-022-COL52-023-COL
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing "Progress Energy Carolinas, Inc.'s Brief in Opposition toNC WARN's Notice of Appeal , Request for Oral Argument and Brief Supporting Notice of Appeal,"dated August 3, 2009 , was provided to the Electronic Information Exchange for service upon thefollowing persons.
Office of the Secretary of the CommissionAttn: Rulemakings and Adjudications StaffHearing DocketMail Stop 0-16C1U.S. Nuclear Regulatory CommissionWashington, DC 20555-0001E-mail: hearin dog cket(@n c.,Rov
Office of Commission Appellate AdjudicationU.S. Nuclear Regulatory CommissionWashington, DC 20555-0001ocaainail(anrc.gov
Dr. Paul B. Abramson, Chair,Atomic Safety and Licensing Board PanelMail Stop - T-3 F23U.S. Nuclear Regulatory CommissionWashington, DC 20555-0001E-mail: pba(a_)=c.gov
Dr. Michael F. KennedyAtomic Safety and Licensing Board PanelMail Stop - T-3 F23U.S. Nuclear Regulatory CommissionWashington, DC 20555-0001E-mail: mfk2(a,nrc.gov
Dr. William E. KastenbergAtomic Safety and Licensing Board PanelMail Stop - T-3 F23U.S. Nuclear Regulatory CommissionWashington, DC 20555-0001E-mail: billkastenberg(a),nrc.gov
U.S. Nuclear Regulatory CommissionOffice of the General CounselSara Brock Kirkwood, Esq.Kathryn L. Winsberg, Esq.Adam Gendelman, Esq.U.S. Nuclear Regulatory CommissionWashington, DC 20555-0001E-mail: seb2(4nrc.gov;kathryn.winsberg((@nrc. gov;adam. gendelman(a,nrc. gov;o gcmailcenter(a),nrc. gov
401364471v1
North Carolina Waste Awareness and Reduction South Carolina Office of Regulatory StaffNetwork 1441 Main Street, Suite 300John D. Runkle . Columbia, SC 29201Attorney at Law Florence P . Belser, General CounselP.O. Box 3793 E-mail: fbelser(a,regstaff.sc.govChapel Hill, NC 27515-3793E-mail: irunkleftricecreek.corn
North Carolina Utilities Service Commission4325 Mail Service CenterRaleigh, NC 27699-4325Louis S. Watson, Jr.E-mail: jones(@,ncuc.net
/signed electronically by John H. O'Neill, Jr./John H. O'Neill, Jr.
2
