ML12349A327

Exelons Response Opposing Nrdcs Petition for Waiver of 10 C.F.R. Section 51.53(C)(3)(ii)(L)

ML12349A327
Person / Time
Site:	Limerick
Issue date:	12/14/2012
From:	Polonsky A Morgan, Morgan, Lewis & Bockius, LLP, Exelon Generation Co
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23891, 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01
Download: ML12349A327 (50)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

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

)

(Limerick Generating Station, Units 1 and 2) ) December 14, 2012

)

EXELONS RESPONSE OPPOSING NRDCS PETITION FOR WAIVER OF 10 C.F.R. § 51.53(C)(3)(ii)(L)

TABLE OF CONTENTS I. PROCEDURAL BACKGROUND .............................................................................. 5 II. LEGAL STANDARDS ................................................................................................. 11 A. Criteria for Waiver Under 10 C.F.R. § 2.335 ........................................................ 11 B. Summary of Controlling NEPA Principles............................................................ 13

1. GEIS and 10 C.F.R. Part 51 Rulemaking ................................................. 13

2. New and Significant Information .......................................................... 16 III. THE WAIVER PETITION MUST BE DENIED ..................................................... 18 A. NRDCs Waiver Petition Fails to Meet the Criteria of 10 C.F.R. § 2.335 ............ 18

1. NRDC Does Not Demonstrate that Application of the Section 51.53(c)(3)(ii)(L) Exception to Limerick Would Not Serve the Purposes for White It Was Adopted ......................................................................... 19

2. NRDC Does Not Demonstrate Special Circumstances ............................ 28

3. NRDC Does Not Explain Why There Are Special Circumstances Unique to Limerick ................................................................................................ 32

4. NRDC Fails to Show that A Waiver of theSEction 51.53(c)(3)(ii)(L)

Exception Is Necessary to Address a Significant Environmental Problem 36 B. The Weaver Declaration is Defective and Therefore Should be Disregarded ......................................................................................... 43 C. Contrary to NRDCs Assertion, the Existence of New and Significant Information Does Not Automatically Require a Waiver ................................... 46 D. NRDC Has Other Avenues to Pursue its Concern ............................................... 48 IV. CONCLUSION ............................................................................................................. 49 2

In accordance with this Boards November 27, 2012 Order, Exelon Generation Company, LLC (Exelon) submits this Response opposing Natural Resources Defense Councils (NRDC) Waiver Petition.1 Exelons Response is supported by the attached Counter Affidavit.2 NRDC requests an unprecedented waiver of a long-standing U.S. Nuclear Regulatory Commission (NRC) regulation (i.e., 10 C.F.R. § 51.53(c)(3)(ii)(L)) which expressly provides that certain plants, for which the NRC Staff already has considered severe accident mitigation alternatives (SAMAs) under the National Environmental Policy Act (NEPA), need not perform another SAMA analysis to support license renewal. NRDC seeks waiver of this rule so it can litigate two separate contentions (a total of three bases) based on alleged new information related to: (1) potential SAMA candidates previously considered for other Boiling Water Reactors (BWRs) with Mark II Containments post-dating the 1989 severe accident mitigation design alternatives (SAMDA) analysis performed for Limerick (Contention 1E-1); (2) updated data on economic cost risk (Contention 1E-2); and (3) modern techniques for assessing whether newly-identified SAMA candidates are cost-beneficial (Contention 3E).3 As described further below, the Board should deny this Waiver Petition for three independent reasons.

First, the Waiver Petition should be denied because NRDC has failed to meet its extremely high burden under binding NRC precedent for grant of a waiver.4 Simply put, 1

[NRDCs] Petition, By Way of Motion, For Waiver of 10 C.F.R. § 51.53(C)(3)(ii)(L) as Applied to Application for Renewal of Licenses for Limerick Units 1 and 2 (Nov. 21, 2012) (Waiver Petition) available at ADAMS Accession No. ML12326A976.

2 Exelons Counter Affidavit Supporting Exelons Response Opposing NRDCs Petition for Waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L) (Dec. 14, 2012) (Exelons Counter Affidavit).

3 Waiver Petition at 3, 20-22.

4 Tenn.Valley Auth. (Watts Bar Nuclear Plant, Unit 2), LBP-10-12, 71 NRC 656, 662 (June 29, 2010) (Watts Bar) (citing Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), CLI-89-20, 30 NRC 231, 245 (1989)).

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NRDC has not made a prima facie showing that all four Millstone factors have been met.5 NRDC masks its deficiencies by consolidating waiver arguments for two separate contentions (three bases) into one attempt to meet the four Millstone factors, but a Board may only certify a waiver petition to the Commission for consideration of a contention if a Petitioner has met its high burden for that contention. NRDC has failed to meet this high burden for any of its contentions.

On a related note, NRDC has failed to satisfy the affidavit requirement set forth in 10 C.F.R. § 2.335, which is also fatal to the Waiver Petition. The original declaration used to support NRDCs Petition to Intervene and Hearing Request (Hearing Request) was signed by three people.6 Dr. Christopher J. Weaver is NRDCs sole technical declarant supporting waiver, but he cuts and pastes technical positions from the original declaration while continuing to attribute those positions to other people. NRDC changes the legal purpose of the declaration it previously filed without the written consent of two out of the three original affiants.

Accordingly, the Board should disregard all technical arguments, expert opinions, and other factual averments that are not solely supported by Dr. Weaver. A cursory review of NRDCs technical declaration (Weaver Declaration)7 reveals that only two paragraphs are actually supported by only Dr. Weaver - none of which even mention, much less set forth with particularity, any circumstance that satisfies the stringent waiver standards set forth above.

5 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station Units 2 and 3), CLI-05-24, 62 NRC 551, 559-60 (2005) (Millstone).

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

7 Declaration of Christopher J. Weaver, Ph.D., on Behalf of the [NRDC] in Support of Motion for Waiver (Nov.

21, 2012) (Weaver Decl.), available at ADAMS Accession No. ML12326A974.

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Second, the Waiver Petition is premised on NRDCs fundamental misunderstanding of the new and significant requirement under Part 51.8 Part 51 requires that the NRC consider new and significant information, but does not provide the public an automatic right to litigate new and significant information relating to generic Commission determinations in a hearing.

Rather, any such litigation is premised on satisfying the stringent waiver standards set forth under Section 2.335(b). Accordingly, and contrary to NRDCs claims, the mere assertion of new and significant information does not compel the NRC to waive Section 51.53(c)(3)(ii)(L) or otherwise permit litigation of SAMA issues in this proceeding.

Finally, NRDC has other avenues to pursue its concern that would not require the Board and parties to expend unnecessary resources litigating issues that also are applicable to other plants. NRDC may challenge new and significant information pertaining to issues decided by rule, as is the case here, by filing a petition for rulemaking in accordance with 10 C.F.R. § 2.309.

NRDC also can submit comments on the NRCs draft Supplemental Environmental Impact Statement (SEIS).9 For all these reasons, the Board should deny the Waiver Petition.

I. PROCEDURAL BACKGROUND Limerick, located in Limerick Township, Pennsylvania, is a dual-unit site comprised of General Electric (GE) BWR-4 reactors with Mark II Containments. It has safely generated 2340 MWe of baseload electrical power for the Mid-Atlantic region for more than 20 years.10 In 8

10 C.F.R. § 51.53(c)(3)(iv).

9 In accordance with 10 C.F.R. § 2.802(a) Any interested person may petition the Commission to issue, amend or rescind any regulation.

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

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response to a decision by the Third Circuit Court of Appeals in Limerick Ecology Action, the NRC Staff completed an analysis of SAMDAs for the Limerick operating licenses as part of initial plant licensing.11 In August 1989, the Staff published its findings in the NUREG-0974 Supplement, Final Environmental Statement related to the operation of Limerick Generating Station, Units 1 and 2 (Limerick FEIS).12 In the Limerick FEIS, the Staff concluded that, based on its analysis of the cost of SAMDAs and the resulting cost per person-rem averted, no modifications to the plant were justified for the purpose of mitigating severe accident risks.13 On June 22, 2011, Exelon requested renewal of the Limerick operating licenses for an additional 20 years (i.e., until midnight on October 26, 2044, for Unit 1, and midnight on June 22, 2049, for Unit 2).14 Within the regulatory framework of Section 51.53(c)(3)(ii)(L), Exelon prepared its ER for license renewal. In doing so, Exelon did not conduct another SAMA analysis.15 Nor did Exelon incorporate the 1989 SAMDA analysis in the Limerick license renewal ER.16 Exelon did, however, evaluate the significance of new information, post-dating the 1989 EIS and related to population increase, offsite economic cost risk, criteria for assigning 11 Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 741 (3d Cir. 1989) (holding that NRC must consider SAMDAs in individual operating license proceedings, [b]ecause the action not to consider SAMDAs was promulgated as a policy statement, rather than a rule, and because it applies to an issue that [the court] find[s] is unlikely to be treated as generic.).

12 See generally Limerick FEIS.

13 See id. at vi.

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

15 See ER at 4-49.

16 See id. at 5-4.

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cost per person-rem averted, and seismic hazards.17 Exelon concluded that there is no new and significant information relevant to the conclusions codified in 10 C.F.R. § 51.53(c)(3)(ii)(L).18 The NRC docketed Exelons Application and published a Notice of Opportunity for Hearing on August 24, 2011.19 On November 22, 2011, NRDC filed its Hearing Request, which contained four proposed environmental contentions challenging portions of Exelons ER.20 NRDC did not originally submit a waiver petition because it incorrectly believed that Section 2.335(b) applied only to admitted parties.21 Exelon and the NRC Staff opposed the Hearing Request.22 In its Answer, Exelon contended that, consistent with the Commissions determination in the Part 51 rulemaking from 1996, and because the NRC Staff previously considered SAMAs in the Limerick operating license stage for the site, consideration of severe accident mitigation alternatives is a Category 1 issue for Limerick.23 Similarly, the NRC Staff argued that Exelon and the NRC Staff did not have to reassess SAMAs, for the purpose of license renewal, due to the Commissions generic 17 See id.at 5-6 to 5-9.

18 Id.at 4-49. Because the NRC does not specifically define the term significant, Exelon followed CEQ guidance and determined that MODERATE or LARGE impacts, as defined by NRC, would be significant.

Id. at 5 5-3.

19 See Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. NPF-39 and NPF-85 for an Additional 20-Year Period; Exelon Generation Co., LLC, Limerick Generating Station, 76 Fed. Reg. 52,992 (Aug. 24, 2011) (Notice of Opportunity for Hearing).

20 See generally Hearing Request. Although the Notice of Opportunity for Hearing indicated that a Petition to Intervene would be timely if filed by October 24, 2011, NRDC was granted an extension of time for filing its Petition until November 22, 2011. Secretary Order (Oct. 17, 2011), available at ADAMS Accession No. ML11290A233 (granting NRDC an extension of thirty days to file a petition to intervene).

21 See Hearing Request at 25 n.7; [NRDC] Combined Reply to Exelon and NRC Staff Answers to Petition to Intervene at 11 n. 6 (Jan. 6, 2012) (Reply), available at ADAMS Accession No. ML12006A224.

22 Exelons Answer Opposing NRDCs Petition to Intervene (Dec. 20, 2011) (Exelon Answer), available at ADAMS Accession No. ML11354A451; NRC Staffs Answer to [NRDC] Petition to Intervene and Notice of Intention to Participate (Dec. 21, 2011) (Staff Answer), available at ADAMS Accession No. ML11355A174.

23 Exelon Answer at 16.

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determination in Part 51, Table B-1 and Section 51.53(c)(3)(ii)(L).24 However, both Exelon and the NRC Staff recognized that NRC regulations required them to consider any new and significant information related to the previous SAMA evaluation and that Exelon has considered new and significant information in its ER.25 On January 6, 2012, NRDC filed its Reply.26 On April 4, 2012, the Board issued LBP-12-08, dismissing Contentions 2-E and 3-E for inappropriately challenging the 1989 SAMDA analysis,27 rejecting Contention 4-E, and admitting only a narrowed version of Contention 1-E.28 As admitted, Contention 1-E stated that Exelons ER fails to consider, and inappropriately rejects as insignificant, new and significant information that calls into question the adequacy of the 1989 SAMDA analysis that the NRC Staff completed in support of its approval of Limericks initial operating licenses.29 The Board did not address certain Exelon arguments that NRDC had failed to raise a genuine dispute of material fact as required by Section 2.309(f)(1)(vi).30 24 Staff Answer at 8.

25 See Staff Answer at 8, n. 26; Exelon Answer at 16.

26 See Reply.

27 In dismissing Contention 2-E, the Board stated, . . . .this contention is a direct attack on the 1989 SAMDA.

The 1989 SAMDA is not a part of the Limerick license renewal ER. Therefore, Contention 2-E is inadmissible because NRDC has not raised a dispute with Exelons application, contravening 10 C.F.R. 2.309(f)(1)(vi), and because it is outside the scope of this proceeding. Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), LBP-12-08, 75 NRC __ , slip op. at 30 (Apr. 4, 2012) (LBP-12-8). The Board dismissed Contention 3-E for directly challenging sub-section (L), and because, NRDCs proposed interpretation of

[Section 51.53(c)(3)(ii)(L)] is in direct conflict with the plain meaning of the regulation and its Statement of Consideration. Id. at 34.

28 Id. at 40.

29 Id. at 24-25.

30 Exelon discussed this issue on pages 22-27 of its brief appealing LBP-12-08 to the Commission.

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Exelon and the NRC Staff filed timely appeals of LBP-12-08.31 With respect to Section 51.53(c)(3)(ii)(L), Exelon asserted that, consistent with Commission rulings in Pilgrim and Vermont Yankee: (1) an intervenor may not challenge an applicants analysis of new and significant information for matters otherwise resolved by rule, absent a waiver;32 and (2) NRDC could not challenge the adequacy of Exelons consideration of new and significant information related to the 1989 SAMDA analysis, absent a waiver. Exelon reasoned that allowing otherwise would obviate the exceptions set forth clearly and unambiguously in Section 51.53(c)(3), and permit unfettered challenges to SAMA analyses that the Commission has expressly determined, by rule, need not be conducted again for purposes of license renewal.33 In their Answers, both Exelon and the NRC Staff again acknowledged that Section 51.53(c)(3)(iv) requires Exelons ER to contain any new and significant information regarding the environmental impacts of license renewal of which [it] is aware.34 On October 23, 2012, in CLI-12-19, the Commission reversed LBP-12-08.35 The Commission ruled that, for Contention 1-E, the Board incorrectly interpreted the interplay between the codified exception in Section 51.53(c)(3)(ii)(L) for Limerick and other plants 31 See Exelon Notice of Appeal of LBP-12-08 and Supporting Brief at 22-27 (Apr. 16, 2012) (Exelon Appeal),

available at ADAMS Accession No. ML12107A417; NRC Staffs Notice of Appeal of LBP-12-08 at 10-19 (Apr. 16, 2012) (NRC Staff Appeal) available at ADAMS Accession No. ML12107A406.

32 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13, 17-18 (2007)

(Vermont Yankee/Pilgrim); see also Entergy Nuclear Generation Co. (Vt. Yankee Nuclear Power Station),

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

33 See Exelon Appeal at 6-7.

34 Exelon Appeal at 13; NRC Staff Appeal at 4, n.16.

35 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), Memorandum and Order, CLI 19, 75 NRC __ (Oct. 23, 2012).

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from including another SAMA analysis in their environmental reports, and the requirement to include new and significant information in Section 51.53(c)(3)(iv).36 The Commission ruled that the Board should have applied to the current proceeding the Commissions ruling in Vermont Yankee/Pilgrim regarding Category 1 determinations.37 Specifically, the Commission noted that the new and significant information requirement in Section 51.53(c)(3)(iv) does not trump a Category 1 determination because, [a]djudicating Category 1 issues site by site based merely on a claim of new and significant information, would defeat the purpose of resolving generic issues in a [Generic Environmental Impact Statement].38 The Commission then ruled that Section 51.53(c)(3)(ii)(L)s exemption for Limerick operates as the functional equivalent of a Category 1 issue,39 because a waiver is required to litigate any new and significant information relating to a Category 1 issue.40 In order to litigate Contention 1-E, NRDC would need a waiver of Section 51.53(c)(3)(ii)(L).41 The Commission then remanded the proceeding to the Board for the limited purpose of providing 36 Id. slip op. at 8 (citing LBP-12-8 at 19) (emphasis added).

37 Id. slip op. at 12. Part 51 divides the environmental impacts from license renewal into Category 1 and Category 2 issues. See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg.

28,467, 28,467 (June 5, 1996). Category 1 issues are those resolved for all plants by the GEIS and as such, Category 1 issues need not be addressed in plant-specific license renewal ERs. See id. at 28,474. In comparison, Category 2 issues require plant-specific review. See id.

38 Limerick, CLI-12-19, 75 NRC __, slip op. at 10 (citations omitted).

39 Id. at 13. In determining that the exemption in Section 51.53(c)(3)(ii)(L) for Limerick and similarly-situated plants operates as the functional equivalent of a Category 1 issue, the Commission noted that the Commission already resolved the SAMA issue by rule. See id. (Indeed, Limerick is specifically named in the Statements of Consideration as a plant for which SAMAs need not be reconsidered . . . for license renewal. (citing Environmental Review for Renewal of Nuclear Power Plant Operating License, 61 Fed. Reg. at 28,481)).

40 Limerick, CLI-12-19, 75 NRC __, slip op. at 12 (citing Vermont Yankee/Pilgrim, CLI-07-3, 65 NRC at 18 n.15, 20).

41 Id. at 13 (However, based on the circumstances present here and given that our rules expressly provide that a supplemental SAMA analysis need not be performed in this case, the proper procedural avenue for NRDC to raise its concerns is to seek a waiver of the relevant provision in section 51.53(c)(3)(ii)(L).).

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NRDC an opportunity to submit a waiver petition with respect to portions of Contention 1-E, 2-E, and 3-E.42 After Exelon filed a Motion requesting that the Board establish a deadline for response to NRDCs anticipated waiver petition, the Board granted Exelon and the NRC Staff 25 days to file their responses, likening NRDCs Waiver Petition to a petition to intervene.43 II. LEGAL STANDARDS A. Criteria for Waiver Under 10 C.F.R. § 2.335 In order to seek waiver of a rule in a particular adjudicatory proceeding, a petitioner must submit a petition pursuant to 10 C.F.R. § 2.335(b):

The sole ground for petition of waiver or exception is that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or a provision of it) would not serve the purposes for which the rule or regulation was adopted.

Further, such a petition, must be accompanied by an affidavit that identifies the specific aspect or aspects of the subject matter of the proceeding as to which the application of the rule or regulation (or provision of it) would not serve the purposes for which the rule or regulation was adopted. The affidavit must state with particularity the special circumstances alleged to justify the waiver or exception requested.44 The standards for a Licensing Board to certify a waiver petition are extremely high.45 In accordance with NRC precedent, a Board can only certify a waiver petition to the Commission 42 Id. at 15.

43 Licensing Board Order (Establishing Deadlines for Responses to NRDC Waiver Petition) (Nov. 27, 2012)

(unpublished).

44 10 C.F.R. § 2.335(b).

45 Seabrook, CLI-89-20, 30 NRC at 245.

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after finding that the petitioner has met extremely high standards showing the existence of compelling circumstances in which the rationale of [the regulation] is undercut.46 The high standards under Section 2.335(b) are intended to ensure that duly promulgated regulations are not lightly discarded.47 To meet this extremely high burden, a petitioner must make a prima facie showing that it satisfies each of the following four criteria: (1) the rules strict application would not serve the purposes for which [it] was adopted; (2) the petitioner has alleged special circumstances that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived; (3) those circumstances are unique to the facility rather than common to a large class of facilities; and (4) a waiver of the regulation is necessary to reach a significant environmental problem (hereinafter referred to as Millstone Factors).48 If a petitioner fails to make a prima facie showing of any of the four factors,49 the Board must dismiss its waiver petition,50 the matter may not be litigated, and the presiding officer may not further consider the matter.51 46 Watts Bar, LBP-10-12, 71 NRC at 656 (citing Seabrook, CLI-89-20, 30 NRC at 245).

47 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), ALAB-895, 28 NRC 7, 16 (1988). The Appeal Board explained that the relatively small number of waiver petitions filed in NRC adjudicatory proceedings and the fact that few, if any, such petitions have been successful evidence the difficulty of meeting the waiver standard. Id.

48 Millstone, CLI-05-24, 62 NRC at 559-60 (citing Seabrook, CLI-89-20, 30 NRC at 235; Pub. Serv. Co. of N.H.

(Seabrook Station, Units 1 and 2), CLI-88-10, 28 NRC 573, 597 (1988)). Though Millstone requires a petitioner to show that waiver of the regulation is necessary to reach a significant safety problem, id. at 562, Exelon agrees with the NRC Staff and NRDC that Commission precedent is consistent with construing Millstones fourth factor to apply to significant environmental issues, as well as safety issues. See NRC Staff Answer at 38 (citing Seabrook, CLI-88-10, 28 NRC at 597, 599); see NRDC Waiver Petition at 26 (acknowledging that this factor of the Millstone test reaches environmental concerns).

49 See Millstone, CLI-05-24, 62 NRC at 560. (The use of and in this list of requirements is both intentional and significant. For a waiver request to be granted, all four factors must be met.) Id.

50 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-11-35, 74 NRC __, slip op. at 12 (Nov. 28, 2011) (The presiding officer must dismiss any petition for waiver that does not make a prima facie showing of special circumstances with respect to the subject matter of the particular proceedingsuch that the 12

If the Board determines that the petitioner has made the required prima facie showing on these criteria, then the Board can certify the matter to the Commission.52 B. Summary of Controlling NEPA Principles A. GEIS and 10 C.F.R. Part 51 Rulemaking The Third Circuits ruling in Limerick Ecology Action directed the Commission to take the requisite hard look at SAMDAs, giving them the careful consideration and disclosure required by NEPA.53 The NRC satisfied NEPA by issuing its SEIS for Limerick in 1989. As the Board already exhaustively addressed this matter in its Order ruling on and admitting Contention 1-E, Exelon does not rebrief it here.

In the years that followed the Third Circuits Limerick Ecology Action decision, the NRC continued to evaluate those environmental impacts of licensing that it could address generically, consistent with NEPA. The Commission reasoned that many environmental issues that apply to license renewal applicants, in particular, could be resolved generically.54 Thus, in 1996, the NRC published its generic findings in NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS).55 application of the rule or regulation (or provision of it) would not serve the purposes for which the rule or regulation was adopted.).

51 See 10 C.F.R. § 2.335(c).

52 See id. §§ 2.335(c), (d).

53 Limerick Ecology Action, Inc., 869 F.2d at 736-37, 739 (quoting Balt. Gas & Elec. Co. v. Natural Res. Def.

Council, 462 U.S. 87, 98 (1983)).

54 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,467-68.

55 NUREG-1437, Vol. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, (May 1996) (NUREG-1437), available at ADAMS Accession No. ML040690705. Although the NRC has issued a draft revision of the GEIS for public comment, that draft does not propose changes to the requirement that certain plants conduct SAMA analyses at license renewal. See NUREG-1437, Rev. 1, Draft Generic Environmental Impact Statement for License Renewal of Nuclear Plants [GEIS], at 4-154 155 (June 2009)

(alternatives to mitigate severe accidents still must be considered for all plants that have not considered such alternatives), available at ADAMS Accession No. ML090220654. See also Notice of Availability of the Draft Revision to [GEIS], Revision 1, NUREG-1437 and Public Meetings, 74 Fed. Reg. 38,239 (July 31, 2009). The 13

The NRC also amended its environmental regulations at 10 C.F.R. Part 51 to reflect certain findings in the GEIS.56 Part 51 divides the environmental requirements for license renewal into Category 1 and Category 2 issues.57 Category 1 issues are those resolved generically by the GEIS or that otherwise need not be addressed as part of license renewal, whereas Category 2 issues require plant-specific review.58 For each license renewal applicant, Part 51 requires that the NRC Staff prepare a plant-specific supplement to the GEIS that adopts applicable generic impact findings from the GEIS, evaluates any new and significant information, and discusses site-specific impacts.59 With respect to severe accidents, the GEIS provides a generic bounding evaluation of severe accident impacts and the technical basis for that evaluation.60 Based on the GEIS evaluation, Part 51 concludes that the [t]he 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.61 The Commission determined that the GEIS analysis for the impacts of severe accidents would generally over-predict environmental Commission recently approved issuance of the revised GEIS. See SRM-SECY-12-0063, Final Rule: Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating License (10 CFR 51; RIN3150-A142)

(Dec. 6, 2012) (SRM-SECY-12-0063).

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

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

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

59 See 10 C.F.R. § 51.95(c).

60 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 316 (2010);

NUREG-1437 at § 5.3.3.

61 10 C.F.R. pt. 51, subpt. A, app. B, tbl. B-1 (Postulated Accidents; Severe accidents) (emphasis added).

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consequences.62 Thus, a plant-specific analysis of severe accident impacts is not required in individual license renewal proceedings.63 However, license renewal applicants may be required to address SAMAs. The Commission determined that SAMAs must be considered on a plant-specific basis, pursuant to the NRCs NEPA regulations and the Third Circuits 1989 Limerick Ecology Action decision.64 But the Commission expressly noted that the NRC Staff had already conducted a plant-specific SAMDA analysis at the operating license stage for three plantsLimerick Units 1 and 2, Comanche Peak Units 1 and 2, and Watts Bar.65 As a result, the Commission does not require another SAMA analysis to be conducted for purposes of license renewal for any of these plants.66 Accordingly, Section 51.53(c)(3)(ii)(L) provides that mitigation of severe accidents is a Category 2 issue for plants that have not performed a site-specific consideration of severe accident mitigation and submitted that analysis for Commission review.67 The Commission recently reconfirmed its intent in the 1996 Part 51 rulemaking that Limerick (and other similarly situated plants) are exempted by rule from performing a supplemental site-specific SAMA 62 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,480.

63 See id.; see also Pilgrim, CLI-10-11, 71 NRC at 316 (NRC SAMA analyses are not a substitute for, and do not represent, the NRC NEPA analysis of potential impacts of severe accidents.).

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

65 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481.

66 See id.

67 NUREG-1437 at xliv; see Official Transcript of Proceedings, Limerick Generating Station Oral Arguments, at 166 (Feb. 21, 2012) (the Commission recognized back in 1996 that future SAMA analyses could identify other cost beneficial mitigation measures, but they still made the determination. They drew the line and made the determination that if a SAMA had been done for a plant, another one need not be for license renewal given the other generic and site specific studies that had been done and would continue to be done for that plant.)

(Kanatas). See also Exelons Answer at 10-16.

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analysis at the license renewal stage, which renders SAMAs the functional equivalent of a Category 1 issue for Limerick.68 B. New and Significant Information Both the applicant and the NRC Staff have obligations to address new and significant information related to SAMAs in their NEPA analyses. A license renewal applicant is required to address new and significant information for either Category 1 or Category 2 issues in its ER.69 Pursuant to that responsibility, Exelon fully evaluated the significance of new information regarding SAMAs post-dating the 1989 EIS in Section 5 of the Limerick ER.70 Significance in this case is defined as new information which presents a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.71 In quantitative terms this means at least a fifty percent reduction in the maximum averted cost-risk (MACR), as explained in Exelons Counter Affidavit at ¶¶19-26.

In addition, the NRC must consider new and significant information in the SEIS, and/or supplement the FEIS if necessary.72 In Watts Bar, the Commission noted that even when a regulation in Part 51 excuses the agency from considering the issue in a given proceeding, NEPA requires the NRC Staff to take a hard look at new and significant information related to the 68 Limerick, CLI-12-19,75 NRC __, slip op. at 13; see Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481 (NRC staff considerations of [SAMAs] have already been completed and included in an EIS or supplemental EIS for Limerick, Comanche Peak, and Watts Bar.

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

69 10 C.F.R. § 51.53(c)(3)(iv); Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43, 189 (2008).

70 ER at 5-4 to 5-9.

71 Union Electric Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), et al., CLI-11-05, 74 NRC __ (Sept. 9, 2011), quoted by Waiver Petition at 7.

72 10 C.F.R. §§ 51.71(d), 51.95(c)(3); Exelon Answer at 25-34; Exelon Appeal at 13-22; NRC Staff Answer at 16-17; NRC Staff Appeal at 8, 16-18.

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issue.73 To that end, in preparing the SEIS, the NRC will independently review the ER, which contains an analysis of new and significant information, and determine whether there is any new and significant information that would materially affect application of the Commissions regulation that excuses Limerick from conducting a second SAMA analysis at the license renewal stage.74 However, a claim of new and significant information is not enough to bring generic Commission rules into the scope of a license renewal proceeding. In reaffirming its rulings in Vermont Yankee/Pilgrim, the Commission noted in CLI-12-19 that [a]djudicating Category 1 issues site by site based merely on a claim of new and significant information, would defeat the purpose of resolving generic issues in a GEIS.75 NEPA requires the NRC to fully consider environmental issues, but does not automatically require the NRC to do so in an adjudicatory process.76 Accordingly, a waiver of the rule in Section 51.53 would be required in order to litigate new and significant information relating to a Category 1 issue.

Likewise, the NRCs generic determination as to the environmental impact of severe accidents (as opposed to mitigation of those accidents) also is not litigable, absent a waiver, which NRDC has not sought here. With respect to the environmental impact of severe accidents, NRC regulations codify the NRCs generic conclusion that the probability-weighted consequences of severe accidents is of SMALL significance for all plants.77 SMALL is 73 Tenn. Valley Auth. (Watts Bar Nuclear Plant, Unit 2), CLI-10-29, 72 NRC 556, 563 (2010) (citing Marsh v. Or.

Natural Res. Council, 490 U.S. 360, 373-74 (1989)).

74 See 10 C.F.R. § 51.95(c)(3); Watts Bar, CLI-10-29, 72 NRC at 563.

75 Limerick, CLI-12-19, 75 NRC __, slip op. at 10 (quoting Vermont Yankee/Pilgrim, CLI-07-3, 65 NRC at 16, 20-21).

76 See Balt. Gas and Elec. Co, 462 U.S. at 100 (NEPA does not require agencies to adopt any particular internal decisionmaking structure.).

77 See 10 C.F.R. Pt. 51, Subpt. A, App. B, Tbl. B-1.

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defined in NRC regulations as environmental impacts that are not detectable or are so minor that they will neither destabilize nor noticeably alter any important attribute of the resource.78 III. THE WAIVER PETITION MUST BE DENIED A. NRDCs Waiver Petition Fails to Meet the Criteria of 10 C.F.R. § 2.335 NRDC requests waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L) for portions of two of its proffered contentions that challenge the ERs discussion of new and significant information regarding SAMAs. Specifically, NRDC alleges that the existence of the following new information warrants waiver: (1) potential SAMA candidates previously considered for other BWRs with Mark II Containments post-dating the 1989 SAMDA (Contention 1E-1); (2) updated data relevant to economic cost risk (Contention 1E-2); and (3) modern techniques for assessing whether newly-identified SAMA candidates are cost-beneficial (Contention 3E).79 Under the Millstone test discussed above, NRDC must show that: (1) the strict application of 10 C.F.R. § 51.53(c)(3)(ii)(L) would not serve the purposes for which it was adopted; (2) there are special circumstances that were not considered in the 1996 supporting rulemaking proceeding; (3) those special circumstances are unique to Limerick, rather than common to a large class of facilities; and (4) waiver is necessary to reach a significant environmental problem.80 For a waiver request to be granted, all four parts of the Millstone test must be met. As explained below, NRDC has not satisfied any of the Millstone Factors for its contentions. Accordingly, its Waiver Petition must be denied.

78 Id. at Tbl. B-1 § 3. The Commission reaffirmed this generic finding in the Pilgrim license renewal proceeding stating that, [b]ecause the GEIS provides a severe accident impacts analysis that envelopes the potential impacts at all existing plants, the environmental impacts of severe accidents during the license renewal term already have been addressed generically in bounding fashion. Pilgrim, CLI-10-11, 71 NRC at 316 (2010).

79 Waiver Petition at 3, 20-22.

80 Millstone, CLI-05-24, 62 NRC at 559-60.

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1. NRDC Does Not Demonstrate that Application of the Section 51.53(c)(3)(ii)(L) Exception to Limerick Would Not Serve the Purposes for Which It Was Adopted The Board needs to look no further than the first Millstone Factor to conclude that NRDC has not established a prima facie case for waiver as to Contentions 1E-1, 1E-2 and 3E. NRDC fails to demonstrate that application of Section 51.53(c)(3)(ii)(L) in this proceeding would not serve the purposes for which [it] was adopted.81

a. The Purpose of Section 51.53(c)(3)(ii)(L) Is To Exempt Certain Applicants from Performing a Second Site-Specific SAMA Analysis NRDCs principal argument is that the purpose of Section 51.53(c)(3)(ii)(L) is to simply exempt plants, like Limerick, from reconsidering specific alternatives previously considered, rather than exempt those applicants from preparing another site-specific SAMA analysis for license renewal.82 In support of this contention, NRDC extrapolates from a single sentence of the Statements of Considerations accompanying Section 51.53(c)(3)(ii)(L) (1996 SOC):

The Commission has determined that a site-specific consideration of alternatives to mitigate severe accidents will be required at the time of license renewal unless a previous consideration of such alternatives regarding plant operation has been included in a final environmental impact statement or a related supplement.83 Based on its creative regulatory interpretation of this sentence, NRDC argues that the purpose of Section 51.53(c)(3)(ii)(L) is not satisfied for Limericks license renewal because Exelon failed to include in its ER an analysis of whether the following new information would be significant:

81 Id.

82 Waiver Petition at 17-19; Declaration of Geoffrey H. Fettus, Counsel for the [NRDC], Regarding Waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L) as Applied to Application for Renewal of Licenses for Limerick Units 1 and 2, at ¶¶ 1-3 (Nov. 21, 2012) (Fettus Decl.).

83 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,480. On page 17 of its Waiver Petition, NRDC selectively quotes from this sentence regarding overall SAMA analysis to support its premise that only specific SAMA candidates fall within the parameters of the Section 51.53(c)(3)(ii)(L) exception.

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(1) SAMA candidates developed for other BWRs with Mark II containments not considered in the 1989 SAMDA analysis; (2) updated data relevant to economic cost risk; and (3) modern techniques for assessing whether SAMA candidates are cost beneficial, namely, a methodology comparable to the MELCOR Accident Consequence Code Systems 2 (MACCS2) Code.84 NRDCs argument is contrary to the language of the regulation, which is clear on its face.

In addition, it is not supported by the regulatory history. Specifically, the plain language of Section 51.53(c)(3)(ii)(L) explicitly excuses sites that previously considered SAMAs in an EIS or related supplement from performing another SAMA analysis as part of a future license renewal effort. The regulation clearly states that a SAMA analysis is required [i]f the Staff has not previously considered [SAMAs] for the applicants plant.85 There is nothing in the regulatory language suggesting that the scope of the exception is limited to specific SAMA candidates previously considered by the applicant. For example, the regulation does not say unless there are no new SAMA candidates to consider when compared to a prior SAMA analysis performed for that plant.86 Consequently, Section 51.53(c)(3)(ii)(L), by its express terms, excepts certain applicants from performing another SAMA analysis for purposes of license renewal.

NRDCs contention is also belied by the NRCs recent interpretation of Section 84 Waiver Petition at 22; Fettus Decl. at ¶¶1-3.

85 10 C.F.R. § 51.53(c)(3)(ii)(L).

86 Likewise, the 1996 SOC does not state that plants for which the NRC Staff has already considered SAMAs need not reassess only those alternatives evaluated previously. If this was the intent of the NRC, it could have specifically provided caveats or limits to the scope of the Section 51.53(c)(3)(ii)(L) exception in the regulatory language or the 1996 SOC. It did neither. In fact, in stating that it did not intend to prescribe by rule the scope of an acceptable SAMA analysis, the Commission explicitly noted that it also does not intend to mandate consideration of alternatives identical to those evaluated previously. Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481. Tellingly, the Commission does not employ similar language when explaining its conclusion that a SAMA analysis need not be performed for Limerick and similarly-situated plants for license renewal.

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51.53(c)(3)(ii)(L) in CLI-12-19. Specifically, the Commission determined that Exelon is permitted, by rule, not to prepare a site-specific supplemental SAMA analysis in conjunction with the Limerick license renewal application.87 The Commission did not limit the scope of the Section 51.53(c)(3)(ii)(L) exception to previously-considered SAMA candidates or issues. To the contrary, Limerick and similarly-situated plants are exempt from performing a new SAMA analysis at the license renewal stage.

NRDCs claim also is not supported by the regulatory history of Section 51.53(c)(3)(ii)(L). In the 1996 Part 51 rulemaking, the Commission determined that one site-specific SAMA analysis is sufficient to satisfy NEPA.88 To that end, in the 1996 SOC, the Commission explained that a site-specific consideration of SAMAs is required at license renewal only for those plants for which such consideration was not previously performed under NEPA:

The Commission has determined that a site-specific consideration of alternatives to mitigate severe accidents will be required at the time of license renewal unless a previous consideration of such alternatives regarding plant operation has been included in a final environmental impact statement or a related supplement. Because the third criterion required to make a Category 1 designation for an issue requires a generic consideration of mitigation, the issue of severe accidents must be reclassified as a Category 2 issue that requires a consideration of severe accident mitigation alternatives, provided this consideration has not already been completed.

Therefore, the Commission has reclassified severe accidents as a Category 2 issue, requiring only that alternatives to mitigate severe accidents be considered for those plants that have not included such a consideration in a previous EIS or supplemental EIS.89 87 Limerick, CLI-12-19, 75 NRC _, slip op. at 11.

88 Notably, NRDC did not challenge the Part 51 rulemaking in 1996.

89 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481 (emphasis added).

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The absence of qualifying language from that determination unmistakably indicates the Commissions intent to exempt applicants, such as Exelon for Limerick, from conducting a new SAMA analysis in conjunction with license renewal - not simply to exclude from consideration specific SAMA candidates previously considered, as NRDC suggests. The Commissions intent to exempt Exelon for Limerick (and similarly-situated applicants) from performing another SAMA analysis is underscored by its conclusion that any cost-beneficial improvements identified in SAMA analyses performed at the license renewal stage generally would be procedural and programmatic fixes, with any hardware changes being only minor in nature and few in number.90 NRDCs attempt to manufacture support for its interpretation of the purpose of Section 51.53(c)(3)(ii)(L) by selectively quoting the Third Circuits decision in N.J. Dept of Envtl. Prot.

v. NRC is unavailing.91 The single phrase from the NJDEP decision that NRDC quotes must be read in context.92 In that case, the Third Circuit examined whether NEPA required the NRC to evaluate the environmental impacts of potential terrorist attacks in the Oyster Creek license renewal proceeding.93 The court did not apply or interpret Section 51.53(c)(3)(ii)(L).94 Therefore, NRDCs attempt to use the NJDEP decision as a basis for its interpretation of the rule 90 Id.

91 N.J. Dept of Environmental Protection v. N.R.C., 561 F.3d 132, 135 (3d Cir. 2009) (NJDEP).

92 The relevant sentence from the NJDEP decision is The SEIS includes evaluations of site-specific Category 2 issues -including a consideration of severe accident mitigation alternatives (SAMAs) for those issues that have not previously been considered-and new and significant information regarding Category 1 issues.

NJDEP, 561 F.3d at 135 (emphasis added). Tellingly, NRDC excludes the underlined text when quoting the Third Circuit in its Waiver Petition.

93 Id.

94 The quoted language is, in fact, only dicta in the background section of the courts opinion.

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is not relevant to the issue presented regarding Section 51.53(c)(3)(ii)(L).95 In light of the foregoing, NRDCs claim that the purpose of Section 51.53(c)(3)(ii)(L) is only to exclude specific SAMA candidates previously analyzed is belied by the plain language of the regulation and its regulatory history. Relying on its erroneous interpretation of the purpose of Section 51.53(c)(3)(ii)(L), NRDC fails to offer any evidence that calls into question the validity of the Commissions conclusion that NEPA does not require license renewal applicants to perform another SAMA analysis if the NRC Staff has already considered one for that plant. To satisfy the first Millstone Factor, NRDC would need to present evidence that would undercut the Commissions rationale for Section 51.53(c)(3)(ii)(L). NRDC has not stated with particularity why Section 51.53(c)(3)(ii)(L) would not serve its intended purpose. The Board should deny the Waiver Petition for this reason alone.

95 NRDC asserts that the 1996 SOC establishes a ten-year period as the outer bounds of when the Commission will assume that changes in condition and technology do not warrant additional NEPA review, and that the 1989 SAMDA analysis has not been updated for more than twenty years. Waiver Petition at 19. The Commissions statement in the 1996 SOC that it would strive to adhere to a ten-year schedule for GEIS revisions, if required, also does not support NRDCs interpretation of the purpose of the Section 51.53(c)(3)(ii)(L) exception. Contrary to NRDCs assertion, Exelon and the NRCs analysis of SAMAs for Limerick is not frozen in time with the 1989 SAMDA. Indeed, Exelon continues to update its probabilistic risk assessment for Limerick on an ongoing basis. ER at 5-5 to 5-6. The Commission also recently approved a revision to the 1996 GEIS (see SRM-SECY-12-0063) and the revision does not alter the Commissions determination with respect to SAMA analyses for plants that previously considered SAMAs.

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b. The New Information Alleged by NRDC In Contentions 1E-1, 1E-2 and 3E Does Not Undercut the Rationale Underlying Section 51.53(c)(3)(ii)(L)

In support of its Waiver Petition, NRDC offers a technical declaration from Dr.

Christopher Weaver and a counsel declaration from Mr. Geoffrey Fettus (Fettus Declaration).96 As a threshold matter, the Board should disregard portions of the Weaver Declaration that incorporate the technical opinion of two experts (Dr. McKinzie and Dr.

Cochran) who are not affiants with respect to the Waiver Petition, for the reasons set forth in Section III.B below. The remaining portions supported by only Dr. Weaver are inadequate to meet the extremely high burden of a waiver. As demonstrated below, the Weaver Declaration (assuming, arguendo, that the Board does not agree with Exelon that it is defective) and the Fettus Declaration fall far short of demonstrating that waiver is warranted here.

To demonstrate circumstances which would justify waiver of Section 51.53(c)(3)(ii)(L),

NRDC must identify major design changes or major plant modifications that would be cost-beneficial at Limerick. Simply identifying cost-beneficial SAMAs is not enough. As stated above, the 1996 SOC for Section 51.53(c)(3)(ii)(L) explicitly recognizes that SAMA analyses at the license renewal stage may identify cost-beneficial improvements. There, the Commission concluded that such changes generally would be procedural and programmatic fixes with any hardware changes being only minor in nature and few in number.97 The Commission also explicitly considered the possibility that there might be major plant changes, although it considered them unlikely. Specifically, the NRC stated: The Commission believes it unlikely that any site-specific consideration of severe accident mitigation alternatives for license renewal 96 Weaver Decl.; Fettus Decl.

97 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481.

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will identify major plant design changes or modifications that will prove to be cost-beneficial for reducing severe accident frequency or consequences.98 First, NRDC argues that it would be contrary to the purpose of Section 51.53(c)(3)(ii)(L) to preclude litigation of Contention 1E-1 because the ER ignores new severe accident mitigation alternatives previously considered for other BWR Mark II Containment reactors.99 In support of its argument, NRDC identifies approximately fifty SAMAs in Paragraphs 11 and 12 of the Weaver Declaration that its experts assert were found to be cost beneficial or potentially cost beneficial at other BWRs of various designs.100 NRDC fails to allege - much less demonstrate - that any of the SAMA candidates identified in paragraphs 11 and 12 of the Weaver Declaration are major design changes or major plant modifications at those BWRs, let alone at Limerick.

As explained in Paragraphs 13 through 18 of Exelons Counter Affidavit, and Table A supporting that Counter Affidavit, all of the approximately fifty SAMAs identified by NRDC are either: (a) procedural and programmatic fixes (such as changes to written procedures and operator training), or (b) minor plant changes.101 And the minor plant changes are few in number for each plant. There are no major plant changes among these SAMAs. Thus, the existence of 98 Id.

99 Waiver Petition at 20; Weaver Decl. at ¶¶ 5-13; Fettus Decl. at ¶ 1.

100 For example, Oyster Creek is a GE BWR-2 with a Mark I containment; Pilgrim is a GE BWR-3 with a Mark I containment; Cooper and Duane Arnold are GE BWR-4s with a Mark I containment; Grand Gulf is a GE BWR-6 with a Mark III containment. See NUREG-1350, Vol. 24, App. A, NRC, Information Digest, 2012-2013, U.S.

Commercial Nuclear Power Reactors.

101 Paragraph 10 of the Weaver Declaration states that examples of cost-beneficial SAMA candidates for Susquehanna, which is a BWR of the same type as Limerick include Improve Cross-Tie Capability Between 4kV AC Emergency Buses (A-D, B-C) and Procure Spare 480V AC Portable Station Generator. However, as explained in Table A to Exelons Counter Affidavit, these SAMAs are not major plant changes, and the first example (i.e., Improve Cross-Tie Capability Between 4kV AC Emergency Buses (A-D, B-C)) has already been implemented at Limerick.

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the SAMAs identified by NRDC does not undercut the rationale or purpose of Section 51.53(c)(3)(ii)(L).

Next, NRDC asserts that Exelons reliance on data from Three Mile Island (TMI) as a substitute for doing a site-specific analysis of the offsite economic impacts of a severe accident at Limerick justifies waiver of the Section 51.53(c)(3)(ii)(L) exception.102 Over six pages of the Weaver Declaration reiterate several reasons, originally proffered by Dr. McKinzie in connection with NRDCs Hearing Request, justifying NRDCs claim that Exelons use of the TMI value for the ratio of economic cost risk to exposure cost risk is inappropriate.103 For example, the Weaver Declaration repeats Dr. McKinzies assertion that use of TMI data to consider the significance of new information concerning economic costs risks is flawed because the economic center near TMI is smaller and less urban than Philadelphia, near Limerick.104 Yet, NRDC does not explain how, why, or to what extent the use of site-specific economic risk calculations for Limerick, as suggested by Dr. McKinzie, undermines the Commissions conclusion that a second SAMA analysis is unnecessary.

The Weaver Declaration reproduces a table prepared by Dr. McKinzie that presents the ratio of economic cost risk to exposure cost risk for eight BWR units, as well as TMI.105 That table shows a wide variation in cost ratios ranging from -16.0% to 238.4%.106 NRDC fails to present any evidence that use of an off-site economic cost ratio higher than the TMI value (i.e, 72.1%) would actually uncover major, cost-beneficial plant improvements applicable to 102 Fettus Decl. at ¶ 2; see also Waiver Petition at 20-21.

103 See Weaver Decl. at ¶¶ 17-24.

104 Id. at ¶ 19.

105 Id. at ¶ 20.

106 Id.

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Limerick that have not already been implemented.107 Thus, the existence of new data relevant to economic cost risk that NRDC identifies does not undercut the rationale or purpose of Section 51.53(c)(3)(ii)(L).

Finally, NRDC argues that the availability of more accurate and reliable methods for assessing the consequences of a severe accident demonstrates that application of Section 51.53(c)(3)(ii)(L) to Limerick would not serve its intended purpose.108 Again, the Waiver Petition, the Fettus Declaration, and the Weaver Declaration do not present any information regarding how the use of more accurate and reliable methods available today for assessing the consequences of a severe accident would actually yield additional major plant improvements that are cost-beneficial for Limerick. Thus, NRDC has not shown that the existence of new techniques, for evaluating whether SAMA candidates are cost beneficial, undercuts the rationale or purpose of Section 51.53(c)(3)(ii)(L).

In short, NRDC fails to make a prima facie showing that application of Section 51.53(c)(3)(ii)(L) to Limerick would not serve the purposes for which the NRC adopted the exception. Accordingly, the Board should deny the Waiver Petition with respect to Contentions 1E-1, 1E-2 and 3E.

107 Limericks 1989 SAMDA evaluation did not identify any cost-beneficial physical plant modifications.

Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481.

However, Exelon submitted an Individual Plan Examination of External Events (IPEEE), which identified one design change. See NUREG-1742, Vol. 2, Perspectives Gained From IPEEE Program - Final Report, Table 3.3 (Apr. 2002) (noting two operational procedures improvements, two maintenance procedures improvements, and one physical design change).

108 Waiver Petition at 21; Fettus Decl. at ¶ 3.

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2. NRDC Does Not Demonstrate Special Circumstances The second Millstone Factor - special circumstances that were not considered in the rulemaking leading to the promulgation of Section 51.53(c)(3)(ii)(L) - also is not satisfied as to any of the contentions. The relevant test is not whether NRDC makes a prima facie showing of a potential environmental concern, but whether it has shown that the Commission did not previously consider that concern.109 Therefore, NRDC must show that the special circumstances it alleges were not considered either, explicitly or by necessary implication, in the 1996 Part 51 rulemaking.110 In alleging special circumstances, NRDC asserts concerns regarding (1) newly-identified SAMAs for BWR sites; (2) updated economic cost risk data; and (3) more current methodology for evaluating SAMAs.111 The Commission has, however, previously considered each of NRDCs concerns in the 1996 rulemaking.

As a threshold matter, NRDC asserts that in the Limerick Ecology Action decision, the Third Circuit found that Limericks unique design, construction, and location warranted consideration of SAMDAs in its operating license EIS and leaps to the conclusion that those same unique issues satisfy the second Millstone Factor.112 NRDCs claim that the Third Circuit has already resolved the special circumstances issue for purposes of its Waiver Petition is meritless. The Commission explicitly considered the Limerick Ecology Action decision in promulgating Section 51.53(c)(3)(ii)(L). The Commission recognized, in the 1996 rulemaking, that the 1989 SAMDA was prepared by the NRC Staff in direct response to Limerick Ecology Action to analyze SAMDAs in light of Limericks unique characteristics identified by the Third 109 U.S. Dept. of Energy (High-Level Waste Repository), LBP-10-22, 72 NRC __, slip op. at 35 (Dec. 14, 2010).

110 Millstone, CLI-05-24, 62 NRC at 559-60.

111 Waiver Petition at 23.

112 Id. at 22-23 (citing Limerick Ecology Action, 859 F.2d. at 738).

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Circuit.113 Indeed, the Commission explicitly cited the 1989 SAMDA, among a broad range of information, as support for its conclusion that another SAMA analysis is not required for license renewal at Limerick.114 On its face, the rulemaking explicitly considers the purportedly new, special circumstances that provide the basis for NRDCs Waiver Petition. With respect to Contention 1E-1, NRDC argues that the emergence of potentially cost-beneficial measures to address severe accidents at Limerick115 that were not considered in the 1989 SAMDA analysis constitutes special circumstances. This argument is flawed for two reasons.

First, NRDC has failed to show that the NRC did not consider the possibility that SAMA candidates, with potential applicability to reactors exempted by Section 51.53(c)(3)(ii)(L), could be identified in the future. Indeed, in the 1996 SOC, the Commission expressly recognized that SAMA analyses at the license renewal stage may identify cost-beneficial improvements that generally would be procedural and programmatic fixes with any hardware changes being only minor in nature and few in number.116 As discussed in Section III.A.1.b, the 1996 SOC also explicitly determined that it was unlikely that major plant changes, would be identified in future site-specific SAMA analyses.117 The Commission also noted that the NRC Staffs then-ongoing study of severe accidents through each sites IPEEE review process could unearth new cost-beneficial SAMAs.118 Exelons IPEEE review and other severe accident-related reviews for 113 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 24,481.

114 Id.

115 Waiver Petition at 23.

116 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 24,481 117 Id.

118 Id. (observing that IPEEEs consider potential improvements to reduce the frequency of consequences of severe accidents on a plant-specific basis and essentially constitute a broad search for [SAMAs]).

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Limerick were explicitly discussed in the ER.119 However, the Weaver Declaration does not discuss these reviews or explain why their reference in the 1996 SOC or the ER is not fatal to NRDCs waiver argument that the existence of additional SAMA candidates represents special circumstances not considered in the rulemaking.

Second, NRDC fails to acknowledge or challenge the myriad of studies that supported the Commissions expectations for SAMA analyses in general.120 These previous analyses included the Containment Performance Improvement (CPI) program, which evaluated potential failure modes, potential plant improvements, and the cost-effectiveness of such improvements for each type of containment in the U.S.121 The Commission noted that the CPI program only identified a few containment improvements that were potentially beneficial.122 The Commission also stated that the NRC Staff had conducted SAMDA analyses for Limerick, Comanche Peak, and Watts Bar and that none of those studies had identified cost-beneficial major physical plant modifications.123 The NRC further explained that the IPE and IPEEE submittals, reviewed as of the date of the 1996 SOC, had resulted in primarily plant procedural or programmatic improvements.124 In light of the depth of the Commissions previous study of SAMAs, Exelon submits that newly-identified SAMA candidates, even if they were potentially cost-beneficial, would not provide the special circumstances necessary for waiver of Section 51.53(c)(3)(ii)(L) 119 See ER at 4-49, 5-4, 5-6.

120 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481 (stating that the Commissions expectation regarding severe accident mitigation improvements was based on analyses performed to date including the CPI program, the 1989 SAMDA, the FEIS for the Comanche Peak and Watts Bar operating license reviews, forty-six individual plant examination (IPE) submittals and twenty-four IPEEE submittals).

121 Id.

122 Id.

123 Id. (No physical plant modifications were found to be cost-beneficial in any of these severe accident mitigation considerations. Only plant procedural changes were identified as being cost-beneficial.).

124 Id.

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as to Contention 1E-1, except possibly if they were major design or plant changes.125 NRDC argues that the fundamental concern reflected in Contention 1E-2 is that Exelon relied on inappropriate economic data from TMI to substitute for a site-specific analysis of off-site consequences for the millions of people living near Limerick.126 The Commission was aware of the specific concern that proposed Contention 1E-2 identifies when it promulgated Section 51.53(c)(3)(ii)(L). In the 1996 SOC, the Commission expressly remarked that Limerick, a high population site, did not identify cost-beneficial plant modifications in explaining its presumption that other sites would be unlikely to identify cost-beneficial, significant plant modifications.127 And, as previously discussed in Section III.A.1.b above, NRDC has not demonstrated that the use of a higher economic cost ratio would lead to cost-effective, major design or hardware changes for Limerick. Thus, NRDC fails to demonstrate that special circumstances not considered in the rulemaking were created by using TMI economic data.

Finally, NRDC claims that it is evident that Contention 3E raises issues that were not considered in the 1996 rulemaking. According to NRDC, every other BWR nuclear power plant in the U.S. that has undergone relicensing has utilized the advanced computer methodology of MACCS2 to assess the costs and benefits of SAMAs.128 That fact, even if true, does not adequately support a request for waiver here. In the 1996 SOC, for example, the Commission specifically observed that site-specific Level 3 PRAs are not required to determine whether a 125 See Section II.A.1.b and footnotes 101-106, supra.

126 Waiver Petition at 23-24.

127 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481.

128 Waiver Petition at 23-24.

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SAMA candidate is cost-effective.129 Accordingly, NRDCs argument is directly contrary to the Commissions expectations set forth in the 1996 SOC. Moreover, the MACCS2 Code that NRDC asserts Exelon needs to consider is used to support Level 3 PRAs.130 Also, in promulgating Section 51.53(c)(3)(ii)(L), the Commission declined to prescribe the scope of an acceptable SAMA analysis, including the quantitative approaches for assessing risk significance and cost.131 The NRCs deliberate decision not to designate acceptable methodology for SAMA analyses illustrates that it was cognizant of the fact that analytic, probabilistic methods would progress over time.132 Nonetheless, the Commission determined that one SAMA analysis was sufficient for each plant.

In sum, NRDC has not demonstrated special circumstances that were not considered in the 1996 rulemaking that warrant waiver of the Section 51.53(c)(3)(ii)(L) exception, contrary to Millstone.

3. NRDC Does Not Explain Why There Are Special Circumstances Unique to Limerick With respect to the third Millstone Factor, NRDC has not demonstrated that any of the purported new information regarding SAMAs is unique to Limerick. The licensing board in the Pilgrim license renewal proceeding recently acknowledged that the third Millstone prong is intended to prevent litigation of generic issues through a series of site-specific determinations in 129 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28, 481

([T]he Commission does not believe that site-specific Level 3 PRAs are required to determine whether an alternative under consideration will provide sufficient benefit to justify its cost.).

130 Exelons Counter Affidavit at ¶ 32.

131 Id.

132 Id.

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adjudications.133 For purposes of Section 51.53(c)(3)(ii)(L), the third Millstone prong must be viewed in light of the fact that the Commission initially identified only three plants sites -

Limerick, Watts Bar, and Comanche Peak - for which NRC Staff need not perform a SAMA analysis to support initial license renewal.

NRDCs principal claim to uniqueness is that Limerick will be the only BWR site for which the NRC has not considered the most recent mitigation alternatives, assessment methodologies, and economic considerations regarding [SAMAs] for license renewal.134 There were only three plants specified in the 1996 SOC and only one is a BWR (i.e., Limerick). But, the other two sites - Watts Bar and Comanche Peak - also need not perform the analyses NRDC alleges are necessary. The Board should not conclude that the third Millstone prong is satisfied here simply because NRDC has singled out one of three plants identified in the original rule when NRDCs argument applies to all three of those plants.

Moreover, Limerick is not the only BWR today covered by Section 51.53(c)(3)(ii)(L), as NRDCs argument assumes.135 Since the rule was promulgated in 1996, more than seventy U.S.

commercial nuclear reactors have completed license renewal - many of which are BWR sites -

and therefore have performed a site-specific SAMA analysis. If and when any of those plants seek a subsequent license renewal under 10 C.F.R. Part 54, the Section 51.53(c)(3)(ii)(L) exception would apply. Under NRDCs rationale, however, every U.S. nuclear power plants 133 Pilgrim, LBP-11-35, 74 NRC _, slip. op. at 14-16 (agreeing with the NRC Staff that parties with new and significant information that could undermine the rationale for a Commission regulation must seek a rulemaking instead of challenging the regulation in a particular proceeding unless the information uniquely applies to a given adjudication) (citation omitted).

134 Waiver Petition at 24.

135 See id. at 6 (There are only three plants that arguably fall into [the Section 51.53(c)(3)(ii)(L)] exception -

Limerick, Comanche Peak, and Watts Bar.); id. at 25 n. 12 (noting that of the three plants arguably covered by the exception only Limerick is a BWR); Fettus Decl. at ¶ 4 (same).

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SAMA analysis would be vulnerable to legal challenge based on newly-identified SAMA candidates, updated economic data for that facility, cutting edge analytical tools and any other conceivable new information regarding SAMAs.

NRDC also does not show that the new information underlying Contentions 1E-1 and 3E is unique to Limerick. First, NRDC fails to point to any new SAMA candidates that would apply only to Limerick. The Weaver Declaration explicitly states that the SAMA candidates identified in it were derived from other BWR license renewal applications.136 The foregoing applications, in turn, adopted many of these candidates from the standard list of BWR SAMA candidates included in NEI 05-01.137 Accordingly, the asserted SAMA candidates are not unique to BWRs with Mark II Containments, let alone, Limerick.

In addition, the SAMA candidates that NRDC claims represent the full range of relevant mitigation alternatives138 are hardly unique to Limerick. NRDCs examples include portable generators for emergency power supply, alternative sources of water to address emergencies, and improvements to the connection between electric power systems to allow more flexible supply of critical power needs during an emergency.139 NRDC does not (and cannot) explain why the foregoing mitigation alternatives address prolonged station blackout only at Limerick. Any SAMA candidates that address emergency backup power would apply not only to Limerick but to many other nuclear plants. Likewise, NRDC does not explain how mitigation alternatives 136 Weaver Decl. at ¶¶ 9-11.

137 See Exelons Counter Affidavit at ¶ 31 (citing NEI 05-01, Severe Accident Mitigation Alternatives (SAMA)

Analysis, Guidance Document, Rev. A (Nov. 2005), available at ADAMS Accession NO. ML060530203).

138 Waiver Petition at 22.

139 Weaver Decl. at ¶ 10 (noting that cost-beneficial SAMA candidates for another BWRs with Mark II containments include Improve Cross-Tie Capability Between 4kV AC Emergency Buses (A-D, B-C) and Procure Spare 480V AC Portable Station Generator), id. at ¶ 12 (One possible SAMA candidate is to replace the emergency DC-powered valve actuators and speed controls for the steam-driven Safety-Related Turbines with a self-powered digital speed control and electrically-actuated valve-control system.).

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that use non-destructive pipe inspection techniques (e.g., robotics) to minimize excavation costs apply to Limerick singularly.140 Even NRDC concedes that limitations on the ability to measure changes in safety-related pipe wall thickness are an industry-wide problem.141 NRDC argues that Contention 3E establishes special circumstances unique to Limerick because it is the only BWR site that will not use state-of-the art assessment methodologies (e.g.,

the MACCS2 code) in a site-specific SAMA analysis. However, NRDCs concern would apply to all three plants identified in the 1996 SOC that completed site-specific SAMA analyses before the launch of the MACCS2 Code.142 There is no showing of unique special circumstances where the information raised applies to other facilities under the regulation.143 NRDC therefore fails to make a prima facie case that the alleged more appropriate analytical tools are somehow unique to Limerick. For all of these reasons, the Waiver Petition is not based on an issue that is unique to Limerick, contrary to Millstone.

140 Id. at ¶ 12.

141 See id. (Another plausible SAMA candidate for Limerick relates to a concern raised in a recent Government Accountability Office report, that industry has limited ability to measure changes in safety-related pipe wall thickness caused by corrosion and located underground without costly excavation. To address this issue, nuclear plant operators could employ the use of non-destructive inspection techniques such as robotic crawlers that can navigate complex geometries to perform in-line pipe inspection.) (internal citations omitted)

(emphasis added).

142 NRDC points out that the other two plants mentioned in the 1996 SOC are PWR nuclear reactors. However, the MACCS2 code can be used in SAMA analyses for both BWRs and PWRs. Exelons Counter Affidavit at ¶ 31.

143 See Pilgrim, LBP-11-35, 74 NRC __, slip op. at 16 (finding that intervenors failed to satisfy the third Millstone prong where asserted spent fuel issues applied to more than twenty other BWR nuclear plants); Miss. Power &

Light Co. (Grand Gulf Nuclear Station, Unit 1), LBP-84-19, 19 NRC 1076, 1081 (1984).

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4. NRDC Fails to Show that A Waiver of the Section 51.53(c)(3)(ii)(L)

Exception Is Necessary to Address a Significant Environmental Problem NRDC fails to satisfy the fourth Millstone Factor - waiver is necessary to reach a significant environmental problem - as to any of its contentions.144 In developing this fourth factor, the Commission concluded that it would be inconsistent with Commission responsibilities to spend time and resources on matters that are of no substantive regulatory significance.145 Accordingly, this factor is satisfied when a petitioner identifies an environmental issue of substantive regulatory significance.146 Thus, in this proceeding NRDC must make a prima facie showing that waiver of Section 51.53(c)(3)(ii)(L) is necessary to address an environmental issue of substantive regulatory significance.147 As demonstrated below, however, NRDC failed to present any such information.

144 There is no dispute that this fourth factor applies to environmental issues. Waiver Petition at 26 (citing Pac.Gas

& Elec. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-10-15, 72 NRC 299, 301 (2010)). As the Pilgrim Board held, and Commission precedent implies, Millstones fourth factor applies to NEPA-related contentions. See Pilgrim, LBP-11-35, 74 NRC __, slip op. at 13, n.51 (We agree that this same test is equally appropriate respecting a waiver regarding a NEPA-related contention.).

145 See Seabrook, CLI-88-10, 28 NRC at 597.

146 In Diablo Canyon, LBP-10-15, 72 NRC at 305-06 (reversed on other grounds), the Board found that the petitioner satisfied the fourth Millstone factor and the Board pointed to the post-GEIS discovery of a new fault line and related 2009 Draft GEIS statements, noting that the proffered new information undercut the applicability to [the plant] of the 1996 GEISs generic findings Id. The Board further implied that to satisfy the fourth prong, new and significant information would have to undercut a generic determination when it rejected NRC Staffs reference to Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3 (2001). Id. at 44-45, n. 57. (.in [Turkey Point] the petitioner never even asked for a waiver and does not appear to have provided any evidence of new and significant information calling into question the Commissions earlier [generic] determination that SFP risk from hurricanes is very low for all plants.) (citations omitted). In Turkey Point, the Commission implied that waiver of a Category 1 finding of very low or negligible risk of an accident would require significant evidence. Turkey Point, CLI-01-17, 54 NRC at 22.

This analysis is consistent with other Commission precedent. In Seabrook, the Commission defined significant matters as those of substantive regulatory significance. Similarly, the Pilgrim Board agreed with the Intervenor, who argued, in part, that significant means significant to the outcome of a NEPA analysis. See Pilgrim, LBP-11-35, 74 NRC __, slip op. at 13, n.51 (citing Millstone, CLI-05-24, 62 NRC at 559-60).

147 This is consistent with NRDCs cite to the Commissions Union Electric decision, CLI-11-05, for support that further NEPA review [is] required where new information presents a seriously different picture of the environmental impact of the proposed project from what was previously envisioned. Waiver Petition at 7.

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NRDC spends a page and a half addressing this factor.148 It first asserts that, by definition, contentions challenging severe accident mitigation satisfy this factor because courts have repeatedly rejected the notion that a small risk of a severe accident is an insignificant problem that need not be addressed in the NEPA process.149 But the court decisions NRDC cites - the Limerick Ecology Action decision and two federal appellate decisions - at best only require an agency to perform a SAMA evaluation when the agency had never done one. That is not the case here.

As discussed above in Section III.A.2, the NRC satisfied the Limerick Ecology Action ruling through issuing the 1989 SAMDA analysis for Limerick, and it will consider new and significant information as part of its review of Exelons license renewal application for Limerick.

Because NRC is performing a NEPA evaluation, the cases NRDC cites do not inform whether NRDC has met the fourth Millstone Factor. For the Board to conclude otherwise would be to rule that any Petitioner who alleges that the NRC is failing to meet its obligations under NEPA related to severe accidents has automatically identified an issue of substantive regulatory significance for purposes of a waiver. Such an outcome is untenable under the extremely high burden which waiver imposes.150 148 Id. at 26-27.

149 Id. at 26 (emphasis in original).

150 Exelon does not contend that any contentions involving severe accident impacts are categorically foreclosed from meeting Millstones fourth prong. Rather, Exelon acknowledges that potential information regarding cost beneficial SAMAs that would also substantially reduce severe accident risk may rise to the level of environmentally significant.

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a. Contention 1E-1 NRDC next argues that because of alleged, projected increases in population surrounding Limerick, that [i]t is vital that appropriate mitigation alternatives be considered to ameliorate the risks to these residents.151 Exelon can only infer - because NRDC is silent on the issue -

that NRDC believes population increase alone shows that waiver of Section 51.53(c)(3)(ii)(L) is necessary to address an environmental issue of substantive regulatory significance.

Exelon has already demonstrated in Section III.A.1.b, above, the lack of any substantive regulatory significance to the SAMAs that NRDC has suggested Exelon address as new and significant information in its ER because NRDC does not identify, at a minimum, cost-beneficial major plant design changes or major plant modifications. Moreover, NRDC fails to show that any of the SAMA candidates it proffers would result in at least a fifty percent MACR reduction.152 NRDC then engages in irrelevant speculation as it highlights certain SAMAs on page 27 that it alleges are needed to prevent another Fukushima or accident like the one at TMI. NRDC discusses inadequate means to achieve backup power in the event of power failure . . . as at Fukushima and inadequate training which might allow recurrence of an accident like the one at TMI.153 These do not raise a significant environmental issue that will only be addressed at Limerick if the NRC grants NRDCs waiver petition. First, any U.S. nuclear plant improvements arising out of the lessons-learned from the accident at Fukushima Dai-ichi already are being 151 Waiver Petition at 27.

152 See Exelons Counter Affidavit at ¶¶ 27 to 29, and Table A.

153 Waiver Petition at 27.

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addressed by the Commission under current licensing regulations.154 Accordingly, the population around Limerick during the period of extended operation already will be protected by any additional defense-in-depth that these plant improvements will provide.

Moreover, the Commission already rejected Petitions seeking to require the NRC to evaluate the accident at Fukushima as new and significant information under NEPA.155 The Commission ruled that it did not constitute new and significant information.156 NRDC cannot be allowed to perform an end-run around that ruling under the guise of a significant environmental issue in support of a waiver petition.

Finally, the operator training that NRDC identifies to prevent another accident like the one at TMI is simply not applicable to Limerick because the equipment identified in the example is specific to PWRs, and Limerick is a BWR.157 Perhaps NRDC is providing these SAMAs merely as examples, but the examples do not demonstrate that a waiver is needed to address a significant environmental issue associated with Limericks license renewal.

NRDC concludes that the waiver is plainly necessary to address significant environmental issues regarding cost-beneficial mitigation alternatives.158 However, as explained above in Section III.A.2, the Commission expected in 1996 that future analyses would identify cost-beneficial procedural changes, training, and even certain hardware changes. Merely 154 See NRC, Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident (July 12, 2011); See also Order EA-12-049, Issuance of Order to Modify Licenses with Regard to Requirements for Mitigation Strategies for Beyond-Design-Basis External Events (Mar. 12, 2012); Order EA-12-050, Order Modifying Licenses with Regard to Reliable Hardened Containment Vents (Mar. 12, 2012); Order EA-12-051, Order Modifying Licenses With Regard to Reliable Spent Fuel Pool Instrumentation (Mar. 12, 2012).

155 Callaway, CLI-11-05, 74 NRC __, slip op.

156 Id.

157 Exelons Counter Affidavit at ¶ 27.

158 Waiver Petition at 27.

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asserting a SAMA is cost-beneficial is not enough identify an environmental issue of substantive regulatory significance. Accordingly, NRDCs argument that the NRC is missing an opportunity to identify cost-beneficial SAMAs at Limerick, and that this poses a significant environmental issue, is incorrect.

b. Contentions 1E-2 and 3E NRDC states that the issues NRDC seeks to raise also plainly address a significant environmental concern.159 But other than this general statement NRDC provides no detail as to how its arguments in Contentions 1E-2 and Contention 3E meet the fourth Millstone Factor.

Therefore, NRDC easily fails to meet this factor.

c. Other Arguments Though not argued in support of the fourth Millstone Factor, NRDC incorrectly implies that information relating to Exelons IPE or IPEEE involve a significant environmental problem.160 Contrary to NRDCs implications, the Commission has not consistently found that IPE/IPEEE results involve significant environmental problems.

In the June 1996 rulemaking, the Commission considered future IPE/IPEEEs and found it unlikely that they would result in any cost-beneficial major changes design or physical plant modifications.161 The Commissions discussion of why it refrained from prescribing the scope of 159 Id. at 26. The Fettus Declaration is on this point equally generic and vague, which does not satisfy the specificity requirement in Section 2.335(b).

160 See id. at 18, n. 10.

161 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481 (Additionally, each licensee is performing an individual plant examination (IPE) to look for plant vulnerabilities to internally initiated events and a separate IPE for externally initiated events (IPEEE).These examinations consider potential improvements to reduce the frequency or consequences of severe accidents on a plant-specific basis and essentially constitute a broad search for severe accident mitigation alternatives. These IPEs have resulted in a number of plant procedural or programmatic improvements and some plant modifications that will further reduce the risk of severe accidents.) (emphasis added).

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SAMA analyses indicated that it was aware of IPEs and that Limerick would not need to update its SAMAs based on operating experience and its IPEEE.162 The Commissions explicit consideration of IPEs coupled with its exception of Limerick from future updates indicates the Commission does not consider IPE/IPEEEs to involve significant environmental problems that would undercut its generic findings about the risks and impacts of severe accidents.

The December 1996 SOC, which NRDC also misconstrues, likewise implies that the Commission does not contemplate that SAMA analyses would undercut its generic findings.

NRDC points to the December 1996 SOC and February 2001 denial of the Nuclear Energy Institutes (NEI) Petition for Rulemaking, and claims that IPE/IPEEE analyses alone are insufficient to satisfy the Commissions NEPA responsibilities.163 This lacks merit for two reasons. First, the Waiver Petition ignores the fact that Exelons ER explicitly discusses the Limerick IPE and IPEEE, as well as other analyses and improvements.164 Thus, though not conducted to satisfy NEPA, these PRAs inform the analysis in the ER165 - which is a NEPA document required under Part 51 - and can be used to inform the environmental analysis performed by the NRC Staff.

162 See id. (The Commission does not intend to prescribe by rule the scope of an acceptable consideration of severe accident mitigation alternatives for license renewal nor does it intend to mandate consideration of alternatives identical to those evaluated previously. In general, the Commission expects that significant efficiency can be gained by using site-specific IPE and IPEEE results in the consideration of severe accident mitigation alternatives. The IPEs and IPEEEs are essentially site-specific PRAs that identify probabilities of core damage (Level 1 PRA) and include assessments of containment performance under severe accident conditions that identify probabilities of fission product releases (Level 2). As discussed in Generic Letter 88-20, Individual Plant Examination for Severe Accident Vulnerabilities (November 23, 1988), one of the important goals of the IPE and IPEEE was to reduce the overall probabilities of core damage and fission product releases as necessary by modifying hardware and procedures to help prevent or mitigate severe accidents.) (emphasis added).

163 Id.

164 As such, NRDC makes the misleading implication that Exelon will not update its required NEPA analysis of SAMAs until 2049. See Waiver Petition at 24.

165 Exelons Counter Affidavit at ¶¶ 33, 34.

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Second, NRDC misconstrues the Commissions statements. In the December 1996 SOC, the Commission declined to reclassify SAMAs as Category 1 based on IPE/IPEEEs alone, stating that completion of an IPE and IPEEE in itself is not sufficient to fulfill the Commissions responsibility under [NEPA].166 As such, it is clear that any IPE/IPEEE or similar analysis does not undercut the Commissions generic findings.

Likewise, NRDC misconstrues the 2001 denial of NEIs petition for rulemaking.167 In 2001, the Commission explicitly discussed Limerick Ecology Action when it declined a petition to delete Section 51.53(c)(3)(ii)(L), the very section for which NRDC now seeks waiver.

Though the Commission noted the difficulties in promulgating a generic conclusion regarding SAMAs,168 this denial is distinguishable from the immediate proceeding in that the Category 1 determination at issue in the 2001 denial would apply to SAMAs for all sites, whereas the immediate waiver is only sought for Limericks SAMA exception.

For all of these reasons, NRDCs Waiver Petition fails to make the requisite prima facie showing that all four parts of the Millstone test are met. Thus, the Board must deny certification to the Commission.

166 Environmental Review for Renewal of Nuclear Power Plant Operating License 61 Fed. Reg. 66,537, 66,540 (Dec. 18, 1996) (emphasis added). The purpose of this qualification was to ensure that SAMDA alternatives would be addressed for each site in a NEPA document which would fulfill the Commissions responsibilities under NEPA. See id. (SAMDA alternatives must be addressed within an Environmental Impact Statement (EIS), or supplement to an EIS, or an Environmental Assessment. . . . Prior to successful completion of such a rulemaking an applicant will have to submit a SAMDA alternatives analysis, based on its IPE and IPEEE (if available), in its environmental report.).

167 Waiver Petition at 18, n. 10; [NEI], Denial of Petition for Rulemaking, 66 Fed. Reg. 10,834 (Feb. 20, 2001).

168

[NEI], Denial of Petition for Rulemaking, 66 Fed. Reg. at 10,838 (The Commission believes that insufficient information is available to conclude generically that a SAMA analysis is not warranted for individual plant license renewal reviews.).

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B. The Weaver Declaration is Defective and Therefore Should be Disregarded A waiver petition must be accompanied a supporting affidavit setting forth with particularity the special circumstances that justify the waiver or exception requested.169 NRDC filed the Weaver Declaration to provide technical support for waiver.170 For the reasons discussed below, the Board should disregard the portions the Weaver Declaration that are not actually supported solely by Dr. Weaver. The few surviving portions (i.e., Paragraphs 1 and 12) do not even address, much less set forth with particularity, the special circumstances that justify waiver as required under Section 2.335(b).

In the first footnote of his Declaration, Dr. Weaver states:

This Declaration incorporates by reference and includes specific portions of the previous Declaration filed on November 19th[,]

2011 []by myself , Thomas B. Cochran, Ph.D (TBC) and Matthew G. McKinzie, Ph.D. (MGM)[.] Portions of the previous declaration that are included but were primarily supported by either Dr.

Cochran or Dr. McKinzie, are identified at the outset of each paragraph by the initials of the Declarant(s) who are offering the information contained in that paragraph. (Emphasis added).

In other words, Drs. McKinzie and Cochran signed the November 19, 2011 declaration (Original Declaration) with the intent to support NRDCs Hearing Request. They are not affiants to the Waiver Request because they have not executed the Waiver Declaration in accordance with 28 U.S.C. § 1746.171 Accordingly, their expert opinion is borrowed for another purpose without their apparent consent.

169 10 C.F.R. § 2.335(b).

170 NRDC also submitted a counsel declaration to support certain legal arguments.

171 See Final Rule, Use of Electronic Submissions in Agency Hearings, 72 Fed. Reg. 49139, 49142 (Aug. 28, 2007)

(Documents signed under oath or affirmation, such as affidavits, should be executed in the form specified in 28 U.S.C. 1746.); 10 C.F.R. § 2.304(d) (The signature of a person signing an affidavit or similar document, which should be submitted in accord with the form outlined in 28 U.S.C. 1746, is a representation that, under penalty of perjury, the document is true and correct to the best of that individual's knowledge and belief. If a document is not signed, or is signed with intent to defeat the purpose of this section, it may be struck.).

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Because Drs. McKinzie and Cochran are employees of or otherwise affiliated with NRDC, Exelon can only infer that their lack of signature on a declaration supporting a waiver petition means that they either do not support the use of their technical positions in a waiver petition or that they no longer stand behind the technical positions offered in their Original Declaration. NRDC filed a week earlier than the deadline imposed by the Commission in CLI-12-19 (i.e., November 21 instead of November 27), so Exelon assumes that NRDC had adequate time to acquire the Drs. McKinzie and Cochrans signatures if they were supportive of waiver.

Moreover, Drs. McKinzie and Cochrans statements in the Original Declaration have been changed without their apparent consent. According to Dr. Weaver, incorporated material supported by other experts (i.e., Dr. McKinzie or Dr. Cochran) includes a discrete notation of the proponents initials at the beginning of the appropriate paragraph in the Weaver Declaration.172 Exelon prepared Exhibit A to identify the changes between the Original Declaration and the declaration filed to support the Wavier Petition. As Exhibit A demonstrates, portions of the incorporated material supported by Drs. McKinzie or Dr. Cochran in the Original Declaration, have been changed.173 More importantly, the vast majority of the Weaver Declaration incorporates positions that were not offered by Dr. Weaver in the Original Declaration.174 For example, paragraph 9, sponsored only by Dr. McKinzie, states that In my review of these 18 SAMA analyses . . . .

The Weaver Declaration does not support a conclusion that Dr. Weaver has personally reviewed these eighteen prior SAMA analyses. Therefore, he cannot be a declarant for this paragraph.

172 Weaver Decl. at n. 1.

173 See Exhibit A at ¶¶4, 9, 10, 13, 25-26. Exhibit A identifies Dr. Weavers modifications to the incorporated material in redline format.

174 See Weaver Decl. at ¶¶ 5-11, 13-24.

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Such portions of the Weaver Declaration, for which Dr. Weaver has no expertise or personal knowledge,175 do not satisfy the affidavit requirement of Section 2.335(b) and should be disregarded.

The Board should deny NRDCs attempt to change or expand the legal effect of the Original Declaration via cut and paste without the explicit consent of the original affiants.176 The Commission has allowed affidavits to incorporate other statements by reference, provided that the incorporated material has the support of the opinion of a clearly qualified expert.177 It does not follow, however, that NRDC can simply adopt technical positions or modify the incorporated material supported by experts who are not affiants with respect to the Waiver Petition. To do so, would place the Board in the position of guessing what Drs. McKinzie and Cochran truly intended - i.e., whether their technical positions in the Original Declaration were also intended to support waiver of Section 51.53(c)(3)(ii)(L).

As Exhibit A shows, the only unadulterated portions of the Weaver Declaration supported solely by Dr. Weaver are paragraphs 1 and 12. Neither of those paragraphs offers any circumstance which would justify waiver of Section 51.53(c)(3)(ii)(L). Accordingly, the Weaver Declaration does not satisfy the affidavit requirement of Section 2.335(b), which is fatal to the Waiver Petition.

175 If Dr. Weaver had such expertise or personal knowledge, Exelon assumes he would have been listed as the affiant in the original declaration supporting the Hearing Request.

176 See Crow Butte Resources, Inc. (License Renewal for In Situ Leach Facility, Crawford, Nebraska), CLI-09-9, 69 NRC 331, 342-43 (2009) (denying an attempt to establish organizational standing by incorporating by reference an affidavit from another proceeding for the same nuclear site).

177 Accord U.S. Dept. of Energy (High-Level Waste Repository), LBP-09-6, 69 NRC 367, 408-410, affd in part, revd in part, U.S. Dept. of Energy (High-Level Waste Repository), CLI-09-14, 69 NRC 580 (2009).

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C. Contrary to NRDCs Assertion, the Existence of New and Significant Information Does Not Automatically Require a Waiver Throughout the entire Waiver Petition, NRDC claims that a waiver is warranted by virtue of its bare assertion of new and significant information vis--vis Limericks 1989 SAMDA analysis. According to NRDC, NEPA requires the NRC to consider the new information regarding SAMAs identified by NRDC in Contentions 1-E and 3-E in an adjudicatory proceeding.178 NRDC is simply wrong.

NRDC misconstrues the interplay between the new and significant information requirement in Section 51.53(c)(3)(iv), and the Section 51.53(c)(3)(ii)(L) exception that expressly provides that certain plants, for which the NRC Staff already has considered mitigation alternatives under NEPA, need not include another SAMA analysis in the ER for license renewal. In CLI-12-19, the Commission made it abundantly clear that SAMA analyses are the functional equivalent of a Category 1 issue for Limericks license renewal.179 NRDCs contention that the new and significant information requirement overrides the 178 See Waiver Petition at 7 (arguing that new and significant information could not be considered absent a waiver being granted pursuant to 10 C.F.R. §2.335); id. at 13-14 (However, the bottom line is that, to be consistent with NEPA, the Commission must either conclude that a waiver is not necessary, or waive 10 C.F.R. § 51.53(c)(3)(ii)(L)); id. at 14 (Thus, while in NRDCs view the [Board] correctly concluded that because [r]egulations cannot trump statutory mandates, [citation omitted], NRDCs contention based on such new information must be permitted into the proceeding, irrespective of 10 C.F.R. §51.53(c)(3)(ii)(L), at a bare minimum a waiver of the regulation must be granted on that basis alone.); id. at 19 (suggesting that CLI-12-19 interprets Section 51.53(c)(3)(ii)(L) in a way that would prevent NRC from considering newly-identified mitigation alternatives); id. at 24 (Absent a waiver, by the time Limerick Unit 2 completes its license renewal period, in 2049, its required NEPA analysis of [SAMAs] will conceivably have gone for sixty years without facing a requirement for updating in light of new and significant information, and without affording the public its due process right under NEPA to challenge the licensees use of such information and/or failure to apprehend its importance to identification of cost-effective measures for mitigating the environmental consequences of a severe accident.); see also Fettus Decl. at ¶¶ 1-2 (asserting that it would be contrary to the purposes of the regulation to conclude that the new information need not be considered simply because an analysis was done in 1989 that addressed other mitigation alternatives); id. at ¶ 4 (Absent the waiver sought here, the Limerick plant will be the only BWR that will be relicensed without the operator or NRC considering the most recent techniques, technologies, and economic considerations regarding [SAMAs].).

179 Limerick, CLI-12-19, 75 NRC __, slip op. at 13 (finding that the exception in section 51.53(c)(3)(ii)(L) operates as the functional equivalent of a Category 1 issue, removing SAMAs from litigation in this, as well as certain other, case-by-case license renewal adjudications.).

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Section 51.53(c)(3)(ii)(L) exception directly conflicts with Commission precedent establishing that the sufficiency of the applicants evaluation of purported new and significant information relating to Category 1 issues may not be litigated absent a waiver.180 Indeed, as the Commission held in the Vermont Yankee/Pilgrim license renewal proceedings, [a]djudicating category one issues site-by-site based merely on a claim of new and significant information, would defeat the purpose of resolving generic issues in a GEIS.181 In affirming the decision and reasoning of the Pilgrim and Vermont Yankee licensing boards and the Commission, the First Circuit reasoned that prohibiting petitioners from challenging new and significant information pertaining to issues decided by rule, as is the case here, was permissible under NEPA because the NRC has established other means to challenge those findings.182 Specifically, individuals may petition for rulemaking, comment on the Staffs draft SEIS, or seek a waiver from the Commission.183 The First Circuit relied on the settled NEPA principle that [a]dministrative efficiency and consistency of decision are both furthered by a generic determination of [environmental] effects without needless repetition of the litigation in individual proceedings, which are subject to review by the Commission in any event.184 In CLI-12-19, the NRC applied the VermontYankee/Pilgrim decision and concluded that Section 51.53(c)(3)(ii)(L) removes SAMAs from litigation in this as well as certain other, case-by-case license renewal adjudications, absent a waiver.185 The Commission then identified 180 Vermont Yankee/Pilgrim, CLI-07-3, 65 NRC at 19-21; Limerick, CLI-12-19 slip op. at 12-14.

181 Vermont Yankee/Pilgrim, CLI-07-3, 65 NRC at 21.

182 Massachusetts v.NRC, 522 F.3d 115, 120-121 (1st Cir. 2008).

183 See id.; see also Turkey Point, CLI-01-17, 54 NRC at 12.

184 Massachusetts, 522 F.3d at 127 (citing Balt. Gas & Elec. Co., 462 U.S. at 101); see also Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 535 n. 13 (1978).

185 Limerick, CLI-12-19, 75 NRC __, slip op. at 13.

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several procedural avenues available to NRDC in addition to satisfying the stringent standards for waiver.186 In light of the foregoing Commission precedent, the NRC can fully satisfy its NEPA obligations with respect to new and significant information outside of the hearing process.

As the Commission recognized in CLI-12-19, NRDC may seek a rulemaking to rescind the Section 51.53(c)(3)(ii)(L) exception.187 There is no inherent right conferred on the public under NEPA to litigate an ERs discussion of new and significant information or the NRC Staffs consideration of that information.188 Rather, to litigate SAMA issues in this adjudicatory proceeding, NRDC must show that its allegations meet all four parts of the Millstone test.

Accordingly, the mere assertion of new and significant information does not mean that the NRC must waive its regulations or otherwise permit NRDC to litigate SAMA issues in this proceeding.

D. NRDC Has Other Avenues to Pursue its Concern NRDC can submit comments on the Draft SEIS. As noted by the Commission in CLI 19, NRDC may seek a rulemaking to rescind the exception in Section 51.53(c)(3)(ii)(L), in accordance with 10 C.F.R. § 2.802(a) ([a]ny interested person may petition the Commission to issue, amend or rescind any regulation.).189 Accordingly, NRDC has other avenues to pursue its concerns.

186 Id. at 13-14.

187 NRDCs assertion in footnote 10 of its Waiver Petition that the Board found in LBP-12-08 that NRDC demonstrated that new information renders the analysis of a conclusion codified in Section 51.53(c)(3)(ii)(L) invalid is plainly incorrect. The Board did not address the merits of NRDCs claim that the new information asserted in its Petition is significant.

188 The Commission did not strongly suggest in CLI-12-19 that waiver should be granted, as NRDC hopes. Waiver Petition at 14, n. 7. Although the Commission stated that one of the appropriate procedural vehicles for NRDC to air its concerns regarding Exelons discussion of new and significant information in the Limerick ER is to seek waiver, it made no representations regarding the merits of granting waiver in this case.

189 Limerick, CLI-12-19, 75 NRC __, slip op. at 14; id. at 13, n. 54 (we have asked the staff to review generically an applicants duty to supplement or correct its environmental report.) (citing Pac. Gas and Elec.

48

IV. CONCLUSION For the reasons discussed above, the Board should deny NRDCs Waiver Petition.

Among other things, the Waiver Petition does not satisfy all four Millstone Factors for waiver and does not satisfy the affidavit requirement of 10 C.F.R. § 2.335(b). Accordingly, the Board should not certify NRDCs Waiver Petition to the Commission.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Alex S. Polonsky Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 Phone: (202) 739-5830 Fax: (202) 739-3001 E-mail: apolonsky@morganlewis.com Counsel for Exelon Generation Company, LLC Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-12-3, 75 NRC __, slip op. at 8, n. 32 (June 7, 2012)).

49

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

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

)

(Limerick Generating Station, Units 1 and 2) ) December 14, 2012

)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I hereby certify that on December 14, 2012, Exelon served a copy of EXELONS RESPONSE OPPOSING NRDCS PETITION FOR WAIVER OF 10 C.F.R. § 51.53(C)(3)(II)(L), EXELONS COUNTER AFFIDAVIT SUPPORTING EXELONS RESPONSE OPPOSING NRDCS PETITION FOR WAIVER OF 10 C.F.R. § 51.53(C)(3)(ii)(L) and supporting documents in this proceeding through the NRCs E-Filing system.

Signed (electronically) by Laura V. Swett Laura Victoria Swett Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 Phone: (202) 739-5677 Fax: (202) 739-3001 E-mail: lswett@morganlewis.com Counsel for Exelon Generation Company, LLC DB1/ 72088004 50