ML12235A464

8/16/12 - Beyond Nuclear Opening Brief

ML12235A464
Person / Time
Site:	Seabrook
Issue date:	08/16/2012
From:	Lodge T Beyond Nuclear, New Hampshire Sierra Club, Seacoast Anti-Pollution League
To:	US Federal Judiciary, Court of Appeals, 1st Circuit, NRC/OGC
Jeremy Suttenberg
References
00116418893, 12-1561
Download: ML12235A464 (209)

Text

Case: 12-1561 Document: 00116418893 Page: 1 Date Filed: 08/16/2012 Entry ID: 5666489 Case No. 12-1561 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT BEYOND NUCLEAR, Paul Gunter, Director of Reactor Oversight Project; NEW HAMPSHIRE SIERRA CLUB, Kurt Ehrenberg, Field Organizer; SEACOAST ANTI-POLLUTION LEAGUE, Doug Bogen, Executive Director, Petitioners, v.

U.S. NUCLEAR REGULATORY COMMISSION, Respondent, NEXTERA ENERGY SEABROOK, LLC, Intervenor.

ON PETITION FOR REVIEW FROM THE NUCLEAR REGULATORY COMMISSION OPENING BRIEF OF PETITIONERS Terry J. Lodge, Esq.

316 N. Michigan St., Suite 520 Toledo, OH 43604-5627 (419) 255-7552 tjlodge50@yahoo.com Counsel for Petitioners

Case: 12-1561 Document: 00116418893 Page: 2 Date Filed: 08/16/2012 Entry ID: 5666489 CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, the Petitioners in this case, Beyond Nuclear, New Hampshire Sierra Club and Seacoast Anti-Pollution League, by and through counsel, make the following individual representations:

1. Beyond Nuclear is a duly-incorporated not-for-profit corporation which does not issue stock shares. Consequently, no publicly-held company owns 10%

or more of Beyond Nuclears stock, and Beyond Nuclear has no parent company.

2. New Hampshire Sierra Club is a duly-incorporated not-for-profit corporation which does not issue stock shares. Consequently, no publicly-held company owns 10% or more of New Hampshire Sierra Clubs stock, and New Hampshire Sierra Club has no parent company.

3. Seacoast Anti-Pollution League is a duly-incorporated not-for-profit corporation which does not issue stock shares. Consequently, no publicly-held company owns 10% or more of Seacoast Anti-Pollution Leagues stock, and Seacoast Anti-Pollution League has no parent company.

` /s/ Terry J. Lodge Terry J. Lodge, Esq.

Ohio Bar No. 0029271 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 Phone (419) 255-7552 Fax (419) 255-7552 tjlodge50@yahoo.com lodgelaw@yahoo.com Counsel for Petitioners

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Case: 12-1561 Document: 00116418893 Page: 3 Date Filed: 08/16/2012 Entry ID: 5666489 TABLE OF CONTENTS Corporate Disclosure Statement I TABLE OF AUTHORITIES iv REASONS WHY ORAL ARGUMENT SHOULD BE HEARD viii STATEMENT OF JURISDICTION 1 ISSUES PRESENTED FOR REVIEW 3 STATEMENT OF THE CASE 5 STATEMENT OF THE FACTS 9

SUMMARY

OF ARGUMENT 19 ARGUMENT 29 Standard of Review 29 The Interplay Between NEPA and the AEA 32 Harm Under NEPA Occurs When Procedural Rights Are Abridged 32 Contention Admissibility Under the AEA 35 The Commission Impermissibly Weighed Some Evidence, And Ignored Some Evidence Entirely 37 Commission Failed to Follow AEA Limitations on Appeals 44 Unreasonable Constriction of the Range of Alternatives Under NEPA 44 Legal Precedent Cited By The Commission Is Inapposite, Distinguishable Or Completely Wrong 46

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Case: 12-1561 Document: 00116418893 Page: 4 Date Filed: 08/16/2012 Entry ID: 5666489

1. Citizens Against Burlington 47

2. Town of Winthrop 48

3. Carolina Environmental Study Group 50

4. Roosevelt Campobello Intl Park Commn v. EPA 53 Offshore Wind As A Discrete Source of Baseload Electric Generation 55 CONCLUSION 58 CERTIFICATE OF COMPLIANCE 62 CERTIFICATE OF SERVICE 62 ADDENDUM 64 Addendum pp. 1-68, Commission decision, CLI-12-05, Memorandum and Order (Ruling on Petitions for Intervention and Requests for Hearing)

Addendum pp.69-134, Atomic Safety and Licensing Board decision, LBP-11-02, Memorandum and Order (Ruling on Petitions for Intervention and Requests for Hearing)

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Case: 12-1561 Document: 00116418893 Page: 5 Date Filed: 08/16/2012 Entry ID: 5666489 TABLE OF AUTHORITIES Court Cases Page(s)

Adams v. EPA, 38 F.3d 43 (1st Cir. 1994) 29 Carolina Envtl. Study Grp. v. U.S., 510 F.2d 796 (D.C. Cir. 1975) 13, 15, 16, 17, 24, 25, 50, 51, 52 Citizens Against Burlington v. Busey, 938 F.2d 190 (D.C. Cir.),

cert. denied, 502 U.S. 994 (1991) 23, 46, 47, 48, 55 Citizens Awareness Network Inc. v. NRC, 391 F.3d 338 (1st Cir. 2004) 34 City of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir.1975) 24, 49 DuBois v. U.S. Dept. of Agric., 102 F.3d 1273 (1st Cir. 1996), cert. denied, 117 S.Ct. 1567 (1997) 61 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) 29 Fed. Mar. Commn v. Seatrain Line, Inc., 411 U.S. 726, 745-46 (1973) 29 Guidry v. Sheet Metal Workers National Pension Fund, 493 U.S. 365, 110 S.Ct. 680, 107 L.Ed.2d 782 (1990) 31 Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437 (4th Cir.

1996) 46 Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir. 1992) 60 Limerick Ecology Action, Inc. v. U.S. Nuclear Regulatory Comm'n, 869 F.2d 719 (3d Cir.1989) 28 Massachusetts v. EPA, 549 U.S. 497, 127 S.Ct. 1438 (2007) 32 Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1983) 19, 32

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Case: 12-1561 Document: 00116418893 Page: 6 Date Filed: 08/16/2012 Entry ID: 5666489 Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) 22, 29. 42, 58 Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C.

Cir. 1972) 25, 50, 52 Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission (Vermont Yankee I), 547 F.2d 633 (D.C. Cir. 1976), rev'd on other grounds sub nom. Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, Inc., 435 U.S. 519 (1978) 49, 60 North Carolina Wildlife Federation v. North Carolina Dept. of Transp.,

677 F.3d 596 (4th Cir. 2012) 58 Roosevelt Campobello Intl Park Commn v. EPA, 684 F.

2d 1041 (1st Cir. 1982) 16, 25, 26, 52, 53, 54, 55 Seacoast Anti-Pollution League v. NRC, 598 F.2d 1221 (1st Cir.

1979) 16, 26, 54, 55 Seattle Audubon Society v. Espy, 998 F.2d 699 (9th Cir. 1993) 59 Scientists' Institute for Public Information v. A.E.C., 481 F.2d 1079 (D.C.

Cir. 1973) 24, 49 Simmons v. Corps of Engineers, 20 F.3d 664 (7th Cir. 1997) 57 Teamsters v. Daniel, 439 U.S. 551 (1979) 59 Town of Brookline v. Gorsuch, 667 F.2d 215, 218 (1st Cir. 1981) 59 Town of Winthrop v. FAA, 535 F.3d 1 (1st Cir. 2008) 15, 23, 24, 47, 48 Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C.Cir.1990) 29 Upper Blackstone Water Pollution Abatement District v. United States Environment Protection Agency, 11-1474, 11-1610 (First Circuit,

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Case: 12-1561 Document: 00116418893 Page: 7 Date Filed: 08/16/2012 Entry ID: 5666489 August 3, 2012) (slip. op.) 60 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct.

1197 (1978) 20, 33 NRC Administrative Rulings Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), petition for reconsid. denied, CLI-02-1, 55 NRC 1 (2002) 34 Duke Energy Corp. (Oconee Stations Units 1, 2 and 3), 49 NRC 328 (1999 20, 35 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), 56 NRC 1 (2002) 35 Entergy Nuclear Generation Company (Pilgrim Nuclear Power Station)

(Pilgrim I), CLI-10-11, 71 NRC 287 (slip op.) 15 Florida Power & Light Co. (Turkey Point Nuclear Generating Station, Units 3 and 4), CLI-01-17, 54 NRC 3, 11-13 (2001) 15 Gulf States Utilities Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43 (1994) 43 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-98-13, 48 NRC 26 (1998) 43 Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2), LBP-09-10, 70 NRC 51 (2009) 22, 43 Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2),

ALAB-471, 7 NRC 477 (1978) 58 Washington Public Power Supply System (WPPSS Nuclear Project No. 2),

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Case: 12-1561 Document: 00116418893 Page: 8 Date Filed: 08/16/2012 Entry ID: 5666489 ALAB-722, 17 NRC 546 (1983) 19, 34 Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167 (1983) 44 Statutes 5 U.S.C. § 701 vii 5 U.S.C. § 706 28 28 U.S.C. § 2342 2 28 U.S.C. § 2343 2 28 U.S.C. § 2344 2 42 U.S.C. § 2239 vii, 2, 18, 29, 31 42 U.S.C. § 4332 32 Regulations 10 C.F.R. § 2.309 12, 18, 29, 30, 34, 35 10 C.F.R. § 2.714 43 10 C.F.R. § 51.45 19, 33 10 C.F.R § 51.53 8, 37

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Case: 12-1561 Document: 00116418893 Page: 9 Date Filed: 08/16/2012 Entry ID: 5666489 REASONS WHY ORAL ARGUMENT SHOULD BE HEARD Petitioners, environmental and safe energy organizations which timely intervened in the license extension proceeding for Seabrook Station, Unit 1 when that proceeding was commenced before the U.S. Nuclear Regulatory Commission, hereby request that oral argument be held. The owner of Seabrook, Nextera Energy Seabrook, LLC (NextEra), seeks to extend operations which are slated to terminate with the end of the current operating license, from the year 2030 to 2050.

Applying the standards of F.R.A.P. Rule 34(a)(2):

(a) this appeal is not frivolous, (b) the dispositive issues raised in this appeal have not been recently and authoritatively decided, and

( c) the Courts decisional process would be significantly aided by oral argument.

This petition for review questions a decision of the five-member NRC Commission, sitting as a quasi-judicial panel, which unanimously reversed one of the agencys Atomic Safety and Licensing Boards. The ASLB had admitted for adjudication a contention alleging that NextEra had failed to adequately analyze within its environmental report (a predicate document to a Supplemental Envi-

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Case: 12-1561 Document: 00116418893 Page: 10 Date Filed: 08/16/2012 Entry ID: 5666489 ronmental Impact Statement under NEPA) the potential development of com-mercial-scale offshore baseload wind power generation of electricity as an alternative by 2030 to electricity generated at Seabrook. The Petitioners submitted considerable documentary evidence in support of the position that offshore wind power will become a significant power source in New England in the next 15 years.

In reversing the licensing board decision, the Commission decided, perhaps inaccurately, that offshore wind power has little future feasibility in the region and thus is not a viable alternative to be considered under NEPA. This was an overreach and an arbitrary determination, rendered at a threshold stage of the proceeding, well before any trial on the merits of the contention. Petitioners contend that consequently, the Commission decision violated the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., the Atomic Energy Act (AEA, 42 U.S.C. § 2239 et seq. , and the National Environmental Policy Act (NEPA),

42 U.S.C. § 4321, et seq.

The Commissions decision was legally controversial, in part because the license extension application was initiated 20 years before the 2030 extension can go into effect. It involves the reversal by the Commission of a licensing panels discretionary decision. While NEPA is a procedural statute, the decision works to

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Case: 12-1561 Document: 00116418893 Page: 11 Date Filed: 08/16/2012 Entry ID: 5666489 deny public intervenors the substantive benefit of NEPA disclosure and analysis of an important, soon-to-be commercially viable renewable energy source.

Somewhat more than 70 of Americas commercial nuclear power reactors have received license extensions. As alternative energy sources such as offshore wind spread and flourish commercially, they likely will give rise in future license extension cases to more proffered contentions for genuine consideration of alter-native power generation sources. A new interpretation of the reasonableness standard for alternatives under NEPA is in order. Under the circumstances, oral argument is necessary for an informed decision.

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Case: 12-1561 Document: 00116418893 Page: 12 Date Filed: 08/16/2012 Entry ID: 5666489 JURISDICTIONAL STATEMENT On September 20, 2010, Petitioners, three public interest environmental and safe energy organizations, timely petitioned to intervene as parties in a license renewal proceeding before the U.S. Nuclear Regulatory Commission (NRC) brought by NextEra Energy Seabrook, LLC ("NextEra") to extend the operational life of the Seabrook Station, a nuclear power plant in New Hampshire, from 2030 to 2050. Petitioners proposed a contention for hearing in which they claimed that NextEra did not provide adequate analysis in the Environmental Report section of its application of offshore wind electricity generation as an alternative to the extended operation of Seabrook from 2030 to 2050.

On February 15, 2011, the assigned quasi-judicial panel, the Atomic Safety

& Licensing Board (ASLB or Licensing Board) admitted Petitioners con-tention. NextEra timely appealed that decision on February 25, 2011 to the appointed five-member Nuclear Regulatory Commission (the Commission). On March 8, 2012, the Commission dismissed the contention as insufficiently sup-ported in fact and law, which terminated the proceeding as to Petitioners. On May 7, 2012, beyond Nuclear, Seacoast Anti-Pollution League, and the New Hamp-shire Sierra Club timely initiated their Petition for Review to this Court.

The First Circuit Court has subject matter jurisdiction to enjoin, set aside, Case: 12-1561 Document: 00116418893 Page: 13 Date Filed: 08/16/2012 Entry ID: 5666489 suspend, or to determine the validity of all final orders of the NRC relating to the issuance of licenses. 28 U.S.C. § 2342; 42 U.S.C. § 2239. The Petition for Review was timely lodged with the Court on May 7, 2012, within the allowed 60-day period. See 28 U.S.C. § 2344. Venue is proper under 28 U.S.C. § 2343, because some of the Petitioners reside and maintain their principal offices within the jurisdiction of the First Circuit.

Case: 12-1561 Document: 00116418893 Page: 14 Date Filed: 08/16/2012 Entry ID: 5666489 ISSUES PRESENTED FOR REVIEW

1. Whether the NEPA requirement of consideration of alternatives to the proposed project was violated when the Nuclear Regulatory Commission, acting on a nuclear power plant license extension application submitted nearly 20 years before it could take effect, determined without adjudication and the taking of any evidence that offshore commercial wind power need not be considered and does not comprise a reasonable alternative means of electricity generation during the period 2030-2050.

2. Whether NEPA imposes a standard of present-day commercial viability as a precondition for an alternative to be considered within a Supplemental Envir-onmental Impact Statement (SEIS).

3. Whether it is arbitrary and capricious for the NRC to require a statement of expectation that a project will be commercially viable as of 2014 or 2015 when the proposed project is a license extension commencing in 2030.

4. Whether the concept of statement of expectation differs in any material respect from the concept of a plan.

5. Whether the proffered contention involving offshore wind exposed a genuine dispute on a material issue of fact or law between the Petitioners and NextEra.

Case: 12-1561 Document: 00116418893 Page: 15 Date Filed: 08/16/2012 Entry ID: 5666489

6. Whether the Atomic Energy Act and its regulations are violated and due process denied where the NRC Commission rejects admission of a contention which is within the scope NEPA issues which must be considered in a license extension proceeding; contains the requisite factual presentation; and reveals a genuine dispute with the nuclear plant licensee on a material issue of law or fact.

7. Whether the Nuclear Regulatory Commission violates NEPA in rejecting consideration of offshore wind as an alternative when evidence is produced show-ing its commercial success elsewhere, along with extensive plans and an implem-entation timetable for significant projects in New England coastal waters for baseload electrical power before 2030.

8. Whether under the APA, the NRCs rejection of the contention was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" in light of Petitioners proffered evidence, agency regulations and relevant legal precedent.

Case: 12-1561 Document: 00116418893 Page: 16 Date Filed: 08/16/2012 Entry ID: 5666489 STATEMENT OF THE CASE The Petitioners, Beyond Nuclear, Seacoast Anti-Pollution League, and New Hampshire Sierra Club (hereinafter Petitioners or Beyond Nuclear) are public interest organizations which were intervenors in the underlying NRC license renewal proceeding, captioned In the Matter of NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), Docket No. 50-443-LR, in which proceeding the NRC Commission decision under challenge here was rendered.

This proceeding commenced with NextEras May 25, 2010 application to the NRC to renew its operating license for Seabrook Station, Unit 1 (Seabrook),1 a nuclear power reactor located in Rockingham County, New Hampshire. Sea-brooks current license expires on March 15, 2030, and the application seeks federal permission to continue power generation operations at Seabrook for twenty (20) years beyond that date (viz., until March 15, 2050).

The NRC published notice in the Federal Register on July 21, 2010 that the NRC Staff would review the application and that persons whose interests might be affected by the proposed license renewal could request a hearing until September 20, 2010. At the request of Petitioners and other groups not parties here, the 1

See generally Seabrook Station License Renewal Application (May 25, 2010) (Vol. I: ADAMS accession nos. ML101590098; Vol. II: ML101590101; Vol. III: ML101590091).

Case: 12-1561 Document: 00116418893 Page: 17 Date Filed: 08/16/2012 Entry ID: 5666489 Secretary of the NRC subsequently extended the filing period by thirty days, until October 20, 2010.2 Petitioners timely filed with the NRC on October 20, 2010 a petition to intervene,3 proffering one contention which alleges that NextEras environmental report (ER) fails to comply with the National Environmental Policy Act (NEPA). Beyond Nuclear asserted that the ER does not adequately consider, as a reasonable alternative source of baseload power, interconnected offshore wind farms as a possibly environmentally superior system of renewable energy which could supplant Seabrook by 2030. Petitioners supported their intervention request with 21 exhibits. Apx.29-151.

Two other intervenors, Friends of the Coast and the New England Coalition, neither of which is a party to this appeal, petitioned to intervene on other grounds4 which are not encompassed within this Petition for Review.

2 Order of the Secretary, NRC (ML102600347), Apx. 12-13 (September 17, 2010); Order of the Secretary, NRC (ML102630577), Apx. 14 (September 20, 2010).

3 Beyond Nuclear, Seacoast Anti-Pollution League and New Hamps[h]ire Sierra Club Request for Public Hearing and Petition to Intervene (Beyond Nuclear Petition) (ML102930267), Apx. 15-28 (Oct. 20, 2010).

4 Friends of the Coast and New England Coalition Petition for Leave to Intervene, Request for Hearing, and Admission of Contentions (ML102940557)

(does not appear in Appendix) (October 21, 2010).

Case: 12-1561 Document: 00116418893 Page: 18 Date Filed: 08/16/2012 Entry ID: 5666489 On November 15, 2010, NextEra and the NRC Staff timely answered the petitions,5 after which Beyond Nuclear timely filed a reply memorandum on November 22, 2010.6 The Board heard oral argument on the intervention petitions on November 30, 2010.7 On February 15, 2011, the Board entered its Memorandum and Order (Ruling on Petitions for Intervention and Requests for Hearing), LBP-11-028 (hereinafter LBP-11-02") by which it accorded standing to all petitioners and admitted part of one contention for hearing, and three more in their entirety.9 5

NextEra Energy Seabrook, LLCs Answer Opposing the Petition to Intervene and Request for Hearing of Beyond Nuclear, Seacoast Anti-Pollution League, and New Hampshire Sierra Club (ML103190527), Apx. 152-162; NRC Staffs Answer to Petitions to Intervene and Requests for Hearing Filed by (1)

Friends of the Coast and New England Coalition and (2) Beyond Nuclear, Seacoast Anti-Pollution League, and New Hampshire Sierra Club (ML103190764), Apx. 163-192.

6 Combined Reply of Joint Petitioners (Beyond Nuclear, Seacoast Anti-Pollution League and New Hampshire Sierra Club) to Answers of NextEra Energy Seabrook, LLC and the United States Nuclear Regulatory Commission (ML103260657), Apx.193-203.

7 The transcript of the hearing, ML103420615, is found at Apx. 204-248.

8 The ASLB ruling appears in its entirety at pp.69-134 in the Addendum to this Brief; the portion addressing the offshore wind contention is also found at Apx. 266-270.

9 LBP-11-02, (contentions), Addendum pp.88-129.

Case: 12-1561 Document: 00116418893 Page: 19 Date Filed: 08/16/2012 Entry ID: 5666489 NextEra timely appealed LBP-11-02 to the full five-member Nuclear Regulatory Commission on February 25, 201110 and attached the required brief in support.

On March 8, 2012, the Commission ruled (Memorandum and Order, CLI-12-05, hereinafter CLI-12-05") to dismiss Petitioners contention.

10 NextEra initiated two appeals on February 25, 2011: NextEra Energy Seabrook, LLCs Notice of Appeal of LBP-11-02 as to the New England Coalition and Friends of the Coast (NextEra Appeal 1) (does not appear in Appendix); and NextEra Energy Seabrook, LLCs Notice of Appeal of LBP-11-02 as to Beyond Nuclear, the Seacoast Anti-Pollution League, and the Sierra Club of New Hamp-shire with brief in support (NextEra Appeal II) (ML110560800), Apx. 249-256.

Case: 12-1561 Document: 00116418893 Page: 20 Date Filed: 08/16/2012 Entry ID: 5666489 STATEMENT OF THE FACTS Beyond Nuclears contention, the focus of this appeal, originally stated:

The NextEra Environmental Report fails to evaluate the potential for renewable energy to offset the loss of energy production from the Seabrook nuclear power plant and to make the requested license renewal action for 2030 unnecessary. In violation of the requirements of 10 C.F.R. §51.53( c)

(3)(iii) and of the GEIS § 8.1, the NextEra Environmental Report (§ 7.2) treats all of the alternatives to license renewal except for natural gas and coal plants as unreasonable and does not provide a substantial analysis of the potential for significant alternatives which are being aggressively planned and developed in the Region of Interest for the requested relicen-sing period of 2030-2050. The scope of the SEIS is improperly narrow, and the issue of the need for Seabrook as a means of satisfying demand forecasts for the relicensing period must be revisited due to dramatically changing circumstances in the regional energy mix throughout the two decades preceding the relicensing period.

When this was before the NRC, Beyond Nuclear supported their contention with 21 exhibits, contending that within the foreseeable future a system of intercon-nected offshore wind farms might provide baseload power in the relevant region and thus should have been evaluated in greater detail in NextEras ER. Petitioners cited various evidence, including:

a. The Department of Energys National Renewable Energy Laboratory (NREL) statements that, although large-scale deployment of wind energy is thought to be limited by its intermittent output, [w]ind energy systems that combine wind turbine generation with energy storage and long-distance trans-Case: 12-1561 Document: 00116418893 Page: 21 Date Filed: 08/16/2012 Entry ID: 5666489 mission may overcome these obstacles and provide a source of power that is functionally equivalent to a conventional baseload electric power plant.11

b. A manuscript published in Stanford Universitys Journal of Applied Meteorology and Climatology has recognized that [a] solution to improve wind power reliability is interconnected wind power because, by linking multiple wind farms together it is possible to improve substantially the overall performance of the interconnected system (i.e., array) when compared with that of any indiv-idual wind farm.12

c. Google Corporation has publicly invested in a consortium to build an offshore backbone transmission project to stimulate development of wind farms (a decade before the Seabrook operating license expires), to address the problem of winds intermittent supply by tapping into a much broader swath of the coast to meet consumer demand.13

d. Nine (9) European North Sea nations were drawing up formal plans as of 11 Petitioners Exh. 3, National Renewable Energy Laboratory, U.S.

Department of Energy, Creating Baseload Wind Power Systems Using Advanced Compressed Air Energy Storage Concepts (Oct. 3, 2006) (ML102930267), Apx.

35.

12 Petitioners Exh. 4 (ML102930267), Apx. 36 (p. 1702 of article).

13 Petitioners Exh. 5, Juliet Eilperin, Google backs superhighway for wind power, Washington Post, 10/13/2010 (MLML102930267), Apx. 41.

Case: 12-1561 Document: 00116418893 Page: 22 Date Filed: 08/16/2012 Entry ID: 5666489 January 2010 to build a $40 billion undersea energy grid for dedicated transmis-sion of power from alternate sources.14

e. Global Wind Energy Council has produced data showing installed wind capacity likely reaching 400 gigawatts by 2014 and (from the World Nuclear Association) current nuclear capacity is 376 gigawatts.15

f. Researchers at the University of Delaware and Stony Brook University analyzed historical wind data from eleven meteorological stations along the U.S.

East Coast, calculated the potential hourly power output at each site, and then simulated a power line connecting the sites, concluding that [t]he variability of wind power is not as problematic as is often supposed.16

g. On June 8, 2010, the U.S. Department of the Interior and ten East Coast states - four of which (Maine, New Hampshire, Massachusetts and Rhode Island) are within NextEras region of interest - signed a Memorandum of Understanding 14 Petitioners Exh. 6, Tali Aaron, European Countries Unite to Invest $40 Billion in Huge Off-Shore Renewable Energy Super-Grid, Buildaroo.com, 1/6/2010 (ML102930267), Apx. 42 .

15 Petitioners Exh. 10, Jeremy van Loon, Global Wind Power Capacity May Rival Nuclear Within Four Years, Bloomberg News 9/23/2010 (ML102930267),

Apx. 47.

16 Petitioners Exh. 8, Willett Kempton et al., Electric power from offshore wind via synoptic-scale interconnection, PNAS Early Edition (April 2010) at 1 (ML102930267), Apx. 44-45.

Case: 12-1561 Document: 00116418893 Page: 23 Date Filed: 08/16/2012 Entry ID: 5666489 to establish the Atlantic Offshore Wind Energy Consortium to promote and accelerate the development of the exceptional wind energy resources off [the]

coast.17 The consortium was publicized months before NextEra filed its renewal application, but was neither discussed nor acknowledged in the Environmental Report.

h. Articulated plans promulgated by a Maine governors advisory panel and the University of Maine to advance offshore wind from prototype offshore genera-tion units into a network of 4 to 8 commercial floating wind farms with a total installed capacity of 5,000 MW by 2030.18 Anticipating accusations that they were improperly challenging an agency rule by questioning the 20-years-in-advance filing of the license renewal, Petition-ers initiated a formal NRC 10 C.F.R. § 54.17 rulemaking19 on September 27, 2010, 17 Petitioners Exh. 13, Salazar Signs Agreement with 10 East Coast Governors to Establish Atlantic Offshore Wind Energy Consortium, Press Release, Department of Interior, 6/8/2010 (ML102930267), Apx. 72.

18 Petitioners Exhs. 14 (Final Report of the Ocean Energy Task Force), Apx.

73-94; 16 (Deepwater Offshore Wind in Maine: The Plan, The Timeline), Apx.

108-111; 17 (Maine Offshore Wind Plan), Apx. 112; and 18 (Deepwater Offshore Wind: A National Opportunity), Apx. 113-121 (all at ADAMS ML10293067).

19 Petitioners Exh. 2, Earth Day Commitment/Friends of the Coast, Beyond Nuclear, Seacoast Anti-Pollution League, C-10 Research and Education Foundation, Pilgrim Watch, and New England Coalition; Notice of Receipt of Petition for Rulemaking, 75 Fed. Reg. 59,158, Apx. 33-34 (ML102930267).

Case: 12-1561 Document: 00116418893 Page: 24 Date Filed: 08/16/2012 Entry ID: 5666489 seeking to change NRC regulations to limit submission of applications for oper-ating license extensions to a maximum of ten (10) years before the effective date.

On February 15, 2011, the ASLB admitted Petitioners offshore wind contention with this reasoning:

. . . [W]e agree that, taken together, [Petitioners exhibits] provide the required minimal factual support for admitting their contention, and that the contention otherwise satisfies each of the requirements of 10 C.F.R. § 2.309(f)(1). The arguments against admissibility advanced by the Applicant and by the NRC Staff are not persuasive.

First, in challenging admissibility, the Applicant and the Staff con-flate the merits of the contention with the adequacy of its pleading. . . .

[W]hether an interconnected system of offshore wind farms constitutes a reasonable alternative is the very issue on which the Beyond Nuclear petitioners seek a hearing. When a contention alleges the need for further study of an alternative, from an environmental perspective, such reason-ableness determinations are the merits, and should only be decided after the contention is admitted. To be entitled to a hearing, petitioners need not demonstrate that they will necessarily prevail, but only that there is at least some minimal factual support for their position. The Commission has cautioned that complex, fact-intensive issues are rarely appropriate for summary disposition, much less for resolution on the initial pleadings.

Thus, many of the Applicants and the Staffs arguments improperly address the merits of the Beyond Nuclear petitioners contention, rather than whether petitioners have provided a minimal showing that material facts are in dispute, thereby demonstrating that an inquiry in depth is appropri-ate. For example, although the Applicant concedes that [p]etitioners have presented information to show that generation of baseload energy from wind is theoretically possible, it asserts that [t]he proposal for offshore inter-connected wind farms . . . faces steep technological hurdles and such an interconnected system would be exorbitantly expensive. Petitioners may face a difficult task in trying to demonstrate that such a system is both practical and environmentally superior to the continued operation of Seabrook as an existing facility. Such disputed facts are not appropriately Case: 12-1561 Document: 00116418893 Page: 25 Date Filed: 08/16/2012 Entry ID: 5666489 resolved, however, in connection with the Boards determination of whether petitioners have made the necessary showing to warrant admission of a contention.

It is not the case, as the NRC Staff appears to contend, that the Beyond Nuclear petitioners must first demonstrate that NextEra is required to include an alternatives analysis in its ER beyond that which was already includedin order to have a hearing on whether NextEra is required to include such an analysis. At this stage, it is sufficient for the Beyond Nuclear petitioners to proffer some minimal factual support for that proposition.

Second, the Staff argues - and the Applicant suggests - that the Beyond Nuclear petitioners must show that wind is a feasible alternative at the present time. Although remote and speculative alternatives need not be addressed in an applicants environmental report, the relevant time frame is considerably broader than the present time. As stated in Carolina Environmental Study Group v. United States - a case on which the Appli-cant itself relies - the obligation is to consider alternatives as they exist and are likely to exist.

Allegedly, some of the Beyond Nuclear petitioners supporting references show that an integrated system of offshore wind farms could be a viable source of baseload power in the region as early as 2015. Whether this is so remains to be seen. In the Boards view, however, petitioners have proffered sufficient minimal evidence to warrant further inquiry as to whether such a system might be likely to exist during the relevant time period.

Third, contrary to arguments by the Applicant and the NRC Staff, we are not persuaded that, as a matter of law, an integrated system of offshore wind farms could not constitute a single, discrete source for baseload energy. Absent further information about such a system, this seems to pose, at a minimum, a disputed question of fact. . . .

Finally, contrary to the Applicants and the Staffs arguments, the contention is not a prohibited challenge to a Commission regulation. Peti-tioners apparently know how to challenge a Commission regulation. . . .

Rather, their point here is simply that decisions have consequences. They contend that, if an applicant chooses to seek renewal as early as 20 years prior to expiration - as it clearly is entitled to do under the Commissions existing rules - then perhaps its ability to criticize as speculative a Case: 12-1561 Document: 00116418893 Page: 26 Date Filed: 08/16/2012 Entry ID: 5666489 petitioners claims about the necessarily distant extended operational period is somewhat attenuated. In any event, because the Beyond Nuclear petition-ers have demonstrated some possibility that wind power might be a reason-able alternative as early as 2015, we need not necessarily accept this argu-ment in order to admit their contention.

LBP-11-02 p. 26, Addendum pp. 90-95, Apx. 269.

NextEra appealed the adverse ASLB ruling to the five-member Commission on February 25, 2011. (ML110560800) Apx. 249-256 (Notice of Appeal and Brief in Support). Beyond Nuclear filed opposition to the appeal on March 7, 2011 (ML110660679) Apx. 257-265. The NRC Staff did not join in the appeal of the ASLBs ruling, nor did it argue in support of NextEra.

On March 8, 2012, the Commission ruled to dismiss the offshore wind contention. CLI-12-05, Addendum pp. 47-62, Apx. 271-278. The Commission agreed with the ASLB that the relevant period in which alternatives to the project may be considered is broader than the present time, but that pragmatically, . . .

near-term effects often are the best indicator of future ones. CLI-12-05, Adden-dum pp. 52-54, Apx. 273-274. The Commission elaborated:

The Board is correct that the relevant period is considerably broader than the present time. As the Board observed, the standard established in Carolina Environmental Study Group20 is whether an alternative is likely 20 Refers to ASLBs comment at LBP-11-02, Addendum p. 93, Apx. 269, that Carolina Envtl. Study Grp. v. U.S., 510 F.2d 796, 801 (D.C. Cir. 1975) denominated consideration of alternatives as they exist and are likely to exist.

Case: 12-1561 Document: 00116418893 Page: 27 Date Filed: 08/16/2012 Entry ID: 5666489 to exist. It is the future environmental effect of activities during the renewal period that must be considered, not current environmental effects.21 Pragmatically, however, near-term effects often are the best indicator of future ones. NEPA requires a hard look at the environmental effects of the planned action and reasonable alternatives to that action, using the best information available at the time the assessment is performed. An environ-mental impact statement is not intended to be a research document, reflecting the frontiers of scientific methodology, studies, and data.22 Assessments of future energy alternatives necessarily are of a predictive nature, and the assessment therefore will include uncertainties associated with predicting advances in technology.

In other words, in performing an alternatives analysis, the applicant -

and the agency - are limited by the information that is reasonably available in preparing the environmental review documents. When considering energy alternatives, it is nearly always impossible to predict, decades in advance, the viability of technologies that are currently not operational and are many years from large-scale development. Except in rare cases where there is evidence of unusual predictive reliability, it is not workable to consider, for purposes of NEPA analysis, what are essentially hypothetical or speculative alternatives as a source of future baseload power generation. For this reason, we find sensible the Staffs argument that in most cases a reason-able energy alternative is one that is currently commercially viable, or will become so in the relatively near term. Such an assessment generally will be sufficient to provide the requisite hard look under NEPA.

In sum, to submit an admissible contention on energy alternatives in a license renewal proceeding, a petitioner ordinarily must provide alleged facts or expert opinion sufficient to raise a genuine dispute as to whether the best information available today suggests that commercially viable 21 See generally Florida Power & Light Co. (Turkey Point Nuclear Generating Station, Units 3 and 4), CLI-01-17, 54 NRC 3, 11-13 (2001)

(describing the Part 51 process for environmental review, focusing upon the potential impacts of an additional 20 years of plant operation).

22 See Entergy Nuclear Generation Company (Pilgrim Nuclear Power Station) (Pilgrim I), CLI-10-11, 71 NRC 287, 315 (slip op. at 23) (citing Town of Winthrop v. FAA, 535 F.3d 1, 11-13 (1st Cir. 2008)).

Case: 12-1561 Document: 00116418893 Page: 28 Date Filed: 08/16/2012 Entry ID: 5666489 alternate technology (or combination of technologies) is available now, or will become so in the near future, to supply Baseload power.23 As a general matter, a reasonable energy alternative - one that must be assessed in the environmental review associated with a license renewal application - is one that is currently commercially viable, or will become so in the near term.

We therefore conclude that the Board erred in admitting the contention.

NEXTERA states that its purpose in seeking license renewal is to make available Baseload power - a preference to which we accord substantial weight. Beyond Nuclear has not articulated a genuine dispute with the Application as to the viability of offshore wind farms as a source of Baseload power. For wind power to merit detailed consideration as an alternative to renewing the license for a nuclear power plant, that alternative should be capable of providing technically feasible and commercially viable Baseload power during the renewal period. As we have discussed, in assessing energy-alternatives contentions, practicality requires us to consider chiefly, often exclusively, alternatives that can be shown to have viability today or in the near future. Here, Beyond Nuclear has not provided support for its claim that offshore wind is technically feasible and commer-cially viable - either today or in the near future - and therefore has not submitted an admissible contention.

Id.

Strikingly, the Commission added a caveat at CLI-12-05, Addendum p. 54 23 See Roosevelt Campobello Intl Park Commn v. EPA, 684 F.2d 1041, 1047 (1st Cir. 1982) (holding that, for siting alternatives, EPAs duty under NEPA is to study all alternatives that appear reasonable and appropriate for study at the time of drafting the EIS (internal quotations omitted)); Seacoast Anti-Pollution League v. NRC, 598 F.2d 1221, 1230 (1st Cir. 1979) (holding that, for siting alternatives, an agency must consider alternatives that appear reasonable at the time of the NEPA review). Cf. Carolina Envtl. Study Group, 510 F.2d at 800 (holding that NEPA was not meant to require detailed discussion of remote and speculative alternatives).

Case: 12-1561 Document: 00116418893 Page: 29 Date Filed: 08/16/2012 Entry ID: 5666489 fn. 245, after ruling against Beyond Nuclear:

To avoid any misunderstanding, however, we hasten to add that our ruling does not exclude the possibility that a contention could show a genuine dispute with respect to a technology that, while not commercially viable at the time of the application, is under development for large-scale use and is likely to be available during the period of extended operation.

See Carolina Envtl. Study Grp., 510 F.2d at 800.

Thus the Commission apparently believes that offshore wind power will not be feasibly available even in 2050 (the period of extended operation) - i.e, for the next 38 years. That perception is thoroughly unrealistic, and suggests that the Commissions objectivity may have been compromised by its role as a regulator-promoter of nuclear power.

Case: 12-1561 Document: 00116418893 Page: 30 Date Filed: 08/16/2012 Entry ID: 5666489

SUMMARY

OF ARGUMENT Petitionerss rights were violated under the AEA and NEPA when the Commission reversed the ASLBs admission of their offshore wind contention.

The appointed Nuclear Regulatory Commission, sitting as the intra-agency court of review, conducted a sua sponte, summary trial on the merits, concluding that the Petitioners could not succeed on the merits because of the speculative nature of offshore wind, and dismissed. The Commission improperly resolved all issues of fact against the Petitioners, in contradiction of longstanding NRC legal prece-dent under the AEA, and unlawfully found that as a matter of law, offshore wind was not a reasonable alternative under NEPA.

Section 189 of the AEA grants a hearing upon the request of any person whose interest may be affected by a Commission licensing proceeding. 42 U.S.

C. § 2239(a)(1)(A). NRC rules fill in much of the sparse statutory framework. 10 C.F.R. § 2.309 governs admission of contentions, and requires a specific statement of the issue of law or fact they raised, along with a brief explanation of the basis for the contention, demonstration that the issue raised in the contention is within the scope of the proceeding, a showing that the issue raised in the contention is material to the findings the NRC must make, and a concise statement of the alleged facts or expert opinions which support the petitioners position on the Case: 12-1561 Document: 00116418893 Page: 31 Date Filed: 08/16/2012 Entry ID: 5666489 issue. Petitioners presented information as to each element and pled a genuine dispute with NextEra on a material issue of law or fact.

NEPA protects against procedural injury to plaintiffs. When a decision is made without the informed environmental consideration that NEPA requires, the harm that NEPA intends to prevent has been suffered. Massachusetts v. Watt, 716 F.2d 946, 952 (1st Cir. 1983).

The question in this appeal of whether a projected interconnected system of offshore wind farms by 2030 constitutes a reasonable alternative is the issue on which the Petitioners seek a hearing. When a contention alleges the need for further study of an alternative, from an environmental perspective, reasonable-ness determinations are the merits, and should only be decided after the contention is admitted. LBP-11-02, Addendum p. 91, Apx. 268; Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-722, 17 NRC 546, 551 n. 5 (1983).

NEPAs disclosure requirements, embodied in NRC regulations at 10 C.F.R

§ 51.45( b)(3), require that [t]he discussion of alternatives shall be sufficiently complete to aid the Commission in developing and exploring . . . appropriate alternatives to recommended courses of action. . . ." NEPA requires discussion of the environmental effects of alternatives when those effects can be ascertained Case: 12-1561 Document: 00116418893 Page: 32 Date Filed: 08/16/2012 Entry ID: 5666489 readily, within the time-frame of the needs to which the underlying proposal is addressed. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551 (1978).

The AEA contention admissibility requirements call essentially for specificity and assertion of a basis. Petitioners needed only to offer minimal factual and legal foundation for their contention. Duke Energy Corp. (Oconee Stations Units 1, 2 and 3), 49 NRC 328, 334 (1999). The AEA does not require a petitioner to support its claims in formal evidentiary form, or provide support as strong as that necessary to withstand a summary disposition motion. Gulf States Utilities Co., 40 N.R.C. 43, 51 (1994). All that is required is a minimal showing that material facts are in dispute, thereby demonstrating that an inquiry in depth is appropriate. Id.

The Commission dismissed the offshore wind contention by respectively weighing the evidence. The Commission summarized NextEras characterization of offshore wind as being only in its nascent stage, and scored Petitioners for not challenging the nascent technology point. But the Petitioners did challenge NextEras conclusions extensively, see Petition to Intervene at 6, 17-18 (Apx. 16, 19). Petitioners refuted the Commissions accusation that they did not plead the existence of genuine dispute with NextEras conclusions in § 7.2.1.5 of the Case: 12-1561 Document: 00116418893 Page: 33 Date Filed: 08/16/2012 Entry ID: 5666489 Environmental Report. At Petition to Intervene pp. 17-18 (Apx. 19), Petitioners explicitly disputed the conclusions of § 7.2.1.5, claiming that NextEras assertions about the unrealistic nature of offshore wind energy at present were immaterial to the decision that the NRC must make concerning a license extension which will take effect nearly twenty (20) years from now.

The Commission tried to parlay a colloquy between the ASLB and the Petitioners representative concerning whether offshore wind will be commercially viable in New England by 2015 into a void of support for the ASLBs ruling to admit the contention. The clearly-articulated plan promulgated by the Maine governors panel and the University of Maine proposes to advance offshore wind in measured steps into a network of 4 to 8 commercial floating wind farms with a total installed capacity of 5,000 MW by 2030. Irrespective of any inadvertent oral mis-statement by Petitioners at the ASLB admissibility hearing, the ASLB recog-nized that it need not decide the exact date by which an integrated system of offshore wind farms would have to be found likely to exist since the issue involves disputed fact questions which are irresolvable on the pleadings. LBP-11-02, Addendum p. 93 fn. 134, Apx. 269.

The explicit plan for offshore wind was not enough for the Commission, which complained that the Petitioners refer[] to a plan only - not a statement of Case: 12-1561 Document: 00116418893 Page: 34 Date Filed: 08/16/2012 Entry ID: 5666489 expectation that the project will be commercially viable as of 2014. CLI-12-05, Addendum p. 58, Apx. 276.

Agency actions can be set aside where the agency "has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The NRCs insistence on a magnified statement of expectation instead of a mere plan -

besides being facially silly - represents the NRCs imposition of a factor[] which Congress has not intended it to consider or is an explanation for its decision that runs counter to the evidence before the agency. Reasonableness determinations concerning an alternative are the merits, and should only be decided after the contention is admitted. Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2), LBP-09-10, 70 NRC 51, 86 (2009).

The Commission held NextEras timing of its application for renewal nearly 20 years ahead of the expiration of the present Seabrook license against the Petitioners. By contrast, the ASLB ruled that since NextEra chose when to submit the renewal application, decisions have consequences. . . . that, if an applicant Case: 12-1561 Document: 00116418893 Page: 35 Date Filed: 08/16/2012 Entry ID: 5666489 chooses to seek renewal as early as 20 years prior to expiration . . . then perhaps its ability to criticize as speculative a petitioners claims about the necessarily dis-tant extended operational period is somewhat attenuated. LBP-11-02, Addendum

p. 94, Apx. 269 .

The Commissions recitations of NEPA precedent to buttress its ruling repeatedly misconstrued or misstated the cases. The Commission cited Citizens Against Burlington v. Busey, 938 F.2d 190, 195 (D.C. Cir.), cert. denied, 502 U.S.

994 (1991)24 in support of the point that neither this agency nor the applicant need consider any alternative that does not bring about the ends of the proposed action. But the Citizens court also warned that outcome-controlled rigging of purpose and need violates NEPA, and that NEPA does not allow an agency to define the objectives of its action in terms so unreasonably narrow that only one alternative from among the environmentally benign ones in the agency's power would accomplish the goals of the agency's action. . . . Id. That is precisely what the NRC did here.

The Commission counseled that [a]n environmental impact statement is not intended to be a research document, reflecting the frontiers of scientific methodology, studies, and data, attributing Town of Winthrop v. FAA, 535 F.3d 1, 24 CLI-12-05, Addendum pp. 54-55, Apx. 274-275.

Case: 12-1561 Document: 00116418893 Page: 36 Date Filed: 08/16/2012 Entry ID: 5666489 11-13 (1st Cir. 2008)). But in Winthrop, the petitioners advocated for additional studies on pollutants to identify adverse effects upon public health of an airport expansion proposal in order to complete the NEPA document. Here, by contrast, completed studies and analyses of offshore wind power potential were handed over by Petitioners to the NRC in support of their demand for NEPA scrutiny.

Beyond Nuclear demanded consideration of the most up-to-date information and projections. Reasonable forecasting and speculation is . . . implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as crystal ball inquiry. City of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir.1975)

(quoting Scientists' Institute for Public Information v. A.E.C., 481 F.2d 1079, 1092 (D.C.Cir.1973)). NEPA's requirement for forecasting environmental consequen-ces far into the future implies the need for predictions based on existing technol-ogy and those developments which can be extrapolated from it (emphasis supplied). Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission (Vermont Yankee I), 547 F.2d 633, 639 (D.C. Cir. 1976). Certainly the extrapolations from offshore wind power, a present-day, maturing technology in other developed countries, implicate reliable predictions for a SEIS.

The Commission cited Carolina Envtl. Study Grp. v. U.S., 510 F.2d 796, Case: 12-1561 Document: 00116418893 Page: 37 Date Filed: 08/16/2012 Entry ID: 5666489 801 (D.C. Cir. 1975) for holding that NEPA was not meant to require detailed discussion of remote and speculative alternatives). CLI-12-05, Addendum p. 54 fn. 244, Apx. 274. But if an alternative does not involve protracted debate and litigation and is meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed, it is, logically, a reasonable alter-native. Carolina Envtl. Study Grp. v. U.S., 510 F.2d 801. In Carolina Environ-mental, the Study Group argued that because the nuclear plant was to operate for several decades, alternative power sources might come online during the opera-tional life of the plant under challenge, and should be considered. The spectre of alternatives developed only after completion of construction of a new power plant was what the court of appeals deemed speculative and remote. Here, however, Petitioners proposed NEPA analysis of baseload offshore wind installations planned to be in operation at commercial levels years before the 2030-2050 license renewal period. Offshore wind technology as presented is meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed. Natural Resources Defense Council v. Morton, 458 F.2d 827, 837-838 (D.C. Cir. 1972).

The Commission cited Roosevelt Campobello Int?l Park Commn v. EPA, 684 F.2d 1041 (1st Cir. 1982) for the proposition that the reasonableness of Case: 12-1561 Document: 00116418893 Page: 38 Date Filed: 08/16/2012 Entry ID: 5666489 alternatives is based upon information available at the time of drafting the EIS.

CLI-12-05, Addendum p. 53 fn. 244, Apx. 274. But the Commission edited out wording and transmogrified Campobello. The complete passage by the First Circuit says:

EPAs duty under NEPA is to study all alternatives that appear reasonable and appropriate for study at the time of drafting the EIS, as well as significant alternatives suggested by other agencies or the public during the comment period.

Campobello at 1047. The Commission, though, quoted only the non-italicized portion. CLI-12-05, Addendum p. 53 fn. 244, Apx. 274. The First Circuit in Campobello merely decided that the range of alternatives in the EIS must embrace significant alternatives suggested by the public . . . at the time of drafting of the EIS, not that the agency has unfettered discretion to determine what alterna-tives are reasonable and appropriate for study.

The recitation by the Commission of Seacoast Anti-Pollution League v.

Nuclear Regulatory Com'n, 598 F.2d 1221, 1230 (1st Cir. 1979) for the point that for siting alternatives, an agency must consider alternatives that appear reason-able at the time of the NEPA review, CLI-12-05, Addendum pp. 53-54 fn. 244, Apx. 274-275, is similarly inapposite. The Commission eviscerated the following passage from Seacoast (wording omitted by Commission is italicized):

Case: 12-1561 Document: 00116418893 Page: 39 Date Filed: 08/16/2012 Entry ID: 5666489 In respect to alternatives, an agency must on its own initiative study all alternatives that appear reasonable and appropriate for study at the time, and must also look into other significant alternatives that are called to its attention by other agencies, or by the public during the comment period afforded for that purpose.

598 F.2d 1230.

When it dismissed the offshore wind contention, the Commission inac-curately criticized the ASLB for supposedly supplying a basis not argued by that Petitioners, who supposedly omitted to argue that wind farms combined into an interconnected network would constitute a single, discrete electric generation source, as required by the GEIS (Beyond Nuclear does not make this argu-ment), CLI-12-05, Addendum pp. 61-62, Apx. 278. But at pp. 18-25 of their Petition to Intervene (Apx. 19-21), Petitioners identified exhibits and analyses supporting their baseload energy argument, such as an NREL study of wind energy as baseload power in combination with innovative storage technology and long-distance transmission. Petitioners submitted for the record an article which concludes that by linking multiple wind farms together it is possible to improve substantially the overall performance of the interconnected system (i.e., array) when compared with that of any individual wind farm. . . . Petitioners further supplied several news articles discussing coming smart grid interconnections.

The Commission was wrong, again.

Case: 12-1561 Document: 00116418893 Page: 40 Date Filed: 08/16/2012 Entry ID: 5666489 ARGUMENT Petitioners rights were violated under the AEA and NEPA when the Commission reversed the ASLB admission of their offshore wind contention and dismissed it. Petitioners had met the requirements for standing and admissibility of their proffered contention, as found by the ASLB. But on review, the Commission conducted a sua sponte, summary trial on the merits, after which it concluded that offshore wind was speculative. The Commission improperly resolved all issues of fact against the Petitioners, contradicting NRC legal precedent under the AEA, and unlawfully found as a matter of law that offshore wind was not a reasonable alternative under NEPA.

Standard of Review Review of NRC orders in licensing cases and in agency decisions under NEPA is deferential; the NRC decision on a NEPA issue may not be over-turned unless it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Limerick Ecology Action, Inc. v. U.S.

Nuclear Regulatory Comm'n, 869 F.2d 719, 728 (3d Cir.1989); 5 U.S.C. § 706(2)(A). Agency actions can be set aside where the agency "has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs Case: 12-1561 Document: 00116418893 Page: 41 Date Filed: 08/16/2012 Entry ID: 5666489 counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs., supra, 463 U.S. at 43.

The First Circuit will reverse a decision of less than ideal clarity if it is not supported in the record and has no rational basis. .Adams v. EPA, 38 F.3d 43, 49 (1st Cir. 1994). A reviewing court must ensure that the agency has "exam-ine[d] the relevant data and articulate[d] a satisfactory explanation for its action,"

F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009) (quoting Motor Vehicle Mfrs., supra), and must not reduce itself to a "rubber-stamp" of agency action. Fed. Mar. Commn v. Seatrain Line, Inc., 411 U.S. 726, 745-46 (1973).

Section 189 of the Atomic Energy Act Section 189 of the AEA [42 U.S.C. § 2239] grants a hearing upon the request of any person whose interest may be affected by a Commission licensing proceeding. 42 U.S. C. § 2239(a)(1)(A). But the Act nowhere describes the content of a hearing or prescribes the manner in which this hearing is to be run."

Union of Concerned Scientists v. NRC, 920 F.2d 50, 54 (D.C. Cir. 1990). To address this void, the Commission has promulgated procedural rules to which appellate courts customarily defer. Id.

NRC rule 10 C.F.R. § 2.309 permits (at (a)) [a]ny person whose interest Case: 12-1561 Document: 00116418893 Page: 42 Date Filed: 08/16/2012 Entry ID: 5666489 may be affected to file a written request for hearing and a specification of the contentions which the person seeks to have litigated in the hearing. The request will be granted if the adjudicating official determines that the requestor/petitioner has standing . . . and has proposed at least one admissible contention that meets the requirements of paragraph (f) of this section. Per § 2.309(f), a request must set forth with particularity the contentions sought to be raised, and:

(I) Provide a specific statement of the issue of law or fact to be raised or controverted, . . . ;

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

Further, § 2.309 (f)(vi) requires a petitioner to:

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

Case: 12-1561 Document: 00116418893 Page: 43 Date Filed: 08/16/2012 Entry ID: 5666489 The Interplay Between NEPA and the AEA Court and agency interpretations give definition to the AEA, because AEA

§ 189 [42 U.S.C. § 2239] provides no guidance. Its general provisions yield to NEPA's specific requirements of environmental disclosure. [G]eneral and specific provisions, in apparent contradiction, whether in the same or different statutes, and without regard to priority of enactment, may subsist together, the specific qualify-ing and supplying exceptions to the general. Townsend v. Little, 109 U.S. 504, 512, 3 S.Ct. 357, 27 L.Ed. 1012 (1883). Where there is no clear indication other-wise, a specific statute will not be controlled or nullified by a general one. . . .

Guidry v. Sheet Metal Workers National Pension Fund,493 U.S. 365, 375 (1990)

(citation omitted). AEAs hearing opportunity must be construed harmoniously with NEPA so that NEPAs mandates are followed to determine admissibility of environmental contentions.

Harm Under NEPA Occurs When Procedural Rights Are Abridged The substance of NEPA is protection against procedural injury to a plain-tiff. "[W]hen a decision to which NEPA obligations attach is made without the informed environmental consideration that NEPA requires, the harm that NEPA intends to prevent has been suffered." NEPA procedures seek to minimize the risk of future harm by "influenc[ing] the decision making process; [their] aim is to Case: 12-1561 Document: 00116418893 Page: 44 Date Filed: 08/16/2012 Entry ID: 5666489 make government officials notice environmental [and other] considerations and take them into account." Massachusetts v. Watt, 716 F.2d 946, 952 (1st Cir.

1983). Cases of procedural injury require "some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant." Massachusetts v. EPA, 549 U.S. 497, 518, 127 S.Ct. 1438, 1453 (2007). The ASLB in Petitioners case recognized that the determination of reasonableness of offshore wind as an alternative comprised the merits for trial, where the issue was whether serious offshore wind analysis must be incorporated into the SEIS . LBP-11-02, Addendum p. 91, Apx. 268.

NEPA § 102(2) [42 USC § 4332] is the action-forcing part of the statute.25 It requires thorough and complete disclosure of reasonable and feasible alterna-tives within the licensing process. Moreover, NRC regulations at 10 C.F.R § 25 According to section 102(2)© of NEPA all agencies of the Federal Government shall - include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on -

(I) The environmental impact of the proposed action, (ii) Any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) Alternatives to the proposed action, (iv) The relationship between local short-term uses of mans environment and the maintenance and enhancement of long-term productivity, and (v) Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Case: 12-1561 Document: 00116418893 Page: 45 Date Filed: 08/16/2012 Entry ID: 5666489 51.45( c) require that the Applicants analysis:

. . . shall, to the fullest extent practicable, quantify the various factors considered. To the extent that there are important qualitative considerations or factors that cannot be quantified, those considerations or factors shall be discussed in qualitative terms. The environmental report should contain sufficient data to aid the Commission in its development of an independent analysis.

(Emphasis supplied). Additionally, 10 C.F.R. § 51.45(b)(3) requires that [t]he discussion of alternatives shall be sufficiently complete to aid the Commission in developing and exploring, pursuant to section 102(2)(E) of NEPA, appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources."

The term alternatives is not self-defining, and must be bounded by some notion of feasibility. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.

519, 551, 98 S.Ct. 1197, 1215 (1978). NEPA requires discussion of the environ-mental effects of alternatives when those effects can be ascertained readily, within the time-frame of the needs to which the underlying proposal is addressed. Id.

The environmental effects of offshore wind are readily ascertained from the experience which is being gained daily from its use in Europe. Those effects are ascertainable now, long before the time frame of the needs to which the underlying proposal is addressed (2030-2050).

Case: 12-1561 Document: 00116418893 Page: 46 Date Filed: 08/16/2012 Entry ID: 5666489 Contention Admissibility Under the AEA The AEA contention admissibility requirements as expressed in 10 C.F.R. § 2.309(f) are strict by design. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001),

petition for reconsid. denied, CLI-02-1, 55 NRC 1 (2002)). The First Circuit cautions, though, that 10 C.F.R. Part 2 rules may approach the outer limits of what is permissible under the APA. Citizens Awareness Network Inc. v. NRC, 391 F3d 338, 355 (1st Cir. 2004). Because at its essence, an acceptable contention need only be specific and have a basis, the standard for admitting a contention is not meant to be equivalent to the standard of evidence at a trial on the merits; the truth or falsity of the contention is reserved for adjudication. Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-722, 17 NRC 546, 551 n. 5 (1983).

For admission of their contention, Petitioners were not required to submit admissible evidence to support their contention (although they did do that). They were obliged only to provide a brief explanation of the basis for the contention, and to provide putative evidence in the form of a concise statement of the alleged facts or expert opinions which support the petitioners position, 10 CFR § 2.309(f)(1)(ii), (v). Petitioners seeking adjudicatory hearings need offer only Case: 12-1561 Document: 00116418893 Page: 47 Date Filed: 08/16/2012 Entry ID: 5666489 minimal factual and legal foundation for their contentions. Duke Energy Corp.

(Oconee Stations Units 1, 2 and 3), 49 NRC 328, 334 (1999). The AEA does not require a petitioner to prove its case, support its claims in formal evidentiary form, or provide support as strong as that necessary to withstand a summary disposition motion. Gulf States Utilities Co., 40 N.R.C. 43, 51 (1994). It requires only a minimal showing that material facts are in dispute, thereby demonstrating that an inquiry in depth is appropriate. Id. (internal citations omitted).

If a material issue is articulated, the contention must be admitted for hearing without further determination of the matter at that stage. Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), 56 NRC 1 (2002).

The ASLB properly understood and applied the above principles, accepting that Petitioners had shown at a minimum some minimal factual support for their position, and recognizing that complex, fact-intensive issues are rarely appropriate for summary disposition, much less for resolution on the initial pleadings. LBP-11-02, Addendum p. 91, Apx. 268, citing Entergy Nuclear Generation Company (Pilgrim Nuclear Power Station (I)), CLI-10-11, 71 NRC 287, 315 (slip op. at 23). Believing that Petitioners might have a hard time proving the economic practicality and environmental superiority of a system of Case: 12-1561 Document: 00116418893 Page: 48 Date Filed: 08/16/2012 Entry ID: 5666489 offshore interconnected wind farms, the ASLB nonetheless declined to convert the admissibility question into a sua sponte trial on the merits: Such disputed facts are not appropriately resolved . . . in connection with the Boards determination of whether petitioners have made the necessary showing to warrant admission of a contention. LBP-11-02, Addendum p. 92, Apx. 268.

The Commission Impermissibly Weighed Some Evidence, And Ignored Some Evidence Entirely When the Commission took up NextEras appeal of the ASLB ruling, it declared that Beyond Nuclears offshore wind contention is not sustainable on its face because it lacks a supporting basis. Claiming to reach this result without improperly resolving disputed facts, CLI-12-05, Addendum p. 56, Apx. 275, the Commissions very terminology - not sustainable on its face because it lacks a supporting basis - expresses the act of weighing the sufficiency of the prima facie evidence provided.

The Commission characterized offshore wind as being only in its nascent stage, and stated that [w]ithout some challenge . . . on the nascent technology point, there is no genuine dispute of material fact as to whether offshore wind power is, or soon will be, a reasonable alternative to license renewal. CLI-12-05, Addendum pp. 56-57, Apx. 275-276. This is an anomalous accusation; the Case: 12-1561 Document: 00116418893 Page: 49 Date Filed: 08/16/2012 Entry ID: 5666489 Petitioners specifically challenged NextEras unresearched and dated conclusions extensively in their Petition to Intervene as follows:

In violation of the requirements of 10 C.F.R. §51.53(c)(3)(iii) and of the GEIS § 8.1, the NextEra Environmental Report (§ 7.2) treats all of the alternatives to license renewal except for natural gas and coal plants as unreasonable and does not provide a substantial analysis of the potential for significant alternatives which are being aggressively planned and developed in the Region of Interest for the requested relicensing period of 2030-2050.

Id. p. 6, Apx. 16 (emphasis supplied). And the Commission was indisputably wrong to asservate that Petitioners failed to plead the existence of an issue of fact to contradict NextEras conclusions in § 7.2.1.5 of the Environmental Report. At pp. 17-18 of their Petition to Intervene, Petitioners explicitly alleged:

17. The Environmental Report at Section 7.2.1.5 Other Alter-natives, NextEra provides a brief evaluation of the alternative resource of wind energy. At the outset, NextEra states, Wind power, due to its inter-mittent nature, is not suitable for baseload generation, as discussed in Section 8.3.1 of the GEIS. Wind power systems produce power only when the wind is blowing at a sufficient velocity and duration. [NextEra ER, Section 7, p 7.12.] The Applicant further asserts In the ROI, the primary areas of good wind energy resources are the Atlantic coast and exposed hilltops, ridge crests, and mountain summits. Offshore wind resources are abundant (EERE 2008b) but the technology is not sufficiently demonstrated at this time. Only 1,077 MW of offshore wind capacity has been installed worldwide (EERE 2008a). [NextEra Environmental Report, p. 7-12]

18. The Petitioners dispute the Applicant?s assertions that wind energy at this time is at all germane to the task that NEPA sets forth for the Environmental Review for the requested relicensing action for 2030 to 2050. The Applicant and the NRC are not simply required to satisfy the status of an alternate at this time particularly for a federal action that does Case: 12-1561 Document: 00116418893 Page: 50 Date Filed: 08/16/2012 Entry ID: 5666489 not take affect at this time or even reasonably close to at this time but rather a requested action that is to commence approximately twenty (20) years from today. Instead, NEPA challenges the Applicant and the federal agency to reasonably foresee beyond the present time in formulating its evaluation of alternatives in the Environmental Report for the projected federal relicensing action as proposed to begin in 2030. The environmental review mandated by NEPA is the product of judicial interpretation of the statutory command that the NRC is obliged to make reasonable forecasts of the future.

Apx. 17-18. (Emphasis in original). Petitioners supported their petitioner with considerable evidence suggesting that offshore wind will be rapidly deployed in New England within the decade. Unfortunately, the Commission completely overlooked a major argument raised by the Petitioners in plain sight.

At CLI-12-05, Addendum p. 57, Apx. 276, the Commission criticized the ASLBs reliance on pp. 24 and 34 of the prehearing conference transcript (Apx.

210, 212) where Beyond Nuclears representative discussed one of Petitioners exhibits not cited by the Board. The Commission, claiming that the supporting references do not support the Boards conclusion that Beyond Nuclear had proffered sufficient minimal evidence, then itself weighed that evidence and, ignoring AEA legal precedent, found it to be insufficient.

Petitioners Exhibit 17, the exhibit under discussion at hearing, contains the Maine Offshore Wind Plan. Apx. 112. The ASLB deemed Exh. 17 to comprise some of the basis for admissibility. Phase 1 involves the design, construction and Case: 12-1561 Document: 00116418893 Page: 51 Date Filed: 08/16/2012 Entry ID: 5666489 testing of a 100' tall (to hub) floating wind turbine prototype by 2012, and con-struction of an offshore wind laboratory. Phase 2 will see the design, construction and test of a full-scale, 300' (to hub) offshore turbine generating 3-5 megawatts, between 2012 and 2014. In Phase 3, the design, construction and testing of the first 25 MW stepping-stone floating wind farm in the world will happen from 2014-2016. From 2018-2020, in Phase 4, that wind farm will be expanded into a 500-1,000 MW, 200-turbine, commercial farm. From 2020 to 2030, Phase 5 will see construction of a network of commercial floating wind farms 10-50 miles from shore, each capable of producing 500-1,000 MW, with a goal of four to eight farms, and total installed capacity of 5,000 MW. Id.

The Commission quibbles with the oral statements of Beyond Nuclears representative, insinuating that he falsely predicted that baseload power will be delivered by 2015. At p. 34 of the transcript, the representative, Paul Gunter, stated:

[W]ith regard to your question, I would like to draw the Board's attention to our Exhibit 17, I believe. But it is the Maine Offshore Wind Plan . . . And to answer your question, it - the plan is for the first 25 megawatts of offshore wind - this is deep water offshore wind - to come online by 2014, the first 500 to 1,000 megawatts of a commercial farm to come on-line by mid-2016, and, by the beginning of 2020, additional 500 to 1,000 megawatt farms with a goal of 5,000 megawatts by 2030.

Transcript p. 34, Apx. 212. Even if Gunter recounted things inaccurately - which Case: 12-1561 Document: 00116418893 Page: 52 Date Filed: 08/16/2012 Entry ID: 5666489 Petitioners dispute - the written documents speak for themselves. It is the explicit written plan that did not suffice for the Commission, anyway, the claimed discrep-ancy in Gunters statements was used as an excuse for what followed: the Commission engrafted a secret, heightened new subjective standard into its rules:

Our review of Beyond Nuclears referenced exhibit confirms that it refers to a plan only - not a statement of expectation that the project will be commercially viable as of 2014. Therefore, the two cited portions of the oral argument transcript, when read together and in light of the exhibits, do not support the Boards conclusion. CLI-12-05, Addendum p. 58, Apx. 276. The Licensing Boards conclusion, however, was properly more sanguine and logical:

For purposes of deciding the admissibility of the proffered conten-tion, the Board need not decide the exact date by which an integrated system of offshore wind farms would have to be found likely to exist. That issue will doubtlessly turn on disputed fact questions that cannot appropriately be resolved on the pleadings.

LBP-11-02, Addendum p. 93 fn. 134, Apx. 269.

The Commission rejected Beyond Nuclears serious plan to develop base-load power in the Gulf of Maine, substituting instead the requirement of a state-ment of expectation - whatever that is - to be convinced. The Commissions substitution of its subjective verbiage - statement of expectation is not a recognized term of art - for legal analysis displaced regulations and NEPA Case: 12-1561 Document: 00116418893 Page: 53 Date Filed: 08/16/2012 Entry ID: 5666489 common law. It was an arbitrary act, compounded by the arbitrary hitching of the Commissions expectation to an ad hoc 2014 or 2015 deadline to produce viable commercial baseload power.

The Commission rooted around for adverse evidence in Petitioners exhib-its. In Exh. 14, the report of the Maine Ocean Energy Task Force, p. 43, Apx. 87, the Commission seized on the statement that [l]ack of the requisite technology is an obvious barrier to establishment of the deep-water wind industry in Maine. . .

in the near term. But the Report firmly sets 2030 as the target date for deployment of 5 gigawatts of offshore wind power in the Gulf of Maine, id. p. vi, 50, Apx. 75,

89. The task force also found that shallow water wind is technologically viable today, Id., p. vii (Apx. 75). In 2009, demonstration area legislation was passed in Maine to push the dramatic shift to offshore wind. Id., p. vi (Apx. 75). And the task force concluded that of the Eastern states considering offshore wind, only Maine has nationally significant on-shore wind energy resources, i.e.,

institutional experience with developing commercial wind farms. Id. p. 19, Apx.

81. So Petitioners articulated evidence supporting the ultimate determination of the contention, viz., offshore wind as a reasonable alternative requiring NEPA analysis, even though the merits decision is reserved for another day.

The Commission similarly combed through Petitioners Exhibit 15, the Case: 12-1561 Document: 00116418893 Page: 54 Date Filed: 08/16/2012 Entry ID: 5666489 DOEs Strategic Work Plan for 2011-2015, citing unresolved barriers to offshore wind development, while ignoring the DOEs tangible leading effort to overcome those barriers to achieve the desirable economic scenario of 54 GW at 7-9 cents per kilowatt-hour by 2030, with an interim target of 10 GW at 13 cents per kilowatt-hour by 2020. Exh. 15 p. ii, Apx. 95.

The NRCs contrived substitution of statement of expectation for plan -

besides being facially silly - amounts either to the NRCs imposition of a factor[]

which Congress has not intended it to consider, or it is an explanation for its decision that runs counter to the evidence before the agency and should justify setting aside the agency decision. Motor Vehicle Mfrs. Ass'n v. State Farm Mut.

Auto. Ins., 463 U.S. 29, 43 (1983). When a contention alleges the need for further study of an alternative, from an environmental perspective, such reason-ableness determinations are the merits, and should only be decided after the contention is admitted. Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2), LBP-09-10, 70 NRC 51, 86 (2009). At this stage, the AEA simply does not require a petitioner to prove its case, support its claims in formal evidentiary form, or to provide support as strong as that necessary to withstand a summary disposition motion. Gulf States Utilities Co., (River Bend Station Unit 1), 40 NRC 43, 51 (1994).

Case: 12-1561 Document: 00116418893 Page: 55 Date Filed: 08/16/2012 Entry ID: 5666489 Commission Failed to Follow AEA Limitations on Appeals The Commission also violated standards which govern appeals from ASLBs. The Commission may reverse a licensing boards determination on dis-cretionary intervention only if the Board has abused its discretion. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26, 34 (1998). The Commission must be persuaded that a reasonable mind could reach no other result. Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1171 (1983). In other words, if minds could differ on whether or not the contention might succeed, the Commission is not at liberty to reverse the ASLB. Thus the Commission deviated from its own established principles to overturn the admitted contention.

Unreasonable Constriction of the Range of Alternatives Under NEPA The environmental effects of offshore wind can be readily ascertained.

There is growing experience and understanding of offshore wind environmental effects in many other countries. The central conundrum here is that NextEra applied for renewal nearly 20 years ahead of the expiration of the present 40-year license, and the Commission has held that decision of timing against the Petition-ers. By contrast, the ASLB ruled that NextEras timing of the application is consequential for Seabrook:

Case: 12-1561 Document: 00116418893 Page: 56 Date Filed: 08/16/2012 Entry ID: 5666489

[Petitioners] point here is simply that decisions have consequences.

They contend that, if an applicant chooses to seek renewal as early as 20 years prior to expiration - as it clearly is entitled to do under the Commis-sions existing rules - then perhaps its ability to criticize as speculative a petitioners claims about the necessarily distant extended operational period is somewhat attenuated.

LBP-11-02, Addendum p. 94, Apx. 26. The Commission ignored sound reason-ing en route to finding offshore wind to be too hypothetical and speculative to be part of the litigation inquiry:

Except in rare cases where there is evidence of unusual predictive reliability, it is not workable to consider, for purposes of NEPA analysis, what are essentially hypothetical or speculative alternatives as a source of future baseload power generation. For this reason, we find sensible the Staffs argument that in most cases a reasonable energy alternative is one that is currently commercially viable, or will become so in the relatively near term.

CLI-12-05, Addendum p. 53, Apx. 274.

To achieve that reversal, however, the Commission ruled on the merits, substituting itself as trier of fact, determiner of relevance, definer of expectation, and all of it at only the threshold point of the litigation. The Commission denied NEPA analysis of a rapidly-expanding electric power generation source in the world which has already seen commercial success. The issue for trial is whether offshore wind, a proven technology, is hypothetical or speculative in New England as a potential replacement for baseload energy from Seabrook and should Case: 12-1561 Document: 00116418893 Page: 57 Date Filed: 08/16/2012 Entry ID: 5666489 be considered. To unilaterally decide that offshore wind is hypothetical or speculative required the Commission to tiptoe through Petitioners minefield of feasibility evidence and measure that with the Commissions own biases in favor of nuclear energy. The Commission seized on the out-of-date 2006 and 2008 data cited in NextEras ER to prove speculative status. But the Commission had to ignore Petitioners exposition that NextEras 2008 ER data showed only 1,077 MW of offshore wind globally and failed to mention the European Wind Energy Associations 2009 forecast for doubling of offshore wind capacity in 2010, to 2,000 MW. Beyond Nuclear Exh. 11, p. 11, Apx. 51. The decision not to use the most up-to-date information on this dynamically-growing power source defeats the purpose of an EIS by 'impairing the agency's consideration of the adverse environmental effects' and by skewing the public's evaluation of the proposed agency action. Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 446-48 (4th Cir. 1996).

Legal Precedent Cited By The Commission Is Inapposite, Distinguishable Or Completely Wrong The Commissions recitation of NEPA interpretations to buttress its finding that the Supplemental EIS need not include a serious analysis of likely offshore wind development over the coming 18 years leaves much to be desired.

Case: 12-1561 Document: 00116418893 Page: 58 Date Filed: 08/16/2012 Entry ID: 5666489

1. Citizens Against Burlington The Commissions reference to Citizens Against Burlington v. Busey, 938 F.2d 190, 195 (D.C. Cir.), cert. denied, 502 U.S. 994 (1991) in support of the point that neither this agency nor the applicant need consider any alternative that does not bring about the ends of the proposed action26 does not make the agencys case. Petitioners will adjudicate that offshore wind will fulfill baseload expecta-tions, as an issue of fact. They were not obliged to make so convincing a showing merely to have their contention admitted for hearing. The Commission sua sponte concluded that since Seabrook is a merchant baseload power plant, the creation of an offshore wind network capable of generating baseload power is not reasonable for consideration as an alternative because it does not have viability today or in the near future. The Commission did not explain why that was so, only that it was so, conflating a spontaneous adjudicatory ruling with the less-auspicious standards for admissibility of a contention.

In Citizens Against Burlington, 938 F.2d 197-98, then-judge Clarence Thomas warned that outcome-controlled rigging of purpose and need violates NEPA, and that the statute "does not give agencies license to fulfill their own prophecies. He continued, an agency may not define the objectives of its action 26 CLI-12-05, Addendum pp. 54-55, Apx. 274-275.

Case: 12-1561 Document: 00116418893 Page: 59 Date Filed: 08/16/2012 Entry ID: 5666489 in terms so unreasonably narrow that only one alternative from among the envir-onmentally benign ones in the agency's power would accomplish the goals of the agency's action. . . . Id. That is precisely what the NRC did here.

2. Town of Winthrop The Commission noted (CLI-12-05, Addendum p. 52, Apx. 273) that [a]n environmental impact statement is not intended to be a research document, reflecting the frontiers of scientific methodology, studies, and data, attributing Town of Winthrop v. FAA, 535 F.3d 1, 11-13 (1st Cir. 2008)). Examination of the facts of Winthrop shows that the petitioners there argued that public comment demands and suggestions from Massachusetts public health and environmental agencies for additional studies on pollutants to ascertain adverse effects of an airport expansion proposal on public health were necessary to complete the NEPA document. Here, by contrast, studies which were completed by expert agencies in offshore wind and wind power generation were not demanded, but handed over to the Commission by Petitioners. Far from calling for additional research, Beyond Nuclear demanded consideration of the most up-to-date information, which is constantly emanating from the commercial wind power sector globally.

Petitioners provided the research. The Commission chose to fulfill [its] own prophecies by engaging in outcome-controlled rigging of purpose and need, in Case: 12-1561 Document: 00116418893 Page: 60 Date Filed: 08/16/2012 Entry ID: 5666489 violation of NEPA. Citizens Against Burlington, supra.

While an Environmental Impact Statement must not require the govern-ment to speculate on impacts in order to foresee the unforeseeable, City of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir.1975), the basic agency respon-sibility under NEPA is predictive, i.e., to ascertain the environmental effects of proposed action before the action is taken and those effects become fully known.

Reasonable forecasting and speculation is thus implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as crystal ball inquiry. Id. at 676 (quoting Scientists' Institute for Public Information v. A.E.C.,

481 F.2d 1079, 1092 (D.C.Cir.1973)). NEPA's requirement for forecasting environmental consequences far into the future implies the need for predictions based on existing technology and those developments which can be extrapolated from it (emphasis supplied). Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission (Vermont Yankee I), 547 F.2d 633, 639 (D.C. Cir. 1976).

Contrast Beyond Nuclears evidence in this case with the truly-speculative evid-ence which was rejected in Natural Resources Defense Council: There, the public demand was for evaluation of the environmental effects of the operation of one or more unidentifiable reprocessing plants, employing separation processes which are Case: 12-1561 Document: 00116418893 Page: 61 Date Filed: 08/16/2012 Entry ID: 5666489 unidentified and which may or may not now be known or used, during the course of the forty-year life of the plant. . . . Id. at 639.

3. Carolina Environmental Study Group The Commission cited Carolina Envtl. Study Grp. v. U.S., 510 F.2d 796, 801 (D.C. Cir. 1975) for the point that NEPA was not meant to require detailed discussion of remote and speculative alternatives). CLI-12-05, Addendum p. 54 fn. 244, Apx. 274. Undeniably, the identification of reasonable alternatives in-volves degrees of rigor, especially if there are basic changes required in statutes and policies of other agencies - making them available, if at all, only after pro-tracted debate and litigation such that an alternative would not be meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed. Natural Resources Defense Council v. Morton, supra, 458 F.2d 837-838. Conversely, if an alternative does not involve protracted debate and litiga-tion and is meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed, it is logically a reasonable alternative.

Carolina Envtl. Study Grp. v. U.S., 510 F.2d 801.

Offshore wind power, according to the mountain of evidence provided by Petitioners, is moving toward realization in the Gulf of Maine. The technology is well past debate and has become, instead, a question of timing and logistics.

Case: 12-1561 Document: 00116418893 Page: 62 Date Filed: 08/16/2012 Entry ID: 5666489 There is a high probability of construction of baseload quantities of interconnected power generation farms in the Gulf years before the 2030 commencement of Seabrooks license renewal period. The high probability that offshore wind will be deployed in baseload quantities before the onset of Seabrooks renewal raises a significant factual and ultimately, legal distinction from Carolina Environmental Study Group.

The Commission cited the case to buttress this conclusion:

In sum, to submit an admissible contention on energy alternatives in a license renewal proceeding, a petitioner ordinarily must provide alleged facts or expert opinion sufficient to raise a genuine dispute as to whether the best information available today suggests that commercially viable alternate technology (or combination of technologies) is available now, or will become so in the near future, to supply baseload power.

CLI-12-05, Addendum p. 53, Apx. 274. But during the litigation of Carolina Environmental, the Study Group argued that because the nuclear plant is to operate for several decades, alternative power sources which may be developed, such as oil shale, geothermal energy, and solar energy, should have been considered. That is, the Study Group was claiming that alternative energy sources might be developed during the operational life of the plant that was under challenge, not in the years preceding the commencement of plant operations. It was the potential for development of alternatives only after Case: 12-1561 Document: 00116418893 Page: 63 Date Filed: 08/16/2012 Entry ID: 5666489 completion of construction of a new power plant that the D.C. Circuit deemed both speculative and remote. The court doubted that Congress intended an agency to devote itself to extended discussion of the environmental impact of alternatives so remote from reality as to depend on, say, the repeal of the antitrust laws. Id., 510 F.2d at 8009 (citing Natural Resources Defense Council v. Morton, supra).

By contrast, here the Petitioners proposed NEPA analysis of plans for baseload offshore wind projected to be operating at commercial levels years before the 2030-2050 license renewal period. Their evidence shows that the State of Maine passed legislation in 2009 which enabled the first steps toward a large-scale offshore wind program. Enabling legislation in the case of offshore wind is not so remote from reality as it might have been in Carolina Study Group.

Petitioners evidence suggests, at the very least, that wind power technology is meaningfully compatible with the time-frame of the needs to which the under-lying proposal is addressed. Natural Resources Defense Council v. Morton, supra, 458 F.2d 837-838.

Carolina Environmental Study Group is thus inapropos as authority for the Commissions view of the infeasibility of offshore wind.

Case: 12-1561 Document: 00116418893 Page: 64 Date Filed: 08/16/2012 Entry ID: 5666489

4. Roosevelt Campobello Intl Park Commn v. EPA The Commission cited Roosevelt Campobello Int?l Park Commn v. EPA, 684 F.2d 1041 (1st Cir. 1982) for the proposition that ([t]he reasonableness of alternatives is based upon information available at the time of drafting the EIS. . .

. CLI-12-05, Addendum p. 53 fn. 244, Apx. 274. But the Commission edited out critical wording to transmogrify Campobello into authority for that. The alternatives discussion in Campobello embraced alternative physical locations for a huge offshore crude oil tanker unloading complex, not alternative choices of technology to achieve the generation of electrical power. Moreover, the USEPA saw its duty as simply ensuring that the anticipated physical and ecological damage from the project would be environmentally acceptable, i.e., that if the expected damage from the three sites under consideration were relatively compar-able, then the USEPA as regulator must defer to the developers final determina-tion as to location of the project. Id. at 1046-1047.

So the Commission misused Campobello by editing a critical passage to serve its own ends. The complete passage as written by the First Circuit says:

EPAs duty under NEPA is to study all alternatives that appear reasonable and appropriate for study at the time of drafting the EIS, as well as significant alternatives suggested by other agencies or the public during the comment period.

Case: 12-1561 Document: 00116418893 Page: 65 Date Filed: 08/16/2012 Entry ID: 5666489 Campobello at 1047. The Commission, though, referenced Campobello as holding that, for siting alternatives, EPAs duty under NEPA is to study all alternatives that appear reasonable and appropriate for study at the time of drafting the EIS. CLI-12-05, Addendum p. 53 fn. 244. Missing from the Commissions reliance on Campobello is the italicized portion of the above quotation. The First Circuit did not rule to limit consideration of alternatives to those identified at the time the EIS is written, but instead, decided that the range of alternatives in the EIS cannot be limited solely to what the agency considers to be appropriate for study. This Court held that the EIS must embrace significant alternatives suggested by the public. . . . at the time of drafting of the EIS. This is the opposite of the mischief to which the Commission adapted the decision. Campo-bello offers no safe harbor to the Nuclear Regulatory Commission.

Neither does the Commissions selective editing of its excerpt from Seacoast Anti-Pollution League v. Nuclear Regulatory Com'n, 598 F.2d 1221, 1230 (1st Cir. 1979) (for siting alternatives, an agency must consider alternatives that appear reasonable at the time of the NEPA review, CLI-12-05, Addendum pp. 53-54 fn. 244, Apx. 274). Seacoast involved multiple geographical site alternatives for the Seabrook plant. Similarly to the surgical metamorphosis the Commission caused the Campobello passage by leaving out a critical clause, it Case: 12-1561 Document: 00116418893 Page: 66 Date Filed: 08/16/2012 Entry ID: 5666489 eviscerated the following passage from Seacoast (wording omitted by Commission is italicized):

In respect to alternatives, an agency must on its own initiative study all alternatives that appear reasonable and appropriate for study at the time, and must also look into other significant alternatives that are called to its attention by other agencies, or by the public during the comment period afforded for that purpose.

598 F.2d 1230. Seacoast and Campobello afford no port in this storm for the NRC.

Offshore Wind As A Discrete Source of Baseload Electric Generation The Commission gave substantial weight to NextEras goal of providing baseload electrical power as part of its rationale. CLI-12-05, Addendum p. 55, Apx. 275). This was permissible. Citizens Against Burlington, supra. But the ASLB had properly admitted Petitioners contention to get to the truth of whether offshore wind might provide baseload power, or not.

When it dismissed the contention, the Commission incorrectly scored the ASLB for supplying a basis not argued by Beyond Nuclear - that Petitioners supposedly did not argue that wind farms that combine with other wind farms to create an interconnected network would constitute a single, discrete electric generation source as required by the GEIS. The Commission flatly stated, Beyond Nuclear does not make this argument. CLI-12-05, Addendum pp. 61-Case: 12-1561 Document: 00116418893 Page: 67 Date Filed: 08/16/2012 Entry ID: 5666489 62, Apx. 278. This statement, however, is grossly inaccurate.

At pp. 18-25 of their Petition to Intervene (Apx. 19-21), Petitioners identified expert documents, agency analyses, and other contemporary factual documents which discuss possible solutions to the problem of wind intermittency and its implications for the unreliability of wind energy as a baseload source. Pet-itioners cited a U.S. Department of Energy, NREL study of wind energy as base-load power in combination with innovative storage technology and long-distance transmission. See Petition at pp. 21-22 (Apx. 20) and Exh. #3, Creating Baseload Wind Power Systems, Apx. 35. Petitioners also submitted for the record an authoritative article from Stanford Universitys Journal of Applied Meteorology and Climatology, Supplying Baseload Power and Reducing Transmission Requirements by Interconnected Wind Farms (Petitioners Exh. 4, Apx. 36-40) which concludes (p. 1702, Apx. 36) that by linking multiple wind farms together it is possible to improve substantially the overall performance of the interconnected system (i.e., array) when compared with that of any individ-ual wind farm. . . .

Petitioners further supplied several news articles which reveal coming high-tech smart grid interconnections. See Exh. #5 (Apx. 41), Google helps finance superhighway for wind power, Washington Post, October 13, 2010, reporting Case: 12-1561 Document: 00116418893 Page: 68 Date Filed: 08/16/2012 Entry ID: 5666489 on Googles announced formation of a consortium to supply large scale baseload wind power through the advancement of an offshore backbone transmission project to interconnect East Coast wind farms by 2020. Additionally, see Petitioners Exh. #6 (Apx. 42), a January 6, 2010 news article, European Communities Unite to Invest $40 Billion in Huge Off-Shore Renewable Energy Super Grid, and Petitioners Exh. #7 (Apx. 43), a January 7, 2010 article, Renewable Energy (Wind, Solar & Tide Power) Will Be Distributed Through A Super Grid in Europe.

When it admitted the offshore wind contention, the ASLB recognized its responsibility to not constrict full consideration of alternatives required by NEPA.

Cf. Simmons v. Corps of Engineers, 20 F.3d 664, 669 (7th Cir. 1997) (agency must avoid the losing proposition of blindly adopting the applicant's goals; NEPA requires than agency to "exercise a degree of skepticism in dealing with self-serving statements from a prime beneficiary of the project" and to look at the general goal of the project rather than only those alternatives by which a particular applicant can reach its own specific goals).

The Commission, however, derogated these principles and imposed a dramatically-changed standard of evidence, transforming the gateway step of petitioning to participate in the proceeding into a summary - losing - trial on the Case: 12-1561 Document: 00116418893 Page: 69 Date Filed: 08/16/2012 Entry ID: 5666489 merits.

CONCLUSION The NRC has enshrined self-imposed ignorance as an acceptable substitute for compliance with NEPA. This license renewal proceeding is the sole oppor-tunity, ever, for the public to petition for serious consideration of alternatives to the continued operation of Seabrook. It is therefore paramount to include all possible facts, expert and expert agency opinion concerning alternatives.

The Commissions ruling here that Petitioners superior 2010 evidence on offshore wind - evidence which continues to mount literally with each passing day

- need not be investigated, in favor of aging, stale facts and inferences selected by the very beneficiary from the license extension, NextEra. That is illogical and violates NEPA. A hard look for a superior alternative is a condition precedent to the licensing determination that an applicants proposal is acceptable under NEPA. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2),

ALAB-471, 7 NRC 477, 513 (1978). An agency acts arbitrarily and capriciously when it fails to "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Clarity is at a premium in NEPA because the statute . . . is a Case: 12-1561 Document: 00116418893 Page: 70 Date Filed: 08/16/2012 Entry ID: 5666489 democratic decision making tool . . . . Accordingly, agencies violate NEPA when they fail to disclose that their analysis contains incomplete information. North Carolina Wildlife Federation v. North Carolina Dept. of Transp., 677 F.3d 596, 603 (4th Cir. 2012) (internal citations omitted).

Denial of NEPA consideration of offshore wind means that serious prece-dural injury will befall the public in this license extension proceeding, in the form of a less-informed and possibly flawed decision to continue with inherently dangerous nuclear power, even as the inevitability of offshore wind expands unabated in the Gulf of Maine.

Commercial-scale offshore wind power exists in growing concentrations in several other parts of the world. The NRC is not entitled to define the facts and to favor bad technical information over legitimate information about its rapid expand-sion. See, Seattle Audubon Society v. Espy, 998 F.2d 699, 703-04 (9th Cir.

1993) (overturning decision which rests on stale scientific evidence, incomplete discus-sion of environmental effects . . . and false assumptions).

It cannot be gainsaid that this case should not evoke the nearly-magical quarantine of court deference to agency decision-making. While an agency's interpretation of the statute under which it operates is entitled to some deference,

'this deference is constrained by our obligation to honor the clear meaning of a Case: 12-1561 Document: 00116418893 Page: 71 Date Filed: 08/16/2012 Entry ID: 5666489 statute, as revealed by its language, purpose, and history.' Teamsters v. Daniel, 439 U.S. 551, 566 n. 20 (1979), cited in Town of Brookline v. Gorsuch, 667 F.2d 215, 218 (1st Cir. 1981). Indisputably, a reviewing court must generally be at its most deferential where the agency is making predictions within its area of special expertise, at the frontiers of science. But that is not so when the review, as here, involves scrutiny of the agencys simple findings of fact. Upper Blackstone Water Pollution Abatement District v. United States Environment Protection Agency, 11-1474, 11-1610 (First Circuit, August 3, 2012) (slip. op.)

(internal citation omitted). The NRC, the very embodiment of technical. scientific and commercial promotion of nuclear power generation, possesses no scientific expertise in offshore wind, and will certainly not acquire any so long as the Commission excludes consideration of wind alternatives from NEPA scrutiny.

NEPA's requirement for forecasting environmental consequences far into the future implies the need for predictions based on existing technology and those developments which can be extrapolated from it. Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission (Vermont Yankee I), supra, 547 F.2d 637.

The existence of a viable, but unexamined alternative renders an envir-onmental impact statement inadequate. Idaho Conservation League v. Mumma, Case: 12-1561 Document: 00116418893 Page: 72 Date Filed: 08/16/2012 Entry ID: 5666489 956 F.2d 1508, 1519-20 (9th Cir. 1992). Agencies must study. . . significant alternatives suggested by other agencies or the public. . . . DuBois v. U.S. Dept.

of Agric., 102 F.3d 1273, 1286 (1st Cir. 1996), cert. denied, 117 S.Ct. 1567 (1997).

This controversy encompasses a nuanced controversy which the NRC has resolved, not by intelligent pursuit of NEPAs dictates, but by changing the lang.-

age. In its fatuous battle to control the language and to block consideration of offshore wind (How is a statement of expectation not a plan?) , the NRC only complicates the inevitable transition to a clean energy future. In this world where a state legislature can repeal the science of global warming or evolution, instate-tional denial has become, itself, an institution. But it must not be allowed to infect federal government regulatory decision-making. The Nuclear Regulatory Commis-sions denial of the obvious viability of offshore wind power must not be dignified or protected by applying anything other than the rule of law as delineated above.

WHEREFORE, Petitioners respectfully request that this Court review the Nuclear Regulatory Commissions March 8, 2012, Memorandum and Order, vacate the same, and remand the matter of Petitioners contention back to the agency with instructions to reinstate the order of the NRCs ASLB and Licensing Board and admit the contention for hearing.

Case: 12-1561 Document: 00116418893 Page: 73 Date Filed: 08/16/2012 Entry ID: 5666489 Respectfully submitted,

/s/ Terry J. Lodge Terry J. Lodge, Esq.

Ohio Bar No. 0029271 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 Phone (419) 255-7552 Fax (419) 255-7552 tjlodge50@yahoo.com lodgelaw@yahoo.com Counsel for Petitioners CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 13,814 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally-spaced typeface using WordPerfect X4 word processing program and Times New Roman, 14 pt. type.

/s/ Terry J. Lodge Counsel for Appellants August 16, 2012 CERTIFICATE OF SERVICE I hereby certify that on August 16, 2012 I electronically filed the foregoing document with the United States Court of Appeals for the First Circuit by using the CM/ECF system. I certify that the following parties or their counsel of record are registered as ECF filers and that they will be served by the Case: 12-1561 Document: 00116418893 Page: 74 Date Filed: 08/16/2012 Entry ID: 5666489 CM/ECF system:

Jeremy Suttenberg, Esq. Steven C. Hamrick, Esq.

U.S. Nuclear Regulatory Commission NextEra Energy Office of the General Counsel Suite 220 Mail Stop O-15D21 801 Pennsylvania Ave NW Washington, DC 20555-0001 Washington, DC 20004 jeremy.suttenberg@nrc.gov Ferriter Scobbo & Rodophele, PC Mitchell Ross, Esq. Nicholas J. Scobbo, Jr., Attorney NextEra Energy Seabrook, LLC 125 High Street 700 Universe Blvd. (LAW/JB) Boston, MA 02110 Juno Beach, FL 33408 mitch.ross@fpl.com John Fredrick Cordes, Jr., Esq.

US Nuclear Regulatory Commission David R. Lewis. Esq. 14 H3 Pillsbury Winthrop Shaw Pittman, 11555 Rockville Pike LLP Rockville, MD 20852-2738 2300 N Street, N.W.

Washington, DC 20037 david.lewis@pillsburylaw.com

/s/ Terry J. Lodge Terry J. Lodge Counsel for Petitioners Case: 12-1561 Document: 00116418893 Page: 75 Date Filed: 08/16/2012 Entry ID: 5666489 ADDENDUM Pp. 1-68, Commission decision, CLI-12-05, Memorandum and Order (Ruling on Petitions for Intervention and Requests for Hearing)

Pp.69-134, Atomic Safety and Licensing Board decision, LBP-11-02, Memorandum and Order (Ruling on Petitions for Intervention and Requests for Hearing)

Case: 12-1561 Document: 00116418893 Page: 76 Date Filed: 08/16/2012 Entry ID: 5666489 Page 1 of 134 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Gregory B. Jaczko, Chairman Kristine L. Svinicki George Apostolakis William D. Magwood, IV William C. Ostendorff

)

In the Matter of )

)

NEXTERA ENERGY SEABROOK, LLC ) Docket No. 50-443-LR

)

(Seabrook Station, Unit 1) )

)

CLI-12-05 MEMORANDUM AND ORDER This proceeding stems from the May 25, 2010, application of NextEra Energy Seabrook, LLC (NextEra) to renew its operating license for Seabrook Station, Unit 1 (Seabrook).1 Beyond Nuclear, the Seacoast Anti-Pollution League, and the New Hampshire Sierra Club (collectively, Beyond Nuclear) filed a joint petition to intervene.2 Separately, Friends of the Coast and the New England Coalition (collectively, Friends/NEC) filed their own joint petition.3 1

See generally Seabrook Station License Renewal Application (May 25, 2010) (Vol. I: ADAMS accession no. ML101590098; Vol. II: ML101590101; Vol. III: ML101590091) (Application).

2 Beyond Nuclear, Seacoast Anti-Pollution League and New Hamps[h]ire Sierra Club Request for Public Hearing and Petition to Intervene (Oct. 20, 2010) (Beyond Nuclear Petition).

3 Friends of the Coast and New England Coalition Petition for Leave to Intervene, Request for Hearing, and Admission of Contentions (dated Oct. 20, 2010, but filed Oct. 21, 2010)

(Friends/NEC Petition). Friends/NEC supported their petition with a Declaration by Mr. Paul Blanch. Declaration of Paul Blanch (Oct. 18, 2010) (Blanch Declaration), appended as Attachment 7 to Friends/NEC Petition (ML102940557).

Case: 12-1561 Document: 00116418893 Page: 77 Date Filed: 08/16/2012 Entry ID: 5666489 Page 2 of 134 On February 15, 2011, the Board issued LBP-11-2, finding that all petitioners had demonstrated standing, and admitting one contention in part and three more in their entirety.4 NextEra has appealed LBP-11-2.5 As discussed below, we affirm in part and reverse in part LBP-11-2.

I. REGULATORY BACKGROUND As the U.S. Court of Appeals for the Third Circuit recognized, the scope of our license renewal process is limited.6 The license renewal safety review*and any associated license renewal adjudicatory proceeding*focuses on the detrimental effects of aging posed by long-term reactor operation.7 Part 54 of our regulations sets forth the safety review standards for license renewal.

Section 54.4 defines the scope of the review, which focuses on those systems, structures, and components (SSCs) that (1) perform the safety functions outlined in section 54.4(a)(1)(i)-(iii);

4 LBP-11-2, 73 NRC __ (Feb. 15, 2011) (slip op. at 9-15 (standing) and 20-61 (contentions)). In addition, the Board *decline[d] to consider the revised declaration of Paul Blanch and other materials submitted by Friends/NEC on December 6, 2010,* and therefore denied as moot Friends/NEC*s motion for leave to reply to NextEra*s and the Staff*s objections to the revised declaration. LBP-11-2, 73 NRC at __ (slip op. at 64), referring to both Supplement to Friends of the Coast and New England Coalition Petition for Leave to Intervene, Request for Hearing, and Admission of Contentions: Errors and Corrections and New Information (Dec. 6, 2010), and Motion by Friends of the Coast and New England Coalition for Leave to Reply to NRC Staff Objections; NextEra Energy Seabrook, LLC. Response in Opposition to the Friends of the Coast and New England Coalition Supplement to its Petition (Dec. 20, 2010). The Board*s specific ruling with regard to the revised Blanch Declaration and other materials is not now before us on appeal.

5 NextEra Energy Seabrook, LLC*s Notice of Appeal of LBP-11-02 as to the New England Coalition and Friends of the Coast (Feb. 25, 2011); Brief in Support of NextEra Energy Seabrook, LLC*s Appeal of LBP-11-02 as to the New England Coalition and Friends of the Coast (Feb. 25, 2011) (NextEra Appeal I); NextEra Energy Seabrook, LLC*s Notice of Appeal of LBP-11-02 as to Beyond Nuclear, the Seacoast Anti-Pollution League, and the Sierra Club of New Hampshire (Feb. 25, 2011); Brief in Support of NextEra Energy Seabrook, LLC*s Appeal of LBP-11-02 as to Beyond Nuclear, the Seacoast Anti-Pollution League, and the Sierra Club of New Hampshire (Feb. 25, 2011) (NextEra Appeal II).

6 See N.J. Envtl. Fed*n v. NRC, 645 F.3d 220, 224 (3d Cir. 2011).

7 See id.

Case: 12-1561 Document: 00116418893 Page: 78 Date Filed: 08/16/2012 Entry ID: 5666489 Page 3 of 134 (2) whose failure could prevent accomplishment of the safety-related functions outlined in section 54.4(a)(1)(i)-(iii); or (3) are relied on to demonstrate compliance with NRC regulations for fire protection, environmental qualification, pressurized thermal shock, anticipated transients without scram, or station blackout.8 License renewal applicants must conduct aging management reviews of any SSC that performs one of these intended functions if the SSC is both *passive* (that is, it performs its intended function(s) *without moving parts or without a change in configuration or properties*9) and *long-lived* (that is, it is *not subject to replacement based on a qualified life or specified time period*10). Applicants must demonstrate *reasonable assurance*11 that *the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the CLB [current licensing basis] for the period of extended operation.*12 8

10 C.F.R. § 54.4(a).

9 10 C.F.R. § 54.21(a)(1)(i); Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449, 454 (2010); AmerGen Energy Co.,

LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 466 (2008).

10 10 C.F.R. § 54.21(a)(1)(ii); Oyster Creek, CLI-08-23, 68 NRC at 466. See 10 C.F.R.

§§ 54.21(a)(3), 54.29(a)(1). *[S]tructures and components associated only with active functions can be generically excluded from a license renewal aging management review. Functional degradation resulting from the effects of aging on active functions is more readily determinable, and existing programs and requirements are expected to directly detect the effects of aging.*

Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,472 (May 8, 1995) (1995 License Renewal Rule). See also Pilgrim, CLI-10-14, 71 NRC at 454

(*Existing regulatory programs . . . can be expected to !directly detect the effects of aging* on active functions* (quoting 1995 License Renewal Rule, 60 Fed. Reg. at 22,472)); Oyster Creek, CLI-08-23, 68 NRC at 466-67.

11 10 C.F.R. § 54.29(a).

12 10 C.F.R. § 54.21(a)(3). See also 10 C.F.R. § 54.4(b) (regarding the limited scope of the intended functions). The *current licensing basis* is *the set of NRC requirements (including regulations, orders, technical specifications, and license conditions) applicable to a specific plant, and includes the licensee*s written, docketed commitments for ensuring compliance with applicable NRC requirements and the plant-specific design basis.* Pilgrim, CLI-10-14, 71 NRC at 453-54 (footnote omitted).

Case: 12-1561 Document: 00116418893 Page: 79 Date Filed: 08/16/2012 Entry ID: 5666489 Page 4 of 134 In reviewing license renewal applications, the NRC is guided primarily by two documents*the Generic Aging Lessons Learned (GALL) Report and the License Renewal Standard Review Plan.13 If the NRC concludes that an aging management program (AMP) is consistent with the GALL Report, then it accepts the applicant*s commitment to implement that AMP, finding the commitment itself to be an adequate demonstration of reasonable assurance under section 54.29(a).14 License renewal applications are also subject to an environmental review under the National Environmental Policy Act (NEPA)15 and our Part 51 regulations implementing NEPA.16 The Staff*s review, and ultimately our own, are guided largely by a Generic Environmental Impact Statement (GEIS) that focuses specifically on license renewal applications.17 13

!Generic Aging Lessons Learned (GALL) Report," NUREG-1801, Rev. 1 (Sept. 2005), Vol. 1 (ML052770419) & Vol. 2 (ML052110006) (GALL Report); !Generic Aging Lessons Learned (GALL) Report # Final Report," NUREG-1801, Rev. 2 (Dec. 2010) (ML103490041) (GALL Report Rev. 2); !Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants," NUREG-1801, Rev. 1 (Sept. 2005) (ML052770566) (Standard Review Plan).

14 Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 36 (2010); Oyster Creek, CLI-08-23, 68 NRC at 467-68.

15 42 U.S.C. §§ 4332(2)(C)(i), (iii) (requiring an agency to prepare a detailed statement describing the reasonably foreseeable environmental impacts both of the proposed federal action and of any feasible alternative(s) to the proposed federal action).

16 See generally 10 C.F.R. pt. 51.

17

!Generic Environmental Impact Statement for License Renewal of Nuclear Plants," NUREG-1437, Vol. 1 (May 1996) (ML040690705), & Vol. 2 (Sept. 2005) (ML052780376) (License Renewal GEIS). The GEIS sets forth the technical basis for our 1996 revisions to the Part 51 rules, as they relate to power reactor license renewal. See Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 66,537, 66,537 (Dec. 18, 1996) (!The amendments [to Part 51] are based on the analyses reported in NUREG-1437");

License Renewal GEIS, Vol. 1, § 1.1, at 1-1.

Case: 12-1561 Document: 00116418893 Page: 80 Date Filed: 08/16/2012 Entry ID: 5666489 Page 5 of 134 II. PROCEDURAL BACKGROUND In its petition to intervene, Beyond Nuclear proffered one environmental contention.18 And in their petition to intervene, Friends/NEC proffered four contentions, one of which was divided into six discrete parts.19 NextEra and the NRC Staff submitted answers in which they argued that all contentions were inadmissible.20 Friends/NEC and Beyond Nuclear each filed replies opposing the Staff*s and NextEra*s Answers.21 The Board held oral argument on the petitions. Subsequently, in LBP-11-2, the Board admitted Beyond Nuclear*s contention, as well as two contentions and portions of a third, proffered by Friends/NEC.22 Separately, 18 Beyond Nuclear Petition at 6-49.

19 Friends/NEC Petition at 10-79.

20 NextEra Energy Seabrook, LLC*s Answer Opposing the Petition to Intervene and Request for Hearing of Beyond Nuclear, Seacoast Anti-Pollution League, and New Hampshire Sierra Club (Nov. 15, 2010), at 16-36 (NextEra Answer to Beyond Nuclear Petition); NextEra Energy Seabrook, LLC*s Answer Opposing The Petition to Intervene and Request for Hearing of Friends of the Coast and the New England Coalition (Nov. 15, 2010), at 24-105 (NextEra Answer to Friends/NEC Petition); NRC Staff*s Answer to Petitions to Intervene and Requests for Hearing Filed by (1) Friends of the Coast and New England Coalition and (2) Beyond Nuclear, Seacoast Anti-Pollution League, and New Hampshire Sierra Club (Nov. 15, 2010), at 18-108 (Staff Answer to Petitions). Additionally, NextEra contended that Friends/NEC had failed to demonstrate standing. NextEra Answer to Friends/NEC Petition at 4-6.

21 Combined Reply of Joint Petitioners (Beyond Nuclear, Seacoast Anti-Pollution League and New Hampshire Sierra Club) to Answers of NextEra Energy Seabrook, LLC and the United States Nuclear Regulatory Commission (Nov. 22, 2010) (Beyond Nuclear Reply); [Original]

Friends of the Coast and New England Coalition Reply to NextEra and NRC Staff Answers to Friends of the Coast and New England Coalition Petition for Leave to Intervene, Request for Hearing, and Admission of Contentions (Nov. 22, 2010); [Revised] Friends of the Coast and New England Coalition Reply to NextEra and NRC Staff Answers to Friends of the Coast and New England Coalition Petition for Leave to Intervene, Request for Hearing, and Admission of Contentions (dated Nov. 22, 2010; served Nov. 23, 2010) (Friends/NEC Reply).

22 Friends/NEC*s remaining contentions were excluded and are not at issue here. LBP-11-2, 73 NRC at __ (slip op. at 63).

Case: 12-1561 Document: 00116418893 Page: 81 Date Filed: 08/16/2012 Entry ID: 5666489 Page 6 of 134 Friends/NEC filed a motion for reconsideration of those portions in LBP-11-2 where the Board had ruled against them.23 The Board denied their motion for reconsideration shortly thereafter.24 On appeal, NextEra challenges all of the Board*s contention admissibility rulings.25 Both Friends/NEC and Beyond Nuclear oppose NextEra*s appeal.26 III. DISCUSSION A. Applicable Standards A request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted . . .;

(ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; 23 Friends of the Coast and New England Coalition, Inc. Motion for Leave to File for Reconsideration of Memorandum and Order LBP-11-02 (Feb. 25, 2011).

Under NRC practice, the filing of this motion tolled our consideration of the two appeals. See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1, 3 (2001) (!When a petition for review is filed with the Commission at the same time as a motion for reconsideration is filed with the Board, the Commission will delay considering the petition for review until after the Board has ruled" (citation omitted)); Commonwealth Edison Co., (Byron Nuclear Power Station, Units 1 and 2), ALAB-659, 14 NRC 983, 985 (1981) (!It simply is not customary for an appeal to proceed through at least the briefing process while the trial tribunal has before it an authorized and timely-filed petition for reconsideration of the decision or order in question" (footnote omitted)).

24 Order (Denying Extension Request and Denying Motion for Leave to File for Reconsideration)

(Mar. 9, 2011) (unpublished).

25 NextEra does not challenge the Board*s rulings on standing.

26 Petitioners* Beyond Nuclear, Seacoast Anti-Pollution League and New Hampshire Sierra Club Reply in Opposition to NextEra Seabrook, LLC*s Appeal of LBP-11-02 (Mar. 7, 2011) (Beyond Nuclear Opposition to Appeal); Friends of the Coast and New England Coalition Answer and Opposition to NextEra Energy Seabrook, LLC*s Notice of Appeal of LBP-11-02 (Mar. 10, 2011)

(Friends/NEC Opposition to Appeal). The Secretary granted Friends/NEC a three-day extension of time within which to file its opposition. See Order (Denying Extension Request and Denying Motion for Leave to File for Reconsideration) (SECY Mar. 9, 2011) (unpublished).

Case: 12-1561 Document: 00116418893 Page: 82 Date Filed: 08/16/2012 Entry ID: 5666489 Page 7 of 134 (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestor's/petitioner's position on the issue . . . together with references to the specific sources and documents on which the requestor/petitioner intends to rely . . .; [and]

(vi) . . . [P]rovide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.27 As we have outlined in earlier decisions, the NRC in 1989 revised its rules to prevent the admission of contentions !based on little more than speculation."28 The agency deliberately

!rais[ed] the admission standards for contentions . . . to obviate serious hearing delays caused in the past by poorly defined or [poorly] supported contentions."29 Prior to our 1989 rule revision, intervenors were able to trigger hearings after merely copying a contention from another proceeding, even though these ![a]dmitted intervenors often had negligible knowledge" of the issues !and, in fact, no direct case to present."30 Although under our current rules intervenors of course may use the discovery process to develop a case once contentions are admitted, !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.31 We properly !reserve our hearing process for genuine, material controversies between knowledgeable litigants."32 27 10 C.F.R. § 2.309(f)(1).

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

29 Id.

30 Id.

31 Id. at 335 (internal quotation and citation omitted) (emphasis added).

32 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 219 (2003) (footnote omitted).

Case: 12-1561 Document: 00116418893 Page: 83 Date Filed: 08/16/2012 Entry ID: 5666489 Page 8 of 134 We generally defer to Board rulings on contention admissibility unless we find *an error of law or abuse of discretion.*33 With these points in mind, we turn to NextEra*s appeals.

B. Analysis of the Board*s Rulings on Contention Admissibility

1. Friends/NEC Contention 1 The license renewal application for Seabrook Station fails to comply with the requirements of 10 C.F.R. §§ 54.21(a) and 54.29 because Applicant has not proposed an adequate or sufficiently specific plan for aging management of non-environmentally qualified inaccessible electrical cables and wiring for which such aging management is required. Without an adequate plan for aging management of non-environmentally qualified inaccessible electrical cables[,]

protection of public health and safety cannot be assured.34

a. Background NextEra*s original Application contained an AMP addressing non-environmentally qualified inaccessible medium-voltage electrical cables and wiring. On October 29, 2010, NextEra submitted a supplement to the Application35 to bring the Application into conformity with Revision 2 of the GALL Report.36 This supplement amended the *Non-EQ Inaccessible Medium-Voltage Cables Program,* expanding its scope to include certain low-voltage cables as well.37 33 See, e.g., South Carolina Electric and Gas Co. and South Carolina Public Service Authority (also referred to as Santee Cooper) (Virgil C. Summer Nuclear Station, Units 2 and 3),

CLI-10-21, 72 NRC 197, 200 (2010) (citing Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, Nebraska), CLI-09-9, 69 NRC 331, 336 (2009)).

34 Friends/NEC Petition at 10-11.

35 The supplement included amendments to two AMPs. See Letter from Paul O. Freeman, Site Vice President of NextEra Energy Seabrook, LLC, to NRC Document Control Desk (Oct. 29, 2010) (Application Supplement) (ML103060022), and enclosures. See, particularly, id.,

Enclosure 2 to SBK-L-10179, *Changes to the Seabrook Station License Renewal Application Associated with Inaccessible Medium-Voltage Cables Not Subject to 10 CFR 50.49 Environmental Qualification Requirements Program.*

36 See NextEra Appeal I at 5 (citing GALL Report Rev. 2).

37 Id. at 5 (citing Application Supplement, Encl. 2 to SBK-L-10179, at 2, 6).

Case: 12-1561 Document: 00116418893 Page: 84 Date Filed: 08/16/2012 Entry ID: 5666489 Page 9 of 134 In submitting Contention 1, Friends/NEC argued generally that the original Application*s aging management program for non-environmentally qualified inaccessible electrical cables and wiring fails to demonstrate that the effects of aging will be adequately managed, to the detriment of public health and safety.38 Friends/NEC submitted the Declaration of Mr. Paul Blanch in support of this contention. Friends/NEC offered a number of bases for the contention.39 The Board in LBP-11-2 appears to rely on five particular bases, discussed below, in admitting Contention 1.40 The Board found generally that the combination of Mr. Blanch*s Declaration and the cited technical documents provided the required minimum support for Contention 1.41 The Board, however, limited the admissibility ruling to *the adequacy of the . . . AMP . . . to manage age-related degradation of the cable insulation due to exposure to a wet or moist environment.*42 It expressly excluded assertions of current violations or noncompliance with the current licensing basis.43 In reaching this result, the Board acknowledged that Contention 1 was a challenge to an AMP that was assertedly consistent with the GALL Report,44 but concluded that such an assertion by an applicant does not immunize it against a challenge to the AMP.45 It likewise 38 Friends/NEC Petition at 11-13.

39 See id. The record reflects some confusion as to the number of bases supporting the contention. For example, Judge Kennedy suggests there are at least seventeen bases. See Transcript of Hearing for Oral Argument (Nov. 30, 2010) (Tr.) at 86-87.

40 NextEra does the same on appeal. See NextEra Appeal I at 10-11.

41 LBP-11-2, 73 NRC at __ (slip op. at 29, 31-32).

42 Id. at __ (slip op. at 31).

43 Id. at __ (slip op. at 31-32).

44 Id. at __ (slip op. at 30) (citing GALL Report, Vol. 1, at iii, 1).

45 Id. (citing Vermont Yankee, CLI-10-17, 72 NRC at 36, 38).

Case: 12-1561 Document: 00116418893 Page: 85 Date Filed: 08/16/2012 Entry ID: 5666489 Page 10 of 134 stated, without further discussion, that Friends/NEC*s factual assertions, at least to some extent, may have been rendered moot by NextEra*s October 29, 2010, Supplement to its Application.46

b. Discussion The scope of the contention as admitted by the Board is difficult to discern. The Board expressly mentions four bases and alludes to another47 but does not explain specifically why any of them supports the contention*s admission, or whether it included, or excluded, any particular basis in making its admissibility decision. Instead, the Board issued a blanket finding that Friends/NEC !provid[ed] a specific statement of the contention[,] . . . challeng[ed] the adequacy of the proposed AMP . . . [and] provide[d] references to the appropriate sections of the Application and supporting documents including the Blanch [D]eclaration . . . ."48 NextEra interprets the Board*s decision to admit Contention 1 as relying on the five claims discussed by the Board. NextEra asserts on appeal that, under 10 C.F.R. § 2.309(f)(1)(v), each of these five bases lacked the required factual or expert support to support a litigable contention.49 Similarly, we assume that any basis not addressed by the Board was not relied upon in making its admissibility decision.50 46 Id. at __ (slip op. at 31). NextEra submitted the Application Supplement on October 29, 2010, shortly after Friends/NEC had filed their October 20, 2010, Petition. Friends/NEC did not file subsequently a new or amended Contention 1.

47 Id. at __ (slip op. at 27-28).

48 Id. at __ (slip op. at 29) (footnote omitted).

49 NextEra Appeal I at 6-10. Friends/NEC*s answer does not respond to these points. See Friends/NEC Opposition to Appeal at 5. Rather, Friends/NEC present only one argument in rebuttal of NextEra*s appeal of the admission of Contention 1. They assert that NextEra untimely raised, for the first time on appeal, the argument that the Application Supplement rendered much of Contention 1 moot. Id. But the record directly contradicts Friends/NEC*s appellate argument. See NextEra Answer to Friends/NEC Petition at 25, 28 n.15, 41-42; Staff Answer to Petitions at 19-20, 24; Tr. at 172 (Mr. Shadis, acknowledging NextEra*s argument that the Application Supplement rendered some of Friends/NEC*s arguments moot).

50 For this reason, we need not reach NextEra*s alternative arguments that the Board erred in failing to identify the specific bases on which it admitted the contention, or that several of the (continued . . . )

Case: 12-1561 Document: 00116418893 Page: 86 Date Filed: 08/16/2012 Entry ID: 5666489 Page 11 of 134 Friends/NEC argue that the Application does not address certain specific recommendations made in two reports prepared by the Sandia and Brookhaven National Laboratories.51 The Board appeared to accept the argument that NextEra purportedly failed to address specific recommendations made in the two reports. NextEra argues on appeal (as it did before the Board) that Friends/NEC failed to identify with the required *particularity* the specific recommendations that NextEra should have addressed in the Application.52 Our review of the record confirms that Friends/NEC identified no specific recommendations from either of these two reports.

As NextEra observes, the Sandia Report is one of the sources that provided the technical basis for the relevant section of the GALL Report.53 NextEra stated in its application that its AMP is consistent with the GALL Report, with no exceptions.54 Moreover, NextEra bases had been rendered moot by NextEra*s submittal of a revised AMP. See NextEra Appeal I at 10-11 (referring to LBP-11-2, 73 NRC at __ (slip op. at 31)). We remind our boards, however, of the need to specify each basis relied upon for admitting a contention. Crow Butte Resources, Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 553-54 (2009). Contrary to the Board*s statement (slip op. at 31), an admitted contention is defined by its bases. Id. See generally Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 309 & n.103 (2010) (*The reach of a contention necessarily hinges upon its terms coupled with its stated bases.*) (emphasis in original; footnote and internal quotation marks omitted).

51 Friends/NEC Petition at 12, 15-16 (citing and quoting Ogden Environmental and Energy Services Co., Inc., *Aging Management Guideline for Commercial Nuclear Power Plants "

Electrical Cable and Terminations,* SAND96-0344, at 6.4 (Sept. 1996) (ML031140264) (Sandia Report), and citing M. Villaran & R. Lofaro, Brookhaven National Laboratory, *Essential Elements of an Electrical Cable Condition Monitoring Program,* NUREG/CR-7000 (Jan. 2010)

(ML100540050) (Brookhaven Report)).

52 NextEra Appeal I at 6-7 (citing 10 C.F.R. § 2.309(f)(1)); NextEra Answer to Friends/NEC Petition at 34. See also Oconee, CLI-99-11, 49 NRC at 336-38 (mere general references to the Staff!s Requests for Additional Information do not provide the requisite reasonable specificity).

53 See GALL Report, Vol. 2, § XI.E3, *Inaccessible Medium-Voltage Cables not Subject to 10 CFR 50.49 Environmental Qualification Requirements,* at XI E-9.

54 See NextEra Appeal I at 7 (referring to Application, Vol. III, App. B, *Aging Management Programs,* § B.2.1.34, at B-182); NextEra Answer to Friends/NEC Petition at 33 (same).

Case: 12-1561 Document: 00116418893 Page: 87 Date Filed: 08/16/2012 Entry ID: 5666489 Page 12 of 134 stated that it considered the technical information and guidance from the Sandia Report in its original and its revised AMP.55 As for the Brookhaven Report, Friends/NEC have identified no provision that contradicts or is not already addressed in the Application*s relevant AMP.56 Mr. Blanch takes issue with reliance on in-service systems testing conducted under normal operating conditions, to which the Brookhaven Report refers.57 But the AMP in the original Application provided for *a proven test for detecting deterioration of the insulation system due to wetting, such as power factor, partial discharge, or polarization index, as described in EPRI TR-103834-P1-2, *Effects of Moisture on the Life of Power Plant Cables* [(Aug. 1994)] or other testing that is state-of-the-art at the time the test is performed.*58 This language is nearly identical to the referenced GALL AMP.59 Friends/NEC dispute none of this. Neither Mr. Blanch nor Friends/NEC address the testing plan specified in the AMP, much less explain why it is inadequate. NextEra further points out, and our record review confirms, that its Application Supplement to bring this AMP *in 55 NextEra Appeal I at 7 (citing Application, Vol. III, App. B, § B.2.1.34, at B-181); NextEra Answer to Friends/NEC Petition at 33 (same). See also Application Supplement, Encl. 2, at 7 (citing the Sandia Report as a source of guidance and technical information for the AMP).

56 See NextEra Answer to Friends/NEC Petition at 30 (citing Application, Vol. III, App. B,

§ B.2.1.34).

57 See Blanch Declaration at 9-10 & n.3.

58 Application, Vol. III, App. B, § B.2.1.34, at B-181. See also NextEra Appeal I at 7-8 n.8; NextEra Answer to Friends/NEC Petition at 31; Staff Answer to Petitions at 23.

59 See GALL Report, Vol. 2, § XI.E3, at XI E-7. This section of the GALL Report was revised in 2010. The revision expanded the reference to *wetting* so that it now includes both *wetting*

and *submergence,* removed the cross-reference to EPRI TR-103834-P1-2, replaced it with a non-exclusive list of specific *proven test[s],* and explained the purpose of those tests. See GALL Report Rev. 2, § XI.E3, at XI E3-1. See also NextEra Appeal I at 7-8 n.8 (the AMP *does not rely on the in-service systems testing to which Mr. Blanch refers but instead requires a

• proven test* that will *provide an indication of the condition of the conductor insulation**) (quoting Application, Vol. III, App. B, § B.2.1.34, at B-181, and citing GALL Report, Vol. 2, § XI.E3, at XI E-7).

Case: 12-1561 Document: 00116418893 Page: 88 Date Filed: 08/16/2012 Entry ID: 5666489 Page 13 of 134 line with GALL Rev. 2 did not modify this description of the tests . . . .*60 In short, we find that Friends/NEC*s arguments above do not present a genuine issue of material fact or law, and that the Board therefore erred in admitting Contention 1 on this basis.

Friends/NEC also assert that *[t]here are no testing methods available to adequately assure that submerged or previously submerged cables would perform their functions for the duration of [a] postulated accident.*61 NextEra points to the absence of support for this basis, even in the Blanch Declaration.62 Our review of the Declaration and the Petition substantiates NextEra*s assertion, which Friends/NEC do not challenge on appeal. Moreover, Basis 2 appears to be a variation on Friends/NEC*s argument in Basis 1 regarding the Brookhaven Report. To the extent that it is, we reject it on the same grounds, specifically that such testing methods do exist and are referenced in both the GALL Report*s model AMP and NextEra*s AMP.63 In short, we find that the Board erred in finding that this basis supports the admission of Contention 1.

Next, Friends/NEC argue that the Application fails to provide measures to detect cable degradation prior to failure, particularly techniques for measuring and trending the condition of cable insulation.64 NextEra asserts on appeal that, on this point, Friends/NEC fail to address 60 NextEra Appeal I at 8 (citing Application Supplement, Encl. 2 at 2, 5). The revision in the supplement did, however, increase testing frequency.

61 Friends/NEC Petition at 14. See also Blanch Declaration at 9-11. In LBP-11-2, the Board described this basis (slip op. at 28) but did not discuss it. NextEra correctly points out that the Board mischaracterized this basis in its decision. NextEra Appeal I at 7. Compare LBP-11-2, 73 NRC at __ (slip op. at 27-28) (stating that Friends/NEC assert that the AMP for non-environmentally qualified inaccessible cables and wiring, among other things, does not *identify testing methods that would adequately assure that submerged or previously submerged cables will perform their functions for the duration of a postulated accident*).

62 NextEra Appeal I at 8; NextEra Answer to Friends/NEC Petition at 28.

63 See text associated with nn. 57-60, supra.

64 Friends/NEC Petition at 16-17 (quoting NRC Generic Letter (GL) 2007-01, *Inaccessible or Underground Power Cable Failures that Disable Accident Mitigation Systems or Cause Plant (continued . . . )

Case: 12-1561 Document: 00116418893 Page: 89 Date Filed: 08/16/2012 Entry ID: 5666489 Page 14 of 134 the relevant AMP in the Application.65 We agree. The Application*s relevant AMP provides the detection measures that Friends/NEC claim are missing.66 Friends/NEC have an *ironclad obligation* to review the Application thoroughly and to base their challenges on its contents.67 Friends/NEC did not satisfy this obligation here.

It bears mention that Friends/NEC take this basis from the NRC*s Generic Letter 2007-01.68 The generic letter informed licensees that inaccessible or underground cables susceptible to moisture-induced failures, particularly prior to the end of their qualified lives, could result in certain equipment failures. Such failures could either disable accident mitigation systems in operating power reactors or cause plant transients in those reactors. The GL states that licensees can assess the condition of cable insulation *with reasonable confidence* using one or more of several testing techniques: *partial discharge testing, time domain reflectometry, dissipation factor testing, and very low frequency AC testing.*69 The Board appears to cite GL 2007-01 as support to litigate this issue in license renewal.70 But GL 2007-01 provides no support for Friends/NEC*s third basis. The GL sought information from operating license holders regarding the history of underground cable failures Transients* (Feb. 7, 2007) (GL 2007-01) (ML070360665)). In LBP-11-2, the Board described this basis (73 NRC at __ (slip op. at 28)) but did not discuss it.

65 NextEra Appeal I at 8 (citing both the original and revised AMP for non-environmentally-qualified inaccessible electrical cables).

66 Basis 3 also appears to be a variant of Bases 1 and 2. If so, it fails on the same grounds (discussed supra).

67 See, e.g., Shaw Areva MOX Services, LLC (Mixed Oxide Fuel Fabrication Facility), CLI-09-2, 69 NRC 55, 65 n.47 (2009) (referring to intervenors* *ironclad obligation to . . . diligently search publicly available NRC or Applicant documents for information relevant to their [c]ontention*

(internal quotation marks and citation omitted)).

68 Petition at 16-17.

69 GL 2007-01 at 4.

70 See LBP-11-2, 73 NRC at __ (slip op. at 28 n.149).

Case: 12-1561 Document: 00116418893 Page: 90 Date Filed: 08/16/2012 Entry ID: 5666489 Page 15 of 134 for cables within the scope of the maintenance rule, as well as information on inspection, testing and monitoring programs to detect degradation in such cables.71 The GL is not focused on license renewal and does not address aging management. It neither requests additional AMPs for cables nor recommends improvements to existing cable AMPs.72 For these reasons, the Board erred in finding this basis to provide a justification for admitting Contention 1.

Friends/NEC next argue that the Application fails to identify the location and extent of Seabrook*s non-environmentally-qualified inaccessible cables.73 In particular, Mr. Blanch challenged NextEra*s explanation of its decision not to include *boundary drawings* in its Application, specifically taking issue with NextEra*s conclusion in the Application that such drawings were unnecessary because *commodity grouping was used in the scoping process.*74 According to Mr. Blanch, *[c]haracterization of cables by commodity grouping is an acceptable practice only if the location where each cable type is used is also identified.*75 Mr. Blanch, however, offered no support for this assertion.

71 GL 2007-01 at 4.

72 See id. at 4-5 (requesting information from current operating licensees regarding the history of inaccessible or underground cable failures within the scope of the Maintenance Rule, and a description of inspection, testing, and monitoring programs for inaccessible or underground cables).

73 Friends/NEC Petition at 12. In LBP-11-2, the Board described this basis but did not discuss it. See 73 NRC at __ (slip op. at 28).

74 Blanch Declaration at 13 (quoting Application, Vol. I, § 2.1.2, at 2.1-7). A *boundary drawing*

depicts mechanical piping and instrumentation diagrams. The Standard Review Plan for license renewal provides that a license renewal applicant may group like structures and components into *commodity groups.* Standard Review Plan at 2.1-14 to 2.1-15, Table 2.1-2, *Specific Staff Guidance on Scoping.* The basis for such a grouping *can be determined by such characteristics as similar function, similar design, similar materials of construction, similar aging management practices, or similar environments.* Id. at 2.1-14, Table 2.1-2.

75 Blanch Declaration at 13 (emphasis added).

Case: 12-1561 Document: 00116418893 Page: 91 Date Filed: 08/16/2012 Entry ID: 5666489 Page 16 of 134 As NextEra argues on appeal,76 the approach taken in the Application is consistent with the GALL Report, which provides that *[e]lectrical cables and their required terminations (i.e.,

connections) are typically reviewed as a single commodity.*77 Likewise, the Standard Review Plan provides that an applicant may group like structures into commodity groups, as long as the applicant provides the basis for the groups.78 In its Application, NextEra offered the following explanation for its use of commodity grouping. As a general rule, NextEra focused upon the Seabrook plant*s systems and structures when determining which ones meet *the requirements for inclusion in the scope of license renewal.*79 Once NextEra identified the relevant systems and structures (along with their intended functions), it identified the particular components that fell within the scope of license renewal.80 However, it concluded that some components were more effectively evaluated *by component type, rather than by system or structure.*81 In those instances, NextEra instead employed an alternative approach!commodity grouping!to evaluate *[c]omponents constructed from similar materials, exposed to similar environments, 76 See NextEra Appeal I at 9.

77 GALL Report, Vol. 2, § VI.A, *Equipment not Subject to 10 CFR 50.49 Environmental Qualification Requirements,* at VI A-1 (cited in NextEra Appeal I at 9). The identical language also appears in GALL Report Rev. 2, § VI.A, at VI A-1.

78 Standard Review Plan at 2.1-14, Table 2.1-2, *Specific Staff Guidance on Scoping.* Although the GALL Report and the Standard Review Plan are guidance documents, and therefore not binding, they do carry special weight. See Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-05-15, 61 NRC 365, 375 n.26 (2005) (*We recognize, of course, that guidance documents do not have the force and effect of law. Nonetheless, guidance is at least implicitly endorsed by the Commission and therefore is entitled to correspondingly special weight*)

(citations and internal quotation marks omitted); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-22, 54 NRC 255, 264 (2001) (*Where the NRC develops a guidance document to assist in compliance with applicable regulations, it is entitled to special weight*), pet. for review held in abeyance, Ohngo Gaudadeh Devia v. NRC, 492 F.3d 421 (D.C. Cir. 2007).

79 Application, Vol. I, § 2.1.2, at 2.1-4.

80 Id.

81 Id.

Case: 12-1561 Document: 00116418893 Page: 92 Date Filed: 08/16/2012 Entry ID: 5666489 Page 17 of 134 and which perform similar intended functions.*82 Each commodity group was evaluated *as if it were a separate individual system,* with the group*s components *not associated with a specific system or structure during the component's evaluation* but rather *with their assigned commodity group.*83 NextEra evaluated all electrical components, including cables, using the

• commodity grouping* approach.84 Neither Friends/NEC nor Mr. Blanch challenged this explanation, or explained why commodity grouping for cables in the Seabrook license renewal application was inappropriate, or offered a reason or other unmet need that would require us to mandate inclusion of the exact location of each cable in the Seabrook license renewal application. Consequently, we find that this basis does not justify the admission of Contention 1.

Finally, Friends/NEC make a general claim (or, more precisely, a request for relief) that the NRC should require NextEra to *preclude* moisture from affecting non-environmentally-qualified inaccessible cables.85 NextEra argues that this requirement appears nowhere in our regulations and finds no support in the Blanch Declaration.86 We agree. At bottom, Friends/NEC ask the agency to impose a burden greater than the requirement imposed by section 54.21(a)(3) to *adequately manage[]* aging effects.87 Friends/NEC would have us 82 Id. See also id., Vol. I, § 2.5, at 2.5-1 (*similar function, similar design or similar materials of construction*).

83 Id., Vol. I, § 2.1.2, at 2.1-4 to 2.1-5. See also id., Vol. 1, § 2.5, at 2.5-1.

84 Id., Vol. I, § 2.1.2, at 2.1-5, 2.1-22. See also id. at 2.1-22 to 2.1-23 (describing the sequence of screening steps used to identify electrical commodity groups requiring an aging management review), § 2.5.1, at 2.5-2 (listing *Electrical Cables and Connections* as a commodity group).

85 Friends/NEC Petition at 20. See also id. at 18-19 (include additional preventive measures in the AMP). In LBP-11-2, the Board described this basis (73 NRC at __ (slip op. at 28)) but did not discuss it.

86 NextEra Appeal I at 9. Mr. Blanch does not assert a need to preclude wetting. See Blanch Declaration at 7-11.

87 10 C.F.R. § 54.21(a)(3) (emphasis added).

Case: 12-1561 Document: 00116418893 Page: 93 Date Filed: 08/16/2012 Entry ID: 5666489 Page 18 of 134 elevate that burden to the point where NextEra would be required to *preclude,* not just

• manage,* such effects. This proposition contravenes our longstanding practice of rejecting, as a collateral attack, any contention calling for requirements in excess of those imposed by our regulations.88 In sum, we have reviewed the administrative record, including the Board*s brief ruling on Contention 1, and find no basis sufficient to support the Board*s admission of this contention.

We recently held that a license renewal applicant who commits to implement an AMP that is consistent with the corresponding AMP in the GALL Report has demonstrated reasonable assurance under 10 C.F.R. § 54.29(a) that the aging effects will be adequately managed during the period of extended operation.89 While referencing an AMP in the GALL Report does not insulate that program from challenge in litigation, as discussed above, Friends/NEC have not submitted an adequately supported challenge here. We therefore conclude that the Board erred, and reverse the Board*s ruling admitting Contention 1.

2. Friends/NEC Contention 2 The [license renewal application] for Seabrook violates 10 C.F.R. §§ 54.21(a) and 54.29 because it fails to include an aging management plan for each electrical transformer whose proper function is important for plant safety.90 88 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-4, 59 NRC 31, 39 (2004) (rejecting a contention that would exceed regulatory requirements), pet. for review held in abeyance, Ohngo Gaudadeh Devia v. NRC, 492 F.3d 421 (D.C. Cir. 2007); GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 206 (2000)

(rejecting an *attempt[] to impose . . . a requirement more stringent that the one imposed by the regulations*); Curators of the University of Missouri, CLI-95-1, 41 NRC 71, 170 (1995)

(*Intervenors are, in essence, contending that those regulatory provisions are themselves insufficient to protect the public health and safety. This assertion constitutes an improper collateral attack upon our regulations.*) (footnote omitted). See generally 10 C.F.R. § 2.335(a).

89 Vermont Yankee, CLI-10-17, 72 NRC at 36; Oyster Creek, CLI-08-23, 68 NRC at 467-68.

90 Friends/NEC Petition at 20 (capitalization omitted).

Case: 12-1561 Document: 00116418893 Page: 94 Date Filed: 08/16/2012 Entry ID: 5666489 Page 19 of 134

a. Background Simply stated, Friends/NEC argue in Contention 2 that an electrical transformer is a component that should be classified as !passive" and !long-lived," and therefore should be subject to an aging management review. The particular focus of the contention is on whether electrical transformers are appropriately characterized as having !passive" functions.

In the Statements of Consideration for the 1995 License Renewal Rule, the Commission determined that an aging management review is required for structures and components that fall within the scope of the rule and that perform !passive" intended functions. Our license renewal review focuses on so-called !passive" structures and components because structures and components performing !passive" functions generally do not have performance or condition characteristics that are as readily observable as those performing !active" functions.91 Put another way, structures and components with !active" functions generally can be directly verified. As such, the existing regulatory process, existing licensee programs and activities, and the maintenance rule provide the basis for generically excluding from an aging management review those structures and components that perform !active" functions.92 For this reason, the Commission generically excluded from license renewal aging management review structures and components associated only with !active" functions.93 As reflected in the statements of consideration for the 1995 License Renewal Rule, ![f]unctional degradation resulting from the 91 Section 54.21(a)(1)(i) provides an illustrative list of structures and components that are subject to an aging management review, because they perform an intended function (as defined in 10 C.F.R. § 54.4) without moving parts or without a change in configuration or properties.

Electrical transformers are not among the structures and components listed.

92 See 1995 License Renewal Rule, 60 Fed. Reg. at 22,468-73 and, particularly, 22,471

(!Performance and condition monitoring for systems, structures and components typically involves functional verification, either directly or indirectly. Direct verification is practical for active functions such as pump flow, valve stroke time, or relay actuation where the parameter of concern (required function), including any design margins, can be directly measured or observed.").

93 See id. at 22,472.

Case: 12-1561 Document: 00116418893 Page: 95 Date Filed: 08/16/2012 Entry ID: 5666489 Page 20 of 134 effects of aging on active functions is more readily determinable, and existing programs and requirements are expected to directly detect the effects of aging.*94 The rule devoted significant discussion to defining a "passive* component. The Commission observed, as relevant here:

[P]assive structures and components for which aging degradation is not readily monitored are those that perform an intended function without moving parts or without a change in configuration or properties.95 The Commission went on to observe that the phrase "*a change in configuration or properties*

should be interpreted to include a *change in state.**96 Following implementation of the License Renewal Rule, the nuclear industry developed guidelines for use by applicants in developing license renewal applications that would comply with the rule.97 During the initial development of those guidelines, questions arose as to whether certain electrical components were, in fact, subject to an aging management review under the rule. Transformers were among the components discussed. The Staff in 1997 provided additional guidance, which addressed specifically whether electrical transformers (among other electrical components) are subject to an aging management review.

94 Id. (emphasis added).

95 Id. at 22,477 (emphases added). The Statements of Consideration explain that "a pump or valve has moving parts, an electrical relay can change its configuration, and a battery changes its electrolyte properties when discharging. Therefore, the performance or condition of these components is readily monitored and would not be captured by this description.* Id.

96 Id. (offering the example of a transistor).

97 See generally NEI 95-10 (Rev. 0 Mar. 1996), "Industry Guideline for Implementing the Requirements of 10 CFR Part 54 % The License Renewal Rule* (ML031600708). The Staff reviewed this guidance (which has since been updated several times) and has indicated that licensees may use a later version of NEI 95-10 (currently Revision 6) to implement the License Renewal Rule. See Regulatory Guide 1.188, "Standard Format and Content for Applications to Renew Nuclear Power Plant Operating Licenses* (Rev. 1 Sept. 2005), at 4 (Regulatory Guide 1.188) (ML051920430).

Case: 12-1561 Document: 00116418893 Page: 96 Date Filed: 08/16/2012 Entry ID: 5666489 Page 21 of 134 In its guidance, the Staff observed that 10 C.F.R. § 54.21(a)(1)(i) expressly excludes a variety of electrical and instrumentation and control components from an aging management review for license renewal, and stated that the exclusion *is not limited to* only these components.98 The Staff went on to state that it had considered aging management review requirements for transformers (among other components), and concluded that transformers are not subject to an aging management review. The Staff reasoned that transformers performed their intended function through a *change in state,* by *stepping down voltage from a higher to a lower value, stepping up voltage to a higher value, or providing isolation to a load.*99 The Staff also observed that degradation of a transformer*s ability to perform its intended function would be *readily monitorable by a change in the electrical performance of the transformer and the associated circuits.*100 Ultimately, the Staff recommended that NEI revise its guidance to indicate that transformers (among other components) do not require an aging management review.101 NEI*s current guidance reflects the Staff position on transformers.102 Friends/NEC argue in Contention 2 that NextEra*s Application violates 10 C.F.R.

§§ 54.21(a) and 54.29 because it fails to include an aging management program for each 98 Letter from C.I. Grimes, Office of Nuclear Reactor Regulation, to D.J. Walters, NEI,

• Determination of Aging Management Review for Electrical Components* (Sept. 19, 1997)

(Grimes Letter), Attachment at 1. See generally 10 C.F.R. § 54.21(a)(1)(i). The Grimes Letter is included as App. C, Ref. 2, to NEI 95-10 (Rev. 6, June 2005), *Industry Guideline for Implementing the Requirements of 10 CFR Part 54 ! The License Renewal Rule* (NEI 95-10 (Rev. 6)) (ML051860406).

99 Grimes Letter, Attachment at 2. The Staff went on to state: *Transformers perform their intended function through a change in state similar to switchgear, power supplies, battery chargers, and power inverters, which have been excluded in [10 C.F.R.] § 54.21(a)(1)(i) from an aging management review.* Id.

100 Id. The Staff also cited other indications of transformer performance, including observing trending of certain electrical parameters, and advanced monitoring methods. Id.

101 Id. at 4.

102 The Grimes Letter is incorporated into NEI 95-10 (Rev. 6) in App. C, Ref. 2.

Case: 12-1561 Document: 00116418893 Page: 97 Date Filed: 08/16/2012 Entry ID: 5666489 Page 22 of 134 electrical transformer whose *proper function* is important for plant safety.103 The crux of their argument is that electrical transformers perform *passive* functions, and therefore must be addressed in an AMP, but that NextEra*s Application contains no such AMP. In support, Friends/NEC offered the expert opinion of Paul Blanch. Mr. Blanch asserted, without more, that

• [t]ransformers function without moving parts or without a change in configuration or properties as defined in [10 C.F.R. § 54.21(a)].*104 The Blanch Declaration went on to raise general concerns associated with the failure to properly manage aging of electrical transformers.105 The Staff and NextEra responded before the Board that electrical transformers are

• active* and are therefore not subject to aging management review.106 They relied primarily upon the guidance discussed above, and also upon the NRC*s prior *issuance of other license renewals where transformers were treated as active components.*107 They also criticized Friends/NEC and the Blanch Declaration for referring to license renewal applications and supporting documents relevant only to other nuclear facilities,108 for presenting only conclusory 103 Friends/NEC Petition at 20-22. See also Tr. at 100-25.

104 Blanch Declaration at 11.

105 Id. at 11-13.

106 NextEra Answer to Friends/NEC Petition at 43-47; Staff Answer to Petitions at 26-30.

107 Tr. at 120 (Mr. Fernandez).

108 See, e.g., NextEra Answer to Friends/NEC Petition at 43 & n.32 (referring to Friends/NEC*s near-verbatim paraphrase and use of a contention from the Indian Point license renewal proceeding, despite the fact that the Seabrook Application lacks the language challenged in the Indian Point contention); Blanch Declaration at 4 (asserting that he has *reviewed Vermont Yankee*s License Renewal Application[,] . . . the subsequent submittals by Entergy to renew the operating licenses for Indian Point Unit 2 and Unit 3 . . . [and] the NRC*s Safety Evaluation Report dated May 2008 (NUREG-1907).*).

Case: 12-1561 Document: 00116418893 Page: 98 Date Filed: 08/16/2012 Entry ID: 5666489 Page 23 of 134 arguments,109 and for contradictorily stating, at different places, that electrical transformers are

• active* and *passive.*110 The Board*s discussion of Contention 2 is brief. The Board found significant that the Staff guidance upon which the Staff and NextEra relied is non-binding, and further that we had not addressed the issue whether electrical transformers are *active* or *passive* components.111 The Board therefore concluded that *[i]n the absence of a definitive designation for transformers, this contention requires fact-based determinations best left to further adjudicatory proceedings.*112 In admitting Contention 2, the Board rejected NextEra*s and the Staff*s arguments regarding the internal inconsistency of the Blanch Declaration. The Board concluded that the inconsistency stemmed merely from clerical errors, were clarified at oral argument, and therefore should not be strictly construed against Friends/NEC.113

b. Discussion NextEra argues that Friends/NEC*s contention is too thinly supported to merit admission.114 We agree. Longstanding Staff guidance directly addresses the classification of electrical transformers for the purposes of license renewal, and has found them to be *active*

109 NextEra Appeal I at 14; NextEra Answer to Friends/NEC Petition at 46-47; Staff Answer to Petitions at 30-35.

110 NextEra Appeal I at 13; NextEra Answer to Friends/NEC Petition at 46; Staff Answer to Petitions at 25-26, 31. See Blanch Declaration at 12 (compare ¶ 35 with ¶ 36); Friends/NEC Petition at 22 (compare ¶ 8 with ¶ 9).

111 LBP-11-2, 73 NRC at __ (slip op. at 34).

112 Id.

113 Id. at __ (slip op. at 34-35). On this point, we agree with the Board. In considering the matter on appeal, we construed the petition and the Blanch Declaration in favor of Friends/NEC.

But we caution all parties to take care in the preparation of documents for litigation, given that unclear drafting renders decision-making challenging not only for the Board, but for us.

114 NextEra Appeal I at 11-12.

Case: 12-1561 Document: 00116418893 Page: 99 Date Filed: 08/16/2012 Entry ID: 5666489 Page 24 of 134 components. At no time did Friends/NEC challenge the guidance documents in their filings before the Board. Instead, Friends/NEC rested on its initial cursory argument that *it is well known that many transformers . . . are passive devices in that they contain no moving parts and do not undergo a change of properties or state.*115 The Board is correct that the applicability of a guidance document may be challenged in an individual proceeding. However, we decline here to find Friends/NEC*s conclusory statements sufficient to support an admissible contention.

As discussed above, the Grimes Letter sets forth the Staff*s reasoning that transformers perform *active* functions:

Transformers perform their intended function through a change in state by stepping down voltage from a higher to a lower value, stepping up voltage to a higher value, or providing isolation to a load. Transformers perform their intended function through a change in state similar to switchgear, power supplies, battery chargers, and power inverters, which have been excluded in

§54.21(a)(1)(i) from an aging management review. Any degradation of the transformer's ability to perform its intended function is readily monitorable by a change in the electrical performance of the transformer and the associated circuits. Trending electrical parameters measured during transformer surveillance and maintenance such as Doble test results, and advanced monitoring methods such as infrared thermography, and electrical circuit characterization and diagnosis provide a direct indication of the performance of the transformer. Therefore, transformers are not subject to an aging management review.116 Friends/NEC and Mr. Blanch disregard the Staff guidance. As a result, Mr. Blanch*s conclusory statement that transformers are passive components is not adequate as a basis for the contention.117 In order to raise a litigable challenge to the categorization of electrical 115 Friends/NEC Petition at 22; Blanch Declaration at 12.

116 Grimes Letter, Attachment at 2. See also Standard Review Plan at 2.1-24, Table 2.1-5, item 104 (excluding transformers from the list of SSCs subject to an aging management review).

117 See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006) (*![A]n expert opinion that merely states a conclusion (e.g., the application is !deficient,* !inadequate,* or

!wrong*) without providing a reasoned basis or explanation for that conclusion is inadequate because it deprives the Board of the ability to make the necessary, reflective assessment of the opinion . . . .**) (quoting Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 181, recons. granted in part and denied in part on other grounds, LBP-98-10, 47 NRC 288, aff*d on other grounds, CLI-98-13, 48 NRC 26 (1998)).

Case: 12-1561 Document: 00116418893 Page: 100 Date Filed: 08/16/2012 Entry ID: 5666489 Page 25 of 134 transformers, Friends/NEC would have to provide sufficient factual information or expert opinion to merit further consideration of the matter. Here, in the absence of a supported challenge to the guidance, we do not find a genuine dispute with the applicant meriting litigation in this proceeding.

Instead, in support of this contention, Friends/NEC assert that the Staff *has determined that the plant system portion of the offsite power system that is used to connect the plant to the offsite power source should be included within the scope of* section 54.21, and that *[t]his path typically includes switchyard circuit breakers that connect to the offsite system power transformers (startup transformers), the transformers themselves . . . .*118 Based on these two premises, Friends/NEC argue that *[e]nsuring that the appropriate offsite power system long-lived passive structures and components that are part of this circuit path are subject to an [aging management review] will assure that the bases underlying the [station blackout] requirements are maintained over the period of extended license.*119 The upshot of this argument appears to be that, because transformers are included in a portion of a plant system that is within the scope of license renewal, they are themselves subject to an aging management review.

However, considered in context, the Staff*s statement upon which Friends/NEC rely does not support the assumption that transformers perform *passive* functions. The statement referenced by Friends/NEC appears to be a direct quotation from a Draft Request for Additional Information (Draft RAI) attached to a summary of a conference call regarding the Indian Point license renewal application.120 The Draft RAI, in turn, quotes Staff guidance identifying 118 Blanch Declaration at 12 (emphasis omitted). Accord Friends/NEC Petition at 22 (emphasis omitted).

119 Blanch Declaration at 13. Accord Friends/NEC Petition at 22.

120 See Staff Answer to Petitions at 31-32 & n.35 (citing Summary of Telephone Conference Call Held on September 21, 2007, between the U.S. Nuclear Regulatory Commission and Entergy Nuclear Operations, Inc., concerning Draft Requests for Additional Information Pertaining to the (continued . . . )

Case: 12-1561 Document: 00116418893 Page: 101 Date Filed: 08/16/2012 Entry ID: 5666489 Page 26 of 134 equipment relied on to meet the requirements of the station blackout rule, as it affects scoping for license renewal.121 The guidance states, in relevant part:

For purposes of the license renewal rule, the staff has determined that the plant system portion of the offsite power system that is used to connect the plant to the offsite power source should be included within the scope of the rule. This path typically includes switchyard circuit breakers that connect to the offsite system power transformers (startup transformers), the transformers themselves . . . .

Ensuring that the appropriate offsite power system long-lived passive structures and components that are part of this circuit path are subject to an [aging management review] will assure that the bases underlying the [station blackout]

requirements are maintained over the period of extended license.122 Read in its proper context, we discern no support in the guidance for the argument that a transformer is a !passive component" and should be subject to an aging management review.

The guidance simply delineates the portion of the offsite power system that is !inside the plant" for the purpose of identifying structures and components that are subject to an aging management review to confirm compliance with the station blackout rule for the period of extended operation. The Staff concluded that the portion of the offsite power system that is used to connect the plant to the offsite power source is included within the scope of the license renewal rule. That system includes several components, including transformers. But the guidance does not distinguish#or discuss at all#which of those components perform active or passive functions (or some combination thereof). For this reason, the document does not provide support for Friends/NEC*s Contention 2.

Indian Point Nuclear Generating Unit Nos. 2 & 3, License Renewal Application (Oct. 16, 2007),

at 10 (ML072770605)).

121 See generally 10 C.F.R. § 54.4(a)(3) (citing 10 C.F.R. § 50.63 (station blackout rule)).

122 Draft RAI at 10 (emphases added) (quoting !NRC Staff Position on the License Renewal Rule (10 CFR 54.4) as it relates to The Station Blackout Rule (10 CFR 50.63)," at 2, attached to letter dated April 1, 2002, !Staff Guidance on Scoping of Equipment Relied on to Meet the Requirements of the Station Blackout (SBO) Rule (10 CFR 50.63) for License Renewal (10 CFR 54.4(a)(3))" (ML020920464)).

Case: 12-1561 Document: 00116418893 Page: 102 Date Filed: 08/16/2012 Entry ID: 5666489 Page 27 of 134 In sum, the Board erred in admitting Contention 2, as it lacks the support required by 10 C.F.R. § 2.309(f)(1)(v).

3. Friends/NEC Contention 4 The Environmental Report is inadequate because it underestimates the true cost of a severe accident at Seabrook Station in violation of 10 C.F.R.

§ 51.53(c)(3)(ii)(L) and further analysis is called for.123

a. Background Friends/NEC Contention 4 challenges NextEra*s severe accident mitigation alternatives (SAMA) analysis for Seabrook. Mitigation alternatives, or *SAMAs,* refer to potential safety enhancements intended to reduce the risk of severe accidents. The NRC*s current Generic Environmental Impact Statement for license renewal provides a generic and bounding analysis of potential severe accident impacts, encompassing all existing plants.124 The SAMA analysis is a site-specific analysis focusing on potential additional mitigation measures that could be implemented to further reduce severe accident risk (probability or consequences). The analysis by practice has been a cost-benefit analysis, examining whether particular hardware or procedural changes may be cost-beneficial to implement, given the degree of risk reduction that reasonably could be expected from the change.

Under the NRC*s environmental regulations for license renewal, applicants must provide a SAMA analysis if the Staff has not yet previously considered severe accident mitigation alternatives for the applicant*s plant in an environmental impact statement (EIS) or related supplement, or in an environmental assessment.125 The SAMA analysis is an environmental mitigation analysis under NEPA, and is not part of the license renewal safety review. Whether additional accident mitigation measures may be warranted to assure public health and safety is 123 Friends/NEC Petition at 33-34.

124 See License Renewal GEIS, Vol. 1 at 5-12 to 5-106, 5-113, 5-115.

125 See 10 C.F.R. § 51.53(c)(3)(ii)(L).

Case: 12-1561 Document: 00116418893 Page: 103 Date Filed: 08/16/2012 Entry ID: 5666489 Page 28 of 134 addressed through the NRC*s ongoing regulatory oversight of existing plants.126 In regard to SAMAs, we have stressed that *[u]nless it looks genuinely plausible that inclusion of an additional factor or use of other assumptions and models may change the cost-benefit conclusions for the SAMA candidates evaluated, no purpose would be served to further refine the SAMA analysis.*127 SAMA analysis involves extensive computer modeling, and therefore may involve issues not readily understood by those not familiar with the computer codes and methodologies that are used. We recognize that SAMA analysis issues can present difficult judgment calls at the contention admissibility stage, and we are reluctant as a general matter to second-guess Board rulings on contention admissibility.128 Nonetheless, as NextEra highlights, where arguably large portions of contentions have been *cut and pasted* from one or more other NRC proceedings*

which Friends/NEC*s representative concedes was done for their intervention*it is especially important to *ensure the existence of a genuine material dispute with [the] particular application*

at issue.129 Given the quantitative nature of the SAMA analysis, where the analysis rests largely on selected inputs, it may always be possible to conceive of alternative and more conservative inputs, whose use in the analysis could result in greater estimated accident consequences. But the proper question is not whether there are plausible alternative choices for use in the analysis, but whether the analysis that was done is reasonable under NEPA. We have long held that 126 See, e.g., *Procedural and Submittal Guidance for the Individual Plant Examination of External Events (IPEEE) for Severe Accident Vulnerabilities,* Final Report, NUREG-1407 (June 1991) (ML063550238).

127 Pilgrim, CLI-10-11, 71 NRC at 317.

128 AmerGen Energy Corp., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 276-77 (2009).

129 NextEra Appeal I at 4 & n.6, 20 (emphasis in original). See also Tr. at 68; Friends/NEC Answer to NextEra Appeal at 4.

Case: 12-1561 Document: 00116418893 Page: 104 Date Filed: 08/16/2012 Entry ID: 5666489 Page 29 of 134 contentions admitted for litigation must point to a deficiency in the application, and not merely

• suggestions* of other ways an analysis could have been done, or other details that could have been included.130 SAMA adjudications would prove endless if hearings were triggered merely by suggested alternative inputs and methodologies that conceivably could alter the cost-benefit conclusions. 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). Otherwise, there is no genuine material dispute with the SAMA analysis that was done, only a proposal for an alternate NEPA analysis that may be no more accurate or meaningful. We turn now to the SAMA contention.

Contention 4 challenged the SAMA analysis based on six claimed deficiencies (labeled alphabetically *a* through *f*). The contention claims that the SAMA analysis *improperly minimized* the potential costs of a severe accident, and therefore made additional risk reduction measures *appear[] not to be justified.*131 The Board addressed the admissibility of each of the contention *subparts* separately, as essentially distinct contentions.132 The Board admitted Friends/NEC Contentions 4B, 4D, and 4E, as limited by LBP-11-2.133 NextEra appeals admission of the three SAMA contentions. We address each in turn.

b. Friends/NEC*s Contention 4B " The SAMA analysis minimizes the potential amount of radioactive release in a severe accident134 In LBP-11-2, the Board admitted one portion of Friends/NEC 4B. The admitted issue challenges the use in the Seabrook SAMA analysis of source terms obtained with the Modular 130 See USEC, CLI-06-10, 63 NRC at 477.

131 Friends/NEC Petition at 37.

132 LBP-11-2, 73 NRC at __ (slip op. at 38-39).

133 Id. at __ (slip op. at 48, 55-56, 63).

134 Friends/NEC Petition at 41.

Case: 12-1561 Document: 00116418893 Page: 105 Date Filed: 08/16/2012 Entry ID: 5666489 Page 30 of 134 Accident Analysis Progression (MAAP) computer code. Specifically, Friends/NEC argue that the MAAP code *has not been validated by the NRC,* and that the radionuclide release fractions generated by MAAP *are consistently smaller for key radionuclides than the release fractions specified in NUREG-1465 and its recent revision for high-burnup fuel.*135 They go on to claim that *the source term used [in the SAMA analysis] results in lower [accident] consequences than would be obtained from NUREG-1465 release fractions and release durations.*136 Friends/NEC further argue that it *has been previously observed* that *MAAP generates lower release fractions than those derived and used by NRC in studies such as NUREG-1150.*137 They argue that the use of source terms generated by MAAP *appears to lead to anomalously low consequences when compared to source terms generated by NRC staff.*138 In support, Friends/NEC cite to excerpts from two documents. One is a 1987 draft of the NUREG-1150 severe accident risk study that, in examining accident risk at the Zion Nuclear Station found that *the MAAP estimates for environmental release fractions were significantly smaller* than those obtained with *the Source Term Code Package* computer code.139 The other is a 2002 Brookhaven National Laboratory (BNL) report examining ice condenser and Mark III containment plants, which compared the probabilistic risk assessment (PRA) results for 135 Id. at 44. See *Accident Source Terms for Light-Water Nuclear Power Plants,* Final Report, NUREG-1465 (Feb. 1995) (ML041040063).

136 Friends/NEC Petition at 44.

137 Id. NUREG-1150 assessed the risks from severe accidents at five commercial nuclear power plants of different design. See *Severe Accident Risks: An Assessment for Five U.S.

Nuclear Plants,* NUREG-1150 (Dec. 1990) (ML040140729). Seabrook was not one of the five plants specifically evaluated in the report.

138 Friends/NEC Petition at 45.

139

• Reactor Risk Reference Document,* Main Report, Draft for Comment, NUREG-1150, Vol. 1 (Feb. 1987), at 5-14 (ML063540601) (cited at Friends/NEC Petition at n.16). The Source Term Code Package (STCP) and MELCOR computer codes were used in the NUREG-1150 reactor accident study.

Case: 12-1561 Document: 00116418893 Page: 106 Date Filed: 08/16/2012 Entry ID: 5666489 Page 31 of 134 the Catawba plant (obtained using the MAAP code) with a *typical NUREG-1150 release* for the Sequoyah plant (obtained using the Source Term Code Package and MELCOR).140 The BNL study noted that the *NUREG-1150 release fractions for the important radionuclides are about a factor of 4 higher than the ones* in the Catawba PRA, and that the *differences in the release fractions . . . are primarily attributable to the use of the different codes in the two analyses.*141 In LBP-11-2, the Board admitted Friends/NEC Contention 4B *to the limited extent that it relates to the selection of the source term release fractions.*142 On appeal, NextEra argues that the contention does not provide sufficient information to demonstrate the existence of a genuine dispute with the application. NextEra argues that the source term claims are taken from an expert report filed in the Indian Point proceeding, specifically, an accident consequence analysis that Dr. Edwin Lyman prepared, which substituted NUREG-1465 source terms for the MAAP-generated source terms the applicant used in the SAMA analysis for Indian Point Unit 2.143 NextEra further stresses that the contention *only alleges that other models may produce a larger source term,* and that there is no expert support provided to indicate that other source terms would be more accurate or more reasonable for the SAMA analysis.144 In our view, the support for the contention is weak. To the extent that the contention suggests that NextEra simply should replace the Seabrook SAMA analysis release fractions 140 John R. Lehner et al., Benefit Cost Analysis of Enhancing Combustible Gas Control Availability at Ice Condenser and Mark III Containment Plants, Final Letter Report (Dec. 2002) at 17 (referenced at Friends/NEC Petition at 44-45).

141 Id.

142 LBP-11-2, 73 NRC at __ (slip op. at 44).

143 NextEra Appeal I at 19-20 (citing to Edwin Lyman, A Critique of the Radiological Consequence Assessment Conducted in Support of the Indian Point Severe Accident Mitigation Alternatives Analysis (Nov. 2007), attached to Riverkeeper, Inc.*s Request for Hearing and Petition to Intervene in Indian Point License Renewal Proceeding (Nov. 30, 2007)

(ML073410093)).

144 Id. at 20.

Case: 12-1561 Document: 00116418893 Page: 107 Date Filed: 08/16/2012 Entry ID: 5666489 Page 32 of 134 with generic release fractions derived from NUREG-1465, Friends/NEC identify no factual or expert support. As NextEra describes, the portion of the contention discussing NUREG-1465 appears to be *copied almost verbatim* from a site-specific consequence analysis Dr. Lyman prepared for the Indian Point proceeding.145 It is not apparent to us that the site-specific accident *consequence* conclusions of Dr. Lyman!s report can, without more, simply be lifted and directly applied to the site-specific Seabrook SAMA analysis.

Essentially, the challenge to the MAAP-generated release fractions rests on a thin reed#the excerpts from the draft NUREG-1150 report and the BNL report. We do not read these excerpts to necessarily suggest that MAAP-generated source terms are inaccurate, only that under the specific comparisons noted the MAAP-generated source terms were smaller than source terms obtained from the NUREG-1150 report. Further, it is not clear that these comparisons (one dating back 24 years) involved the same version of the MAAP code used in the Seabrook SAMA analysis. Contention 4B does not compare NUREG-1150 values to the Seabrook SAMA analysis release fractions, or otherwise discuss or even reference the Seabrook release fractions.146 And while the contention suggests that generic source term values obtained from NUREG-1150 would be larger, it does not suggest why the generic values would be more accurate for a plant-specific SAMA analysis than the MAAP-generated plant-specific release fractions.

Yet the Board found the support from the two documents sufficient, concluding that the

• alleged fact that the source terms provided by MAAP are lower than those produced by the methodology used in NRC studies (resulting in consequence values that are lower by a factor of 3 and 4 according to the [BNL Report]) raises sufficient question concerning whether the 145 Id. at 19.

146 We additionally note that MAAP-generated release fractions and durations apparently were not used for all of the ten accident categories analyzed in the Seabrook SAMA analysis. See id., Att. F at F-59, F-63.

Case: 12-1561 Document: 00116418893 Page: 108 Date Filed: 08/16/2012 Entry ID: 5666489 Page 33 of 134 calculated consequences and resulting cost-benefit analyses at Seabrook are adequate for rendering decisions on potential mitigation alternatives.*147 Although we consider, as we said previously, that support for this contention is weak, because the Board is the appropriate arbiter of such fact-specific questions of contention admissibility, we will not second-guess the Board*s evaluation of factual support for the contention, absent an error of law or abuse of discretion.148 Here, we additionally note that NextEra never addressed specifically the relevance of the cited comparisons to the Seabrook SAMA analysis. Because we cannot conclude that the Board*s assessment of the documents amounts to legal error, we defer to the Board*s judgment in admitting Contention 4B.149

c. Friends/NEC 4D

• Use of an inappropriate air dispersion model, the straight-line Gaussian plume, and meteorological data inputs that did not accurately predict the geographic dispersion and deposition and radionuclides at Seabrook*s coastal locations.150 The straight-line Gaussian plume model is the atmospheric dispersion model in the MACCS2 computer code (a version of the MELCOR Accident Consequence Code System code), which was used for the Seabrook SAMA analysis. Friends/NEC argue that the straight-line Gaussian plume model is inappropriate for a coastal location because it *ignores the presence of sea breeze circulations which dramatically alter air flow patterns.*151 Friends/NEC further argue that the straight-line Gaussian plume model does not properly account for the impact of terrain effects, and that the terrain at the Seabrook site varies from *hilly to 147 LBP-11-2, 73 NRC at __ (slip op. at 48).

148 See, e.g., AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 121 (2006).

149 We note, however, that in the Board*s assessment, we expect a thorough and thoughtful review of all facts offered in support of a contention, particularly where, as here, the contention and/or factual support was taken directly from a case involving a different facility.

150 Friends/NEC Petition at 47.

151 Id. at 49-50.

Case: 12-1561 Document: 00116418893 Page: 109 Date Filed: 08/16/2012 Entry ID: 5666489 Page 34 of 134 mountainous except along the coast.*152 They stress that there are other more *advanced

[atmospheric dispersion] models* that can be applied in *complex terrain settings such as in mountainous or coastal areas.*153 Friends/NEC claim that use of the straight-line Gaussian plume model in the Seabrook SAMA analysis *underestimated the area likely to be affected in a severe accident and the dose likely to be received* in the affected area.154 In LBP-11-2, the Board admitted Friends/NEC 4D, concluding that *Friends/NEC sufficiently support their allegation that use of the [straight-line Gaussian plume] model might significantly distort the Seabrook SAMA analysis.*155 The Board found that Friends/NEC had provided *sufficient information to indicate that it is more than plausible that the use of an alternative model has the potential to change the cost-benefit conclusions for the SAMA candidates evaluated by NextEra.*156 On appeal, NextEra argues that Friends/NEC did not provide any expert opinion or document indicating that *use of an alternate dispersion model would predict greater offsite consequences.*157 NextEra goes on to assert that Friends/NEC and *by extension, the Board,*

merely *assume that certain modeling features in the ATMOS[158] model (such as the straight-line Gaussian plume, lack of modeling of terrain effects, and the use of a single year of meteorological data) ultimately might be significant.*159 NextEra states that *[c]ertainly the use 152 Id. at 50-51 (quoting Environmental Report), 53-54.

153 Id. at 59-60.

154 Id. at 47.

155 LBP-11-2, 73 NRC at __ (slip op. at 52).

156 Id.

157 NextEra Appeal I at 22 (emphasis added).

158 ATMOS is the module in the MACCS2 computer code that performs the atmospheric dispersion modeling for the SAMA analysis.

159 NextEra Appeal I at 22.

Case: 12-1561 Document: 00116418893 Page: 110 Date Filed: 08/16/2012 Entry ID: 5666489 Page 35 of 134 of a different model might result in a prediction of greater offsite consequences,* but that Friends/NEC "provides no support to suggest that this is actually the case.*160 NextEra further stresses that the Friends/NEC claims fail to challenge or otherwise address the "extensive sensitivity analyses* included in the SAMA analysis, which address atmospheric modeling uncertainty.161 We agree that Friends/NEC did not provide specific expert or factual support for its claim that use of the straight-line Gaussian plume model "underestimates* radiological doses. Rather, Friends/NEC offered factual support questioning the precision of the model. The Board rejected Staff and licensee arguments going to the sufficiency of Friends/NEC*s plume modeling claims, finding these to be "reasonable counter arguments,* but "merits-based.*162 NextEra insists that its arguments before the Board were not arguments on the merits, but arguments on whether Friends/NEC met the "threshold* contention requirement of showing materiality.163 NextEra#s arguments are not without force. Although petitioners need not *rerun the Applicant*s own cost-benefit calculations*164 at the contention admissibility stage, they can 160 Id. (emphasis in original).

161 Id. at 22-23.

162 LBP-11-2, 73 NRC at __ (slip op. at 55).

163 NextEra Appeal I at 18. NextEra provides an example of a Friends/NEC argument that appears immaterial. While Friends/NEC challenges the use of a single year*s worth of meteorological data, the SAMA analysis indicates that in fact five years of data were reviewed, and the year with the most conservative data, resulting in the *maximum dose and cost risk*

was used in the analysis. See id. at 22 (citing Environmental Report). The Board did not specifically address this claim. Moreover, we note that one argument Friends/NEC provided appears to undercut its contention. Referencing (actually quoting verbatim, although quotation marks were not inserted) a 2004 MACCS2 code guidance document, Friends/NEC claim that because Gaussian models are *inherently flat-earth models,* there is *inherent conservatism (and simplicity) if the environs* involve grade variations, significant nearby buildings, or tall vegetation that is *not taken into account in the dispersion parameterization.* See Friends/NEC Petition at 59 (emphasis added) (citation omitted).

164 LBP-11-2, 73 NRC at __ (slip op. at 40).

Case: 12-1561 Document: 00116418893 Page: 111 Date Filed: 08/16/2012 Entry ID: 5666489 Page 36 of 134 support SAMA contentions by providing the opinion of an expert with knowledge of SAMA code modeling issues, who has reviewed the SAMA analysis. In its reply before the Board, Friends/NEC suggested that it will, at a later *stage* in the proceeding, *present factual evidence that indeed the straight-line Gaussian plume model is NOT conservative.*165 While we agree with NextEra that the SAMA analysis involves numerous considerations and properly ought to be considered in its *entirety,*166 we also recognize that at the contention admissibility stage there may be close questions on the materiality of claims, particularly given the complexity of the SAMA code modeling issues and Board reluctance to delve into merits-related inquiries. As in any proceeding, the Board makes threshold decisions on materiality on a case-by-case basis, given the nature of the issue and the record presented before the Board.

Here, the Board held that *Friends/NEC have raised plausible limitations of air dispersion modeling at the [Seabrook] site,* and that the asserted limitations of the atmospheric dispersion model plausibly could affect the SAMA cost-benefit conclusions.167 Given the substantial deference we typically accord licensing boards on contention admissibility, we conclude that the Board did not abuse its discretion or commit legal error in finding adequate factual support for the contention, given the limited record before it on SAMA analysis computer modeling and the inter-relationships between, and significance of, the different portions and levels of the SAMA analysis. We therefore decline to disturb the Board*s admission of Contention 4D.

d. Friends/NEC 4E

• Use of inputs that minimized and inaccurately reflected the economic consequences of a severe accident, including decontamination costs, cleanup costs and health costs, and that either minimized or ignored a host of other costs.168 165 Friends/NEC Reply at 39 (emphasis in original).

166 NextEra Appeal I at 18.

167 LBP-11-2, 73 NRC at __ (slip op. at 52-53).

168 Friends/NEC Petition at 61.

Case: 12-1561 Document: 00116418893 Page: 112 Date Filed: 08/16/2012 Entry ID: 5666489 Page 37 of 134 From Contention 4E, the Board admitted the limited issues of *decontamination and cleanup costs**specifically claims involving radionuclide *particle size* and *remediation difficulty in urban areas.*169 In the Board*s description of the contention, *Friends/NEC allege that because [NextEra] *uses the outdated and inaccurate MACCS2 code to calculate decontamination and clean up costs,* NextEra employs an inapplicable [radionuclide] particle size,* and *ignores the difficulty of cleanup in an urban area.*170 As to radionuclide particle size, Friends/NEC claim that *[n]uclear reactor releases range in size from a fraction of a micron to a couple of microns,* but *nuclear bomb explosions fallout is much larger*particles that are ten to hundreds of microns.*171 They claim that the *small nuclear releases [from reactor accidents] can get wedged into small cracks and crevices of buildings making [cleanup] extremely difficult or impossible.*172 They therefore conclude that

• cleanup after a nuclear bomb explosion is not comparable to clean up after a nuclear reactor accident and assuming so will underestimate cost.*173 Friends/NEC go on to argue that the MACCS2 code uses an *economic cost model* that improperly assumes inappropriately large radionuclide particles, such as those that would be released in a nuclear weapon explosion.174 Friends/NEC claim that use of the MACCS2 code will result in underestimated decontamination costs because the smaller radionuclide particles that would be released in a reactor accident would be more difficult and more expensive to 169 LBP-11-2, 73 NRC at __ (slip op. at 56).

170 Id. (quoting Friends/NEC Petition at 62).

171 Friends/NEC Petition at 63.

172 Id.

173 Id. at 62.

174 Id.

Case: 12-1561 Document: 00116418893 Page: 113 Date Filed: 08/16/2012 Entry ID: 5666489 Page 38 of 134 remove or *clean up* than the larger particles released in a nuclear weapon explosion.175 As support, they cite to a 1996 Sandia National Laboratories study of the potential economic costs of a plutonium dispersal accident.176 They argue that the Sandia Study recognized that earlier estimates of decontamination costs, *such as incorporated in [the 1975 NRC reactor accident risk study] WASH-1400 and up through and including MACCS2* are erroneous because *they examined fallout from [explosions] of nuclear weapons that produce large particles and high mass loadings.*177 In LBP-11-2, the Board found adequate support for Friends/NEC!s *assertion that smaller particles will create higher cleanup costs.*178 The Board concluded that Friends/NEC

• dispute sufficiently important assumptions in the calculation of severe accident decontamination and cleanup costs to make it plausible that another SAMA candidate might be cost-effective.*179 On appeal, NextEra argues that Friends/NEC failed to provide the requisite factual support for their decontamination cost claim and point to no genuine dispute with the Seabrook SAMA analysis on a material issue of law or fact.180 We agree.

First, it is not clear what exactly this decontamination costs contention is challenging.

Friends/NEC refer without explanation or support to an unidentified MACCS2 code *cost 175 Id. at 62-63, 66.

176 See id. at 66-67 (citing David I. Chanin, Walter B. Murfin, SAND96-0957, Site Restoration:

Estimation of Attributable Costs From Plutonium-Dispersal Accidents (May 1996) (Sandia Study)).

177 Friends/NEC Petition at 66. See also *Reactor Safety Study: An Assessment of Accident Risks in U.S. Commercial Nuclear Power Plants (WASH-1400),* NUREG-75/014 (Oct. 1975)

(WASH-1400).

178 LBP-11-2, 73 NRC at __ (slip op at 56, 58).

179 Id. at __ (slip op. at 58).

180 NextEra Appeal I at 25-27.

Case: 12-1561 Document: 00116418893 Page: 114 Date Filed: 08/16/2012 Entry ID: 5666489 Page 39 of 134 formula* that *underestimates costs likely to be incurred as a result of a dispersion of radiation.*181 There is no discussion of any specific *cost formula used in the MACCS2 code.*182 The contention itself refers to the *use of inputs* that minimize or inaccurately reflect economic consequences, but Friends/NEC do not provide a supported and particularized argument regarding *inputs.*

The Board apparently viewed the contention as claiming that the MACCS2 code, by definition, assumes or *employs an inapplicable particle size.*183 But we do not see even minimal factual or expert support presented for a claim that the MACCS2 code assumes

• inapplicable* radionuclide particle sizes.

Friends/NEC rest their particle size claims largely on the 1996 Sandia Study that examined the potential economic costs of a plutonium dispersal accident. As Friends/NEC*s argument goes, the MACCS2 code User*s Guide indicates that the code has an *economic cost model* that is *based on WASH-1400.*184 In turn, Friends/NEC describe the WASH-1400 study as having been *based on [cleanup] after a nuclear explosion.*185 Friends/NEC then go on to describe that the 1996 Sandia Study of plutonium dispersal accidents criticized *earlier estimates* of decontamination costs, such as those in WASH-1400, because these earlier cost estimates were based upon explosions of nuclear weapons involving large

• and therefore 181 Friends/NEC Petition at 62.

182 Id.

183 LBP-11-2, 73 NRC at __ (slip op. at 56). In their reply before the Board, Friends/NEC describe that they challenge *assumptions regarding cleanup . . . costs embedded in the code.*

Friends/NEC Reply at 36 (emphasis added).

184 Friends/NEC Petition at 62 (citing *Code Manual for MACCS2: User*s Guide,* NUREG/CR-6613, Vol. 1 (May 1998) (ML063550020), at 7-10 (User*s Guide)).

185 Id. at 62.

Case: 12-1561 Document: 00116418893 Page: 115 Date Filed: 08/16/2012 Entry ID: 5666489 Page 40 of 134 easier to remove

• radionuclide particles.186 Specifically, Friends/NEC claim that the Sandia Study *recognized that earlier estimates (such as incorporated in WASH-1400 and up through and including MACCS2) of decontamination costs are incorrect because they examined fallout from nuclear explosion [sic] of nuclear weapons that produce large particle sizes and high mass loadings.*187 But again, the intervenors" claims are ill-defined and poorly supported. It is not clear what Friends/NEC mean by *incorrect* decontamination cost *estimates* that are *incorporated*

in the MACCS2 code. Friends/NEC provide page citations to only three pages in the Sandia Study, none of which specifically refer to radionuclide particle sizes, the WASH-1400 reactor accident study, or the MACCS2 code.188 The Sandia Study is a lengthy report focused on plutonium dispersal events, and neither we nor the Board should be expected to sift through it in search of asserted factual support that Friends/NEC has not specified.189 We nonetheless reviewed portions of the Sandia Study but discerned no suggestion that the MACCS2 code assumes inapplicable radionuclide particle sizes. In fact, the 1996 Sandia Study predates issuance of the MACCS2 code User"s Guide and does not appear to discuss the MACCS2 code at all.

NextEra points out on appeal, as it did before the Board, that the Sandia Study does criticize the WASH-1400 reactor study for underestimating the economic costs of severe reactor accidents. But as NextEra describes, this criticism was of particular assumptions made in 186 See id. at 66.

187 See id.

188 See id. at 66-67 (citing Sandia Study at 2-3 to 2-4, 6-5).

189 See, e.g., Commonwealth Edison Co. (Zion Nuclear Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 194 (1999) (petitioner bears burden for setting forth clear argument for contention); USEC, CLI-06-10, 63 NRC at 457 (a *contention must make clear why cited references provide a basis*).

Case: 12-1561 Document: 00116418893 Page: 116 Date Filed: 08/16/2012 Entry ID: 5666489 Page 41 of 134 WASH-1400 regarding decontamination costs*assumptions that the MACCS2 code does not

• require or imply.*190 As NextEra points out, the Sandia Study criticizes assumptions regarding a variable input called a *decontamination factor,*191 explained further below.

Like WASH-1400, the MACCS2 code uses inputs called *decontamination factors* to reflect different levels or strategies of decontamination to reduce radiological dose to an acceptable dose level or standard for long-term use. Logically, a less contaminated area will need less decontamination to reduce the radiological dose to the necessary standard. A decontamination factor of 20, for example, reflects an assumption *that contamination is reduced by a factor of 20 (i.e., 95% of the radioactive material is removed)* after a specified period of time.192 Higher decontamination factors reflect a need for higher levels of decontamination activities, and are therefore associated with higher costs.

The Sandia Study criticizes WASH-1400 and other reactor risk assessments for assuming that a decontamination factor of 20*meaning radiological dose would be reduced by 95%*could be achieved *in urban areas at minimal cost*:193 190 NextEra Appeal I at 26 (citing Sandia Study at p. 2-9). See also NextEra Answer to Friends/NEC Petition at 91-92.

191 NextEra Appeal I at 26.

192 Id. at 26 n.16 (citing Sandia Study at 2-9 n.8). As the MACCS2 code User!s Guide explains, the decontamination *objective is to reduce doses to acceptable levels* in a *cost-effective manner.* See User!s Guide at 7-9. In some cases, it may simply be more cost-effective to condemn a property. For example, if, even assuming a specified high level of decontamination a site would not become habitable, then the *property will be condemned and permanently withdrawn from use* and an economic cost assessed for condemning the property. See id.

(cited in NextEra Appeal I at 26 n.16). Likewise, if the cost of decontamination *exceeds the property!s value,* then the code will assess an economic cost for condemning the property. See id. at 7-4. In other words, the SAMA economic cost analysis accounts for the costs of decontaminating property to particular user-defined decontamination levels, as well as the costs of condemning property that cannot sufficiently be decontaminated, or would be less expensive to condemn than to decontaminate.

193 See Sandia Study at 2-9 to 2-10 (emphasis added); NextEra Appeal I at 26-27. The Sandia Study also criticized the WASH-1400 report!s decontamination cost estimates because they were based on decontamination to a long-term radiological dose criterion of 25 rem (incurred (continued . . . )

Case: 12-1561 Document: 00116418893 Page: 117 Date Filed: 08/16/2012 Entry ID: 5666489 Page 42 of 134 Prior to the 1986 Chernobyl accident, reactor accident risk assessments in the U.S and Europe relied heavily on the economic cost model of WASH-1400, in which the decontamination of residential property was modeled as achieving a DF [decontamination factor] of 20 in urban areas at minimal cost, that is, one tenth of the value of the affected property.

The use of 20 in WASH-1400 was apparently based on contemporary guidance documents for anticipated recovery actions, following nuclear explosions of warfare. Nuclear weapons explosions produce fallout with large particles and high mass loadings. The DF of 20 was widely used in planning documents addressing such events.194 But as NextEra argues, *use of the MACCS2 code does not require or imply the use of a DF of 20* because the decontamination factor used is a variable input into the SAMA analysis, and the MACCS2 User*s Guide in fact suggests the use of other decontamination factors, 3 and 15.195 Up to three different decontamination factors can be defined.196 And the SAMA analysis has user-defined economic parameters for determining the dollar cost of performing the decontamination to the specified decontamination levels. In any event, the contention does not explain how the Sandia Study criticism of WASH-1400 supports the claim that the MACCS2 code employs inapplicable radionuclide particle sizes.

At bottom, Friends/NEC simply do not tie the Sandia Study to a genuine material dispute with the Seabrook SAMA analysis. Their contention does not discuss or even mention the issue of *decontamination factors* (or *decontamination levels,* as they are called in the Seabrook SAMA analysis).197 Moreover, there are other user-defined inputs in the MACCS2 code that over 30 years), noting that long-term radiological exposure standards *have been tightened considerably* since 1975. See id. at 2-9.

194 Sandia Study at 2-9 (emphasis added).

195 NextEra Appeal at 26 (citing User*s Guide at 7-9 to 7-11).

196 See User*s Guide at 7-9.

197 Only in responding to NextEra*s arguments before the Board did Friends/NEC refer to decontamination factors, inquiring if NextEra took *the User!s Guide!s suggestion* of using 3 and 15 for decontamination level inputs, and stating that *[t]hese are questions to answer as we go along.* See Friends/NEC Reply at 41-42. But our contention rules precisely are intended to prevent admission of ill-defined contentions where petitioners at the outset have not set forth (continued . . . )

Case: 12-1561 Document: 00116418893 Page: 118 Date Filed: 08/16/2012 Entry ID: 5666489 Page 43 of 134 also reflect underlying assumptions about how difficult

• and how expensive

• decontamination activities may need to be.

Here, for example, the Seabrook SAMA analysis expressly outlines various decontamination cost parameters used in the analysis. These include the estimated cost of farm decontamination (per hectare) for two levels of decontamination; the estimated cost of non-farm decontamination (per resident person) for two levels of decontamination; the estimated labor cost for decontamination (per man year); the estimated value of farm wealth (per hectare);

the estimated average value of non-farm wealth (per person); and the estimated population relocation costs per person.198 Friends/NEC do not provide any factual or expert support challenging these specific economic cost parameters. Nor does their contention claim that the SAMA analysis lacks necessary information. In short, while the Sandia Study may criticize

• earlier estimates* or studies of severe accident decontamination costs for inappropriately assuming achievement of high levels of decontamination at a low cost, Friends/NEC Contention 4E does not set forth a genuine material dispute with the Seabrook SAMA analysis, and therefore does not satisfy the contention admissibility requirements.199 particularized concerns. See, e.g., Oconee, CLI-99-11, 49 NRC at 337-38; see also Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 224-25 (2004)

(improper to use reply brief to introduce new arguments to *reinvigorate thinly supported contentions*). Contention 4E nowhere suggests a view on the User*s Guide suggested decontamination factors. Even in their reply brief, Friends/NEC did not argue that particular decontamination factors should (or should not) be used in the Seabrook analysis

• again, no particularized argument on decontamination factors is raised. Before us, Friends/NEC had no further comment on either the relevance of the Sandia Study to the Seabrook analysis, or on decontamination factors. See Friends/NEC Opposition to NextEra Appeal at 5-6.

198 Environmental Report, Att. F at F-58.

199 At best, Friends/NEC offer a generalized claim of a failure to consider remediation of

• economic infrastructure that make[s] business, tourism and other economic activity possible.*

See Friends/NEC Petition at 67. Generalized *economic cost* arguments, unsupported by asserted facts or expert opinion, are insufficient to show a genuine dispute with the application.

The Board did not address specifically the Friends/NEC *economic infrastructure* claim, but rejected other similarly unsupported *economic cost* claims. See LBP-11-2, 73 NRC at __ (slip (continued . . . )

Case: 12-1561 Document: 00116418893 Page: 119 Date Filed: 08/16/2012 Entry ID: 5666489 Page 44 of 134 Other arguments made as part of the Friends/NEC *decontamination costs* claims equally lack support or simply do not raise a genuine dispute with the application. These include the unsupported argument that *[CERCLA], EPA, and local authorities would not allow use of* decontamination processes such as *firehosing* and *plowing.* Friends/NEC claim that these methods *simply move[] the contamination from one place to another,* and would result in a cleanup that would *take far longer, be more expensive and its success . . . unlikely.*200 Friends/NEC quote a passage from the MACCS2 User*s Guide, which acknowledges that *[m]any* decontamination processes, such as *plowing* and *firehosing,* reduce direct exposure doses from groundshine and re-suspension, but wash surface contamination down into the ground and therefore may not move contaminants *out of the root zone.*201 The passage goes on to explain that because contaminants may remain in root systems, the MACCS2 economic cost model (like the earlier WASH-1400 model) assumes that farmland decontamination reduces direct exposure doses to farmers, but *does not reduce the ingestion doses* from *consumption of crops that are contaminated by root uptake.*202 Friends/NEC neither point to any error regarding this aspect of the MACCS2 code, nor tie the passage to a specific and supported material dispute with the Seabrook SAMA analysis. Nor does either the MACCS2 User*s Guide or WASH-1400 suggest that *plowing* and *firehosing* are the only decontamination methods available.203 Friends/NEC*s *firehosing* and *plowing* claims raise no genuine material dispute with the application.

op. at 60) (rejecting claims of overlooked *business value of property,* *job retraining,*

• unemployment payments,* and *inevitable litigation*).

200 Friends/NEC Petition at 64.

201 Id. at 62 (quoting User*s Guide at 7-10).

202 User*s Guide at 7-10 (emphasis added).

203 See, e.g., WASH-1400, App. VI, App. K at K-2 (noting both wet and dry decontamination methods).

Case: 12-1561 Document: 00116418893 Page: 120 Date Filed: 08/16/2012 Entry ID: 5666489 Page 45 of 134 The Board also admitted as part of Contention 4E a claim that *urban areas are more costly to clean up than rural areas.*204 But like the general argument that small radionuclide particles are more difficult to remove than large particles, we do not see how this claim*even assuming it is true*raises a genuine dispute with the Seabrook SAMA analysis. Friends/NEC do not suggest with any support that the SAMA analysis fails to encompass the decontamination of particular urban areas that should have been considered, or proffer any site-specific economic cost information or cost estimates for any relevant *urban areas.*

Friends/NEC provide no factual or expert support identifying error in the estimated costs of decontamination or identifying specific overlooked *urban* decontamination costs that may bear on the analysis*s results.

Instead, as NextEra argues, Friends/NEC merely referenced excerpts of reports that

• reflect the intuitive notions that cleanup of urban areas and cleanup to a higher standard can be more expensive than cleanup of rural areas or to a lower standard.*205 While not challenging any of the specific decontamination cost estimates or parameters provided in the Seabrook analysis, Friends/NEC refer to decontamination costs estimates in the 1996 Sandia Study of plutonium dispersal accidents, which estimated a cost of $309 million per square kilometer for areas with *heavy [plutonium] contamination.*206 With no expert or factual support describing why or how it would be appropriate to directly compare the decontamination cost estimates for plutonium dispersal accident scenarios studied in the Sandia Study with the site-specific Seabrook SAMA analysis, Friends/NEC argue that Boston, Manchester, Portsmouth, and 204 LBP-11-2, 73 NRC at __ (slip op. at 58).

205 NextEra Appeal I at 27.

206 Friends/NEC Petition at 66 (citing Sandia Study at 6-5).

Case: 12-1561 Document: 00116418893 Page: 121 Date Filed: 08/16/2012 Entry ID: 5666489 Page 46 of 134 Portland would have *much higher* decontamination costs than the costs outlined in the Sandia Study.207 Again without support or explanation, Friends/NEC claim that instead of the *outdated decontamination costs figure in the MACCS2 code**and notably, the challenged *costs figure*

is never identified**the SAMA analysis for Seabrook should incorporate, for example, the analytical framework contained in the 1996 Sandia* Study, *as well as studies examining Chernobyl and [radioactive dispersal-type devices].*208 The Seabrook SAMA analysis is a site-specific mitigation alternatives analysis considering reactor severe accident scenarios for the Seabrook site. The analysis takes into account the particular mix of radionuclides in the reactor core, reactor accident radiological contaminants and their half-lives; facility-specific characteristics and accident scenarios; economic data for the 13 counties within 50 miles of the plant; site-specific meteorological data and atmospheric dispersion modeling; and other site-specific and reactor accident-specific factors. Friends/NEC*s generalized suggestions that other cost estimates and studies involving significantly different accident scenarios and assumptions reflect more accurate approaches or values to use, or otherwise indicate errors in the Seabrook SAMA analysis, are unsupported and therefore speculative. Again, any number of alternative 207 Id. at 66. Moreover, Friends/NEC go on to claim that the *economic losses stemming from the stigma effects of a severe accident are staggering.* See id. at 66-67. Psychological fears or *stigma* effects, however, are not cognizable NEPA claims. See generally Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983).

Repeatedly, Friends/NEC make other assertions that are not linked to a specific dispute with the application. For example, they generally assert that the health consequences of a severe reactor accident could greatly exceed the consequences of a plutonium-dispersal accident because the quantities of a radioactive material in an operating reactor are greater. See Friends/NEC Petition at 67. Friends/NEC also generally refer to longstanding differences in

• cleanup standards* between the NRC and the Environmental Protection Agency, as indicated in a cited 2004 General Accounting Office report. See Friends/NEC Petition at 65. This issue does not fall within the scope of this license renewal proceeding. Friends/NEC raise no claim that any particular NRC or EPA standard should have been used in the Seabrook SAMA analysis.

208 Friends/NEC Petition at 66.

Case: 12-1561 Document: 00116418893 Page: 122 Date Filed: 08/16/2012 Entry ID: 5666489 Page 47 of 134 analyses may be reasonable under NEPA. The issue is not whether alternative approaches exist, alternative inputs may be substituted, or yet another factor could be considered.

Petitioners must provide factual or expert support that proposed alternatives are warranted because the analysis that was done is insufficient to satisfy NEPA.

To conclude, we gave careful review to the Friends/NEC Contention 4E, but the contention is largely speculative, displays minimal understanding of the issues raised, and at bottom, fails to raise a supported genuine material dispute with the application. We do not disagree with the Board that Friends/NEC provided adequate support for general claims that

• smaller particle sizes will create higher cleanup costs, and that urban areas are more costly to clean up than rural areas.*209 But as we described, these assertions do not point to a genuine dispute with the application. The Board admitted the contention on the ground that Friends/NEC *dispute sufficiently important assumptions in the calculation of severe accident decontamination and cleanup costs* in the Seabrook SAMA analysis. 210 But the contention nowhere identifies with support the specific *assumptions in the calculation* that are challenged.

We therefore find that the Board erred in admitting Friends/NEC Contention 4E.

4. Beyond Nuclear Contention The NextEra Environmental Report fails to evaluate the potential for renewable energy to offset the loss of energy production from the Seabrook nuclear power plant and to make the requested license renewal action for 2030 unnecessary.

In violation of the requirements of 10 C.F.R. § 51.53(c)(3)(iii) and of the GEIS

§ 8.1, the NextEra Environmental Report (§ 7.2) treats all of the alternatives to license renewal except for natural gas and coal plants as unreasonable[,] and does not provide a substantial analysis of the potential for significant alternatives which are being aggressively planned and developed in the Region of Interest for the requested relicensing period of 2030-2050. The scope of the [Supplemental EIS] is improperly narrow, and the issue of the need for Seabrook as a means of satisfying demand forecasts for the relicensing period must be revisited due to 209 LBP-11-2, 73 NRC at __ (slip op. at 58).

210 Id.

Case: 12-1561 Document: 00116418893 Page: 123 Date Filed: 08/16/2012 Entry ID: 5666489 Page 48 of 134 dramatically-changing circumstances in the regional energy mix throughout the two decades preceding the relicensing period.211 The Board admitted this contention but restricted its scope. Concluding that all

• supporting facts focus exclusively on wind power generation,* the Board limited Beyond Nuclear*s contention to just that form of renewable energy.212

a. Background Our regulations implementing NEPA Section 102 require Environmental Reports submitted by license renewal applicants to address the environmental impacts of the proposed action and also to compare them to impacts of alternative actions.213 But NEPA requires consideration of *reasonable* alternatives, not all conceivable ones.214 Our License Renewal GEIS215 provides guidance on the scope of the energy alternatives analysis for license renewal. In particular, the GEIS concluded *that a reasonable set of alternatives should be limited to analysis of single, discrete electric generation sources . .

. that are technically feasible and commercially viable.*216 This is guidance currently in place on the subject; however, the Staff is preparing an update to the License Renewal GEIS*still under way*that proposes a somewhat broader analysis of alternative energy sources.217 The proposed revised GEIS would provide for reviewing several individual energy alternatives, and also observes that *combinations of alternatives may be considered during plant-specific license 211 Beyond Nuclear Petition at 6.

212 LBP-11-2, 73 NRC at __ (slip op. at 27).

213 10 C.F.R. § 51.53(c)(2). See NEPA § 102(2)(C)(i)-(iii), 42 U.S.C. § 4332(2)(C)(i)-(iii).

214 NRDC v. Morton, 458 F.2d 827, 834, 837, 838 (D.C. Cir. 1972).

215 See generally License Renewal GEIS.

216 License Renewal GEIS, Vol. 1, § 8.1 at 8-1.

217 See generally Proposed Rule, Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 74 Fed. Reg. 38,117 (July 31, 2009).

Case: 12-1561 Document: 00116418893 Page: 124 Date Filed: 08/16/2012 Entry ID: 5666489 Page 49 of 134 reviews.*218 While the 1996 License Renewal GEIS carries special weight as a guidance document that has been approved by the Commission, in the end it is non-binding guidance, and thus, not unassailable. An application that complies with existing guidance may be challenged, provided that contention-admissibility requirements are met.219 We also have held that our Staff!s EISs *need only discuss those alternatives that . . .

1. will bring about the ends* of the proposed action*220*a principle equally applicable to Environmental Reports.221 We give *substantial weight to the preferences of the applicant and/or sponsor.*222 NextEra*s stated purpose for the Seabrook license renewal, as reflected in 218

• Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Main Report, Draft Report for Comment,* NUREG-1437, Rev. 1 (Vol. 1 July 2009) (ML091770049), at 2-18 (Draft Revised GEIS). As the Staff indicated earlier in this proceeding, the Staff has taken this approach in at least one supplemental EIS, associated with the Salem and Hope Creek license renewal applications. See Tr. at 113-14; *Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants: Regarding Hope Creek Generating Station and Salem Nuclear Generating Station, Units 1 and 2,* NUREG-1437, Supplement 45 (Mar. 2011)

(ML11089A021), §§ 8.1, 8.2. With respect to renewable alternatives in particular, the proposed revised GEIS states: *Combinations of energy renewable alternatives may be considered during plant-specific licensing reviews.* Draft Revised GEIS at 2-20. The Seabrook Environmental Report provided a brief assessment of several renewable alternatives, but determined that none was a reasonable replacement for Seabrook. See Environmental Report, § 7.2.1.5.

219 See, e.g., International Uranium (USA) Corp. (Request for Materials License Amendment),

CLI-00-1, 51 NRC 9, 19 (2000) (noting that the Commission is not bound by guidance documents, which do not carry the force of regulations and do not impose legal requirements upon licensees).

220 Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 55 (2001) (quoting Citizens Against Burlington v. Busey, 938 F.2d 190, 195 (D.C. Cir.), cert.

denied, 502 U.S. 994 (1991)). See also Rancho Seco, CLI-93-3, 37 NRC at 144-45.

221 See generally Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-09-16, 70 NRC 227, 263, aff*d, CLI-09-22, 70 NRC 932 (2009).

222 City of Grapevine v. Dep*t of Transp., 17 F.3d 1502, 1506 (D.C. Cir.) (quoting Citizens Against Burlington, 938 F.2d 197-98), cert. denied, 513 U.S. 1043 (1994); Hydro Resources, CLI-01-4, 53 NRC at 55 (internal quotation marks and citations omitted):

When reviewing a discrete license application filed by a private applicant, a federal agency may appropriately accord substantial weight to the preferences of the applicant . . . in the siting and design of the project. . . . The agency thus may take into account the economic goals of the project*s sponsor.

Case: 12-1561 Document: 00116418893 Page: 125 Date Filed: 08/16/2012 Entry ID: 5666489 Page 50 of 134 its application, is baseload power generation.223 Thus, although NextEra in its Environmental Report briefly examined wind energy as a potential alternative to a license renewal, NextEra rejected that option on the ground that wind power, at least in its current state, is incapable of producing baseload power.224 The Board held that, despite the broad language of the contention, Beyond Nuclear*s

• supporting facts focus[ed] exclusively*225 on the alternative of a *system of interconnected offshore wind farms* that, according to Beyond Nuclear, could provide baseload power for the

• region of interest* currently served by Seabrook.226 The Board therefore narrowed the contention to include only this issue, which it found to be supported by *sufficient minimal evidence* in Beyond Nuclear!s exhibits.227 The Board found that Beyond Nuclear had plausibly asserted that offshore wind farms may prove feasible in the near future.228 223 NextEra Appeal II at 4 (quoting Environmental Report, § 7.2.1, at 7-6), 4-5 (citing Environmental Report, § 7.2.1, at 7-12). *Baseload power* generates *energy intended to continuously produce electricity at or near full capacity, with high availability.* Envtl. Law and Policy Ctr. v. NRC, 470 F.3d 676, 679 (7th Cir. 2006).

224 Environmental Report, § 7.2.1.5, at 7-12 to 7-13.

225 LBP-11-2, 73 NRC at __ (slip op. at 27).

226 Id. at (slip op. at 20) (emphasis added). Seabrook!s *region of interest* is Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Environmental Report,

§ 7.2.1, at 7-6.

227 LBP-11-2, 73 NRC at __ (slip op. at 25) (internal quotation marks omitted). See also id. at __

(slip op. at 25) (internal quotation marks omitted); id. at __ (slip op. at 20-22) (describing various Beyond Nuclear exhibits); id. at __ (slip op. at 27) (limiting the scope of the contention). The Board also concluded that many of the Staff!s and NextEra!s arguments regarding the remaining admissibility standards *improperly address[ed] the merits of [Beyond Nuclear!s] contention, rather than whether petitioners have provided a minimal showing that material facts are in dispute, thereby demonstrating that an inquiry in depth is appropriate.* Id. at __ (slip op. at 23-24) (footnote and internal quotation marks omitted).

228 Id. at __ (slip op. at 25) (citing Tr. at 24, 34). Accord id. at __ (slip op. at 26-27) (Beyond Nuclear has *demonstrated some possibility that wind power might be a reasonable alternative as early as 2015*). See generally id. (slip op. at 20) (Beyond Nuclear supports its contention

• with 20 exhibits purporting to demonstrate that, within the foreseeable future, an environmentally superior system of interconnected offshore wind farms might provide baseload (continued . . . )

Case: 12-1561 Document: 00116418893 Page: 126 Date Filed: 08/16/2012 Entry ID: 5666489 Page 51 of 134

b. Discussion As discussed below, we conclude that the Board erred in admitting this contention.229 (1) THE SCOPE OF THE ENERGY-ALTERNATIVES ANALYSIS The Board disagreed with the Staff*s position that *Beyond Nuclear . . . must show #that wind is a feasible alternative at the present time.!*230 Acknowledging that *#remote and speculative! alternatives need not be addressed in an applicant!s environmental report,*231 the Board nonetheless indicated that, for license renewal, *the relevant time frame is considerably broader than #the present time.!*232 Rather, the Board concluded that it was required *to consider alternatives #as they exist and are likely to exist.!*233 The Board construed some of Beyond Nuclear*s supporting references to indicate that *an integrated system of offshore wind farms could be a viable source of baseload power in the region as early as 2015.*234 Beyond Nuclear argued before the Board that in their NEPA analyses the NRC and NextEra should predict which technologies will be available by the beginning of the *requested relicensing period of 2030 to 2050*235 rather than confine themselves to what is available either power in the relevant region and thus should have been evaluated in greater detail in the Applicant!s environmental report.*).

229 NextEra argues on appeal that the contention constitutes a prohibited collateral attack on 10 C.F.R. § 54.17(c) and, separately, that the Board improperly reformulated the contention.

See NextEra Appeal II at 10 & 19, respectively. Because we reject this contention on other grounds, we need not address these arguments.

230 LBP-11-2, 73 NRC at __ (slip op. at 24) (emphasis added) (quoting Staff Answer to Petitions at 102).

231 Id. at __ (slip op. at 24-25) (citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.

519, 551 (1978) (quoting, in turn, NRDC v. Morton, 458 F.2d 827, 837-38 (D.C. Cir. 1972))).

232 Id. at __ (slip op. at 25).

233 Id. (quoting Carolina Envtl. Study Grp. v. U.S., 510 F.2d 796, 801 (D.C. Cir. 1975)).

234 Id. at __ (slip op. at 25) (citing Tr. at 24, 34).

235 Beyond Nuclear Petition at 13.

Case: 12-1561 Document: 00116418893 Page: 127 Date Filed: 08/16/2012 Entry ID: 5666489 Page 52 of 134 now or in the near future.236 The Board found *sufficient "minimal# evidence* regarding an integrated system of offshore wind farms *to warrant further inquiry as to whether such a system might be "likely to exist# during the relevant time period.*237 NextEra challenges this aspect of the Board#s decision as unsupported by the record238 and as an improper requirement that NextEra consider a *remote and speculative* alternative.239 The Board is correct that the relevant period *is considerably broader than "the present time.#*240 As the Board observed, the standard established in Carolina Environmental Study Group is whether an alternative is *likely to exist.* It is the future environmental effect of activities during the renewal period that must be considered, not current environmental effects.241 Pragmatically, however, near-term effects often are the best indicator of future ones.

NEPA requires a *hard look* at the environmental effects of the planned action and reasonable alternatives to that action, using the best information available at the time the assessment is performed. An environmental impact statement is not *intended to be a "research document,#

236 See, e.g., id. at 13, 18 (*NEPA challenges the Applicant and the federal agency to "reasonably foresee# beyond the present time in formulating its evaluation of alternatives in the Environmental Report for the projected federal relicensing action as proposed to begin in 2030*). Beyond Nuclear presents the same argument to us. See, e.g., Beyond Nuclear Opposition to Appeal at 27 (criticizing NextEra for *tak[ing] the requested licensing action out of context for 2030 to 2050 and replac[ing] with its own interpretation of reasonableness for "at this time,# "in the near term,# and "does not exist today#*) (emphasis omitted).

237 LBP-11-2, 73 NRC at __ (slip op. at 25). The Board explained that it was not deciding at the contention admissibility stage *the exact date by which an integrated system of offshore wind farms would have to be found "likely to exist.#* Id.

238 NextEra Appeal II at 11-15.

239 Id. at 9-10.

240 LBP-11-2, 73 NRC at __ (slip op. at 25).

241 See generally Florida Power & Light Co. (Turkey Point Nuclear Generating Station, Units 3 and 4), CLI-01-17, 54 NRC 3, 11-13 (2001) (describing the Part 51 process for environmental review associated with license renewal, focusing upon the potential impacts of an additional 20 years of plant operation).

Case: 12-1561 Document: 00116418893 Page: 128 Date Filed: 08/16/2012 Entry ID: 5666489 Page 53 of 134 reflecting the frontiers of scientific methodology, studies, and data.*242 Assessments of future energy alternatives necessarily are of a predictive nature, and the assessment therefore will include uncertainties associated with predicting advances in technology.

In other words, in performing an alternatives analysis, the applicant!and the agency!

are limited by the information that is reasonably available in preparing the environmental review documents. When considering energy alternatives, it is nearly always impossible to predict, decades in advance, the viability of technologies that are currently not operational and are many years from large-scale development. Except in rare cases where there is evidence of unusual predictive reliability, it is not workable to consider, for purposes of NEPA analysis, what are essentially hypothetical or speculative alternatives as a source of future baseload power generation.243 For this reason, we find sensible the Staff"s argument that in most cases a

• reasonable* energy alternative is one that is currently commercially viable, or will become so in the relatively near term. Such an assessment generally will be sufficient to provide the requisite

• hard look* under NEPA.

In sum, to submit an admissible contention on energy alternatives in a license renewal proceeding, a petitioner ordinarily must provide *alleged facts or expert opinion* sufficient to raise a genuine dispute as to whether the best information available today suggests that commercially viable alternate technology (or combination of technologies) is available now, or will become so in the near future, to supply baseload power.244 As a general matter, a 242 See Pilgrim, CLI-10-11, 71 NRC 287 at 315 (citing Town of Winthrop v. FAA, 535 F.3d 1, 11-13 (1st Cir. 2008)).

243

• NEPA does not require agencies to analyze impacts of alternatives that are speculative, remote, impractical, or not viable.* Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-05-28, 62 NRC 721, 729 (2005) (citations omitted).

244 See Roosevelt Campobello Int*l Park Comm*n v. EPA, 684 F.2d 1041, 1047 (1st Cir. 1982)

(holding that, for siting alternatives, EPA"s *duty under NEPA is to study all alternatives that appear reasonable and appropriate for study at the time of drafting the EIS* (internal quotations omitted)); Seacoast Anti-Pollution League v. NRC, 598 F.2d 1221, 1230 (1st Cir. 1979) (holding (continued . . . )

Case: 12-1561 Document: 00116418893 Page: 129 Date Filed: 08/16/2012 Entry ID: 5666489 Page 54 of 134

• reasonable* energy alternative*one that must be assessed in the environmental review associated with a license renewal application*is one that is currently commercially viable, or will become so in the near term. We therefore conclude that the Board erred in admitting the contention.245 (2) FAILURE TO PROPERLY TAKE INTO ACCOUNT NEXTERA*S PURPOSE IN SEEKING LICENSE RENEWAL To demonstrate the admissibility of a NEPA contention that an applicant failed to consider a viable alternative to its proposed action, a petitioner must show that its contention presents a *genuine dispute* under 10 C.F.R. § 2.309(f)(1)(vi). One element of that demonstration is a showing that the petitioner*s proposed alternative would satisfy the purpose of the applicant*s proposed action.246 NextEra argues on appeal that the Board erred in finding that wind power might satisfy the purpose of NextEra*s proposed action and that Beyond Nuclear had therefore presented a *genuine dispute.*247 Neither this agency nor the applicant need consider any alternative that does not **bring about the ends* of the proposed action.*248 As the D.C. Circuit stated in Citizens Against Burlington, *[w]hen the purpose is to accomplish one thing, it makes no sense to consider the that, for siting alternatives, an agency must consider alternatives that appear reasonable *at the time* of the NEPA review). Cf. Carolina Envtl. Study Group, 510 F.2d at 800 (holding that NEPA was not meant to require detailed discussion of *remote and speculative* alternatives).

245 To avoid any misunderstanding, however, we hasten to add that our ruling does not exclude the possibility that a contention could show a genuine dispute with respect to a technology that, while not commercially viable at the time of the application, is under development for large-scale use and is *likely to* be available during the period of extended operation. See Carolina Envtl.

Study Grp., 510 F.2d at 800.

246 See note 221, supra.

247 Beyond Nuclear Petition at 15-18.

248 Hydro Resources, CLI-01-4, 53 NRC at 55 (quoting Citizens Against Burlington, 938 F.2d at 195). Accord Envtl. Law & Policy Center v. NRC, 470 F.3d at 683-84.

Case: 12-1561 Document: 00116418893 Page: 130 Date Filed: 08/16/2012 Entry ID: 5666489 Page 55 of 134 alternative ways by which another thing might be achieved.*249 NextEra states that its purpose in seeking license renewal is to make available *baseload power**a preference to which we accord substantial weight.250 Beyond Nuclear has not articulated a genuine dispute with the Application as to the viability of offshore wind farms as a source of baseload power. For wind power to merit detailed consideration as an alternative to renewing the license for a nuclear power plant, that alternative should be capable of providing *technically feasible and commercially viable* baseload power during the renewal period. As we have discussed, in assessing energy-alternatives contentions, practicality requires us to consider chiefly, often exclusively, alternatives that can be shown to have viability today or in the near future.251 Here, Beyond Nuclear has not provided support for its claim that offshore wind is technically feasible and commercially viable*either today or in the near future*and therefore has not submitted an admissible contention.252 We rest this conclusion on the grounds discussed below.

Energy Storage. As NextEra points out, Beyond Nuclear does not challenge the conclusion in NextEra*s Environmental Report that the combination of wind-based generation and compressed air energy storage would be too costly to be a reasonable alternative to nuclear energy as a source of baseload power.253 NextEra argues on appeal that this omission 249 938 F.2d at 195 (citation and internal quotation marks omitted).

250 See note 223, supra, and associated text.

251 See License Renewal GEIS, Vol. 1, § 8.1, at 8-1.

252 In theory, a petitioner might show that an alternate technology, while not viable today or in the near future, is highly likely to come on line during the period of extended operation. But such a showing is possible, as we noted above (at 53), *only in rare cases where there is evidence of unusual predictive reliability.* Beyond Nuclear proffered no such evidence in support of its contention in this proceeding.

253 See NextEra Appeal II at 18; Environmental Report, § 7.2.1.5, at 7-12. See also Beyond Nuclear Petition at 20-21. Beyond Nuclear*s Exhibit 3 addresses the potential of compressed air energy storage technology but does not address its cost, other than to observe generally that

• additional work will be required to examine the feasibility of advanced wind/[compressed air energy storage] concepts.* National Renewable Energy Laboratory, *Creating Baseload Wind (continued . . . )

Case: 12-1561 Document: 00116418893 Page: 131 Date Filed: 08/16/2012 Entry ID: 5666489 Page 56 of 134 is fatal to Beyond Nuclear*s contention, and therefore also to the Board*s admission of that contention.254 We agree. Absent a challenge on this essential issue, there is no genuine dispute as required under section 2.309(f)(1)(vi).

Offshore Wind Technology. The Board ruled that Beyond Nuclear presented a genuine dispute regarding the feasibility of offshore wind technology. The Board concluded that although *[p]etitioners may face a difficult task in trying to demonstrate that such a system is . . .

practical . . . [, s]uch disputed facts are not appropriately resolved . . . in connection with the Board*s [admissibility] determination . . . .*255 We disagree with the Board on this point. As we view the record, Beyond Nuclear*s *offshore wind* contention is not sustainable on its face because it lacks a supporting basis. We reach this result without improperly resolving disputed facts.

NextEra stated in its Environmental Report that the technology for an ocean-based wind farm even approaching the generation capacity of Seabrook is only in its nascent stage.256 Beyond Nuclear did not address this point (nor did the Board in LBP-11-2). Without some challenge to NextEra*s Environmental Report on the nascent technology point, there is no Power Systems Using Advanced Compressed Air Energy Storage Concepts* (ML102930308).

NextEra provides an explanation of why this approach is not financially feasible / commercially viable, which Beyond Nuclear does not challenge. See NextEra*s Answer to Beyond Nuclear Petition at 19-23; Environmental Report, § 7.2.1.5, at 7-12 to 7-13.

254 NextEra Appeal II at 19. As an alternative to energy storage, Beyond Nuclear alludes to the use of high-voltage direct-current transmission lines to connect independent wind farms. See Beyond Nuclear Reply at 35-36. This alternative, however, supports electric power transmission, which is not NextEra*s stated purpose. NextEra states that it does not currently

• own or operate substantial transmission assets in the region.* NextEra Answer to Beyond Nuclear Petition at 29. See also NextEra Appeal II at 21-22. Because Beyond Nuclear poses an alternative that would expand the purpose of the Application, it fails to proffer a *genuine dispute* as required under 10 C.F.R. § 2.309(f)(1)(vi).

255 LBP-11-2, 73 NRC at __ (slip op. at 24).

256 Environmental Report, § 7.2.1.5, at 7-12.

Case: 12-1561 Document: 00116418893 Page: 132 Date Filed: 08/16/2012 Entry ID: 5666489 Page 57 of 134 genuine dispute of material fact as to whether offshore wind power is, or soon will be, a reasonable alternative to license renewal.

NextEra takes issue with the following reasoning offered by the Board in partial support of its admission of Beyond Nuclear*s contention:

Allegedly, some of the Beyond Nuclear petitioners* supporting references show that an integrated system of offshore wind farms could be a viable source of baseload power in the region as early as 2015. Whether this is so remains to be seen. In the Board*s view, however, petitioners have proffered sufficient

• minimal* evidence to warrant further inquiry as to whether such a system might be *likely to exist* during the relevant time period.257 The Board cites the prehearing conference transcript, where Beyond Nuclear*s representative discussed one of its exhibits, not cited by the Board.258 NextEra argues that in actuality the

• supporting references* do not support the Board*s conclusion that Beyond Nuclear had

!proffered sufficient #minimal* evidence."259 We agree with NextEra.

The Beyond Nuclear representative first stated that, according to a University of Maine document, the operators of offshore wind farms !are delivering baseload by 2015."260 This statement appears to offer a prediction or statement of expectation that wind-derived baseload power will be delivered by 2015. This statement, however, is contradicted by the same representative later in oral argument, and also by Beyond Nuclear*s Exhibit 17 (upon which the representative relied in making this statement).

In the representative*s second statement, he described the University of Maine document as presenting only a !plan" for !25 megawatts [MW] of . . . deep water offshore wind .

257 LBP-11-2, 73 NRC at __ (slip op. at 25) (footnotes omitted; emphasis added).

258 Id. (citing Tr. at 24, 34). See generally Beyond Nuclear Ex. 17, University of Maine, !Maine Offshore Wind Plan, Setting the Course for Energy Independence" (ML102930375).

259 NextEra Appeal II at 11-14.

260 Tr. at 24, referring to Beyond Nuclear Ex. 17 (Phases 2-5).

Case: 12-1561 Document: 00116418893 Page: 133 Date Filed: 08/16/2012 Entry ID: 5666489 Page 58 of 134

. . to come online by 2014.*261 Our review of Beyond Nuclear*s referenced exhibit confirms that it refers to a plan only*not a statement of expectation that the project will be commercially viable as of 2014. Therefore, the two cited portions of the oral argument transcript, when read together and in light of the exhibits, do not support the Board*s conclusion.

Indeed, the representative*s first statement is contradicted by the cited exhibit, which sets forth a timeline for the *planned* offshore wind power in Maine. The timeline for the plan describes 2012-2014 as the period for accomplishing the design, construction, deployment and testing of a 3-5 MW *floating wind turbine prototype.*262 But because a single wind turbine cannot provide *continuous* production of electricity *at or near full capacity,* it does not constitute a source of *baseload* power263*the term Beyond Nuclear*s representative used, and on which the Board appeared to rely in its finding.264 261 Id. at 34.

262 Beyond Nuclear Ex. 17 (Phase 2). We also observe that this description does not match the 25-MW wind turbine to which Beyond Nuclear*s representative referred in his second statement.

263 See Envtl. Law and Policy Ctr., 470 F.3d at 679 (defining baseload power). Beyond Nuclear*s own exhibits confirm that the prototype does not satisfy this definition. See Beyond Nuclear Ex. 4, Cristina L. Archer and Mark Z. Jacobson, Supplying Baseload Power and Reducing Transmission Requirements by Interconnecting Wind Farms, 46 J. OF APPLIED METEOROLOGY AND CLIMATOLOGY 1701, 1716 (*an average of 33% and a maximum of 47% of yearly averaged wind power from interconnected farms can be used as reliable, baseload electric power*) (Nov. 2007) (ML102930309); Beyond Nuclear Ex. 9, EnerNex Corp., *Eastern Wind Integration and Transmission Study* (Jan. 2010), at 54 & 217 (referring to wind turbine capacity factors between 24.1% and 32.8%); Beyond Nuclear Ex. 19, U.S. Department of Energy (DOE), *20% Wind Energy by 2030: Increasing Wind Energy*s Contribution to U.S.

Electricity Supply* (July 2008), at 26 (36% capacity factor in 2004 and 2005), 89 (Table 4.3:

30% capacity factor from June 2005 to May 2006), 183 (Table B-11: projecting 34-55% capacity factors for shallow-water offshore wind turbines between 2005 and 2030), 221 (*Most wind power plants operate at a capacity factor of 25% to 40%*) (ML102930395); Beyond Nuclear Ex.

21, National Renewable Energy Laboratory, *Large-Scale Offshore Wind Power in the United States: Assessment of Opportunities and Barriers* (Sep. 2010) at 35 n.7 (assigns offshore wind a capacity factor of 37%), 59 (35% to 50% capacity factor), 117 (nn.3-4: assumes a 35%

capacity factor to offshore wind plants in shallow water) (ML102930637).

264 To the extent the Board may have relied on the two additional exhibits from the University of Maine, we find that they likewise do not support the Board*s ruling. See Beyond Nuclear Ex. 16, University of Maine, *Deepwater Offshore Wind in Maine: the Plan, the Timeline* (June 18, (continued . . . )

Case: 12-1561 Document: 00116418893 Page: 134 Date Filed: 08/16/2012 Entry ID: 5666489 Page 59 of 134 In short, neither the transcript nor the referenced exhibit provides support for Beyond Nuclear*s assertion that wind energy may provide baseload power by 2015. The Board therefore erred in relying on those portions of the record as support for its conclusion that Beyond Nuclear*s Contention was admissible.265 Further, Beyond Nuclear*s Exhibits 14 and 15 undermine its arguments regarding the technical feasibility that would be needed to show a genuine dispute regarding offshore wind power as a reasonable alternative. The *Final Report of the Maine Ocean Energy Task Force to Governor John E. Baldacci* (Exhibit 14) observes:

[T]echnologies that would enable the placement of wind turbines on floating platforms or other structures in greater depths needed to tap the world-class deep-water resources in Maine*s coastal waters or in adjoining federal waters are under development . . . . Lack of the requisite technology is an obvious barrier to establishment of the deep-water wind industry in Maine or elsewhere in the near term.266 Similarly, a preliminary draft report by the Department of Energy that is in the record (Exhibit 15) raises serious questions regarding the technical feasibility of offshore wind farms as a source of baseload power.267 According to the DOE report, offshore wind power deployment 2009) (ML102930376) (pages 13 and 14 further describe portions of the planned schedule set forth in Ex. 17); Beyond Nuclear Ex. 18, University of Maine, *Deepwater Offshore Wind: A National Opportunity* (Aug. 17, 2010) (ML102930391) (page 30 contains the same chart that comprises Ex. 17, and pages 33, 36, and 37 further describe portions of the planned schedule set forth in Ex. 17).

265 For a contention to be admissible, the sponsoring petitioner must, among other things,

• [p]rovide a concise statement of the alleged facts or expert opinions which support [its] position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which [it] intends to rely to support its position on the issue.* 10 C.F.R. § 2.309(f)(1)(v).

266 Beyond Nuclear Ex. 14, *Final Report of the Maine Ocean Energy Task Force to Governor John E. Baldacci* (Dec. 2009), at 27 (ML102930365). See also, e.g., id. at iv (*the technology to economically harness off-shore winds in deep water (greater than 60 meters) does not exist today.*), 28-29 (listing technological (and financial) hurdles facing wind power).

267 Beyond Nuclear Ex. 15, *Creating an Offshore Wind Industry in the United States: A Strategic Work Plan for the United States Department of Energy, Fiscal Years 2011-2015*

(Predecisional Draft) (Sep. 2, 2010), at 7-8 (ML102930374).

Case: 12-1561 Document: 00116418893 Page: 135 Date Filed: 08/16/2012 Entry ID: 5666489 Page 60 of 134 still faces significant challenges regarding resource characterization, infrastructure, and grid interconnection and operation.268 The DOE report states that offshore wind power needs to overcome significant uncertainties related to both potential project power production and the design of turbines and arrays.269 The implications for adding large amounts of offshore wind generation to the power system are, says DOE, still not well-understood and, as a consequence, reliable integration cannot be assured.270 DOE concludes that, *with current technology, cost-effective installation of offshore wind turbines requires specialized turbine installation vessels, purpose-built portside infrastructure for installation, operations, and maintenance, and robust undersea electricity transmission lines and grid interconnections [none of which] . . . currently exist in the U.S. . . .*271 The DOE report further states that very little site-specific data are available on the external conditions that influence design requirements and energy production, and that the paucity of documentation regarding factors such as *wind resource[, . . . ] wave action and seabed mechanics* currently precludes *accurate marine spatial planning [and] establishment of prioritized offshore wind zones . . . .*272 Ultimately, the DOE Report concludes that *[l]ong-term gigawatt deployment of offshore wind energy in the United States cannot exist within the current

[regulatory] landscape* and, further, that *key market, social and environmental risks are not 268 Id. at 7.

269 Id.

270 Id.

271 Id. at 7-8. See also Beyond Nuclear Ex. 19 at 57 (*Today*s European shallow-water technology is still too expensive and too difficult to site in U.S. waters. . . . [N]ecessary technologies have yet to be developed . . . .*); Beyond Nuclear Ex. 21 at 4-6 (addressing current technological challenges), 72 (addressing technological immaturity).

272 Beyond Nuclear Ex. 15 at 14.

Case: 12-1561 Document: 00116418893 Page: 136 Date Filed: 08/16/2012 Entry ID: 5666489 Page 61 of 134 well-understood; offshore wind resources are poorly characterized; and essential transmission, supply chain, installation and maintenance infrastructure does not yet exist.*273 Beyond Nuclear*s Exhibits 14 and 15 thus do not support its arguments regarding the technical feasibility that would be needed to show a genuine dispute regarding offshore wind power as a reasonable alternative to license renewal.

For all these reasons, we conclude that Beyond Nuclear*s contention, and the record-at-large, provide insufficient support for the Board*s statement that *[a]llegedly, some* of Beyond Nuclear*s *supporting references show that an integrated system of offshore wind farms could be a viable source of baseload power in the region as early as 2015.*274 To the contrary, the record demonstrates that Beyond Nuclear has failed to raise a genuine dispute regarding whether offshore wind farms are a technically feasible source of baseload power today, or whether they will become so in the near future.

(3) NO DISPUTED QUESTION AS TO WHETHER WIND FARMS ARE *SINGLE, DISCRETE ELECTRIC GENERATION SOURCES* UNDER THE GEIS Finally, NextEra argues on appeal that the Board erred in concluding that a disputed question of fact existed as to whether wind farms that combine with other wind farms to create an interconnected network would constitute a *single, discrete electric generation source* as specified in the GEIS.275 As NextEra correctly points out, Beyond Nuclear does not make this argument.276 The Board therefore committed legal error by supplying a basis not argued by 273 Id. at 10.

274 LBP-11-2, 73 NRC at __ (slip op. at 25) (footnote omitted).

275 NextEra Appeal II at 8, 20-21 (emphasis added). See also LBP-11-2, 73 NRC at __ (slip op.

at 25-26); License Renewal GEIS, Vol. 1, § 8.1, at 8-1.

276 NextEra Appeal II at 5 n.8. Indeed, Beyond Nuclear*s own Exhibit 17 would appear to undermine such an argument. See, e.g., Beyond Nuclear Ex. 17, at Phase 5 (indicating that each of the University of Maine*s planned wind farms would cover 64 square miles of ocean surface, and that there would be four to eight such farms).

Case: 12-1561 Document: 00116418893 Page: 137 Date Filed: 08/16/2012 Entry ID: 5666489 Page 62 of 134 Beyond Nuclear, although we consider that error to be harmless, given that the GEIS does not impose a requirement on the alternatives analysis.277 One last matter bears mention. On April 18, 2011, Friends/NEC and Beyond Nuclear, filed in this proceeding a petition requesting, among other things, that we suspend *all decisions* regarding the issuance of renewed licenses, pending completion of several actions associated with the recent nuclear events in Japan.278 We granted the requests for relief in part, and denied them in part.279 In particular, we declined to suspend this or any other adjudication, or any final licensing decisions, finding no imminent risk to public health and safety, or to common defense and security. The agency continues to evaluate the implications of the events in Japan for U.S. facilities, as well as to consider actions that may be taken as a result of lessons learned in light of those events. Particularly with regard to license renewal, we stated that *[t]he NRC*s ongoing regulatory and oversight processes provide reasonable assurance that each facility complies with its *current licensing basis,* which can be adjusted by future 277 See USEC, CLI-06-10, 63 NRC at 457 (*it is not up to the boards to search through pleadings or other materials to uncover arguments and support never advanced by the petitioners themselves; boards may not simply infer unarticulated bases of contentions.*)

(footnote and internal quotation marks omitted). See generally Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998) (*A contention*s proponent, not the licensing board, is responsible for formulating the contention and providing the necessary information to satisfy the basis requirement for the admission of contentions . . . .*).

278 See generally Emergency Petition to Suspend All Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (dated Apr. 14-18, 2011; served and docketed Apr. 15, 2011; corrected petition filed Apr. 18, 2011); Declaration of Dr. Arjun Makhijani in Support of Emergency Petition to Suspend all Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned From Fukushima Daiichi Nuclear Power Station Accident (dated Apr. 19, 2011; filed Apr. 19, 2011; docketed Apr. 20, 2011).

279 See generally Union Electric Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC __ (Sept. 9, 2011) (slip op.).

Case: 12-1561 Document: 00116418893 Page: 138 Date Filed: 08/16/2012 Entry ID: 5666489 Page 63 of 134 Commission order or by modification to the facility*s operating license outside the renewal proceeding (perhaps even in parallel with the ongoing license renewal review).*280 IV. CONCLUSION For the reasons discussed above, we reverse LBP-11-2 in part, and affirm it in part.

IT IS SO ORDERED.

For the Commission

[NRC Seal]

/RA/

Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 8th day of March, 2012 280 Id. at __ (slip op. at 26).

Case: 12-1561 Document: 00116418893 Page: 139 Date Filed: 08/16/2012 Entry ID: 5666489 Page 64 of 134 Commissioners Svinicki and Apostolakis, Dissenting in Part We respectfully dissent with regard to the admissibility of Friends/NEC Contention 4B.

The majority itself acknowledges that this challenge by Friends/NEC to the use of the MAAP-generated release fractions in the Seabrook SAMA analysis *rests on a thin reed.* Indeed, the majority*s discussion renders it unnecessary for us to elaborate further on the deficiencies of the contention. In our view, Friends/NEC did not present the minimal factual or expert support necessary to demonstrate the existence of a genuine material dispute with the application. We do not expect our adjudicatory boards to arbitrate factual disputes at the contention admissibility stage, but admitting such an ill-defined and poorly-support contention undermines the very purposes of our contention admissibility rules.1 Contention 4B provides no basis on which a hearing would be meaningfully focused. Since the contention does not meet our rules on admissibility, we conclude that the Board erred in admitting Contention 4B.

1 See supra p. 7.

Case: 12-1561 Document: 00116418893 Page: 140 Date Filed: 08/16/2012 Entry ID: 5666489 Page 65 of 134 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

NEXTERA ENERGY SEABROOK, LLC ) DOCKET NO. 50-443-LR (Seabrook Station, Unit 1) )

)

(License Renewal) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-12-05) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop: O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Catherine Kanatas Administrative Judge catherine.kanatas@nrc.gov Paul S. Ryerson, Chair Brian Newell, Paralegal paul.ryerson@nrc.gov brian.newell@nrc.gov David Roth, Esq.

Administrative Judge david.roth@nrc.gov Michael F. Kennedy Maxwell Smith, Esq.

michael.kennedy@nrc.gov maxwell.smith@nrc.gov Mary Spencer, Esq.

Administrative Judge mary.baty@nrc.gov Richard E. Wardwell Edward Williamson, Esq.

richard.wardwell@nrc.gov elw2@nrc.gov OGC Mail Center Anthony C. Eitreim, Esq. OGCMailCenter@nrc.gov Chief Counsel ace1@nrc.gov Anne Siarnacki, Law Clerk anne.siarnacki@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16C1 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 ocaamail@nrc.gov Hearing Docket hearingdocket@nrc.gov

Case: 12-1561 Document: 00116418893 Page: 141 Date Filed: 08/16/2012 Entry ID: 5666489 Page 66 of 134 NEXTERA ENERGY SEABROOK, LLC (Seabrook Station Unit 1)

• Docket No. 50-443-LR COMMISSION MEMORANDUM AND ORDER (CLI-12-05)

NextEra Energy Seabrook, LLC Beyond Nuclear 801 Pennsylvania Avenue, N.W., #220 6930 Carroll Avenue, Suite 400 Washington, DC 20004 Takoma Park, MD 20912 Steven C. Hamrick, Esq. Paul Gunter, Director, Reactor Oversight Project steven.hamrick@fpl.com paul@beyondnuclear.org NextEra Energy Seabrook, LLC New Hampshire Sierra Club 700 Universe Boulevard 40 N. Main Street Juno Beach, FL 33408 Concord, NH 03870 William Blair, Esq. Kurt Ehrenberg, Field Organizer william.blair@fpl.com kurtehrenberg@gmail.com James Petro, Esq.

james.petro@fpl.com Seacoast Anti-Pollution League Mitchell S. Ross, Esq. P.O. Box 1136 mitch.ross@fpl.com Portsmouth, NH 03802 Kim Bartels, Sr. Paralegal Doug Bogen, Executive Director kim.bartels@fpl.com dbogen@metrocast.net Counsel for the Applicant State of New Hampshire Pillsbury Winthrop Shaw Pittman, LLP Office of the Attorney General 2300 N Street, N.W. 33 Capitol Street Washington, DC 20037-1122 Concord, NH 03301 David R. Lewis, Esq. K. Allen Brooks, Assistant Attorney General david.lewis@pillsburylaw.com k.allen.brooks@doj.nh.gov Michael A. Delaney, Attorney General michael.a.delaney@doj.nh.gov Friends of the Coast and Peter Roth, Assistant Attorney General New England Coalition (NEC) peter.roth@doj.nh.gov Post Office Box 98 Edgecomb, ME 04556 State of Massachusetts Raymond Shadis, Pro Se Representative Office of the Attorney General shadis@prexar.com Environmental Protection Division One Ashburton Place, 18th Floor Boston, MA 02108 Matthew Brock, Assistant Attorney General matthew.brock@state.ma.us Jennifer Faillace, Paralegal jennifer.faillace@state.ma.us

[Original signed by Evangeline S. Ngbea ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 8th day of March 2012 2

Case: 12-1561 Document: 00116418893 Page: 142 Date Filed: 08/16/2012 Entry ID: 5666489 Page 67 of 134 LBP-11-02 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Paul S. Ryerson, Chairman Dr. Michael F. Kennedy Dr. Richard E. Wardwell In the Matter of Docket No. 50-443-LR NEXTERA ENERGY SEABROOK, LLC ASLBP No. 10-906-02-LR-BD01 (Seabrook Station, Unit 1) February 15, 2011 MEMORANDUM AND ORDER (Ruling on Petitions for Intervention and Requests for Hearing)

Case: 12-1561 Document: 00116418893 Page: 143 Date Filed: 08/16/2012 Entry ID: 5666489 Page 68 of 134 TABLE OF CONTENTS I. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Timeliness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Supplemental Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Beyond Nuclear Petitioners Have Demonstrated Representational Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Friends/NEC Have Demonstrated Representational Standing. . . . . . . . . D. Contention Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Mootness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Beyond Nuclear Contention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Friends/NEC Contention 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Friends/NEC Contention 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Friends/NEC Contention 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Friends/NEC Contention 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Materiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Friends/NEC Contention 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Friends/NEC Contention 4B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i. SAMA Analysis of the Risks from Spent Fuel Pools (SFP)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii. Source Terms Used in NextEra SAMA Analysis . . . . . . . . iii. Summary of Ruling on Contention 4B . . . . . . . . . . . . . . . d. Friends/NEC Contention 4C . . . . . . . . . . . . . . . . . . . . . . . . . . . . e. Friends/NEC Contention 4D . . . . . . . . . . . . . . . . . . . . . . . . . . . . f. Friends/NEC Contention 4E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i. Decontamination and Clean Up Costs . . . . . . . . . . . . . . . . ii. Health Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii. Other Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . g. Friends/NEC Contention 4F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Additional Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E. Ruling on Petitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F. Hearing Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. ORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Case: 12-1561 Document: 00116418893 Page: 144 Date Filed: 08/16/2012 Entry ID: 5666489 Page 69 of 134 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Paul S. Ryerson, Chairman Dr. Michael F. Kennedy Dr. Richard E. Wardwell In the Matter of Docket No. 50-443-LR NEXTERA ENERGY SEABROOK, LLC ASLBP No. 10-906-02-LR-BD01 (Seabrook Station, Unit 1) February 15, 2011 MEMORANDUM AND ORDER (Ruling on Petitions for Intervention and Requests for Hearing)

Before the Board are two petitions to intervene and requests for a hearing concerning the application (Application) of NextEra Energy Seabrook, LLC (NextEra or Applicant) to renew the operating license for Seabrook Station, Unit 1 (Seabrook), a nuclear power reactor located in Rockingham County, New Hampshire. Beyond Nuclear, the Seacoast Anti-Pollution League, and the New Hampshire Sierra Club (collectively, the Beyond Nuclear petitioners) jointly filed a petition proffering one contention. Friends of the Coast and the New England Coalition (collectively, Friends/NEC) jointly filed a second petition proffering four contentions.1 NextEra and the NRC Staff contend that every proffered contention is inadmissible on one or more grounds. NextEra also contends that Friends/NEC have failed to demonstrate standing.

The Board concludes that each of the five petitioners has demonstrated standing and that the sole contention proffered by the Beyond Nuclear petitioners, as well as three of the four 1

Friends/NEC Contention 4 contains six subparts, which the Board addresses individually.

Case: 12-1561 Document: 00116418893 Page: 145 Date Filed: 08/16/2012 Entry ID: 5666489 Page 70 of 134 contentions proffered by Friends/NEC, are admissible, in whole or in part, pursuant to 10 C.F.R.

§ 2.309(f). In accordance with 10 C.F.R. § 2.309(a), we therefore grant the petitions and admit each petitioner as a party to this proceeding. As limited by the Board, the admitted contentions will be heard under the procedures set forth at 10 C.F.R. Part 2, Subpart L.

I. BACKGROUND On May 25, 2010, the NRC received an application from NextEra to renew the Seabrook operating license, which expires on March 15, 2030.2 The NRC published notice in the Federal Register on July 21, 2010 that the NRC Staff would review the Application and that persons whose interests might be affected by the proposed license renewal would have until September 20, 2010 to request a hearing or to petition to intervene in the proceeding.3 At the petitioners*

request,4 the Secretary to the Commission subsequently extended the filing period by thirty days to October 20, 2010.5 On October 20, the Beyond Nuclear petitioners timely filed their petition, which proffers one contention alleging that the Application*s environmental report (ER) fails to consider 2

NextEra Energy Seabrook, LLC; Notice of Receipt and Availability of Application for Renewal of Seabrook Station, Unit 1 Facility Operating License No. NPF-86 for an Additional 20-Year Period, 75 Fed. Reg. 34,180 (June 16, 2010).

3 Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License No. NPF-86 for an Additional 20-Year Period; Nextera Energy Seabrook, LLC; Seabrook Station, Unit 1, 75 Fed. Reg. 42,462, 42,462-63 (July 21, 2010).

4 Beyond Nuclear Reply in Support of the New Hampshire Office of Attorney General Request for a Ninety (90) Day Extension of Time to File Petition For Leave to Intervene (Sept. 14, 2010) at 4; Friends of the Coast and New England Coalition*s Answer to New Hampshire Attorney General*s Request for Extension (Sept. 15, 2010) at 1; New Hampshire Sierra Club Request for an Extension for Filing Petition for Leave to Intervene and Request for Public Hearing (Sept. 17, 2010) at 2; Seacoast Anti-Pollution League Request for an Extension in the Filing of the Request for Public Hearing and Petition to Intervene (Sept. 17, 2010) at 2.

5 Order of the Secretary (Sept. 17, 2010); Order of the Secretary (Sept. 20, 2010).

Case: 12-1561 Document: 00116418893 Page: 146 Date Filed: 08/16/2012 Entry ID: 5666489 Page 71 of 134 adequately, as a reasonable alternative source of baseload power, an allegedly environmentally superior system of renewable energy $ in particular, interconnected offshore wind farms.6 Friends/NEC jointly submitted their petition by email and electronic filing on October 21.7 The petition contains three safety-related contentions concerning management of aging plant systems, structures, and components, and one six-part contention regarding severe accident mitigation analysis (SAMA).8 On October 22, Friends/NEC requested the petition filing period be extended by one day to include October 21.9 On October 29, 2010, NextEra filed with the NRC a supplement to its Application, which reflected amendments to two aging management programs.10 6

Beyond Nuclear, Seacoast Anti-Pollution League and New Hampshire Sierra Club Request for Public Hearing and Petition To Intervene (Oct. 20, 2010) at 6, 11-12, 21, 23, 33 [hereinafter Beyond Nuclear Petition].

7 Email from Raymond Shadis, Pro Se Representative for Friends of the Coast/New England Coalition, to Seabrook service list (Oct. 21, 2010); Friends of the Coast and New England Coalition Petition for Leave to Intervene, Request for Hearing, and Admission of Contentions (Oct. 21, 2010) [hereinafter Friends/NEC Petition].

8 Friends/NEC Petition at 10-11, 20, 22-23, 33-34.

9 Friends of the Coast/New England Coalition%s Request for Extension of Time (Oct. 22, 2010)

[hereinafter Friends/NEC Petition Extension Request].

10 See NextEra Energy Seabrook, LLC%s Answer Opposing the Petition to Intervene and Request for Hearing of Friends of the Coast and the New England Coalition (Nov. 15, 2010)

[hereinafter NextEra Answer to Friends/NEC Petition], Attach. 1, Letter from Paul O. Freeman, Site Vice President of NextEra Energy Seabrook, LLC, to NRC Document Control Desk at 1 (Oct. 29, 2010).

Case: 12-1561 Document: 00116418893 Page: 147 Date Filed: 08/16/2012 Entry ID: 5666489 Page 72 of 134 On November 15, 2010, NextEra and the NRC Staff filed timely answers to the petitions.11 The Beyond Nuclear petitioners timely replied on November 22, 2010.12 Friends/NEC submitted a reply at 12:10 am on November 23, 2010.13 Before noon on the same day, Friends/NEC submitted a revised reply and requested a one-day extension of the reply filing period to include November 23.14 The Board heard oral argument on the petitions in Portsmouth, New Hampshire on November 30, 2010.15 At that time, the Board allowed Friends/NEC seven days to submit a revised declaration from Mr. Paul Blanch and allowed the other parties seven additional days to object to that submission.16 On December 6, 2010, Friends/NEC submitted a revised Blanch declaration, an NRC information notice concerning electrical cables, and a document titled *Supplement to 11 NextEra Energy Seabrook, LLC*s Answer Opposing the Petition to Intervene and Request for Hearing of Beyond Nuclear, Seacoast Anti-Pollution League, and New Hampshire Sierra Club (Nov. 15, 2010) [hereinafter NextEra Answer to Beyond Nuclear Petition]; NextEra Answer to Friends/NEC Petition at 26-28; NRC Staff*s Answer to Petitions to Intervene and Requests for Hearing Filed by (1) Friends of the Coast and New England Coalition and (2) Beyond Nuclear, Seacoast Anti-Pollution League, and New Hampshire Sierra Club (Nov. 15, 2010) [hereinafter NRC Staff Answer].

12 Combined Reply of Joint Petitioners (Beyond Nuclear, Seacoast Anti-Pollution League and New Hampshire Sierra Club) to Answers of NextEra Energy Seabrook, LLC and the United States Nuclear Regulatory Commission (Nov. 22, 2010) [hereinafter Beyond Nuclear Reply].

13 Friends of the Coast and New England Coalition Reply to NextEra and NRC Staff Answers to Friends of the Coast and New England Coalition Petition for Leave to Intervene, Request for Hearing, and Admission of Contentions (submitted Nov. 23, 2010) [hereinafter Friends/NEC Initial Reply].

14 Friends of the Coast and New England Coalition Reply to NextEra and NRC Staff Answers to Friends of the Coast and New England Coalition Petition for Leave to Intervene, Request for Hearing, and Admission of Contentions (submitted Nov. 23, 2010) [hereinafter Friends/NEC Revised Reply]; Friends of the Coast/New England Coalition*s Request for Extension of Time (Nov. 23, 2010) [hereinafter Friends/NEC Reply Extension Request].

15 Tr. at 1, 8.

16 Tr. at 68.

Case: 12-1561 Document: 00116418893 Page: 148 Date Filed: 08/16/2012 Entry ID: 5666489 Page 73 of 134

[Friends/NEC Petition]

• Errors and Corrections and New Information.*17 NextEra and the NRC Staff filed objections to Friends/NEC*s submittals on December 13.18 On December 20 Friends/NEC moved for leave to reply to NextEra and the NRC Staff*s objections and simultaneously filed the reply.19 NextEra and the NRC Staff filed oppositions to Friends/NEC*s motion for leave to reply on December 22.20 On January 14, 2011, NextEra submitted a letter to the Board, transmitting new information purportedly relevant to the admission of contentions.21 On January 24, Friends/NEC filed an objection to NextEra*s letter.22 The NRC Staff filed a response to Friends/NEC*s objection on January 28, 2011.23 17 Declaration of Paul Blanch (Dec. 6, 2010); NRC Information Notice 20 10-26: Submerged Electrical Cables (Dec. 2, 2010); Supplement To Friends Of The Coast And New England Coalition Petition For Leave To Intervene, Request For Hearing, And Admission Of Contentions

• Errors And Corrections And New Information (Dec. 6, 2010) [hereinafter Friends/NEC Supplement

• Errors and Corrections and New Information].

18 NextEra Energy Seabrook, LLC*s Response Opposing NEC/Friends of the Coast*s Supplement to Its Petition (Dec. 13, 2010) [hereinafter NextEra Objections to Supplement]; NRC Staff*s Objections to the Friends of the Coast and New England Coalition*s Supplement (Dec.

13, 2010) [hereinafter NRC Staff Objections to Supplement].

19 Motion by Friends of the Coast and New England Coalition for Leave to Reply to NRC Staff Objections; NextEra Energy Seabrook, LLC. Response in Opposition to the Friends of the Coast and New England Coalition Supplement to Its Petition (Dec. 20, 2010) [hereinafter Friends/NEC Motion to Reply]; Friends of the Coast and New England Coalition*s Reply to NRC Staff Objections; and NextEra Energy Seabrook, LLC. Response in Opposition to the Friends of the Coast and New England Coalition*s Supplement to Its Petition (Dec. 20, 2010) [hereinafter Friends/NEC Reply to Objections].

20 NextEra Energy Seabrook, LLC*s Answer to NEC/Friends of the Coast*s Motion for Leave to File a Reply (Dec. 22, 2010) [hereinafter NextEra Opposition to Reply]; NRC Staff*s Response in Opposition to Friends of the Coast and New England Coalition*s Motion for Leave to Reply (Dec. 22, 2010) [hereinafter NRC Staff Opposition to Reply].

21 Letter from Steven Hamrick, NextEra Energy Seabrook, to Licensing Board (Jan. 14, 2011).

22 Friends of the Coast and New England Coalition*s Objection to NextEra Energy Seabrook, LLC.*s January 14, 2011 Letter Filing of Purported Material New Information (Jan. 24, 2011).

23 NRC Staff*s Response to the Friends of the Coast and New England Coalition*s Objection (Jan. 28, 2011).

Case: 12-1561 Document: 00116418893 Page: 149 Date Filed: 08/16/2012 Entry ID: 5666489 Page 74 of 134 II. ANALYSIS To intervene as a party in an adjudicatory proceeding addressing a proposed license action, a petitioner must (1) establish it has standing; and (2) proffer at least one admissible contention.24 Before analyzing standing and contention admissibility, we first address the timeliness of Friends/NEC*s petition and other filings.

A. Timeliness NextEra contends that Friends/NEC*s petition is untimely because it was not filed on or before October 20, 2010.25 Friends/NEC emailed their petition to the NRC and NextEra fourteen minutes after the filing period ended.26 In the email, Friends/NEC explained they had attempted without success to file the petition electronically for two hours before the midnight deadline and would communicate with the NRC the following day during business hours to determine how to proceed.27 Friends/NEC electronically filed the petition early the next afternoon. On October 22 Friends/NEC moved to extend the filing period by one day to include October 21.28 NextEra did not file any objection to the extension request, and Friends/NEC assert that the NRC Staff did not oppose their request when consulted.29 NextEra does challenge the timeliness of Friends/NEC*s petition in its answer.30 24 10 C.F.R § 2.309(a).

25 NextEra Answer to Friends/NEC Petition at 3-4.

26 Email from Raymond Shadis, Pro Se Representative for Friends/NEC, to Seabrook service list (Oct. 21, 2010).

27 Id.

28 Friends/NEC Petition Extension Request at 1.

29 Id. at 3.

30 NextEra Answer to Friends/NEC Petition at 3-4.

Case: 12-1561 Document: 00116418893 Page: 150 Date Filed: 08/16/2012 Entry ID: 5666489 Page 75 of 134 To determine whether Friends/NEC*s late-filed petition will be considered in this proceeding, we must balance the eight factors set out in 10 C.F.R. § 2.309(c)(1), of which "good cause . . . for the failure to file on time* is the most important.31 We are also mindful of the Commission*s direction that, although pro se litigants are expected to comply with its procedural rules, they are generally extended some latitude.32 NextEra contends that Friends/NEC have not addressed the eight relevant factors as required by 10 C.F.R. § 2.309(c)(2).33 However, Friends/NEC explain in their extension request that their failure to file on time was caused by persistent difficulties with the NRC electronic filing system despite their good faith efforts.34 We are satisfied that Friends/NEC have shown good cause for submitting their petition shortly after the deadline, especially in light of their having served all parties by email just minutes after midnight. We therefore grant Friends/NEC*s request and accept their petition.35 No other party having objected, we also grant Friends/NEC*s request for an extension of time in which to file its reply.

B. Supplemental Filings NRC regulations provide for petitions, answers and replies unless otherwise specified by the Commission or the presiding officer,36 and state: "No other written answers or replies will be 31 Crow Butte Res., Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 549 n.61 (2009) (referring to 10 C.F.R. § 2.309(c)(i)).

32 South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI-10-01, 71 NRC __, __ (slip op. at 5) (Jan. 7, 2010) (citations omitted).

33 NextEra Answer to Friends/NEC Petition at 4.

34 Friends/NEC Petition Extension Request at 1-2.

35 As we did at oral argument, however, we again caution petitioners that late filings burden the other parties and the Board. Tr. at 60.

36 10 C.F.R. § 2.309(h).

Case: 12-1561 Document: 00116418893 Page: 151 Date Filed: 08/16/2012 Entry ID: 5666489 Page 76 of 134 entertained.*37 At oral argument the Board identified numerous typographical errors in the sworn declaration of Mr. Blanch that accompanied Friends/NEC"s original submission, and stated that we would allow Friends/NEC seven days in which to file a corrected version.38 The Board also ruled that we would permit the Applicant and the NRC Staff, within a further seven-day period, to object to any changes that they viewed as beyond the Board"s intent or that unfairly introduced new arguments.39 We stated: *[I]t is not the Board"s intent to encourage the filing of a declaration that presents new arguments, [or] new issues . . . .*40 Unfortunately, the Board"s largess precipitated the filing of more than 150 pages of corrections, objections to corrections, responses to the objections, and objections to the responses.41 Although some of Friends/NEC"s numerous corrections appear to be of the sort the Board expected, others

• such as bolstering the description of Mr. Blanch"s credentials to opine concerning subjects on which his expertise had been questioned during oral argument42

• clearly go further. In the circumstances, the Board will not try to parse through which of Friends/NEC"s changes constitute authorized corrections and which improperly go beyond what the Board intended.

37 Id. § 2.309(h)(3).

38 Tr. at 69-70.

39 Id.

40 Id. at 70.

41 Declaration of Paul Blanch (Dec. 6, 2010); NRC Information Notice 20 10-26: Submerged Electrical Cables (Dec. 2, 2010); Friends/NEC Supplement % Errors and Corrections and New Information; NextEra Objections to Supplement; NRC Staff Objections to Supplement; Friends/NEC Motion to Reply; Friends/NEC Reply to Objections; NextEra Opposition to Reply; NRC Staff Opposition to Reply.

42 Compare Tr. at 125 with Friends/NEC Supplement % Errors and Corrections and New Information at 3-4.

Case: 12-1561 Document: 00116418893 Page: 152 Date Filed: 08/16/2012 Entry ID: 5666489 Page 77 of 134 Accordingly, in ruling on Friends/NEC*s petition, we have not considered or relied upon their submissions subsequent to their original petition and reply. We do draw reasonable inferences where their original filings contain obvious typographical errors.

C. Standing Friends/NEC and the Beyond Nuclear petitioners assert they have standing to intervene as representatives of their members living in the vicinity of Seabrook.43 An organization may represent the interests of its members using representational standing if it can: (1) show that the interests it seeks to protect are germane to its own purpose; (2) identify, by name and address, at least one member who qualifies for standing in his or her own right; (3) show that it is authorized by that member to request a hearing on his or her behalf; and (4) show that neither the claim asserted nor the relief requested requires an individual member*s participation in the organization*s legal action.44 As to whether an individual member of a petitioning organization qualifies for standing in his or her own right, traditional judicial standing concepts require a showing that the individual has suffered or might suffer a concrete and particularized injury that is (1) fairly traceable to the challenged action; (2) likely redressible by a favorable decision;45 and (3) arguably within the 43 Friends/NEC Petition at 2; Beyond Nuclear Petition at 5.

44 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 409 (2007)

(citations omitted); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) ("An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization*s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit* (citing Hunt v. Washington State Apple Advertising Comm*n, 432 U.S. 333, 343 (1977))).

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

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

Case: 12-1561 Document: 00116418893 Page: 153 Date Filed: 08/16/2012 Entry ID: 5666489 Page 78 of 134 zone of interests protected by the governing statutes46

• here the Atomic Energy Act (AEA)47 and the National Environmental Policy Act (NEPA).48 Although the NRC applies these traditional standing concepts,49 in proceedings such as this it presumes that an individual has standing to intervene without the need to address them upon a showing that he or she lives within, or otherwise has frequent contacts with, a geographic zone of potential harm.50 The pertinent zone in operating license renewal proceedings and other power reactor license matters is the area within a 50-mile radius of the site.51 The Commission also directs us to

• construe the petition in favor of the petitioner* in determining whether a petitioner has demonstrated standing.52 46 Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329 (1989) (quoting Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI 25, 18 NRC 327, 332 (1983)).

47 42 U.S.C. §§ 2011-2297.

48 Id. §§ 4321-4347.

49 Georgia Tech., CLI-95-12, 42 NRC at 115 (citing Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 92 (1993)); St. Lucie, CLI-89-21, 30 NRC at 329; see also 10 C.F.R. § 2.309(d)(1) (requiring that petition state the petitioner*s right under the Atomic Energy Act to be a party, the petitioner*s interest in the proceeding, and the possible effect of a decision on the petitioner*s interests).

50 St. Lucie, CLI-89-21, 30 NRC at 329.

51 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 917 (2009) (explaining the presumption*s rationale is, *in construction permit and operating license cases, that persons living within the roughly 50-mile radius of the facility "face a realistic threat of harm* if a release from the facility of radioactive material were to occur*

(citation omitted)).

52 Georgia Tech., CLI-95-12, 42 NRC at 115.

Case: 12-1561 Document: 00116418893 Page: 154 Date Filed: 08/16/2012 Entry ID: 5666489 Page 79 of 134

1. The Beyond Nuclear Petitioners Have Demonstrated Representational Standing.

Although neither NextEra nor the NRC Staff objects to the Beyond Nuclear petitioners*

representational standing,53 we have an independent obligation to determine whether they have adequately demonstrated standing.54 The Seacoast Anti-Pollution League asserts it is "a not-for-profit organization based in Portsmouth, New Hampshire that has worked since 1969 to protect the health, safety and general well-being of the New Hampshire Seacoast community from nuclear pollution and other threats to the environment.*55 The New Hampshire Sierra Club asserts it is "a not-for-profit organization based in Concord, NH* working "to protect . . .

environmental quality, and working for a clean renewable energy future.*56 Beyond Nuclear asserts it is "a not-for-profit organization,* and we infer from its name that the organization is concerned about nuclear issues.57 The injury to their members on which the Beyond Nuclear petitioners base their claim to representational standing is the risk that extended operation of the plant may "pose an undue and unacceptable risk to the environment and jeopardize the health, safety and welfare of [their]

members who live, recreate and conduct their business* nearby.58 To demonstrate this injury, 53 NextEra Answer to Beyond Nuclear Petition at 3 n.1; NRC Staff Answer at 8.

54 10 C.F.R. § 2.309(d)(3); see also Virginia Elec. & Power Co. (North Anna Power Station, Unit 3), LBP-08-15, 68 NRC 294, 303 (2008) (noting that although "[n]either the Applicant nor the NRC Staff challenges [the petitioner*s] standing,* the board must "make [its] own determination whether [the petitioner] has satisfied standing requirements*).

55 Beyond Nuclear Petition at 4.

56 Id. at 4-5.

57 Id. at 4.

58 Id. at 5.

Case: 12-1561 Document: 00116418893 Page: 155 Date Filed: 08/16/2012 Entry ID: 5666489 Page 80 of 134 the organizations have submitted sworn declarations from two Beyond Nuclear members,59 one New Hampshire Sierra Club member,60 and seven Seacoast Anti-Pollution League members61 who all acknowledge their membership and state that their interests will not be adequately represented unless their respective organizations participate in this proceeding on their behalf, impliedly authorizing the organizations to represent them.62 All of these declarants provide home addresses within thirty miles of the site and state their concern that the plant*s extended operation may "pose an unacceptable risk to the environment and . . . public health and safety.*63 Beyond Nuclear, the New Hampshire Sierra Club, and the Seacoast Anti-Pollution League*s individual declarants have established standing to intervene in their own right and have authorized the organizations to represent their interests. Accordingly, each organization has demonstrated representational standing.

2. Friends/NEC Have Demonstrated Representational Standing.

Friends/NEC assert they have representational standing on behalf of "members that reside within Seabrook Station*s affected vicinity and whose particular interests are directly 59 Declaration of Christopher Nord (dated Oct. 16, 2010; submitted Oct. 20, 2010); Declaration of Kristie A. Conrad (dated Sept. 12, 2010; submitted Oct. 20, 2010) [collectively, hereinafter Beyond Nuclear Declarations].

60 Declaration of Kurt Ehrenberg (dated Sept. 17, 2010; submitted Oct. 20, 2010).

61 Declaration of Phyllis Killen-Abell (dated Sept. 16, 2010; submitted Oct. 20, 2010);

Declaration of Patricia L. Warren (dated Sept. 16, 2010; submitted Oct. 20, 2010); Declaration of Douglas K. Bogen (dated Sept. 16, 2010; submitted Oct. 20, 2010); Declaration of Herbert S.

Moyer (dated Sept. 16, 2010; submitted Oct. 20, 2010); Declaration of Virginia S. Cole (dated Sept. 16, 2010; submitted Oct. 20, 2010); Declaration of Lee Roberts (dated Sept. 17, 2010; submitted Oct. 20, 2010); Declaration of David Diamond (dated Sept. 16, 2010; submitted Oct.

20, 2010) [collectively, hereinafter Seacoast Anti-Pollution League Declarations].

62 Beyond Nuclear Declarations; Declaration of Kurt Ehrenberg; Seacoast Anti-Pollution League Declarations.

63 Beyond Nuclear Declarations; Declaration of Kurt Ehrenberg; Seacoast Anti-Pollution League Declarations.

Case: 12-1561 Document: 00116418893 Page: 156 Date Filed: 08/16/2012 Entry ID: 5666489 Page 81 of 134 affected by this matter.*64 Friends/NEC also seek discretionary intervention under 10 C.F.R.

§ 2.309(e).65 Although the NRC Staff agrees that Friends/NEC have shown representational standing,66 NextEra contends their petition should be denied for lack of standing because no "valid handwritten or electronic signatures$ appear on the member declarations submitted with it.67 New England Coalition asserts it is "a Vermont not-for-profit corporation$ whose purpose is "to oppose nuclear hazards and advocate for sustainable energy alternatives to nuclear power.$68 Friends of the Coast asserts that it is a "non-profit membership organization$

incorporated in Maine.69 Friends/NEC assert that "oppos[ing] nuclear hazards$ is a purpose Friends of the Coast shares with its co-petitioner.70 On behalf of members living near the facility, Friends/NEC seek to avert the threat of "radiological contamination, evacuation, loss of property, or other harms in the event of any mishap at the plant.$71 Friends/NEC also assert that members "use and enjoy the segment of the New Hampshire, Maine, and Massachusetts seacoast adjacent to Seabrook Station for social activities, work, recreation, and the gathering of natural provender.$72 Friends/NEC submitted declarations with their petition under the name of one New England Coalition 64 Friends/NEC Petition at 3.

65 Id.

66 NRC Staff Answer at 2, 7.

67 NextEra Answer to Friends/NEC at 4-6.

68 Friends/NEC Petition at 2.

69 Id.

70 Id. at 3.

71 Id. at 4.

72 Id.

Case: 12-1561 Document: 00116418893 Page: 157 Date Filed: 08/16/2012 Entry ID: 5666489 Page 82 of 134 member73 and five Friends of the Coast members.74 The declarations submitted with Friends/NEC*s petition state that the declarants live between four and forty miles of Seabrook, enjoy outdoor activities, rely on local produce suppliers and local drinking water supplies, are members of the petitioning entities, and have authorized their respective entities to represent them in this proceeding.75 None of the declarations submitted with Friends/NEC*s petition includes a handwritten signature or digital ID certificate.76 10 C.F.R. § 2.304(d) requires that submitted documents be signed. This subsection allows persons without digital ID certificates to sign electronically by typing "Executed in Accord with 10 C.F.R. § 2.304(d)* or its equivalent on the signature line and including the date of signature and the signatory*s name, capacity, address, phone number, and email address,77 but Friends/NEC and their declarants did not avail themselves of this option.

Instead Friends/NEC offered in their petition*s certificate of service to "promptly provide via First Class U.S. Mail, postage prepaid,* "record hardcopies of declarations bearing hand signatures of and [sic] expert witness and represented members* to the Commission "[s]hould the Commission require it.*78 73 Declaration of Karen Stewart (dated Sept. 29, 2010; submitted Oct. 21, 2010).

74 Declaration of Saudra Gavutis (dated Oct. 18, 2010; submitted Oct. 21, 2010); Declaration of Deborah Breen (dated Oct. 18, 2010; submitted Oct. 21, 2010); Declaration of Deborah Grinnell (dated Oct. 18, 2010; submitted Oct. 21, 2010); Declaration of Diane M. Teed (dated Oct. 12, 2010; submitted Oct. 21, 2010); Declaration of Peter Kellman (dated Sept. 30, 2010; submitted Oct. 21, 2010) [collectively, hereinafter Friends Declarations].

75 Declaration of Karen Stewart; Friends Declarations.

76 Declaration of Karen Stewart; Friends Declarations.

77 10 C.F.R. § 2.304(d)(ii).

78 Certificate of Service (Oct. 21, 2010).

Case: 12-1561 Document: 00116418893 Page: 158 Date Filed: 08/16/2012 Entry ID: 5666489 Page 83 of 134 With their reply memorandum, Friends/NEC resubmitted images of their initial six member declarations scanned so that handwritten signatures are visible.79 Five of the six declarations were hand-signed, but the name of Deborah Breen, purported Friends of the Coast member, was typed in a cursive font instead of hand-signed and was not accompanied by any statement that she had signed pursuant to 10 C.F.R. § 2.304(d)(ii).80 Friends/NEC also submitted a new seventh declaration with their reply without acknowledging that it had not been submitted with their petition.81 Neither NextEra nor the NRC Staff objected to the resubmitted member declarations.

Regardless of whether Deborah Breen*s declaration lacks a valid signature and whether the previously unfiled seventh declaration is untimely, the other five declarations show that individual members of Friends of the Coast and the New England Coalition have standing to intervene in their own right and have authorized the organizations to represent their interests.

Accordingly, each organization has demonstrated representational standing, and we need not reach Friends/NEC*s request for discretionary intervention.

D. Contention Admissibility An admissible contention must: (1) state the specific legal or factual issue sought to be raised; (2) briefly explain the basis for the contention; (3) demonstrate that the issue raised is within the proceeding*s scope; (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; (5) concisely state 79 Declaration of Deborah Grinnell (dated Oct. 18, 2010; submitted Nov. 23, 2010); Declaration of Diane M. Teed (dated Oct. 12, 2010; submitted Nov. 23, 2010); Declaration of Deborah Breen (dated Oct. 18, 2010; submitted Nov. 23, 2010); Declaration of Peter Kellman (dated Sept. 30, 2010; submitted Nov. 23, 2010); Declaration of Sandra Gavutis (dated Oct. 18, 2010; submitted Nov. 23, 2010); Declaration of Karen Stewart (dated Sept. 29, 2010; submitted Nov.

23, 2010) [collectively, hereinafter Resubmitted Friends/NEC Declarations].

80 Resubmitted Friends/NEC Declarations.

81 Declaration of Mary Lampert (dated Sept. 20, 2010, submitted Nov. 23, 2010).

Case: 12-1561 Document: 00116418893 Page: 159 Date Filed: 08/16/2012 Entry ID: 5666489 Page 84 of 134 the alleged facts or expert opinions that support the petitioner*s position and upon which the petitioner intends to rely at the hearing, including references to the specific sources and documents on which the petitioner intends to rely; and (6) show that a genuine dispute exists on a material issue of law or fact by referring to specific portions of the application that the petitioner disputes or, if the application is alleged to be deficient, by identifying such deficiencies and the supporting reasons for this allegation.82 The Commission*s regulations permit admission of a contention only if it meets these requirements because the agency "should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing.*83 "Mere $notice pleading* is insufficient,*84 but a petitioner does not have to prove its contentions at the admissibility stage,85 and we do not adjudicate disputed facts at this juncture.86 The factual support required is "$a minimal showing that material facts are in dispute.**87 The necessary factual support "need not be in affidavit or formal evidentiary form and need not be of the quality necessary to withstand a summary disposition motion.*88 82 10 C.F.R. § 2.309(f)(1)(i)-(vi).

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

84 Fansteel, Inc. (Muskogee, Oklahoma, Site), CLI-03-13, 58 NRC 195, 203 (2003).

85 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004).

86 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-06-22, 64 NRC 229, 244 (2006) (citing Mississippi Power & Light, Co. (Grand Gulf Nuclear Station, Units 1 & 2),

ALAB-130, 6 AEC 423, 426 (1973)).

87 Gulf States Utils. Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 51 (1994) (quoting Final Rule, Rules of Practice for Domestic Licensing Proceedings

• Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989)).

88 Final Rule, Rules of Practice for Domestic Licensing Proceedings

• Procedural Changes in the Hearing Process, 54 Fed. Reg. at 33,171.

Case: 12-1561 Document: 00116418893 Page: 160 Date Filed: 08/16/2012 Entry ID: 5666489 Page 85 of 134 Among the limited issues within the scope of a license renewal proceeding are alternatives for reducing adverse environmental impacts listed as Category 2 issues in appendix B to subpart A of 10 C.F.R. Part 51,89 including cost-effective alternatives for mitigating severe accidents,90 and plans to manage the effects of aging on enumerated functions of certain systems, structures, and components during the period of extended operation.91 Safety issues that are routinely addressed through the agency*s ongoing regulatory oversight are outside the scope of license renewal proceedings because considering them here would be "unnecessary and wasteful.*92 Additionally, "no rule or regulation of the Commission . . . is subject to attack . . . in any adjudicatory proceeding* unless the petitioner first obtains a waiver.93 One such regulation that cannot be challenged is the determination that, for any license renewal of a nuclear power plant, the probability-weighted consequences of a severe accident are small.94 Although a challenge to the generic determination of the environmental impact of a severe accident would be outside the scope of a license renewal proceeding, the Commission*s regulations do not generically determine cost-effective severe accident mitigation alternatives 89 10 C.F.R. §§ 54.29(b), 51.53(c)(3)(iii); NEPA, 42 U.S.C. § 4332(2)(C)(iii).

90 10 C.F.R. §§ 54.29(b), 51.53(c)(2), 51.53(c)(3)(ii)(L).

91 Id. §§ 54.4, 54.29(a)(1).

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

& 2), CLI-02-26, 56 NRC 358, 363-64 (2002) (citation omitted); see also Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 8 (2001)

("For license renewal, the Commission found that it would be unnecessary to include in our review all those issues already monitored, reviewed, and commonly resolved as needed by ongoing regulatory oversight.*).

93 10 C.F.R. § 2.335(a).

94 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1 ("Severe accidents[:] The probability weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to ground water, and societal and economic impacts from severe accidents are small for all plants.*).

Case: 12-1561 Document: 00116418893 Page: 161 Date Filed: 08/16/2012 Entry ID: 5666489 Page 86 of 134 across all plants.95 But the Commission cautioned in Entergy Nuclear Generation Company (Pilgrim Nuclear Power Station) (Pilgrim I) that a SAMA contention is admissible only if *it looks genuinely plausible that inclusion of an additional factor or use of other assumptions or models may change the cost-benefit conclusions for the SAMA candidates evaluated.*96

1. Mootness On October 29, 2010

• after the deadline for filing timely petitions but before the time for answers and replies

• NextEra submitted a supplement to the Application that relates to the subject matter of Friends/NEC Contentions 1 and 3. In their answers, NextEra and the NRC Staff assert that this supplement moots many of petitioners* claims.97 While choosing not to do so, Friends/NEC had the opportunity to address these mootness arguments in their reply or to move to amend their original contentions. The Board therefore considers these mootness arguments in our analysis of Friends/NEC Contention 1. Because we do not admit Friends/NEC Contention 3 for other reasons, we do not address mootness in connection with that contention.

On January 14, 2011

• long after briefing and oral argument were completed

• NextEra submitted a letter supplying the Board with new information that allegedly *has the potential to moot or resolve* some of petitioners* claims relating to SAMA analyses challenged in Friends/NEC Contention 4.98 NextEra properly submitted this information in the belief that *[a]

party to an NRC proceeding is obligated to keep the Board informed of relevant and material new information.*99 95 Id. (*[A]lternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives.* (citing 10 C.F.R. § 51.53(c)(3)(ii)(L))).

96 CLI-10-11, 71 NRC __, __ (slip op. at 39) (Mar. 26, 2010).

97 NextEra Answer to Friends Petition at 41-42, NRC Staff Answer at 19.

98 Letter from Steven Hamrick, NextEra Energy Seabrook, to Licensing Board, supra note 19, at 4.

99 Id. at 1.

Case: 12-1561 Document: 00116418893 Page: 162 Date Filed: 08/16/2012 Entry ID: 5666489 Page 87 of 134 The significance of NextEra*s new information, however, is vigorously disputed by Friends/NEC.100 NextEra does not expressly ask the Board to act upon its new information and, at this stage of the proceeding, such a request should be in the form of a motion. Under 10 C.F.R. § 2.323(b), all motions must include a certification that "the movant has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion, and that the movant*s efforts to resolve the issue(s) have been unsuccessful.*101 Motion practice ensures compliance with the Commission*s preference for an initial attempt at voluntary resolution and, if that is not possible, that claims are presented to the Board with specificity and that participants are given an opportunity to respond. Because NextEra did not comply with 10 C.F.R. § 2.323(b), the Board does not consider the information supplied with NextEra*s January 14, 2011 letter in connection with our analysis of Friends/NEC Contention 4.

2. Beyond Nuclear Contention The Beyond Nuclear petitioners* sole contention states:

The NextEra Environmental Report fails to evaluate the potential for renewable energy to offset the loss of energy production from the Seabrook nuclear power plant and to make the requested license renewal action for 2030 unnecessary. In violation of the requirements of 10 C.F.R. §51.53(c)(3)(iii) and of the GEIS § 8.1, the NextEra Environmental Report (§ 7.2) treats all of the alternatives to license renewal except for natural gas and coal plants as unreasonable and does not provide a substantial analysis of the potential for significant alternatives which are being aggressively planned and developed in the Region of Interest for the requested relicensing period of 2030-2050. The scope of the SEIS is improperly narrow, and the issue of the need for Seabrook as a means of satisfying demand forecasts for the relicensing period must be revisited due to dramatically-changing circumstances in the regional energy mix throughout the two decades preceding the relicensing period.102 100 Friends of the Coast and New England Coalition*s Objection to NextEra Energy Seabrook, LLC.*s January 14, 2011 Letter Filing of Purported Material New Information at 2.

101 10 C.F.R. § 2.323(b).

102 Beyond Nuclear Petition at 6.

Case: 12-1561 Document: 00116418893 Page: 163 Date Filed: 08/16/2012 Entry ID: 5666489 Page 88 of 134 The Beyond Nuclear petitioners acknowledge103 that, in declining to analyze wind power as a reasonable alternative, the Applicant relied104 in part on the NRC*s own generic environmental impact statement (GEIS), which concludes that the technology is "an inappropriate choice for baseload power.*105 As observed by the NRC Staff during oral argument, however, the GEIS is not binding and its conclusion concerning the practicality of wind power has not been revised in the past 15 years.106 In contrast, the Beyond Nuclear petitioners support their contention with 20 exhibits purporting to demonstrate that, within the foreseeable future, an environmentally superior system of interconnected offshore wind farms might provide baseload power in the relevant region and thus should have been evaluated in greater detail in the Applicant*s environmental report. Petitioners cite various examples, including:

a. The Department of Energy*s National Renewable Energy Laboratory has stated that, although large-scale deployment of wind energy is often thought to be limited by its intermittent output, in fact "[w]ind energy systems that combine wind turbine generation with energy storage and long-distance transmission may overcome these obstacles and provide a source of power that is functionally equivalent to a conventional baseload electric power plant.*107 103 Id. at 17.

104 NextEra Energy Seabrook, LLC, Environmental Report - Operating License Renewal Stage Seabrook Station (May 25, 2010) at 7-12 (ADAMS Accession Nos. ML101590092 and ML101590089) [hereinafter ER].

105 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437, Vol. 1, § 8.3.1 (May 1996) [hereinafter GEIS].

106 Tr. at 31-32.

107 Beyond Nuclear Petition, Exh. 3, National Renewable Energy Laboratory, U.S. Department of Energy, Creating Baseload Wind Power Systems Using Advanced Compressed Air Energy Storage Concepts (Oct. 3, 2006).

Case: 12-1561 Document: 00116418893 Page: 164 Date Filed: 08/16/2012 Entry ID: 5666489 Page 89 of 134

b. A manuscript published in Stanford University*s Journal of Applied Meteorology and Climatology has recognized that *[a] solution to improve wind power reliability is interconnected wind power* because, *by linking multiple wind farms together it is possible to improve substantially the overall performance of the interconnected system (i.e., array) when compared with that of any individual wind farm.*108

c. Google corporation has publicly announced its investment in a consortium to build an offshore *backbone transmission project* to stimulate development of East Coast wind farms (a decade before the current Seabrook operating license expires).109 As reported in the Washington Post, *[t]he transmission line would address the problem of wind*s intermittent supply by tapping into a much broader swath of the coast to meet consumer demand.*110

d. By way of a comparative demonstration of the perceived practical importance of wind power and other renewable sources of energy, nine European North Sea nations (Germany, France, Belgium, Denmark, Sweden, Norway, Luxembourg, the United Kingdom, and the Netherlands) were drawing up formal plans as of January 2010 to build a $40 billion undersea energy grid for dedicated transmission of power from such sources.111

e. Worldwide, it has been asserted, wind power might rival or exceed nuclear power as a source of electricity as early as 2014.112 According to the Global Wind Energy Council, installed 108 Beyond Nuclear Petition, Exh. 4, Cristina L. Archer & Mark Z. Jacobson, Supplying Baseload Power and Reducing Transmission Requirements by Interconnecting Wind Farms, 46 J. of Appl.

Meteorol. & Clim. 1701, 1702 (Nov. 2007).

109 Beyond Nuclear Petition, Exh. 5, Juliet Eilperin, Google backs !superhighway* for wind power, Washington Post, Oct. 13, 2010.

110 Id.

111 Beyond Nuclear Petition, Exh. 6, Tali Aaron, European Countries Unite to Invest $40 Billion in Huge Off-Shore Renewable Energy Super-Grid, Buildaroo.com, Jan. 6, 2010.

112 Beyond Nuclear Petition, Exh. 10, Jeremy van Loon, Global Wind Power Capacity May Rival Nuclear Within Four Years, Bloomberg News, Sept. 23, 2010.

Case: 12-1561 Document: 00116418893 Page: 165 Date Filed: 08/16/2012 Entry ID: 5666489 Page 90 of 134 wind capacity will reasonably reach 400 gigawatts by 2014, whereas, according to the World Nuclear Association, current nuclear power capacity is about 376 gigawatts.113

f. Closer to home, a study by researchers at the University of Delaware and Stony Brook University analyzed historical wind data from eleven meteorological stations distributed along the U.S. East Coast, calculated the potential hourly power output at each site, and then simulated a power line connecting the sites.114 Based on these calculations, the study concluded that *[t]he variability of wind power is not as problematic as is often supposed.*115

g. On June 8, 2010, the United States Department of the Interior and ten East Coast states

• four of which (Maine, New Hampshire, Massachusetts and Rhode Island) are within the Applicant*s region of interest

• signed a Memorandum of Understanding to establish the Atlantic Offshore Wind Energy Consortium to promote and to accelerate the development of the

• exceptional wind energy resources off [the] coast.*116 Allegedly, the proposed consortium was publicized months before formal execution of the Memorandum of Understanding and months before NextEra filed its renewal application,117 but is neither discussed nor acknowledged in the Applicant*s environmental report.

Although not all of the Beyond Nuclear petitioners* 20 exhibits directly address the region of interest, we agree that, taken together, they provide the required *minimal* factual support for admitting their contention, and that the contention otherwise satisfies each of the requirements 113 Id.

114 Beyond Nuclear Petition, Exh. 8, Willett Kempton et al., Electric power from offshore wind via synoptic-scale interconnection,* PNAS Early Edition (April 2010) at 1.

115 Id.

116 Beyond Nuclear Petition, Exh. 13, Salazar Signs Agreement with 10 East Coast Governors to Establish Atlantic Offshore Wind Energy Consortium, Press Release, Department of Interior (June 8, 2010).

117 Id.

Case: 12-1561 Document: 00116418893 Page: 166 Date Filed: 08/16/2012 Entry ID: 5666489 Page 91 of 134 of 10 C.F.R. § 2.309(f)(1). The arguments against admissibility advanced by the Applicant and by the NRC Staff are not persuasive.

First, in challenging admissibility, the Applicant and the Staff conflate the merits of the contention with the adequacy of its pleading. The Applicant correctly points out that

• [a]lternatives that are not reasonable can be eliminated from further study*118 and argues that

• petitioners have not demonstrated that baseload wind generation is a reasonable alternative.*119 But whether an interconnected system of offshore wind farms constitutes a

• reasonable* alternative is the very issue on which the Beyond Nuclear petitioners seek a hearing. When a contention alleges the need for further study of an alternative, from an environmental perspective, *such reasonableness determinations are the merits, and should only be decided after the contention is admitted.*120 To be entitled to a hearing, petitioners need not demonstrate that they will necessarily prevail, but only that there is at least some minimal factual support for their position. The Commission has cautioned that *complex, fact-intensive issues* are rarely appropriate for summary disposition,121 much less for resolution on the initial pleadings.

Thus, many of the Applicant*s and the Staff*s arguments improperly address the merits of the Beyond Nuclear petitioners* contention, rather than whether petitioners have provided **a minimal showing that material facts are in dispute, thereby demonstrating that an inquiry in 118 NextEra Answer to Beyond Nuclear Petition at 15.

119 Id. at 18 (capitalization omitted).

120 Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2), LBP-09-10, 70 NRC 51, 86 (2009) (emphasis in original), rev*d in part on other grounds, CLI-10-02, 71 NRC__, __ (slip op. at 1-2) (Jan. 7, 2010).

121 Pilgrim I, CLI-10-11, 71 NRC at __ (slip op. at 23).

Case: 12-1561 Document: 00116418893 Page: 167 Date Filed: 08/16/2012 Entry ID: 5666489 Page 92 of 134 depth is appropriate.!"122 For example, although the Applicant concedes that #[p]etitioners have presented information to show that generation of baseload energy from wind is theoretically possible,"123 it asserts that #[t]he proposal for offshore interconnected wind farms . . . faces steep technological hurdles"124 and #such an interconnected system would be exorbitantly expensive."125 Petitioners may face a difficult task in trying to demonstrate that such a system is both practical and environmentally superior to the continued operation of Seabrook as an existing facility. Such disputed facts are not appropriately resolved, however, in connection with the Board!s determination of whether petitioners have made the necessary showing to warrant admission of a contention.

It is not the case, as the NRC Staff appears to contend, that the Beyond Nuclear petitioners must first demonstrate #that NextEra is required to include an alternatives analysis in its ER beyond that which was already included"126 in order to have a hearing on whether NextEra is required to include such an analysis. At this stage, it is sufficient for the Beyond Nuclear petitioners to proffer some #minimal" factual support for that proposition.

Second, the Staff argues $ and the Applicant suggests127 $ that the Beyond Nuclear petitioners must show #that wind is a feasible alternative at the present time."128 Although

1. remote and speculative" alternatives need not be addressed in an applicant!s environmental 122 Final Rule, Rules of Practice for Domestic Licensing Proceedings % Procedural Changes in the Hearing Process, 54 Fed. Reg. at 33,171 (quoting Connecticut Bankers Ass!n v. Board of Governors, 627 F.2d 245, 251 (D.C. Cir. 1980)).

123 NextEra Answer to Beyond Nuclear Petition at 18.

124 Id. at 20.

125 Id. at 22.

126 NRC Staff Answer at 94.

127 See Tr. at 29.

128 NRC Staff Answer at 102.

Case: 12-1561 Document: 00116418893 Page: 168 Date Filed: 08/16/2012 Entry ID: 5666489 Page 93 of 134 report,129 the relevant time frame is considerably broader than *the present time.* As stated in Carolina Environmental Study Group v. United States130

• a case on which the Applicant itself relies131

• the obligation is to consider alternatives *as they exist and are likely to exist.*132 Allegedly, some of the Beyond Nuclear petitioners* supporting references show that an integrated system of offshore wind farms could be a viable source of baseload power in the region as early as 2015.133 Whether this is so remains to be seen. In the Board*s view, however, petitioners have proffered sufficient *minimal* evidence to warrant further inquiry as to whether such a system might be *likely to exist* during the relevant time period.134 Third, contrary to arguments by the Applicant and the NRC Staff,135 we are not persuaded that, as a matter of law, an integrated system of offshore wind farms could not constitute a single, discrete source for baseload energy. Absent further information about such a system, this seems to pose, at a minimum, a disputed question of fact. Certainly, such a system, if constructed, would be unlike the proposed alternative that was rejected by the Indian 129 See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551 (1978) (quoting NRDC v. Morton, 458 F.2d 827, 837-38 (1972)).

130 510 F.2d 796 (D.C. Cir. 1975).

131 NextEra Answer to Beyond Nuclear Petition at 23.

132 Carolina Envtl. Study Group, 510 F.2d at 801 (emphasis added). Indeed, at argument, the Applicant expressly agreed that the Carolina Environmental Study Group test is the appropriate standard. Tr. at 28-29. Likewise, the NRC Staff

• which appeared to contend in its answer that Kleppe v. Sierra Club, 427 U.S. 390, 405-06 (1976) holds otherwise, NRC Staff Answer at 96

• acknowledged at argument that Kleppe speaks only to when an environmental analysis must be prepared, and does not address whether the content of such an analysis should address alternatives that are reasonably likely to become available in the future. Tr. at 171.

133 Tr. at 24, 34.

134 For purposes of deciding the admissibility of the proffered contention, the Board need not decide the exact date by which an integrated system of offshore wind farms would have to be found *likely to exist.* That issue will doubtlessly turn on disputed fact questions that cannot appropriately be resolved on the pleadings.

135 NextEra Answer to Beyond Nuclear Petition at 27-31; NRC Staff Answer at 99.

Case: 12-1561 Document: 00116418893 Page: 169 Date Filed: 08/16/2012 Entry ID: 5666489 Page 94 of 134 Point Board, which involved an allegation that multiple, unrelated sources of electricity ought to be evaluated collectively.136 Finally, contrary to the Applicant*s and the Staff*s arguments,137 the contention is not a prohibited challenge to a Commission regulation. Petitioners apparently know how to challenge a Commission regulation, given that they have done so in a separate proceeding that questions whether the NRC should accept license renewal applications as early as 20 years before expiration of the existing license.138 Both in their pleadings139 and at oral argument140 the Beyond Nuclear petitioners disavow any attempt to challenge a Commission regulation in this proceeding. Rather, their point here is simply that decisions have consequences. They contend that, if an applicant chooses to seek renewal as early as 20 years prior to expiration "

as it clearly is entitled to do under the Commission*s existing rules141 " then perhaps its ability to criticize as #speculative$ a petitioner!s claims about the necessarily distant extended operational period is somewhat attenuated.142 In any event, because the Beyond Nuclear petitioners have demonstrated some possibility that wind power might be a reasonable 136 See Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43, 95-96 (2008).

137 NextEra Answer to Beyond Nuclear Petition at 34-36; NRC Staff Answer at 99-103.

138 See Beyond Nuclear Petition, Exh. 2, Earth Day Commitment/Friends of the Coast, Beyond Nuclear, Seacoast Anti-Pollution League, C-10 Research and Education Foundation, Pilgrim Watch, and New England Coalition; Notice of Receipt of Petition for Rulemaking, 75 Fed. Reg.

59,158 (Sept. 27, 2010).

139 Beyond Nuclear Petition at 14-16; Beyond Nuclear Reply at 36-38.

140 Tr. 12-14.

141 See 10 C.F.R. § 54.17(c).

142 See, e.g., Beyond Nuclear Petition at 14 (contending that applying to renew a license twenty years before its expiration #adversely affects the quality of the submittal and veracity of the applicant!s claims pertaining to the reviewed alternatives to the proposed federal relicensing action$).

Case: 12-1561 Document: 00116418893 Page: 170 Date Filed: 08/16/2012 Entry ID: 5666489 Page 95 of 134 alternative as early as 2015, we need not necessarily accept this argument in order to admit their contention.

We agree with the Applicant and the NRC Staff, however, that, although the contention itself might be read more broadly, petitioners* supporting facts focus exclusively on wind power generation, and thus the scope of the admitted contention must be so limited.143 Likewise, the NRC Staff points out that an application for renewal of an operating license need not discuss the need for power.144 Unlike the NRC Staff,145 we do not read the contention as challenging NextEra*s failure to discuss the need for power. If so construed, however, we agree that such a challenge would be outside the scope of this proceeding.

As so limited, we admit the Beyond Nuclear petitioners* contention.

3. Friends/NEC Contention 1 Friends/NEC Contention 1 states:

The license renewal application for Seabrook Station fails to comply with the requirements of 10 C.F.R. §§ 54.21(a) and 54.29 because applicant has not proposed an adequate or sufficiently specific plan for aging management of non-environmentally qualified inaccessible electrical cables and wiring for which such aging management is required. Without an adequate plan for aging management of non-environmentally qualified inaccessible electrical cables protection of public health and safety cannot be assured.146 Friends/NEC allege that NextEra*s aging management program (AMP) for non-environmentally qualified inaccessible cables and wiring does not comply with 10 C.F.R.

§§ 54.21(a) and 54.29 because it does not: (1) address specific recommendations in two reports 143 See NextEra Answer to Beyond Nuclear Petition at 17 n.7; NRC Staff Answer at 106-107.

144 NRC Staff Answer at 107 (citing 10 C.F.R. § 51.53(c)(2)).

145 Id. ("Although it is unclear, the contention appears to suggest in part that the Applicant*s ER is deficient for failing to consider the need for Seabrook as a source of power for the [region of interest].*).

146 Friends/NEC Petition at 10-11.

Case: 12-1561 Document: 00116418893 Page: 171 Date Filed: 08/16/2012 Entry ID: 5666489 Page 96 of 134 from the national laboratories at Sandia and Brookhaven;147 (2) identify testing methods that would adequately assure that submerged or previously submerged cables will perform their functions for the duration of a postulated accident;148 (3) provide measures to detect cable degradation prior to failure by using techniques for measuring and trending the condition of cable insulation, such as partial discharge testing, time domain reflectometry, dissipation factor testing, and low frequency alternating current testing;149 and (4) identify the location and extent of Non-EQ Inaccessible Cables in use at Seabrook.150 In alleging these deficiencies in the Seabrook AMP for inaccessible cables, Friends/NEC assert that *[w]ith respect to adequate assurance of public health and safety and to comply with

. . . referenced guidance, [NextEra] must either replace all cables (and splices) that have been exposed to submergence or develop a comprehensive aging management program to preclude moisture and adequately test all cables that have been exposed to an environment for which it was not designed.*151 Petitioners focus on the alleged lack of preventative strategies to preclude submergence or exposure of the cables to a moist environment and of an effective cable testing program to detect the degradation of the cable insulation prior to failure.

147 Id. at 12, 15-16 (citing Ogden Environmental and Energy Services Co., Inc., Aging Management Guideline for Commercial Nuclear Power Plants # Electrical Cable and Terminations, SAND96-0344, at 6-4 (Sept. 1996) (ADAMS Accession No. ML031140264) and M. Villaran & R. Lofaro, Brookhaven National Laboratory, Essential Elements of an Electrical Cable Condition Monitoring Program, NUREG/CR-7000 (Jan. 2010) (ADAMS Accession No. ML100540050)).

148 Id. at 14.

149 Id. at 17. Friends/NEC point out that the NRC recommended these techniques in a generic letter. Id. (quoting NRC Generic Letter 2007-01: Inaccessible or Underground Power Cable Failures that Disable Accident Mitigation Systems or Cause Plant Transients at 4 (Feb. 7, 2007)).

150 Id. at 12.

151 Id. at 20 (emphasis in original).

Case: 12-1561 Document: 00116418893 Page: 172 Date Filed: 08/16/2012 Entry ID: 5666489 Page 97 of 134 Friends/NEC Contention 1 meets the requirements of 10 C.F.R. § 2.309(f)(1)(i) through (iv) by providing a specific statement of the contention and by challenging the adequacy of the proposed AMP in the Application to manage aging effects for Non-EQ Inaccessible Cables.

Friends/NEC provide references to the appropriate sections of the Application152 and supporting documents including the Blanch declaration, thereby demonstrating that Friends/NEC have raised a genuine dispute concerning a material issue in accordance with 10 C.F.R.

§ 2.309(f)(1)(v) and (vi).

Both NextEra and NRC Staff assert that this contention should not be admitted. NextEra contends that *[p]etitioners fail to provide sufficient factual assertions or expert opinion to demonstrate a genuine, material dispute in these aspects of Contention 1*153 as required by 10 C.F.R. § 2.309(f)(1)(v) and (vi). NextEra challenges the adequacy of the support provided by petitioners* expert, stating that *Mr. Blanch does not even claim to have read the Seabrook LRA

[license renewal application].*154 NextEra further conjectures that this is the reason that Mr. Blanch claims to have not found a Time Limited Aging Analysis or AMP for electrical cables.155 The Board disagrees. Petitioners* references to various technical documents as well as the declaration from Mr. Blanch adequately support admission of this contention. Ultimately, of course, petitioners might not prevail on their factual allegations. Petitioners nonetheless raise a genuine dispute with the Application by effectively challenging the adequacy of the AMP to manage the aging effects on the cable insulation related to either submersion or exposure to a 152 See, e.g., Friends/NEC Petition at 13-14 (quoting NextEra Energy Seabrook, LLC, et al.,

License Renewal Application, Seabrook Station Unit 1 at B-180 through B-182 [hereinafter Application]).

153 NextEra Answer to Friends/NEC Petition at 28.

154 Id. at 26.

155 Id. at 27.

Case: 12-1561 Document: 00116418893 Page: 173 Date Filed: 08/16/2012 Entry ID: 5666489 Page 98 of 134 moist environment. Petitioners have also challenged the lack of an adequate testing program to detect the potential failure of the cables before they are required to perform their intended function.

The Board recognizes that Friends/NEC Contention 1 challenges an AMP that allegedly is consistent with the GALL Report.156 The GALL Report, developed at the Commission*s direction, identifies generic AMPs acceptable to the NRC Staff and documents the technical bases for determining the adequacy of these AMPs to effectively manage the effects of aging during the period of extended plant operation.157 As the Commission has explained, "a commitment to implement an AMP that the NRC finds is consistent with the GALL Report constitutes one acceptable method* for demonstrating that the effects of aging will be adequately managed.158 As NextEra acknowledges,

"[r]eferencing a program described in the GALL Report does not insulate a program from an adequately supported challenge at a hearing.*159 Just as the NRC Staff does not accept a representation of consistency from an applicant without its own, independent confirmation of the facts,160 petitioners are not foreclosed from asserting a contention that, at a minimum, likewise requires such confirmation. If adequately supported, such a contention raises a valid question of fact.

156 Application at B-180, B-182.

157 Division of Regulatory Improvement Programs, Generic Aging Lessons Learned (GALL)

Report, NUREG-1801, Rev. 1, at iii, 1 (Sept. 2005) [hereinafter GALL Report].

158 Entergy Nuclear Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power Station), CLI 17, 72 NRC __, __ (slip op. at 44) (July 8, 2010) (emphasis added).

159 NextEra Answer to Friends/NEC Petition at 18 n.5 (citing Vermont Yankee, CLI-10-17, 72 NRC at __ (slip op. at 47)).

160 Tr. at 74.

Case: 12-1561 Document: 00116418893 Page: 174 Date Filed: 08/16/2012 Entry ID: 5666489 Page 99 of 134 The Board further recognizes that petitioners support Friends/NEC Contention 1 with factual assertions that to some extent have been mooted by NextEra*s October 29, 2010 supplement to the Application. For example, petitioners challenged the original AMP because it defined significant voltage exposure as "#being subjected to system voltage for more than twenty-five percent of the time,!$161 but, by eliminating this twenty-five percent threshold, NextEra!s new program applies to cables exposed to significant moisture regardless of the frequency of energization.162 Similarly, petitioners challenged whether manhole inspections with a maximum frequency of every two years would be sufficient to manage aging effects on cable insulation,163 but NextEra!s revised AMP has reduced the frequency to at least one per year and adds event-driven inspections.164 The Board admits contentions, however, and not their supporting bases.165 Although NextEra!s October 29, 2010 supplement might moot #many$ of petitioners! claims,166 their remaining allegations still supply the required #minimal$ support for Friends/NEC Contention 1, as limited by the Board.

We admit Friends/NEC Contention 1 insofar as it challenges the adequacy of the Seabrook AMP for Non-EQ Inaccessible Cables to manage the age-related degradation of the cable insulation due to exposure to a wet or moist environment. Insofar as the contention 161 Friends/NEC Petition at 14. (quoting Application at B-180 through B-181).

162 NextEra Answer to Friends/NEC Petition, Attach. 1, Supplement to the NextEra Energy Seabrook, LLC Seabrook Station License Renewal Application, Encl. 2 at 6 (Oct. 29, 2010)

[hereinafter Application Supplement].

163 Friends/NEC Petition at 15.

164 Application Supplement, Encl. 2 at 6.

165 Duke Energy Carolinas, LLC (William States Lee III Nuclear Station, Units 1 and 2), LBP 17, 68 NRC 431, 447 (2008).

166 NRC Staff Answer at 19.

Case: 12-1561 Document: 00116418893 Page: 175 Date Filed: 08/16/2012 Entry ID: 5666489 Page 100 of 134 alleges that cables are currently being operated in violation of NRC regulations or that Seabrook is otherwise not in compliance with its current licensing basis (CLB), however, we agree with the Applicant167 that such claims are beyond the scope of this license renewal proceeding.168

4. Friends/NEC Contention 2 Friends/NEC Contention 2 states:

The LRA for Seabrook violates 10 C.F.R. §§ 54.21(a) and 54.29 because it fails to include an aging management plan for each electrical transformer whose proper function is important for plant safety.169 The contention hinges on whether transformers are active or passive components. The Applicant and the NRC Staff do not dispute that the Application contains no AMP for electrical transformers whose function is important to safety. They say no such plan is necessary because transformers are active components that are not subject to aging management review.170 Friends/NEC say that transformers are passive components that are subject to aging management review.171 The dispositive question is whether petitioners have adequately raised an issue as to whether transformers constitute active or passive components. Like the Board in the Indian 167 NextEra Answer to Friends/NEC Petition at 39-40.

168 See 10 C.F.R. § 54.30(b) (*The licensee*s compliance with the obligation . . . to take measures under its current license is not within the scope of the license renewal review.*).

169 Friends/NEC Petition at 20 (capitalization omitted).

170 NextEra Answer to Friends/NEC Petition at 43-47; NRC Staff Answer at 26-30.

171 Friends/NEC Petition at 22 (asserting transformers *are passive devices in that they contain no moving parts and do not undergo a change of properties or state*).

Case: 12-1561 Document: 00116418893 Page: 176 Date Filed: 08/16/2012 Entry ID: 5666489 Page 101 of 134 Point proceeding $ where a nearly verbatim contention was admitted172 and survived a motion for summary disposition173 $ we conclude that they have.

Structures and components that are subject to aging management review include those that perform certain safety-related functions "without moving parts or without a change in configuration or properties.*174 In contrast to such "passive* components, "active* components are not subject to an aging management review because, as the Commission stated in Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station) (Pilgrim II), "[e]xisting regulatory programs, including required maintenance programs, can be expected to $directly detect the effects of aging% on active functions.#175 In support of the proposition that transformers are passive components, both the petition and the declaration of Mr. Blanch (a professional engineer with substantial experience in the nuclear industry176) assert that transformers function without moving parts and without a change in configuration or properties and that failure properly to manage aging of transformers will compromise safety.177 172 See Indian Point, LBP-08-13, 68 NRC at 89.

173 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3) (Ruling on Motions for Summary Disposition) (Nov. 3, 2009) at 3-8 (unpublished).

174 10 C.F.R. 54.21(a)(1)(i).

175 CLI-10-14, 71 NRC __, __ (slip op. at 5) (June 17, 2010) (quoting 60 Fed. Reg. 22,461, 22,472 (May 8, 1995)).

176 See Declaration of Paul Blanch ¶¶ 3-12 (Oct. 18, 2010) [hereinafter Blanch Decl.].

177 See Friends/NEC Petition at 22; Blanch Decl. ¶¶ 28, 35.

Case: 12-1561 Document: 00116418893 Page: 177 Date Filed: 08/16/2012 Entry ID: 5666489 Page 102 of 134 Citing a contrary view found in non-binding Staff guidance,178 the Applicant and the NRC Staff say that Friends/NEC are simply wrong.179 During oral argument, however, the Applicant agreed that the Commission has never directly spoken to the issue.180 Thus, like the Indian Point Board,181 we conclude that whether transformers are active or passive components remains an unresolved issue. In the absence of a definitive designation for transformers, this contention requires fact-based determinations best left to further adjudicatory proceedings.

The Applicant and the NRC Staff seize upon obvious typographical errors in the petition and in the Blanch declaration, arguing that such errors are fatal to admissibility of the contention.182 For reasons previously explained, we decline to accept petitioners* belated submission of a corrected version of the Blanch declaration. We need not see a corrected version, however, to accept petitioners* representation at oral argument183 " or to infer on our own initiative " that neither the petitioners nor Mr. Blanch intended to reference transformers as #active$ components when the fundamental thrust of Mr. Blanch!s declaration and of the contention itself are just the opposite. Nor do we believe " in light of the common use of word 178 Letter from Christopher I. Grimes, NRC License Renewal Project Directorate, to Douglas J.

Walters, Nuclear Energy Institute, *Determination of Aging Management Review for Electrical Components$ (Sept. 19, 1997) at 2, in Nuclear Energy Institute, NEI 95-10, *Industry Guideline for Implementing the Requirements of 10 C.F.R. Part 54 % The License Renewal Rule,$ Rev. 3 (Mar. 2001) Appendix C, #References$ at C-8 through C-14 (ADAMS Accession No. ML01110576) (NEI Guidelines).

179 NextEra Answer to Friends/NEC Petition at 44-46; NRC Staff Answer at 27-30.

180 Tr. at 104.

181 Indian Point, LBP-08-13, 68 NRC at 89.

182 E.g., NextEra Answer to Friends/NEC Petition at 46 (#[B]oth Petitioners and Mr. Blanch contradict their own positions by admitting that &transformers are active devices. . . .!$ (citations omitted)); NRC Staff Answer at 30-31 (noting that, after both the petition and the Blanch declaration assert transformers are passive devices, #[t]he very next sentences of both . . .

acknowledge that transformers are &active devices!$ (citations omitted)).

183 Tr. at 106-08.

Case: 12-1561 Document: 00116418893 Page: 178 Date Filed: 08/16/2012 Entry ID: 5666489 Page 103 of 134 processors $ that Mr. Blanch%s earlier inadvertent reference to the Indian Point proceeding184 (in which he also submitted a declaration) means that he did not actually consider the Seabrook Application. The relevant portion of the declaration expressly references Seabrook.185 In any event, the Applicant and the Staff do not dispute Mr. Blanch%s claim that the Seabrook Application fails to include an aging management review for safety-related transformers, but dispute only whether such a review is required.

We admit Friends/NEC Contention 2.

5. Friends/NEC Contention 3 Friends/NEC Contention 3 states:

The aging management plan contained in the license renewal application violates 10 C.F.R. §§ 54.21 and 54.29(a) because it does not provide adequate inspection and monitoring for corrosion, structural failure, degradation, or leaks in all buried systems, structures, and components [SSCs] that may convey or contain radioactively-contaminated water or other fluids and/or may be important for plant safety.186 Friends/NEC allege that NextEra%s AMP for buried SSCs violates 10 C.F.R. §§ 54.21 and 54.29(a) because:

(1) it does not provide for adequate inspection of all [SSCs] that may contain or convey water, radioactively-contaminated water, and/or other fluids; (2) there is no adequate leak prevention or detection programs designed to replace such

[SSCs] before leaks occur; . . . (3) there is no adequate monitoring to determine if and when leakage from these [SSCs] occurs[,] [and] (4) [t]here is no identification within the LRA of the specific piping systems and tanks covered by this AMP.187 Despite briefly positing that *leaks and corrosion threaten the integrity of such systems and compromise their ability to achieve their intended function,$188 the contention focuses on 184 Blanch Decl. at ¶ 13.

185 Id. ¶ 1 (stating Friends/NEC retained Mr. Blanch *to provide expert services in connection with . . . an application to add 20 years to the operating license of Seabrook Station$).

186 Friends/NEC Petition at 22-23 (capitalization omitted).

187 Id. at 23.

188 Id. at 24.

Case: 12-1561 Document: 00116418893 Page: 179 Date Filed: 08/16/2012 Entry ID: 5666489 Page 104 of 134 controlling the unintentional release of radionuclides into the environment. The heart of Friends/NEC Contention 3 is that *deficiencies in the [AMP] concerning the detection of leaks or corrosion in other [SSCs] containing radioactive water could endanger the safety and welfare of the public.*189 More specifically, Friends/NEC Contention 3 contends that *leaks of underground pipes and tanks can result in the release of significant amounts of radioactive materials into the groundwater or the atmosphere[] [and] [e]xposure to this radiation can threaten human health.*190 Friends/NEC Contention 3 is inadmissible because radioactive leaks are outside the scope of the proceeding and petitioners do not provide any alleged facts or expert opinion indicating that significant deterioration in buried structures at Seabrook could impair their only function that is appropriately before us in this license renewal proceeding: i.e., to maintain pressure and to provide flow.

Friends/NEC focus their arguments on the risk of leaks, stating that NextEra*s application *fails to include a comprehensive program of leak detection and prevention* and that

• a laissez-faire inspection program will be ineffective at prevention or early detection of leaks from pipes that carry radioactive water or are otherwise important for plant safety.*191 Friends/NEC assume that the control of leaks is the intended function of buried SSCs, but such is not the case. In Pilgrim II, the Commission pointed out that 10 C.F.R. § 54.21(a)(3) requires an applicant to demonstrate the effects of aging will be managed *so that the intended function(s) will be maintained consistent with the CLB* and that the intended functions are 189 Id.

190 Id.

191 Id. at 24-25.

Case: 12-1561 Document: 00116418893 Page: 180 Date Filed: 08/16/2012 Entry ID: 5666489 Page 105 of 134 described in § 54.4(a)(1)-(3).192 The Commission clarified that the key functions of buried SSCs that are the focus of the license renewal safety review under Part 54 do not include the prevention of inadvertent radioactive leaks from buried structures that Friends/NEC contend are the driving reason for requiring this AMP at Seabrook.193 Detection, monitoring, and maintenance of leakage from these structures are part of the NRC*s ongoing regulatory process to assure compliance with public dose limits.194 Conversely, buried pipelines, channels, and tanks that fall under aging management provide safety-related functions by maintaining adequate flow and pressure. Because the issue raised by Friends/NEC Contention 3 (i.e., the inadvertent release of radioactivity) does not specifically relate to the ability of buried structures to perform their intended functions as defined by 10 C.F.R. § 54.4(a)(1)-(3), the contention is not within the scope of this license renewal proceeding, as required by § 2.309(f)(1)(iii).

Further, Friends/NEC fail to support their claim that there is not reasonable assurance that NextEra will manage the effects of aging on the intended function of buried SSCs.195 In Pilgrim II, the Commission summarized an evaluation of site-specific conditions and reviewed the applicant*s monitoring/inspection program in assessing whether it was likely that the integrity of any buried SSCs had deteriorated sufficiently to prevent it from serving its intended 192 CLI-10-14, 71 NRC at __ (slip op. at 16) (quoting 10 C.F.R. § 54.21(a)(3)) (emphasis in original).

193 Id. (slip op. at 15).

194 Id. ("Through the regulatory process, which includes plant inspections, notice and guidance to licensees, and enforcement actions, the NRC takes a host of measures to improve the ability to timely detect and correct inadvertent leaks to assure compliance with public dose limits.*).

195 See 10 C.F.R. § 54.29 (requiring, for license renewal, that there be "reasonable assurance*

that the applicant will manage the effects of aging on certain structures and components during extended operation).

Case: 12-1561 Document: 00116418893 Page: 181 Date Filed: 08/16/2012 Entry ID: 5666489 Page 106 of 134 function.196 Friends/NEC*s support for this contention is a verbatim repetition of general and conclusory statements from the Blanch declaration.197 Neither Friends/NEC Contention 3 nor the Blanch declaration directly asserts that the intended function of any buried structures at Seabrook might fail. Instead they rely on reports of released radioactivity from other plants in the country to infer similar problems at the New Hampshire facility.198 The existence of leaking pipes and tanks at other plants falls well short of providing support for alleging that the buried structures at Seabrook might not perform their intended function. By failing to provide any support that the integrity of leaking structures at Seabrook has the potential to prevent them from maintaining pressure, providing flow, or both, Friends/NEC do not present the requisite factual bases required by 10 C.F.R. § 2.309(f)(1)(v).

Friends/NEC*s Contention 3 presents an issue that is not within the scope of the proceeding, as required by 10 C.F.R. § 2.309(f)(1)(iii), and is not supported by adequate factual allegations, as required by 10 C.F.R. § 2.309(f)(1)(v). For these reasons, we do not admit it.

6. Friends/NEC Contention 4 Friends/NEC Contention 4 states:

The Environmental Report is inadequate because it underestimates the true cost of a severe accident at Seabrook Station in violation of 10 C.F.R. 51.53(c)(3)(ii)(L) and further analysis by the Applicant is called for.199 The contention contains six subparts. Because the Applicant and the NRC Staff challenge the materiality of each subpart, we first consider the general concept of materiality in connection with contentions that challenge the adequacy of the discussion of severe accident 196 CLI-10-14, 71 NRC at __ (slip op. at 22-23).

197 Compare Friends/NEC Petition at 23-26 with Blanch Decl. ¶¶ 41-53.

198 See Friends/NEC Petition at 26-30; Blanch Decl. ¶¶ 41-53.

199 Friends/NEC Petition at 33-34 (capitalization omitted).

Case: 12-1561 Document: 00116418893 Page: 182 Date Filed: 08/16/2012 Entry ID: 5666489 Page 107 of 134 mitigation alternatives in a renewal applicant*s environmental report. We then separately address the admissibility of each subpart.

a. Materiality As the Applicant and the NRC Staff emphasize,200 a SAMA analysis is mandated by NEPA considerations and thus subject to a rule of reason.201 In discussing a SAMA contention in another proceeding, the Commission stated that it has "long stressed that NRC adjudicatory hearings are not EIS [environmental impact statement] editing sessions.*202 Specifically, the ultimate issue "is whether any additional SAMA should have been identified as potentially cost-beneficial, not whether further analysis may refine the details in the SAMA NEPA analysis.*203 Thus, as the Commission stated in Pilgrim I, "[u]nless it looks genuinely plausible that inclusion of an additional factor or use of other assumptions or models may change the cost-benefit conclusions for the SAMA candidates evaluated, no purpose would be served to further refine the SAMA analysis, whose goal is only to determine what safety enhancements are cost-effective to implement.*204 In order to demonstrate that their concerns raise a material dispute with an application, therefore, petitioners must provide sufficient information to show that, if their proposed refinements were incorporated, it is "genuinely plausible* that cost-benefit conclusions might change.

200 NextEra Answer to Friends/NEC Petition at 65; NRC Staff Answer at 56.

201 See Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-17, 56 NRC 1, 12 (2002) (applying "rule of reason governing NEPA* to SAMA analysis).

202 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC 529, 533 (2009) (citation and internal quotation marks omitted).

203 Id.

204 CLI-10-11, 71 NRC at __ (slip. op. at 39).

Case: 12-1561 Document: 00116418893 Page: 183 Date Filed: 08/16/2012 Entry ID: 5666489 Page 108 of 134 That said, the Commission*s clarification in Pilgrim I did not revise the rules for admitting contentions. Indeed, in Pilgrim I, the Licensing Board had admitted a SAMA contention,205 which it subsequently dismissed on summary disposition,206 and the Commission reversed the Board for granting summary disposition.207 Especially at the contention admissibility stage, appropriate latitude must be given petitioners in the methods by which they may show "genuine plausibility.# Petitions need not $ as both the Applicant and the NRC Staff acknowledged at oral argument208 $ rerun the Applicant!s own cost-benefit calculations.

b. Friends/NEC Contention 4A Friends/NEC Contention 4A states:

NextEra!s use of probabilistic modeling underestimated the true consequences of a severe accident.209 Friends/NEC Contention 4A consists of two distinct challenges. First, Friends/NEC allege that NextEra!s use of probabilistic modeling underestimates the consequences of a severe accident and that, "[b]y multiplying high consequence values with low probability numbers, the consequences figures appear far less startling.*210 Second, Friends/NEC allege that "NextEra failed to model intentional acts in its analysis of external events.*211 Friends/NEC Contention 4A is inadmissible as outside the scope of this proceeding.

Friends/NEC!s first challenge $ to the use of probability-weighted consequences $ is contrary to the Commission*s statement that "[w]hether a SAMA may be worthwhile to 205 LBP-06-23, 64 NRC 257, 341 (2006).

206 LBP-07-13, 66 NRC 131, 137 (2007).

207 CLI-10-11, 71 NRC at __ (slip op. at 26).

208 Tr. at 138-42.

209 Friends/NEC Petition at 37 (capitalization omitted).

210 Id. at 39.

211 Id. at 40-41.

Case: 12-1561 Document: 00116418893 Page: 184 Date Filed: 08/16/2012 Entry ID: 5666489 Page 109 of 134 implement is based upon a cost-benefit analysis $ a weighing of the cost to implement . . . with the reduction in risks to public health, occupational health, and offsite and onsite property.*212 Consistent with the regulations for severe accidents,213 the Commission has previously noted that the very essence of severe accident mitigation analysis is to assess *to what extent the probability-weighted consequences of the analyzed severe accident sequences would decrease if a specific SAMA were implemented.*214 Allegations against the fundamental procedure for analyzing severe accidents and resulting mitigation alternatives are outside the scope of the proceeding.

Furthermore, including probability-weighted consequences into SAMA analyses does not reduce the consequences so low as to #reject all possible mitigation as too costly"215 $ as evidenced by the results presented by the applicants in several recent cases.216 Conversely, ignoring risk (i.e., the probability-weighted accidents) in favor of deterministic consequences that do not consider the frequency of occurrence might just as likely distort the analysis by making all mitigation appear so highly cost-effective as to be of little use in discriminating between alternatives in this NEPA decision-making process.

212 McGuire/Catawba, CLI-02-17, 56 NRC at 7-8 (emphasis added). *[A]s a logical proposition,

. . . risk equals the likelihood of an occurrence times the severity of the consequences . . . .*

Limerick Ecology Action, Inc. v. U.S. Nuclear Regulatory Com*n, 869 F.2d 719, 738 (3d Cir.

1989) (citing Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S.

87, 104-05 (1983)).

213 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1.

214 Pilgrim I, CLI-10-11, 71 NRC at __ (slip op. at 3) (emphasis added).

215 Friends/NEC Petition at 39.

216 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP 13, 71 NRC __, __ (slip op. at 6-7) (June 30, 2010); Applicant*s Environmental Report %

Operating License Renewal Stage % Pilgrim Nuclear Power Station at 4-48 to 4-51 (ADAMS Accession No. ML060830611).

Case: 12-1561 Document: 00116418893 Page: 185 Date Filed: 08/16/2012 Entry ID: 5666489 Page 110 of 134 As the NRC Staff points out,217 the use of probability-weighted consequences is consistent with the long standing NEPA *rule of reason* that requires reasonable consideration of alternative mitigation measures, but does not require that any specific plan be implemented.

Rather, a SAMA analysis need only assure that the environmental consequences of the project have been fairly evaluated.218 Friends/NEC*s second challenge

• to the failure of NextEra to consider intentional acts such as terrorist attacks as part of the external events analysis

• is likewise outside the scope of this proceeding. In the recent Pilgrim II decision, the Commission stated that *NEPA

!imposes no legal duty on the NRC to consider intentional malevolent acts . . . in conjunction with commercial power reactor license renewal applications.**219 The Commission also noted that the NRC had analyzed terrorist acts in connection with license renewal and concluded *that the core damage and radiological release from such acts would be no worse than the damage and release expected from internally initiated events.*220 We do not admit Friends/NEC Contention 4A.

c. Friends/NEC Contention 4B Friends/NEC Contention 4B states:

The SAMA analysis for Seabrook minimizes the potential amount of radioactive release in a severe accident.221 217 NRC Staff Answer at 56-57.

218 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419, 431 (2003) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989)).

219 CLI-10-14, 71 NRC at __ (slip op. at 37) (quoting AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 129 (2007)).

220 Id. (citing Oyster Creek, CLI-07-8, 65 NRC at 131).

221 Friends/NEC Petition at 41 (capitalization omitted).

Case: 12-1561 Document: 00116418893 Page: 186 Date Filed: 08/16/2012 Entry ID: 5666489 Page 111 of 134 Friends/NEC allege that NextEra*s SAMA analysis minimizes the potential amount of radioactive release during a severe accident by not considering such events in the spent fuel pool (SFP) and by using source terms for the fission product releases that "are smaller for key radionuclides than the release fractions specified in NRC guidance . . . and its recent reevaluation for high-burnup fuel.*222 First, Friends/NEC contend that, because severe accidents at spent fuel pools are reasonably foreseeable, NextEra must consider these severe accidents, whether resulting from human error, mechanical failure, or an act of malice.223 The petitioners imply that the Applicant must also consider the potential interactions between the pool and the reactor in the context of these accidents.224 Friends/NEC contend that the definition of "severe accidents* includes SFP accidents, noting that "[n]othing in Section 5 [of the GEIS] excludes severe accidents involving

. . . the spent fuel pool.*225 Second, Friends/NEC contend that "[t]he source terms used by NextEra to estimate the consequences of severe accidents . . . has not been validated by NRC* and that these release fractions are consistently smaller for key radionuclides than those specified in NUREG-1465.226 The petitioners allege that, because the Applicant used small values, the SAMA analysis resulted in lower consequences than would be obtained from using the source terms presented in the guidance documents.227 222 Friends/NEC Petition at 41.

223 Id.

224 See id. at 42 ("NextEra did not consider the potential interactions between the pool and the reactor in the context of severe accidents at Seabrook.*).

225 Id. at 44.

226 Id. (referring to L. Soffer et al., Accident Source Terms for Light-Water Nuclear Power Plants, NUREG-1465 (Feb. 1995) (ADAMS Accession No. ML041040063).

227 Id.

Case: 12-1561 Document: 00116418893 Page: 187 Date Filed: 08/16/2012 Entry ID: 5666489 Page 112 of 134 Friends/NEC*s Contention 4B is inadmissible as to allegations associated with spent fuel pool accidents, which are outside the scope of this proceeding and a direct challenge to NRC regulations. This contention is admissible to the limited extent that it relates to the selection of the source term release fractions.

i. SAMA Analysis of the Risks from Spent Fuel Pools (SFP)

Friends/NEC*s assertion that severe accidents from SFP must be considered in NextEra*s SAMA analysis is in direct conflict with NRC regulations. While a consideration of alternatives to mitigate severe accidents must be provided if not previously performed,228 NRC regulations only require an applicant to provide this analysis "for those issues identified as Category 2 issues in appendix B to subpart A* of Part 51.229 Spent fuel pool storage is a Category 1 issue,230 and thereby exempt from this analysis.

The Commission has confirmed this interpretation of its regulations in several cases. In Turkey Point, it held that license-renewal boards cannot admit environmental challenges regarding spent fuel pool issues: "Part 51*s license renewal provisions cover environmental issues relating to onsite spent fuel storage generically* and "[a]ll such issues, including accident risk, fall outside the scope of license renewal proceedings.*231 More recently, the Commission stated in Pilgrim I that "SAMAs do not encompass spent fuel pool accidents.*232 Clearly, SFP SAMA analysis is not required by regulation, and a contention alleging such a requirement is not admissible in a license renewal proceeding.

228 10 C.F.R. § 51.53(c)(3)(ii)(L).

229 Id. § 51.53(c)(3)(ii).

230 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1 ("On-site spent fuel*).

231 CLI-01-17, 54 NRC at 23.

232 CLI-10-11, 71 NRC at __ (slip op. at 24).

Case: 12-1561 Document: 00116418893 Page: 188 Date Filed: 08/16/2012 Entry ID: 5666489 Page 113 of 134 Friends/NEC raise the issue of the impacts of potential interaction between the pool and the reactor on severe accidents at Seabrook, citing a report by Dr. Gordon Thompson that was prepared for site-specific conditions at Vermont Yankee and Pilgrim.233 However, the Commission clearly stated in Turkey Point that Part 51*s reference to SAMA deals only with "nuclear reactor accidents, not spent fuel storage accidents,*234 and that "Part 51 treats all spent fuel pool accidents, whatever their cause, as generic, Category 1 events not suitable for case-by-case adjudication.*235 Consistent with the rejection of the Thompson arguments by the Vermont Yankee236 and Pilgrim237 Boards, we conclude that any consideration of SFP in a SAMA analysis is preempted by regulation.

Finally, Friends/NEC argue that Section 6 of the GEIS (which discusses the Category 1 finding for onsite spent fuel storage) applies only to normal operations and that Section 5 of the GEIS (discussing severe accidents) is silent on the exclusion of SFP from severe accident analysis.238 The Commission recently rejected this very argument in Pilgrim II, however, where it clarified that "[c]hapter six clearly is not limited to discussing only $normal operations,* but also discusses potential accidents and other non-routine events,* and that "[t]he Category 1 finding 233 Friends/NEC Petition at 42 (citing Gordon R. Thompson, Institute for Resource and Security Studies, Risks and Risk-Reducing Options Associated with Pool Storage of Spent Nuclear Fuel at Pilgrim and Vermont Yankee Nuclear Power Plants at 12, 16 (2006) (ADAMS Accession No. ML061630088)).

234 CLI-01-17, 54 NRC at 21 (emphasis in original).

235 Id. at 22 (citation omitted).

236 Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP 20, 64 NRC 131, 152-155 (2006) (ruling that contention regarding severe spent fuel pool accidents is not admissible in license renewal proceeding because it is a Category 1 issue),

rev*d on other grounds, CLI-07-16, 65 NRC 371, 375 (2007).

237 LBP-06-23, 64 NRC at 288 ("[T]hese arguments fail because of Commission precedent interpreting the term, $severe accidents,* to encompass only reactor accidents and not spent fuel pool accidents . . . .*).

238 Friends/NEC Petition at 42-44 (citing GEIS §§ 5.2.1, 6.1).

Case: 12-1561 Document: 00116418893 Page: 189 Date Filed: 08/16/2012 Entry ID: 5666489 Page 114 of 134 for onsite spent fuel storage (and chapter six of the GEIS upon which the finding is based) is not limited to routine or !normal operations."#239 ii. Source Terms Used in NextEra SAMA Analysis Friends/NEC allege that the source terms used by NextEra in its SAMA analysis, as generated by the Modular Accident Analysis Progression code (MAAP code), $appears to lead to anomalously low consequences when compared to source terms generated by NRC Staff,#

and that $NRC has been aware of this discrepancy for at least two decades.# 240 Friends/NEC posit that the source terms NextEra used are consistently smaller for key radionuclides than the release fractions specified in NUREG-1465. 241 NextEra argues that the petitioners provide $no fact or expert opinion in support of this contention, as required by 10 C.F.R. § 2.309(f)(1)(v), only their own unsupported speculation.#242 NextEra asserts that, $[w]ithout expert opinion or a similar plant-specific SAMA analysis, Petitioners cannot show that their claims, as applied to Seabrook, are based upon anything other than their own uninformed speculation.#243 The NRC Staff concludes otherwise, stating that $F[riends]/NEC ha[ve] provided some support for the argument that MAAP may lead to lower consequences when compared to source terms generated by NRC Staff.#244 Friends/NEC support the source term basis of Contention 4B by citing a published draft of NUREG-1150 in which the NRC observed, in the context of the Zion Nuclear Power Plant, 239 CLI-10-14, 71 NRC at __ (slip op. at 34).

240 Friends/NEC Petition at 45 (citing Office of Nuclear Regulatory Research, Draft for Comment, Reactor Risk Reference Document, NUREG-1150, Vol. 1, at 5-14 (Feb. 1987)

(ADAMS Accession No. ML063540601) [hereinafter Draft for Comment, NUREG-1150, Vol. 1]).

241 Id. at 44 (citing ER at F-32, F-45 to F-48).

242 NextEra Answer to Friends/NEC Petition at 75.

243 Id. at 76.

244 NRC Staff Answer at 62.

Case: 12-1561 Document: 00116418893 Page: 190 Date Filed: 08/16/2012 Entry ID: 5666489 Page 115 of 134 that *comparisons made between the Source Term Code Package results and MAAP results indicate that the MAAP estimates for environmental release fractions were significantly smaller.*245 Friends/NEC also cite a Brookhaven National Laboratory study that determined that dose results reported by the applicant for license renewal at the Catawba and McGuire Plants were less by a factor of 3 to 4 than those calculated consistent with NUREG-1150.246 The NRC Staff recognizes that these studies indicate that applicants* use of source terms generated by the MAAP code at these plants resulted in *lower consequences when compared to the source terms in NUREG-1465.*247 The alleged facts Friends/NEC proffer here meet the requirements of 10 C.F.R. 2.309(f)(1)(v).248 The NRC Staff nevertheless opposes admission, arguing that Friends/NEC *ha[ve] not demonstrated that the use of MAAP is unreasonable or inappropriate in this case* and disputing the relevance of NUREG-1465 on technical grounds. 249 Both NextEra and the NRC Staff point out that the same arguments Friends/NEC present here were rejected by the Indian Point licensing board for a variety of technical reasons.250 Again, the Applicant and the NRC Staff 245 Friends/NEC Petition at 45 (quoting Draft for Comment, NUREG-1150, Vol. 1, at 5-14)

(capitalization altered by Friends/NEC Petition).

246 Id. at 44-45 (citing John R. Lehner, et al., Brookhaven National Laboratory, Benefit Cost Analysis of Enhancing Combustible Gas Control Availability at Ice Condenser and Mark III Containment Plants at 17 (Dec. 2002) (ADAMS ML031700011)).

247 NRC Staff Answer at 62-63.

248 NextEra points out that many of Friends/NEC*s arguments were copied from an expert report prepared for site specific conditions in a license renewal proceeding at another plant. NextEra Answer to Friends/NEC Petition at 75-76. However, the possibility that Friends/NEC may have used another expert report as the template for this contention does not negate the support provided by NUREG-1150 and the Brookhaven study.

249 NRC Staff Answer at 63.

250 NextEra Answer to Friends/NEC Petition at 76-77 (discussing Indian Point, LBP-08-13, 68 NRC at 185); NRC Staff Answer at 64 (quoting Indian Point, LBP-08-13, 68 NRC at 187).

Case: 12-1561 Document: 00116418893 Page: 191 Date Filed: 08/16/2012 Entry ID: 5666489 Page 116 of 134 confuse the merits with the *minimal* factual showing necessary to admit a contention. Their technical responses to the petitioners* position require further exploration.

Moreover, to proffer an admissible contention, Friends/NEC need not perform their own plant-specific SAMA. As discussed above, petitioners do not have to re-run the entire SAMA analysis to show that there might be a material difference in the outcome when using the suggested changes in the source terms advocated by Friends/NEC. The alleged fact that the source terms provided by MAAP are lower than those produced by the methodology used in NRC studies (resulting in consequence values that are lower by a factor of 3 and 4 according to the Brookhaven study) raises sufficient question concerning whether the calculated consequences and resulting cost-benefit analyses at Seabrook are adequate for rendering decisions on potential mitigation alternatives.

iii. Summary of Ruling on Contention 4B We do not admit those aspects of Friends/NEC Contention 4B concerning spent fuel pools because they constitute a direct challenge to NRC regulations and are not within the scope of the proceeding as required by 10 C.F.R. § 2.309(f)(1)(iii). We admit the portion of this contention dealing with the adequacy of the source terms that are generated by the MAAP code and used by NextEra to calculate the consequences in the Applicant*s SAMA analysis.

d. Friends/NEC Contention 4C Friends/NEC Contention 4C states:

The SAMA Analysis for Seabrook uses an outdated and inaccurate proxy to perform its SAMA analysis, the MACCS2 computer program.251 Contrary to 10 C.F.R. § 2.309(f)(1)(v) and (vi), with one exception petitioners do not raise any specific challenge to the Applicant*s SAMA analysis in Friends/NEC Contention 4C.

Rather, petitioners make general and insufficiently supported assertions concerning the 251 Friends/NEC Petition at 46 (capitalization omitted).

Case: 12-1561 Document: 00116418893 Page: 192 Date Filed: 08/16/2012 Entry ID: 5666489 Page 117 of 134 MACCS2 code that the Applicant employed in conducting its analysis. Petitioners* specific claim that the model was not subjected to quality assurance requirements is deficient on its face, as a SAMA analysis is not subject to such requirements.252 We do not admit Friends/NEC Contention 4C. As discussed below, however, certain allegations concerning the alleged consequences of using the MACCS2 code are adequately set forth in Friends/NEC Contentions 4D and in the admissible portions of 4E.

e. Friends/NEC Contention 4D Friends/NEC Contention 4D states:

Use of an inappropriate air dispersion model, the straight-line Gaussian plume, and meteorological data inputs that did not accurately predict the geographic dispersion and deposition of radionuclides at Seabrook*s coastal location.253 Friends/NEC allege that NextEra used an atmospheric dispersion model, ATMOS, that is not appropriate for determining the geographic concentration of radionuclides released in a severe accident at Seabrook.254 Specifically, Friends/NEC argue that the use of the steady-state, straight-line Gaussian plume modeled by ATMOS is not adequate to represent Seabrook*s complex coastal site, thereby underestimating "the area likely to be affected in a severe accident and the dose likely to be received in those areas.*255 According to Friends/NEC, the Applicant*s use of the ATMOS model to predict radionuclide dispersion is unacceptable because the Gaussian dispersion model assumes that a released radioactive plume travels in a steady-state straight line (analogous to a beam from a 252 See 10 C.F.R. Part 50, Appendix B (requiring quality assurance description in safety analysis report, but not addressing SAMA analysis).

253 Friends/NEC Petition at 47 (capitalization omitted).

254 Id. at 47-48.

255 Id. at 47.

Case: 12-1561 Document: 00116418893 Page: 193 Date Filed: 08/16/2012 Entry ID: 5666489 Page 118 of 134 flashlight).256 The use of the ATMOS model (which is incorporated into the MACCS2 code) to accurately predict impacts to the large population in a 50-mile radius of the plant is allegedly inappropriate given the recognized limitations of the model beyond a ten to fifteen mile radius.257 Petitioners point out that the Environmental Protection Agency (EPA) no longer approves of the use of one-dimensional models for air dispersion analyses beyond a 32-mile radius,258 and discuss other codes (e.g., AERMOD and CALPUFF) that do not have the modeling limitations of ATMOS.259 Citing several meteorological research studies at coastal sites,260 Friends/NEC assert that NextEra used inappropriate meteorological inputs that are steady in time and are spatially uniform across the study region.261 Petitioners contend that, as a result, actual doses will be more concentrated than those modeled and will extend over a larger area due to effects of variable winds, sea breezes, plume behavior over water, and terrain.262 Furthermore, petitioners assert, *[a]nother significant defect in Applicant*s model is that its meteorological inputs . . . are based on data collected by Applicant at a single, on-site anemometer for a single year, 2005.*263 Friends/NEC Contention 4D is admissible. To satisfy the requirement of 10 C.F.R.

§ 2.309(f)(1)(i) through (iv), Friends/NEC provide a specific statement of the contention and question the accuracy of the SAMA results given the geographic location and variable 256 Id. at 48.

257 Id. at 52.

258 Id. at 48.

259 Id. at 47, 51-52, 57-58.

260 Id. at 47, 47 n.21.

261 Id. at 48.

262 Id. at 48-53.

263 Id. at 53.

Case: 12-1561 Document: 00116418893 Page: 194 Date Filed: 08/16/2012 Entry ID: 5666489 Page 119 of 134 meteorological conditions at the site and the large population base surrounding the plant.264 The statement of facts presented by Friends/NEC, backed by references to the Applicant*s ER and supporting documents, demonstrates that the petitioners have raised a genuine dispute of a material issue in accordance with 10 C.F.R. § 2.309(f)(1)(v) and (vi).

Both NextEra and the NRC Staff assert that the contention should not be admitted.265 They maintain that Friends/NEC have not demonstrated this contention concerns a material issue. NextEra contends that the "Petitioners have provided sufficient information to show that the sea breeze is a real phenomenon, but have provided no evidence, no allegations of fact or expert opinion, as to the effect that a sea breeze would have on the cost-benefit conclusions in NextEra*s SAMA analysis.*266 NextEra argues that the documents Friends/NEC offer in support of their claim that plume behavior over water leads to radioactive hot spots does not show "that it is genuinely plausible that modif[ication] . . . would result in a change to NextEra*s cost-benefit model.*267 NextEra argues that Friends/NEC have not shown materiality because they have not shown, through "expert or [other] review of NextEra*s SAMA analysis,* that using a different air dispersion model might change the cost-benefit conclusions in the Application.268 The NRC Staff similarly argues that the contention is not material (even though it admits that Friends/NEC provide an adequate factual basis for their claim that the SAMA analysis is inadequate because it does not adequately account for sea breeze, behavior of plumes over water, or terrain 264 See id. at 47.

265 NextEra Answer to Friends/NEC Petition at 79; NRC Staff Answer at 68.

266 NextEra Answer to Friends/NEC Petition at 79-80.

267 Id. at 84-85 (emphasis in original) (footnote omitted).

268 See id. at 80.

Case: 12-1561 Document: 00116418893 Page: 195 Date Filed: 08/16/2012 Entry ID: 5666489 Page 120 of 134 impacts) because petitioners have *not shown that any of these asserted errors in the SAMA analysis would be likely to lead to the identification of another cost-beneficial SAMA.*269 We disagree. Friends/NEC provide sufficient information to indicate that it is more than plausible that the use of an alternative model has the potential to change the cost-benefit conclusions for the SAMA candidates evaluated by NextEra. The petitioners are not required to redo the SAMA analyses in order to raise a material issue. To require a petitioner to perform such a re-analysis is an undue burden, especially when dealing with an admittedly very complex model like the MACCS2 code.270 Friends/NEC sufficiently support their allegation that use of the ATMOS model might significantly distort the Seabrook SAMA analysis.

In response to the suggestion that NextEra should have considered use of alternative models like AERMOD or CALPUFF,271 NextEra points out that the Commission has verified that NEPA allows agencies *to select their own methodology as long as that methodology is reasonable.*272 Once challenged by an adequately supported contention, however, an applicant must defend its choice.273 The NRC Staff concedes that Friends/NEC have adequately supported their claim that *features of the Seabrook site . . . could impact the ATMOS model [in ways] that the ER has not accounted for, such as the sea breeze effect, the varied terrain at 269 NRC Staff Answer at 68.

270 As NextEra aptly stated at oral argument: *The SAMA analysis is a very complicated beast.*

Tr. at 137.

271 Friends/NEC Petition at 47.

272 NextEra Answer to Friends/NEC Petition at 81 (quoting Pilgrim I, CLI-10-11, 71 NRC at __

(slip op. at 37)).

273 See Pilgrim I, CLI-10-11, 71 NRC at __ (slip op. at 17) (stating that the Gaussian plume model*s incorporation in the MACCS2 code and the wide, customary use of the code *are not a sufficient ground to exclude the code*s integral dispersion model from all challenge if adequate support is provided for a contention*).

Case: 12-1561 Document: 00116418893 Page: 196 Date Filed: 08/16/2012 Entry ID: 5666489 Page 121 of 134 Seabrook and the possibility of hot spots.*274 Friends/NEC have raised plausible limitations of air dispersion modeling at the site. It is now the Applicant*s burden to defend its use of ATMOS against the evidence and testimony submitted by Friends/NEC in further adjudicatory proceedings.

NextEra claims that the *Petitioners assert that NextEra should simply replace the ATMOS module in MACCS2 with AERMOD or CALPUFF,* and that the Commission has noted

• • it is not possible simply to *plug in* and run a different atmospheric dispersion model in the MACCS2 code.**275 Friends/NEC do not suggest that the MACCS2 code should be modified but only that alternative air dispersion models without ATMOS*s flaws exist.276 There is no regulatory requirement that applicants use MACCS2 for their SAMA analyses. If it can be shown that the one-dimensional constraints of the ATMOS model are inappropriate for a site and that it is truly impossible to replace ATMOS within the MACCS2 code, then it is incumbent upon the Applicant to seek other options besides MACCS2 to perform the remaining cost-benefit analysis rather than relying on a deficient ATMOS code just because it is embedded within the familiar MACCS2 model.

The NRC Staff argues that *to the extent F[riends]/NEC ha[ve] alleged that the use of the ATMOS model is categorically inapplicable to the Seabrook site, F[riends]/NEC has not adequately supported [their] claim.*277 However, Friends/NEC support their claim that ATMOS is inappropriate for Seabrook, quoting the MACCS2 User Guide: **The atmospheric model 274 NRC Staff Answer at 68.

275 NextEra Answer to Friends/NEC Petition at 82 (quoting Entergy Nuclear Generation Co.

(Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC __, __ (slip op. at 9) (Aug. 27, 2010)

(emphasis by NextEra omitted)).

276 See Friends/NEC Petition at 52.

277 NRC Staff Answer at 68.

Case: 12-1561 Document: 00116418893 Page: 197 Date Filed: 08/16/2012 Entry ID: 5666489 Page 122 of 134 included in the code does not model the impact of terrain effects on atmospheric dispersion.!"278 Moreover, Friends/NEC!s criticisms of the Gaussian model all apply to the ATMOS model because ATMOS is a steady-state straight line Gaussian model.

NextEra and the NRC Staff say that Friends/NEC do not provide factual or expert support for their claim that reliance on only one meteorological measurement point makes NextEra!s SAMA analysis deficient.279 It seems self-evident, however, that the use of only one data point might have some potential to affect the accuracy of the final result, which, in turn, might affect the resulting cost-benefit values calculated by the model. Whether this is true is a merits issue to be addressed in further adjudicatory proceedings.

The NRC Staff notes that the Lawrence Livermore study Friends/NEC cite in support of their arguments relating to complex terrain280 was #specifically undertaken by the NRC to address concerns regarding the use of the Gaussian plume in the MACCS2 code."281 The Staff asserts that, because this report also concluded that the MACCS2 code with the ATMOS model is accurate at distances up to 200 miles,282 Friends/NEC!s #evidence does not indicate that the ATMOS model is inaccurate at distances over 31 miles"283 but that #the ATMOS model may be 278 Friends/NEC Petition at 51 (quoting D. Chanin & M.L. Young, Code Manual for MACCS2 User!s Guide, NUREG/CR-6613, Vol. 1, at 7-10 (May 1998) (ADAMS Accession No. ML063550020)).

279 NextEra Answer to Friends/NEC Petition at 88-89; NRC Staff Answer at 76.

280 Friends/NEC Petition at 54 (citing C. R. Molenkamp, et al., Lawrence Livermore National Laboratory, Comparison of Average Transport and Dispersion Among a Gaussian, a Two-Dimensional and a Three-Dimensional Model, NUREG/CR-6853 (Oct. 2004) (ADAMS Accession No. ML043240034) [hereinafter NUREG/CR-6853]).

281 NRC Staff Answer at 70 (citing NUREG/CR-6853, at xi, 41).

282 Id. (citing NUREG/CR-6853, at 72).

283 Id. at 70-71.

Case: 12-1561 Document: 00116418893 Page: 198 Date Filed: 08/16/2012 Entry ID: 5666489 Page 123 of 134 used at much greater distances for SAMA analyses.*284 In a footnote, the NRC Staff acknowledges that Friends/NEC assert that a June 2004 MACCS2 guidance report recognizes that the "code should be applied with caution at distances greater than ten to fifteen miles.$285 Similarly, NextEra responds to Friends/NEC*s terrain allegation with technical arguments and admonishes the petitioners for not addressing sensitivity analyses NextEra performed.286 Although proffering reasonable counter arguments, NextEra*s and the NRC Staff*s detailed discussion of the technical issues raised by Friends/NEC supports petitioners* position that they have raised genuine disputes as to material facts that are appropriately addressed in an adjudicatory hearing. The discrepancy between the positions advanced by Friends/NEC, NextEra and the NRC Staff will be addressed in further proceedings.

In summary, Friends/NEC present and support numerous material factual issues relating to the appropriateness of NextEra*s use of the one-dimensional, air dispersion model ATMOS at Seabrook

• an allegedly complex geographic and meteorological site. NextEra and the NRC Staff raise counter arguments, but the difference between these positions is merits-based and properly addressed in further adjudicatory proceedings.

We admit Friends/NEC Contention 4D.

f. Friends/NEC Contention 4E Friends/NEC Contention 4E states:

Use of inputs that minimized and inaccurately reflected the economic consequences of a severe accident, including decontamination costs, cleanup costs and health costs, and that either minimized or ignored a host of other costs.287 284 Id. at 71.

285 Id. at 70 n.91 (citing Friends/NEC Petition at 52).

286 NextEra Answer to Friends/NEC Petition at 87-88.

287 Friends/NEC Petition at 61 (capitalization omitted).

Case: 12-1561 Document: 00116418893 Page: 199 Date Filed: 08/16/2012 Entry ID: 5666489 Page 124 of 134 Friends/NEC Contention 4E consists of three challenges related to the costs of a potential severe accident. First, Friends/NEC allege that because it *uses the outdated and inaccurate MACCS2 code to calculate decontamination and clean up costs,*288 NextEra employs an inapplicable particle size, ignores the difficulty of cleanup in an urban area, and does not consider the effects of radiological waste disposal.289 Further, they allege, the *cost formula used in the MACCS2 underestimates costs likely to be incurred as a result of a dispersion of radiation.*290 Second, Friends/NEC allege that *[t]he current ER assigns a value of

$2000 per person[-]rem"291 and that using this value !to estimate the cost of the health effects generated by radiation exposure is based on a deeply flawed analysis and seriously underestimates the cost of the health consequences of severe accidents."292 Third, Friends/NEC allege that a number of other economic costs, such as job training and unemployment payments, !were underestimated or totally ignored by the applicant that when added together would in all likelihood add up collectively to a significant amount."293 Friends/NEC Contention 4E is admissible as to allegations associated with the decontamination and clean up costs of severe accidents associated with particle size and remediation difficulty in urban areas, but is not admissible with regard to waste disposal. This contention also is inadmissible as to the other two cost-related allegations: that is, underestimating health costs using the $2,000 per person-rem factor and excluding other economic costs such as job retraining and unemployment payments.

288 Id. at 62.

289 Id. at 62-64.

290 Id. at 62.

291 Id. at 68.

292 Id.

293 Id. at 73 (emphasis omitted).

Case: 12-1561 Document: 00116418893 Page: 200 Date Filed: 08/16/2012 Entry ID: 5666489 Page 125 of 134

i. Decontamination and Clean Up Costs Friends/NEC allege that the decontamination and clean up costs NextEra calculated in its SAMA analysis are underestimated by the MACCS2 code.294 NextEra and the NRC Staff both oppose admitting this portion of Friends/NEC Contention 4E.295 Noting that the MACCS2 User*s Guide indicates that the decontamination processes are based on the WASH-1400 economic cost model,296 Friends/NEC cite a Sandia study that allegedly "recognized that earlier estimates (such as incorporated in WASH-1400 and up through and including MACCS2) of decontamination costs are incorrect because they examined fallout from nuclear weapons explosions that produce large particle sizes and high mass loadings.*297 Friends/NEC assert that, because reactor accident radionuclide particles are smaller than nuclear explosion particles, reactor accident releases are more difficult to decontaminate and clean up, presumably resulting in higher costs.298 Friends/NEC also allege that NextEra did not consider that urban areas are "more expensive and time consuming to decontaminate and clean than rural areas* and did not account for the differences in the EPA and NRC cleanup standards on the ultimate cost of the 294 Id. at 62.

295 NextEra Answer to Friends/NEC Petition at 100; NRC Staff Answer at 77.

296 Friends/NEC Petition at 62 (citing D. Chanin & M.L. Young, Code Manual for MACCS2 User*s Guide, NUREG/CR-6613, Vol. 1, at 7-10 (May 1998) (ADAMS Accession No. ML063550020)).

297 Id. at 66 (citing David I. Chanin & Walter B. Murfin, Site Restoration: Estimation of Attributable Costs from Plutonium-Dispersal Accidents (May 1996) available at http://chaninconsulting.com/downloads/sand96-0957.pdf). NextEra contends that Friends/NEC should have explained how the Sandia study, which addresses plutonium dispersal accidents, is relevant to reactor accidents. NextEra Answer to Friends/NEC Petition at 89-91. NextEra*s technical objection to the relevance of supporting documents Friends/NEC proffer is a merits issue appropriately addressed at hearing.

298 Friends/NEC Petition at 62-63.

Case: 12-1561 Document: 00116418893 Page: 201 Date Filed: 08/16/2012 Entry ID: 5666489 Page 126 of 134 clean up.299 Friends/NEC provides support for these allegations by citing a study by Pacific Northwest National Laboratory that indicated a significant difference in costs depending on the population density and cleanup standard.300 We agree with the NRC Staff*s conclusion that Friends/NEC have "provided adequate support for its assertion that smaller particles will create higher cleanup costs, and that urban areas are more costly to clean up than rural areas.*301 The NRC Staff contends, however, that Friends/NEC have not provided sufficient information to demonstrate that the cost impact of the smaller particle size or other considerations raises a material issue.302 NextEra likewise contends that Friends/NEC "fall far short* of showing "$it looks genuinely plausible** that including proffered information may change the outcome of the SAMA analysis.303 We disagree. Petitioners dispute sufficiently important assumptions in the calculation of severe accident decontamination and cleanup costs to make it plausible that another SAMA candidate might be cost-effective.

Insofar as Friends/NEC contend that NextEra*s SAMA analysis improperly "ignored . . .

radioactive waste disposal,*304 their claim is outside the scope of this proceeding as it directly challenges the generic determinations in Table B-1 of appendix B to Part 51 concerning uranium fuel cycle and waste management. Table B-1 codifies the Commission*s determination, supported by the GEIS, that all uranium fuel cycle and waste management 299 Id. at 64-65.

300 Id. at 64-65 (citing Friends/NEC Petition, Attach. C, Barbara Reichmuth, et al., Economic Consequences of a Rad/Nuc Attack: Cleanup Standards Significantly Affect Costs, at 6 tbl.1, 12 (April 2005)).

301 NRC Staff Answer at 80.

302 Id. at 78.

303 NextEra Answer to Friends/NEC Petition at 91 (quoting Pilgrim I, CLI-10-11, 71 NRC at __

(slip op. at 39) (emphasis added by NextEra)).

304 Friends/NEC Petition at 63.

Case: 12-1561 Document: 00116418893 Page: 202 Date Filed: 08/16/2012 Entry ID: 5666489 Page 127 of 134 issues, including low-level waste storage and disposal, mixed waste storage and disposal, on-site spent fuel storage, and transportation, are Category 1 issues with a small impact.305 Thus, NextEra can incorporate the GEIS*s analysis into its ER and not offer any additional analysis on these issues.306 ii. Health Costs Friends/NEC claim that NextEra *underestimates the population-dose related costs of a severe accident by relying inappropriately on a $2000/person-rem conversion factor."307 Friends/NEC asserts that this conversion factor is inappropriate because it !does not take into account the significant loss of life associated with early fatalities from acute radiation exposure"308 and !underestimates the generation of stochastic health effects by failing to take into account the fact that some members of the public exposed to radiation after a severe accident will receive doses above the threshold level for application of a dose- and dose-rate reduction effectiveness factor (DDREF)."309 Friends/NEC also claim !that the Applicant*s evacuation time input data into the code were unrealistically low and unsubstantiated; and that if correct evacuation times and assumptions regarding evacuation had been used, the analysis would show far fewer will evacuate in a timely manner, increasing health-related costs."310 Friends/NEC do not cite any alleged facts or expert opinion indicating error in the

$2000/person-rem conversion factor, in the use of a single DDREF, or in the evacuation times 305 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1.

306 See Turkey Point, CLI-01-17, 54 NRC at 11 (![L]icense renewal applicants need not submit in their site-specific Environmental Reports an analysis of Category 1 issues.").

307 Friends/NEC Petition at 68.

308 Id.

309 Id. at 68-69.

310 Id. at 72.

Case: 12-1561 Document: 00116418893 Page: 203 Date Filed: 08/16/2012 Entry ID: 5666489 Page 128 of 134 or assumptions. Instead, Friends/NEC cite a study allegedly estimating the total number of cancer deaths in a severe accident at Seabrook and suggest that *[a] better way to evaluate the cost equivalent of the health consequences resulting from a severe accident is simply to sum the total number of . . . fatalities . . . and multiply by . . . $3 million,"311 an estimate of the value of a statistical life.312 This argument is a recasting of the petitioners* challenge to the use of probability-weighted consequences in Friends/NEC Contention 4A, which, as discussed previously, is outside the scope of this proceeding.

iii. Other Costs Friends/NEC assert that !NextEra did not appear to include in their economic cost estimates the business value of property and the incurred costs such as costs required from job retraining, unemployment payments, and inevitable litigation."313 This aspect of Friends/NEC Contention 4E is not admissible because petitioners have presented no facts or expert opinion concerning such costs that show it to be plausible that including them might affect the outcome of the SAMA analysis.

In summary, we admit Friends/NEC Contention 4E only in regard to the effects of particle size and difficulties with urban cleanup on decontamination costs.

g. Friends/NEC Contention 4F Friends/NEC Contention 4F states:

Use of inappropriate statistical analysis of the data specifically the Applicant chose to follow NRC practice, not NRC regulation, regarding SAMA analyses by using mean consequence values instead of, for example, 95 percentile values.314 311 Id. at 71 (citing Sandia National Laboratory, Calculation of Reactor Accident Consequences, U.S. Nuclear Power Plants (CRAC-2) (1982)).

312 Id. at 69.

313 Id. at 73.

314 Id. at 74 (capitalization omitted).

Case: 12-1561 Document: 00116418893 Page: 204 Date Filed: 08/16/2012 Entry ID: 5666489 Page 129 of 134 Friends/NEC criticize NextEra for failing to consider that using only mean values of meteorological data results in uncertainties in the calculation of population dose and offsite economic cost.315 Friends/NEC contend that *Seabrook*s SAMA cost-benefit evaluation should be based on the 95th percentile of the meteorological distribution to be consistent with the approach taken in the License Renewal GEIS, which refers repeatedly to the 95th percentile of the risk uncertainty distribution as an appropriate #upper confidence bound" in order not to

1. underestimate potential future environmental impacts."$316 The Commission has specifically rejected this argument, however, explaining that !license renewal applicants are not required to base their SAMA analysis upon consequence values at the 95th percentile consequence level (the level used for the GEIS severe accident environmental impacts analysis).$317 We do not admit Friends/NEC Contention 4F because the Commission has ruled that the claim petitioners make is not material and does not satisfy 10 C.F.R. § 2.309(f)(1)(iv).

7. Additional Claims At the conclusion of their petition, the Friends/NEC petitioners request that, in considering their proffered contentions, the Commission !also consider the interplay between current design basis (CLB) and aging management through the period of extended operation.$318 Friends/NEC"s claims in this regard have not been proffered as contentions that purport to satisfy the requirements of 10 C.F.R. § 2.309(f)(1), and the Board will not consider them.

315 Id.

316 Id. at 75-76 (quoting GEIS § 5.3.3.2.1).

317 Pilgrim I, CLI 10-11, 71 NRC __ (slip op. at 39).

318 Friends/NEC Petition at 77.

Case: 12-1561 Document: 00116418893 Page: 205 Date Filed: 08/16/2012 Entry ID: 5666489 Page 130 of 134 E. Ruling on Petitions As set forth above, Beyond Nuclear, the Seacoast Anti-Pollution League, the New Hampshire Sierra Club, Friends of the Coast, and the New England Coalition have each proffered at least one admissible contention meeting the requirements of 10 C.F.R. § 2.309(f) and have demonstrated standing in accordance with 10 C.F.R. § 2.309(d). Therefore, in accordance with 10 C.F.R. § 2.309(a), the Board grants the requests for hearing and petitions for leave to intervene and admits the five named organizations as parties to this proceeding.

F. Hearing Procedure Upon admission of a contention the Board must identify the specific hearing procedures to be used.319 Section 2.310(d) of 10 C.F.R provides that, in license renewal proceedings and other reactor licensing matters, the relatively formal procedures provided in Subpart G of 10 C.F.R. Part 2 govern if a contention !necessitates resolution of issues of material fact relating to the occurrence of a past activity, where the credibility of an eyewitness may reasonably be expected to be at issue, and/or issues of motive or intent of the party or eyewitness material to the resolution of the contested matter.*320 A petitioner requesting Subpart G based on Section 2.310(d) must demonstrate *by reference to the contention and the bases provided and the specific procedures in [S]ubpart G*

that resolving the contention will require *resolution of material issues of fact which may be best determined through the use of the identified procedures.*321 Unless the Board determines that Section 2.310(d) or other relevant regulations require otherwise,322 a license renewal 319 10 C.F.R. § 2.310(a).

320 Id. § 2.310(d).

321 Id. § 2.309(g).

322 See, e.g., id. § 2.310(b)-(c) (providing that unless the parties agree otherwise, enforcement matters and licensing of uranium enrichment facility construction and operation must be conducted under Subpart G).

Case: 12-1561 Document: 00116418893 Page: 206 Date Filed: 08/16/2012 Entry ID: 5666489 Page 131 of 134 proceeding may be conducted under the relatively informal procedures of subpart L of 10 C.F.R. Part 2.323 Friends/NEC and the Beyond Nuclear petitioners do not address the selection of hearing procedures in their petitions or replies. NextEra argues that Subpart L procedures should be used because the petitioners did not demonstrate that the facts at issue in this case would best be resolved through the more formal Subpart G procedures.324 The NRC Staff does not address the issue.

In the absence of any assertion that Subpart G procedures should be used to resolve any of the admitted contentions, the Subpart L hearing procedures will be used to adjudicate each admitted contention.

III. ORDER For the foregoing reasons:

A. Friends/NEC*s request to extend the filing period for petitions is granted.

B. Friends/NEC*s unopposed request to extend the filing period for replies is granted.

C. The petitions to intervene and requests for hearing of the Beyond Nuclear petitioners and Friends/NEC are granted.

D. As limited by the Board*s foregoing discussion, the Beyond Nuclear Contention, Friends/NEC Contention 1, Friends/NEC Contention 2, Friends/NEC Contention 4B, Friends/NEC Contention 4D, and Friends/NEC Contention 4E are admitted.

E. Friends/NEC Contention 3, Friends/NEC Contention 4A, Friends/NEC Contention 4C, and Friends/NEC Contention 4F are not admitted.

323 Id. § 2.310(a).

324 NextEra Answer to Beyond Nuclear Petition at 36; NextEra Answer to Friends/NEC Petition at 105.

Case: 12-1561 Document: 00116418893 Page: 207 Date Filed: 08/16/2012 Entry ID: 5666489 Page 132 of 134 F. Because the Board declines to consider the revised declaration of Paul Blanch and other materials submitted by Friends/NEC on December 6, 2010, Friends/NEC*s motion for leave to reply is denied as moot.

G. The admitted contentions will be adjudicated under the procedures set forth at 10 C.F.R. Part 2, Subpart L.

In accordance with the provisions of 10 C.F.R. § 2.311, any appeal to the Commission from this Memorandum and Order must be taken within ten (10) days after it is served.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD

_______5$________________

Paul S. Ryerson, Chairman ADMINISTRATIVE JUDGE

_5$________________

Dr. Michael F. Kennedy ADMINISTRATIVE JUDGE

5$_________________

Dr. Richard E. Wardwell ADMINISTRATIVE JUDGE Rockville, Maryland February 15, 2011

Case: 12-1561 Document: 00116418893 Page: 208 Date Filed: 08/16/2012 Entry ID: 5666489 Page 133 of 134 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

NEXTERA ENERGY SEABROOK, LLC ) DOCKET NO. 50-443-LR (Seabrook Station, Unit 1) )

)

(License Renewal) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Board MEMORANDUM AND ORDER (Ruling on Petitions for Intervention and Requests for Hearing) (LBP-11-02), dated February 15, 2011, have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop: O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Emily Monteith, Esq.

Administrative Judge emily.monteith@nrc.gov Paul S. Ryerson, Chair Brian Newell, Paralegal psr1@nrc.gov brian.newell@nrc.gov David Roth, Esq.

Administrative Judge david.roth@nrc.gov Michael F. Kennedy Maxwell Smith, Esq.

michael.kennedy@nrc.gov maxwell.smith@nrc.gov Mary Spencer, Esq.

Administrative Judge mary.spencer@nrc.gov Richard E. Wardwell Edward Williamson, Esq.

richard.wardwell@nrc.gov edward.williamson@nrc.gov Megan Wright, Esq.

Anthony C. Eitreim, Esq. megan.wright@nrc.gov Chief Counsel OGC Mail Center ace1@nrc.gov OGCMailCenter@nrc.gov Hillary Cain, Law Clerk hillary.cain@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Office of Commission Appellate Adjudication Mail Stop: O-16C1 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 hearingdocket@nrc.gov ocaamail@nrc.gov

Case: 12-1561 Document: 00116418893 Page: 209 Date Filed: 08/16/2012 Entry ID: 5666489 Page 134 of 134 NEXTERA ENERGY SEABROOK, LLC (Seabrook Station Unit 1)

• Docket No. 50-443-LR MEMORANDUM AND ORDER (Ruling on Petitions for Intervention and Requests for Hearing) (LBP-11-02)

Counsel for the Applicant Counsel for the Applicant NextEra Energy Seabrook, LLC NextEra Energy Seabrook, LLC 801 Pennsylvania Avenue, N.W. 700 Universe Boulevard Suite 220 Juno Beach, FL 33408 Washington, DC 20004 William Blair, Esq.

Steven C. Hamrick, Esq. william.blair@fpl.com steven.hamrick@fpl.com Antonio Fernandez, Esq.

Kim Bartels, Paralegal antonio.fernandez@fpl.com kim.bartels@fpl.com Mitchell S. Ross, Esq.

mitch.ross@fpl.com Beyond Nuclear Friends of the Coast/New England Coalition 6930 Carroll Avenue, Suite 400 Post Office Box 98 Takoma Park, MD 20912 Edgecomb, ME 04556 Paul Gunter, Director Raymond Shadis, Pro Se Representative Reactor Oversight Project shadis@prexar.com paul@beyondnuclear.org New Hampshire Sierra Club 40 N. Main Street Concord, NH 03870 Kurt Ehrenberg, Field Organizer kurt.ehrenberg@sierraclub.org Seacoast Anti-Pollution League P.O. Box 1136 Portsmouth, NH 03802 Doug Bogen, Executive Director dbogen@metrocast.net

[Original signed by Linda D. Lewis]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 15th day of February 2011 2