ML11355A174

NRC Staff'S Answer to Natural Resource Defense Council Petition to Intervene and Notice of Intention to Participate

ML11355A174
Person / Time
Site:	Limerick
Issue date:	12/21/2011
From:	Catherine Kanatas, Matthew Smith Atomic Safety and Licensing Board Panel
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 21592, 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01
Download: ML11355A174 (59)

Text

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

)

EXELON GENERATION COMPANY, LLC ) 50-352-LR/ 50-353-LR

)

(Limerick Generating Station, Units 1 and 2) )

)

NRC STAFFS ANSWER TO NATURAL RESOURCE DEFENSE COUNCIL PETITION TO INTERVENE AND NOTICE OF INTENTION TO PARTICIPATE Maxwell C. Smith Catherine E. Kanatas Counsel for NRC Staff December 21, 2011

TABLE OF CONTENTS PAGE INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 DISCUSSION ................................................................................................................................ 3 I. NRDC Has Established Standing to Intervene .................................................................. 3 II. Contention Admissibility .................................................................................................... 4 A. Legal Requirements for Contentions ..................................................................... 4

1. General Admissibility Requirements .......................................................... 4

2. The Scope of the NRCs Environmental Review for License Renewal Proceedings ................................................................................ 5

3. The NRCs Consideration of the Environmental Impacts of Severe Accidents in License Renewal Proceedings.................................. 7 B. NRDC Contentions 1-E, 2-E, and 3-E Impermissibly Challenge the Commissions Findings Regarding SAMAs and are Therefore Outside The Scope of the Proceeding .............................................................................. 13

1. Contention 1-E ......................................................................................... 14

2. Contention 2-E ......................................................................................... 18

3. Contention 3-E ......................................................................................... 20 C. Contentions 1-E and 2-E Do Not Raise a Material Dispute with the Application ........................................................................................................... 21

1. Contentions 1-E and 2-E Do Not Raise a Material Dispute with the ER Because Those Contentions Challenge the 1989 Limerick SAMDA Analysis But the ER Relies on 10 C.F.R. § 51.53(c)(3)(ii)(L) ..... 21

2. NRDC Has Not Shown that the Commissions Determination that the Applicant Need Not Conduct a SAMA Analysis for Limerick at License Renewal Was Only Based on the 1989 Limerick SAMDA Analysis...................................................................................... 23

3. The Commission Reasonably Found that NEPA Does Not Require Another SAMA Analysis at License Renewal if the NRC Already Performed an Equivalent Analysis for that Facility .................................. 23

-ii-

a. The Commissions Conclusions in 10 C.F.R. § 51.53(c)(3)(ii)(L)

Rest on an Extensive Series of Ways to Mitigate the Impacts of Severe Accidents ..................................................................... 24

b. The 1989 Limerick SAMDA Analysis Relied on Numerous Other Studies ............................................................................... 27

c. The Commission Understood That Its Study of Severe Accident Mitigation for License Renewal Must Comport with NEPA .......... 29 D. Contention 3-E Lacks an Adequate Factual Basis .............................................. 31 E. The Board Should Not Waive the Commissions Regulations to Permit NRDCs Challenge to 10 C.F.R. § 51.53(c)(3)(ii)(L) ............................................ 34

1. NRDC Has Not Filed a Waiver Petition ................................................... 34

2. The Petition Does Not Contain Sufficient Information to Justify Waiving a Rule of General Applicability under the Commissions Millstone Standard ................................................................................... 35 F. Contention 4-E Does Not Raise a Material Dispute with the Application and Contains Challenges to the Commissions Regulations ............................... 40

1. Contention 4-E Does Not Raise a Material Dispute with the Application ............................................................................................... 40

a. Legal Standards for Consideration of the No-Action Alternative for License Renewal .................................................................... 42

b. NRDC Does Not Establish a Material Dispute with the Applicant ...................................................................................... 45

c. The NRDC Does Not Show That the ER Inappropriately Considers Generating Capacity in the Alternatives Analysis ....... 46

d. NRDC Fails to Provide Basis or Support for its Claim that Further Analysis and Alternatives Must Be Included in the ER .... 48

e. NRDC Does Not Show the Applicant Inadequately Analyzed Demand Side Management ......................................................... 51

2. Severe Accident Analysis is Outside the Scope of the NEPA Review .... 53 CONCLUSION ............................................................................................................................ 54

December 21, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

EXELON GENERATION COMPANY, LLC ) 50-352-LR/ 50-353-LR

)

(Limerick Generating Station, Units 1 and 2) )

)

NRC STAFFS ANSWER TO NATURAL RESOURCES DEFENSE COUNCILS PETITION TO INTERVENE AND NOTICE OF INTENTION TO PARTICIPATE INTRODUCTION Pursuant to 10 C.F.R. § 2.309(h)(1), the staff of the Nuclear Regulatory Commission

("NRC Staff" or Staff) files its answer to the Natural Resources Defense Councils (NRDC)

Petition to Intervene and Notice of Intention to Participate (Petition).1 The Petition contains four contentions that challenge Exelon Generation Companys (Exelon or Applicant) license renewal application (LRA) for Limerick Generating Station, Units 1 and 2 (Limerick or LGS).

As discussed below, NRDC has established standing to intervene in this proceeding. But, because none of the four contentions are admissible, the Atomic Safety and Licensing Board (

Board) should deny NRDCs Petition. The first three contentions bring impermissible challenges to the Commissions regulations. The fourth contention alleges that the LRA omits required information. However, the LRA actually contains that information or that information is not required. As a result, the fourth contention is not material and is not adequately supported.

1 Natural Resources Defense Council Petition to Intervene and Notice of Intention to Participate, (Nov. 22, 2011) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML11326A320) (Petition).

BACKGROUND On June 22, 2011, Exelon filed an application to renew its Limerick Units 1 and 2 operating licenses for an additional 20 years from their current expiration dates of October 26, 2024, and June 22, 2029, respectively.2 The Limerick site rests along the Schuylkill River on the border between Chester and Montgomery Counties in Pennsylvania, about 1.7 miles southeast of the Borough of Pottstown.3 Each Limerick Unit employs a single-cycle, forced circulation, General Electric boiling-water reactor.4 On August 24, 2011, the Staff published a notice in the Federal Register finding the LRA acceptable for docketing and establishing October 24, 2011, as the deadline for filing Hearing Requests on the LRA.5 On October 17, 2011, the Secretary to the Commission granted NRDCs request to extend that deadline until November 22, 2011, and provided the Staff and Applicant with an additional five days to file answers.6 On November 22, 2011, NRDC filed the instant Petition.7 2

Application for Renewed Operating Licenses (Jun. 22, 2011) (ADAMS Accession No. ML11179A096) (LRA Cover Letter); License Renewal Application, Limerick Generating Station, Units 1 and 2) (Jun. 22, 2011) (ADAMS Accession No. ML11179A101) (LRA); Applicants Environmental Report

- Operating License Renewal Stage, Limerick Generating Station, Units 1 and 2 (Jun. 22, 2011) (ADAMS Accession No. ML11179A104) (Environmental Report or ER).

3 ER at 2-3.

4 Id. at 3-3.

5 See Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. NPF-39 and NPF-85 for an Additional 20-Year Period, Exelon Generation Company, LLC, Limerick Generating Station, 76 Fed. Reg. 52,992 (Aug.

24, 2011).

6 Order at 2 (Oct. 17, 2011) (ADAMS Accession No. ML11290A233).

7 Petition at 1.

DISCUSSION I. NRDC Has Established Standing to Intervene Any person 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.8 10 C.F.R. § 2.309(a). An organization, such as NRDC, may establish representational standing to intervene if it identifies a member of the organization by name and address who would qualify for standing, shows that the member has authorized the organization to represent his or her interests, and demonstrates that the interest the organization seeks to protect is germane to its own purposes. Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 409 (2007). In license renewal proceedings, 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. Entergy Nuclear Operations, Inc.,

(Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 60 (2008). Several named members of NRDC have provided affidavits that establish that they live within 50 miles of Limerick, authorize NRDC to represent them in this proceeding, and raise concerns that are germane to NRDCs purposes. Petition at 4-11. Therefore, NRDC has established standing under 10 C.F.R. § 2.309(a).

8 The definition of person in 10 C.F.R. § 2.4 includes public interest groups, such as NRDC.

II. Contention Admissibility A. Legal Requirements for Contentions

1. General Admissibility Requirements 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 (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). The requirements governing the admissibility of contentions are strict by design. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2

& 3), CLI-01-24, 54 NRC 349, 358 (2001). Thus, they have been strictly applied in NRC adjudications, including license renewal proceedings. AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006).

2. The Scope of the NRCs Environmental Review for License Renewal Proceedings Because NRDCs contentions raise environmental claims, the NRC Staff will only discuss the scope of its environmental review in license renewal proceedings. In the National Environmental Policy Act of 1969 (NEPA), Congress announced a national policy to create and maintain conditions under which man and nature can exist in productive harmony.9 Thus, pursuant to Section 102 of NEPA, before undertaking a major Federal action, Federal agencies must prepare a detailed statement that discusses the environmental impacts of the proposed action.10 This statement furthers the policies of NEPA in two ways.11 First, It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.12 Second, [I]t also guarantees that the relevant information will be made available to the larger audience, and thus provides a 9

42 U.S.C. § 4331.

10 Id. at § 4332.

11 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

12 Id.

springboard for public comment.13 Importantly, NEPA only requires that agencies take a hard look at environmental consequences; NEPA does not mandate particular results.14 Part 51 of the Nuclear Regulatory Commissions (NRC) regulations contains the agencys implementation of NEPA.15 Under Part 51, the NRC must prepare an environmental impact statement (EIS) for license renewals.16 On many environmental issues related to license renewal, the Commission found that it could draw generic conclusions applicable to all existing nuclear power plants, or to a specific subgroup of plants.17 Consequently, the NRC prepared a generic environmental impact statement (GEIS) that assessed those impacts generically.18 Table B-1 of Appendix B of Subpart A to 10 C.F.R. Part 51 (Table B-1) codifies the results of the GEIS.

Table B-1 defines environmental issues that the NRC can resolve generically as Category 1 issues and defines issues that that the NRC could not resolve generically as Category 2 issues. The NRC must address these Category 2 issues in the site-specific supplemental environmental impact statement (SEIS) it prepares prior to granting a renewed operating license.19 For all Category 1 issues, Table B-1 also assigns an impact level of small, moderate, or large.

13 Id.

14 Id. (internal quotations omitted).

15 10 C.F.R. § 51.2.

16 10 C.F.R. § 51.20(b)(2).

17 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 11 (2001).

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

19 10 C.F.R. § 51.95(c).

To qualify as a Category 1 issue, an environmental issue must meet three criteria. First, the environmental impacts associated with that issue must apply to all plants or groups of plants. Second, those impacts must have a single significance level across all plants. Finally, additional plant-specific mitigation measures must not be likely to be sufficiently beneficial to warrant implementation.20 The NRCs regulations specifically provide that the NRC may incorporate the generic conclusions for Category 1 issues into its SEIS and applicants for license renewal need not discuss Category 1 issues in their applications.21 Thus, challenges to Category 1issues, like challenges to all of the Commissions regulations, are outside the scope of NRC adjudications. Consequently, a party seeking to litigate a Category 1 issue or challenging a determination in Table B-1 in a license renewal proceeding must seek a waiver of the Commissions regulations, pursuant to 10 C.F.R. § 2.335.22

3. The NRCs Consideration of the Environmental Impacts of Severe Accidents in License Renewal Proceedings As pertinent here, in the GEIS, the NRC reached a generic determination that the environmental impacts of severe accidents would be Anot significant,@ or Asmall.@ See GEIS at 5.3.3.1. The NRCs regulations implementing NEPA expressly incorporated this generic finding.

The probability weighted consequences of atmospheric releases, fallout onto open bodies of 20 The Attorney General of Commonwealth of Massachusetts, The Attorney General of California; Denial of Petitions for Rulemaking, 73 Fed. Reg. 46,204, 46,206 (Aug. 8, 2008). The NRC must further evaluate Category 1 issues, however, if it identifies new and significant information. 10 C.F.R. §§ 51.53(c)(3)(iv), 51.72(a)(2) and 51.92(a).

21 10 C.F.R. §§ 51.53(c)(3), 51.95(c). While NEPA ultimately places an obligation on the NRC to prepare an EIS to support a major Federal action, 42 U.S.C. § 4332, the NRC requires applicants to submit an ER to aid the NRC in conducting its environmental analysis. 10 C.F.R. § 51.41. Potential intervenors must file contentions based on the ER, and may amend those contentions if the NRCs draft SEIS (DSEIS) contains different information. 10 C.F.R. § 2.309(f)(2).

22 Turkey Point, CLI-01-17, 54 NRC at 12, 22-23.

water, releases to ground water, and societal and economic impacts from severe accidents are small for all plants. See Table B-1.

Additionally, the Commission made the generic determination, codified in Table B-1 and 10 C.F.R. § 51.53(c)(3)(ii)(L), that if the NRC had conducted a site-specific consideration of severe accident mitigation alternatives (SAMA) for a plant in a previous EIS or environmental assessment (EA), another SAMA need not be done for license renewal. GEIS at 5.4.1.5.23 The Staff performed a site-specific analysis of severe accident mitigation design alternatives (SAMDA) in a NEPA document for Limerick at the operating license stage.24 See Final Environmental Statement Related to Operation of Limerick Generating Station, Units 1 and 2, NUREG-0974 Supplement (Aug. 1989) (FES or 1989 Limerick SAMDA Analysis) (ADAMS Accession No. ML112221A204).25 Therefore, the Applicants license renewal ER for Limerick and the Staffs SEIS do not have to reassess the issue.26 Importantly, this does not mean that the Commission only considers ways to mitigate severe accidents at a given site once. Instead, the Commission has considered alternatives for mitigating severe accidents at many sites, including Limerick, multiple times through a variety of NRC programs. When it promulgated Table B-1, the Commission explained, the Commission 23 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed.

Reg. 28, 467, 28,480-28,481 (June 5, 1996) (1996 SOC) (noting that NRC Staff considerations of severe accident mitigation alternatives have already been completed and included in a supplemental EIS for Limerick).

24 The NRC Staff uses the term SAMA to refer to severe accident mitigation alternatives at the license renewal phase. In contrast, the term SAMDA refers to severe accident mitigation alternatives at the initial licensing phase.

25 Limericks SAMDA evaluation did not identify any cost-beneficial physical plant modifications.

1996 SOC, 61 Fed. Reg. at 28,481.

26 While another SAMA analysis is not required, both the applicant and Staff have to determine if new and significant information significantly alters previous SAMA determinations. See 10 C.F.R. §§ 51.53(c)(3)(iv); 51.71;51.95(c)(1).

has considered containment improvements for all plants pursuant to its Containment Performance Improvement (CPI) program, . . . and the Commission has additional ongoing regulatory programs whereby licensees search for individual plant vulnerabilities to severe accidents and consider cost-beneficial improvements[(the individual plant examination IPE and individual plant examination of external events IPEEE programs)]. Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,481 (June 5, 1996).

In addition to the 1989 Limerick SAMDA Analysis, the Applicant has performed several plant-specific severe accident mitigation analyses, and has made cost-beneficial improvements to the plant.27 The 1989 Limerick SAMDA Analysis and Applicants ER describe the severe accident management program as the proper vehicle for addressing severe accidents. The Applicants ER discusses how the CPI,28 its 1992 IPE,29 and accident management programs at Limerick account for reductions in core damage frequency (CDF). See ER at 5-6. The Applicant also submitted an IPEEE in 1995 to identify vulnerabilities to severe accidents and to report the results, along with any licensee-determined improvements, to the NRC.30 See 27 See 1996 SOC, 61 Fed. Reg. at 28,481 (June 5, 1996) (noting that the IPE and IPEEE programs require licensees to conduct a broad search for severe accident mitigation alternatives).

28 The CPI evaluated each U.S. reactor containment type for cost-beneficial improvements. 61 Fed. Reg. 28,481. The CPI program only discovered a few cost-beneficial improvements. Id.

29 See Generic Letter No. 88-20, Individual Plant Examination for Severe Accident Vulnerabilities, at 1 (Nov. 23, 1988) (ADAMS Accession No. ML031150465) (GL 88-20) (noting that general purpose of IPE is for each utility (1) to develop an appreciation of severe accident behavior, (2) to understand the most likely severe accident sequences that could occur at its plant, (3) to gain a more quantitative understanding of the overall probabilities of core damage and fission product releases, and (4) if necessary, to reduce the overall probabilities of core damage and fission product releases by modifying, where appropriate, hardware and procedures that would help prevent or mitigate severe accidents).

GL-88-20 also noted that [b]esides the [IPEs], closure of severe accident concerns will involve future NRC and industry efforts in the areas of accident management and generic containment performance improvements. Id.

30 See GL-88-20, Supplement No. 4, "Individual Plant Examination of External Events (IPEEE) for Severe Accident Vulnerabilities -- 10 CFR 50.54(f)" (June 1991) (ADAMS Accession No. ML031150485);

(continued. . .)

Limerick Generating Station, Units 1 and 2 Response to NRC Generic Letter 88-20 Supplement 4, "Individual Plant Examination of External Events (IPEEE) for Severe Accident Vulnerabilities (June 26, 1995) at executive summary 1-1, 8.0 (ADAMS Accession No. ML073610238)

(Limerick IPEEE).31 The IPEEE resulted in five improvements at Limerick, including one design change.32 The Commission also considers severe accident mitigation strategies in light of real-world experience. For example, following the events of September 11, 2001, the Commission issued orders and ultimately a new regulation (10 C.F.R. § 50.54(hh)) which required commercial power reactor licensees to, among other things, adopt mitigation strategies using readily available resources to maintain or restore core cooling, containment, and spent fuel pool cooling capabilities to cope with the loss of large areas of the facility due to large fires and explosions from any cause, including beyond-design-basis aircraft impacts.33 Like all other operating reactors, Limerick has updated its plant and procedures accordingly, and the NRC

(. . .continued)

NUREG-1407, "Procedural and Submittal Guidance for the Individual Plant Examination of External Events (IPEEE) for Severe Accident Vulnerabilities," Final Report (June 1991) (ADAMS Accession No ML063550238).

31 See also Limerick IPEEE at 6.1 (noting that Limerick IPEEE is a follow-up to the original Severe Accident Risk Assessment (SARA) completed in 1983). After reviewing the IPEEE, the NRC Staff submitted follow-up questions and received responses from the Applicant. See Limerick Generation Station, Units 1 and 2, Response to Request for Additional Information Regarding Review of Individual Plant Examination of External Events (June 28, 1996) (ADAMS Accession No. ML073610237). NUREG-1742, Perspectives Gained from the Individual Plant Examination of External Events (IPEEE) Program, Final Report (Apr. 2002) (ADAMS Accession No. ML021270070) (NUREG-1742) documents the perspectives derived from the technical reviews of the IPEEE results.

32 See NUREG-1742, Table 3.3 (noting two operational procedures improvements, two maintenance procedures improvements, and one physical design change).

33 See Power Reactor Security Requirements, 74 Fed. Reg. 13,926 (Mar. 27, 2009). The final rule also added several new requirements developed as a result of insights gained from implementation of the security Orders, reviews of site security plans, and implementation of the enhanced baseline inspection program, and updated the NRCs security regulatory framework for the licensing of new nuclear power plants. Compliance with the final rule was required by March 31, 2010, for licensees currently licensed to operate under 10 C.F.R. Part 50.

has inspected the guidelines and strategies that Exelon has implemented to meet the requirements of 10 C.F.R. § 50.54(hh)(2).34 Like all other reactor licensees, Exelon has also developed and implemented severe accident mitigation guidelines (SAMGs) at Limerick,35 which further reduce risk at the facility.

The Commission also considered severe accident mitigation measures following the March 11, 2011, Fukushima Dai-ichi accident. Following the accident, the Commission established a Task Force to conduct a methodical and systematic review of the NRCs process and regulations to determine whether the agency should make additional improvements to its regulatory system and to make recommendations to the Commission for its policy direction.

TFR at 1. Among other things, the Task Force specifically studied how the NRC has addressed events that exceed the current design basis for plants in the United States. TFR at vii.36 While the Task Force concluded that continued operation and continued licensing activities do not pose an imminent risk to public health and safety, id., it did recommend improving the NRCs regulatory framework for providing reasonable assurance that existing reactors will operate safely under the AEA.37 34 See Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident, at 17 (July 12, 2011) (ADAMS Accession No. ML111861807) (TFR).

35 SAMGs were developed by the industry during the 1980s and 1990s in response to the TMI accident and followup activities. TFR at 47. SAMGs are meant to enhance the ability of the operators to manage accident sequences that progress beyond the point where [emergency operating procedures]

and other plant procedures are applicable and useful. Id. In GL 88-20, Supplement 2, Accident Management Strategies for Consideration in the Individual Plant Examination Process, dated April 4, 1990, the NRC encouraged but did not require licensees to develop and implement SAMGs. Id.

36 The Task Force also requested information on the status of licensees implementation of SAMGs. TFR at 2. See http://www.nrc.gov/NRR/OVERSIGHT/ASSESS/SAMGs.html.

37 For example, the Task Force proposed to redefine what level of protection of the public health is regarded as adequate. TFR at 4. Additionally, the Task Force proposed a list of safety enhancements to reinforce the NRCs existing regulatory structure. Id. at ix. Importantly, while the Task Force made extensive findings and recommendations under the AEA, the Task Force did not find that Fukushima would have a direct impact on the NRCs environmental reviews of current licensing activities under (continued. . .)

Notably, one near-term Task Force recommendation was the [s]trengthening and integration of emergency operating procedures, severe accident management guidelines, and extensive damage mitigation guidelines. SECY-11-0124, Recommended Actions to Be Taken Without Delay from the Near-Term Task Force Report, at 3 (Sept. 9, 2011) (ADAMS Accession No. ML11245A127). On October 18, 2011, the Commission approved the Staffs proposed actions to implement without delay this recommendation, among others, subject to certain comments. SRM - SECY-11-0124 - Recommended Actions To Be Taken Without Delay From The Near-Term Task Force Report (Oct. 18, 2011)(ADAMS Accession No. ML112911571)

("SRM-SECY-11-0124"); SRM-SECY-11-0137 - Prioritization of Recommended Actions to be Taken in Response to Fukushima Lessons Learned (Dec. 15, 2011) (ADAMS Accession No. ML113490058). In addition, the Commission recently authorized the Staff to conduct an updated level 3 probabilistic risk assessment (PRA) for the purpose of evaluating its generic understanding of severe accident risk and mitigation. SRM-SECY-11-0089, Staff Requirements SECY-11-0089 Options for Proceeding with Future Level 3 Probabilistic Risk Assessment with Future Level 3 Probabilistic Risk Assessment (PRA) Activities (Sept. 21, 2011) (ADAMS Accession No. ML112640419) (SRM-SECY-11-0089). Thus, in the years since the 1989 Limerick SAMDA Analysis, the Commission has conducted numerous generic and site-specific studies of severe accidents and ways to mitigate the impacts of those events.

Moreover, the Commission recognizes its duty to evaluate whether there is any new and significant information regarding its severe accident determinations and supplements its NEPA documentation accordingly. See 10 C.F.R. § 51.95(c)(3); Tennessee Valley Authority (Watts

(. . .continued)

NEPA or recommend that the NRC alter those reviews to account for Fukushima. The Task Force did not provide any indication that the events at Fukushima changed the NRCs understanding of the environmental consequences of a severe accident for NEPA purposes. Union Electric Company, d/b/a Ameren Missouri (Callaway Plant, Unit 2) et al., CLI-11-05, 74 NRC __ (Sept. 9, 2011)(slip op. at 30-31).

Bar Nuclear Plant, Unit 2), CLI-10-29, 72 NRC__ (Nov. 30, 2010) (slip op. at 10) (ADAMS Accession No. ML103340280) (citing Marsh v. Or. Natural Res. Council, 490 U.S. 360, 373-74 (1989)). In Watts Bar, the Commission noted that even when a regulation in Part 51 excuses the agency from considering the issue in a given proceeding, NEPA requires the NRC Staff to take a hard look at new and significant information related to the issue. Id.38 Thus, while the Commissions regulations only require one SAMA analysis to be performed as part of its NEPA review, the Commission has continued to extensively study the issue of severe accident mitigation in the years since the 1989 Limerick SAMDA analysis.

B. NRDC Contentions 1-E, 2-E, and 3-E Impermissibly Challenge the Commissions Findings Regarding SAMAs and are Therefore Outside the Scope of the Proceeding Under Commission precedent, generic environmental analyses incorporated into Part 51 regulations may not be challenged in litigation unless the rule is waived for a particular proceeding or the rule itself is suspended or altered in a rulemaking proceeding. Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station) & Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),CLI-07-03, 65 NRC 13, 17-18 (2007). As discussed in detail below, NRDC Contention 1-E, 2-E, and 3-E each attack determinations by the Commission, which are codified in 10 C.F.R. § 51.53(c)(3)(ii)(L) and Table B-1. NRDC has not petitioned for a waiver of the generic determinations in 10 C.F.R. § 51.53(c)(3)(ii)(L) or Table B-1 in this proceeding.

38 See also Massachusetts v. U.S., 522 F.3d 115, 127 (1st Cir. 2008)(noting that NRC procedures anticipate a situationin which a generic finding adopted by agency rule may have become obsolete. In such a situation, the regulations provide channels through which the agency's expert staff may receive new and significant information, namely from a license renewal applicant's environmental report or from public comments on a draft SEIS, and the NRC staff may seek modification of a genericfinding).

Therefore, NRDC has not demonstrated that the issues raised by Contentions 1-E, 2-E, and 3-E are within the scope of this proceeding, as required by 10 C.F.R. § 2.309(f)(1)(iii).39

1. Contention 1-E Contention 1-E states that:

Applicants Environmental Report (§ 5.3) Erroneously Concludes that New Information Related to its Severe Accident Mitigation Design Alternatives (SAMDA) Analysis is Not Significant, in Violation of 10 C.F.R. § 51.53(c)(3)(iv), and Thus the ER Fails to Present a Legally Sufficient Analysis of Severe Accident Mitigation Alternatives.

NRDC Petition at 16.

NRDC claims that there is new and significant information that Exelon has not adequately addressed that demonstrates that the SAMDA analysis upon which Exelon relies is inadequate and fails to fulfill its obligations under NRC regulations to fully develop, evaluate and weigh alternatives to the proposed accident that would result in mitigating the consequences of a severe accident. Petition at 3.40 NRDC argues that the new information that is dismissed by Exelon as insignificant and the additional new information ignored by Exelon would, if properly analyzed, present a seriously different picture of the environmental impacts of the proposed license renewal by substantially expanding the number of potential mitigation measures41 and 39 As support for these contentions, NRDC provides the Expert Declaration of Dr. Thomas B.

Cochran, Dr. Matthew G. McKinzie, and Dr. Christopher J. Weaver (SAMA Declaration) (Nov. 22, 2011)

(ADAMS Accession No. ML11326A322).

40 NRDC claims that the applicant either failed to address, misinterpreted and/or misused information regarding (1) increased population in the area within 10 and 50 miles of the plant and radiation exposure to such population (Petition at 16-18); (2) mitigation measures and alternatives (id. at 17); (3) additional plausible severe accident scenarios (id.); (4) actual core damage events which demonstrate that the CDF probability for Limerick is likely higher (id. at 18); (5) economic impact of a severe accident at Limerick (id.); (6) cost of cleanup from a severe accident (id.) and (7) impacts to the quality of the human environment, including loss of family homestead, possessions, abandonment of livestock and domestic animals, pain and suffering, and uncertainties associated with the safety of the food supply. (id. at 19). See also Petition at 25 (arguing that the ER failed to identify all new information relative to SAMA and failed to justify the conclusion that the new information in the ER is not significant).

41 One of NRDCs experts provided several possible SAMA candidates, but did not provide any ballpark cost-benefit estimates. SAMA Declaration at 8, ¶ 14. When a petitioner proposes additional (continued. . .)

substantially increasing the environmental impact of a severe accident and the benefits to be gained by mitigating those impacts. Id. at 29. NRDC argues that Exelon should run its own technically competent sensitivity analyses to determine how new information might alter both the scope and viability of mitigation alternatives. Id. NRDC states that its members will obtain redress for their injuries if Exelon is required to perform a SAMA analysis. Id. at 9.

But, NRDC demands that Exelon and the NRC conduct an analysis they are not required to perform (i.e., completing another SAMA analysis).42 Thus, Contention 1-E impermissibly challenges the Commissions Part 51 regulations and is therefore outside the scope of the proceeding. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 559-60 (2005) (citations omitted).43 As discussed above, the Commission determined that the impact of severe accidents was small for all plants, GEIS at 5.18, and that a site-specific consideration of alternatives to mitigate severe accidents had been completed for Limerick and did not need to be reassessed for license renewal. Id. at 5.4.1.5;

(. . .continued)

SAMAs, it must at least indicate the approximate relative cost and benefit of the SAMA. Duke Energy Corporation (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2) CLI-02-17, 56 NRC 1, 12 (2002). See also Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC __, __ (Oct. 12, 2011) (slip op. at 20-21) (ADAMS Accession No. ML11285A022) (noting that when a petitioner asserts that a particular mitigation alternative should have been included in the applicants SAMA analysis, the petitioner must give some indication of the SAMAs cost). Thus, these assertions do not raise a material issue. 10 C.F.R. § 2.309(f)(1)(iv).

42 See Petition at 9 (requiring Exelon to do a SAMA would redress NRDCs injuries). See id. at 4 (Absent substantial improvements by Exelon made as a result of NRC Staff insisting on compliance with NRC regulations, NRC Staff will itself be saddled with carrying out a thorough and accurate review of alternatives to mitigate severe accidents)(emphasis added).

43 Notably, even in cases where Boards have admitted SAMA contentions, the Commission has stated that the NRC is not required to conduct an entire new SAMA analysis to respond to the intervenors concerns. Instead, NEPA requires that the environmental review fully discuss the relevant information, and if necessary, demonstrate what impact it would have on the cost-benefit conclusions.

Entergy Nuclear Operation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),

CLI-10-22, 72 NRC__ (Aug. 27, 2010) (slip op. at 7-10); Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC at 374-78.

FES; 10 C.F.R. § 51.53(c)(3)(ii)(L); Table B-1. Thus, Contention 1-E is outside the scope of this proceeding.

The Staff recognizes that both the applicant and the Staff have obligations to address new and significant information related to SAMAs in their NEPA analyses.44 But, a claim of new and significant information is not enough to bring generic Commission determinations into the scope of a license renewal proceeding. Vermont Yankee, CLI-07-03, 65 NRC 13, 21 (2007) affd, Massachusetts v. NRC, 522 F.3d at 120-21, 125-27 (1st Cir. 2008) Adjudicating Category 145 issues site-by-site based merely on a claim of >new and significant informationwould defeat the purpose of resolving generic issues in a GEIS.@ Id. Instead, a waiver must be submitted and granted. Id. at 16.46 NRDC did not submit a waiver petition or discuss in its petition to intervene how its claims would meet the NRCs stringent waiver standards. See 44 An applicant is required to address new and significant information for either Category 1 or Category 2 issues in its ER for an LRA. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3),

LBP-08-13, 68 NRC 43, 189 (2008); 10 C.F.R. § 51.53(c)(3)(iv). Although, one Board has held that an applicant need not supplement an ER to address new and significant information once the applicant submits the ER to the NRC. Pacific Gas & Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-11-32, 74 NRC __ (Nov. 18, 2011) (slip op. at 15) (ADAMS Accession No. ML11322A193).

The Applicants ER contains such an analysis in Section 5. The NRC must address new and significant information in the SEIS, and/or supplement the FSEIS if needed. 10 C.F.R. §§ 51.72(a)(2),51.92(a)(2). In preparing the SEIS, the NRC will independently review the ER, which contains an analysis of new and significant information, and determine whether there is any new and significant information that could materially affect the Commissions determination that a second SAMA need analysis need not be conducted for Limerick for license renewal. See 10 C.F.R. § 51.95(c)(3); Watts Bar, CLI-10-29, (slip op.

at 10). If Anew information@ emerges through a public comment or rulemaking petition and Ais relevant to the plant and is also relevant to other plants (i.e., generic information) and that information demonstrates that the analysis of an impact codified in the final rule is incorrect, the NRC staff will seek Commission approval to either suspend the application of the rule on a generic basis . . . or delay granting the renewal application (and possibly other renewal applications) until the analysis in the GEIS is updated and the rule amended.@ See 1996 SOC, 61 Fed. Reg. at 28,470.

45 The Staff recognizes that severe accidents are a Category 2 issue for those plants that have not performed a site-specific SAMA analysis. But the Commissions determination that SAMAs need not be reassessed for Limerick is codified in Table B-1 and Part 51, and therefore cannot be challenged absent a waiver. See Millstone, CLI-05-24, 62 NRC at 559-60.

46 The applicants ER notes this point on page 5-2 (The purpose of [the ER providing new and significant information] is to alert NRC staff to such information, so the staff can determine whether to seek the Commissions approval to waive or suspend application of the rule with respect to the affected generic analysis.).

(continued. . .)

Millstone, CLI-05-24, 62 NRC at 559-60 (citations omitted). Thus, Contention 1-E is outside the scope of this proceeding.

NRDC also argues that [s]ince NRC Staff relies on the ER for much of its NEPA analysis, particularly the SAMA analysis, if, as here, the SAMA analysis is defective, absent diligent enforcement of its own regulations and guidance by NRC Staff, the FSEIS will be similarly deficient. Petition at 28. But this argument is flawed for several reasons. First, contrary to NRDCs claim, the NRC Staff will not be relying on a SAMA analysis in the Limerick license renewal ER, as the Applicant did not incorporate or adopt the 1989 Limerick SAMDA Analysis into its ER as its analysis of alternatives to mitigate the adverse impacts of severe accidents at Limerick. Petition at 16 n.4; see also id. at 19 n.6. Instead, the Applicant, relying on the Commissions regulations, did not submit a new SAMA analysis.47 Second, the SAMA analyses are site-specific mitigation analyses, for which NEPA demands no fully developed plan or detailed examination of specific measures which will be employed to mitigate adverse environmental effects. Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 316 (2010). As discussed, the NRC has considered and continues to consider severe accidents and mitigation measures through a variety of processes. Moreover, the NRC will conduct an independent environmental analysis, including an evaluation of whether any new and significant information exists regarding the Commissions determination in § 51.53(c)(3)(ii)(L). Third, neither the 1989 Limerick SAMDA Analysis nor the adequacy of the Staffs SEIS are at issue at this stage of the proceeding.48

(. . .continued) 47 See ER at 4-49 (citing to 10 C.F.R. § 51.53(c)(3)(ii)(L) and noting that no analysis of SAMAs for LGS is provided in this License Renewal Environmental Report as none is required as a matter of law.). The Applicant did consider whether any new and significant information impacted the bases for the Commissions § 51.53(c)(3)(ii)(L) finding. ER at 4-49.

48 The 1989 Limerick SAMDA Analysis supported the NRCs environmental review of the impacts (continued. . .)

Finally, contrary to NRDCs claim, the NRC Staff is enforcing its regulations by not requiring another SAMA analysis for Limerick for license renewal given the NRCs finding in the GEIS, which is codified in the Commissions regulations. See GEIS at 5.4.1.5; 10 C.F.R. § 51.53(c)(3)(ii)(L); Table B-1.

2. Contention 2-E Contention 2-E states that:

Applicants Environmental Report (§ 5.3) in Relying on a SAMDA Analysis from 1989 Fails to Comply with 10 C.F.R. §§ 51.45, 51.53(c)(2) and 51.53(c)(3)(iii)

Because it Does Not Include an Accurate or Complete Analysis of Alternatives Available for Reducing or Avoiding Adverse Environmental Effects, Does Not Contain Sufficient Data to Aid the Commission in its Development of an Independent Analysis of Alternatives and Does Not Contain an Adequate Consideration of Alternatives for Reducing Adverse ImpactsFor All Category 2 License Renewal Issues.

Petition at 19.

NRDC asserts that Exelons ER incorporates and adopts as its analysis of alternatives to mitigate the adverse impacts of severe accidents at Limerick the 1989 Limerick SAMDA analysis. Id. at 19, n. 6. NRDC claims that there are numerous deficiencies in that SAMDA analysis. Id.49 NRDC argues that these deficiencies result in the ER understating the adverse environmental impacts from a severe accident and failing to provide a reliable basis for the conclusion that there are no cost beneficial SAMAs. Id. at 20-21.

(. . .continued) of granting an operating license for Limerick. See 1996 SOC, 61 Fed. Reg. at 28,481. The Staffs SEIS is not presently at issue because under 10 C.F.R. § 2.309(f)(2), petitioners must file contentions based on the ER, and may amend those contentions if the NRCs draft or final EIS contains different information.

49 NRDC lists a number of claimed deficiencies in the 1989 Limerick SAMDA Analysis, including (1) an arbitrarily limited and outdated list of SAMDA candidates for evaluation; (2) an inaccurate analysis of the population growth surrounding Limerick (both within 10 and 50); (3) inadequate and outdated meteorological data; (4) inaccurate estimate of the core damage frequency for the Limerick reactors; (5) inaccurate analyses of the required evacuation times in the event of a severe accident; (6) no analysis of the economic impact of a severe accident on areas within 50 miles of the reactors; (7) inaccurate and unreliable methodologies to evaluate the impact on the SAMDA analysis of new information. Petition at 20-21.

However, the 1989 Limerick SAMDA Analysis, and any claimed deficiencies in that analysis, is outside the scope of this proceeding. As discussed below, the Applicants ER does not incorporate and adopt the 1989 Limerick SAMDA Analyses as its analysis of severe accident mitigation alternatives. Instead, the ER notes that the Commission determined that the 1989 Limerick SAMDA Analysis was a site-specific consideration of alternatives to mitigate severe accidents for Limerick, and that severe accident mitigation need not be reassessed for license renewal. ER at 4-49 (citing GEIS at 5.4.1.5). As noted in the ER, this determination was codified in the Commissions regulations. See ER at 4-49 (citing 10 C.F.R. § 51.53(c)(3)(ii)(L)). Thus, Exelon is following the GEIS, 10 C.F.R. § 51.53(c)(3)(ii)(L), Table B-1, and the 1996 SOC underlying Part 51, which state that the applicant need not reassess alternatives to mitigate severe accidents in its ER for Limericks license renewal.50 If NRDC wishes to challenge this determination, the appropriate avenue would be a waiver or a petition for rulemaking. Vermont Yankee, CLI-07-3, 65 NRC at 21.

NRDC also argues that Exelon must demonstrate that [the 1989 Limerick SAMDA Analysis]contains high quality information and accurate scientific analysis, and that all the information contained in that analysis [is] reliable. Petition at 30 (citing 10 C.F.R. §§ 51.70(b),

51.92(a) and 40 C.F.R. § 1502.24.51 However, the 1989 Limerick SAMDA Analysis is not the 50 Exelon has reflected this in its discussion of license renewal impacts and mitigating actions.

See e.g., ER at 6-9 (noting that for severe accidents The NRCs GEIS concluded that the probability weighted consequences of severe accidents are of small significance for all nuclear power plants. An analysis of severe accident mitigation design alternatives (SAMDA) completed for LGS in 1989, as reported in a supplement to the Final Environmental Statement Related to the Operation of Limerick Units 1 and 2, reached a consistent LGS-specific conclusion; therefore, 10 CFR 51.53(c)(3)(ii)(L) requires no further site-specific consideration of severe accident mitigation for LGS license renewal. ).

51 40 C.F.R. § 1502.24 has not been expressly adopted into the NRCs Part 51 regulations implementing NEPA. Thus, it is not binding on the NRC or its licensees. Dominion Nuclear North Anna, LLC (ESP for North Anna Early Site Permit Site), CLI-07-27, 66 NRC 215, 222 n.21 (2007). NRDC cites to the standards applicable to the Staffs review (§ 51.70(b) and § 51.92(a)) because it is a Staff analysis that Exelon asserts meets its SAMA obligations. Petition at 30 n. 8.

issue in this proceeding - rather the Applicant relies on the Commissions determination in § 51.53(c)(3)(ii)(L) that severe accident mitigation need not be reassessed by the applicant in the Limerick license renewal ER.52 Thus, the adequacy of the 1989 Limerick SAMDA Analysis is outside the scope of this proceeding and Exelon has no duty to demonstrate its adequacy.53 The time to have challenged Limericks SAMDA has long since come and gone. See 10 C.F.R.

§ 2.309(b), (c).

3. Contention 3-E Contention 3-E states that:

Applicants Environmental Report Erroneously Concludes that the SAMDA Analysis Conducted in 1989 is a SAMA Analysis Within the Meaning of 10 C.F.R.

§ 51.53(c)(3)(ii)(L) and Thus the ER is Deficient for Its Failure to Include a SAMA Analysis.

Petition at 21.

NRDC argues that the 1989 Limerick SAMDA Analysis is not a SAMA analysis merely because the NRC Staff calls it one. Id. at 30-31.54 Specifically, NRDC argues that the 1989 Limerick SAMDA Analysis is inadequate given all of the deficiencies identified in Contention 2-E and because it did not assess the impact of many of the factors outlined in NEI-05-01 Rev. A (Severe Accident Mitigation Alternatives (SAMA) Analysis Guidance Document) (Nov. 2005))

using MACCCS2 or another NRC approved probabilistic safety assessment severe accident 52 GEIS at 5.4.1.5 (Staff evaluations of alternatives to mitigate severe accidents have already been completed and included in asupplement for Limerick; therefore, severe accident mitigation need not be reassessed for [Limerick] for license renewal.).

53 NRDC is correct in stating that SAMA is within the scope of license renewal for those plants that have not performed a SAMA analysis. Petition at 30 (citing Duke Energy Corporation, (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2) CLI-02-17, 56 NRC 1 (2002)).

54 See also Petition at 26 (noting that the ER mistakenly concludes that NRC Staff has previously considered SAMAs for Limerick by conducting the 1989 Limerick SAMDA Analysis).

consequences code system. Id. at 21-22, 31.55 As discussed, the NRC determined in the GEIS that Staff evaluations of alternatives to mitigate severe accidents have already been completed and included in an EIS or supplement for Limerick; therefore, severe accident mitigation need not be reassessed for [this plant] for license renewal. See GEIS at 5.4.1.5. This determination by the Commission, which is codified in 10 C.F.R. § 51.53(c)(3)(ii)(L) and Table B-1, cannot be challenged absent a waiver.

Thus, NRDCs argument is outside the scope of this proceeding.56 Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13, 17-18 (2007).

C. Contentions 1-E and 2-E Do Not Raise a Material Dispute with the Application

1. Contentions 1-E and 2-E Do Not Raise a Material Dispute with the ER Because Those Contentions Challenge the 1989 Limerick SAMDA Analysis, But the ER Relies on 10 C.F.R. § 51.53(c)(3)(ii)(L)

Contention 1-E alleges that the Applicants Environmental Report (§ 5.3) erroneously concludes that new information related to its severe accident mitigation design alternatives (SAMDA) analysis is not significant, in violation of 10 C.F.R. § 51.53(c)(3)(iv), and thus the ER fails to present a legally sufficient analysis of severe accident mitigation alternatives. Petition at 16 (emphasis added). Similarly, Contention 2-E claims that the Applicants Environmental Report (§ 5.3) in relying on a SAMDA analysis from 1989 fails to comply with 10 C.F.R. §§ 51.45, 51.53(c)(2) and 51.53(c)(3)(iii). Petition at 19 (emphasis added).

Both of these contentions rest on the erroneous assumption that the ER, § 5.3, 55 NRDC argues that the 1989 SAMDA analysis fails to include the following factors: a. an analysis of the economic consequences of a severe accident; b. accurate population projections for the 50 mile area around Limerick; c. adequate range of alternatives to mitigate the consequences of a severe accident; d. accurate CDF calculations; e. accurate meteorological data; f. complete analyses of plausible severe accident scenarios; and g. accurate calculation of evacuation times in the event of an accident.

Petition at 22.

56 As noted, NRDC is correct in stating that SAMA analysis is within the scope of license renewal for those plants that have not performed a SAMA analysis. Petition at 30 (citing McGuire/Catawba, CLI-02-17, 56 NRC at 1).

incorporates and adopts as Exelons analysis of alternatives to mitigate the adverse impacts of severe accidents at Limerick, an analysis done by the NRC Staff in 1989 known as a severe accident mitigation design alternatives (SAMDAs) analysis.57 Petition at 16 n.4; see also Id.

at 19 n.6.

But, the ER neither expressly adopts nor incorporates the 1989 Limerick SAMDA analysis. Rather the ER actually states that no analysis of SAMAs for LGS is provided in this License Renewal Environmental Report as none is required as a matter of law. ER at 4-49.

The ER notes, The regulatory text codified in 10 C.F.R. 51.53(c)(3)(ii)(L) also supports this conclusion. Id. Nevertheless, in an abundance of caution, Section 5.3 discusses Exelon Generations evaluation, which concludes that there is no new and significant information relevant to the conclusions codified in 10 C.F.R. 51.53(c)(3)(ii)(L), id., that LGS need not reassess severe accident mitigations alternatives for license renewal, id. at 5-4.

Therefore, the Petition does not raise a material dispute with the application because it raises challenges to an analysis on which the application does not rely. Moreover, the Petition does not demonstrate how reliance on the Commission regulation fails to satisfy NEPA. Nor does the Petition show how the Applicants consideration of new and significant information in relation to § 51.53(c)(3)(ii)(L), as opposed to the 1989 SAMDA analysis, does not meet NEPAs requirements. Consequently, neither Contention 1-E nor 2-E raise a material dispute with the Application, and both are therefore inadmissible. 10 C.F.R. § 2.309(f)(iv), (vi).

57 NRDC then identifies a host of problems that result from incorporating, updating, and relying on a twenty-year-old SAMDA analysis to satisfy NEPA. Petition at 16-21. Those issues necessarily result from the Applicants reliance on § 51.53(c)(3)(ii)(L), and the appropriate vehicle to raise them now is through a waiver request, which NRDC chose not to submit.

2. NRDC Has Not Shown that the Commissions Determination that the Applicant Need Not Conduct a SAMA Analysis for Limerick at License Renewal Was Only Based on the 1989 Limerick SAMDA Analysis As discussed above, Contentions 1-E and 2-E do not raise a material dispute with the application because they assume that the Applicant incorporates and adopts the 1989 Limerick SAMDA analysis to meet its obligation to consider SAMAs, Petition at 16 n. 4, 19 n.6, when in fact the Applicant relies on the Commissions generic determination in 10 C.F.R.§ 51.53(c)(3)(ii)(L), ER at 4-49. Thus § 51.53(c)(3)(ii)(L), not the 1989 Limerick SAMDA Analysis, constitutes the Applicants treatment of SAMAs in the ER. But, NRDC has not shown, or attempted to show, that Contentions 1-E and 2-E challenge the rationale supporting § 51.53(c)(3)(ii)(L). In other words, NRDC has not demonstrated that in promulgating § 51.53(c)(3)(ii)(L), the Commission expected the 1989 Limerick SAMDA analysis to stand in for the SAMA analysis at license renewal. See Petition at 16 n.4, 19 n.6 (stating that the ER incorporates and relies on the 1989 Limerick SAMDA analysis). Consequently, Contentions 1-E and 2-E are inadmissible because they do not demonstrate or show a material issue or dispute with the application. 10 C.F.R. § 2.309(f)(iv), (vi).

3. The Commission Reasonably Found that NEPA Does Not Require Another SAMA Analysis at License Renewal if the NRC Already Performed an Equivalent Analysis for that Facility Neither the 1996 SOC nor the other documentation supporting § 51.53(c)(3)(ii)(L) state that the Commission expected licensees to simply adopt decades-old SAMDA analyses to meet NEPAs requirements. In the Staffs view, the generic conclusions codified in § 51.53(c)(3)(ii)(L) do not just rely on the previous site-specific SAMDA for a given facility. Rather, as discussed below, the SAMDA analysis was part of a series of on-going studies of means to mitigate severe accidents that continues to the present. 1996 SOC, 61 Fed. Reg. at 28,480. These studies support the Commissions determination that a subsequent SAMA consideration is unnecessary in this case. NRDC has not attempted to show how the totality of those studies inadequately

considers severe accident mitigation. Consequently, the Board should not admit Contentions 1-E and 2-E because they are not material. 10 C.F.R. § 2.309(f)(1)(iv), (vi).

a. The Commissions Conclusions in 10 C.F.R § 51.53(c)(3)(ii)(L) Rest on an Extensive Series of Studies of Ways to Mitigate the Impacts of Severe Accidents In the Statement of Considerations accompanying § 51.53(c)(3)(ii)(L), the Commission acknowledged that NEPA required the NRC to consider severe accident mitigation alternatives, or SAMAs, for license renewal. 1996 SOC, 61 Fed. Reg. at 28,480. Importantly, the Commission stated, NRC staff considerations of severe accident mitigation alternatives have already been completed and included in an EIS or supplemental EIS for Limerick, Comanche Peak, and Watts Bar. Therefore, severe accident mitigation alternatives need not be reconsidered for these plants for license renewal. 1996 SOC, 61 Fed. Reg. at 28,480-28,481.

This statement summarizes the rule promulgated in § 51.53(c)(3)(ii)(L), but does not explain why the Commission believed promulgated that regulation.

When read in context, however, the 1996 SOC indicates a strong basis for the Commissions conclusion that NEPA did not require the NRC to consider SAMAs at the license renewal stage if the agency had already done so in a previous NEPA document: because the Commission had already conducted numerous studies of ways to mitigate severe accidents, including the site-specific study in the prior NEPA document, one more study was not required.

Indeed, the Commission initially proposed classifying SAMAs as a Category 1 issue, which would be outside the scope of license renewal. Proposed Rules; Environmental Review for Renewal of Operating Licenses, 56 Fed. Reg. 47,016, 47,034 (Sep. 17, 1991). The Commission ultimately determined that SAMAs should be a Category 2 issue and offered the following explanation in the SOC.

Although the Commission has considered containment improvements for all plants pursuant to its Containment Performance Improvement (CPI) program, which identified potential containment improvements for site-specific

consideration by licensees, and the Commission has additional ongoing regulatory programs whereby licensees search for individual plant vulnerabilities to severe accidents and consider cost-beneficial improvements[IPE/IPEE programs], these programs have not yet been completed. Therefore, a conclusion that severe accident mitigation has been generically considered for license renewal is premature.

61 Fed. Reg. at 28,480-81. Consequently, the Commission believed that upon completion, these studies could form the basis for classifying SAMAs as a Category 1 issue. Nonetheless, because they remained unfinished, the Commission could not consider SAMAs generically.

However, the Commission noted that upon completion of its IPE/IPEEE program, it may review the issue of severe accident mitigation for license renewal and consider, by separate rulemaking, reclassifying severe accidents as a Category 1 issue.58 Id. at 28,481.

The 1996 SOC reveals that the Commission had limited expectations for SAMA analyses in general.

The Commission believes it unlikely that any site-specific consideration of severe accident mitigation alternatives for license renewal will identify major plant design changes or modifications that will prove to be cost-beneficial for reducing severe accident frequency or consequences. This Commission expectation regarding severe accident mitigation improvements is based on the analyses performed to date that are discussed below.

Id. These previous analyses included the CPI program, which evaluated potential failure modes, potential plant improvement, and the cost-effectivenesses of such improvements for each type of containment in the U.S. Id. The Commission noted that the CPI program only identified a few containment improvements. Id. The Commission also stated that the agency had conducted SAMDA analyses for Limerick, Comanche Peak, and Watts Bar and that none of 58 Although the NRC has subsequently considered SAMAs in the rulemaking context on other occasions, the NRC has not reclassified SAMAs as a Category 1 issue. See Nuclear Energy Institute; Denial of Petition for Rulemaking, 66 Fed. Reg. 10,834 (Feb. 20, 2001); NUERG-1437, Revision 1, Vol. 2, Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Appendices - Draft Report for Comment, at Appendix E (June 2009) (ADAMS Accession No. ML091770048). These evaluations did not address whether SAMAs are appropriately classified as a Category 2 issue. In any event, the relevant inquiry for this proceeding is the Commissions stated rationale for the conclusions embodied in 10 C.F.R. § 51.53(c)(3)(ii)(L).

those studies had identified cost-beneficial physical plant modifications. Id. The Commission additionally explained that each licensee is performing an individual plant examination (IPE) to look for plant vulnerabilities to internally initiated events and a separate IPE for externally initiated events (IPEEE). Id. But, the Commission noted that the Staff was in the process of evaluating the licensees IPE and IPEEE submittals. Id. Limerick filed its IPE and IPEEE submittals in 1992 and 1995, respectively. Consequently, the Commission believed that SAMA analysis would not uncover major cost-beneficial plant-modifications to mitigate severe accidents in light of the depth of the Commissions previous studies of this topic.

Ultimately, the Commission concluded:

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

The Commission expects that if these reviews identify any changes as being cost beneficial, such changes generally would be procedural and programmatic fixes, with any hardware changes being only minor in nature and few in number. NRC staff considerations of severe accident mitigation alternatives have already been completed and included in an EIS or supplemental EIS for Limerick, Comanche Peak, and Watts Bar. Therefore, severe accident mitigation alternatives need not be reconsidered for these plants for license renewal.

1996 SOC, 61 Fed. Reg. at 28,481. Thus, the Commissions determination that one SAMA is enough to satisfy NEPA does not just rely on the fact that the Staff performed a previous analysis of severe accident mitigation in a NEPA document.

Rather, the totality of studies the NRC had completed on this topic supports the Commissions determination. Indeed, the Commission believed that these studies so thoroughly examined the issue of severe accident mitigation that when completed, they might form the basis of a Category 1 finding. Consequently, the Commission claimed that future SAMA analyses were not likely to uncover major cost-beneficial plant modifications. Logically, if the Commission believed it unlikely that the first SAMA analysis would yield major benefits in

light of the CPI, IPE, IPEEE, and previous SAMDA studies, then a second SAMA analysis would be even less likely to do so. Therefore, these studies provide a reasonable basis for the Commissions conclusion in § 51.53(c)(3)(ii)(L) that the NRC need only consider SAMAs once in an EIS or EA to satisfy NEPA. NEPAs rule of reason would not require the agency to reconsider severe accident mitigation because, by the time the NRC conducts one SAMA analysis for a facility, another analysis would be unlikely to yield major cost-beneficial improvements. The Commission has previously explained that, under NEPA, 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. Pilgrim, CLI-10-11, 71 NRC at 315 (quoting Town of Winthrop v. Federal Aviation Administration, 535 F.3d 1, 11 (1st Cir. 2008)). The Commission determination in § 51.53(c)(3)(ii)(L) represents such a use of discretion.

NRDC has not demonstrated how reliance on the totality of these studies is insufficient to support the determination in § 51.53(c)(3)(ii)(L) with respect to Limerick, or how new and significant information undermines the basis for that determination.59 Thus, Contentions 1-E and 2-E do not contain sufficient information to demonstrate a material dispute with the underpinnings of § 51.53(c)(3)(ii)(L) or the ER, which relies on that regulation.

b. The 1989 Limerick SAMDA Analysis Relied on Numerous Other Studies Even if the Board were to determine that the 1989 Limerick SAMDA study were the only basis for the Commissions conclusion in § 51.53(c)(3)(ii)(L) with respect to Limerick, that document itself still relies on many of the same studies discussed in the 1996 SOC.

59 The Staff notes that NRDC does mount a limited challenge to the CDF value calculated by the Applicants most recent IPEEE update. SAMA Declaration at 10. But, NRDC does not rely on this challenge to question the totality of studies undertaken by the NRC to consider severe accident mitigation and risk for Limerick. Instead, NRDC disputes the CDF for purposes of questioning the Applicants reliance on, and updates to, the 1989 Limerick SAMDA analysis. Id. at 12. Consequently, this limited reference to the IPEEE does not suffice to show a material dispute with the rationale underlying § 51.53(c)(3)(ii)(L).

Consequently, NRDC would still not have raised a material dispute with the application because the claims in the Petition do not show how those studies form an insufficient basis for § 51.53(c)(3)(ii)(L). As NRDC has pointed out, the Staffs consideration of SAMDAs for Limerick did not purport to be a final analysis of SAMAs for that site. Petition at 17 n.5. Rather, it recognized the importance of the Commissions ongoing studies of these issues.

In the longer term, these same severe accident issues are currently being pursued by the NRC in a systematic way for all utilities through the Severe Accident Program described in SECY-88-147, Integration Plan for Closure of Severe Accident Issues. The plan includes provision for an Individual Plant Examination (IPE) for each operating reactor, a Containment Performance Improvement (CPI) program, and an Accident Management (AM) program.

These programs will produce a more complete picture of the risks of operating plants and the benefits of potential design improvements, including SAMDAs.

The staff believes that the severe accident program is the proper vehicle for further review of severe accidents at nuclear power plants, including Limerick.

1989 Limerick SAMDA at 15 (emphasis added).

Specifically, the Staff found, For example, the Containment Performance Improvement (CPI) program is in the process of performing an integrated assessment of generic containment improvements for Mark II plants. The assessment entails a broad perspective of all Mark II plants, including their vulnerabilities and potential improvements. Id. In addition, the Staff noted that the IPE program would produce an up-to-date picture of plant vulnerabilities for each plant individually, and will produce a pool of information concerning generically applicable insights. The IPE process is thus the most complete and efficient way of resolving the uncertainties discussed above associated with the core damage frequency for nuclear power plants including Limerick. Id. at 16. Consequently, the 1989 Limerick SAMDA analysis, like the 1996 SOC, relies on numerous ongoing studies to support its conclusion, including the CPI and IPE. But, NRDC has not attempted to show inadequacies in the IPE or CPI programs. As a result, even if the 1989 SAMDA analysis itself were the sole support for the Commissions generic determination in § 51.53(c)(3)(ii)(L), and in turn the conclusions in the ER, NRDC has

not raised a material issue.

c. The Commission Understood That Its Study of Severe Accident Mitigation for License Renewal Must Comport with NEPA In Limerick Ecology Action v. NRC, 869 F.2d 719 (3d Cir. 1989), the Third Circuit held that NEPA required the NRC to consider severe accident mitigation alternatives. The Commission explicitly recognized this in its discussion of applicable legal principles in the 1996 SOC underlying § 51.53(c)(3)(ii)(L). Specifically, in discussing its decision to classify SAMAs as a Category 2 issue, the Commission noted that its NEPA regulations and a decision from the Third Circuit required a consideration of mitigation alternatives. 61 Fed. Reg. at 28,480 (citing Limerick, 869 F.2d at 719). Because the requirements of NEPA apply to every major federal action, including license renewals, 10 C.F.R. § 51.20(a)(2), the Commission understood that its obligation to consider severe accident mitigation alternatives was not a one-time requirement.

The Commission resolved mitigation for other environmental issues generically when it concluded, Mitigation of adverse impacts associated with the issue has been considered in the analysis and it has been determined that additional plant-specific mitigation measures are likely not to be sufficiently beneficial to warrant implementation. 61 Fed. Reg. at 28,474. For SAMAs, the Commission determined that it did not need to study SAMAs at the license renewal stage for a plant if it had already studied that issue for that plant in an earlier NEPA document.

61 Fed. Reg. at 28,481; 10 C.F.R. § 51.53(c)(3)(ii)(L). As a result, the Commission essentially reached a generic conclusion for SAMAs for those specific plants. Like other generic conclusions, that determination would also need to meet the requirements of NEPA. As the Limerick court explained, a legally sufficient NEPA analysis must contain sufficient discussion of the relevant issues and opposing viewpoints to enable the decisionmaker to take a hard look

at the environmental factors and to make a reasoned decision.60 869 F.2d at 737 (quoting Kleppe, 427 U.S. at 410 n. 21).

As NRDC points out, simply relying on an analysis of severe accident mitigation prepared potentially twenty years ago to meet NEPAs hard look requirement would be problematic. Petition at 16-23. But, as discussed above, the Commission relies on more than just that prior analysis, including the IPE, IPEEE, and CPI programs, to take a hard look at severe accident mitigation alternatives in cases when the NRC has already considered SAMAs.61 Therefore, the volume of studies cited by the Commission, and their on-going nature, provide the type of hard look the Commission understood it must apply to the issue of severe accident mitigation alternatives in its NEPA review for every license renewal proceeding. 61 Fed. Reg. at 28,481. This approach is all the more reasonable in light of the Commissions finding that the probability-weighted environmental impacts of severe accidents would be small for all facilities. Table B-1. Consequently, the Commissions discussion of legal principles in the 1996 SOC provides further indication that it intended to base its generic conclusion in § 51.53(c)(3)(ii)(L) on all of the above-mentioned severe accident studies, not just the prior analysis for a given site.

In summary, even if Contentions 1-E and 2-E were in scope, they do not raise a genuine dispute with the application. Contentions 1-E and 2-E point out many reasons why relying on and updating the 1989 Limerick SAMDA Analysis may not adequately consider severe accident mitigation for purposes of this license renewal action. But, the ER does not incorporate the 60 Although the Court in Limerick expressed skepticism that the Commission could resolve severe accident mitigation generically, in light of the site-specific nature of the issue, as discussed above, the Commissions determination that one SAMA is enough rests on several site-specific studies. Limerick, 869 F.2d at 741.

61 The NRCs ongoing study of severe accidents since the GEIS, including the agencys response to the events of September 11, 2001 and the Fukushima incident, provide further support for the Commissions decision. See supra Section II.A.3.

1989 Limerick SAMDA analysis. Instead it relies on § 51.53(c)(3)(ii)(L). Moreover, nothing in the 1996 SOC states that the Commission expected licensees to incorporate a previous SAMA analysis into their license renewal application.

Instead, the regulation cited by the Applicant to omit a SAMA analysis from its LRA reflects a judgment by the Commission that by the time of license renewal, if the NRC has already conducted one SAMA analysis in a NEPA document for a facility, the agency will have sufficiently studied severe accident mitigation for that site to satisfy NEPA without conducting a new SAMA analysis. That judgment rests not only on the previous NEPA severe accident mitigation analysis, but also on the CPI, IPE, and IPEE programs. Notably, the NRC has further considered severe accidents and ways to mitigate their impacts, through its response to the events of September 11, 2001, its response to the Fukushima incident, as well as its Level 3 PRA study, among other studies.62 NRDC has not brought any challenge to the studies that support § 51.53(c)(3)(ii)(L) other than the 1989 Limerick SAMDA Analysis, let alone attempted to show how the totality of these examinations do not satisfy NEPA. As a result, Contentions 1-E and 2-E do not show a material dispute with the environmental analysis supporting the ERs conclusions or an issue that is material to the conclusions the NRC must make. 10 C.F.R. § 2.309(f)(1)(iv), (vi).

D. Contention 3-E Lacks an Adequate Factual Basis In Contention 3-E, NRDC argues that the 1989 SAMDA analysis is not sufficient to excuse Exelon from conducting a full SAMA analysis as required by 10 C.F.R. § 51.53(c)(3)(ii)(L). Petition at 22. However, the Commission has clearly stated that a site-specific consideration of alternatives to mitigate severe accidents was completed for Limerick, 62 See supra,Section II.A.3; see also Diablo Canyon, CLI-11-11, 74 NRC at __ (slip op. at 43);

SRM - SECY-11-0124; SRM-SECY-11-0089.

and need not be reassessed for license renewal. See GEIS at 5.4.1.5; 61 Fed. Reg. 28,467, 28,481 (June 5, 1996). NRDC itself recognizes that the Commission has stated that a SAMDA has been completed for Limerick. See Petition at 30-31; 31 n.9. Thus, NRDCs argument lacks an adequate basis and is inadmissible. 10 C.F.R. § 2.309(f)(1)(ii).

NRDC also claims that the 1989 Limerick SAMDA Analysis is not a SAMA analysis because it does not follow the NEI guidance. Petition at 21-22. But this claim is flawed. First, this NEI guidance post-dates the 1989 Limerick SAMDA Analysis, so the applicant could not have followed this guidance.63 Moreover, the NEI document is guidance, not a requirement.

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit One), ALAB-900, 28 NRC 275, 290 (1988)(noting that NUREGs and regulatory guides provide guidance for the Staff's review, but set neither minimum nor maximum regulatory requirements).64 While the NRC Staff recommends the use of the guidance,65 licensees are not required to follow the guidance in order to have a legally sufficient SAMA analysis, as NRDC suggests.66 Moreover, the Commission determined that the 1989 Limerick SAMDA Analysis was a site-specific severe accident mitigation alternatives analysis. 1996 SOC, 61 Fed. Reg. at 28,481. Thus, NRDCs claim that the 1989 Limerick SAMDA Analysis is legally insufficient as a SAMA analysis lacks an adequate basis.

63 The guidance was made available for use in August 2007. See Notice of Availability of the Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses, 72 Fed. Reg. 45,466 (Aug. 14, 2007).

64 See Id. at 45,467 (noting that the License Renewal Interim Staff Guidance recommending the NEI guidance on SAMAs provides a clarification of existing guidance with no additional requirements.).

65 See Id. at 45,466 (The staff finds that utilization of the guidance provided in NEI 05-01, Revision A, will result in improved quality in SAMA analyses and a reduction in the number of requests for additional information.).

66 Petition at 21-22 (NRC Staff has identified factors that must be included for a legally adequate SAMA analysis by adopting NEI-05-01 Rev. A (Severe Accident Mitigation Alternatives (SAMA) Analysis Guidance Document (Nov. 2005).) (emphasis added).

NRDC also argues that Exelon must provide some evidence and analysis to support its assertion that the 1989 FES Supplement is in fact a SAMA analysis within the meaning of the NRC Regulation. Petition at 31.67 However, Exelon has provided support for this assertion.

Namely, Exelon cites to the Commissions determination that the 1989 Limerick SAMDA Analysis provided an evaluation of severe accident mitigation design alternatives for Limerick, and that alternatives to mitigate severe accidents need not be reassessed for license renewal.

ER at 5-4 (citing Sec. 5.4.1.5 of the GEIS). NRDC asserts that the NRC is merely taking the Applicant at its word. Petition at 31 (citing Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 37 (2010)). However, this is not the case. Instead, the Applicant is taking the NRCs regulation at its word, i.e., that the 1989 Limerick SAMDA Analysis was a site-specific consideration of alternatives to mitigate severe accidents, and that pursuant to the plain language of 10 C.F.R. § 51.53(c)(3)(ii)(L), another SAMA analysis is not required for license renewal.68 Thus, NRDCs Contention 3-E lacks an adequate basis and is inadmissible.

67 Specifically, Exelon asserted that while a SAMA analysis was a Category 2 issue requiring plant-specific review, the NRC explicitly exempted plants for which an evaluation of alternatives to mitigate severe accidents was completed and included in a prior EIS or EIS supplement from this requirement. LGS is a plant that qualifies for this exemption because, as discussed in Section 4.20, an evaluation of severe accident mitigation design alternatives was completed in the 1989 Limerick SAMDA Analysis. ER at 5-4 (citations omitted).

68 See 10 C.F.R. § 51.53(c)(3)(iii)(L), which states that a SAMA analysis must be provided unless the staff has previously considered SAMAs for the applicants plant in an environmental impact statement or related supplement or in an environmental assessment. See also 72 Fed. Reg. 45,466 (Aug. 2007) A severe accident mitigation alternatives (SAMA) analyses is required as part of a license renewal application, if a SAMA analysis has not already been performed for the plant and reviewed by the NRC staff.) (emphasis added). As discussed above, a SAMDA analysis is a SAMA analysis prepared at the initial operating phase. See supra, n. 20.

E. The Board Should Not Waive the Commissions Regulations to Permit NRDCs Challenge to 10 C.F.R. § 51.53(c)(3)(ii)(L)

1. NRDC Has Not Filed a Waiver Petition NRDC appears to recognize that contentions 1-E, 2-E, and 3-E challenge NRC regulations and that a waiver would be needed in this proceeding. Petition at 25 n. 7;31 n. 9.

NRDC maintains that it has not sought a waiver because it is not yet a party to any adjudicatory proceeding.69 Id. at 25, n. 7. Further, NRDC argues that any determination that a regulation precludes any of NRDCs contentions must be held in abeyance until NRDC has been admitted to the proceeding as a party and has had an opportunity to pursue any necessary waiver petition. Id.

However, the Commission has frequently stated that petitioners with new and significant information [can] seek a waiver of the generic rule, pursuant to 10 C.F.R. § 2.335. See, e.g.,

Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449, 475 (2010) (emphasis added). Likewise, Boards have made clear that petitioners can seek waivers during the contention admissibility stage, before becoming a party. See, e.g., Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 360 (2006) (noting that any person may file a request for waiver under 10 C.F.R. § 2.335(b)). See also Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-08-26, 68 NRC 905, 929 (2008) (noting that if Petitioner wishes to challenge a generic determination in an NRC adjudicatory proceeding, it must seek and receive a waiver under 10 C.F.R. §2.335(b)).70 69 Petition at 25 n. 7 (Because NRC regulations specifically provide that only a party to an adjudicatory proceeding can seek a waiver,10 C.F.R. § 2.335, any determination that a regulation precludes any of NRDCs contentions must be held in abeyance until NRDC has been admitted to the proceeding as a party and has had an opportunity to pursue any necessary waiver petition.).

70 In fact, NRDCs party argument was raised in the Vermont Yankee license renewal proceeding, and was rejected by the Board in its ruling on contention admissibility. See Oral Arguments (continued. . .)

Thus, when contentions challenge certain NRC regulations, it is proper for a petitioner to contemporaneously submit a petition for waiver pursuant to 10 C.F.R. § 2.335(b) along with its petition to intervene. See Diablo Canyon, CLI-11-11, 74 NRC at __ (slip op. at 2) (petitioner sought waiver to allow it to litigate a proposed contention challenging a Commission regulation);

Watts Bar, CLI-10-29, 73 NRC __, __ (Nov. 30, 2010) (slip op. at 4) (same). Absent a waiver, the appropriate way to challenge the Commissions rules is by filing a rulemaking petition aimed at altering the GEIS and its accompanying regulations. Mass., 522 F.3d at 121, 125. Because NRDC chose not to submit a waiver petition, despite established case law, the Board should not admit Contentions 1-E, 2-E, and 3-E, which challenge Commission regulations. Likewise, the Board should not permit NRDC to belatedly file a waiver request, in light of the Commissions previous, clear pronouncements that directly speak to this issue.71

2. The Petition Does Not Contain Sufficient Information to Justify Waiving a Rule of General Applicability under the Commissions Millstone Standard Even if NRDC had sought a waiver to challenge NRC regulations in this proceeding under § 2.335, the information in the Petition would be insufficient to meet that standard. The Commission has held that to meet § 2.335, a petitioner must first make a prima facie showing that (i) the rule's strict application would not serve the purposes for which [it] was adopted; (ii) the movant has alleged special circumstances that were not considered, either explicitly or by necessary implication, in the rulemaking

(. . .continued)

Tr. at 173:6-174:7, 179:15-25, Entergy Nuclear Vermont Yankee (Vermont Nuclear Power Station), No.

50-271 (Aug. 1, 2006) (ADAMS Accession No. ML062210038)(arguing that only an admitted party to a proceeding can file a waiver); See Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 156 (2006), revd in part on other grounds, 65 NRC 371 (2007)

(noting that [i]n the hearing processpetitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule)(emphasis added).

71 The Staff notes that the term party is undefined in 10 C.F.R. § 2.4 and many other references to the term party in Part 2 also envision a petitioner to a proceedings, e.g. 10 C.F.R. § 2.314(b) (noting that a party may be represented by an attorney at law).

proceeding leading to the rule sought to be waived; (iii) those circumstances are unique to the facility rather than common to a large class of facilities; and (iv) a waiver of the regulation is necessary to reach a significant safety problem.

Millstone, CLI-05-24, 62 NRC at 559-60 (citations omitted). Moreover, The use of and in this list of requirements is both intentional and significant. For a waiver request to be granted, all four factors must be met. Id. at 560. The Petition does not contain information sufficient to meet any of these factors, let alone all four.

First, nothing in the Petition shows that applying 10 C.F.R. § 51.53(c)(3)(ii)(L) to this case would be contrary to the purposes for which the Commission adopted it. The purpose of 10 C.F.R. § 51.53(c)(3)(ii)(L) is to codify the Commissions determination that a plant that has previously considered alternatives to mitigate severe accidents in an EIS or supplement need not reassess severe accident mitigation for license renewal. See Diablo Canyon, CLI-11-11, 74 NRC at __ (slip op. at 31); GEIS at 5.4.1.5. The Commission has stated that to meet the first Millstone factor at a minimum, . . . the special circumstances must be such as to undercut the rationale for the rule sought to be waived. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-88-10, 28 NRC 573, 597 (1988). As discussed above, by simply focusing on the 1989 Limerick SAMDA analysis, the Petition ignores the totality of studies that underlay the Commissions conclusion in § 51.53(c)(3)(ii)(L). As a result, the Petition has not shown any evidence or circumstance that undermines the Commission finding that NEPA does not require license renewal applicants to conduct a second SAMA analysis if the Staff has already performed a similar evaluation in an earlier NEPA document.

Second, NRDC has not shown any circumstances that the Commission did not consider, either explicitly or implicitly, in its initial rulemaking. Millstone, CLI-05-24, 62 NRC at 560.

NRDC alleges that the Applicants SAMA analysis is inadequate because it does not consider (1) new potentially cost-beneficial SAMAs identified through other plants SAMA analysis, (2) additional accident scenarios, (3) updates to core damage frequency, (4) changing population,

(5) updated data on economic consequences, (6) updated understandings of evacuation speed, and (7) updated meteorology data. SAMA Declaration at 29, ¶ 49. But, in the 1996 SOC the Commission explicitly recognized that future SAMA analysis may uncover additional cost-beneficial SAMAs, likely procedural and programmatic fixes. 61 Fed. Reg. at 28,481.

Moreover, as stated above, the Commission expected the Staff to continue to study severe accidents and ways to mitigate the effects of those events. Id. Consequently, the Commission explicitly understood that the agency would continue to study severe accidents after the 1996 SOC, and that those studies might identify new cost-beneficial SAMAs and could also logically alter the NRCs knowledge of severe accident risk and scenarios at existing reactors. In fact, the NRC Staff asked the licensee to perform an IPEEE analysis after the 1989 Limerick SAMDA Analysis, and the Applicant submitted its IPEEE analysis in 1996, the Staff finished reviewing it in 2002, and the Applicant continues to update its probabilistic risk assessment for Limerick.72 Finally, fluctuating population densities in urban areas, corresponding changes in evacuation rates and economic damages, and new meteorological data, are all near-certainties. Thus, the Commission explicitly or implicitly considered the type of evidence NRDC offers to support the Petition when it promulgated § 51.53(c)(3)(ii)(L).

Third, the Petition does not raise an issue that is unique to Limerick. This factor of the Millstone test embodies the Commissions determination that rule making proceedings [are] the appropriate forum for settling basic policy issues. Restructuring of Facility License Application Review and Hearing Process, 37 Fed. Reg. 15,127, 15,129, 15,136 (July 28, 1972).

Consequently, generic challenges to regulations, which could apply to any facility, are outside the scope of NRC proceedings for reasons of fairness and efficiency. Millstone, CLI-05-24, 62 NRC at 559-60. Although the Petition rests on Limerick-specific information, the challenge 72 See supra, n. 26-28 and accompanying text; see also ER at 5-5.

raised by the Petition could be leveled at any facility for which the NRC Staff had already studied SAMAs in a prior NEPA document.73 New meteorological, demographic, economic, and evacuation data will be available for that facility by the time of license renewal. Moreover, the NRC will have further studied severe accidents generically and at other facilities in the intervening time, meaning that the agency will have likely identified new SAMAs and will have an updated understanding of severe accident progressions and risks. As a result, waiving the Commissions regulation in this case would create an exception that would necessarily swallow the rule in § 51.53(c)(3)(ii)(L). The rulemaking process, as opposed to a site-specific licensing proceeding, is the appropriate venue for such a challenge.

Last, the Petition does not raise a significant environmental issue within the meaning of the fourth Millstone factor.74 As discussed above, the NRC has conducted and reviewed numerous studies of severe accident mitigation at Limerick, including the IPE, the IPEEE, and CPI programs as well as the 1989 Limerick SAMDA Analysis. In the Pilgrim license renewal proceeding, the NRC staff explained that a SAMA analysis is a systematic search for potentially cost beneficial enhancements to further reduce nuclear power plant accident risk.75 Many 73 Although the 1996 SOC notes that Limerick, Watts Bar, and Comanche Peak need not conduct a SAMA analysis at license renewal, the conclusion in § 51.53(c)(3)(ii)(L) could also apply to future plants the Commission licenses under part 52 or second license renewals under Part 54. 10 C.F.R. § 54.31(d).

As a result, this regulation, and NRDCs challenge to it, does not just govern a small class of facilities.

74 The fourth Millstone factor requires the proponent of waiver to show that waiver of the regulation is necessary to reach a significant safety problem. Millstone, CLI-05-24, 62 NRC 551; 559-60.

As a result, Millstone could be read to indicate that the Commission will not waive its regulations for environmental issues. But, the fourth Millstone factor arose from the Commissions determination that spending time and resources on matters that are of no substantive regulatory significance would be inconsistent with its statutorily mandated responsibilities. Seabrook, CLI-88-10, 28 NRC at 597, 599.

Because environmental issues can certainly qualify as matters of regulatory significance, the Staff believes that the fourth Millstone factor should be liberally construed to permit waiver of NRC regulations in order to consider significant environmental, as well as safety, issues.

75 Affidavit of Dr. Nathan E. Bixler and Dr. S. Tina Ghosh in Support of the NRC Staffs Answer in Opposition to Pilgrim Watchs Request for Hearing on Post Fukushima SAMA Contention, at 4-5 (June 6, 2011) (ADAMS Accession No. ML111570502).

facilities, including Limerick, have previously satisfied the NRCs Generic Letter 88-20 requirements through completion of an individual plant examination (IPE) and individual plant examination for external events (IPEEE) to search for any plant vulnerabilities. Any remaining potentially cost-beneficial enhancements uncovered in the SAMA analysis performed for license renewal could only expect to further reduce the risk from a plant that had no identified safety vulnerabilities. ER at 5-6. As discussed above, the Applicant submitted an IPEEE for Limerick in 1995 and an IPE in 1992.76 Moreover, the NRC has continued to look for ways to mitigate the impacts of severe accidents through its response to the events of September 11, 2001, the NRCs ongoing review of the Fukushima events, and the generic updated level 3 PRA described in SRM-SECY-11-0089. In light of the numerous NRC studies that already addressed and continue to address severe accident mitigation, § 51.53(c)(3)(ii)(L) does not prevent the Commission from studying an issue of regulatory significance. Therefore, the Petition also does not meet the fourth Millstone factor.

As a result, even if NRDC had sought a waiver of Commission regulations, based on the information in the Petition and supporting affidavits, NRDC has not made a prima facie showing that met any, let alone all, of the Millstone factors. Therefore, the Board should not further consider Contentions 1-E, 2-E, and 3-E in this proceeding. 10 C.F.R. § 2.335(c).

F. Contention 4-E Does Not Raise a Material Dispute with the Application and Contains Challenges to the Commissions Regulations 76 See supra, n. 26-28 and accompanying text; ER at 5-6.

1. Contention 4-E Does Not Raise a Material Dispute with the Application Contention 4-E alleges that the Applicants environmental report (§ 7.2) fails to adequately consider the no action alternative in violation of 10 C.F.R. §§ 51.45(c), 51.53(c)(2) and 51.53(c)(iii).77 Petition at 23. NRDC asserts that Contention 4-E is a contention of omission and maintains that the ER omits an analysis that considers and balances the environmental effects of the proposed action and the alternative of No Action. Id. at 23, 31. NRDC alleges that the ER unreasonably and arbitrarily limits its analysis of the No Action alternative in a manner that fails to comport with NRC regulations. Id. at 23. NRDC alleges further that the ER violates 40 C.F.R. § 1502.14(d)78 and 10 C.F.R. Part 51, Subpart A, Appendix A, § 4, by improperly and illogically narrowing discussion of the No Action alternative.79 Id. at 23. NRDC contends the no-action alternative should encompass the expected growth in demand side management and renewable energy sources and should quantify and balance the environmental costs of those consequences [denying relicensing now] against the environmental costs of relicensing the Limerick reactors, including the properly analyzed cost of a severe accident. Id. at 24. NRDC states that the Declaration of Christopher E. Paine supports these bases for Contention 4-E. Id.

77 NRDC cites 10 C.F.R. § 51.53(c)(iii) as one of the bases for its contention. No such section exists in NRC regulations. The Staff believes that NRDC intended to cite 10 C.F.R. § 51.53(c)(3)(iii) and will treat the Petition as citing that standard. However, that standard, which addresses consideration of alternatives for reducing adverse impacts of operation for Category 2 issues is irrelevant to NRDCs claims regarding the no-action alternative on which Contention 4-E is based. Further, the Applicant addresses the requirements of that section § 4 of the ER and the Petitioner does not identify any dispute with that analysis. E.R. § 4.

78 40 C.F.R. § 1502.14(d) requires an agency preparing an EIS to consider the no-action alternative. Petition at 23. However, 40 C.F.R. § 1502.14 has not been expressly adopted into the NRCs Part 51 regulations implementing NEPA. Thus, it is not binding on the NRC or its licensees. 10 C.F.R. § 51.10(a); North Anna, CLI-07-27, 66 NRC at 222 n.21. Nonetheless, the NRC regulations implementing NEPA require both the NRC and the Applicant to consider the no-action alternative. 10 C.F.R. Part 51, Subpart A, Appendix A, § 4; 10 C.F.R. § 54.23; GEIS at 8.1.

79 Appendix A, § 4 governs the Staffs preparation of the EIS, but does not specify requirements the Applicant must meet in an ER.

at 24; Declaration of Christopher E. Paine of the Natural Resources Defense Council, (Nov. 22, 2011) (ADAMS Accession No. ML11326A322) (Paine Declaration).80 In his Declaration, Mr. Paine argues that the ER does not adequately consider the environmental consequences of the No Action alternative because the applicant misapplies the GEIS purpose and need to the no-action alternative. Paine Declaration at 2, ¶ 4. Mr. Paine states that the analysis of the No-Action alternative does not involve consideration of alternatives that would equivalently satisfy the purpose and need for the proposed action, and therefore the required NEPA consideration of No Action cannot reasonably be equated with replacing the generating capacity of LGS. Id. at 3, ¶ 5. Mr. Paine then alleges that the no-action alternative necessarily involves a broader assessment of the likely evolution of electricity system resources over time in response to an NRC determination not to relicense Limerick and the assessment should include an informed projection of the likely portfolio of PJM electricity system resources available in the region served by LGS beginning 13 and 18 years hence that could reasonably be expected to supply the energy services currently supplied by LGS. Id. at 3-4, ¶¶ 6-7. Moreover, Mr. Paine claims without factual support that the Applicant must analyze all forms of Demand Side Management (DSM), waste heat co-generation, combined heat and power, and distributed renewable energy resources in addition to the alternatives put forth in the ER. Id. at 4, ¶ 6.

But no such requirements exist in NRC regulations. Nor does NEPAs rule of reason require an applicant to discuss every conceivable permutation of a no-action alternative in its ER for a license renewal of a power reactor. NRDC provides no regulatory basis or sufficient 80 Mr. Paine states that he direct[s] the Nuclear Program of the Natural Resources Defense Council (NRDC) where he has been continuously employed for the past 20 years. Paine Declaration at

1. It appears that Mr. Paines experience is primarily in nuclear arm control and non-proliferation issues.

See Id. at 1-2.

facts for alleging that the Applicant is required to expand its analysis of the no-action alternative in the ER to include the speculative portfolio of alternatives put forth by the NRDC. As a result, NRDC does not provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact and does not provide sufficient facts or law to support its position, as required by 10 C.F.R. § 2.309(f)(1)(iv), (v), (vi). Moreover, because the Applicants ER addresses the no-action alternative in sufficient detail, the Staff opposes admission of Contention 4-E.

a. Legal Standards for Consideration of the No-Action Alternative for License Renewal An applicant for a license renewal is required to prepare an ER which, among other things, must discuss the environmental impacts of its proposed action and compare these impacts to alternatives, including the no-action alternative. 10 C.F.R. § 51.45; 10 C.F.R. 51.53(c)(2); 10 C.F.R. Part 51, Subpart A, Appendix A, § 4;81 GEIS at 8.1;82 see also Louisiana Energy Services (National Enrichment Facility), CLI-04-03, 59 NRC 10, 22 (2004) (ER and EIS should include discussion of no-action alternative). But an ER for a license renewal application is not required to include discussion of need for power83 or the economic costs and benefits of the proposed action or alternatives. 10 C.F.R. § 51.53(c)(2); § 51.53(c)(3)(i). The NRC Staff uses the ER to aid its analysis of alternatives in the SEIS, including the no-action alternative.

81 Section 4 applies to the Staffs preparation of an EIS and states only that the alternative of no action shall be discussed. Id. Although Section 4 of Appendix A requires that an EIS for nuclear power plant construction or siting include consideration of the potential impact of conservation measures in determining the demand for power, this requirement does not apply to license renewals of nuclear power reactors. 10 C.F.R. Part 51, Subpart A, Appendix A, § 4.

82 The intent of such a consideration is to enable the agency to consider the relative environmental consequences of an action given the environmental consequences of other activities that also meet the purpose of the action, as well as the environmental consequences of taking no action at all. GEIS at 8.0.

83 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28467, 28468-73 (June 5, 1996) (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.)

See 10 C.F.R. § 51.45(b); 10 C.F.R. Part 51, Subpart A, Appendix A, § 4. Accordingly, the discussion of alternatives in an ER must be sufficiently complete to aid the Commission in developing and exploring, pursuant to section 102(2)(E) of NEPA, appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources. 10 C.F.R. § 51.45(b)(3).

But, there is no requirement for an applicant to look at every conceivable alternative to its proposed action. NEPA only requires consideration of reasonable alternatives (i.e., those that are feasible and nonspeculative). Nuclear Management Co., LLC (Monticello Nuclear Generating Plant), LBP-05-31, 62 NRC 735, 753 (2005) (citing City of Carmel-by-the-Sea v.

Department of Transportation, 123 F.3d 1142, 1155 (9th Cir. 1997); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-91-2, 33 NRC 61, 65 (1991)). Specifically, the extent of the no-action discussion is governed by a rule of reason and the discussion need not be exhaustive or inordinately detailed. Louisiana Energy Services, LP (Claiborne Enrichment Center (CEC)), CLI-98-3, 47 NRC 77, 97 (1998) (internal cites omitted); see also Hydro Resources, Inc., CLI-01-04, 53 NRC 31, 54 (2001); Friends of Southeasts Future v.

Morrison, 153 F.3d 1059, 1065 (9th Cir. 1998) (merely because a no action proposal is given a brief discussion does not suggest that it has been insufficiently addressed). Accordingly, an applicant may cross-reference other portions of an impact statement to identify the impacts of a no-action alternative rather than separately re-enumerating the same environmental costs and benefits.84 Louisiana Energy Services, LP, CLI-98-3, 47 NRC at 97; Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 259-260 (2007).

84 Instead of re-enumerating the CEC's environmental costs, and labeling them benefits of no-action, the no-action discussion simply cross-references an earlier FEIS chapter on environmental consequences, and declares that all of the impacts described there would not occur if the license were denied. The referenced chapter, in turn, details the expected adverse environmental impacts of the CEC's construction and operation. Louisiana Energy Services, LP, CLI-98-3, 47 NRC at 97.

The GEIS provides further guidance on analyzing alternatives for license renewal applications. To determine alternatives to license renewal, the GEIS defines the purpose and need of the action as providing an option that allows for power generation capability beyond the term of a current nuclear power plant operating license to meet future system generating needs as such needs may be determined by state, utility, or federal regulators. GEIS at 8.1; Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 1996 SOC, 61 Fed. Reg. at 28,472. Accordingly, the GEIS identifies the no-action alternative for license renewal as denial of a renewed license. GEIS at 8.2. Because denial of a license renewal as a power generating capability may lead to a variety of potential outcomes, the GEIS states that the no-action alternative should include selection of other electric generating sources to meet energy demands or conservation measures and/or decisions to import power, or a combination of these different outcomes. Id . Therefore, the environmental impacts of such resulting alternatives would be included as the environmental impacts of the no-action alternative in addition to the facility decommissioning and its associated impacts. Id.

Yet, the GEIS recognizes that there are limits to consideration of the no-action alternative. While many methods are available for generating electricity, and 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 this analysis.

GEIS at 8.1. For that reason, the NRC 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. Id. This determination reflects that NEPA does not require analysis of every possible permutation of alternatives, rather, it only requires analysis of those that are feasible and non-speculative. Monticello, LBP-05-31, 62 NRC at 753 (internal cites omitted). Additionally, some parts of the no-action alternative analysis are reserved for state policy makers. The GEIS explains, It is important to note that

NRC's consideration of the no-action alternative does not involve the determination of whether any power is needed or should be generated. Id. at 8.1. Rather, [t]he decision to generate power and the determination of how much power is needed are at the discretion of state and utility officials. Id.

b. NRDC Does Not Establish a Material Dispute with the Applicant Under the contention admissibility standards, a contention must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact, identify each dispute or failure, and provide supporting reasons. 10 C.F.R. § 2.309(f)(vi).

Although NRDCs Contention 4-E alleges that the Applicant has failed to adequately address the no-action alternative, NRDC does not demonstrate that the Applicant has failed to meet any statutory or regulatory requirement nor does NRDC provide sufficient supporting reasons to substantiate its claims.

The Applicant discussed the no-action alternative in its ER (ER at §§ 7.1, 7.2, 8.0) and the Staff will discuss the no-action alternative in the SEIS, as required by the regulations.85 But neither the regulations cited by NRDC nor NEPA case law establish a requirement for a license renewal applicant to expand its analysis of the no-action alternative to project the future system resources portfolio of a regional transmission organization such as PJM or to include every conceivable permutation of potential power sources or energy efficiency measures. Pilgrim, CLI-10-11, 71 NRC at 316 (recognizing that NEPA does not require infinite study); Monticello, LBP-05-31, 62 NRC at 753 (no requirement for applicant to address every conceivable option).

Moreover, NRDC does not provide the requisite expert support or facts to support its assertion that the no-action alternative is defective as required by 10 C.F.R. § 2.309(f)(1)(vi). Rather, NRDC cursorily identifies a list of additional alternatives and alleges that the Applicant should 85 10 C.F.R. Part 51, Subpart A, Appendix A, § 4; GEIS at § 8.0.

necessarily expand its analysis, See Paine Declaration at 3-4, ¶ 6-7. but provides no support, reasoned basis, or explanation for why these particular alternatives must be included or why the applicant is required to expand its analysis. USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 471 (2006) (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 to establish a material dispute.) Therefore, NRDC fails to establish a material dispute with the Applicant as required by 10 C.F.R. § 2.309(f)(1)(vi).

c. The NRDC Does Not Show That the ER Inappropriately Considers Generating Capacity in the Alternatives Analysis NRDC first alleges that the Applicant inappropriately limits its consideration to replacement generating capacity as part of the no-action alternative. See Paine Declaration at 3, ¶ 5. Mr. Paine claims that the Applicant arbitrarily limits and unfairly conflates consideration of the No Action alternative with the same set of alternatives it deems reasonable for analysis as single discrete electric generation sources. Id. at 3-4, ¶ 4. Moreover, Mr. Paine alleges, the analysis of the No-Action alternative does not involve consideration of alternatives that would equivalently satisfy the purpose and need for the proposed action, and therefore the required NEPA consideration of No Action cannot reasonably be equated with replacing the generating capacity of LGS or limited to analysis of this particular problem. Id. at 3, ¶ 5.

However, this particular claim is a matter of semantics and does not identify a genuine dispute with the application, which sufficiently addresses the no-action alternative. The no-action alternative, denial of a renewed license, results in removal of base-load nuclear power from the grid and therefore likely requires other electric generating sources, power purchases, or conservation to replace it. See GEIS at 8.1, 8.2. As NRDC puts it, the electric system resources needed for the no-action alternative in this case are those that could reasonably be expected to supply the energy services currently supplied by LGS. See Paine Declaration at 4,

¶ 7. Accordingly, regardless of whether the alternatives are characterized as meeting the Applicants purpose and need, it is not unreasonable to assume for the purpose of considering the no-action alternative that the power would need to be replaced in some fashion.86 See GEIS at 8.2. Furthermore, consideration of the no-action alternative does not take place in a void, as energy sources considered as alternatives are also likely to be possible results of the no-action alternative. As the GEIS recognizes, the environmental impacts of alternative energy sources such as those as analyzed in Section 8.3 of the GEIS are equally applicable to the no-action alternative in that the alternatives analyzed in this section are all possible actions resulting from denial of a renewed license. Id.

In the ER, the Applicant addresses the no-action alternative, stating that the no-action alternative refers to a scenario in which NRC does not renew the LGS operating licenses. ER at § 7.1, 7-3. The Applicant notes that [u]nlike the proposed action, denying license renewal does not expressly provide a means of meeting future electric system needs and unless replacement generating capacity is provided as part of the no-action alternative, a large amount of base-load generation would no longer be available. Id. The Applicant then notes that replacement generating capacity could be accomplished by building new base-load power, purchasing power, or by reducing power needs through demand side reduction, which the ER analyzes in Section 7.2.1 and 7.2.2. ER at § 7.1, 7-3. The Applicants consideration of these options comports with the GEIS and reasonably addresses the potential for the no-action alternative. See GEIS at § 8.2. The ER analyzes several possible energy alternatives and 86 The GEIS recognizes that implementation of the no action alternative, denial of a renewed license, is likely to lead to other measures such as the selection of other electric generating sources or conservation measures and/or decisions to import power. GEIS at 8.2. However, because the NRC does not consider need for power for license renewal applications, consideration of potential changes to any need for power is left to the states. 10 C.F.R. § 51.53(c)(2); 1996 SOC, 61 Fed. Reg. at 28468-69.

For this reason, the statement of purpose and need for license renewal is only to provide an option that allows for power generation. GEIS at 8-1.

demand side management (DSM) to consider the potential for replacing or contributing to the replacement of base-load power. Id. at § 7, § 8.1. Additionally, in Section 8 of the ER, the Applicant provides a table that compares the impacts discussed in Section 7 of the ER as possible results of the no-action alternative. Id. at § 8.0, 8 8.8.

Thus, the ER reasonably discusses the no-action alternative and provides discussion and analyses of a variety of alternatives. The Applicants use of its analyses of other alternatives to inform its analysis of the no-action alternative is appropriate because under Commission direction, such consideration of the no-action alternative is acceptable. The Applicant is not required to re-enumerate the environmental costs and benefits for the no-action alternative. See Louisiana Energy Services, CLI-98-3, 47 NRC at 97; Vogtle, LBP-07-3, 65 NRC at 237; GEIS at § 8.2. Consequently, NRDC fails to meet the standard in 10 C.F.R. § 2.309(f)(1)(vi) because the ER sufficiently analyzes the no-action alternative and NRDC does not identify a material dispute with the analyses in the ER.

d. NRDC Fails to Provide Basis or Support for its Claim that Further Analysis and Alternatives Must Be Included in the ER NRDC next alleges that the no-action alternative should be expanded to reflect the likely evolution of electricity system resources in the areas of the PJM Interconnection such that it necessarily involves making an informed projection of the likely portfolio of PJM electricity system resources that includes all forms of demand side management, waste heat co-generation, combined heat and power, and distributed renewable energy resources. Paine Declaration at 3-4, ¶¶ 6-7. To the extent that an intervenor challenges an analysis of alternatives in the ER, it is the burden of the intervenor to show the significance and materiality of any mistake or omission, as boards do not sit to flyspeck environmental documents or to add details or nuances. Exelon Generation Company, LLC (Early Site Permit for Clinton ESP),

CLI-05-29, 62 NRC 801, 811 (2005). Moreover, where an expert opinion merely states a

conclusion (e.g., the application is deficient, inadequate, or wrong) without providing a reasoned basis or explanation for that conclusion, that opinion is inadequate to establish a material dispute with the application. USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 471 (2006).

But Mr. Paines conclusory statement of what is necessarily required does not demonstrate the significance or materiality of any omission. As is the case here, [i]f the ER (or EIS) on its face comes to grips with all important considerations nothing more need to be done. Id. NRDC does not make any attempt to demonstrate that inclusion of such a projection or other speculative energy alternatives in the no-action alternative is required, particularly where the Applicant already provides sufficient consideration, comparison, and analysis of alternatives in the ER. Nor does NRDC provide any evidence that a different version of the no-action alternative would be viable. Association of Public Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1188 (9th Cir. 1997) (no-action proposal by plaintiff must be a viable alternative); GEIS at 8.1 (sources are limited to those that are technically feasible and commercially viable.).

NRDC does not demonstrate that the ER is required to include the specific alternatives it puts forth. Instead, NRDC offers only the bare assertions of Mr. Paine to support why these particular alternatives should be included. As the GEIS points out, many methods are available for generating electricity, so a huge number of combinations or mixes can be assimilated to meet a defined generating requirement. GEIS at 8.2. But NEPAs rule of reason does not require such expansive consideration. Nor, on their face, do these proposed alternatives appear to be significant or material for further consideration in the ER and Mr. Paine provides no basis or explanation for such claims, only unsupported conclusions..

For example, Mr. Paine alleges the Applicant must include an analysis of combined heat and power as well as waste-heat cogeneration. Paine Declaration at 4, ¶ 7. But these

options service other purposes and needs beyond those served by LGS (i.e., providing heat to other end users). Moreover, Mr. Paine makes no showing that these resources are commercially viable in the PJM Interconnection. See GEIS at 8.1 (limiting analysis to those resources that are technically feasible and commercially viable to make analysis meaningful).

Additionally, Mr. Paine also does not present any evidence that distributed renewable resources are commercially viable in the PJM Interconnection such that these resources would suffice to generate base-load power. See Paine Declaration at 4, ¶ 7; ER, § 7, § 8; GEIS at 8.2. Finally, Mr. Paines allegation that the ER omits consideration of demand side management is incorrect, as the Applicant discusses and considers the use of demand side management in the ER. ER at § 7, 7 7-17. Mr. Paine does not indicate why the Applicants analysis of any of these resources is inadequate or that any other such resources are technically feasible and commercially viable. GEIS at 8.2. Because Mr. Paine does not present a viable no-action alternative and does not support his claims, NRDC fails to establish a material dispute with the Applicant and fails to provide support for their claim as required by 10 C.F.R. § 2.309(f)(1)(vi).

NRDC also fails to identify a material dispute with the Applicants analysis of the potential development of electricity resources. Although Mr. Paine alleges that the Applicant must make a projection of the likely evolution of electricity system resources in the areas of the PJM, see Paine Declaration at 4, ¶ 5, the Applicant does so in its ER in Sections 7 and 8 by analyzing various electricity alternatives and their viability. Other than to allege without support that the no-action alternative must include the expected growth in demand side management and renewable energy sources, Petition at 24, NRDC does not identify any dispute with the ERs analysis of such resources and the possible implementation and development of such resources in the absence of the LGS generating capacity. See ER at § 7, § 8. The discussion and analyses in the ER include both demand side management and various renewable energy resources and provide sufficient detail as to possible outcomes for energy development in the

PJM interconnection in the absence of a license renewal, including generating capacity, feasibility of alternatives, and environmental impacts. See id. Other than to argue in a conclusory fashion that the Applicant must model a likely evolution of electricity resources, NRDC does not identify a material dispute with the Applicants analysis, does not provide support for Mr. Paines claim, and consequently does not meet the contention admissibility standards in 10 C.F.R. § 2.309(f)(1)(vi).

e. NRDC Does Not Show the Applicant Inadequately Analyzed Demand Side Management NRDC also contends that the Applicant wrongly asserts that it did not have the ability to implement DSM as a wholesale generator and therefore does not need to consider electricity demand reduction through DSM. Paine Declaration at 4-5, ¶ 8. Specifically, Mr. Paine alleges that Exelon Energy, as distinguished from Exelon Generation Company, LLC (the Applicant),

does provide retail electric service to customers. Therefore, he states Exelon Generation Company, LLC, appear[s] to have a direct business connection and depth of knowledge to address DSM and therefore cannot claim a professed lack of expertise. Id. at 5-6, ¶¶ 9-11. As a consequence, Mr. Paine contends, the Applicant must further develop its analysis of DSM.

See id at 6, ¶ 11. Mr. Paines only support for this claim is a marketing webpage on the Applicants website. Id. at 5, ¶ 9. Mr. Paines assertions are unpersuasive for several reasons.

First, Mr. Paines claims regarding the Applicants business structure appear unfounded.

Exelon Energy is a retail energy marketer that exists to sell power in Pennsylvania under the Commonwealths retail electricity choice program.87 While Exelon Energy does provide alternative energy products, it does not appear to be required to serve any load or to provide 87 See Pennsylvania Energy Provider and Energy Services, http://www.exelonenergy.com/aboutus/areas/Pages/Pennsylvania.aspx (last visited Dec. 12, 2011).

DSM services.88 The alternative energy products offered by Exelon Energy that Mr. Paine appears to be alluding to are emissions-free energy certificates, renewable energy certificates, and Green e-certificated renewable energy certificates,89 which are not the same as providing alternative energy. Moreover, the Exelon Energy website neither indicates that it provides DSM services nor that it provides renewable electricity, merely the renewable energy credits that either come from Exelons portfolio or are purchased from other providers. Searches for DSM, demand-side management, conservation, and efficiency on the Exelon Energy website returned no results. None of the evidence that Mr. Paine cites in his Declaration nor further research into this claim establishes that the Applicant could implement demand side management in the PJM. In addition to undermining the claim that Exelon Energy could implement DSM, this information underscores Mr. Paines lack of expertise in this area and his failure to provide support for his allegations.90 Second, regardless of whether the Applicant could implement DSM or not, the Applicant explicitly addresses DSM programs in § 7.2.1.7 of the ER and analyzes the viability of DSM in the LGS service area to determine whether DSM could reasonably be expected to supply the energy services currently supplied by LGS, as Mr. Paine alleges. See ER at § 7.2.17., Paine Declaration at 4, ¶ 7. Consequently, Mr. Paines claim that the ER lacks this analysis is unfounded. Paine Declaration at 4. The Applicant analyzes DSM and its potential as an energy alternative and concludes that DSM is not a viable option for supplying the base-load electricity currently supplied by LGS. ER at 7-17. NRDC does not identify any dispute with the 88 See Energy Products, Programs, and Pricing, available at http://www.exelonenergy.com/products/epp/Pages/default.aspx (last visited Dec. 12, 2011).

89 Id.

90 Mr. Paines curriculum vitae and Declaration do not appear to indicate that he is an expert in electricity markets. See Paine Declaration at 1-2, 8-9.

Applicants existing analysis of DSM in its ER or demonstrate why the analysis provided by the Applicant is inadequate. Consequently, NRDC fails to establish a genuine dispute with the Applicant under 10 C.F.R. § 2.309(f)(1)(vi) and the contention should be denied on this basis.

2. Severe Accident Analysis Is Outside the Scope of the NEPA Review NRDC also claims that the properly analyzed cost of a severe accident must be included and balanced in the no-action alternative and that the ER and EIS should present a spectrum of potential releases and their effects along the lines of an analysis NRDC performed for Indian Point. Petition at 23; Paine Declaration at 6, ¶12. To the extent that NRDC is claiming that the environmental costs of a severe accident must be analyzed in the ER or EIS, this claim is outside the scope of litigation in NRC proceedings because the Commission has codified the determination that the impacts of severe accidents will be small for all facilities in 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1.

Specifically, the NRC reached a generic conclusion that the probability-weighted environmental impacts of severe accidents would be Anot significant,@ or Asmall.@ See GEIS at 5.3.3.1. The GEIS for license renewal provides a generic evaluation of severe accident impacts and the technical basis for the NRCs conclusion that the probability-weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to groundwater, and societal and economic impacts from severe accidents are small for all plants.

Pilgrim, CLI-10-11, 71 NRC at 316. Accordingly, the severe accident analysis provides a prediction of environmental impacts of severe accidents for all plants. Id. 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. Id. Consequently, NRDCs claim that environmental costs of a severe accident must be analyzed is outside the scope of litigation in this proceeding.

CONCLUSION Contentions 1-E, 2-E, and 3-E all bring SAMA-related challenges, but because the NRC has already conducted a severe accident mitigation analysis for this facility, under § 51.53(c)(3)(ii)(L), the Commission has determined that no further study of that issue is required under NEPA. NRDC has not sought a waiver to challenge this regulation or attempted to challenge the rationale that underlies that provision. Contention 4-E does not raise a material dispute with the application because the application actually contains the information Contention 4-E asserts is missing. NRDC has failed to demonstrate that NEPA requires more analysis supporting the no-action alternative. As a result, NRDC has not proffered an admissible contention, and the Petition should be denied.

Respectfully submitted,

/Signed (electronically) by/

Maxwell C. Smith Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-2346 E-mail: maxwell.smith@nrc.gov Date of signature: December 21, 2011 Executed in Accord with 10 CFR 2.304(d)

Catherine E. Kanatas Counsel for NRC Staff U.S. Nuclear Regulatory Commission (301) 415-2321 catherine.kanatas@nrc.gov

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

)

EXELON GENERATION COMPANY, LLC ) 50-352-LR/ 50-353-LR

)

(Limerick Generating Station, Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFFS ANSWER TO NATURAL RESOURCES DEFENSE COUNCILS PETITION TO INTERVENE AND NOTICE OF INTENTION TO PARTICIPATE in the above captioned proceeding have been served upon the following by the Electronic Information Exchange, this 21st day of December, 2011:

William J. Froehlich, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Office of the Secretary of the Commission Mail Stop: T-3F23 Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 hearingdocket@nrc.gov William.Froehlich@nrc.gov Dr. Michael F. Kennedy U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Office of Commission Appellate Adjudication Mail Stop: T-3F23 Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 ocaamail@nrc.gov Michael.Kennedy@nrc.gov Dr. William E. Kastenberg Exelon Generation Company, LLC Atomic Safety and Licensing Board 4300 Warrenville Road Mail Stop: T-3F23 Warrenville, IL 60555 U.S. Nuclear Regulatory Commission J. Bradley Fewell, Deputy General Counsel Washington, DC 20555-0001 Bradley.Fewell@exeloncorp.com William.Kastenberg@nrc.gov

Morgan, Lewis & Bockius LLP Geoffrey H. Fettus 1111 Pennsylvania Avenue, N.W. Natural Resources Defense Counsel Washington, DC 20004 1152 15th Street NW Alex S. Polonsky, Esq. Washington, DC 20005 apolonsky@morganlewis.com gfettus@nrdc.org Kathryn M. Sutton, Esq.

ksutton@morganlewis.com

/Signed (electronically) by/

Maxwell C. Smith Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1246 E-mail: maxwell.smith@nrc.gov Date of signature: December 21, 2011