ML052200245

Monticello - NRC Staff Answer to Petition to Intervene and Request for Hearing of the North American Water Office

ML052200245
Person / Time
Site:	Monticello
Issue date:	08/03/2005
From:	Fernandez A, Mary Woods NRC/OGC
To:	NRC/OCM
Byrdsong A T
References
50-263-LR, ASLBP 05-841-02-LR, RAS 10311
Download: ML052200245 (36)

Text

August 3, 2005 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

NUCLEAR MANAGEMENT ) Docket No. 50-263 COMPANY, LLC )

(Monticello Nuclear Generating Plant) )

NRC STAFF ANSWER TO PETITION TO INTERVENE AND REQUEST FOR HEARING OF THE NORTH AMERICAN WATER OFFICE INTRODUCTION Pursuant to 10 C.F.R. § 2.309(h)(1), the U.S. Nuclear Regulatory Commission Staff

("Staff") hereby answers the Request for a Hearing and Petition for Leave to Intervene of the North American Water Office ("NAWO"). As set forth below, NAWO has neither shown standing to intervene in this proceeding nor proffered an admissible contention. Thus, the Petition should be denied.

BACKGROUND By letter dated March 16, 2005, Nuclear Management Company, LLC ("NMC")

submitted an application for renewal of Operating License No. DPR-22 for the Monticello Nuclear Generating Plant for an additional 20 years.' The current operating license for the Monticello plant expires September 8, 2010.

On May 12, 2005, the NRC published a notice of acceptance for docketing and 1 See Letter from Thomas J. Palmisano, Site Vice President, Monticello Nuclear Generating Plant, [NMC], to U.S. NRC (Mar. 16, 2005) (ADAMS Accession No. ML050880241).

opportunity for hearing regarding the license renewal application.2 On July 11, 2005, NAWO filed a Petition to Intervene and Request for Hearing on NMC's license renewal application.3 DISCUSSION A. NAWO's Standing

1. Legal Requirements for Standing Any person who requests a hearing or seeks to intervene in a Commission proceeding must demonstrate that he or she has standing to do so. Section 189a.(1)(A) of the Atomic Energy Act of 1954, as amended ("AEA" or "Act"), 42 U.S.C. § 2239(a)(1)(A), states:

In any proceeding under this Act, for the granting, suspending, or amending of any license ..., the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.

The Commission's regulations in 10 C.F.R. § 2.309(d)(1) provide that a request for hearing or petition to intervene must state:

(i) The name, address and telephone number of the petitioner; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; and (iv) The possible effect of any decision or order that may be issued in the proceeding on the requestor's/petitioner's interest.

2 See [NMC], Monticello Nuclear Generating Plant; Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License No. DPR-22 for an Additional 20-Year Period, 70 Fed. Reg. 25,117 (May 12, 2005).

3 See Request for a Hearing and Petition for Leave to Intervene by [NAWO] (July 9, 2005)

("Petition"). The Petition was served upon the Staff by e-mail at 9:34 p.m. on July 9, 2005. The Staff notes that NAWO failed to serve the original signed copy and a paper copy as required by 10 C.F.R. § 2.305(c) and (e)(3). Further, NAWO failed to serve an original and two copies on the Secretary of the Commission by mail within two days of filing by electronic mail as required by 10 C.F.R. § 2.304(f). The Secretary has in the past rejected petitions to intervene that were deficient for failing to comply with these requirements. See, e.g., Letter from Annette L Vietti-Cook to Mr. Mitchell Mickey" J. Maricque (June 25, 2004) (ADAMS Accession No. ML041810651).

Additionally, the relevant case law provides that, to attain standing, a petitioner must demonstrate that:

(1) it has suffered a distinct and palpable harm that constitutes injury-in-fact within the zone of interests arguably protected by the governing statute; (2) the injury can fairly be traced to the challenged action; and (3) the injury is likely to be redressed by a favorable decision.

See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04 (1998); Kelley v. Selin, 42 F.3d 1501, 1508 (6th Cir. 1995); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 323 (1999).

To establish standing, there must be an "injury in fact" that is either actual or threatened.

Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 195 (1998)

(citing Wilderness Soc'y v. Griles, 824 F.2d 4, 11 (D.C. Cir. 1987)). The injury must be "concrete and particularized," not "conjectural" or "hypothetical." Sequoyah Fuels Corp. & Gen.

Atomics (Gore, Oklahoma Site), CLI-94-12,40 NRC 64,72 (1994). As a result, standing will be denied when the threat of injury is too speculative. Id. Furthermore, the alleged "injury in fact" must lie within the "zone of interests" protected by the statutes governing the proceeding; either the AEA or the National Environmental Policy Act ("NEPA"). Quivira Mining Co. (Ambrosia Lake Facility, Grants, New Mexico), CLI-98-11, 48 NRC 1, 6 (1998), aff'd sub nom. Envirocare of Utah, Inc. v. NRC, 194 F.3d 72 (D.C. Cir. 1999).

Further, a petitioner must also establish a causal nexus between the alleged injury and the challenged action. Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2),

LBP-98-27, 48 NRC 271, 276 (1998), aff'd, CLI-99-4,49 NRC 185 (1999). A determination that the injury is fairly traceable to the challenged action, however, does not depend "on whether the cause of the injury flows directly from the challenged action, but whether the chain of causation is plausible." Sequoyah Fuels, CLI-94-12, 40 NRC at 75. Finally, the redressability element of

standing requires a petitioner to show that its claimed actual or threatened injury could be cured by some action of the decisionmaker. Sequoyah Fuels Corp. (Gore, Oklahoma Site Decommissioning), CLI-01 -2, 53 NRC 9,14 (2001).

An organization may satisfy the standing criteria of 10 C.F.R. § 2.309(d)(1) based either on its own interests or that of its members. To establish "organizational standing," the organization must allege with particularity that the proposed action will cause an "injury in fact" to the organization itself, with respect to its own organizational interests. The asserted "injury" to the organization must meet the three-part judicial test for the standing of a "person." See Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-549, 9 NRC 644, 646 (1979) and discussion supra at 2.

Alternatively, an organization can plead standing based on representing its members' interests ("representational standing"). To do this, it must demonstrate that at least one individual member has standing to participate, in accordance with a three-part judicial test.

Houston Lighting & Power Co. (Aliens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 390-94 (1979). The organization must: (1) identify at least one of its members by name and address; (2) demonstrate how that member may be affected by the licensing action; and (3) show (preferably by affidavit) that the organization is authorized to request a hearing on behalf of that member. Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-98-12, 47 NRC 343, 354, aff'd in part, rev'd in part, CLI-98-21, 48 NRC 185 (1998).

2. NAWO Has Not Demonstrated Standing to Intervene in this Proceeding NAWO states the following with respect to its interest in this proceeding:

The North American Water Office (NAWO) has standing to intervene before the Nuclear Regulatory Commission in this proceeding because it is a member of the community that consumes electricity generated by the Monticello Reactor. The NAWO history is a history of examining and educating about, in numerous venues, the socioeconomic and environmental costs, benefits, and consequences surrounding the various options available for providing society with electric utility services. NAWO is geographically located in the region that

will be adversely impacted if or when the Monticello Reactor experiences a significant event.

The decision made in this proceeding has the possible effect, through error or malfeasance or component failure, of transforming the broader community in which NAWO personnel live and work into an abandoned sacrifice zone. This decision has the possible effect of creating chaos in the electric utility industry that services the community in which NAWO personnel live and work, should the decision reinforce the regions dependence on nuclear power, and a nuclear event somewhere on the planet causes the nuclear option to be no longer viable politically. This decision has the possible effect of causing on-going, unexamined and undocumented public health deterioration in our community due to untracked routine radiation releases. This decision also, presumably, has the possible effect of sparing the broader community in which NAWO personnel live and work from the risks and liabilities attached to continued nuclear operations at Monticello, thereby opening the door to the environmental and community-based economic development benefits that modern, renewable energy and energy efficiency technologies would provide.

Petition at 1-2. NAWO has not demonstrated standing to participate in this proceeding on the basis of these asserted interests. As stated above, there are two means for an organization to demonstrate standing in an NRC adjudicatory proceeding. First, an organization may assert injury to its organizational interests and demonstrate that these interests are protected by the AEA or NEPA. See Fla. Power& Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), ALAB-952, 33 NRC 521, 529-30 (1991). Or, second, an organization may base standing on the interests of members that it represents. Id. at 530-31. NAWO has not established standing on either basis.

a. NAWO Has Failed to Demonstrate it Has Organizational Standing With respect to its organizational interests, NAWO has not satisfied the requirement to demonstrate an "injury in fact." In its Petition, NAWO states that it is interested in "examining and educating about . . . the various options available for providing society with electric utility services[,]" and that it is concerned that the decision to issue a renewed license to NMC may "transform[] the broader community in which NAWO personnel live and work into an abandoned

sacrifice zonefl" and have "the possible effect of causing on-going, unexamined and undocumented public health deterioration in our community due to untracked routine radiation releases." Petition at 1-2. NAWO also states its concern that "a nuclear event" could create "chaos in the electric utility industry that services the community in which NAWO personnel live and work," and its desire to promote "modern, renewable energy and energy efficiency technologies." Id. at 2.

Generalized concerns, such as these, do not result in any distinct and palpable harm that is sufficient to confer standing. See Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 333 (1983). As the Supreme Court stated in Sierra Club v.

Morton, 405 U.S. 727, 739 (1972), "a mere 'interest in a problem,' no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization 'adversely affected' or 'aggrieved' within the meaning of the [Administrative Procedure Act]." See also Turkey Point, ALAB-952, 33 NRC at 530. For an organization to have standing to participate in an adjudicatory proceeding, it must demonstrate more than a desire to vindicate its "own value preferences."

See Sierra Club, 405 U.S. at 740. It must show that it has itself suffered an injury and thus has "a direct stake in the outcome." Id. at 738, 740.

NAWO's recitation of its generalized goals of educating and examining energy policy issues amount to a mere expression of an "interest" in a problem, which is insufficient to confer standing. Id. at 739; Petition at 1. NAWO speaks to an interest in seeking unspecified "community-based" energy policy solutions, yet this is little more than an expression of its own policy preferences, which does not provide any support for its claim of standing. See Sierra Club, 405 U.S. at 739-40; Petition at 1-2. NAWO postulates that granting a renewed license for Monticello "has the possible effect" of causing purely speculative harms, such as the potential for the area to become a "sacrifice zone,' the prospect of an unspecified "nuclear event" to

cause chaos in the utility industry, and the allusion to a threat of vague "undocumented public health" hazards. See Petition at 2. These asserted injuries are completely abstract, generic and speculative. They do not evidence that any harm would be directly experienced by the organization and do not demonstrate that NAWO has any real and actual "stake in the outcome" that establishes standing to intervene. See Sierra Club, 405 U.S. at 738, 740.

Further, NAWO has not alleged any tangible "injury in fact" to any of its organizational interests that is fairly traceable to the license renewal application. NAWO has simply not demonstrated that granting the application would result in any asserted injuries that "are distinct and palpable, particular and concrete, as opposed to being conjectural or hypothetical." Int'l Uranium (USA)

Corp. (White Mesa Uranium Mill), CLI-98-6,47 NRC 116,117 (1998). The concerns articulated by NAWO are thus insufficient to establish its "interest in the proceeding" under 10 C.F.R. § 2.309(d)(1). For these reasons, NAWO has failed to establish organizational standing.

b. NAWO Has Failed to Demonstrate it Has Representational Standing NAWO has not established representational standing. To demonstrate standing based on the interests of its members, a group must show that the licensing action it challenges may injure the group or someone the group is authorized to represent. Int'l Uranium (USA) Corp.

(White Mesa Uranium Mill), LBP-97-14, 46 NRC 55, 56 (1997). The organization must identify at least one member by name and address, demonstrate how that member's interest may be affected, and show that the group is authorized to request a hearing on behalf of that member.

Yankee Rowe, LBP-98-12,47 NRC at 354-55. The Petition fails to make this showing. While NAWO states that it "is geographically located in the region[,]" and that operations at the facility have implications for "the broader community in which NAWO personnel live and work[J,]" the Petition fails to identify the name and address of any member of NAWO who will be affected by issuance of a renewed license, and fails to articulate whether any affected members have

authorized NAWO to represent them in this proceeding. See Petition at 1-2. Further, as stated above, NAWO has failed to demonstrate any "injury in fact" establishing that any member would have standing in his or her own right. For these reasons, NAWO has failed to provide the basic information required to establish representational standing. Accordingly, NAWO has not met the requirements for standing to intervene in this proceeding.

B. NAWO's Proposed Contentions Even if NAWO were found to have demonstrated standing to intervene pursuant to 10 C.F.R. § 2.309(d)(1), NAWO has nonetheless failed to submit an adequate petition, because it has failed to proffer any admissible contentions.

1. Legal Standards Governing the Admission of Contentions To gain admission to a proceeding as a party, in addition to satisfying the criteria for standing, a petitioner must submit at least one admissible contention that meets the requirements of 10 C.F.R. § 2.309(f). See 10 C.F.R. § 2.309(a). This regulation requires a petitioner to:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestor's/petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and (vi) Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicant's environmental report and safety report) that

the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief.

10 C.F.R. § 2.309(f)(1). 4 The Commission has emphasized that its rules on contention admissibility establish an evidentiary threshold more demanding than a mere pleading requirement and are "strict by design." Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01 -24, 54 NRC 349, 358 (2001). Failure to comply with any of these requirements is grounds for dismissing a contention. See Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

The contentions should refer to the specific documents or other sources of which the petitioner is aware and upon which he or she intends to rely in establishing the validity of the contentions. Millstone, CLI-01 -24, 54 NRC at 358 (citing Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 & 3), CLI-99-11, 49 NRC 328, 333 (1999)). The petitioner must submit more than "bald or conclusory allegation[s]" of a dispute with the applicant. Id.

Furthermore, the scope of a license renewal proceeding is limited, in both the safety and environmental contexts. Review of safety issues is limited to "a review of the plant structures and components that will require an aging management review for the period of extended operation and the plant's systems, structures and components that are subject to an evaluation of time-limited aging analyses." Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-26, 56 NRC 358, 363-64 (2002)

(citations omitted) (emphasis in original). See also Millstone, LBP-04-15, 60 NRC at 90, aff'd, 4 Although the Commission recently revised its Rules of Practice in 10 C.F.R. Part 2, the provisions of § 2.309 "incorporate the longstanding contention support requirements of former § 2.714-no contention will be admitted for litigation in any NRC adjudicatory proceeding unless these requirements are met." Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,221 (Jan. 14, 2004).

CLI-04-36, 60 NRC 631 (2004); Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-14, 48 NRC 39, 41 (1998); 10 C.F.R. §§ 54.4, 54.21 (a) and (c).

The scope of the environmental review is limited in accordance with 10 C.F.R. §§ 51.71(d) and 51.95(c). See Fla. Power& Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3,11-13 (2001). As reflected in Turkey Point, consideration of environmental issues in the context of license renewal proceedings is specifically limited by 10 C.F.R. Part 51 and by the NRC's "Generic Environmental Impact Statement (GEIS) for License Renewal of Nuclear Plants" (NUREG-1437) ("GEIS"). Id. A number of environmental issues potentially relevant to license renewal are classified in 10 C.F.R. Part 51, Subpart A, Appendix B as "Category 1," issues, which means that "the Commission resolved the[se] issues generically for all plants and those issues are not subject to further evaluation in any license renewal proceeding." Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-01 -06, 53 NRC 138, 152-53, aff'd, CLI-01 -17, 54 NRC 3. The remaining issues in Appendix B, designated as "Category 2," must be addressed by the Applicant in its environmental report, and in the NRC's supplemental environmental impact statement for the facility at issue pursuant to 10 C.F.R. §§ 51.71 (d) and 51.95(c). Id.

2. NAWO Has Not Proposed a Valid Contention For the reasons set forth below, none of NAWO's seven proffered contentions is admissible.

NAWO Proposed Contention 1:

The No Action Alternative and Alternative Options for Providing Electric Utility Services Are Not Adequately Addressed

Basis: In Minnesota, Community-Based Energy Development (C-BED) is a statutory provision that establishes a framework within which all electric utilities serving loads in Minnesota will negotiate Power Purchase Agreements with qualifying owners. C-BED projects, such as wind/bio-fuel combustion hybrid facilities, will come on-line in the region served by Monticello to replace the energy capacity to be provided by Monticello under a renewed license.

Petition at 2-3.

Staff Response to Proposed Contention 1:

Proposed Contention 1 ("NAWO 1") is inadmissible. NAWO 1 lacks specificity and support, raises issues outside the scope of the proceeding, is immaterial, and fails to establish that a genuine dispute exists on a material issue of law or fact. See 10 C.F.R. § 2.309(f)(1)(ii)-(vi), and (f)(2). Therefore, NAWO 1 fails to meet the Commission's pleading requirements articulated in 10 C.F.R. Part 2.

For issues arising under NEPA, contentions must be based on the applicant's environmental report. See 10 C.F.R. § 2.309(f)(2); Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 130 (2004). A petitioner must provide specific information, with references to the specific portions of the applicant's environmental report "that the petitioner disputes and the supporting reasons for each dispute[.]"

10 C.F.R. § 2.309(f)(1)(vi). A petitioner must make "a fact-based argument that actually and specifically challenges the application[J" and a contention "that fails directly to controvert the application ... is subject to dismissal." Oconee, CLI-99-11, 49 NRC at 341-42 (internal citation omitted). Moreover, the Commission's contention pleading rules "require a detailed, fact-based showing that a genuine and material dispute of law or fact exists." Duke Energy Corp.

(McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-14, 55 NRC 278, 289 (2002); 10 C.F.R. § 2.309(f)(1)(vi). NAWO 1 does not establish the existence of any legal or factual dispute with the applicant. Contrary to the Commission's pleading

requirements, the contention is devoid of specific references to any portion of the application alleged to be deficient. See Petition at 2-3. NAWO's reference to "C-BED" projects is also so vague that it is virtually impossible to glean any factual information or to meaningfully assess this basis. Consequently, NAWO has failed to adequately support its contention as required by 10 C.F.R. § 2.309(f)(1)(ii), (vi) and (f)(2).

In addition, the contention is not supported by the required factual information or expert opinion, with references to specific supporting sources and documents, as required by 10 C.F.R. § 2.309(f)(1)(v). A proffered contention must be rejected "if the petitioner 'has offered no tangible information, no experts, no substantive affidavits,' but instead only 'bare assertions and speculation."' Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003) (quoting GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-06, 51 NRC 193, 208 (2000)). The contention instead consists entirely of a vague and unsupported narrative regarding the purported benefits of unspecified initiatives.

See Petition at 2-3. Since NAWO has failed to provide the requisite factual or expert support, the contention must be rejected for failing to satisfy 10 C.F.R. § 2.309(f)(1 )(v).

Further, even if NAWO 1 were accompanied by adequate support, the contention would still fail for raising issues outside the scope of this license renewal proceeding. See 10 C.F.R. § 2.309(f)(1)(iii). An applicant for license renewal is required to submit an environmental report that includes an analysis of the environmental impacts of alternatives to the proposed action. 10 C.F.R. §§ 51.45(b)(3), 5 51.53(c)(2). Accordingly, NMC submitted as part of its environmental report a discussion of alternatives to the issuance of a renewed license 5 10 C.F.R. § 51 .45(b)(3) provides that the applicant's environmental report must provide a description of alternatives to the proposed action "sufficiently complete to aid the Commission in developing and exploring, pursuant to section 102(2)(E) of NEPA, 'appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available of resources."'

for Monticello, including a "no-action" alternative whereby the license is not renewed and NMC terminates Monticello operations and decommissions the site.6 Additionally, NMC analyzed a range of alternatives to its stated purpose (renewal of its license for Monticello for power generation capability to meet system generating needs during the renewal term) that NMC deems feasible to replace the power generating capacity of the facility (purchased power and new capacity from natural gas and coal technologies). See ER at 1-2, 7-13 to 7-38. NAWO faults the renewal application for failing to consider the alternative of so-called "Community-Based Energy Development (C-BED), in which locally owned distributed and disbursed renewable energy projects provide ever increasing amounts of energy and capacity."

Petition at 2. Nonetheless, the applicant has no obligation to provide information regarding such an alternative.

The U.S. Court of Appeals for the District of Columbia Circuit and the Commission have recognized that due to the nature of a Federal action such as NRC licensing, where the project is sponsored by a private applicant and not the Government, the licensing agency's role is limited. See Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 197-99 (D.C. Cir. 1991),

cert. denied, 502 U.S. 994 (1991); Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174),

CLI-01-04, 53 NRC 31, 55 (2001). In reviewing a license application filed by a private applicant, an agency should appropriately "accord substantial weight to the preferences of the applicant and/or sponsor[,]" and "take into account the 'economic goals of the project's sponsor."' See Busey, 938 F.2d at 197; Hydro, CLI-01-04, 53 NRC at 55 (internal citations omitted). As a consequence, an alternative is reasonable, such that it must be evaluated pursuant to section 6 Applicant's Environmental Report-Operating License Renewal Stage, Monticello Nuclear Generating Plant, [NMC], at 7-1 to 7-7 (2005) (ADAMS Accession No. ML050880250) ("ER").

102(2)(E) of NEPA, only if it will achieve the goals of the project applicant.' See Busey, 938 F.2d at 197, 199; Hydro, CLI-01 -4, 53 NRC at 55.

With regard to the "no action" alternative, the Commission has explained that this alternative can simply be thought of as the maintenance of the status quo, namely, denial of the application. See Hydro, CLI-01 -04, 53 NRC at 54. The other alternatives that must be considered are only those alternatives that are reasonable and will satisfy the goals of the 7 NEPA plainly refers to alternatives to the 'major Federal actions significantly affecting the quality of the human environment,' and not to alternatives to the applicant's proposal.... An agency cannot redefine the goals of the proposal that arouses the call for action; it must evaluate alternative ways of achieving its goals, shaped by the application at issue and by the function that the agency plays in the decisional process.

Congress did expect agencies to consider an applicant's wants when the agency formulates the goals of its own proposed action. Congress did not expect agencies to determine for the applicant what the goals of the applicant's proposal should be.

Busey, 938 F.2d at 199 (internal citations omitted). But see Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664, 666 (7th Cir. 1997) (an agency cannot define a project so narrowly as to eliminate the consideration of the full range of "reasonable alternatives" pursuant to NEPA). In Simmons, the Seventh Circuit criticized the U.S. Army Corps of Engineers for narrowly defining a project to build a dam and reservoir as having the purpose of supplying two municipal entities from a single source of water (anew lake). Id. at 666-67. The applicant and the agency had accordingly limited their NEPA analysis to a consideration of single-source alternatives. Id. The Court held that by not considering alternatives to a single-source project, such as providing the two entities with water from separate sources, the agency had unlawfully eliminated from consideration a whole set of reasonable alternatives. Id. at 667-69. The Simmons Court held that the agency cannot restrict its analysis to the alternative means of achieving the applicant's goals, since it must consider all reasonable alternatives pursuant to NEPA. Id. at 669.

Ina recent decision, a Licensing Board also rejected as inadmissible an amended contention asserting that the NRC's NEPA analysis is flawed where it focuses on the purpose of providing baseload power, thereby excluding the evaluation of reasonable energy efficiency alternatives. See Exelon Generating Co.,

LLC (Early Site Permit for Clinton ESP Site), LBP-05-19, 61 NRC -, - (July 28, 2005) (slip op. at 13, 18-23). Citing the D.C. Circuit's decision in Busey and the Commission's decision in Hydro, the Board determined that pursuant to NEPA, the NRC need not examine alternatives that address "the broad and general goal of satisfying the electricity needs toward which the proposed nuclear facility is directed." Id.

(slip op. at 19). The Board ruled that the NRC should instead "focus upon evaluating the alternative means by which a particular applicant reaches its goals." Id. (emphasis in original). Inparticular, the Board noted that where an applicant (such as NMC) has the goal of generating additional baseload power, the burden is on an intervenor challenging the applicant's ER to propose reasonable alternatives to the creation of baseload power. Id. (slip op. at 20). Further, when such a contention proposes energy efficiency (or "demand side management") alternatives, the Board found that it does not set forth a "reasonable alternative" since the applicant's control of the end users of its electricity is minimal and thus the applicant would be unable to implement such an alternative in any case. Id. (slip op. at 22).

applicant's project.8 Id. at 55. 'When the purpose is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved." Id.

(citing Busey, 938 F.2d at 195; City of Angoon v. Hodel, 803 F.2d 1016,1021 (9th Cir. 1986)).

As stated above, NMC submitted information concerning a "no-action" alternative, and an evaluation of several alternatives that it deems feasible to replace Monticello's generating capacity. See ER at 7-1 to 7-38. In accordance with 10 C.F.R. §§ 51.45(b)(3) and 51.53(c)(2) and Hydro, the applicant has provided the required information concerning alternatives that it considers to be reasonable means to accomplish the goals of the project. NAWO has no basis for alleging that more is required. See Vt. Yankee Nuclear Power Corp. v. Natural Res.

Defense Council, Inc., 435 U.S. 519, 551 (1978) ("the concept of alternatives must be bounded by some notion of feasibility"). Accordingly, the contention presents no genuine dispute on any issue material to the findings the Commission must make, see 10 C.F.R. § 2.309(f)(1)(iv) and (vi), as NMC is under no obligation to propose, and it is not the duty of the NRC to consider, NAWO's C-BED option. The consideration of alternatives to the proposed action required by NEPA is limited, such that the issue of 'community-based development" initiatives suggested by the petitioner is simply beyond the scope of NMC's goals. Accordingly, NAWO 1 fails to raise issues within the scope of this proceeding, and it must be rejected. See 10 C.F.R. § 2.309(f)(1)(iii).

NAWO Proposed Contention 2:

No Safe Dose of Radiation; Radiation Monitoring Is Not Sufficient Basis: Radiation monitoring at Monticello is not adequate to ensure the protection of public health and safety. Monticello's monitoring program should take into account the "linear, no threshold" model, which is the appropriate approach to radiation risk assessment. Because there is no threshold of 8 The NRC is charged by Congress with the review of discrete license applications, not with the crafting of broader energy policy. See Hydro, CLI-01-04, 53 NRC at 55 (citing Busey, 938 F.2d at 197).

exposure below which ionizing radiation can be demonstrated to be harmless, radiation monitoring at Monticello must take into account where radiation goes.

Petition at 3.

Staff Response to Proposed Contention 2:

Proposed Contention 2 ("NAWO 2") is inadmissible. NAWO 2 lacks basis and support, is beyond the scope of this proceeding, is immaterial, fails to establish that a genuine dispute exists on an issue of law or fact, and is an impermissible attack on NRC regulations. See 10 C.F.R. §§ 2.309(f)(1)(ii)-(vi), 2.335(a). Therefore, NAWO 2 fails to meet the Commission's pleading requirements articulated in 10 C.F.R. Part 2.

The petitioner contends that "radiation monitoring at Monticello is not adequate to ensure the protection of public health and safety," and urges for "a change" in the form of additional radiation monitoring measures. See Petition at 3. The applicant, however, is already bound to follow the NRC's regulatory requirements for radiation monitoring, contained in 10 C.F.R. Part 20. See 10 C.F.R. §§ 20.1002,20.1101 (a), 50.36a, and Part 50, App. l.

According to these requirements, NMC must ensure that releases of radioactive materials are kept "as low as reasonably achievable." See 10 C.F.R. § 50.36a.

Pursuant to 10 C.F.R. § 2.335(a), "no rule or regulation of the Commission, or any provision thereof, concerning the licensing of production and utilization facilities, source material, special nuclear material, or byproduct material, is subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding[.]" A contention that amounts to a challenge to the basic structure of the Commission's regulatory process is therefore inadmissible. Phila. Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3),

ALAB-216, 8 AEC 13, 20 (1974). Furthermore, a contention must be rejected if it seeks to

impose more stringent requirements than those required by the Commission's regulations. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-87-12, 26 NRC 383, 395 (1987); Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), LBP-82-106,16 NRC 1649, 1656 (1982). An adjudicatory hearing is not the proper forum for a petitioner to offer contentions advancing generalized views about what direction regulatory policy should follow.

See Peach Bottom, ALAB-216, 8 AEC at 21 n.33. NAWO attacks NRC regulations by urging a "change" in radiation monitoring at Monticello, based on its belief that existing regulatory requirements are insufficient to protect public health and safety. See Petition at 2. Because the petitioner's contention amounts to an attack on the Commission's regulations, it is barred by 10 C.F.R. § 2.335(a) and must be rejected.

In addition, the contention raises issues outside the scope of the proceeding, and is not material to any findings that the NRC must make in its review. See 10 C.F.R. § 2.309(f)(1)(iii)-(iv). The scope of the Staff's safety review of a license renewal application is narrow, consisting of an aging management review of plant structures, systems, and components that are subject to time-limited aging analyses. See Millstone, CLI-04-36, 60 NRC at 637; 10 C.F.R. §§ 54.4, 54.21 (a) and (c). The NRC's review "focuses upon those potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs[,] and are "not intended to 'duplicate the Commission's ongoing review of operating reactors."' Turkey Point, CLI-01 -17, 54 NRC at 7 (quoting Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,946 (Dec. 13,1991)); Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-01-27, 54 NRC 385, 391 (2001) ("License renewal focuses on aging issues, not on everyday operating issues.").

NAWO 2 falls outside the scope of the proceeding as it raises an "everyday operating issue," e.g., the applicant's radiation monitoring program, which bears no relation to aging of

Monticello's structure, systems and components. See McGuire, CLI-01-27, 54 NRC at 391; McGuire, CLI-02-26, 56 NRC at 363. Moreover, with regard to radiation monitoring, the Commission specifically recognized in the Statements of Consideration accompanying its 1995 license renewal rulemaking that "[a]ll other aspects of the [current licensing basis], e.g., ...

radiation protection requirements, are not subject to physical aging processes[.J" Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,475 (May 8,1995) (emphasis added). NAWO 2 clearly is unrelated to the detrimental effects of aging at Monticello. Instead, NAWO alleges deficiencies with respect to an area already subject to ongoing regulatory oversight. The contention therefore falls outside the scope of the proceeding, is immaterial to the NRC's review, and must be rejected. See 10 C.F.R. § 2.309(f)(1)(iii)-(iv).

Lastly, the petitioner has not provided the required specific factual or legal basis to support NAWO 2. The Commission's pleading requirements prescribe "a detailed, fact-based showing that a genuine and material dispute of law or fact exists." McGuire, CLI-02-14, 55 NRC at 289. NAWO's arguments depend on entirely unsupported and speculative claims about 'where reported radiation releases go" and generalized allegations that "there is no factual basis" that existing radiation monitoring at Monticello is adequate. Petition at 3. The contention fails to highlight a genuine dispute regarding any specific portion of the application, and does no more than detail '"bald or conclusory allegations' of a dispute with the applicant."

See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 216 (2003); 10 C.F.R. § 2.309(f)(1)(vi). NAWO fails to support its arguments with any facts or expert opinion, together with supporting documents, to provide a valid basis for its claims as required by 10 C.F.R. § 2.309(f)(1)(ii) and (v). The petitioner thus fails to provide any basis for NAWO 2 as it must under 10 C.F.R. § 2.309(f)(1)(ii). See Petition at 3. NAWO's failure to provide supporting information to establish the validity of its contention requires that

the contention be rejected. See Ariz. Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, & 3), CLI-91-12, 34 NRC 149,155 (1991).

NAWO Proposed Contention 3:

Security Is Not Sufficient Basis: Monticello's security program should require Monticello to protect against a Design Basis Threat of a reasonably postulated "force on force" attack from land and/or water by 20 well-armed and well informed intruders, with inside help from at least one individual, and a "stand off" attack utilizing modern anti-tank ground warfare systems with depleted Uranium warheads capable of penetrating 3 feet of tank armor.

Petition at 3-4.

Staff Response to Proposed Contention 3:

Proposed Contention 3 ("NAWO 3") is inadmissible. NAWO 3 raises issues that are beyond the scope of the proceeding, is immaterial, fails to establish the existence of a genuine dispute on an issue of law or fact, and lacks the requisite basis and support. See 10 C.F.R. §§ 2.309(f)(1)(ii)-(vi). Therefore, NAWO 3 fails to meet the Commission's pleading requirements articulated in 10 C.F.R. Part 2.

NAWO asserts that based on "the experience of 9/1 1, a 'force on force' defense must be designed to repel an attack from land and/or water by 20 well-armed and well informed intruders, with inside help from at least one individual[]" and that "[a]nything less is tantamount to denying the reality of what we have already experienced[.]" Petition at 4. NAWO further alleges that Monticello must be able to defend against a "stand-off" attack, "in which the attacker(s) use rockets or missiles to breach critical barriers[.]" Id. To the extent the contention raises issues of terrorism, it is inadmissible in this proceeding. The Commission has held that terrorism issues are insufficiently related to the effects of plant aging to form the basis of a

litigable safety contention in a license renewal proceeding. See McGuire, CLI-02-26, 56 NRC at 364.

In the Statement of Consideration accompanying the Commission's 1995 revisions to Part 54, the Commission noted the following: "the portion of the [current licensing basis] that can be impacted by the detrimental effects of aging is limited to the design-basis aspects of the

[current licensing basis]. All other aspects of the [current licensing basis], e.g., ... physical protection (security),... are not subject to physical aging processes[.]" 60 Fed. Reg. at 22,475 (emphasis added). As the Commission has explained, "a license renewal review is narrow in scope, confined to aging analyses of the plant's structures, systems and components."

McGuire, CLI-02-26, 56 NRC at 363. According to the Commission, contentions raising terrorism issues "are, by their very nature, directly related to security and are therefore, under our rules, unrelated to 'the detrimental effects of aging."' Id. at 364. As a result, the Commission has determined that terrorism contentions "are beyond the scope of, not 'material' to, and inadmissible in, a license renewal proceeding." Id. As NAWO 3 consists solely of unsupported claims of security threats at Monticello, and has no aspect related to the detrimental effects of aging, the contention is thus beyond the scope of this proceeding and must be rejected. See 10 C.F.R. § 2.309(f)(1)(iii).

Moreover, NAWO has failed to support its contention with the required factual or expert supporting information. See 10 C.F.R. § 2.309(f)(1)(ii), (v). NAWO makes only generalized claims to support its contention, such as that anything short of the scenarios it has proposed illustrates that "security at Monticello is primarily a public relations affair." Petition at 4. NAWO fails to provide any adequate basis supporting admission of the contention, which consists of no more than "generalized suspicions[.]" See Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1& 2); CLI-03-17, 58 NRC 419, 424 (2003).

NAWO also fails to highlight any portion of the application it disputes so as to establish the existence of a genuine dispute with the applicant. See 10 C.F.R. § 2.309(f)(1 )(vi). Accordingly, the contention lacks the required specific basis and support, and is inadmissible. See 10 C.F.R. § 2.309(f)(1 )(ii), (v)-(vi).

NAWO Proposed Contention 4:

Reactor Aging Problems Will Escape Detection Until Too Late Basis: The renewal application does not provide adequate assurance that all components needing to be inspected and maintained actually will be subject to inspection and maintenance in a timely manner. Diverse inspection methods that look at the right components with the right techniques at the right times should be required. This may include, for example, "out-of-scope" pipe replacement, with testing to failure of replaced piping in multiple failure modes, so that reactor operators can know better ahead of time where weak spots need to be reinforced or replaced.

Petition at 4-5.

Staff Response to Proposed Contention 4:

Proposed Contention 4 ("NAWO 4") is inadmissible. NAWO 4 lacks the requisite basis, specificity and support, raises issues outside the scope of the proceeding, is immaterial, fails to establish the existence of a genuine dispute of law or fact, and impermissibly attacks NRC regulations. See 10 C.F.R. §§ 2.309(f)(1)(ii)-(vi), 2.335(a). Therefore, NAWO 4 fails to meet the Commission's pleading requirements in 10 C.F.R. Part 2.

As an initial matter, the contention raises issues beyond the scope of a license renewal review. Pursuant to 10 C.F.R. Part 54, applicants for license renewal must "demonstrate how their programs will be effective in managing the effects of aging during the proposed period of extended operation." Turkey Point, CLI-01 -17, 54 NRC at 8 (citing 10 C.F.R. § 54.21 (a)). An applicant must reassess "time-limited aging analyses," or those safety reviews supporting the

original license term that involved time-limited assumptions, to demonstrate the earlier analyses' continued validity or that the effects of aging will otherwise be managed during the renewal period. Id. (citing 10 C.F.R. §§ 54.21 (c), 54.29(a)(2)). The Commission's license renewal regulations exclude from the safety review "all those issues already monitored, reviewed, and commonly resolved as needed by ongoing regulatory oversight." Id. The Commission has determined that each nuclear power plant's "current licensing basis," the full set of NRC regulatory requirements and licensee written commitments for ensuring compliance with those requirements in effect at the time of a license renewal application, see 10 C.F.R. § 54.4, can effectively be maintained via the agency's continuing regulatory oversight equally during the renewal term as in the original license term. Id. at 9; 60 Fed. Reg. at 22,473.

NAWO's contention, by urging that an additional review be conducted of components (e.g., "out-of-scope" pipe replacement) that are "subject to inspection and maintenance[,]"

impermissibly seeks to broaden the scope of issues in this license renewal proceeding. See Petition at 4-5. License renewal reviews are not intended to "duplicate the Commission's ongoing review of operating reactors." 56 Fed. Reg. at 64,946. By their very definition, reactor components subject to inspection and maintenance are outside the scope of a license renewal review, as they are "routinely monitored and assessed by ongoing agency oversight and agency-mandated licensee programs." Turkey Point, CLI-01 -17, 54 NRC at 7. NAWO's contention, in asserting the necessity of "diverse inspection methods ... with the right techniques at the right times[,J" seeks no more than to duplicate the NRC's ongoing regulatory oversight programs. See Petition at 4. The contention addresses "everyday operating issues" that are unrelated to an aging analyses of the plant's structures, systems, and components.

See McGuire, CLI-01-27, 54 NRC at 391. Since these issues are beyond the scope of this license renewal proceeding, NAWO has not articulated an admissible contention. See 10 C.F.R. § 2.309(f)(1)(iii).

In addition, by seeking to impose unspecified inspection requirements in addition to those already required under NRC regulations, NAWO 4 impermissibly attacks the Commission's regulations. See 10 C.F.R. § 2.335(a). NAWO's arguments that there cannot be "adequate assurance that all components needing to be inspected and maintained actually will be subject to inspection and maintenance in a timely manner[]" rests on entirely unsupported and generalized claims. See Petition at 4-5. As articulated above, although NAWO alleges that NMC's application is deficient, it fails to state how it is deficient as required by 10 C.F.R. § 2.309(f)(1)(vi). See Petition at 4-5. Particularly, NAWO argues that additional methods that "look at the right components with the right techniques at the right times" should be required. See Petition at 4. Nevertheless, NAWO fails to specify (as required by the regulations) which components, what techniques, what time periods, and which regulations require such actions. Thus, NAWO runs afoul of the Commission's pleading requirements that contentions be pled with specificity and adequate support. See 10 C.F.R. § 2.309(f)(1)(i), (vi).

As a result, NAWO 4 is inadmissible. See Millstone, CLI-01 -24, 54 NRC at 359-60 ("An admissible contention must explain, with specificity, particular safety or legal reasons requiring rejection of the contested [licensing action].").

Moreover, the NRC's regulations have clearly delineated the scope of components that must be managed during the period of extended operation. See 10 C.F.R. § 54.4(a)(1)-(3).

Therefore, NAWO's suggestion that NMC's application is deficient because it fails to address "out of scope" piping and its associated testing is a direct challenge to 10 C.F.R. § 54.4, which requires aging management of "[p]lant systems, structures, and components" that are within its scope. Consequently, NAWO 4 is inadmissible as it impermissibly challenges the Commission's regulations. See 10 C.F.R. § 2.335(a).

NAWO 4 is also devoid of the requisite factual information or expert opinion, with

reference to supporting documents, that demonstrates a valid and adequate basis. See 10 C.F.R. § 2.309(f)(1)(ii), (v). Thus, NAWO 4 fails to demonstrate the existence of a genuine dispute on an issue of law or fact, as the contention lacks any reference to the portions of the application the petitioner finds deficient, together with supporting reasons for each dispute. See 10 C.F.R. § 2.309(f)(1)(vi), (f)(2). The Commission's pleading requirements "require a detailed, fact-based showing that a genuine and material dispute of fact or law exists." McGuire, CLI-02-14, 55 NRC at 289. NAWO 4 fails to meet these requirements, and amounts to mere "generalized suspicions.' See McGuire, CLI-03-17, 58 NRC at 424. Therefore, it must be rejected.

NAWO Proposed Contention 5:

Drinking Water for Minneapolis and St. Paul Is Not Adequately Safeguarded, and Remediation Plans in the Event of Contamination Do Not Exist Basis: The renewal application contains no mention of the potential for events at Monticello to contaminate the sole source of drinking water for Minneapolis and a significant source of drinking water for the Metropolitan Twin Cities area. Any one of any number of events, including a variety of reactor component failures, operator errors, and sabotage, is capable of contaminating this source of drinking water, the Mississippi River, to the point where it is not potable for a long period of time. A river remediation plan should be a condition for renewal.

Petition at 5.

Staff Response to Proposed Contention 5:

Proposed Contention 5 ("NAWO 5") is inadmissible. NAWO 5 lacks specificity and support, is outside the scope of the proceeding, is immaterial, fails to establish that a genuine dispute exists on a material issue of law or fact, and impermissibly attacks NRC regulations.

See 10 C.F.R. §§ 2.309(f)(1)(i)-(vi), and (f)(2), 2.335(a). Therefore, NAWO 5 fails to meet the Commission's pleading requirements in 10 C.F.R. Part 2.

As an initial matter, the contention is vague and lacking in the required supporting information. It is difficult to even determine at the outset whether NAWO 5 is about environmental or safety issues. See Petition at 5. NAWO 5 alludes to unspecified and speculative events, such as "a variety of reactor component failures, operator errors, and sabotage," that "are capable of contaminating ... the Mississippi River[.]" See Petition at 5. In either case, NAWO has not provided the specific factual or legal information necessary to support any environmental or safety claims with a valid basis. See 10 C.F.R. § 2.309(f)(1)(ii),

(v)-(vi), (f)(2); Millstone, CLI-01-24, 54 NRC at 358 (citing Oconee, CLI-99-11, 49 NRC at 333).

NAWO has the obligation to include "references to the specific portions of the application (including the applicant's environmental report ... ) that the petitioner disputes and the supporting reasons for each dispute[.]" Dominion Nuclear Conn., Inc. (Millstone Power Station, Unit 2), LBP-03-12, 58 NRC 75, 82, aff'd, CLI-03-14, 58 NRC 207 (2003). NAWO's assertions regarding the potential for events to result in the contamination of the Mississippi River are generalized and unsupported arguments. Since NAWO has failed to follow the Commission's basic pleading requirements, NAWO 5 is inadmissible.

Assuming that NAWO 5 is to be read as a contention on environmental issues, it is inadmissible pursuant to 10 C.F.R. § 2.309(f)(1)(iii) and (vi). Pursuant to these regulations, an admissible contention must raise an issue that is within the scope of the proceeding. By asserting the prospect of "component failures, operator errors, and sabotage" to contaminate the Mississippi River, NAWO 5 arguably seeks consideration of the impacts from accidents at Monticello. See Petition at 5. NAWO has failed to raise any environmental issue litigable in this proceeding. In the GEIS, the NRC has made findings for license renewal applicable generically to all nuclear power plants for the impacts of design basis and severe accidents. See GEIS at 5-114 to 5-116. These findings were codified in 10 C.F.R. Part 51, Appendix B, Table B-1. To

summarize, the NRC concluded that all the environmental impacts (including impacts to surface water sources such as the Mississippi River) of design-basis and unmitigated severe accidents are small for all nuclear power plants, and classified the impacts of design-basis accidents as a Category 1 issue. 9 Id.; 10 C.F.R. Part 51, App. B, Tbl. B-1, "Postulated Accidents."

With respect to the impacts of severe accidents, while the NRC made generic findings that the impacts of severe accidents are small for all plants, the NRC classified the issue as Category 2 because it determined that the impacts of severe accident mitigation alternatives

("SAMAs") should be analyzed on a site-specific basis. See GEIS at 5-115 to 5-116.

Accordingly, an applicant for license renewal is not required to address the impacts from severe accidents apart from SAMAs. 10 See 10 C.F.R. § 51.53(c)(3)(ii)(L), and Part 51, App. B, Tbl. B- 1, "Postulated Accidents" As explained by the Commission in the Statement of Considerations accompanying the codification of the GEIS findings in 10 C.F.R. Part 51:

In conclusion, the GEIS analysis of severe accident consequences and risk is adequate, and additional plant-specific analysis of these impacts is not required.

However, because the ongoing regulatory program related to severe accident mitigation (i.e., IPE and IPEEE) has not been completed for all plants and consideration of severe accident mitigation alternatives has not been included in an EIS or supplemental EIS related to plant operations for all plants, a site-specific consideration of severe accident mitigation alternatives is required at license renewal for those plants for which this consideration has not been performed.

9 In particular, the GEIS already has evaluated the radiation dose and adverse health effects resulting from severe accidents, in which radioactive contaminants are released and deposited onto open bodies of water (the "drinking-water pathway"). GEIS at 5-49 to 5-65. The GEIS evaluates all plants by adjacent water body category. Id.at 5-51. Overall impacts from design-basis accidents, and severe accidents (including the drinking-water pathway), were determined to be of small significance for all plants.

Id.at 5-114 to 5-115. NMC has incorporated by reference these generic findings in its environmental report. See ER at 4-2, and Tbl. A-1, Nos. 75-76.

10 See also Turkey Point, LBP-01-06, 53 NRC at 161 ("section 51.53(c) does not require the Applicant broadly to consider severe accident risks. Rather, it only requires the Applicant to consider

'severe accident mitigation alternatives' (SAMAs). 10 C.F.R. § 51i.53(c)(3)(ii)(L). The Commission, therefore, has left consideration of SAMAs as the only Category 2 issue with respect to severe accidents[.]").

See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,481 (June 5, 1996) (emphasis added).

By alleging that the application is deficient for failing to adequately address the potential for events or accidents to contaminate the Mississippi River, the petitioner impermissibly urges the reopening of the NRC's generic findings in the GEIS. Pursuant to 10 C.F.R. Part 51, however, environmental effects that were previously found to be similar for all plants "need not be assessed repeatedly on a site-specific basis, plant-by-plant." Turkey Point, CLI-01-17, 54 NRC at 11 (citing 10 C.F.R. § 51.53(c)(3)(i)). NAWO's contention does not assert that any of the generic findings regarding the impacts of design-basis or severe accidents are incorrect and thus should be revisited, and alleges no deficiency with respect to NMC's analysis of SAMAs. See Turkey Point, CLI-01 -17,54 NRC at 12; 10 C.F.R. § 51.53(c)(3)(ii)(L). NAWO 5, in proposing the examination of the potential for "reactor component failures, operator errors, and sabotage" to contaminate the Mississippi River, thus raises issues that are outside the scope of this proceeding and immaterial to the findings that the Commission must make." See Petition at 5; 10 C.F.R. § 2.309(f)(1)(iii)-(iv). Therefore, the contention must be rejected as inadmissible in this proceeding.

On the other hand, if NAWO 5 is read as a contention on safety issues, it is inadmissible pursuant to 10 C.F.R. § 2.309(f)(1)(iii) and (vi) for raising issues that are beyond the scope of this proceeding and immaterial. NAWO contends that the application is deficient because it "contains no mention of the potential for events at Monticello to contaminate the ....

11 Furthermore, to the extent NAWO asserts a remediation plan for the Mississippi River should be considered in this proceeding, NAWO 5 again fails to identify a genuine dispute on an issue of law or fact. See 10 C.F.R. § 2.309(f)(1)(vi). There is no requirement for an application to consider a remediation plan of the type proposed by NAWO. NRC regulations require an applicant for license renewal to include in its environmental report a description of all permits and approvals governing water use and of the status of compliance with such requirements. See 10 C.F.R. § 51.45(d). In relevant part, NMC's ER has already adequately described its National Pollutant Discharge Elimination System (NPDES) permit in compliance with the Clean Water Act and NRC regulations.. See ER at 3-4 to 3-8, 9-2, B-1 to B-33.

Mississippi River[.]" Petition at 5. Because "any number of events" may contaminate the River, NAWO asserts that a remediation plan should be put into place as a condition for the grant of a renewed license for Monticello. Id.

First, NAWO again raises issues outside the scope of this proceeding. See 10 C.F.R. § 2.309(f)(1)(iii). The issue NAWO seeks to raise, the safety aspects of a facility's location near surface water bodies, is a facility siting issue addressed pursuant to 10 C.F.R. Part 100. In pertinent part, 10 C.F.R. § 100.10(c)(3) provides that among the physical characteristics used to evaluate a site:

hydrological characteristics of the proposed site may have a bearing on the consequences of an escape of radioactive material from the facility. Special precautions should be planned if a reactor is to be located at a site where a significant quantity of radioactive effluent might accidentally flow into nearby streams or rivers or might find ready access to underground water tables.

10 C.F.R. § 100.1 0(c)(3). As the Commission noted in Turkey Point, "safety issues [that] were thoroughly reviewed when the facility was first licensed" are not required to be reassessed during a license renewal review. See CLI-01-17, 54 NRC at 7-8. A license renewal review focuses only on those structures, systems, and components requiring an aging management review. See McGuire, CLI-02-26, 56 NRC at 363-64; 10 C.F.R. §§ 54.4, 54.21(a) and (c).

NAWO 5, however, arguably addresses a siting issue, and not the effects of aging on any structure, system, or component at Monticello. As the issues raised are immaterial and beyond the scope of this proceeding, NAWO 5 is inadmissible. See 10 C.F.R. § 2.309(f)(1)(iii)-(iv).

NAWO Proposed Contention 6:

Inadequate Accounting of Reactor Operating Parameters in an Era of Global Warming Basis: The application incorrectly presumes that Mississippi River flow rates and temperatures will not be significant factors affecting reactor operations through

the re-license period. Climate change will affect historical low flow occurrences on the Upper Mississippi River, diminish the ability of the River to accommodate Monticello nuclear operations under a renewed license, and reduce the ability of Monticello nuclear operations to be conducted without significant adverse economic, public health, safety and environmental consequences.

Petition at 5.

Staff Response to Proposed Contention 6:

Proposed Contention 6 ("NAWO 6") is inadmissible. NAWO 6 falls outside the scope of the proceeding, is immaterial, lacks the required basis and support, and fails to establish the existence of a genuine dispute on an issue of law or fact. See 10 C.F.R. § 2.309(f)(1)(ii)-(vi).

Therefore, NAWO 6 fails to meet the Commission's pleading requirements in 10 C.F.R. Part 2.

NAWO contends that "altering climactic [sic] conditions" will impact the flow of the Mississippi River, thereby "diminishing the ability of Monticello nuclear operations to be conducted without significant adverse economic, public health, safety and environmental consequences." Petition at 5. The issue of climate change, however, is of generic applicability to all nuclear plants. Thus, NAWO 6 does not relate specifically to the detrimental effects of aging specifically at Monticello or to any Category 2 environmental issue. See Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2),

LBP-02-04, 55 NRC 49, 88 (2002), rev'don othergrounds, CLI-02-14, 55 NRC 278, and aff'd andrev'don other grounds, CLI-02-17, 56 NRC 1. Contentions in license renewal proceedings that are unrelated to the effects of aging or plant-specific Category 2 issues are beyond the scope of the proceeding and must be rejected. See Turkey Point, CLI-01-17, 54 NRC at 7-12; 10 C.F.R. § 2.309(f)(1)(iv). For the same reason, the contention is immaterial to the findings the NRC must make in its review of the application, and the contention is inadmissible. See 10 C.F.R. § 2.309(f)(1)(iv).

Further, pursuant to 10 C.F.R. § 2.309(f)(1)(ii) and (v), a petitioner must explain the basis for its contention and provide facts or expert opinion, with reference to specific sources, that substantiate its contention. NAWO provided no information supporting its claims that climate change will affect either the flow of the Mississippi River or operations at Monticello, and points to no portion of the application that it alleges to be deficient. See Petition at 5. NAWO's prediction that operations at Monticello will be adversely affected by climatic alterations rest entirely on unfounded speculation. Id. NAWO 6 also fails to discuss any specific portion of the application that it asserts to be deficient. Id. As a result, NAWO 6 lacks specificity and support, fails to demonstrate the existence of a genuine dispute on any issue with the applicant, and is inadmissible. See 10 C.F.R. § 2.309(f)(1)(ii), (v)-(vi). NRC regulations require that NAWO make more than unsupported assertions. They require that NAWO offer actual support for its positions. NAWO has provided none. Accordingly, the contention must be rejected.

NAWO Proposed Contention 7:

Severe Accident Mitigation Analysis Is Not Adequate Basis: The severe accident mitigation analysis in the application is unacceptably lacking in preparedness for severe accident scenarios. There is no reason to believe that public notification in the event of an event will occur in a timely fashion, or who will determine that such notification is warranted and actually make the call, or what criteria they will use to determine if public notice is warranted. What will happen to in the event of an evacuation is totally unexamined.

Petition at 5-6.

Staff Response to Proposed Contention 7:

Proposed Contention 7 ("NAWO 7") is inadmissible. NAWO 7 falls outside the scope of the proceeding, is immaterial, lacks the necessary specific factual and legal support and basis, and constitutes an attack on NRC regulations. See 10 C.F.R. §§ 2.309(f)(1)(ii)-(v), 2.335(a).

Therefore, NAWO 7 fails to meet the Commission's pleading requirements in 10 C.F.R. Part 2.

Although the petitioner casts this contention as one concerning SAMAs, in actuality the issues raised pertain to emergency planning and response. Compare Petition at 5 ("The severe accident mitigation analysis in the Application is unacceptably lacking . . . ") with Petition at 6 (discussion of upreparedness," "public notification," and "evacuation"). NAWO asserts that in the event of an accident or event, "events will essentially run their course amidst chaos" based on the applicant's "shallow preparedness for severe accident scenarios." Id. at 5-6. The petitioner also contends that the public will receive insufficient notification in the event of an emergency, and that what would happen in the event of an evacuation is unknown. Id. at 6.

The petitioner further claims that "[h]istory on Prairie Island suggests that workers will just split as fast as they can." Id.

The contention raises issues outside the scope of this license renewal proceeding. The Commission has specifically held that emergency planning issues are beyond the scope of license renewal reviews. See Millstone, CLI-04-36, 60 NRC at 640-41; Turkey Point, CLI-01-17, 54 NRC at 9 ("[The requirements for emergency planning] are independent of license renewal and will continue to apply during the renewal term.... Emergency planning, therefore, is one of the safety issues that need not be re-examined within the context of license renewal."). As noted by the Commission in the Statement of Consideration accompanying its license renewal rulemaking:

Through its standards and required exercises, the Commission ensures that existing plans are adequate throughout the life of any plant even in the face of changing demographics and other site-related factors. Thus, these drills, performance criteria, and independent evaluations provide a process to ensure continued adequacy of emergency preparedness in light of changes in site characteristics that may occur during the term of the existing operating license, such as transportation systems and demographics. There is no need for a licensing review of emergency planning in the context of license renewal.

56 Fed. Reg. at 64,966. Accordingly, the petitioner's contention, in urging a review of "the failures and shortcomings" of emergency preparedness at Monticello, raises no more than "everyday operating issues." See McGuire, CLI-01 -27, 54 NRC at 391; Turkey Point, CLI-01-17, 54 NRC at 7. NAWO's contention in no way relates to the detrimental effects of aging at Monticello, as it focuses on an area already subject to ongoing regulatory oversight.

The contention therefore falls outside the scope of the proceeding, is immaterial to the findings the NRC must make, and must be rejected. See 10 C.F.R. § 2.309(f)(1)(iii)-(iv).

The petitioner also ignores 10 C.F.R. § 50.47(a)(1), which specifically states that no finding regarding the adequacy of emergency plans need be made in the case of an application for license renewal. As the Commission has removed emergency planning from the scope of license renewal by rule, the petitioner's contention that emergency planning be addressed in this proceeding amounts to an attack upon the Commission's regulations. Pursuant to 10 C.F.R. § 2.335(a), NAWO 7 is therefore inadmissible.

Finally, as with its other contentions, NAWO once again fails to adequately support NAWO 7 with the necessary factual or expert information, reference to specific supporting documents, reference to specific portions of the application it disputes as deficient, and basis to support the validity of the issues raised. See 10 C.F.R. § 2.309(f)(1)(ii), (v)-(vi). Since the contention consists of no more than "bald or conclusory allegation[s]," it is inadmissible and must be rejected. See Millstone, CLI-01-24, 54 NRC at 358.

CONCLUSION NAWO has failed to demonstrate its standing to intervene in this proceeding, and has failed to proffer an admissible contention. Therefore, the Licensing Board should deny its Petition.

Respectfully submitted, Michael A. Woods Counsel for NRC Staff 8ntoni 0 nne Counsel for NRC Staff Dated at Rockville, Maryland this 3rd day of August, 2005

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

NUCLEAR MANAGEMENT ) Docket No. 50-263 COMPANY, LLC )

)

(Monticello Nuclear Generating Plant) )

NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter. In accordance with 10 C.F.R. § 2.314(b), the following information is provided:

Name: Michael A. Woods Address: U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: 0 15D21 Washington, D.C. 20555-0001 Telephone Number: (301) 415-3629 Fax Number: (301) 415-3725 E-mail Address: maw2 ©nrc.qov Admissions: Supreme Court of Georgia Court of Appeals of Georgia Superior Court of Fulton County, Georgia Name of Party: NRC Staff Respectfully submitted, Michael A. Woods Counsel for NRC Staff Dated at Rockville, Maryland this 3rd day of August, 2005

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

NUCLEAR MANAGEMENT ) Docket No. 50-263 COMPANY, LLC

)

(Monticello Nuclear Generating Plant) )

NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter. In accordance with 10 C.F.R. § 2.314(b), the following information is provided:

Name: Antonio Fernandez Address: U.S. Nuclear Reaulatorv Commission Office of the General Counsel Mail Stop: 0 15D21 Washington, D.C. 20555-0001 Telephone Number: (301) 415-8339 Fax Number: (301) 415-3725 E-mail Address: axf2@nrc.gov Admissions: Court of Appeals of Maryland Name of Party: NRC Staff Respectfully submitted, ntonio F mrnndez Counsel for NRC Staff Dated at Rockville, Maryland this 3rd day of August, 2005

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

NUCLEAR MANAGEMENT ) Docket No. 50-263 COMPANY, LLC )

)

(Monticello Nuclear Generating Plant) )

CERTIFICATE OF SERVICE I hereby certify that copies of the "NRC STAFF ANSWER TO PETITION TO INTERVENE AND REQUEST FOR HEARING OF THE NORTH AMERICAN WATER OFFICE,"

"NOTICE OF APPEARANCE" for Michael A. Woods, and "NOTICE OF APPEARANCE" for Antonio Fernandez in the above-captioned proceeding have been served on the following through deposit in the NRC's internal mail system, with copies by electronic mail, as indicated by an asterisk, or by U.S. mail, first class, as indicated by double asterisk, with copies by electronic mail this 3rd day of August, 2005:

Office of the Secretary* David R. Lewis, Esq.**

ATTN: Docketing and Service Pillsbury Winthrop Shaw Pittman, LLP Mail Stop: 0-16C1 2300 N Street, N.W.

U.S. Nuclear Regulatory Commission Washington, DC 20037-1128 Washington, DC 20555-0001 (E-mail: david.lewis@pillsburylaw.com)

(E-mail: HEARINGDOCKETSnrc.gov)

Office of Commission Appellate Jonathan Rogoff, Esq.**

Adjudication* Vice President, Counsel & Secretary Mail Stop: O-16C1 Nuclear Management Company, LLC U.S. Nuclear Regulatory Commission 700 First Street Washington, DC 20555-0001 Hudson, WI 54016 (E-mail: jonathan.rogoff @nmcco.com)

George Crocker**

Executive Director North American Water Office P.O. Box 174 Lake Elmo, MN 55042 (E-mail: gwillc~nawo.org)

/esa ,9 As Michael A. Woods Counsel for NRC Staff