The Nuclear Regulatory Commission (NRC) has ruled that the Atomic Safety and Licensing Board should not initiate a review of environmental impacts of a proposed transmission line corridor for the Fermi 3 facility proposed by DTE Energy (NYSE:DTE).
“For the reasons set forth below, we deny the Board’s request for sua sponte review,” or a review initiated by the ASLB itself, NRC ruled Jan. 13. “In addition, we deny Intervenors’ petition for review of the Board’s dismissal of Contention 23, also relating to transmission-corridor environmental impacts.”
The ruling was issued as part on an ongoing combined license application by DTE Electric to construct and operate a GE-Hitachi Economic Simplified Boiling Water Reactor (ESBWR) on the Fermi site in Monroe County, Mich.
Beyond Nuclear and other parties intervening in the case sought a hearing and originally proposed 14 contentions; the ASLB granted a hearing and admitted four of those contentions.
“Since their entry into the proceeding in July 2009, Intervenors have proposed several additional contentions, including Contention 23, their challenge to the NRC Staff’s compliance with the National Environmental Policy Act of 1969 (NEPA) as it pertains to the anticipated environmental impacts of the proposed transmission line corridor for Fermi Unit 3, the subject of our decision today,” the NRC said.
The Fermi 3 foes filed Contention 23 after the NRC staff had issued the draft Environmental Impact Statement (EIS) for DTE’s application.
The licensing board again dismissed the contention as late. In Contention 23, both as originally proposed and resubmitted, intervenors challenged the adequacy of the staff’s consideration of the environmental impacts of building new transmission lines for Fermi Unit 3.
Although the ASLB did not admit Contention 23, it found some merit to arguments raised by the intervening parties. The licensing board had suggested that the contention at issue might have been admissible if it wasn’t tardy.
The ASLB would also observe that the adequacy of the staff’s review of of transmission-corridor impacts might be appropriate for the Board’s consideration “sua sponte.”
The ASLB subsequently asked parties in the case of the appropriateness of the ASLB taking up review of the transmission corridor issue on its own motion. Intervenors supported sua sponte review; DTE and the staff opposed it.
The NRC Commission noted that it’s rules of practice “require contentions to be raised at the earliest possible opportunity.” Although environmental contentions are, in essence, challenges to the staff’s compliance with NEPA, “those contentions must be raised, if possible, in response to an applicant’s environmental report,” NRC said.
“Petitioners who choose to wait to raise contentions that could have been raised earlier do so at their peril,” NRC said. The NRC staff and DTE both argued there is no material difference between the draft EIS and the final EIS.
“The Board’s second issue proposed for review, aside from its reference to cumulative impacts, is in essence a concern about the overall sufficiency of the Staff’s transmission-corridor analysis,” NRC said.
“But this is a potentially amorphous issue that does not appear to lend itself well to a contested proceeding, and the Board has not given us the benefit of a roadmap of what specifically would be litigated with regard to the Staff’s analysis,” NRC said.
Another hearing on Fermi is scheduled in February and will provide NRC with an opportunity to review the sufficiency of both the staff’s environmental and safety analysis.
The NRC denied the petition for review. The decision in Docket No. 52-033-COL marks one of the early rulings handed down by NRC since Stephen Burns became chairman of the commission. Burns was named chairman after Allison Macfarlane departed NRC to take a position at George Washington University in Washington, D.C.