ML18348B262

NRC Staff Answer to Beyond Nuclear, Inc.'S Hearing Request and Petition to Intervene

ML18348B262
Person / Time
Site:	Peach Bottom
Issue date:	12/14/2018
From:	Kayla Gamin, Matt Young NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-277-SLR, 50-278-SLR, ASLBP 19-960-01-SLR-BD01, RAS 54706
Download: ML18348B262 (65)

Text

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

)

EXELON GENERATION COMPANY, LLC ) Docket Nos. 50-277-SLR

) 50-278-SLR (Peach Bottom Atomic Power Station, )

Units 2 and 3) )

NRC STAFF ANSWER TO BEYOND NUCLEAR, INC.S HEARING REQUEST AND PETITION TO INTERVENE Mitzi A. Young Kayla Gamin December 14, 2018

-i-TABLE OF CONTENTS INTRODUCTION ............................................................................................................................ 1 BACKGROUND .............................................................................................................................. 2 DISCUSSION .................................................................................................................................. 4 I. Standing to Intervene ............................................................................................................... 4 A. Applicable Legal Requirements ........................................................................................... 4 B. Petitioners Standing to Intervene ........................................................................................ 6 II. Admissibility of Petitioners Proffered Contentions .................................................................. 7 A. Legal Requirements for Contention Admissibility ................................................................. 7

1. General Requirements for Admissibility ........................................................................... 7

2. Scope of License Renewal Proceedings ........................................................................ 14

3. Subsequent License Renewal Proceedings ................................................................... 16

4. Safety Review of License Renewal and SLRAs ............................................................. 23

5. Environmental Review of License Renewal and SLRAs ................................................ 25 B. Analysis of Proffered Contentions ...................................................................................... 30

1. Contention 1: Failure to Satisfy NRC Regulations for Aging Management Programs ... 30

2. Contention 2: Failure to Address Environmental Impacts of Operating Aging Reactor Equipment During a Second License Renewal Term ..................................................... 42 CONCLUSION .............................................................................................................................. 62

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

)

EXELON GENERATION COMPANY, LLC ) Docket Nos. 50-277-SLR

) 50-278-SLR (Peach Bottom Atomic Power Station, )

Units 2 and 3) )

NRC STAFF ANSWER TO BEYOND NUCLEAR, INC.S HEARING REQUEST AND PETITION TO INTERVENE INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i), the U.S. Nuclear Regulatory Commission (NRC) staff (Staff) hereby files its answer to the hearing request and petition to intervene filed by Beyond Nuclear, Inc. (Beyond Nuclear or Petitioner),1 concerning the subsequent license renewal application (SLRA) submitted by Exelon Generation Company, LLC (Exelon or Applicant) for Peach Bottom Atomic Power Station Units 2 and 3 (PBAPS or Peach Bottom 2 and 3).

Petitioner proffers two contentions in its intervention petition, raising both safety and environmental issues.

For the reasons set forth herein, the Staff submits that although Petitioner has demonstrated representational standing to intervene in this proceeding, it has not proffered an admissible contention. Therefore, the hearing request and intervention petition should be denied.

Below, the Staff (1) briefly describes the background of this proceeding, (2) discusses the legal principles governing standing to intervene and analyzes Petitioners standing to intervene, (3) discusses the legal principles governing contention admissibility, license renewal, 1

See Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Nov. 19, 2018)

(ADAMS Accession No. ML18323A749) (Petition).

and subsequent license renewal, and (4) analyzes the admissibility of each of Petitioners proposed contentions.

BACKGROUND This proceeding concerns the application submitted by Exelon on July 10, 20182 for the renewal of Renewed Facility Operating License Nos. DPR-44 and DPR-56 to permit an additional 20 years of operation at Peach Bottom 2 and 3.3 The current renewed operating licenses for Unit 2 and Unit 3 expire at midnight on August 8, 2033, and July 2, 2034, respectively.4 Thus, Exelon seeks to extend the Peach Bottom 2 and 3 operating licenses to August 8, 2053, and July 2, 2054.5 Peach Bottom Units 2 and 3 are located on a 769-acre (311-hectare) site.6 The site is primarily in Peach Bottom Township in York County, PA, 19 miles (31 km) southwest of Lancaster, PA, 30 miles (48 km) southeast of York, PA, and 38 miles (61 km) north of Baltimore, 2

See Letter from Michael Gallagher (Exelon) to NRC Document Control Desk (July 10, 2018)

(ADAMS Accession Nos. ML18193A697); Subsequent License Renewal Application, Peach Bottom Atomic Power Station Units 2 and 3, (July 2018) (ML18193A773) (SLRA). The application includes Appendix EApplicants Environmental ReportOperating License Renewal StageSubsequent License Renewal (ML18201A219) (Environmental Report or ER).

3 Exelon states that (1) it is the licensed operator and co-owner of PBAPS 2 and 3, and submits the application individually and as agent for PSEG Nuclear, LLC, the other co-owner of Peach Bottom 2 and 3, (2) Exelon is a wholly owned subsidiary of Exelon Corporation, and (3) PSEG Nuclear, LLC, is a wholly-owned subsidiary of PSEG Power LLC, which is a wholly-owned subsidiary of Public Service Enterprise Group, Inc. SLRA at 1-1 to 1-3.

4 Peach Bottom Atomic Power Station, Unit 2, Renewed Facility Operating License No.

DPR-44, Section 4 (ML052720266); Peach Bottom Atomic Power Station, Unit 3, Renewed Facility Operating License No. DPR-46, Section 4 (ML052720269); see also SLRA at 1-4.

Condition 2(C)(1) in License Nos. DPR-44 and DPR-46 indicate that Peach Bottom 2 and 3 are General Electric Type 4 boiling water reactors with Mark I containment systems. See SLRA at 1-8.

5 ER at 1-1. Adjacent to Peach Bottom 2 and 3 is Peach Bottom Unit 1. Unit 1, an experimental high temperature helium cooled and graphite-moderated reactor, operated from 1967 through October 1974 and entered safe storage (SAFSTOR) mode in 1987. Exelon currently maintains Unit 1 at SAFSTOR mode with continued surveillance, security, and maintenance with no fuel in storage in the fuel pool under Facility Operating [Possession Only] License No. DPR-12. Id. at 2-2 and 2-3.

6 Id. at 3-1.

MD.7 The site is on the west side of Conowingo Pond, which was formed when the Conowingo Dam was constructed on the Susquehanna River.8 Peach Bottom 2 and 3 operate under National Pollutant Discharge Elimination System (NPDES) Permit No. PA0009733.9 This permit authorizes releases into Conowingo Pond, subject to the discharge limits specified in the permit.10 The NRC published a notice of receipt of the Peach Bottom SLRA on August 1, 2018.11 After the Staff concluded that the SLRA was acceptable for docketing, a notice of opportunity for hearing on the application was published in the Federal Register.12 The notice required that petitions for leave to intervene and requests for hearing be filed within 60 days after publication of the Notice (i.e., by November 5, 2018).13 In response to a request for extension of time filed by Beyond Nuclear, the Commission subsequently extended the intervention petition filing deadline by fourteen days, until November 19, 2018.14 On November 19, 2018, Petitioner timely 7

ER at 3-1.

8 Id.

9 SLRA, Appendix A, NPDES Permit (ML18193A778).

10 ER at 2-7.

11 Exelon Generation Company, LLC; Peach Bottom Atomic Power Station, Units 2 and 3; License renewal application; receipt, 83 Fed. Reg. 37,529 (Aug. 1, 2018).

12 See Letter from George A. Wilson, NRC, to Michael Gallagher, Exelon Nuclear, Peach Bottom Atomic Power Station, Units 2 and 3 Determination of Acceptability and Sufficiency for Docketing, Proposed Review Schedule, and Opportunity for a Hearing regarding the Exelon Generation Company, LLC, Application for Subsequent License Renewal (Aug. 27, 2018) (ML18191B085); Exelon Generation Company, LLC: Peach Bottom Atomic Power Station, Units 2 and 3, 83 Fed. Reg. 45,285 (Sept. 6, 2018).

13 Id. at 45,285-86.

14 Exelon Generation Co., LLC (Peach Bottom Atomic Power Station Units 2 and 3),

Order of the Secretary (Nov. 1, 2018) (ML18305B372).

filed a request for hearing and petition to intervene. An Atomic Safety and Licensing Board (Board) was established on December 11, 2018, to preside over the contested proceeding.15 DISCUSSION I. Standing to Intervene A. Applicable Legal Requirements In accordance with the Commissions Rules of Practice and Procedure, [a]ny person whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for hearing [or petition for leave to intervene] and a specification of the contentions which the person seeks to have litigated in the hearing.16 The regulations governing the rules of practice and procedure further provide that the Licensing Board designated to rule on a petition for leave to intervene will grant the request/petition if it determines that the requestor/petitioner has standing under the provisions of paragraph (d) of this section [10 C.F.R. § 2.309(d)] and has proposed at least one admissible contention that meets the requirements of paragraph (f) of this section [10 C.F.R. § 2.309(f)].17 Under the general standing requirements set forth in 10 C.F.R. § 2.309(d)(1), a request for hearing or petition for leave to intervene must state:

(i) The name, address, and telephone number of the requestor or petitioner; (ii) The nature of the requestors/petitioners right under the [Atomic Energy Act (AEA or Act)] to be made a party to the proceeding; (iii) The nature and extent of the requestors/petitioners property, financial, or other interest in the proceeding; and 15 Exelon Generation Co., LLC (Peach Bottom Atomic Power Station Units 2 and 3),

Establishment of Atomic Safety and Licensing Board (Dec. 11, 2018) (ML18345A260).

16 10 C.F.R. § 2.309(a).

17 10 C.F.R. § 2.309(a).

(iv) The possible effect of any decision or order that may be issued in the proceeding on the requestor's/petitioner's interest.

When ruling on a request for hearing or petition for leave to intervene, the regulations state that the Licensing Board designated to rule on the request must determine, among other things, whether the petitioner has an interest affected by the proceeding considering the factors enumerated in paragraph (d)(1) of this section [10 C.F.R. § 2.309(d)(1)].18 As the Commission has observed, the NRC has long applied contemporaneous judicial concepts of standing, which require a concrete and particularized injury that is fairly traceable to the challenged action and is likely to be redressed by a favorable decision.19 While the Commission generally requires the elements of standing to be pled with specificity, standing to intervene has been found to exist in construction permit and operating license proceedings based upon a proximity presumption.20 In such proceedings, standing is presumed for persons who reside in or have frequent contract with the zone of possible harm from the nuclear reactor.21 In practice, the Commission has found standing based on the proximity presumption for persons who reside within approximately 50 miles of the facility.22 As noted by the 18 10 C.F.R. § 2.309(d)(2). The presiding officer may also consider a request for discretionary intervention in the event that a petitioner is determined to lack standing to intervene as a matter of right where a sufficient showing is made with respect to the factors enumerated in 10 C.F.R. § 2.309(e) (2018).

19 Calvert Cliffs 3 Nuclear Project, LLC & Unistar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009) (quoting Cleveland Elec.

Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 92 (1993)).

20 See, e.g., Calvert Cliffs, CLI-09-20, 70 NRC at 915-17. The proximity presumption establishes standing to intervene because within a 50-mile radius there is a realistic, nontrivial increased risk of harm that satisfies the elements of injury, causation, and redressability. See id. at 917 (citing Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), LBP-09-4, 69 NRC 170, 182-83 (2009)).

21 Id. at 915.

22 Id. at 915-16.

Commission, Licensing Boards have also employed the proximity presumption to establish standing to intervene in reactor operating license renewal proceedings.23 When an organization seeks to intervene, it may do so based on either organizational standing or representational standing.24 To establish representational standing an organization must (1) demonstrate that at least one of its members may be affected by the proceeding, (2) identify that members name and address, and (3) show that the member has authorized the organization to represent him or her and to request a hearing on his or her behalf.25 Further, representational standing requires that the member seeking representation would qualify for standing in his or her own right, the interests that the organization seeks to protect are germane to its own purpose, and neither the asserted claim nor the requested relief require an individual member to participate in the proceeding.26 B. Petitioners Standing to Intervene Beyond Nuclear describes itself as a nonpartisan, nonprofit membership organization that aims to educate the public about the connections between nuclear power and nuclear weapons and the need to abolish both to protect public health and safety and prevent environmental harms.27 Beyond Nuclear seeks to establish representational standing to 23 Id. at 915 n.15 (noting that the Board in Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-06, 53 NRC 138, 150, aff'd on other grounds, CLI-01-17, 54 NRC 3 (2001), was applying [the] proximity presumption in [a] reactor operating license renewal proceeding).

24 Organizational standing is based on a showing that the organizations own interests could be adversely affected by the proceeding, whereas representational standing is based on alleged harm to the organizations members. See Cogema Mining, Inc. (Irigaray and Christensen Ranch Facilities), LBP-09-13, 70 NRC 168, 178-79 (2009).

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

26 See id.; Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-99-10, 49 NRC 318, 323 (1999).

27 Petition at 2.

intervene based on the individual standing of three of its members: Ernest Eric Guyll, John S.

Adams, and Virginia Topkis.28 Each of these individuals filed a Declaration in support of the Petition in which they stated (1) that they are a member of Beyond Nuclear; (2) their home address; (3) that their home is located within the 10-mile radiological Emergency Planning Zone of Peach Bottom 2 and 3; (4) that they believe that nuclear facilities are inherently dangerous, that continued operation of Peach Bottom 2 and 3 beyond 2033 and 2034 could cause a severe accident resulting in death, injury, illness, dislocation and economic damage to themselves and their families, and that continued operation of Peach Bottom 2 and 3 could cause environmental damage; and (5) that they authorize Beyond Nuclear to represent their interests in this proceeding.29 Accordingly, Petitioner has shown it has representational standing to intervene in this proceeding under the proximity presumption.30 II. Admissibility of Petitioners Proffered Contentions A. Legal Requirements for Contention Admissibility

1. General Requirements for Admissibility The legal requirements governing the admissibility of contentions are set forth in 10 C.F.R. § 2.309(f) of the Commissions Rules of Practice and Procedure (formerly 10 C.F.R.

§ 2.714(b)).31 Specifically, to be admitted, a contention must satisfy the following requirements:

(f) Contentions. (1) A request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised.

For each contention, the request or petition must:

28 Petition at 3.

29 Declaration of Ernest Eric Guyll (October 20, 2018) (Petition, Att. 1); Declaration of John S.

Adams (October 29, 2018) (Petition, Att. 2); Declaration of Virginia Topkis (November 9, 2018) (Petition, Att. 3).

30 See Calvert Cliffs, CLI-09-20, 70 NRC at 915 n.15; Turkey Point, LBP-01-06, 53 NRC at 150.

31 These requirements substantially reiterate the requirements stated in former 10 C.F.R. § 2.714, published in revised form in 1989. See Rules of Practice for Domestic Licensing Proceedings -

Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (Aug. 11, 1989), as corrected, 54 Fed.

Reg. 39,728 (Sept. 28, 1989). While former § 2.714 was revised in 1989, those revisions did not

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention;[32]

(iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding;[33]

(iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding;[34]

(v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; [and]

(vi) . . . [P]rovide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.

This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting constitute a substantial departure from then existing practice in licensing cases. 54 Fed. Reg.

at 33,170. Thus, the prior standards governing the admissibility of contentions remain in effect to the extent they do not conflict with the 1989 amendments. Arizona Public Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), LBP-91-19, 33 NRC 397, 400 (1991).

32 The requirement that a petitioner provide an explanation of the basis for its contention helps to define the scope of a contention[t]he reach of a contention necessarily hinges upon its terms coupled with its stated bases. Public Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC 93, 97 (1988), affd sub nom Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir.), cert. denied, 502 U.S. 899 (1991); accord Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 379 (2002).

33 The scope of any particular proceeding is defined by the Commission in its initial hearing notice and Order referring the proceeding to the Board. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790-91 (1985). Contentions may only be admitted if they fall within the scope of issues set forth in the Federal Register Notice and comply with the requirements of former § 2.714(b) (restated in § 2.309(f)), and applicable case law. Public Serv. Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976); Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974).

34 Materiality requires that the petitioner show why the alleged error or omission is of possible significance to the result of the proceeding, demonstrating a significant link between the claimed deficiency and the agencys ultimate determination. Entergy Nuclear Operations, Inc.

(Palisades Nuclear Plant), LBP-15-20, 81 NRC 829, 850 (2015) (citation omitted).

reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief; (2) Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, participants shall file contentions based on the applicants environmental report.

As has often been observed, the contention admissibility rules exist to focus litigation on concrete issues, and result in a clearer and more focused record for decision.35 In this regard, the Commission has explained that the rules governing the admissibility of contentions are strict by design.36 Failure to comply with any of the requirements set forth in the regulations is grounds for the dismissal of a contention.37 35 See, e.g., Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, NE), LBP 15, 81 NRC 598, 601 (2015) (quoting Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004)).

36 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016) (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001); South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI-10-1, 71 NRC 1, 7 (2010). The Commission further stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing. Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).

37 Indian Point, CLI-16-5, 83 NRC at 136. See also Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334-35 (1999) (noting that the heightened contention admissibility rules are designed to preclude contentions for which the intervenor has no facts to support its position or where an intervenor contemplates utilizing discovery or cross-examination as a fishing expedition which might produce relevant supporting facts.). The requirements are intended, inter alia, to ensure that a petitioner reviews the application and supporting documents prior to filing contentions, that contentions are supported by at least some facts or expert opinion known to the petitioner at the time of filing, and that there exists a genuine dispute before a contention is admitted for litigation. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-35, 34 NRC 163, 167 (1991). These requirements are intended to avoid the practice of filing contentions which lack any factual support and seeking to flesh them out later through discovery. Id. at 167 (citing Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 468 (1982), rev'd in part on other grounds, CLI-83-19, 17 NRC 1041 (1983)).

As stated by the Commission, the contention admissibility rules require a clear statement as to the basis for the contentions and the submission of . . . supporting information and references to specific documents and sources that establish the validity of the contention.38 Mere notice pleading does not suffice.39 An issue will be ruled inadmissible if the petitioner has offered no tangible information, no experts, no substantive affidavits, but instead only bare assertions and speculation.40 It is well established that the purpose for the basis requirement of 10 C.F.R. § 2.309 is to (1) assure that the contention raises a matter appropriate for adjudication in a particular proceeding; (2) establish a sufficient foundation for the contention to warrant further inquiry into the assertion; and (3) place other parties sufficiently on notice of the issues so that they will know generally what they will have to defend against or oppose.41 Whether the contention is adequately supported by a concise allegation of the facts or expert opinion does not amount to a hearing on the merits.42 As such, a petitioner does not have to prove its contention at the admissibility stage.43 Indeed, a petitioner need not provide formal evidence and the factual support need not be of the quality required to withstand a motion for summary disposition. 44 38 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-119 (2006) (quoting Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155-56 (1991)).

39 Id. at 118-119 (quoting Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site),

CLI-05-29, 62 NRC 801, 808 (2005)).

40 Fansteel, Inc. (Muskogee, Oklahoma, Site), CLI-03-13, 58 NRC 195, 203 (2003) (citing GPU Nuclear Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 192, 208 (2000)).

41 Peach Bottom, ALAB-216, 8 AEC at 20-21.

42 Tennessee Valley Auth. (Watts Bar Nuclear Plant, Unit 2), LBP-09-26, 70 NRC 939, 954 (2009)

(citing Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43, 63 (2008)).

43 Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004).

44 Compare Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. at 33,171 (noting that pursuant to 10 C.F.R. § 2.309(f)

However, the petitioner must provide some support for its contentioneither in the form of facts or expert testimonyand [f]ailure to do so requires that the contention be rejected.45 Further, an expert opinion that merely states a conclusion (e.g., the application is deficient, inadequate, or wrong) without providing a reasoned basis or explanation for that conclusion is inadequate because it deprives the Board of the ability to make the necessary, reflective assessment of the opinion.46 Contentions must both give notice of the facts that the petitioner desires to litigate and be specific enough to satisfy the requirements of 10 C.F.R. § 2.309.47 Providing materials or documents as a basis for a contention without setting forth an analysis or explanation of their significance is inadequate to support admission of the contention.48 Indeed, the Commission has made clear that it is insufficient to incorporate by reference large portions of material in support of a contention where doing so would force one to sift through it in search of asserted (formerly 10 C.F.R. § 2.714), at the contention filing stage the factual support necessary to show that a genuine dispute exists need not be in affidavit or formal evidentiary form and need not be of the quality necessary to withstand a summary disposition motion), with Motions for summary disposition, 10 C.F.R. § 2.710(b) (2018) (Affidavits must set forth the facts that would be admissible in evidence).

45 S.C. Elec. & Gas Co. & S.C. Pub. Serv. Auth. (also referred to as Santee Cooper) (Virgil C.

Summer Nuclear Station, Units 2 & 3), LBP-10-6, 71 NRC 350, 360 (2010) (citing S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 253 (2007); Palo Verde, CLI-91-12, 34 NRC at 155-56. See also Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. at 33,170 (This requirement does not call upon the intervenor to make its case at this [the contention admissibility] stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time which provide the basis for its contention.).

46 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006) (quoting Private Fuel Storage, L.L.C. (Independent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 181 (1998)); see also Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 328 (2015).

47 See Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), LBP-82-52, 16 NRC 183, 188 (1982).

48 See Fansteel, CLI-03-13, 58 NRC at 204-05.

factual support that is not otherwise specified.49 This is so because simple reference to large portions of material is not enough to put the parties on notice of the basis for intervention.50 Instead, a petitioner must identify and summarize the facts being relied upon, in addition to appending the documents cited.51 If a petitioner neglects to provide the requisite support for its contentions, the Licensing Board should not make assumptions of fact that favor the petitioner, or search for or supply supporting information that is lacking.52 All contentions must show that a genuine dispute exists regarding the license application in question, challenge and identify either specific portions of, or alleged omissions from, the application, and provide the supporting reasons for each dispute. This requires the petitioner to read the entire application, state both the applicant and petitioners views, and either explain the disagreement or explain any alleged deficiency.53 Basic assertions that an application is insufficient or inadequate are insufficient to meet this standard.54 A contention raising a specific substantive challenge to how particular information has been addressed in the 49 Northern States Power Company (Prairie Island Nuclear Generating Plant Independent Spent Fuel Storage Installation), LBP-12-24, 76 NRC 503, 515 (2012) (quoting NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 332 (2012)). See also Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 348 (1998) (noting that mere reference to a document, without more, does not provide an adequate basis for a contention) (citation omitted).

50 See Intl Uranium (USA) Corp. (Receipt of Material from Tonawanda, New York), LBP-98-21, 48 NRC 137, 142 n.7 (1998).

51 See id.

52 See PPL Susquehanna LLC (Susquehanna Steam Elec. Station, Units 1 and 2), LBP-07-10, 66 NRC 1, 23 (2007); see also Seabrook, CLI-12-5, 75 NRC at 348 n. 277 (citing American Centrifuge Plant, CLI-06-10, 63 NRC at 457 ([i]t is not up to the boards to search through pleadings or other materials to uncover arguments and support never advanced by the petitioners themselves; boards may not simply infer unarticulated bases of contentions.)).

53 54 Fed. Reg. at 33,170; see also Nuclear Mgmt. Co., LLC (Palisades Nuclear Power Plant), LBP-06-10, 63 NRC 314, 341 (2006).

54 Southern Nuclear Operating Co., Inc. (Vogtle Elec. Generating Plant, Units 3 & 4), LBP-16-5, 83 NRC 259, 281 (2016) (citing Palisades, LBP-06-10, 63 NRC at 341, affd, CLI-06-17, 63 NRC 727 (2006)).

application is a contention of adequacy, whereas a contention that alleges that an application has improperly omitted information is a contention of omission.55 A contention of omission may be summarily rejected as inadmissible if (1) there is no requirement to address the topic allegedly omitted from the application, or (2) the topic that allegedly is omitted is, in fact, included in the application.56 Finally, pursuant to 10 C.F.R. § 2.335, no rule or regulation of the Commission, or any provision thereof, concerning the licensing of production and utilization facilities . . . is subject to attack . . . in any adjudicatory proceeding, in the absence of a waiver petition granted by the Commission.57 As such, the Commission has stated that a contention must be rejected where it constitutes an attack on applicable statutory requirements; it challenges the basic structure of the Commissions regulatory process or is an attack on the regulations; it is nothing more than a generalization regarding the Intervenors view of what applicable policies ought to be; it seeks to raise an issue which is not proper for adjudication in the proceeding, or it does not apply to the facility in question; or it seeks to raise an issue which is not concrete or litigable.58 The Commission and Licensing Boards have consistently found that attempts to advocate for requirements stricter than those imposed by regulation constitute collateral attacks on the 55 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 6 & 7), LBP-11-6, 73 NRC 149, 200 n. 53 (2011) (citing AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-06-16, 63 NRC 737, 742 (2006)).

56 Id. at 234-35 (citing American Centrifuge Plant, CLI-06-10, 63 NRC at 456).

57 10 C.F.R. § 2.335(a)-(b).

58 Public Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-76, 16 NRC 1029, 1035 (1982) (citing Peach Bottom, ALAB-216, 8 AEC at 20-21). See also Millstone, CLI-03-14, 58 NRC at 218 (Petitioners may not seek an adjudicatory hearing to attack generic NRC requirements or regulations, or to express generalized grievances about NRC policies) (citing Oconee, CLI-99-11, 49 NRC at 334); Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Ga.),

LBP-95-6, 41 NRC 281, 303 (1995) (noting that a contention amounting to Petitioners differing opinion of what the regulations should require must be rejected).

Commissions rules and are therefore inadmissible.59 As the Commission has stated, [o]nly statutes, regulations, orders, and license conditions can impose requirements upon applicants and licensees.60 Guidance documents are advisory by nature . . . . [and a] licensee is free either to rely on [guidance documents] or to take alternative approaches to meet legal requirements.61 While a petitioner may rely on NRC guidance documents to allege that an application is deficient, such guidance documents cannot prescribe requirements.62 Therefore, a contention that merely relies on guidance documents to advocate for additional requirements beyond what is prescribed by regulation is inadmissible.

2. Scope of License Renewal Proceedings As stated in 10 C.F.R. § 2.309(f)(1)(iii), a petitioner must demonstrate that the issue raised in the contention is within the scope of the proceeding. Any contention that falls outside the scope of the proceeding is inadmissible and must be rejected.63 The scope of a license renewal proceeding is limited to the specific matters that must be considered for the license renewal application to be granted as provided in 10 C.F.R. Part 54.64 Pursuant to 10 C.F.R. § 54.29, the following standards are considered in determining whether to grant a license renewal application:

A renewed license may be issued by the Commission up to the full term authorized by § 54.31 if the Commission finds that:

59 Seabrook, CLI-12-5, 75 NRC at 315 (citations omitted).

60 Curators of the Univ. of Missouri, CLI-95-1, 41 NRC 71, 98 (1995).

61 Curators of the Univ. of Missouri, CLI-95-8, 41 NRC 386, 397 (1995).

62 Intl Uranium (USA) Corp., LBP-98-21, 48 NRC at 143 (citing Louisiana Energy Servs., L.P.

(Claiborne Enrichment Center), LBP-95-41, 34 NRC 332, 338-39, 347, 354 (1991); Curators of the Univ.

of Missouri, CLI-95-1, 41 NRC at 100.

63 See Portland Gen. Elec. Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979); Calvert Cliffs 3 Nuclear Project, LLC & Unistar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), LBP-12-18, 76 NRC 127, 157 (2012).

64 Oyster Creek, CLI-06-24, 64 NRC at 119.

(a) Actions have been identified and have been or will be taken with respect to the matters identified in Paragraphs (a)(1) and (a)(2) of this section, such that there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB [current licensing basis], and that any changes made to the plant's CLB in order to comply with this paragraph are in accord with the Act and the Commission's regulations. These matters are:

(1) managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified to require review under § 54.21(a)(1); and (2) time-limited aging analyses that have been identified to require review under § 54.21(c).

(b) Any applicable requirements of Subpart A of 10 CFR Part 51 have been satisfied.

(c) Any matters raised under § 2.335 have been addressed.

These standards, along with other regulations in 10 C.F.R. Part 54 and the environmental regulations related to license renewal set forth in 10 C.F.R. Part 51 and Appendix B thereto (discussed infra at 23-29), establish the scope of issues that may be considered in a license renewal proceeding.65 The failure of a proposed contention to demonstrate that an issue is within the scope of the proceeding is grounds for dismissal.66 Adjudicatory proceedings on license renewal applications are bounded by the same rules and scope applicable to the NRCs review.67 65 See generally, Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943 (Dec. 13, 1991) (1991 Statement of Considerations); Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461 (May 8, 1995) (1995 Statement of Considerations).

66 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-05-24, 62 NRC 551, 567 (2005).

67 Turkey Point, CLI-01-17, 54 NRC at 10 (Adjudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review; for our hearing process (like our Staffs review) necessarily examines only the [safety] questions our safety rules make pertinent.) (citation omitted).

3. Subsequent License Renewal Proceedings The AEA provides no limit on the number of times that a nuclear power plants operating license may be renewed; rather, Section 103(c) of the AEA provides that each license shall be issued for a specified period, as determined by the Commission, depending on the type of activity to be licensed, but not exceeding forty years . . . and may be renewed upon the expiration of such period.68 Likewise, the Commissions regulations do not limit the number of times that an operating license may be renewed. The NRC has long recognized the possibility that nuclear power plant licensees might seek to extend their operating licenses to permit plant operation beyond 60 years, i.e., after the expiration of a renewed license. Prior to 1991, the Commissions regulations provided only that operating licenses may be issued for up to 40 years and may be renewed by the Commission upon the expiration of the period.69 Upon adopting 10 C.F.R. Part 54 in 1991, the Commission expressly provided in 10 C.F.R. § 54.31(d) that [a] renewed license may be subsequently renewed upon expiration of the renewal term, in accordance with all applicable requirements.70 Except for the 1995 deletion of the apparently unnecessary phrase upon expiration of the renewal term, this provision is still in effect.71 In determining which requirements are applicable to subsequent license renewal, the Commissions statements in adopting the license renewal rules in 1991 are instructive.

Specifically, in responding to comments regarding proposed 10 C.F.R. § 54.31(d), the Commission stated:

68 Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2133.c.

69 10 C.F.R. § 50.51 (1991).

70 10 C.F.R. § 54.31(d) (1992). This provision has continued in effect, with minor revisions, until the present.

71 10 C.F.R. § 54.31(d) (2018) (A renewed license may be subsequently renewed in accordance with all applicable requirements.). This revision of the regulation was promulgated without any explanatory discussion. See Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. at 22,494.

Section 54.31(d) allows a renewed license to be further renewed upon expiration of the renewal term. . . . [A] subsequent renewal application may be submitted prior to expiration of the previous renewal term. . . . However, § 54.31(d) makes clear that a renewed license may be further renewed in accordance with applicable requirements, which would include the provisions of part 54 (unless the Commission subsequently adopts special provisions applicable only to subsequent renewals). . . .

Another commenter observed that the concept of subsequent renewals is not developed in the supporting documentation for the proposed rule. The Commission does not believe that further exposition of this concept is necessary at this time. If experience with renewals discloses a previously unknown aging or other time-dependent issue, appropriate regulatory action, including modifying the requirements for obtaining subsequent renewals, can be implemented.

Further discussions of the concept are not likely to be fruitful at this time.[72]

Notably, the license renewal regulations adopted in 1991 contain no specific requirements that are unique to subsequent license renewal and no such provisions have been adopted at any time since the license renewal regulations were enacted.73 Similarly, the requirements in 10 C.F.R. Part 51, including the Commissions findings on the scope and magnitude of the environmental impacts of renewing nuclear power plant operating licenses set forth in Subpart A, Table B-1, also apply to subsequent license renewal.74 72 Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943 at 64,964-65 (Dec. 13, 1991) (emphasis added).

73 See Frequently Asked Questions on License Renewal of Nuclear Power Reactors, NUREG-1850, Question 1.3.10 (Mar. 2006) (ML061110022) (There are no specific limitations in the Atomic Energy Act or the NRCs regulations restricting the number of times a license may be renewed. However, an applicant has to meet all of the applicable requirements for each subsequent renewal. Any subsequent renewal would require a review similar to that required for the first renewal.).

74 Although 10 C.F.R. § 51.53(c)(3) states that an applicant for an initial renewed license must submit certain information in its environmental report, no similar language appears in any other provision of 10 C.F.R. Part 51 or Part 54, and this word is not discussed in the Statement of Considerations (SOC) accompanying the final rule. See [Final Rule] Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (Jun. 5, 1996). The term initial was consistent with the SOC accompanying the proposed rule. See

[Proposed Rule] Environmental Review for Renewal of Operating Licenses, 56 Fed. Reg. 47,016, 47,017 (Sept. 17, 1991) (The Part 54 rule could be applied to multiple renewals of an operating license for various increments. However, the part 51 amendments apply to one renewal of the initial license for up to 20 years beyond the expiration of the initial license.). As discussed infra at 20-22, the Commission has determined and expressed its intent that the existing license renewal safety and environmental regulatory framework applies to subsequent license renewal and that no new rulemaking for SLR is needed.

No requirements related to review of environmental impacts have been adopted by the Commission for subsequent license renewal beyond those pertaining to license renewal.75 The Commissions conclusion not to engage in further rulemaking was made after consideration of Staff views. In 2014, Staff submitted SECY-14-0016 to the Commission.76 Therein, Staff provided its assessment of the license renewal regulatory process and regulations and presented four options for consideration by the Commission regarding potential regulatory approaches to subsequent license renewal:

Option 1: No change to the existing 10 C.F.R. Part 54 regulations Option 2: Minor clarifications to existing 10 C.F.R. Part 54 regulations for current and subsequent renewals Option 3: Update 10 C.F.R. Part 54 regulations for current and subsequent renewals and pursue Option 2 clarifications Option 4: Pursue rulemaking for subsequent renewal-specific changes and Option 2 and 3 changes.[77]

75 The 1996 Generic Environmental Impact Statement observed that [o]perating licenses may be renewed for up to 20 years beyond the 40-year term of the initial license. No limit on the number of renewals is specified. Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437, Vol. 1 (May 1996) (ML040690705) (GEIS or 1996 GEIS),

at 1-1. Similarly, the 2013 revision of the GEIS noted:

The Atomic Energy Act of 1954 authorizes the U.S. Nuclear Regulatory Commission (NRC) to issue commercial nuclear power plant operating licenses for up to 40 years.

The 40-year length of the original license period was imposed for economic and antitrust reasons rather than the technical limitations of the nuclear power plant. NRC regulations allow for the renewal of these operating licenses for up to an additional 20 years, depending on the outcome of an assessment determining whether the nuclear power plant can continue to operate safely and protect the environment during the 20-year period of extended operation. There are no specific limitations in the Atomic Energy Act or the NRCs regulations restricting the number of times a license may be renewed.

Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437, Vol 1, Rev. 1 (June 2013) (ML13106A241) (Revised GEIS or 2013 GEIS), at 1-1.

76 Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal, SECY-14-0016 (Jan. 13, 2014) (ML14050A306) (SECY 0016).

77 See id. at 5-7.

Upon evaluating these options, the Staff recommended that the Commission select Option 4, stating:

The staff recommends the Commission direct the staff to begin the rulemaking process to address all of the proposed topics in Option 4. Addressing these topics through rulemaking would provide additional assurance that aging-management activities would be effectively implemented and provide regulatory clarity, transparency, stability, and efficiency by defining requirements at the outset of the subsequent license renewal process rather than on a case-by-case basis during license renewal reviews.[78]

In addition, with respect to environmental matters, Staff stated that it conducts environmental reviews of license renewal applications:

following the guidance in NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants [Rev. 1]. The GEIS describes the most common environmental impacts to nuclear power facilities and allows applicants and the NRC to focus on important environmental issues specific to each site pursuing license renewal.

The staff revised the GEIS in June 2013, and believes that the update is adequate for a future subsequent license renewal application.[79]

78 SECY-14-0016 at 9 (emphasis added).

79 Id. at 3 (citing 2013 GEIS, Vols. 1-3) (emphasis added). In June 2013, the NRC amended its environmental protection regulations by updating the Commissions 1996 findings on the environmental effect of renewing a nuclear power plant operating license, redefin[ing] the number and scope of environmental impact issues that must be addressed by the NRC and applicants. [Final Rule] Revisions to Environmental Review for Renewal of Nuclear Power Plant Licenses, 78 Fed. Reg. 37,282 (Jun. 20, 2013). The draft and final versions of the Regulatory Analysis prepared to support the rulemaking both noted that the NRC anticipated that it would receive applications for a second 20-year license renewal. , Regulatory Analysis, to SECY-09-0034, Proposed RulemakingEnvironmental Protection regarding the Update of the 1996 [GEIS] for Nuclear Power Plant License Renewal (Mar.3, 2009)

(ML083460087) (Draft Regulatory Analysis) at 15 (Some plants will become eligible for a second 20-year license extension after FY 2013. . .The NRC conservatively estimates receiving 4 applications per year from FY 2014 through FY 2020.); Enclosure 2, Regulatory Analysis, to SECY-12-0063, Final Rule: Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses (Apr.

4, 2012) (ML110760321) (Final Regulatory Analysis) at 25 (Some plants will become eligible for a second 20-year license extension after FY 2013. . . The NRC estimates that a total of 30 license renewal applications (including applications for a second license renewal) will be received in the 10-year cycle following the effective date of the rule.). Similarly, the notice of issuance of the revised GEIS and Staff review guidance stated, Revision 1 to the GEIS is intended for use by license renewal applicants and the NRC staff, that the revised GEIS provides the technical basis for amending Part 51, and that certain environmental impact issues for consideration in license renewal environmental reviews were found to be generic to all plant sites. License Renewal of Nuclear Power Plants; Generic Environmental Impact Statement and Standard Review Plans for Environment Reviews, 78 Fed. Reg. 37,325 (Jun. 20, 2013).

Thus, these documents also indicate the NRCs intent to apply its existing regulatory framework for consideration of the environmental impacts of license renewal to all nuclear power plant license renewal applicants, including SLR applicants.

On August 29, 2014, the Commission issued its Staff Requirements Memorandum (SRM) in response to SECY-14-0016.80 Therein, the Commission declined to approve the Staffs recommendation to initiate Part 54 rulemaking for subsequent license renewal. Rather, the Commission directed the Staff to (1) continue to update license renewal guidance, as needed, to provide additional clarity on the implementation of the license renewal regulatory framework; (2) address emerging technical issues and operating experience through alternative vehicles (e.g., issuance of generic communications, voluntary industry initiatives, or updates to NUREG-1801 [the GALL Report];81 (3) implement inspection enhancements identified in the Reactor Oversight Process Enhancement Project related to aging management; (4) implement the Inspection Procedure (IP) Operating Experience (OpE) Update Process; and (5) keep the Commission informed on various specified matters and emphasize to industry the need for resolution of these issues prior to review of any subsequent license renewal application.82 Both before and after issuance of the Commissions SRM, Staff met with industry and other interested stakeholders to discuss issues related to subsequent license renewal, acted upon the Commissions instructions, and briefed the Commission on its progress in addressing issues related to subsequent license renewal issues.83 The Staff also updated its regulatory 80 See Staff Requirements - SECY-14-0016 - Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal (Aug. 29, 2014)

(ML14241A578) (SRM-SECY-14-0016).

81 Guidance concerning the preparation and review of initial license renewal applications is provided in Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants, NUREG-1800, Rev. 2 (Dec. 2010) (ML103490036) (SRP-LR), and Generic Aging Lessons Learned (GALL) Report, NUREG-1801, Rev. 2, (Dec. 2010) (ML103490041).

82 See SRM-SECY-14-0016 at 1.

83 See, e.g., [Commission] Briefing on the Status of Subsequent Licensing Renewal Preparations (Apr. 26, 2017), Transcript (ML17118A300) (2017 Briefing Transcript). During the briefing Chairman Svinicki noted that in 2014 the Commission disapproved the staffs proposal that we undertake rulemaking . . . . And the Commission, at that time, . . . validated that the current framework was the right framework for follow-on . . . license renewal reviews. Tr. at 52.

guidance to specifically address subsequent license renewal and issued the GALL-SLR Report, a content guide for applications for renewal of initial renewed operating licenses,84 and the SRP-SLR, 85 the companion document that provides criteria for Staff review of SLRAs.86 The Federal Register notice of issuance of these documents indicated that guidance documents for the first license renewal (i.e., for operation from 40 to 60 years) were revised to reflect aging differences for operation from 60 to 80 years, to consider new operating experience, and to incorporate changes previously issued as Interim Staff Guidance (ISG).87 In sum, neither the AEA nor the Commissions regulations limit the number of times that a nuclear power plants operating license may be renewed. The regulations in 10 C.F.R.

Parts 51 and 54 establish the applicable requirements for nuclear power plant license renewals.

Petitioners expert, David Lochbaum, also spoke at this briefing and was likely present when Staff and their research partners at DOE discussed NRC research to confirm the adequacy of the safety basis for SLR and refinement of aging management programs, particularly with respect to four technical issuesreactor pressure vessel, vessel internals, concrete, and electrical cables.

See, e.g., Tr. at 2, 30-34 (Lochbaum); Tr. at 7, 10 (Reister, DOE) (stating that the expanded material degradation assessment focusing on reactor vessel pressure, core internals, concrete, and electrical cables is a joint DOE and NRC research effort and that [n]o technical showstoppers to long-term operation have been identified through this research). Tr. at 66-72 (Hiser, NRC) (indicating SLR applicants need to address technical issues that are not resolved generically on a plant-specific basis, noting confirmatory research being done by NRC, and describing refinements in SLR guidance documents); Tr. at 72-77 (Thomas, NRC) (providing status of confirmatory research supporting SLR regulatory decision-making focusing on the four technical issues and noting that progress in these four research areas has resulted in enhanced aging management programs that are addressed in subsequent license renewal guidance documents).

84 Generic Aging Lessons Learned for Subsequent License Renewal Report, NUREG-2191, Vols. 1 and 2 (July 2017) (ML17187A031 and ML17187A204) (GALL-SLR).

85 Standard Review Plan for Review of Subsequent License Renewal Applications for Nuclear Power Plants, NUREG-2192 (July 2017) (ML17188A158) (SRP-SLR).

86 See Final Guidance Documents for Subsequent License Renewal, 82 Fed. Reg.

32,588 (July 14, 2017). Subsequently, Staff noticed the issuance of NUREG-2222, Disposition of Public Comments on the Draft Subsequent License Renewal Guidance Documents NUREG-2191 and NUREG-2192, (Dec. 2017) (ML17362A143), and NUREG-2221, Technical Bases for Changes in the Subsequent License Renewal Guidance Documents NUREG-2191 and NUREG-2192 (Dec. 2017) (ML17362A126). Supplementary Guidance Documents for Subsequent License Renewal, 83 Fed. Reg. 16,133 (Apr. 13, 2018).

87 Final Documents for Subsequent License Renewal, 82 Fed. Reg. at 32,588.

As the Commission made clear in 2014, the existing license renewal regulatory framework and regulatory process also apply to subsequent license renewal. This framework and process as set out in 10 C.F.R. Parts 51 and 54 are supported by guidance in (1) the SRP-SLR,88 (2) the GALL-SLR Report,89 (3) the Revised GEIS,90 and (4) the Standard Review Plans for Environmental Reviews for Nuclear Power Plants (ESRP-LR).91 Additional guidance for the preparation of an SLRA is provided in industry developed materials, which the NRC Staff approved for interim use on December 20, 2017.92 Indeed, these are the regulatory requirements and guidance documents that will primarily frame the Staffs evaluation of the Peach Bottom SLRA.93 88 See SRP-SLR, NUREG-2192 (ML17188A158).

89 See GALL-SLR Report, NUREG-2191, Vols. 1 and 2 (ML17187A031 and ML17187A204).

90 See Revised GEIS, NUREG-1437, Vols. 1-3 (ML13106A241, ML13106A242, and ML13106A244).

91 See Standard Review Plans for Environmental Reviews for Nuclear Power Plants, NUREG-1555, Supp. 1, Rev. 1 (June 2013) (ML13106A246) (ESRP-LR).

92 See Industry Guideline for Implementing the Requirements of 10 CFR Part 54 for Subsequent License Renewal, NEI-17-01 (Dec. 2017) (ML17339A599); Model SLR New and Significant Assessment Approach for SAMA, Revision 0, NEI 17-04, Rev. 0 (June 2017)

(ML17181A470).

93 The Commission recently summarized these matters as follows:

In August 2014, the Commission affirmed that no revisions to either the safety or environmental regulations are needed to support the assessment of a SLR application.

However, the Commission directed the staff to update license renewal guidance, as needed, to provide additional clarity on the implementation of the license renewal regulatory framework. . . .

The staff determined that no revisions were needed to the NRC guidance document entitled, Standard Review Plans for Environmental Reviews for Nuclear Power Plants, to support environmental reviews from 60 to 80 years. However, the staff determined that the GALL Report and the SRP-LR should be updated to facilitate more effective and efficient reviews of SLR applications.

Letter from Kristine L. Svinicki (Chairman, NRC) to Hon. John A. Barrasso (Chairman, U.S. Sen.

Committee on Environment and Public Works) (July 19, 2018) (ML18170A241) and Enclosure to Letter from Kristine L. Svinicki (Chairman, NRC) to Hon. John A. Barrasso (Chairman, U.S. Sen. Committee on Environment and Public Works), at 45-46 (July 19, 2018) (ML18170A284) (Barrasso Letter Enclosure).

4. Safety Review of License Renewal and SLRAs For a license renewal application, NRC conducts a safety review pursuant to 10 C.F.R.

Part 54 to assure that pertinent public health and safety requirements have been satisfied.94 Regardless of whether or not a license renewal application has been filed for a facility, the Commission has a continuing responsibility to oversee the safety and security of ongoing plant operations, and it routinely oversees a broad range of operating issues under its statutory responsibility to assure the protection of public health and safety for operations under existing operating licenses.95 Therefore, for license renewal, the Commission has found it generally unnecessary to include a review of issues already monitored and reviewed in ongoing regulatory oversight processes.96 Rather, the NRCs license renewal safety review focuses on plant systems, structures, and components [SSC] for which current [regulatory] activities and requirements may not be sufficient to manage the effects of aging in the period of extended operation.97 As such, the safety review of an SLRA is focused on the detrimental effects of aging posed by long-term reactor operation.98 To that end, SLR applicants must demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the CLB [current licensing basis] for the period of extended operation.99 94 See Turkey Point, CLI-01-17, 54 NRC at 6.

95 See id. at 8.

96 Id. at 9-10 (holding that [i]ssues like emergency planning - which already are the focus of ongoing regulatory processes - do not come within the NRC's safety review at the license renewal stage); accord, Millstone, CLI-05-24, 62 NRC at 565, 567.

97 Turkey Point, CLI-01-17, 54 NRC at 10 (quoting 60 Fed. Reg. at 22,469).

98 Seabrook, CLI-12-5, 75 NRC at 303 (citing New Jersey Envtl. Fedn v. NRC, 645 F.3d 220, 224 (3d Cir. 2011)).

99 10 C.F.R. § 54.21(a)(3).

The Staffs safety review of a SLRA is primarily guided by the SRP-SLR and the GALL-SLR Report.100 The SRP-SLR defines ten elements for an acceptable aging management program (AMP).101 With respect to the tenth element, operating experience, the SRP-SLR states that a program that adequately manages the effects of aging should address (1) currently available operating experience for existing AMPs, (2) changes to any existing AMP during the first period of extended operation, (3) currently available research and development applicable to new AMPs, and (4) future plant-specific and industry operating experience.102 The Staffs review of an AMP includes an assessment of an applicants commitment to evaluate future operating experience to ensure that AMPs are either enhanced or new AMPs are developed, as appropriate.103 The GALL-SLR Report identifies generic aging management programs that the Staff has determined to be one acceptable way to manage aging effects for SLR.104 An SLRA may rely on an AMP that is consistent with the GALL-SLR Report or an SLRA may use a plant-specific AMP.105 A conclusion by the Staff that an AMP is consistent with the GALL-SLR Report 100 See Seabrook, CLI-12-5, 75 NRC at 304. In Seabrook, the Commission noted that

[i]n reviewing license renewal applications, the NRC is guided primarily by two documents - the Generic Aging Lessons Learned (GALL) Report and the License Renewal Standard Review Plan. Id. As discussed supra at 20-21, the Staff updated the GALL Report and the SRP for review of SLRAs. As such, the Commissions statement in Seabrook remains apposite to the extent that safety review of SLRAs is now primarily guided by the updated GALL Report (the GALL-SLR) and the updated SRP (the SRP-SLR).

101 SRP-SLR, NUREG-2192, at A.1-3 to A.1-10 (ML17188A158). The ten elements of an acceptable AMP are: (1) scope, (2) preventative actions, (3) parameters monitored or inspected, (4) detection of aging effects, (5) monitoring and trending, (6) acceptance criteria, (7) corrective actions, (8) confirmation process, (9) administrative controls, and (10) operating experience. Id.

102 Id. at A.1-9. The SRP-SLR further indicates that applicants should commit to future review of plant-specific and generic industry operating experience. Consideration of future operating experience may confirm the effectiveness of the AMPs, identify areas to enhance the AMPs, and suggest a need to develop new AMPs. Id.

103 Id. at A.1-11.

104 See GALL-SLR Report, NUREG-2191, Vol. 2 at xli (ML17187A204).

105 SRP-SLR, NUREG-2192, at 1.2-4 (ML17188A158).

amounts to acceptance of the applicants commitment to implement that AMP.106 In such circumstances the commitment itself constitutes an adequate demonstration of reasonable assurance that effects of aging will be managed in accordance with § 54.29(a)(1).107 However, relying on an AMP in the GALL-SLR Report as part of an SLRA does not insulate that program from litigation where the challenge is adequately supported.108

5. Environmental Review of License Renewal and SLRAs The National Environmental Policy Act of 1969, as amended (NEPA), 42 U.S.C. § 4321 et seq., requires Federal agencies to include in any recommendation or report on proposals for major Federal actions significantly affecting the quality of the human environment, a detailed statement on:

(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of mans environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.[109]

In accordance with NEPA, the NRC is required to take a hard look at the environmental impacts of a proposed major Federal action that could significantly affect the environment, in 106 See Seabrook, CLI-12-5, 75 NRC at 304 (citing Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 36 (2010); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 467-68 (2008)).

107 See id.

108 See id. at 315 (reversing the Boards admission of a contention that challenged an AMP where the intervenors [a]t bottom,ask the agency to impose a burden greater than the requirement imposed by section 54.21(a)(3) to adequately manage[ ] aging effects).

109 NEPA, § 102(2)(C), 42 U.S.C. § 4332(2)(C) (1975).

addition to reasonable alternatives to that action.110 This hard look is tempered by a rule of reason that requires agencies to address only impacts that are reasonably foreseeablenot remote and speculative.111 As such, the Commission has observed, NEPA requires consideration of reasonable alternatives, not all conceivable ones.112 Further, the Commission has stated that NEPA does not call for certainty or precision, but an estimate of anticipated (not unduly speculative) impacts.113 Neither does NEPA call for Federal agencies to do the impossible.114 The Commission has noted that NEPA gives agencies broad discretion to keep their inquiries within appropriate and manageable boundaries.115 Indeed, the NRC Staffs EISs need only discuss those alternatives that . . . will bring about the ends of the proposed actiona principle equally applicable to Environmental Reports.116 The NRC has adopted regulations implementing its NEPA responsibilities in 10 C.F.R.

Part 51, under which the Staff performs an environmental review for license renewal to assess the potential impacts of 20 additional years of operation.117 In 1996, the Commission amended 110 See Louisiana Energy Servs, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 87-88 (1998).

111 See, e.g., Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-156, 6 AEC 831, 836 (1973).

112 Seabrook, CLI-12-5, 75 NRC at 338 (citing Natural Res. Defense Council, Inc. v. Morton, 458 F.2d 827, 834, 837, 838 (D.C. Cir. 1972)).

113 Louisiana Energy Servs, L.P. (National Enrichment Facility), CLI-05-20, 62 NRC 523, 536 (2005) (emphasis in original).

114 The Supreme Court has observed that where it is not possible for an agency to analyze the environmental consequences of a proposed action or alternatives to it, requiring such analysis would have no factual predicate. Kleppe v. Sierra Club, 427 U.S. 390, 401-02 (1976).

Under those circumstances an Environmental Impact Statement (EIS) is not required. See id.

115 Claiborne Enrichment Center, CLI-98-3, 47 NRC at 103 (citing South Louisiana Envtl. Council, Inc. v. Sand, 629 F.2d 1005, 1011 (5th Cir. 1980)).

116 Seabrook, CLI-12-5, 75 NRC at 339 (citations omitted).

117 Turkey Point, CLI-01-17, 54 NRC at 6-7.

the environmental review requirements in 10 C.F.R. Part 51 to address the scope of environmental review for license renewal applications.118 As part of that rulemaking, Appendix B was added to Part 51, delineating the issues that are to be considered in a license renewal environmental review.119 The regulations in Part 51 and Appendix B were further amended in 2013, updating the Commissions 1996 findings. In particular, the 2013 amendment redefined the number and scope of the environmental impact issues that must be addressed during license renewal environmental reviews and incorporated lessons learned and knowledge gained during previous license renewal environmental reviews.120 The regulations in 10 C.F.R. Part 51, Appendix B divide the license renewal environmental review into (1) generic issues (designated Category 1 issues) and (2) plant-specific issues (designated Category 2 issues). The generic impacts of operating a plant for an additional 20 years that are common to all plants, or to a specific subgroup of plants, were addressed in the Revised GEIS.121 The findings and analyses contained in the Revised GEIS were used by the Commission as the technical basis for its revisions of 10 C.F.R. Part 51, defining the scope of its review of the environmental impacts of license renewal under NEPA.

A license renewal applicant is generally not required to discuss generic Category 1 issues in its Environmental Report, but instead may reference and adopt the Commissions 118 See Environmental Review of Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996).

119 The 1996 rule added Appendix B to Subpart A of 10 C.F.R. Part 51, which included Table B-1, Summary of Findings on NEPA Issues for License Renewal of Nuclear Power Plants that summarized the findings of the 1996 GEIS.

120 See Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 78 Fed. Reg. 37,282 (Jun. 20, 2013). The notice describes the 2013 GEIS a being both an update and a re-evaluation of the potential environmental impacts arising from the renewal of an operating license for . . . an additional 20 years. Id. at 37,285.

121 See 2013 GEIS, NUREG-1437, Vols. 1-3.

generic findings set forth in 10 C.F.R. Part 51 and the Revised GEIS.122 In addition, pursuant to 10 C.F.R. § 51.53(c)(iv), an applicants environmental report must contain any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware.123 Thus, an applicant must provide a plant-specific review of the non-generic Category 2 issues in its Environmental Report, and must address any new and significant information that might render the Commissions generic Category 1 determinations incorrect in that proceeding.124 The Staffs environmental review for a license renewal is guided by the Revised GEIS125 and the ESRP-LR.126 Like the applicant, the Staff is not required to address generic Category 1 impacts in its plant-specific environmental impact statement, which it publishes as a supplement to the GEIS (SEIS). 127 However, the Staff must address any new and significant information of which it becomes aware that might affect the applicability of the Commissions generic Category 122 See Turkey Point, CLI-01-17, 54 NRC at 11. The Commission has emphasized that generic analysis is an appropriate method of meeting the agency's statutory obligations under NEPA. Entergy Nuclear Generation Co & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), Entergy Nuclear Vermont Yankee, LLC, & Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), CLI-09-10, 69 NRC 521, 523-25 (2009) (citing Massachusetts v. NRC, 522 F.3d 115 (1st Cir. 2008)).

123 10 C.F.R. § 51.53(c)(3)(iv) (2018).

124 See, e.g., Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),

CLI-13-07, 78 NRC 199, 212-13 (2013); Pilgrim Nuclear Power Station, CLI-09-10, 69 NRC at 527; Turkey Point, CLI-01-17, 54 NRC at 11-12.

125 See 2013 GEIS, NUREG-1437, Vols. 1-3.

126 ESRP-LR, NUREG-1555, Supp. 1, Rev. 1.

127 The 1996 GEIS identified 92 license renewal environmental issues, of which 69 were determined to be generic (Category 1), 21 were determined to be plant-specific (Category 2), and two did not fit into either category (uncategorized). See GEIS, NUREG-1437, Vol. 1, Table 9.1 (ML040690705). The 2013 revision to the GEIS modified this list, identifying 78 environmental impact issues for license renewal, of which 59 were determined to be generic (Category 1), 17 were determined to be plant-specific (Category 2), and two did not fit into either category (uncategorized). See Revised GEIS, Vol. 1, at 1-36 (ML13106A241). The findings of the environmental impact analyses conducted for the 2013 GEIS are listed in Table B-1 of Appendix B, which lists each issue and its category level. See id. at Appendix B, Table B-1.

1 determinations in the proceeding.128 Following publication of a site-specific supplement to the GEIS, further supplementation is required only if there are significant new circumstances or information . . . [that] paint[ ] a dramatically different picture of impacts compared to the description of impacts in the EIS.129 Contentions raising environmental issues in a license renewal proceeding are limited to those issues that are affected by license renewal and have not been addressed by rulemaking or on a generic basis.130 As the Commission stated, Category 1 issues are not subject to site-specific review and thus fall beyond the scope of individual license renewal proceedings.131 Thus, the Commission has found that where a generic environmental analysis has been incorporated into a regulation, the conclusions of that analysis may not be challenged in litigation unless the rule is waived by the Commission for a particular proceeding or the rule itself is suspended or altered in a rulemaking proceeding.132 128 See, e.g., Limerick, CLI-13-07, 78 NRC at 216-17; Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-16-8, 83 NRC 417, 439-40 (2016).

129 Massachusetts v. NRC, 708 F.3d 63, 68-69 (1st Cir. 2013) (quoting Town of Winthrop

v. FAA, 535 F.3d 1, 7, 12 (1st Cir. 2008)); accord, Limerick, CLI-13-07, 78 NRC at 211, 216-17.

The Commission has also indicated that such information must present a seriously different picture of the environmental impact of the proposed action from what was previously envisioned.

Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 167-68 (2011) (citing Hydro Resources, Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 871200), CLI-99-22, 50 NRC 3, 14 (1999)).

130 Turkey Point, CLI-01-17, 54 NRC at 11-12.

131 Id. at 12; see also 10 C.F.R. § 51.53(c)(3)(i)-(ii) (2018). In Turkey Point, the Commission recognized that the rules provide a number of opportunities for individuals to alert the Commission to new and significant information that might render a generic finding invalid, either with respect to all nuclear power plants or for one plant in particular. 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." Turkey Point, CLI-01-17, 54 NRC at 12. No request for waiver has been requested by Petitioner here.

132 Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-07-03, 65 NRC 13, 17-18 (footnotes omitted), reconsid.

denied, CLI-07-13, 65 NRC 211, 214-15 (2007). This approach has been found to comply with NEPA. See, e.g., Massachusetts v. NRC, 708 F.3d 63, 68-69 (1st Cir. 2013).

B. Analysis of Proffered Contentions Petitioner proffers one safety contention and one environmental contention for litigation in this proceeding. Appended to the Petition as Attachment 4 is a declaration and report by Petitioners expert, David A. Lochbaum, and his resume.133 As discussed below, the Staff objects to the admission of Contentions 1 and 2 because they do not meet the admissibility criteria in 10 C.F.R. § 2.309(f) and should not be admitted absent the grant of a petition for waiver or exception under 10 C.F.R. § 2.335.

1. Contention 1: Failure to Satisfy NRC Regulations for Aging Management Programs Exelons subsequent license renewal application fails to comply with NRC safety regulation 10 C.F.R. § 54.21(a)(3), nor does it meet the NRCs standards for renewal of an operating license in 10 C.F.R. §§ 54.29(a)(1) and 54.31(a)(1)[sic],134 because its aging management programs for the subsequent license renewal term do not address any of the following issues:

(a) The degree to which Exelons aging management programs depend on external operating experience, (b) How Exelon will determine what amount of operating experience information is sufficient, and (c) How operating experience will be augmented if it is deemed insufficient.

Exelons license for Peach Bottom Units 2 and 3 should not be renewed until these actions have been taken.[135]

133 See Declaration of David A. Lochbaum (Nov. 16, 2018) (Lochbaum Declaration) and appended Proposed Subsequent License Renewal of Peach Bottom Units 2 and 4: Exelons Aging Management Programs Fail to Provide Adequate Measures for Consideration of Operating Experience Throughout the Period of Extended Operation: A Report By David A. Lochbaum Prepared for Beyond Nuclear, Inc. (Nov. 16, 2018) (Lochbaum Report).

134 There is no regulation at 10 C.F.R. § 54.31(a)(1), and 10 C.F.R. § 54.31(a), which requires a renewed license to be of the class for which the operating license or combined license currently in effect was issued, does not appear relevant. The Staff believes that Petitioner intended to refer to 10 C.F.R. § 54.21(a)(1).

135 Petition at 4.

Staff Response to Contention 1 Petitioners sole basis for this contention is the Lochbaum Report, which it adopts by reference and incorporates into [its] contention.136 The Lochbaum Report asserts that the operating licenses for Peach Bottom Units 2 and 3 should not be renewed until the subsequent license renewal application is revised to discuss the role of operating experience in aging management as specified by the three items in Contention 1. The goal of the contention is to impose requirements not included in the regulations to address a posited potential decline in operating experience and to ensure that the application provides a basis to require harvesting of materials in permanently shut down reactors.137 Because the contention seeks to impose new requirements not included in the cited regulations, it is outside the scope of this proceeding contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(iii), and constitutes an attack on the adequacy of current regulations, which is not permitted in adjudicatory proceedings except under the provisions of 10 C.F.R. § 2.335(b).138 In addition, Petitioner fails to demonstrate that the items listed are material to findings the NRC must make.139 Finally, the basis for this contention is unsupported speculation about potential future events, which fails to provide adequate support or sufficient information to show a genuine dispute with the applicant on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(v) and (vi).

a. Contention 1 Is Out of Scope and Constitutes an Impermissible Challenge to the Commissions Regulations_______________

Contentions that seek to impose requirements that go beyond the regulations are inadmissible in adjudicatory proceedings both because they are outside the scope of the 136 See Petition at 4.

137 See Lochbaum Report at 31-41.

138 10 C.F.R. § 2.335(a)-(b).

139 See 10 C.F.R. § 2.309(f)(1)(iv).

proceeding as required by 10 C.F.R. § 2.309(f)(1)(iii) and because they are explicitly barred by 10 C.F.R. § 2.335(a).140 A collateral attack on Commission rules or regulations or a contention that merely seeks to advance generalizations regarding a petitioners particular view of what applicable policies ought to be is not admissible.141 Members of the public who wish to draw the Commissions attention to potential regulatory improvements have other means of doing so, such as filing a petition for rulemaking under 10 C.F.R. § 2.802. But the scope of contentions that may be admitted in a license renewal proceeding is limited by the nature of the application and pertinent Commission regulations.142 Through Contention 1, as circumscribed by its basis statement, Petitioner in essence seeks to increase the requirements of 10 C.F.R. §§ 54.21(a)(1), (a)(3) and 54.29. Petitioner believes that these regulations should require that an application include the listed items concerning operating experience in order to demonstrate that the plants aging management programs will manage aging of the specified structures, systems and components.143 However, Contention 1 points to no statement in the regulations that expressly requires the information it specifies. The term operating experience is not mentioned in Part 54, but is one of the 10 elements listed in NRC guidance concerning the attributes of an NRC aging management program.144 Although Staff does not dispute that operating experience can inform licensee activities or programs to manage aging, the premise for the contention is grounded upon the 140 Parties may petition the Commission to waive the application of a specific rule in an adjudicatory proceeding pursuant to 10 C.F.R. § 2.335(b). No such petition has been received in this case.

141 PPL Susquehanna LLC (Susquehanna Steam Elec. Station, Units 1 & 2), CLI-07-25, 66 NRC 101, 106 (Oct. 5, 2007) (citation and internal quotation marks omitted) 142 Policy on Conduct of Adjudicatory Proceedings; Policy Statement, 63 Fed. Reg.

41,872, 41,874 (Aug. 5, 1998).

143 Petition at 4-5.

144 GALL-SLR, Vol. 1, at xxxiv.

unsupported and conclusory assertion that the amount of reactor operating experience could be significantly reduced and that elucidation of the stated items is required for regulatory compliance.145 The Lochbaum Report repeatedly misstates requirements and conflates guidance documents with regulations. The regulations cited in Contention 1 make no reference to operating experience. Instead, 10 C.F.R. § 54.21(a)(3) requires a license renewal application to demonstrate that the effects of aging will be adequately managed [for structures and components identified in 10 C.F.R. § 54.21(a)(1)] so that the intended function(s) will be maintained consistent with the [current licensing basis] for the period of extended operation.

Section 54.21(a)(1) requires an application to identify and list structures and components subject to an aging management review and 10 C.F.R. § 54.29(a)(1) requires that a renewed license may issue if the Commission, in part, finds that actions have been identified and have been or will be taken with respect to managing the effects of aging during the period of extended operation such that there is reasonable assurance that activities authorized by the renewed license will continue to be conducted in accordance with the current licensing basis.146 Citing the GALL-SLR Report, Interim Staff Guidance, a Standard Review Plan, and an Inspection Procedure, the Lochbaum Report asserts that the NRC requires discussion of operating experience in license renewal applications.147 For example, the report states that:

The NRC also requires consideration of operating experience in the context of license renewal. Operating experience during the initial license term must be considered in a license renewal application; and ongoing consideration of operating experience must be included in an applicants aging management plan . . . Since issuance of [an Interim Staff Guidance document], the NRC has mandated that reactor operating license 145 Petition at 5.

146 As noted above, Petitioners cite to 10 C.F.R. § 54.31(a)(1) appears to be erroneous.

147 Lochbaum Report at 7-12.

renewal applications must expressly describe how operating experience will be used on an ongoing basis.148 Each use of must, mandated and requires is incorrect. The NRC has never mandated that operating experience be discussed in a license renewal application, nor could such a mandate be issued in the form of a guidance document. NRC guidance in the GALL-SLR Report does suggest that applicants for subsequent license renewal include operating experience as one of the program elements to show the technical adequacy of AMPs for compliance with the above-cited aging management regulations.149 If applicants adopt AMPs listed in the GALL-SLR Report, applicants should confirm that plant-specific conditions and operating experience are bounded by the conditions and operating experience for which the GALL-SLR program was evaluated; if not, the applicant should augment AMPs as needed in order to be within the GALL-SLR guidance.150 However, as with all NRC guidance documents, the recommendations in the GALL-SLR are not requirements, and, as stated in the document itself, [t]he use of the GALL-SLR Report is not required.151 The heart of Contention 1 is a claim that the agency should require additional discussion of the availability of operating experience in the SLRA, in essence increasing what is required by 10 C.F.R. §§ 54.21(a)(1) and (a)(3), and 54.29(a)(1).152 A similar contention was found 148 Lochbaum Report at 7-8 (emphasis added).

149 The applicant has chosen to follow the GALL-SLR guidance. See SLRA at A-10, B-6 (describing how operating experience is captured, reviewed and used to enhance AMPs if appropriate).

150 GALL-SLR at xli.

151 Id. (stating that the GALL-SLR Report contains one acceptable way to manage aging effects for subsequent license renewal (SLR). An applicant may propose alternatives for staff review in its plant-specific SLRA.); see also Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-29, 60 NRC 417, 424 (2004), reconsid. denied, CLI-04-37, 60 NRC 646 (2004)

(Guidance documents are, by nature, only advisory. They need not apply in all situations and do not themselves impose legal requirements on licensees.).

152 See Petition at 4 (stating that the SLRA fails to comply with NRC regulations because its aging management programs for the subsequent license renewal term do not address any of

inadmissible by the Commission in the Seabrook case.153 In that proceeding, one petitioner asked NRC to require a license renewal applicant to preclude moisture from affecting non-environmentally qualified inaccessible cables.154 The Commission found that, because the requirement to preclude such effects appears nowhere in [NRC] regulations, the petitioner was ask[ing] the agency to impose a burden greater than the requirement imposed by section 54.21(a)(3) to adequately manage aging effects.155 Therefore, the Commission found the contention inadmissible as a collateral attack on NRC regulations.

Contention 1 is directly analogous. By arguing in essence that the existing Part 54 aging management requirements are insufficient, the Lochbaum Report asks the agency to go beyond the regulations and impose an additional burden on the Applicant by requiring the specified discussions of operating experience. Such an attack on NRC regulations is both outside of the scope of this proceeding under 10 C.F.R. § 2.309(f)(1)(iii) and inadmissible under 10 C.F.R.

§ 2.335(a) unless a petition for waiver or exception is granted. The Board, therefore, should follow the Commissions longstanding practice of rejecting, as a collateral attack, any contention calling for requirements in excess of those imposed by our regulations and find Contention 1 inadmissible in its entirety.156 the following issues . . .); see also Lochbaum Report at 12.

153 Seabrook, CLI-12-5, 75 NRC at 301.

154 Id. at 314-15.

155 Id. (internal quotation marks omitted).

156 Id. at 315. Similarly, to the extent that Contention 1 challenges the adequacy of Staff SLR review and inspection efforts, it raises an issue that is not admissible in an NRC licensing proceeding.

b. Contention 1 is Not Material to Required Findings To be admissible under 10 C.F.R. § 2.309(f)(1)(iv), a contention must demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding. The Commission has interpreted materiality to entail a showing that the resolution of the issue in the contention would affect the agencys ultimate determination.157 In this case, Petitioner has not shown that adding the explicit description of operating experience called for by Contention 1 would change the NRCs ultimate determination on the Applicants subsequent license renewal, particularly since Petitioner has not shown that there is either any NRC requirement or NRC guidance recommendation to discuss operating experience in the manner specified by Contention 1.

Contention 1(a) claims that the Applicant must discuss the degree to which [its] aging management programs depend on external operating experience before the application can be granted. However, statements by Petitioners expert in this regard are conclusory and fail to explain why this information is material to NRCs disposition of the application. The NRC must assess whether the applicant has demonstrated that the effects of aging on relevant structures and components will be adequately managed.158 Whether the applicants AMPs are substantially or slightly dependent on external operating experience would not be determinative, because the pertinent inquiry for applicants who choose to follow the GALL-SLR guidance is whether the AMP was informed by (or is bounded by) relevant external operating experiencenot the degree of dependence on operating experience.159 157 Palisades Nuclear Plant, LBP-15-20, 81 NRC at 850.

158 10 C.F.R. § 54.21(c)(3); 10 C.F.R. § 54.29(a)(1).

159 See SRP-SLR at 1.2-4, 1.2-5.

Similarly, the claims in Contention 1(b) and (c) that criteria are needed to define sufficient operating experience or address how such experience would be augmented appear to be based on Petitioners view that there is a declining body of external operating experience.160 However, Petitioner points to no NRC regulations or guidance documents to support the claim that a certain quantum of operating experience is needed for effective aging management. Just as specifying sufficient operating experience is not material to a finding the NRC must make under NRC regulations, neither is a plan for augmenting operating experience based on a speculative and conclusory assertion of unavailability. Rather, NRC regulations require applicants to make a showing regarding the adequacy of their aging management, rather than requiring speculation about the future availability of information (which may or may not inform any given AMP).161 It is the petitioners burden to supply support for its contention.162 If a petitioner fails to explain how its claims would affect the Staffs ability to make the findings required for license renewal, the contention will not meet the materiality criterion of 10 C.F.R. § 2.390(f)(1)(iv).163 Because an applicants degree of dependence on external operating experience and its potential estimates of the availability of future operating experience would not affect the Staffs ultimate decision on the application, Contention 1 is inadmissible.

160 Petition at 2-3.

161 See 10 C.F.R. § 54.21(a)(3); SRP-SLR at 1.2-1.

162 Oyster Creek, CLI-09-7, 69 NRC at 260-61; see also Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,171 (August 11, 1989) (final rule).

163 Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI 21, 82 NRC 295, 305 (2015) (upholding Board findings that a contention was inadmissible for lack of materiality and specificity).

c. Contention 1 Fails to Show a Genuine Dispute with the Applicant Petitioner must provide a concise statement of the alleged facts or expert opinion which support the requestors/petitioners position on the issue to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.164 Speculation, even informed by expertise, is insufficient to show a genuine dispute over an issue of law or fact.165 Contention 1 fails to meet these strict standards in several respects: it is vague, it is supported by mere speculation about a future chain of events, and it expresses a generalized grievance about the nuclear industry.

The Lochbaum Report argues that because the number of operating U.S. power reactors is decreasing, there is a credible potential for the amount of operating experience to decline so that AMPs could be reduced in effectiveness, resulting in declining reactor safety margins.166 The concern raised by the Lochbaum Report appears to be with four specific aging effects: reactor pressure vessel embrittlement, irradiation-assisted stress corrosion cracking of reactor internals, concrete and containment degradation, and electrical cable qualification and condition assessment.167 However, Petitioner does not point to specific flaws in any particular aging management program described in the application nor does it specify which safety margins could be jeopardized. Further, Petitioner incorporates by reference the Lochbaum Report, but it fails to explain how the report supports its claims.168 164 10 C.F.R. § 2.390(f)(1)(v) and (vi).

165 Fansteel, CLI-03-13, 58 NRC at 203 (citing Oyster Creek, CLI-00-6, 51 NRC at 208);

see also Palisades Nuclear Plant, CLI-15-23, 82 NRC at 328-30.

166 Lochbaum Report at 14, 33.

167 Petition at 5 (citing Lochbaum Report at 3).

168 Petition at 4-6; see also Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, & Entergy Nuclear Operations, Inc. (Indian Point, Units 1 & 2), CLI-01-19, 54 NRC 109, 132-33 (2001) (noting that the Commission will not approve incorporation by reference when it has the effect of circumventing specificity requirements).

Petitioners concern that the amount of operating experience could decline is speculative and ignores publicly available information. While there is no NRC-endorsed definition of the term, the common industry understanding of operating experience encompasses several different sources of information. Plant-specific or internal operating experience, external operating experience from other plants, including international plants, and even operating experience from industries other than nuclear could, when relevant, inform a licensees operations. Petitioner overlooks most of these sources to focus narrowly on external operating experience from domestic boiling water reactors. Further, Petitioner does not appear to recognize that operating experience accumulates even on days when there is no reported or unusual occurrence. And Petitioner provides no reason to dispute the obviousthat operating experience will continue to accrue as long as nuclear power plants operate. Therefore, although nuclear power plant shutdowns could decrease the rate at which new operating experience accrues, the total body of available operating experience will continue to grow throughout the period of extended operation. Contention 1 provides no evidence that plant-specific AMPs would be affected by a decrease in the rate of accrual of domestic external operating experience. Moreover, Petitioner supplies no evidence that internal operating experience, international operating experience, or research results could not be used to maintain the effectiveness of applicants aging management during ongoing AMP revisions.

In addition, Petitioner ignores publicly available information about the four aging issues listed in the Lochbaum Report.169 The Commission disapproved rulemaking for subsequent license renewal, including an option to consider reducing the time period (before expiration of an 169 The Commission held a public meeting discussing the Staffs conclusions in April 2017. As a presenter from the Department of Energy stated, [o]ur research has not identified any technical showstoppers to long-term operation. We are developing improved materials monitoring techniques that will help detect degradation earlier, should it occur. 2017 Briefing Transcript at 10; see also Briefing on the Status of Subsequent License Renewal Preparations (Slide Presentation) (Apr. 26, 2017), available at https://www.nrc.gov/reading-rm/doc-collections/commission/slides/2017/20170426/staff-20170426.pdf.

existing license) that SLR may be sought in order to provide additional operating experience before SLR.170 Instead, SRM-SECY-14-0016 directed Staff to address emerging technical issues and operating experience through alternative vehicles, such as updated guidance, generic communications, voluntary industry initiatives, and inspection enhancements.171 The Lochbaum Report opines that an [e]xplicit description of operating experience information sufficiency is needed in the subsequent license renewal application to enable plant workers and NRC inspectors/reviewers to properly gauge whether a condition adverse to quality under Appendix B to 10 C.F.R. 50 results from permanent reactor closures.172 However, effective aging management ensures that the functionality of relevant systems, structures and components is maintained, thereby avoiding the creation of conditions adverse to quality. The Lochbaum Reports suggestions that existing Appendix B requirements are insufficient to maintain the current licensing basis, that the licensee will not implement its Appendix B program correctly, or that NRC reviewers could not adequately review applicants aging management are insufficiently supported, speculative and conclusory.173 The Commission has previously held that contentions based on a licensees inchoate future plans are inadmissible.174 Similarly, the Commission has stated that it is particularly reluctant to engage in prognostication . . . Unsupported hypothetical theories or projections, even in the form of an affidavit, will not support invocation of the hearing process.175 As such, a 170 SRM-SECY-14-0016 at 1 (ML14241A578); SECY-14-0016 (ML14241A578) at 7-8.

171 SRM-SECY-14-0016 at 1.

172 Lochbaum Report at 12.

173 The NRC will not presume without evidence that a licensee will violate agency regulations. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI 9, 53 NRC 232, 235 (2001).

174 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-14, 55 NRC 278, 292 (2002).

175 Power Auth. of the State of N.Y. and Entergy Nuclear Fitzpatrick LLC, Entergy

contention resting on speculation about a chain of causation by which a decreased number of operating U.S. nuclear power reactors might lead to a future in which unspecified reactor safety margins would decline is inadmissible because such speculation fails to support a genuine dispute with the applicant in this proceeding.176 Contention 1 is also inadmissible insofar as it represents a general plea for the U.S.

nuclear industry to perform harvesting, or to retrieve samples of structures and components from decommissioned reactors for the purpose of testing and assessing aging effects.177 This goal does not appear to be based on anything unique about the Peach Bottom SLRA, but rather applies to current operating plants in general.178 As the Commission has held, an adjudicatory proceeding is not the proper venue to express generalized grievances about NRC policies179 or about the nuclear industry as a whole.180 Thus, generalized grievances about the need for harvesting to address the four issues are outside the scope of this proceeding.

Contention 1 therefore fails to meet the criteria of 10 C.F.R. §§ 2.390(f)(1)(v) and (vi) in several respects. The contention ignores publicly available information; it fails to explain how Nuclear Indian Point 3 LLC, and Entergy Nuclear Operations, Inc. (James A. Fitzpatrick Nuclear Power Plant; Indian Point, Units 3), CLI-00-22, 52 NRC 266, 315 (2000).

176 Lochbaum Report at 14.

177 See Lochbaum Report at 39-40 (With explicit discussion with the [SLRA] for Peach Bottom of aging management program dependence on operating experience feedback, the opportunity for harvesting materials from permanently shut down reactors or collected from operating reactors may be lost.) The Lochbaum Report (at 37) cites a draft PNNL document that has not been endorsed by the NRC. The Commission has previously held that staff working papers or position papers, drafted by NRC Staff but not endorsed by the Commission, have no legal significance for any [NRC] regulatory purpose. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-355, 4 NRC 397, 416 (1976) (citations omitted) (denying admission of a contention related to mixed oxide fuel when the licensee was under contract for future fuel purchases). A fortiori, then, a position paper drafted by researchers outside the NRC has no regulatory significance; it merely represents the authors opinion.

178 Lochbaum Report at 35-41.

179 Oconee, CLI-99-11, 49 NRC at 334.

180 Fitzpatrick, CLI-00-22, 52 NRC at 296.

the Lochbaum Report supports its claim; it improperly attempts to use the adjudicatory process to pursue a generalized grievance about the nuclear industry; and it is based on vague and speculative prognostication.

2. Contention 2: Failure to Address Environmental Impacts of Operating Aging Reactor Equipment During a Second License Renewal Term Contention 2181 incorporates by reference Petitioners expert report and claims that (1)

Exelons ER violates NEPA and 10 C.F.R. § 51.53(c)(2) because it fails to address accident 181 Contention 2 (Petition at 6-8) states:

Exelons Environmental Report for Peach Bottom Units 2 and 3 violates the National Environmental Policy Act (NEPA) and NRC implementing regulation 10 C.F.R.

§ 51.53(c)(2) by failing to address the accident risks posed by operating aging reactor equipment during a second license renewal term. Exelon incorrectly claims that the risk of operating Peach Bottom with aging equipment is a Category 1 issue and therefore exempt from consideration under 10 C.F.R. § 51.53(c)(3) and 10 C.F.R. Part 50, Appendix A. Environmental Report at 4-12 (citing Category 1 designation of design-basis accidents). In taking this position, Exelon disregards the plain language of § 51.53(c)(3), which states that the regulation applies only to initial operating license renewal applications. Exelons application is governed by 10 C.F.R. § 51.53(c)(2), which contains no such exemption.

Exelon also violates NEPA by failing to review and evaluate the existing body of literature regarding reactor aging phenomena and their effects beyond 60 years. Pacific Gas & Elec. Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-11-11, 74 NRC 427, 443 (2011) (where the Environmental Report had conceded the relevance of seismic risk, holding admissible the question of whether an additional technical study should be considered). Here, there can be no question that the accident risk posed by operating Peach Bottom for an additional twenty years is a relevant environmental consideration. But Exelon does not address the significant body of studies raising concerns about how much is still unknown about the effects of aging on reactor safety equipment. See Lochbaum Expert Report, Section 4 and technical studies listed therein. Relevant studies include, for instance, the Expanded Materials Degradation Assessment (EMDA), a five-volume report prepared by the NRC and the U.S.

Department of Energy (DOE), NUREG/CR-7153, ORNL/TM-2013/532,Oct. 2014)

(EMDA Report). Other examples of relevant studies of aging reactor equipment are listed in Section 10 of the attached Lochbaum Expert Report.

Exelons Environmental Report should also address the environmental implications of reactor aging issues identified by the NRC Staff in SECY-14-0016, Memorandum from Mark A. Satorius, NRC Executive Director of Operations, to NRC Commissioners, re: Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal (Jan. 31, 2014) (NRC ADAMS Accession No. ML14050A306). These issues, characterized by the Staff as the most significant technical issues challenging [reactor] operation beyond 60 years, include reactor pressure vessel embrittlement; irradiation-assisted stress corrosion cracking of reactor internals, concrete structures and containment degradation; and electrical cable qualification and condition assessment. Id., Enclosure 1 at 2-3. As stated by senior NRC management, it is the industrys responsibility to resolve these and other issues to

risks posed by aging equipment and incorrectly claims that the risk of design-basis accidents during SLR operation is a Category 1 issue under § 51.53(c)(3) that applies only to initial license renewal applications, (2) that Exelon violates NEPA by not reviewing and evaluating literature regarding post-60-year aging effects, such as the EMDA Report and other relevant studies cited by its expert, (3) that the ER should address the environmental implications of four aging issues identified in SECY-14-0016, Enclosure 1 (i.e., RPV embrittlement; irradiation-assisted stress corrosion cracking of reactor internals, concrete structures and containment degradation; and electrical cable qualification and condition assessment), and (4) that Exelon should address the degree to which the lack of information affects the environmental risks of extended operation and the significance of the decline in external operating experience to assist and increase its understanding of age-related environmental risks.182 As bases for this contention, Petitioner discusses NEPAs purpose to ensure that an agency has information available to consider the environmental impacts in agency decisions and quotes the 10 C.F.R § 51.45(c) requirement that an applicants environmental report must include an environmental analysis that, to the extent practicable, quantifies factors considered and discusses any important qualitative considerations that cannot be quantified in qualitative provide the technical bases to ensure safe operation beyond 60 years. Id. at 3. Beyond Nuclear is aware of no determination that these issues have been resolved since publication of SECY-14-0016. The Environmental Report should address the degree to which a lack of information regarding the effects of aging on reactor systems and components affects the environmental risk posed by extended operation. See 40 C.F.R.

§ 1502.22, which provides guidance to the NRC (74 NRC at 444) that when an agency is evaluating reasonably foreseeable significant adverse effects on the human environment in an environmental impact statement and there is incomplete or unavailable information, the agency shall always make clear that such information is lacking.

Finally, the environmental report should address the significance of the declining amount of external operating experience available to Exelon to assist and increase its understanding of age-related environmental risks during the subsequent license renewal term. See Lochbaum Expert Report, which is attached and incorporated by reference herein.

182 Petition at 5-8 (citing ER at 4-12; SECY-14-0016, Encl.1 at 2-3; and the 2014 EMDA Report). Petitioner mentions, without discussion, that other examples of relevant studies are listed in the Lochbaum Report). Id. at 7.

terms to aid the Commissions analysis.183 Petitioner further claims that the ER does not address the environmental risks of design-basis accidents raised by operating Peach Bottom Units 2 and 3 for twenty years beyond the initial license term because the ER improperly relies on the Category 1 exemptions in Table B-1 and that such risks are not addressed in any EIS.184 Petitioner ultimately (1) claims the 2013 GEIS simply reviews and reevaluates findings in the 1996 GEIS,185 (2) claims the ER should discuss the implications of the environment risk and lack of information concerning four age-related technical issues identified in the 2014 EMDA Report because the Lochbaum Report shows a decline in external operating experience,186 and (3) asserts that the ER should discuss Exelons plans to account for the decline in achieving an understanding of the behavior of its aging equipment.187 Staff Response to Contention 2 At bottom, Contention 2 claims that Applicant may not rely on Category 1 determinations in 10 C.F.R. Part 51, Subpart A, Table B-1, and must include additional information on the environmental impacts of design-basis accidents and the environmental implications of the four aged-related issues listed above.188 In light of regulatory history of the license renewal framework, Petitioner, in effect, impermissibly challenges NRC license renewal regulations and has not obtained the necessary waiver or exception to bring this matter within the scope of this 183 Petition at 9-11.

184 Petition at 11.

185 Id. at 12.

186 Id. at 14.

187 Id. at 14.

188 Id. at 6-14.

adjudicatory proceeding.189 This is contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(iii).190 In addition, contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(v) and (vi), Petitioner fails to provide adequate support or sufficient information to show a genuine dispute with the applicant on a material issue of law or fact. Therefore, Contention 2 is not admissible.

a. The Regulatory History of License Renewal Regulations in 10 C.F.R.

Part 51 Shows That Those Regulations (Including § 51.53(c)(3) and the Generic Determinations in Appendix B, Table B-1) Apply to SLR Applicants Petitioner claims that SLRA applicants must comply with 10 C.F.R. § 51.53(c)(2) and may not rely upon the generic determinations in 10 C.F.R. Part 51, Appendix B and the GEIS.191 To support its argument, Petitioner points to (1) the word initial in § 51.53(c)(3), (2) statements describing proposed Part 51 regulations and the 1996 GEIS as applying to one renewal beyond the expiration of the original license, and (3) the 1996 GEIS description of the proposed action as being an extension after the original license, arguing that the scope of the analysis was not expanded by the 2013 GEIS Revision.192 Petitioner also argues that the Staffs view (stated in SECY-14-0016) that the 2013 GEIS is adequate for SLR is not supported and that Staffs opinion cannot expand the scope of the GEIS without first publishing that determination for public comment.193 189 10 C.F.R. § 2.335(a)-(b). A petition for waiver or exception cannot be granted without a showing of special circumstances that application of the particular rule or provision would not serve the purposes for which the rule was adopted and must be supported by an affidavit. Id.

190 A contention that challenges a rule or statute is not within the scope of a licensing proceeding. See Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI-08-15, 68 NRC 1, 3-4 (2008).

191 Petition at 6-7, 11.

192 Id. at 11-12 (citing Proposed 1991 Rule, 56 Fed. Reg. at 47,017; 1996 GEIS, Vol. 1 at 2-28 to 2-29; Revised GEIS, Vol. 1, at 1-7).

193 Id. at 12 (citing SECY-14-0016 at 3; Perez v. Mortg Bankers Assn, 135 S. Ct 1199, 1206 (2015)).

However, Petitioner ignores the regulatory history of the Commissions license renewal regulations. Commission and GEIS statements support the Staffs position.

Contrary to Petitioners assertions, the history of the Commissions license renewal rulemaking and its adoption of the 2013 revision of the GEIS demonstrates the Commissions intent to apply the revised regulations and the Revised GEIS to subsequent license renewal applications, rather than limit them only to initial license renewal applications. Both the 1996 GEIS and the 2013 GEIS noted that the AEA does not impose a specific limit on the number of license renewals.194 And, the NRC explicitly considered the potential receipt of SLR applications in both the draft and final regulatory analyses supporting the 2013 rulemaking.195 The consideration of potential SLR applicants in the regulatory cost benefit analysis implies that the NRC viewed the rule and Revised GEIS as being applicable to SLR applicants.196 Significantly, although the 1991 proposed rulemaking appears to have considered that the proposed environmental regulations for license renewal in 10 C.F.R. Part 51 would apply to initial license renewals,197 that limitation was not discussed in the subsequent regulatory history for the 1996 rule. Also, the limitation was neither discussed in, nor imposed by, the 2013 rulemaking. Specifically, there is no suggestion that the 2013 rulemaking applies only to initial license renewals in: the Federal Register notice of the NRCs intent to update the GEIS and conduct a scoping process (or the notice of a reopening of the comment period);198 the scoping 194 Revised GEIS, Vol. 1 at S-1 and 1-1.

195 See, e.g., Draft Regulatory Analysis at 15; Final Regulatory Analysis at 25.

196 See id.

197

[Proposed Rule ] Environmental Review for Renewal of Operating Licenses, 56 Fed.

Reg. 47,016, 47,017 (Sept. 17, 1991) (stating that, although 10 C.F.R. Part 54 could be applied to multiple renewals of an operating license for various increments . . . , the [P]art 51 amendments apply to one renewal of the initial license for up to 20 years beyond the expiration of the initial license).

198 See Notice of Intent to Prepare an Environmental Impact Statement for the License Renewal of Nuclear Power Plants and to Conduct Scoping Process, 68 Fed. Reg. at

meeting summaries;199 the Scoping Summary Report;200 SECY-09-0034 or the related SRM;201 the draft Regulatory Analysis;202 the Federal Register notice for the proposed rule;203 the draft 33,210;Notice of Extension of the Public Comment Period for Scoping Process to Prepare an Environmental Impact Statement for the License Renewal of Nuclear Power Plants, 70 Fed. Reg.

57,628, 57,628 (Oct. 3, 2005).

199 See Summary of Public Scoping Meeting to Discuss Update to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (NUREG-1437) and Companion Rule Change, Atlanta, GA (Aug. 12, 2003) (ML032170942); Summary of Public Scoping Meeting to Discuss Update to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (NUREG-1437) and Companion Rule Change, Oak Lawn, IL (Aug. 13, 2003) (ML032260339); Summary of Public Scoping Meeting to Discuss Update to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (NUREG-1437) and Companion Rule Change, Anaheim, CA (Aug. 13, 2003) (ML032260715); Summary of Public Scoping Meeting to Discuss Update to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (NUREG-1437) and Companion Rule Change, Boston, MA (Aug. 13, 2003) (ML032170934).

200 Environmental Impact Statement Scoping Process, Summary Report, Update of the Generic Environmental Impact Statement for License Renewal of Nuclear Plants, at 1 (May 2009)

(ML073450750) (stating that the NRC is planning to prepare an update to the GEIS).

201 SECY-09-0034, Proposed Rulemaking - Environmental Protection Regarding the Update of the 1996 Generic Environmental Impact Statement for Nuclear Power Plant License Renewal, at 1 (Mar. 3, 2009) (ML091050197) (explaining that the subject of the rulemaking is environmental issues that must be addressed in a license renewal application) (emphasis added); Staff Requirements - SECY-09-0034 - Proposed Rulemaking - Environmental Protection Regarding the Update of the 1996 Generic Environmental Impact Statement for Nuclear Power Plant License Renewal (May 4, 2009) (ML091240582); SECY-09-0034 Commission Voting Record (ML091260122).

202 Draft Regulatory Analysis at 15.

203 Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 74 Fed. Reg. 38,117, 38,117 (July 31, 2009) (proposed rule) (providing notice that the NRC proposes to amend the environmental issues that must be addressed in applications for license renewal) (emphasis added).

revised GEIS;204 the draft revised Regulatory Guide 4.2;205 draft NUREG-1555;206 SECY 0063 or the related SRM;207 the final Regulatory Analysis;208 the Federal Register notice for the final rule;209 the final revised GEIS;210 final Regulatory Guide 4.2;211 or final revised NUREG-1555.212 To the contrary, each of these regulatory documents discuss license renewal in 204 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Main Report, Draft for Comment at S-1, 1-1 (July 2009) (ML090220654) (stating that [t]here are no specific limitations in the Atomic Energy Act or the NRCs regulations restricting the number of times a license may be renewed).

205 Draft Regulatory Guide DG-4015, Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications, at 1 (July 2009) (ML091620409) (providing that [t]his guidance document provides general procedures for the preparation of environmental reports . . . submitted as part of an application for the renewal of a nuclear power plant operating license) (emphasis added).

206 NUREG-1555, Supplement 1, Revision 1, Standard Review Plans for Environmental Reviews of Nuclear Power Plants, Supplement 1: Operating License Renewal, Draft Report for Comment, at 1 (July 2009) (ML090230497) (providing instructions for Staff use in conducting environmental reviews for the renewal of nuclear power plant operating licenses) (emphasis added).

207 SECY-12-0063, Final Rule: Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, at 1 (Apr. 20, 2012) (ML110760045) (The final rule will redefine the number and scope of the environmental impact issues that must be addressed by the NRC and applicants during license renewal environmental reviews.) (emphasis added);

Staff Requirements - SECY-12-0063 - Final Rule: Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses (Dec. 6, 2012) (ML12341A134) (same);

SECY-12-0063 Commission Voting Record (ML12341A250).

208 Final Regulatory Analysis at 25.

209 Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 78 Fed. Reg. 37,282, 37,282 (June 20, 2013) (final rule) (The final rule redefines the number and scope of the environmental impact issues that must be addressed by the NRC during license renewal environmental reviews.) (emphasis added).

210 Revised GEIS, Vol. 1, at S-1 and 1-1 (stating that [t]here are no specific limitations in the Atomic Energy Act or the NRCs regulations restricting the number of times a license may be renewed).

211 Regulatory Guide 4.2, Supplement 1, Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications, at 1 (June 2013) (ML13067A354) (providing that [t]his regulatory guide provides general procedures for the preparation of environmental reports . . . submitted as part of an application for the renewal of a nuclear power plant operating license) (emphasis added).

212 NUREG-1555, Supplement 1, Revision 1, Standard Review Plans for Environmental Reviews for Nuclear Power Plants, Supplement 1: Operating License Renewal, at 1 (June 2013)

(ML13106A246) (providing instructions for Staff use in conducting an environmental review for the renewal of a nuclear power plant operating license(s)) (emphasis added).

general, and do not differentiate between initial and subsequent license renewal. In particular, the 2013 GEIS, which is among the documents made available in draft for public comment, states that its purpose is to assess the environmental impacts that could be associated with license renewal and an additional 20 years of power plant operation, that the proposed action is

[t]o renew commercial nuclear power plant operating licenses, and that the purpose and need for the proposed action is [t]o provide an option of continued plant operation beyond the current licensing term.213 The Glossary in the 2013 GEIS also defines the [l]icense renewal term as being the period of time past the original or current license term for which the renewed license is in force.214 The Commissions SRM-SECY-14-0016 disapproving Staffs recommendation to initiate rulemaking for subsequent license renewal and directing Staff to clarify the license renewal framework using vehicles such as issuance of generic communications, voluntary industry initiatives, and updates to the GALL Report,215 confirms the applicability of the existing environmental regulatory framework to SLR applications. Moreover, the Commission subsequently indicated that the existing regulatory framework is sufficient for SLR.216 In light of this extensive history, as well as the lack of any specific requirements that apply only to subsequent license renewal,217 it is apparent that the Commission intended that the existing 213 Revised GEIS, Vol 1, at S-3, 1-2, 1-3.

214 Revised GEIS, Vol. 1, at 7-27 (emphasis added).

215 See SRM-SECY-14-0016 (which further directed Staff to continue to implement inspection enhancements related to aging management, including an implementation of an inspection procedure on the operating experience update process).

216 2017 Briefing Transcript at 52; Barrasso Letter Enclosure at 45-46.

217 Petitioner incorrectly asserts that 10 C.F.R. § 51.53(c)(2) requires other than initial license renewal applications to describe the matters therein. See Petition at 10. All license renewal ERs must address the matters set forth in § 51.53(c)(2), including a description of the proposed action, detailed description of the affected environment around the plant, and any modifications directly affecting the environment. Section 51.53(c)(3), specifically states that ERs shall include the information required in [§ 51.53(c)(2), subject to the . . . conditions and

regulatory framework, including the 2013 GEIS and revised Table B-1, apply to both initial and subsequent license renewal applications even though the word initial remains in 10 C.F.R.

§ 51.53(c)(3). Thus, Petitioners suggestion that the applicability of existing regulations to SLR is merely a Staff opinion218 should not be accepted.

In sum, based on the regulatory history of license renewal, Petitioners view that 10 C.F.R. § 51.53(c)(3), including the determinations in 10 C.F.R. Part 51, Appendix B, Table B-1 and the license renewal GEIS, does not apply to subsequent license renewal applicants, should be rejected.

b. Petitioners Interpretation of 10 C.F.R. § 51.53(c)(3) Conflicts with the Regulatory Framework of 10 C.F.R. Part 51 and Would Have an Odd or Absurd Result__________________________________________

Petitioners claim that 10 C.F.R. § 51.53(c)(3) and Category 1 environmental impact determinations in Part 51, Subpart A, Table B-1 apply only to those applicants that seek an initial renewed license is (1) not consistent with the regulatory framework for license renewal and (2) would lead to an odd or absurd result.

First, although Petitioner understands that the Commissions regulations in 10 C.F.R.

Part 51 are intended to implement the agencys responsibilities under NEPA, Section considerations [in (c)(3)(i) - (iv)].

218 See Petition at 12 n.1. Similarly, Petitioners argument (at 12 n.1) that the scope of the GEIS cannot be modified without notice and comment overlooks that the 2013 GEIS was made available for public comment and Petitioner could have raised any concerns about its content or scope during the over 75-day public comment period. See Notice of Availability of the Draft Revision to [GEIS] for License Renewal of Nuclear Plants, Revision 1, NUREG-1437 and Public Meetings, 74 Fed. Reg. 38,239 (July 31, 2009); License Renewal of Nuclear Power Plants;

[GEIS] and Standard Review Plans for Environmental Reviews, 78 Fed. Reg. 37,325 (Jun. 20, 2013) (noting the extension of the 75-day comment period). The draft Revised GEIS, Vols. 1 and 2, (ML090220654) included language that indicated that it would apply to more than just initial renewals. For example, Vol. 1 describes the proposed action as renewal of commercial power plant operating licenses and the purpose and need for the action as providing an option to continue plant operations beyond the current licensing term. Id. at S-2 to S-3. The glossary of that draft Revised GEIS also included a generic definition of the [l]icense renewal term as being the period of time past the original or current license term for which the renewed license is in force. Id. at 7-26.

102(2)(C),219 Petitioner argues that Exelons ER is governed by NEPA, overlooking that NEPA does not impose any requirement on a license applicant. Rather, the Commission, in adopting its regulations in 10 C.F.R. Part 51, established the framework by which the NRC implements its NEPA responsibilitiesincluding specific requirements governing its review of various categories of license applications, and related requirements to be satisfied by applicants for those licensing actions.220 Second, 10 C.F.R. § 51.95(c) governs the NRCs environmental evaluations [i]n connection with the renewal of an operating license. It directs Staff to prepare a final SEIS for license renewal as a supplement to the [GEIS],221 in which Staff is to address those issues as required by 10 C.F.R. § 51.71.222 Section 51.95(c)(4) also directs that the NRC staff, adjudicatory officers, and Commission shall integrate the conclusions in the [GEIS] for issues designated as Category 1 with information developed for those Category 2 issues applicable to the plant under § 51.53(c)(3)(ii) and any new and significant information. Further, section 51.95(c)(4) requires that the NRC staff, adjudicatory officers, and Commission shall determine whether or not the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decisionmakers would be unreasonablebased on site-specific information on applicable Category 2 issues, the generic determinations on Category 1 issues set out in 10 C.F.R. Part 51, Appendix B, Table B-1, and the GEIS. Moreover, 10 C.F.R. § 51.71(d) states that the NRCs draft supplemental environmental impact statement prepared under § 51.95(c) will rely on conclusions as amplified 219 42 U.S.C. § 4332.

220 For license renewal, the Staff is required to prepare a Draft and Final Supplemental Impact Statement (SEIS), supplementing the GEIS on a plant-specific basis. See 10 C.F.R.

§ 51.71(d) (draft SEIS); 10 C.F.R.§ 51.95(c) (final SEIS).

221 10 C.F.R. § 51.95(c).

222 10 C.F.R. § 51.95(c)(1).

by the supporting information in the GEIS for issues designated as Category 1 in appendix B to subpart A of [10 C.F.R. Part 51], in addition to considering applicable Category 2 issues.

As indicated above, the regulations rely on license renewal applicants to supply relevant information for NRC to consider in preparing its NEPA-mandated environmental documents. As pertinent here, 10 C.F.R. § 51.53(c)(1) requires [e]ach applicant for renewal of [an operating license] to submit a document entitled, Applicants Environmental ReportOperating License Renewal Stage [ER]. Section 51.53(c)(2) requires, in part, that this ER describe the proposed action, describe in detail the affected environment around the plant, the modifications directly affecting the environment or any plant effluents, and any planned refurbishment activities, and discuss . . . the environmental impacts of alternatives. Section 51.53(c)(3), specifies conditions and considerations governing the scope of information that must be provided by a license renewal applicant.223 NRC requirements governing information to be provided in an applicants environmental report are designed to assist the NRC in preparing its environmental evaluation. As the Commission has explained, an environmental report is essentially the applicants proposal for the Staffs environmental impact statement.224 Accordingly, 10 C.F.R. § 51.41 requires an 223 The conditions and considerations in 10 C.F.R. § 51.53(c)(3) provide, inter alia, that the environmental report for the operating license renewal stage is not required to contain analyses of the environmental impacts of the license renewal issues identified as Category 1 issues in appendix B to subpart A of [10 C.F.R. Part 51], and that the ER must contain analyses of the environmental impacts of the proposed action . . . associated with license renewal and the impacts of operation during the renewal term. Except for the reference in § 51.53(c)(3),

§ 51.53(c)(3)(i) and (ii) refer to the report for the operating license renewal stage and license renewal in general. Similarly, 10 C.F.R. 51.53(c)(3)(iii) and (iv) refer to license renewal issues and license renewal generally. Moreover, the preamble to Appendix B states that Table B-1 summarizes the Commissions finding on the scope and magnitude of environmental impacts of renewing the operating license for a nuclear power plant and subject to an evaluation of those issues identified in Category 2 as requiring further analysis and possible significant new information, represents the analysis of the environmental impacts associated with renewal of any operating license. (Emphasis added).

224

[Final Rule] Rules of Practice for Domestic Licensing Proceedings Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989) (1989 Final Rule); Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2), CLI 2, 71 NRC 27, 34 (2010).

applicant for a license, license amendment, or license renewal to submit such information to the Commission as may be useful in aiding the Commission in complying with section 102(2) of NEPA.

Third, inasmuch as the Commission has promulgated regulations to improve regulatory efficiency in its evaluation of the environmental impacts of license renewal by relying on the generic determinations in 10 C.F.R. Part 51, Appendix B, Table B-1,225 and the GEIS, the regulations require license renewal applicants to provide only such information as is needed to support the NRCs NEPA evaluation. Accordingly, pursuant to 10 C.F.R. § 51.53(c)(3)(ii) and (iv), license renewal applicants need only address Category 2 issues along with any new and significant information regarding the environmental effects of license renewal of which they are aware.226 While Petitioner argues that § 51.53(c)(3) does not apply to SLR applicants, Petitioner does not explain how the NRCs NEPA obligations would be served by requiring SLR applicants to provide information in their environmental reports that differs from that required of initial license renewal applicants. Indeed the effect of the Petitioners interpretation of 10 C.F.R.

§ 51.53(c)(3) would be that SLR applicants would be prohibited from relying upon Table B-1 and 225 See [Final Rule] Environmental Review for Renewal of Operating Licenses, 61 Fed.

Reg. 28,467 (the amendment defining generic impacts for adoption in plant-specific reviews improves regulatory efficiency in environmental reviews by drawing on the considerable experience of operating nuclear power reactors to generically assess many of the environmental impacts that are likely to be associated with license renewal. The increased efficiency will result in lower costs to both the applicant in preparing a renewal application and to the NRC for reviewing plant specific applications and better focus of review resources on significant case-specific concerns. The results should be a more focused and therefore more effective NEPA review for each license renewal.).

226 The Commission has recognized that the rules provide a number of opportunities for individuals to alert the Commission to new and significant information that might render a generic finding invalid, either with respect to all nuclear power plants or for one plant in particular. For example, hearing petitioners (with new information showing that a generic rule would not serve its purpose at a particular plant) may seek a waiver of or exception to the rule. See Turkey Point, CLI-01-17, 54 NRC at 12.

its Category 1 and Category 2 determinations, while the Staff, by contrast, would be required by other Part 51 regulations to rely upon Category 1 determinations. This would have the odd or absurd result of requiring SLR applicants to provide information that, contrary to 10 C.F.R.

§ 51.41, would either not be useful to the Staffs preparation of an EIS and in aiding the Commission in complying with section 102(2) of NEPA or would require review of information that is duplicative of that already used by the Commission to reach its generic determinations of environmental impacts.227 Any efficiencies the Commission contemplated would be achieved during its consideration of impacts that are not plant-specific would be lost.

Moreover, if Petitioners position were adopted, an SLR application would not be required to address new and significant information of which it is aware, as required by 10 C.F.R. § 51.53(c)(3)(iv). This requirement assists the NRC in fulfilling its 10 C.F.R.

§ 51.95(c)(3) obligation to consider any new or significant information, enabling Staff to focus its resources on salient information that could affect its analysis of environmental impacts.228 If SLR applicants were not obliged to identify such information, this, too, would yield an absurd result and would not further the purposes of NEPA.229 Thus, Petitioners interpretation of 10 C.F.R. § 51.53(c)(3) would have the effect that, for subsequent license renewalunlike any other agency licensing actionthe applicant would be 227 See 10 C.F.R. § 51.41; see also 10 C.F.R. 51.45(c).

228 The Commission has recognize[d] that even generic findings sometimes need revisiting in particular contexts. Turkey Point, CLI-01-17, 54 NRC at 12. Petitioners with new and significant information that might render a generic finding invalid for all plants may, among other things, file a petition for rulemaking under 10 C.F.R. § 2.802. Id.

229 It would be odd to conclude that an SLR applicant could not rely on the GEIS, given that 10 C.F.R. § 51.53(a) specifically allows an ER to incorporate by reference any information contained in a final environmental document previously prepared by the NRC staff that relates to the facility. Interestingly, another NRC regulation, 10 C.F.R. § 50.32, Elimination of Repetition, allows license applicants to incorporate by reference any information contained in previous applications, statements or reports filed with the Commission: Provided, That such references are clear and specific. (Emphasis in original).

required to submit an environmental report that addresses environmental issues in a manner that differs from the way in which the NRC evaluates those impacts. Therefore, the ER would not serve as a proposal for the Staffs environmental impact statement and would not be of assistance to the Staff in preparing its evaluation.

Further, like statutes, regulations should be interpreted within the broader context of the regulatory scheme as a whole.230 Words must be read in their context with a view to their place in the overall statutory scheme.231 A statute (or regulation) should be construed in connection with other parts to produce a harmonious whole.232 Moreover, departure from a literal construction is justified to avoid an absurd, unreasonable, or odd result that is clearly inconsistent with the purpose or policies of the act in question.233 Therefore, although 10 C.F.R.

§ 51.53(c)(3) uses the term initial, this regulation, when read in the context of the overall regulatory scheme and construed in conjunction with other relevant sections as a harmonious whole, should be interpreted as applying to license renewal in general, including subsequent license renewal.

This reading is consistent with the Commissions intent as stated in SRM-SECY-14-0016 and in subsequent Commission statements.234 230 Hydro Resources, Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), CLI-04-11, 63 NRC 483, 491 (2004) (citations omitted).

231 FDA v. Brown & Williamson, 529 U.S. 120, 133 (2000) (quoting Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989)).

232 Id. at 133 (quoting FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959)).

233 See, e.g., United States v. Granderson, 511 U.S. 39, 47 n.5 (1994) (dismissing an interpretation that led to an absurd result); Am. Tobacco Co. v. Patterson, 456 U.S. 63, 71, (1982)

(Statutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible); Pub. Citizen v. Dept of Justice, 491 U.S. 440, 454-55 (1989) (Where the literal reading of a statutory term would compel an odd result, we must search for other evidence of congressional intent to lend the term its proper scope.) (citations omitted); Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001) (noting that courts may reject words as surplusage if they are inadvertently inserted or repugnant to the rest of the statute) (citation omitted).

234 2017 Briefing Transcript at 52 (Svinicki); Barrasso Letter Enclosure at 45-46.

In sum, Petitioners interpretation of 10 C.F.R. § 51.53(c)(3) is inconsistent with the NRCs regulations governing the agencys evaluation of the environmental impacts of license renewal, would not serve the underlying purpose for the NRCs requirements governing the submittal of environmental reports for license renewal, and would produce an absurd or odd result. Accordingly, Petitioners arguments supporting its interpretation of § 51.53(c)(3) should therefore be rejected.

c. Petitioners Arguments Constitute an Impermissible Challenge to the Commissions Regulations_________________________________

As discussed above, the regulatory history of the Commissions license renewal regulations, a holistic approach to the interpretation of those regulations, and Commission statements concerning its regulations, support the view that 10 C.F.R. § 51.53(c)(3) applies to SLR applicants. Accordingly, SLR applicants may rely upon the Commissions summary findings on NEPA issues in Table B-1 of 10 C.F.R. Part 51, Subpart A, Appendix B, including the generic impact determinations made concerning Category 1 issues. For Category 1 issues, applicants may reference and adopt the codified findings in Table B-1.235 Thus, Applicant is not required to include an analysis of the impacts of SLR operation at Peach Bottom for Category 1 issues because they have been determined to be similar for all plants and are not required to be evaluated in a plant-specific analysis.236 Additional analysis is only required if there is new and significant information that differs from the determinations in Part 51, Table B-1, and the Revised GEIS.

Moreover, NRC regulations allow an applicant to incorporate by reference into its ER any information from a prior environmental report that relates to the facility or site, or any information in a final environmental document previously prepared by the NRC staff that relates 235 Turkey Point, CLI-01-17, 54 NRC at 11.

236 See id.

to the production or utilization facility.237 This would include the Category 1 impact determinations set forth in the 2013 GEIS, which form the technical basis for Table B-1.238 Petitioners challenge to Applicants reliance on Category 1 impact findings in Table B-1 thus constitutes an attack on the Commissions regulations that is not permissible under 10 C.F.R. § 2.335(a) unless a petition for waiver is granted based on a showing of special circumstances unique to the facility.239 Because challenges to the provisions of 10 C.F.R Part 51 are outside the scope of this proceeding, Petitioner fails to satisfy 10 C.F.R.

§ 2.309(f)(1)(iii).240 Consequently, the contention should be rejected.

d. The Contention Does Not Raise a Genuine Dispute as to a Material Issue of Law or Fact________________________

Like Contention 1, Contention 2 is premised on speculative and incorrect assertions that the amount of external operating experience is declining.241 As discussed in section II.B.1.c, above, the claim that external operating experience is declining is based on speculation by 237 10 C.F.R. § 51.53(a) (emphasis added).

238 See Revised GEIS, Vol. 1, Section S.5; 10 C.F.R. Part 51, Subpart A, Table B-1, n.1 (Data supporting this table are contained in NUREG-1437, Revision 1(June 2013).).

239 See Turkey Point, CLI-01-17, 54 NRC at 10. Alternatively, because Petitioner raises generalized concerns that are not unique to Peach Bottom, it could pursue its concerns regarding the sufficiency of Table B-1 findings for SLR by filing a petition for rulemaking pursuant to 10 C.F.R. § 2.802. See id. at 12.

240 Notably, if Contention 2 were admitted, Petitioners contention challenging reliance on generic determinations in Table B-1 would migrate to challenge the Staffs EIS. See Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-08-2, 67 NRC 54, 64 (2008),

citing McGuire, CLI-02-28, 56 NRC at 383 (explaining that a contention of inadequacy is migrated if the EIS analysis is essentially in pari materia with the environmental report analysis at issue and that a contention of omission is mooted if the omitted information is later supplied in the EIS; otherwise, new or amended contentions must be filed in order to raise specific challenges regarding the new information in the EIS). The contention, therefore, would become an impermissible challenge to the 10 C.F.R. §§ 51.71(d) and 51.95(c) requirements that Staff rely, in part, on the generic determinations in 10 C.F.R. Part 51, Appendix B, and the GEIS, Such challenges would still be outside the scope of this proceeding absent the grant of a petition for waiver under 10 C.F.R. § 2.335.

241 See American Centrifuge Plant, CLI-06-10, 63 NRC at 472; Fansteel, CLI-03-13, 58 NRC at 203.

Petitioners expert. Mere speculation, even by an expert, does not support the admission of a contention.

As noted above, it is obvious that the body of external operating experience that exists today could not decline. As long as other nuclear power plants, whether here or abroad, continue to operate that body will continue to grow. In addition, because the generic determinations concerning the impacts of design-basis accidents may be incorporated by reference by the Applicant pursuant to 10 C.F.R. § 51.53(a) and Staff is required to use Table B-1 in preparing its EIS,242 Petitioner does not raise a genuine dispute regarding a material issue of law or fact concerning a finding that the NRC must make to support the proposed licensing action. Petitioner does not provide an arguable basis to conclude that the studies it cites contain information unique to Peach Bottom.243 Nor does it explain why the studies constitutes new and significant information about the impacts of design-basis accidents (a Category 1 issue) that would paint a serious or dramatically different picture of environmental impacts and raise a genuine dispute concerning the generic determinations regarding environmental impacts.244 The Lochbaum Report contains no discussion of environmental consequences of SLR.

Petitioners brief reference to studies listed in the Lochbaum Report, and the incorporation by reference of that report, fails to disclose new and significant information concerning the environmental impacts of design-basis accidents or the risk of such accidents. Neither the Board nor the parties should have to sift through attachments to a pleading to find support for a 242 See 10 C.F.R. § 51.71(d) and 51.95(c).

243 See Turkey Point, CLI-01-17, 54 NRC at 12 (stating that petitioners with new and significant information that shows a generic rule would not serve its purpose at a particular plant, can seek a waiver of the rule).

244 See Massachusetts v. NRC, F. 3d at 68-69 (citation omitted); Ameren Missouri, CLI-11-5, 74 NRC at 167-68.

petitioners assertions.245 Rather, Petitioner bears the responsibility to set forth its grievances in a clear manner.246 In fact, it is not clear that the Lochbaum Report supports the premise that accident risks will be significantly different during the SLR period or that there is new and significant information about environmental impacts.

Significantly, Petitioner provides no arguable basis to conclude that the effects of aging will not be managed such that the impacts of design-basis accidents would be other than SMALL.247 Petitioner quotes from the 2014 EMDA Report that describes research needs concerning degradation that could occur during post-60-year reactor operation. But, Petitioner, overlooks publicly available information that indicates that NRC guidance documents have been revised to address information related to managing aging effects of aging during the SLR period.

The GALL-SLR Report and the SLR-SRP incorporate revisions to reflect aging differences for increased operating time from 60-80 years as well as revisions to consider new operating experience and provide information identified as missing since the release of GALL Report Rev 2 [ML103490041].248 Moreover, the GALL-SLR Report specifically states that Staff used the results of the [2014] EMDA report to identify gaps in current technical knowledge or 245 See Seabrook, CLI-12-5, 75 NRC at 332.

246 See Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-15, 71 NRC 479, 482 (2010) (citation omitted).

247 The 2013 GEIS (at S-17) explains that the Category 1 finding that environmental impacts of design-basis accidents are SMALL for all nuclear plants because [d]ue to the requirements for nuclear plants to maintain their licensing basis and implement aging management programs during the license renewal term, the environmental impacts during a license renewal term should not differ significantly from those calculated for design-basis accident assessment conducted as part of the initial plant licensing process.

248 Final Guidance Documents for [SLR], 82 Fed. Reg. 32,588 (also noting the incorporation of Interim Staff Guidance documents).

issues not being addressed by planned industry or DOE research, and to identify aging management programs that will require modification for SLR.249 Petitioner also ignores SRM-SECY-14-0016 directions concerning how emerging issues are to be addressed, as well as public NRC and DOE statements on the status of technical issues at the 2017 Commission Briefing.250 In addition, Petitioners narrow focus on domestic external experience251 appears to discount the availability of international operating experience.

Similarly, Petitioner does not address whether Applicant has committed to adopt all of the aging management program enhancements specific to the four aging issues identified in the contention or allege a deficiency in a particular AMP. Petitioners failure to examine Exelons treatment of the GALL-SLR refinements to aging management programs reveals that its concerns about environmental impacts associated with accidents risks and are generalized and not adequately supported. Absent the requisite showing of new and significant information concerning environmental impacts that is specific to Peach Bottom and the grant of a petition for wavier pursuant to 10 C.F.R. § 2.335(b), Petitioners have not raised a genuine dispute with Applicant on a material issue for contention admission as required by 10 C.F.R. § 2.309(f)(1)(v) and (vi).

Moreover, Petitioners inclusion of a Council on Environmental Quality (CEQ) regulation in its contention252 is inappropriate because it gives the impression that the regulation imposes binding requirements on the NRC. In the Diablo Canyon decision (cited in the text of 249 See, e.g., GALL-SLR at xxvii. The ER indicates that Applicant adopts by reference the applicable generic findings in Table B-1 in Part 51, Subpart A, Appendix B. ER at 4-2 to 4-4, 4-12, including the SMALL impact finding for the Category 1 Issue 65, Design-basis accidents, because no new and significant information was found and Applicant references the 2013 GEIS.

250 See discussion at section II.A.3, and footnote 83, above.

251 See, e.g., Petition at 14; Lochbaum Report at 22-25.

252 See Petition at 8 (citing 40 C.F.R. § 1502.22).

Petitioners contention), the Commission stated that the NRC, as an independent regulatory agency, is not bound by those portions of CEQ NEPA regulations that, like [40 C.F.R.

§] 1502.22, have a substantive impact on the way in which the Commission performs its regulatory functions.253 There, the Commission restated the contention without the CEQ regulation.254 Further, Diablo Canyon can be distinguished from the circumstances here. That case involved a challenge to the applicants Severe Accident Mitigation Alternatives Analysis (SAMA) for failing to consider information regarding a nearby seismic fault, citing the 10 C.F.R.

§ 51.53(c)(3)(L) requirement to consider SAMAs.255 Here, Petitioner makes no mention of SAMAs and does not show why the inclusion, in the ER, of the cited studies or a discussion of plans to compensate for reduced external operating experience is required by NRC regulations or material to the consideration of environmental impacts of SLR. No arguable basis has been provided for the Board to conclude that the information constitutes new and significant information concerning codified impact determinations in 10 C.F.R. Part 51. Generalized concerns and unsupported prognostication are not sufficient for admission of a contention.256 Thus, Contention 2 should also be rejected because it is not adequately supported and fails to show a genuine dispute concerning a material issue of law or fact as required by 10 C.F.R. § 2.309(f)(1)(v) and (vi).

253 See Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 1), CLI-11-11, 74 NRC 427, 443-444 (2011).

254 Id. at 444. If the Board decides Contention 2 is admissible here, it should similarly strike text related to the CEQ regulation.

255 Id. at 438-40. Even if Contention 2 were construed as raising an issue regarding SAMAs, the issue would be treated as the functional equivalent of a Category 1 issue in Table B-1, and would be inadmissible (absent the grant of a waiver), given that the issue was considered in a previous NRC EIS. See Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC 377, 386 (2012).

256 See Fitzpatrick, CLI-00-22, 52 NRC at 315.

CONCLUSION For the reasons set forth above, the NRC Staff respectfully submits that Petitioner has demonstrated its standing to intervene in this proceeding, but has not proffered at least one admissible contention. Accordingly, the Petition should be denied.

Respectfully submitted,

/Signed (electronically) by/

Mitzi A. Young Counsel for NRC Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop - O-14-A44 Washington, DC 20555 Telephone: (301) 287-9178 E-mail: Mitzi.Young@nrc.gov Executed in Accord with 10 C.F.R. § 2.304(d):

Kayla Gamin Counsel for NRC Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop - O-14-A44 Washington, DC 20555 Telephone: (301) 287-9234 E-mail: Kayla.Gamin@nrc.gov Dated at Rockville, Maryland this 14th day of December 2018

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

)

EXELON GENERATION COMPANY, LLC ) Docket Nos. 50-277-SLR

) 50-278-SLR (Peach Bottom Atomic Power Station, )

Units 2 and 3) )

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (as revised), I hereby certify that copies of the foregoing NRC STAFF ANSWER TO BEYOND NUCLEAR, INC.S HEARING REQUEST AND PETITION TO INTERVENE dated December 14, 2018, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this 14th day of December, 2018.

/Signed (electronically) by/

Mitzi A. Young Counsel for NRC Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop - O-14-A44 Washington, DC 20555 Telephone: (301) 287-9178 E-mail: Mitzi.Young@nrc.gov