ML12107A417

Exelon'S Notice of Appeal of LBP-12-08

ML12107A417
Person / Time
Site:	Limerick
Issue date:	04/16/2012
From:	Fewell J, Andrea Jones, Polonsky A, Sutton K Exelon Generation Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
RAS 22271, 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01
Download: ML12107A417 (41)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: ) Docket Nos. 50-352-LR

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

)

(Limerick Generating Station, Units 1 and 2) ) April 16, 2012

)

EXELONS NOTICE OF APPEAL OF LBP-12-08 This appeal presents a threshold legal question of potentially wide-ranging impact; namely, whether the adequacy of an applicants consideration of new and significant information under 10 C.F.R. § 51.53(c)(3)(iv), in this case related to an issue resolved by rule in Section 51.53(c)(3)(ii), may nonetheless be challenged in a proceeding before an Atomic Safety and Licensing Board (Board or ASLB) absent a waiver from the Commission. The Commission addressed this issue with respect to Section 51.53(c)(3)(i) in CLI-07-03,1 and held that a waiver is necessary. Pursuant to 10 C.F.R. § 2.311(d)(1), Exelon Generation Company, LLC (Exelon) hereby appeals LBP-12-08 so that the Commission can address the issue with respect to Section 51.53(c)(3)(ii), as well as other clear errors made by the Board in this proceeding.

In LBP-12-08, the Board presiding over the license renewal proceeding for the Limerick Generating Station, Units 1 and 2 (Limerick) granted the petition to intervene filed by the 1

See Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station) and Entergy Nuclear Vermont Yankee, LLC. & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13, 16 (2007).

Natural Resources Defense Council (NRDC),2 and admitted for litigation one National Environmental Policy Act-related contention.3 Specifically, the Board admitted two parts of Contention 1-E that challenge the evaluation of new and significant information under 10 C.F.R.

§ 51.53(c)(3)(iv), related to severe accident mitigation alternatives (SAMAs) in Exelons Environmental Report (ER).

Contention 1-E is not a conventional SAMA contention. Exelon is not required to prepare a SAMA analysis in support of the Limerick license renewal application, because the NRC Staff has already performed an analysis of severe accident mitigation design alternatives (SAMDAs) as part of original plant licensing.4 This specific exception is set forth clearly and unambiguously in 10 C.F.R. § 51.53(c)(3)(ii)(L). Although Exelon need not perform a new SAMA analysis to support license renewal, it is required to determine if there is any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware under 10 C.F.R. § 51.53(c)(3)(iv).

Thus, the threshold legal question on appeal is whether the adequacy of the applicants consideration of new and significant information related to the NRC Staffs prior SAMDA analysis may be challenged in a license renewal proceeding absent a waiver from the Commission. Exelon argues that it cannot. This position is fully consistent with Commission decisions in Pilgrim and Vermont Yankee, which stand for the proposition that an intervenor may 2

[NRDC] Petition to Intervene and Notice of Intention to Participate (Nov. 22, 2011) (Petition), available at ADAMS Accession No. ML11326A320.

3 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2, LBP-12-08, 75 NRC __, slip op.

(Apr. 4, 2012).

4 See 10 C.F.R. § 51.53(c)(3)(ii)(L); Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,481 (June 5, 1996) (NRC staff considerations of [SAMAs] have already been completed and included in an EIS or supplemental EIS for Limerick, Comanche Peak, and Watts Bar.

Therefore, [SAMAs] need not be reconsidered for these plants for license renewal.).

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not challenge an applicants analysis of new and significant information for matters otherwise resolved by rule.5 To allow otherwise would obviate the exceptions in Section 51.53(c)(3), and permit unfettered challenges to analyses that the Commission has expressly determined, by rule, need not be conducted again for license renewal, absent a waiver. Such a result is not confined to this proceeding, or even license renewal proceedings, but is germane to NRC adjudicatory proceedings in general.

In addition, to the extent that Contention 1-E, as admitted by the Board, challenges Exelons economic cost analysis, it fails to include sufficient support to show that Exelons analysis was unreasonable, and thus fails to demonstrate a genuine dispute on a material issue, as required by 10 C.F.R. § 2.309(f)(1). Exelon explained in its Answer why NRDCs support for the Contention actually illustrates the reasonableness of Exelons analysis6, but the Board failed to address this argument in LBP-12-08. Therefore, it was clear error for the Board to admit this part of Contention 1-E.

Exelons Brief in Support of the Appeal of LBP-12-08 is attached. Exelon respectfully requests that the Commission expedite its review of this appeal, to minimize the expenditure by all parties of resources towards litigation of Contention 1-E.

5 See Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station) and Entergy Nuclear Vermont Yankee, LLC. & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13, 17-18 (2007); see also Entergy Nuclear Generation Co.

(Vt. Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 149 (2006); Entergy Nuclear Generation Co (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 288 (2006).

6 Exelons Answer Opposing NRDCs Petition to Intervene at 47-49 (Dec. 20, 2011), available at ADAMS Accession No. ML11354A541.

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Respectfully submitted, Signed (electronically) by Alex S. Polonsky Alex S. Polonsky Kathryn M. Sutton Anna V. Jones Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5830 Fax: 202-739-3001 E-mail: apolonsky@morganlewis.com J. Bradley Fewell Vice President and Deputy General Counsel Exelon Generation Company, LLC 200 Exelon Way Kennett Square, PA 19348 Phone: 630-657-3769 Fax: 630-657-4335 E-mail: Bradley.Fewell@exeloncorp.com COUNSEL FOR EXELON Dated in Washington, D.C.

this 16th day of April 2012 DB1/ 69372657.3 4

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: ) Docket Nos. 50-352-LR

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

)

(Limerick Generating Station, Units 1 and 2) ) April 16, 2012

)

EXELONS BRIEF IN SUPPORT OF THE APPEAL OF LBP-12-08

TABLE OF CONTENTS I. INTRODUCTION 1 II. BACKGROUND 2 III. LEGAL STANDARDS 4 A. Standard of Review 4 B. Contention Admissibility Standards 4 IV. ARGUMENT 6 A. Relevant Background 8 B. The Board Clearly Erred in Admitting a Contention Challenging New and Significant Information Related to An Issue Resolved by Rule, Absent a Waiver 11 C. The Board Also Clearly Erred When It Admitted a Contention That Does Not Demonstrate a Genuine Dispute of a Material Issue 22 V. CONCLUSION 28 i

TABLE OF AUTHORITIES DECISIONS Page AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 4 NRC 111 (2006).

Balt. Gas & Elec. Co. v. [NRDC], 462 U.S. 87 (1983). 9 Black & Decker Corp. v. Commr of Internal Revenue, 986 F.2d 60 (4th Cir. 17 1993).

Citizens Against Burlington v. Busey, 938 F.2d 190 (D.C. Cir. 1991). 24 Crow Butte Res. Inc. (N. Trend Expansion Project), CLI-09-12, 69 NRC 535, 5 552 (2009).

Crow Butte Res., Inc. (License Renewal for In Situ Leach Facility, Crawford, 4 Neb.), CLI-09-9, 69 NRC 331 (2009).

Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), 5 CLI-01-24, 54 NRC 349 (2001).

Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear 24 Station, Units 1 & 2), CLI-02-17, 56 NRC 1 (2002).

Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 5 NRC 328 (1999).

Entergy Nuclear Generation Co (Pilgrim Nuclear Power Station), LBP-06-23, 1, 7, 12, 14, 64 NRC 257 (2006). 15, 16, 17, 18, 20 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-14, 20 71 NRC 449 (2010).

Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 6, 23, 26 75 NRC __ (Feb. 9, 2012) .

Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim 1, 7, 12, 14, Nuclear Power Station) and Entergy Nuclear Vermont Yankee, LLC. & Entergy 19-20 Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13 (2007).

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DECISIONS Page Entergy Nuclear Generation Co. (Vt. Yankee Nuclear Power Station), LBP 1, 7, 12, 14, 20, 64 NRC 131 (2006). 15, 16, 17, 18, 20 Exelon Generation Co. (Limerick Generating Station, Units 1 and 2), Secy 2 Order (Oct. 17, 2011), available at ADAMS Accession No. ML11290A233.

Exelon Generation Co. (Limerick Generating Station, Units 1 and 2), Notice and 3 Order (Scheduling Oral Argument) at 3-4 (Jan. 31, 2012).

Exelon Generation Co. (Limerick Generating Station, Units 1 and 2), LBP 1, 3, 6, 7, 8, 08, 75 NRC __ (Apr. 4, 2012). 11, 12, 14, 20, 21, 22, 23, 24, 25 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 4, 6, 24, 26, 1), CLI-12-08, 75 NRC __ (Mar. 27, 2012). 27 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), 20 CLI-01-17, 54 NRC at 3 (2001).

Hart v. McLucas, 535 F.2d 516 (9th Cir. 1976). 14 Hydro Resources, Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87120), 23 CLI-99-22, 50 NRC 3 (1999).

Jay v. Boyd, 351 U.S. 345 (1956). 14 La. Energy Servs. L.P. (Natl Enrichment Facility), LBP-06-8, 63 NRC 241 8 (2006).

Limerick Ecology Action, Inc. v. U.S. NRC, 869 F.2d 719 (3rd Cir. 1989). 10 Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989). 23 Massachusetts v. U.S. NRC, 522 F.3d 115 (1st Cir. 2008). 12,14, 20 NextEra Energy Seabrook (Seabrook Station, Unit 1), CLI-12-05, 75 NRC __ 4, 5, 6, 26 (Mar. 8, 2012).

Paina Haw., LLC (Material License Application), CLI-06-13, 63 NRC 508 4, 10 (2006).

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DECISIONS Page Phil. Elec. Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 8 NRC 681 (1985).

Phil. Elec. Co. (Limerick Generating Station, Units 1 and 2), CLI-86-5, 23 NRC 8 125 (1986).

Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 5 49 NRC 318 (1999).

Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-02-25, 27 56 NRC 340 (2002).

Russello v. United States, 464 U.S. 16 (1983). 17 Sierra Club v. Froehlke, 816 F.2d 205 (5th Cir. 1987). 23 Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-05 (Sept. 9, 2011). 23 Vt. Yankee Nuclear Power Corp. v. [NRDC] , 435 U.S. 519 (1978). 24 FEDERAL REGISTER Page Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 9, 10, 11, 61 Fed. Reg. 28,467 (June 5, 1996). 15, 18, 19, 24 Notice of Acceptance for Docketing of the Application and Notice of Opportunity 2 for Hearing Regarding Renewal of Facility Operating License Nos. NPF-39 and NPF-85 for an Additional 20-Year Period; Exelon Generation Co., LLC, Limerick Generating Station, 76 Fed. Reg. 52,992 (Aug. 24, 2011).

Proposed Rule, Rules of Practice for Domestic Licensing Proceedings 5 Procedural Changes in the Hearing Process, 51 Fed. Reg. 24,365 (July 3, 1986).

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FEDERAL STATUTES Page 42 U.S.C. § 4321, et seq. 8 FEDERAL REGULATIONS Page 10 C.F.R. § 2.309 1, 2, 4, 5, 7, 22, 27 10 C.F.R. § 2.311(d)(1) 1, 2, 3, 4 10 C.F.R. § 2.335 12, 13, 15 10 C.F.R. Part 51 9 10 C.F.R. pt. 51, subpt. A, app. B, tbl. B-1. 9, 10, 11 10 C.F.R. § 51.53 8 10 C.F.R. § 51.53(c)(3) 7, 12, 13, 14, 15, 17 10 C.F.R. § 51.53(c)(3)(i) 12, 13, 14, 15, 16, 17, 19, 22 10 C.F.R. § 51.53(c)(3)(ii) 6, 8, 10, 11, 12, 13, 14, 15, 17, 19, 22 10 C.F.R. § 51.53(c)(3)(iv) 6, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22 10 C.F.R. § 51.95(c) 10 10 C.F.R. § 52.103(b) 5 v

OTHER AUTHORITIES Page NUREG-0974 Supplement, Final Environmental Statement related to the 8-9 operation of Limerick Generating Station, Units 1 and 2 (Aug. 1989), available at ADAMS Accession No. ML11221A204.

NUREG-1437, Generic Environmental Impact Statement for License Renewal 9 of Nuclear Plants, Vol. 1 (May 1996), available at ADAMS Accession No. ML040690705.

SECY-93-032, 10 CFR Part 51 Rulemaking on Environmental Review for 17, 18 Renewal of Nuclear Power Plant Operating Licenses (Feb. 9, 1993), available at ADAMS Accession No. ML072260444.

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I. INTRODUCTION In accordance with 10 C.F.R. § 2.311(d)(1), Exelon Generation Company, LLC (Exelon or the Applicant) hereby timely appeals the Atomic Safety and Licensing Boards (Board) April 4, 2012 Order (LBP-12-08)1 granting a Petition to Intervene2 in the license renewal proceeding for the Limerick Generating Station, Units 1 and 2 (Limerick).

Specifically, the Boards Order admitted for litigation one contention (i.e., Contention 1-E),

which challenges the analysis of new and significant information contained in Exelons Environmental Report (ER) related to severe accident mitigation alternatives (SAMAs),

even though Exelon is excepted by rule from considering SAMAs for Limerick in a license renewal proceeding.

In summary and as demonstrated below, the Board made a clear error in admitting this contention. Commission precedent and regulatory history recognize that an applicants consideration of new and significant information, related to a matter resolved by rule, is not litigable in a license renewal proceeding absent a waiver.3 In addition, the contention fails to demonstrate a genuine dispute of a material issue, contrary to the requirements of 10 C.F.R.

§ 2.309(f)(1).

For these reasons, Contention 1-E does not satisfy the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1). As a result, the Petition should have been wholly 1

Exelon Generation Co. (Limerick Generating Station, Units 1 and 2), LBP-12-08, 75 NRC __, slip op.

(Apr. 4, 2012).

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

3 See Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station) and Entergy Nuclear Vermont Yankee, LLC. & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13, 16 (2007); see also Entergy Nuclear Generation Co. (Vt.

Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 149 (2006); Entergy Nuclear Generation Co (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 288 (2006).

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denied. Exelon hereby files this Appeal of the Boards Order, pursuant to 10 C.F.R.

§ 2.311(d)(1).

II. BACKGROUND Limerick, located in Limerick Township, Pennsylvania, has safely generated 2,340 MWe of baseload electrical power for the Mid-Atlantic region for more than 20 years, with only temporary breaks for refueling and outages.4 On June 22, 2011, Exelon submitted an application to the NRC requesting the renewal of the Limerick operating licenses for an additional 20 years (i.e., until midnight on October 26, 2044, for Unit 1, and midnight on June 22, 2049, for Unit 2).5 The NRC Staff accepted Exelons application for docketing and published a Hearing Notice in the Federal Register on August 24, 2011.6 The Hearing Notice states that any person whose interest may be affected by this proceeding, and who wishes to participate as a party, must file a petition for leave to intervene in accordance with 10 C.F.R. § 2.309.7 On November 22, 2011, Natural Resources Defense Council (NRDC) timely filed its Petition, which contained four proposed contentions challenging portions of Exelons ER.8 None of the proposed 4

Applicants Environmental Report - Operating License Renewal Stage, Limerick Generating Station, Units 1 and 2, at 2-3, 7-4 to 7-5, 7-10, 7-17 (Jun. 2011) (ER), available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/limerick/lgs-er-web.pdf; see also Tr.

22 (Polonsky).

5 See Letter from M. Gallagher, Exelon, to NRC, Application for Renewed Operating Licenses (June 22, 2011), available at ADAMS Accession No. ML11179A096.

6 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 Co., LLC, Limerick Generating Station, 76 Fed. Reg. 52,992, 52,992-94 (Aug.

24, 2011) (Hearing Notice).

7 Hearing Notice, 73 Fed. Reg. at 52,993.

8 See generally Petition. Although the Hearing Notice indicated that a Petition to Intervene would be timely if filed by October 24, 2011, NRDC requested an extension of time for filing its Petition until November 22, 2011. See Letter from G. Fetus, NRDC, to NRC Secy, Extension of Time for Opportunity to Request a Hearing and Petition for Leave to Intervene in the NRC Notice of Opportunity for Hearing Regarding Renewal of [Limerick Station] for Additional 20-Year Period (Sept. 22, 2011), available at ADAMS Accession No. ML11266A083. By Order dated October 17, 2011, the Secretary for the Commission granted this request. Secy Order (Oct. 17, 2011), available at ADAMS Accession No. ML11290A233 (granting NRDC an extension of 30 days to file a petition to intervene).

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contentions raised a safety concern.

Exelon and the NRC Staff filed timely answers to the Petition on December 20 and 21, 2011, respectively.9 Exelon and the NRC Staff did not challenge NRDCs standing, but they did challenge the admissibility of all of the contentions.10 On January 6, 2012, NRDC filed its Combined Reply to Exelons and the NRC Staffs Answers.11 Shortly thereafter, the Board scheduled oral argument on the admissibility of the four contentions.12 The Boards Order scheduling oral argument included a preliminary list of questions the hearing participants should be prepared to answer at oral argument, which was held on February 21, 2012.13 Thereafter, on April 4, 2012, the Board issued LBP-12-08, ruling that NRDC has standing and admitting a limited and re-worded Contention 1-E. In accordance with the Boards Order14 and 10 C.F.R. § 2.311(d)(1), Exelon hereby appeals that decision.

9 Exelons Answer Opposing NRDCs Petition to Intervene (Dec. 20, 2011) (Exelon Answer), available at ADAMS Accession No. ML11354A541; NRC Staffs Answer to [NRDC] Petition to Intervene and Notice of Intention to Participate (Dec. 21, 2011) (Staff Answer), available at ADAMS Accession No. ML11355A174.

10 See generally Exelon Answer; Staff Answer.

11

[NRDC] Combined Reply to Exelon and NRC Staff Answers to Petition to Intervene (Jan. 6, 2012)

(Reply), available at ADAMS Accession No. ML12006A224. Because the Reply provided new bases and supporting material for the contentions, the NRC Staff and Exelon separately moved to strike portions of the Reply on January 17, 2012. Exelons Motion to Strike Portions of NRDCs Reply (Jan. 17, 2012),

available at ADAMS Accession No. ML12017A258; NRC Staffs Motion to Strike Impermissible New Claims in [NRDCs] Reply Brief (Jan. 17, 2012), available at ADAMS Accession No. ML12017A202.

NRDC responded to those motions on January 27, 2012. [NRDC] Combined Opposition to Motions to Strike (Jan. 27, 2012), available at ML12027A234. The Board denied the Motions to Strike, but because the Motions related to contentions that the Board rejected in LBP-12-08, the Motions to Strike are moot, and Exelon is not appealing their denial.

12 See Notice and Order (Scheduling Oral Argument) at 3-4 (Jan. 31, 2012).

13 Id. at 4 n.17; id. App. A.

14 Limerick, LBP-12-08, slip op. at 41.

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III. LEGAL STANDARDS A. Standard of Review To intervene in an NRC licensing proceeding, a petitioner must demonstrate standing and propose at least one contention that satisfies the admissibility criteria set forth in 10 C.F.R.

§ 2.309(f)(1).15 Under 10 C.F.R. § 2.311(d)(1), an applicant may appeal an order granting a petition to intervene, if the request for hearing or petition to intervene should have been wholly denied. In other words, the applicant must dispute the admissibility of all of the contentions admitted by the Board.16 Although the Commission generally defers to board decisions on contention admissibility, it will reverse a decision if there is clear error of law or abuse of discretion.17 The Commission has explained that allowing boards to entertain contentions grounded on little more than guesswork would waste the scarce adjudicatory resources of all involved.18 B. Contention Admissibility Standards NRC regulations at 10 C.F.R. § 2.309(f)(1) specify that a hearing request must set forth with particularity the contentions sought to be raised.19 In addition, each contention must:

(1) provide a specific statement of the legal or factual issue sought to be raised; (2) provide a brief explanation of the basis for the contention; (3) demonstrate that the issue raised is within the scope of the proceeding; (4) demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; 15 See 10 C.F.R. § 2.309(a).

16 See AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 119 (2006); Paina Haw., LLC (Material License Application), CLI-06-13, 63 NRC 508, 509 (2006).

17 See, e.g., FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-08, 75 NRC __, slip op. at 5 (Mar. 27, 2012); NextEra Energy Seabrook (Seabrook Station, Unit 1), CLI-12-05, 75 NRC __, slip op. at 8 (Mar. 8, 2012).

18 Crow Butte Res. Inc. (N. Trend Expansion Project), CLI-09-12, 69 NRC 535, 552 (2009); see also Crow Butte Res., Inc. (License Renewal for In Situ Leach Facility, Crawford, Neb.), CLI-09-9, 69 NRC 331, 363-364 (2009).

19 10 C.F.R. § 2.309(f)(1) (emphasis added).

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(5) provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents that support the petitioners position and upon which the petitioner intends to rely; and (6) provide sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact.20 Licensing boards must reject a proposed contention that fails to comply with any one of these six admissibility criteria.21 The Commissions rules on contention admissibility are strict by design.22 The Commission toughened [the rules] in 1989 because in prior years licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation.23 The Commission designed its current contention pleading requirements to avoid the admission of frivolous contentions where the petitioner may not fully understand a contention or does not adequately identify the issues that [it] seeks to litigate.24 Quite recently, the Commission instructed that contentions shall not be admitted if at the outset they are not described with reasonable specificity or are not supported by some alleged fact or facts demonstrating a genuine material dispute with the applicant. We properly reserve our hearing process for genuine, material controversies between knowledgeable litigants.25 20 10 C.F.R. § 2.309(f)(1)(i)-(vi). The seventh contention admissibility requirement10 C.F.R.

§ 2.309(f)(1)(vii)is only applicable in proceedings arising under 10 C.F.R. § 52.103(b) and, therefore, has no bearing on the admissibility of NRDCs proposed contentions in this proceeding. Exelon provided a more thorough description of the legal principles governing the application of each of the six criterion in its December 20, 2011 Answer. See Exelons Answer at 5-10.

21 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

22 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001) (citing Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 334 (1999)).

23 Millstone, CLI-01-24, 54 NRC at 358 (citing Oconee, CLI-99-11, 49 NRC at 334).

24 Proposed Rule, Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 51 Fed. Reg. 24,365, 24,366 (July 3, 1986). The Commission also has emphasized that the contention pleading rules are designed to ensure both that only well-defined issues are admitted for hearing and that parties admitted to litigate sophisticated technical issues are qualified to do so. North Trend, CLI-09-12, 69 NRC at 552.

25 Seabrook, CLI-12-05, slip op. at 7 (citation omitted).

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IV. ARGUMENT The Board erred when it admitted Contention 1-E, which was reframed by the Board as follows:

Applicants [ER] § 5.3 erroneously concludes that new information related to its severe accident mitigation design alternatives

[(SAMDAs)] 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 [SAMAs]

previously considered for other [boiling water reactor (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.26 As a threshold matter, Contention 1-E is not a conventional SAMA contention like those that other licensing boards and the Commission have seen in recent license renewal proceedings for Seabrook,27 Pilgrim,28 and Davis Besse,29 for example. As explained in the sections that follow, unlike the applicants in those proceedings, Exelon is not required to conduct a SAMA analysis to support Limericks license renewal, because the NRC Staff performed an analysis of SAMDAs as part of Limericks original plant licensing. This specific exception is set forth clearly and unambiguously in 10 C.F.R. § 51.53(c)(3)(ii)(L).

Although Exelon need not perform a new SAMA analysis to support Limericks license renewal, Section 51.53(c)(3)(iv) does require Exelon to evaluate whether there is any new and 26 Limerick, LBP-12-08, slip op. at 40.

27 See Seabrook, CLI-12-05, slip op. at 47 (reversing the licensing boards admission of a SAMA contention).

28 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC __, slip op. at 2, 31 (Feb. 9, 2012) (denying intervenors appeal of the boards rejection of a SAMA contention).

29 See Davis-Besse, CLI-12-08, slip op. at 5 (reversing the licensing boards admission of two aspects of a SAMA contention).

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significant information regarding the environmental impacts of license renewal of which the applicant is aware. It is Exelons position that the adequacy of its consideration of new and significant information related to the prior Limerick SAMA analysis, however, may not be challenged in the instant license renewal proceeding absent a waiver. This position is consistent with the Commissions rulings in Pilgrim and Vermont Yankee, in which it upheld licensing board determinations that an intervenor may not challenge an applicants analysis of new and significant information for matters otherwise resolved by rule.30 To allow otherwise would obviate the exceptions in Section 51.53(c)(3), and permit unfettered challenges to analyses that the Commission has expressly determined, by rule, need not be conducted again for purposes of license renewal.

In addition, as admitted by the Board, Contention 1-E challenges Exelons consideration of off-site economic costs related to a severe accident, as those costs pertain to SAMA cost-benefit analyses. But this part of Contention 1-E fails to include sufficient support to show that Exelons analysis was unreasonable, and thus fails to demonstrate a genuine dispute on a material issue, as required by 10 C.F.R. § 2.309(f)(1). Exelons Answer fully explains why NRDCs purported support for the Contention actually illustrates the reasonableness of Exelons analysis of new and significant information.31 The Board, however, fails to address the Exelon Answers argument in LBP-12-08, which was a clear error.

30 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13, 17-18 (2007); see also Entergy Nuclear Generation Co. (Vt. Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 149 (2006); Entergy Nuclear Generation Co (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 288 (2006).

31 See Exelons Answer at 47-49 (explaining that the economic cost ratios proffered by NRDC actually demonstrate that the value used by Exelon was reasonable).

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A. Relevant Background NRC regulations expressly provide that Exelon need not evaluate SAMAs for purposes of Limericks license renewal.32 The regulatory and procedural context underlying this regulatory provisionwith which the Board correctly agrees33is summarized below.

As a threshold matter, NRC regulations at 10 C.F.R. § 51.53, implementing the requirements of the National Environmental Policy Act, as amended (NEPA),34 require that a license renewal application include an ER that analyzes the environmental impacts of the proposed action, as well as certain mitigation alternatives.35 Among the mitigation alternatives that license renewal applicants may be required to address under 10 C.F.R. § 51.53(c)(3)(ii)(L),

are SAMAs. The genesis of that requirement lies in the litigation over issuance of the original Limerick operating licenses, which ultimately reached the Third Circuit Court of Appeals.36 As a result of that litigation, the NRC Staff prepared an analysis of SAMDAs as part of initial Limerick licensing.37 In August 1989, the NRC Staff published its findings in the NUREG-0974 Supplement, Final Environmental Statement related to the operation of Limerick Generating 32 See Exelons Answer at 10-16.

33 See LBP-12-08, slip op. at 33-34.

34 See 42 U.S.C. § 4321, et seq.

35 See id. § 4332(2)(C). Issuance by NRC of a renewed operating license is a major federal action under NEPA. See La. Energy Servs. L.P. (Natl Enrichment Facility), LBP-06-8, 63 NRC 241, 258 (2006).

36 See Limerick Ecology Action, Inc. v. U.S. NRC, 869 F.2d 719, 726 (3rd Cir. 1989). In the licensing proceeding for the original operating license at Limerick, several intervenors challenged the applicants failure to consider SAMAs in its ER. See id. at 722-23. The licensing board did not admit that contention.

See id. at 732. An Appeal Board affirmed the licensing boards decision, see Phil. Elec. Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 696-97 (1985), and the Commission declined review. See Phil. Elec. Co. (Limerick Generating Station, Units 1 and 2), CLI-86-5, 23 NRC 125 (1986).

Prior to the ruling by the U.S. Court of Appeals for the Third Circuit in that matter, the NRC reasoned that the probability of severe accidents was so low that consideration of the consequences under NEPA was unnecessary. See Limerick Ecology Action, 869 F.2d at 726; Answer at 11-12. The Third Circuit disagreed, however, and found that the NRCs failure to consider SAMAs in individual licensing proceedings violated NEPA. Limerick Ecology Action, 869 F.2d at 741 (remanding the matter for consideration of the SAMA contention).

37 See NUREG-0974, Supp., Final Environmental Statement Related to the Operation of Limerick Generating Station, Units 1 and 2 (Aug. 1989), available at ADAMS Accession No. ML11221A204 (Limerick FES).

8

Station, Units 1 and 2 (Limerick FES), concluding that, based on its analysis of the cost of SAMDAs and the resulting cost per person-rem averted, no modifications to the plant were justified for mitigating severe accident risk.38 In the years that followed, the NRC Staff evaluated the environmental impacts of licensing that it could address generically, consistent with NEPA.39 The Commission reasoned that many environmental issues that apply to license renewal applicants, in particular, could be resolved generically.40 Thus, in 1996, the NRC published its generic findings in NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS).41 The NRC also amended its environmental regulations at 10 C.F.R. Part 51 to codify certain findings from the GEIS.42 In this regard, Part 51 divides the environmental impacts from license renewal into Category 1 and Category 2 issues.43 Category 1 issues are those resolved for all plants by the GEIS and as such, Category 1 issues need not be addressed in plant-specific license renewal ERs.44 In comparison, Category 2 issues require plant-specific review.45 For each license renewal applicant, Part 51 requires that the NRC Staff prepare a plant-specific 38 See Limerick FES at vi.

39 See Balt. Gas & Elec. Co. v. [NRDC], 462 U.S. 87, 97-98 (1983).

40 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,467-68 (June 5, 1996).

41 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Vol. 1 (May 1996), available at ADAMS Accession No. ML040690705.

42 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,467.

43 See generally, 10 C.F.R. pt. 51, subpt. A, app. B, tbl. B-1.

44 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,474.

45 See id.

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supplement to the GEIS that adopts applicable generic impact findings from the GEIS, evaluates any new and significant information, and discusses site-specific impacts.46 As for mitigation of severe accidents, the Commission determined that SAMAs must be considered on a plant-specific basis, pursuant to the NRCs NEPA regulations and the Third Circuits 1989 Limerick decision.47 But the Commission expressly noted that the Staff had already conducted a plant-specific SAMDA analysis at the operating license stage for three plantsLimerick Units 1 and 2, Comanche Peak Units 1 and 2, and Watts Bar.48 As a result, the Commission does not require another SAMA analysis to be conducted for purposes of license renewal for any of these plants.49 Section 51.53(c)(3)(ii)(L) codifies this determination, requiring:

If the staff has not previously considered severe accident mitigation alternatives for the applicants plant in an environmental impact statement or in an environmental assessment, a consideration of alternatives to mitigate severe accidents must be provided.50 46 See 10 C.F.R. § 51.95(c).

47 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,480; see also Limerick Ecology Action, 869 F.2d at 736-39.

48 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481 (an NRC staff consideration of SAMDAs was specifically included in the [FES] for the Limerick 1 and 2 and Comanche Peak 1 and 2 operating license reviews, and in the Watts Bar Supplemental Final Environmental Statement for an operating license).

49 Id. (NRC staff considerations of [SAMAs] have already been completed and included in an EIS or supplemental EIS for Limerick, Comanche Peak, and Watts Bar. Therefore, [SAMAs] need not be reconsidered for these plants for license renewal.). Statements of Consideration illustrate or explain rules that are legally binding. See Exelon Answer at 19 n.107; Oral Arguments Tr. 134-136 (Polonsky), Feb. 21, 2012 (citing Paina, CLI-08-03, for the premise that the Commission uses Statements of Consideration as an aid in interpreting NRC regulations, in response to questions posed by the Board in its January 31, 2012 Notice and Order (Scheduling Oral Argument)).

50 10 C.F.R. § 51.53(c)(3)(ii)(L); see also 10 C.F.R. pt. 51, subpt. A, app. B, tbl. B-1; see also Tr. 166 (the Commission recognized back in 1996 that future SAMA analyses could identify other cost beneficial mitigation measures, but that they still made the determination. They drew the line and made the determination that if a SAMA had been done for a plant, another one need not be for license renewal given the other generic and site specific studies that had been done and would continue to be done for that plant.) (Kanatas).

10

Because the Commission could not resolve the matter of SAMAs generically for all plants, it determined in the Part 51 rulemaking that the issue of severe accidents must be reclassified as a Category 2 issue that requires a consideration of severe accident mitigation alternatives, provided this consideration has not already been completed.51 In other words, consideration of severe accident mitigation alternatives is functionally a Category 1 issue for Limerick; that is, an issue that need not be addressed at license renewal, and one that the Commission has resolved generically by rule for Limerick and other similarly situated plants.52 In this procedural context, and within this regulatory framework, Exelon prepared its ER for license renewal. For purposes of compliance with Section 51.53(c)(3)(ii)(L), Exelon did not conduct another SAMA analysis.53 But, as required by Section 51.53(c)(3)(iv), Exelon did evaluate the significance of new information that post-dated the 1989 FES, relating to matters such as offsite economic cost risk.54 Exelon concluded that there is no new and significant information relevant to the conclusions codified in 10 C.F.R. § 51.53(c)(3)(ii)(L).55 B. The Board Clearly Erred in Admitting a Contention Challenging New and Significant Information Related to An Issue Resolved by Rule, Absent a Waiver The threshold legal issue on appeal is whether the adequacy of Exelons analysis of new and significant information related to SAMAs is litigable in a license renewal proceeding, absent 51 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,480 (emphasis added); see also 10 C.F.R. pt. 51, subpt. A, app. B, tbl. B-1 (identifying severe accident mitigation as a Category 2 issue).

52 See Exelons Answer at 14-16 (providing a more fulsome explanation of the relevant regulatory history).

53 See ER at 4-49. Nor did Exelon incorporate the Limerick 1989 SAMDA analysis in the Limerick license renewal ER, as NRDC erroneously suggests. See Petition at 16; ER at 5-4; see also Limerick, LBP-12-08, slip op. at 30.

54 See ER at 5-6 to 5-9; see also Tr. 72-73, 75, 98-99 (Polonsky).

55 ER at 4-49.

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a waiver from the Commission under Section 2.335.56 In LBP-12-08, the Board held that it is, and that a waiver is not necessary.57 As explained below, that holding is inconsistent with NRC precedent in the license renewal proceedings for Pilgrim and Vermont Yankee58 and misinterprets a dispositive legal argument posed by Exelon and the NRC Staff.

To fully appreciate the question presented by Contention 1-E, it is helpful to review the regulatory construction of 10 C.F.R. § 51.53(c)(3). Section 51.53(c) contains the NRCs requirements for a license renewal applicants environmental review. Section 51.53(c)(1) requires that a license renewal applicant submit an ER, and Section 51.53(c)(2) describes the required components of that ER. Section 51.53(c)(3) provides that the ER shall include the information required in paragraph (c)(2) of this section subject to the following conditions and considerations. Emphasis added. Section 51.53(c)(3) then lists four subsections defining the applicable conditions and considerations: (i), (ii), (iii), and (iv).

Subsections (i), (ii), and (iv) are relevant to the instant analysis. Subsection (i) provides that Category 1 issues need not be addressed in an ER. This is the subsection that the Commission explicitly addressed in Pilgrim and Vermont Yankee.59 Subsection (ii) contains 56 The Boards description of Exelons position as a blanket assertion that these issues are not litigable at license renewal is not accurate. See Limerick, LBP-12-08, slip op. at 11. Both in its Answer and at oral argument, Exelon repeatedly made clearas did the Staffthat such issues are not litigable absent a waiver. See, e.g., Exelons Answer at 25 (Commission precedent clearly requires thatabsent a waiver an [ASLB] must reject any contention); id. at 26 (NRDCs argument must fail given its failure to seek and obtain waiver); id. at 27 (because NRDC has not sought the requisite waiver . . .); id. at 28 (it is well-settled that, absent a waiver . . .); id. at 33 (contentions that challenge an applicants consideration of new and significant information related to a Category 1 issue are inadmissible, absent a waiver.); Tr. at 24 (Polonsky) (an existing NRC regulation cannot be challenged in a license renewal proceeding, absent a waiver); Tr. at 54 (Polonsky) (I tend to simplify and say its not litigable. Its not litigable. But clearly,

[10 C.F.R. §] 2.335 exists to everything I am saying, and if there is a waiver that it submitted and granted by the Commission then of course, it could be litigable, but we dont have those circumstances here.).

57 See Limerick, LBP-12-08, slip op. at 11, 16.

58 See Vt. Yankee, LBP-06-20, 64 NRC at 155-61; Pilgrim, LBP-06-23, 64 NRC at 294-300; Pilgrim & Vt.

Yankee, CLI-07-3, 65 NRC at 16; see also Massachusetts v. U.S. NRC, 522 F.3d 115 (1st Cir. 2008).

59 See Pilgrim & Vt. Yankee, CLI-07-3, 65 NRC at 16.

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specific analyses that must be included in an ER, and other analyses thatlike Category 1 issuesneed not be included in an ER. This is the subsection that contains the exception for Exelon from the requirement to prepare a SAMA analysis for Limerick as part of license renewal. Finally, subsection (iv) requires the ER generally to include any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware.

The threshold legal question before the Commission, then, is: how should the requirement at Subsection (iv) to consider new and significant information be understood in light of the other subsections of 51.53(c)(3) (i.e., Subsections (i) and (ii)) that exempt certain analyses from consideration in license renewal? In other words, what is a licensing board to do with a contention that challenges the adequacy of an applicants analysis of new and significant information for an issue otherwise precluded by rule?

The answer to this question reaches far beyond the Limerick license renewal proceeding.

Indeed, if the Boards ruling is allowed to stand, then license renewal applicants excluded from the requirements to consider any of the analyses listed under 10 C.F.R. §§ 51.53(c)(3)(ii)(A)-(D),

(F)-(H), or (L), may nevertheless find those analyses at issue in license renewal litigation.

Moreover, the Boards ruling could undermine the waiver requirement of 10 C.F.R. § 2.335, as it applies to NRC adjudicatory proceedings generally.

Even at the most superficial level, admission of Contention 1-E obviates the plain language exception in Section 51.53(c)(3)(ii)(L). It would be illogical for the rule to except Limerick from the requirement to include a SAMA analysis in its license renewal ER, but nonetheless subject the adequacy of such an analysis to litigation in a license renewal 13

proceeding.60 And reading Section 51.53(c)(3)(iv) to eviscerate Section 51.53(c)(3)(ii) violates Supreme Court instruction to read the body of regulations . . . so as to give effect, if possible, to all of its provisions.61 But the Commission need not decide this question on a superficial level, or even decide it anew. A series of NRC and federal court holdings pertaining to license renewal for Pilgrim and Vermont Yankee previously examined the fundamental legal question that is at issue here.62 In those cases, and after a thorough examination of the regulatory history of Section 51.53(c)(3),

Licensing Boards, the Commission, and the Court of Appeals for the First Circuit all concluded that a petitioner in a license renewal proceeding may not use Subsection (iv) to litigate matters excluded under Subsection (i), absent a waiver from the Commission.63 The crux of those decisions was not the Category 1 nomenclature covered by Subsection (i). Rather, it was because the analyses at issue were expressly precluded by rule from consideration in a license renewal proceeding.

In LBP-12-08, the Board erroneously interpreted this precedent as being limited to whether Exelon could establish that SAMAs are, indeed, Category 1 issues for Limerick.64 60 See Tr. 106 (Polonsky) (one of the concerns from a legal perspective is that the Commission created the exception, and that there not be some back door to eviscerate the exception . . . .).

61 Jay v. Boyd, 351 U.S. 345, 360 (1956); see also Hart v. McLucas, 535 F.2d 516, 519 (9th Cir. 1976)

(constructions which render regulatory provisions superfluous are to be avoided ); see also Exelons Answer at 26, 33.

62 See, e.g., Vt. Yankee, LBP-06-20, 64 NRC. at 156 (assuming arguendo that an ER fails to include new and significant information (known to the applicant) relating to a Category 1 environmental issue and thus fails to comply with 10 C.F.R. § 51.53(c)(3)(iv), does this give rise to an admissible contention? Normally, the answer would be yes. Indeed, the essence of virtually all admissible contentions is an allegation that the applicant has failed to address, or has inadequately addressed, some legally required matter. In this case, however, the Commission has answered the question in the negative. The AGs contention is therefore inadmissible.).

63 See id., LBP-06-20, 64 NRC. at 155-61; Pilgrim, LBP-06-23, 64 NRC at 294-300; 65 NRC at 16; Pilgrim

& Vt. Yankee, CLI-07-3, 65 NRC at 16; Massachusetts, 522 F.3d 115.

64 Limerick, LBP-12-08, slip op. at 13. Likewise, Counsel for NRDC depends on the conclusion that SAMA analyses are Category 2, but misses the larger point that for Limerick, this analysis is precluded by rule.

See Tr. 59-61, 84 (Roisman). And beyond arguing that SAMA analyses are Category 2, NRDCs counsel 14

But that is not what Exelon asserted. Although it is Exelons position that SAMA analysis is a Category 1 issue for Limerick and certain other plants65by virtue of previous completion of NRC-approved SAMDA analyses for those plantsExelon also made clear that a SAMA analysis for Limerick need not be a Category 1 issue for the legal principle in Pilgrim and Vermont Yankee to apply.66 As the NRC Staff noted at oral argument, whether or not SAMA analyses are a Category 1 issue for Limerick is a distinction without a difference.67 Either way, the analysis at issue is one that the Commission has expressly precluded by rule, which itself precludes litigation absent a waiver from the Commission under Section 2.335.

The following paragraphs explain the legal precedent at issue and its applicability to this proceeding. In the license renewal proceedings for both Pilgrim and Vermont Yankee, the Massachusetts Attorney General (AG) proffered one contention challenging Entergys ERs on the basis that they failed to address new and significant information regarding a Category 1 issue; specifically, a severe spent fuel pool fire.68 The AG asserted that a plain reading of Section 51.53(c)(3)(iv) leads to the conclusion that the new and significant information an has no other basis or legal support for his assertion that Pilgrim and Vermont Yankee do not apply to the instant proceeding. See Tr. 89 (Roisman).

65 See Exelon Answer at 27-28; Tr. at 47-49, 63-66, 83-84, 122-123 (Polonsky); see also Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,480 (the issue of severe accidents must be reclassified as a Category 2 issue that requires a consideration of severe accident mitigation alternatives, provided this consideration has not already been completed.) (emphasis added);

GEIS at xliv, 5-114 (Staff evaluations of alternatives to mitigate severe accidents have already been completed and included in an EIS or supplement for Limerick, Comanche Peak, and Watts Bar; therefore, severe accident mitigation need not be reassessed for these plants for license renewal. . . . [S]evere accidents are a Category 2 issue for plants that have not performed a site-specific consideration of severe accident mitigation and submitted that analysis for Commission review.) (emphasis added).

66 See Exelons Answer at 33 (And the same result must ensue, even setting aside the Category nomenclature. Given the construction of Section 51.53(c)(3), there is no basis to distinguish the Commissions holdings with respect to contentions based on Section 51.53(c)(3)(i), from contentions based on Section 51.53(c)(3)(ii).); Tr. at 47-48 (Polonsky) (the Board does not need to find that the SAMDA or SAMA issue is a Category 1 issue for Limerick.).

67 Tr. at 65-66 (Smith).

68 See Pilgrim, LBP-06-23, 64 NRC at 280; Vt. Yankee, LBP-06-20, 64 NRC at 152.

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applicant provides must include Category 1 issues, and a petitioner is entitled to challenge the adequacy of the ER in this regard.69 Both the Pilgrim and Vermont Yankee Boards disagreed with the AG, ruling that a petitioner may not challenge the applicants consideration of new and significant information related to Category 1 issues.70 The Pilgrim Board explained:

Section 51.53(c)(3)(iv) may well be viewed as being ambiguous, in that it clearly conflicts with Section 51.53(c)(3)(i) and there is no plain language explicitly stating that § 51.53(c)(3)(iv) creates an exception to Section 51.53(c)(3)(i) - in any context. From this perspective, the Commission . . . may be viewed as having the discretion to state its interpretation of these regulatory provisions as it did in Turkey Point. And thus this Licensing Board would appear to be bound by the Commissions interpretation of

§ 51.53(c)(3)(iv) in Turkey Point, to the effect that

§ 51.53(c)(3)(iv) creates an exception to Section 51.53(c)(3)(i) in the context of the requirements for ERs and EISs but not with regard to the scope of issues permitted to be raised in contentions in a license renewal adjudication context, absent a waiver. . . . 71 In other words, reading Subsections (i) and (iv) together, an applicants ER must address new and significant information about even those matters otherwise precluded from consideration by rule. But the sufficiency of the applicants evaluation of that new and significant information may not be litigated, absent a waiver.72 69 See Pilgrim, LBP-06-23, 64 NRC at 298 n.170.

70 See Vt. Yankee, LBP-06-20, 64 NRC at 155-61; Pilgrim, LBP-06-23, slip op. at 294-300. Moreover, the Pilgrim Board reached this result despite finding the AGs interpretation to be a reasonable reading of the rule. See Pilgrim, LBP-06-23, 64 NRC at 298 n.170.

71 Pilgrim, LBP-06-23 at 299 n.170.

72 Although Exelon and the NRC Staff have repeatedly asserted that Contention 1-E is inadmissible absent a waiver, see supra note 56, NRDC has not sought a waiver in this proceeding. In its Petition to Intervene, NRDC claims that it cannot seek a waiver until it has been admitted to the proceeding as a party. See Petition at 25 n.7. In response to Exelons position that NRDC is incorrect as a matter of law, Exelons Answer at 20, NRDC asserts that a waiver petition would not be ripe unless the Board held that SAMAs are a Category 1 issue for Limerick. See NRDC Reply at 11 n.6.

At the oral argument, counsel for Exelon or the NRC Staff raised NRDCs option of seeking a waiver well over a dozen times. See Tr. at 24 (Polonsky); id. at 51 (Smith); id. at 52 (Smith); id. at 54 (Polonsky); id. at 81 (Polonsky); id. at 84 (Polonsky); id. at 108 (Smith); id. at 117 (Smith); id. at 121 (Polonsky); id. at 154 16

Given the construction of Section 51.53(c)(3), and as Exelon made clear in its Answer, there is no basis to distinguish the above holding for a contention based on Section 51.53(c)(3)(i) from contentions based on Section 51.53(c)(3)(ii).73 Both subsections include limits to the conditions and considerations that a license renewal applicant must consider.74 And both are equally positioned with respect to Section 51.53(c)(3)(iv).75 Thus, although it is Subsection (ii),

rather than Subsection (i), that is at issue for Limerick, the Pilgrim and Vermont Yankee logic applies: Section 51.53(c)(3)(iv) creates an exception to Section 51.53(c)(3)(ii) in the context of the requirements for ERs and EISs, but not with regard to the scope of issues permitted to be raised in contentions in a license renewal adjudication context, absent a waiver.

The Pilgrim and Vermont Yankee Boards concluded that this outcome was consistent with the regulatory history of 10 C.F.R. § 51.53(c)(3)(iv).76 They explained that Section 51.53(c)(3)(iv) was not originally part of the proposed rule.77 When the NRC Staff discussed the addition of Section 51.53(c)(3)(iv) in a memorandum to the Commission (SECY-93-032), it specifically proposed that litigation of Category 1 environmental issues in license renewal hearings would not be permitted, absent a waiver.78 This proposal was vetted openly during the (Polonsky); id. at 163 (Kanatas); id. at 168 (Kanatas); id. at 172 (Polonsky); id. at 173 (Polonsky); id. at 176 (Kanatas); id. at 257 (Polonsky). But the Board did not once ask counsel for NRDC why it had not sought a waiver, and counsel for NRDC did not offer that information. See generally, Tr.

73 See Exelons Answer at 33-34.

74 See 10 C.F.R. § 51.53(c)(3).

75 Russello v. United States, 464 U.S. 16, 22-23 (1983) (considering statutory structure an element of statutory interpretation); Black & Decker Corp. v. Commr of Internal Revenue, 986 F.2d 60, 65 (4th Cir. 1993)

(Regulations, like statutes, are interpreted according to the canons of construction.).

76 Pilgrim, LBP-06-23, 64 NRC at 295; Vt. Yankee, LBP-06-20, 64 NRC at 157.

77 Pilgrim, LBP-06-23, 64 NRC at 295-96; Vt. Yankee, LBP-06-20, 64 NRC at 157.

78 See Pilgrim, LBP-06-23, 64 NRC at 296; Vt. Yankee, LBP-06-20 64 NRC at 157-58. Specifically, as documented in SECY-93-032, the Staff assured the Commission that [l]itigation of environmental issues in a hearing will be limited to [Category 2] issues unless the rule is suspended or waived. SECY-93-032, 10 CFR Part 51 Rulemaking on Environmental Review for Renewal of Nuclear Power Plant Operating Licenses at 4 (Feb. 9, 1993), available at ADAMS Accession No. ML072260444.

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deliberations of the modifications to Part 51 that were supported by the 1996 GEIS and the recommendations of SECY-93-032. Notably, one Commissioner twice asked whether a petitioner could litigate a Category 1 issue, under Section 51.53(c)(3)(iv) or any other regulation, on the claim that there was new and significant information on the issue.79 And on both occasions, the NRC Deputy General Counsel responded that the claim could not be litigated unless the petitioner first obtained a waiver from the Commission.80 It was with this understanding of the regulations that the Commission approved and finalized the addition of Section 51.53(c)(3)(iv).81 The regulatory history of Part 51 thus unequivocally demonstrates that the Commission did not intend Section 51.53(c)(3)(iv) to allow petitioners to challenge issues precluded by rule from consideration in an ER, absent a waiver from the Commission.

That regulatory history requires the same conclusion in the instant proceeding. As Exelon explained in its Answer, the NRC Deputy General Counsels specific assurance to the Commission was that [l]itigation of environmental issues in a hearing will be limited to unbounded category 2 and category 3 issues unless the rule is suspended or waived.82 At the time of those deliberations, the NRC divided environmental issues into three categories for the Part 51 rulemaking.83 Under the three-category scheme, Category 2 issues were those for which [a] generic conclusion on the impact has been reached for affected nuclear power plants 79 See Pilgrim, LBP-06-23, 64 NRC at 297; Vt. Yankee, LBP-06-20, 64 NRC at 158-59.

80 Pilgrim, LBP-06-23, 64 NRC at 297; Vt. Yankee, LBP-06-2064 NRC at 158.

81 Pilgrim, LBP-06-23, 64 NRC at 297; Vt. Yankee, LBP-06-20, 64 NRC at 158.

82 SECY-93-032, at 4;. see also Exelons Answer at 31 n.157.

83 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,474; Exelons Answer at 31 n.157. Ultimately, the Commission employed the two category scheme described at page 9, above. See also Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,473-74 (explaining the transition from three categories to two).

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that fall within defined bounds.84 [A]pplicants would have . . . not provided additional analyses if their plant falls within the bounds defined in the rule for a Category 2 issue.85 In other words, bounded Category 2 issues, like Category 1 issues, need not be considered at license renewal.

Under that three-category construct, SAMA analyses would be a bounded Category 2 issue for Limerick; that is, Limerick need not provide additional SAMA analysis, because it falls within the bounds defined in the rule.86 And according to the NRC Deputy General Counsels assurance, upon which the Commission relied in approving the addition of Section 51.53(c)(3)(iv), SAMA analysesa bounded Category 2 issue for Limerickcould not be litigated in a hearing.87 The Commission and the U.S. Court of Appeals for the First Circuit affirmed the boards rulings in Pilgrim and Vermont Yankee that Section 51.53(c)(3)(iv) does not permit petitioners to challenge issues precluded under Section 51.53(c)(3)(i). After the Massachusetts AG appealed both licensing board determinations, the Commission denied the appeals and affirmed the 84 Id. at 28,473.

85 Id.

86 See 10 C.F.R. § 51.53(c)(3)(ii)(L) (If the staff has not previously considered [SAMAs] for the applicants plant . . . .).

Although the determination is not legally significant, the Statements of Consideration for Part 51 contain further evidence that SAMA analyses are a Category 1 issue for Limerick. In the final rule, the NRC merged the three categories into two categories. See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,473-74. Category 1 issues become those that could be resolved for all plants, and Category 2 was reserved for everything else. See id. at 28,474. The NRC explained, [i]f the [] Category 1 criteria apply to a subset of plants that are readily defined by a common plant characteristic, [i.e., prior completion of a SAMA analysis], the population of plants is partitioned into the set of plants with the characteristic and the set of plants without the characteristic. For the set of plants with the characteristic, the issue is Category 1 . . . . Id. at 28,474.

87 See supra note 82.

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licensing boards decisions and underlying reasoning.88 On further appeal by the Massachusetts AG, the First Circuit upheld the decisions of both licensing boards and the Commission.89 The First Circuit noted that NEPA permits the NRC to streamline the license renewal process via rulemakings.90 The court further reasoned that prohibiting petitioners from challenging new and significant information pertaining to issues decided by rulemaking was permissible under NEPA, because the NRC has established other means to challenge those findings.91 Specifically, individuals may petition for rulemaking, comment on the NRC Staffs draft FES, or seek a waiver from the Commission.92 The court concluded that denial of the Massachusetts AGs contention was reasonable in context, and consistent with [NRC] rules.93 Clearly then, reaching the same result in the instant proceeding would be a consistent application of the law. As the Boards in Pilgrim and Vermont Yankee noted, while NRC rules 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, individual licensing proceedings are not one such opportunity.94 Likewise, NRDC has had multiple opportunities to challenge the SAMDA 88 Pilgrim & Vt. Yankee, CLI-07-3, 65 NRC at 16.

89 See generally Massachusetts, 522 F.3d 115. The Limerick Board correctly noted that a First Circuit decision is not binding on the Third Circuit, the jurisdiction in which Limerick is located. Limerick, LBP-12-08, slip op. at 12 n.64. But this First Circuit decision does give weight to the underlying Commission decision. And that Commission decision was, of course, binding on the Limerick Board.

90 See Massachusetts, 522 F.3d at 119.

91 Id. at 120.

92 See id. at 120-21; see also Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

CLI-01-17, 54 NRC at 3, 12 (2001).

93 Massachusetts, 522 F.3d at 127.

94 Pilgrim, LBP-06-23, 64 NRC at 295 (citing Turkey Point, CLI-01-17, 54 NRC at 12); see also id. (In

[statements of the Commission in Turkey Point], the Commission has indicated that any new and significant information on matters designated as Category 1 issues in Part 51 may be initiated by petitioners only through means other than the submission of contentions.); see also Vt. Yankee, LBP-06-20, 64 NRC at 156-57; Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449, 475 (2010).

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analysis for Limerick, as well as the NRCs rule that Limerick need not conduct an additional SAMA analysis at license renewal.95 This licensing proceeding, however, is not another such opportunity.

Accordingly, the same reasoning that dictated the outcome in Pilgrim and Vermont Yankee must apply in the instant proceeding: petitioners in license renewal proceedings may not litigate new and significant information related to an issue precluded by rule absent a waiver.

The Board incorrectly dismissed this precedent based on its conclusion that the Commission has not explicitly stated that SAMA analyses are Category 1 issues for Limerick.96 But this was not the only argument that Exelon presented on this issue. The Board clearly erred in not fully considering Exelons alternative position that SAMAs for Limerick cannot be challenged in a license renewal proceeding because they are excepted by rule, even absent a finding that SAMAs are Category 1 issues for Limerick.97 In particular, despite Exelons lengthy explanation of the applicability of this precedent in its Answer and at oral argument, as summarized above, the Board dismissed this position in only three sentences (and in so doing, demonstrated that it misunderstood Exelons basis for citing this precedent):

Exelon argues that 10 C.F.R. § 51.53(c)(2)(iii)(L) [(sic)] exempts Limerick from performing a SAMA, and that this regulatory exception requires that SAMAs be treated as a Category 1 issue, even if they are categorized as a Category 2 issue. We find no regulatory basis for such a wide ranging argument.98 95 See Tr. 24-25, 119-121, 171-172 (Polonsky) (identifying multiple ways in which NRDC may challenge the SAMA analysis for Limerick).

There are also multiple ways in which the NRC ensures that Exelons consideration of new and significant information related to SAMAs is adequate. As the NRC Staff explains in its Answer, the NRC has ongoing regulatory programs to identify plant vulnerabilities to severe accidents and consider cost beneficial improvements. See NRC Staff Answer at 8-13. In addition, the NRC Staff takes a hard look at new and significant information related to SAMAs, as part of its NEPA review. Id. at 13.

96 See Limerick, LBP-12-08, slip op. at 14.

97 See Exelons Answer at 33.

98 Limerick, LBP-12-08, slip op. at 16 (citations omitted).

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The Board said nothing further in this regard. It did not explain why Section 51.53(c)(3)(i) should be construed any differently than Section 51.53(c)(3)(ii), in relation to Section 51.53(c)(3)(iv). Nor did it explain why the regulatory history that formed the basis of the decisions in Pilgrim and Vermont Yankee did not apply equally to other issues precluded from consideration by rule, such as bounded Category 2 issues.

The Boards decision is thus clear error. Section 51.53(c)(3)(iv) is not a loophole through which NRDC may litigate matters that the NRC has resolved through rulemaking.

Contentions challenging Section 51.53(c)(3)(ii) under the guise of Section 51.53(c)(3)(iv) are inadmissible absent a waiver from the Commission, which NRDC has not sought.

C. The Board Also Clearly Erred When It Admitted a Contention That Does Not Demonstrate a Genuine Dispute of a Material Issue In addition, to the extent that Contention 1-E, as admitted by the Board, challenges Exelons economic cost analysis, the Contention altogether fails to demonstrate a genuine dispute of a material issue, as required by 10 C.F.R. § 2.309(f)(1)(iv). Specifically, the second part admitted by the Board in support of Contention 1-E asks whether Exelons use of data from

[Three Mile Island] in its analysis provides an adequate consideration of new and significant information regarding economic cost risk.99 Yet this part of Contention 1-E fails to raise a significant deficiency in Exelons ER, or demonstrate that the evaluation in the Limerick ER 99 Limerick, LBP-12-08, slip op. at 25. The Board clarified that [t]o the extent that Contention 1-E challenges Exelons reliance on data from TMI to evaluate the significance of economic cost risks, it is admissible. Id. The Board also explained, consistent with Exelons position, to the extent the contention directly challenges the contents of the 1989 SAMDA, this portion of Contention 1-E is inadmissible. Id.

The Board further agreed with Exelon that under 10 C.F.R. § 51.53(c)(3)(ii)(L), Exelon need not conduct another SAMA analysis for license renewal. See id. at 33-34; see also Exelons Answer at 48 (maintaining that Exelon is not legally obligated to conduct another SAMA analysis). Accordingly, Exelon has not reiterated those positions in this Appeal.

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was unreasonable.100 In fact, the support upon which the Petitioners and the Board rely shows that Exelons analysis is reasonable. As a result, the Board clearly erred in admitting this basis for Contention 1-E.

In admitting this part of the contention, the Board relied on NRDCs assertion that Exelons use of economic cost data from TMI is inappropriate because: (1) TMI is a pressurized water reactor (PWR), rather than a BWR, and has correspondingly different accident scenario source terms101; and (2) the economic center near TMI is smaller and less urban than Philadelphia, near Limerick.102 In particular, the Board relied upon a table presented in Dr.

McKinzies Declaration, listing the ratios of economic cost risk to exposure cost risk calculated for other BWR facilities.103 The Board found that the table provided the necessary support to render this part of the contention admissible.104 NRDC provided, and the Board relied on, no further support for this basis, despite the Commissions instruction that the burden is on Petitioners to come forward with the supportthe reason to believethat reliance on the [data 100 Pilgrim, CLI-12-01, slip op. at 24-25; see also Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-05, slip op. at 31 (Sept. 9, 2011) (requiring that an admissible contention present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned) (citing Hydro Resources, Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87120), CLI-99-22, 50 NRC 3, 14 (1999);

Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 373 (1989); Sierra Club v. Froehlke, 816 F.2d 205, 210 (5th Cir. 1987). In the SAMA context, the Commission focuses on whether a license renewal applicant has provided a reasonable consideration of SAMAs. Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481-82.

101 See Limerick, LBP-12-08, slip op. at 24.

102 See id. (citing Declaration of Thomas B. Cochran, Ph.D., Matthew G. McKinzie, Ph.D. and Christopher J.

Weaver, Ph.D., on Behalf of the Natural Resources Defense Council ¶ 33 (Nov. 22, 2011) (Declaration),

available at ADAMS Accession No. ML11326A322.

103 See id. at 24-25 (citing Declaration ¶ 34).

104 See id. at 24 (NRDC has also provided a table showing the ratio of economic cost risk to exposure cost for nine recently renewed BWRs.) (citing Declaration ¶ 34); id. (NRC regulations require a petitioner to provide a concise statement of the alleged facts or expert opinions which support its position. NRDC has done this, as its Joint Declaration provides a set of alleged facts regarding the ratio of economic cost risk to exposure cost risk at other BWR facilities.) (citing Declaration ¶¶ 32-34); id. at 24-25 (NRC regulations also require a petitioner to make reference to specific sources and documents on which it intends to rely.

NRDC has done this, as well, as it has drawn its analysis from and cited to SAMAs performed by other BWRs) (citing Declaration ¶ 34).

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in question] posed a significant defect.105 Under NEPA, Exelons economic cost risk analysis is adequate if it is reasonable.106 But in admitting this part of the contention, the Board failed to address Exelons response to the data proffered by Dr. McKinzie, in which Exelon maintained that its reliance on economic cost data from TMI is reasonable.107 As Exelon explained in its Answer, NRDC not only failed to show that Exelons economic cost analysis is not reasonable, but it actually demonstrates the reasonableness of the analysis.108 Exelons argument is not an attack on the merits. Rather, it is appropriate probing of an intervenors affidavit, which the Commission itself has performed at the admissibility stage.109 Therefore, the Board clearly erred in finding that this basis demonstrated a genuine dispute on a material issue.110 By way of background, Exelon stated in its Answer that, in evaluating whether off-site economic cost risks qualified as new and significant information, economic cost risk could be represented as a percentage of offsite exposure cost risk.111 Exelon looked to TMI Unit 1, a plant 105 Davis-Besse, CLI-12-08, slip op. at 29.

106 Consideration of mitigation alternatives, including SAMAs, is governed by the NEPA rule of reason.

Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-17, 56 NRC 1, 12 (2002) (citing Vt. Yankee Nuclear Power Corp. v. [NRDC] , 435 U.S.519, 551 (1978);

Citizens Against Burlington v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991)). In the SAMA context, the Commission focuses on whether a license renewal applicant has provided a reasonable consideration of SAMAs. Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481-82.

107 See Limerick, LBP-12-08, slip op. at 23-25; Exelons Answer at 47-49.

108 See Exelons Answer at 48-49.

109 See Davis-Besse, CLI-12-08, slip op. at 26-27 (examining documents that the Board relied on in concluding the admitted contention was adequately supported); id. at 28 (At the contention admissibility stage, it is Petitioners burden to come forward with factual or expert support for their argument that use of [different or additional data] could have altered the SAMA analysis to show . . . significantly different cost-benefit results).

110 Limerick, LBP-12-08, slip op. at 25.

111 See Exelons Answer at 48 (citing ER at 5-4 to 5-7, 5-8).

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also located in Pennsylvania, to obtain a value for that ratio of about 70%.112 Using that value, Exelon calculated the effect of off-site economic cost risk and determined that, even for the most cost beneficial alternatives, it would result in an adjusted cost per person-rem averted of $5,000, which remains well above . . . the currently used $2,000 per person-rem averted threshold.113 In other words, new information about economic cost risks did not qualify as new and significant information.114 To support NRDCs claim that the ratio of economic cost risk to exposure cost risk exhibits a wide variation, Dr. McKinzies Declaration provides cost ratios for eight BWR units, as well as TMI.115 Those nine cost ratios range from -16.0% to 238.4%.116 But the median ratio of these nine units is 63.9%, the average ratio is 62.1%, and only two reactor units have a greater ratio than TMI (72.1%): Nine Mile Point Unit 1 (91.1%) and Hope Creek (238.4%).117 Even considering only the data in Dr. McKinzies table from BWRs, as NRDC would have Exelon do,118 the median economic cost ratio is 48.2%, and the average ratio is 60.8%.119 In 112 Exelons Answer at 48 (citing ER at 5-8). The actual cost risk is 72.1%, but was rounded to 70%. See, e.g., Declaration ¶ 34.

113 ER at 5-8; see Exelons Answer at 48. The ER explains, the off-site economic cost risk is approximately 70% larger than the off-site exposure cost risk. Therefore, . . . a factor of 3 increase in the person-rem averted value for each SAMDA would provide an approximation for the impact due to economic cost. ER at 5-8. In other words, because off-site economic cost for TMI is 72% higher than off-site dose cost, off-site economic cost can be viewed as 1.72 times larger than off-site dose cost. Dose cost (a factor of 1) plus economic cost (a factor of 1.72) results in a factor of 2.72, which Exelon conservatively rounded to 3.

114 See Exelons Answer at 48 (citing ER at 5-8).

115 Declaration ¶¶ 33-34.

116 Declaration ¶ 34.

117 Declaration ¶ 34.

118 Declaration ¶ 33 (TMI is also an inappropriate example to use in estimating economic cost for Limerick because TMI is a [PWR] rather than a BWR). In admitting Contention 1-E, the Board relied on NRDCs position that economic cost data from TMI are inappropriate for use at Limerick because TMI is a PWR.

See Limerick, LBP-12-08, slip op. at 24. But the Board ignores Exelons argument that NRDCs own data demonstrate that the TMI value is reasonable, in light of values for the BWRs in Dr. McKenzies table.

The Board also relied upon NRDCs position that Exelons use of TMI data was unreasonable because the economic center near TMI is smaller and less urban than that near Limerick. See Limerick, LBP-12-08, slip op. at 24. Yet NRDCs own data fail to illustrate the materiality of proximate urban areas. For 25

other words, and as Exelons Answer makes clear, for all but two of the eight BWRs referenced by NRDC, economic cost risks represented a lower (i.e., less conservative) ratio of exposure cost risks than Exelon assumed in the Limerick ER.120 It is clear error for the Board to ignore this argument.

NRDC would have Exelon fine tune its economic cost analysis by conducting site-specific economic risk calculations for Limerick.121 But NRDC has not shown that the economic cost risk value used by Exelon is not reasonable, or that it produced a significant deficiency in the NEPA analysis.122 This basis is not admissible on the mere premise that another economic cost analysis might be superior. As the Commission recently explained, To challenge an application, a petitioner must point with support to an asserted deficiency that renders the SAMA analysis unreasonable under NEPA. In other words, [a] contention proposing alternative inputs or methodologies must present some factual or expert basis for why the proposed changes in the analysis are warranted (e.g., why the inputs or methodology used is unreasonable, and the proposed changes or methodology would be more appropriate). Unless a petitioner sets forth a supported contention pointing to an apparent error or deficiency that may have significantly skewed the environmental conclusions, there is no genuine material dispute for hearing.123 example, the ratios for the Nine Mile Point units shown on Dr. McKinzies table vary (22.8% and 91.1%),

although the units are co-located. See Declaration ¶ 34.

119 Declaration ¶ 34.

120 See Exelons Answer at 47-49.

121 See Pilgrim, CLI-12-01, slip op. at 24-25 (There is questionable benefit to spending considerable agency resources in an attempt to fine-tune a NEPA mitigation analysis.).

122 See Pilgrim, CLI-12-01, slip op. at 24-25 (With respect to a SAMA analysis in particular, unless a contention, submitted with adequate factual, documentary, or expert support, raises a potentially significant deficiency in the SAMA analysisthat is, a deficiency that could credibly render the SAMA analysis altogether unreasonable under NEPA standardsa SAMA-related dispute will not be material to the licensing decision, and is not appropriate for litigation in an NRC proceeding.).

123 Davis-Besse, CLI-12-08, slip op. at 18 (citing Seabrook, CLI-12-05, slip op. at 29); see also Pilgrim, CLI-12-01, slip op. at 24-25.

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Exelon does not dispute that the ratio of economic cost risk to exposure cost risk may vary between plants.124 But NEPA requires only reasonable analyses.125 Plainly, Dr.

McKinzies data support a conclusion that the use of the TMI value for the ratio of economic cost risk to exposure cost risk is reasonable, and thus consistent with NEPA requirements. But the Board altogether failed to address this result. And neither NRDC nor the Board relied on any other support for the premise that Exelons analysis is unreasonable. Accordingly, the Boards admission of this aspect of Contention 1-E represents clear error, as it fails to raise a genuine dispute of a material issue, and thus fails to satisfy the contention admissibility requirement under Section 2.309(f)(1)(iv).

124 See Exelons Answer at 49.

125 Davis-Besse, CLI-12-08, slip op. at 5 (NEPA requires consideration of reasonable alternatives.); Private Fuel Storage, CLI-02-25, 56 NRC 340, 348-49 (2002) (It is well established that NEPA requires only a discussion of reasonably foreseeable impacts. Grappling with this concept, various courts have described it as a rule of reason, or rule of reasonableness, which excludes remote and speculative impacts or worst-case scenarios.) (citations omitted).

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V. CONCLUSION For the foregoing reasons, the Commission should reverse the Boards admission of Contention 1-E. Because this is the only contention admitted by the Board, the Commission also should terminate the proceeding.

Respectfully submitted, Signed (electronically) by Alex S. Polonsky Alex S. Polonsky Kathryn M. Sutton Anna V. Jones Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5830 Fax: 202-739-3001 E-mail: apolonsky@morganlewis.com J. Bradley Fewell Vice President and Deputy General Counsel Exelon Generation Company, LLC 200 Exelon Way Kennett Square, PA 19348 Phone: 630-657-3769 Fax: 630-657-4335 E-mail: Bradley.Fewell@exeloncorp.com COUNSEL FOR EXELON Dated in Washington, D.C.

this 16th day of April 2012 DB1/ 69373013.8 28

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket Nos. 50-352-LR EXELON GENERATION COMPANY LLC ) 50-353-LR

)

(Limerick Generating Station, Units 1 and 2) ) April 16, 2012

)

CERTIFICATE OF SERVICE I hereby certify that on April 16, 2012 a copy of Exelons Notice of Appeal of LBP 08 and Exelons Brief In Support of the Appeal of LBP-12-08 was served by the Electronic Information Exchange on the following recipients:

Administrative Judge Office of the Secretary William J. Froehlich, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: HearingDocket@nrc.gov E-mail: William.Froehlich@nrc.gov Administrative Judge Office of Commission Appellate Adjudication Dr. William E. Kastenberg U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMail@nrc.gov E-mail: William.Kastenberg@nrc.gov Administrative Judge Matthew Flyntz Michael F. Kennedy Law Clerk Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: Michael.Kennedy@nrc.gov E-mail: Matthew.Flyntz@nrc.gov DB1/ 69546673.1 1

Natural Resources Defense Council (NRDC) Office of the General Counsel 1152 15th St., N.W. U.S. Nuclear Regulatory Commission Washington, D.C. 20005 Mail Stop O-15D21 Geoffrey H. Fettus, Senior Project Attorney Washington, DC 20555-0001 E-mail: GFettus@nrdc.org OGCMailCenter@nrc.gov Catherine Kanatas Catherine.Kanatas@nrc.gov National Legal Scholars Law Firm, P.C. Brian Newell 241 Poverty Lane, Unit 1 Brian.Newell@nrc.gov Lebanon, NH 03766 Maxwell Smith Anthony Z. Roisman, Managing Partner Maxwell.Smith@nrc.gov E-mail: ARoisman@nationallegalscholars.com Mary Spencer Mary.Spencer@nrc.gov Ed Williamson Edward.Williamson@nrc.gov Lauren Woodall Lauren.Woodall@nrc.gov Signed (electronically) by Anna V. Jones Anna Vinson Jones Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 Phone: (202) 739-5881 Fax: (202) 739-3001 E-mail: Anna.Jones@morganlewis.com Counsel for Exelon DB1/ 69546673.1 2