ML12107A406

NRC Staff'S Notice of Appeal of LBP-12-08

ML12107A406
Person / Time
Site:	Limerick
Issue date:	04/16/2012
From:	Catherine Kanatas NRC/OGC
To:	NRC/OCM
SECY RAS
References
RAS 22269, 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01, LBP-12-08
Download: ML12107A406 (28)

Text

April 16, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

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

)

(Limerick Generating Station, Units 1 and 2) )

)

NRC STAFFS NOTICE OF APPEAL OF LBP-12-08 Pursuant to 10 C.F.R. § 2.311(a) and (d), the Staff of the Nuclear Regulatory Commission files this Notice of Appeal of the Atomic Safety and Licensing Boards Memorandum and Order, dated April 4, 2012, which found standing and admitted for litigation in the above-captioned proceeding a contention proffered by the Natural Resources Defense Council. Attached is a brief supporting this appeal.

Respectfully submitted,

/Signed (electronically) by/

Catherine E. Kanatas Counsel for NRC Staff Dated at Rockville, Maryland this 16th day of April, 2012

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

)

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

)

(Limerick Generating Station, Units 1 and 2) )

)

NRC STAFFS APPEAL OF LBP-12-08 Maxwell C. Smith Catherine E. Kanatas Lauren Woodall Counsel for NRC Staff April 16, 2012

TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ........................................................................................................... ii INTRODUCTION .......................................................................................................................... 1 BACKGROUND AND PROCEDURAL HISTORY ......................................................................... 2 STANDARD OF REVIEW ............................................................................................................. 5 ARGUMENT ................................................................................................................................. 5 I. The Boards Order Contravenes 10 C.F.R. § 2.335 and Commission Precedent that Requires a Party to Seek a Waiver When Claiming that New and Significant Information Challenges a Generic Commission Regulation ................................................................. 5 II. Even if Petitioner had Submitted a Rule Waiver Petition, the Admitted Contention Does Not Raise a Material Challenge to the Commissions Regulation that Only Requires One SAMA Analysis for a Facility ................................................................................... 10 III. The Board Applied an Incorrect Test for Assessing the Significance of New Information ...................................................................................................................... 16 CONCLUSION ............................................................................................................................ 19

-ii-TABLE OF AUTHORITIES Page JUDICIAL DECISIONS Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) ........................................... 17 ADMINISTRATIVE DECISIONS Commission Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3),

CLI-08-17, 68 NRC 231 (2008). .................................................................................................... 5 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-05-24, 62 NRC 551 (2005) ............................................................................................... 7, 10 Entergy Nuclear Vermont Yankee LLC and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13 (2007) ..........................passim Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

CLI-01-17, 54 NRC 3 (2001) ................................................................................................passim Luminant Generation Company LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), CLI-12-07, 75 NRC __ (Mar. 16 2012) ................................................... 16, 17, 18 NextEra Energy Seabrook, LLC (Seabrook Station, Units 1),

CLI-12-05, 75 NRC __ (Mar. 8, 2012) ........................................................................................ 14 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-06-03, 63 NRC 19 (2006) ..................................................................................................... 17 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-04-4, 59 NRC 31 (2004) ......................................................................................................... 7 Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 2),

CLI-10-29, 72 NRC 556 (2010) ............................................................................................... 8, 15 Union Electric Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2),

CLI-11-05, 74 NRC __ (Sept. 9, 2011) ....................................................................................... 16 Atomic Safety and Licensing Board Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),

LBP-06-23, 64 NRC 257 (2006) ................................................................................................ 6, 7 Entergy Nuclear Vermont Yankee LLC and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131 (2006) ................................ 7

-iii-Atomic Safety and Licensing Appeal Board Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3),

ALAB-216, 8 AEC 13 (1974) ......................................................................................................... 7 REGULATIONS 10 C.F.R. § 2.206.......................................................................................................................... 7 10 C.F.R. § 2.309(f)(1)(iv), (vi) .............................................................................................. 10, 11 10 C.F.R. § 2.311...................................................................................................................... 1, 5 10 C.F.R. § 2.311(d)(1) ................................................................................................................. 5 10 C.F.R. § 2.335.................................................................................................................passim 10 C.F.R. § 2.335(a) ............................................................................................................. 6, 7, 9 10 C.F.R. § 2.335(b) ..................................................................................................................... 6 10 C.F.R. § 2.802.......................................................................................................................... 7 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1 .........................................................passim 10 C.F.R. § 51.20(b)(2) ............................................................................................................... 11 10 C.F.R. § 51.53(b) ..................................................................................................................... 8 10 C.F.R. § 51.53(c)...3 10 C.F.R. § 51.53(c)(3) ............................................................................................................. 3, 9 10 C.F.R. § 51.53(c)(3)(ii)(L) ................................................................................................passim 10 C.F.R. § 51.53(c)(3)(iv) ...................................................................................................passim 10 C.F.R. § 51.71(d) ..................................................................................................................... 3 10 C.F.R. § 51.95(c) ................................................................................................................. 3, 9 10 C.F.R. § 54.17(c) ................................................................................................................... 13 STATUTES 42 U.S.C. § 4321 .......................................................................................................................... 3

-iv-MISCELLANEOUS Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996) ....................................................................................passim Grand Gulf Nuclear Station, Applicants Environmental Report, Attachment E .......................... 15 Licenses, Certifications and Approvals for Nuclear Power Plants, 72 Fed. Reg. 49,352 (Aug. 28, 2007) ......................................................................................... 16 Nuclear Energy Institute; Denial of Petition for Rulemaking, 66 Fed. Reg. 10834 (June 21, 2001) .......................................................................................... 13 NUREG-0974 Supplement, Final Environmental Statement Related to Operation of Limerick Generating Station, Units 1 and 2 .................................................................................. 3 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report (May 1996) .............................................................................passim NUREG-1437, Volume 2, Rev. 1; Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Appendices, Draft Report for Comment (July 2009) ....................... 14 Perspectives on Severe Accident Mitigation Alternatives for U.S. Plant License Renewal (Sept. 30, 2009)14 Power Reactor Security Requirements, 74 Fed. Reg. 13,926 (Mar. 27, 2009) .......................... 13

April 16, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

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

)

(Limerick Generating Station, Units 1 and 2) )

)

NRC STAFFS APPEAL OF LBP-12-08 INTRODUCTION Pursuant to 10 C.F.R. § 2.311, the Staff of the U.S. Nuclear Regulatory Commission (NRC Staff) appeals the Memorandum and Order (LBP-12-08) issued by the Atomic Safety and Licensing Board (Board) on April 4, 2012.1 In LBP-12-08, the Board admitted a limited portion of a contention submitted by the Natural Resources Defense Council (NRDC or Petitioner) in this license renewal proceeding. Specifically, the admitted contention challenged Exelon Generation Company, LLCs (Applicant or Exelon) analysis of new and significant information regarding severe accident mitigation alternatives (SAMAs). In this proceeding, NRC regulations do not require a SAMA analysis.2 The Board committed three legal errors in admitting the contention, and as a result, NRDCs petition to intervene should have been wholly denied. First, the Boards order contravenes NRC precedent that requires a petitioner to submit a rule waiver petition in order to file a contention alleging that new and significant information impacts a generic finding codified 1

Exelon Generation Company, LLC (Limerick Generating Station, Units 1 and 2), LBP-12-08, 75 NRC __ (Apr. 4, 2012) (slip op.).

2 10 C.F.R. § 51.53(c)(3)(ii)(L); 10 C.F.R. Part 51, Subpt. A, App. B, Table B-1 (Table B-1).

in a regulation.3 Second, the admitted contention is immaterial to this adjudication because it does not consider whether the alleged new and significant information impacts the regulation addressing SAMAs for this proceeding. Instead, the contention claims that the new information impacts a decades-old SAMA analysis, which the Board admits is not at issue in this proceeding.4 Last, the Board applied an incorrect standard to test the asserted new informations significance rather than the Commissions normal, much higher, standard for identifying new and significant information.5 Therefore, as discussed below, the Board erred and should have wholly denied NRDCs petition to intervene.

BACKGROUND AND PROCEDURAL HISTORY On June 22, 2011, Exelon filed an application to renew its Limerick Generating Station Units 1 and 2 (Limerick or LGS) operating licenses for an additional 20 years from their current expiration dates of October 26, 2024, and June 22, 2029, respectively.6 As part of its application, the Applicant submitted an environmental report (ER).7 The ER assists the NRC Staff in preparing a site-specific, supplemental environmental impact statement (SEIS) to the generic environmental impact statement (GEIS)8 for license renewal. Under NRC regulations, environmental issues that the NRC resolved generically in the GEIS are called Category 1 issues. In contrast, the agency must address those issues it could not resolve generically, 3

Limerick, LBP-12-08, 75 NRC __ (slip op. at 11-16); 10 C.F.R. § 2.335.

4 Limerick, LBP-12-08, 75 NRC __ (slip op. at 10).

5 Id. at 21.

6 Application for Renewed Operating Licenses (June 22, 2011) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML11179A096); License Renewal Application, Limerick Generating Station, Units 1 and 2) (June 22, 2011) (ADAMS Accession No. ML11179A101)

(LRA).

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

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

called Category 2 issues, in the SEIS.9 The NRC relies on the SEIS and GEIS to meet the requirements of the National Environmental Policy Act (NEPA).10 Unlike most ERs for license renewal, however, the Limerick ER did not contain an analysis of SAMAs under NEPA.11 Instead the Applicant noted that a SAMA analysis had been done for Limerick at the operating license stage and cited to 10 C.F.R. § 51.53(c)(3)(ii)(L)

(subsection L) as its basis for not submitting another SAMA analysis.12 Subsection L reads, If the staff has not previously considered severe accident mitigation alternatives for the applicants plant in an environmental impact statement or related supplement or in an environmental assessment, a consideration of alternatives to mitigate severe accidents must be provided.13 Because the NRC Staff previously considered severe accident mitigation design alternatives (SAMDAs) for Limerick in an environmental statement at the operating license stage (1989 SAMDA Analysis), the ER did not contain a SAMA analysis.14 In fact, in the accompanying Statements of Consideration for subsection L, the Commission explicitly noted that SAMAs need not be reconsidered for Limerick for license renewal.15 The ER also considered 9

10 C.F.R. § 51.95(c). The NRCs regulations specifically provide that applicants do not need to discuss Category 1 issues in their ER and that the Staff may incorporate generic Category 1 findings into its SEIS. See 10 C.F.R. §§ 51.53(c)(3), 51.95(c).

10 10 C.F.R. §§ 51.53(c), 51.71(d), 51.95(c); 42 U.S.C. § 4321.

11 ER at 4-49.

12 Id. Specifically, the Applicants ER stated that no analysis of SAMAs for LGS is provided in this License Renewal Environmental Report as none is required as a matter of law. Id.

13 10 C.F.R. § 51.53(c)(3)(ii)(L).

14 ER at 4-49; Final Environmental Statement Related to Operation of Limerick Generating Station, Units 1 and 2, NUREG-0974 Supplement (Aug. 1989) (ADAMS Accession No. ML11221A204)

(1989 SAMDA Analysis). SAMAs refer to severe accident mitigation alternatives at the license renewal phase while SAMDAs refer to those alternatives at the initial licensing phase. For purposes of this appeal, the two terms are interchangeable. The Board recognized that the 1989 SAMDA Analysis constituted a SAMA for purposes of subsection L. Limerick, LBP-12-08, 75 NRC __ (slip op. at 30).

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

28,467, 28,481 (June 5, 1996).

whether new and significant information impacted any of the environmental analyses on which it relied, including subsection L.16 On November 22, 2011, NRDC filed a Petition to Intervene (Petition) in this proceeding.17 The Petition raised three contentions that challenged the ERs treatment of SAMAs and one that challenged the ERs consideration of alternatives under NEPA.18 The NRC Staff and Applicant both filed answers opposing the Petition in its entirety because it did not provide an admissible contention, and NRDC filed a reply to those answers.19 On April 4, 2012, the Board issued an order that granted standing, denied three of the contentions, and admitted portions of one contention, Contention 1-E.20 The Board denied one of the SAMA contentions in its entirety because it directly challenged the 1989 SAMDA Analysis, which the Board found is not part of the ER.21 The Board entirely denied another SAMA contention because it erroneously claimed that the exception in subsection L did not apply to Limerick.22 The Board also denied the alternatives contention because it was not supported by an adequate basis.23 The Board admitted portions of Contention 1-E, which

reads, 16 ER at section 5; see 10 C.F.R. § 51.53(c)(3)(iv) (The environmental report must contain any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware.).

17 Natural Resources Defense Council Petition to Intervene and Notice of Intention to Participate, (Nov. 22, 2011) (ADAMS Accession No. ML11326A320) (Petition).

18 Id.

19 NRC Staff's Answer to Natural Resource Defense Council Petition to Intervene and Notice of Intention to Participate (Dec. 21, 2011) (ADAMS Accession No. ML11355A174) (Staff Answer); Exelon's Answer Opposing NRDC's Petition to Intervene (Dec. 20, 2011) (ADAMS Accession No. ML11354A451);

Natural Resources Defense Council (NRDC) Combined Reply to Exelon and NRC Staff Answers to Petition to Intervene (Jan. 6, 2012) (ADAMS Accession No. ML12006A224) (NRDC Reply).

20 Limerick, LBP-12-08, 75 NRC __ (slip op.).

21 Id. at 30.

22 Id. at 34.

23 Id. at 38-39.

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 in that:

1. Exelon has omitted from its ER a required analysis of new and significant information regarding potential new severe accident mitigation alternatives previously considered for other BWR Mark II Containment reactors.

2. Exelons reliance on data from [Three Mile Island (TMI)] in its analysis of the significance of new information regarding economic cost risk constitutes an inadequate analysis of new and significant information.24 For the reasons discussed below, the Board erred in admitting Contention 1-E and should have wholly denied the Petition to Intervene.

STANDARD OF REVIEW Under 10 C.F.R. § 2.311, a party may appeal a licensing boards initial order on a petition to intervene when the party claims that the petition should have been wholly denied.25 Under this standard, the appellant must identify an error of law or abuse of discretion on the part of the board.26 ARGUMENT I. The Boards Order Contravenes 10 C.F.R. § 2.335 and Commission Precedent that Requires a Party to Seek a Waiver When Claiming that New and Significant Information Challenges a Generic Commission Regulation Contention 1-E as admitted by the Board is outside the scope of this proceeding because it claims that new and significant information impacts a generic determination in the Commissions regulations without seeking a rule waiver pursuant to 10 C.F.R. § 2.335. In admitting portions of Contention 1-E, the Board recognized that (1) the Commission generically 24 Id. at 27. Also, no new and significant information has been found that would change the generic conclusion codified by the NRC that LGS need not reassess severe accident mitigation alternatives for license renewal [10 CFR 51.53(c)(3)(ii)(L)]. E.R. at 5-4.

25 10 C.F.R. § 2.311(d)(1).

26 Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-08-17, 68 NRC 231, 234 (2008).

concluded that SAMAs must be considered for all plants that have not considered such alternatives,27 and (2) Commission precedent in Vermont Yankee provides that [a]djudicating Category 1 issues site by site based merely on a claim of new and significant information, would defeat the purpose of resolving generic issues in a GEIS. 28 However, the Board held that Vermont Yankee and similar Commission decisions29 are inapplicable to this case because SAMAs are a Category 2 issue, not a Category 1 issue.30 Therefore, the Board held that NRDC could challenge Exelons alleged failure to properly consider new and significant information relevant to SAMAs without seeking a waiver.31 But, the Boards ruling contravenes § 2.335 and Commission precedent regarding challenges to Commission regulations, including challenges based on claims of new and significant information, and therefore improperly expands the scope of the proceeding.

The regulations clearly state that a contention that challenges an NRC rule is outside the scope of this proceeding because, absent a waiver, no rule or regulation of the Commissionis subject to attackin any adjudicatory proceeding.32 A petitioner can, however, request a waiver or exception to the application of a rule in a particular adjudicatory proceeding.33 The 27 Limerick, LBP-12-08, 75 NRC __ (slip op. at 12); Table B-1; 10 C.F.R. § 51.53(c)(3)(ii)(L).

28 Limerick, LBP-12-08, 75 NRC __ (slip op. at 11) (quoting Entergy Nuclear Vermont Yankee LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13, 21 (2007)) (emphasis added). See also id. at 11-12 (In other words, a petitioner may not challenge in an adjudicatory proceeding an applicants alleged failure to consider new and significant information relevant to a Category 1 issue, without seeking a waiver.).

29 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 12 (2001); see also Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP 23, 64 NRC 257 (2006).

30 Limerick, LBP-12-08, 75 NRC __ (slip op. at 13). See also id. at 12 (The question before the Board is whetherSAMAs are a Category 1 issue for Limerick.).

31 Id. at 15.

32 10 C.F.R. § 2.335(a) (emphasis added).

33 See 10 C.F.R. § 2.335(b); see also Vermont Yankee, CLI-07-03, 65 NRC at 20; Turkey Point, CLI-01-17, 54 NRC at 10 (noting that petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule). A petitioner may also file a

Commission has repeatedly insisted on adherence to 10 C.F.R. § 2.335(a) in its proceedings and has found in the absence of a rule waiver petition, challenges to its regulations are outside the scope of those proceedings.34 NRDC has not sought a waiver in this proceeding, and NRDC has not otherwise demonstrated sufficient grounds for meeting the waiver standard.35 Moreover, the Commission has held that a claim that new and significant information impacts a generic determination in the regulations does not bring the claim within the proceedings scope or excuse the proponent from adhering to the waiver procedures required by § 2.335(a). For example, in Pilgrim and Vermont Yankee, the Boards considered challenges to the applicants failure to consider new and significant information related to generic environmental determinations.36 The Boards rejected these challenges.37 The Commission affirmed these decisions, finding that [b]oth Boards found the GEIS finding controlling absent a waiver of the NRC's generic finding or a successful petition for rulemaking. We conclude that the Boards' interpretation of the law and regulations concerning genericenvironmental findings is consistent with Turkey Point and we affirm both rulings.38 In the instant case, NRDC is not simply challenging a generic finding from the GEIS codified in 10 C.F.R. Part 51, Subpart petition for rulemaking under 10 C.F.R. § 2.802 or a request that the NRC Staff take enforcement action under 10 C.F.R. § 2.206 to address concerns that are outside the scope of a licensing proceeding.

34 See e.g., Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-05-24, 62 NRC 551, 559-60 (2005). See also Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-4, 59 NRC 31, 38-39 (2004) (holding that contentions challenging determinations made by the NRC during the rulemaking process are impermissible challenges to the Commissions regulations); Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 & n.33 (1974) (noting that a contention that simply states the petitioner's views about what regulatory policy should be does not present a litigable issue).

35 NRC Staff Answer at 34-40.

36 See Limerick, LBP-12-08, 75 NRC __ (slip op. at 12-13) (citing Pilgrim, LBP-06-23, 64 NRC at 280 and Entergy Nuclear Vermont LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 152 (2006), revd in part on other grounds, 65 NRC 371 (2007)). The generic issue in both cases concerned the environmental effects related to spent fuel storage. Id.

37 See Pilgrim, LBP-06-23, 64 NRC at 288; Vermont Yankee, LBP-06-20, 64 NRC at 155-56.

38 Vermont Yankee, CLI-07-03, 65 NRC at 16 (citing Turkey Point, CLI-01-17, 54 NRC 3).

A, Appendix B, Table B-1 (Table B-1) as a Category 1 issue, but a specific regulation associated with whether the Applicant must submit a SAMA analysis.39 If the Applicant is not required to submit a SAMA analysis for this license renewal application, then clearly any prior SAMA analysis submitted for initial licensing does not need to be revised or supplemented.40 Thus, the Vermont Yankee decision, as well as § 2.335, preclude an attack to the Commissions generic SAMA determination in subsection L absent a waiver.

Likewise, the Board in Turkey Point considered challenges to generic issues based on a claim of new and significant information.41 The Board denied the petition to intervene, and on appeal, the Commission affirmed the denial. The Commission noted that the regulations provide a number of opportunities for individuals to alert the Commission to new and significant information that might render a generic finding invalid, either with respect to all nuclear power plants or for one plant in particular. In the hearing process, for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule.42 Thus, the Commission has repeatedly found that a claim of new and significant information is not enough to bring a generic finding of the Commission, codified in a rule, into the scope of an individual license renewal proceeding.

39 See GEIS at 5-113 to 5-114; 61 Fed. Reg. at 28,481; Table B-1; 10 C.F.R. § 51.53(c)(3)(ii)(L).

40 See infra,Section II.

41 The generic issues in Turkey Point were spent fuel storage and release of radiological, chemical and herbicidal materials. See Limerick, LBP-12-08, 75 NRC __ (slip op. at 13); Table B-1.

42 Turkey Point, CLI-01-17, 54 NRC at 12 (emphasis added). Likewise, in Watts Bar, the Commission considered a challenge to the alleged deficiencies in an applicants discussion of the need for power in its ER. The Commission noted that pursuant to § 51.53(b), the applicant was not required to analyze the need for power in its ER and that absent a waiver, this issue was not challengeable in the proceeding. Nevertheless, the Commission noted that NEPA requires the NRC Staff to take a hard look at new and significant information related to the issue. Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 2), CLI-10-29, 72 NRC 556, 563 (2010). Therefore, if the Staff found information that met the new and significant standard, the Commission authorized the Staff to supplement the Final Environmental Statement. Id.

Importantly, the Vermont Yankee and Turkey Point decisions are not limited to GEIS Category 1 issues, as claimed by the Board.43 While these cases discuss Category 1 issues, there is nothing in those decisions to suggest that their holding is inextricably bound to the fact that the issues before the Commission were labeled Category 1 issues. The pivotal point is that the proposed contentions amounted to attacks on a Commission codified regulation.44 Category 1 issues are normally exempt from challenge in a license renewal proceeding because they are generic determinations codified in a regulation - not because they are labeled Category 1.45 Consequently, cases discussing the manner in which these regulations may be challenged should apply with equal force to a challenge to any regulation, including Table B-1 and subsection L. Thus, these cases stand for the proposition that challenges to any generic environmental findings for license renewal, codified in the regulations, are outside the scope of the proceeding absent a waiver, even when wrapped in claims of new and significant information.46 Therefore, although Vermont Yankee and Turkey Point dealt with Category 1 generic determinations, those decisions apply squarely to this case because the Commission has made a determination that a SAMA analysis is not necessary if one has already been done and 43 See Limerick, LBP-12-08, 75 NRC __ (slip op. at 13) (It is readily apparent that the Pilgrim, Vermont Yankee, and Turkey Point decisions are inapplicable to the instant proceeding.).

44 See Limerick Generating Station Oral Arguments, at 65-66 (Feb. 21, 2012) (ADAMS Accession No. ML12060A235) (Tr.) at 65-66 (noting that any generic determination of the Commission, whether labeled Category 1 or 2, is not subject to challenge absent a waiver). See also NRC Staff Answer at 7 (Thus, challenges to Category 1 issues, 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.).

45 Table B-1; See 10 C.F.R. §§ 51.53(c)(3), 51.95(c) (noting that applicants LRA need not discuss Category 1 issues and that Staffs SEIS can incorporate generic Category 1 findings). See also 10 C.F.R. § 2.335(a) (noting that no rule or regulation of the Commission is subject to challenge in an individual proceeding).

46 See Vermont Yankee, CLI-07-03, 65 NRC 13 (2007) (finding contention inadmissible because it inappropriately challenged rule-based generic environmental findings for license renewal); Turkey Point, CLI-01-17, 54 NRC at 12 (In the hearing process, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule.).

codified this determination in its regulations.47 Thus, while not a Category 1 issue in form, the Commissions determination that a new SAMA is not needed for license renewal is akin to a Category 1 issue in substance. NRDC is challenging a generic determination codified in Table B-1 and subsection L based on a claim of new and significant information without seeking a waiver or even addressing the Commissions stringent waiver standards.48 Therefore, the Board erred in admitting Contention 1-E.49 II. Even if Petitioner had Submitted a Rule Waiver Petition, the Admitted Contention Does Not Raise a Material Challenge to the Commissions Regulation that Only Requires One SAMA Analysis for a Facility In addition to being out of scope, Contention 1-E is immaterial because it challenges an analysis that is not required as part of the ER or the Staffs review. An admissible contention must be material to the findings the NRC must make.50 The Board found that 10 C.F.R. § 51.53(c)(3)(iv) requires Exelon to consider any new and significant information that might alter a previously conducted SAMA analysis.51 But, as the Board noted elsewhere, the previously conducted SAMA analysis is not part of the ER.52 Rather, to address SAMAs, the ER relied on subsection L.53 Consequently, the appropriate focus for the ERs consideration of new and 47 Specifically, Table B-1 provides that SAMAs must be considered for all plants that have not considered such alternatives. Table B-1 (emphasis added). See also 10 C.F.R. § 51.53(c)(3)(ii)(L).

48 See Millstone, CLI-05-24, 62 NRC at 559-60 (citations omitted). NRDC does not allege any special circumstances specific to Limerick that would warrant the grant of a waiver in this proceeding.

For example, Limerick is not the only plant that need not submit a SAMA at license renewal. As discussed in the Statements of Consideration underlying the rule, there are other plants that need not submit a SAMA at license renewal (i.e., Comanche Peak and Watts Bar). See 61 Fed. Reg. at 28,480-28,481; see also NRC Staff Answer at 34-40.

49 Accordingly, it is not necessary for Exelon or the NRC Staff to establish that SAMAs are, indeed, Category 1 issues for Limerick, Limerick, LBP-12-08, 75 NRC __ (slip op. at 13), or for the Commission to declare [SAMAs] to be Category 1 for all plants or a sub-set of plants, id. at 14, for Vermont Yankee, Pilgrim, and Turkey Point to apply in this proceeding.

50 10 C.F.R. § 2.309(f)(1)(iv), (vi).

51 Limerick, LBP-12-08, 75 NRC __ (slip op. at 10).

52 Id. at 29-30.

53 Id. at 29.

significant information should have been the regulation in subsection L and the analysis and assumptions supporting it.54 Contention 1-E, as admitted by the Board, does not claim that any new and significant information challenges subsection L or its underlying rationale. As a result, Contention 1-E is not material to any findings the NRC Staff must make regarding this application, and the Board erred by admitting it.55 In the Statements of Consideration supporting subsection L, the Commission noted that NEPA and the Third Circuits decision in Limerick required the NRC to consider SAMAs in its environmental impact statements (EIS) for license renewal applications.56 The NRCs regulations explicitly note that the agency must prepare an EIS for each license renewal.57 Thus, the obligation to consider SAMAs is not a one-time requirement; rather, the agency must adequately consider the issue of SAMAs in every EIS. Nonetheless, the Commission expressly found that the agency need not undertake a SAMA analysis in a license renewal EIS when a previous consideration of such alternatives regarding plant operation has been included in a final environmental impact statement or a related supplement.58 The Commission codified this determination in Table B-1 and subsection L.59 Consequently, NRC regulations contain a generic determination that if the NRC has previously conducted one SAMA review in a NEPA 54 Tr. at 92.

55 10 C.F.R. §2.309(f)(1)(iv), (vi) (stating that admissible contentions must demonstrate materiality). See NRC Staff Answer at 21-31 (explaining why Contention 1-E was not material).

56 61 Fed. Reg. at 28,480 (citing Limerick Ecology Action v. NRC, 869 F.2d 719 (3d Cir. 1989)).

57 10 C.F.R. § 51.20(b)(2).

58 61 Fed. Reg. at 28,480; GEIS at 5-106 to 5-114.

59 Table B-1 (However, alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives.); 10 C.F.R. § 51.53(c)(3)(ii)(L).

document for a given facility, then the agency has adequately considered SAMAs for future license renewals for that facility.60 The Commissions overall discussion of SAMAs in the Statements of Consideration provides ample support for the conclusion that one SAMA analysis is adequate.61 Specifically, the Commission noted that the agency was already studying methods to mitigate severe accidents through the Containment Performance Improvement (CPI) program, Individual Plant Examination (IPE), and Individual Plant Examination for External Events (IPEEE).62 As a result, the Commission believed that it was 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.63 The Commission found it premature to classify SAMAs as a Category 1 issue for all plants, given the ongoing nature of these studies.64 Nonetheless, the Commission concluded that for those plants for which the Staff had already considered SAMAs, another consideration of that issue was unnecessary.65 The Commissions conclusion is reasonable under NEPA because if one SAMA analysis is unlikely to uncover major plant design changes or modifications that are cost-beneficial, a subsequent SAMA analysis would 60 The Commission explicitly noted that this rule would apply to Limerick, Watts Bar, and Comanche Peak. 61 Fed. Reg. at 28,481. In addition, this regulation could also apply to facilities seeking second license renewals as well as facilities licensed after 1996 that apply for license renewal.

NRC Staff Answer at 38 n. 73.

61 61 Fed. Reg. at 28,481.

62 Id.

63 Id.

64 Id.

65 Id.

be even less likely to reveal such cost-beneficial SAMAs.66 Contrary to NRDCs approach, the Commission did not state or suggest that licensees should address SAMAs under subsection L by simply incorporating a previous SAMA analysis into their ER.67 Nonetheless, the Commission has noted that its regulations provide mechanisms to alert the Commission to new and significant information that might render a generic finding invalid, either with respect to all nuclear power plants or for one plant in particular.68 Consequently, pursuant to § 51.53(c)(3)(iv), the Applicants ER must reflect any new and significant information impacting the generic finding regarding SAMAs in subsection L because that is the basis for the ERs treatment of SAMAs.

Therefore, Contention 1-E, as admitted by the Board, raises immaterial issues because it challenges whether new and significant information impacts the 1989 SAMDA Analysis instead of the Commissions generic regulatory finding in subsection L.69 As discussed above, that finding in subsection L rests on a number of studies in addition to the 1989 SAMDA Analysis, including the CPI program, the IPE and the IPEEE.70 It also relies on a number of 66 Id. Importantly, in intervening years, the Commission has taken further steps to mitigate the consequences of a severe accident. E.g. Power Reactor Security Requirements, 74 Fed. Reg. 13,926 (Mar. 27, 2009).

67 See 10 C.F.R. § 54.17(c) (forbidding a licensee from submitting a license renewal application earlier than 20 years before the expiration of the operating license or combined license currently in effect). Even if subsection L required the NRC to adopt the 1989 SAMDA analysis, that document discussed and relied on the then-ongoing IPE and CPI program to support its findings. 1989 SAMDA Analysis at 15-16. Neither the Board nor NRDC have indicated how Contention 1-E challenges this approach in the 1989 SAMDA analysis.

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

69 Limerick, LBP-12-08, 75 NRC __ (slip op. at 10). While the Applicant attempted to update the 1989 SAMDA analysis in its ER, it only did so in an abundance of caution. ER at 4-49. The Applicant relied on subsection L to meet its SAMA obligations for the Limerick license renewal. Id.

70 61 Fed. Reg. at 28,481. In its Reply, NRDC suggested that the Commission had already rejected the Staffs interpretation of subsection L in a denial of a petition for rulemaking submitted by the Nuclear Energy Institute. NRDC Reply at 8-10 (citing Nuclear Energy Institute; Denial of Petition for Rulemaking, 66 Fed. Reg. 10834 (June 21, 2001)). But, in that instance, the Commission only rejected a request to eliminate the SAMA requirement from license renewals entirely; the Commission did not revisit the question of second SAMA analyses. 66 Fed. Reg. at 10,838. See also Tr. at 131-32.

assumptions: the probability-weighted environmental impacts of a severe accident are small; applicants will complete IPEs and IPEEEs for their plants before applying for license renewal; and other SAMA analyses will be unlikely to identify major, cost-beneficial plant improvements.71 But the Board did not explain how Contention 1-E raised material challenges to the ERs reliance on subsection L or the analysis supporting it.72 As the Commission explained in ruling on another SAMA contention, an admissible contention for litigation must point to a deficiency in the application, and not merely [suggest] other ways an analysis could have been done.73 Moreover, Contention 1-E claims that the NRC should consider potential new severe accident mitigation alternatives previously considered for similar reactors and challenges the Applicants approach to updating the 1989 SAMDA Analysis treatment of economic data.74 But, the Statements of Consideration for subsection L acknowledged that future SAMA analyses may identify other cost-beneficial SAMAs and rely on different approaches to considering off-site impacts.75 As discussed in more detail below, new and significant information must paint a seriously different picture of the environmental consequences than has been previously considered.76 Given that the Commission acknowledged that additional mitigation measures might be cost-beneficial and that different applicants might take different approaches to 71 61 Fed. Reg. at 28,481, 28,496. Experience has confirmed these assumptions. Subsequent analyses have concluded that the probability weighted impacts of a severe accident are indeed small.

NUREG-1437, Vol. 2, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Appendices, Draft Report for Comment, at E-43 to E-44 (July 2009) (ADAMS Accession No. ML091520164). Limerick completed an IPE and IPEEE. NRC Staff Answer at 9. Moreover, potentially-cost beneficial SAMAs tend to be low-cost improvements such as modifications to plant procedures or training, minimal hardware changes, and use of portable equipment. Perspectives on Severe Accident Mitigation Alternatives for U.S. Plant License Renewal, at 10 (Sept. 30, 2009) (ADAMS Accession No. ML092750488).

72 Limerick, LBP-12-08, 75 NRC __ (slip op. at 10); ER at 4-49.

73 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC __, __ (Mar. 8, 2012) (slip op. at 29).

74 Limerick, LBP-12-08, 75 NRC __ (slip op. at 27); ER at 5-8.

75 61 Fed. Reg. at 28,481.

76 See infra Section III.

calculating offsite consequences, Contention 1-Es concerns do not constitute new and significant information.77 As a result, Contention 1-E raises claims that are simply immaterial to the findings the NRC must make in this proceeding. The ER appropriately relied on subsection L to omit a SAMA analysis, and the NRC must consider whether new and significant information impacts the Commissions finding in subsection L and its supporting analyses.78 By shifting the focus of the new and significant information consideration away from subsection L to the 1989 SAMDA Analysis, Contention 1-E raises challenges to matters that are not at issue in this proceeding.

Moreover, Contention 1-E essentially asserts that the Applicant must undertake a limited-scope SAMA analysis for potential mitigation alternatives considered for other reactors with similar containments in order to update the 1989 SAMDA Analysis. Although the Board suggested that this can be accomplished through a bounding analysis that does not constitute a new SAMA analysis,79 applicants routinely perform such a bounding analysis as an integral part of original SAMA analyses.80 Consequently, by requiring the Applicant to update the 1989 SAMDA Analysis, Contention 1-E undermines the Commissions prior determination that SAMAs need not be reconsidered for Limerick.81 Additionally, because most SAMA analyses conducted at an earlier stage will be close to twenty-years old by the time of license renewal, the Boards approach, if adopted in other cases, would almost always render the exception in 77 61 Fed. Reg. at 28,481.

78 Watts Bar, CLI-10-29, 72 NRC at 563 (requiring the NRC Staff to consider whether new and significant information impacted a generic regulation addressing the need for power analysis under NEPA).

79 Limerick, LBP-12-08, 75 NRC __ (slip op. at 19).

80 E.g., Grand Gulf Nuclear Station, Applicants Environmental Report, Attachment E, at E.2-1 to E.2-16 (Oct. 28, 2011) (ADAMS Accession No. ML11308A493).

81 61 Fed. Reg. at 28,481.

subsection L meaningless. Therefore, the Commission should reverse the Boards decision to admit Contention 1-E.

III. The Board Applied an Incorrect Test for Assessing the Significance of New Information Finally, the Boards decision applied erroneous legal standards under 10 C.F.R. § 51.53(c)(3)(iv) in finding portions of Contention 1-E admissible. Specifically, the Board contravened recent Commission precedent setting forth the standards for demonstrating the existence of new and significant information under NEPA. Under that standard, new and significant information must present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.82 As the Boards misapplication of this standard led to the erroneous admission of Contention 1-E, the Commission should reverse the Board on grounds of legal error.

As discussed above, no SAMA analysis for Limerick need be completed in accordance with subsection L.83 Therefore, the applicable standard for determining materiality is not merely whether the contention identifies inadequacies in a SAMA analysis.84 Rather, Contention 1-E must demonstrate that new and significant information requires supplementation of NEPA findings.85 82 See, e.g., Luminant Generation Company LLC (Comanche Peak Nuclear Power Plant Units 3 and 4), CLI-12-07, 75 NRC __, __ (Mar. 16, 2012) (slip op. at 10) (emphasis added) (citing Hydro Resources, Inc. (2929 Coors Road, Suite 101, Albuquerque, NM, 87120), CLI-99-22, 50 NRC 3, 14 (1999)); Union Electric Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-05, 74 NRC __, __

(Sept. 9, 2011) (slip op. at 31). The NRC Staff clearly called this standard to the Boards attention during Oral Argument. Tr. at 93. While the Commission has previously suggested that significance equates to materiality, it did so in other contexts and before it decided the above cases. Licenses, Certifications, and Approvals for Nuclear Power Plants, 72 Fed. Reg. 49,352, 49,431 (Aug. 28, 2007).

83 10 C.F.R. § 51.53(c)(3)(ii)(L); Limerick, LBP-12-08, 75 NRC __ (slip op. at 34).

84 While this might be the appropriate standard for determining the materiality of a contention challenging an initial SAMA analysis, as discussed above, the issue in this case should not be the adequacy of an initial SAMA analysis.

85 10 C.F.R. § 51.53(c)(3)(iv).

In its decision, the Board depicts the standard for new and significant information as requiring only a showing that the proffered information might alter previous environmental conclusions86 or would cast doubt on a previous environmental analysis.87 But the standard for demonstrating new and significant information requires far more than simply casting doubt on a previous environmental analysis or suggesting that information might alter the conclusions of such analysis. Rather, as the Commission has recently and repeatedly emphasized, new and significant information under NEPA must present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.88 The Commission has found that this standard requires not merely showing a level of concern89 or that a petitioner has raised a litigable claim,90 but rather presentation of tangible or concrete information demonstrating seriously different environmental impacts than previously envisioned.91 Moreover, as the Board recognized, the Commission has found that 86 Limerick, LBP-12-08, 75 NRC __ (slip op. at 10). Notwithstanding the Boards citation to 10 C.F.R. § 51.53(c)(3)(iv), that regulation simply states that the ER must contain any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware. 10 C.F.R. § 51.53(c)(3)(iv). As discussed above, Commission case law has amplified what suffices as new and significant for the purposes of § 51.53(c)(3)(iv).

87 Limerick, LBP-12-08, 75 NRC __ (slip op. at 10). The Boards citation to the Supreme Courts decision in Marsh v. Oregon does not support its interpretation of the standard. In Marsh, the Court set forth the standard as if the new information is sufficient to show that the remaining action will affec[t] the quality of the human environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared. Marsh v. Oregon, 490 U.S. 360, 374 (1989) (quotations omitted, alteration in original). Such a standard is far more stringent than casting doubt or suggesting alteration of a previous analysis. Indeed, under Commission precedent an issue is significant when it raises a previously unknown environmental concern, but not necessarily when it amounts to mere additional evidence supporting one side or the other of a disputed environmental effect. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-06-03, 63 NRC 19, 29 (2006) 88 See, e.g., Comanche Peak, CLI-12-07, 75 NRC at __ (slip op. at 10).

89 Id. at 12.

90 Id. at 11.

91 Id. (noting that contention admissibility standards require concrete information; the emergence of tangible Fukushima lessons may in the future mean that contentions based on new and significant information may become more plausible.)

additional plausible inputs to a SAMA analysis do not constitute new and significant information requiring supplementation of NEPA documents.92 Instead, a petitioner must put forth information that itself presents a seriously different picture of the environmental impacts than previously envisioned.93 This the Petitioner did not do and the Board did not find.

Because the Board applied the incorrect standard for determining whether new and significant information exists, the Board erroneously admitted two portions of Contention 1-E.

First, the Board admitted a challenge to the ERs determination of whether SAMA candidates considered at other facilities constituted new and significant information.94 The Board stated that the consideration of this information could very well lead to a conclusion that this information is significant.95 The standard for determining significance, however, is not that the information might alter previous environmental conclusions or would cast doubt on a previous environmental analysis.96 Instead, the information provided must demonstrate a seriously different picture of the environmental impacts than what was previously envisioned.97 The Board made no finding that the Petitioners information would meet this standard.

Second, the Board admitted the Petitioners challenge alleging that the Applicant inadequately considered economic cost risk on the basis of the Petitioners listing of 92 Limerick, LBP-12-08, 75 NRC __ (slip op. at 21-22) (citing Comanche Peak, CLI-12-07, 75 NRC __ (slip op. at 15)) (recognizing that the Commissions decision in Callaway, CLI-11-05, found that the petitioners allegations of additional plausible severe accident scenarios arising from information derived from the Fukushima accident did not constitute new and significant information where the information, while relevant, did not present information that changed previous environmental conclusions).

93 Comanche Peak, CLI-12-07, 75 NRC ___ (slip op. at 10).

94 Limerick, LBP-12-08, 75 NRC __ (slip op. at 21).

95 Id.

96 Id. at 10.

97 Comanche Peak, CLI-12-07, 75 NRC ___ (slip. op at 10).

discrepancies with other SAMA analyses.98 But the Board again applied a standard different from the proper NEPA new and significant information standard in finding admissible NRDCs economic inputs challenges. NRDC listed discrepancies with other licensees SAMA analyses and therefore claimed that the Applicants economic cost risk analysis was inadequate. But, neither NRDC nor the Board demonstrated that this information would paint a seriously different picture of the environmental impacts of renewing the Limerick operating licenses.

Accordingly, the Board applied an improper standard for showing new and significant information, and this resulted in the erroneous admission of Contention 1-E. Therefore the Board committed a substantive legal error and the Petition should have been wholly denied.

Moreover, the Boards basis for finding new and significant information would eviscerate the Commissions regulatory determination in subsection L that only one SAMA analysis need be completed. To allow the Boards decision to stand, admitting a challenge to that determination based on nothing more than a showing that new information may cast doubt on a previous SAMA analysis, would deprive the Commissions determination in subsection L of any meaning. Petitioners would always be able to revisit the issue of SAMAs by simply alleging that some new information renders prior SAMA conclusions doubtful.

CONCLUSION For the foregoing reasons, the Commission should reverse the Boards admission of Contention 1-E. Absent a granted waiver under § 2.335, the contention constitutes an impermissible attack on the Commissions regulations and is outside the scope of this proceeding. Moreover, even if NRDC had submitted a rule waiver petition, Contention 1-E is not material because it does not allege that new and significant information impacts the determination in subsection L, upon which the ER relies. Finally, the Board used the wrong 98 Limerick, LBP-12-08, 75 NRC __ (slip op. at 24-25) (admitting a portion of Contention 1-E based on allegations by NRDC that the ratio of economic cost risk to exposure cost risk exhibits a wide variation, that TMI is Pressurized Water Reactor (PWR) rather than a BWR, and that the area surrounding TMI is less urban than that around Limerick).

standard to identify new and significant information under § 51.53(c)(3)(iv). As a result of these errors, the Board should have denied Contention 1-E and dismissed the Petition in its entirety.

/Signed (electronically) by/

Catherine E. Kanatas Counsel for NRC Staff Executed in Accord with 10 CFR 2.304(d)

Maxwell C. Smith Counsel for NRC Staff Executed in Accord with 10 CFR 2.304(d)

Lauren Woodall Counsel for NRC Staff

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 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 NOTICE OF APPEAL OF LBP-12-08 and NRC STAFFS APPEAL OF LBP-12-08 in the above captioned proceeding have been served upon the following by the Electronic Information Exchange, this 16th day of April, 2012:

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

Anthony Z. Roisman National Legal Scholars Law Firm, P.C.

241 Poverty Lane, Unit 1 Lebanon, NH 03766 aroisman@nationallegalscholars.com

/Signed (electronically) by/

Catherine E. Kanatas Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-2321 E-mail: catherine.kanatas@nrc.gov Date of signature: April 16, 2012