ML080300043

Answer of Entergy Nuclear Operation, Inc. Opposing Request for Hearing, Petition to Intervene and Petition for Waiver of Connecticut Residents Opposed to Relicensing of Indian Point

ML080300043
Person / Time
Site:	Indian Point
Issue date:	01/22/2008
From:	Sutton K Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	Lathrop K, Lawrence Mcdade, Richard Wardwell Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 14978
Download: ML080300043 (52)

Text

/L$9773 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED USNRC ATOMIC SAFETY AND LICENSING BOARD January 23, 2008 (8:47am)

Before Administrative Judges: OFFICE OF SECRETARY Lawrence G. McDade, Chair RULEMAKINGS AND ADJUDICATIONS STAFF Dr. Richard E. Wardwell Dr. Kaye D. Lathrop

)

In the Matter of ) Docket Nos. 50-247-LR and 50-286-LR

)

ENTERGY NUCLEAR OPERATIONS, INC. ) ASLBP No. 07-858-03-LR-BDO1 (Indian Point Nuclear Generating Units 2 and 3) ))

)

ANSWER OF ENTERGY NUCLEAR OPERATIONS, INC. OPPOSING REQUEST FOR HEARING, PETITION TO INTERVENE AND PETITION FOR WAIVER OF CONNECTICUT RESIDENTS OPPOSED TO RELICENSING OF INDIAN POINT Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Martin J. O'Neill, Esq.

William C. Dennis, Esq.

COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC January 22, 2008 TFef)l Pd- 6)/-03 7

5 C- OX09

TABLE OF CONTENTS Page I. INTRODUCTION ................................................. 1 II. BACKGROUND *2 I1. STA ND IN G ................................................................................................................ ... 4 A. Applicable Legal Standards and Relevant NRC Precedent .......... .................... 4

1. Traditional Standing ............................................................................. 5

2. Standing Based on Geographic Proximity ......... ........................ 6

3. Standing of Organizations ..... ................................... 7

4. Discretionary Intervention ................................ 9 B. Petitioner's Standing to Intervene .................................................................... 10 IV. PETITIONER'S PROPOSED CONTENTIONS ARE INADMISSIBLE ...................... 11 A. Applicable Legal Standards and Relevant NRC Precedent ...................... .......... 11

1. Petitioner Must Submit at Least One Admissible Contention Supported by an Adequate Basis 11

2. Proposed Contentions Must Satisfy the Requirements of 10 C.F.R.

§ 2.309(f) to be Admissible............................... 12

a. Petitioner Must Specifically State the Issue of Law or Fact to Be Raised ................................ .... 13

b. Petitioner Must Briefly Explain the Basis for the C ontention ................................................................................... 13

c. Contentions Must Be Within the Scope of the Proceeding .......... 14

d. Contentions Must Raise a Material Issue ................................... 15

e. Contentions Must Be Supported by Adequate Factual Information or Expert Opinion ............................. 16

f. Contentions Must Raise a Genuine Dispute of Material Law orFact.......................... ................................ ................ 17 B. Scope of Subjects Admissible in License Renewal Proceedings ......... ...... 18

1. Scope of Safety Issues in License Renewal Proceedings ........... 20

a. Overview of the Part 54 License Renewal Process and LRA C ontent ................................................................................... 20

b. Scope of Adjudicatory Hearings on Part 54 License Renew al Issues ...................................................................... 23 i

TABLE OF CONTENTS (continued)

Page

2. Scope of Environmental Issues in License Renewal Proceedings ..... 24 C. CRORIP's Sole Proposed Contention is Not Admissible 29 I. CRORIP's Contention is Inadmissible as It Seeks to Raise a Generic Issue Challenging a Commission Regulation ....................... 30

a. Waiver of Regulations Under Section 2.335 .............. 35

b. CRORIP's Petition Fails to Meet the Criteria of 10 C.F.R.

§ 2.335 ............................................................... ..................... 36

2. CRORIP's Petition to Intervene Fails to Satisfy 10 C.F.R. § 2.309 ..... 43 D. CRORIP's Proposed Adoption of Contentions Must Be Rejected ................ 43 V. C ON C LU SIO N ................ 45 45..........................

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STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Lawrence G. McDade, Chair Dr. Richard E. Wardwell Dr. Kaye D. Lathrop

)

In the Matter of ) Docket Nos. 50-247-LR and 50-286-LR

)

ENTERGY NUCLEAR OPERATIONS, INC. ) ASLBP No. 07-858-03-LR-BD01

)

(Indian Point Nuclear Generating Units 2 and 3)) January 22, 2008 ANSWER OF ENTERGY NUCLEAR OPERATIONS, INC. OPPOSING REQUEST FOR HEARING, PETITION TO INTERVENE AND PETITION FOR WAIVER OF CONNECTICUT RESIDENTS OPPOSED TO RELICENSING OF INDIAN POINT I. INTRODUCTION In accordance with 10 C.F.R. § 2.309(h), Entergy Nuclear Operations, Inc. ("Entergy" or "Applicant"), applicant in the above-captioned matter, hereby files its Answer to "Connecticut Residents Opposed to Relicensing of Indian Point and its Designated Representative's Petition to Intervene and Request for Hearing" ("Petition") filed by Nancy Burton, jointly on her own behalf and on behalf of Connecticut Residents Opposed to Relicensing Indian Point (collectively referred to herein as "CRORIP" or "Petitioner"), on December 10, 2007. The Petition responds to the United States Nuclear Regulatory Commission's ("NRC" or "Commission") "Notice of Acceptance for Docketing -ofthe Application and Notice of Opportunity for Hearing," published in the FederalRegister on August 1, 2007 (72 Fed. Reg. 42,134) ("Hearing Notice") concerning

- Entergy's application to renew the operating licenses for the Indian Point Nuclear Generating U*nits,2-and3, alsoýreferred-to as-,Indian Point Energy Center ("IPEC"). As discussed below, the

Petitioner has not satisfied the Commission's requirements to intervene in this matter, having failed to proffer at least one admissible contention. Therefore, pursuant to 10 C.F.R. § 2.309, the Petition should be denied.

Also filed in support of its Petition is CRORIP's petition, submitted pursuant to 10 C.F.R. § 2.335, for "a waivers [sic], for purposes of the pending relicensing proceedings, of the NRC's Generic Environmental Impact Statement ("GEIS") with regard to (a) the exclusion of radiation exposures to the public and occupational radiation exposures during the license renewal term as Category 1 excluded issues which do not require site-specific analysis and (b) its use of the 'Reference Man' dose models from 1980," with the supporting affidavit of Nancy Burton. This predicate for CRORIP's proffered contention, asking for a waiver of a Commission regulation, is likewise defective, and should be denied.

II. BACKGROUND On April 23, 2007, as supplemented by letters dated May 3, 2007 and June 21, 2007, Entergy submitted an application to the NRC to renew the-IPEC, Units 2 and 3 operating licenses (License Nos. DPR-26 and DPR-64) for an additional 20 years ("Application"). The Commission's Hearing Notice stated that any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a petition. for leave to intervene within 60 days of the Notice (i.e., by October 1, 2007), in accordance with the provisions of 10 C.F.R. § 2.309.' On October *1 2007, the Commission extended the period for filing requests for hearing until November 30, 2007.' Subsequently, on November 30, 2007, Entergy subsequently submitted one amendment to the Application on December 18, 2007. See Letter from F.'

Dacimo, Entergy Vice President, License Renewal, to NRC Document Control Desk (Dec. 18, 2007), available at ADAMS Accession No. ML073650195.

72 Fed. Reg. at 42,134 (Aug. 1, 2007).

3 Extension of Time for Filing of Requests for Hearing or Petitions for Leave To Intervene in the License Renewal Proceeding, 72 Fed. Reg. 55,834 (Oct. 1, 2007).

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CRORIP filed a request that the Atomic Safety and Licensing Board ("ASLB", or "Board")

extend the deadline for filing a petition to intervene by 10 days.4 On December 5, 2007, the Board granted CRORIP's request for a 10-day extension to December 10, 2007, to file any petition to intervene and request for hearing.

• By Order dated November 27, 2007, the Board directed Entergy and the NRC Staff to file their answers to all timely petitions to intervene on or before January 22, 2008.6 As noted above, 4 Three years ago, the Commission admonished Ms. Burton, then-counsel to a petitioner, in a separate proceeding, regarding her participation in future NRC proceedings. That rebuke bears repeating here:

Finally, we join the Licensing Board in expressing displeasure at the CCAM attorney's consistent disregard for our procedural rules. As we noted just last year when criticizing CCAM's same counsel for similar dereliction, she is "no stranger [] to the NRC adjudicatory process." This is her fifth NRC adjudication since 1999, so she cannot credibly claim ignorance of our practices and procedures. As the Board's two orders in this proceeding and our own order today make clear, CCAM's attorney has repeatedly failed to provide support at the hearing for her client's contentions, as required under section 2.309(f) of our rules of practice and procedure. Further, the record in this proceeding indicates that CCAM's attorney has likewise ignored numerous other Commission adjudicatory procedures. Nor has her disregard for our procedures been limited to this proceeding. She has a similar record in four previous Millstone proceedings, where she has repeatedly failed to follow basic NRC adjudicatory procedures.

CCAM's Counsel is informed that any further disregard of our practices and procedures in future adjudications will result in reprimand, censure, or suspension pursuant to 10 C.F.R.

§ 2.314(c)(1) (providing for sanctions against any "representative of a party who refuses to comply with [the Commission's or the Licensing Board's] directions"). This ruling applies regardless of whether her representation before the NRC is as an attorney at law or otherwise.

Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 643W644 (2004) (citations omitted). Ms. Burton was more recently reminded of the foregoing by the Commission in its denial of her motion to. reopen in the Millstone operating license renewal proceeding. See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-06-04, 63 NRC 32, 38 (2006).

5 See Order (Granting an Extension of Time To CRORIP Within Which To File Requests For Hearing) (Dec. 5, 2007) (unpublished). In that Order, the Board, essentially repeating the warning by the Commission in 2004, admonished CRORIP's representative regarding its expectaiions with respect to a number of procedural matters in this proceeding: "That said, CRORIP... is now on notice that it must become familiar with and follow the Part 2 Rules and the Orders of this Board, and that failure to do so may well result in future pleadings being rejected." Id. at 3-5. (unpublished) (emphasis added)..

6 See Licensing Board Order (Granting an Extension of Time to Clearwater Within Which to File Requests for Hearing) at 3 n.8 (Nov. 27, 2007) (unpublished); see also Licensing Board Order (Clarifying Time for Entergy to File Answer to CRORIP 10 C.F.R. 2.335 Petition) at 1 (Jan. 2, 2008) (unpublished).

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CRORIP filed its Petition on December 10, 2007,7 to which Entergy now responds in accordance with the Board's schedule.

To be admitted as a party to this proceeding, Petitioner must demonstrate standing and must submit at least one admissible contention within the scope of this proceeding.Section III below describes the criteria for establishing standing under 10 C.F.R. § 2.309(d) and explains the reason why the Petitioner has satisfied the requisite criteria.Section IV below describes the standards governing the admissibility of contentions, as well as the requirements regarding petitions pursuant to 10 C.F.R. § 2.335; it demonstrates that CRORIP's Section 2.335 petition should be denied and that Petitioner's proposed contention is inadmissible. Therefore, the Petition should be denied in its entirety.

III. STANDING A. Applicable Legal Standards and Relevant NRC Precedent Both the Commission Hearing Notice for this proceeding and NRC regulations require a petitioner to set forth:: (1) the nature of its right under the Atomic Energy Act ("AEA") of 1954, as amended,, to be made a party to the proceeding; (2) the nature and extent of its property, Notwithstanding the Board's very explicit direction, Entergy received CRORIP's December 10th Petition in 17 separate, unpaginated e-mails, including ten copies of the petition itself and two copies of one of the supporting declarations. Although a paper copy of CRORIP's.petition and attachments were subsequently received, those adocumeiits (with the arguable exception of Mr. Mangano's Report and the Section 2.335 Petition and Affidavit) do not conform to the formal requirements of 10 C.F.R. § 2.304(b), which calls for documents. to be. double-spaced. See also 10 C.F.R. § 2.304(f). Despite CRORIP's failure to adhere to the Licensing Board's direction, which alone warrants rejection of its Petition, Counsel for the applicant has responded in a substantive manner.

In doing so, however, Entergy does not waive any rights to seek appropriate sanctions or other remedies in response to 'CRORIP's failure to comply with the Commission's Part 2 rules and the orders of this Board with respect to any future submissions.

In addition, by Order dated December 14, 2007, the Licensing Board stated that in accordance with the Commission's direction in Millstone, CLI-06-4, 63 NRC at 38-39, it would not act on CRORIP's filings until notified by the NRC's Office of the Secretary that the documents had been accepted. Memorandum (Regarding-the Status of the CRORIP Petition to Intervene and Section 2.335 Petition) (unpublished). The Secretary issued an order accepting the Petition' to Intervene and Section 2.3 35 Petition, but not its December 11, 2007 Motion for Leave to Add James A. Himes to. CRORIP's Membership Statement in the Petition to Intervene. See Secretary of the Commission Order (Dec. 19, 2007) (unpublished). As noted below at note 39, this Motion was denied by the Commission on January 8, 2008. Order (unpublished) (Jan. 8, 2008).

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financial, or other interest in the proceeding; and (3) the possible effect of any decision or order that may be issued in the proceeding on its interest.8 Thus, petitioner must demonstrate either that it satisfies the traditional elements of standing, or that it has presumptive standing based on geographic proximity to the proposed facility. 9 These concepts, as well as' organizational standing and discretionary intervention, are discussed below.

1. Traditional Standing To determine whether a petitioner's interest provides a sufficient basis for intervention, "the Commission has long looked for guidance to current judicial concepts of standing." 10 Thus, to demonstrate standing, a petitioner must show: (1) an actual or threatened, concrete and particularized injury that is (2) fairly traceable to the challenged action and (3) likely to be redressed by a favorable decision."1 These three criteria are. commonly referred to as injury-in-fact, causality, and redressability, respectively.

K First, a petitioner's injury in fact showing "requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured." 12 The injury must be "concrete and particularized," not "conjectural" or "hypothetical."'13 As a result, standing will be denied when the threat of injury is too speculative. 14 Additionally, the alleged

"'injury in fact" must lie within "the zone of interests" protected by the statutes governing the 8 See 72 Fed. Reg. at.42,135; 10 C.F.R. § 2.309(d)(1).

9 See Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-05-26, 62 NRC 577, 579-83 (2005).

10 Quivira Mining Co. (Ambrosia Lake Facility, Grants, N.M.), CLI-98-11, 48 NRC 1, 5-6, aff'd sub nom.

Envirocareof Utah, Inc. v, NRC, 194 F.3d 72 (D.C. Cir. 1999)(citations omitted).

• See Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 195 (1998)(citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-104 (1998); Kelley v. Selin, 42 F.3d 1501, 1508 (6th Cir.

1998).

12 Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972).

13 Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 72 (1994) (citations omitted).

14 Id.

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proceeding-either the AEA or the National Environmental Policy Act of 1969, as amended

("NEPA"). 15 The injury in fact, therefore, must generally involve potential' radiological or-environmental harm. 16 Second, a petitioner must establish that the injuries alleged are fairly traceable to the proposed action-in this case, the renewal of IPEC Unit 2 and 3 operating licenses for an additional 20 years.'17 Although petitioners are not required to show that the injury flows directly-from the challenged action, they must nonetheless show that the "chain of causation is plausible."'18 The relevant inquiry is whether a cognizable interest of the petitioner might be 19 adversely affected by one of the possible outcomes of the proceeding.

Finally, each petitioner is required to show that "its. actual or threatened injuries can be cured by some action of the [NRC]." 2 ° In other words, each petitioner must demonstrate that the injury can be redressed by a decision in this proceeding. Furthermore, "it must be likely, as 21 opposed to merely speculative that the injury will be redressed by a favorable decision."

2. Standing Based on Geographic Proximity Under NRC case law, a petitioner may, in some instances, be. presumed' to have fulfilled the judicial standards for standing based on his or her geographic proximity to a facility or source 15 Quivira Mining Co., CLI-98-1l, 48 NRC at 5.

16 See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-02-16, 55 NRC 317, 336 (2002).

'7 Sequoyah Fuels, CLI-94-12, 40 NRC at 75.

18 Id.

19 Nuclear Eng'g Co. Inc. (Sheffield, Ill. Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978).

20 Sequoyah Fuels Corp. (Gore, Oklahoma Site Decommissioning), CLI-01-2, 53 NRC 9, 13 (2001).

21 Sequoyah Fuels, CLI-94-12, 40 NRC at 76 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)

(internal quotations omitted)).

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• of radioactivity. 22 "Proximity" standing rests on the presumption that an accident associated with the nuclear facility could adversely affect the health and safety of people working or living offsite. but within a certain distance of that facility.23 The NRC has held that the proximity presumption is sufficient to confer standing on an individual or group in proceedings conducted.

pursuant to 10 C.F.R. Part 50 for reactor construction permits, operating licenses, or significant license amendments.24 The proximity presumption, which has been defined as being within a 25

• 50-mile radius of plants, applies to license renewal cases as well.

3. Standing of Organizations An organization that wishes to intervene in a proceeding may do so either in its own right (by demonstrating injury to its organizational interests), or in a representative capacity (by demonstrating harm to the interests of its members).26 To intervene in a proceeding in its own right, an organization must allege, just as an individual petitioner must, that it will suffer an.

immediate or threatened injury to its organizational interests that can be fairly traced to the

.proposed action and be redressed by a favorable decision. 27 General environmental and policy interests are insufficient to confer organizational standing. 28 Thus, for example, an organization's assertion "that it has an interest in state and federal environmental laws and in the

.22 Peach Bottom, CLI-05-26, 62 NRC at 580..

23 Id. (citations omitted).

24 Fla. Power & Light Co. (St. Lucie Nuclear. Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329 (1989)(citations omitted).

25 See CarolinaPower & Light Co., (Shearon Harris Nuclear Power Plant, Unit 1), LBP-07-11, 66 NRC 41, 52-54 (2007).

26 Yankee, CLI-98-21, 48 NRC at 195 (citing Ga. Inst. of Tech. (Georgia Tech Research. Reactor, Atlanta,.

Georgia), CLI-95-12, 42 NRC 111, 115 (1995)).

27 Georgia Tech Research Reactor, CLI-95-12, 42 NRC at 115.

28 See Int'l Uranium (USA) Corp. (White Mesa UraniumMill), CLI-01-21, 54 NRC 247, 252 (2001).

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land, water, air, wildlife, and other natural resources that would be affected" is insufficient to establish standing. 29 Where an organization is to be represented in an NRC proceeding by one of its members, the member must demonstrate authorization by that organization to represent it.30 A partnership, corporation or unincorporated association may be represented by a duly authorized member of

.officer, or by an attorney-at-law. 31 Any person appearing in a representative capacity must file with the Commission a written notice of appearance. 32 The notice of appearance must state the representative's name, address, telephone number, facsimile number, and e-mail address, if any; the name and address of the person or entity on whose behalf the representative appears, and the basis of his or her authority to act on behalf of the party.33 To invoke representational standing, an organization (1) must show that at least one of its members has standing in his or her own right (i.e., by demonstrating geographic proximity in.

cases 'where the presumption applies, or by demonstrating injury-in-fact within the zone of protected interests, causation, and redressability), (2) must identify that member by name and address, and (3) must show (e.g., by affidavit) that the organization is authorized by that member to request a hearing on behalf of the member. 34 Where the affidavit of the member is devoid of 29 Id. at 251-52.

30 See, e.g., GeorgiaInst. of Tech., CLI-95-12, 42 NRC at 115 (1995)(citation omitted).

31 See 10C.F.R. § 2.314(b).

32 See id.

3 See id.

34 See, e.g. N. States Power Co. (Monticello Nuclear Generating Plant, Prairie Island Nuclear Generating Plant, Units 1 & 2; Prairie Island Independent Spent Fuel Storage Installation), CLI-00-14, 52 NRC 37, 47 (2000);

GPU Nuclear Inc. (Oyster Creek Nuclear Generating Station), CLI-6, 51 NRC 193, 202 (2000); White Mesa, CLI-01-21, 54 NRC at 250; see also AmerGen Energy Co. LLC (License Renewal for Oyster Creek Nuclear Generating Station), LBP-06-07, 63 NRC 188, 195 (2006).

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any statement that he or she wants and has authorized the organization to represent his interests, 35 the Board should not infer such authorization.

4. Discretionary Intervention Pursuant to 10 C.F.R. § 2.309(e), a presiding officer may consider a request for discretionary intervention where a party lacks standing to intervene as a matter of right under 10 C.F.R. § 2.309(d)(1). Discretionary intervention, however, may only be granted when at least one petitioner has established standing and at least one contention has been admitted in the proceeding. 36 The regulation specifies that in addition, to addressing the factors in 10 C.F.R.§ 2.309(d)(1), a petitioner who seeks intervention as a matter of discretion, in the event it is determined that standing as a matter of right is not demonstrated, must specifically address the following factors set forth in 10 C.F.R. § 2.309(e) in its initial petition, which the Commission, ASLB, or the presiding officer will consider and balance:

(a) Factors weighing in favor of allowing intervention-

1. the* extent to which its participation would assist in developing a sound record;

2. the nature of petitioner's property, financial or other interests in the proceeding;

3. the possible effect of any decision or order that may be issued in the proceeding; (b) Factors weighing against allowing intervention-

4. the availability of other means whereby the petitioner's interest, might be protected; 35 Duquesne Light Co. (Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393, 4i1 (1984).

36 10 C.F.R. § 2.309(e); see also PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units I and 2),

LBP-07-10, 66 NRC 1, 21 n.14 (2007) ("[D]iscretionary standing [is] only appropriate when one petitioner has been shown to have standing as of right and admissible contention so that a hearing will be conducted.").

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5 the extentto which petitioner's interest will be represented by existing parties; and

6. the extent to which petitioner's participation will inappropriately broaden the issues or delay the proceeding.

Of these criteria, the primary consideration concerning discretionary intervention is the first factor-assistance in developing a sound record.37 The petitioner has the burden to establish that 38 the factors in favor of intervention outweigh those against intervention.

B. Petitioner's Standing to Intervene CRORIP, in support of the required showing of standing, provides the declarations of Nancy Burton, Gail Merrill, and Lally Codriansky. 3 9 Ms. Burton's declaration includes a further list of CRORIP members, both organizations and individuals, and the Petition itself identifies Ms. Merrill and Ms. Codriansky, in addition to Ms. Burton. The declarations of Ms. Burton and Ms. Merrill explicitly aver that they reside at distances within 50 miles of the Indian Point site, and, while Ms. Codriansky's declaration has only a blank space in this regard, Ms. Burton asserts that Ms. Codriansky's residence is similarly within 50 miles. As Ms. Merrill and Ms. Codriansky explicitly authorize CRORIP to represent their respective interests in this proceeding, Entergy does not challenge CRORIP's representation of their interests in this matter.

37 See PortlandGen. Elec. Co. (Pebble Springs Nuclear Power Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1979); see also Pub. Utils. Nuclear Corp. (Oyster Creek Nuclear Generating Station), LBP-96-23, 44 NRC 143, 160 (1996).

38 See NuclearEng'g Co., Inc., ALAB-473, 7 NRC at 745.

39 As noted above in note 7, on December 11, 2007, Ms. Burton filed a motion seeking leave to add the name of James A. Himes to the list of CRORIP members identified in its Petition, his name having been inadvertently omitted from her December 10th Petition. The Secretary of the Commission rejected this motion by Order dated December 19,. 2007, because of Ms. Burton's failure to have contacted other counsel as required by 10 C.F.R. § 2.323(b). Order (unpublished) (December 19, 2007). On December 31, 2007, Ms. Burton filed a Motion of Connecticut Residents Opposed to Relicensing of Indian Point and Its Designated Representative's

[sic] for Reconsideration with the Board, asking for reconsideration of the Commission's earlier rejection of her motion. .The Secretary of the Commission again denied CRORIP's motion in an unpublished Order dated January 8, 2008. Order (unpublished) (Jan. 8, 2008).

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The organizations identified in Ms. Burton's Declaration (at ¶ 5.A - G.), however, have not been shown to have standing on their own and, therefore, lend no weight to CRORIP's position in this regard. Similarly, except for Ms. Burton, Ms. Merrill, and Ms. Codriansky, there is no meaningful way ofjudging the standing of the other persons identified in paragraph 5.H..

In sum, Entergy does not contest CRORIP's standing to represent the interests of its three named members based on geographic proximity. 40 Judged against the previously-discussed criteria, CRORIP, through Ms. Burton, Ms. Merrill, and Ms. Codriansky, has made a showing 4

sufficient to satisfy the requirements of 10 C.F.R. § 2.309 with respect to standing. 1 IV. PETITIONER'S PROPOSED CONTENTIONS ARE INADMISSIBLE A. Applicable Legal Standards and Relevant NRC Precedent

1. Petitioner Must Submit at Least One Admissible Contention Supported by an Adequate Basis As explained above, to intervene in an NRC licensing proceeding, a petitioner must propose at least one admissible contention. 42 The NRC will deny a petition to intervene and request for hearing from a petitioner who has standing but has not proffered at least one admissible contention. 43 As the Commission has observed, "[lit is the responsibility of the Petitioner to provide the necessary information to satisfy the basis requirement for the admission 40 Ms. Burton states that her Petition is filed pursuant to 10 C.F.R. §§.2.309(d) and (e), the former pertaining to intervention as a matter of right, the latter, as a matter of discretion. The Petition, however, is devoid of any discussion of the various criteria set forth in § 2.309(e), and, thus, warrants no further discussion in this Answer; intervention as a matter of discretion is unwarranted, unsupported, and should be summarily denied.

41 There is, however, no corresponding indication, other than the assertion by Ms. Burton in her Declaration (at

¶ 15) that the organization has in turn authorized her to represent it. With no other information about the CRORIP organization-its structure and leadership-having been provided by Ms. Burton, if, notwithstanding the other flaws in CRORIP's petition, discussed below, it is permitted to intervene in this proceeding, that shortcoming should be remedied. See Ga. Power Co. (Vogtle Electric Generating Plant, Units 1 and 2),

LBP-90-29, 32 NRC 89, 92 (1990) (A group represented by a member must demonstrate that it has authorized the particular member to represent it.).

42 See 10 C.F.R. § 2.309(a).

43 Fla. Power & Light Co. (Turkey Point Nuclear Power Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 5 (2001).

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of its contentions and demonstrate that a genuine dispute exists within the scope of this proceeding.'"44 Additionally, "[a] contention's proponent, not the licensing board, is responsible for formulating the contention and providing the necessary information to satisfy the basis 5

requirement for the admission of contentions.'A

2. Proposed Contentions Must Satisfy the Requirements of 10 C.F.R. § 2.309(f) to be Admissible Section 2.309(f)(1) requires a petitioner to "set forth with particularity the contentions sought to be raised," and with respect to each contention proffered; satisfy six criteria, as discussed in detail below. An admissible contention must: (1) provide a specific statement of the legal or factual issue sought to be raised; (2) provide a brief explanation of the basis for the contention; (3) demonstrate

• that the issue raised is within the scope of the proceeding; (4) demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (5) provide a concise statement of the alleged facts.

or expert opinions, including references to specific sources- and documents that support the petitioner's position and upon which the petitioner intends to rely; and (6) provide sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact.46 The purpose of the contention rule is to "focus litigation on concrete issues and result in a clearer and more focused record for decision."A7 The Commission has stated that it "should not have to expend resources. to support the hearing process unless .there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing." 48 Thus, the rules on 44 Bait. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-14, 48 NRC 39, 41 (1998).

45 Statement of Policy on Conduct ofAdjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998).

46 See 10 C.F.R. § 2.309(f)(1)(i).(vi).

47 Final Rule Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).

48 Id.

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contention admissibility are "strict by design.'4 9 Failure to comply with any one of the six admissibility criteria is grounds for the dismissal of a contention.5 °

a. PetitionerMust Specifically State the Issue of Law or Fact to Be Raised A petitioner must "provide a specific statement of the issue of law or fact to be raised or controverted." 51 The petitioner must "articulate at the outset the specific issues [it] wish[es] to litigate as a prerequisite to gaining formal admission as [a party]." 52 Namely, an "admissible contention must explain, with specificity, particular safety or legal reasons requiring rejection of the contested [application] .,53 The contention rules "bar contentions where petitioners have only 54

'what amounts to generalized suspicions, hoping to substantiate them later."'

b. PetitionerMust Briefly Explain the Basis for the Contention A petitioner must provide "a brief explanation of the basis for the contention."5 5 This includes "sufficient foundation" .to "warrant further exploration.'" 56 Petitioner's explanation serves to define the scope of a contention, as "[t]he reach of a contention necessarily hinges upon 49 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001), pet: for recons. denied, CLI-02-1, 55 NRC 1 (2002).

SO See Final Rule Changes to Adjudicatory Process, 69 Fed. Reg. at 2221; see also PrivateFuel Storage, L.L. C.

(Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

51 10 C.F.R. § 2.309(f)(1)(i).

52 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 and 3), CLI-99-11, 49 NRC 328, 338 (1999).

.3 Millstone, CLI-01-24, 54 NRC at 359-60.

54 Duke Energy Corp. (McGuire Nuclear Station, Units I and 2; Catawba Nuclear Station, Units I and 2), CLI 17, 58 NRC 419, 424. (2003) (quoting Oconee, CLI-99-11, 49 NRC at 337-39).

s 10 C.F.R. § 2.309(f)(1)(ii); seeRules of Practice for Domestic Licensing Proceedings - Procedural Changes in the HearingProcess, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989).

56 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), ALAB-942, 32 NRC 395, 428 (1990) (footnote omitted),

13

its terms coupled with its stated bases." 57 The Board, however, must determine the admissibility 58 of the contention itself, not the admissibility of individual "bases."

c. ContentionsMust Be Within the Scope of the Proceeding' A petitioner must demonstrate "that the issue raised in the contention is within the scope of the proceeding." 59 The scope of the proceeding is defined by the Commission's notice of opportunity for a hearing and orders referring the proceeding to the Board.6 0 (The scope of license renewal proceedings, in particular, is discussed in Section IV.B, infra.) Moreover, contentions are necessarily limited to issues that are germane to the specific application pending before the Board. 61 Any contention that falls outside the specified scope of the proceeding must be rejected.62 A contention that challenges any NRC rule (or seeks to litigate a matter that is, or clearly is about to-become, the subject of a rulemaking) is outside the scope of the proceeding because, absent a waiver, "no rule or regulation of the Commission ... is subject to attack ...in any adjudicatory proceeding."63 This includes contentions that advocate stricter requirements than agency rules impose or that otherwise seek to litigate a generic determination established by a Commission rulemaking. 64 Similarly, any contention that collaterally attacks applicable statutory requirements or the basic structure of the NRC regulatory process must be rejected by

• Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC 93, 97 (1988), aff'd sub nom.

Massachusettsv. NRC, 924 F.2d 311 (D.C. Cir. 1991), cert. denied, 502 U.S. 899 (1991).

See La. Energy Servs., L.P. (National Enrichment Facility), LBP-04-14, 60 NRC 40, 57 (2004) ("licensing boards generally are to litigate 'contentions' rather than 'bases"').

59 10 C.F.R. § 2.309(f)(1)(iii).

60 See, e.g., Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790-91 (1985)..

61 Yankee, CLI-98-21, 48 NRC at 204 n.7.

62 See, e.g., PortlandGen. Elec. Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC287, 289 n.6 (1979).

63 See 10 C.F.R. § 2.335(a).

64 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-6, 53 NRC 138, 159, aft'd, CLI-01-17, 54 NRC 3 (2001).

.14

the Board as outside the scope of the proceeding.65 Accordingly, a contention that simply states 66 the petitioner's views about what regulatory policy should be does not present a litigable issue.

d. Contentions Must Raise a MaterialIssue A petitioner must 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." 67 The standards defining the findings that the NRC must make to support issuance of renewed operating licenses in this proceeding are set forth in 10 C.F.R. § 54.29. As the Commission has observed, "[t]he dispute at issue is 'material' if its resolution would 'make a difference in the outcome of the licensing proceeding.`' 68 In this regard, "[e]ach contention must be one that, if proven, would entitle the petitioner to relief.",69 Additionally, contentions alleging an error or omission in an application must establish some significant link between the claimed deficiency 70 and protection of the health and safety of the public or the environment.

65 Shearon Harris, LBP-07-I 1, 66 NRC at 57-58 (citing Phila: Elec. Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974)).

,66 See Peach Bottom, ALAB-216, 8 AEC at 20-21 n.33. Within the adjudicatory context, however, a petitioner.

may submit a request for waiver of a rule under 10 C.F.R. § 2.335(b). Conversely, outside the adjudicatory context, a petitioner may file a petition for rulemaking under 10 C.F.R. § 2.802 or request that the NRC Staff take enforcement action under 10 C.F.R. § 2.206.

61 1OC.F.R. § 2.309(f)(1)(iv).

68 Oconee, CLI-99-11, 49 NRC at 333-34; see also Rules of Practice for Domestic Licensing Proceedings-Procedural Changes. in the Hearing Process, 54 Fed. Reg. at 33,172.

69 USEC, Inc. (American Centrifuge Plant), Notice of Receipt of Application for License, 69 Fed. Reg. 61,411, 61,412 (Oct. 18, 2004).

70 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), LBP-04-15, 60 NRC 81, 89, aff'd, CLI-04-36, 60 NRC 631 (2004).

15

e. Contentions Must Be Supported by Adequate Factual Information or Expert Opinion A petitioner bears the burden to present the factual information or expert opinions necessary to support its contention adequately, and failure to do so requires that the contention be rejected. 71 The petitioner's obligation in this regard has been described as follows:

[A]n intervention petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable [the petitioner] to uncover any information that could serve as the foundation for a specific contention. Stated otherwise, neither Section 189a. of the Act nor Section [2.309] of the Rules of Practice permits the filing of a vague, unparticularized contention, followed by an endeavor 72 to flesh it out through discovery against the applicant or staff.

Where a petitioner neglects to provide the requisite support for its contentions, the Board may 73 not make assumptions of fact that favor the petitioner or supply information that is lacking.

74 The petitioner must explain the significance of any factual information upon which it relies.

With respect to factual information or expert opinion proffered in support of a contention, "the Board is not to accept uncritically the assertion that a document or other factual information or an expert opinion supplies the basis for a contention." 75 Any supporting material provided by a petitioner, including those portions thereof not relied upon, is subject to Board scrutiny, "both for what it does and does not show." 7 6 The Board will examine documents to confirm that they 71 See 10 C.F.R. § 2.309(f)(1)(v); Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 262 (1996).

72 Duke Power Co. (Catawba Nuclear Station, Units I and 2), ALAB-687, 16 NRC 460, 468 (1982), vacated in part on other grounds, CLI-83-19, 17 NRC 1041 (1983) (emphasis added).

13 See Ariz. Pub. Serv. Co. (Palo Verde Nuclear Station, Units 1 2, and 3),CLI-91-12, 34 NRC 149, 155 (1991).

14 SeeFansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 204-05 (2003).

75 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 181, affd on other grounds, CLI-98-13, 48 NRC 26 (1998).

76 See. Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61, 90, rev'd in part on other grounds, CLI-96-7, 43 NRC 235 (1996).

16

support the proposed contention(s).77 . A petitioner's imprecise reading of a document cannot be the basis for a litigable contention.7 8 Moreover,. vague ieferences to documents do not suffice-the petitioner must identify specific portions of the documents on which it relies. 79 The mere 80 incorporation of massive documents by reference is similarly unacceptable.

In. addition, "an expert opinion that merely states a conclusion (e.g., the application is.

• 'deficient,' 'inadequate,' or 'wrong') without providing a reasonedbasis or explanation for that conclusion is inadequate because it deprives the Board of the ability to make the necessary, 81 reflective assessment of the opinion as it is alleged to provide a basis for the contention."'

Conclusory statements cannot provide "sufficient" support for a contention, simply because they*

are made by an expert.82 In short, a contention "will be ruled inadmissible if the petitioner 'has offered no tangible information, no experts, no substantive affidavits,' but instead only 'bare 83 assertions and speculation."'

f ContentionsMust Raise a Genuine Dispute ofMaterialLaw or Fact With regard to *the requirement that a petitioner "provide sufficient information to show 84

• . a genuine dispute . . . with the applicant . . . on a material issue of law or fact," the Commission has stated that the petitioner must, "read the pertinent portions of the license application, including the Safety Analysis Report [("SAR")] and the Environmental Report 7 See Vt. Yankee Nuclear Power'Corp.(Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989), vacated in parton other grounds and remanded,CLI-90-4, 31 NRC 333 (1990).

78 See Ga. Inst. of Tech. (Georgia Tech Research Reactor, Atlanta, Ga:), LBP-95-6, 41 NRC 281, 300 (1995).

7 Pub. Service Co. ofN.H. (Seabrook Station, Units I and 2), CLI-89-3, 29 NRC 234, 240-41 (1989).

g" See Tenn.* Valley Auth. (Browns Ferry Nuclear Plant, Units I & 2), LBP-76-10, 3 NRC 209, 216 (1976).

81 Private Fuel Storage, LBP-98-7, 47 NRC at 181 (emphasis added); see also USEC, Inc. (American Centrifuge Plant), CLI-06-10, 61 NRC 451,472 (2006) (quoting LBP-98-7, 47 NRC at 181).

82 See American Centrifuge Plant, CLI-06-10, 61 NRC at 472.

83 Fansteel, CLI-03-13, 58 NRC at 203 (2003) (quoting GPU Nuclear,Inc., CLI-00-6, 51 NRC at 207).

84 10 C.F.R. § 2.309(f)(1)(vi).

17

[("ER")], state the applicant's position and the petitioner's opposing view," and explain why it disagrees with the applicant. 85 If a petitioner believes the SAR and the Environmental Report

("ER") fail to adequately address a relevant issue, then the petitioner is to "explain why the application is deficient."86 A contention that does not directly controvert a-position taken by the applicant in the applicationis subject to dismissal.87 An allegation that some aspect of a license application is "inadequate" or "unacceptable" does not give rise to a genuine dispute unless it is supported by facts and a reasoned statement of why the application is unacceptable in some material respect.88 B. Scope of Subjects Admissible in License Renewal Proceedings The scope of a proceeding, and, as a consequence, the scope of contentions that may be 89 admitted, is limited by the nature of the application and pertinent Commission regulations."'

Broadly speaking, license renewal proceedings concern requests to renew 40-year reactor operating licenses for additional 20-year terms. The NRC regulations, governing license renewal are contained in 10 C.F.R. Parts 51 and 54.

s Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed.

Reg. at 33;170; Millstone, CLI-01-24, 54 NRC at 358.

86 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed.

Reg. at 33,170, Palo Verde, CLI-91-12, 34 NRC at 156.

87 See Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-37, 36NRC 370, 384 (1992)

(emphasis added). Further, regarding challenges to the NRC Staff's findings, the Commission has unequivocally held that:

The adequacy of the applicant's license application, not the NRC staffs safety evaluation, is. the safety issue in any licensing proceeding, and under longstanding decisions of the agency, contentions on the adequacy of the

[content of the] SER are not cognizable in a proceeding.

US. Army (Jefferson Proving Ground Site), LBP-06-27, 64 NRC 438, 456 (2006), quoting Final Rule, Changes to the Adjudicatory Process, 69 Fed. Reg. at 2202.

88 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-!6, 31 NRC 509, 521 n.12 (1990).

89" Statement of Policy on Conduct ofAdjudicatoryProceedings, CLI-98-12, 48 NRC at 22.

18

Pursuant to 10 C.F.R. Part 54, the NRC Staff conducts a technical review of the license renewal application (,LRA") to assure that public health and safety requirements are satisfied.

Pursuant to 10 C.F.R. Part 51, the NRC Staff completes an -environmental review for license renewal, focusing upon the potential impacts of an additional 20 years of nuclear power plant operation. As the Commission has observed, "[b]oth sets of. agency regulations derive. from years of extensive technical study, review, inter-agency input, and public comment."9 ° In its 2001 Turkey Point decision, the Commission explained in detail the scope of its license renewal review process, its regulatory oversight process, and the meaning of "current licensing basis," or "CLB.'9 Key aspects of that decision and of other significant license renewal decisions are summarized below.

As further explained below, under the governing regulations in Part 54, the review of LRAs is confined to matters relevant to the extended period of operation requested by the applicant, which are not reviewed on a continuing basis under existing NRC inspection and oversight processes, including the Reactor Oversight Process ("ROP"). The safety review is limited to the plant systems, structures and components (as delineated in 10 C.F.R. § 54.4) that

• will require an aging management review ("AMR") for the period of extended operation or are.

subject to a time-limited aging analyses.92 In addition, the review of environmental issues is, 90' Turkey Point,CLI-01-17, 54 NRC at 7.

91 See id. at 6-13. Because the CLB may change while the NRC Staff is conducting its review, each year

..following submittal of an LRA (and at least three months before scheduled completion of the NRC. Staff review), an amendment to the LRA must be submitted to identify any change to the CLB that materially affects the content of the LRA, including the UFSAR. supplement. See 10 C.F.R. § 54.2 1(b). The license renewal Updated Final Safety Analysis Report ("UFSAR") supplement provides a summary of the programs and activities for managing the effects of aging and evaluation of time-limited aging analyses ("TLAAs") for the period of extended operation.. Afterissuance of a renewed operating license, the annual FSAR update required by 10 C.F.R. § 50.7 1(e) must include any structures, systems and components '.newly identified that would have been subject to an [aging management review] or evaluation of [TLAAs] in accordance with § 54.21."

10 C.F.R. § 54.37(b).

92 See 10 C.F.R. §§ 54.21(a) and (c), 54.29 and 54.30.

19

limited by. rule by the generic findings in NUREG-1437, "Generic Environmental Impact Statement ("GEIS") for License'Renewal of Nuclear Plants."993

1. Scope of Safety Issues in License Renewal Proceedings

a. Overview of the Part54 License Renewal Processand LRA Content The Commission has stated that "[a]djudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review, for our hearing process (like our Staffs review) necessarily examines only the questions our safety rules make pertinent." 9 4 The Commission has specifically limited its safety review to the matters specified in 10 CYF.R. §§ 54.21 and 54.29(a)(2), which focus on' the management of aging of certain systems, structures and components, and the review of TLAAs. 95 Specifically, applicants must "demonstrate how their programs will be effective in managing the effects of aging during the proposed period of extended operation," at a "detailed. . . 'component and structure level,' rather than at a more generalized 'system level."96 Thus, the "potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs" is the .issue that 97 defines the scope of the safety review in license renewal proceedings.

The NRC's license renewal regulations deliberately and sensibly reflect the distinction between aging management issues, on the one hand, and the ongoing regulatory process 9' See id. §§ 51.71(d) and 51.95(c).

94 Turkey Point, CLI-01-17, 54 NRC at 10; see also Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,482 n.2.

9' See Turkey Point, CLI-0l-17, 54 NRC at 7-8; Duke Energy *Corp.(McGuire Nuclear Station, Units 1 and 2),

CLI02-26, 56 NRC 358, 363 (2002).

96 Turkey Point, CLI-01-17, 54 NRC at 8 (quoting Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,462 (May 8, 1995)). If left unmitigated, detrimental aging effects can result from; for example, metal fatigue, erosion, corrosion, thermal and radiation embrittlement, microbiologically induced effects, creep, and shrinkage. See Turkey Point,CLI-01-17, 54 NRC at 7-8.

'97 Id. at 7.

20

(e.g., security and emergency planning issues) on the other. 98 The NRC's long-standing license renewal framework is premised upon the notion that (with the exception of aging management issues, the NRC's ongoing regulatory process is adequate to ensure that the CLB of operating plants provides and maintains an acceptable level of safety. 99 For that reason, the Commission explained in Turkey Point:

[CLB is] a term of art comprehending the various Commission requirements applicable to a specific plant that are in effect at the time of the license renewal application .... The [CLB] represents an "evolving set of requirements and commitments for a specific plant that are modified as necessary over the life of a plant to ensure continuation of an adequate level of safety." 60 Fed. Reg.

at 22,473. It is effectively addressed and maintained by ongoing agency oversight, review, and enforcement.1 °° For that reason, the Commission concluded that requiring a full reassessment of safety issues that were "thoroughly reviewed when the facility was first licensed" and continue to be "routinely monitored and assessed by ongoing agency oversight and agency-mandated licensee programs" would be "both unnecessary and wasteful."1 Therefore, the Commission reasonably refused to "throw open the full gamut of provisions in a plant's current licensing basis to re-analysis during the license renewal review."10 2 In accordance with 10 C.F.R. §§ 54.19, 54.21, 54.22, 54.23, and 54.25, an LRA must

.,contain general information, an Integrated Plant Assessment ("IPA"), an evaluation of TLAAs, a:

supplement to the plant's' Updated Final Safety Analysis Report ("UFSAR") (and periodic 98 Specifically, in developing Part 54, the NRC sought "to develop a process that would be both efficient, avoiding duplicative assessments where possible, and effective, allowing the NRC Staff to focus its resources on the most significant safety concerns at issue during the renewal term." Id. at 7.

99 See Final Rule, Nuclear Power Plant License Renewal; 56 Fed. Reg. 64,943, 64,946 (Dec. 13, 1991. The term "current licensing basis" is defined in 10 C.F.R. § 54.3. See also 10 C.F.R. §§ 54.29, 54.30.

'.Turkey Point, CLI-01-17, 54 NRC at 9.

101 Turkey Point, CLI-OI-17, 54 NRC.

102 1d. at 9.

21

changes to the UFSAR and CLB) during NRC review of the application, changes to the plant's Technical Specifications to manage the effects of aging during the extended period of operation, and a supplement to the ER that complies with the requirements of Subpart A of Part 51.103 An IPA is a licensee assessment reviewed by the NRC that demonstrates that a nuclear power plant's structures and components requiring aging management review ("AMR") in accordance with 10 C.F.R. § 54.2 1(a) for license renewal have been identified and that "actions have been identified and have been or will be taken . . such that there is reasonable assurance that the activities authorized by the renewed license will. continue to be conducted in accordance with the CLB . 7,,04 Only passive,. long-lived structures and components are subject to AMR.'105 Passive structures and components are those that perform their intended functions without moving parts or changes in configuration (e.g., reactor vessel, piping, steam generators),

and are not subject to replacement based on a qualified life or specified time period (i.e., "long-lived" structures and components). The TLAAs involve in-scope systems, structures, and components; consider the effects of aging; and involve assumptions based on the original 40-year operating term.*106 An applicant must (i) show that the original TLAAs will remain valid for the extended operation period; (ii) modify and extend the TLAAs to apply to a longer term, 103 NRC guidance for the license renewal process is set forth in the Generic Aging Lessons Learned Report (NUREG-1801) (".GALL Report"), the Standard Review Plan for License Renewal (NUREG-1800), and Regulatory Guide ("RG") 1.188, Standard Format and Content for Applications to Renew Nuclear Power Plant Operating License. NUREG-1555, Standard Review Plans for Environmental Reviews for Nuclear Power Plants, and its supplement, provide guidance for implementing 10 C.F.R. Part 51 environmental requirements, which ensure compliance with NEPA.

104 10 C.F.R. § 54.29(a).

105 See id* § 54.21(a)(1).

106 See id. § 54.3.

22*

such as 60 years; or (iii) otherwise demonstrate that the effects of aging will be adequately 07 managed during the renewal term.'

To meet the requirements of Part 54, applicants generally rely upon existing programs, such as inspection, testing and qualification programs. Some new activities or program augmentations alspmay be necessary for purposes of license renewal (e.g., one-time inspections of structures or components). The NRC's GALL Report, which provides the technical basis for the Standard Review Plan for License Renewal, contains the NRC Staff's generic evaluation of existing plant programs and documents the technical bases for determining the adequacy of existing programs, with or without modification, in order to effectively manage the effects of aging during the period of extended plant operation. The evaluation results documented in the GALL Report indicate that many existing programs are adequate to manage the aging effects for particular structures or components for license renewal without change.' 0 8 The GALL Report also contains recommendations concerning specific areas for which existing programs should be augmented for license renewal.10 9 Thus, programs that are consistent with the GALL Report are generally accepted by the Staff as adequate to meet the license renewal rule. "10

b. Scope ofAdiudicatorv Hearingson Part54 License Renewal Issues Contentions seeking to challenge the adequacy of the CLB for the IPEC facility are not within the scope of this license renewal proceeding."' Likewise, the question of whether 107 See id.. § 54.2 1(c)(1).

10o See GALL Report, Vol. 1, at 1.

109 See id. at 4.

10 See id. at 3.

1 Turkey Point, CLI-01-17, 54 NRC at 8-9, 23; see also AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), LBP-07-17 (slip op. at 14 n.17) (Dec. 18, 2007) (finding any challenge to the CLB .to be outside the scope of the proceeding because such issues are "(1) not .germane to aging management concerns; (2) previously have been the subject of thorough review and analysis; and, accordingly (3) need not be revisited in a license renewal proceeding.").

23

Entergy is currently in compliance with the IPEC CLB is beyond the scope of this proceeding, because "the Commission's on-going regulatory process - which includes inspection and enforcement activities -* seeks to ensure a licensee's current compliance with the CLB."'12 In.

this regard, the ASLB recently stated that "monitoring is not proper subject matter for license extension contentions."'11 3 Thus,. for example, under 10 C.F.R. § 50.47(a)(1), issues pertaining .to emergency planning are excluded from. consideration in license renewal proceedings, because

"[e]mergency planning is, by its very nature, neither germane to age-related.degradation nor unique to the period covered by the.... license renewal application."14

2. Scope of Environmental Issues in License Renewal Proceedings The NRC has promulgated regulations, 10 C.F.R. Part 51, to implement NEPA. In 1996, the Commission amended Part 51 to address the scope of its environmental review for LRAs.115 To make Part 51 more efficieht and focused, the NRC divided the environmental requirements for license renewal into generic and plant-specific components. The NRC prepared a GEIS to evaluate and document those generic impacts that are well understood. based on experience gained from the operation of the existing fleet of U.S. nuclear power plants.." 6 112 Oyster Creek, LBP-07-17 (slip op. at 14 n.17). An example of an ongoing NRC inspection and enforcement activity is the ROP.

Order Denying Pilgrim Watch's Motion for Reconsideration, ASLBP No. 06-848-02-LR, at 5 (Jan. 11, 2008)

(citations omitted) (emphasis added).

14 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC at 561 (2005).

15 See Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg.

28,467 (June 5, 1996), amended by Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 66,537 (Dec. 18, 1996).

116 See NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final.

Report, Vols. I & 2 (May 1996), available at ADAMS Accession Nos. ML040690705 and ML040690738.

24

Generic issues are identified in the GEIS as "Category 1" impacts. 1 17 These are issues on which the Commission found that it could draw "generic conclusions applicable to all existing nuclear power plants, or to a specific subgroup of plants."" 8 The Commission concluded that such issues involve "environmental effects that are essentially similar for all plants," and thus they "need not be assessed repeatedly on a site-specific basis." 119 The NRC has codified its generic findings in Table B-i, Appendix B to Subpart A of 10 C.F.R. Part 51.

Under 10 C.F.R. § 51.53(c)(3)(i), a license renewal applicant may, in its site-specific ER,' 2 ° refer to and, in the absence of new and significant information, adopt the generic environmental impact findings found in Appendix B, Table B-I, as Category 1 issues. An applicant, however, must address environmental issues for which the Commission was not able to make generic environmental findings.121 Specifically, an ER must "contain analyses of the environmental impacts of the proposed action, including the impacts of refurbishment activities, if any, associated with license renewal and the impacts of operation during the renewal term," for those issues listed at 10 C.F.R. § 51.53(c)(3)(ii) and; identified as "Category 2," or "plant specific," issues in Table B-i.122 117 GEIS, Vol. 1, at 1-5 to 1-6.

118 Turkey Point,CLI-O1 -17, 54 NRC at Ii (citing 10 C.F.R. Part 51, Subpart A, App. B).

119 Id.

120 NRC regulations require an LRA to include an ER describing the environmental impacts of the proposed action and alternatives. See 10 C.F.R. §§ 51.53(c), 54.23. The ER is intended to assist the NRC Staff prepare the agency's independent environmental impact statement. See Curators of the Univ. of Mo., CLI-95-8, 41 NRC 386, 396 (1995)(citing NRC regulations). The NRC Staff ultimately prepares a draft and final site-specific supplement to the GEIS for each plant, using the ER and other independent sources of information. See 10 C.F;R. §§ 51.71(d), 51.95(c).

121 10 C.F.R. §.51.53(c)(3)(ii).

122 The Commission has described those issues as involving environmental impact severity levels that "might differ significantly from one plant to another," or impacts for which additional plant-specific mitigation measures should be considered. Turkey Point,CLI-01-17, 54 NRC at 11.

25

Furthermore, in its ER, an applicant must include "any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware," even if a matter would normally be considered a Category 1 -issue.123 The supplement to the GEIS similarly must include evaluations of site-specific Category 2 impacts and any "new and significant information" regarding generic Category 1 impacts.' 24 NRC regulatory guidance defines "new and significant information" as follows:

(1) information that identifies a significant environmental issue that was not considered in NUREG-1437 and, consequently, not codified in Appendix B to Subpart A of 10 CFR Part 51, or (2) information that was not considered in the analyses summarized in.

NUREG-1437 and that leads to an impact finding different from that codified in 10-CFR Part 51.125.

In the ongoing Vermont Yankee and Pilgrim license renewal proceedings, the presiding Licensing Boards discussed the regulatory history of the "new and significant information" provision, and applied that provision in rejecting certain proposed contentions.126 In short, when first proposed, the NRC's Part 51 license renewal*environmental regulations -did not include the 27 current provision, 10 C.F.R. § 51.53(c)(3)(iv), regarding "new and significant information."'1 The NRC added the provision in response to suggestions by the Environmental Protection 123 10 C.F.R. § 51.53(c)(3)(iv); see also Turkey Point, CLI-01-17, 54.NRC at 11; Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-14, 55NRC 278, 290.(2002).

124 10 C.F.R. § 51.53(c)(3)(ii); (iv).

125 RG 42, Supp. 1, "Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses, 4.2-S-4 (Sept. 2000), available at ADAMS Accession No. ML003710495

(,RG4.2SI"). See also Nat'l Comm. for the New River, Inc. v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004).

(referring to "new information [regarding the action which] shows that the remaining action will affect the quality of the environment 'in a significant manner or to a significant extent not already considered"') (quoting Marsh v* Or. Nat. Res. Council, 490 U.S. 360, 374 (1989)).

126 See Entergy Nuclear Vt. Yankee, LLC. (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 155-59 (2006), aff'd, CLI-07-3, 65 NRC 13, recons. denied, CLI-07-13, 65 NRC 211 (2007); Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),. LBP-06-23, 64 NRC 257, 288, 294-300 (2006), aff'd, CLI-07-3, 65 NRC 13, recons. denied, CLI-07-13, 65 NRC 211.(2007).

127 See Proposed Rule, Environmental Review for Renewval of Operating Licenses, 56 Fed. Reg. 47,016, 47,027-028 (Sept. 17, 1991).

26

Agency ("EPA") and the Council on Environmental Quality ("CEQ") that the NRC expand "the framework for consideration of significant new information."1 2 8 At that time, in SECY-93-032, the NRC Staff had explained that adding Section 51.53(c)(3)(iv) would not affect license renewal adjudications because "[1litigation of environmental issues in a hearing will be limited to unbounded category 2 and category 3 issues unless the rule is suspended or waived.' 29 In a public briefing concerning SECY-93-032, as well as the EPA and CEQ comments, the NRC confirmed that a. successful petition for rulemaking (if the new information was generic), or a petition for a rule waiver (if the new information was plant-specific), would be necessary to litigate previously-determined generic findings at NRC. adjudicatory hearings on LRAs.13 0 The Commission ultimately approved the changes to the proposed rule and specifically endorsed SECY-93-032..13113 The Statement of Considerations for the final rule refers to SECY-93-032, 32 In Turkey Point, the Commission reaffirmed the forgoing conclusions in a formal adjudicatory decision133 and summarized the appropriate procedural vehicles for "revisiting" generic environmental determinations relevant to license renewal as follows:

Our rules thus provide a number of opportunities for individuals to alert the Commission to new and significant information that might render a generic finding invalid, either with respect to all nuclear power plants or for one plant in particular. In the hearing process, for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may 128 Final Rule, Environmental Review for Renewal of Nuclear Plant Operating Licenses, 61 Fed. Reg. at 28,470.

129 SECY-93-032, Memorandum from James M. Taylor, Executive Director for Operations ("EDO"), to the Commissioners, "

Subject:

10 CFR Part 51 Rulemaking on Environmental Review for Renewal of Nuclear

• Power Plant Operating Licenses" at 4 (Feb. 9, 1993) at 4, available at ADAMS Accession No. ML072260444.

(Category 2 and 3 issues were eventually combined into Category 2).

130 See Pub. Meeting Tr., Briefing on Status of Issues and Approach to GEIS Rulemaking for Part 51, at 20-22

• (Feb. 19, 1993), availableat ADAMS Accession No. ML072070193.

131 See Memorandum from Samuel J. Chilk, Secy, to James M. Taylor, EDO (Apr. 22, 1993), available at ADAMS Accession No. ML003760802.

132 Final Rule, Environmental Review for Renewal of Nuclear Plant Operating Licenses, 61 Fed. Reg. at 28,474.

133 Turkey Point, CLI-01-17, 54 NRC at 12, 22,23 (2001).

27

seek a waiver of the rule. See 10 C.F.R. § [2.335] [internal citation omitted]. Petitioners with evidence that a generic finding is incorrect for all plants may petition the Commission to initiate a fresh rulemaking. See 10 C.F.R. § 2.802. Such petitioners may also use the SEIS notice-and-comment process to ask the NRC to forgo use of the suspect generic finding and to suspend license renewal proceedings, pending a rulemaking or updating of the GEIS. See 61 Fed. Reg. at 28,470; GEIS at 1-10 to 1_11.T1 Accordingly, the Commission has held-most recently in the Vermont Yankee and Pilgrim license renewal proceedings-that because the .generic environmental analyses of the GEIS have been incorporated into NRC regulations, "the conclusions of [those] analys[es] may not be challenged in litigation unless the rule [10 C.F.R. § 51.53(c)(3)(i)] is waived by the Commission for a particular proceeding or the rule itself is suspended or. altered in a rulemaking proceeding."' 35 The Commission emphasized that "[a]djudicating Category 1 issues site by site based- merely on a claim of 'new and significant. information,' would defeat the purpose of resolving generic issues in a GEIS."' 3 6 In fact, the U.S. Supreme Court has specifically upheld the Commission's authority to discharge its responsibilities under NEPA through generic 37 rulemaking.'

134 Id. at 12 (emphasis added).

135 3 Vermont Yankee, CLI-07-3, 65 NRC at 17-18; see also Turkey Point, CLI-01-17, 54 NRC at 12; Vermont Yankee, LBP-06-20, 64 NRC at 155-59; Pilgrim, LBP-06-23, 64 NRC at. 288, 294-300 Shearon Harris, LBP-07-11, 66 NRC at 64 (citing the foregoing cases). The Pilgrim and Vermont Yankee decisions have been appealed to the United States Court of Appeals for the First Circuit in Massachusetts v. NRC, Docket Nos. 07-1482 and 07-1493:

Vermont Yankee, CLI-07-3, 65 NRC at 21.

• See Balt. Gas & Elec. v. NRDC, 462 U.S. 87, 100-01 (1983) ("Administrative efficiency and consistency of decision are both furthered by a generic determination of [environmental impacts] without needless repetition of the litigation in individual proceedings."); see also. Tribune Co. v. FCC, 133 F.3d 61, 68 (D.C. Cir. 1998)

(citations omitted) ("[I]t is hombook administrative law that an agency need not-indeed should not-entertain a challenge to a regulation, adopted pursuant to notice and comment,: in an adjudication or licensing proceeding.").

28

C. CRORIP's Sole Proposed Contention is Not Admissible CRORIP's sole contention, EC-1, states:

Health risks from the cumulative effects of radiation exposure traceable to Indian Point routine and accidental releases during the projected relicensing term are substantial, have not been adequately accounted for in the RLAt 1 381 and constitute- new information which must be but which has not been analyzed under 10 CFR Part 51.139 CRORIP bases its proposed contention principally on past releases from Indian Point forl the period of 1970 to 1993, which, it contends, makes Indian Point's emissions "the fifth highest of 72 nuclear power stations then operating in the U.S .... ," as well as on increases in "fission gases from fourth-quarter 2001 to 1st quarter 2002 .... including a 15-fold increase for Xenon- 133.'140 According to CRORIP, "these facts provide a basis for concern about the

• potential releases of radiation during the projected relicensing period as the facility ages and cracks and leaks which have been detected currently inevitably worsen over time."141 CRORIP further alleges that "these facts also suggest an upward trending of radiological releases. contrary to the RLA [sic], which asserts that radiological releases will continue at

'current' levels.'14 This issue of environmental and health consequences of radiation is material to the NRC's license renewal decision, CRORIP contends, because "continued Indian Point operations beyond the current licensing period will subject the public to undue health and safety risks which have not been adequately analyzed."'143 Citing the attached declarations of Joseph J.

138 Presumably, this reference is to the "License Renewal Application" initially identified by CRORIP as the "LRA" (Petition at 1).

139 Petition at 4.

140 Id.

141 id.

142 Id.

143 Id. at 4-5.

29

Mangano ("Mangano Declaration") and Helen M. Caldicott ("Caldicott Declaration"), 144 CRORIP asserts that information regarding a purported "statistical link between elevated levels of strontium-90 detected in baby teeth of children living in the region surrounding Indian Point and heightened cancer and associated disease, incidence. in the same region has been made public" and should have been addressed in the LRA.145 Mr. Mangano, in his declaration, incorporates by reference his appended September 12, 2007 report entitled, "Public Health Risk toFairfield County of Keeping the Indian Point Nuclear Reactors Open" ("Mangano Report").

1. CRORIP's Contention is Inadmissible as It Seeks to Raise a Generic Issue Challenging a Commission Regulation Conspicuously absent from the Petition, as well as from the supporting declarations of Mr. Joseph J. Mangano and Dr. Helen M. Caldicott, is any assertion or information showing that the applicant has not and is not operating Indian Point Units 2 and 3 in accordance with the.

Commission's requirements with respect to radiological. releases.146 More importantly, there is no basis for concluding that the pending application fails to satisfy NRC requirements for license renewal in. 10 C.F.R. Part 54.

To the contrary, it is evident from the Petition, as well as from the declarations of Mr. Mangano and Dr. Caldicott, that despite the inclusion of references to Indian Point in their materials147 and the bald assertion that the information is new, the issue CRORIP wishes to raise is clearly a generic matter which challenges a Commission regulation with respect to health

'144 Mr. Mangano is Executive Director of the Radiation and Public Health Project. Dr. Caldicott is a physician, certified as a member of the Royal Australasian College of Physicians in Pediatrics and a diplomate of the American Board of Pediatrics.

145 Petition at 5.

• 46 See 10 C.F.R. Part 20.

147 For that matter, it is not evident that either Mr. Mangano or Dr. Caldicott has any familiarity with the LRA or ER. Neither the declaration of Mr. Mangano nor that of Dr. Caldicott makes any mention of either document.

To the extent that Mr. Mangano purports to make specific reference to Indian Point data in his Mangano Declaration and Mangano Report, it appears to have been obtained from other information reported on the NRC website. See, e.g., Declaration at 2 ¶¶ 4, 5, and refs. 1, 2, 4.

• 30

effects of low levels of radiation. These deficiencies, :individually and collectively, render the contention inadmissible pursuant to 10 C.F.R. § 2.309(f).

Essentially the same issue that CRORIP seeks to raise here was proffered, and rejected, in the McGuire Nuclear Station, Units 1 and 2, and Catawba Nuclear Station, Units 1 and 2, license renewal proceeding almost six years ago.1',8 There, the Board rejected a contention, again relying (in part) on studies by Mr. Mangano and by the Radiation*and Public Health Project, similarly seeking to challenge the radiological impacts of plant operations.149 Specifically, the Board found that the matter is appropriately identified'as a Category 1 issue, not requiring site-specific consideration in individual license renewal environmental reviews. The Board also held that the petitioner there had failed to establish the existence of special circumstances regarding the specific matter of that proceeding that might warrant waiving the regulation at 10 C.F.R.

§ 51.53(c)(3) and App. B, Table B-i. 150 The Board concluded:

The issue is manifestly a generic one, as applicable to all nuclear plants as to any one of the plant units at issue in this proceeding.

Therefore, even were we to consider the documents submitted in support of the contentions to constitute affidavits as required by section 2.758(b), we do not find a rule waiver to be appropriate in this proceeding. As the Commission has suggested, the Petitioners may wish to present their essentially generic concerns about radiological impacts through a petition for rulemaking under 10 C.F.R. § 2.802.151 The Board's conclusion in McGuire/Catawba, that the matters are appropriately identified as generic issues not requiring site-specific consideration in license renewal environmental reviews, is equally, appropriate here.

148 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2, Catawba Nuclear Station, Units I and 2),

LBP-02-4, 55 NRC 49 (2002).

149 Id.

150 Id. at 85-87.

151 Id. at 86-87 (citations omitted).

31

Similarly, in the Millstone Nuclear Power Station, Units 2 and 3, license renewal proceeding, Ms. Burton proffered a substantively similar contention; also supported in part by Mr. Mangano, which was rejected as unrelated to matters material to license renewal under Part 54. 15 The contention there was initially rejected because it consisted of unsupported speculation, contrary to 10 C.F.R. § 2.309, and, in any event, did not bear on any matter related to the detrimental effects of plant aging.153 The Commission, in affirming the Licensing Board's decision denying the petitioner's motion for reconsideration and petition for leave to amend its petition, reiterated its earlier view that the issue the petitioner sought to raise related to operational matters and not to license renewal, and held Our license renewal inquiry is narrow. It focuses on "the potential impacts of an additional 20 years of nuclear, power plant operation," not on everyday operational issues. Those issues are "effectively addressed. and maintained by ongoing agency oversight, review, and enforcement."

We are saying merely that a license renewal proceeding is not the proper forum for the NRC to consider operational issues. If CCAM has information supporting its claim that Millstone's operation has caused "human suffering on a vast scale," its remedy would not be a narrowly focused license renewal hearing, but a citizen's petition under 10 C.F.R. § 2.206.154 And finally, yet another contention offered by Ms. Burton in a license amendment

.proceeding, seeking to address the radiological impacts of operation at Millstone within regulatory limits, again supported by an affidavit submitted by Mr.: Mangano, was rejected as an 152 Millstone, LBP-04-15, 60 NRC at 90-9 1, aff'd, LBP-04-22, 60 NRC 379, aff'd, CLI-04-36, 60 NRC 631 (2004).

See also Millstone; CLI-06-04, 63 NRC at 37. ("But CCAM does not explain how the release of strontium-90 falls within the framework of a license renewal proceeding, which 'focuses on 'the potential impacts of an additional 20 years of nuclear power plant operation,' not on everyday operational issues.'[citation omitted].; If the Millstone facility were releasing excessive amounts of strontium-90 under its current license, that would be reason for corrective enforcement action of an 'everyday operational issue [under 10 C.F.R. § 2.206],'

Millstone, CLI-04-36, supra note 4. [It] would not be a reason for denying license renewal.");

113 Millstone, LBP-04-15, 60 NRC at 91-92.

154 Millstone, CLI-04-36, 60 NRC at 637-38 (citations omitted).

32

impermissible challenge to the Commission's regulations in 10 C.F.R. Parts 20 and 50.55 In that proceeding, related to a request to remove the Radiological Effluent Technical Specifications from the operating license itself, the petitioner offered the affidavit of Mr. Mangano. There, as

.here,.

Mr. Mangano's affidavit does not make clear whether the increased effluent releases he alleges (and which he claims will cause adverse health effects) will be within regulatory limits or violate the Commission's regulations. If the former, Mr. Mangano's assertion represents an impermissible challenge to the Commission's regulations, 10 C.F.R. Part 20 and Part 50, that establish radiological dose limits. See 10 C.F.R. § 2.758.156 The Commission, on review stated:

They [the petitioners] say they "are prepared to establish through expert testimony that any increase in routine radiological effluent to the air and water by the Millstone reactors will expose the public to greater risk of cancer, immunodeficiency diseases and other adverse health effects." See Appeal Brief at 4. But routine permissible releases occur virtually daily, and they do not remain at a constant level but go up and down routinely. All such releases are small and must remain within NRC-prescribed limits.

Regulatory limits on effluent concentrations take into account the licensee's need to. make frequent adjustments, in releases, while still imposing absolute limits on both the rate of release and the dose to the nearest member of the public. The license amendments at issue here have no bearing on the Licensee's. ability to make

• these frequent adjustments. If the Petitioners are objecting to all possible routine adjustments .in effluent releases, then their claim amounts to an impermissible general 'attack on our. regulations governing public doses at operating nuclear plants. See 10 C.F.R.

§ 2.758. Petitioners "may not demand an adjudicatory hearing to attack generic NRC requirements or regulations, or to express generalized grievances about NRC policies." Oconee, 49 NRC at 334. 157 155 Northeast.Nuclear Energy Co. (Millstone Nuclear Power Station, Units 2 and 3), LBP-01-10, 53 NRC 273, aff'd sub nom. Dominion Nuclear Conn. Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC349 (2001), recons. denied,CLI-02-1, 55 NRC 1-(2002).

156 Millstone, LBP-01-10, 53 NRC at 286-87 (citations omitted).

117 CLI-01-24, 54 NRC at 364 (citing Oconee, 49 NRC at 334).

33

Without attempting to fully catalogue his various submissions and presentations to the NRC regarding health effects associated with nuclear power plants, Mr. Mangano has presented the essence of his thesis to the NRC in various forms, including comments on environmental impact statements and in Limited Appearance statements regarding the North Anna Early Site Permit proceeding (February 2005); 158 the Oyster Creek License Renewal proceeding (July 2006 and May 2007); 159 the Grand Gulf Early Site Permit proceeding (July 2005);161 the Peach Bottom License Renewal proceeding (November 2061 and July 2002);161 the Shearon Harris License Renewal proceeding (July 2007);162 the Turkey Point License Renewal proceeding (July 2001);161 and the Diablo Canyon independent spent fuel storage installation proceeding (July 2007).164 Presenting fundamentally the same hypothesis in numerous proceedings over many years165 makes it abundantly clear that the issue CRORIP seeks to raise in this-proceeding is 1 See Pub. Mtg. Tr. (Feb. 17, 2005) (Radiation and Public Health Project, Death Rates in Central Virginia in the Vicinity of North Anna Nuclear Station (Jan. 19, 2005)), available at ADAMS Accession No. ML050750309.

159 See Letter from Joseph Mangano to NRC (July 14, 2006), available at ADAMS Accession No. ML062050309; Ltd. Appearance Session Tr. 23-27 (May 31, 2007), available at ADAMS Accession No. ML071580352; Joseph Mangano, Radioactive Contamination and Cancer Near the Oyster Creek Nuclear Reactor (May 31, 2007), availableat ADAMS Accession No. ML071650053.

160 See Letter from Joseph Mangano to NRC (July 5, 2005), available at ADAMS Accession No. ML051960026.

161 See E-mail from Joseph Mangano to NRC (Nov. 21, 2001), available at ADAMS Accession No. ML020230268; Pub. Mtg. Tr. 79-90 (July 31, 2002), available at ADAMS Accession No. ML022390448.

162 see Joseph Mangano, Patterns of Radioactive Emissions and Health Trends Near the Shearon Harris Nuclear Reactor (July 17, 2007), available at ADAMS Accession No. ML072120423; Ltd. Appearance Session Tr. 5-9 (July 17, 2007), availableat ADAMS Accession No. ML072040023.

163 See Pub. Mtg. Tr. 93-94 (July 17, 2001), available at ADAMS Accession No. ML012270223; GEIS Supp. 5, App. A, A-291 to A-307 (Jan. 2002) (Comment of the Radiation and Public Health Project (July 17, 2001)),

availableat ADAMS Accession No.020280226.

164 See E-mail from Joseph Mangano to NRC (July 2, 2007), available at ADAMS Accession No. ML071870039.

165 The Radiation and Public Health Project website includes a list of some 50 articles, letters to editors and other presentations related to a number of reactor facilities--existing and proposed-nationwide, regarding which Mr. Mangano has presented his position (in more summary form) with respect to radiation, nuclear power plants, the tooth fair project and the incidence of cancer. See http://www.radiation.org/press/index.html.

Regardless of where the facility is located (or proposed), Mr. Mangano's theme with respect to the foregoing is fundamentally the same.

34

generic in nature and has no unique tie to either license renewal or to Indian Point, despite its representations to the contrary.

CRORIP itself apparently recognizes that its proposed contention would be barred by the existing rule, but rather than seeking to propose rulemaking, has submitted, as a prerequisite to consideration of its proposed contention, its petition seeking a waiver, pursuant to 10 C.F.R.

§ 2.335 (!"Section 2.335 Petition"). Because of its pivotal role, the Section 2.335 Petition is addressed first.

a. Waiver of Rezulations Under Section 2.335 In order to seek to waive the requirements of a rule in a particular adjudicatory proceeding, a petitioner must submit a petition pursuant to 10 C.F.R. § 2.335. The requirements for a Section 2.335.petition are as follows:

The sole ground for petition of waiver or exception is that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or provision of it) would not serve the purposes for which the rule was adopted.166 Further, such a petition, must be accompanied by an affidavit that identifies the specific subject matter of the proceeding as to which the applicationof the rule or regulation (or provision of it) would not serve the purposes for which the rule or regulation was adopted.. The affidavit must state with particularitythe special circumstances alleged, to justify the waiver or.exception requested.167 If the petitioner makes a primafacie showing, then the Board shall certify the matter to the Commission. 168 If there isno primafacie showing, then the matter may not be litigated, and 166 10 C.F.R. § 2.335(b).

167 Id. (emphasis added).

168 See id. § 2.335 (c), (d).

35

"the presiding officer may not further consider the matter."'169 In this regard, the recent Commission decision in the Millstone case sets forth a four-part test for Section 2.335 petitions, under which the petitioner must demonstrate that it meets each of the following factors for a waiver to be granted: '70

i. The rule's strict application "would not serve the purposes for which [it] was adopted";*

ii. The movant has alleged "special circumstances" that were "not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived";

iii. Those circumstances are "unique" to the facility rather than "common to a large class of facilities"; and iv. A waiver of the regulation is necessary to reach a "significant safety problem.171 In summary, a Section 2.335 petition, "can be granted only in unusual and compelling circumstances."' 72

b. CRORIP's Petition Fails to Meet the Criteriaof 10 C.F.R. . 2.335.

The Section 2.335 Petition (and Nancy Burton's supporting affidavit) seeks to waive the GEIS prepared in support of license renewal, NUREG-1437, insofar as that document and "the

.categorical exclusion rule" 173 excludes from consideration in individual proceedings, as a 74

Category 1 issue, radiation exposure, and its use of the "Reference Man" dose models. -

169 Id. §.2.335(c).

17 Millstone, CLI-05-24, 62 NRC at 560 (emphasis added) (citing Seabrook, CLI-88-10, 28 NRC at 597).

171 Millstone, CLI,05-24, 62 NRC at 560 (citing Pub. Serv. Co. of N. H.' (Seabrook Station, Units 1 and 2),

CLI-89-20, 30 NRC 231, 235 (1989); Seabrook, CLI-88-10, 28 NRC 573, 597 (1988)).

172 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), ALAB-895; 28 NRC 7, 16 (1988), aff'd, CLI-88-10, 28 NRC at 597, recons denied, CLI-89-3, 29 NRC 234 (1989).

173 Although the GEIS is the underpinning of the determination that radiation exposure is a Category 1 issue, it is presumably the rule, 10 C.F.R. Part 51, Subpart A, App. B at Tml. B-I (and 10 C.F.R. § 51.53(c)(3)(ii)), from which a waiver is being sought. .

174 Section 2.335 Petition at '1; Affidavit in Support of Connecticut Residents Opposed to Relicensing of Indian Point and Its Designated Representative's 10 C.F.R. § 2.335 Petition at 1-2 ("Section 2.335 Affidavit").

36

Measured against the foregoing,. it is plain that CRORIP's Section 2.335 Petition fails to satisfy the requirements warranting a waiver of the regulations. Most fundamentally, the Section 2.335 Petition fails to substantively address the lynchpin for a waiver-a demonstration that the rule would not serve the purpose for which it was adopted.

(i) Consideration of health effects of radiation in individual license renewal proceedings is contra!y to 1O C.F.R. §51.53(c)(3)

First, Ms. Burton, in her affidavit, reiterates the NRC's reasoning for adopting the approach reflected in 10 C.F.R. § 51.53(c)(3) with respect to the evaluation of environmental impacts through a GEIS and codification of generic findings as either Category 1 or Category 2, in Table B- 1.175 She then incorrectly suggests that "the process that produced the GEIS does not includes [sic] components such as public .input and operational conditions occurring post-

.adoption of the GEIS nor progress in the evolution of standards to better protect the public health and safety from radiological exposures to workers and the public off-site.",176 In turn, the affidavit asserts that reliance on the categorization of this issue as Category 1, "removes from the proceeding arguably the most critical issue involved in continuation of operations during the license renewal term: the very health of the plant's workers and the public surrounding the plant.' 77 The affidavit speculates, relying on Mr. Mangano's declaration, that "Indian Point's radiological emissions cannot be completely disregarded as a possible factor in the high levels of 175 Section 2.355 Affidavit ¶ 7.

176 Id. ¶ 8.. Contrary to Ms. Burton's assertion that the "process that produced the GEIS" was not a public process, the rulemaking codifying the generic categorization of environmental issues for purposes of license renewal was a notice-and-comment rulemaking, offering the public an opportunityto have input to the rule. See Proposed Rule, Environmental' Review for Renewal of Operating Licenses, 56 Fed. keg. at 47,016; Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,467. In addition to the traditional notice-and-comment process, the NRC also conducted a number of public workshops and meetings to solicit public input. As part of this rulemaking, the NRC determined that the GEIS and rule will be subject to periodic review and revision...Id. at 28, 468.

7 Section 2.355 Affidavit¶ 14.A.

37

strontium-90 found in baby teeth near the plant and the correlation found between high 78 strontium-90 levels and elevated cancer incidences in the communities closest to the plant.1 And finally, regarding this factor, the Affidavit states that there have been leaks at the Indian Point facility since publication of the GEIS in 1996 and a "prospect for continued and/or worsening leakages" in the period of renewal which needs to be considered.179 As noted above, the Mangano declaration and related report, upon which admission of CRORIP's contention rests, make clear that the issue CRORIP seeks to raise is generic in nature, and that there is nothing unique to this license renewal proceeding that warrants waiver of the categorization, of this issue as Category 1. For that matter, the Burton Affidavit does not explicitly suggest otherwise.' Mr. Mangano has advanced the same fundamental hypothesis and underlying data in connection with numerous licensing actions throughout the country. While.

here, he references Indian Point, his bottom line remains the same: radiation releases from nuclear power plants operating in conformance with NRC regulations purportedly can be correlated with increased incidence of cancer. Thus, similar to the emergency planning issue in Millstone,180 it is plain that this issue, to the extent it may have any validity, is not unique here.

Moreover, other than unsupported speculation regarding releases in the future and superficial citation to Entergy's ER, 181 there is nothing substantive put forward by CRORIP to make this issue relevant to operation of Indian Point during a period of license renewal.

Notably, Entergy's most recent reports-the 2006 Annual Radioactive Effluent Release Report and Annual Radiological Environmental Operating Report for 2006,182 submitted to the 178 Id.¶ 14.B (emphasis added).

'7 Id. ¶ 14.C.

0 CLI-05-24, 62 NRC at 561.

181 The ER is Appendix E to the LRA.

182 See ER § 4.23.3, at 4-85 (Cumulative Radiological Impacts).

38

NRC in April 2007 and May 2007, respectively-show no instance where Indian Point Units 1, 2, and 3 exceeded NRC requirements during that operating period. In fact, the Annual Radiological Environmental Operating Report for 2006 concludes: "the levels of radionuclides in the environment surrounding Indian Point were within the historical ranges, i.e., previous levels resulting from* natural and anthropogenic sources for the detected radionuclides. Further, Indian Point operations in 2006 did not result exposure [sic] to the public greater than environmental background levels."'1 83 "Plant related radionuclides were detected in 2006; however, residual radioactivity from atmospheric' weapons tests and naturally occurring radioactivity were the predominant sources of radioactivity in the samples collected. Analysis of the 2006 REMP [Radiological Environmental Monitoring Program] sample results supports the premise that radiological effluents were well below regulatory limits."1 84 Nothing provided by CRORIP is to the contrary.

As the Commission stated in Millstone:

Issues that have relevance during the term of operation under the existing operating license as well as license renewal would not be admissible under the new provision of § 2.758 [now § 2.335]

because 185 there is no unique relevance of the issue to the renewal.

term.

Mr. Mangano's declaration, while including some Indian Point-specific information, in the end, is based on the same dated information he provided in support of other unsuccessful. attempts to have a similar contention admitted in other proceedings (including license renewal proceedings) 183 Annual Radiological Environmental Operating Report for 2006, at 1-2, available at ADAMS Accession No. ML071420088.

184 Id. at 2-2..

185 Turkey Point, CLI-05-24, 62 NRC at 561 (citing Final Rule, Nuclear Power Plant Renewal, 56 Fed. Reg. at 64,961-62 (emphasis in original).

39

.in other areas of the country. Now, however, his information is even more dated, as demonstrated above in Section IV.C.

Mr. Mangano's report includes an amalgam of disassociated "facts" drawn, in some cases, from assessments of the effects of atomic bombs and weapons-testing conducted many decades ago and assessments of beyond design basis accidents/severe accidents including terrorist attacks.1 86 This information is then strung together with data annually reported by Entergy, to show the occurrence of releases of various routine radionuclides over time; releases which, not surprisingly, are subject to fluctuation. (Mr. Mangano does not suggest, though, that while subject to fluctuation, these releases exceeded regulatory limits.) From this, and without any further support or, for that matter, qualification to offer the opinion, he then leaps to the unsupported conclusion that "Indian Point is more vulnerable to a meltdown from mechanical failure than most reactors because of its age .... The reactors are also vulnerble to a meltdown due to its parts corroding as the plant ages and as the reactors operate much more of the time in recent years .... ,187 Such gross speculation has been188 and should be summarily rejected.

. Moreover, Mr. Mangano's analyses and hypotheses with respect to health effects have been previously rejected by the NRC,189 and discredited by the State of New Jersey, Commission on Radiation Protection, Department of Environmental Protection. The latter, set out in a 186 See Mangano Report, §§ II. A-B, IIl.B, IV, V.

187 See Mangano Report, § II.B.

188 See McGuire, LBP-02-04, 55 NRC at 85-87; Millstone, LBP-04-15, 60 NRC at 90-91; Millstone, CLI-04-36,

/ 60 NRC at 637-38; Millstone, LBP-0I-10, 53 NRC at 273; Millstone, CL1701-24, 54 NRC at 349.

189 See Letter from Christopher L. Grimes, Program Dir., License Renewal and Environmental impacts, Division of Regulatory Improvements Programs, Office of Nuclear Reactor Regulation, NRC, to Dr. Jerry Brown, Radiation and Public Health Project (Jan. .15, 2002) (regarding comments provided by the Radiation and Public Health Project in connection with the Turkey Point license renewal), available at ADAMS Accession No. ML020150511.

190 See Letter from Dr. Julie Timins, Chair, Comm. on Radiation Protection, to N. J. Gov. Jon Corzine, (Jan. 18, 2006) (regarding state funding of the Radiation and Public Health Project for further analysis of strontium-90 in 40.

44-page report (which includes two earlier assessments of the Tooth Fairy Project and of the analyses and data employed) goes on at some length to examine significant and material flaws in the study, and refute its findings. In light of the foregoing, his report cannot provide a sufficient basis for CRORIP's Petition in this proceeding.

Likewise, Dr. Caldicott's declaration, but for the sweeping generalization in Paragraph 8 that everything in. the following paragraphs of her declaration applies to Indian Point, and the essentially irrelevant reference to a February 2000 steam generator leak in Paragraph 25, is, at bottom, bereft of specific information regarding Indian Point or the NRC's requirements for license renewal. Rather, Dr. Caldicott's declaration is, in essence, a generic tutorial with respect to radiation and related medical hazards.'91 Moreover,, notwithstanding Dr. Caldicott's credentials, her expertise does not lend support to her allegations regarding future failures of an 92

.operational nature that she suggests might occur in the renewal period. 1 In short, CRORIP has failed to satisfy the requirements of 10 C.F.R. § 2.335. While the Section 2.335 Petition is accompanied by the affidavit of Nancy Burton, that affidavit falls far short of the showing necessary to justify the requested waiver. Without any credible substantive support, the Section 2.335 Petition in superficial terms asserts (1) a policy rationale for considering radiation exposure-that failure to consider such exposures "simply buries the issue" (Section 2.335 Petition ¶ 14.A.),193 and (2) unsupported "facts"--strontium-90 found in baby teeth and its purported correlation to elevated cancer incidences, "leaks of radioactive material baby teeth of children living near the Oyster Creek Nuclear Generating Station in New Jersey), available at ADAMS Accession No. ML060410476.

191 See Caldicott Declaration ¶¶ 8, 9-23.

192 . see Caldicott Declaration ¶ 24-25.

193 "By the same token, a contention that simply states the petitioner's views about what regulatory policy should be does not present a litigable issue. See Peach Bottom, ALAB-216, 8 AEC at 20-21 & n.33." Private Fuel Storage L.L. C.(Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 179 (1998).

41

have occurred at the plant since GElS was enacted [sic] in 1996," and the claim that there is a "prospect for continued and/or worsening leakages in the relicensing term." These superficial assertions do not constitute adequate bases for waiver. Further, as discussed earlier, the basis put forward by CRORIP for seeking relief from the existing rule makes clear the generic nature of the matter. For that reason, a petition for rulemaking under 10 C.F.R. § 2.802, not a petition under 10 C.F.R. § 2.335, to allow a challenge to the regulation in a specific adjudication, would 194 have been the appropriate course to follow.

(ii) Petitioner'sClaim That The "Reference Man" Dose Model Should Not Be Used Should Be Reiected In regard to use of the "Reference Man" model, CRORIP contends. that it improperly excludes from consideration the health effects on women and children. 95 On its face, the foregoing is a generic issue not amenable to waiver. More significantly, the use of a given model is addressed only in the affidavit of Nancy Burton, and not in the declarations of those who might arguably have the requisite expertise to address the matter. This is clearly insufficient to satisfy the requirements that "The affidavit must* state with particularity the special 96 circumstances alleged to justify the waiver or exception requested."

Accordingly, to the extent CRORIP believes a change to the underlying regulation-10 C.F.R. Part 51, Table B-i-is called for because of new information, the appropriate course would be through a petition for rulemaking pursuant to 10 C.F.R. § 2.802.97 In sum, the Section 2.335 Petition is patently inadequate and should be denied.

194 Turkey Point,CLI-O1-17, 54 NRC at 12 (2001).

195 Burton Affidavit ¶ 16-19.

.196 10 C.F.R. § 2.335(b)(emphasis added).

19 See Millstone, CLI-05-24, 62 NRC at 561.

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2. CRORIP's Petition to Intervene Fails to Satisfy 10 C.F.R. § 2.309 As fully discussed above in the context of CRORIP's Section 2.335 Petition, EC-1 proposes consideration of an issue which is beyond the scope of this proceeding. It presents a generic issue decided by rule not to warrant specific evaluation in the context of an individual license renewal proceeding.198 But even beyond being a challenge to the regulation, the proposed contention also fails because it lacks the requisite specificity with respect to the subject matter of this proceeding-impacts attributable to the operation of the Indian Point facilities in the period of license renewal.199 Stripped to its essence, this contention is nothing more than a challenge to the*

Commission's permissible doses in 10 C.F.R. Part 20, which simply cannot be contested in an individual license renewal proceeding such as this. 20 0 Moreover, given the generic nature and questionable reliability of its underlying information, CRORIP has not in any way presented any "new and significant information" that must be addressed in the ER for license renewal.20 '

D. CRORIP's Proposed Adoption of Contentions Must Be Rejected Finally, CRORIP states that it "supports and adopts the contentions 'of the Attorney General of New York, Riverkeeper, Inc. and the Attorney General of Connecticut, all as filed on November 30, 2007, and the contentions of Hudson River Sloop Clearwater, Inc', PHASE and FUSE, Inc., all as filed on December 10, 2007."i202 As provided by 10 C.F.R. § 2.309(f)(3):

If a requestor/petitioner seeks to adopt the contention of another sponsoring requestor/petitioner, the requestor/petitioner who seeks to adopt the contention must either agree that the

'9 See 10 C.F.R. Part 51, App. B to Subpart A, Tml. B-1.

'99 See Millstone, CLI-05-24, 62 NRC at 561.

200 235a; see also Tre 10 C.F.R. § 2.335(a); L-l1, 54 NRC aat 3.

Turkey Point; CLI-01-17, 201 See 10 C.F.R. § 51.53(c)(3)(iv).

202 Petition at 4.

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sponsoring requestor/petitioner shall act as the representative with respect to that contention, or jointly designate with the sponsoring requestor/petitioner a representative who shall have the authority to act for the requestors/petitioners with respect to that contention.

Thus, while there may be circumstances in which a petitioner may adopt contentions of another petitioner,203 CRORIP's casual assertion satisfies neither the requirements: for adoption in the regulation, nor Commission precedent, for a number of reasons.

First, contrary to 10 C.F.R. § 2.309(f)(3), CRORIP's petition fails to reflect any agreement with any of the other petitioners regarding adoption, and designation of a single authorized representative. It is, therefore, entirely unclear whether any other party to this proceeding wants to represent CRORIP on such matters, or vice versa.

Second, and more fundamentally, CRORIP has not addressed other aspects pertinent to adoption of contentions; in particular, CRORIP does not discuss whether it may participate as a party to this proceeding by simply adopting contentions of another petitioner. This underlying issue was addressed by the Commission in a license transfer proceeding involving Indian Point, Units 1 and 2, in which the participants; the Town of Cortlandt and Citizens Awareness Network, sought to adopt each other's contentions. 20 4 There, the Commission held that where both petitionershave independently met the requirements for participation, the Presiding Officer may provisionally permit petitioners to adopt each other's issues early in the proceeding. 20 5 If the primary sponsor of a contention withdraws from the proceeding, then the remaining petitioner must demonstrate that it can independently litigate the issue. If the petitioner cannot make such a showing, then the issue is subject to dismissal prior to he 206 203 10 C.F.R. § 2.309(f)(3).

204 See Consol. Edison Co., (Indian Point, Units 1 and 2), CLI-01-19, 54 NRC 109, 131-33 (2001).

201 Id. at 132.

206 id.

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Third, incorporation also must be denied to parties who merely establish standing and then attempt to incorporate issues of other petitioners.207 As especially pertinent here, incorporation by* reference is improper in cases where a petitioner has not independently established compliance with requirements for admission on the basis of its own pleadings by submitting at least one admissible* contention-the sine qua non for any consideration of adoption of contentions. 20 8 As the Commission indicated, "[o]ur contention-pleading rules are designed, in partý 'to ensure that full adjudicatory hearings are triggered only by those able to proffer at least some minimal factual and legal foundation in support of their contentions." 20 9 In this proceeding, it is clear that CRORIP has failed to submit an admissible contention of its own, and, accordingly, cannot adopt contentions sponsored by others.

V. CONCLUSION As discussed above, Entergy does not contest that CRORIP has standing to represent its members. CRORIP, however, has failed to demonstrate that a 10 C.F.R. § 2.335 waiver of Table B-i, Appendix B to Subpart A of 10 C.F.R. Part 51, insofar as it categorizes routine radiation exposures as a Category 1 issue and utilizes the "Reference Man" standard, is warranted.

CRORIP has also failed to present an admissible contention pursuant to 10 C.F.R. § 2.309. In 207 Id. at 133.

208. Id.,

209 Id. (citing Oconee, CLI-99-1 1, 49 NRC at 334).

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addition,i CRORIP has failed to satisfy the requirements for intervention ,as a matter of discretion.

Accordingly, CRORIP's Petition should be denied in its entirety.

Respectfull mitted, Katryn Suto,o Esq..

Paul M. Bessette, Esq.

Martin J. O'Neill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: (202) 739-5738 Fax: (202) 739-3001 E-mail: ksuttonamorganlewis.com E-mail: pbessette(morganlewis.com E-mail: martin.o'neill@morganlewis.com William C. Dennis, Esq.

Assistant General Counsel ENTERGY NUCLEAR OPERATIONS, INC.

440 Hamilton Avenue White Plains, NY 10601 Phone: (914) 272-3202 Fax: (914) 272-3205 E-mail: wdennis(aentergy.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

Dated at Washington, District of Columbia this 22nd day of January, 2008 1-WA/2876832 46

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Lawrence G. McDade, Chair Dr. Richard E. Wardwell Dr. Kaye D. Lathrop In the Matter of ) Docket Nos. 50-247-LR and 50-286-LR

)

ENTERGY NUCLEAR OPERATIONS, INC. ) ASLBP No. 07-858-03-LR-BDO0 (Indian Point Nuclear Generating Units 2 and 3) ))

January 22, 2008 CERTIFICATE OF SERVICE I hereby certify that copies of "Answer of Entergy Nuclear Operations, Inc. Opposing Request For Hearing, Petition To Intervene And Petition. For Waiver Of Connecticut Residents Opposed To Relicensing Of Indian Point " were served this 22nd day of January 2008 upon the persons listed below, by first class mail and e-mail as shown below. Due to the size of the multiple exhibits to be filed in this proceeding, the exhibits have been provided in hard copy only, via first class mail.

Office of Commission Appellate Adjudication Administrative Judge U.S. Nuclear Regulatory Commission Lawrence G. McDade, Chair Washington, DC. 2.0555-0001 Atomic Safety and Licensing Board Panel (E-mail: ocaamail@nrc.gov) Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Igml~nrc.gov)

Administrative Judge Administrative Judge Richard E. Wardwell Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 (E-mail: rewgnrc.gov) (E-mail: kdl2@nrc.gov)

I-WA/2906790

Office of the Secretary

• Sherwin E. Turk, Esq.

Attn: Docketing and Service Lloyd B. Subin, Esq.

U.S. Nuclear Regulatory Commission Beth N. Mizuno, Esq.

Washington, D.C. 20555-0001 Office of the General Counsel (E-mail: hearingdocket@nrc.gov) Mail Stop 15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: set(anrc.gov)

(E-mail: lbs3(@,nrc.gov)

(E-mail: bnml @nrc.gov)

Zachary S. Kahn Nancy Burton Law Clerk 147 Cross Highway Atomic Safety and Licensing Board Redding Ridge, CT 06876 Mail Stop: T-3 F23 (E-mail: NancyBurtonCT 2,aol.com)

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: zxkl (cnrc.gov)

Manna Jo Greene Justin D. Pruyne, Esq.

Environmental Director Assistant County Attorney, Litigation Bureau Hudson River Sloop Clearwater of Counsel to Charlene M. Indelicato, Esq.

112 Market Street Westchester County Attorney Poughkeepsie, NY 12601 148 Martine Avenue, 6th Floor (E-mail: mannaio(2leclearwater.org) White Plains, NY 10601 (E-mail: jdp3(,westchestergov.com)

Stephen C. Filler, Board Member Diane Curran, Esq.

Hudson River Sloop Clearwater, Inc. Harmon, Curran, Spielberg, & Eisenberg, 303 South Broadway, Suite 222 L.L.P.

Tarrytown, NY 10591 1726 M Street N.W., Suite 600 (E-mail: sfiller@nylawline.com) Washington, D.C. 20036 (E-mail: dcurran@harmoncurran.com)

Phillip Musegaas, Esq. Thomas F. Wood, Esq.

Victor M, Tafur, Esq. Daniel Riesel, Esq.

Riverkeeper, Inc. Sive, Paget & Riesel, P.C.

828 South Broadway 460 Park Avenue Tarrytown, NY 10591 New York, NY 10022 (E-mail: phillip@riverkeeper.org) (E-mail: driesel@sprlaw.com)

(E-mal: vtafur@riverkeeper.org) 2

Robert D. Snook, Esq Susan H. Shapiro, Esq.

Assistant Attorney General 21 Perlman Drive 55 Elm Street Spring Valley, NY 10977 P.O. Box 120 (E-mail: Palisadesartaaol.com Hartford, CT 06141-0120 mbsa.ourrocklandoffice. com)

(E-mail: Robert.Snook(po.state.ct.us)

Andrew M. Cuomo, Esq. John LeKay Attorney General of the State of New York Heather Ellsworth Burns-DeMelo John J. Sipos, Esq. Remy Chevalier Assistant Attorney General Bill Thomas The Capitol Belinda J. Jaques Albany, NY 12224-0341 FUSE USA (E-mail: john.sipos(ýoag.state.ny.us) 351 Dyckman Street Peekskill, NY 10566 (E-mail: fuse usa(alyahoo.com)

Joan Leary Matthews, Esq.

Senior Counsel for Special Projects Office of General Counsel New York State.Department of Environmental Conservation 625 Broadway Albany, NY 12207 (E-mail: jlmatthe(2,gw.dec. state.ny.us)

Original and 2 copies MaiiWT. Lemoncellhý 3