UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

COMMISSIONERS: 

Stephen G. Burns, Chairman 

Kristine L. Svinicki 

William C. Ostendorff 

Jeff Baran 

Docket No. 50-483-LR 

CLI-15-11 

MEMORANDUM AND ORDER 

Missouri Coalition for the Environment (MCE) moves to reopen the record of this 

proceeding. MCE seeks a hearing on its claim that the final supplemental environmental impact 

statement prepared in connection with this license renewal application violates the National 

Environmental Policy Act by failing to consider environmental impacts associated with the 

continued storage of spent nuclear fuel.1

 For the reasons discussed below, MCE’s request is 

denied. 

I. BACKGROUND 

MCE sought to intervene early on in this license renewal proceeding. In its initial 

petition, MCE proffered three contentions that ultimately were rejected by the Atomic Safety and 

 

1 Missouri [Coalition] for the Environment’s Hearing Request and Petition to Intervene in License 

Renewal Proceeding for Callaway Nuclear Power Plant (Dec. 8, 2014) (Petition); Missouri 

[Coalition] for the Environment’s Motion to Reopen the Record of License Renewal Proceeding 

for Callaway Unit 1 Nuclear Power Plant (Dec. 8, 2014) (Motion to Reopen). 

In the Matter of 

UNION ELECTRIC COMPANY 

(Callaway Nuclear Power Plant, Unit 1) 
- 2 - 

Licensing Board.2

 Subsequently, our 2010 Waste Confidence Decision and Temporary Storage 

Rule were vacated by the court of appeals and remanded to the agency.3

 In response, MCE, 

together with several other petitioners, filed requests to suspend final licensing decisions in this 

and other proceedings pending completion of our action on the remanded Waste Confidence 

proceeding.4

 We suspended final licensing decisions until we addressed the court’s remand 

and instructed the boards in the affected proceedings to hold the contentions in abeyance 

pending our further order.5

 Thereafter, concurrent with our approval last year of the final 

Continued Storage Rule and companion Generic Environmental Impact Statement (GEIS), we 

lifted the suspension on final licensing decisions and directed that the proposed contention in 

this matter (among others) be dismissed.6

 We observed that, “[a]s part of the analysis 

 

2 See LBP-12-15, 76 NRC 14 (2012). MCE did not appeal this decision. 

3 See New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012). 

4 Petition to Suspend Final Licensing Decisions in All Pending Reactor Licensing Proceedings 

Pending Completion of Remanded Waste Confidence Proceedings (June 18, 2012). MCE also 

filed a fourth contention asserting that the applicant’s environmental report improperly failed to 

address the environmental impacts associated with spent fuel pool leaks and fires, and the lack 

of a permanent spent fuel disposal facility. Intervenor’s Motion for Leave to File a New 

Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Callaway 

Nuclear Power Plant (July 9, 2012). 

5 Calvert Cliffs 3 Nuclear Project, LLC and UniStar Nuclear Operating Services, LLC (Calvert 

Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63 (2012). At that time, we observed, 

“[t]o the extent the NRC takes action with respect to waste confidence on a case-by-case basis, 

litigants can challenge such site-specific agency actions in our adjudicatory process.” Id. at 67 

(but citing Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 

2), ALAB-218, 8 AEC 79, 85 (1975) (“[L]icensing boards should not accept in individual license 

proceedings contentions which are (or are about to become) the subject of general rulemaking 

by the Commission.”)). 

6 See NUREG-2157, Vols. 1 & 2, Generic Environmental Impact Statement for Continued 

Storage of Spent Nuclear Fuel (Sept. 2014) (ADAMS accession nos. ML14196A105 and 

ML14196A107) (Continued Storage GEIS); Final Rule, Continued Storage of Spent Nuclear 

Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014) (Continued Storage Rule); Calvert Cliffs 3 Nuclear 

Project, LLC, and UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, 

Unit 3), CLI-14-8, 80 NRC 71, 77-79 (2014). The Staff issued the renewed license on March 6, 

2015. See Ghosh, Anita, Counsel for NRC Staff, letter to the Parties, “In the Matter of Union 

(continued . . .) 
- 3 - 

underpinning the GEIS . . . we concluded that the impacts of continued storage will not vary 

significantly across sites; the impacts of continued storage at reactor sites, or at away-fromreactor sites, can be analyzed generically.”7

 For this reason, these generic determinations were 

appropriately excluded from litigation in individual proceedings.8

MCE now has filed a fresh intervention petition in which it argues that the recently 

released final supplemental environmental impact statement for license renewal of the Callaway 

plant is inherently flawed because it relies on the NRC’s generic analysis, in the Continued 

Storage Rule and GEIS, of the environmental impacts of the continued storage of spent fuel.9

 

The NRC Staff and the applicant, Union Electric Company, doing business as Ameren Missouri, 

oppose the hearing request.10

II. DISCUSSION

MCE seeks to lodge with us a “placeholder” contention.11 MCE does not seek to litigate 

the substance of its contention now and candidly acknowledges that our rules of practice do not 

allow litigants to challenge our regulations within the context of individual license proceedings, 

 

Electric Co. (Callaway Nuclear Power Plant, Unit 1), Docket No. 50-483-LR, Notification of 

Commission Authorization to Issue Renewed License” (Mar. 6, 2015). 

7 Calvert Cliffs, CLI-14-8, 80 NRC at 78. We stated additionally that “‘the assumptions used in 

the analysis are sufficiently conservative to bound the impacts such that variances that may 

occur between sites are unlikely to result in environmental impact determinations greater than 

those presented in the [Continued Storage] GEIS.’” Id. (citation omitted). 

8 Id. at 79. 

9 See NUREG-1437, Generic Environmental Impact Statement for License Renewal, Supp. 51 

(Regarding Callaway Plant, Unit 1) (ML14289A140) (Oct. 2014), at 1-4 to 1-5, 6-3. 

10 See NRC Staff Answer to Missouri Coalition for the Environment’s Hearing Request and 

Petition to Intervene and Motion to Reopen the Record in the License Renewal Proceeding for 

Callaway Unit 1 Nuclear Power Plant (Dec. 18, 2014); Ameren’s Answer Opposing Missouri 

Coalition for the Environment’s Hearing Request and Motion to Reopen the Record (Dec. 18, 

2014). 

11 Petition at 2. 
- 4 - 

absent a request for a waiver.12 MCE’s stated reason for filing its petition and motion to reopen 

is to ensure that any court decision resulting from its federal court challenge to the Continued 

Storage Rule and GEIS will also be applied to the individual Callaway proceeding.13

MCE is correct that the proposed contention is not admissible under our rules of practice 

because it impermissibly challenges an agency regulation and is therefore outside the scope of 

this individual licensing proceeding.14 MCE provides seven bases for its contention, all of which 

challenge the generic findings in the GEIS.15 None of the contention’s bases pertain specifically 

to the Callaway license renewal application. The contention therefore does not provide 

sufficient information to demonstrate a genuine dispute with the applicant on a material issue.16 

For these reasons, we decline to admit the contention.17

In MCE’s view, its “placeholder contention” is “the only procedural means” available for 

ensuring that any court decision resulting from the pending appeal of the Continued Storage 

 

12 See id. at 2 & 2-3 n.3. MCE does not seek a rule waiver. Id. 

13 Id. at 2. MCE has challenged the Continued Storage Rule and Continued Storage GEIS in 

the U.S. Court of Appeals for the District of Columbia Circuit. Beyond Nuclear v. NRC, Docket 

No. 14-1216 (D.C. Cir. filed Oct. 29, 2014). As MCE notes in its hearing request, its petition for 

review has been consolidated with similar petitions before the D.C. Circuit and the case is now 

captioned New York v. NRC, Docket Nos. 14-1210, 14-1216, and 14-1217 (D.C. Cir. Oct. 31, 

2014). MCE states that, should we decline to admit its contention, it will ask the court to 

consolidate its challenge here with its pending appeal. Petition at 2-3. 

14 See, e.g., Calvert Cliffs, CLI-14-8, 80 NRC at 79; Duke Energy Corp. (Oconee Nuclear 

Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 345 (1999). 

15 See Petition at 7-9. 

16 10 C.F.R. § 2.309(f)(1)(vi). 

17 Because MCE has not submitted an admissible contention, it necessarily has not satisfied our 

reopening standards because it has not raised a significant environmental issue and has not 

demonstrated that a materially different result would be likely if the contention had been 

considered initially. 10 C.F.R. § 2.326(a)(2)-(3). Because MCE’s contention is inadmissible, we 

need not address the timeliness of its filing, a matter of some debate among the litigants. 
- 5 - 

Rule and GEIS will be applied to the Callaway license renewal matter.18 However, MCE cannot 

litigate the Continued Storage Rule and GEIS here. We addressed the environmental impacts 

of continued storage generically, via the rulemaking process, in accordance with NEPA and 

general principles of administrative law.19 MCE had—and took advantage of—the opportunity to 

provide comments on the proposed rule and draft GEIS.20 Now that the rule has been adopted, 

MCE has sought review of the rule and GEIS in the appropriate venue, the court of appeals. 

Absent a successful petition that the rule should be waived in accordance with 10 C.F.R. 

§ 2.335, MCE’s challenges to the Continued Storage Rule and GEIS are appropriately brought 

before the court of appeals. Should the D.C. Circuit find any infirmities in the Continued Storage 

Rule or GEIS, we would take appropriate action consistent with the court’s direction. In the 

meantime, however, admission of a “placeholder” contention is not necessary to ensure that 

MCE’s challenges to the Continued Storage Rule and GEIS receive a full and fair airing.21

 

 

18 Missouri [Coalition] for the Environment’s Reply to Oppositions to Hearing Request/Petition to 

Intervene and Motion to Reopen the Record of License Renewal Proceeding for Callaway 

Nuclear Power Plant, 2 (Dec. 29, 2015). 

19 New York, 681 F.3d at 483 (declining to grant the petitioners’ request that the NRC consider 

continued storage on a site-by-site basis); see also NLRB v. Bell Aerospace Co. Div. of Textron, 

Inc., 416 U.S. 267, 294 (1974) (agency had discretion to choose between rulemaking and 

adjudication); SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (“the choice made between 

proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the 

informed discretion of the administrative agency”). 

20 See Continued Storage GEIS at D-596. 

21 Cf. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear 

Power Station), CLI-12-6, 75 NRC 352, 372-76 (2012) (declining a suspension request filed by 

the intervenor to “protect its position” and eventually enable it to litigate challenges to a final 

supplemental EIS following resolution of a rulemaking petition). 
- 6 - 

III. CONCLUSION 

For the foregoing reasons, we deny MCE’s motion to reopen the record of this 

proceeding and admit a new contention. 

IT IS SO ORDERED. 

 For the Commission 

NRC SEAL /RA/ 

 ___________________________ 

 Annette L. Vietti-Cook 

 Secretary of the Commission 

Dated at Rockville, Maryland, 

this 23rd day of April, 2015 
UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

In the Matter of ) 

 ) 

UNION ELECTRIC COMPANY D/B/A AmerenUE ) 

 ) 

 ) Docket No. 50-483-LR 

(Callaway Nuclear Power Plant, Unit 1) ) 

 ) 

(License Renewal) ) 

 

CERTIFICATE OF SERVICE 

 

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER 

(CLI-15-11) have been served upon the following persons by Electronic Information Exchange. 

Office of Commission Appellate 

 Adjudication 

U.S. Nuclear Regulatory Commission 

Washington, DC 20555-0001 

E-mail: ocaamail@nrc.gov

Atomic Safety and Licensing Board Panel 

U.S. Nuclear Regulatory Commission 

Mail Stop - T-3 F23 

Washington, DC 20555-0001 

G. Paul Bollwerk, III, Chair 

 Administrative Judge 

E-mail: paul.bollwerk@nrc.gov 

William J. Froehlich 

Administrative Judge 

E-mail: william.froehlich@nrc.gov

Dr. Nicholas G. Trikouros 

Administrative Judge 

E-mail: nicholas.trikouros@nrc.gov 

Matthew Flyntz, Law Clerk 

Email: matthew.flyntz@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the Secretary of the Commission 

Mail Stop O-16C1 

Washington, DC 20555-0001 

Hearing Docket 

E-mail: hearingdocket@nrc.gov

Union Electric Company 

Pillsbury Winthrop Shaw Pittman, LLP 

1200 Seventeenth Street NW 

Washington, DC 20036-3006 

David R. Lewis, Esq. 

Counsel for the Applicant 

E-mail: david.lewis@pillsburylaw.com

Missouri Coalition for the Environment 

Edward Smith, Safe Energy Director 

Diane Curran, Esq. 

Henry B. Robertson, Esq. 

Email: showmenocwip@gmail.com

dcurran@harmoncurran.com

hrobertson@greatriverslaw.org

 
Callaway Power Plant, Unit 1, Docket No. 50-483-LR 

COMMISSION MEMORANDUM AND ORDER (CLI-15-11) 

2

U.S. Nuclear Regulatory Commission 

Office of the General Counsel 

Mail Stop - O-15 D21 

Washington, DC 20555-0001 

Edward Williamson, Esq. 

Mary Spencer, Esq. 

Catherine Kanatas, Esq. 

Anita Ghosh, Esq. 

Beth N. Mizuno, Esq. 

David Cylkowski, Esq. 

Brian Harris, Esq. 

Email: edward.williamson@nrc.gov

mary.spencer@nrc.gov

catherine.kanatas@nrc.gov

anita.ghosh@nrc.gov

beth.mizuno@nrc.gov 

david.cylkowski@nrc.gov

brian.harris@nrc.gov

OGG Mail Center: ogcmailcenter@nrc.gov

 

 

 [Original signed by Herald M. Speiser] 

 Office of the Secretary of the Commission 

Dated at Rockville, Maryland, 

this 23rd day of April, 2015