ML110211089

Firstenergy'S Answer Opposing Request for Public Hearing and Petition for Leave to Intervene

ML110211089
Person / Time
Site:	Davis Besse
Issue date:	01/21/2011
From:	Polonsky A Morgan, Morgan, Lewis & Bockius, LLP, FirstEnergy Nuclear Operating Co
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 19472, 50-346-LR, ASLBP 11-907-01-LR-BD01
Download: ML110211089 (140)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) January 21, 2011

)

FIRSTENERGYS ANSWER OPPOSING REQUEST FOR PUBLIC HEARING AND PETITION FOR LEAVE TO INTERVENE Kathryn M. Sutton Alex S. Polonsky Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: 202-739-5830 E-mail: apolonsky@morganlewis.com David W. Jenkins Senior Attorney FirstEnergy Service Company Mailstop: A-GO-15 76 South Main Street Akron, OH 44308 Phone: 330-384-5037 E-mail: djenkins@firstenergycorp.com COUNSEL FOR FIRSTENERGY

TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 II.

SUMMARY

OF ARGUMENT ......................................................................................... 2 III. BACKGROUND ............................................................................................................... 6 IV. ANALYSIS OF PETITIONERS STANDING ................................................................ 7 A. CEA Has Not Demonstrated Standing................................................................... 8 B. Dont Waste Michigan Has Not Demonstrated Standing .................................... 10 V. THE PETITION IS UNTIMELY .................................................................................... 11 VI. PETITIONERS HAVE FAILED TO PROFFER AN ADMISSIBLE CONTENTION................................................................................................................ 13 A. Contention Admissibility Standards .................................................................... 13

1. Petitioner Must Specifically State the Issue of Law or Fact to Be Raised....................................................................................................... 15

2. Petitioner Must Briefly Explain the Basis for the Contention ................. 15

3. Contentions Must Be Within the Scope of the Proceeding...................... 16

4. Contentions Must Raise a Material Issue ................................................ 17

5. Contentions Must Be Supported by Adequate Factual Information or Expert Opinion .................................................................................... 18

6. Contentions Must Raise a Genuine Dispute of Material Law or Fact........................................................................................................... 20 B. Petitioners Proposed Contentions Do Not Satisfy the Admissibility Criteria of 10 C.F.R. § 2.309(f)(1)....................................................................... 21

1. Legal Standard Governing Consideration of Energy Alternatives Under NEPA in a License Renewal Proceeding...................................... 21

2. Contention 1 (Wind Power) Is Not Admissible....................................... 26

3. Contention 2 (Solar Power) Is Not Admissible ....................................... 51

4. Contention 3 (Combination of Wind and Solar Power) Is Not Admissible ............................................................................................... 64

5. Contention 4 (SAMAs) Is Not Admissible.............................................. 70

a. Overview of SAMA Analysis and Related NEPA Principles...................................................................................... 71

b. Overview of the Davis-Besse SAMA Analysis ........................... 78

c. Summary of FirstEnergy Response to Contention 4.................... 80

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TABLE OF CONTENTS (continued)

Page

d. Contention 4a: Use of Probabilistic Risk Assessment Techniques ................................................................................... 83

e. Contention 4b: FirstEnergys SAMA Analysis Minimizes the Potential Amount of Radioactive Release in a Severe Accident ....................................................................................... 92

f. Contention 4c: The MACCS2 Code Used in FirstEnergys SAMA Analysis Is Outdated and Inaccurate ........................... 98

g. Contention 4d: Use of the Gaussian Plume Model in the ATMOS Module of MACCS2................................................... 105

h. Contention 4e: Assessment of the Economic Consequences of a Severe Accident, Including Decontamination, Cleanup, and Health Costs ........................................................................ 115

i. Contention 4f: Statistical Analysis of Data................................ 130 VII. CONCLUSION.............................................................................................................. 135

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) January 21, 2011

)

FIRSTENERGYS ANSWER OPPOSING REQUEST FOR PUBLIC HEARING AND PETITION FOR LEAVE TO INTERVENE I. INTRODUCTION In accordance with 10 C.F.R. § 2.309(h), FirstEnergy Nuclear Operating Company (FirstEnergy or FENOC) hereby timely files its Answer to the Request for Public Hearing and Petition for Leave to Intervene (Petition) jointly filed by four organizations (Petitioners)1 on December 27 and 28, 2010.2 The Petition proffers four contentions challenging FirstEnergys compliance with the National Environmental Policy Act (NEPA) and U.S. Nuclear Regulatory Commission (NRC) regulations that implement NEPA. The first three contentions challenge FirstEnergys treatment of energy alternatives related to wind and solar power, while the fourth challenges FirstEnergys analysis of Severe Accident Mitigation Alternatives (SAMAs). To be granted a hearing in this license renewal proceeding, a 1

Petitioners are Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio.

2 Petitioners filed the text of the Petition on December 27, 2010. The Declaration of Alvin Compaan (supporting Contention 2) and 67 of the supporting Exhibits (for all contentions), however, were filed between 12:01 a.m.

and 12:17 p.m. on December 28, 2010.

petitioner must demonstrate standing and submit at least one admissible contention.3 Petitioners have not met this burden.

II.

SUMMARY

OF ARGUMENT4 The Petition must be denied in its entirety because it is untimely, and because all of the proffered contentions are inadmissible. In addition, two of the Petitioners lack standing.

Timeliness The Petition is not timely. Petitioners had more than three months to prepare and submit their Petition. Yet they did not begin to file the Petitionconsisting of almost 80 documents and thousands of pagesuntil after 11:30 p.m. on the due date of December 27. They then continued to file 67 exhibits and an expert affidavit well into the next day. Petitioners filed their last exhibits at 12:17 p.m. on December 28.

To be timely, the Hearing Notice and 10 C.F.R. § 2.306(c) required Petitioners to file the Petition and all of its attachments before midnight on December 27. Additionally, 10 C.F.R.

§ 2.302(d)(1) states that an electronic filing is only complete when the filer performs the last act that it must perform to transmit a document, in its entirety.5 Because the vast majority of the filing was late, and the Petition was not transmitted in its entirety until well after the due date, the Petition is untimely and should be rejected.

Standing Two of the PetitionersCitizens Environment Alliance of Southwestern Ontario (CEA) and Dont Waste Michiganhave not demonstrated standing. CEA failed to include an affidavit authorizing a member to represent it in this proceeding. Moreover, the individuals 3

See 10 C.F.R. § 2.309(a).

4 Citations supporting the Summary of Argument are provided in the arguments presented in Sections IV, V and VI, below.

5 Emphasis added.

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that CEA relies upon for representational standing themselves rely solely upon the 50-mile proximity presumption to establish standing, but they appear to live slightly more than 50 miles from the Davis-Besse Nuclear Power Station, Unit 1 (Davis-Besse). These individualsand therefore CEAcannot rely on the proximity presumption to establish standing. Accordingly, CEA has not demonstrated standing to participate in this proceeding.

Dont Waste Michigan identifies itself in the Petition as being involved only in issues that affect nuclear waste in the State of Michigan. Davis-Besse, however, is located in Ohio, and FirstEnergy is not proposing to send spent nuclear fuel or high-level waste from Davis-Besse to or through Michigan as part of its Davis-Besse license renewal application (Application or LRA). Dont Waste Michigan does not explain how seeking to intervene in this license renewal proceeding for a facility located outside of Michigan falls within its organizational interests. Accordingly, Dont Waste Michigan does not have standing because it has not explained how the interests that it seeks to protect through this proceeding are germane to its purpose.

FirstEnergy is not challenging the standing of the other Petitioners.

Contention Admissibility In addition to being untimely, all of the contentions are inadmissible. Contentions 1 through 3 (energy alternatives) are inadmissible because, as a threshold matter, Petitioners mis-state the law. Petitioners believe that NEPA requires FirstEnergy to identify energy alternatives by making reasonable forecasts of the future.6 They accordingly make arguments that wind farms and solar cells that might be connected to the grid between 2017 and 2037 are relevant under FirstEnergys NEPA evaluation today.

6 Petition at 15, 46.

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Petitioners purported legal standard requiring an applicant to speculate about energy alternatives has no basis in the law. The cases that Petitioners cite merely require reasonable forecasts regarding the environmental effects or impacts of the proposed action, not regarding alternatives to the proposed action. The law is very clear that the duty under NEPA is to study alternatives that appear reasonable and appropriate for study at the time of the agencys NEPA evaluation. Accordingly, the inquiry is whether the energy alternative is available now or in the immediate future.

To be a reasonable alternative for license renewal, NEPA caselaw and NRC NEPA guidance limit energy sources to those that: (1) can accomplish the purpose of the proposed project (which is baseload power equivalent to 908 MWe); (2) are technically feasible now or in the immediate future; (3) are commercially viable now or in the immediate future; and (4) are a single, discrete electric generation source. Petitioners do not raise a genuine dispute of material fact or law with FirstEnergys Environmental Report (ER) because: wind and solar power cannot accomplish the purpose of the proposed project; Petitioners have not shown that baseload wind and solar power is technically feasible or commercially viable now or in the immediate future; and wind or solar power (as described in the Petition as interconnected wind farms, or as wind turbines or solar cells connected to energy storage facilities with natural gas turbines) is not a single, discrete electric generation source.

Contention 4 (SAMAs) has six subparts, and suffers from several pervasive flaws that render all of its six subparts, and therefore the entire contention, inadmissible. It is important to recognize, as a threshold matter, that Petitioners have merely copiedalmost verbatimthe entire SAMA contention from the Seabrook license renewal proceeding. Petitioners January 5, 2011 erratawith references to NextEra and Seabrook (and even Entergy) make this abundantly 4

clear. But as the Commission has made clear, cloning contentions from other proceedings does not suffice to meet the NRCs contention pleading requirements.

In summary, the grounds for dismissing Contention 4 are many. First, it raises numerous issues that plainly are beyond the proper scope of this license renewal proceeding. For example, Petitioners challenge the use of probabilistic risk assessment (PRA) methods in SAMA analysis, seek consideration of the effects of intentional external acts (such as an act of terrorism) in the SAMA analysis, and challenge generic NRC environmental impact findings codified in 10 C.F.R. Part 51 (e.g., the Commissions findings concerning the on-site storage of spent nuclear fuel and the societal and economic impacts of license renewal). Significantly, Petitioners have not sought a waiver of the applicable regulations or findings.

Second, Contention 4 lacks adequate support in the form of alleged facts or expert opinion. PRA and SAMA analyses require specialized technical acumen and experience, including some basic familiarity with the MACCS2 computer code. Here, Petitioners provide no expert support for their contention. Instead, they merely state: If a hearing is granted, Petitioners intend to bring forward expert testimony in support of this contention during succeeding stages of this proceeding.7 Third, Petitioners fail to demonstrate that their SAMA contention raises a genuine, material dispute with FirstEnergys ER. A petitioner must provide adequate support to show that additional SAMAs should have been identified as potentially cost-beneficial. Notably, Petitioners expressly concede that they have not even attempted to meet this materiality standard:

Petitioners do not offer examples of how this cost benefit equation might have been skewed in 7

Id. at 99.

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favor of no mitigation.8 Such abdication of this nature is not sufficient to show that there is a material flaw in an applicants SAMA analysis and associated cost-benefit analysis results.

Finally, Petitioners ignore relevant and dispositive information that undermines their contentions. This information includes pertinent factual information contained in the Davis-Besse ER itself (e.g., discussion of evacuation parameters used in the analysis and sensitivity studies performed by FirstEnergy). Petitioners ignore directly-applicable NRC adjudicatory precedent in which the Commission and/or licensing boards have squarely rejected arguments identical to those in the Petition, and articulated controlling legal principles. In fact, in one of those decisions from 2010, the Commission noted that the MACCS2 codewhich Petitioners allege is outdated and inaccurateis the current, established code for NRC SAMA analysis.9 Accordingly, the Board must deny the Petition in its entirety.

III. BACKGROUND Davis-Besse is located in Ohio and generates 908 MWe of baseload electrical power.10 The current operating license for Davis-Besse expires at midnight on April 22, 2017.11 On August 27, 2010, FirstEnergy submitted its LRA,12 requesting that the NRC renew the operating license for Davis-Besse for an additional twenty years (i.e., until midnight on April 22, 2037).13 The NRC accepted the Application for docketing and published a Hearing Notice in the Federal 8

Id. at 150.

9 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-22, slip op. at 9 (Aug. 27, 2010).

10 Applicants Environmental Report, Operating License Renewal Stage, Davis-Besse Nuclear Power Station, at 3.1-1, 7.2-1 (Aug. 2010) (ER), available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/davis-besse/davis-besse-enviro.pdf.

11 Id. at 1.1-1.

12 Notice of Acceptance for Docketing of the Application, Notice of Opportunity for Hearing for Facility Operating License No. NPF-003 for an Additional 20-Year Period; FirstEnergy Nuclear Operating Company, Davis-Besse Nuclear Power Station, 75 Fed. Reg. 65,528, 65,529 (Oct. 25, 2010) (Hearing Notice).

13 ER at 1.1-1.

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Register on October 25, 2010.14 The latter expressly required any person who wishes to participate as a party in this proceeding to file a written request for a hearing and petition to intervene within 60 days of its publication (i.e., by December 27, 2010) in accordance with 10 C.F.R. § 2.309.15 IV. ANALYSIS OF PETITIONERS STANDING Under 10 C.F.R. § 2.309(d)(1), a petitioner must provide specified information to support a claim of standing. Judicial concepts of standing are generally followed in NRC proceedings.16 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.17 These three criteria are commonly referred to as injury-in-fact, causation, and redressability, respectively. Alternatively, under NRC case law, a petitioner may be presumed to have fulfilled the judicial standards for standing based on his or her geographic proximity to a facility or source of radioactivity.18 The Commission has held that working or living within a 50-mile radius of an existing or planned nuclear power reactor is generally sufficient to invoke the proximity presumption.19 Petitioners here only seek to demonstrate standing using the proximity presumption.20 14 See Hearing Notice, 75 Fed. Reg. at 65,528-529.

15 Id. at 65,529.

16 See Nuclear Mgmt. Co., LLC (Monticello Nuclear Generating Plant), CLI-06-6, 63 NRC 161, 163 (2006);

Calvert Cliffs 3 Nuclear Project, LLC (Combined License Application for Calvert Cliffs, Unit 3), CLI-09-20, slip op. at 4 (Oct. 13, 2009) (noting that the Commission is not strictly bound by judicial standing doctrines).

17 See Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 6 (1996); see also Calvert Cliffs, CLI-09-20, slip op. at 4.

18 See, e.g., Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-10-15, slip op. at 5 (Aug. 4, 2010) (citing Calvert Cliffs, CLI-09-20, slip op. at 4-5, 8).

19 See id.; see also Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 60 (2008) (applying the proximity presumption to the renewal of an operating license).

20 Petition at 4-6.

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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).21 Petitioners here only seek to intervene in a representative capacity,22 which requires them to show that: (1) their members would otherwise have standing to sue in their own right; (2) the interests that the organizations seek to protect are germane to its purpose; and (3) neither the claims asserted nor the relief requested require an individual member to participate in the organizations lawsuit.23 NRC caselaw also requires that the organization identify the member upon whom it is relying for standing by name and address, and show, preferably by affidavit, that the member has authorized that organization to request a hearing on his or her behalf.24 Finally, [w]here an organization is represented by one of its members, the member must also demonstrate authorization by that organization to represent it.25 A. CEA Has Not Demonstrated Standing The Petition baldly states that Derek Coronado represents CEA in this proceeding26 but fails to include documentation of such authorization. The other PetitionersBeyond Nuclear, 21 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 195 (1998) (citing Ga.

Inst. of Tech. (Ga. Tech Research Reactor, Atlanta, Ga.), CLI-95-12, 42 NRC 111, 115 (1995)).

22 Petition at 4-6.

23 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26, 30-31 (1998)

(citing Hunt v. Washington State Apple Advertising Commn, 432 U.S. 333 (1977)) (presenting the test for representational standing).

24 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 408-10 (2007); see also N.

States Power Co. (Monticello Nuclear Generating Plant, Prairie Island Nuclear Generating Plant, Units 1 & 2; Prairie Island Indep. Spent Fuel Storage Installation), CLI-00-14, 52 NRC 37, 47 (2000); GPU Nuclear Inc.

(Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 202 (2000).

25 Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575, 583 (1978) (citing Tenn. Valley Auth. (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 1421 (1977)); see also Ga. Power Co. (Vogtle Elec. Generating Plant, Units 1 & 2), LBP-90-29, 32 NRC 89, 92 (1990) (holding that a group must also demonstrate that it has authorized the particular representative appearing before us . . . to represent the groups interest).

26 Petition at 5.

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Dont Waste Michigan and the Green Party of Ohioalso identify an individual or individuals who seek to represent them in this proceeding. Unlike the other Petitioners, however, CEA fails to provide an affidavit authorizing a member to represent it.27 Absent such a demonstration that CEA has authorized Derek Coronado to represent it in this proceeding, Derek Coronado may not do so. And absent evidence that CEA has authorized anyone to represent it in this proceeding, CEA may not participate in this proceeding.28 Moreover, CEA invokes representational standing to participate in this proceeding, and does so through the alleged standing of two of its members, Derek and Richard Coronado.29 In turn, the Coronados exclusively invoke the proximity presumption to demonstrate their own standing.30 However, the Coronados appear to live slightly more than 50 miles from Davis-Besse, so theyand therefore CEAcannot rely on the proximity presumption to establish standing.31 For these reasons, CEA has not demonstrated standing.

27 Paul Guntner and Kevin Kamps provided an affidavit stating they are authorized to represent Beyond Nuclear.

Michael J. Keegan provided an affidavit stating he is authorized to represent Dont Waste Michigan. Anita Rios provided an affidavit stating she is authorized to represent the Green Party of Ohio.

28 The lack of such an affidavit suggests that CEA may be acting ultra vires. CEAs Constitution states its objectives are to educate the public, gather and disseminate information, assist government and non-governmental organizations in the delivery of on-going environmental programs, and raise funds. See http://www.citizensenvironmentalliance.org/pdf/CEA-Constitution.pdf. CEA, however, is seeking to engage in litigation to stop or burden a government or private-party licensing effort related to a nuclear power plant in another country. Such litigation does not meet any of the objectives of the organization, and is arguably ultra vires. See generally Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1),

ALAB-535, 9 NRC 377, 395-96 (1979).

29 Petition at 8.

30 Id.

31 The Coronados state in their affidavits that they live at 808 Hall Avenue, Windsor, Ontario, Canada. Using Google Maps as the crow flies distance calculator (www.daftlogic.com/projects-google-maps-distance-calculator.htm), the distance from 808 Hall Avenue to the Davis-Besse containment structure (which houses the reactor) is 50.024 miles. The location of the containment structure is selected by first locating the Davis-Besse site address of 5501 N. State Route 2, Oak Harbor, OH, and then manually moving the location marker to the containment building, which is clearly visible using the Hybrid (instead of the Map) viewer.

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B. Dont Waste Michigan Has Not Demonstrated Standing An organization seeking representational standing must demonstrate that the interests that the organization seeks to protect are germane to its purpose.32 The test for germaneness requires that an organizations litigation goals be pertinent to its special expertise and the grounds that bring its membership together.33 Dont Waste Michigan identifies itself in the Petition as being involved only in issues that affect nuclear waste in the State of Michigan:

Dont Waste Michigan is a federation of environmental organizations with a board of directors and a membership of around 50 researchers, educators, concerned citizens, and organizational representatives, founded in 1987 to oppose the designation of the state of Michigan as a repository for what was misleadingly termed low-level radioactive waste from eight states. Dont Waste Michigans work was ultimately successful and the state of Michigan was eliminated from consideration as a repository for the wastes. Dont Waste Michigan, with the Lake Michigan Federation (now the Alliance for the Great Lakes) and support from numerous local grassroots organizations, along with Michigan Attorney General Frank Kelly, brought suit in federal court in 1993 to prevent the loading of high-level nuclear waste in casks on the shore of Lake Michigan at the Palisades plant.34 Davis-Besse, however, is located in Ohio, and FirstEnergy is not proposing as part of its LRA to send spent nuclear fuel or high-level waste from Davis-Besse to or through Michigan. Dont Waste Michigan does not explain how seeking to intervene in this license renewal proceeding for a facility located outside of Michigan falls within its organizational interests or purpose.

Accordingly, Dont Waste Michigan does not explain how the interests that it seeks to protect through this proceeding are germane to its purpose.35 It too lacks standing.

32 Private Fuel Storage, CLI-98-13, 48 NRC at 30-31 (citing Hunt, 432 U.S. 333).

33 Id. at 33 (quoting Humane Society of the United States v. Hodel, 840 F.2d 45, 58-59 (D.C. Cir. 1988)).

34 Petition at 5.

35 Accordingly, Dont Waste Michigan also appears to be acting ultra vires in this proceeding. See generally Allens Creek, ALAB-535, 9 NRC at 395-96.

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V. THE PETITION IS UNTIMELY The Hearing Notice for this proceeding explicitly states that [t]o be timely, an electronic filing must be submitted to the E-Filing system no later than 11:59 p.m. Eastern Time on the due date.36 This requirement is found in 10 C.F.R. § 2.306(c), which states: To be considered timely, a document must be served: . . . By 11:59 p.m. Eastern Time for a document served by the E-Filing system. In this proceeding, the due date was 11:59 p.m. Eastern Time on December 27, 2010.37 The text of the Petition itself, the standing declarations, and eight exhibits (Exhibits 1, 2, 5-7, and 9-11) were submitted by the requisite deadline on December 27, 2010. However, the remaining 67 exhibits (through Exhibit 75) and Petitioners expert affidavit (i.e., Declaration and Curriculum Vitae of Alvin Compaan, Intervenors Expert Witness on Contention #2 (Compaan Declaration)) were filed on December 28, 2010. The last exhibits were filed by Petitioners at 12:17 p.m. on December 28.

Because the vast majority of the filing was late, the entire filing should be considered untimely. As provided in 10 C.F.R. § 2.302(d)(1), an electronic filing is only complete when the filer performs the last act that it must perform to transmit a document, in its entirety. The Petition was not transmitted in its entirety until all of the Exhibits and the Compaan Declaration had been submitted. The licensing board in the Bellefonte combined operating license (COL) proceeding strictly interpreted Section 2.302(d)(1).38 Under similar circumstances, the Bellefonte board stated that the last act had not been performed until the corresponding affidavits and other attachments to the petition were filed, and the petition was not submitted in 36 Hearing Notice, 75 Fed. Reg. at 65,530.

37 See id. at 65,529 (requiring petitions to be filed within 60 days of October 25, 2010). Additionally, the Petition itself identifies December 27, 2010 as the due date. Petition at 4.

38 Tenn. Valley Auth. (Bellefonte Nuclear Power Plant, Units 3 & 4), LBP-08-16, 68 NRC 361, 381 (2008).

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its entirety therefore until after midnight.39 The Bellefonte board stated: In this instance, it is apparent affidavits and other attachments that Joint Petitioners intended should accompany and support their hearing petition were transmitted as part of an additional, separate E-Filing submission for which the last act did not occur until nearly an hour after 11:59 p.m. ET . . . .40 This situation is analogous to the untimely filing in this proceeding, and the interpretation should be the same.41 The Petition does not offer any explanation for the untimely filing, nor did Petitioners subsequently explain the delay much less seek an extension of time. Furthermore, the Petition does not address any of the factors specified in 10 C.F.R. § 2.309(c) governing untimely petitions to intervene. A petitioner has the burden of demonstrating that its untimely petition should be admitted based upon the factors in Section 2.309(c), and a late petition that fails to address those factors may be summarily rejected.42 Petitioners late filing is particularly inexcusable because they did not begin their filing (consisting of almost 80 documents, thousands of pages, and many megabytes) until after 11:30 p.m. on the due date. The Hearing Notice gave Petitioners 60 days to prepare their Petition. And this was in addition to the LRA being publicly available for a month and a half before the Hearing Notice.43 Petitioners clearly were aware of the voluminous nature of the exhibits they 39 Id.

40 Id.

41 The Bellefonte board ultimately found the filing timely because the Hearing Notice specified Eastern Standard Time and it added one hour to the deadline to account for daylight savings. Id. at 381-82. In this case, however, such an extension would not apply because the deadline was not dependent on daylight savings and even adding an hour would not cure Petitioners tardy filing, because Petitioners continued to file documents into the afternoon of December 28.

42 Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461, 465-68 (1985); see also Tex.

Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-1, 37 NRC 1, 3-4 (1993); Tex. Utils.

Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-11, 37 NRC 251, 255 (1993).

43 The Hearing Notice was published on October 25, 2010. See Hearing Notice, 75 Fed. Reg. 65,528. The LRA has been publicly available since September 10, 2010. See FirstEnergy Nuclear Operating Company; Notice of 12

intended to file in support of their Petition, but they did not begin filing them earlier in the day on December 27. Moreover, Petitioners are familiar with the NRC filing rules as they have been involved in the Seabrook license renewal and/or Fermi COL proceedings.44 For an experienced Petitioner to wait until after 11:30 p.m. to begin to file almost 80 documents, after having three and a half months to prepare the filing, truly is inexcusable.

In summary, contrary to 10 C.F.R. § 2.302(d)(1) the Petition was not filed in its entirety until December 28, 2010. Because Petitioners did not request an extension, much less demonstrate that they qualified for one under 10 C.F.R. § 2.309(c), the Petition should be rejected in its entirety.

VI. PETITIONERS HAVE FAILED TO PROFFER AN ADMISSIBLE CONTENTION Below, FirstEnergy sets forth the legal standards for contention admissibility, and then demonstrates why each contention is not admissible.

A. Contention Admissibility Standards To intervene in this proceeding, Petitioners must not only demonstrate standing but also propose at least one admissible contention.45 Under 10 C.F.R. § 2.309(f)(1), a hearing request must set forth with particularity the contentions sought to be raised. In addition, that section specifies that each contention must provide: (1) a specific statement of the legal or factual issue sought to be raised; (2) a brief explanation of the basis for the contention; (3) a demonstration Receipt and Availability of Application for Renewal of Davis Besse Nuclear Power Station, Unit 1, Facility Operating License No. NPF-003 for an Additional 20-Year Period, 75 Fed. Reg. 57,299, 57,300 (Sept. 20, 2010).

44 Paul Gunter of Beyond Nuclear (formerly of Nuclear Information and Resource Services), who filed the Petition, is particularly experienced in NRC licensing proceedings. Some examples of proceedings from just the past few years in which he participated include NRC licensing proceedings for Seabrook license renewal, Calvert Cliffs COL, Oyster Creek license renewal, Fermi COL, Shearon Harris license renewal, and Palisades license renewal.

45 10 C.F.R. § 2.309(a).

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that the issue raised is within the scope of the proceeding; (4) a demonstration that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (5) a concise statement of the alleged facts or expert opinions, including references to specific sources and documents that support the petitioners position and upon which the petitioner intends to rely; and (6) sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact.46 The purpose of these six criteria is to focus litigation on concrete issues and result in a clearer and more focused record for decision.47 The licensing board 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.48 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.49 The NRCs contention admissibility rules are, thus, strict by design.50 The rules were toughened . . . in 1989 because in prior years licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation.51 In 2004, the NRC implemented additional amendments to the adjudicatory process, continuing its requirement that well-supported, specific contentions . . . [be submitted] in all proceedings.52 46 See id. § 2.309(f)(1)(i)-(vi). The seventh contention admissibility requirement10 C.F.R. § 2.309(f)(1)(vii) only is applicable in proceedings arising under 10 C.F.R. § 52.103(b) and, therefore, has no bearing on the admissibility of Petitioners proposed contentions in this proceeding.

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

48 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 26 (2001).

49 Changes to Adjudicatory Process, 69 Fed. Reg. at 2202.

50 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).

51 Id.

52 Changes to Adjudicatory Process, 69 Fed. Reg. at 2188.

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Thus, failure to comply with any one of the six admissibility criteria is grounds for rejecting a proposed contention.53 As the Commission recently reiterated, the initial burden of showing whether the contention meets our admissibility standards lies with the petitioner.54 The legal principles governing each of the six pertinent criteria in 10 C.F.R. § 2.309(f)(1) are discussed briefly below.

1. Petitioner Must Specifically State the Issue of Law or Fact to Be Raised A petitioner must articulate at the outset the specific issues [it] wish[es] to litigate as a prerequisite to gaining formal admission as [a party].55 Namely, an admissible contention must explain, with specificity, particular safety or legal reasons requiring rejection of the contested

[application].56 The contention rules bar contentions where petitioners have only what amounts to generalized suspicions, hoping to substantiate them later.57

2. Petitioner Must Briefly Explain the Basis for the Contention A petitioner must provide a brief explanation of the basis for the contention.58 This includes sufficient foundation to warrant further exploration.59 The petitioners explanation serves to define the scope of a contention, as [t]he reach of a contention necessarily hinges upon 53 See id. at 2221; see also Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

54 Progress Energy Carolinas, Inc. (Shearon Harris, Units 2 & 3), CLI-09-08, 69 NRC 317, 325 (2009) (citation omitted).

55 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 338 (1999); see also 10 C.F.R. § 2.309(f)(1)(i).

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

57 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI 17, 58 NRC 419, 424 (2003) (quoting Oconee, CLI-99-11, 49 NRC at 337-39).

58 10 C.F.R. § 2.309(f)(1)(ii); see also Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989).

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

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its terms coupled with its stated bases.60 The licensing board, however, must determine the admissibility of the contention itself, not the admissibility of individual bases.61 As the Commission has observed, [i]t is the responsibility of the Petitioner to provide the necessary information to satisfy the basis requirement for the admission of its contentions and demonstrate that a genuine dispute exists within the scope of [the] proceeding.62 In other words, [a] contentions proponent, not the licensing board, is responsible for formulating the contention and providing the necessary information to satisfy the basis requirement for the admission of contentions.63

3. Contentions Must 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.64 The scope of the proceeding is defined by the Commissions notice of opportunity for a hearing.65 Moreover, contentions are necessarily limited to issues that are germane to the specific application pending before the licensing board.66 Any contention that falls outside the specified scope of the proceeding must be rejected.67 A contention that challenges an NRC rule is outside the scope of the proceeding because, absent a waiver, no rule or regulation of the Commission . . . is subject to attack . . . in any 60 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-899, 28 NRC 93, 97 (1988), affd sub nom.,

Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir. 1991).

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

62 Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-14, 48 NRC 39, 41 (1998).

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

64 10 C.F.R. § 2.309(f)(1)(iii).

65 See Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-825, 22 NRC 785, 790-91 (1985).

66 See Yankee Atomic, CLI-98-21, 48 NRC at 204.

67 See Portland Gen. Elec. Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289 n.6 (1979) (affirming the boards rejection of issues raised by intervenors that fell outside the scope of issue identified in the notice of hearing).

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adjudicatory proceeding.68 Furthermore, a contention that raises a matter that is, or is about to become, the subject of a rulemaking, is also outside the scope of this proceeding.69 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.70 Similarly, any contention that collaterally attacks applicable statutory requirements or the basic structure of the NRC regulatory process must be rejected by the licensing board as outside the scope of the proceeding.71 Accordingly, a contention that simply states the petitioners views about regulatory policyor takes issue with the nature of existing regulationsdoes not present a litigable issue.72

4. Contentions Must Raise a Material Issue 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.73 As the Commission has observed, [t]he dispute at issue is material if its resolution would make a 68 10 C.F.R. § 2.335(a).

69 See Oconee, CLI-99-11, 49 NRC at 345 (citing Potomac Elec. Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-218, 8 AEC 79, 85 (1974)) (affirming the boards rejection of a contention regarding the transportation of spent fuel rods because it was the subject of a pending rulemaking); see also Conduct of New Reactor Licensing Proceedings, Final Policy Statement, 73 Fed. Reg. 20,963, 20,972 (Apr. 17, 2008) (referring to the Commissions longstanding precedent that licensing boards should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission (citation omitted)).

70 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 159-60, affd, CLI-01-17, 54 NRC 3 (2001) (rejecting the petitioners contention that a license renewal applicant was required to prepare a PRA, where the Commissions license renewal regulations did not require a PRA).

71 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Unit 1), LBP-07-11, 66 NRC 41, 57-58 (2007) (stating that a contention that attacks applicable statutory requirements must be rejected by a licensing board as outside the scope of the proceeding) (citing Phila. Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 AEC 13, 20 (1974)).

72 See Peach Bottom, ALAB-216, 8 AEC at 20-21. 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.

73 10 C.F.R. § 2.309(f)(1)(iv).

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difference in the outcome of the licensing proceeding.74 In this regard, each contention must be one that, if proven, would entitle the petitioner to relief.75 Additionally, contentions alleging an error or omission in an application must establish some significant link between the claimed deficiency and protection of the health and safety of the public or the environment.76

5. 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 the licensing board to reject the contention.77 The petitioners 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 to flesh it out through discovery against the applicant or staff.78 Where a petitioner neglects to provide the requisite support for its contentions, the licensing board may not make assumptions of fact that favor the petitioner or supply information 74 Oconee, CLI-99-11, 49 NRC at 333-34 (citing Rules of Practice for Domestic Licensing Proceedings -

Procedural Changes in the Hearing Process, 54 Fed. Reg. at 33,172).

75 See Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2),

CLI-02-26, 56 NRC 358, 363 n.10 (2002) (stating that an issue is material only if it would entitle petitioner to relief).

76 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), LBP-04-15, 60 NRC 81, 89, affd, CLI-04-36, 60 NRC 631 (2004).

77 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 262 (1996); see also 10 C.F.R. § 2.309(f)(1)(v).

78 Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-687, 16 NRC 460, 468 (1982), vacated in part on other grounds, CLI-83-19, 17 NRC 1041 (1983) (emphasis added).

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that is lacking.79 The petitioner must explain the significance of any factual information upon which it relies.80 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.81 In addition, an expert opinion that merely states a conclusion (e.g., the application is deficient, inadequate, or wrong) without providing a reasoned basis or explanation for that conclusion is inadequate because it deprives the Board of the ability to make the necessary, reflective assessment of the opinion as it is alleged to provide a basis for the contention.82 Any supporting material provided by a petitioner, including those portions thereof not relied upon, is subject to licensing board scrutiny, both for what it does and does not show.83 The licensing board will examine documents to confirm that they support the proposed contentions.84 A petitioners imprecise reading of a document cannot be the basis for a litigable contention.85 Moreover, vague references to documents do not sufficethe petitioner must 79 See Crow Butte Res., Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 553 (2009) ([A] board should not add material not raised by a petitioner in order to render a contention admissible.); Ariz. Pub. Serv.

Co. (Palo Verde Nuclear Generating Station, Units 1, 2, & 3), CLI-91-12, 34 NRC 149, 155 (1991) (rejecting petitioners basis for a contention, where the board inferred information that was not presented in the proposed contention).

80 See Fansteel, Inc. (Muskogee, Okla., Site), CLI-03-13, 58 NRC 195, 204-05 (2003) (rejecting a contention regarding decommissioning funding assurance where petitioner relied on its brief reference to applicants Disclosure Statement and Reorganization Plan without explaining how that document undermined the applicants assurance of funding).

81 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 181, affd, CLI-98-13, 48 NRC 26 (1998).

82 USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006) (emphasis added) (quoting Private Fuel Storage, LBP-98-7, 47 NRC at 181).

83 See Yankee, LBP-96-2, 43 at 90.

84 See Vt. Yankee Nuclear Power Corp. (Vt. Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989),

vacated in part on other grounds and remanded, CLI-90-4, 31 NRC 333 (1990).

85 Ga. Inst. of Tech. (Ga. Tech Research Reactor, Atlanta, Ga.), LBP-95-6, 41 NRC 281, 300, affd, CLI-95-12, 42 NRC 111 (1995).

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identify specific portions of the documents on which it relies.86 The mere incorporation of massive documents by reference is unacceptable.87

6. Contentions Must Raise a Genuine Dispute of Material Law or Fact The Commission has stated that the petitioner must read the pertinent portions of the license application . . . state the applicants position and the petitioners opposing view, and explain why it disagrees with the applicant.88 If a petitioner believes the license application fails to adequately address a relevant issue, then the petitioner is to explain why the application is deficient.89 A contention that does not directly controvert a position taken by the applicant in the application is subject to dismissal.90 Similarly, a petitioners oversight does not raise a genuine issue. For example, if a petitioner submits a contention of omission, but the allegedly missing information is indeed in the license application, then the contention does not raise a genuine dispute.91 Further, an allegation that some aspect of a license application is inadequate or unacceptable does not establish a genuine dispute unless it is supported by facts and a reasoned statement of why the application is unacceptable in some material respect.92 Thus, in order to 86 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-89-3, 29 NRC 234, 240-41 (1989).

87 Id.; see also Tenn. Valley Auth. (Browns Ferry Nuclear Plant, Units 1 & 2), LBP-76-10, 3 NRC 209, 216 (1976).

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

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

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

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

90 See Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-37, 36 NRC 370, 384 (1992), vacated as moot, CLI-93-10, 37 NRC 192 (1993).

91 See Millstone, LBP-04-15, 60 NRC at 95.

92 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-90-16, 31 NRC 509, 521, 521 n.12 (1990).

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raise a genuine dispute with an applicants analysis, a petitioner must make at least a minimal demonstration that the analysis fails to meet a statutory or regulatory requirement.93 B. Petitioners Proposed Contentions Do Not Satisfy the Admissibility Criteria of 10 C.F.R. § 2.309(f)(1)

FirstEnergy demonstrates below why each of the contentions is inadmissible.

FirstEnergy addresses each contention in the order it is raised in the Petition.

1. Legal Standard Governing Consideration of Energy Alternatives Under NEPA in a License Renewal Proceeding Contentions 1 through 3 pertain to the evaluation of reasonable energy alternatives in the Davis-Besse ER. Before explaining why Contentions 1 through 3 do not satisfy the admissibility requirements set forth in 10 C.F.R. § 2.309(f)(1), it is necessary to place Petitioners various claims in their appropriate legal and regulatory contextsas the Petition itself fails to do so.

Petitioners seek to challenge the extent to which FirstEnergys ER complies with NEPA.94 As a threshold matter, NEPA requires consideration of the potential environmental effects of any proposed major Federal action significantly affecting the quality of the human environment.95 The issuance of a renewed operating license is such an action. NEPA and the corresponding agency regulations require a license [renewal] applicant to describe and the Staff to consider the potential environmental effects of the proposed agency action (i.e., issuance of a license).96 Consistent with this principle, the Commission has explicitly stated that [t]he purpose of an environmental report is to inform the Staffs preparation of an Environmental 93 Indian Point, LBP-08-13, 68 NRC at 187.

94 The contention admissibility regulations explain that for contentions [o]n issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicants environmental report.

10 C.F.R. § 2.309(f)(2). Thus, any environmental contentions at the present stage must be filed on the Davis-Besse ER, not future NRC environmental documents.

95 10 C.F.R. § 51.20(a)(1); see also 42 U.S.C. 4321 et seq. (2006).

96 La. Energy Servs. L.P. (Natl Enrichment Facility), LBP-06-8, 63 NRC 241, 258 (2006) (emphasis added).

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Assessment (EA) and, where appropriate, an [Environmental Impact Statement (EIS)].97 This reflects the longstanding principle that, while applicants generally have the burden of proof in NRC litigation, an exception to this is the NRC staffs review under [NEPA].98 In the Commissions words, NEPA places legal duties on the NRC, not on license applicants.99 In this vein, 10 C.F.R. § 51.45, which outlines the general requirements for an ER, states that [t]he environmental report should contain sufficient data to aid the Commission in its development of an independent analysis.100 The NRC regulations explain that an ER must contain a description of the proposed action, a statement of its purposes, [and] a description of the environment affected.101 These regulations further require the ER to consider [a]lternatives to the proposed action.102 Only reasonable alternatives need be considered, however.103 The duty under NEPA is to study alternatives that appear reasonable and appropriate for study at the time of the agencys NEPA evaluation.104 Accordingly, the inquiry is whether the 97 Curators of the Univ. of Mo., CLI-95-8, 41 NRC 386, 396 (1995) (emphasis added).

98 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 477 n.64 (2008).

99 Id.

100 10 C.F.R. § 51.45(c) (emphasis added). In conducting its environmental review, an agency may, in its discretion, rely on data, analyses, or reports prepared by persons or entities other than agency staff, including applicants and competent as well as responsible federal and state authorities, provided that the Staff independently evaluates and takes responsibility for the pertinent information before relying on it in an EIS.

Natl Enrichment Facility, LBP-06-8, 63 NRC at 259 (citing 10 C.F.R. § 51.70(b); Pub. Serv. Co. of Okla.

(Black Fox Station, Units 1 & 2), LBP-78-28, 8 NRC 281, 282 (1978)).

101 10 C.F.R. § 51.45.

102 Id. § 51.45(b)(3).

103 Id. § 51.71(f).

104 See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 553 (1978) (requiring a licensing boards consideration of energy alternatives to be judged by the information then available to it);

see also Morton, 458 F.2d at 840 (MacKinnon, J., concurring) (It is my view that the range of alternatives that must be discussed in an Impact Statement is generally limited to realistic alternatives that will be reasonably available within the time the decisionmaking official intends to act.); see generally Roosevelt Campobello Intl Park Commn v. EPA, 684 F.2d 1041, 1047 (1st Cir. 1982) (holding that, for siting alternatives, the duty under NEPA is to study all alternatives that appear reasonable and appropriate for study at the time of drafting the EIS (internal quotations omitted)); Seacoast Anti-Pollution League v. NRC, 598 F.2d 1221, 1230 (1st Cir.

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energy alternative is available now or in the immediate future. The NRCs Generic Environmental Impact Statement, NUREG-1437 (May 1996) (GEIS), further articulates what are reasonable alternatives for license renewal:

While many methods are available for generating electricity, a huge number of combinations or mixes can be assimilated to meet a defined generating requirement, such expansive consideration would be too unwieldy to perform given the purposes of the analysis. Therefore, NRC has determined that a reasonable set of alternatives should be limited to analysis of single, discrete electric generation sources and only electric generation sources that are technically feasible and commercially viable.105 This test has been adopted by licensing boards. When faced with a contention very similar to Contentions 1 through 3, the licensing board in the Indian Point license renewal proceeding applied this standard, stating that [c]onsistent with GEIS § 8.1, this Board considers the reasonable alternatives for license renewal proceedings to be limited to discrete electric generation sources that are feasible technically and available commercially.106 This standard for identifying reasonable alternatives is consistent with other case law.

The Commission held in the Pilgrim license renewal proceeding that an applicants ER is not a research document.107 The Commission also stated that NEPA does not require agencies to use technologies and methodologies that are still emerging and under development, or to study phenomena for which there are not yet standard methods of measurement or analysis. And 1979) (holding that, for siting alternatives, an agency must consider alternatives that appear reasonable at the time of the NEPA review).

105 GEIS § 8.1 (emphasis added). Although compliance with the staffs guidance documents is not dispositive, the Commission has stated that it is entitled to special weight. Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-22, 54 NRC 255, 264 (2001).

106 Indian Point, LBP-08-13, 68 NRC at 95.

107 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, slip op. at 37 (Mar. 26, 2010).

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while there will always be more data that could be gathered, agencies must have some discretion to draw the line and move forward with decisionmaking.108 An agency is required to examine only those alternatives that are necessary to permit a reasoned choice.109 Specifically, the U.S. Court of Appeals for the Ninth Circuit has held that NEPA only requires consideration of alternatives that are feasible or reasonable.110 The D.C.

Circuit has further held that an agency need follow only a rule of reason in preparing an EIS, and this rule of reason governs both which alternatives the agency must discuss, and the extent to which it must discuss them.111 These rulings call for an evaluation of the current status of potential alternatives (i.e.,

available now or in the immediate future), not an evaluation based on speculation about alternatives that may be technically feasible or commercially viable sometime in the future.

Instead, a reasonable alternative must be one that meets the purposes of the proposed action.

Courts have concluded that project alternatives derive from an [EISs or, in the first instance, from an ERs] Purpose and Need section, which briefly defines the underlying purpose and need to which an agency is responding in proposing the alternatives [to] the proposed action.112 In Citizens Against Burlington, the U.S. Court of Appeals for the D.C. Circuit explained that the term alternatives means [t]he alternative ways of accomplishing the objectives of the proposed action and [for the No Action Alternative] the results of not accomplishing the 108 Id.

109 Natural Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 836 (D.C. Cir. 1972).

110 See City of Angoon v. Hodel, 803 F.2d 1016, 1021 (9th Cir. 1986).

111 Citizens Against Burlington v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991) (internal quotations omitted). While this and other cases refer to the NEPA standards for preparation of an EIS, standards for considering reasonable alternatives also apply to preparation of an ER because the ER informs the EIS. See Curators, CLI-95-8, 41 NRC at 396; see also 10 C.F.R. § 51.71(a) (requiring the draft EIS to consider the topics in 10 C.F.R.

§§ 51.45 and 51.53, which include alternatives in ERs).

112 City of Carmel-by-the-Sea v. Dept of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997) (citing 40 C.F.R.

§ 1502.13).

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proposed action.113 Importantly, the Commission has followed the approach established in Citizens Against Burlington, holding that reasonable alternatives are those that will bring about the ends of the proposed action, and that the agency must take into account the economic goals of a private applicant.114 Finally, as the U.S. Supreme Court has held, an alternatives review must be bounded by some notion of feasibility and cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man.115 An environmental review need not ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved.116 Rather, NEPA only requires consideration of reasonable alternatives, (i.e., those that are feasible and nonspeculative).117 In summary, based on the above case law precedent, to be a reasonable alternative for license renewal an energy source must: (1) accomplish the purpose of the proposed project; (2) be technically feasible now or in the immediate future; (3) be commercially viable now or in the immediate future; and (4) be a single, discrete electric generation source. As demonstrated below, Petitioners Contentions 1 through 3 ignore this standard and proffer energy sources that are not reasonable alternatives to Davis-Besse license renewal.

113 Citizens Against Burlington, 938 F.2d at 195 n.4.

114 See Hydro Res. Inc. (P.O. Box 15910, Rio Ranch, N.M. 87174), CLI-01-4, 53 NRC 31, 55-56 (2001) (citing Citizens Against Burlington, 938 F.2d at 195-96; City of Grapevine v. Dept of Transp., 17 F.3d 1502, 1506 (D.C. Cir. 1994)).

115 Vt. Yankee, 435 U.S. at 551; see also Nuclear Mgmt. Co., LLC (Monticello Nuclear Generating Plant), LBP-05-31, 62 NRC 735, 753 (2005) (holding that there is no requirement for an applicant to look at every conceivable alternative to its proposed action).

116 Vt. Yankee, 435 U.S. at 551.

117 Monticello, LBP-05-31, 62 NRC at 753 (citing Morton, 458 F.2d at 834-37; Carmel-by-the-Sea, 123 F.3d at 1155; Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-2, 33 NRC 61, 65 (1991)).

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2. Contention 1 (Wind Power) Is Not Admissible Contention 1 states the following:

Contention One: Wind Power. The FirstEnergy Nuclear Operating Company (hereinafter, FENOC) Environmental Report fails to adequately evaluate the full potential for renewable energy sources, such as wind power, to offset the loss of energy production from Davis-Besse, and to make the requested license renewal action from 2017 to 2037 unnecessary. In violation of the requirements of 10 C.F.R. § 51.53(c)(3)(iii) and of the GEIS § 8.1, the FENOC Environmental Report (§ 7.2) treats all of the alternatives to license renewal except for natural gas and coal plants as unreasonable and does not provide a substantial analysis of the potential for significant alternatives, such as wind power, in the Region of Interest for the requested relicensing period of 2017 to 2037. The scope of the SEIS is improperly narrow, and the issue of the need for Davis-Besse as a means of satisfying demand forecasts for the relicensing period must be revisited due to dramatically-changing circumstances in the regional energy mix that are currently underway already during this decade of Davis-Besses remaining operating license (2010 to 2017), and can especially be expected to accelerate and materialize over two decades to come covering FENOCs requested license extension period (2017 to 2037).118 Although Contention 1 is lengthy and has numerous exhibits, it boils down to an argument by Petitioners that the Davis-Besse ER is improperly narrow, as it concludes that wind power is not a reasonable alternative to the proposed renewed license, and that the underlying need for Davis-Besse as a means of satisfying demand forecasts during the proposed period of extended operation must be revisited. Petitioners appear to allege that either: (1) energy storage coupled with wind farms, or (2) interconnected wind farms, could provide the baseload power produced by Davis-Besse, and therefore should have been evaluated in the ER in greater detail.

As demonstrated below, Contention 1 should be rejected on multiple grounds.

118 Petition at 10-11.

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• First, as a threshold matter, Petitioners set forth and rely upon the wrong legal standard for evaluating reasonable alternatives under NEPA and, therefore, fail to demonstrate a genuine dispute of material law, contrary to 10 C.F.R. § 2.309(f)(1)(vi).

• Second, Petitioners do not raise a genuine dispute of material fact or law with the ER regarding whether wind power is a reasonable energy alternative, also contrary to 10 C.F.R. § 2.309(f)(1)(vi), because: (1) wind power does not accomplish the purpose of the proposed project, which is baseload power equivalent to 908 MWe; (2) Petitioners engage in and call for speculation and have not shown that baseload wind power would be technically feasible or commercially viable either now or in the immediate future; and (3) Petitioners have not shown that wind power is a single, discrete electric generation source.

• Third, Petitioners do not provide sufficient alleged facts or expert opinion to support their position that wind power is a reasonable alternative to license renewal, contrary to 10 C.F.R. § 2.309(f)(1)(v).

• Fourth, to the extent it challenges the need for power from Davis-Besse, Contention 1 is an impermissible challenge to NRC regulations, which renders it outside the scope of this proceeding pursuant to 10 C.F.R. § 2.309(f)(1)(iii).

• Finally, to the extent Petitioners claim that Contention 1 is broader than just wind power, it is without basis, because it fails to provide a concise statement of alleged facts, and it does not demonstrate a genuine dispute with the ER, contrary to 10 C.F.R.

§ 2.309(f)(1)(ii), (v), and (vi).

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a. Petitioners Set Forth and Rely Upon the Wrong Legal Standard, and Therefore Fail to Demonstrate a Genuine Dispute on a Material Issue of Law Throughout Contention 1, Petitioners set forth and rely upon the wrong legal standards.

In doing so, they ignore the fundamental and threshold legal question guiding an applicants consideration of alternatives in a license renewal ER; i.e., whether a given alternative is reasonable.119 First, Petitioners believe that NEPA requires FirstEnergy to identify energy alternatives by making reasonable forecasts of the future.120 They accordingly make arguments that wind farms that might be connected to the grid between 2017 and 2037 are relevant under NEPA today. However, the legal standard requiring an applicant to make reasonable forecasts about energy alternatives has no basis in the law. The case references provided by Petitioners require applicants to make reasonable forecasts regarding the environmental effects or impacts of a proposed action.121 Petitioners case references do not require applicants to make reasonable forecasts about the availability of future alternatives to the proposed action.

119 See, e.g., 10 C.F.R. § 51.71(f) (requiring consideration of reasonable alternatives); Morton, 458 F.2d at 834-37.

120 Petition at 15, 35, 46-47.

121 See N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 48-49 (1978) (requiring consideration of effects which are shown to have some likelihood of occurring) (Petition at 15); Hydro Res., Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), LBP-04-23, 60 NRC 441, 447 (2004)

(requiring consideration of effects which are shown to have some likelihood of occurring) (Petition at 15);

Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir. 1992) (holding that only environmental effects that are likely (or foreseeable or reasonably foreseeable) need be discussed) (Petition at 47); Mid States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520, 549 (8th Cir. 2003) (stating that NEPA requires consideration of effects that are reasonably foreseeable) (Petition at 47); Natural Res. Def. Council v.

NRC, 547 F.2d 633, 639 (D.C. Cir. 1976) (discussing need to forecast environmental consequences) (Petition at 35); Kern v. Bureau of Land Mgmt., 284 F.3d 1062, 1072 (9th Cir. 2002) (discussing consideration of environmental consequences) (Petition at 47). Petitioners also reference Jicarilla Apache Tribe v. Morton, 471 F.2d 1275, 1280 (9th Cir. 1973), Petition at 46, but that case does not appear to address the issue of reasonably foreseeable impacts or unresolved scientific issues for which it was cited; rather, it addresses public comment opportunities for environmental documents.

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The speculation sought by Petitioners about future energy alternatives is exactly what is not required by NEPA, and is antithetical to the admissibility of a contention.122 As discussed above in Section VI.B.1, a reasonable energy alternative to license renewal is one that is technically feasible and commercially viable at the time the agency is considering the proposed action (i.e., now or in the immediate future). These standards impose an evaluation of the current status of potential alternatives, not an evaluation of whether it is reasonably foreseeable that an alternative will be technically feasible or commercially viable sometime in the future.123 NEPA only requires consideration of alternatives that are feasible and nonspeculative,124 and does not require consideration of alternatives that are emerging and under development.125 Directly on point to the issue posed by Contention 1, the D.C. Circuit Court of Appeals rejected an argument that future alternative power sources (including solar power) must be considered because the alternatives would evolve during a nuclear power plants operation for several decades in the future, stating: That contention presupposes future developments which are both . . . speculative and remote.126 ER Section 7.2.2.2 properly and briefly discusses the 122 See, e.g., Vt. Yankee, 435 U.S. at 551 (holding that detailed discussions of energy alternatives are not required when effects on the environment cannot be readily ascertained and the alternatives are only remote and speculative possibilities); see also Monticello, LBP-05-31, 62 NRC at 753 (holding that NEPA only requires consideration of reasonable, feasible, and nonspeculative alternatives).

123 See Vt. Yankee, 435 U.S. at 553 (requiring a licensing boards consideration of energy alternatives to be judged by the information then available to it); see also Morton, 458 F.2d at 840 (MacKinnon, J.,

concurring) (It is my view that the range of alternatives that must be discussed in an Impact Statement is generally limited to realistic alternatives that will be reasonably available within the time the decisionmaking official intends to act.); see generally Seacoast, 598 F.2d at 1230 (In respect to [siting] alternatives, an agency must on its own initiative study all alternatives that appear reasonable and appropriate for study at the time.); Roosevelt Campobello, 684 F.2d at 1047 (holding that the duty under NEPA is to study all [siting]

alternatives that appear reasonable and appropriate for study at the time of drafting the EIS (internal quotations omitted)).

124 See Vt. Yankee, 435 U.S. at 551; see also Monticello, LBP-05-31, 62 NRC at 753.

125 Pilgrim, CLI-10-11, slip op. at 37.

126 Carolina Envtl. Study Group v. United States, 510 F.2d 796, 800 (D.C. Cir. 1975) (rejecting energy alternatives such as oil shale, geothermal energy, and solar energy); see also supra n.123.

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reasonableness of wind power as an alternative to Davis-Besse license renewal.127 Detailed evaluation of wind power as a potential, future alternative would be speculation that is not required by NEPA. The absence of such an evaluation cannot serve as the basis for admission of Contention 1 before this Board.

Second, Petitioners use their purported legal standard to leapfrog over the threshold legal question of whether wind power is a reasonable baseload generation alternative to the renewal of the Davis-Besse operating license. Instead, they divert the argument to questions of comparative environmental impacts that arise only after an alternative is deemed reasonable.

For example, Petitioners repeatedly claim that the comparative environmental impacts of wind power are less significant than those associated with nuclear power, and that the comparative environmental benefits of wind power are greater than those inuring to nuclear power. In this vein, they point to impacts and benefits related to carbon footprints, waste generation, birds and bats,128 aesthetics,129 socioeconomics, and compliance with portfolio standards.130 Petitioners question the adequacy of the ER along these same lines, calling for high quality and accurate scientific analysis of issues associated with the purported environmental impacts and benefits of wind power.131 127 ER at 7.2-9.

128 Petitioners grossly mischaracterize the ERs discussion of birds and bats. The ER does not state that impacts on birds and bats make wind power development an insurmountable environmental challenge. Petition at 30.

Instead, the ER states that bird and bat fatalities are also of some concern. ER at 7.2-9. Additionally, Petitioners arguments that certain groups are convinced impacts on wildlife can be mitigated and about radioactivity effects on birds do not challenge the conclusions in ER Section 7.2.2.2 on wind power, and therefore do not create a genuine dispute with the application. Petition at 30.

129 Petition at 27-28. Petitioners own documents state that aesthetic impacts can be a barrier to development.

See, e.g., Juliet Eilperin, Google Backs Superhighway For Wind Power, Wash. Post (Oct. 13, 2010)

(Petition Exhibit 22) (stating that wind projects have encountered fierce local opposition on aesthetic and environmental grounds).

130 Petition at 15-28, 30-31, 66-70.

131 Id. at 11-12, 17-19, 36-37, 39, 47, 52-54, 57-58, 60-62, 65.

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Petitioners advocacy fails as matter of law. Because the ER concludes that wind power does not satisfy the threshold determination of being a reasonable alternative under NEPA,132 it does not need to evaluate the impacts of wind power in great detail and is fully adequate as a matter of law. Specifically, Council on Environmental Quality (CEQ) regulations at 40 C.F.R.

§ 1502.14(a) speak directly to this issue and direct applicants and agencies as follows:

Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.133 This is exactly what FirstEnergy does in ER Section 7.2.2.2.

Additionally, 10 C.F.R. Part 51, Subpart A, App. A, directs as follows: Alternatives eliminated from detailed study will be identified and a discussion of those alternatives will be confined to a brief statement of the reasons why the alternatives were eliminated. Again, ER Section 7.2.2.2 provides the required discussion of reasons for eliminating wind power as a reasonable alternative.134 Nothing more is required under NEPA or implementing NRC regulations. As a result, Contention 1 is fundamentally and fatally flawed.

It also is important to recognize that Petitioners incorrectly state the overarching legal standard governing environmental reviews in license renewal proceedings. In this regard, Petitioners claim that [t]he presumption that an operating Davis-Besse atomic reactor is the best that can be done respecting the environment is therefore less supportable than ever and that the ER must include a reasonable forecast for less harmful alternatives and consider whether 132 ER at 7.2-9.

133 Emphasis added. The Commission has applied 40 C.F.R. § 1502.14(a) to licensing actions, stating that

[a]lthough the CEQs guidance does not bind us, we give such guidance substantial deference. Dominion Nuclear North Anna, LLC (Early Site Permit for North Anna ESP Site), CLI-07-27, 66 NRC 215, 222 n.21 (2007).

134 ER at 7.2-9.

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license renewal is unnecessary.135 The environmental standard for license renewal is not whether license renewal is the best or least harmful environmental option, much less whether it is necessary, but whether preserving license renewal as an option would be unreasonable.136 As codified in the NRC regulations at 10 C.F.R. § 51.95(c)(4), the NRC staff, adjudicatory officers, and Commission shall determine whether or not the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decisionmakers would be unreasonable.137 Finally, Petitioners claim that FirstEnergy must include new and significant information in the Davis-Besse ER as required by 10 C.F.R. § 51.53(c)(3)(iv).138 Section 51.53(c)(3)(iv), however, states: The environmental report must contain any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware.139 The information and arguments in Contention 1 relate to consideration of energy alternatives, not the environmental impacts of Davis-Besse license renewal. Therefore, this regulation cited by Petitioners does not apply to the ER in the manner claimed by Petitioners.

135 Petition at 15, 68 (emphasis added).

136 10 C.F.R. § 51.95(c)(4).

137 Id. (emphasis added). The Commission explained this standard as follows:

Given the uncertainties involved and the lack of control that the NRC has in the choice of energy alternatives in the future, the Commission believes that it is reasonable to exercise its NEPA authority to reject license renewal applications only when it has determined that the impacts of license renewal sufficiently exceed the impacts of all or almost all of the alternatives that preserving the option of license renewal for future decision makers would be unreasonable.

Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,473 (June 5, 1996) (emphasis added). Thus, even if it were determined that the environmental impacts of Davis-Besse license renewal sufficiently exceed the impacts of one or two alternatives, this still would not alter the NRCs decision on license renewal.

138 Petition at 13-16.

139 Emphasis added.

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Because energy alternatives are not a Category 1 issue that the Commission has evaluated generically, they must be evaluated on a site-specific basis.140 Although ER Section 7.2.2.2 uses information from the GEIS, it does not rely on the GEIS as a generic determination for energy alternatives at Davis-Besse. Additionally, even if this standard were to apply, ER Section 7.2.2.2 was appropriately updated to satisfy NEPA requirements. As discussed below, the information proffered by Petitioners in Contention 1 is not significant because it does not identify a reasonable alternative that was not considered in the ER.

In summary, because Petitioners have set forth and relied upon the wrong legal standards, their arguments are without merit, and should be rejected as not demonstrating a genuine dispute of material law with the ER, as required by 10 C.F.R. § 2.309(f)(1)(vi).

b. Contention 1 Does Not Raise a Genuine Dispute of Material Fact or Law with the ER Regarding Whether Wind Power Is a Reasonable Energy Alternative An ER need only discuss reasonable alternatives which, under NEPA and NRC precedent, must: (1) accomplish the purpose of the proposed project; (2) be technically feasible now or in the immediate future; (3) be commercially viable now or in the immediate future; and (4) be a single, discrete electric generation source.141 ER Section 7.2.2.2 evaluates whether wind power is a reasonable alternative to Davis-Besse license renewal. Although the ER states that wind power is a feasible alternative to Davis-Besse license renewal in theory, it concludes that wind power by itself is not suitable for large base-load capacity.142 Additionally, although the ER states that energy storage might 140 See GEIS § 8.1 ([T]he NRC will conduct a full analysis of alternatives at individual license renewal reviews.

NRC expects that information contained in this chapter will be used in the analysis of alternatives for the supplemental environmental impact statements prepared for individual license renewals.).

141 GEIS § 8.1; Indian Point, LBP-08-13, 68 NRC at 95.

142 ER at 7.2-9 (emphasis added).

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provide baseload power, it concludes that current energy storage technologies are too expensive for wind power to serve as a large base-load generator.143 For these reasons, the ER concludes that FENOC does not consider a utility-scale commercial wind power project a reasonable alternative to Davis-Besse license renewal.144 As demonstrated below, Petitioners arguments do not raise a genuine dispute of material fact or law as to whether wind power is a reasonable alternative to Davis-Besse license renewal.

Therefore, Contention 1 should be rejected as not satisfying 10 C.F.R. § 2.309(f)(1)(vi).

(i) Wind Power Does Not Accomplish the Purpose of the Proposed Project As FirstEnergy has indicated in its ER, the proposed action is renewal of the operating license for Davis-Besse, which produces 908 MWe of baseload power.145 ER Section 7.2 states:

If the Davis-Besse operating license is not renewed, then the State of Ohio, FirstEnergy Corp.

and its subsidiary companies, and other participants in the wholesale power market would lose approximately 910 MWe of base-load capacity.146 It further states: Considering that Davis-Besse serves as a large base-load generator, FENOC considers reasonable alternatives to be those that would also be able to generate base-load power.147 Baseload power has a very specific meaning. The U.S. Court of Appeals for the Seventh Circuit, when faced with an alternative energy contention in the Clinton Early Site Permit (ESP) proceeding similar to Contention 1, stated the following: In its ESP application, Exelon stated that it sought to reserve the proposed site for future large-scale, baseload nuclear 143 Id.

144 Id.

145 Id. at 1.1-1, 3.1-1, 7.2-1.

146 Id. at 7.2-1.

147 Id.

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energy generation; that is, the creation of new energy intended to continuously produce electricity at or near full capacity, with high availability.148 Limiting the purpose of the project, and thus the discussion of energy alternatives, to large baseload generation is supported by Federal and Commission case law. As discussed above, the Commission has followed the approach established by the D.C. Circuit in Citizens Against Burlington, holding that reasonable alternatives are those that will bring about the ends of the proposed action.149 The licensing boards in the Monticello and Indian Point license renewal proceedings approved limiting the scope of energy alternatives for license renewal to large baseload generation.150 The Commission and the U.S. Court of Appeals for the Seventh Circuit upheld another licensing board ruling on a similar contention in the Clinton ESP proceeding.151 Specifically, the Commissions ruling in Clinton upheld the licensing boards exclusion of consideration of non-baseload generating options, such as solar and wind power, in part because:

Intervenors various claims fail to come to grips with fundamental points that cant be disputed: solar and wind power, by definition, are not always available . . . .152 148 Envtl. Law & Policy Ctr. v. NRC, 470 F.3d 676, 679 (2006) (emphasis added); see also Consumers Power Co.

(Midland Plant, Units 1 and 2), ALAB-452, 6 NRC 892, 951 n.272 (1977) (Baseload units are designed to run continuously (except for maintenance) to meet that constant portion of the utilitys load. Intermediate and peaking units are utilized to meet the intermittent demand, with intermediate units generally being used to meet demand that is continuous for 12 or more hours and peaking units being used to meet demand that is less than 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> in duration. (citations omitted)).

149 Hydro Res., CLI-01-4, 53 NRC at 55-56 (citing Citizens Against Burlington, 938 F.2d at 195, 196; Grapevine, 17 F.3d at 1506).

150 See Indian Point, LBP-08-13, 68 NRC at 92 (It is clear from Commission decisions that the Applicant in the alternatives analysis in its ER need only consider the range of possibilities that are capable of achieving the goals of the proposed action. In the instant case, this action is to relicense IPEC to generate approximately 2158 MWe of base-load energy for an additional 20 years of operation. (citations omitted)); Monticello, LBP-05-31, 62 NRC at 753 (holding that the Commission need only consider the range of alternatives reasonably related to the scope and goals of the proposed action which is to provide baseload generating capacity).

151 Envtl. Law & Policy Ctr., 470 F.3d at 684 (upholding the Boards adoption of baseload energy generation as the purpose behind the ESP).

152 Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801, 810-11 (2005).

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Therefore, only large (i.e., 908 MWe) baseload generation would equal the proposed action of Davis-Besse license renewal. Petitioners argument that FirstEnergy rigged the consideration of alternatives by narrowly defining the purpose to large baseload electricity must be rejected because it clearly is without basis.153 FirstEnergy has not in any way rigged its definition of Davis-Besses generating capacity. It is a matter of public record and fact.

For the above reasons, any arguments or information related to non-baseload generation are irrelevant in this proceeding and do not support admission of Contention 1. The vast majority of information presented by Petitioners in Contention 1 and the corresponding Exhibits relates to the availability and impacts of wind power, not baseload wind power.154 For example, Petitioners discuss in detail the availability of wind resources in Ohio or in surrounding states or off-shore, but do not identify any available baseload wind power facilities.155 Only a few paragraphs, which are discussed below, address alleged baseload wind power through either energy storage or interconnected wind farms.156 Therefore, all of the information on non-baseload wind resources and impacts can be rejected outright because it does not create a genuine dispute of material fact or law with the ERs conclusion that wind power is not a reasonable alternative because it does not provide baseload power.157 153 Petition at 55-57.

154 See generally id. at 16-28, 30-37, 46-67.

155 See, e.g., id. at 22-27, 31-35, 46-67. In Ohio, for example, Petitioners only identify a few existing wind power facilities with capacities of 7.2 MW, 225 kW, and 12 kW. Petition at 25-27; Green Energy Ohio, Utility Scale Wind Turbines In Ohio! (Petition Exhibit 4); City of Bowling Green, Ohio, Wind Turbines (Petition Exhibit 5);

Wind-Works.org, Clevelands Urban Wind Turbine (Petition Exhibit 6); Green Energy Ohio, Charles F. Brush (Petition Exhibit 8). Petitioners then identify an up to 20 MW demonstration project. Petition at 26; Cuyahoga Regl Energy Dev. Task Force, Building a New Energy Future, Recommendations for a Lake Erie Offshore Wind Energy Demonstration Project and Research Center (Feb. 8, 2007) (Petition Exhibit 7). These are not large baseload generation sources such as Davis-Besse.

156 See Petition at 28-30, 37-41.

157 See ER at 7.2-9.

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Furthermore, the ER already acknowledges that wind power is theoretically available.

Specifically, ER Section 7.2.2.2 states: Thus, wind power in coastal Ohio along Lake Erie and along ridgelines in Pennsylvania and West Virginia is a feasible alternative to Davis-Besse license renewal in theory. However, wind power by itself is not suitable for large base-load capacity.158 The ER does not reject wind power because it is not theoretically availablethe wind does blow in Ohiothe ER rejects it because it does not provide large baseload generation capacity. Therefore, the many pages and attachments of the Petition discussing wind availability in Ohio or surrounding states or off-shore159 do not demonstrate a genuine dispute of material fact with the ER. Thus, Contention 1 is inadmissible as not satisfying 10 C.F.R.

§ 2.309(f)(1)(vi).

The only remaining arguments in Contention 1 address whether baseload wind power is a reasonable alternative to Davis-Besse license renewal. As demonstrated below, Petitioners have not demonstrated that large baseload wind power is technically feasible, commercially viable, or a single, discrete electric generation sourceand as such a reasonable alternative to license renewal at Davis-Besse.

(ii) Petitioners Have Not Demonstrated that Large Baseload Wind Power Is Technically Feasible To be a reasonable alternative, baseload wind power must be technically feasible.

Petitioners imply that either (1) energy storage coupled with wind farms, or (2) interconnected 158 Id. (emphasis added). Petitioners also complain that the ER does not discuss wind power in New Jersey where FirstEnergy serves load, but does discuss wind power in West Virginia. See Petition at 20-21. Petitioners identify no requirement for the service area to match the region for considering wind power resources.

Additionally, because the ER already concludes in Section 7.2.2.2 that sufficient wind resources are theoretically available, consideration of New Jersey wind resources was unnecessary.

159 Petition at 22-27, 31-35, 46-67. Petitioners also challenge the characterization of wind available in Ohio based on wind speeds. Id. at 22-23. Because the ER already concludes in Section 7.2.2.2 that sufficient wind resources are theoretically available, there is no genuine dispute here.

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wind farms, could provide baseload wind power.160 In the Fermi COL proceeding, a licensing board rejected a similar contention on wind and solar power as not establishing a genuine dispute because the petitioners documents did not support the feasibility of using these technologies on a utility scale.161 The outcome should be the same here, because Petitioners have failed to present arguments or information demonstrating that these alternatives are technically feasible on the same scale of output as Davis-Besse.

Energy Storage Coupled with Wind Farms In their discussion of baseload wind power through energy storage, Petitioners reference a couple of reports and provide a few examples of energy storage projects that focus on compressed air storage.162 These reports and examples do not demonstrate that large baseload wind power is technically feasible now or in the immediate future using energy storage. As discussed above, baseload power is only provided by a generation source that operates at near full capacity with high availability. The reports and examples of energy storage in Contention 1 do not identify any energy storage mechanisms that satisfy this definition.

For example, the report in Petitioners Exhibit 11 does not identify use of energy storage for large baseload generation. Instead, the report simply describes compressed air storage as follows:

Compressed air storage involves using off-peak electricity to compress air and store it in a large underground cavern, which could be a pre-existing cavern or one mined specifically for the purpose. At times of peak demand, the compressed air is withdrawn from the cavern, heated using natural gas, and used to operate a combined cycle plant.163 160 See id. at 28-30, 37-46.

161 Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-09-16, 70 NRC 227, 304 (2009).

162 See Petition at 28-30, 38-39.

163 Arjun Makhijani, Carbon-Free and Nuclear-Free: A Roadmap for U.S. Energy Policy, at 69 (2007) (emphasis added) (Petition Exhibit 11).

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This example shows that compressed air storage does not continuously produce electricity at or near full capacity, with high availability, and therefore is not baseload power. Petitioners claim that this report discusses baseload wind power is simply incorrect.164 Petitioners also generally reference as Exhibit 20 a 2006 National Renewable Energy Laboratory (NREL) concept paper about compressed air energy storage.165 Such a reference is subject to board scrutiny both for what it does and does not show.166 The document makes clear that using wind power generation and compressed air energy storage to provide baseload power is still only a concept. 167 It further points out that [d]evelopment of the baseload wind concept will require a greater understanding of the local geologic compatibility of air storage, and additional work will be required to examine the feasibility of advanced wind/CAES concepts described here.168 This document itself states that baseload wind power is not yet feasible.

Similarly, the Scientific American article in Exhibit 48 does not support use of compressed air storage as technically feasible for baseload wind generation now or in the immediate future. Rather, the report hypothesizes that [e]xcess daytime energy would be stored as compressed air in underground caverns to be tapped during nighttime hours.169 Once again, this example is not relevant to baseload power. Additionally, this article discusses use of the 164 See Petition at 28.

165 Id. at 28, 38-39; NREL, Creating Baseload Wind Power Systems Using Advanced Compressed Air Energy Storage Concepts (Oct. 3, 2006) (Petition Exhibit 20).

166 See Yankee, LBP-96-2, 43 NRC at 90.

167 Petition Exhibit 20.

168 Id. (emphasis added).

169 Ken Zweibel, James Mason, & Vasilis Fthenakis, By 2050 Solar Power Could End U.S. Dependence on Foreign Oil and Slash Greenhouse Gas Emissions, Scientific American, at 64 (Jan. 2008) (Petition Exhibit 48).

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energy storage in 2050, which would be well after the term of the proposed Davis-Besse renewed license, further demonstrating its irrelevance to the proposed contention.170 The specific energy storage examples provided in the Petition likewise do not provide any support for the argument that large baseload wind power is currently, or soon to be, feasible as an alternative to Davis-Besse license renewal. First, Petitioners discuss FirstEnergys Norton Energy Storage Project, quoting that [w]hile there are other compressed-air projects under development, none is expected to be comparable in size and scope to the Norton facility.171 As quoted in the Petition regarding the Norton project: [t]he compressed-air technology envisioned at this site would essentially operate like a large battery, storing energy at night for use during the day when it is needed.172 Thus, the Norton project would consume energy at night to compress air for use in gas turbines during peak demand, which is not baseload power.

Moreover, the press release quoted in the Petition states that the initial phase of the Norton Energy Storage Project could result in 268 MW, much less than Davis-Besses output.173 Additionally, the press release demonstrates that this project is not a current reality and remains speculative for purposes of evaluation under NEPA, as it expressly states that FirstEnergy only has purchased the rights to develop the project; the technology is not a current reality but only envisioned at the site; FirstEnergy is evaluating its options; and FirstEnergy has not yet committed to development of the project.174 As discussed above, any technology subject to these caveats need not be evaluated under NEPA.

170 Id.

171 Petition at 29.

172 Id. at 28.

173 Id. at 29.

174 Id. at 28-29.

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There are only two existing commercial-scale compressed air energy storage facilities in the world.175 These facilities suffer from similar defects. The first facility is a 110 MW plant in McIntosh, Alabama that began operation in 1991.176 This facility is used to store off-peak power, generate peak power and provide spinning reserve.177 The second facility is a 290 MW plant in Bremen, Germany that began operation in 1978.178 This facility is used to provide peak shaving, spinning reserves and [Volt-Amps-Reactive] support.179 Thus, these facilities are not used to provide baseload power. Additionally, the only commercially-demonstrated facilities are much smaller than Davis-Besse, which is 908 MW. Accordingly, facilities of this size would not serve the purpose of the licensing action to provide baseload power on the same scale as Davis-Besse. For these reasons, the examples provided by Petitioners do not identify any facilities that could provide baseload power on the scale of Davis-Besse that could be considered reasonable alternatives to license renewal either now or in the immediate future.

Interconnected Wind Farms Petitioners also claim that interconnected wind farms should be considered as a baseload alternative to Davis-Besse. This argument fails for reasons similar to those for energy storage coupled with wind farms; namely, Petitioners do not identify how it is technically feasible, now or in the immediate future, to build and connect such farms.

175 Id. at 29.

176 Boise State Univ., Sustainability Research, Overview of Compressed Air Energy Storage, at 2 (Dec. 2007),

available at http://coen.boisestate.edu/WindEnergy/resources/ER-07-001.pdf.

177 Id.

178 Id.

179 Id.

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Contention 1 further references a handful of studies and news articles that discuss the creation of interconnected grids for wind power.180 These documents, however, do not claim that these interconnected wind farms, using on-shore or off-shore wind, are available now or will be available in the immediate future. For example, the project supported by the Google corporation would not be completed until 2020, three years at the earliest after the Davis-Besse license renewal term could begin.181 Moreover, the project would only be for transmission, and not actual generation.182 The referenced studies and news articles indicate that technology related to interconnected wind farms supplying baseload power is not currently available and will not be available in the immediate future. Moreover, wind farms are widely dispersed and require a large and expensive transmission collection system to reach either customers or an energy storage facility. These deficiencies render Petitioners examples unreasonable alternatives to the large baseload power produced by Davis-Besse.

One of the difficulties with making wind power technically feasible for baseload generation is wind powers low capacity factor. Capacity factor is defined as: The ratio of the total energy generated by a generating unit for a specified period to the maximum possible energy it could have generated if operated at the maximum capacity rating for the same specified period.183 For example, ER Section 7.2.2.2 states that wind capacity factors are less than 30%,

which means that the wind power is available less than 30% of the time.184 This is consistent with PJM, the regional transmission organization that operates the competitive wholesale 180 See Petition at 40-46 (referencing Petition Exhibits 21-26).

181 Id. at 40-41.

182 Id.

183 PJM Manual 35, Definitions and Acronyms, at 13 (Rev. 18, Oct. 1, 2010), available at http://ftp.pjm.com/~/media/documents/manuals/m35.ashx.

184 ER at 7.2-9.

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electricity market in which Davis-Besse power is sold, which, as of May 2010, assigned an effective class average capacity factor to wind of 13% to calculate wind turbine output reliability.185 Using this standard, it would take almost 7000 MW of installed wind capacity to equal Davis-Besses rated electrical output. Even then it would only be considered available about 13% of the time, and would not be baseload power. Petitioners have provided no information that 7000 MW of interconnected wind is available now or in the immediate future for a NEPA energy alternatives evaluation.186 Indeed, Petitioners have identified no wind farm of this size whatsoever, much less identified existing transmission that could provide this scale of wind power to the electric grid, even if it could provide baseload power.

In summary, use of wind power coupled with energy storage or interconnected wind farms options discussed by Petitioners to provide baseload power on the scale of Davis-Besse is simply too remote and speculative for them to be treated as reasonable alternatives under NEPA.

Petitioners have provided no specific information to demonstrate that these options are technically feasible as a reasonable alternative to Davis-Besse license renewal. Accordingly, Contention 1 does not create a genuine dispute of material fact or law, contrary to 10 C.F.R.

§ 2.309(f)(1)(vi), with the ERs conclusion that wind power is not a reasonable alternative because it does not provide large baseload power.187 185 See PJM Manual 21, Rules and Procedures for Determination of Generating Capability, App. B, at 19 (Rev. 9, May 1, 2010), available at http://www.pjm.com/~/media/documents/manuals/m21.ashx.

186 The land needed to support this size wind farm is immense, and is ignored by Petitoners. Petition Exhibit 7 discusses an offshore wind energy demonstration project of up to 20 MW. Petition Exhibit 7 at 6. It uses turbines of 2 MW each spaced at least 500 meters apart. Id. at 7. Using PJMs 13% currently effective class average capacity factor for wind, about 3,492 wind turbines would be needed to match Davis-Besses instantaneous electrical output. These wind turbines would stretch for 1,745,500 meters (1085 miles) if in a straight line, or would cover over 870 million square meters (215,000 acres) if in a square configuration.

187 ER at 7.2-9.

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(iii) Petitioners Have Not Demonstrated that Large Baseload Wind Power Is Commercially Viable To be a reasonable alternative, baseload wind power also must be commercially viable.

Petitioners, however, have failed to present any arguments or information regarding the commercial viability of baseload wind power on the same scale of output as from Davis-Besse.

In excluding wind power as a reasonable alternative to Davis-Besse license renewal, the Davis-Besse ER relies heavily on the conclusion that large baseload wind power is not yet commercially viable. Specifically, ER Section 7.2.2.2 states: [C]urrent energy storage technologies are too expensive for wind power to serve as a large base-load generator.188 Although Petitioners quote this statement about the commercial viability of baseload wind power,189 they do not dispute it.

Additionally, the Petition itself demonstrates that wind power is not commercially viable now or in the immediate future. For example, the Petition quotes a 2010 Department of Energy document that states: Key barriers to the development and deployment of offshore wind technology include the relatively high cost of energy.190 More importantly, if baseload wind power was commercially viable, whether onshore or offshore, then there would be such wind farms in existence now, all over the country. Their absence helps demonstrate that baseload wind power is not a commercially viable energy alternative.

Moreover, even if sufficient wind power were available to match the output of Davis-Besse, the transmission requirements would be enormous and add significant cost to such a project. Petitioners have provided no information on the cost or other commercial viability aspects of this transmission.

188 Id.

189 Petition at 21, 37.

190 Id. at 58.

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For the above reasons, Contention 1 fails to demonstrate a genuine dispute on a material issue of fact or law with the ER, as required by 10 C.F.R. § 2.309(f)(1)(vi), and should be rejected.

(iv) Petitioners Have Not Demonstrated that Large Baseload Wind Power Would be a Single, Discrete Electric Generation Source The alleged baseload wind power options purported by Petitioners are not single, discrete electric generation sources, as outlined in the GEIS and NRC case law.191 Specifically, neither (1) wind power coupled with energy storage, nor (2) interconnected wind farms, would provide a single, discrete electric generation source.

Energy Storage Coupled with Wind Farms Energy storage, by definition, is not a single, discrete electric generation source. The discussion in Contention 1, and the corresponding referenced reports and other documents, focus on compressed air storage. A description of how a compressed air storage facility would function using renewable power is provided in the Petition:

Electricity from photovoltaic plants compresses air and pumps it into vacant underground caverns, abandoned mines, aquifers and depleted natural gas wells. The pressurized air is released on demand to turn a turbine that generates electricity, aided by burning small amounts of natural gas. . . . The turbines burn only 40 percent of the natural gas they would if they were fueled by natural gas alone . . . .192 Therefore, a compressed air energy storage facility based on wind power would, at a minimum, consist of two electric generation sources: (1) a wind farm to produce the electricity to compress the air, with the corresponding transmission lines; and (2) the energy storage facility 191 See, e.g., GEIS § 8.1; Indian Point, LBP-08-13, 68 NRC at 95.

192 Petition at 87 (emphasis added). While this quotation is from Contention 2, it is from a document also referenced for Contention 1. See id. at 28. This description of compressed air energy storage is consistent with other documents referenced by Petitioners. See, e.g., Petition Exhibit 11, at 69-70.

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with a natural gas turbine generator that utilizes the compressed air. The energy storage facility itself has a number of major components, including the large air compressors, the caverns that store the compressed air, a natural gas turbine generator, and a source of adequate natural gas supply (such as a commercial natural gas pipeline).193 This system is not a single, discrete electric generation source, and therefore is not a reasonable energy alternative that must be considered in the Davis-Besse ER.

Interconnected Wind Farms Similar to energy storage, but even more dramatic, interconnected wind farms are not a single, discrete electric generation source. By definition, generation from interconnected wind farms consists of many different generation sources (i.e., individual wind farms). One of Petitioners exhibits describes interconnected wind farms as follows:

A solution to improve wind power reliability is interconnected wind power. In other words, by linking multiple wind farms together it is possible to improve substantially the overall performance of the interconnected system (i.e., array) when compared with that of any individual wind farm.194 This same exhibit considers the connection of 19 different wind farms.195 An additional example is the interconnection project supported by the Google corporation, which would consist of numerous wind farms from New Jersey to Virginia.196 The connection of many different wind farms at different sites does not constitute a single, discrete electric generation source.

193 See, e.g., Boise State Univ., Sustainability Research, Overview of Compressed Air Energy Storage, at 2 (Dec.

2007), available at http://coen.boisestate.edu/WindEnergy/resources/ER-07-001.pdf.

194 Cristina L. Archer and Mark Z. Jacobson, Supplying Baseload Power and Reducing Transmission Requirements by Interconnecting Wind Farms, 26 J. of Applied Meteorology and Climatology 1701, 1702 (Nov. 2007) (Petition Exhibit 21).

195 Id. at 1701.

196 Petition at 40-41.

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Therefore, because Contention 1 does not identify a single, discrete electric generation source it should be rejected as not demonstrating a genuine dispute of material fact or law, as required by 10 C.F.R. § 2.309(f)(1)(vi).

c. Petitioners Do Not Provide Sufficient Alleged Facts or Expert Opinion to Support the Contention Section 2.309(f)(1)(v) requires that a contention provide alleged facts or expert opinion which support the requestors/petitioners position on the issue. Petitioners have not done this.

FirstEnergy acknowledges that Petitioners have constructed a lengthy contention (almost 60 pages) with many exhibits; however, volume alone does not lead to admissibility. Petitioners have proffered no expert for this contention, thereby leaving one to find an adequate basis for the claims in the supporting material. Having combed through the Petition and Exhibits, FirstEnergy concludes that the requisite bases are absent.

First, as detailed above, most of the information provided in Contention 1 relates to the availability of wind as a resource, but not baseload wind power.197 Because this information would not satisfy the purpose of the proposed projecttwenty additional years of 908 MWe of baseload power beginning no later than 2017198it does not adequately support the contention.

Second, Petitioners do not identify any existing wind power coupled with energy storage or interconnected wind farms that can produce baseload wind power. Thus, they have not provided adequate support to show that baseload wind power is technically feasible.

Third, Petitioners do not provide any information on the commercial viability of baseload wind power. For example, Petitioners indirectly argue that development of wind power is 197 See generally id. at 16-28, 30-37, 46-67.

198 ER at 1.1-1, 3.1-1, 7.2-1.

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beneficial because it is a legal requirement for FirstEnergy due to Ohio Senate Bill 221.199 However, this Bill does not support Petitioners argument because, as described by Petitioners, it does not specify that wind power must be used and it allows until 2025 for full compliance.200 Thus, Petitioners have not provided adequate support to show that baseload wind power is commercially viable.

Finally, Petitioners do not provide any information that would show that wind power coupled with energy storage or interconnected wind farms would be a single, discrete, electric generation source. In fact, as discussed above, the information provided by Petitioners shows the opposite.201 In summary, Petitioners arguments and information in Contention 1 do not provide the required alleged facts or expert opinions, as required by 10 C.F.R. § 2.309(f)(1)(v), to support their position that wind power is a reasonable alternative to Davis-Besse license renewal.

Petitioners bear the burden of providing sufficient factual basis or expert opinion indicating that a further inquiry is appropriate, and they have not done so here.202

d. Arguments in Contention 1 that Address the Need for Power from Davis-Besse Impermissibly Challenge NRC Regulations and Are Outside the Scope of this Proceeding Contention 1 also is inadmissible to the extent that it attempts to argue there is no need for power from Davis-Besse during the license renewal period. In particular, Petitioners state that the need for Davis-Besse as a means of satisfying demand forecasts for the relicensing 199 See Petition at 65-67.

200 Id.

201 See, e.g., id. at 87-88 (showing that compressed air storage would consist of a wind farm, the energy storage facility itself, and a natural gas turbine generator); Petition Exhibit 21, at 1702 (showing that interconnected wind farms would consist of multiple wind farms connected together).

202 Yankee Atomic, CLI-96-7, 43 NRC at 249 (citing Rules of Practice for Domestic Licensing Proceedings -

Procedural Changes in the Hearing Process, 54 Fed. Reg. at 33,171 (requiring some factual basis for a contention)).

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period must be revisited and the ER fails to adequately evaluate whether license renewal is unnecessary.203 The regulations governing the content of an ER for license renewal, 10 C.F.R.

§ 51.53(c)(2), clearly state that the ER is not required to include discussion of need for power.

Therefore, because an evaluation of the need for Davis-Besses power is not required to be included in the ER, Petitioners arguments are outside the scope of this proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii), and do not support an admissible contention. Furthermore, these arguments represent an impermissible challenge to the requirements specified in Section 51.53(c)(2). As stated in 10 C.F.R. § 2.335(a), absent a waiver, no rule or regulation of the Commission . . . is subject to attack . . . in any adjudicatory proceeding. Petitioners have not sought or received a waiver of Section 51.53(c)(2).

e. Arguments Related to Renewable Energy Sources Other than Wind Power Are Without Basis, Unsupported, and Do Not Demonstrate a Genuine Dispute with the ER The final ground for rejecting Contention 1 derives from Petitioners claim that the contention apparently applies generically to undefined renewable energy sources other than wind power. For example, the description of the contention states that the ER fails to adequately evaluate the full potential for renewable energy sources, such as wind power.204 Other statements vaguely refer in passing to efficiency and solar power,205 or they refer generally to renewable energy alternatives such as wind.206 Petitioners further state in a sweeping manner 203 Petition at 10.

204 Id.

205 See id. at 15-16, 18, 65.

206 Id. at 15, 17-18, 46.

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that the ER has similarly dismissed all of the other renewable energy alternatives that include solar generated electricity, as well as efficiency.207 As discussed above, the arguments regarding wind power in Contention 1 fail to support its admission in this proceeding. Petitioners attempt to generically bootstrap other, undefined renewable energy sources into this wind power contention with superficial statements also must be rejected. The purported supporting bases for Contention 1 are related to wind power, not other unnamed renewable energy sources. In fact, solar power is the subject of Contention 2 and is addressed below.

Quite simply, Petitioners have not provided a basis in Contention 1 for any arguments regarding non-wind sources and have not provided a concise statement of the alleged facts or expert opinions supporting such arguments.208 Moreover, Petitioners have not even attempted in Contention 1 to dispute any discussion of renewable energy sources in the ER, except for wind power. ER Section 7.2.2.2 evaluates many renewable energy sources, including hydropower, wind power, solar power, geothermal energy, biomass energy, municipal solid waste, other biomass-derived fuels, and fuel cells.209 The Appeal Board has held that [t]he reach of a contention necessarily hinges upon its terms coupled with its stated bases.210 And the Commission has rejected such attempts as mere notice pleading and has stated that [g]eneral assertions or conclusions will not suffice.211 For these reasons, any arguments regarding non-207 Id. at 65.

208 See also S. Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 & 4), LBP-09-3, 69 NRC 139, 158 (2009) (rejecting contentions that are open-ended, placeholder contentions that are not based on documentary material or expert analysis).

209 ER at 7.2-8 to 7.2-12.

210 Seabrook, ALAB-899, 28 NRC at 97.

211 Palisades, CLI-07-18, 65 NRC at 414 (quoting Port Auth. of the State of N.Y. (James A. FitzPatrick Nuclear Power Plant), CLI-00-22, 52 NRC 266, 295 (2000)).

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wind renewable energy sources should be disregarded because they do not satisfy the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1)(ii), (v), and (vi).

3. Contention 2 (Solar Power) Is Not Admissible Contention 2 states the following:

Contention Two: Solar Electric (Photovoltaic) Power. The FirstEnergy Nuclear Operating Company (hereinafter, FENOC)

Environmental Report fails to adequately evaluate the full potential for renewable energy sources, such as solar electric power or photovoltaics (hereinafter solar power), to offset the loss of energy production from Davis-Besse, and to make the requested license renewal action from 2017 to 2037 unnecessary. In violation of the requirements of 10 C.F.R. §51.53(c)(3)(iii) and of the GEIS § 8.1, the FENOC Environmental Report (§ 7.2) treats all of the alternatives to license renewal except for natural gas and coal plants as unreasonable and does not provide a substantial analysis of the potential for significant alternatives, such as solar power, in the Region of Interest for the requested relicensing period of 2017 to 2037. The scope of the Supplemental Environment Impact Statement (SEIS) is improperly narrow, and the issue of the need for Davis-Besse as a means of satisfying demand forecasts for the relicensing period must be revisited due to dramatically-changing circumstances in the regional energy mix that are currently underway already during this decade of Davis-Besses remaining operating license (2010 to 2017), and can especially be expected to accelerate and materialize over two decades to come covering FENOCs requested license extension period (2017 to 2037).212 The description of Contention 2 is almost identical to that for Contention 1, except it refers to solar power rather than wind power. Contention 2 boils down to an argument by Petitioners that the Davis-Besse ER is improperly narrow, as it concludes that solar power is not a reasonable alternative to the proposed renewal of the Davis-Besse operating license, and that the underlying need for Davis-Besse as a means of satisfying demand forecasts during the proposed period of 212 Petition at 68-69.

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extended operation must be revisited.213 Petitioners allege that energy storage, coupled with solar power, could provide the baseload power produced by Davis-Besse, and therefore should have been evaluated in the ER in greater detail. Petitioners do not allege that solar power, by itself, could provide baseload power.

As demonstrated below, Contention 2 should be rejected on multiple grounds because it too fails to satisfy the contention admissibility criteria.

• First, as a threshold matter, Petitioners set forth and rely upon the same erroneous legal standard for evaluating reasonable alternatives under NEPA as they did in Contention 1 and, therefore, fail to demonstrate a genuine dispute of material law, as required by 10 C.F.R. § 2.309(f)(1)(vi).

• Second, Petitioners do not raise a genuine dispute of material fact or law with the ER regarding whether solar power is a reasonable energy alternative, also contrary to 10 C.F.R. § 2.309(f)(1)(vi), because: (1) solar power does not accomplish the purpose of the proposed project, which is baseload power equivalent to 908 MWe; (2) Petitioners engage in and call for speculation and have not shown that baseload solar power would be technically feasible or commercially viable either now or in the immediate future; and (3) Petitioners have not shown that baseload solar power is a single, discrete electric generation source.

• Third, Petitioners do not provide sufficient alleged facts or expert opinion to support their position that solar power is a reasonable alternative to license renewal, as required by 10 C.F.R. § 2.309(f)(1)(v).

213 Id. at 69.

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• Fourth, to the extent it challenges the need for power from Davis-Besse, Contention 2 is an impermissible challenge to NRC regulations, which renders it outside the scope of this proceeding pursuant to 10 C.F.R. § 2.309(f)(1)(iii).

• Finally, to the extent Petitioners claim that Contention 2 is broader than just solar power, it is without basis, because it fails to provide a concise statement of alleged facts, and it does not demonstrate a genuine dispute with the ER, contrary to 10 C.F.R.

§ 2.309(f)(1)(ii), (v), and (vi).

a. Petitioners Set Forth and Rely Upon the Wrong Legal Standard, and Therefore Fail to Demonstrate a Genuine Dispute on a Material Issue of Law The legal standard for consideration of energy alternatives under NEPA in a license renewal proceeding is discussed in detail above in Section VI.B.1, and is not repeated here.

Similar to Contention 1, Petitioners set forth and rely upon the wrong legal standards throughout Contention 2. They leapfrog over the threshold legal question of whether solar power is a reasonable baseload generation alternative to the renewal of the Davis-Besse operating license.

Instead, they try to divert the argument to questions that arise only after an alternative is deemed reasonable regarding its comparative environmental impacts.214 FirstEnergy incorporates by reference here its response to Contention 1 regarding the correct, threshold legal standard for considering energy alternatives; the ultimate legal standard incorporated in 10 C.F.R.

§ 51.95(c)(4); and consideration of new and significant information under NEPA.

The ER contains the appropriate level of detail required under the law because it concludes that solar power does not satisfy the threshold determination of whether it is a 214 Id. at 69-71, 82-83, 91-92. For example, Petitioners claim that solar power is given only cursory treatment in the ER and that the environmental impacts from solar power are lower than nuclear, such as the carbon footprint.

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reasonable alternative under NEPA.215 Nothing more is required under NEPA or implementing NRC regulations. As a result, Contention 2 is fundamentally and fatally flawed. It should be rejected for failing to demonstrate a genuine dispute with the ER, as required by 10 C.F.R.

§ 2.309(f)(1)(vi).

b. Contention 2 Does Not Raise a Genuine Dispute of Material Fact or Law with the ER Regarding Whether Solar Power Is a Reasonable Energy Alternative The ER need only discuss reasonable alternatives, and under NEPA and NRC precedent, a reasonable alternative energy source must: (1) accomplish the purpose of the proposed project; (2) be technically feasible now or in the immediate future; (3) be commercially viable now or in the immediate future; and (4) be a single, discrete electric generation source.216 ER Section 7.2.2.2 evaluates whether solar power is a reasonable alternative to Davis-Besse license renewal.

It states that since the output of solar generated power is dependent on the availability of sunlight, supplemental energy sources would be required to meet the base-load capacity of Davis-Besse.217 For this and other reasons, the ER properly concludes that FENOC does not consider solar power to be a reasonable alternative to renewal of Davis-Besses operating license.218 As demonstrated below, Petitioners arguments do not raise a genuine dispute of material fact or law as to whether solar power is a reasonable alternative to Davis-Besse license renewal.

Therefore, Contention 2 should be rejected as not satisfying 10 C.F.R. § 2.309(f)(1)(vi).

215 ER at 7.2-9, 7.2-10; see also 10 C.F.R. Part 51, Subpart A, App. A; 40 C.F.R. § 1502.14(a).

216 GEIS § 8.1; Indian Point, LBP-08-13, 68 NRC at 95.

217 ER at 7.2-10.

218 Id.

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(i) Solar Power Does Not Accomplish the Purpose of the Proposed Project As discussed in response to Contention 1, the proposed action before the Board is renewal of the operating license for Davis-Besse, which produces 908 MWe of baseload power.219 Baseload power has a very specific meaning: energy intended to continuously produce electricity at or near full capacity, with high availability.220 Also, as discussed in response to Contention 1, limiting the purpose of the project, and thus the discussion of energy alternatives, to large baseload generation is supported by Federal and Commission case law.221 Therefore, only large (i.e., 908 MWe) baseload generation would satisfy the purpose of the proposed action of Davis-Besse license renewal. Any claims by Petitioners that FirstEnergy too narrowly defined alternatives to large baseload electricity must be rejected.222 Any arguments or information related to non-baseload generation are irrelevant in this proceeding and do not support admission of Contention 2. The vast majority of information presented by Petitioners in Contention 2 and the corresponding Exhibits relates to the availability and impacts of solar power, not baseload solar power.223 For example, Petitioners discuss development of solar power since 1996, the cost of solar power, suitability of solar power in the FENOC territory, Ohio Senate Bill 221, and solar time-of-day demand curves, without any 219 Id. at 1.1-1, 3.1-1, 7.2-1.

220 Envtl. Law & Policy Ctr., 470 F.3d at 679 (emphasis added).

221 See Hydro Res., CLI-01-4, 53 NRC at 55-56 (holding that reasonable alternatives are those that will bring about the ends of the proposed action); see Indian Point, LBP-08-13, 68 NRC at 92 (It is clear from Commission decisions that the Applicant in the alternatives analysis in its ER need only consider the range of possibilities that are capable of achieving the goals of the proposed action. In the instant case, this action is to relicense IPEC to generate approximately 2158 MWe of base-load energy for an additional 20 years of operation. (citations omitted)); Monticello, LBP-05-31, 62 NRC at 753 (holding that the Commission need only consider the range of alternatives reasonably related to the scope and goals of the proposed action which is to provide baseload generating capacity); Envtl. Law & Policy Ctr., 470 F.3d at 684 (upholding the Boards adoption of baseload energy generation as the purpose behind the ESP); Clinton, CLI-05-29, 62 NRC at 810-11.

222 See Petition at 92-93.

223 See generally id. at 70-87.

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discussion of baseload solar power.224 Most importantly, Petitioners concede that solar power by itself is not baseload by stating that [s]olar power naturally is an intermittent resource.225 Only a few paragraphs, which are discussed below, address alleged baseload solar power through energy storage.226 Therefore, the vast majority of information on solar resources and impacts must be rejected outright because it does not create a genuine dispute of material fact or law with the ERs conclusion that solar power is not a reasonable alternative because it does not provide baseload power.227 The only remaining arguments in Contention 2 address whether baseload solar power is a reasonable alternative to Davis-Besse license renewal. As demonstrated below, Petitioners have not demonstrated that large baseload solar power is technically feasible, commercially viable, or a single, discrete electric generation sourceand as such a reasonable alternative to license renewal at Davis-Besse.

(ii) Petitioners Have Not Demonstrated that Large Baseload Solar Power Is Technically Feasible To be a reasonable alternative, baseload solar power must be technically feasible. In their discussion of baseload solar power through energy storage, Petitioners generally reference the same articles and examples of energy storage projects, focusing on compressed air storage, that they reference in Contention 1.228 These articles and examples do not demonstrate that large baseload solar power is technically feasible now or in the immediate future using energy storage, for the same reasons as discussed in response to Contention 1, above.

224 Id.

225 Id. at 85 (emphasis added).

226 See id. at 87-90.

227 ER at 7.2-10.

228 See Petition at 70-72, 87-90. Although Petitioners mention pumped water, batteries, and water electrolysis, Id.

at 87, they do not provide any discussion or examples for these methods that would create a genuine dispute with the conclusion that baseload solar power is not feasible and viable now or in the immediate future.

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One of the difficulties with making solar power technically feasible for baseload generation is solar powers low capacity factor. For example, PJM, the regional transmission organization that operates the competitive wholesale electricity market in which Davis-Besse power is sold, assigns a currently effective class average capacity factor to solar of 38%.229 Using this standard, it would take almost 2400 MW of installed solar capacity to equal Davis-Besses rated electrical output, and that output would only be considered available 38% of the time. This would not be baseload power.

According to the U.S. Department of Energys Energy Information Administration, the U.S. total renewable net summer capacity for solar power as of 2009 was only 603 MW, well under Davis-Besses capacity.230 Petitioners have provided no information that 2400 MW of solar power (i.e., approximately four times the total U.S. installed capacity as of 2009) is available now or in the immediate future for a NEPA energy alternatives evaluation. In fact, the only example of commercial solar power in Ohio identified in the Petition is a 10 MW solar farm near Upper Sandusky, Ohio,231 which is only a small fraction of the capacity of Davis-Besse.

In summary, use of solar power coupled with energy storage to provide baseload power on the scale of Davis-Besse is simply too remote and speculative for it to be treated as a reasonable alternative under NEPA. Petitioners have provided no specific information to demonstrate that this is technically feasible as a reasonable alternative to Davis-Besse license renewal. Therefore, Petitioners information on this alternative does not create a genuine dispute 229 See PJM Manual 21, App. B, at 19.

230 U.S. Energy Information Administration, Renewable Energy Consumption and Electricity Preliminary Statistics 2009, Table 8 (Release Date: Aug. 2011), available at http://www.eia.doe.gov/cneaf/alternate/page/renew_energy_consump/table8.pdf.

231 Petition at 78.

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of material fact or law, contrary to 10 C.F.R. § 2.309(f)(1)(vi), with the ERs conclusion that solar power is not a reasonable alternative because it does not provide large baseload power.232 (iii) Petitioners Have Not Demonstrated that Large Baseload Solar Power Is Commercially Viable To be a reasonable alternative, baseload solar power also must be commercially viable.

Petitioners, however, have failed to present any arguments or information regarding the commercial viability of baseload solar power on the same scale of output as from Davis-Besse.

The commercial non-viability of baseload solar power as a reasonable alternative to Davis-Besse is underscored by the following: (1) no baseload solar projects exist in the United States; (2) the largest existing compressed air energy storage facility is only 290 MW,233 much less than the 908 MWe Davis-Besse plant; (3) the existing compressed air energy storage facilities are not used for baseload power234; (4) the existing compressed air energy storage facilities do not use solar power235; (5) the total solar power capacity across the entire United States in 2009 was only 603 MW,236 which is much less than the 908 MWe Davis-Besse plant, even when the low capacity factors for solar power are ignored; and (6) there are no realistic plans by anyone to use solar power for baseload. In the face of these facts, it is not rational to conclude that baseload solar power is commercially viable now or in the immediate future.

Additionally, the Petition itself supports the conclusion that solar power is not commercially viable. For example, the Petition includes a graph demonstrating that the 2009 grid cost of solar is between approximately 23 and 28 cents/kWh, compared to a U.S. average 232 ER at 7.2-10.

233 Petition at 89.

234 Boise State Univ., Sustainability Research, Overview of Compressed Air Energy Storage, at 2.

235 Id.

236 U.S. Energy Information Administration, Renewable Energy Consumption and Electricity Preliminary Statistics 2009, Table 8.

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price of electricity in 2009 of about 9.5 cents/kWh.237 The Petition further quotes estimates that the use of compressed air energy storage would add three to four cents/kWh to the cost.238 Even assuming that compressed air energy storage with solar power could be used for solar baseload power, it is not commercially viable, because its price is much higher than other sources. While Petitioners quote an estimate of eight or nine cents/kWh in 2020 for solar power combined with compressed air energy storage,239 such expectations are entirely too speculative for purposes of the Davis-Besse NEPA evaluation. The quoted document that sets forth this lower cost estimate for 2020 bases the projection on assumptions of future technological advancements (e.g.,

increased efficiency, lower installed system cost) that are speculative in nature.240 Moreover, even if sufficient solar power were available to match the output of Davis-Besse, the transmission requirements would be enormous and add significant costs and ancillary impacts to such a project. Petitioners recognize this and state: Considerations of economic potential for FENOC customers would need to include the cost of long distance transmission of power from the southwestern U.S.241 For all of these reasons, Contention 2 is entirely speculative in nature and thereby fails to demonstrate a genuine dispute on a material issue of fact or law with the ER, as required by 10 C.F.R. § 2.309(f)(1)(vi).

237 Petition at 76.

238 Id. at 87.

239 Id.

240 Petition Exhibit 48, at 66. Although the Petition attributes Petition Exhibit 66 as the source of the quoted statement, it actually is from Petition Exhibit 48.

241 Petition at 134.

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(iv) Petitioners Have Not Demonstrated that Large Baseload Solar Power Would be a Single, Discrete Electric Generation Source Petitioners alleged solar power option coupled with energy storage also would not be a single, discrete electric generation source, as outlined in the GEIS and NRC and other case law.242 Energy storage, by definition, is not a single, discrete electric generation source. The discussion in Contention 2, and the corresponding referenced articles and other documents, focus on compressed air storage, in particular. As discussed in the response to Contention 1, a compressed air energy storage facility based on solar power would, at a minimum, consist of two electric generation sources: (1) a solar farm to produce the electricity to compress the air, with the corresponding transmission lines; and (2) the energy storage facility with a natural gas turbine generator that utilizes the compressed air. This is not a single, discrete electric generation source, and therefore is not a reasonable energy alternative that must be considered in the Davis-Besse ER.

Petitioners also discuss use of a distributed system of solar power on rooftops and on highway right-of-ways.243 In addition to not being baseload power, these distributed systems similarly are not single, discrete electric generation sources. As a result, Contention 2 should be rejected as not demonstrating a genuine dispute of material fact or law, as required by 10 C.F.R.

§ 2.309(f)(1)(vi).

242 See, e.g., GEIS § 8.1; Indian Point, LBP-08-13, 68 NRC at 95.

243 Id. at 80-81.

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c. Petitioners Do Not Provide Sufficient Alleged Facts or Expert Opinion to Support the Contention Section 2.309(f)(1)(v) requires that a contention provide alleged facts or expert opinion which support the requestors/petitioners position on the issue. Petitioners have not done so in Contention 2, as repeatedly demonstrated above.

Without repeating all of the above arguments that demonstrate that Petitioners have not shown a genuine dispute on a material issue of law or fact with the Davis-Besse ER, these arguments also support FirstEnergys position that this contention is not adequately supported.

First, as detailed above, most of the information provided in Contention 2 is unrelated to baseload solar power.244 Because this information would not satisfy the purpose of the proposed projecttwenty additional years of 908 MWe of baseload power245it does not adequately support the contention.

Second, Petitioners do not identify any solar power coupled with energy storage that can produce baseload solar power now or in the immediate future. Thus, they have not provided adequate support to show that baseload solar power is technically feasible now or in the immediate future.

Third, Petitioners do not provide sufficient information to show that baseload solar power is commercially viable now or in the immediate future. For example, a 28 cents/kWh cost is not commercially viable when the average price of electricity is about 9.5 cents/kWh.246 Also, Petitioners indirectly argue that development of solar power is viable now because it is a legal requirement for FirstEnergy due to Ohio Senate Bill 221.247 However, this Bill does not support 244 See generally id. at 70-87.

245 ER at 1.1-1, 3.1-1, 7.2-1.

246 Petition at 76.

247 Id. at 83-85.

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Petitioners argument because it allows until 2025 for full compliance.248 Thus, Petitioners have not provided adequate support to show that baseload solar power is commercially viable now or in the immediate future.

Finally, Petitioners do not provide any information that would show that solar power coupled with energy storage would be a single, discrete, electric generation source. In fact, as discussed above, the information provided by Petitioners shows the opposite.249 In summary, Petitioners arguments and information in Contention 2 do not provide the required alleged facts or expert opinions, contrary to 10 C.F.R. § 2.309(f)(1)(v), to support their position that solar power is a reasonable alternative to Davis-Besse license renewal. Petitioners have failed to shoulder the burden of providing sufficient factual basis or expert opinion indicating that a further inquiry is appropriate,250 and Contention 2 must be rejected as a result.

d. Arguments in Contention 2 that Address the Need for Power from Davis-Besse Impermissibly Challenge NRC Regulations and Are Outside the Scope of this Proceeding Contention 2 also is inadmissible to the extent it attempts to argue there is no need for power from Davis-Besse during the license renewal period. In particular, Petitioners state that the need for Davis-Besse as a means of satisfying demand forecasts for the relicensing period must be revisited and the ER fails to adequately evaluate whether license renewal is unnecessary.251 The regulations governing the content of an ER for license renewal, 10 C.F.R.

§ 51.53(c)(2), clearly state that the ER is not required to include discussion of need for power.

248 Id.

249 See, e.g., id. at 87 (showing that compressed air storage would consist of at least a solar farm and the energy storage facility itself (including a natural gas turbine generator)).

250 Yankee Atomic, CLI-96-7, 43 NRC at 249 (citing Rules of Practice for Domestic Licensing Proceedings, 54 Fed. Reg. at 33,171 (requiring some factual basis for a contention)).

251 Petition at 69.

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Therefore, because an evaluation of need for Davis-Besse is not required to be included in the ER, Petitioners arguments are outside the scope of this proceeding, contrary to 10 C.F.R.

§ 2.309(f)(1)(iii), and do not support an admissible contention. Furthermore, these arguments represent an impermissible challenge to the requirements specified in Section 51.53(c)(2). As stated in 10 C.F.R. § 2.335(a), absent a waiver, no rule or regulation of the Commission . . . is subject to attack . . . in any adjudicatory proceeding. Petitioners have not sought or received a waiver of Section 51.53(c)(2).

e. Arguments Related to Renewable Energy Sources Other than Solar Power Are Without Basis, Unsupported, and Do Not Demonstrate a Genuine Dispute with the ER The final ground for rejecting Contention 2 derives from Petitioners claim that the contention apparently applies generically to undefined renewable energy sources other than solar power. For example, the description of the contention states that the ER fails to adequately evaluate the full potential for renewable energy sources, such as solar electric power or photovoltaics.252 Petitioners also refer to significant alternatives, such as solar power.253 As discussed above, the arguments regarding solar power in Contention 2 fail to support its admission in this proceeding. Petitioners attempt to generically bootstrap other, undefined renewable energy sources into this solar power contention with superficial statements also must be rejected. The supporting bases made in Contention 2 are related to solar power, not other unnamed renewable energy sources.

Quite simply, Petitioners have not provided a basis in Contention 2 for any arguments regarding non-solar sources and have not provided a concise statement of the alleged facts or 252 Id. at 68 (emphasis added).

253 Id. at 69 (emphasis added).

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expert opinions supporting such arguments.254 Moreover, Petitioners have not even attempted in Contention 2 to dispute any discussion of renewable energy sources in the ER, except for solar power. ER Section 7.2.2.2 evaluates many renewable energy sources, including hydropower, wind power, solar power, geothermal energy, biomass energy, municipal solid waste, other biomass-derived fuels, and fuel cells.255 The Appeal Board has held that [t]he reach of a contention necessarily hinges upon its terms coupled with its stated bases.256 And the Commission has rejected such attempts as mere notice pleading and has stated that [g]eneral assertions or conclusions will not suffice.257 For these reasons, any arguments regarding non-solar renewable energy sources should be disregarded because they do not satisfy the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1)(ii), (v), and (vi).

4. Contention 3 (Combination of Wind and Solar Power) Is Not Admissible Contention 3 states the following:

The Relicensing GEIS Is Stale, Dated and NEPA Non-Compliant; Commercial Wind and Solar Photovoltaic Baseload Power Should Be Considered Under NEPA as a Single, Combined-Source Alternative.258 Petitioners also state that they incorporate as though rewritten fully herein the facts, arguments, legal points and authorities and rationales contained in Contentions 1 and 2 of this Petition.259 Following Petitioners lead, FirstEnergy incorporates by reference here its responses to Contentions 1 and 2 above.

254 See also Vogtle, LBP-09-03, 69 NRC at 158 (rejecting contentions that are open-ended, placeholder contentions that are not based on documentary material or expert analysis).

255 ER at 7.2-8 to 7.2-12.

256 Seabrook, ALAB-899, 28 NRC at 97.

257 Palisades, CLI-07-18, 65 NRC at 414 (quoting FitzPatrick, CLI-00-22, 52 NRC at 295).

258 Petition at 93.

259 Id.

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As demonstrated below, Contention 3 should be rejected because it does not demonstrate a genuine dispute of material law or fact, contrary to 10 C.F.R. § 2.309(f)(1)(vi), and does not provide the alleged facts or expert opinions to support the contention, contrary to 10 C.F.R.

§ 2.309(f)(1)(v).

a. Contention 3 Does Not Demonstrate a Genuine Dispute of Material Law or Fact with the ER Contention 3 begins with an attack on the threshold recognition in the Relicensing GEIS260 that single, discrete electric generation sources are not reasonable alternatives.261 Petitioners also seem to attack NRC case law, ambiguously stating that market realities seem to be excluded from serious NEPA consideration as a matter of agency policy, something which the Commission affirmed just two years ago.262 The only support for this challenge to the GEIS and NRC case law is Petitioners opinion that the GEIS standard is unfair because as wind and photovoltaic sources proliferate and become directly competitive at the cost per installed kilowatt, there is a strong likelihood that both will (indeed, are) experiencing dramatic expansion.263 Standing alone, this opinion does not constitute a sufficient basis upon which to challenge the GEIS and NRC case law, much less raise a genuine dispute of law or fact regarding the adequacy of the Davis-Besse ER.

The GEIS aptly recognizes that reasonable alternatives must be single, discrete electric generation sources. The Indian Point licensing board adopted this standard when it stated that

[c]onsistent with GEIS § 8.1, this Board considers the reasonable alternatives for license 260 We assume the Relicensing GEIS refers to NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996), available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/v1/index.html.

261 See Petition at 93-94.

262 Id. at 94 (citing Clinton, CLI-05-29, 62 NRC at 806; Indian Point, LBP-08-13, 68 NRC at 205).

263 Id. at 93-94.

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renewal proceedings to be limited to discrete electric generation sources that are feasible technically and available commercially.264 The GEIS explains the purpose for this standard:

While many methods are available for generating electricity, a huge number of combinations or mixes can be assimilated to meet a defined generating requirement, such expansive consideration would be too unwieldy to perform given the purposes of the analysis.265 Petitioners have provided no support for disputing this reasoning in this case.266 Additionally, Contention 3 does not identify a genuine dispute with the ER because Petitioners fail to even claim that a combination of wind and solar would satisfy the other requirements to be a reasonable alternative. In addition to being a single, discrete electric generation source, a reasonable alternative must accomplish the purpose of the proposed project267twenty additional years of 908 MWe of baseload power268 starting no later than 2017and must be technically feasible and commercially viable now or in the immediate future.269 Petitioners do not challenge these requirements. Moreover, Contention 3 provides no information to show that a combination of wind and solar power could provide baseload power of this magnitude, or that this baseload generation would be technically feasible or commercially viable. This would indeed be a high hurdle because the sun only shines part of the day, and the wind does not always blow. Therefore, Petitioners fail to demonstrate a genuine dispute with the ERs conclusions on reasonable alternatives.

264 Indian Point, LBP-08-13, 68 NRC at 95 (emphasis added).

265 GEIS § 8.1.

266 As acknowledged by Petitioners, the GEIS is under revision. Petition at 95. If Petitioners sought to challenge or modify the GEIS, then the appropriate forum was the public comment period for the GEIS and the corresponding rulemaking for 10 C.F.R. Part 51. See Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 74 Fed. Reg. 38,117 (July 31, 2009).

267 See Hydro Res., CLI-01-4, 53 NRC at 55-56 (citing Citizens Against Burlington, 938 F.2d at 195, 196; Grapevine, 17 F.3d at 1506).

268 ER at 1.1-1, 3.1-1, 7.2-1.

269 GEIS § 8.1; Indian Point, LBP-08-13, 68 NRC at 95.

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Contention 3 also fails to acknowledge the discussion of combinations of alternatives in the ER itself. Although not required by the GEIS because it is not a single, discrete electric generation source, ER Section 7.2.2.2 includes an evaluation of the reasonableness of a combination of alternatives as an alternative to Davis-Besse license renewal.270 This section considers a combination of renewable sources, such as wind and solar power, with significant natural gas generation to ensure baseload generation is provided.271 The ER concludes that a combination of alternatives is not reasonable due to the fluctuations of wind and solar resources and the corresponding environmental impacts, and concludes: FENOC believes that various combinations of renewable and advanced energy resources with generation equivalent to that of Davis-Besse are not reasonable alternatives to renewal of Davis-Besses operating license.272 Petitioners failure to even acknowledge the content of the ER is a fatal flaw. The Commission has stated that the petitioner must read the pertinent portions of the license application . . . state the applicants position and the petitioners opposing view, and explain why it disagrees with the applicant.273 Petitioners have not done this. The licensing board in the Summer COL proceeding rejected a similar contention on combinations of alternatives, including wind and solar, because the alleged omitted evaluation of the combinations was already in the ER.274 The Commission upheld this decision, stating that general assertions, without some 270 ER at 7.2-12 to 7.2-13.

271 Id. at 7.2-12.

272 Id. at 7.2-13.

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

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

274 S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), LBP-9-02, 69 NRC 87, 110-12 (2009),

remanded on other grounds, CLI-10-01, slip op. (Jan. 7, 2010); see also S. Tex. Project Nuclear Operating Co.

(South Texas Project Units 3 & 4), LBP-09-21, 70 NRC 581, 622-27 (2009) (rejecting a combination of alternatives contention because the petitioners overlooked the applicants alternatives evaluation in the ER);

Cf. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), Nos. 50-247-286-LR, Ruling on New York States New and Amended Contentions, at 9-13 (June 16, 2009) (admitting a contention that specifically challenged the Draft Supplemental EISs consideration of a combination of generation sources 67

effort to show why the assertions undercut findings or analyses in the ER, fail to satisfy the requirements of Section 2.309(f)(1)(vi).275 A contention that does not directly controvert a position taken by the applicant in the application is subject to dismissal.276 In summary, Petitioners have not demonstrated a genuine dispute of material law or fact, contrary to 10 C.F.R. § 2.309(f)(1)(vi), with the conclusion in the ER that a combination of alternatives is not a reasonable alternative.

b. Contention 3 Is Not Adequately Supported Petitioners have proffered no expert for this contention. Petitioners identify only two items to support Contention 3: a 2005 Indian Point options analysis and notes from a community hearing prepared by an undergraduate student. As demonstrated below, these items do not provide adequate support for Contention 3.

Petitioners reference and quote a 2005 Indian Point options analysis and state that the analysis concludes that retirement of the Indian Point units would result in development of replacement generation.277 Based on this analysis, they suggest a similar effect would be visible across FENOCs region of interest.278 This analysis does not support the contention because it is completely unrelated to whether a combination of baseload wind and solar power is a reasonable alternative and should have been considered in the ER; instead, it is related to (including fossil fuels) as part of the no action alternative); Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), LBP-09-17, 70 NRC 311, 375-80 (2009) (admitting a contention in a COL proceeding that specifically challenged the ERs consideration of a combination of generation sources (including fossil fuels)); Calvert Cliffs 3 Nuclear Project, LLC (Combined License Application for Calvert Cliffs Unit 3), LBP-10-24, slip op. at 44-54 (Dec. 28, 2010) (admitting a contention in a COL proceeding that specifically challenged the Draft EISs consideration of a combination of generation sources (including fossil fuels)).

275 Summer, CLI-10-01, slip op. at 28.

276 See Comanche Peak, LBP-92-37, 36 NRC at 384; see also Millstone, LBP-04-15, 60 NRC at 95.

277 Petition at 96.

278 Id.

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whether replacement generation would be developed if Davis-Besse shuts down.279 Additionally, the Indian Point analysis is for a multiunit site near New York City. Petitioners provide no explanation for why this same conclusion would apply to Davis-Besse.

Petitioners also reference and discuss notes from a community hearing prepared by an undergraduate student.280 Petitioners claim that these notes show that a combination of wind power and solar power can readily replace not only the electricity output from Davis-Besse after 2017, but also the jobs.281 Once again, this information does not provide support for the contention because it does not demonstrate that wind and solar power in combination could provide baseload power on the scale of Davis-Besse, and therefore does not show that this combination presents a reasonable alternative. Although the notes in Exhibit 67 argue that the use of wind and solar in combination could reduce some of the intermittency concerns, these notes do not provide support for use of these sources for large, baseload generation.282 In summary, Petitioners have not provided adequate support, contrary to 10 C.F.R.

§ 2.309(f)(1)(v), to show that wind power and solar power in combination are a reasonable alternative to Davis-Besse license renewal.

279 Petitioners appear to be arguing that there is no need for Davis-Besse because other generation sources would replace it if the license was not renewed. As discussed above, 10 C.F.R. § 51.53(c)(2) states that the ER is not required to include discussion of need for power. Therefore, this argument is outside the scope of this proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii).

280 Petition at 98; Kathryn Hoepfl, Notes from Davis Besse Re-Licensing Community Hearing (Dec. 2010)

(Petition Exhibit 67).

281 Id.

282 Additionally, Petition Exhibit 67 misunderstands the definition of baseload power. It states: This sentence is a contradiction for the fact that 910 MW is the peak production capacity of Davis Besse, however DB only provides 8.3% of all of FirstEnergys electricity provided, so it is not a base-load. Petition Exhibit 67, at 5.

The proportion of Davis-Besse to FirstEnergys overall generation capacity is unrelated to whether Davis-Besse is a baseload unit. Davis-Besse is a baseload unit because it operates at near full capacity with high availability.

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5. Contention 4 (SAMAs) Is Not Admissible Contention 4 alleges that FirstEnergys ER is inadequate and violates 10 C.F.R.

§ 51.53 (c)(3)(ii)(L) because the SAMA analysis contained therein purportedly underestimates the true cost of a severe accident at the Davis-Besse plant.283 Contention 4 contains six subparts, referred to below as Contentions 4a through 4f. Petitioners state that these contentions, individually and together with one or more of the others, show that FirstEnergy improperly minimized costs likely to result from a severe accident.284 As summarized by Petitioners, Contentions 4a through 4f allege that the Davis-Besse SAMA analysis is inadequate because it:

• Uses probabilistic modeling, which supposedly underestimates the deaths, injuries, and economic impact that may result from a severe accident by multiplying consequence values, irrespective of their amount, with very low probability numbers. (4a)

• Minimizes the potential amount of radioactive material released during a severe accident at Davis-Besse. (4b)

• Uses an outdated and inaccurate proxy, the MELCOR Accident Consequence Code System (MACCS2) computer program, in modeling a severe accident. (4c)

• Uses an inappropriate air dispersion model, the straight-line Gaussian plume model, and meteorological data inputs that do not accurately predict the geographic dispersion and deposition of radionuclides at Davis-Besses Great Lakes shoreline location. (4d)

• Minimizes and inaccurately reflects the economic consequences of a severe accident, including decontamination costs, cleanup costs and health costs, and either minimizes or ignores a host of other costs. (4e)

• Includes inappropriate statistical analysis of data by using mean consequence values instead of, for example, 95 percentile values.285 (4f)

Below, FirstEnergy addresses each subpart as a separate contention and demonstrates that each contention is inadmissible. Therefore, whether its subparts are viewed independently or 283 Petition at 100.

284 Id. at 103.

285 Id. at 104.

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cumulatively in combination with other subparts, Contention 4 should be rejected in its entirety for failing to meet the requirements of 10 C.F.R. § 2.309(f)(1)(iii)-(vi). As a preliminary matter, however, FirstEnergy presents background information on (1) the governing regulations and precedent relevant to Contention 4, and (2) the Davis-Besse SAMA analysis described in the ER.

a. Overview of SAMA Analysis and Related NEPA Principles (i) Controlling NEPA Principles Applicable to SAMA Analysis As discussed further below, SAMA analysis is mandated by 10 C.F.R. Part 51the NRCs NEPA-implementing regulationsand thus is a NEPA-derived requirement.

Accordingly, consideration of mitigation alternatives is governed by the NEPA rule of reason.286 Under that standard, an EIS need contain only a reasonably thorough discussion of the significant aspects of the probable environmental consequences of a proposed action.287 In Methow Valley, the U.S. Supreme Court held that NEPA requires a reasonably complete discussion of possible mitigation measures, but that there is no substantive requirement that a complete mitigation plan be actually formulated and adopted.288 As the Methow Valley Court further explained, NEPA is intended to generate information and discussion on those consequences of greatest concern to the public and of greatest relevance to the agencys decision, rather than distorting the decisionmaking process by overemphasizing 286 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI 17, 56 NRC 1, 12 (2002) (citing Vt. Yankee, 435 U.S. at 551; Citizens Against Burlington, 938 F.2d at 195).

287 Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir. 2003) (emphasis added).

288 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (l989). See also Laguna Greenbelt, Inc. v.

U.S. Dept of Transp., 42 F.3d 517, 528 (9th Cir. 1994) (NEPA does not require a fully developed plan that will mitigate all environmental harm before an agency can act; NEPA requires only that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fully evaluated.) (citations omitted).

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highly speculative harms.289 Thus, [u]nder NEPA, mitigation (and the SAMA issue is one of mitigation) need only be discussed in sufficient detail to ensure that environmental consequences [of the proposed project] have been fairly evaluated.290 In the SAMA context, the Commission focuses on whether a license renewal applicant has provided a reasonable consideration of severe accident mitigation alternatives.291 (ii) Applicable NRC Requirements, Guidance, and Precedent (1) NRC Regulations Part 51 divides the environmental requirements for license renewal into generic and plant-specific components, referred to as Category 1 and Category 2 issues, respectively.292 The NRC prepared the GEIS to evaluate and document those generic impacts that are well understood based on extensive current-fleet operating experience. The NRC staff must prepare a plant-specific supplement to the GEIS that adopts applicable generic impact findings from the GEIS, evaluates any new and significant information, and discusses site-specific impacts.293 The NRCs GEIS provides a generic bounding evaluation of severe accident impacts and the technical basis for that evaluation.294 Based on the GEIS evaluation, Part 51 concludes that the [t]he probability weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to ground water, and societal and economic impacts from severe 289 Methow Valley, 490 U.S. at 356 (citations omitted); see also Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 351 (2002) (stating that the Commission will not transform NEPA analysis into a form of guesswork and distort NEPAs cost-benefit calculus).

290 McGuire/Catawba, CLI-03-17, 58 NRC at 431 (quoting Methow, 490 U.S. at 352).

291 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481-482.

292 See generally, 10 C.F.R. Part 51, Subpart A, App. B, Table B-1.

293 10 C.F.R. § 51.95(c).

294 Pilgrim, CLI-10-11, slip op. at 37-38.

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accidents are small for all plants.295 Thus, a plant-specific analysis of severe accident impacts is not required in individual license renewal proceedings.296 Part 51, nonetheless, provides that [i]f the staff has not previously considered [SAMAs]

for the applicants plant in an environmental impact statement or in an environmental assessment, a consideration of alternatives to mitigate severe accidents must be provided.297 In 1996, the Commission explained that the site-specific SAMA analysis requirement is based on the NRCs NEPA regulations (which require consideration of mitigation alternatives in initial and supplemental EISs), and the Third Circuits 1989 Limerick decision (which requires a NEPA review of severe accident mitigation design alternatives (SAMDAs) at the initial operating license stage).298 The Commission further explained that, at the time, it could not reach a generic conclusion regarding mitigation alternatives because all licensees had not completed the agencys Part 50-based ongoing regulatory program related to severe accident mitigation.299 Severe accident risk is assessed in terms of total averted risk, which includes averted public exposure (health risk converted into dollars to estimate the cost of the public health consequence), averted onsite cleanup cost, averted offsite property damage costs, averted occupational exposure costs, and averted power replacement costs.300 Thus, SAMA analysis 295 10 C.F.R. Part 51, Subpart A, App. B, Table B-1 (Postulated Accidents; Severe accidents) (emphasis added).

296 See Pilgrim, CLI-10-11, slip op. at 37 (NRC SAMA analyses are not a substitute for, and do not represent, the NRC NEPA analysis of potential impacts of severe accidents.).

297 10 C.F.R. § 51.53(c)(3)(ii)(L); see also id. Part 51, Subpart A, App. B, Table B-1.

298 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,480; see also Limerick Ecology Action v. NRC, 869 F.2d 719, 736-39 (3rd Cir. 1989) (holding that the NRC could not generically dispense with the consideration of SAMDAs, under NEPA, through a policy statement issued pursuant to its Atomic Energy Act authority). SAMDAs apply to plants seeking their initial operating licenses.

SAMAs, in contrast, apply to plants seeking renewal of their previously-issued operating licenses.

299 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,480-481 (discussing the SAMA analysis requirement).

300 McGuire/Catawba, CLI-02-17, 56 NRC at 8 n.14. NUREG/BR-0184, Regulatory Analysis Technical Evaluation Handbook (Jan. 1997), provides detailed information on how averted risk is calculated. Id.

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uses PRA and cost-benefit analysis techniques to identify and assess possible plant changes that could further reduce the radiological risk from a severe accident by preventing substantial core damage or by limiting releases from containment after any substantial core damage.301 Such changes may include, for example, plant hardware modifications (such as the use of additional engineering safety features) or operational changes, such as improved procedures, and augmented training of control room and plant personnel.302 Whether a SAMA may be cost-beneficial to implement is based upon a weighing of the cost to implement the SAMA with the reduction in (monetized) risks to public health, occupational health, and offsite and onsite property.303 (2) NRC Guidance The NRC and the industry have issued guidance to facilitate the preparation of SAMA analyses and the staffs review thereof. In particular, the Nuclear Energy Institute (NEI) has developed an industry template, NEI 05-01, Revision A, for completing SAMA analyses that relies upon NUREG/BR-0184 regulatory analysis techniques, is a result of experience gained through past SAMA analyses, and incorporates insights gained from review of NRC evaluations 301 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,480-482; McGuire/Catawba, CLI-02-17, 56 NRC at 5; see also Pilgrim, CLI-10-11, slip op. at 38-39 (stating that SAMA analysis is neither a worst-case nor a best-case impacts analysis, but an averaging of potential consequences.).

302 See McGuire/Catawba, CLI-02-17, 56 NRC at 5.

303 Id. at 7-8. When it imposed the SAMA analysis requirement, the Commission expected that any potentially cost-beneficial SAMAs generally would be procedural and programmatic fixes, with any hardware changes being only minor in nature and few in number. Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481.

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of SAMA analyses and associated RAIs [requests for additional information].304 The NRC staff has endorsed NEI 05-01, Revision A.305 Plant-specific PRAs generally are key components of an applicants SAMA analysis.

NEI 05-01 instructs applicants to identify plant-specific SAMA candidates by reviewing dominant risk contributors in the Level 1 and Level 2 PRA models.306 It further directs applicants to develop a Level 3 PRA model to determine off-site dose and economic impacts of severe accidents based on Level 1 PSA307 results, Level 2 PSA results, atmospheric transport, mitigating actions, dose accumulation, early and latent health effects, and economic analyses.308 NEI 05-01 indicates that the MACCS2 code may be used as an analysis tool to calculate the off-site consequences of a severe accident and provides guidance on the input data (e.g.,

population, economic, nuclide release, emergency response, and meteorological data).309 304 NEI 05-01, Severe Accident Mitigation Alternatives (SAMA) Analysis, Guidance Document, at i (Rev. A, Nov. 2005), available at ADAMS Accession No. ML060530203 (NEI 05-01).

305 See Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses (Aug. 2007) (LR-ISG-2006-03), available at http://www.nrc.gov/reading-rm/doc-collections/isg/license-renewal.html. See also Draft Regulatory Guide DG-4015, Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications, at 48 (July 2009), available at ADAMS Accession No. ML091620409 (stating that applicants should consider . . .

the guidance provided in NEI 05-01).

306 NEI 05-01, at 23. PRAs typically include three major phases. Level 1 PRA covers the period in time from the initiating event to the time of core damage. It models internal and external initiating events, determining the contribution to core damage frequency (CDF) and the dominant initiating events. Level 2 PRA begins at core damage and follows the accident progression. Specifically, it determines release frequency, severity, and timing based on the Level 1 PRA, containment performance, and accident progression analyses. Level 3 PRA tracks these releases offsite and evaluates the offsite human health and environmental impacts from the releases, including emergency response (e.g., evacuation). See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481; NEI 05-01, Rev. A at 4, 10, 13.

307 PRA is sometimes referred to as probabilistic safety assessment (PSA). The terms PRA and PSA generally are used interchangeably within the nuclear industry.

308 NEI 05-01, at 13.

309 Id. MACCS2 is a computer code developed by the NRC to evaluate the potential impacts of severe accidents at nuclear power plants on the surrounding public. The MACCS2 code simulates the atmospheric release of radioactivity, the direction, speed of travel, and dispersion (spread and dilution) of the plume based on meteorological inputs and, ultimately, calculates radiological health and economic impacts. See http://www.nrc.gov/about-nrc/regulatory/research/comp-codes.html; ER, att. E at E-33. In SAMA analyses, MACCS2 commonly is used to evaluate the off-site consequences (population dose and economic costs) of a radioactive material release to the environment from severe accidents. Pilgrim, CLI-10-11, slip op. at 4.

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(3) Commission Adjudicatory Precedent The Commission has adhered closely to established NEPA principles in its adjudicatory proceedings, including those involving SAMA contentions. The McGuire/Catawba and Pilgrim license renewal proceedings are illustrative and reflect the standard that should be applied in evaluating challenges to a SAMA analysis. In McGuire/Catawba, the Commission stated that:

For any severe accident concern, there are likely to be numerous conceivable SAMAs and thus it will always be possible to come up with some type of mitigation alternative that has not been addressed by the Licensee. In the end, whether a SAMA alternative is worthy of more detailed analysis in an [ER] or SEIS hinges upon whether it may be cost-beneficial to implement.

Under the rule of reason governing NEPA, [t]o make an impact statement something more than an exercise in frivolous boilerplate the concept of alternatives must be bounded by some notion of feasibility. It would be unreasonable to trigger full adjudicatory proceedings based merely upon a suggested SAMA under circumstances in which the Petitioners have done nothing to indicate the approximate relative cost and benefit of the SAMA.

Without any notion of cost, it is difficult to assess whether a SAMA may be cost-beneficial and thus warrant serious consideration. The Commission is unwilling to throw open its hearing doors to Petitioners who have done little in the way of research or analysis, provide no expert opinion, and rest merely on unsupported conclusions about the ease and viability of their proposed SAMA.310 The Commission emphasized that, while there may be many theoretically conceivable SAMAs, many SAMAs will prove far too costly relative to the reduction in risk that they might provide.311 Such SAMAs do not require analysis in an ER or SEIS.312 310 McGuire/Catawba, CLI-02-17, 56 NRC at 11-12 (quoting Vt. Yankee, 435 U.S. at 551) (applying NEPAs rule of reason and rejecting proposed SAMA contention for failure to provide any notion of cost).

311 Id. at 12.

312 Id.

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The Commission recently reiterated these guiding precepts in the pending Pilgrim proceeding, albeit after an intervenor appealed the Boards summary dismissal of its contention.

Nonetheless, the Commission affirmed the standard that it applied in the McGuire/Catawba case.

Specifically, it indicated that a petitioner must adequately support its claim that there is a genuine material disputei.e., a dispute that could lead to a different conclusion on potential cost-beneficial SAMAs.313 The Commission further stated that [t]he ultimate concern here is whether any additional SAMA should have been identified as potentially cost-beneficial, not whether further analysis may refine the details in the SAMA NEPA analysis.314 Significantly, in the aforementioned license renewal proceedings, the Commission also spoke to a petitioners burden at the contention pleading stage. Where a petitioner has identified specific SAMAs in question, the Commission has noted that the petitioner must provide more than a conclusory statement that an envisioned SAMA would not pose a great challenge.315 To be admissible, such a contention must include some recognition of what logistical or technical concerns might be involved in implementing the proposed SAMA, and some ballpark figure of the cost of implementing the SAMA.316 Where a petitioner more broadly challenges an applicants SAMA analysis methodology or assumptions, the petitioner must provide adequate support showing that it is genuinely plausible that inclusion of an additional factor or use of other assumptions or models may change the cost-benefit conclusions for the SAMA candidates evaluated.317 This requires a reasoned evaluation of whether and to what extent the petitioners allegations credibly could or would 313 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC 529, 533 (2009).

314 Id.

315 McGuire/Catawba, CLI-02-17, 56 NRC at 12 (internal quotation marks omitted).

316 Id.

317 Pilgrim, CLI-10-11, slip op. at 39.

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alter the [applicants] SAMA analysis conclusions on which SAMAs are cost-beneficial to implement.318 A petitioners own unsupported reasoning and computations is insufficient.319 Moreover, the petitioner must identify some direct connection between the factual information on which it relies and the SAMA analysis cost-benefit results.320 Merely citing to pages in diverse reports without any additional explanation or other obvious link to the SAMA analysis is insufficient to raise a genuine material dispute for hearing.321

b. Overview of the Davis-Besse SAMA Analysis The SAMA analysis presented in the Davis-Besse ER follows a standard, NRC-accepted approach for evaluating the costs and benefits of particular SAMAs.322 In this regard, it adheres to the guidance contained in NEI 05-01 and NUREG/BR-0184.323 First, FirstEnergy determined the risk of a severe accident through Level 1 and Level 2 PRAs.324 It then used release category frequencies and characterizations developed using the Modular Accident Analysis Program (MAAP) computer code as input to the subsequent Level 3 PRA.325 The Level 3 PRA used MACCS2 to simulate the impact of a severe accident on the surrounding environment.326 The Level 3 PRA addresses plant-specific release data, including the time-dependent nuclide distribution of releases and release frequencies, the behavior of the 318 Pilgrim, CLI-10-22, slip op. at 10.

319 Pilgrim, CLI-10-11, slip op. at 36.

320 Id. at 31 n.121.

321 Id.

322 See generally ER § 4.20 (Severe Accident Mitigation Alternatives) & att. E (Severe Accident Mitigation Alternatives Analysis).

323 See id. at 4.20-1 to 4.20-3.

324 Id. at 4.20-1; id. att. E at E-57 to E-63.

325 Id. at 4-20.1; id. att. E at E-17, E-37 to E-38. The MAAP computer code is used by nuclear utilities and other entities to predict the response of light-water reactor power plants during severe accidents by modeling the dominant thermal-hydraulic and fission product phenomena in both the primary system and the containment.

326 Id. at 4.20-2; id. att. E-33 to E-42.

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population during a release (evacuation parameters), and site-specific meteorology to simulate the probability distribution of impact risks (both exposures and economic effects) to the surrounding 50-mile radius population.327 As discussed further below in response to Contention 4f, FirstEnergy also performed sensitivity analyses to assess the impact of assumptions associated with the site population, meteorological conditions, and evacuation timing when defining the input parameters to MACCS2.328 The final results of the Level 3 PRA evaluation for each SAMA candidate were the value of the cumulative dose expected to be received by off-site individuals and the value of the expected off-site property losses due to severe accidents.329 Based on NRC guidance in NUREG/BR-0184, FirstEnergy then estimated the maximum achievable benefit for any SAMA candidate at Davis-Besse.330 This value provided an upper bound of any potential SAMA candidate benefit and was subsequently used (in the Phase 1 and Phase II SAMA analyses noted below) to eliminate particular SAMA candidates from further analysis, as appropriate.331 FirstEnergy identified potential SAMA candidates that prevent core damage and that prevent significant releases from containment.332 These SAMAs included 167 SAMA candidates.333 FirstEnergy then qualitatively screened out certain SAMA candidates using the criteria set forth in Section E.6 of the ER (Phase I SAMA analysis), because, for example, they are not applicable to the Davis-Besse plant design or are already implemented at Davis-Besse.334 327 Id.

328 Id. at 4.20-2; id. att. E at E-42 to E-45.

329 Id. at 4.20-2.

330 Id. at 4.20-1 to 4.20-2; id. att. E at E-17, E-46 to E-56.

331 Id. at 4.20-2.

332 Id. at 4.20-2; id. att. E at E-57 to E-60.

333 Id. at 4.20-3; id. att. E at E-63 & Table E.5-4.

334 Id. at 4.20-3; id. att. E at E-63 to E-65.

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As described in ER Section E.7, following the guidance in NUREG/BR-0184, FirstEnergy then subjected those SAMA candidates that passed the qualitative screening to a detailed cost-benefit analysis (Phase II SAMA Analysis), in which it compared the estimated benefit in dollars of implementing the SAMA candidate to the estimated cost of implementation.335 There were no SAMA candidates that survived the Phase II analysis.336 However, the sensitivity analysis described in ER Section E.8 identified one SAMA candidate (addition of a portable, diesel-driven battery charger to the existing DC system) that was potentially cost-beneficial when considered in the context of the sensitivity analysis.337

c. Summary of FirstEnergy Response to Contention 4 Contention 4 suffers from several pervasive flaws that render all of its six subparts, and therefore the contention in its entirety, inadmissible under 10 C.F.R. § 2.309(f)(1). These flaws are discussed further below.

First, Contention 4 raises numerous issues that plainly are beyond the proper scope of this license renewal proceeding, in violation of 10 C.F.R. § 2.309(f)(1)(iii). For example, Petitioners challenge the use of PRA methods in SAMA analysis, seek consideration of the effects of intentional acts on the SAMA analysis, and challenge generic NRC environmental impact findings codified in Part 51 (e.g., the Commissions findings concerning the on-site storage of spent nuclear fuel and the societal and economic impacts of license renewal). Significantly, Petitioners have not sought a waiver of the applicable regulations or findings.

Second, Contention 4 lacks adequate support in the form of alleged facts or expert opinion, in contravention of 10 C.F.R. § 2.309(f)(1)(v). PRA and SAMA analyses require 335 Id.; att. E at E-66 to E-69.

336 Id. at 4.20-3; id. att. E at E-74.

337 Id., att. E at E-70 to E-74.

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specialized technical acumen and experience, including some basic familiarity with the MACCS2 code. Here, Petitioners provide no expert support for their contention. Instead, they merely state: If a hearing is granted, Petitioners intend to bring forward expert testimony in support of this contention during succeeding stages of this proceeding.338 While Petitioners need not be technical experts, they must knowledgeably provide some threshold-level factual basis for their contention.339 Petitioners have not done so here.

Frequently, Petitioners make bare, conclusory statements unsupported by any citation to relevant technical literature or expert opinion. When Petitioners do reference studies on severe accident risk, pollutant dispersal patterns, and other potentially-relevant topics, they do not explain those studies in a manner that supports admission of the contention.340 Parties must clearly identify evidence on which they rely . . . with reference to a specific point. The Commission cannot be faulted for not having searched for a needle that may be in a haystack.341 In the case of SAMA contentions, there must be a direct connection to the SAMA cost-benefit results.342 Indeed, Petitioners have merely copiedalmost verbatimthe entire SAMA contention that their fellow petitioners filed in the Seabrook license proceeding.343 But as the Commission has made clear, cloning contentions from other proceedings does not suffice to meet the NRCs current contention pleading requirements:

338 Petition at 99.

339 Turkey Point, CLI-01-17, 54 NRC at 19.

340 In fact, some of the referenced documents actually contradict Petitioners arguments, as noted below.

341 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-89-03, 29 NRC 234, 241 (1989); see also Hydro Res., CLI-01-4, 53 NRC at 46 (stating that the Commission should not be expected to sift unaided through earlier briefs or other documents filed before the Board to piece together and discern a partys argument and the grounds for its claims).

342 Pilgrim, CLI-10-11, slip op. at 31 n.121.

343 Petitioners January 5, 2011 errata make this abundantly clear. Petitioners corrected numerous references to NextEra and Seabrook (and even a reference to Entergy), which are remnants from proposed contentions in other proceedings.

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[T]he NRC toughened its contention-pleading rule in 1989, to avoid the admission of contentions based on little more than speculation. Prior to the amended rule, it was possible for intervenors to be admitted to hearing after merely copying contentions from another proceeding involving another reactor.

Hearings should serve the purpose for which they are intended: to adjudicate genuine, substantive safety and environmental issues placed in contention by qualified intervenors.344 In short, the Commissions current contention pleading requirements are intended to avoid the admission of frivolous contentions where, as here, the petitioner may not fully understand a contention or does not adequately identify the issues that [it] seeks to litigate.345 Third, Petitioners fail to demonstrate that any of its SAMA contentions raises a genuine, material dispute with the Applicant, contrary to the requirements of 10 C.F.R. § 2.309(iv) and (vi). As discussed above, a petitioner must provide adequate support to show that additional SAMA should have been identified as potentially cost-beneficial.346 The question is not whether there are plainly better models or whether the SAMA analysis can be refined further.347 Notably, Petitioners expressly concede that they have not even attempted to meet this materiality standard: Petitioners do not offer examples of how this cost benefit equation might have been skewed in favor of no mitigation.348 Instead, Petitioners assert that [t]he dramatic minimization of costs by FENOC are such that it should be obvious that many SAMAs would be cost effective if the described defects in the analysis were addressed.349 Such unsupported 344 Turkey Point, CLI-01-17, 54 NRC at 19 (internal citations omitted).

345 Proposed Rule, Rules of Practice for Domestic Licensing Proceedings-Procedural Changes in the Hearing Process, 51 Fed. Reg. 24,365, 24,366 (July 3, 1986).

346 Pilgrim, CLI-09-11, 69 NRC at 533.

347 Pilgrim, CLI-10-11, slip op. at 37.

348 Petition at 150.

349 Id. (emphasis added); see also id. at 147 (It seems clear that a number of additional SAMAs that were previously rejected by the applicants methodology will now become cost effective.).

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speculation is not sufficient to show that there is a material flaw in an applicants SAMA analysis and associated cost-benefit analysis results.

Moreover, Petitioners completely ignore relevant and dispositive information that undermines their contentions. This information includes pertinent factual information contained in the Davis-Besse ER (e.g., discussion of evacuation parameters used in Level III PRA analysis and sensitivity studies performed by FirstEnergy). It also includes directly-applicable NRC adjudicatory precedent in which the Commission and/or other Boards have squarely rejected identical arguments and articulated controlling legal principles. In fact, in one of those decisions, the Commission notes that the MACCS2 codewhich Petitioners allege is outdated and inaccurate350is the current, established code for NRC SAMA analysis.351 For these reasons, and as explained more fully below, none of the six subparts of Contention 4, whether viewed independently or cumulatively in combination with other subparts of the contention, is admissible. Thus, Contention 4 should be rejected in its entirety for failing to meet the requirements of 10 C.F.R. § 2.309(f)(1)(iii)-(vi).

d. Contention 4a: Use of Probabilistic Risk Assessment Techniques In Contention 4a, Petitioners generically claim that probabilistic modeling underestimates the deaths, injuries, and economic impact that may result from a severe accident.352 According to Petitioners, FirstEnergy can simply multiply all consequences of an accident by extremely low probability and thus reject all possible mitigation as too costly.353 Petitioners next argue that FirstEnergys SAMA evaluation, as a probabilistic analysis, should include consideration of 350 Petition at 150.

351 Pilgrim, CLI-10-22, slip op. at 9.

352 Petition at 106.

353 Id.

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intentional malevolent acts.354 Finally, they also contend that probabilistic methods are universally inappropriate for any decision regarding adequate protection.355 As demonstrated below, Contention 4a fails to address the ER and, instead, raises generic issues beyond the scope of this proceeding, lacks adequate factual or legal support, and fails to raise a genuine dispute on a material issue of fact or law. Accordingly, the Board should deny admission of the Contention 4a for failure to meet 10 C.F.R. § 2.309(f)(1)(iii), (iv), (v), and (vi).

(i) Contention 4a Raises Issues That Are Neither Within the Scope of this Proceeding Nor Material to the NRCs NEPA findings (1) Alleged Unacceptability of Probabilistic Risk Assessment Petitioners generic argument concerning use of probabilistic risk assessment techniques directly contravenes Commission regulations and adjudicatory precedent, and fails to take specific issue with the site-specific SAMA analysis set forth in the ER. As a general matter, Part 51 states that the probability weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to ground water, and societal and economic impacts from severe accidents are small for all plants, but that alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives.356 Thus, the SAMA analysis is a site-specific mitigation analysis that is intended to supplement the NRCs generic evaluation of severe accident risk, for which the overall impact already has been determined to be small and codified by ruleusing probabilistic risk analysis. Any contention asserting that this supplemental site-specific mitigation analysis must ignore risk and focus only on accident consequences necessarily implies that the NRCs underlying codified impact analysis improperly considered risk. Petitioners explicitly make this connection between their challenge and the 354 Id. at 107-08.

355 Id. at 107.

356 10 C.F.R. Part 51, Subpart A, App. B, Table B-1 (emphasis added).

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NRCs impact determination in contendingcontrary to NRCthat the impacts of severe accidents are unlikely to be small.357 This challenge to NRC regulations is impermissible under 10 C.F.R. § 2.335.

Notably, when the Commission promulgated the current SAMA analysis requirement contained in 10 C.F.R. § 51.53(c)(3)(ii)(L), it expressly acknowledged the appropriateness of using PRAs to support site-specific SAMA analyses performed for license renewal:

In general, the Commission expects that significant efficiency can be gained by using site-specific [Individual Plant Examination (IPE) and IPE for External Events (IPEEE)] results in the consideration of severe accident mitigation alternatives. The IPEs and IPEEEs are essentially site-specific PRAs that identify probabilities of core damage (Level 1 PRA) and include assessments of containment performance under severe accident conditions that identify probabilities of fission product releases (Level 2). As discussed in Generic Letter 88-20, Individual Plant Examination for Severe Accident Vulnerabilities (November 23, 1988), one of the important goals of the IPE and IPEEE was to reduce the overall probabilities of core damage and fission product releases as necessary by modifying hardware and procedures to help prevent or mitigate severe accidents.358 This Commission statement underscores the inherently probabilistic nature of SAMA analysis.

This fact also is manifest in recent Commission case law. In the Pilgrim license renewal proceeding, the Board rejected as inadmissible a similar challenge to the use of probabilistic modeling techniques, stating that the use of probabilistic risk assessment and modeling is obviously accepted and standard practice in SAMA analyses.359 In the same proceeding, the 357 Petition at 105.

358 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481 (emphasis added). The Commission further noted that, although Level 3 PRAs have been used in SAMDA analyses to generate site-specific offsite dose estimates so that the cost-benefit of mitigation alternatives could be determined, site-specific Level 3 PRAs are not required to determine whether an alternative under consideration will provide sufficient benefit to justify its cost. Id.

359 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 340 (2006).

As the Pilgrim Board further explained in another ruling, [t]he underlying analyses require modeling of extremely complex time and physical condition dependent phenomena, which all those familiar with the field 85

Commission echoed the Boards conclusion, confirming that the SAMA analysis assesses whether and to what extent the probability-weighted consequences of the analyzed severe accident sequences would decrease if a specific SAMA were implemented at a particular facility

. . . [and] therefore is a probabilistic risk assessment analysis.360 For these several reasons, Contention 4a should be dismissed in its entirety.

(2) Alleged Need to Consider Intentional Acts Putting aside the fatal deficiency in Contention 4a described above, Petitioners further argue that FirstEnergy has improperly failed to model intentional acts in its analysis of external events as part of its SAMA analysis.361 In support of this allegation, Petitioners cite a 2004 report prepared by Edwin Lyman of the Union of Concerned Scientists that purports to analyze the health and economic impacts of a terrorist attack on the Indian Point plant that results in a core meltdown and a large radiological release to the environment.362 As quoted by Petitioners, that report states that accident probabilities are not relevant for scenarios that are caused by intentional acts, including acts by terrorists seeking to maximize the impact of their attack.363 However, the Commission has considered and rejected the argument that the SAMA analysis must consider intentional acts. In the Oyster Creek and Pilgrim license renewal know are generally not amenable to accurate modeling. Therefore, this Agency has wisely determined that these effects and potential benefits of mitigation be examined using probability weighted consequences.

Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-07-13, 66 NRC 131, 142 & n.12 (2007). In this approach, the SAMA analysis compute[s] hundreds of scenarios which [a]re then weighted according to their probabilities[,] and then [develops] a distribution of probabilities of the consequences and risks. Id. The wide variation in code input [leads to] a set of results with statistical significance. Id.

360 Pilgrim, CLI-10-11, slip op. at 3 (emphasis added).

361 Petition at 108.

362 Id. (citing Edwin Lyman, Chernobyl on the Hudson? The Health and Economic Impacts of a Terrorist Attack at the Indian Point Nuclear Plant (Sept. 2004) (2004 Lyman Report), available at http://www.ucsusa.org/nuclear_power/nuclear_power_risk/sabotage_and_attacks_on_reactors/impacts-of-a-terrorist-attack.html)).

363 Id. at 107 (quoting 2004 Lyman Report at 16).

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proceedings, the Commission concluded that NEPA imposes no legal duty on the NRC to consider intentional malevolent acts . . . in conjunction with commercial power reactor license renewal applications.364 Regardless, in the GEIS, the NRC performed a discretionary analysis of intentional acts in connection with license renewal, and concluded that the core damage and radiological release from such acts would be no worse than the damage and release expected from internally initiated events.365 Importantly, the U.S. Court of Appeals for the Third Circuit affirmed these Commission findings in rejecting an appeal of the Commissions Oyster Creek decision.366 Thus, Petitioners claims regarding the need to address intentional acts in a SAMA analysis are beyond the proper scope of this proceeding and do not raise a material issue.367 (3) Alleged NRC Underestimation of the Societal and Economic Impacts of a Severe Accident Petitioners also argue in Contention 4a that the small impact finding for societal and economic impacts in Table B-1 of Appendix B of Part 51, Subpart A (Table B-1), as supported by the GEIS, is inaccurate as a generic matter.368 Petitioners attribute this alleged deficiency to the use of methods that minimized consequences.369 This argument fails to support the 364 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-14, slip op. at 37 (June 17, 2010)

(citing AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 129 (2007)).

365 Id. (quoting Oyster Creek, CLI-07-8, 65 NRC at 131).

366 See N.J. Dept of Envtl. Prot. v. NRC, 561 F.3d 132, 137-44 (3rd Cir. 2009) (holding that the NRC was not required to consider the environmental effects of potential airborne attacks on the Oyster Creek plant in reviewing the applicants license renewal application, including the applicants SAMA analysis).

367 In Oyster Creek, the Commission expressly rejected the assertion that the Ninth Circuits decision in San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006), requires the NRC and its licensees to address the environmental costs of a successful terrorist attack on a nuclear plant. See Oyster Creek, CLI-07-8, 65 NRC at 128-29. The Commission explained that, while it was required to comply with the Ninth Circuits remand in the Diablo Canyon proceeding, it is not obliged to adhere, in all of its proceedings, to the first court of appeals decision to address a controversial question. Id. The Davis-Besse plant is located within the territorial jurisdiction of the United States Court of Appeals for the Sixth Circuit.

368 Petition at 105 (Petitioners contend, contrary to NRC, that the societal and economic impacts from severe accidents are unlikely to be small for all plants and simply appear so by the use of methods that minimized consequences as set forth in this Motion.).

369 Id.

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admission of Contention 4a because it directly challenges the Commissions regulations in Table B-1 and, therefore, is not within the scope of this licensing proceeding.370 As discussed above, the Commission has limited contentions raising environmental issues in license renewal proceedings to those issues that are affected by license renewal and have not been addressed by rulemaking or on a generic basis.371 Although severe accident mitigation alternatives is a Category 2 issue, the impact finding of small for societal and economic impacts from severe accidents is a generic Category 1 determination applicable to all plants.372 This generic finding, codified in Table B-1 of Part 51, is not subject to challenge absent a waiver, which Petitioners have neither sought nor obtained here.373 (ii) Contention 4a Lacks Adequate Support and Fails to Raise a Genuine Material Dispute With the Applicant Contention 4a is inadmissible for two additional reasons: because it lacks an adequate factual or legal foundation, and fails to identify a genuine dispute appropriate for litigation.374 Remarkably, in raising general objections to the use of probabilistic modeling, Petitioners take issue with the well-established definition of severe accident risk as the product of the probability and consequences of an accidental release.375 Specifically, they argue that [i]t would make no sense for the NRC to require Severe Accident Mitigation [Alternatives] Analysis if an Applicant could simply multiply all consequences of an accident by extremely low 370 See 10 C.F.R. §§ 2.335(a), 2.309(f)(1)(iii).

371 Turkey Point, CLI-01-17, 54 NRC at 11, 16.

372 Petition at 105.

373 See 10 C.F.R. § 2.335(a), (b).

374 See 10 C.F.R. § 2.309(f)(v), (vi).

375 Petition at 106 (By multiplying high consequence values with low probability numbers, the consequence figures appear far less startling.).

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probability and thus reject all possible mitigation as too costly.376 However, none of the documents referenced by Petitioners supports their plainly-unfounded position that FirstEnergys SAMA analysis improperly includes consideration of the probability of severe accident events.

Petitioners first cite a contention admissibility ruling by the board in Turkey Point in ostensible support for the claim that probabilistic methods should not be used in NRC SAMA analyses performed under Part 51.377 However, their reliance on that decision is misplaced. In contrast to Petitioners here, the Turkey Point petitioner argued that the applicant should use quantitative, probabilistic methods to analyze the allegedly increased risk of (1) multiple component failures during a hurricane as a result of age-related degradation, and (2) noncompliance with emergency preparedness requirements and dose limits during an accident.378 The board rejected the proposed contentions because they impermissibly challenged NRC regulations and raised issues beyond the scope of an NRC license renewal proceeding.379 The board found that the aging management regulations of Part 54 do not require probabilistic risk assessments.380 It also expressly noted that the petitioner did not seek to raise any issue related to severe accident mitigation alternatives.381 Thus, the Turkey Point ruling cited by Petitioners is not relevant to the proposed SAMA contention at issue here.

Petitioners citation to a 1985 decision involving Indian Point also is inapposite.

Specifically, Petitioners note that the Board stated that the Commission should not ignore the potential consequences of severe-consequence accidents by always multiplying those 376 Id.

377 Id. at 105-06. See Turkey Point, LBP-01-6, 53 NRC at 158-61.

378 Turkey Point, LBP-01-6, 53 NRC at 158-59.

379 Id. at 158-61.

380 Id. at 158-59.

381 Id. at 160-61.

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consequences by low probability values.382 But the Boards statement is taken out of context.

In that decision (which pre-dates the SAMA analysis requirement in Part 51 by more than a decade), the Board noted that, due to the high population density near Indian Point, a low-probability accident at Indian Point may result in greater consequences than the same accident at another site.383 The Board did not hold that it is inappropriate to consider the probability of a severe accident in assessing the associated risk. In fact, in that proceeding, the Commission instructed the Board to consider serious accidents with equal attention to both probabilities and consequences.384 This is consistent with the definition of risk articulated by the Commission and used in numerous nuclear regulatory contexts, including SAMA analysis.385 Finally, Petitioners also argue that probabilistic methods are inappropriate for any decision regarding adequate protection.386 Notably, the Jamali Article cited by Petitioners as support for this argument states that operating reactors have primarily deterministic licensing basis already in place, which means that the plants were already determined to be safe before applying the results of plant-specific PRAs.387 Thus, contrary to Petitioners suggestion, the referenced document does not support the notion that the use of PRA methods somehow undermines plant safety. As detailed in a recent NRC report, PRA is a longstanding and integral 382 Petition at 107.

383 Consol. Edison Co. of N.Y. (Indian Point, Unit 2), CLI-85-6, 21 NRC 1043, 1054 (1985).

384 See Consol. Edison Co. of N.Y. (Indian Point, Unit 2), LBP-83-68, 18 NRC 811, 834 (1983), affd, CLI-85-6, 21 NRC 1043 (1985).

385 See, e.g., Attorney General of Massachusetts, Attorney General of California; Denial of Petitions for Rulemaking, 73 Fed. Reg. 46,204, 46,207-208, 46,211-212 (Aug. 8, 2008) (Risk is defined as the probability of the occurrence of a given event multiplied by the consequences of that event.), affd sub nom., New York v.

NRC, 589 F.3d 551 (2d Cir. 2009) (per curiam); Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 350 (2002) (Risk, of course, is generally thought of as the product of the probability of occurrence [and] the consequences.) (citation and internal quotation marks omitted).

386 Petition at 107 (citing Kamiar Jamali, Use of Risk Measures in Design and Licensing of Future Reactors, 95 Reliability Engg & Sys. Safety 935 (2010) (Jamali Article)).

387 Jamali Article at 936.

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component of the Commissions regulatory framework.388 Indeed, in 1995, the Commission devoted an entire policy statement to the use of PRA methods in nuclear safety matters regulated under 10 C.F.R. Part 50.389 That policy statement sets forth the Commissions intention to encourage the use of PRA and to expand the scope of PRA applications in all nuclear regulatory matters to the extent supported by the state-of-the-art in terms of methods and data.390 Regardless, Petitioners adequate protection claim simply is not relevant to SAMA analysis, which is a NEPA-derived requirement in Part 51 unrelated to the NRCs obligation under the AEA to assure adequate protection of the public health and safety under 10 C.F.R.

Parts 50 or 54.391 The AEA and NEPA contemplate separate NRC reviews of proposed licensing actions.392 The NRCs safety review and findings under Part 54 are limited to managing the effects of age-related degradation and time-limited aging analyses.393 In summary, Petitioners generic objections to the use of PRA methods in SAMA analyses raise issues outside the scope of this proceeding, lack adequate factual or legal support, and fail to establish a genuine material dispute, contrary to 10 C.F.R. § 2.309(f)(1)(iii)-(vi).

388 See NRC Office of the Inspector General, OIG-06-A-25, Perspective on NRCs PRA Policy Statement, at i (Sept. 29, 2006), available at ADAMS Accession No. ML062720283 (stating that PRA has been used by the nuclear industry and the NRC since the 1970s, and that the NRCs 1995 PRA policy statement reflects a commitment to increasing the use of PRA technology).

389 Use of Probabilistic Risk Assessment Methods in Nuclear Activities; Final Policy Statement, 60 Fed. Reg.

42,622 (Aug. 16, 1995).

390 Id. at 42,628.

391 See McGuire/Catawba, CLI-03-17, 58 NRC at 431 (quoting Methow Valley, 490 U.S. at 353) (Under NEPA, mitigation (and the SAMA issue is one of mitigation) need only be discussed in sufficient detail to ensure that environmental consequences [of the proposed project] have been fairly evaluated.).

392 Turkey Point, CLI-01-17, 54 NRC at 13 (While the aging issues the NRC considers in its Part 54 safety review may overlap some environmental issues it considers in its Part 51 review, the two inquiries are analytically separate: one (Part 54) examines radiological health and safety, while the other (Part 51) examines environmental effects of all kinds.).

393 See 10 C.F.R. § 54.29; Turkey Point, CLI-01-17, 54 NRC at 7-8.

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e. Contention 4b: FirstEnergys SAMA Analysis Minimizes the Potential Amount of Radioactive Release in a Severe Accident Turning to Contention 4b, Petitioners argue that FirstEnergys SAMA analysis minimizes the amount of radioactivity released in a severe accident by: (1) ignoring spent fuel pool accidents; and (2) using a source term to estimate severe accident consequences that is based on radionuclide release fractions generated by the MAAP code.394 This contention also is inadmissible because it raises issues beyond the scope of this proceeding, lacks adequate factual or legal support, and fails to raise a genuine dispute on a material issue of fact or law, in contravention of 10 C.F.R. § 2.309(f)(1)(iii)-(iv).

(i) Contention 4b Improperly Challenges NRC Regulations and Commission Precedent and Lacks Adequate Support Insofar As It Seeks Site-Specific Consideration of Spent Fuel Storage Accidents Contention 4b improperly challenges the Commissions generic determination in Part 51 that the impacts of on-site spent fuel storage are small.395 Part 51 designates the environmental impacts of on-site spent fuel as a Category 1 issue, such that the need for mitigation alternatives within the context of [license] renewal . . . has been considered, and the Commission concludes that its regulatory requirements already in place provide adequate mitigation incentives for on-site storage of spent fuel.396 Therefore, it makes obvious sense that no discussion of mitigation alternatives is needed in a license renewal application for a Category 1 issue because for all issues designated as Category 1 the Commission has concluded [generically] that 394 Petition at 108.

395 Importantly, Petitioners have not sought a waiver of the Commissions generally applicable rules, petitioned for a rulemaking, or pointed to any new and significant information that calls into question the Commissions generic findings regarding spent fuel pools. See 10 C.F.R. §§ 2.335, 2.802, and 51.53(c)(iv), respectively.

396 Pilgrim, CLI-10-14, slip op. at 31 (citing GEIS at 6-92).

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additional site-specific mitigation alternatives are unlikely to be beneficial.397 The Commission, accordingly, has consistently held that SAMAs do not encompass spent fuel pool accidents.398 Petitioners overlook this controlling and dispositive Commission precedent.

Petitioners also argue, without any factual or expert support, that the offsite cost risk of a pool fire is substantially higher than the offsite cost of a release from a core-damage accident.399 To the contrary, the NRC recently considered this issue in responding to a rulemaking petition and determined the risk of beyond design-basis accidents (DBAs) in [spent fuel pools] . . . to be several orders of magnitude below those involving the reactor core.400 Citing this decision, the Commission stated in Pilgrim that a SAMA that addresses [spent fuel pool] accidents would not be expected to have a significant impact on total risk for the site because the spent fuel pool accident risk level is less than that for a reactor accident.401 Petitioners reference to a study prepared by Dr. Gordon Thompson and the Shearon Harris license amendment proceeding lend no support to their contention that FirstEnergy must examine interactions between the reactor and the spent fuel pool in its SAMA analysis.402 In rejecting the rulemaking petition discussed above, the Commission explicitly considered both the Thompson Report and the Shearon Harris proceeding.403 It found that neither source of 397 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 21 (citing Turkey Point, CLI-01-17, 54 NRC at 22).

398 Pilgrim, CLI-10-11, slip op. at 24; see also Pilgrim, CLI-10-14, slip op. at 30-32; Vt. Yankee/Pilgrim, CLI 3, 65 NRC at 19-21; Turkey Point, CLI-01-17, 54 NRC at 21-23.

399 Petition at 109.

400 Denial of Petitions for Rulemaking, 73 Fed. Reg. at 46,207 (emphasis added).

401 Pilgrim, CLI-10-14, slip op. at 35 (citing 73 Fed. Reg. at 46,207-208, 46,211-212).

402 Petition at 109 (citing Gordon Thompson, Risks of Pool Storage of Spent Fuel at Pilgrim Nuclear Power Station and Vermont Yankee, A Report for the Massachusetts Attorney General by IRSS, at 12, 16 (May 2006), available at ADAMS Accession No. ML061630088 (Thompson Report)).

403 See 73 Fed. Reg. at 46,208 (citing the Thompson Report as an alleged source of new and significant information); id. at 46,209-210 (discussing the Shearon Harris license amendment proceeding).

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information undermined the generic conclusions in the GEIS.404 In fact, the Commission explained that the Shearon Harris proceeding actually supported the Commissions environmental finding of low impacts from spent fuel pool fires.405 The Commission concluded that its findings related to the storage of spent nuclear fuel in pools, as set forth in NUREG-1437 and Table B-1 of Appendix B to Subpart A of 10 CFR Part 51, remain valid, and [t]hus, the NRC has met and continues to meet its obligations under NEPA.406 Finally, the Commission also has consideredand rejectedPetitioners argument that Chapter 6 of the GEIS addresses only normal operations, and not accident conditions, and that the definition of severe accidents (and hence SAMA analysis) encompasses spent fuel pool accidents.407 The Commission has stated unambiguously that Part 51s reference to severe accident mitigation alternatives applies to nuclear reactor accidents, not spent fuel storage accidents,408 and that Chapter 6 of the GEIS clearly is not limited to discussing only normal operations, but also discusses potential accidents and other non-routine events.409 Moreover, the Commission has concluded that a SAMA that addresses [spent fuel pool] accidents would not be expected to have a significant impact on total risk for the site because the spent fuel pool accident risk level is less than that for a reactor accident.410 In short, there is no legal or 404 Id. at 46,208.

405 Id. at 46,209-210.

406 Id. at 46,211.

407 See Petition at 110-12.

408 Turkey Point, CLI-01-17, 54 NRC at 21; see also Policy Statement on Severe Reactor Accidents Regarding Future Designs and Existing Plants, 50 Fed. Reg. 32,138 (Aug. 8, 1995) (severe nuclear accidents are those in which substantial damage is done to the reactor core whether or not there are serious offsite consequences);

id. at 32,139 (the fundamental objective of Commissions severe accident policy is . . . to take all reasonable steps to reduce the chances of occurrence of a severe accident involving substantial damage to the reactor core and to mitigate the consequences of such an accident should one occur).

409 Pilgrim, CLI-10-14, slip op. at 34-35.

410 Id. (quoting 73 Fed. Reg. at 46,207-208, 46,211-212) (internal quotations omitted).

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technical basis for Petitioners claim that FirstEnergy must consider the potential interactions between the pool and the reactor in the context of severe accidents at Davis-Besse.411 (ii) Contention 4b Also Lacks Adequate Factual Support and Fails to Raise a Genuine Material Dispute Insofar As It Challenges FirstEnergys Use of the MAAP Code to Determine Source Terms In Contention 4b, Petitioners also challenge FirstEnergys use of the MAAP code to generate the source term for severe accidents. Petitioners argue that source terms generated by the MAAP code are consistently smaller than source terms generated by NUREG-1465.412 Specifically, Petitioners allege that the source terms used by FirstEnergy to estimate the consequences of severe accidents have not been validated by the NRC, and this lead[s] to anomalously low consequences when compared to source terms generated by NRC staff.413 Petitioners appear to suggest that FirstEnergy should have used the release fractions and release durations in NUREG-1465.414 Petitioners argument fails to support admission of the contention for several reasons.

First, Petitioners reference to NUREG-1465 is misplaced and provides no factual or technical support for the contention, as required by 10 C.F.R. § 2.309(f)(1)(v). As explained above, a SAMA analysis postulates and models the release of radionuclides into the environment during a severe accident. NUREG-1465s source term addresses only the release of radionuclides into containment; i.e., it assumes a release resulting from substantial meltdown of the core into the 411 Petition at 109.

412 Id. at 112 (citing NUREG-1465, Accident Source Terms for Light-Water Nuclear Power Plants (Feb. 1995)).

Source term refers to a fission product release from the reactor core. Dominion Nuclear Conn., Inc.

(Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 209, (2003). It is a result of the magnitude and mix of the radionuclides released from the fuel, their physical and chemical properties, and the timing of their release. Id.

413 Petition at 114.

414 See id. ([I]t is clear that Next Era should not have used a MAAP-generated source terms in its SAMA analysis.). Petitioners replaced the Seabrook petitioners reference to NextEra with FirstEnergy in their January 5, 2011 errata.

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containment . . . [and assumes] that the containment remains intact but leaks at its maximum allowable leak rate.415 NUREG-1465 thus expressly distinguishes between an in-containment accident source term (the radioactive inventory within containment) and a radiological release to the environment (radioactive material escaping from the containment).416 As the NRC staff explained in opposing admission of a similar argument in the Indian Point license renewal proceeding, releases into containment and releases into the environment are very different events, with significant differences in sequence progression, release pathways, and fission product deposition and removal mechanisms.417 The Board therein agreed with the staff that the NUREG-1465 methodology did not apply in the scenario in which the petitioner in that proceeding sought to apply it; i.e., that of early energetic containment breach during a severe accidentand denied admission of the contention.418 This Board should do the same, insofar as Petitioners are suggesting that FirstEnergy should simply replace release fractions or source terms obtained using the MAAP code with inapplicable values from NUREG-1465.

Conspicuously, Petitioners make no attempt to explain why use of the NUREG-1465 source terms would materially affect the results of FirstEnergys SAMA analysis.419 At most, 415 NUREG-1465, at 1.

416 Id. Stated another way, the amount of radioactive material that enters the containment is different from the amount of radioactive material that enters the environment. NUREG-1465 recognizes that there are numerous removal processes that reduce the inventory of the radioactive material in the containment. These removal processes are discussed in Chapter 5 of NUREG-1465.

417 See NRC Staffs Reply to Riverkeeper, Inc.s Response to the Licensing Boards Questions Regarding Contention EC-2 (SAMAs), at 2 (Apr. 21, 2008) (citing NUREG-1150, Severe Accident Risks: An Assessment for Five U.S. Nuclear Power Plants, §§ C-10.1, C-13.4.1 (Vol. 2, Dec. 1990)). See also NUREG-1437, Supp.

38, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report, app. A, at A-131 (Dec. 2010) (Indian Point License Renewal Final SEIS) (explaining that the source terms described in NUREG-1465 were developed primarily to support reactor siting criteria wherein substantial meltdown into the containment is postulated, and the containment is assumed to leak at its maximum allowable leak rate without accounting for fission product removal).

418 Indian Point, LBP-08-13, 68 NRC at 187.

419 See id. It appears that Petitioners simply have copied, nearly verbatim, material from a report presented in support of Riverkeepers rejected proposed SAMA contention (EC-2) in the Indian Point license renewal 96

they vaguely conclude that [t]he source term used results in lower consequences than would be obtained from NUREG-1465 release fractions and release durations,420 and that FirstEnergy should not have used . . . MAAP-generated source terms in its SAMA analysis.421 However, as the Indian Point board aptly concluded in rejecting a nearly-identical challenge to the MAAP code, simply demanding or presenting an alternative analysis is, without more, insufficient to support a contention alleging that the original analysis failed to meet applicable requirements.422 Thus, Petitioners have failed to raise a material dispute by directly controverting the ER.

In addition, Petitioners have provided no facts or expert opinion to establish that FirstEnergy has used the MAAP code improperly, or that the use of alternative source terms would have resulted in the identification of additional potentially cost-beneficial SAMAs for Davis-Besse. In fact, Petitioners fail to challenge with any particularity the detailed information contained in FirstEnergys SAMA analysis, which describes the process for assigning accident sequences to the various release categories and selecting a representative accident sequence for each release category. The release categories and their frequencies are presented in ER Section E.3.4.5 and ER Table E.3-20, respectively, as are the source terms used for the SAMA evaluation based on the MAAP computer code. Petitioners make no attempt to show that the specific process used or results obtained by FirstEnergy are flawed in some material respect.

proceeding. See Edwin Lyman, A Critique of the Radiological Consequence Assessment Conducted in Support of the Indian Point Severe Accident Mitigation Alternatives Analysis (Nov. 2007) (the 2007 Lyman Report), attached to Riverkeeper, Inc.s Request for Hearing and Petition to Intervene in Indian Point License Renewal Proceeding (Nov. 30, 2007) (Riverkeeper Petition), available at ADAMS Accession No. ML073410093. Petitioners provide no independent expert opinion or site-specific analysis of their own.

420 Petition at 112.

421 Id. a 114.

422 Indian Point, LBP-08-13, 68 NRC at 187.

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Petitioners failure to meet their burden in this regard is particularly glaring given the widespread use and acceptance of the MAAP code in the nuclear industry.423 The MAAP code is widely used by utilities to quantify accident progression and source terms in the plant-specific IPEs and PRAs for a variety of regulatory purposes (e.g., mission success criteria, human reliability analysis reaction times, characterization of release categories).424 Also, numerous applicants have used MAAP to support SAMA analyses that have been approved by the NRC.

For the foregoing reasons, Contention 4b should be denied as inadmissible under 10 C.F.R. § 2.309(f)(iii)-(vi).

f. Contention 4c: The MACCS2 Code Used in FirstEnergys SAMA Analysis Is Outdated and Inaccurate Contention 4c takes aim at a different computer code used by FirstEnergy (and by numerous other NRC licensees and federal agencies) in its SAMA analysis. Specifically, it alleges that [t]he SAMA analysis for Davis-Besse uses an outdated and inaccurate proxy to perform its SAMA analysis, the MACCS2 computer program.425 Petitioners assert, in principal part, that MACCS2 was not QAd and was established for research rather than licensing purposes, and that there is no explanation of exactly how [MACCS2] works.426 As shown below, Contention 4c lacks an adequate factual basis. In addition, Petitioners fall far short of establishing the materiality of their claims or a genuine dispute with FirstEnergy 423 The MAAP code was developed and is maintained under the sponsorship of the Electric Power Research Institute (EPRI) and the MAAP Users Group. See MAAP - Modular Accident Analysis Program, available at http://www.fauske.com/maap.html. EPRI has issued numerous studies and guidelines relating to the use of MAAP. See, e.g., TR-1013500, MAAP4 Applications Guidance (Sept. 2006), available at http://my.epri.com.

424 See, e.g., NUREG-1503, FSER Related to Certification of the ABWR Standard Design, at 19-55; NUREG-1512, FSER Related to Certification of the AP600 Standard Design, at 19-61; NUREG-1793, FSER Related to Certification of the AP1000 Standard Design, at 19-61.

425 Petition at 115.

426 Id. at 115-16.

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on a material issue of law or fact. Accordingly, the Board should deny admission of Contention 4c given its failure to meet 10 C.F.R. § 2.309(f)(1)(iv), (v), and (vi).

(i) Contention 4c Lacks Adequate Factual or Expert Support Petitioners generic assertion that MACCS2 is outdated and inappropriate for use in a SAMA analysis runs directly counter to both NRC-approved guidance and recent Commission adjudicatory precedent. As such, it has absolutely no foundation in fact. The NRC staff has recommended that applicants for license renewal follow the guidance provided in NEI 05-01, Revision A, when preparing SAMA analyses.427 NEI 05-01, in turn, indicates that use of the MACCS2 code in an applicants SAMA analysis is acceptable.428 Thus, while there is no specific legal requirement that an applicant use the MACCS2 code in its SAMA analysis, these NRC-approved guidance documents directly contradict Petitioners position that MACCS2 is outdated or otherwise unacceptable for use in a SAMA analysis.

In any case, as recently as August 2010, the Commission itself explicitly noted, in the Pilgrim license renewal proceeding, that the MACCS2 code . . . is the most current, established code for NRC SAMA analysis.429 This reinforces similar statements made by the Licensing Board in that proceeding.430 Clearly, MACCS2 is not outdated or obsolete.431 427 LR-ISG-2006-03, at 1.

428 NEI 05-01, at 13 429 Pilgrim, CLI-10-22, slip op. at 9. See also, Pilgrim, CLI-10-11, slip op. at 4 (NRC guidance documents conclude that the MACCS2 code . . . is acceptable for performing SAMA analyses, and NRC licensees commonly use the MACCS2 code for performing SAMA analyses. (citation omitted)). The GEIS similarly indicates that MACCS2 is the current, state-of-the-art computer code for assessing risks associated with postulated severe reactor accidents. GEIS at 5-33.

430 Pilgrim, LBP-07-13, 66 NRC at 142 (stating that the MACCS2 code has been widely used and accepted as an appropriate tool in a large number of SAMA analyses).

431 Current NRC activities further demonstrate the continuing use of MACCS2 in nuclear regulatory applications.

For example, the NRC is using MACCS2 to model the offsite health consequences of atmospheric releases of radioactive material as part of the ongoing State-of-the-Art Reactor Consequence Analyses (SOARCA) project. The stated objective of the SOARCA project is to develop updated and more realistic analyses of severe reactor accidents by including significant plant changes and updates (e.g., system improvements, 99

Petitioners argument that the MACCS2 code suffers from QA-related deficiencies also lacks a sound factual basis. Petitioners contend that MACCS2 and its predecessor code MACCS were developed using the less rigorous QA guidelines of ANSI/ANS 10.4.432 Petitioners suggest that MACCS2 must meet a higher NQA-a standard.433 But the very document relied upon by Petitioners contradicts this claim.

Specifically, Petitioners cite an article authored by David Chanin, a developer of the MACCS2 code.434 That article, however, indicates that higher QA requirements in the NQA-a standard would be appropriate for a code used to support a deterministic authorization basis analyses.435 Again, the SAMA analysis, which properly employs probabilistic risk assessment methods, is an NRC NEPA-related requirement. It is not a deterministic authorization basis analysis of the type discussed in Mr. Chanins article, which clearly focuses on the use of MACCS2 in Documented Safety Analyses (DSA) performed by the Department of Energy (DOE)not the NRC or its licensees.436 The focus of the DSA for DOE applications is the individual dose (total effective dose equivalent) to a single, hypothetical public receptor (i.e., maximally exposed offsite individual) located at the closest DOE site boundary throughout the short-term phase after the release with training and emergency procedures, and offsite emergency response) that plant owners have made, which were not reflected in earlier assessments conducted by the NRC. See Overview of the SOARCA Project, available at http://www.nrc.gov/about-nrc/regulatory/research/soar/overview.html.

432 Petition at 115 (citing American Nuclear Standards Institute and American Nuclear Society, Guidelines for the Verification and Validation of Scientific and Engineering Codes for the Nuclear Industry, ANSI/ANS 10.4, La Grange Park, IL (1987)).

433 Id.

434 David Chanin, The Development of MACCS2: Lessons Learned (EFCOG Safety Analysis Annual Workshop, 2005).

435 Id. at 2.

436 See id. (MACCS (and its successor MACCS2) were not held to the strict 18-point QA requirements of NQA-1, as is required for SARs, which the DOE now terms Documented Safety Analyses (DSAs).).

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no sheltering or evacuation assumed.437 This DOE safety-basis analysis is deterministic in nature and concerned with the dose to a single individual at a particular location.438 The purpose of SAMA analysis, on the other hand, is to assist in understanding whether additional mitigation measures may be cost-effective for a facility by assessing mean cumulative impacts from postulated severe accidents (i.e., dose or economic costs) to all individuals and land in the 50-mile radial region.439 Thus, the article cited by Petitioners in no way suggests that MACCS2 is unsuitable for use in a SAMA analysis.

Insofar as Petitioners might imply that MACCS2 must meet 10 C.F.R. Part 50, Appendix B QA requirements, they fail to explain why these QA requirements would apply to a model used for a NEPA analysis. Appendix B QA requirements apply to activities affecting the safety-related functions of structures, systems, and components. A SAMA analysis is not safety-related or subject to Appendix B requirements.

Finally, Petitioners claim that the MACCS2 code is defective because there is no explanation of exactly how it works is spurious and reflects Petitioners failure to meet their pleading obligations.440 The Commission has stated that a petitioners obligation to review 437 See U.S. Department of Energy, MACCS2 Computer Code Application Guidance for Documented Safety Analysis, Final Report, DOE-EH-4.2.1.4, at 2-7 (June 2004) (DOE MACCS2 Guidance), available at http://hss.energy.gov/nuclearsafety/qa/sqa/central_registry/MACCS2/Final_MACCS2_Guidance_Report_June

_1_2004.pdf.

438 See id. at 2-1, 2-7, 5-1.

439 See Pilgrim, CLI-10-11, slip op. at 22 n.88, 38-39. As the Commission explained, a SAMA analysis estimates population dose in terms of person-rem. A rem is a unit of radiation dose and person refers to the number of people exposed to the particular amount of rem. These two factors are multiplied to obtain the population dose in person-rem. Under NRC practice, for a particular weather sequence, SAMA analysis calculates the total population dose, the sum of the estimated dose commitments to populations located in all the sectors on a spatial grid-map out to a defined distance (usually 50 miles) from the plant. The mean value of the predicted total population dose is obtained by statistical averaging over many hundreds of randomly selected hourly weather sequences (based on hourly meteorological data points obtained from the site). Id.

440 Petition at 115-16.

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available documentary materials and to conduct its own due diligence is iron-clad.441 Petitioners plainly have shirked this duty, as evidenced by the fact that one of the documents referenced and quoted by Petitioners in their Petition is the MACCS2 Users Guide, and it details the manner in which the MACCS2 code performs its intended functions.442 In any case, the NRCs Agencywide Documents Access and Management System (ADAMS) and other publicly-available sources of information contain a wealth of readily-retrievable information concerning the MACCS2 code.443 Perhaps more tellingly, Petitioners ignore the ER itself, which describes the manner in which FirstEnergy used MACCS2 in its SAMA analysis for Davis-Besse.

Sections E.3.4 and E.3.5 of Attachment E to the ER, in particular, describe the Level 3 PRA inputs and Level 3 PRA results, respectively, undergirding FirstEnergys SAMA analysis.

Insofar as Petitioners identify any specific criticisms of MACCS2 or FirstEnergys use of that code, those criticisms lack a valid factual basis. Petitioners state that it is not clear how the code interacts with long-term dose accumulation models.444 However, the CHRONC module of MACCS2 provides the very thing alleged to be missing. It calculates radiological conditions in each affected downwind plume segment, beginning at the end of the seven-day emergency period and extending to 30 years post-release, accounting for exposure pathways from ground-441 N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, slip op. at 18 (Sept. 30, 2010) (emphasis added).

442 See NUREG/CR-6613, Vol. 1, SAND97-0594 Code Manual for MACCS2, Users Guide (May 1998)

(MACCS2 Users Guide), available at http://www.doeal.gov/SWEIS/OtherDocuments/481%20MACCS2%20Vol%201.pdf.

443 See, e.g., Pilgrim, CLI-10-11, slip op. at 22-23, 38-39; Joint Declaration of Kevin O'Kula and Grant Teagarden in Support of Entergys Answer Opposing New York States Motion for Summary Disposition on Contention NYS-16/16A, at 14-17 (Sept. 18, 2009), available at ADAMS Accession No. ML092740625; Young, M. and Chanin, D., MACCS2 Development and Verification Efforts, SAND97-0561C, Sandia National Laboratories (1997), available at http://www.osti.gov/bridge/product.biblio.jsp?osti_id=453548&query_id=2.

444 Petition at 116.

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deposited material, including groundshine, re-suspension inhalation, and food and water ingestion.445 Finally, Petitioners baldly assert that the MACCS2 code is deficient because it incorrectly models doses in the codes EARLY and CHRONC modules,446 because it incorrectly assumes the indoor dose is essentially zero . . . [when it should be] equivalent to the outdoor dose.447 According to Petitioners, if properly modeled, the indoor dose would increase by a factor of 2 to 4.448 Petitioners, however, provide no alleged facts or expert opinion to support this claim, and do not cite any of the materials attached to their Petition in support of this criticism of the code. Nor do Petitioners tie their generic criticisms of the MACCS2 code to specific alleged deficiencies in FirstEnergys ER. Such conclusory statementsparticularly when offered absent the support of technical expertisedo not support the admission of a contention.449 445 The MACCS2 code executes three modules in sequence to calculate consequence and risk values necessary for a SAMA analysis. The first is ATMOS, which calculates the air and ground radioactivity concentrations, plume size, and timing information for all plume segments as a function of downwind distance. The results of the ATMOS calculations are stored for subsequent use by EARLY and CHRONC. The second module is EARLY, which uses radioactivity concentrations calculated by ATMOS and other inputs (e.g., population) to calculate consequences due to radiation exposure in the emergency phase (the first seven days) from the time of release. The last module is CHRONC, which uses radioactivity concentrations calculated by ATMOS and other inputs (e.g., population and economic data) to calculate the long-term doses due to exposure after the emergency phase (i.e., beginning at the end of the seven-day emergency period and extending to 30 years post-release) and the economic impacts from each accident sequence. See MACCS2 Users Guide at 2-1 to 2-4, 7-4.

446 Petition at 116.

447 Id.

448 Id.

449 Fansteel, CLI-03-13, 58 NRC at 203 (quoting Oyster Creek, CLI-00-6, 51 NRC at 208) (stating that a contention will be ruled inadmissible if the petitioner has offered no tangible information, no experts, no substantive affidavits, but instead only bare assertions and speculation).

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(ii) Contention 4c Fails to Raise a Genuine Dispute on a Material Issue of Law or Fact Contention 4c is flawed in another fundamental and fatal respect: it fails to establish the existence of a genuine, material dispute fit for adjudication. Petitioners assert that FirstEnergys use of the purportedly outdated MACCS2 code in its SAMA analysis was the wrong choice,450 and may cause it to underestimate the costs likely to be incurred as a result of a severe accident.451 But nowhere do they provide an adequately-supported, reasoned evaluation of whether and to what extent any of their allegations credibly could or would alter the [Davis-Besse] SAMA analysis conclusions on which SAMAs are cost-beneficial to implement.452 The situation here is closely analogous to that encountered by the Board in the McGuire/Catawba license renewal proceeding. In that case, the Board rejected as inadmissible a subpart of a petitioners SAMA contention alleging that the applicant relied upon unreasonable and unsupported assumptions in calculating accident consequences, and that the applicant had understate[d] the consequences of accidents.453 In so ruling, the Board stated:

[T]he Intervenors have made no showing either that the models used by [the applicant] are defective or incorrect for the purpose used or that those models were used incorrectly by [the applicant].

Nor have the Intervenors demonstrated that the models they are recommending are superior in any way to those employed by [the applicant]. The Intervenors merely point out that, by using their models in the manner they are recommending, a different result would be achieved. That is an insufficient basis to formulate a valid contention.454 450 Petition at 115.

451 Id. at 116.

452 Pilgrim, CLI-10-22, slip op. at 10.

453 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), LBP 17, 58 NRC 221, 238, affd on other grounds, CLI-03-17, 58 NRC 419 (2003).

454 Id. at 240.

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The boards holding applies with equal force here, where Petitioners (unaided by any expert opinion) merely posit generalized, unsupported criticisms of the MACCS2 code and ultimately concludewith no readily-apparent factual basisthat it should be obvious that many SAMAs would be cost effective if the described defects in the analysis were addressed.455 To summarize, Petitioners allegations that the MACCS2 code is outdated and inaccurate lack adequate factual or technical support and fail to establish a genuine material dispute, contrary to 10 C.F.R. § 2.309(f)(1)(iv)-(vi).

g. Contention 4d: Use of the Gaussian Plume Model in the ATMOS Module of MACCS2 Contention 4d alleges that the Davis-Besse SAMA analysis does not accurately predict the geographic dispersion and deposition of radionuclides at Davis-Besses Great Lakes shoreline location because it uses an inappropriate air dispersion model and inappropriate meteorological data inputs.456 Petitioners assert that the straight-line Gaussian plume model incorporated in MACCS2 (i.e., ATMOS) assumes that a released radioactive plume travels in a steady-state straight-line, and that this assumption is inappropriate given the site-specific meteorological conditions at Davis-Besse.457 Petitioners principal arguments are as follows:

• The straight-line, steady-state Gaussian plume model does not allow consideration for the fact that the winds for a given time period may vary spatially, and it ignores the presences of Great Lakes sea breeze circulations which dramatically alter air flow patterns.458

• The straight-line Gaussian plume model fails to account for hot spots of radioactivity caused by plumes blowing out to sea (i.e., offshore over Lake Erie).459 455 Petition at 150.

456 Id. at 116.

457 Id. at 118.

458 Id. at 119-21.

459 Id. at 121.

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• Terrain effects can have a highly complex impact on wind field patterns and plume dispersion.460

• The meteorological inputs used by FirstEnergy in the MACCS2 portion of its SAMA analysis are based on data collected from just one siteDavis-Besse itself.461 The gravamen of Contention 4d is that FirstEnergy should have modeled transport and deposition using a site appropriate variable [trajectory] plume model such as AERMOD or CALPUFF,462 which Petitioners state are preferred by the U.S. Environmental Protection Agency (EPA).463 For the reasons that follow, the Board should deny admission of Contention 4d because it fails to meet the contention admissibility standards of 10 C.F.R. § 2.309(f)(1)(v) and (vi). In short, Petitioners scattershot references to the technical literaturewholly unsubstantiated by any expert opiniondo not constitute adequate factual support for the contention. Furthermore, Petitioners core assertion that other, EPA-preferred variable plume dispersion models are available does not raise a genuine dispute on a material issue of law or fact.

(i) Contention 4d Lacks Adequate Factual or Expert Support (1) Use of the Gaussian Plume Model in SAMA Analysis Petitioners overarching complaint is that the Gaussian plume model used in the ATMOS module of MACCS2 is somehow unsuitable for SAMA analysis. Petitioners, however, fail to provide any relevant, well-grounded support for their argument. It is significant that, unlike the Intervenors in the pending Indian Point and Pilgrim license proceedings, who proffered expert 460 Id. at 122.

461 Id. at 125.

462 Id. at 116-17.

463 Id. at 123, 132.

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affidavits in support of certain admitted ATMOS-related contentions, Petitioners here fail to furnish any expert support for their criticisms of MACCS2 and ATMOS.

In any case, as noted above, the Commission recently confirmed that MACCS2not AERMOD or CALPUFFis the most current, established code for NRC SAMA analysis.464 It bears emphasis that the straight-line Gaussian plume model used in the ATMOS module of MACCS2 has been an accepted analytical approach for plume dispersion analyses in the nuclear industry for several decades.465 Petitioners provide no compelling or credible reason to conclude that MACCS2 can and should be replaced with the EPA preferred AERMOD or CALPUFF models in NRC-required SAMA analyses. In this regard, Petitioners provide no information indicating that AERMOD or CALPUFF is suitable, from a technical or regulatory standpoint, for PRA and SAMA analysis applications. In particular, Petitioners do not explain how these EPA models can perform the full suite of analytical tasks performed by MACCS2, which uses non-dispersion models (e.g., EARLY and CHRONC) in addition to ATMOS.466 Additionally, as the Commission recently noted, the ATMOS module of MACCS2 is not interchangeable with other plume dispersion models such as AERMOD or CALPUFF.

Notably, there are practical constraints on the degree to which the meteorological modeling can be altered in the MACCS2 code, which is the most current, established code for NRC SAMA analysis. As Pilgrim Watch states, the straight-line Gaussian plume model is embedded in the MACCS2 code. Therefore, it is not possible simply to plug in and run a different atmospheric dispersion model in the MACCS2 code to see if the SAMA cost-benefit 464 Pilgrim, CLI-10-22, slip op. at 9.

465 See MACCS2 Users Guide, at 1-2 to 1-4.

466 Indeed, as one of the technical studies cited by Petitioners themselves explains: The Gaussian plume model was chosen for MACCS2 because it requires minimal computational effort and allows large numbers of realizations to be calculated. NUREG/CR-6853, Comparison of Average, Transport and Dispersion, Among a Gaussian, a Two-Dimensional, and a Three-Dimensional Model, United States Nuclear Regulatory Commission/Lawrence Livermore National Laboratory, at 5 (Oct. 2004), available at ADAMS Accession No. ML043240034.

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conclusions change. The three modules (ATMOS, EARLY, and CHRONC) in the MACCS2 code are integral parts of the code.467 Thus, the straight-line Gaussian ATMOS model cannot be replaced without replacing the MACCS2 code itself. Although this does not render the codes integral dispersion model immune from all challenge, a petitioner must provide adequate support for such a challenge.468 Here, Petitioners do not point to any other code capable of replacing the MACCS2 code, and make no showing that use of some other code is necessary or even feasible.

(2) The Sea Breeze Effect Petitioners argument that ATMOS cannot account for variations in wind or for sea breezes also lacks a factual basis sufficient to support admission of the contention. Like their counterparts in the Seabrook license renewal proceeding, Petitioners cite to a masters thesis entitled Eastern Massachusetts Sea Breeze Study ( Sea Breeze Study) for the purpose of showing that the sea breeze is a real phenomenon.469 Petitioners then seek to force-fit the same argument here by applying it to a plant located along Lake Erie (not the Atlantic Ocean). In support of this attenuated technical argumentwhich lacks any expert imprimaturPetitioners state:

Again, as mentioned previously, While the sea breeze is generally associated with the ocean, they can occur along the shore of any large body of water such as the Great Lakes, (NOAA NWS) and The lake breeze is similar to the sea breeze found along sea coasts. (Keith C. Heidorn, PhD.)470 Irrespective of the merits of Petitioners analogy between Lake Erie and the Atlantic Ocean, none of the referenced studies addresses the effect of the sea breeze on the dispersal of a 467 Pilgrim, CLI-10-22, slip op. at 9 (emphasis added).

468 Pilgrim, CLI-10-11, slip op. at 17.

469 Petition at 117, 120.

470 Id. at 120.

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radiological plume, particularly within the context of FirstEnergys SAMA analysis. Even assuming Petitioners have provided sufficient information to show that the Lake Erie sea breeze is a real phenomenon, they have provided no evidence, no adequately-supported allegations of fact or expert opinion, as to the effect that a sea breeze would have on the MACCS2 dose consequences assessment or ultimate cost-benefit conclusions contained in FirstEnergys SAMA analysis. Indeed, Petitioners, with no supporting expert declaration or references to the technical literature, merely speculate that:

[A]t a coastal or Great Lakes shoreline site, the sea breeze would draw contaminants across the land and inland subjecting the population to potentially higher radiation doses from a radiological release from Davis-Besse. Straight-line Gaussian plume are thereby non-conservative. [FirstEnergy], by ignoring this important and well-documented sea coast and Great Lakes shoreline phenomena, underestimates consequence.471 As reiterated in Pilgrim, for a fact to be material with regard to the SAMA analysis, it must be a fact that reasonably can be expected to affect the Applicants or staffs conclusion that any particular mitigation alternative may (or may not) be cost-effective.472 Here, Petitioners have attempted no such showing. Instead, they simply conclude, with no basis or support, that by utilizing the straight-line Gaussian plume model embedded in MACCS2, FirstEnergy ignores sea breezes and underestimates consequence and is non-conservative.473 However, as the Pilgrim Board suggested, and the GEIS stated explicitly, the alleged methodological shortcomings of ATMOS are as likely to result in an overly conservative result.474 Petitioners 471 Id. (emphasis added).

472 Pilgrim, LBP-07-13, 66 NRC at 152 n.22.

473 Petition at 120.

474 See Pilgrim, LBP-07-13, 66 NRC at 152 n.22; GEIS at 5-101.

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conclusory and entirely unsupported assertion that the results are non-conservative is insufficient to demonstrate the existence of a genuine material dispute with the Applicant.

(3) Behavior of Plumes Over Water Petitioners argument that the MACCS2 code is inappropriate because it fails to account for the behavior of plumes over water similarly falters for lack of adequate support. In support of their argument, Petitioners first cite to two unnamed papers ([Zagar et al.; Angevin et al.

2006]) that they neither provide nor discuss in their Petition.475 Petitioners then reference page 11 of a report submitted by the State of Massachusetts in the Pilgrim and Vermont Yankee license renewal proceedings.476 The report was authored by Dr. Beyea, and the cited page states:

I have not been able to incorporate new understanding of the flow of air over and around the New England Coastline that has been achieved in recent years. Still, this new knowledge should be taken into account in EISs for coastal facilities. Releases from Pilgrim headed initially out to sea will remain tightly concentrated due to reduced turbulence until winds blow the puffs back over land (Zagar et al.), (Angevine et al. 2006). This can lead to hot spots of radioactivity in unexpected locations (Angevine et al. 2004).

Dismissing radioactivity blowing out to sea is inappropriate.

Reduction of turbulence on transport from Pilgrim across the water to Boston should also be studied. Although incorporating such meteorological understanding into a PSA or equivalent at Pilgrim would not be likely to make more that a factor of two difference in risk, the change could bring more SAMAs into play and would be significant in an absolute sense, when combined with the increase arising from incorporation of new values of radiation dose conversion coefficients (discussed below). The program CALPUFF (Scire et al. 2000) has the capability to account for reduced turbulence over ocean water and could be used in sensitivity studies to see how important the phenomenon is at Pilgrim.477 475 These names seem to refer to an article cited on page 117 of the Petition. Petition at 117 (citing Journal of Applied Meteorology and Climatology 2006; 45: 137-154; Modeling of the Coastal Boundary Layer and Pollutant Transport in New England, Wayne M. Angevine, Michael Tjernstrm and Mark Žagar). But this article addresses pollutant dispersal and does not appear to discuss concentration of plumes.

476 Petition at 122 (citing Jan Beyea, Report to the Massachusetts Attorney General on the Potential Consequences of a Spent Fuel-Pool Fire at the Pilgrim or Vermont Yankee Nuclear Plant, at 11 (May 25, 2006) (Beyea Report)), available at ADAMS Accession No. ML071840568).

477 Beyea Report at 11-12 (emphasis added).

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This quote demonstrates that Petitioners second-hand claims regarding radioactive hot spots are based on a report discussing a different reactor by an asserted expert who had not performed any analysis to show that addressing his concerns would materially affect the cost-benefit conclusions of the SAMA analysis in question. It is noteworthy that the Commission has criticized this particular passage from the Beyea Report, noting that it simply calls for further study.478 Furthermore, Dr. Beyea proposed the use of the CALPUFF dispersion model, which, as noted above, the Commission already has explained cannot be simply plugged into the MACCS2 code.479 (4) Terrain Effects Petitioners next argue that a steady-state, straight-line Gaussian plume model cannot adequately account for changes in terrain.480 Petitioners cite EPAs 40 C.F.R. Part 51, Appendix W, Guideline on Air Quality Models in arguing that the Gaussian plume model is inappropriate.481 Petitioners state that this Guideline lists EPAs preferred models, but that ATMOS, the air dispersion model embedded in the MACCS2 code, is not on the list.482 This EPA guidance does not address radiological modeling for a severe reactor accident.

Instead, it addresses modeling of air pollution dispersion under the Clean Air Act.483 Significantly, Appendix W states that a preferred model is one that has been found to work 478 Pilgrim, CLI-10-11, slip op. at 25, n.97.

479 Pilgrim, CLI-10-22, slip op. at 9.

480 Petition at 122-25.

481 Id. at 123, 131.

482 Id. at 123.

483 See 40 C.F.R. Part 51, App. A to App. W, Sec. A.0 (1) (This appendix summarizes key features of refined air quality models preferred for specific regulatory applications.).

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better than others, not necessarily that other models are unreasonable.484 Petitioners have not explained why the EPAs purported need to follow a specific identifiable plume to determine compliance with National Ambient Air Quality Standards is relevant to FirstEnergys modeling of a postulated radiological plume for a NEPA cost-benefit review and reasonable evaluation of mitigation alternatives.485 As the Commission has noted, the relevant inquiry is not whether there are plainly better atmospheric dispersion models,486 but rather, whether the SAMA analysis resulted in erroneous conclusions on the SAMAs found cost-beneficial to implement.487 Petitioners also cite DOEs MACCS2 Guidance, which they do not include as an exhibit or provide with a reference link, in their argument on terrain effects.488 This document explains that the code does not model dispersal less than 100 feet from the source, which Petitioners claimagain without supportto mean that the resuspension of contaminants is inexplicably ignored. The cited portion of the MACCS2 Guidance makes no such assertion.489 While this section of the MACCS2 Guidance does express concern about the wake effects of nearby buildings, and indicates that the code works best where there is minimal variation in terrain and as a result, it also clearly recognizes that there is inherent conservatism (and simplicity) if the environs have . . . significant nearby buildings, tall vegetation, or grade variations not taken into 484 Id., App. W, at 3.1.1(b).

485 EPA developed codes such as AERMOD and CALPUFF to provide estimates of maximum ambient air concentrations resulting from stationary sources as part of the permitting process established by the Clean Air Act.

486 Pilgrim, CLI-10-11, slip op. at 37.

487 Id.

488 Petition at 124, 132 (citing DOE MACCS2 Guidance).

489 See DOE MACCS2 Guidance at 3-8.

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account in the dispersion parameterization.490 Thus, the document that Petitioners cite to support their terrain effects claim actually shows that the straight-line modeling limitation serves to increase conservatism.

Finally, Petitioners also reference a number of NRC regulatory guides and various other regulatory and technical documents in suggesting that the Gaussian plume model cannot account for complex terrain effects.491 But these statements are made in a completely different context than a SAMA analysis and relate either to emergency planning (i.e., using a model during an actual event to predict deposition from a specific plume under specific meteorological conditions) or calculating the maximum exposure of individual at a plants Exclusion Area boundary.492 None of the cited documents suggest that MACCS2 cannot be reasonably used to calculate mean, annual consequences for use in a SAMA-related cost-benefit analysis.493 (5) Meteorological Monitoring Data Petitioners also claim that its meteorological inputs (e.g., wind speed, wind direction, atmospheric stability and mixing heights) into the MACCS2 are based on data collected from just one siteat Davis-Besse itself.494 They state that data from just three years were 490 Id.

491 See Petition at 125-35.

492 For instance, RTM-96 (Petition at 126) explains that its purpose is:

estimating the possible consequences of different kinds of radiological accidents. The resulting estimates will help officials determine or confirm where to recommend protective actions to the public. These methods should be used only by trained personnel who can interpret the calculations, table, and figures in this document.

NUREG/BR-0150, Response Technical Manual, at *17 (Rev. 4, Mar. 1996), available at ADAMS Accession No. ML062560259.

493 SAMA analyses have an entirely different purpose from that of emergency response. Unlike emergency response, a SAMA analysis is not intended to model a single event under specific meteorological conditions at a single moment in time. Instead, a SAMA analysis estimates average, long-term impacts such as population dose and economic cost consequences in a 50-mile region from highly unlikely, severe accident events. These impacts are weighted by the probability of many weather sequences and plume directions.

494 Petition at 125.

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collected, 2006 to 2008, and, worse, 2008 meteorological data were deemed to be not viable as MACCS2 input.495 According to Petitioners, [s]uch scant measurement data, from one meteorological station, will definitely not suffice to define the Great Lakes sea breeze or capture variability.496 However, Petitioners again provide no factual or expert support for their assertion as to why data collected at the Davis-Besse site meteorological tower would not reflect any sea breeze present in the site vicinity. Accordingly, Petitioners bald assertion does not provide the basis for an admissible contention. In any case, the MACCS2 Users Guide (NUREG/CR-6613),

cited in both the ER (and by Petitioners), as well as NEI 05-01, explain that a single years worth of meteorological data is all that the MACCS2 code accepts.497 Petitioners also ignore relevant discussion in the ER, which states that the 2006 meteorological data were used as the base case, and the meteorological data from 2007 were used in one sensitivity case (Case M1).498 The results of the sensitivity cases M1 and M2 (which used data from the late-1990s) confirmed that the 2006 meteorological data were representative and typical of annual meteorological conditions.499 Petitioners fail to acknowledge these studies.

(ii) Contention 4d Fails to Raise a Genuine Dispute on a Material Issue of Law or Fact In view of the above, it is clear that Petitioners also have failed to raise a genuine dispute on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(vi). Petitioners, in the end, allege that better methods are available for determining the offsite dose consequence in the 495 Id. (quoting ER, att. E at E-35).

496 Id.

497 See MAACS2 Users Guide, at 1-5, 4-2, 5-31, A-1; NEI 05-01, at 15 (stating that an applicant may use a full year of consecutive hourly values).

498 See ER, att. E at E-43.

499 See id. at E-43 to E-44.

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SAMA analysis. Again, [t]he question is not whether there are plainly better atmospheric dispersion models or whether the SAMA analysis can be refined further.500 Rather, the relevant inquiry is whether Petitioners have provided adequate support to show that the use of other assumptions or models credibly could or would alter the ultimate cost-benefit conclusions for the SAMA candidates evaluated.501 Even assuming that the other models advocated by Petitioners could be plugged in to MACCS2, Petitioners do not provide adequate information to show that FirstEnergys use of a different code or code component would materially alter the results of its SAMA analysis.

Indeed, Petitioners, sans an expert, fail to provide any cogent explanation as to why the ATMOS module of MACCS2 is incapable of accounting for variations in meteorology or terrain within the context of a PRA-based SAMA analysis that seeks to assess mean annual consequences. As the Pilgrim Board observed, the effects of variations in wind speed and direction, meteorological patterns, and plume shape are fully encompassed by the stochastic/statistical methods used in the SAMA analysis.502 As in McGuire/Catawba, Petitioners here merely point out that, by using their models in the manner they are recommending, a different result would be achieved. This is an insufficient basis to formulate a valid contention.503 For all of these reasons, Contention 4d must be rejected as inadmissible.

h. Contention 4e: Assessment of the Economic Consequences of a Severe Accident, Including Decontamination, Cleanup, and Health Costs Contention 4e alleges that FirstEnergys MACCS2 analysis used inputs that minimized and inaccurately reflected the economic consequences of a severe accident, including 500 Pilgrim, CLI-10-11, slip op. at 37.

501 See id. at 39.

502 Pilgrim, LBP-07-13, 66 NRC at 146.

503 LBP-03-17, 58 NRC at 240.

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(1) decontamination and cleanup costs, (2) health costs, and (3) myriad other economic costs.504 As shown below, Petitioners arguments lack sufficient specificity, lack adequate factual or legal support, and do not establish a genuine material dispute. Therefore, the Board should deny admission of the contention pursuant to 10 C.F.R. § 2.309(f)(iv), (v), and (vi).

(i) Contention 4e Lacks Adequate Factual or Expert Support and Fails to Establish a Genuine Material Dispute (1) Decontamination and Cleanup Costs Petitioners first argue that in place of MACCS2, FirstEnergy should incorporate, for example, the analytical framework contained in the 1996 Sandia National laboratories report concerning site restoration costs.505 This argument is recycled from prior license renewal proceedings, including the Indian Point and Prairie Island proceedings, where the presiding boards admitted the proposed contentions.506 However, those proceedings also include the Pilgrim license renewal proceeding wheremore recentlythe Commission rejected another petitioners similar argument, concluding that the 1996 Sandia report (hereafter, the Site Restoration Study) was of dubious relevance to the applicants SAMA cost-benefit analysis.507 As explained below, this Board can similarly reject this first argument within Contention 4e.

As a threshold matter, Petitioners misread the Site Restoration Study. The Site Restoration Study evaluated decontamination needed after a hypothetical nuclear weapons 504 Petition at 135.

505 Id. at 140 (citing David Chanin & Walt Murfin, Site Restoration: Estimation of Attributable Costs from Plutonium-Dispersal Accidents, SAND96-0957, UC-502 (May 1996), available at http://chaninconsulting.com/downloads/sand96-0957.pdf (Site Restoration Study)).

506 See Indian Point, LBP-08-13, 68 NRC at 100-02; N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-08-26, 68 NRC 905, 923-25 (2008); N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), Order (Approving Settlement and Dismissal of Contention 2) (unpublished)

(July 16, 2009).

507 Pilgrim, CLI-10-11, slip op. at 31 n.121.

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accident that dispersed plutonium.508 Petitioners state that the Site Restoration Study shows that earlier estimates (such as incorporated in WASH-1400 and up through and including MACCS2) of decontamination costs are incorrect because they examined fallout from the explosion of nuclear weapons that produce large particle sizes and high mass loadings.509 Petitioners, in effect, argue that the size of the particles dispersed from a severe reactor accident would be smaller than the particle size considered in MACCS2. The upshot of Petitioners argument is that it will be more expensive to decontaminate small-sized radionuclide particles.510 None of the information provided by Petitioners, however, supports this conclusion.

The Site Restoration Study indicates only that certain decontamination data may not be applicable to a plutonium dispersal accident.511 For example, it states that [a]lmost all of the prior work in the U.S. and abroad on methods and effectiveness of radiological decontamination has been focused on fission products, and on time frames and conditions that have limited applicability to decontamination after a plutonium-dispersal accident. 512 That document makes no such assertion with respect to a reactor accident.

Petitioners arguments consistently lack factual support and fail to identify any material deficiencies in FirstEnergys SAMA analysis. Petitioners, for example, claim to know, without explanation, that certain decontamination methods (plowing and fire hosing) would not be allowed by federal and local authorities.513 Ironically, the MACCS2 Users Guide passage 508 See generally Site Restoration Study.

509 Petition at 140.

510 See id. at 136 (quoting MACCS2 Users Guide, at 7-10).

510 Id. at 140 (stating that earlier decontamination cost estimates are incorrect because they examined fallout from nuclear weapon explosions that produce large particle sizes and high mass loadings).

511 See, e.g., Site Restoration Study, App. E, at E-1.

512 Id. (emphasis added).

513 Petition at 138.

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quoted on page 136 of the Petition shows that plowing and fire hosing were evaluated in order to add conservatism to the code; i.e., it assumes that the decontamination of farmland using these or similar methods would reduce direct exposure doses to farmers without reducing uptake of radioactivity by root systems. If more stringent decontamination methods were required, then the resulting dose presumably would be lower than estimated in the SAMA analysis.

Indeed, Petitioners argument concerning decontamination costs is essentially a string of bare, unsubstantiated assertions. For example, Petitioners make the following statements without providing any supporting references to technical documentation or expert affidavits, and without identifying those specific portions of FirstEnergys ER that are purportedly deficient:

(1) weapons explosions result in non-penetrating radiation, while a reactor accident would release some penetrating radiation; (2) weapons debris can be easily swept up while contamination from a reactor accident could not; (3) weapons-related contamination could be shipped to Utah or the Nevada Test Site; (4) forests, shorelines, and wetlands cannot be cleaned up; (5) reactor releases involve gamma radiation and there is no gear to protect workers from gamma radiation; (6) decontamination is far less effective, if even possible, for small particle sizes; and (7) urban areas will be considerably more expensive and time-consuming to decontaminate than rural areas.514 Petitioners present no documentation or expert opinion to support any of these general assertions or adequately explain their materiality to the Davis-Besse SAMA analysis, including any alleged affect on the cost-benefit analysis results.515 514 Id. at 136-40.

515 See Palisades, CLI-07-18, 65 NRC at 414 (citation omitted) (stating that the Commission will not accept the filing of a vague, unparticularized [contention], unsupported by alleged fact or expert opinion and documentary support).

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In contrast, the Indian Point intervenor (New York State) supported its argument with reports from two experts that discussed accident costs specific to Indian Point.516 Furthermore, New York State sought to establish the materiality of its claim by specifically asserting that the Applicants SAMA analysis did not accurately determine which mitigation measures were cost-effective.517 In further contrast to Petitioners here, the Prairie Island intervenor (Prairie Island Indian Community) did not oppose use of the MACCS2 code, but rather, contended that the Site Restoration Study methodology should be used to develop more appropriate input specific to the Prairie Island region.518 In so arguing, that intervenor alleged that the applicant had undervalued the unique land area occupied by the Prairie Island Indian Community.519 Petitioners here have not made a similar claim that use of the Site Restoration Study inputs would result in a material change in FirstEnergy SAMA results. In particular, they do not explain why or how FirstEnergy should base its economic consequences assessment on a plutonium dispersal accident. Instead, they merely aver, without any corroborating references or expert opinion, that [a]lthough there would be many differences [between a plutonium-dispersal accident and] a nuclear reactor accident, the methodology and conclusions to estimate costs are 516 See New York State Notice of Intention to Participate and Petition to Intervene, at 142, 145 (Nov. 30, 2007)

(New York State Petition), available at ADAMS Accession No. ML073400174 (citing Beyea, Lyman & von Hippel, Damages from a Major Release of 137Cs into the Atmosphere of the United States, Science and Global Security, Vol. 12, at 125-36 (2004); 2004 Lyman Report); Indian Point, LBP-08-13, 68 NRC at 100.

517 See New York State Petition at 141-42, 144.

518 See Prairie Island, LBP-08-26, 68 NRC at 924.

519 Id. See also Prairie Island Indian Communitys Notice of Intent to Participate and Petition to Intervene, at 13 (Aug. 18, 2008), available at ADAMS Accession No. ML082391038 (arguing that, as part of its SAMA analysis in the ER, the applicant should revise the site restoration results for the area surrounding the Prairie Island plant, incorporate the property values appropriate to the unique area of the Prairie Island Indian Community and associated Treasure Island complex, and ensure that the resulting financial costs are expressed in present value (in 2008, 2009 and 2010 dollars) and future value). This argument is substantially more particularized than Petitioners broad, unsubstantiated attack on the MACCS2 code in this proceeding.

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directly useful.520 This unsubstantiated statement provides no support for an admissible contention.

As noted above, subsequent to the Indian Point and Prairie Island Board rulings cited above, the Commission considered a similar claim made by the Pilgrim intervenor, which also cited the 1996 Site Restoration Study. The Commission found the claim (advanced later in the proceeding) to be new and beyond the scope of the admitted contention. Nonetheless, it noted that the intervenor had failed to demonstrate a supported genuine material issuebearing on the overall SAMA cost-benefit resultsfor these new economic cost analysis claims.521 Directly relevant here, the Commission pointed out Pilgrim Watchs failure to identify a direct connection between the Site Restoration Study and the applicants SAMA cost-benefit results:522 Repeatedly, as we examined Pilgrim Watchs evidence (when it had any) on economic costs, we could not discern any direct connection to the Pilgrim SAMA cost-benefit results. For example, as support for a claim that clean-up costs are underestimated, Pilgrim Watch cites to a page in a Sandia National Laboratories report. See, e.g., Petition for Review at 18; Pilgrim Watch Initial Brief at 12 (citing to SAND96-0957, Site Restoration: Estimation of Attributable Costs from Plutonium-Dispersal Accidents (May 1996)); . . . But the cited page merely states that after the Chernobyl accident it became recognized that decontamination of urban areas and particularly porous surfaces can be very difficult, although the acknowledged difficulties of the Chernobyl clean-up may largely have been due to poor training, lack of equipment, and a nearly complete break-down in leadership. Pilgrim Watch provided no specific argument of error in the SAMA cost-benefit analysis calculations or conclusions. Merely citing to pages in diverse reports without any additional explanation or other obvious 520 Petition at 140.

521 Pilgrim, CLI-10-11, slip op. at 31.

522 Id. n.21.

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link to the SAMA analysis is insufficient to raise a genuine material dispute for hearing.523 The Commissions statements in Pilgrim are directly applicable here. Petitioners do not explain how the referenced information in the Site Restoration Study is relevant, if at all, to the nature and purpose of FirstEnergys SAMA analysis. Petitioners propose no method for applying the unidentified Site Restoration Study framework to a SAMA analysis, and do not explain how the cited information relates to the specific inputs or assumptions used in the MACCS2 code to evaluate the off-site consequences of a severe accident at Davis-Besse. Like the petitioner in Pilgrim, they have identified no obvious link between those studies and any alleged error in FirstEnergys SAMA cost-benefit analysis calculations or conclusions.

The same can be said of the various other studies cited by Petitioners. For example, they also cite studies related to decontamination and cleanup costs associated rad/nuc events and attacks using radiological dispersal devices (RDDs).524 Based on these studies, Petitioners state, in conclusory fashion, that a severe accident at Davis-Besse is likely to result in huge costs; costs not accounted for by [FirstEnergy], because of the type and magnitude of radionuclides released in comparison with a RDD type device.525 This is sheer speculation.

Again, Petitioners fail to establish a direct nexus between the cited studies and FirstEnergys SAMA cost-benefit analysis. They have identified no specific inputs, assumptions, or models that might be used as viable alternatives to those used in the Davis-Besse 523 Id. (emphasis added). Again, in contrast to Petitioners here, New York State made a materiality claim in gaining admission of contention NYS-12 in the Indian Point license renewal proceeding.; i.e., it asserted that the Applicants SAMA analysis did not accurately determine which mitigation measures were cost-effective.

See New York State Petition at 141-42, 144. Petitioners here have not made a similar claim that use of the Site Restoration Study inputs would result in a material change in FirstEnergy SAMA results. Furthermore, the Indian Point Boards ruling preceded the Commissions statement in CLI-10-11 regarding the Site Restoration Study and its dubious relevance to an NRC licensees SAMA analysis. This fact, coupled with Petitioners poorly-supported presentation of their arguments, militates against admission of Contention 4e here.

524 Petition at 138-40.

525 Id. at 140.

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SAMA analysis. Moreover, it is not sufficient to merely assert that the consequences may be huge or significant without also addressing overall risk and establishing some link to the SAMA cost-benefit results. As the Commission noted in a prior license renewal proceeding, it is unwilling to throw open its hearing doors to Petitioners who have done little in the way of research or analysis, provide no expert opinion, and rest merely on unsupported conclusions.526 Finally, Petitioners also allege that FirstEnergys SAMA analysis should discuss the loss of, and costs to remediate the economic infrastructure that make business, tourism and other economic activity possible, including economic effects on the regional or national economy (i.e., multiplier effects).527 Petitioners argument appears to be loosely based on a similar contention admitted by the board in the Pilgrim license renewal proceeding. The intervenor (Pilgrim Watch) contended that the applicants SAMA analysis did not account for any resulting loss of economic activity in Plymouth County or other neighboring counties with significant tourism (including the Cape Cod area), travel to which is through Plymouth County.528 As one of several specific examples, Pilgrim Watch noted that Plimouth Plantation, which is less than five miles from the Pilgrim plant, brings in almost $10 million per year.529 Pilgrim Watch also included as an exhibit a study on the economic impact of travel on Massachusetts counties, prepared for the Massachusetts Office of Travel and Tourism.530 Consequently, the Pilgrim board found that the intervenor had provided sufficient alleged facts, 526 McGuire/Catawba, CLI-02-17, 56 NRC at 12.

527 Petition at 141-42.

528 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 326 (2006)

(citing Request for Hearing and Petition to Intervene by Pilgrim Watch, at 43-44 (May 25, 2006) (Pilgrim Watch Petition), available at ADAMS Accession No. ML061630125).

529 See id. (citing Pilgrim Watch Petition at 44).

530 See id. (citing Pilgrim Watch Petition, Exhibit D, The Economic Impact of Travel on Massachusetts Counties, 2003, prepared for the Massachusetts Office of Travel and Tourism by the Research Department of the Travel Industry Association of America, Washington, D.C. (Jan. 2005)).

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supported by expert studies or reports, to demonstrate a genuine material dispute with the applicant as to whether its SAMA analysis adequately considered relevant and realistic data with respect to the economic consequences of a severe accident in the vicinity of the plant.531 In stark contrast to the Pilgrim intervenor, Petitioners here do not furnish any alleged facts, documentary support, or expert opinioni.e., anything beyond pure assertionfor their loss of economic activity argument. This argument thus lacks the minimal factual foundation required by Section 2.309(f)(1)(v). Accordingly, it can be rejected on this basis alone.

Additionally, Petitioners do not identify, by reference to the ER, which specific portions of FirstEnergys SAMA analysis are allegedly deficient, contrary to the requirements of Section 2.309(f)(1)(vi). Section E.3.4.8 of the ER and ER Tables E.3-18 and E.3-19 describe the specific economic data (including data sources) and economic parameters used in FirstEnergys MACCS2 economic consequence analysis.532 These data and parameters include, for example, farmland and non-farmland property values; daily cost of compensation (e.g., food, housing, transportation, and lost income) for evacuees and short-term relocatees who are removed from their homes during the emergency and intermediate-phase relocation periods; property depreciation rate; cost of farm and non-farm decontamination for various levels of decontamination; and average decontamination labor cost.533 Despite the availability of this information in the ER, Petitioners provide no factual information or expert opinion to suggest that the specified economic data and parameters are deficient or inappropriate for the purpose for which they are used. Nor do Petitioners directly dispute the specific methodology used by FirstEnergy to calculate averted off-site economic 531 Id. at 340.

532 See ER, att. E at E-40 to E-41, E-96 (ER Tables E.3-18 and E.3-19).

533 See id.

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costs (AOC) (which is based on NUREG/BR-0184),534 or the acceptability of the CHRONC module of MACCS2, which performs the necessary calculations.535 Notably, Chapter 7.0 (CHRONC Input File) of the MACCS2 Users Guide provides detailed information regarding the MACCS2 economic consequences model. Section 7.6 (Interdiction Plan Cost Data) specifically states that the property depreciation rate variable (DPRATE) is intended to account for the loss of value of buildings and other structures resulting from a lack of habitation and maintenance.536 It further states that the population relocation cost variable (POPCST) is the per capita removal cost for temporary or permanent relocation of population and businesses in a region rendered uninhabitable during the long-term phase time period.537 In short, Petitioners provide no factual support for their allegation that FirstEnergy has underestimated certain off-site economic costs associated with decontamination following a severe accident. Indeed, Petitioners ignore the fact that FirstEnergy evaluated the sensitivity of its SAMA cost-benefit analyses to off-site economic costs by assuming a twenty-five percent increase in the off-site economic cost.538 As reflected in ER Table E.8-1, the Off-site Economic Cost sensitivity case did not result in the identification of additional cost-beneficial SAMAs.539 Petitioners also have not alleged or attempted to show that the inclusion of the purportedly-excluded economic costs credibly could result in the identification of any additional SAMA as 534 See id. at E-49.

535 See id. at E-40 to E-41.

536 MACCS2 Users Guide, at 7-13.

537 Id. Section 7.6 further explains that this cost is assessed if any of the following actions are required:

decontamination alone, decontamination followed by interdiction, or condemnation, and that this value should be derived in a way that takes account of both personal and corporate income losses for a transitional period as well as moving expenses. Id.

538 See ER, att. E at E-73.

539 See id. at E-190 (ER Table E.8-1).

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cost-beneficial, as required by Section 2.309(f)(1)(iv) and (vi) and Commission precedent regarding the materiality of proposed SAMA contentions.540 In summary, Petitioners decontamination-related arguments rest merely on unsupported conclusions and fail to establish any concrete and material dispute, contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(iv), (v), and (vi).

(2) Health Costs Contention 4e further alleges that the population dose conversion factor of $2000/person-rem used in FirstEnergys SAMA analysis to estimate the cost of health effects resulting from radiation exposure is based on a deeply flawed analysis and seriously underestimates the cost of the health consequences of severe accidents.541 Petitioners claim that use of this conversion factor is inappropriate because it: (1) does not consider the significant loss of life associated with early fatalities from acute radiation exposure possibly resulting from some severe accident scenarios; and (2) underestimates stochastic health effects by not considering that some members of the public exposed to radiation after a severe accident will receive doses above the threshold level for application of a dose- and dose-rate-reduction effectiveness factor (DDREF).542 The Board should recognize that Petitioners have based their claim on a contention originally filed by Riverkeeper in the Indian Point license renewal proceeding and recast by petitioners in the Seabrook proceeding. The Riverkeeper contention was supported by the report of Dr. Edwin Lyman, who had reviewed the applicants SAMA analysis and performed his own independent evaluation.543 Petitioners have essentially copied and pasted Dr. Lymans 540 See McGuire/Catawba, CLI-02-17, 56 NRC at 11-12; Pilgrim, CLI-09-11, 69 NRC at 533.

541 Petition at 142-43.

542 Id. at 143.

543 See Riverkeeper Petition at 72.

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conclusions (with respect to a different SAMA analysis for a different reactor) into Contention 4e, but have omitted references to the factual support provided in Indian Point. In any case, the Riverkeeper contention (EC-2) on which Contention 4e apparently is based was rejected by the Indian Point board as inadmissible.

The Board should reach the same result here. As discussed below, Petitioners allegations again are rooted in speculation and, consequently, do not suffice as the basis for an admissible contention. With regard to the first issue (early fatalities), Petitioners claim that the

$2000/person-rem conversion factor is intended to represent only stochastic health effects (e.g.,

cancer), not deterministic health effects that include early fatalities that result from very high doses to particular individuals.544 They further contend that, for some of the severe accident scenarios evaluated by FirstEnergy, large numbers of early fatalities could occur, representing a significant fraction of the total number of projected fatalities, both early and latent.545 Petitioners provide no factual or technical support for these statements, thereby rendering their contention inadmissible under Section 2.309(f)(1)(v).

In regard to the second issue (treatment of stochastic effects), Petitioners state that we estimate that considerable numbers of people would receive doses above the threshold level for application of a DDREF factor of 2.546 Based on this estimation, they declare that a single cost conversion factor, based on a DDREF of 2, is inappropriate.547 Petitioners then allege that a better way to evaluate the cost equivalent is simply to sum the total number of early fatalities 544 Petition at 143-44.

545 Id. at 144.

546 Id. at 145.

547 Id.

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and latent cancer fatalities, as computed by the MACCS2 code, and to multiply them by $3 million (which they state is the NRCs estimate for the value of a statistical life).548 It is quite evident that Petitioners have not estimated any dose impacts for Davis-Besse.

Rather, they have merely imported, largely verbatim, text from proposed contention Riverkeeper EC-2 (including the underlying Lyman report) in the Indian Point proceeding and ascribed its conclusions to themselves.549 However, the Indian Point board rejected Contention EC-2 in its entirety because it failed to raise a genuine material dispute, and then later affirmed its ruling after Riverkeeper sought reconsideration.550 Petitioners mere replication of Riverkeepers rejected contention does not amount to the proffering of an admissible contention here.

Additionally, contrary to Petitioners assertions, the NRC specifically recommends that license renewal applicants use a $2,000 per person-rem conversion factor in the cost-benefit component of their SAMA analyses. The use of a $2,000 per person-rem conversion factor is consistent with guidance set forth in NEI 05-01, which the NRC endorsed in ISG-LR-2006-03.551 Numerous other license renewal applicants have used this conversion factor with the approval of the NRC.552 Therefore, the Board should reject Petitioners challenge to the $2000/person-rem 548 Id. at 143, 145 (citing NUREG-1530, Reassessment of NRCs Dollar per Person-Rem Conversion Factor Policy, at 12 (Dec. 1995)).

549 Compare Riverkeeper Petition at 71-74 with Petition at 143-45.

550 See Indian Point, LBP-08-13, 68 NRC at 185-88; Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Memorandum and Order (Granting in Part Riverkeepers Motion for Clarification and Reconsideration of the Boards Ruling in LBP-08-13 Related to the Admissibility of Riverkeeper Contention EC-2) (unpublished), at 3-8 (Dec. 18, 2008).

551 See NEI 05-01, at 16-19. The monetary worth of $2000 per person-rem is a standard valuation for comparison purposes recommended by NUREG/BR-0058, Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission (Rev. 4, Sept. 2004). Thus, it is used in various NRC regulatory applications other than SAMA analyses conducted for license renewal.

552 See, e.g., NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 42, Regarding Duane Arnold Energy Center, at F-28 to F-29 (Oct. 2010).

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conversion factor used by FirstEnergy in its SAMA analysis (and by the NRC in other contexts) as failing to raise a genuine material dispute, as required by Section 2.309(f)(1)(iv) and (vi).

Petitioners contend that [a]nother way to explain why [FirstEnergys] estimates of how many lives might be lost are too low is to look at the 1982 Sandia National Laboratory report.553 Petitioners state that the population of the affected area has greatly increased during the intervening decades. They then conclude that, regardless of what model is used, the number of fatalities during a severe accident will be larger because the population has increased.554 This argument does not meet the NRCs contention pleading standards. First, Petitioners provide a citation for the 1982 Sandia study of: CRAC-2, Calculation of Reactor Accident Consequences, U.S. Nuclear Power Plants, Sandia National Laboratory, 1982.555 This document is not attached to the Petition as an Exhibit, and counsel has been unable to locate a document with this title, author, and date that is readily available in the public domain. Nor do Petitioners identify the relevant pages of this document. Petitioners failure in this regard deprives the Board and other participants of the ability to readily evaluate the accuracy (or inaccuracy) of Petitioners characterization of the referenced document.

Petitioners also do not explain the relevance of this almost 30-year old studywhich used 1970 census data and the CRAC2 computer codeto FirstEnergys current probabilistic, risk-based SAMA analysis or its ultimate cost-benefit conclusions. In fact, in the next paragraph of their Petition, Petitioners acknowledge that CRAC2, an early predecessor to MACCS2was 553 Petition at 146.

554 Id.

555 Id.

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based on old, and now outdated, dose response models.556 Petitioners confusion does not create an admissible contention.

Further demonstrating their confusion and lack of adequate factual support, Petitioners twice claim that FirstEnergys SAMA analysis does not consider cancer incidence, despite previously stating that the same analysis was limited to stochastic effects like cancer.557 Petitioners also argue that the SAMA analysis failed to account for indirect costs such as losses in time and economic productivity and liability.558 But again, they provide no support for these claims and fail to tie them to specific alleged deficiencies in the Davis-Besse SAMA analysis.

Finally, borrowing from yet another page of the Seabrook petition, Petitioners argue that FirstEnergys evacuation time input data are unrealistically low and unsubstantiated; and that if correct evacuation times and assumptions regarding evacuation had been used, the analysis would show far fewer will evacuate in a timely manner, increasing health-related costs.559 As with countless prior arguments, Petitioners fail to provide any alleged facts or expert opinion to support their broad and conclusory allegations. Petitioners do not even cite the ER, leaving real doubt as to whether they even reviewed the relevant portions of FirstEnergys SAMA analysis.

The ER, it turns out, contains directly-relevant information. Section E.3.4.6 of the ER discusses the specific evacuation parameters used by FirstEnergy in its Level 3 PRA analysis, including weighting fraction, evacuation speed, evacuation delay time, and groundshine and cloudshine shielding factors. By failing to even mention this information in their contention, 556 Id. See also MACCS2 Users Guide, at 1-2 (stating that MACCS was developed to remedy shortcomings in the CRAC2 code).

557 Petition at 146-47.

558 Id. at 147.

559 Id.

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Petitioners have acted in total derogation of their duties to adequately support their allegations and identify specific deficiencies in the ER, as required by 10 C.F.R. § 2.309(f)(1)(v) and (vi).

(3) Myriad Other Economic Costs Lastly, in a single paragraph devoid of any citations, Petitioners allege that FirstEnergy failed to include myriad other economic costs, including the business value of property and costs of job training, unemployment costs, and litigation.560 They also claim that FirstEnergys assumed value of non-farm wealth (which Petitioners do not reference) appeared not justified by . . . Banker and Tradesmen sales figures.561 Petitioners also allege that FirstEnergy underestimated the value of farm property (again, without referencing the value contained in the ER) by ignoring its development value and the fact that farm assessments are intentionally low.

Consistent with their recurring failure to meet the Commissions contention support and materiality requirements, Petitioners neither provide any alleged facts or expert opinion to support their claims, nor seek to controvert specific, relevant portions of the ER. Thus, this third and final part of Contention 4e likewise is inadmissible under Section 2.309(f)(1).

In summary, the Board should dismiss Contention 4e in its entirety because it lacks adequate factual or expert support and fails to establish a genuine dispute with FirstEnergy on a material issue of law or fact, contrary to the requirements of Section 2.309(f)(1)(iv), (v), and (vi).

i. Contention 4f: Statistical Analysis of Data In their final contention (which consists of three brief paragraphs comprising mostly citations to documents), Petitioners allege that FirstEnergy fails to consider the uncertainties in its consequence calculation resulting from meteorological variation, because it uses only mean 560 Id. at 148.

561 Id. ER Section E.3.4.8 and Table E.3-18 contain the relevant economic data or inputs, including farmland property value and non-farmland property value used in FirstEnergys MACCS2 analysis. Petitioners do not challenge or even cite to these values.

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values for population dose and offsite economic cost estimates.562 As shown below, Contention 4f is grossly lacking in factual support and fails to raise a material, litigable dispute. It was also rejected by another Board and the Commission. Accordingly, this Board should reject the contention as inadmissible under 10 C.F.R. § 2.309(f)(1)(iv), (v) or (vi).

(i) Contention 4f Lacks Adequate Factual or Expert Support Petitioners cite numerous documents to support their claim that the Davis-Besse SAMA analysis does not appropriately account for uncertainty. The referenced materials, however, are taken out of context and lend no support for Petitioners argument.

First, Petitioners rely on a report submitted by a petitioner in the Indian Point license renewal proceeding.563 The author of the report, Dr. Edwin Lyman, posited that use of the 95th percentile for meteorological data (instead of the mean value) in the Indian Point SAMA analysis would have yielded potential SAMA benefits of three to four times greater in value.

Petitioners, again unsupported by any expert of their own, fail to explain how that report applies to Davis-Besse. Nor do Petitioners explain why the approach used by FirstEnergy in its SAMA analysis is deficient or contrary to NRC requirements. Indeed, the Indian Point board rejected the proffered contention, as ostensibly supported by Dr. Lymans report, because the petitioner made no showing that the applicant had failed to meet a regulatory requirement.564 The same deficiency is evident herein.

Petitioners also cite the aforementioned Jamali Article in support of the (seemingly self-evident) proposition that quantitative results of PRAs, in particular, are subject to various types 562 Petition at 148-49.

563 Id. at 148 (citing 2007 Lyman Report, at 4).

564 Indian Point, LBP-08-13, 68 NRC at 185-88.

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of uncertainties.565 On this point, Petitioners state only that FirstEnergy has unconvincingly performed suspect sensitivity analyses, inadequately dealing with such Uncertainty in its ER.

But Petitioners make no attempt to explain why FirstEnergys sensitivity analyses for the Davis-Besse SAMA analysis are unconvincing or suspect.566 As documented in the ER, FirstEnergy performed numerous sensitivity analyses to investigate the robustness of the Level 3 PRA model (ER Section E.3.5.2) and robustness of the SAMA cost-benefit evaluation (ER Section E.8.2).567 Petitioners do not challenge or even mention the relevant ER discussion. It is well-established that 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.568 For the reasons above, Contention 4f must be dismissed as lacking an adequate factual foundation, contrary to the requirement of 10 C.F.R. § 2.309(f)(v).

(ii) Contention 4f Fails to Raise a Genuine Dispute on a Material Issue of Law or Fact As the Indian Point boards ruling indicates, the issue raised by Petitioners here is not material to the adequacy of the Davis-Besse SAMA analysis, as judged under the applicable requirements of Part 51 and NEPA.569 Notably, in November 2009, the Board presiding over the 565 Petition at 149 (citing Jamali Article at 935).

566 Id.

567 With regard to the cost-benefit evaluation, seven sensitivity cases were investigated. These cases examined:

(1) the impacts of assuming damaged plant equipment is repaired and refurbished following an accident, (2) a lower discount rate, (3) a higher discount rate, (4) higher on-site dose estimates, (5) higher total on-site cleanup costs, (6) higher costs for replacement power, and (7) a higher non-internals event hazard groups multiplier.

Further details on the sensitivity cases are provided ER Appendix E, Section E.8.

568 See Turkey Point, LBP-90-16, 31 NRC at 521 & n.12.

569 See Indian Point, LBP-08-13, 68 NRC at 187 (It is sufficient that Riverkeeper has failed to make the minimal demonstration, as required by contention admissibility rules, that Entergys ER analysis fails to meet a statutory or regulatory requirement.).

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Watts Bar operating license proceeding reached the same conclusion in rejecting a very similar proposed SAMA contention also supported by Dr. Lyman.570 The Board stated:

Regarding [petitioners] claim that the uncertainty evaluation should consider the spread in both the meteorological variations and the radionuclide release fractions at the 95th percentile, as noted by TVA, the Petitioners cite to no regulation or NRC guidance document that requires or even advises that meteorological uncertainty should be evaluated in the specific manner advocated by Dr. Lyman, nor does Petitioner cite to any regulation or NRC guidance document that requires or even advises that uncertainty in radiological release fractions should be evaluated using the 95th percentile of the uncertainty distributions for these values.571 The Board further concluded that the petitioners had not indicated how, in following the guidance provided in NEI 05-01, the applicant failed to perform a reasonable SAMA uncertainty analysis with regard to meteorological or radionuclide release fraction values.572 Finally, the Board clarified that SAMA results are based on the best-estimate PRA results, such that sensitivity analyses, including uncertainty evaluations, are only used to [e]valuate how changes in SAMA analysis assumptions would affect the cost-benefit analysis.573 The Commissions subsequent decision in the Pilgrim proceeding (in CLI-10-11) reinforces the conclusions reached by Indian Point and Watts Bar Boards. In particular, the Commission explained that in SAMA analysis, [i]t is NRC practice to utilize the mean values of the consequence distributions for each postulated release scenario or categorythe mean estimated value for predicted total population dose and predicted off-site economic costs.574 570 See Tenn. Valley Auth. (Watts Bar Unit 2), LBP-09-26, slip op. at 21-28 (Nov. 19, 2009), affd on other grounds, CLI-10-12, slip op. (Mar. 26, 2010).

571 Id. at 25-26.

572 Id. at 26.

573 Id. at 27 (internal quotation marks and citations omitted).

574 Pilgrim, CLI-10-11, slip op. at 38-39 (emphasis added).

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SAMA analysis thus involves an averaging of potential consequences.575 Directly relevant here, the Commission further stated: As a policy matter, license renewal applicants are not required to base their SAMA analysis upon consequence values at the 95th percentile consequence level.576 The Commission did not categorically exclude challenges as to whether this NRC practice is reasonable for a SAMA analysis.577 However, any such challenge must rest on adequate documentary support or expert opinion. As shown above, Petitioners have not provided such support here.

Accordingly, the Board also should deny admission of Contention 4f on the ground that it does not establish a genuine material dispute with the Applicant, as required by 10 C.F.R.

§ 2.309(f)(1)(iv) and (vi).

In summary, each of the six subparts of Contention 4 is inadmissible. Therefore, whether its subparts are viewed independently or cumulatively in combination with other subparts, Contention 4, should be rejected in its entirety for failing to meet the requirements of 10 C.F.R.

§ 2.309(f)(1)(iii)-(vi).

575 Id. at 39.

576 Id. (emphasis added).

577 Pilgrim, CLI-10-22, slip op. at 8 n.34.

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VII. CONCLUSION For the reasons discussed above, Petitioners request for hearing and petition to intervene in this proceeding should be denied. The Petition is untimely, and all of the proffered contentions are inadmissible. In addition, two PetitionersCitizens Environment Alliance of Southwestern Ontario and Dont Waste Michiganlack standing. Accordingly, the Petition should be denied in its entirety.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Signed (electronically) by Alex S. Polonsky Kathryn M. Sutton Alex S. Polonsky Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: 202-739-5830 E-mail: apolonsky@morganlewis.com David W. Jenkins Senior Attorney FirstEnergy Service Company Mailstop: A-GO-15 76 South Main Street Akron, OH 44308 Phone: 330-384-5037 E-mail: djenkins@firstenergycorp.com COUNSEL FOR FIRSTENERGY Dated in Washington, D.C.

this 21st day of January 2011 135

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) January 21, 2011

)

CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of FirstEnergys Answer Opposing Request for Public Hearing and Petition for Leave to Intervene was filed with the Electronic Information Exchange in the above-captioned proceeding on the following recipients.

Administrative Judge Administrative Judge William J. Froehlich, Chair Dr. Nicholas G. Trikouros Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: wjf1@nrc.gov E-mail: nicholas.trikouros@nrc.gov Administrative Judge Office of the General Counsel Dr. William E. Kastenberg U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Brian G. Harris E-mail: wek1@nrc.gov Megan Wright Emily L. Monteith E-mail: Brian.Harris@nrc.gov; Office of the Secretary Megan.Wright@nrc.gov; U.S. Nuclear Regulatory Commission Emily.Monteith@nrc.gov Rulemakings and Adjudications Staff Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov

Office of Commission Appellate Adjudication Michael Keegan U.S. Nuclear Regulatory Commission Dont Waste Michigan Mail Stop: O-16C1 811 Harrison Street Washington, DC 20555-0001 Monroe, MI 48161 E-mail: ocaamail@nrc.gov E-mail: mkeeganj@comcast.net Kevin Kamps Paul Gunter Beyond Nuclear 6930 Carroll Avenue, Suite 400 Takoma Park, MD 20912 E-mail: kevin@beyondnuclear.org; paul@beyondnuclear.org Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5059 Fax: 202-739-3001 E-mail: sburdick@morganlewis.com COUNSEL FOR FIRSTENERGY DB1/66339895 2