ML13072A804

NRC Staff'S Brief on the Board'S Referred Ruling in LBP-13-1

ML13072A804
Person / Time
Site:	Limerick
Issue date:	03/13/2013
From:	Matthew Smith NRC/OGC
To:	NRC/OCM
SECY RAS
References
RAS 24225, 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01
Download: ML13072A804 (37)

Text

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

)

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

)

(Limerick Generating Station, Units 1 and 2) )

)

NRC STAFFS BRIEF ON THE BOARDS REFERRED RULING IN LBP-13-1 Maxwell C. Smith Catherine E. Kanatas Counsel for NRC Staff March 13, 2013

TABLE OF CONTENTS PAGE INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 LEGAL STANDARDS ................................................................................................................... 5 I. Interlocutory Review .......................................................................................................... 5 II. Petitions for Waiver Under 10 C.F.R. § 2.335 ................................................................... 6 III. The NRCs Environmental Review in License Renewal Proceedings ............................... 8 DISCUSSION .............................................................................................................................. 10 I. The Commission Should Review the Boards Referral of LBP-13-1 Under § 2.323(f) .... 10 II. The Board Erroneously Concluded that Sub-Section (L) Cannot Be Waived ................. 11 A. The Board Provided an Unreasonably Narrow Reading of the Purpose of Sub-Section (L) ................................................................................................................. 11 B. The Boards Order Incorrectly Suggested That No New Information Could Ever Challenge Sub-Section (L) ....................................................................................... 13 C. The Boards Interpretation of Sub-Section (L) Would Render the Provision Inconsistent with NEPA ............................................................................................. 18 III. The Boards Analysis of Millstone Contravenes Commission Precedent ....................... 19 IV. NRDCs Waiver Petition Does Not Meet Any of the Millstone Factors and the Commission Should Affirm the Boards Denial of the Petition ....................................... 21 A. Factor 1 Not Met: Applying Sub-Section (L) in the Limerick License Renewal Proceeding Would Serve the Purpose for Which the Rule Was Adopted ................. 21 B. Factor 2 Not Met: NRDC Has Not Demonstrated Special Circumstances .............. 24 C. Factor 3 Not Met: NRDCs Claims Are Not Unique to Limerick ................................. 26 D. Factor 4 Not Met: NRDC Has Not Established the Significance of Its Claims .......... 26 V. CONCLUSION ................................................................................................................ 30

ii TABLE OF AUTHORITIES Page U.S. SUPREME COURT DECISIONS Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) ....................................passim Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ...................................... 8, 27 U.S. FEDERAL COURT OF APPEALS DECISIONS Calvert Cliffs Coordinating Comm., Inc. v. AEC, 449 F.2d 1109 (D.C. Cir. 1971)...................... 18 Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (1989) ....................................................... 19 North Idaho Community Action Network v. Dept of Transp., 545 F.3d 1147 (9th Cir. 2008) ............................................................................................................................. 27 South Trenton Residents Against 29 v. Federal Highway Admin., 176 F.3d 658 (3d Cir. 1999) .............................................................................................................................. 27 ADMINISTRATIVE DECISIONS Commission Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551 (2005) ..............................................................................................................passim Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2, Catawba Nuclear Station, Units 1 and 2), CLI-02-17, 56 NRC 1 (2002) ........................................................................................... 27 Entergy Nuclear Operation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-06, 75 NRC __ (Mar. 8, 2012) (slip op.) ....................................................... 7, 20 Entergy Nuclear Operation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC __ (June 7, 2012) (slip op.) ........................................................... 29 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC __ (Oct. 23, 2012) (slip op.) ...................................................................................passim Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3 (2001) ........................................................................................................................... 7 Hydro Resources, Inc., CLI-01-04, 53 NRC 31 (2001) ............................................................... 10 Hydro Resources, Inc., CLI-99-22, 50 NRC 3 (2001) ................................................................. 10

iii Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427 (2011) ..............................................................................................................passim Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Facility), CLI-00-13, 52 NRC 23 (2000) ................................................................................................................... 6, 21 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-01, 61 NRC 129 (2005) ................................................................................................................. 6, 19 Public Service Company of New Hampshire (Seabrook Station Units 1 and 2), CLI- 88-10, 18 NRC 573 (1988) ............................................................................................................... 13, 21 Atomic Safety and Licensing Board Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), LBP-12-08, 75 NRC __ (Apr. 4, 2012) (slip op.) .............................................................................................. 4 Exelon Generation Co., LLC (Limerick Generating Station Units 1 and 2), LBP-13-1, 77 NRC __ (Feb. 6, 2013) (slip op.) .....................................................................................passim Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-10-15, 72 NRC 257(2010) ........................................................................................................................... 12 STATUTES 42 U.S.C. § 4331 .......................................................................................................................... 8 42 U.S.C. § 4332(c) ...................................................................................................................... 8 REGULATIONS 10 C.F.R. § 2.309(f)(2) .................................................................................................................. 9 10 C.F.R. § 2.323(f)(1) .................................................................................................................. 5 10 C.F.R. § 2.326(a)(2) ............................................................................................................... 27 10 C.F.R. § 2.335.................................................................................................................passim 10 C.F.R. § 50.109...................................................................................................................... 16 10 C.F.R. § 51.14(b) ................................................................................................................... 27 10 C.F.R. § 51.53(c)(3)(ii)(L) ................................................................................................passim 10 C.F.R. § 51.53(c)(3)(iv) ............................................................................................................ 3 10 C.F.R. Part 51, Subpt. A, Appx. B, Table B-1 .................................................................passim

iv 40 C.F.R. § 1508.27.................................................................................................................... 27 MISCELLANEOUS 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 (June 6, 2011) (ADAMS Accession No. ML111570502) ....................................................................... 29 Applicants Environmental Report - Operating License Renewal Stage, Limerick Generating Station, Units 1 and 2 (June 22, 2011) (ADAMS Accession No. ML11179A104). .................... 2, 3 Applicants Environmental Report - Operating License Renewal Stage, Sequoyah Nuclear Plant, (Jan. 7, 2013) (ADAMS Accession No. ML13024A010) ............................................................. 16 Application for Renewed Operating Licenses (June 22, 2011)

(ADAMS Accession No. ML11179A096) ...................................................................................... 2 Environmental Review for Renewal of Nuclear Power Plant Operating License, 61 Fed. Reg.

28,467, (June 5, 1996). ........................................................................................................passim Final Environmental Statement Related to Operation of Limerick Generating Station, Units 1 and 2, NUREG-0974 Supplement (Aug. 1989) (ADAMS Accession No. ML11221A204) ..........passim License Renewal Application, Limerick Generating Station, Units 1 and 2 (June 22, 2011)

(ADAMS Accession No. ML11179A101) ...................................................................................... 2 NUREG-0933, Supp. 34, Resolution of Generic Safety Issues (Sep. 2011) (ADAMS Accession No. ML11353A382) ..................................................................................................................... 16 NUREG-1150, Vol. 1, Severe Accident Risks: An Assessment for Five U.S. Nuclear Power Plants (Sep. 1990) (ADAMS Accession No. ML040140729) ...................................................... 16 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report (May 1996) .........................................................................................passim 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) .................................................................................................... 15 NUREG-1437, Supplement 40, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Kewaunee Power Station, Final Report (Aug. 2010)

(ADAMS Accession No. ML102280229) ..................................................................................... 16 NUREG-1530, Reassessment of NRC's Dollar Per Person-Rem Conversion Factor Policy, (Dec. 1995) (ADAMS Accession No. ML063470485) ........................................................... 23, 25 Perspectives on Severe Accident Mitigation Alternatives for U.S. Plant License Renewal, (Sept. 30, 2009) (ADAMS Accession No. ML092750488) ............................................... 15-16, 28

v Restructuring of Facility License Application Review and Hearing Process, 37 Fed. Reg. 15,129 (July 28, 2012) ............................................................................................................................ 20 SRM-SECY-11-0089, Staff Requirements SECY-11-0089 Options for Proceeding with Future Level 3 Probabilistic Risk Assessment (PRA) Activities (Sept. 21, 2011) (ADAMS Accession No. ML112640419) .................................................................................................... 29 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998)............................................................................................................................................ 6

March 13, 2013 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

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

)

(Limerick Generating Station, Units 1 and 2) )

)

NRC STAFFS BRIEF ON THE BOARDS REFERRED RULING IN LBP-13-1 INTRODUCTION Pursuant to the Commissions February 26, 2013 Order,1 the NRC Staff files its initial brief on the Atomic Safety and Licensing Boards (Board) referred ruling in LBP-13-1.2 That ruling denied the 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).3 Under § 51.53(c)(3)(ii)(L) (sub-section (L)) of the Commissions regulations, license renewal applicants need not provide a consideration of severe accident mitigation alternatives (SAMAs) if the NRC has already considered SAMAs for the facility in question. NRDC sought to waive sub-section (L) in order to bring several challenges to the applicants treatment of SAMAs in this proceeding. In light of its understanding of the purpose of sub-section (L), the Board concluded that waiving that 1

Order at 1 (Feb. 26. 2013) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML13057A822) (Briefing Order).

2 Exelon Generation Co., LLC (Limerick Generating Station Units 1 and 2), LBP-13-1, 77 NRC __,

__ (Feb. 6, 2013) (slip op. at 13).

3 Natural Resources Defense Councils 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) (ADAMS Accession No. ML12326A976) (Waiver Petition).

regulation was a seemingly impossible task.4 Thus, the Board referred its ruling to the Commission to clarify the interplay between sub-section (L) and the NRCs waiver standards.5 This proceeding represents the first opportunity for a license renewal applicant to invoke sub-section (L) of the NRCs regulations and not provide a SAMA analysis for license renewal.

Because the issue presented is novel, the Commission should review LBP-13-1. As discussed below, the Commission should reverse the portions of LBP-13-1 that conclude that waiving sub-section (L) is impossible because those portions of the Boards order do not comport with and misinterpret the Commission precedent on waiver. However, the Commission should uphold the Boards decision to deny the Waiver Petition because NRDC has not provided sufficient information to meet any of the Commissions waiver standards.

BACKGROUND On June 22, 2011, Exelon Generation Company, LLC (Exelon) submitted a license renewal application for Limerick Generating Station, Units 1 and 2 (Limerick).6 As part of its application, Exelon provided an environmental report (ER).7 In that report, Exelon relied on sub-section (L) to omit a discussion of SAMAs, which are typically analyzed in license renewal ERs.8 Sub-section (L) reads, If the staff has not previously considered severe accident mitigation alternatives for the applicants plant in an environmental impact statement or related supplement or in an environmental assessment, a consideration of alternatives to mitigate severe accidents must be provided.9 The NRC Staff previously considered severe accident mitigation design 4

Limerick, LBP-13-1, 77 NRC at __ (slip op. at 13).

5 Id.

6 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).

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

8 Id. at 4-49.

9 10 C.F.R. § 51.53(c)(3)(ii)(L).

alternatives (SAMDAs) for Limerick in an environmental statement at the operating license stage (1989 SAMDA Analysis).10 In fact, when it promulgated sub-section (L) in its regulations, the Commission explicitly stated that for Limerick SAMAs need not be reconsidered during license renewal.11 Therefore, Exelon chose to rely on sub-section (L) of the regulations instead of conducting a new SAMA analysis. The ER also considered whether new and significant information affected any previously-resolved environmental issues, including SAMAs under sub-section (L).12 On November 22, 2011, NRDC filed a Petition to Intervene in this proceeding.13 The Petition to Intervene raised three contentions on the ERs treatment of SAMAs.14 The first contention objected to Exelons consideration of new and significant information regarding sub-section (L), the second contention claimed that aspects of the original 1989 SAMDA Analysis for Limerick were inadequate, and the third contention questioned whether the 1989 SAMDA Analysis was in fact a SAMA analysis within the meaning of sub-section (L).15 The Staff and Exelon opposed all three contentions because they impermissibly challenged an NRC regulation, sub-section(L), without first seeking a waiver of that regulation as required by 10 10 ER at 4-49; Final Environmental Statement Related to the Operation of Limerick Generating Station, Units 1 and 2, NUREG-0974 Supplement (Aug. 1989) (ADAMS Accession No. ML11221A204)

(1989 SAMDA Analysis). For purposes of this brief, the terms SAMA and SAMDA are interchangeable because the Commission has determined that the 1989 SAMDA Analysis at Limerick also constituted a SAMA analysis. Environmental Review for Renewal of Nuclear Power Plant Operating License, 61 Fed.

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

11 61 Fed. Reg. at 28,481.

12 ER at § 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.).

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

14 Id. at 2-3.

15 Id. at 16, 19, 21.

C.F.R. § 2.335.16 In LBP-12-08, the Board agreed that NRDCs third contention constituted an impermissible challenge to sub-section (L) of the regulations and dismissed the second contention as immaterial.17 However, the Board found no need for a waiver for NRDCs first contention and admitted the portions of that contention challenging Exelons use of economic data and consideration of SAMA candidates identified as potentially cost-beneficial at other sites.18 The Staff and Exelon appealed the Boards ruling.19 On appeal, the Commission found that the first contention impermissibly challenged its regulations and therefore the Board erred in admitting portions of it without an accompanying waiver petition.20 The Commission remanded the case to the Board to allow NRDC to file a waiver petition pursuant to § 2.335(b) 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.21 The Commission noted that its Millstone decision provided the applicable waiver standard.22 In response, NRDC sought a waiver of sub-section (L) for (1) the two portions of the first contention initially admitted by the Board, regarding economic data and SAMA candidates 16 NRC Staffs Answer to Natural Resource Defense Council Petition to Intervene and Notice of Intention to Participate (Dec. 21, 2011) (ADAMS Accession No. ML11355A174) (Staff Answer); Exelons Answer Opposing NRDC's Petition to Intervene (Dec. 20, 2011) (ADAMS Accession No. ML11354A451).

17 Exelon Generation Co., 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.

18 Id. at 27.

19 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).

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

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

21 Id. at 15.

22 Id. at 14 n. 55 (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 559-60 (2005)).

considered at other facilities,23 and (2) a portion of its third contention, concerning computer modeling.24 In LBP-13-1, the Board found that NRDC did not meet the Commissions waiver standards but through no fault of their representatives.25 Rather, in light of the Boards understanding of sub-section (L), the Board concluded that waiving that regulation amounted to a seemingly impossible task.26 As a result, the Board referred its order in LBP-13-1 to the Commission under 10 C.F.R. § 2.323(f)(1) to shed light on the interplay of sub-section (L) and the waiver standards.27 The Board also asserted that the Commissions waiver standards, as described in Millstone, went beyond the terms of section 2.335(b) and that only the first two Millstone factors were supported by the text of that section.28 Exelon filed an unopposed motion asking the Commission to accept briefs from the parties on the Boards referred ruling in LBP-13-1,29 which the Commission granted on February 26, 2013.30 LEGAL STANDARDS I. Interlocutory Review Under 10 C.F.R. § 2.323(f), licensing boards may refer rulings to the Commission that involve a novel issue that merits Commission review at the earliest opportunity. While interlocutory appeals are generally discouraged, the Commission has recognized that sometimes interlocutory review is appropriate as an exercise of [its] inherent and ongoing 23 Waiver Petition at 11 n.5.

24 Id.

25 Limerick, LBP-13-1, 77 NRC at __ (slip op. at 13).

26 Id.

27 Id. (citing 10 C.F.R. § 2.323(f)(1)).

28 Id. at 7.

29 Unopposed Motion Requesting Briefing (Feb. 19, 2013) (ADAMS Accession No. ML13050A357).

30 Briefing Order at 1.

supervisory authority over adjudicatory proceedings.31 Thus, the Commission encourages licensing boards to refer to the Commission rulings that present novel questions that could benefit from early resolution.32 On review, the Commission may affirm a Board decision on any ground finding support in the record, whether previously relied on or not.33 II. 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

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.34 In the Millstone license renewal proceeding, the Commission emphasized that a waiver of one or more of the license renewal rules may be granted only upon a showing that the following four requirements have been satisfied:

(i) the rules strict application would not serve the purposes for which [it] was adopted; 31 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Facility), CLI-00-13, 52 NRC 23, 29 (2000).

32 Id. (citing Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 23 (1998)).

33 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-01, 61 NRC 129, 166 (2005).

34 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 included two affidavits in support of its Waiver Petition. 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. ML12326A974) (Weaver Declaration).

(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. 35 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.36 Thus, unless these requirements are satisfied, any issues the Commission resolved generically through rulemaking cannot be challenged in individual license renewal proceedings.37 Under § 2.335(c), if the Board determines that the petitioning party has not made a prima facie showing for waiver as required by section 2.335(b), then no evidence may be received on that matter and no discovery, cross-examination or argument directed to the matter will be permitted, and the presiding officer may not further consider the matter.38 Given the Commissions interpretation of § 2.335(b), a Board must dismiss any waiver petition that does not establish a prima facie case for waiver on each of the four Millstone factors.39 If the Board determines that the petitioning party has made the prima facie showing for waiver required by 35 Millstone, CLI-05-24, 62 NRC at 559-60 (internal quotations omitted). 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. See infra Discussion,Section III.

36 Id. (emphasis in original). See also Entergy Nuclear Operation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-06, 75 NRC __, __ (Mar. 8, 2012) (slip op. at 14-

15) (applying the four factor Millstone test in considering a petition to waive a Part 51 regulation under § 2.335(b)).

37 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 10, 12 (2001).

38 10 C.F.R. § 2.335(c).

39 Millstone, CLI-05-24, 62 NRC 551, 559-60; Pilgrim, CLI-12-06, 75 NRC at __ (slip op. at 14-15).

section 2.335(b), the Board must certify the petition directly to the Commission for a determination of whether to grant waiver.40 III. The NRCs Environmental Review in License Renewal Proceedings The NRC considers SAMAs in license renewal proceedings as part of its environmental review under the National Environmental Policy Act of 1969 (NEPA).41 Before undertaking a major action, NEPA requires Federal agencies to prepare a detailed environmental impact statement (EIS) on the proposed action.42 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,43 such as SAMAs. But, the Court has cautioned that it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.44 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.45 Consequently, the NRC prepared a generic EIS (GEIS) that assessed those issues, called Category 1 issues, generically.46 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; these issues are designated as Category 2 issues.47 The NRC must address Category 2 issues in the site-40 10 C.F.R. § 2.335(d).

41 10 C.F.R. § 51.53(c)(3)(ii)(L); 42 U.S.C. § 4331.

42 42 U.S.C. § 4332(c).

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

44 Id. at 350.

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

46 NUREG-1437, Vol. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report (May 1996) (ADAMS Accession No. ML040690705) (GEIS).

47 Table B-1; GEIS.

specific supplemental EIS (SEIS) it prepares for each license renewal application.48 In license renewal proceedings, the NRC relies on the applicants ER to inform its SEIS. Before publication of the SEIS, environmental contentions must challenge the ER.49 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.50 Regarding SAMAs, Table B-1 states that alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives.51 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.52 But, the Commission has clarified that the severe-accidents-impact finding and the exception to the SAMA requirement in Table B-1 constitute environmental issues generically resolved by rule.53 Last, the Supreme Court held in Marsh v. Oregon Natural Resources Council that when an agency determines that 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 supplemental EIS must be prepared.54 Thus, the Commission has found that the NRC must supplement an EIS when new circumstances reveal a seriously different picture of the 48 10 C.F.R. § 51.95(c).

49 10 C.F.R. § 2.309(f)(2).

50 Table B-1; see GEIS at 5-114 to 5-115.

51 Table B-1 (emphasis added); GEIS at 5-113 to 5-114. Sub-section (L) exempts license renewal applicants from performing a second SAMA analysis in an ER and Table B-1 exempts the Staff from performing a second SAMA analysis in a site-specific EIS. Because NRDCs Petition to Intervene challenged Exelons ER, the focus of this proceeding has been on sub-section (L). However, the Staffs arguments regarding the SAMA exception in sub-section (L) also apply to Table B-1.

52 Table B-1.

53 Limerick, CLI-12-19, 76 NRC at __ (slip op. at 12-13); see also id. at 5 n. 20.

54 490 U.S. 360, 374 (1989) (quotations omitted).

environmental impact of the proposed project.55 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 the Limerick SEIS only if it discovers new information that reveals a seriously different picture of those issues.56 DISCUSSION While the Board correctly held in LBP-13-1 that NRDCs Waiver Petition did not provide a sufficient basis for waiving sub-section (L), its conclusion that waiving that regulation is impossible and its description of Millstone contravene Commission precedent. Therefore, the Commission should (1) take review of the Boards referral of LBP-13-1, (2) overrule the portions of LBP-13-1 that are contrary to prior Commission holdings, and (3) affirm the Boards denial of NRDCs Waiver Petition.

I. The Commission Should Review the Boards Referral of LBP-13-1 Under § 2.323(f)

The Board referred its ruling to the Commission under 10 C.F.R. § 2.323(f)(1) because it found that NRDCs Waiver Petition presented a novel issue regarding the interplay of 10 C.F.R.

§ 51.53(c)(3)(ii)(L) and 10 C.F.R. 2.335(b).57 The Board asserted that NRDCs Waiver Petition presented a catch 22 situation because the Board found that waiver of sub-section (L) was seemingly impossible.58 Therefore, the Board referred its decision to the Commission for resolution.

While the Staff respectfully disagrees with the Boards assertion that waiver of subsection (L) is seemingly impossible, the Staff agrees that the Commission should take 55 Hydro Resources, Inc., CLI-01-04, 53 NRC 31, 52 (2001) (citing Hydro Resources, Inc., CLI-99-22, 50 NRC 3, 14 (1999)).

56 Id. Table B-1; GEIS at 5-114. See also 61 Fed. Reg. at 28,480-81 (explaining the findings regarding SAMAs in Table B-1).

57 Limerick, LBP-13-1, 77 NRC at __ (slip op. at 13). The Board did not certify the Waiver Petition to the Commission under section 2.335(d) because it held that NRDCs Waiver Petition did not meet section 2.335(b). Id. at 7.

58 Id. at 13.

review of LBP-13-1 under § 2.323(f) as the order raises issues that are novel and worthy of the Commissions immediate attention.59 Exelon is the first license renewal applicant to invoke sub-section (L) in omitting a SAMA analysis in its environmental report. As a result, this proceeding raises novel issues. Moreover, the Boards interpretation of the purpose of sub-section (L) contravenes Commission precedent and NEPA. The Commission could avoid delay in this, and perhaps other license renewal proceedings, by providing needed guidance on the purpose of sub-section (L) and the proper waiver standard. As a result, the Commission should take review of LBP-13-1 at this time and not delay providing such guidance until the end of the case. The Commissions consideration of the matter will contribute to a proper adjudicatory decision in this proceeding and allow this proceeding to continue with minimal disruption to all participants.60 II. The Board Erroneously Concluded that Sub-section (L) Cannot Be Waived A. The Board Provided an Unreasonably Narrow Reading of the Purpose of Sub-Section (L)

In LBP-13-1, the Board noted that to waive a regulation under 10 C.F.R. § 2.335, a petitioner must show that applying the regulation to a given proceeding would not serve the purposes for which [it] was adopted. 61 The Board found that the purpose of sub-section (L) is to exempt those plants that have already performed SAMA analyses from considering severe accident mitigation alternatives at license renewal.62 Thus, the Board concluded that because the purpose of sub-section (L) will always be met if no further analysis is required or submitted by the applicant[,] it is unclear how any petitioner could ever demonstrate that the purpose of 59 Id. at 1.

60 Union Electric Co. d/b/a Ameren Missouri, (Callaway Plant, Unit 2) CLI-11-05, 74 NRC __, __

(2011) (slip op. at 35).

61 Limerick, LBP-13-01, 77 NRC at __ (slip op. at 10) (quoting 10 C.F.R. § 2.335(b) (alteration in original)).

62 Id.

sub-section (L) is frustrated by the application of sub-section (L).63 In reaching this conclusion, the Board relied on an unreasonably restricted view of the purpose of sub-section (L); a view that contravenes Commission precedent regarding the purpose of regulations which reach generic environmental findings for Category 1 issues.64 As the Commission explained in the Diablo Canyon license renewal proceeding, that purpose 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

[license renewal applicant] and NRC to dispense with site-specific evaluations of such environmental impacts in situations covered by the generic analysis.65 In CLI-12-19, the Commission affirmed that the exception in section 51.53(c)(3)(ii)(L) operates as the functional equivalent of a Category 1 issue.66 Based on this functional equivalency, the Commissions description of the purpose of Category 1 issues should also apply to sub-section (L). After all, both sub-section (L) and Category 1 issues excuse applicants and the Staff from considering environmental impacts in individual licensing proceedings based on a generic analysis in the GEIS.67 Therefore, the purpose of sub-section (L) is not just to excuse license renewal applicants from performing multiple SAMA analyses but to do so in situations covered by the generic analysis supporting sub-section (L).68 Previous Commission statements also support this understanding. In discussing § 63 Id.

64 Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427, 449 (2011).

65 Id (quoting with approval Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-10-15, 72 NRC 257, 303 (2010) (second alteration in original, emphasis added)) (citing 61 Fed. Reg. 28,467 and GEIS at 1-1).

66 Limerick, CLI-11-11, 77 NRC at __ (slip op. at 13).

67 Table B-1; GEIS.

68 Diablo Canyon, CLI-11-11, 74 NRC at 449. The Board in Diablo Canyon considered and rejected an argument, similar to the conclusion in LBP-13-1, that the sole purpose of the Part 51 rules is simply to expedite the NEPA process and to apply the generic determinations without exception. Diablo Canyon, LBP-10-15, 72 NRC at 303.

2.335s predecessor, the Commission stated that special circumstances showing that a rule would not serve the purpose for which it was adopted must be such as to undercut the rationale for the rule sought to be waived.69 Thus, the critical inquiry under § 2.335 is not whether waiving a rule would lead to a consideration of an issue the rule resolved generically, but whether the issue should be considered because the rationale supporting the rule does not apply to the proceeding. Therefore, the Board erred by not considering whether new information could ever undermine the rationale supporting sub-section (L).

B. The Boards Order Incorrectly Suggested That No New Information Could Ever Challenge Sub-Section (L)

The Board also implied that no new information could ever impinge on the basis for sub-section (L) because in promulgating that regulation, the Commission understood that technology would change, and that new SAMA candidates could emerge over time.70 The analyses supporting sub-section (L) in the GEIS and Commissions Statements of Consideration (SOC) accompanying the rule acknowledge that SAMAs are an evolving field. However, the analyses supporting sub-section (L) also rest on other considerations that could be undermined by changing circumstances.71 Therefore, contrary to the Boards suggestion, a petitioner could successfully waive sub-section (L) by challenging those other considerations in a given proceeding.

In the GEIS and the accompanying SOC, the NRC explained the purpose behind the finding in sub-section (L) that a subsequent SAMA analysis is unnecessary for license renewal if the Staff has previously considered the issue.72 In the GEIS, the NRC noted that the agency already considered severe accident mitigation for all facilities under several ongoing programs, 69 Public Service Co. of New Hampshire (Seabrook Station Units 1 and 2), CLI- 88-10, 28 NRC 573, 597 (1988).

70 Limerick, LBP-13-1, 77 NRC at __ (slip op. at 12) (citing 61 Fed. Reg. at 28,481).

71 GEIS at 5-106 to 5-114; 61 Fed. Reg. at 28,481.

72 GEIS at 5-106 to 5-114; see also 61 Fed. Reg. at 28,481 (explaining sub-section (L)).

including the individual plant examination (IPE) and individual plant examination for external events (IPEEE) programs, the containment performance improvement (CPI) program, and the accident management (AM) program.73 The GEIS also recognized that the NRC had already completed three SAMDA reviews for Limerick, Watts Bar, and Comanche Peak.74 The GEIS noted that these reviews had only found that plant procedural or programmatic improvements and minor plant modifications warranted further consideration.75 Based on these reviews and programs, the NRC expect[ed] that a site-specific consideration of severe accident mitigation for license renewal will only identify procedural and programmatic improvements (and perhaps minor hardware changes) as being cost-beneficial in reducing severe accident risk or consequence.76 Likewise, the Commission believed it unlikely that any site-specific consideration of severe accident mitigation alternatives for license renewal will identify major plant design changes or modifications that will prove to be cost-beneficial for reducing severe accident frequency or consequences.77 The GEIS concluded, Therefore, a site-specific consideration of alternatives to mitigate severe accidents shall be performed for license renewal unless such a consideration has already been included in a previous EIS or related supplement.78 This conclusion finds support in the GEISs related conclusion that the probability-weighted environmental impacts of severe accidents would be small during the term of the 73 GEIS at 5-107; see also 61 Fed. Reg. at 28,481 (discussing the CPI, IPE, and IPEEE programs).

74 GEIS at 5-110 to 5-113; see also 61 Fed. Reg. at 28,481 (noting that the NRC already considered SAMDAs for Limerick Units 1 and 2, Comanche Peak Units 1 and 2, and Watts Bar Unit 1).

75 GEIS at 5-107, 5-110; see also 61 Fed. Reg. at 28, 481 (noting that the IPE, IPEEE, and CPI programs and previous SAMDA analyses had only found programmatic, procedural, and minor plant improvements warranted further consideration).

76 GEIS at 5-113 to 5-114.

77 61 Fed. Reg. at 28,481.

78 GEIS at 5-114 (emphasis added). The GEIS recognized that this exception would apply to Limerick. Id.

renewed license.79 The conclusion that the impacts are small for severe accidents equates to a determination that the probability-weighted effects of severe accidents are not detectable or are so minor that they will neither destabilize nor noticeably alter any important attribute or resource.80 In responding to comments on the GEIS, the Commission observed that this analysis was conservative because it tended to over-predict, rather than under-predict, environmental consequences of severe accidents.81 Therefore, the NRC based the conclusion in sub-section(L) on a determination that in light of the relatively minor benefits future cost-beneficial SAMAs would provide, the agency need only visit the issue once per facility.82 The NRC made this finding even though it recognized that future SAMA analyses may use different methodologies to identify additional minor cost-beneficial SAMAs.83 In turn, the expectation that future SAMA analyses would only uncover minor SAMAs rested on the agencys prior analyses of severe accident mitigation.84 Those analyses had only found programmatic and procedural improvements and minor plant modifications that merited further consideration.85 Moreover, the agencys determination that the probability-weighted impact of severe accidents would be small further supports the exception in sub-section (L).86 79 Id. at 5-114 to 5-115.

80 Table B-1.

81 61 Fed. Reg. at 28, 480.

82 Id. at 28,481-82; GEIS at 5-114.

83 61 Fed. Reg. at 28,481.

84 GEIS at 5-114; 61 Fed. Reg. at 28, 481.

85 GEIS at 5-114; 61 Fed. Reg. at 28, 481.

86 Table B-1. The NRCs license renewal experience has borne out these predictions.

Subsequent analyses have concluded that the probability weighted impacts of a severe accident are indeed small. NUREG-1437, Vol. 2, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Appendices, Draft Report for Comment, at E-43 to E-44 (July 2009) (ADAMS Accession No. ML091770048). Limerick completed an IPE and IPEEE. Staff Answer at 9. Moreover, potentially-cost beneficial SAMAs tend to be low-cost improvements such as modifications to plant procedures or training, minimal hardware changes, and use of portable equipment. Perspectives on

A petitioner could challenge the application of the rationale underlying the exception in sub-section (L) by challenging any one of these conclusions with respect to a particular facility.

For example, a petitioner could demonstrate that a given cost-beneficial mitigation measure not considered by the NRC might provide more than a minor benefit for the facility in question.

Several recent SAMA analyses at pressurized water reactors have identified SAMA candidates related to the reactor coolant pump seals that could result in substantial reductions to core damage frequency or off-site dose risk.87 Given the magnitude of these reductions, these SAMAs could be the type of SAMAs that could support a successful waiver petition, had the NRC not already considered them in documents supporting the IPE program.88 They demonstrate that some SAMAs could provide a sufficient reduction in severe accident risk to support a successful waiver petition of sub-section (L).

A petitioner could also challenge the application of the rationale of sub-section (L) at a particular facility by demonstrating that the risk of severe accidents is greater at that facility than previously supposed, that the Staff never completed the studies the Commission anticipated would further examine severe accident mitigation, or that those studies in fact routinely discovered significant, non-minor, cost-beneficial SAMAs. Likewise, the Commission noted in Severe Accident Mitigation Alternatives for U.S. Plant License Renewal, at 10 (Sept. 30, 2009) (ADAMS Accession No. ML092750488) (Perspectives on SAMAs).

87 E.g., NUREG-1437, Supplement 40, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Kewaunee Power Station, Final Report, at F-22 (Aug. 2010)

(ADAMS Accession No. ML102280229); Applicants Environmental Report - Operating License Renewal Stage, Sequoyah Nuclear Plant, at E-140 (Jan. 7, 2013) (ADAMS Accession No. ML13024A010).

88 See e.g., NUREG-1150, Vol. 1, Severe Accident Risks: An Assessment for Five U.S. Nuclear Power Plants, at 1-2, 7-5 to 7-6 (Dec. 1990) (ADAMS Accession No. ML040140729) (noting that the report supports development of the NRCs IPE program, discussing the importance of reactor coolant pump seal integrity, and noting that the Zion Nuclear Plant had committed to upgrade equipment to reflect this vulnerability). In the GEIS, the NRC stated that it would determine whether modifications identified by the IPE program warranted further consideration under the terms of the agencys backfit rule, 10 C.F.R. § 50.109, which establishes a high standard for changing a plants licensing basis. GEIS at 5-107. Thus, mitigation measures that could be significant under Marsh may not have warranted further consideration under the IPE program when the Commission initially considered them. Moreover, the NRC has continued to study reactor coolant pump seals as part of its ongoing safety review of operating reactors.

NUREG-0933, Supp. 34, Resolution of Generic Safety Issues, at 32 (Sep. 2011) (ADAMS Accession No. ML11353A382).

CLI-12-19 that new information may require waiver of sub-section (L) if it could render invalid the original site-specific analysis.89 Therefore, the Boards suggestion that no information could ever undermine the rationale supporting sub-section (L) 90 is simply not correct.

The Boards analogy to the Category 1 issue of bird collisions with cooling towers illustrates this error in the Boards reasoning.91 The Board noted that the Category 1 bird collision issue rests on a finding that [t]hese collisions have not been found to be a problem at operating nuclear power plants and are not expected to be a problem during the license renewal term.92 The Board argued that a petitioner may successfully waive this rule by showing that changes in the migratory habits of a certain bird during the initial operating term led to a large number of collisions with the cooling towers at a specific plant.93 In contrast, the Board argued that the possibility that new SAMA candidates may become available cannot be the basis for a successful waiver petition, because the Commission knew that SAMA technology would change.94 However, as described above, the Board relies on too narrow a description of the Commissions rationale for sub-section (L). The Commission did not only expect that future SAMA analyses may uncover cost-beneficial SAMAs, the Commission expected that those SAMA analyses would produce programmatic, procedural, or minor plant improvements.95 Thus, just as new information could require waiver of the generic finding on bird collisions by showing that the issue may be a problem, new information could also require waiver of sub-89 Limerick, CLI-12-19, 76 NRC at __ n. 54 (slip op. at 13 n. 54).

90 Limerick, LBP-13-1, 77 NRC at __ (slip op. at 11-12).

91 Id.

92 Id. at 11 (citing Table B-1).

93 Id.

94 Id. at 12 (citing 61 Fed. Reg. at 28,481).

95 GEIS at 5-114; 61 Fed. Reg. at 28,481.

section (L) if it showed a potentially major cost-beneficial SAMA. Contrary to the Boards conclusion, a petitioner could meet the first Millstone factor by providing new information that undermined the rationale behind sub-section (L).

C. The Boards Interpretation of Sub-Section (L) Would Render the Provision Inconsistent with NEPA Finally, the Boards conclusion that waiving sub-section (L) is a seemingly impossible task in LBP-13-1 creates an interpretation of the NRCs regulations that would render the regulations inconsistent with NEPA. As discussed above, the NRC must address severe accident mitigation for reactor licensing actions.96 In addition, the NRC must consider whether new and significant information provides a seriously different picture of environmental issues already resolved in a previous EIS, such as the GEIS.97 Finally, the D.C. Circuit has held that the NEPA process must fully accompany an application for a federal license through every stage of the agencys review including, where provided by the agency, adjudications.98 If the Boards interpretation of sub-section (L) stands, namely that waiver of that regulation is seemingly impossible, any new and significant information affecting the agencys generic finding on severe accident mitigation would not accompany the license renewal application through the agency adjudication of particular license renewal applications. For example, NRDC would have no opportunity to bring claims of new and significant information regarding SAMAs in this adjudication. Thus, the Boards interpretation would render sub-section (L) inconsistent with binding precedent governing NEPA compliance.99 Therefore, the Commission should overturn the Boards conclusion that a petitioner could never produce new information to waive sub-section (L) under 10 C.F.R. § 2.335. This 96 Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 739 (3d Cir. 1989).

97 Marsh, 490 U.S. at 373-74.

98 Calvert Cliffs Coordinating Comm, Inc. v. AEC, 449 F.2d 1109, 1117-19 (D.C. Cir. 1971).

99 Id.

conclusion rests on an unreasonably narrow view of the purpose of sub-section (L), relies on a similarly limited description of the rationale supporting the rule, and, ultimately, yields an interpretation of agency regulations that is inconsistent with NEPA. Nonetheless, the Commission should rely on alternate grounds to find that NRDC has not submitted a sufficient waiver petition to meet § 2.335.100 As outlined in Section IV., NRDC has not provided enough information to meet any of the four parts of the Millstone test, which as discussed in Section III.,

is the correct standard for evaluating waiver petitions. Consequently, while the Commission should overturn the Boards rationale for denying NRDCs Waiver Petition, the Commission should uphold the Boards ultimate decision to deny the Waiver Petition.

III. The Boards Analysis of Millstone Contravenes Commission Precedent In its order ruling on NRDCs Waiver Petition, the Board asserted that the Commissions Millstone factors establish a more arduous [test] for waiver petitions than that outlined in § 2.335(b).101 Specifically, the Board stated that:

on its face, Section 2.335(b) appears to only require a petitioner to satisfy the first two prongs of the Millstone test. In other words, Section 2.335(b) does not require petitioners to demonstrate that their complaint is unique to the facility in question or that their complaint reflects a significant safety issue.102 Given this view of Millstone, the Board only examined whether NRDCs Waiver Petition met the first two Millstone factors, which the Board considered the threshold of 10 C.F.R. 2.335(b).103 The Boards conclusion that Section 2.335(b) does not require petitioners to demonstrate that their complaint is unique to the facility in question or that their complaint 100 Private Fuel Storage, CLI-05-01, 61 NRC at 166.

101 See Limerick, LBP-13-1, 77 NRC __ (slip op. at 6). See id. at 7 (It is clear to us that the Millstone test establishes an appreciably higher burden for would-be waiver seekers than does 10 C.F.R. 2.335(b).).

102 Id. at 7.

103 Id. See also id. at 7-12 (providing Boards analysis).

reflects a significant safety issue 104 is contrary to Commission precedent interpreting 2.335(b).105 The Commissions decision in Millstone plainly establishes that all four Millstone factors must be met to justify waiver, and the Commission has frequently applied this test to waiver petitions and observed that such petitions must meet all four factors.106 The third Millstone factor embodies the Commissions determination that for reasons of fairness and efficiency, a waiver petition must raise issues unique to the facility, not generic issues applicable to any facility.107 The text of § 2.335(b) also supports this requirement to provide unique facts not common to a large class of facilities. The regulation states that the petition must identify the specific aspect or aspects of the subject matter of the proceeding as to which the application of the rulewould not serve the purposes for which the rulewas adopted.108 Absent this showing of uniqueness, the proper challenge to a regulation is a petition for rulemaking.109 Regarding the fourth Millstone factor, the Commission has explained that the purpose of this factor is to only allow waiver petitions to be certified if they raise significant regulatory matters:

The Commission also believes that a [waiver petition] ought not to be certified unless the petition and other allowed papers indicate that a waiver is necessary to address, on the merits, a significant safety problem related to the rule sought to be waived. The 104 Id. at 7.

105 See, e.g., Pilgrim, CLI-12-06, 75 NRC at __ (slip op. at 15-16) (deciding a waiver petition seeking to waive a Part 51 regulation did not meet Millstone because it did not identify a unique issue).

106 Millstone, CLI-05-24, 62 NRC at 559-60; Pilgrim, CLI-12-06, 75 NRC at __ (slip op. at 14);

Limerick, CLI-12-19, 76 NRC at __ (slip op. at 14 n. 55).

107 See Millstone, CLI-05-24, 62 NRC at 559-60. See also Restructuring of Facility License Application Review and Hearing Processes, 37 Fed. Reg. 15,129, 15,136 (July 28, 2012) ([R]ule making proceedings [are] the appropriate forum for settling basis policy issues.); NRC Staff Answer to Natural Resources Defense Council Petition for Waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L), at 34 (Dec. 14, 2012)

(ADAMS Accession No, ML12349A384) (NRC Staff Answer to NRDCs Waiver Petition).

108 10 C.F.R. § 2.335(b) (emphasis added).

109 10 C.F.R. 2.335(e).

Commission's agenda is crowded with significant regulatory matters, including new rules on nuclear plant maintenance, fitness for duty, and high-level waste repository licensing, and safety oversight of the over 100 nuclear power plants with operating licenses. It would not be consistent with the Commission's statutorily mandated responsibilities to spend time and resources on matters that are of no substantive regulatory significance.110 Thus, while the fourth Millstone factor says safety problem, the rationale underlying the factor suggests that a significant regulatory matter, including an environmental issue, could meet the fourth Millstone factor. Therefore, the Commission has also reasonably indicated that an environmental issue can fall within the fourth Millstone factor.111 For the reasons discussed above, the four factor Millstone test is the correct standard for evaluating NRDCs Waiver Petition. The Boards holding to the contrary diverges from Commission decisions and the text of § 2.335(b). Therefore, the Commission should also overturn this portion of LBP-13-1.

IV. NRDCs Waiver Petition Does Not Meet Any of the Millstone Factors and the Commission Should Affirm the Boards Denial of the Petition As discussed in the Staffs Answer to NRDCs Waiver Petition and summarized below, NRDC has not made a prima facie case for waiver regarding any of the four required Millstone factors. Therefore, the Commission should affirm the Boards denial of NRDCs Waiver Petition.112 A. Factor 1 Not Met: Applying Sub-Section (L) in the Limerick License Renewal Proceeding Would Serve the Purpose for Which the Rule Was Adopted The purpose of sub-section (L) is to codify the Commissions determination that if the Staff has previously considered SAMAs in an EIS or supplement for a plant, the applicant need 110 Seabrook, CLI-88-10, 28 NRC at 597.

111 See Diablo Canyon, CLI-11-11, 74 NRC at 449. See Limerick, CLI-12-19, 76 NRC at __ n. 55 (slip op. at 14 n. 55) (indicating that a waiver under § 2.335(b) was the proper procedural mechanism for seeking a waiver of NRDCs claims regarding sub-section (L), an environmental regulation).

112 See Limerick, LBP-13-1, 77 NRC __ (slip op. at 1); Private Fuel Storage, CLI-00-13, 52 NRC at 28-29.

not reassess SAMAs for license renewal since an additional SAMA analysis is unlikely to uncover major cost-beneficial SAMAs.113 Instead of providing an argument about why the purpose of sub-section (L) would not be served in this proceeding, NRDCs Waiver Petition offered a narrow view of the purpose of the rule, while acknowledging that its view is contrary to the regulations plain text.114 As the Board explained, NRDC claimed that the purpose of sub-section (L) is that if the staff has previously considered certain severe accident mitigation alternatives, a consideration of those specific alternatives need not be provided, but a consideration of other alternatives must be provided.115 This assertion contravenes the plain text of sub-section (L), which waived the requirement for a consideration of SAMAs altogether, not just the specific severe accident mitigation alternatives previously considered at a plant. Therefore, like the Staff, the Board was not persuaded by NRDCs arguments in support of its strained and inappropriate interpretation of the purpose of sub-section (L).116 NRDC makes several other arguments to support its claim that sub-section (L) does not serve its intended purpose in this proceeding.117 For example, NRDC provides a list of cost-beneficial or potentially cost-beneficial SAMA candidates identified in SAMA analyses for other facilities.118 But, NRDC does not indicate how any of the SAMAs it provides undermine the rationale supporting sub-section (L), which expressly noted that additional minor SAMAs could 113 61 Fed. Reg. at 28,481; GEIS at 5-114; Diablo Canyon, CLI-11-11, 74 NRC at 449.

114 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 . . .) (first emphasis added). See also NRDCs Waiver Petition at 19-21.

115 Limerick, LBP-13-1, 77 NRC __ (slip op. at 9).

116 Id. See generally NRC Staff Answer to NRDCs Waiver Petition at 12 - 27 (discussing why NRDCs Waiver Petition does not meet the first Millstone factor).

117 See Weaver Declaration.

118 See id. at 5-8.

be identified in future SAMA reviews at other plants.119 Additionally, NRDC alleges that the 1989 SAMDA Analysis did not compute cost-benefit values for SAMDA candidates with respect to their reduction in land contamination subject to long-term interdiction, or the reduction in associated economic cost, from a severe accident.120 Thus, NRDC argues 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.121 But, NRDCs assumption that the 1989 SAMDA Analysis did not consider economic impacts is incorrect. In the 1989 SAMDA Analysis, the staff used [a] $1000 per person-rem value as a screen to compare values and impacts.122 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.123 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 sub-section (L).124 Thus, NRDCs challenges regarding economic damages do not undermine the stated 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. With this knowledge, the Commission recognized that (1) the 1989 SAMDA Analysis was a SAMA analysis and another SAMA analysis need not be done at Limerick for license renewal and (2) declined to codify or 119 61 Fed. Reg. at 28, 481. See also NRC Staff Answer to NRDCs Waiver Petition at 24-25.

120 Weaver Declaration at 11-12 ¶ 17.

121 See Id. See NRC Staffs Answer to NRDCs Waiver Petition at 25-26 (discussing this claim).

122 NUREG-1530, Reassessment of NRC's Dollar Per Person-Rem Conversion Factor Policy, at 3 (Dec. 1995) (ADAMS Accession No. ML063470485) (NUREG-1530). See also id. at 4; 1989 SAMDA Analysis at v, vi, 1, 2, 10, 14, 15.

123 NUREG-1530 at 3.

124 Id. at 6-7.

endorse one particular approach to considering off-site economic costs.125 Finally, NRDC argues that the ER should have considered the most up-to-date

[accident modeling] methodology.126 But, the rule specifies a consideration of severe accident mitigation alternatives, not a particular methodology. The SOC supporting the rule specifically stated that sub-section (L) does not codify the scope of an acceptable SAMA.127 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.128 When it promulgated sub-section (L), the Commission understood that future SAMA analyses may uncover additional cost-beneficial SAMAs, that previous SAMA analyses employed different methods to consider economic information, and that future SAMA analyses could use differing methodologies. Thus, NRDCs arguments regarding additional SAMA candidates, economic data, and advanced computer modeling do not undermine the Commissions stated rationale for sub-section(L). Because NRDC has not met the first Millstone factor, the Waiver Petition should be denied.129 B. Factor 2 Not Met: NRDC Has Not Demonstrated Special Circumstances NRDC has also not made a prima facie case with respect to the second Millstone factor, which requires a showing that there are special circumstances that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to 125 61 Fed. Reg. at 28,481.

126 Weaver Declaration at 5-6 ¶ 9 and Waiver Petition at 21.

127 See 61 Fed. Reg. at 28,481-82.

128 61 Fed. Reg. at 28,481-82.

129 See Millstone, CLI-05-24, 62 NRC at 559-60; 10 C.F.R. §2.335(b).

be waived.130 To meet the second Millstone factor, NRDC argues that additional SAMA candidates revealed from other facilities SAMA analyses were not considered by the Commission when it decided that Limerick need not prepare another SAMA analysis for license renewal.131 But, the Commission explicitly addressed the possibility that future SAMA analyses at other plants could identify different cost-beneficial SAMAs. Specifically, the Commission noted that future SAMA analyses could 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.132 NRDC does not indicate how the additional SAMA candidates listed in the Waiver Petition are different from those contemplated by the Commission when promulgating sub-section (L). Therefore, NRDCs arguments regarding additional SAMAs do not demonstrate a special circumstance.

Likewise, as discussed above, NRDCs arguments regarding economic impacts and computer modeling do not raise special circumstances unforeseen by the Commission when it promulgated sub-section (L).133 Rather, the Commission considered both of these issues when it promulgated sub-section (L) and determined that Limerick need not prepare another SAMA analysis for license renewal. The Limerick SAMDA analyses relied on $1000 per person rem screen to account for economic costs, but later analyses considered economic costs separately.134 Thus, the Commission clearly understood that future SAMA analyses may address economic costs outside of the $ 1000 per person-rem screen, but declined to require Limerick to revisit the issue. The Commission likewise noted that different SAMA analyses 130 Millstone, CLI-05-24, 62 NRC at 560 (internal quotations omitted). See also 10 C.F.R. § 2.335(b).

131 Waiver Petition at 23-24.

132 61 Fed. Reg. at 28,481.

133 Waiver Petition at 23-24.

134 NUREG-1530 at 6-7.

could take different approaches to considering severe accident mitigation and expressly declined to require all SAMA analyses to utilize one methodology.135 Therefore, NRDC has not made a prima facie case that there are special circumstances regarding these claims, and its Waiver Petition must be denied.

C. Factor 3 Not Met: NRDCs Claims Are Not Unique to Limerick NRDC has also not made a prima facie case that there are special circumstances that are unique to the facility rather than common to a large class of facilities. 136 NRDC argues its claims are unique because the Limerick plant will be the only [boiling water reactor] nuclear power plant that will be relicensed without the operator or the NRC giving NEPA consideration to the most recent mitigation alternatives, assessment methodologies, and economic considerations.137 As explained in the Staffs Answer to NRDCs Waiver Petition, this claim is not unique. Many other facilities, including reactors licensed under Part 52 and reactors applying for a subsequent license renewal, could take advantage of the exception in sub-section (L).138 Therefore, a rulemaking, not a waiver, would be the more appropriate mechanism to address NRDCs concern.139 Because NRDC has not made a prima facie case with respect to the third Millstone factor, its Waiver Petition must be denied.

D. Factor 4 Not Met: NRDC Has Not Established the Significance of Its Claims An environmental issue should meet the fourth part of the Millstone test if it raises a significant environmental impact under Marsh (i.e., the issue reveals a seriously different 135 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. See 61 Fed. Reg. at 28,481.

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

137 Waiver Petition at 24.

138 NRC Staff Answer to NRDCs Waiver Petition at 35.

139 See Staff Answer at 35. See also § 2.335(e) (discussing option to submit rulemaking petition).

picture of the environmental impact of the proposed project).140 This interpretation aligns with (1) the Commissions approach to establishing the significance of an environmental issue under its standards for reopening a closed record,141 (2) many courts interpretation of Marsh,142 and (3) NRC regulations, which define significance in terms of effects and impact.143 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;144 for license renewal, SAMAs reduce the risk of a severe accident during the period of extended operation (PEO).145 Thus, with respect to SAMAs, new information would be significant if it indicated a given SAMA was not just cost-beneficial146 but could also provide a serious reduction in the risk of severe accidents during the PEO.

NRDCs Waiver Petition does not establish the significance of its claims, and should therefore be denied. NRDC claims that it has identified significant information in three areas:

140 See Staff Answer to NRDC Waiver Petition at 37-39. See Marsh, 490 U.S. at 374.

141 To reopen a closed record, a petitioner must address a significant safety or environmental issue. 10 C.F.R. § 2.326(a)(2). See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-06-03, 63 NRC 19, 29 (2006) (equating the significance of an environmental issue with the Marsh standard for supplementing an EIS).

142 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 [action] 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).

143 See 50 C.F.R. § 51.14(b) (noting that the definitions in 40 C.F.R. § 1508.27 will be used in implementing NEPA); 40 C.F.R. § 1508.27 (defining significance in terms of effects and impact).

144 Methow Valley, 490 U.S. at 351-52.

145 10 C.F.R. § 51.53(c)(3)(ii)(L); Table B-1.

146 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, 11-12 (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).

(1) additional SAMA candidates, (2) economic impacts, and (3) computer modeling.147 NRDC argues that this information is significant because it could plausibly cause a materially different result in the SAMA analysis for Limerick148 (i.e., establish that additional SAMAs could be cost beneficial).

NRDCs claims regarding additional SAMA candidates do not provide a prima facie case of significance. As discussed above, when promulgating sub-section (L) and concluding that Limerick did not need to undertake a new SAMA analysis at license renewal, the Commission explicitly recognized that future SAMA analyses done at other plants may identify other cost-beneficial SAMAs.149 However, the Commission expected that most of these SAMAs would be relatively minor, such as procedural and programmatic fixes.150 The Staffs review of completed SAMA analyses has confirmed that this is indeed the case.151 NRDC has not indicated how any cost-beneficial SAMA it identified would lead to a substantial reduction in risk of severe accidents. Therefore, on its face, the Waiver Petition fails to establish the significance of this issue for purposes of the Millstone test.

Likewise, NRDC does not provide sufficient information on its economic data and computer modeling claims to raise a significant issue under the fourth Millstone factor.152 Specifically, NRDC does not indicate how this information could lead to a substantial reduction in severe accident risk at the Limerick facility. Moreover, Limericks calculated core damage 147 Waiver Petition at 20-21 (citing Weaver Declaration, NRDC Counsel Declaration).

148 Weaver Declaration at 2-3.

149 61 Fed. Reg. at 28,481.

150 Id.

151 Perspectives on SAMAs at 10.

152 Waiver Petition at 26-27 (citing Weaver Declaration and NRDC Counsel Declaration).

frequency has decreased by nearly an order of magnitude since 1989,153 indicating that the risk of severe accidents has already decreased significantly since 1989.154 Therefore, these factors are unlikely to reveal a significant reduction in risk at Limerick in light of the already-achieved significant reduction in the estimated risk at the facility since 1989.

NRDC also argues that its SAMA claims are significant because severe accidents are a significant public safety issue.155 While severe accidents are obviously an important safety issue, the Staff does not agree that all SAMA claims are significant to public safety. As explained by the Commission and the Staff, SAMAs are part of the environmental review and many past and ongoing studies, analyses, and efforts outside of the SAMA context also reduce the risks associated with a plant.156 Thus, a SAMA analysis is a search for potentially cost-beneficial measures beyond those identified in other contexts, and works to further reduce the severe accident risk of a plant.157 In the reopening context, the Commission has recognized that claims related to severe accident mitigation are not necessarily significant themselves under the Marsh standard.158 Therefore, NRDCs argument that its claims on economic data, 153 ER at 5-5 to 5-6. This reduction is attributed to more reliable data, improvements in procedural guidance and plant capability, fewer reactor trips, and implementation of the IPE, Accident Management and CPI programs. Id. at 5-6.

154 The risk of severe accidents is the product of the frequency and consequences of such events. See, e.g., 61 Fed. Reg. at 28,481 (discussing severe accidents in terms of frequency and consequence).

155 Waiver Petition at 26-27 (arguing that NRDCs Contentions are significant because [b]y definition, NRDCs Contentions concern how to best mitigate for severe accidents).

156 Since sub-section(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 40, 43-44); SRM-SECY-11-0089, Staff Requirements SECY-11-0089 Options for Proceeding with Future Level 3 Probabilistic Risk Assessment (PRA) Activities (Sept. 21, 2011) (ADAMS Accession No. ML112640419).

157 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 ¶ 8 (June 6, 2011) (ADAMS Accession No. ML111570502).

158 Entergy Nuclear Operation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC __, __ (June 7, 2012) (slip op. at 28-32).

computer modeling, and other SAMA candidates are significant simply because they relate to severe accident mitigation fails to establish a significant issue under the fourth Millstone factor.

Because NRDC has not made a prima facie case that its claims are significant under Millstone, its Waiver Petition must be denied.

CONCLUSION For the reasons discussed above, the Commission should overturn the Boards rationale for denying NRDCs Waiver Petition, but uphold the Boards ultimate decision to deny the Waiver Petition. Specifically, the Commission should reverse (1) the Boards view of the purpose of sub-section (L) as unduly narrow and contrary to Commission precedent, (2) the Boards suggestion waiving sub-section (L) is a seemingly impossible task, and (3) the Boards view that section 2.335(b) only requires a petitioner for waiver to meet the first two Millstone factors.

However, the Commission should affirm the Boards holding that NRDCs Waiver Petition should be denied because it did not present a prima facie case that it has satisfied 10 C.F.R. 2.335(b).159 Under Commission precedent, a waiver petition must be denied if any one of the four Millstone factors is not met. NRDC did not present a prima facie case on any of the four Millstone factors. For this reason, the Commission should affirm the Boards denial of NRDCs Waiver Petition.

/Signed (electronically) by/ Executed in Accord with 10 CFR 2.304(d)

Maxwell C. Smith Catherine E. Kanatas Counsel for NRC Staff Counsel for NRC Staff 159 Limerick, LBP-13-1, 77 NRC at __ (slip op. at 13).

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

)

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

)

(Limerick Generating Station, Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS BRIEF ON THE BOARDS REFERRED RULING IN LBP-13-1 in the above captioned proceeding have been served over the Electronic Information Exchange, the NRCs E-Filing System, this 13th day of March, 2013.

/Signed (electronically) by/

Maxwell 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: March 13, 2013