ML12349A384

NRC Staff Answer to Natural Resources Defense Council Petition for Waiver of 10 C.F.R. 51.53(c)(3)(ii)(L)

ML12349A384
Person / Time
Site:	Limerick
Issue date:	12/14/2012
From:	Catherine Kanatas, Lindell J, Matthew Smith NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23892, 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01
Download: ML12349A384 (46)

Text

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

)

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

)

(Limerick Generating Station, Units 1 and 2) )

)

NRC STAFF ANSWER TO NATURAL RESOURCES DEFENSE COUNCIL PETITION FOR WAIVER OF 10 C.F.R. § 51.53(c)(3)(ii)(L)

Maxwell C. Smith Catherine E. Kanatas Joseph A. Lindell Counsel for NRC Staff December 14, 2012

TABLE OF CONTENTS PAGE INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 DISCUSSION ................................................................................................................................ 5 I. Legal Standards ................................................................................................................ 5 A. Petitions for Waiver Under 10 C.F.R. § 2.335 ............................................................. 5 B. The NRCs Environmental Review in License Renewal Proceedings ......................... 6 II. NEPA Does Not Mandate a Waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L) ................................ 9 III. NRDCs Waiver Petition Does Not Meet Any of the Millstone Factors ............................ 11 A. NRDC Has Not Met the First Millstone Factor Because Applying § 51.53(c)(3)(ii)(L)

Would Serve the Purpose for Which the Rule Was Adopted .................................... 12

1. The Purpose of the Exception in § 51.53(c)(3)(ii)(L) ........................................... 12

2. None of NRDCs Arguments Support NRDCs Incorrect Interpretation of the Purpose of § 51.53(c)(3)(ii)(L) ............................................................................. 15

a. NRDCs Citations to the 1996 SOC Does Not Support its Narrow Interpretation of the Purpose of the Rule ............................................................................... 17

b. Case Law Does Not Support NRDCs Interpretation of the Purpose of the Rule ......................................................................................... 19

c. The NEI Rulemaking Petition Does Not Support NRDCs Interpretation of the Purpose of the Rule ......................................................................................... 20

3. None of NRDCs Claims Meet the First Millstone Factor..................................... 21

a. NRDCs Claims Regarding the Use of Modern Techniques and Modeling Do Not Meet the First Millstone Factor .................................................................. 21

b. The Additional SAMAs NRDC References Are Not New and Significant Information Indicating that the Rule Would Not Serve Its Purpose .................. 23

c. NRDCs Claims About Economic Risk Do Not Meet the First Millstone Factor ........................................................................................ 25 B. NRDC Has Not Met the Second Millstone Factor Because It Has Not Established That There Are Special Circumstances Regarding Limerick Which Were Not Considered in the Subsection L Rulemaking Proceeding ........................................ 27

-ii-

1. The Commission Considered the Issues Raised by NRDC in the 1996 SOC ........ 28

a. Additional SAMA Candidates ............................................................................ 28

b. Economic Impacts and Computer Modeling ...................................................... 29

2. NRDCs Further Arguments Misunderstand the Intended Regulatory Scheme ..... 32 C. NRDC Has Not Established That Its Claims Are Unique to Limerick ........................ 34 D. NRDC Has Not Established the Significance of Its Claims ....................................... 37

1. To Establish Significance, NRDC Must Show that Its Alleged New Information Would Lead to a Substantial Reduction in Severe Accident Risk .......................... 37

2. NRDC Has Not Shown that Its Claims Related to Economic Impacts, Additional SAMA Candidates, and Computer Modeling Would Substantially Reduce Severe Accident Risk at Limerick ....................................................................................... 39

3. Contrary to NRDCs Assertions, Challenges to a SAMA Analysis are Not Necessarily Significant Simply Because They Relate to Severe Accident Mitigation ..................................................................................... 41 CONCLUSION ............................................................................................................................ 42

December 14, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

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

)

(Limerick Generating Station, Units 1 and 2) )

)

NRC STAFF ANSWER TO NATURAL RESOURCES DEFENSE COUNCIL PETITION FOR WAIVER OF 10 C.F.R. § 51.53(c)(3)(ii)(L)

INTRODUCTION Pursuant to 10 C.F.R. §§ 2.323(c) and 2.335(b), the NRC Staff answers Natural Resources Defense Councils [(NRDC)] 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 (Waiver Petition).1 A petition to waive an NRC regulation must show that (1) application of the rule in question would not serve its purpose (2) in light of unforeseen special circumstances (3) that are unique to the facility in question and that (4) waiver is necessary to reach a significant issue2. The Atomic Safety and Licensing Board (Board) must dismiss any waiver petition that does not establish a prima facie case for waiver for each of these four factors.3 NRDC has not established a prima facie case on any of these factors. To address the first part of the test, NRDC relies on an interpretation of the purpose of § 51.53(c)(3)(ii)(L) that 1

Natural Resources Defense Councils (NRDC) 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) (Agencywide Documents Access and Management System (ADAMS) Accession No ML12326A976) (Waiver Petition).

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

3 Id.

contravenes the plain language of the regulation and numerous Commission descriptions of its purpose. Second, the Waiver Petition does not demonstrate special circumstances that were unforeseen by the Commission; rather the Statements of Consideration supporting the regulation and similar contemporaneous reviews explicitly addressed the alleged special circumstances. Likewise, NRDC assumes that it raises unique claims because it mistakenly reads § 51.53(c)(3)(ii)(L) to only apply to Limerick and two other plants; however, because § 51.53(c)(3)(ii)(L) applies to a potentially large class of plants, NRDCs claims are not unique.

Last, NRDCs arguments regarding the significance of its claims do not meet well established Federal law and NRC precedent. Thus, the Board should deny the Waiver Petition and reject the underlying contentions it supports.

BACKGROUND On June 22, 2011, Exelon Generation Company, LLC (Exelon) submitted a license renewal application for Limerick Generating Station, Units 1 and 2 (Limerick).4 As part of its application, Exelon submitted an environmental report (ER).5 In that report, Exelon relied on 10 C.F.R. § 51.53(c)(3)(ii)(L) to omit a discussion of severe accident mitigation alternatives, which are typically analyzed in license renewal ERs.6 That section reads, If the staff has not previously considered severe accident mitigation alternatives for the applicants plant in an environmental impact statement or related supplement or in an environmental assessment, a consideration of alternatives to mitigate severe accidents must be provided.7 The NRC Staff previously considered severe accident mitigation design alternatives (SAMDAs) for Limerick in 4

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

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

6 Id. at 4-49.

7 10 C.F.R. § 51.53(c)(3)(ii)(L).

an environmental statement at the operating license stage (1989 SAMDA Analysis).8 In fact, when it promulgated § 51.53(c)(3)(ii)(L), the Commission explicitly noted that SAMAs need not be reconsidered for Limerick for license renewal.9 Therefore, the Applicant chose to rely on § 51.53(c)(3)(ii)(L) instead of conducting a new SAMA analysis. The ER also considered whether new and significant information affected any of the environmental analyses on which it relied, including § 51.53(c)(3)(ii)(L).10 On November 22, 2011, NRDC filed a Petition to Intervene in this proceeding.11 The Petition to Intervene raised three contentions on the ERs treatment of SAMAs.12 The first contention objected to Exelons consideration of new and significant information regarding

§ 51.53(c)(3)(ii)(L), the second contention claimed that aspects of the original 1989 SAMDA Analysis were inadequate, and the third contention questioned whether the 1989 SAMDA Analysis was in fact a SAMA analysis within the meaning of § 51.53(c)(3)(ii)(L).13 The NRC Staff and Exelon opposed all three contentions because they impermissibly challenged an NRC regulation without first seeking a waiver of that regulation as required by 10 C.F.R. § 2.335.14 8

ER at 4-49; Final Environmental Statement Related to Operation of Limerick Generating Station, Units 1 and 2, NUREG-0974 Supplement (Aug. 1989) (ADAMS Accession No. ML11221A204) (1989 SAMDA Analysis). Because the Commission has determined that the SAMDA analysis at Limerick also constituted a SAMA analysis, for purposes of this response, the two terms are interchangeable.

Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,481 (June 5, 1996) (1996 SOC).

9 61 Fed. Reg. at 28,481.

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

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

12 Id. at 2.

13 Id. at 16, 19, 21.

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

The Board agreed that the third contention constituted an impermissible challenge to

§ 51.53(c)(3)(ii)(L) and dismissed the second contention as immaterial.15 Although the Board found no need for a waiver for the first contention, the Board admitted only a few portions of the first contention, which challenged Exelons use of economic data and consideration of SAMA candidates from other sites.16 The Staff and Exelon appealed the Boards ruling.17 On appeal, the Commission found the first contention impermissibly challenged its regulations and therefore the Board should not have admitted portions of it without an accompanying waiver petition.18 The Commission remanded the case to the Board to allow NRDC to file a waiver petition to support the admitted portions of the first contention as well as any parts of the second and third contentions the Board may have dismissed as impermissible challenges to NRC regulations.19 In response, NRDC filed the instant Waiver Petition. NRDC seeks a waiver of 10 C.F.R.

§ 51.53(c)(3)(ii)(L) for the two portions of the first contention initially admitted by the Board, regarding economic data and SAMA candidates considered at other facilities.20 In addition, NRDC seeks to waive § 51.53(c)(3)(ii)(L) to support a portion of its third contention, concerning computer modeling.21 15 Exelon Generation Company, LLC (Limerick Generating Station, Units 1 and 2), LBP-12-08, 75 NRC __, __ (Apr. 4, 2012) (slip op. at 29-30, 34). The Board also dismissed a fourth contention, related to alternatives to the project. Id. at 39.

16 Id. at 27.

17 NRC Staffs Notice of Appeal of LBP-12-08 (Apr. 16, 2012) (ADAMS Accession No. ML12107A406) (Staffs Notice of Appeal); Exelons Notice of Appeal of LBP-12-08 (Apr. 16, 2012)

(ADAMS Accession No. ML12107A417).

18 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC

__, __ (Oct. 23, 2012) (slip op. at 12-14).

19 Id. at 15.

20 Waiver Petition at 11 n.5.

21 Id.

DISCUSSION I. Legal Standards A. Petitions for Waiver Under 10 C.F.R. § 2.335 Pursuant to 10 C.F.R. § 2.335(a), [e]xcept as provided in [§ 2.335 (b), (c), and (d)], no rule or regulation of the Commission, or any provision thereof, concerning the licensing of production and utilization facilities . . . is subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding subject to this part. Subsection (b) of § 2.335 further provides, 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.22 Subsection (c) directs the presiding officer to dismiss the petition and related claims if the petitioner does not produce a prima facie showing that meets the requirements of subsection (b). A prima facie showing is not a ruling on the merits [but] merely requires the presentation of enough information to allow the Board to infer (absent disproof) that special circumstances exist.23 If the petitioner makes a prima facie showing, subsection (d) instructs the presiding officer to certify the matter directly to the Commission.

22 In addition, the petition must be accompanied by an affidavit that must state with particularity the special circumstances alleged to justify the waiver or exception. 10 C.F.R. § 2.335(a). NRDC also included two affidavits in support of the filing. Declaration of Geoffrey H. Fettus, Counsel for the Natural Resources Defense Council (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 (Nov. 21, 2012) (ADAMS Accession No. ML12326A975) (NRDC Counsel Declaration); Declaration of Christopher J. Weaver, Ph.D., on Behalf of the Natural Resources Defense Council in Support of Motion for Waiver (Nov. 21, 2012) (ADAMS Accession No. ML12326A975) (Weaver Declaration). The Weaver Declaration reproduces and augments sections of an affidavit filed by Dr. Weaver and other NRDC experts earlier in the proceeding. Some of the additions relate to paragraphs not attributed to Dr. Weaver. Compare Weaver Declaration at ¶¶ 9, 10 with Declaration of Thomas B. Cochran, Ph.D., Matthew G. McKinzie, Ph.D. and Christopher J. Weaver, Ph.D., on Behalf of the Natural Resources Defense Council, at ¶¶ 11, 12 (Nov. 22, 2011) (ADAMS Accession No. ML11326A322).

23 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-10-15, 72 NRC 257, 279 (2010) (citing Blacks Law Dictionary 1310 (9th ed. 2009)).

In applying these provisions, the Commission has emphasized that a waiver of one or more of the license renewal rules may be granted only upon a showing that four requirements (Millstone factors) have been satisfied:

(i) the rules strict application would not serve the purposes for which [it] was adopted; (ii) the movant has alleged special circumstances that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived; (iii) those circumstances are unique to the facility rather than common to a large class of facilities; and (iv) a waiver of the regulation is necessary to reach a significant safety problem. 24 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.25 Thus, unless these requirements are satisfied, any issues the Commission resolved generically through rulemaking cannot be challenged in individual license renewal proceedings.26 B. The NRCs Environmental Review in License Renewal Proceedings The NRC considers SAMAs in license renewal proceedings as part of its environmental 24 Millstone, CLI-05-24, 62 NRC at 559-60 (internal quotations omitted).

25 Id. (emphasis in original).

26 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 10, 12 (2001). Although the Commission stated that it would only waive application of a rule if a party demonstrated that the waiver was necessary to reach a significant safety problem, the Staff assumes that the Commission would also waive a regulation if necessary to reach a significant environmental issue as well. Otherwise, this remand would be purposeless. Limerick, CLI-12-19, 76 NRC at __ (slip op. at 15); but see Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC __, __ (2011) (slip op. at 30 n. 122) (declining to reach the issue of whether an environmental concern would be significant under the Millstone test). Similarly, the Commission has indicated that an environmental issue may constitute an exceptionally grave issue for purposes of reopening a closed record. Entergy Nuclear Operation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-21, 76 NRC __, __ (2012) (slip op. at 13-14).

review under the National Environmental Policy Act of 1969 (NEPA).27 Before undertaking a major action, NEPA requires Federal agencies to prepare a detailed environmental impact statement (EIS) on the proposed action.28 In preparing the EIS, the agency must take a hard look at the environmental consequences of the proposed action.29 The Supreme Court has held, To be sure, one important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences, such as SAMAs.30 But, the Court has cautioned, it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.31 Thus, it would be inconsistent with NEPA's reliance on procedural mechanisms - as opposed to substantive, result-based standards - to demand the presence of a fully developed plan that will mitigate environmental harm before an agency can act.32 On many environmental issues related to license renewal, the Commission found that it could draw generic conclusions applicable to all existing nuclear power plants, or to a specific subgroup of plants.33 Consequently, the NRC prepared a generic environmental impact statement (GEIS) that assessed those issues, called Category 1 issues, generically.34 Table B-1 of Appendix B of Subpart A to 10 C.F.R. Part 51 (Table B-1) codifies the results of the GEIS.

The Commission also determined that several issues warranted site-specific consideration; 27 10 C.F.R. § 51.53(c)(3)(ii)(L); 42 U.S.C. § 4331.

28 Id. at § 4332.

29 Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976).

30 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).

31 Id. at 350.

32 Id. at 353.

33 Turkey Point, CLI-01-17, 54 NRC at 11.

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

these issues are designated as Category 2 issues.35 The NRC must address Category 2 issues in the site-specific supplemental environmental impact statement (SEIS) it prepares on each license renewal application.36 With respect to the environmental impacts of severe accidents, Table B-1 concludes, The probability weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to ground water, and societal and economic impacts from severe accidents are small for all plants.37 Regarding SAMAs, Table B-1 states that alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives.38 Therefore, because Table B-1 concludes that SAMAs must be considered on a site-specific basis for some plants, it labels severe accidents as a Category 2 issue.39 But, the Commission has clarified that the severe-accidents impact finding and the exception to the SAMA requirement for plants that have already analyzed SAMAs in Table B-1 constitute environmental issues generically resolved by rule.40 Last, the Supreme Court held in Marsh v. Oregon Natural Resources Council that Federal agencies must take a hard look at significant new information the agency discovers after preparing the EIS but before taking the underlying agency action.41 When the agency determines that the new information shows that the project will affect the quality of the human environment in a significant manner or to a significant extent not already considered, a 35 GEIS; Table B-1.

36 10 C.F.R. § 51.95(c).

37 Table B-1; see GEIS at § 5.3.3.1.

38 Table B-1; GEIS at § 5.4.1.5.

39 Table B-1.

40 Limerick, CLI-12-19, 76 NRC at __ (slip op. at 12-13, 5 n.20).

41 490 U.S. 360, 374 (1989).

supplemental EIS must be prepared.42 Thus, the Commission has found that the NRC must supplement an EIS when new circumstances reveal a seriously different picture of the environmental impact of the proposed project.43 Because the NRC previously resolved severe accidents and SAMAs generically for Limerick in Table B-1 and the GEIS, the NRC must address severe accidents or SAMAs in a supplemental EIS only if it discovers new information that reveals a seriously different picture of those issues for Limerick.44 II. NEPA Does Not Mandate a Waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L)

Before addressing the Millstone waiver factors, NRDC first contends that, in light of the NRCs duty to consider new and significant information under NEPA, the agency must waive § 51.53(c)(3)(ii)(L) to allow the NRC to consider NRDCs SAMA contentions.45 But, this argument ignores the purpose of a waiver petition. The Commission has previously recognized that NRC rules provide a number of opportunities for individuals to alert the Commission to new and significant information . . . for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver.46 Consequently, a waiver petition is a sufficient mechanism to pursue a claim that new and significant information renders a codified environmental finding inadequate.

As the First Circuit has explained, NEPA does not require any specific approach to considering new and significant information:

NEPA does impose a requirement that the NRC consider any new and significant information regarding environmental impacts before renewing a nuclear power 42 Id. (quotations omitted).

43 Hydro Resources, Inc., CLI-01-04, 53 N.R.C. 31, 52 (2001).

44 Table B-1; GEIS at § 5.4.1.5. See also 61 Fed. Reg. at 28,480-81 (explaining the findings regarding SAMAs in Table B-1).

45 Waiver Petition at 14. NRDC also appears to make this argument as a reason why it meets the first Millstone factor. E.g. id. at 19-20, 22. The following response to the argument also demonstrates why NRDCs generalized NEPA claims do not meet the first Millstone factor.

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

plant's operating license. However, NEPA does not require agencies to adopt any particular internal decisionmaking structure. Here, the NRC procedures anticipate a situation . . . in which a generic finding adopted by agency rule may have become obsolete.47 As a result, 10 C.F.R. § 2.335 provides one acceptable way for the NRC to consider new and significant information in adjudicatory proceedings because the NRC will waive generic environmental findings upon a site-specific showing that new, or unconsidered, information is significant.48 The waiver process appropriately balances the agencys interest in the finality of its rules with the intervenors right to raise new and significant information under NEPA.

Therefore, contrary to NRDCs argument that the NRC must automatically waive § 51.53(c)(3)(ii)(L) to comply with NEPAs requirement to consider allegedly new and significant information, the waiver process itself is an adequate procedure for considering such claims, as the Commission has recognized.49 47 Massachusetts v. United States, 522 F.3d 115, 127 (2008) (quoting Balt. Gas & Elec. Co.

v.NRDC, 462 U.S. 87, 100 (1983)).

48 Millstone, CLI-05-24, 62 NRC at 559-60. Millstone also requires a Petitioner to show that application of the rule would not serve the purposes for which the Commission adopted it. Millstone, CLI-05-24, 62 NRC at 559-60. But, the Commission has explained that the purpose of its regulations that make generic environmental determinations is to allow the NRC to comply with NEPA by identifying and evaluating certain environmental impacts . . . that are generic to reactor license renewal proceedings, and then allowing [the NRC] to dispense with site-specific evaluations of such environmental impacts in situations covered by the generic analysis. Diablo Canyon, CLI-11-11, 74 NRC at __ (slip op. at 31)

(quotations omitted). Given the high standard for significance under Commission precedent, showing a seriously different picture, Hydro Resources, CLI-01-04, 53 N.R.C. at 52, significant information would certainly demonstrate that a previous generic analysis no longer covered an issue.

Additionally, Millstone requires a petitioner to show special circumstances that are unique to the facility in question. Millstone, CLI-05-24, 62 NRC at 559-60. This factor embodies the Commissions policy to resolve generic issues through rule making. Restructuring of Facility License Application Review and Hearing Process, 37 Fed. Reg. 15,127, 15,129, 15,136 (Jul. 28, 1972); Statement of Policy: Further Guidance for Power Reactor Operating Licenses, CLI-81-16, 14 NRC 14, 16 (1980) (Separate Views of Chairman Ahearne and Commissioner Hendrie). Consequently, a petitioner with new and significant information that was not unique to a facility could always pursue a rulemaking petition to bring that information to the agencys attention. 10 C.F.R. § 2.802. During the pendency of the petition, the petitioner could request a stay of an underlying licensing proceeding. 10 C.F.R. § 2.802(d). Resultantly, 10 C.F.R. § 2.335 does not unduly constrain a petitioners ability to bring claims regarding new and significant information to the agency.

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

Moreover, NRDC incorrectly claims that it need not demonstrate that it meets the significant new information standard, as the merits of NRDCs contentions are not at issue, but rather whether the waiver criteria are satisfied.50 As discussed above, the principle focus for the waiver standard for environmental claims is whether those claims rest on new and significant information.51 This does not require the Board to consider the merits of NRDCs underlying claim; rather, at this stage, NRDC must only present a prima facie case.52 Moreover, Commission case law provides that petitioners seeking to challenge generic environmental findings in NRC regulations must demonstrate the significance of their claims to obtain a waiver.53 Otherwise, the purpose of resolving generic issues in a GEIS would be defeated.54 Thus, challenges to codified environmental impacts in license renewal proceedings cannot rest on mere assertions of significance, as NRDC suggests. Rather, parties seeking to challenge generic environmental findings in NRC must demonstrate the significance of their claims to obtain a waiver.55 III. NRDCs Waiver Petition Does Not Meet Any of the Millstone Factors NRDCs Waiver Petition seeks a waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L) 50 Waiver Petition at 15 n.8.

51 Millstone, CLI-05-24, 62 NRC at 559-60; Turkey Point, CLI-01-17, 54 NRC at 12.

52 10 C.F.R. § 2.335(c).

53 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations (Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13, 21 (2007) affd, Massachusetts v. NRC, 522 F.3d at 120-21, 125-27 (Adjudicating Category 1 issues site-by-site based merely on a claim of >new and significant informationwould defeat the purpose of resolving generic issues in a GEIS.@).

54 Id.

55 The Staff disagrees with NRDCs inference that the Commission strongly suggest[ed] that the waiver should be granted. Waiver Petition at 14 n.8. When read in context, the language cited by NRDC only establishes that a waiver petition is the proper avenue to bring SAMA claims in this proceeding.

Limerick, CLI-12-19, 76 NRC at __ (slip op. at 13). Nothing in the opinion prejudges the question of whether such a petition would be meritorious. Indeed, the Commissions remand to the Board to consider the threshold question of whether NRDC has even established a prima facie case suggests that the Commission has not yet formed an opinion on whether to grant waiver. Id. at 15.

as it applies to two aspects of Contention 1E, i.e., the failure to consider the wider range of mitigation alternatives now identified for [boiling water reactors (BWRs)], and the failure to conduct a reliable off-site economic consequences analysis, and one aspect of Contention 3E, i.e., the need to use a modern methodology to assess the cost-benefit of new mitigation alternatives for Limerick. 56 As discussed in detail below, the Board should dismiss NRDCs Waiver Petition and related claims because NRDC has not made a prima facie showing that there are special circumstances with respect to the subject matter of the particular proceeding, as required by 10 C.F.R. § 2.335(b). Specifically, NRDCs Waiver Petition does not meet any of the four required Millstone factors.57 A. NRDC Has Not Met the First Millstone Factor Because Applying § 51.53(c)(3)(ii)(L)

Would Serve the Purpose for Which the Rule Was Adopted The first Millstone factor requires a petitioner to demonstrate that the rules strict application would not serve the purposes for which [it] was adopted.58 To meet this factor, NRDC must, at a minimum, show that there are special circumstances that undercut the rationale for the rule sought to be waived.59 NRDC has petitioned for waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L), which incorporates the Commissions generic determination, outlined in the GEIS and Table B-1, that certain applicants are excepted from submitting a SAMA analysis at license renewal.60

1. The Purpose of the Exception in § 51.53(c)(3)(ii)(L)

The purpose of 10 C.F.R. § 51.53(c)(3)(ii)(L) is to codify the Commissions determination that a plant that has previously considered alternatives to mitigate severe accidents in an EIS or 56 Waiver Petition at 11 n.5.

57 Millstone, CLI-05-24, 62 NRC at 560 (noting that all four factors must be met).

58 Id.

59 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-88-10, 28 NRC 573, 597 (1988).

60 See 10 C.F.R. § 51.53(c)(3)(ii)(L); Table B-1; GEIS at § 5.4.1.5.

supplement need not reassess severe accident mitigation for license renewal.61 In codifying this generic exception, the Commission noted that the probability-weighted environmental impacts of a severe accident are small.62 The Commission also reasoned that by the time of license renewal, if the NRC has already conducted one SAMA analysis in a NEPA document for a facility, the agency will have sufficiently studied severe accident mitigation for that site to satisfy NEPA without conducting a new SAMA analysis. 63 Notably, the Commissions finding rested not only on the previous SAMA analysis, but also on a variety of other severe accident studies, including the Containment Performance Improvement (CPI) program, Individual Plant Examination (IPE), and Individual Plant Examination for External Events (IPEEE), and on the understanding that the NRC would continue to study severe accidents both generically and at individual plants going forward. 64 The Commission explained in the Statements of Consideration underlying § 51.53(c)(3)(ii)(L) (1996 SOC) that the CPI program identified potential containment improvements for site-specific consideration by licensees, and that there were other ongoing regulatory programs [including the IPE and IPEEE] whereby licensees search for individual plant vulnerabilities to severe accidents and consider cost-beneficial improvements.65 Given these programs, the Commission determined it was unlikely that any site-specific consideration of severe accident mitigation alternatives for license renewal will identify major plant design 61 See Diablo Canyon, CLI-11-11, 74 NRC at __ (slip op. at 31); GEIS at § 5.4.1.5.

62 61 Fed. Reg. at 28,480-81.

63 Id.

64 Id. (recognizing the possibility that the agency may conduct future severe accident mitigation studies that may uncover potentially cost-beneficial SAMAs). Since § 51.53(c)(3)(ii)(L) was promulgated, the NRC has further considered severe accidents and ways to mitigate their impacts, including its response to the events of September 11, 2001, its response to the Fukushima incident, as well as its Level 3 PRA study. See Diablo Canyon, CLI-11-11, 74 NRC at __ (slip op. at 43); SRM-SECY-11-0089, Staff Requirements SECY-11-0089 Options for Proceeding with Future Level 3 Probabilistic Risk Assessment with Future Level 3 Probabilistic Risk Assessment (PRA) Activities (Sept. 21, 2011) (ADAMS Accession No. ML112640419) (SRM-SECY-11-0089).

65 61 Fed. Reg. at 28,481.

changes or modifications that will prove to be cost-beneficial for reducing severe accident frequency or consequences.66 Notably, this Commission expectation was based in part on the Limerick SAMDA analysis, which only identified plant procedural changes as cost-beneficial despite being in a high-population site.67 The 1996 SOC also explained that the purpose of § 51.53(c)(3)(ii)(L) was not to prescribe by rule the scope of an acceptable consideration of severe accident mitigation alternatives for license renewal [or] to mandate consideration of alternatives identical to those evaluated previously.68 Instead, the Commission described how applicants could use different approaches, including quantitative approaches, in performing SAMA analyses.69 Moreover, the Commission recognized that the NRC would continue to study severe accidents generically and at other facilities in those intervening years, updating the agencys understanding of severe accident progression and risks as well as identifying new SAMA candidates.70 With this 66 Id.

67 Id. In response to the Limerick decision, an NRC staff consideration of SAMDAs was specifically included in the Final Environmental Impact Statement[s] for the Limerick 1 and 2 and Comanche Peak 1 and 2 operating license reviews, and in the Watts Bar Supplemental Final Environmental Statement for an operating license. The alternatives evaluated in these analyses included the items previously evaluated as part of the CPI Program, as well as improvements identified through other risk studies and analyses. 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. Furthermore, the Limerick analysis was for a high-population site. Because risk is generally proportional to the population around a plant, this analysis suggests that other sites are unlikely to identify significant plant modifications that are cost-beneficial. Id.

68 Id. For example, the Commission explicitly stated that a site-specific Level 3 PRA was not required to determine whether an alternative under consideration was cost-beneficial. Id. Instead, the Commission explained that it would review each severe accident mitigation consideration provided by a license renewal applicant on its merits and determine whether it constitutes a reasonable consideration of severe accident mitigation alternatives. Id. at 28,481-82.

69 The Commission indicated that the SAMAs conducted at Watts Bar and Comanche Peak were also SAMAs within the meaning of § 51.53(c)(3)(ii)(L). Id. at 28,481.

70 Id. at 28.481. The Commissions Pilgrim cases discuss the ongoing nature of the severe accident review, and indicate that the SAMA analysis for a facility constitutes the latest in a series of studies of ways to mitigate severe accidents for that facility, so the Staff typically does not expect it to uncover major safety vulnerabilities. See Entergy Nuclear Operation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC __, __ (2012) (slip op. at 24-25).

The Pilgrim Commission explained that the mitigation measures examined are supplemental to those

understanding, the Commission determined that the 1989 SAMDA Analysis done at Limerick in support of the operating license was a reasonable SAMA analysis,71 and therefore severe accident mitigation alternatives need not be reconsidered for [Limerick] for license renewal.72 As a result, the purpose of § 51.53(c)(3)(ii)(L) is clear, and the Commission plainly recognized that the exception in this rule applies specifically to Limerick.73 Thus, NRDC must demonstrate that there is new information that could invalidate the Commissions determination that Exelon need not submit another SAMA analysis at Limericks license renewal in light of the totality of severe accident studies discussed in the 1996 SOC. As discussed below, NRDC does not demonstrate that any of its claims regarding advanced modeling, other SAMA candidates, or economic data would render invalid the Commissions rationale underlying § 51.53(c)(3)(ii)(L). Therefore, the Waiver Petition does not meet the first Millstone factor and should be denied.

2. None of NRDCs Arguments Support NRDCs Incorrect Interpretation of the Purpose of § 51.53(c)(3)(ii)(L)

Instead of demonstrating why the strict application of the rule would not serve its already required under Commissions safety regulations for reasonable assurance of safe operation. The reactor oversight process examines whether additional mitigation measures should be imposed as a safety matter under Part 50. And following Fukushima, the Commission is conducting a comprehensive safety review that involves a review of regulations and guidance associated with accident mitigation measures. Id.

71 NRC staff considerations of severe accident mitigation alternatives have already been completed and included in an EIS or supplemental EIS for Limerick, Comanche Peak, and Watts Bar.

Therefore, severe accident mitigation alternatives need not be reconsidered for these plants for license renewal. 61 Fed. Reg. at 28,481.

72 Id. See also Limerick, CLI-12-19, 76 NRC at __ (slip op. at 13) (citing to 1996 SOC and noting that under § 51.53(c)(3)(ii)(L), Exelon is permitted not to prepare a site-specific supplemental SAMA analysis in conjunction with the Limerick license renewal application).

73 61 Fed. Reg. at 28,481; Limerick, CLI-12-19, 76 NRC at __ (slip op. at 13) (noting language in 51.53(c)(3)(ii)(L) clearly applied to Limerick but allowing NRDC to submit waiver given ambiguity in interplay of §§ 51.53(c)(3)(ii)(L) and 51.53(c)(iv) and fact that the rules previously stated that only a party could seek waiver).

purpose in this proceeding, NRDC offers a novel74 view of the purpose of the rule that is contrary to its plain text. NRDC maintains that the purpose of the exception in § 51.53(c)(3)(ii)(L) is only to exclude those specific SAMA candidates previously considered from being considered again.75 Therefore, NRDC argues that it would not serve the purpose of 10 C.F.R. § 51.53(c)(3)(ii)(L) to apply it in a way that would prevent NRC from considering newly identified mitigation alternatives,76 from evaluating those newly identified mitigation alternatives in light of their off-site economic consequences77 and from using the most advanced and established methodologies for evaluating the costs and benefits of those newly identified mitigation alternatives78 and that would prevent NRDC from challenging Exelons ER for its failure to properly fulfill these obligations.79 Notably, NRDC acknowledges that it supports this interpretation of the purpose of § 51.53(c)(3)(ii)(L) despite the plain text of the regulation.80 The plain text reads, If the staff has not previously considered severe accident mitigation alternatives for the applicants plant in an environmental impact statement or related supplement or in an environmental assessment, a consideration of alternatives to mitigate severe accidents must be provided. (emphasis added).

The NRC may not adopt an interpretation of a regulation that conflicts with its plain language.81 74 The Waiver Petition appears to be the first time NRDC presents this interpretation of the rule.

See Petition to Intervene at 30-31 (suggesting that a valid SAMA analysis would excuse an applicant from conducting a further SAMA analysis at license renewal).

75 See Waiver Petition at 17 (Accordingly, despite its language, the purpose of 10 C.F.R. 51.53(c)(3)(ii)(L) was simply to exempt companies such as Exelon from being forced to reconsider specific alternatives previously considered, from which it necessarily follows that any new alternatives that would mitigate severe accidents should be subject to the standard for new and significant information.).

See also NRDC Counsel Decl. at ¶¶ 1-3 (same).

76 See also Waiver Petition at 20; NRDC Counsel Declaration at ¶ 1.

77 See also Waiver Petition at 20-21; NRDC Counsel Declaration at ¶ 2.

78 See also Waiver Petition at 21; NRDC Counsel Declaration at ¶ 3.

79 Waiver Petition at 19; NRDC Counsel Declaration at ¶¶ 1-3.

80 Waiver Petition at 17 (Accordingly, despite its language, the purpose of 10 C.F.R. . . .)

(emphasis added).

81 Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994).

Moreover, several Commission descriptions of the rule confirm that it applies to SAMA analyses, not just individual SAMA candidates. For example, in CLI-12-19, the Commission stated that our rules expressly provide that a supplemental SAMA analysis need not be performed in the Limerick proceeding.82 Likewise, in the 1996 SOC, the Commission explicitly stated a site-specific consideration of severe accident mitigation alternatives is required at license renewal for those plants for which this consideration has not been performed.83 Despite the plain language of the rule and Commission statements, NRDC argues that its narrow interpretation of the rule is supported by portions of the 1996 SOC, case law discussing Category 2 issues, and a Nuclear Energy Institute (NEI) rulemaking proposal.

However, none of NRDCs arguments support its interpretation that the purpose of § 51.53(c)(3)(ii)(L) is only to exempt from review those specific mitigation alternatives previously considered by the NRC.

a. NRDCs Citations to the 1996 SOC Does Not Support its Narrow Interpretation of the Purpose of the Rule NRDC offers several citations to the 1996 SOC as support for its interpretation of the rule.84 However, the citations do not support NRDCs interpretation of the rule. For example, NRDC asserts that the 1996 SOC provides that in light of inevitable changes that occur over time, 10 years is a suitable period to delimit the outer bounds of when the Commission will assume that changes in condition and technology do not warrant additional NEPA review.85 Therefore, NRDC argues that it would plainly be inconsistent with the purpose of these regulations to limit the scope of these [SAMAs], the offsite economic impacts of severe 82 Limerick, CLI-12-19, 76 NRC at __ (slip op. at 13) (emphasis added). The Commission also observed, 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. Id.

83 61 Fed. Reg. at 28,481.

84 See, e.g., Waiver Petition at 17-18 (citing 61 Fed. Reg. at 28, 468, 28, 470, 28, 472, 28,480).

85 Waiver Petition at 19 (citing 61 Fed. Reg. at 28, 471).

accidents, and the methodology for assessing the costs and benefits of such mitigation alternatives to alternativesconsidered so long ago.86 But NRDC misinterprets the 1996 SOC. The Commission did not state that additional NEPA review on SAMAs was warranted every 10 years given updates in technology. Instead, the Commission stated that it would formally review the rule and the GEIS on a schedule that allows revisions, if required, every 10 years.87 The Commission has reviewed the generic findings codified in § 51.53(c)(3)(ii)(L) since it was promulgated, and has not revised the exception in the rule.88 In fact, the Commission approved the final rule in the GEIS update and did not indicate that a particular technology or methodology must be used in performing a SAMA.89 Therefore, the 1996 SOC does not support NRDCs claim that the purpose of the rule would not be served by applying the exception in § 51.53(c)(3)(ii)(L) in this case.

Likewise, although recognizing that it contravenes the plain language of the rule, NRDC suggests a statement in the 1996 SOC indicates that the purpose of the rule was simply to limit the analysis during relicensing to exclude consideration of such alternatives regarding plant operation that were previously considered.90 But, when read in context, that sentence states 86 Id. NRDC then claims that NEPA mandates a waiver of § 51.53(c)(3)(ii)(L). As discussed above, this conclusion conflicts with numerous Commission descriptions of how § 2.335 applies to its codified environmental findings for license renewal. See supra at Discussion section II.

87 61 Fed. Reg. 28,467, 28,470-71 (emphasis added). To provide more context, the full quote provides: After consideration of the changes from the proposed rule to the final rule and further review of the environmental issues, the NRC has concluded that it is adequate to formally review the rule and the GEIS on a schedule that allows revisions, if required, every 10 years. The NRC believes that 10 years is a suitable period considering the extent of the review and the limited environmental impacts observed thus far, and given that the changes in the environment around nuclear power plants are gradual and predictable with respect to characteristics important to environmental impact analyses. This review will be initiated approximately 7 years after completion of the last cycle. The NRC will conduct this review to determine what, if anything, in the rule requires revision. Id.

88 See Proposed Rule: Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 74 Fed. Reg. 38117 (July 31, 2009).

89 Final Rule: Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses (10 CFR Part 51; RIN 3150-AI42 (Dec. 6, 2012) (ADAMS Accession No. ML12341A250).

90 Waiver Petition at 17 (quoting 61 Fed. Reg. at 28,480) (emphasis in Waiver Petition).

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 related supplement.91 Thus, the clear focus of the sentence is on the consideration of SAMAs in a previous environmental document, not individual SAMA candidates. As a result, this portion of the 1996 SOC does not support NRDCs interpretation of § 51.53(c)(3)(ii)(L).

b. Case Law Does Not Support NRDCs Interpretation of the Purpose of the Rule NRDC asserts that its view of the purpose of the rule is further confirmed by the Courts ruling in NJ Dept of Env. Prot. v. NRC, 561 F.3d 132, 135 (3d Cir. 2009).92 NRDC cites to language in the decision which it claims confirms that § 51.53(c)(3)(ii)(L) simply exempts those mitigation measures previously considered from being considered again.93 NRDCs reading of this case law is incorrect. The entire quote from the decision reads, 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.94 Thus, the language NRDC cites only generally describes the Commissions environmental review for license renewal and, if anything, confirms the actual purpose of the rule; namely, for those plants that have not previously considered SAMAs, SAMAs are a Category 2 site-specific issue 91 61 Fed. Reg. at 28,480.

92 Waiver Petition at 18.

93 Id. (citing 561 F.3d at 135) (the Court explained that the purpose of the Category 2 regulation, including [§ 51.53(c)(3)(ii)(L)], is to require 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.) (emphasis in Waiver Petition).

94 NJ. Dept. of Env. Prot., 561 F.3d at 135 (emphasis added).

and must be discussed in the ER and SEIS.95 For those plants that have previously considered SAMAs, the issue has been resolved generically for license renewal (i.e., another SAMA analysis need not be submitted).96

c. The NEI Rulemaking Petition Does Not Support NRDCs Interpretation of the Purpose of the Rule NRDC further argues that the Commissions denial of a 1999 NEI rulemaking petition supports its interpretation of the rule. NRDC asserts that NEIs 1999 rulemaking petition sought to make severe accident mitigation alternatives a Category 1 issue, and that the Commission expressly rejected that proposal.97 This is not an accurate description of what was requested or denied. What NEI proposed, and what was expressly rejected, was that the NRC regulations be amended to remove the requirement to consider severe accident mitigation as part of the license renewal environmental review because severe accidents were remote and speculative.98 In denying NEIs rulemaking petition, the Commission stated that the NRC has a legal obligation to consider SAMAs as a part of license renewal review,99 but that it could do so in a variety of ways. The Commissions denial noted that there was an inadequate basis without further Staff review at the time for a rulemaking to change SAMAs from a Category 2 to a Category 1 issue.100 However, this does not demonstrate why the exception in § 51.53(c)(3)(ii)(L) should not apply here, where a site-specific SAMA has been done, making 95 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. 61 Fed. Reg. at 28,480.

96 Id. Limerick, CLI-12-19, 76 NRC __ (slip op. at 13).

97 Waiver Petition at 18, n. 10.

98 Nuclear Energy Institute; Denial of Petition for Rulemaking, 66 Fed. Reg. 10,834, 10,835 (Feb.

20, 2001).

99 Id. at 10,836.

100 Id. at 10,838.

SAMA the legal equivalent of a Category 1 issue.101 As the Commission has stated, SAMAs are a Category 2 issue for those plants that have not had a SAMA completed; but for plants like Limerick, where a SAMA analysis has been completed, SAMAs have been generically resolved by rule.102 Thus, applying the exception in this case serves the purpose of the rule.

3. None of NRDCs Claims Meet the First Millstone Factor In addition to offering its own interpretation of § 51.53(c)(3)(ii)(L), NRDC identifies several issues which it contends undermine the purpose of § 51.53(c)(3)(ii)(L) as applied to this case. Specifically, NRDC contends that the rule should not be applied here because new analyses are required which (1) utilize different modeling than used in the 1989 SAMDA Analysis, (2) analyze additional mitigation measures identified at other BWRs, and (3) utilize different economic inputs.103 As discussed above, NRDCs understanding of the purpose of the rule is flawed. Moreover, even if the Board considered these issues with respect to the stated purpose for the rule in the 1996 SOC, NRDCs arguments fail to explain why the Commissions determination in § 51.53(c)(3)(ii)(L) should not be applied in this case. Therefore, NRDCs waiver petition does not meet the first Millstone factor and should be denied.

a. NRDCs Claims Regarding the Use of Modern Techniques and Modeling Do Not Meet the First Millstone Factor NRDC claims that the rule does not serve its purpose here because it does not require Exelon and NRC Staff to use the more accurate and reliable methods available today for assessing the consequences of a severe accident, including economic consequences and assessing the costs and benefits of the additional mitigation alternatives that are appropriate for 101 Limerick CLI-12-19, 76 NRC (slip op. at 13).

102 Id.

103 See, e.g., Waiver Petition at 3 and 21-22. See also id. at 3 n. 3 (noting that [t]he portion of

[Contention 3] that was related to flaws in the 1989 SAMDA is not the subject of this waiver request).

BWRs.104 NRDC claims that the 1989 SAMDA Analysis is invalid because it failed to use a probabilistic safety assessment severe accident consequences code system comparable to the MELCOR Accident Consequence Codes Systems (MACCS) 2.105 But NRDC does not show how the use of a particular methodology in the 1989 SAMDA Analysis done for Limerick undermines the rationale for this rule.106 Therefore, NRDCs Waiver Petition does not meet the first Millstone factor and should be denied.

As discussed above, the Commission indicated that the purpose of the rule was not to prescribe the scope of an acceptable consideration of severe accident mitigation alternatives.

Instead, the Commission recognized that SAMA analyses could be conducted in a variety of ways, using a variety of methods, and that each severe accident mitigation consideration provided by an applicant would be reviewed on its merits to determine whether it constitutes a reasonable consideration of severe accident mitigation alternatives.107 This idea is reflected in recent Commission case law regarding SAMAs, which provides that a Boards inquiry into SAMA claims should not be whether there are plainly better methodologies or whether the SAMA analysis can be refined further.108 After reviewing the Limerick SAMDA analysis, the Commission stated that the it was a SAMA analysis for purposes of § 51.53(c)(3)(ii)(L), and that another SAMA analysis need not be 104 Waiver Petition at 21 (citing Initial Petition at 22 and NRDC Counsel Decl. at ¶ 3). See also Waiver Petition at 11.

105 Waiver Petition at 21. See also Weaver Declaration at 9-10 ¶ 13 (claiming that a new SAMA analysis should be done using MACCS2). The Staff notes that at places in the Waiver Petition, NRDC notes that claimed deficiencies in the 1989 SAMDA Analysis are not part of the waiver petition, see, e.g.,

Waiver Petition at 3 n. 3 but that at other points, the Waiver Petition cites deficiencies in the 1989 SAMDA Analysis as support for why the rule should not apply here. Id. at 21.

106 Seabrook, CLI-88-10, 28 NRC at 597 (noting that to meet first Millstone factor, must at minimum show special circumstances undercutting rationale of rule sought to be waived).

107 61 Fed. Reg. at 28,481-82.

108 Entergy Nuclear Operation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 315 (2012).

done for Limerick license renewal.109 Therefore, NRDCs claim that either the rule or the 1989 SAMDA Analysis is invalid because it did not use a particular methodology is contrary to (1) the purpose of the rule as outlined in the 1996 SOC,110 (2) Commission case law on SAMAs, and (3) the Commissions statements regarding the 1989 SAMDA Analysis.

b. The Additional SAMAs NRDC References Are Not New and Significant Information Indicating that the Rule Would Not Serve Its Purpose NRDC also argues that the rule does not serve its purpose in this case because Limerick has not conducted a systematic consideration of the cost and benefits of the additional mitigation alternatives identified by other SAMA analyses conducted for BWR license renewals.111 NRDC argues that Exelon must use the most up-to-date methodology to perform a systematic analysisto determine which, if any, of these additional mitigation alternatives would be cost-beneficial alternatives to Exelons now proposed license renewal for Limerick.112 At bottom, NRDC claims the 1989 SAMDA Analysis is deficient because these additional SAMAs were not analyzed, and that the license renewal ER is deficient because a new SAMA analysis for Limerick was not performedusing [this] set of SAMA candidates.113 Once again, 109 61 Fed. Reg. at 28,481. For example, the Limerick SAMDA analysis used the $1000 person rem factor, instead of the MACCS2 code, to account for the economic impacts of a severe accident. See 1989 SAMDA Analysis at v, vi, 1, 2, 10, 14, 15;) NUREG-1530, Reassessment of NRC's Dollar Per Person-Rem Conversion Factor Policy, at Section 5 (Dec. 1995) (ADAMS Accession No. ML063470485)

(NUREG-1530). The Commission recognized that developments in technology lead to more precise methodologies, see, e.g., id, but nonetheless determined that another SAMA analysis need not be done at Limerick at license renewal. 61 Fed. Reg. at 28,481.

110 See Turkey Point, CLI-01-17, 54 NRC at 6 (petitioner seeking to require more than regulations require is in itself an impermissible challenge to the regulations).

111 Weaver Declaration at 3-10, ¶ 5-13; see also Waiver Petition at 20 (contending that ER is deficient because it ignores new severe accident mitigation alternatives previously considered for other BWR Mark II Containment reactors); NRDC Counsel Declaration at ¶ 1.

112 Weaver Declaration at 5-6.

113 Id. at 9 ¶ 13.

NRDC does not indicate how its claims meet the first Millstone factor.114 As explained above, in promulgating the rule, the Commission recognized that additional SAMAs could be identified by other plants.115 But the Commission indicated that future SAMA analyses would only likely identify cost-beneficial changes that generally would be procedural and programmatic fixes, with any hardware changes being only minor in nature and few in number.116 Therefore, the Commission explicitly determined that in light of the totality of severe accident studies performed and ongoing, if a consideration of SAMA was completed, another need not be completed at license renewal, despite the fact that future SAMA analyses may uncover additional, cost-beneficial SAMAs.

Moreover, the purpose of the rule was not to prescribe the scope of an acceptable consideration of severe accident mitigation alternatives, or mandate consideration of particular SAMAs. Instead, the Commission recognized that SAMA analyses could be conducted in a variety of ways, using a variety of methods. And neither the rule nor Commission precedent requires an applicant to use the most up-to-date methodology to perform SAMA analyses.117 While NRDC provides a list of cost-beneficial or potentially cost-beneficial SAMAs,118 it does not indicate how these SAMAs (1) are somehow different than the SAMAs the 114 NRDCs argument that the 1989 SAMDA analysis was not a SAMA analysis was rejected by the Board and the Commission. Limerick, LBP-12-08, 75 NRC at __. (slip op. at 33-34); Limerick, CLI 19, 76 NRC at __ (slip op. at 12-13). Moreover, NRDCs Waiver Petition claims that it does not encompass its previous claims about errors in the 1989 SAMDA Analysis, Waiver Petition at 3 at n. 3, but then questions its adequacy, id. at 21.

115 61 Fed. Reg. at 28,481.

116 Id.

117 See Pilgrim, CLI-10-11, 71 NRC at 315 (noting that while there will always be more data that could be gathered, agencies must have some discretion to draw the line and move forward with decision making.) (internal quotations omitted).

118 See Weaver Declaration at 5-8.

Commission explicitly recognized could be identified when it promulgated § 51.53(c)(3)(ii)(L),119 or (2) have not already been considered at Limerick.120 Because NRDC does not indicate how any of the SAMAs it lists undermine the Commissions rationale for promulgating § 51.53(c)(3)(ii)(L),121 the Waiver Petition does not meet the first Millstone factor and should be denied.

c. NRDCs Claims About Economic Risk Do Not Meet the First Millstone Factor NRDC also asserts that the rule should not apply in this case because the 1989 SAMDA Analysis did not do particular economic cost risk calculations and these calculations are now a codified component of SAMA cost-benefit assessments and have been preformed as an integral part of other license renewal applications submitted to the NRC.122 NRDC claims that [n]ew information pertaining to economic risk could plausibly cause materially different results in the assessment of impacts of an accident at Limerick, and materially different cost-benefit results in a new SAMA analysis for Limerick.123 119 The Commission expects that if these reviews identify any changes as being cost beneficial, such changes generally would be procedural and programmatic fixes, with any hardware changes being only minor in nature and few in number. 61 Fed. Reg. at 28,481.

120 The Weaver Declaration indicates that some of these SAMAs were SAMA candidates from the [IPE and IPEEE] processes. Weaver Declaration at 5 . Limerick completed its IPE and IPEEE in 1992 and 1995, respectively. Staff Answer at 9.

121 In fact, each of the Commissions assumptions underlying the rule have been confirmed: (1) subsequent analysis indicates the probability-weighted environmental impacts of a severe accident are small (See, e.g., NUREG-1437, Vol. 2, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Appendices, Draft Report for Comment, at E-43 to E-44 (July 2009) (ADAMS Accession No. ML091520164); (2) SAMA analyses performed since § 51.53(c)(3)(ii)(L) was enacted have not identified significant plant modifications that are cost-beneficial, (See Perspectives on Severe Accident Mitigation Alternatives for U.S. Plant License Renewal, at 10 (Sept. 30, 2009) (ADAMS Accession No. ML091770048) (noting that potentially-cost beneficial SAMAs tend to be low-cost improvements such as modifications to plant procedures or training, minimal hardware changes, and use of portable equipment.)); (3) Limerick completed the IPE and IPEEE process before submitting a license renewal ER, Staff Answer at 9; and (4) the NRC continues to study severe accidents, both in a generic and site-specific manner.

122 Weaver Declaration at 11 ¶ 17. See also Waiver Petition at 20-21 (claiming that Exelons reliance on data from TMI in its analysis of the significance of new information is an inadequate analysis).

123 Weaver Declaration at 11-12 ¶ 17.

NRDCs arguments once again ignore the plain language of the regulation and the Commissions stated intent in the 1996 SOC. There is no particular codified component of a SAMA analysis. As discussed above, the Commission specifically stated that the rule does not codify the scope of an acceptable SAMA analysis.124 Therefore, the rule does not provide particular requirements for a SAMA analysis, just that a consideration of SAMAs be included in the license renewal ER if such consideration has not previously been included in a NEPA document.125 Notably, in the 1989 SAMDA Analysis, the staff used [a] $1000 per person-rem value as a screen to compare values and impacts.126 At the time, the $1000 per person-rem value had been defined as a surrogate for all averted offsite losses, health as well as property.127 Although, the agency later determined not to use the $1000 per person-rem value as a surrogate for economic losses, the agency made that determination before it promulgated § 51.53(c)(3)(ii)(L).128 Thus, NRDCs challenges regarding economic damages do not undermine the proposed rationale for the regulation. Rather, when the Commission promulgated the regulation it recognized that different SAMA analyses, including the 1989 SAMDA Analysis, took differing approaches to considering off-site economic costs but declined to endorse one approach to the issue or revisit previous SAMA analyses.

For the reasons discussed above, NRDC has not made a prima facie case for waiver regarding the first Millstone factor because it has not provided any information that undermines 124 61 Fed Reg. at 28,481-82.

125 See § 51.53(c)(3)(ii)(L) (emphasis added). While many plants have followed the guidance in NEI-05-01, the guidance is not a requirement. See Intl Uranium (USA) Corp., CLI-00-1, 51 NRC 9, 19 (2000) (NRC guidance is not binding).

126 NUREG-1530 at 3. See also id. at 4; 1989 SAMDA at v, vi, 1, 2, 10, 14, 15.

127 NUREG-1530 at 3 (citing Memorandum, W J. Dircks to Commission, "Basis for Quantifying Off-Site Property Losses," October 23, 1985).

128 Id.

the rationale for the regulation. Instead, NRDC offers an interpretation of the rules purpose that contravenes the explicit language of § 51.53(c)(3)(ii)(L). In any event, NRDC has not provided any information that undermines the purpose of the rule because the Commission explicitly declined to require one code, set of SAMA candidates, or approach to considering off-site economic impacts in the 1996 SOC.

Moreover, NRDCs claims effectively render the exception in § 51.53(c)(3)(ii)(L) meaningless: under NRDCs reading, even if a consideration of SAMAs has been done, another SAMA analysis would have to be done at license renewal if there was more up-to-date technology, SAMA candidates, or economic data available at the time of license renewal.

When promulgating the rule, the Commission certainly recognized that Limericks SAMDA analysis would be over 20 years old by the time a license renewal application would be submitted, and that new methodologies, SAMAs, and data would become available during that time.129 Nonetheless, the Commission determined to promulgate the exception in § 51.53(c)(3)(ii)(L) and specify that it applies to Limerick.130 As a result, application of § 51.53(c)(3)(ii)(L) in this case serves exactly the purpose for which the rule was enacted, and waiving it based on NRDCs assertions would effectively eviscerate the rule. Therefore, NRDCs Waiver Petition does not meet the first Millstone factor and should be denied.

B. NRDC Has Not Met the Second Millstone Factor Because It Has Not Established That There Are Special Circumstances Regarding Limerick Which Were Not Considered in the Subsection L Rulemaking Proceeding Under the second Millstone factor, the petitioner must allege special circumstances that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding 129 Indeed, contemporaneous SAMA analyses used those methodologies, considered additional SAMA candidates, and took varying approaches to considering economic impacts. See infra at Discussion section III.B.

130 61 Fed Reg. at 28,481.

leading to the rule sought to be waived.131 To meet this standard, NRDC must properly [plead]

one or more facts that the Commission had not considered in the rulemaking which undercut the rationale for the rule.132 NRDC alleges that additional SAMA candidates revealed from studies of other facilities, new information regarding economic impacts, and computer modeling were not considered by the Commission when it decided that Limerick need not prepare another SAMA analysis for license renewal.133 However, to the contrary, the Commission explicitly addressed the possibility of new SAMA candidates in the 1996 SOC supporting the rulemaking, and was necessarily aware of both other methods for determining economic impacts and computer modeling, as they had been thoroughly discussed in other contemporaneous reviews.

NRDCs remaining arguments on the second Millstone factor rest on fundamental misinterpretations of the Commissions regulations.

1. The Commission Considered the Issues Raised by NRDC in the 1996 SOC As discussed below, NRDCs waiver petition does not make a prima facie showing that it meets the second Millstone factor because the Commission explicitly considered the issues raised in the petition, namely economic consequences, computer modeling, and additional SAMA candidates, when promulgating § 51.53(c)(3)(ii)(L).

a. Additional SAMA Candidates When it promulgated § 51.53(c)(3)(ii)(L), the Commissions recognized that other applicants may identify additional SAMA candidates through further analysis. The thrust of the 1996 SOC is that severe accident analysis is a changing field. For example, the Commission acknowledged that its CPI program, which identifies potential containment improvements, had 131 Millstone, CLI-05-24, 62 NRC at 560.

132 Seabrook, CLI-88-10, 28 NRC at 597.

133 Waiver Petition at 23, 24.

yet to be completed.134 Likewise, a number of licensee IPE and IPEEE submissions were still under review, and the ones already reviewed resulted in a number of plant procedural or programmatic improvements and some plant modifications that will further reduce the risk of severe accidents.135 The Commission further explained that future SAMA analyses performed at other sites may uncover additional cost-beneficial SAMAs, such as procedural and programmatic fixes.136 Nevertheless, the Commission concluded that Limerick need not undertake a new SAMA analysis at license renewal.137 Therefore, the Commission made this determination with the explicit understanding that the agency would continue to study severe accidents after the 1996 SOC, and that additional SAMA candidates may be identified at other plants.

Furthermore, by necessary implication, the Commission was aware that SAMA candidates identified at one reactor site could be relevant to the understanding of severe accident scenarios at other reactors. For example, the Watts Bar SAMDA analysis, acknowledged in the 1996 SOC, explains that it used the SAMDA analyses from Comanche Peak and Limerick to identify additional design improvements.138 Thus, while the Commission knew that Limerick, like Watts Bar, could potentially utilize other SAMA analyses in its evaluation of SAMAs at license renewal, the Commission still promulgated § 51.53(c)(3)(ii)(L).

b. Economic Impacts and Computer Modeling By necessary implication, the Commission also considered different methods for calculating economic impacts and the advent of computer modeling when it promulgated the 134 61 Fed. Reg. at 28,480.

135 Id. at 28,481.

136 Id.

137 Id.

138 NUREG-0498, Supplement No. 1, Final Environmental Statement related to the operation of Watts Bar Units 1 and 2, at 7-7 (Apr. 1995) (ADAMS Accession No. ML081430592).

exception in § 51.53(c)(3)(ii)(L) and determined that Limerick need not perform another SAMA analysis for license renewal. For example, in 1995, a year before subsection L was published, the NRC decided to undertake a separate consideration of offsite property consequences from health-related effects in future analyses.139 This new method dictated that economic risks from severe accidents would not be included in the dollar per person-rem calculations used to determine health impacts, but would instead be analyzed separately.140 The NRC also acknowledged that the MACCS code would be used for these calculations.141 Similarly, the 1996 SOC references NUREG-1150, Severe Accident Risks: An Assessment of Five U.S.

Nuclear Power Plants,142 which discussed computer modeling, and was used extensively in the Watts Bar SAMDA analysis.143 Additionally, the 1994 SAMDA analysis for the certification of the U.S. Advanced Boiling Water Reactor design used another computer model, the CRAC2 code, to analyze severe accident mitigation.144 Therefore, when it promulgated the rule, the Commission was aware that separate economic cost risk calculations and computer modeling would be and were already being implemented in SAMA analyses. Yet the Commission did not require Limerick to perform another SAMA analysis at license renewal using newer methods or models because it already determined that a consideration of SAMAs had been documented in a NEPA document and the purpose of the rule was not to prescribe by rule the scope of an acceptable consideration of 139 NUREG-1530 at 6.

140 Id. at 6-7.

141 Id. at 6.

142 (Dec. 1990) (ADAMS Accession No. ML040140729); see 61 Fed. Reg. at 28,480.

143 NUREG-0498, Supp. 1, at 7-2.

144 Technical Support Document for the ABWR, at 31 (Dec. 1994) (ADAMS Accession No. ML100210563).

severe accident mitigation alternatives for license renewal.145 In other words, the Commissions determination that Limericks 1989 SAMDA Analysis was sufficient for license renewal was not predicated on its use of a particular up-to-date methodology. Well aware that economic cost risk analyses and computer models were evolving, and that some of the already completed SAMDA analyses differed with respect to their use of computer modeling, the Commission nonetheless decided that Limerick need not complete another SAMA analysis upon license renewal.146 NRDC also alleges that Exelons use of economic data from Three Mile Island (TMI) presents special circumstances supporting a waiver in this case. Specifically, NRDC appears to assert that in the 1996 SOC, the Commission did not consider that Exelon might allegedly rely on inappropriate economic data from TMI to substitute for a site-specific analysis of off-site economic consequences.147 However, waiver cannot be proper merely when the Commission did not consider how a licensee might later address whether new and significant information exists in the first place. Exelons reliance on data from TMI is not new and significant information; rather, it is Exelons basis for a finding that there is no new and significant information with regard to off-site economic consequences. If these were sufficient grounds for 145 61 Fed. Reg. at 28,481. For example, although the Commission acknowledged that Level 3 PRAs had been used in prior SAMDA analyses, it did not necessarily require future applicants to perform them, noting instead that other quantitative approaches would be acceptable. Id.

146 In its technical declaration supporting the waiver petition, NRDC contends that the 1989 SAMDA Analysis relies on inaccurate demographic projections. Weaver Declaration at 10-11, ¶ 14-16.

However, this issue is not within the scope of the contentions as originally admitted by the Board for which NRDC seeks waiver to pursue. See Limerick, LBP-12-08, 75 NRC at __ (slip op. at 40) (finding Contention 1-E inadmissible in all other respects; Waiver Petition at 3 (NRDC seeks a waiver regarding the two bases of Contention 1E admitted by the ASLB) (emphasis added). Nevertheless, to the extent that NRDC alleges that the Commission did not consider that population growth around Limerick might exceed its projections; NRDC still has not made a case for waiver. NRDC admits that [b]y 1990, the Census population within the 10-mile zone already exceeded the year 2000 projection in the Limerick Final Environmental Statement by 40 percent. Weaver Declaration at 10, ¶ 15. Despite the fact that by 1996, the demographic projections were already noticeably inaccurate, the Commission nonetheless excepted Limerick from preparing another SAMA analysis for license renewal.

147 Waiver Petition at 23.

a waiver request, an intervenor could file for waiver of Category 1 issues codified in the GEIS every time an applicant addressed even the potential for new and significant information in a different way than the intervenor might have hoped. This would substantially undermine the Commissions policy of resolving issues generically in the GEIS.148 Instead, to meet the second Millstone factor in support of waiving 10 C.F.R. § 51.53(c)(3)(ii)(L), NRDC must provide information relating to economic impacts that the Commission did not foresee when it promulgated the regulation. But, as discussed above, the NRC utilized a variety of approaches to evaluating off-site economic costs in severe accident studies contemporaneous to the 1996 SOC.149 NRDC has not made any showing of how the economic data on which it relies provides a different picture of the economic consequences of severe accidents than that contemplated by the Commission.150

2. NRDCs Further Arguments Misunderstand the Intended Regulatory Scheme NRDC makes several other arguments in alleging that there are special circumstances in this case. However, none of these arguments meet the second Millstone factor. For example, NRDC contends that according to Exelon and the Staff, Exelon is forever precluded from being required to consider additional SAMAs during Limericks relicensing.151 NRDC argues that this is a special circumstance never contemplated by the Commission.152 However, NRDCs characterization of the Staffs position is not accurate. As the Staff has explained in prior filings, while Exelon is not required to consider whether new and significant information 148 See Vermont Yankee, CLI-07-03, 65 NRC at 21 (Adjudicating 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.).

149 NUREG-1530, at 6.

150 Waiver Petition at 23; Weaver Declaration at 11-15, ¶ 17-24.

151 Id. at 24-25.

152 Id.

changes the 1989 SAMA Analysis, Exelon is required under § 51.53(c)(3)(iv) to determine whether any new and significant information might impact the Commissions § 51.53(c)(3)(ii)(L) finding as supported by the 1996 SOC.153 Moreover, the SOC expressly acknowledges the ongoing study of severe accidents via the CPI, IPE, and IPEEE programs.154 In fact, the NRC Staff asked Exelon to perform an IPEEE analysis after completion of the 1989 SAMDA Analysis, it was submitted in 1996, the Staff finished its review of it in 2002, and Exelon continues to update its probabilistic risk assessment for Limerick.155 For all of these reasons, the Commission clearly contemplated the possibility that additional SAMA candidates would be considered, although the Commission thought it unlikely that any major ones would be cost-beneficial.156 NRDC further alleges that Exelon contradicts itself in maintaining that although the generic determination of § 51.53(c)(3)(ii)(L) applies, the obligation to consider new and significant information pursuant to § 51.53(c)(3)(iv) remains.157 NRDC asserts that the Commission could not have contemplated Exelons inconsistent position when it promulgated § 51.53(c)(3)(ii)(L).158 However, this claim is premised on the same misunderstanding noted above. In its application, Exelon correctly recognized that new and significant information must be and is considered, but only insofar as it affects the generic determination in § 51.53(c)(3)(ii)(L). Exelons position is not inconsistent with any NRC regulation, nor is that 153 Staffs Notice of Appeal at 13.

154 61 Fed. Reg. at 28,840-41.

155 Staff Answer at 9-10, 37.

156 61 Fed. Reg. at 28,481.

157 Waiver Petition at 25.

158 Id.

position something that the Commission should have contemplated when it promulgated § 51.53(c)(3)(ii)(L).159 Finally, NRDC asserts that the Commission could not have contemplated this situation, in which the applicant must analyze new and significant information but an intervenor has no right to challenge the adequacy of that analysis.160 Once again, NRDC misconstrues the Commissions regulations; NRDCs right to challenge Exelons analysis is via waiver petition.

As noted above, the Commission expressly recognized the waiver process as an adequate mechanism for pursuing a claim that new and significant information renders a codified environmental finding inadequate.161 C. NRDC Has Not Established That Its Claims Are Unique to Limerick Under the third Millstone factor, the petitioner must identify special circumstances that are unique to the facility rather than common to a large class of facilities. 162 This factor of the Millstone test embodies the Commissions determination that rule making proceedings [are]

the appropriate forum for settling basic policy issues.163 Consequently, generic challenges to regulations, which could apply to any facility, are outside the scope of NRC proceedings for reasons of fairness and efficiency.164 NRDC contends that it meets this Millstone factor because absent waiver, the Limerick plant will be the only BWR nuclear plant that will be relicensed without the operator or the NRC giving NEPA consideration to the most recent 159 Indeed, as the Commission late explained in Turkey Point, this was precisely its intent. Turkey Point, CLI-01-17, 54 NRC at 12 160 Id. at 26.

161 See supra at Discussion section II; Turkey Point, CLI-01-17, 54 NRC at 12 (In the hearing process, for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule.).

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

163 37 Fed. Reg. at 15,129, 15,136.

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

mitigation alternatives, assessment methodologies, and economic considerations.165 But this argument does not establish that NRDCs claims are unique to Limerick. While the Waiver Petition rests on Limerick-specific information, the challenge raised by the Petition could be leveled at any facility for which the NRC Staff had already studied SAMAs in a prior NEPA document. The 1996 SOC notes that Limerick, Watts Bar, and Comanche Peak need not conduct a SAMA analysis at license renewal, but the conclusion in § 51.53(c)(3)(ii)(L) could also apply to plants the Commission has licensed under Part 52 or plants seeking second license renewals under Part 54.166 In those circumstances, twenty years or more may pass between the SAMA analysis and the license renewal.167 Thus, updated economic data will likely be available for those facilities by the time of license renewal. Additionally, the NRC will have further studied severe accidents generically and at other facilities in the intervening time. 168 Therefore, the agency will have likely identified new SAMAs and updated its software for analyzing severe accident progressions. Contrary to NRDCs assumption, a very large class of facilities, including BWRs, could undergo a license renewal without conducting a new SAMA analysis that reflects the most recent economic data, SAMA candidates, and computer modeling. As a result, waiving the Commissions regulation to consider these claims would create an exception that would necessarily swallow the rule in § 51.53(c)(3)(ii)(L). The rulemaking process, as opposed to a site-specific licensing proceeding, is the appropriate venue for such a far-reaching challenge.

165 Waiver Petition at 24.

166 See Southern Nuclear Operating Co., CLI-12-02, 75 NRC __. __ (2012) (slip op. at 85)

(granting a combined operating license to construct and operate a new facility under 10 C.F.R. Part 52);

10 C.F.R. § 54.31(d) (permitting subsequent license renewals). As a result, this regulation, and NRDCs challenge to it, does not just govern a small class of facilities.

167 10 C.F.R. § 54.17(c) (prohibiting licensees from filing license renewal applications more than twenty years before expiration of their current license); 10 C.F.R. § 2.109(b) (licensee must file for license renewal at least five years before expiration of their current license to meet timely renewal requirements).

168 61 Fed. Reg. at 28,481 (noting the possibility that future SAMA analyses will uncover other, potentially cost-beneficial SAMAs).

Additionally, NRDC suggests that this issue was arguably resolved by the Third Circuits Limerick decision.169 NRDC reads the decision to hold that Limerick is unique because, inter alia, these issues vary tremendously across all plants. 170 But, the Third Circuit did not hold that Limerick was a unique facility; it only decided that the Commission had not provided an adequate basis in a challenged-policy statement for resolving severe accident mitigation generically.171 Consequently, the Third Circuits Decision in Limerick does not establish any unique feature of the Limerick facility as a matter of law.172 Rather, it only observes the truism that reactors will pose different severe-accident risks based on design and location.173 Under NRDCs reading of Limerick, any issue related to severe accidents at any reactor would be unique because reactors are located at different sites and have different design bases. Per force, Limerick does not discuss the relevant issues in this proceeding:

economic consequences, computer modeling, or SAMA candidates developed since 1989.174 As a result, it does not resolve, or purport to resolve, the issue before the Board - whether NRDCs petition meets the third Millstone factor.

169 Waiver Petition at 22.

170 Id. at 23 (citing Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 738 (1989 (emphasis added by NRDC)).

171 Limerick, 869 F.2d at 738-39. In light of differences across plants, the court doubted whether severe accident mitigation can be treated as a generic issue. Id. at 739. But, as discussed above, the Commission partially based its generic resolution of SAMAs in § 51.53(c)(3)(ii)(L) on site-specific studies, including the IPE, IPEEE and a previous SAMA analysis. See supra at Discussion section III.A.

172 Limerick, 869 F.2d at 738-39.

173 Id.

174 Limerick rejected a separate challenge to the Commissions determination not to consider socioeconomic impacts of a severe accident after one year, but did not consider this claim in the context of severe accident mitigation. Id. at 745-47.

D. NRDC Has Not Established the Significance of Its Claims

1. To Establish Significance, NRDC Must Show that Its Alleged New Information Would Lead to a Substantial Reduction in Severe Accident Risk Under the fourth Millstone factor, the petitioner must show that a waiver of the regulation is necessary to reach a significant safety problem. 175 In this case, NRDC has raised an environmental issue, not a safety problem.176 The Commission has not previously indicated what would constitute a significant environmental issue under Millstone.177 But, the Commission has frequently stated that a waiver petition is an appropriate way to bring claims of new and significant information under Marsh.178 Therefore, the Marsh standard provides a logical benchmark for significance in this instance.179 This interpretation comports with the Commissions approach to establishing the significance of an environmental issue under its standards for reopening a closed record.180 Under those standards, the Commission has equated the significance of an environmental issue with the Marsh standard for supplementing 175 Millstone, CLI-05-24, 62 NRC at 559-60.

176 Waiver Petition at 3-7.

177 Diablo Canyon, CLI-11-11, 74 NRC at __ (slip op. at 30 n. 122).

178 E.g. Limerick, CLI-12-19, 76 NRC at __ (slip op. at 13); Vermont Yankee, CLI-07-03, 65 NRC at 21; Turkey Point, CLI-01-17, 54 NRC at 12.

179 Moreover the significance parts of the Marsh test and the Millstone test serve similar functions. The Commission established the fourth factor of the Millstone test to protect the Commissions already crowded regulatory agenda from non-substantive problems. Millstone, CLI-05-24, 62 NRC at 559-60 and n.34 (citing Seabrook, CLI-88-10, 28 NRC at 599). The Commission concluded that spending time and resources on matters that are of no substantive regulatory significance would be inconsistent with its statutorily mandated responsibilities. Seabrook, CLI-88-10, 28 NRC at 597, 599. Likewise, in Marsh, the Court noted that an agency need not supplement an EIS every time new information comes to light after the EIS is finalized. Marsh, 490 U.S. at 373. Such a requirement would render agency decision making intractable, always awaiting updated information only to find the new information outdated by the time a decision is made. Id. Thus, both tests protect agency resources by ensuring that an agency will only revisit resolved issues to address significant information.

180 Among other things, to reopen a closed record, a petitioner must address a significant safety or environmental issue. 10 C.F.R. § 2.326(a)(2).

an EIS.181 Consequently, an environmental issue should meet the fourth part of the Millstone test if it is significant under Marsh.182 In Marsh the Court held that if an agency discovers new information indicating that a project will affect the quality of the human environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.183 For the purposes of NRC practice, the Commission has held that significant information reveal[s] a seriously different picture of the environmental impact of the proposed project.184 Thus, the Marsh test focuses on the effects or impacts of the project.185 But, as mitigation measures, SAMAs themselves do not lead to any appreciable environmental effects or impacts. Instead, mitigation measures reduce the environmental impact of the proposed action;186 in this case, SAMAs reduce the risk of a severe accident during the period of extended operation.187 Thus, with respect to SAMAs, new information would be significant if it indicated a given SAMA was 181 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-06-03, 63 NRC 19, 29 (2006).

182 As discussed above, this does not mean that NRDC must prove the merits of its underlying contention at this stage - rather NRDC must only establish a prima facie case of significance. See supra at Discussion section I.A; 10 C.F.R. § 2.335(c).

183 Marsh, 490 U.S. at 374 (quotations omitted).

184 Hydro Resources, Inc., CLI-01-04, 53 N.R.C. at 52.

185 A focus on environmental impacts is typical in most formulations of the test. See e.g., South Trenton Residents Against 29 v. Federal Highway Admin., 176 F.3d 658, 663 (3d Cir. 1999) ([T]he key to whether a Supplemental Environmental Impact Statement is necessary is not whether the area has undergone significant change, but whether the proposed roadwork will have a significant impact on the environment in a manner not previously evaluated and considered.); North Idaho Community Action Network v. Dept of Transp., 545 F.3d 1147, 1157 (9th Cir. 2008) (quotations omitted) (finding that an agency must supplement an EIS only if changes, new information, or circumstances may result in significant environmental impacts in a manner not previously evaluated and considered). Although not binding on the NRC, guidance from the Council on Environmental Quality defines significance in terms of effects and impact. 40 C.F.R. § 1508.27.

186 Methow Valley, 490 U.S. at 351.

187 10 C.F.R. § 51.53(c)(3)(ii)(L); Table B-1.

not just cost-beneficial188 but could also provide a serious reduction in the risk of severe accidents.189

2. NRDC Has Not Shown that Its Claims Related to Economic Impacts, Additional SAMA Candidates, and Computer Modeling Would Substantially Reduce Severe Accident Risk at Limerick NRDC asserts that it has identified significant information in three areas: economic impacts, additional SAMA candidates, and computer modeling. But, NRDC has not argued that any of this information will result in a serious reduction in the risk of severe accidents posed by the Limerick facility. Instead, NRDC contends that the information it presents on additional SAMA candidates, computer modeling, and economic consequences is new and significant because it could plausibly cause a materially different result in the SAMA analysis for Limerick.190 But, a materially different result in the SAMA analysis would merely establish that additional SAMAs could be cost-beneficial.191 A cost-beneficial SAMA only leads to a sufficient reduction in severe accident risk to outweigh the cost of implementation; it does not necessarily 188 To be meaningful under the NRCs NEPA analysis, the new information must also pertain to cost-beneficial SAMAs. See Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2, Catawba Nuclear Station, Units 1 and 2), CLI-02-17, 56 NRC 1, 7-8 (2002) (noting that in SAMA analyses it will always be possible to come up with some type of mitigation alternative that has not been addressed but whether a SAMA alternative is worthy of more detailed analysis . . . hinges upon whether it may be cost-beneficial).

189 At oral argument, Counsel for Exelon argued that information could only be new and significant with respect to § 51.53(c)(3)(ii)(L) if it first indicated that the impacts of severe accidents were other than small. Official Transcript of Limerick Generation Station Oral Arguments on February 21, 2012 in Norristown, PA, at 47 (Feb.21, 2012) (ADAMS Accession No. ML12060A235). The Staff disagrees with this view. Even though the NRC has concluded that the probability-weighted environmental impacts of severe accidents are small, information pertaining to a SAMA could still be significant, for example, if it indicated the SAMA may eliminate a substantial portion of the remaining severe accident risk at a facility.

190 Weaver Declaration at 2-3.

191 Pilgrim, CLI-10-11, 71 NRC at 291 (SAMA analysis is used for determining whether particular SAMAs would sufficiently reduce risk - e.g., by reducing the frequency of core damage or frequency of containment failure - for the SAMA to be cost-effective to implement.); see also McGuire/Catawba, CLI-02-17, 56 NRC at 5 (quotations omitted) (noting that the cost/risk equation [is] the SAMA bottom line.).

lead to a substantial reduction in risk of severe accidents.192 Therefore, on its face, the Waiver Petition fails to establish the significance of this issue for purposes of the Millstone test.

Moreover, it is extremely unlikely that the issues NRDC raises could lead to a substantial reduction in severe accident risk at the Limerick facility. Limericks calculated core damage frequency has decreased by nearly an order of magnitude since 1989.193 Exelon attributes this reduction in severe accident risk to more reliable data, improvements in procedural guidance and plant capability, fewer reactor trips, and implementation of the IPE, IPEEE and CPI programs.194 Because the risk of severe accidents is the product of the frequency and consequences of such events, the substantial reduction in core damage frequency indicates that the risk of a severe accident has already decreased significantly since 1989.195 As a result, to show the significance of economic data, advanced computer modeling, and other SAMA candidates, NRDC must show that they could significantly reduce the risk of a severe accident beyond the already substantial reduction achieved since 1989. But NRDC has not attempted to show that these factors could lead to a substantial reduction in risk of the earlier, much higher estimate, let alone shown a substantial reduction in the more recent and more accurate updated estimate.

192 The Commission foresaw that most cost-beneficial SAMAs would be relatively minor. 61 Fed.

Reg. at 28,481. The Staffs review of a number of completed SAMA analyses has confirmed that this is indeed the case. Perspectives on Severe Accident Mitigation Alternatives for U.S. Plant License Renewal, at 10 (noting that potentially-cost beneficial SAMAs tend to be low-cost improvements such as modifications to plant procedures or training, minimal hardware changes, and use of portable equipment.). Indeed, the Commission appeared to recognize this point in this proceeding, when it noted that information potentially invalidating the 1989 SAMDA Analysis may not be significant in and of itself.

Limerick, CLI-12-19, 76 NRC at __ (slip op. at 13 n. 54 (stating that new information that could render invalid the original site-specific analysis . . . should be identified and evaluated by the Staff for its significance).

193 ER at 5-5 to 5-6.

194 Id. at 5-6.

195 Entergy Nuclear Operation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449, 475 n. 147 (2010).

3. Contrary to NRDCs Assertions, Challenges to a SAMA Analysis are Not Necessarily Significant Simply Because They Relate to Severe Accident Mitigation Last, NRDC contends that because severe accidents are a significant issue from a public safety standpoint, claims related to the Limerick SAMA analysis must also be significant.196 But, NRDCs arguments confuse the safety significance of the general issue of severe accident mitigation and the significance of its environmental claim. The NRC Staff agrees that severe accidents are a significant safety issue. For that reason, the agency has devoted considerable resources to studying them for over thirty years and continues to do so today.197 But this does not mean that all claims related to SAMAs meet the fourth Millstone factor.

As the NRC Staff has explained in testimony before another licensing board, a SAMA analysis is a search for potentially cost-beneficial measures beyond those identified in the Staffs safety analysis and the IPE and IPEEE studies.198 Any remaining potentially cost-beneficial enhancements uncovered in the SAMA analysis performed for license renewal could only expect to further reduce the risk from a plant that had no identified safety vulnerabilities.199 Therefore, although severe accidents are an important issue from a safety standpoint, the results of a SAMA analysis are not necessarily significant to public safety because they only work to further reduce the risk of a plant for which the Staff has studied the issue many times.

Thus, in the reopening context, the Commission has recognized that, claims related to severe 196 Waiver Petition at 26-27 (arguing that NRDCs contention are significant because by definition, NRDCs Contentions concern how to best mitigate for severe accidents.).

197 E.g., Limerick, 869 F.2d at 725-26; SRM-SECY-11-0089.

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

199 Id. at 5.

accident mitigation are not necessarily significant themselves under the Marsh standard.200 Consequently, NRDCs argument that its claims on economic data, computer modeling, and other SAMA candidates are significant simply because they relate to severe accident mitigation fails to establish a significant issue on its face. As a result, the Board should deny the Waiver Petition and decline to further consider this issue.201 CONCLUSION For the foregoing reasons, the Board should deny NRDCs Waiver Petition.

/Signed (electronically) by/

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

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

Joseph A. Lindell Counsel for NRC Staff 200 Entergy Nuclear Operation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC __, __ (slip op. at 28-30).

201 10 C.F.R. § 2.335(c).

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

)

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

)

(Limerick Generating Station, Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC Staff Answer to Natural Resources Defense Council Petition for Waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L) in the above captioned proceeding have been served over the Electronic Information Exchange, the NRCs E-Filing System, this 14th day of December, 2012:

/Signed (electronically) by/

Maxell C. Smith Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1246 E-mail: maxwell.smith@nrc.gov Date of signature: December 14, 2012