ML110970659

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NRC Staff'S Answer to Petition for Leave to Intervene and Request for Hearing of Seed Coalition and Susan Dancer
ML110970659
Person / Time
Site: South Texas  STP Nuclear Operating Company icon.png
Issue date: 04/07/2011
From: Andrea Jones, Emily Monteith, Matthew Smith, Megan Wright
NRC/OGC
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 19890, 50-498-LR, 50-499-LR, ASLBP 11-909-02-LR-BD1
Download: ML110970659 (36)
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Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

STP NUCLEAR OPERATING COMPANY ) Docket No. 50-498-LR and 50-499-LR

)

(South Texas Project Electric Generating ) ASLBP No. 11-909-02-LR-BD01 Station Units 1 and 2) )

)

NRC STAFFS ANSWER TO PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING OF SEED COALITION AND SUSAN DANCER Andrea Z. Jones Emily L. Monteith Maxwell C. Smith Megan Wright Counsel for NRC Staff April 7, 2011

TABLE OF CONTENTS PAGE INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 DISCUSSION ................................................................................................................................ 4 I. Standing to Intervene ........................................................................................................ 4 A. Applicable Legal Requirements ............................................................................. 4 B. SEED and Susan Dancer Do Not Plead Sufficient Facts to Establish Standing to Intervene ............................................................................................ 6 II. Admissibility of SEED Coalitions Proposed Contentions.................................................. 7 A. Legal Requirements for Contentions ..................................................................... 7

1. General Requirements of Admissibility ...................................................... 7
2. Scope of License Renewal Proceedings ................................................. 10 B. Contention 1 ........................................................................................................ 14
1. Contention 1 Raises Issues that are Outside the Scope of License Renewal ..................................................................................... 15
2. Contention 1 Does Not Raise a Genuine Dispute with STPs Application..................................................................................... 17
3. SEED Coalition Does Not Provide or Allege Facts or Expert Opinion to Support Contention 1 ............................................................. 18 C. Contentions 2 and 3 ............................................................................................ 19
1. Contentions 2 and 3 Raise Issues That Are Outside the Scope Of This Proceeding .................................................................................. 20
2. Contentions 2 and 3 Lack an Adequate Factual Basis ............................ 22
3. Contentions 2 and 3 Do Not Present a Genuine Dispute on a Material Issue of Fact or Law................................................................... 23 D. Contention 4 ........................................................................................................ 25
1. Contention 4 Requests a Need for Power Analysis and is Therefore Outside the Scope of License Renewal .................................. 26
2. Contention 4 Does Not Raise a Material Dispute with the Application .... 28

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3. Contention 4 Lacks an Adequate Factual Basis ...................................... 29 CONCLUSION ............................................................................................................................ 31

April 7, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

STP NUCLEAR OPERATING COMPANY ) Docket No. 50-498-LR and 50-499-LR

)

(South Texas Project Electric Generating ) ASLBP No. 11-909-02-LR-BD01 Station Units 1 and 2) )

)

NRC STAFF ANSWER TO PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING OF SEED COALITION AND SUSAN DANCER INTRODUCTION Pursuant to 10 C.F.R. § 2.309(h)(1), the Staff of the U.S. Nuclear Regulatory Commission (Staff) files its answer to the Petition for Leave to Intervene and Request for Hearing (Petition) filed by the Sustainable Energy and Economic Development (SEED)

Coalition and Susan Dancer (collectively, SEED or Petitioner).1 As set forth below, the Staff submits that SEED has not presented information sufficient to support its standing to intervene in this proceeding. Moreover, SEED has not set forth an admissible contention. SEEDs reliance on information and belief to support all four proffered contentions does not meet the Commissions high standards for contention admissibility.2 SEED does not raise any claims within the scope of 10 C.F.R. Part 54 or 10 C.F.R. § 51.53(c), which govern the Staffs review and issuance of renewed operating licenses. See 10 1

See Petition for Leave to Intervene and Request For Hearing of SEED and Susan Dancer (Mar.

14, 2011) (Petition) (Agency Documents Access and Management System (ADAMS) Accession No. ML110740848).

2 Id. at 4-6. Although SEED has not numbered the pages in its Petition, for ease of reference the Staff will cite to specific page numbers in the Petition, with the first page corresponding to page 1.

C.F.R. § 54.1.3 Contentions 1, 2 and 3 rely on 10 C.F.R. § 52.80(d) and 10 C.F.R. § 50.54(hh)(2) for supporting legal authority.4 But, §52.80(d) applies to new combined licenses for nuclear facilities, and 10 C.F.R. § 50.54(hh)(2) imposes on-going operational requirements for all currently licensed power reactors. Contention 4 claims that the application is deficient for not considering the need for South Texas Project, Units 1 and 2 (STP) as a source of power, but NRC regulations state that the need for power is not within the scope of a license renewal proceeding. See 10 C.F.R. § 51.53(c)(2).

The Staff also opposes the admission of Petitioners Contentions 1, 2, 3, and 4 on additional grounds described more fully below.

BACKGROUND This proceeding arises out of the application of South Texas Project Nuclear Operating Company (Applicant or STPNOC) to renew its operating licenses for STP Units 1 and 2.5 STP Units 1 and 2 are located near the city of Wadsworth, in Matagorda County, Texas. STP Units 1 and 2 are pressurized water reactors, designed by Westinghouse Electric Corporation.

The current license for STP Unit 1 expires on August 20, 2027, and the current license for STP Unit 2 expires on December 15, 2028. STPs license renewal application (LRA or Application) seeks authorization to allow each unit to operate for an additional 20 years beyond the period specified in the current license.6 3

See also Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. NPF-76 and NPF-80 for an Additional 20-Year Period, STP Nuclear Operating Company, South Texas Project, Units 1 and 2, 76 Fed. Reg. 2,426, 2,427 (Jan. 13, 2011).

4 Petition at 4-5.

5 Letter from G. T. Powell, Vice President, Technical Support and Oversight, South Texas Project Electric Generating Station, STP Nuclear Operating Company, dated October 25, 2010, transmitting application for license renewal for STP Units 1 and 2, operating licenses NPF-76 and NPF-80, respectively (ADAMS Accession No. ML103010256) (LRA or Application).

6 LRA at 1.1-13.

On December 9, 2010, the NRC published a notice of receipt of the STP LRA.7 On January 13, 2011, the NRC published a notice of acceptance for docketing and notice of opportunity for hearing on the LRA.8 The notice of acceptance for docketing stated that petitions for leave to intervene and requests for hearing were due to be filed within 60 days.

The 60-day period for filing ended on March 14, 2011. On March 14, 2011, and in accordance with the NRC E-Filing rule, SEED and Susan Dancer jointly filed a petition for leave to intervene.9 SEED seeks representational standing on behalf of SEED member Susan Dancer in this proceeding.

On March 23, 2011, an Atomic Safety and Licensing Board (Board) was established to rule on petitions for leave to intervene and hearing requests, and to preside over any proceeding that may be held in this matter.10 7

STP Nuclear Operating Company; Notice of Receipt and Availability of Application for Renewal of South Texas Project, Units 1 and 2 Facility Operating Licenses Nos. NPF-76 and NPF-80 for an Additional 20-Year Period, 75 Fed. Reg. 76,757 (Dec. 9, 2010).

8 Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. Nos. NPF-76 and NPF-80 for an Additional 20-Year Period, STP Nuclear Operating Company, South Texas Project, Units 1 and 2, 76 Fed. Reg. 2,426 (Jan. 13, 2011).

9 See Petition at 1.

10 South Texas Project Nuclear Operating Company; Establishment of Atomic Safety and Licensing Board, 76 Fed. Reg. 17,460 (Mar. 29, 2011).

DISCUSSION I. Standing to Intervene A. Applicable Legal Requirements The Commissions Rules of Practice11 provide: [a]ny person12 whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for hearing or petition for leave to intervene and a specification of the contentions which the person seeks to have litigated in the hearing.13 In accordance with the regulations, the Board will grant the request/petition if it determines that the requestor/petitioner has standing under the provisions of [10 C.F.R. § 2.309(d)] and has proposed at least one admissible contention that meets the requirements of [10 C.F.R. § 2.309(f)].14 A request for hearing or petition for leave to intervene must state:

(i) The name, address, and telephone number of the requestor or petitioner; (ii) The nature of the requestors/petitioners right under [the Atomic Energy Act of 1954, as amended] to be made a party to the proceeding; 11 See Rules of Practice for Domestic Licensing Proceedings and Issuance of Orders, 10 C.F.R. Part 2. These requirements substantially reiterate the requirements stated in former § 2.714, published in revised form in 1989. See Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,217 (Jan. 14, 2004);

Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (Aug. 11, 1989), as corrected, 54 Fed. Reg. 39,728 (Sept. 28, 1989). Further, while § 2.714 was revised in 1989, those revisions did not constitute a substantial departure from then existing practice in licensing cases. 54 Fed. Reg. at 33,170-71; see also Louisiana Energy Serv., L.P. (Claiborne Enrichment Center), LBP-94-11, 39 NRC 205-07 (1994). Thus, while the 1989 amendments superseded, in part, the prior standards governing the admissibility of contentions, those standards otherwise remained in effect to the extent they did not conflict with the 1989 amendments. Arizona Public Serv. Co.

(Palo Verde Nuclear Generating Station, Units 1, 2 & 3), LBP-91-19, 33 NRC 397, 400 (1991).

12 Person is defined as (1) any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, government agency other than the Commission . . . any State or any political subdivision of, or any political entity within a State, any foreign government or nation or any political subdivision of any such government or nation, or other entity; and (2) any legal successor, representative, agent, or agency of the foregoing. 10 C.F.R. § 2.4.

13 10 C.F.R. § 2.309(a).

14 Id.

(iii) The nature and extent of the requestors/petitioners property, financial or other interest in the proceeding; and (iv) The possible effect of any decision or order that may be issued in the proceeding on the requestors/petitioners interest.

10 C.F.R. § 2.309(d)(1).

In license renewal proceedings, standing may be based upon on a petitioners proximity to the facility at issue.15 Accordingly, a petitioner is presumed to have standing to intervene without the need specifically to plead injury, causation, and redressability if the petitioner lives within 50 miles of the nuclear power reactor.16 An organization may establish its standing to intervene based on organizational standing (showing that its own organizational interest could be adversely affected by the proceeding), or representational standing (based on the standing of its members).17 To show organizational standing, an organization must show a discrete institutional injury to itself, not just general environmental and policy interests.18 When an organization seeks to establish representational standing, it must show that at least one of its members may be affected by the proceeding, it must identify that member by name and address, and it must show that the member has authorized the organization to represent him or her and to request a hearing on his or her behalf.19 Further, for the organization to establish representational standing, the member 15 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 60 (2008).

16 Id. (citing Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

LBP-01-06, 53 NRC 138, 146 (2001)), affd on other grounds, CLI-01-17, 54 NRC 3 (2001)).

17 Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-91-13, 34 NRC 185, 187 (1991).

18 Intl Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 252 (2001).

19 See, e.g., Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 409 (2007); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-06-07, 63 NRC 188, 195 (2006) (citing GPU Nuclear Inc. (Oyster Creek Nuclear Generating Station), CLI-00-06, 51 NRC

seeking representation must qualify for standing in his or her own right, the interests that the organization seeks to protect must be germane to its own purpose, and neither the asserted claim nor the requested relief must require an individual member to participate in the organizations legal action.20 B. SEED and Susan Dancer Do Not Plead Sufficient Facts to Establish Standing to Intervene SEED seeks representational standing in this proceeding.21 Ms. Dancer appears to only seek participation as a member of SEED and not in an individual capacity. SEED states that it is a non-profit organization based in Austin, Texas, that advocates for safe energy alternatives with members who reside within 50 miles of STP Units 1 and 2.22 It designated Susan Dancer as its member on whose behalf it seeks to intervene.23 Susan Dancer states that she resides in Blessing, Texas, approximately eight miles from the STP Units 1 and 2.24 Ms. Dancer, however, does not provide the physical address at which she resides, which is a criterion required under 10 C.F.R. § 2.309(d)(1)(i). As a result, the Staff could not verify the accuracy of her declaration with regard to her proximity to STP. Since Ms. Dancer has not presented information sufficient to demonstrate standing, SEED and Ms. Dancer are not entitled to a presumption of standing in this license renewal proceeding. Nevertheless, if Ms. Dancer provides a declaration clearly 193, 202 (2000)).

20 Palisades, CLI-07-18, 65 NRC at 409; Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 323 (1999) (citing Hunt v. Wash. State Apple Advertising Commn, 432 U.S. 333, 343 (1977)).

21 Petition at 1.

22 Declaration of Karen Hadden on Behalf of SEED Coalition, at 1 (Mar. 14, 2011) (ADAMS Accession No. ML110740852).

23 Id.

24 Declaration of Susan Dancer on Behalf of SEED Coalition, at 1 (Mar. 14, 2011) (ADAMS Accession No. ML110740850).

stating her physical address of residence, and the Staff can verify that the address is within 50 miles of STP Units 1 and 2, the Staff would not object to SEEDs standing to intervene.

II. Admissibility of SEED Coalitions Proposed Contentions A. Legal Requirements for Contentions

1. General Requirements for Admissibility In order to participate as a party in this proceeding, a petitioner must not only establish standing, but must also proffer at least one admissible contention that meets the requirements of 10 C.F.R. § 2.309(f)(1).25 The legal requirements governing the admissibility of contentions are well-established and set forth in 10 C.F.R. § 2.309(f) of the Commissions Rules of Practice.

Specifically, in order to be admitted, a contention must satisfy the following requirements:

(f) Contentions. (1) A request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and 25 See 10 C.F.R. § 2.309(a), (f)(1).

(vi) Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petition disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief[.]

(2) Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On 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)(1)-(2).26 The purpose of § 2.309(f)(1) is to focus litigation on concrete issues and result in a clearer and more focused record for decision.27 The Commission has stated that the hearing process [is only intended for] issues that are appropriate for, and susceptible to, resolution in an NRC hearing.28 The requirements governing the admissibility of contentions are strict by design.29 Thus, they have been strictly applied in NRC adjudicatory proceedings, including license 26 Similarly, long-standing Commission precedent establishes that contentions may only be admitted in an NRC licensing proceeding if they fall within the scope of issues set forth in the Federal Register notice of hearing and comply with the requirements of former § 2.714(b) (subsequently restated in § 2.309(f)), and applicable Commission case law. See, e.g., Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2, Catawba Nuclear Power Station, Units 1 & 2), CLI-02-14, 55 NRC 278, 289-90 (2002).

27 69 Fed. Reg. at 2202.

28 Id.

29 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), petition for reconsideration denied, CLI-02-01, 55 NRC 1 (2002).

renewal proceedings. For example, in a previous license renewal decision, the Commission stated:

The requirements for admissibility set out in 10 C.F.R.

§ 2.309(f)(1)(i)-(vi) are strict by design, and we will reject any contention that does not satisfy these requirements. Our rules require a clear statement as to the basis for the contentions and the submission of . . . supporting information and references to specific documents and sources that establish the validity of the contention. Mere notice pleading does not suffice. Contentions must fall within the scope of the proceeding - here, license renewal - in which intervention is sought.30 In short, the contention admissibility rules require a detailed, fact-based showing that a genuine and material dispute of law or fact exists.31 The basis requirements serve to: (1) assure that the contention raises a matter appropriate for adjudication in a particular proceeding; (2) establish a sufficient foundation for the contention to warrant further inquiry into the assertion; and (3) put other parties sufficiently on notice of the issues so that they will know generally what they will have to defend against or oppose.32 The Commission has explained that it toughened its contention rule in a conscious effort to . . . obviate serious hearing delays caused in the past by poorly defined or supported contentions.33 The Commission has stated:

It is surely legitimate for the Commission to screen out contentions of doubtful worth and to avoid starting down the path toward a hearing at the behest of petitioners who themselves have no particular expertise - or expert assistance - and no particularized 30 AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006) (footnotes omitted).

31 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 &

2), CLI-02-14, 55 NRC 278, 289 (2002).

32 Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 AEC 13, 20 (1974); see also Palo Verde, LBP-91-19, 33 NRC at 400.

33 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 334 (1999).

grievance, but are hoping something will turn up later as a result of NRC staff work.34 Where a contention seeks to connect a set of facts with a specific result and that result is not self-evident, expert analysis is needed to bridge the gap.35 As the Board in Georgia Tech recognized, it is the petitioner who is obligated to provide the analyses and expert opinion showing why its bases support its contention.36 And that obligation must be satisfied when the petition is filed.37

2. Scope of License Renewal Proceedings The Commissions regulations in 10 C.F.R. Part 5438 limit the scope of a license renewal proceeding to the specific matters that must be considered for the license renewal application to be granted. Pursuant to 10 C.F.R. § 54.29, the Commission considers the following standards in determining whether to grant a renewed license:

A renewed license may be issued by the Commission up to the full term authorized by § 54.31 if the Commission finds that:

(a) Actions have been identified and have been or will be taken with respect to the matters identified in Paragraphs (a)(1) and (a)(2) of this section, such that there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the [current licensing basis (CLB)],

and that any changes made to the plant's CLB in order to comply with this paragraph are in accord with the Act and the Commission's regulations. These matters are:

34 Id. at 342.

35 E.g., Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 352 (2006),

affd CLI-06-17, 63 NRC 727 (2006).

36 Georgia Inst. of Tech. (Georgia Tech Research Reactor), LBP-95-6, 41 NRC 281, 305 (1995).

37 Palisades, CLI-06-17, 63 NRC at 352 n. 152.

38 See generally Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943 (Dec. 13, 1991)

(1991 License Renewal Rule); Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461 (May 8, 1995) (1995 License Renewal Rule).

(1) managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified to require review under § 54.21(a)(1); and (2) time-limited aging analyses that have been identified to require review under § 54.21(c).

(b) Any applicable requirements of Subpart A of 10 C.F.R. Part 51 have been satisfied.

(c) Any matters raised under § 2.335 have been addressed.

These standards, along with other regulations in 10 C.F.R. Part 54, and the environmental regulations related to license renewal set forth in 10 C.F.R. Part 51 and Appendix B thereto, establish the scope of issues that may be considered in a license renewal proceeding. A proposed contention must demonstrate that the issue it raises is within the scope of the proceeding. A petitioners failure to do so is grounds for denying admission of a proposed contention.39 The Commission has provided guidance for license renewal adjudications regarding which safety and environmental issues fall within or beyond its license renewal requirements.40 Regardless of whether a license renewal application has been filed for a facility, the Commission has a continuing responsibility to oversee the safety and security of ongoing plant operations. It routinely oversees a broad range of operating issues under its statutory responsibility to assure the protection of public health and safety for operations under existing operating licenses. Therefore, for license renewal, the Commission has found it unnecessary to 39 10 C.F.R. § 2.309(f)(1)(iii); Millstone, CLI-05-24, 62 NRC at 567.

40 See Turkey Point, CLI-01-17, 54 NRC at 6; Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC__, __ (June 17, 2010) (slip op. at 4-8).

include a review of issues already monitored and reviewed in the ongoing regulatory oversight processes.41 Thus, the Commission has clearly indicated that its license renewal safety review focuses on plant systems, structures, and components for which current [regulatory] activities and requirements may not be sufficient to manage the effects of aging in the period of extended operation.42 For example, the Commission has held that emergency planning issues are not within the scope of license renewal because [e]mergency planning is, by its very nature, neither germane to age-related degradation nor unique to the period of extended operation.43 Further, the Commission stated, [a]djudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review; for our hearing process (like our Staffs review) necessarily examines only the [safety] questions our safety rules make pertinent.44 With respect to the safety review, the Commission has provided significant guidance on the structures, systems, and components within the scope of license renewal, as well as the intended functions of those structures, systems, and components that require aging management review in CLI-10-14.45 Therein, the Commission stated, aging management review for license renewal does not focus on all aging-related issues, but rather, on structures and components that perform passive intended functions that are of principle importance to 41 Id. at 8-10.

42 Id. at 10 (quoting 60 Fed. Reg. at 22,469). See also Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Numbers NPF-76 and NPF-80 for an Additional 20-Year Period, STP Nuclear Operating Company, South Texas Project, Units 1 and 2, 76 Fed. Reg. 2426 (Jan. 31, 2011).

43 Millstone, CLI-05-24, 62 NRC at 560-61.

44 See Turkey Point, CLI-01-17, 54 NRC at 10.

45 See Pilgrim, CLI-10-14, 71 NRC __ (June 17, 2010).

safety.46 The Commission explained that 10 C.F.R § 54.4(a)(1)-(3) defines the general scope of license renewal safety review,47 and further stated that 10 C.F.R. § 54.29, which lists the standards for issuance of a renewed license, does not expand the scope of license renewal aging management review beyond the intended functions outlined in § 54.4.48 In addition to its safety review, the NRC performs an environmental review pursuant to 10 C.F.R. Part 51 to assess the potential environmental impacts of twenty additional years of operation.49 Contentions raising environmental issues in a license renewal proceeding are similarly limited to those issues which are affected by license renewal and have not been addressed by rulemaking or on a generic basis.50 In 10 C.F.R. Part 51, the Commission divided the environmental requirements for license renewal into generic and plant-specific components.51 The Generic Environmental Impact Statement (GEIS)52 contains Category 1 issues for which the NRC has reached generic conclusions.53 Category 1 issues are not subject to site-specific review and thus fall beyond the scope of individual license renewal proceedings. Id. at 12;54 see 10 C.F.R. § 51.53(c)(3)(i)-(ii). Applicants for license renewal do 46 Id. (slip op. at 5).

47 Id. (slip op. at 7).

48 Id. (slip op. at 17 n.71).

49 Turkey Point, CLI-01-17, 54 NRC at 6-7.

50 Turkey Point, CLI-01-17, 54 NRC at 11-12.

51 Id. at 11.

52 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report, (May 1996) (ADAMS Accession No. ML040690705) (GEIS).

53 Id.

54 In Turkey Point, the Commission recognized that even generic findings sometimes need revisiting in particular contexts. . . . In the hearing process, for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule." Turkey Point, CLI-01-17, 54 NRC at 12.

not need to analyze Category 1 issues in their Environmental Reports, but instead may reference and adopt the generic findings.55 Applicants, however, must provide a plant-specific review of the non-generic Category 2 issues.56 B. Contention 1 SEED Coalition states in Contention 1:

The Applicants License Renewal Application and Environmental Report fail to adequately address the Applicants capacity to deal with fires and explosions that cause a loss of large areas (LOLA) of the plant. This requirement for mitigative strategies related to LOLA events is specified at 10 C.F.R. 50.54(hh)(2) and the basis for the contention is derived from the regulatory requirements of 10 C.F.R. § 52.80(d).

Petition at 4.

SEED Coalition argues that neither the Applicants Final Safety Analysis Report (FSAR) nor its Environmental Report (ER) adequately describe the mitigation strategies required by 10 C.F.R. § 50.54(hh)(2) to maintain or restore core cooling, containment, and spent fuel cooling capabilities under the circumstances associated with loss of large areas

[LOLA] of the plant due to explosions or fire. Id. SEED Coalition states that Applicants mitigative strategies to address LOLA events are inadequate to address the consequences of events such as the impacts of large commercial aircraft into the Applicants power plants and related facilities. Id.

Contention 1 is inadmissible because it raises issues that are outside the scope of the license renewal proceeding. SEED Coalition also does not raise a genuine dispute with the Application and fails to provide an adequate basis or allege facts or expert opinion to support its assertions in Contention 1, as required under 10 C.F.R. § 2.309(f)(1)(ii), (iii), (v) and (vi).

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

56 Id.

1. Contention 1 Raises Issues that are Outside the Scope of License Renewal SEED Coalition argues that the basis for Contention 1 is derived from the regulatory requirements of 10 C.F.R. § 52.80(d).57 Beyond this statement, SEED Coalition does not provide any explanation for its argument. Section 52.80(d) requires combined license applicants to include in their application a description and plan[ ] for implementation of the guidance and strategies intended to maintain or restore core cooling, containment, and spent fuel pool cooling capabilities under the circumstances associated with the loss of large areas of the plant due to explosions or fire as required by § 50.54(hh)(2).58 As this regulation applies to combined license applicants,59 and not applicants for license renewal, § 52.80(d) is not applicable here and references requirements outside the scope of the license renewal proceeding. 10 C.F.R. § 2.309(f)(1)(iii). Furthermore, as SEED Coalition cites § 52.80(d) as the basis for Contention 1, a regulation outside the scope of and inapplicable to the present license renewal proceeding, SEED has not provided an adequate basis to support Contention 1, in contravention of 10 C.F.R. § 2.309(f)(1)(ii).

SEED Coalition also argues that the Applicant fails to adequately address the requirements in 10 C.F.R. § 50.54(hh)(2) relating to LOLA events. Section 50.54(hh)(2) requires licensees to develop and implement strategies and guidance to mitigate the effects associated with a LOLA in the event of fire or explosions through the use of readily available resources and by identifying potential practicable areas for the use of beyond-readily-available 57 Petition at 4.

58 74 Fed. Reg. at 13,958.

59 See 10 C.F.R. § 52.71 (stating that the scope of the subpart containing section 52.80 sets out the requirements and procedures applicable to Commission issuance of combined licenses for nuclear power facilities).

resources.60 This regulation contemplates fires or explosions caused by a number of beyond design-basis events, including but not limited to aircraft impacts.61 Licensees comply with 10 C.F.R. § 50.54(hh)(2) by implementing strategies that fall under the following general areas: (i) firefighting; (ii) operations to mitigate fuel damage; and (iii) actions to minimize radiological release. 10 C.F.R. § 50.54(hh)(2)(i)-(iii). Implementation of these strategies is a condition of licensing, and [c]urrent reactor licensees have already developed and implemented procedures that comply with the § 50.54(hh)(2) requirements.62 The Commission considers the implementation of mitigation strategies under § 50.54(hh)(2) to be operational actions,63 subject to ongoing NRC oversight programs, and therefore, subject to ongoing regulatory review. Operational matters are not appropriate issues for contentions in license renewal proceedings. STPs mitigative strategies do not constitute passive structures, systems or components that are properly before a licensing board in a license renewal proceeding. Rather, mitigative strategies implemented under 10 C.F.R. § 50.54(hh)(2) are conceptual issues . . . outside the bounds of the passive, safety-related physical systems, structures and components that form the scope of [the Commissions] license renewal review.64 If SEED believes that the applicant is currently not in compliance with the requirements of 10 C.F.R. § 50.54(hh)(2), then SEED may file a petition to initiate enforcement proceedings under 10 C.F.R. § 2.206.

60 Power Reactor Security Requirements, 74 Fed. Reg. 13,926, 13,957 (Mar. 27, 2009).

61 Id.

62 Id.

63 74 Fed. Reg. at 13,957.

64 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC __ (Sep. 30, 2010) (slip op. at 11) (citing Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC __ (June 17, 2010) (slip op. at 5)).

2. Contention 1 Does Not Raise a Genuine Dispute with STPs Application Even assuming, arguendo, that STPs mitigative strategies for dealing with LOLAs in the event of fires or explosions was within the scope of the license renewal proceeding, Contention 1 is still inadmissible for failing to raise a genuine dispute with the Application on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(vi).

Under 10 C.F.R. § 2.309(f)(1)(vi), a contention is inadmissible where it fails to contain sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact and does not include references to the specific portions of the application that petitioners may dispute.65 Additionally, if an application contains disputed information or omits required information, the petitioner must specify the portions of the application that are in dispute or are incomplete.66 In its Petition, SEED Coalition briefly references STPs FSAR Supplement, Appendix A, Section 1.12, which deals with Fire Protection.67 However, SEED does not explain the specific deficiency, inadequacy or omission related to STPs Fire Protection Program, nor does SEED challenge the conclusions as outlined in the FSAR. 68 In all other portions of Contention 1, SEED makes only vague references to STPs License Renewal Application, Environmental Report and FSAR,69 without specifically identifying which particular sections of these documents SEED Coalition wishes to challenge. Because Contention 1 lacks the specificity required by 10 C.F.R. § 2.309(f)(1)(vi), Contention 1 is inadmissible.

65 Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-04-28, 60 NRC 548, 576 (2004).

66 Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-05-15, 61 NRC 365, 381 (2005).

67 Petition at 4.

68 Id.

69 See Petition at 4.

Beyond failing to identify and challenge a specific portion of STPs Application, SEED tangentially posits an argument that does not raise a genuine dispute with the Application.

SEED Coalition contends that STPs mitigative strategies are inadequate because these strategies do not adequately address the consequences of events such as the impacts of large commercial aircraft into the Applicants power plants and related facilities.70 Again, SEED Coalition does not explain this statement. To the extent that SEED may be alleging that the Applicant fails to address the requirements of 10 C.F.R. § 50.54(hh)(2) in its Application, this is an operational matter that, like § 50.54(hh)(2), is outside the scope of the license renewal review.71 Similarly, to the extent that SEED argues that STPs ER is deficient because it inadequately addresses aircraft impacts in the environmental context, the contention is inadmissible because recent Commission and Third Circuit Court of Appeals opinions have held that NEPA does not require NRC to consider the impacts of terrorist attacks in its environmental review.72 And, the Commission has previously held that the Staff will only conduct environmental analyses of terrorist attacks for facilities located within the Ninth Circuit. 73 STP Units 1 and 2 are located in the Fifth Circuit; therefore, no analyses are required.

3. SEED Coalition Does Not Provide or Allege Facts or Expert Opinion to Support Contention 1 Contention 1 contains no alleged facts or expert opinions to support the assertion that STP does not adequately address its ability to deal with LOLA in the event of fires or explosions.

70 Id.

71 74 Fed. Reg. at 13,932.

72 New Jersey Department of Environmental Protection v. NRC, 561 F.3d 132, 144 (2009);

AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 128, 131-32 (2007).

73 Pilgrim, CLI-10-14, 71 NRC __, (slip op. at 37-38).

Instead, SEED Coalition merely states that the assertions made in Contention 1 are [b]ased on information and belief. As this is more akin to notice pleading, Contention 1 is inadmissible because it does not satisfy 10 C.F.R. § 2.309(f)(1)(v).74 The Commission does not permit notice pleading in hearings before the Licensing Board.75 SEED Coalitions lack of alleged facts or expert opinion, and its statement that Contention 1 is [b]ased on information and belief without full disclosure to the Applicant, the NRC Staff, or the Licensing Board runs afoul of the Commissions intention to focus the hearing process and to put other parties to the proceeding on notice of the Petitioners specific grievances and thus give[ ] them a good idea of the claims they will be either supporting or opposing.76 For the reasons stated above, Contention 1 is inadmissible because it raises issues that are outside the scope of the license renewal proceeding, does not raise a genuine dispute with the Application, and fails to allege facts or expert opinion to support its assertions in Contention

1. See 10 C.F.R. § 2.309(f)(1)(ii), (iii), (v) and (vi).

C. Contentions 2 and 3 Contention 2 states, The Applicants License Renewal Application is deficient because it does not describe the means that it will use to determine radiation exposures to LOLA responders.

Petition at 4.

Contention 3 states, 74 See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421 (2008); Oconee, CLI-99-11, 49 NRC at 334, 338); Northeast Nuclear Energy Co. (Millstone Nuclear Power Stations, Units 2 & 3), LBP-01-10, 53 NRC 273 (2001).

75 See Petition at 4.

76 PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 303-304 (2007).

The Applicants License Renewal Application is deficient because it does not describe the means that it will use to protect LOLA responders from excessive radiation exposures.

Id. at 5.

Contentions 2 and 3 each rely upon the same regulatory provisions and the same sections of the Applicants Environmental Report (ER), and they each raise the same arguments concerning the purported omission of information regarding radiation exposures to LOLA responders. Compare Contention 2, id. at 4-5, with Contention 3, id. at 5. Thus, Contentions 2 and 3 are treated together in this Response for the sake of brevity. As described below, SEED has not met its burden under 10 C.F.R. § 2.309(f)(1) to demonstrate that the issues presented by Contentions 2 and 3 are within the scope of this license renewal proceeding, are supported by an adequate factual or legal basis, and raise a genuine dispute on a material issue of law or fact with the Application. Accordingly, Contentions 2 and 3 are inadmissible pursuant to 10 C.F.R. § 2.309(f)(1)(iii), (v), and (vi).

1. Contentions 2 and 3 Raise Issues That Are Outside the Scope of This Proceeding Contentions 2 and 3 do not present issues that are appropriate for consideration in the current proceeding. Pursuant to 10 C.F.R. § 2.309(f)(1)(iii), SEED bears the burden of demonstrating that the issues raised in Contentions 2 and 3 are within the scope of a license renewal proceeding. As noted above, 10 C.F.R. Parts 51 and 54 govern the NRCs review of license renewal applications.77 As the basis for its assertions that Contentions 2 and 3 are within scope, SEED references sections 4.21.9, 4.21.10, and 4.21.10.1 of the Applicants ER.

Petition at 5. However, SEEDs mere references to these sections of the ER, without any 77 See Turkey Point, CLI-01-17, 54 NRC at 6-7; see also Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2, Catawba Nuclear Station, Units 1 & 2), CLI-02-26, 56 NRC 358, 363-65 (2002);

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-00-23, 52 NRC 327, 329 (2000).

explanation as to how they relate to an unmet legal obligation under Part 51 or Part 54, do not demonstrate that the contention falls within the scope of the present license renewal action.

Contentions 2 and 3 raise claims related to the radiological impacts of severe accidents.

From an environmental standpoint, 10 C.F.R. Part 51 codifies the impacts from severe accidents, including atmospheric releases of radiation, as a Category 1 issue with a small impact.78 In Pilgrim the Commission noted that, because the GEIS provides a severe accident impacts analysis that envelopes the potential impacts at all existing plants, the environmental impacts of severe accidents during the license renewal term already have been addressed generically in bounding fashion. Therefore, as a Category 1 issue, the radiological impacts of severe accidents fall beyond the scope of individual license renewal proceedings.79 It is not clear whether SEED intended to assert Contention 2 as a challenge to STPs ER because the Petition states that the support for its contentions arises out of regulatory requirements set forth in 10 C.F.R. § 52.80(d) and 10 C.F.R. § 50.54(hh)(2). Petition at 4, 5.

Read literally, Contentions 2 and 3 appear only to allege deficiencies with the STPs LRA, although they do not contain a specific reference to that document. Id. Nevertheless, even construing SEEDs contentions as safety-related challenges to the adequacy of the LRA, rather than to the ER, SEED still has not demonstrated that Contentions 2 and 3 fall within the scope of a license renewal proceeding.

Neither §52.80(d), nor § 50.54(hh)(2), imposes legal obligations on applicants for renewed operating licenses. As the Commission has stated, [l]icense renewal reviews are not intended to duplicate the Commissions ongoing review of operating reactors.80 To that end, 78 See 10 C.F.R. Part 51, subpart A, Appendix B, Table B-1.

79 Turkey Point, CLI-01-17, 54 NRC at 16 (emphasis added); 10 C.F.R. § 51.53(c)(3)(i).

80 Turkey Point, CLI-01-17, 54 NRC at 7 (quoting 60 Fed. Reg. at 22,479). Additionally, to the extent that challenges to Commission regulations are inadmissible absent a request for and the granting

a license renewal review is narrow in scope, confined to aging analyses of the plants structures, systems and components.81 The concerns raised by SEED here appear to involve STPs compliance with a condition of its operating license - the requirement to implement strategies directed toward managing fires, fuel damage, and radiological releases associated with beyond-design-basis accidents. See Petition at 5 (citing 10 C.F.R. § 50.54(hh)(2)). If SEED believes that STP has not complied with its operating license, the Commissions Rules of Practice under 10 C.F.R. § 2.206 allow for the filing of a petition to institute a proceeding to modify, suspend or revoke STPs operating license. However, because the current Petition does not indicate how either the ER or the LRA does not meet the applicable regulatory requirements of Part 51 or Part 54, SEED has not demonstrated that the issues raised in Contentions 2 and 3 are within the scope of this license renewal proceeding, as required by 10 C.F.R. § 2.309(f)(1)(iii).

2. Contentions 2 and 3 Lack an Adequate Factual Basis Contentions 2 and 3 do not allege facts or expert opinion in support of a genuine, material dispute with the application. 10 C.F.R. § 2.309(f)(1)(v) is clear as to the information required to support an admissible contention. SEED must provide a concise statement of the alleged facts or expert opinions that support its position and on which it intends to rely at hearing, as well as references to the specific sources and documents on which it intends to rely for support.

In an attempt to address these requirements for Contentions 2 and 3, SEED states that,

[b]ased on information and belief, the Applicants mitigative strategies for addressing LOLA of a waiver, no request for waiver has been made by SEED Coalition.

81 McGuire/Catawba, CLI-02-26, 56 NRC at 363; see also Pilgrim, CLI-10-14, 71 NRC __ (slip op.

at 15-16) (stating that license renewal reviews are concerned with age-related issues, not with issues that are monitored and reviewed in the course of ongoing regulatory oversight processes).

events are inadequate to determine radiation exposures for responders to LOLA events.

Petition at 5. However, it is well established that the requirements of 10 C.F.R. § 2.309(f)(1)(v) cannot be met with mere notice pleading - [g]eneral assertions or conclusions will not suffice.82 A contention that is based upon only information and belief, without facts or information showing how the Application is inadequate, is inadmissible as a matter of law. 83 SEED has not provided any references to facts or expert opinion purporting to support their belief that the Application is deficient. Nor has it pointed to any regulatory requirement for license renewal applications that the LRA fails to meet, or to any specific information or expert opinions supporting its claims that the LRA must contain the information identified in 10 C.F.R.

§§ 52.80(d) or 50.54(hh)(2). See generally Petition at 4-5. Therefore, Contentions 2 and 3 are not admissible under 10 C.F.R. § 2.309(f)(1)(v).

3. Contentions 2 and 3 Do Not Present a Genuine Dispute on a Material Issue of Fact or Law SEED has also not shown that Contentions 2 and 3 present a genuine, material dispute with the Applicants LRA or ER. When challenging the adequacy of an analysis in an ER or LRA, a petitioner must include references to specific portions of the application . . . that the petitioner disputes and the supporting reasons for each dispute. 10 C.F.R. § 2.309(f)(1)(vi).

When asserting that an application omits information that is required by law, a petitioner must

[identify] each failure and the supporting reasons for the petitioners belief. Id.

In Contentions 2 and 3, SEED refers to sections 4.21.9, 4.21.10, and 4.21.10.1 of the ER, but it does not dispute the analyses contained in these sections. See Petition at 5. Nor 82 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 414 (2007)

(quoting Port Auth. of the State of N.Y. (James A. FitzPatrick Nuclear Power Plant), CLI-00-22, 52 NRC 266, 295 (2000)).

83 See Georgia Tech, LBP-95-6, 41 NRC at 305; see also Southern Nuclear Operating Co.

(Vogtle ESP), LBP-07-03, 65 NRC 237, 253 (2007).

does SEED suggest how these sections of the ER relate to its assertions. See generally id. at 4-5. Contentions 2 and 3 contend that STP is required by law to explain in its license renewal application how it intends to determine radiation exposures to individuals responding to LOLA events and how it will mitigate the consequences of excessive radiation exposures. See Petition at 4-5. SEED explains in Contention 1 that, LOLA events are events, such as aircraft strikes, that involve fires and explosions that cause a loss of large areas . . . of the plant. Id. at

4. These scenarios, however, do not appear to bear any relation to the sections of the ER cited by SEED - sections 4.21.9, 4.21.10, and 4.21.10.1.

Those sections, titled Postulated Accidents, Radiological Health Impacts, and Occupational Doses, respectively, contain STPs assessment of cumulative impacts resulting from the proposed renewal of the operating licenses for STP Units 1 and 2. See ER at 4.0; 4.21.9 - 4.21.10.1. Two of the sections contain analyses applicable only to impacts associated with normal operating conditions. See ER at 4.21.10, 4.21.10.1. The remaining section contains an analysis of the cumulative dose-risk from postulated severe accidents at Units 1 and 2. See ER at 4.21.9. This analysis, however, is not directly relevant to SEEDs concerns, because the issues raised in Contentions 2 and 3 - determining and mitigating radiation exposures to individuals - appear to call for analyses responding to actual radiation doses, rather than overall dose-risk. Nevertheless, even if this section were relevant, SEED has not provided any evidence to suggest that its claims would challenge the ERs conclusion that cumulative dose-risk impacts would be small. See id. As a result, SEED has not shown that Contentions 2 and 3 raise a genuine dispute with the Application.

Finally, SEED has not demonstrated that any dispute with the Application is a genuine, material one, because it has not provided information to show that the Application omits information that is required by law. The scope of license renewal is narrow and is governed by

the Commissions regulations at 10 C.F.R. Parts 51 and 54.84 SEEDs claims are grounded in 10 C.F.R. §§ 50.54(hh)(2) and 52.80(d), which do not govern the Staffs review of license renewal applications. See Petition at 4-5. As SEED has not shown that this information is required to be included by law, it has likewise not demonstrated that the issues raised in Contentions 2 and 3 are material to the findings the NRC must make to support a relicensing action, as required under 10 C.F.R. § 2.309(f)(1)(iv).

Consequently, as SEED has not met its burden under 10 C.F.R. § 2.309(f)(1) to demonstrate that Contentions 2 and 3 are within the scope of a license renewal proceeding, to provide some alleged facts or expert opinions in support of their claims, and to provide sufficient information to show the existence of a genuine, material dispute with the Application, these contentions should be dismissed.

D. Contention 4 Contention 4 states, The Applicants License Renewal Application is deficient because it does not determine the projected decline in demand for electricity attributable to adoption of [an] energy efficient building code in Texas.

Petition at 6.

Contention 4 alleges that an already-enacted building code in Texas will produce enough reduction in power demand to render renewal of STP Units 1 and 2 unnecessary. As a result, Contention 4 challenges the need for power from STP Units 1 and 2 and is therefore outside the scope of license renewal. Moreover, to the extent that Contention 4 could be viewed as an alternatives contention, Contention 4 does not raise a material dispute with the Application because it does not challenge the ERs conclusion that additional, un-enacted 84 See, e.g., Turkey Point, CLI-01-17, 54 NRC at 6-7; McGuire/Catawba, CLI-02-26, 56 NRC at 363-65; Turkey Point, CLI-00-23, 52 NRC at 329.

demand side management measures would be unlikely to produce sufficient energy savings to replace the power from STP Units 1 and 2. Finally, Contention 4 does not contain any factual support. Therefore, Contention 4 is inadmissible pursuant to 10 C.F.R. § 2.309(f)(1)(iii), (v), and (vi).

1. Contention 4 Requests a Need for Power Analysis and Is Therefore Outside the Scope of License Renewal Contention 4 asserts that the ER is deficient because it does not determine the projected decline in demand for electricity attributable to adoption of [an] energy efficient building code in Texas. Petition at 6. This claim is outside the scope of a license renewal proceeding pursuant to 10 C.F.R. § 51.53(c)(2), which states that the ER is not required to include discussion of need for power or the economic costs and economic benefits of the proposed action. See also 10 C.F.R. § 51.95(c)(2) (the SEIS is also not required to discuss need for power). The Commission has stated that the NRC will neither perform analyses of the need for power nor draw any conclusions about the need for generating capacity in a license renewal review.85 The NRC excluded an analysis of the need for power from the scope of license renewal because the issues of need for power and utility economics should be reserved for State and utility officials to decide.86 The Commission explained that apart from its normal safety and environmental reviews, the NRC has no role in the energy planning decisions of State regulators and utility officials.87 SEED cites 10 C.F.R. § 51.53(c)(2), which contains a limited exception to the Commissions exclusion of need for power from license renewal proceedings, requiring an 85 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg.

28,467, 28,472 (1996).

86 GEIS § 1.7.1.

87 61 Fed. Reg. at 28,472.

analysis of need for power when necessary for a determination regarding the inclusion of an alternative in the range of alternatives considered. Petition at 6 (citing 10 C.F.R. § 51.53(c)(2)).

SEED contends that the costs and benefits of the energy efficient building code are essential to determine whether the adoption of an energy efficient building code should be included as an alternative under 10 C.F.R. § 51.53(b)(2). Id. Consequently, SEED asserts, the alternatives discussion of demand side management in the ER is deficient because it does not discuss adoption of the energy efficient building code. Id.

But, in 2010, Texas adopted an energy efficient building code.88 As a result, adoption of an energy efficient building code is no longer an alternative means of meeting the stated goals of the proposed action. It is a reality of the Texas energy marketplace. Contention 4, therefore, does not allege that adopting an energy efficient building code sometime in the future could result in sufficient energy savings to offset the loss of energy from STP Units 1 and 2. Rather, Contention 4 claims that the energy savings that will accrue from the adopted energy efficient building code will render the energy STP Units 1 and 2 would produce superfluous. Thus, Contention 4 questions whether there is a need for the power STP Units 1 and 2 would produce during the period of extended operation. Such an inquiry is plainly outside the scope of license renewal. See 10 C.F.R. §§ 51.53(c)(2), 51.95(c)(2).

Almost from the enactment of NEPA, courts have held that NEPAs alternatives requirement ensures that the action agency takes into proper account all possible approaches to a particular project.89 The alternatives analysis should accompany the proposed action 88 35 Tex. Reg. 4727, 4728 (June 4, 2010) (adopting Final Rule, 34 Tex. Admin. Code § 19.53).

The enacted Texas energy efficient building code adopts the International Energy Conservation Code as it existed on May 1, 2009, . . . as the energy code for use in this state for all residential, commercial, and industrial construction. 35 Tex. Reg. at 4729.

89 Calvert Cliffs Coordinating Committee, Inc. v. Atomic Energy Commission, 449 F.2d 1109, 1114 (D.C. Cir. 1971) (emphasis added).

through the agency review process in order not to foreclose prematurely options which might have less detrimental effects.90 Thus, NEPAs directive to consider alternatives to the proposed action, 42 U.S.C. 4332(C)(iii), contemplates other, as yet unaccomplished, methods of meeting the purpose and need of the project. NEPA alternatives should not include completed projects. Otherwise, the alternatives analysis would serve no purpose because agency action could not foreclose prematurely projects that have already been completed. In other words, consideration of an existing means of meeting the purpose and need of the project, such as the energy efficient building code, is not an alternative to the project under NEPA.

Instead of constituting an alternate approach to the project,91 Contention 4 questions the very need for the project in the first place.

As discussed above, SEEDs contention that the alternatives analysis should consider the energy savings of approximately 2362 MW by 2023 from an enacted energy efficient building code threatens to eviscerate the logic behind NEPAs alternatives analysis. Plainly, such an inquiry would amount to a need for power analysis, which the Commissions regulations indicate is outside the scope of license renewal. See 10 C.F.R. §§ 51.53(c)(2), 51.95(c)(2).

Consequently, Contention 4 is inadmissible pursuant to 10 C.F.R. § 2.309(f)(1)(iii).

2. Contention 4 Does Not Raise a Material Dispute with the Application Contention 4 asserts that the ER discusses demand side management as an alternative to relicensing but fails to specify the estimated diminished demand anticipated from adoption of the energy efficient building code. Petition at 6. But, the ER specifically states that CPS Energy and Austin Energy have aggressive [Demand Side Management (DSM)] programs that include . . . the adoption of updated energy codes for new building construction. ER § 90 Id. at 1118 n.19 (citing Statements on Proposed Federal Actions Affecting the Environment, 36 Fed. Reg. 7,724, 7,725 (Apr. 23, 1971)).

91 Id. at 1114.

7.2.1.4. The ER discusses a wide variety of other DSM measures currently in place and concludes that it would be highly unlikely that energy savings from demand reductions could be increased by an additional 2,560 MWe by 2026 to replace the STP Units 1 & 2 baseload capacity. Id.

As discussed above, Texas passed an energy efficient building code in 2010.92 SEED claims that adoption of this code will result in energy savings of approximately 2362 MW by 2023. Petition at 6. Therefore, SEEDs claim actually supports the Applicants assertion that the current portfolio of existing DSM measures results in substantial energy conservation.

SEEDs claim does not challenge the Applicants conclusion that, in light of the current DSM measures in place, additional DSM measures would be unlikely to result in sufficient energy savings to constitute a viable alternative to relicensing. As a result, Contention 4 is inadmissible because it does not show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. 10 C.F.R. § 2.309(f)(1)(vi).

3. Contention 4 Lacks an Adequate Factual Basis To support Contention 4, SEED states, On information and belief, petitioners allege that the energy efficient building code will result in energy savings of approximately 2362 MW by 2023. Petition at 6. As discussed above, while such a statement may satisfy the Federal courts standards for notice pleading, it cannot meet the Commissions heightened pleading requirements in 10 C.F.R. § 2.309(f)(1)(v). That regulation requires an admissible contention to contain references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue.

92 35 Tex. Reg. 4727, 4728 (June 4, 2010) (adopting Final Rule, 34 Tex. Admin. Code § 19.53).

[A] petitioners issue will be ruled inadmissible if the petitioner has offered no tangible information, no experts, [or] no substantive affidavits.93 Because SEED has not provided any tangible information or expert affidavit to support Contention 4, it rests on precisely the type of bare assertion and speculation that the Commission has previously found insufficient to satisfy its pleading standards. Thus, Contention 4 lacks an adequate basis under 10 C.F.R. § 2.309(f)(1)(v).

For the reasons discussed above, Contention 4 is inadmissible because a need for power analysis is not within the scope of license renewal, does not raise a material dispute with the application, and lacks an adequate factual basis. 10 C.F.R. § 2.309(f)(1)(iii), (v), (vi).

93 Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003) (quoting GPU Nuclear (Oyster Creek Nuclear Generating Station), CLI-00-5, 51 NRC 193, 207 (2000)).

CONCLUSION To be admitted as a party to an NRC proceeding, a petitioner must demonstrate standing and proffer at least one admissible contention. See 10 C.F.R. § 2.309(a). SEED has not demonstrated representational standing because its member, Ms. Susan Dancer, has not provided all of the information required by the Commissions regulations to establish standing.

See 10 C.F.R. § 2.309(d). Ms. Dancer requested that SEED represent her as a member of SEED rather than participate in these proceedings in an individual capacity. Also, SEED has not submitted an admissible contention. All four of SEEDs proposed contentions are outside the scope of license renewal proceedings, do not raise a genuine and material dispute with the application, and lack an adequate factual basis. See 10 C.F.R. § 2.309(f)(1)(ii),(iii), (v), (vi).

Respectfully submitted, Signed (electronically) by Andrea Z. Jones Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-2246 E-mail: andrea.jones@nrc.gov Date of signature: April 7, 2011

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

STP NUCLEAR OPERATING COMPANY ) Docket No. 50-498-LR and 50-499-LR

)

(South Texas Project Electric Generating ) ASLBP No. 11-909-02-LR-BD01 Station Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFF ANSWER TO PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING OF SEED COALITION AND SUSAN DANCER have been served on the following by Electronic Information Exchange this 7th day of April, 2011.

Administrative Judge Administrative Judge Ronald M. Spritzer, Chair Nicholas Trikouros Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: Ronald.Spritzer@nrc.gov E-mail: Nicholas.Trikouros@nrc.gov Administrative Judge Office of Commission Appellate Larry R. Foulke Adjudication Atomic Safety and Licensing Board Panel Mail Stop: O-16G4 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.gov E-mail: Larry.Foulke@nrc.gov Atomic Safety and Licensing Board Office of the Secretary Mail Stop: T-3F23 Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission (Via Internal Mail Only) Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov

Jonathan C. Eser, Law Clerk Steven P. Frantz, Esq.

Atomic Safety and Licensing Board Stephen J. Burdick, Esq.

Mail Stop: T-3F23 Kathryn M. Sutton, Esq.

U.S. Nuclear Regulatory Commission Mary Freeze, Assistant Washington, DC 20555-0001 Morgan, Lewis & Bockius, LLP E-mail: jonathan.eser@nrc.gov 1111 Pennsylvania Ave., NW Washington, DC 20004 Counsel for the Applicant E-mail: sfrantz@morganlewis.com; sburdick@morganlewis.com ksutton@morganlewis.com mfreeze@morganlewis.com Karen Hadden Sustainable Energy and Economic Development (SEED) Coalition 1303 San Antonio, #100 Austin, Texas 78701 E-mail: karen@seedcoalition.org

/Signed (electronically) by/

Andrea Z. Jones Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O-15-D21 Washington, D.C. 20555-0001 Phone: (301) 415-2246 E-mail: Andrea.Jones@nrc.gov Date of signature: April 7, 2011

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