UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

COMMISSIONERS: 

Stephen G. Burns, Chairman 

Kristine L. Svinicki 

William C. Ostendorff 

Jeff Baran 

Docket No. 52-033-COL 

CLI-15-12 

MEMORANDUM AND ORDER 

Beyond Nuclear moves to reopen the record of this proceeding and seeks a hearing on 

its claim that the final environmental impact statement prepared in connection with this 

combined license application violates the National Environmental Policy Act by failing to 

consider the environmental impacts associated with the continued storage of spent nuclear 

fuel.1

 For the reasons discussed below and explained in the related decision also issued today 

in the Callaway license renewal matter, Beyond Nuclear’s request is denied.2

 

1 See Beyond Nuclear’s Hearing Request and Petition to Intervene in Combined License 

Proceeding for Fermi Unit 3 Nuclear Power Plant (Feb. 12, 2015) (Petition); Beyond Nuclear’s 

Motion to Reopen the Record of Combined License Proceeding for Fermi Unit 3 Nuclear Power 

Plant (Feb. 12, 2015) (Motion). 

2 See Union Electric Co. (Callaway Nuclear Power Plant, Unit 1), CLI-15-11 (Apr. 23, 2015) (slip 

op.). 

In the Matter of: 

DTE ELECTRIC COMPANY 

(Fermi Nuclear Power Plant, Unit 3) 
- 2 - 

During this combined license proceeding, the U.S. Court of Appeals for the District of 

Columbia Circuit vacated and remanded our 2010 Waste Confidence Decision and Temporary 

Storage Rule.3

 For various licensing actions, including this one, the Decision and Rule served 

as part of the environmental analysis of the impacts of spent fuel storage after the end of a 

reactor’s license term, pending ultimate disposal of spent fuel in a repository. In response to the 

court’s decision, Beyond Nuclear, together with other petitioners, sought 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

Last year, concurrent with our approval 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 underpinning the GEIS . . . we 

 

3 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). Beyond 

Nuclear (together with several other intervenors) filed a new contention asserting that the draft 

environmental impact statement failed to address the environmental impacts associated with 

spent fuel pool leaks and fires, and the lack of a permanent spent fuel storage facility. 

Intervenors’ Motion for Leave to File a New Contention Concerning Temporary Storage and 

Ultimate Disposal of Nuclear Waste at Proposed Fermi 3 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 (“[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 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 Board dismissed 

(continued . . .) 
- 3 - 

concluded that the impacts of continued storage will not vary significantly across sites; the 

impacts of continued storage at reactor sites, or at away-from-reactor sites, can be analyzed 

generically.”7

 These generic determinations, therefore, were appropriately excluded from 

litigation in individual proceedings.8

Beyond Nuclear has now filed a fresh intervention petition in which it argues that the 

environmental analysis for the Fermi combined license is inherently flawed because it relies on 

the NRC’s generic analysis in the Continued Storage GEIS of the environmental impacts of the 

continued storage of spent fuel, yet did not supplement the final environmental impact statement 

to reflect these impacts. 9 Beyond Nuclear seeks to reopen the record in this proceeding to file 

a “placeholder” contention in anticipation that the court of appeals will overturn our recently 

promulgated Continued Storage Rule.10 The NRC Staff and the applicant, DTE Electric 

Company, oppose the petition to intervene and motion to reopen.11

 

the continued storage contention consistent with our direction. Order (Denying Motion to Admit 

Waste Confidence Contention) (Oct. 6, 2014), at 3 (unpublished). 

7 Calvert Cliffs, CLI-14-8, 80 NRC at 78-79. 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 GEIS.’” Id. at 79 (citation omitted). 

8 Id. at 79. 

9 See “NUREG-2105, Final Environmental Impact Statement for Combined License (COL) for 

Enrico Fermi Unit 3, Vols. 1-4 (Jan. 2013) (ADAMS accession nos. ML12307A172, 

ML12307A176, ML12307A177, ML12347A202). Petition at 1, 7, 9 n.5; NUREG-2157, Vols. 1 & 

2, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Sept. 

2014) (ADAMS accession nos. ML14196A105 and ML14196A107). 

10 Beyond Nuclear v. NRC, Docket No. 14-1216 (D.C. Cir. filed Oct. 29, 2014); see Final Rule, 

Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014). 

11 NRC Staff Answer to Beyond Nuclear’s Motion to Reopen the Record and Petition to 

Intervene (Feb. 27, 2015); Applicant’s Response Opposing Beyond Nuclear’s Motion to Reopen 

and Request for Hearing (Feb. 27, 2015) 
- 4 - 

Beyond Nuclear seeks to lodge with us a “placeholder” contention; it does not seek to 

litigate the substance of the 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, absent a request for a waiver.12 Rather, Beyond Nuclear states that it filed the 

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

Storage Rule and GEIS will be applied to this combined license proceeding.13 With respect to 

the bases of its contention and its rationale for moving to reopen this proceeding, Beyond 

Nuclear’s pleadings are substantively identical to those filed in the Callaway license renewal 

proceeding, which we also rule on today.14 Particularly, the contention challenges the generic 

findings in the GEIS; Beyond Nuclear does not, in its new contention, specifically challenge the 

Fermi combined license application or the final environmental impact statement.15

As we explained in the Callaway decision, a contention that challenges an agency 

regulation does not raise an issue appropriately within the scope of this individual licensing 

proceeding and is not admissible absent a waiver.16 Further, because the contention does not 

engage the Fermi combined license application, Beyond Nuclear has not demonstrated a 

genuine dispute with the applicant on a material issue.17

 

12 Petition at 1-2. Beyond Nuclear does not seek a rule waiver. Id. at 2 n.2. 

13 Id. at 2. 

14 Compare Missouri [Coalition] for the Environment’s Hearing Request and Petition to Intervene 

in License Renewal Proceeding for Callaway Nuclear Power Plant (Dec. 8, 2014) 

(ML14342B010), and 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) 

(ML14342B011), with Petition, and Motion. 

15 Petition at 8-9. 

16 Callaway, CLI-15-11, 81 NRC at __ (slip op. at 3-5). 

17 Id. at __ (slip op. at 4). Moreover, the lack of an admissible contention necessarily precludes 

reopening the proceeding. Id. at __ (slip op. at 4 n.17). 
- 5 - 

For the reasons explained in Callaway and as discussed above, we deny Beyond 

Nuclear’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 ) 

 ) 

DTE ELECTRIC COMPANY ) Docket No. 52-033-COL 

 ) 

(Fermi Nuclear Power Plant, Unit 3) ) 

 ) 

 

CERTIFICATE OF SERVICE 

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

(CLI-15-12) have been served upon the following persons by Electronic Information Exchange. 

U.S. Nuclear Regulatory Commission 

Office of Commission Appellate Adjudication 

Mail Stop: O-7H4 

Washington, DC 20555-0001 

ocaamail@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the Secretary of the Commission 

Mail Stop: O-16C1 

Washington, DC 20555-0001 

Hearing Docket 

hearingdocket@nrc.gov

Atomic Safety and Licensing Board Panel 

Mail Stop: T-3 F23 

U.S. Nuclear Regulatory Commission 

Washington, DC 20555-0001 

Ronald M. Spritzer, Chair 

Administrative Judge 

ronald.spritzer@nrc.gov 

Anthony Baratta 

Administrative Judge 

anthony.baratta@nrc.gov

Randall J. Charbeneau 

Administrative Judge 

randall.charbeneau@nrc.gov

Matthew Zogby, Law Clerk 

matthew.zogby@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the General Counsel 

Mail Stop: O-15D21 

Washington, DC 20555-0001 

Marcia Carpentier, Esq. 

marcia.carpentier@nrc.gov

Sara Kirkwood, Esq. 

sara.kirkwood@nrc.gov

Lisa London, Esq. 

lisa.london@nrc.gov

Patrick Moulding, Esq. 

patrick.moulding@nrc.gov

Kevin Roach, Esq. 

kevin.roach@nrc.gov

Michael Spencer, Esq. 

michael.spencer@nrc.gov

Robert M. Weisman, Esq. 

robert.weisman@nrc.gov

Anthony Wilson, Esq. 

anthony.wilson@nrc.gov

Megan Wright, Esq. 

megan.wright@nrc.gov

OGC Mail Center: Members of this office have 

received a copy of this filing by EIE service. 
Fermi Nuclear Power Plant, Unit 3, Docket No. 52-033-COL 

COMMISSION MEMORANDUM AND ORDER (CLI-15-12)

2 

Detroit Edison Company 

One Energy Plaza, 688 WCB 

Detroit, Michigan 48226 

Jon P. Christinidis, Esq. 

christinidisj@dteenergy.com 

Winston & Strawn, LLP 

1700 K Street, NW 

Washington, DC 20006-3817 

Counsel for the Applicant 

Noelle Formosa, Esq. 

nformosa@winston.com

David Repka, Esq. 

drepka@winston.com

Tyson R. Smith, Esq. 

trsmith@winston.com

Carlos L. Sisco, Senior Paralegal 

CSisco@winston.com

Beyond Nuclear, Citizens for Alternatives 

To Chemical Contamination, Citizens 

Environmental, Alliance of Southwestern 

Ontario, Don’t Waste Michigan, Sierra Club, 

et al. 

316 N. Michigan Street, Suite 520 

Toledo, OH 43604-5627 

Terry J. Lodge, Esq. 

tjlodge50@yahoo.com

Michael J. Keegan, Esq. 

mkeeganj@comcast.net

Beyond Nuclear 

Reactor Oversight Project 

6930 Carroll Avenue Suite 400 

Takoma Park, MD 20912 

Paul Gunter, Director 

paul@beyondnuclear.org

Nuclear Energy Institute 

1201 F Street NW 

Suite 1100 

Washington, DC 20004 

Jonathan Rund, Esq. 

jmr@nei.org

 

[Original signed by Clara Sola ] 

Office of the Secretary of the Commission 

Dated at Rockville, Maryland, 

this 23rd day of April, 2015