NUREG-0750 Volume 94, Nuclear Regulatory Commission Issuances: Opinions and Decisions of the Nuclear Regulatory Commission with Selected Orders (July 1, 2021 - December 31, 2021)

NUREG-0750, Vol. 94, Nuclear Regulatory Commission Issuances: Opinions and Decisions of the Nuclear Regulatory Commission with Selected Orders (July 1, 2021 - December 31, 2021)

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NUREG-0750 V94
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NUCLEAR REGULATORY COMMISSION ISSUANCES OPINIONS AND DECISIONS OF THE NUCLEAR REGULATORY COMMISSION WITH SELECTED ORDERS July 1, 2021 - December 31, 2021 Volume 94 Pages 1 - 83 Prepared by the Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301-415-0955)

COMMISSIONERS Christopher T. Hanson, Chairman Jeff Baran David A. Wright Margaret M. Doane, Executive Director for Operations (July 1, 2021 to October 9, 2021)

Daniel H. Dorman, Executive Director for Operations (October 10, 2021 to December 31, 2021)

Marian L. Zobler, General Counsel E. Roy Hawkens, Chief Administrative Judge, Atomic Safety & Licensing Board Panel ii

ATOMIC SAFETY AND LICENSING BOARD PANEL E. Roy Hawkens,* Chief Administrative Judge Paul S. Ryerson,* Associate Chief Administrative Judge (Legal)

Dr. Sue H. Abreu,* Associate Chief Administrative Judge (Technical)

Members Dr. Gary S. Arnold* Michael M. Gibson* Dr. Sekazi K. Mtingwa Dr. Anthony J. Baratta Dr Yassin A. Hassan Dr. William W. Sager Dr. Mark O. Barnett Dr. William E. Kastenberg Ronald M. Spritzer*

G. Paul Bollwerk, III* Dr. Michael F. Kennedy Nicholas G. Trikouros*

Michael C. Farrar Lawrence G. McDade Dr. Craig M. White William J. Froehlich* Dr. Alice C. Mignerey

• Full-time panel members iii

PREFACE This is the ninety-fourth volume of issuances (1-83) of the Nuclear Regulatory Commission and its Atomic Safety and Licensing Boards, Administrative Law Judges, and Office Directors. It covers the period from July 1, 2021, to December 31, 2021.

Atomic Safety and Licensing Boards are authorized by Section 191 of the Atomic Energy Act of 1954. These Boards, comprised of three members, conduct adjudicatory hearings on applications to construct and operate nuclear power plants and related facilities and issue initial decisions which, subject to internal review and appellate procedures, become the final Commission action with respect to those applications. Boards are drawn from the Atomic Safety and Licensing Board Panel, comprised of lawyers, nuclear physicists and engineers, environmentalists, chemists, and economists. The Atomic Energy Commission (AEC) first established Licensing Boards in 1962 and the Panel in 1967.

Between 1969 and 1990, the AEC authorized Atomic Safety and Licensing Appeal Boards to exercise the authority and perform the review functions which would otherwise have been exercised and performed by the Commission in facility licensing proceedings. In 1972, that Commission created an Appeal Panel, from which were drawn the Appeal Boards assigned to each licensing proceeding. The functions performed by both Appeal Boards and Licensing Boards were transferred from the AEC to the Nuclear Regulatory Commission by the Energy Reorganization Act of 1974. Appeal Boards represented the final level in the administrative adjudicatory process to which parties could appeal.

Parties, however, were permitted to seek discretionary Commission review of certain board rulings. The Commission also could decide to review, on its own motion, various decisions or actions of Appeal Boards.

On June 29, 1990, however, the Commission voted to abolish the Atomic Safety and Licensing Appeal Panel, and the Panel ceased to exist as of June 30, 1991. Since then, the Commission itself reviews Licensing Board and other adjudicatory decisions, as a matter of discretion. See 56 FR 29403 (1991).

The Commission also may appoint Administrative Law Judges pursuant to the Administrative Procedure Act, who preside over proceedings as directed by the Commission.

The hardbound edition of the Nuclear Regulatory Commission Issuances is a final compilation of the monthly issuances. It includes all of the legal precedents for the agency within a six-month period. Any opinions, decisions, denials, memoranda and orders of the Commission inadvertently omitted from the monthly softbounds and any corrections submitted by the NRC legal staff to the printed softbound issuances are contained in the hardbound edition. Cross references in the text and indexes are to the NRCI page numbers which are the same as the page numbers in this publication.

Issuances are referred to as follows: Commission (CLI), Atomic Safety and Licensing Boards (LBP), Administrative Law Judges (ALJ), Directors' Decisions (DD), and Decisions on Petitions for Rulemaking (DPRM).

The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or to have any independent legal significance.

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Available from U.S. Government Publishing Office PO Box 979050 St. Louis, MO 63197-9000 https://bookstore.gpo.gov/customer-service/order-methods A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.

Single copies of this publication are available from National Technical Information Service 5301 Shawnee Rd Alexandria, VA 22312 Errors in this publication may be reported to the Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301-415-0955)

CONTENTS Issuance of the Nuclear Regulatory Commission FIRSTENERGY COMPANIES and TMI-2 SOLUTIONS, LLC (Three Mile Island Nuclear Station, Unit 2)

Docket 50-320-LT Memorandum and Order, CLI-21-10, August 31, 2021 . . . . . . . . . . . . . . 57 Issuances of the Atomic Safety and Licensing Board NEXTERA ENERGY POINT BEACH, LLC (Point Beach Nuclear Plant, Units 1 and 2)

Dockets 50-266-SLR, 50-301-SLR Memorandum and Order, LBP-21-5, July 26, 2021 . . . . . . . . . . . . . . . . . 1 TENNESSEE VALLEY AUTHORITY (Enforcement Action)

Dockets EA-20-006, EA-20-007 Memorandum and Order, LBP-21-6, November 3, 2021 . . . . . . . . . . . . . 61 Order, LBP-21-7, November 10, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Indexes Case Name Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1 Legal Citations Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-3 Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-3 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-15 Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-21 Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-23 Subject Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-25 Facility Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-41 vii

Cite as 94 NRC 1 (2021) LBP-21-5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

William J. Froehlich, Chairman Dr. Gary S. Arnold Nicholas G. Trikouros In the Matter of Docket Nos. 50-266-SLR 50-301-SLR (ASLBP No. 21-971-02-SLR-01)

NEXTERA ENERGY POINT BEACH, LLC (Point Beach Nuclear Plant, Units 1 and 2) July 26, 2021 On November 16, 2020, NextEra Point Beach, LLC submitted a subsequent license renewal application to renew the Point Beach Nuclear Plant, Units 1 and 2 operating licenses for an additional 20 years. On January 22, 2021, the Nuclear Regulatory Commission (NRC) published a Federal Register notice of opportunity to request a hearing and to petition for leave to intervene. On March 23, 2021, Physicians for Social Responsibility Wisconsin filed a petition seeking to intervene in this proceeding, proffering four proposed contentions and requesting a hearing. The Board denied the hearing request, finding that none of the proposed contentions are admissible.

RULES OF PRACTICE: ATOMIC ENERGY ACT ATOMIC ENERGY ACT: HEARING RIGHT; REQUIREMENT OF HEARING Under section 189a of the Atomic Energy Act, the NRC is required to grant 1

a hearing upon the request of any person whose interest may be affected by the proceeding . . . . Atomic Energy Act § 189(a)(1)(A), 42 U.S.C. § 2239(a)(1)(A).

RULES OF PRACTICE: STANDING TO INTERVENE ATOMIC ENERGY ACT: STANDING TO INTERVENE; INJURY IN FACT In determining whether a petitioner has established standing, the Commission applies contemporaneous judicial concepts of standing that require a petitioner to (1) allege an injury in fact that is (2) fairly traceable to the challenged action and (3) is likely to be redressed by a favorable decision. Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-15-25, 82 NRC 389, 394 (2015).

RULES OF PRACTICE: STANDING TO INTERVENE (PROXIMITY PRESUMPTION)

In certain reactor licensing proceedings (e.g., reactor construction permit pro-ceedings and new reactor operating license proceedings), the Commission has expressly authorized the use of a proximity presumption, which presumes that petitioners have standing if they reside, or otherwise have frequent contacts, within approximately 50 miles of the facility in question. See PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 NRC 133, 138-39 (2010);

Calvert Cliffs 3 Nuclear Project, LLC, and UniStar Nuclear Operating Ser-vices, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915-17 (2009).

RULES OF PRACTICE: STANDING TO INTERVENE (PROXIMITY PRESUMPTION)

Licensing boards routinely have applied the 50-mile proximity presumption in reactor license renewal proceedings, reasoning that a license renewal allows operation of a reactor over an additional period of time during which the reactor could be subject to the same equipment failures and personnel errors as during operations over the original period of the license. Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), LBP-12-8, 75 NRC 539, 547, revd in part on other grounds, CLI-12-19, 76 NRC 377 (2012); see Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), LBP-21-4, 93 NRC 179, 197 & n.32 (2021), appeal pending (citing Exelon Generation Co.,

LLC (Peach Bottom Atomic Power Station, Units 2 and 3), LBP-19-5, 89 NRC 483, 490-91 (2019), affd on other grounds, CLI-20-11, 92 NRC 335 (2020);

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Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4),

LBP-19-3, 89 NRC 245, 258-59 (2019), appeal dismissed and referred ruling affd, CLI-20-3, 91 NRC 133 (2020)).

RULES OF PRACTICE: STANDING TO INTERVENE (REPRESENTATIONAL)

An organization that seeks to intervene on behalf of one or more of its mem-bers must demonstrate representational standing. To do so, the organization must show that (1) at least one of its members would have standing to sue in their own right; (2) the member has authorized the organization to represent his or her interest; (3) the interests that the organization seeks to protect are ger-mane to its purpose; and [(4)] neither the claim asserted nor the relief requested requires the member to participate in the adjudicatory proceeding. See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 323 (1999).

RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY);

HEARING REQUIREMENT The Commissions contention admissibility requirements are strict by de-sign. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001).

RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY);

HEARING REQUIREMENT The petitioner alone bears the burden to satisfy each contention admissibility requirement. Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 329 (2015) (quoting Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998)); DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 149 (2015).

RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY);

HEARING REQUIREMENT The contention admissibility rules require a clear statement as to the ba-sis for the contentions and the submission of . . . supporting information and references to specific documents and sources that establish the validity of the contention. AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Sta-tion), CLI-06-24, 64 NRC 111, 118-19 (2006) (quoting Arizona Public Service 3

Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155-56 (1991)).

RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY);

HEARING REQUIREMENT A petitioner need not prove its contention at the contention admissibility stage, Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installa-tion), CLI-04-22, 60 NRC 125, 139 (2004), but the contention admissibility standards require that petitioners proffer at least some minimal factual and legal foundation in support of their contentions. Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334 (1999).

RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY);

HEARING REQUIREMENT Bare assertions and speculation, even by an expert, are insufficient to trigger a full adjudicatory proceeding. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 714 (2012) (quoting AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 674 (2008)). [A]n ex-pert opinion that merely states a conclusion . . . 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

. . . . USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006) (citation omitted); see Power Authority of the State of New York (James A. Fitzpatrick Nuclear Power Plant; Indian Point, Unit 3), CLI-00-22, 52 NRC 266, 315 (2000).

RULES OF PRACTICE: CONTENTIONS (GOOD CAUSE);

AMENDMENT OF CONTENTIONS

[M]otions for leave to file . . . amended contentions . . . after the [hear-ing request] deadline . . . will not be entertained absent a determination by the presiding officer that a participant has demonstrated good cause . . . . 10 C.F.R. § 2.309(c). Once a movant satisfies the motion to amend requirements, id. § 2.309(c)(i)-(iii), a new or amended contention must still satisfy the con-tention admissibility standards in 10 C.F.R. § 2.309(f) to be admitted.

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RULES OF PRACTICE: CONTENTIONS (GOOD CAUSE);

AMENDMENT OF CONTENTIONS The Commission and licensing boards typically consider 30 to 60 days from the initiating event a reasonable deadline for proposing new or amended con-tentions. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-21, 76 NRC 491, 499 (2012)

(footnote omitted).

RULES OF PRACTICE: CHALLENGE TO COMMISSION REGULATIONS ADJUDICATORY BOARDS: SCOPE OF REVIEW ADJUDICATORY PROCEEDINGS: SCOPE ADJUDICATORY HEARINGS: CONSIDERATION OF ISSUES INVOLVED IN RULEMAKING LICENSING BOARD(S): SCOPE OF REVIEW Contentions that challenge NRC regulations are outside the scope of NRC adjudicatory proceedings. 10 C.F.R. § 2.335(a); see Dominion Nuclear Con-necticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 559-60 (2005).

RULES OF PRACTICE: CHALLENGE TO COMMISSION REGULATIONS ADJUDICATORY BOARDS: SCOPE OF REVIEW ADJUDICATORY PROCEEDINGS: SCOPE LICENSING BOARD(S): SCOPE OF REVIEW Contentions that seek to impose requirements stricter than those imposed by the agency are outside the scope of NRC adjudicatory proceedings. See, e.g., Calvert Cliffs 3 Nuclear Project, LLC, and UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-8, 80 NRC 71, 79 n.27 (2014); NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-12-5, 75 NRC 301, 315 (2012); GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 206 (2000).

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RULES OF PRACTICE: CHALLENGE TO PERFORMANCE OF NRC STAFF DUTIES ADJUDICATORY BOARDS: SCOPE OF REVIEW ADJUDICATORY PROCEEDINGS: SCOPE LICENSING BOARD(S): SCOPE OF REVIEW Contentions that challenge the manner in which the NRC Staff performs its duties are outside the scope of NRC adjudicatory proceedings. See, e.g.,

Millstone, CLI-05-24, 62 NRC at 570; Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 350 (1998),

affd sub nom. Natl Whistleblower Ctr. v. NRC, 208 F.3d 256 (D.C. Cir. 2000),

cert. denied, 531 U.S. 1070 (2001); Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-80-12, 11 NRC 514, 516 (1980).

RULES OF PRACTICE: CHALLENGE TO COMMISSION REGULATIONS; WAIVER OF RULES OR REGULATIONS ADJUDICATORY BOARDS: SCOPE OF REVIEW ADJUDICATORY PROCEEDINGS: SCOPE ADJUDICATORY HEARINGS: CONSIDERATION OF ISSUES INVOLVED IN RULEMAKING LICENSING BOARD(S): SCOPE OF REVIEW Issues addressed and decided in Commission rulemaking may not be chal-lenged in an adjudicatory proceeding (absent the filing and granting of a waiver),

see 10 C.F.R. § 2.335(b), as the Commission has deemed such actions impermis-sible collateral attacks on NRC rules. See North Atlantic Energy Service Corp.

(Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 217 n.8 (1999); Curators of the University of Missouri, CLI-95-1, 41 NRC 71, 170 (1995); American Nuclear Corp. (Revision of Orders to Modify Source Materials Licenses), CLI-86-23, 24 NRC 704, 707, 709-10 (1986).

RULES OF PRACTICE: SCOPE OF LICENSE RENEWAL ADJUDICATORY PROCEEDINGS: SCOPE LICENSING BOARD(S): SCOPE OF REVIEW The Commission has limited the safety review of license renewal applications 6

conducted by the NRC to the matters described in 10 C.F.R. § 54.29(a)(1)-(2).

See Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-26, 56 NRC 358, 363 (2002); Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI 17, 54 NRC 3, 7-8 (2001).

OPERATING LICENSE(S): HEALTH AND SAFETY REGULATIONS The actions with regard to aging management and time-limited aging analyses (TLAAs) must provide reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the [current licensing basis (CLB)], and that any changes made to the plants CLB . . . are in accord with the [Atomic Energy Act] and the Commissions regulations. 10 C.F.R. § 54.29(a).

OPERATING LICENSE(S): HEALTH AND SAFETY REGULATIONS The CLB is a term of art comprehending the various Commission require-ments applicable to a specific plant that are in effect at the time of the license renewal application. The current licensing basis consists of the license require-ments, including license conditions and technical specifications. It also includes the plant-specific design basis information documented in the plants most re-cent Final Safety Analysis Report, and any orders, exemptions, and licensee commitments that are part of the docket for the plants license, i.e., responses to NRC bulletins, generic letters, and enforcement actions, and other licensee commitments documented in NRC safety evaluations or licensee event reports.

See 10 C.F.R. § 54.3. The current licensing basis additionally includes all of the regulatory requirements found in Parts 2, 19, 20, 21, 30, 40, 50, 55, 72, 73, and 100 with which the particular applicant must comply. Turkey Point, CLI-01-17, 54 NRC at 9 (citation omitted).

RULES OF PRACTICE: SCOPE OF LICENSE RENEWAL ADJUDICATORY BOARDS: SCOPE OF REVIEW ADJUDICATORY PROCEEDINGS: SCOPE LICENSING BOARD(S): SCOPE OF REVIEW The Commission has stated that [a]djudicatory 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 questions our safety rules make pertinent. Turkey Point, CLI-01-17, 7

54 NRC at 10; see Nuclear Power Plant License Renewal; Revisions, 60 Fed.

Reg. 22,461, 22,482 n.2 (May 8, 1995).

ADJUDICATORY BOARDS: SCOPE OF REVIEW ADJUDICATORY PROCEEDINGS: SCOPE LICENSING BOARD(S): SCOPE OF REVIEW The Commission declared that [t]o require a full reassessment of [safety is-sues] at the license renewal stage . . . would be both unnecessary and wasteful.

Accordingly, the NRCs license renewal review focuses on those potential detri-mental effects of aging that are not routinely addressed by ongoing regulatory oversight programs. Turkey Point, CLI-01-17, 54 NRC at 7.

ADJUDICATORY BOARDS: SCOPE OF REVIEW ADJUDICATORY PROCEEDINGS: SCOPE LICENSING BOARD(S): SCOPE OF REVIEW NRCs license renewal safety review focuses on plant systems, structures, and components for which current [regulatory] activities and requirements may not be sufficient to manage the effects of aging in the period of extended oper-ation. 60 Fed. Reg. at 22,469.

ADJUDICATORY BOARDS: SCOPE OF REVIEW ADJUDICATORY PROCEEDINGS: SCOPE LICENSING BOARD(S): SCOPE OF REVIEW OPERATING LICENSE(S): HEALTH AND SAFETY REGULATIONS The adequacy of a plants CLB is not addressed during the license renewal safety review. Turkey Point, CLI-01-17, 54 NRC at 23; see 10 C.F.R. § 54.30(b).

OPERATING LICENSE(S): HEALTH AND SAFETY REGULATIONS With respect to each structure, system, or component requiring aging man-agement review, a license renewal applicant must demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the CLB for the period of extended operation. En-tergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim 8

Nuclear Power Station), CLI-10-14, 71 NRC 449, 456 (2010) (quoting 10 C.F.R.

§ 54.21(a)(3)).

ADJUDICATORY BOARDS: SCOPE OF REVIEW ADJUDICATORY PROCEEDINGS: SCOPE LICENSING BOARD(S): SCOPE OF REVIEW REGULATIONS: DEFINITIONS (ACTIVE/PASSIVE COMPONENT)

The NRC has limited the scope of the aging management reviews to those structures and components [t]hat perform an intended function, as described in

§ 54.4, without moving parts or without a change in configuration or properties and [t]hat are not subject to replacement based on a qualified life or specified time period. 10 C.F.R. § 54.21(a)(1)(i)-(ii). As such, [o]nly passive, long-lived structures and components are subject to an aging management review for license renewal. 60 Fed. Reg. at 22,463.

NEPA: AGENCY RESPONSIBILITIES; CONSIDERATION OF ALTERNATIVES; SCOPE OF REVIEW NRC: RESPONSIBILITIES UNDER 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, as well as reasonable alternatives to that action. See Seabrook, CLI-12-5, 75 NRC at 338; Crow Butte Resources, Inc. (Marsland Expansion Area), LBP 2, 89 NRC 18, 40 (2019) (citing Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 87-88 (1998)).

NEPA: AGENCY RESPONSIBILITIES; CONSIDERATION OF ALTERNATIVES; RULE OF REASON; SCOPE OF REVIEW NRC: RESPONSIBILITIES UNDER NEPA The NRCs environmental review is limited by a rule of reason in that consideration of environmental impacts need not address all theoretical pos-sibilities, but rather only those that have some reasonable possibility of oc-curring. Marsland, LBP-19-2, 89 NRC at 40 (quoting Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-156, 6 AEC 831, 836 (1973)). In evaluating reasonable impacts, an agency need not perform anal-yses concerning events that would be considered worst case scenarios . . .

or those considered remote and highly speculative. Holtec International (HI-9

STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC 353, 375 (2019) (quoting Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 352 (2002); Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 754-55 (3d Cir. 1989)).

NEPA: AGENCY RESPONSIBILITIES; CONSIDERATION OF ALTERNATIVES; SCOPE OF REVIEW NRC: RESPONSIBILITIES UNDER NEPA NEPA affords agencies . . . broad discretion to keep their inquiries within appropriate and manageable boundaries. Marsland, LBP-19-2, 89 NRC at 40 (quoting Claiborne, CLI-98-3, 47 NRC at 103). The Commission has echoed this principle stating that NEPA requires consideration of reasonable alterna-tives, not all conceivable ones. Seabrook, CLI-12-5, 75 NRC at 338 (quoting Nat. Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 834, 837, 838 (D.C. Cir.

1972)).

NEPA: AGENCY RESPONSIBILITIES; CONSIDERATION OF ALTERNATIVES; SCOPE OF REVIEW NRC: RESPONSIBILITIES UNDER NEPA The NRCs environmental review does not require a determination of the best method for electricity generation, rather the review is limited to the adverse environmental effects of the proposed action, as well as analyses of reasonable alternatives. See Seabrook, CLI-12-5, 75 NRC at 338; Marsland, LBP-19-2, 89 NRC at 40 (citing Claiborne, CLI-98-3, 47 NRC at 87-88); En-vironmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,473 (June 5, 1996) ([T]he NRC has no regulatory power to ensure that environmentally superior energy alternatives are used in the future.).

NEPA: AGENCY RESPONSIBILITIES REGULATIONS: INTERPRETATION (10 C.F.R. § 51.95)

Section 51.95(c)(4) of 10 C.F.R. states that only if the adverse environmental impacts of license renewal are so great as to warrant depriving energy planners of the option of a facilitys continued operation may the NRC consider denying license renewal altogether.

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NEPA: AGENCY RESPONSIBILITIES; SCOPE OF REVIEW LICENSING BOARD(S): SCOPE OF REVIEW (GENERIC ISSUES)

RULES OF PRACTICE: GENERIC ISSUES NRC: RESPONSIBILITIES UNDER NEPA REGULATIONS: INTERPRETATION (10 C.F.R. § 51.53)

The agencys NEPA regulations require that an applicant include in its en-vironmental report analyses of the environmental impacts of the proposed ac-tion . . . for those issues identified as Category 2 issues . . . . 10 C.F.R.

§ 51.53(c)(3)(ii). An environmental report is not required to contain analy-ses of the environmental impacts of the license renewal issues identified as Category 1, id. § 51.53(c)(3)(i), unless there is any new and significant infor-mation regarding the environmental impacts . . . of a Category 1 issue. Id.

§ 51.53(c)(3)(iv).

NEPA: NEED FOR POWER REGULATIONS: INTERPRETATION (10 C.F.R. § 51.53)

An applicant or licensee must discuss the environmental impacts of alterna-tives and any other matters described in [10 C.F.R.] § 51.45, but an environ-mental report is not required to include discussion of need for power or the economic costs and economic benefits of the proposed action or of alternatives to the proposed action unless such a discussion is essential to determine whether an alternative should be included in the ER. 10 C.F.R. § 51.53(c)(2);

see 61 Fed. Reg. at 28,468.

LICENSING BOARD(S): SCOPE OF REVIEW (GENERIC ISSUES)

NEPA: SCOPE OF REVIEW RULES OF PRACTICE: ADMISSIBILITY OF CONTENTIONS (GENERIC ISSUES); WAIVER OF RULES OR REGULATIONS A petitioner may only challenge the Category 1 generic conclusions if the rule is waived by the Commission after filing a successful waiver petition. See 10 C.F.R. § 2.335(b). Otherwise Category 1 conclusions may not be challenged in litigation . . . . Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 17-18, reconsideration denied, CLI-07-13, 65 NRC 211, 215 (2007).

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EPA AUTHORITY: DETERMINATION; NUCLEAR PLANT COOLING SYSTEM FWPCA: EPA AUTHORITY; NRC AUTHORITY REGULATIONS: INTERPRETATION (10 C.F.R. § 51.53)

Section 51.53(c)(3)(ii)(B) of 10 C.F.R. only requires an assessment of en-trainment, impingement, and thermal impacts if an applicant or licensee cannot provide a current determination under Clean Water Act (CWA) § 316(b) and, if necessary, a variance under CWA § 316(a). Clean Water Act § 316(a), (b), 33 U.S.C. § 1326(a), (b).

EPA AUTHORITY: DETERMINATION; NUCLEAR PLANT COOLING SYSTEM FWPCA: EPA AUTHORITY; NRC AUTHORITY; STATE AUTHORITY REGULATIONS: INTERPRETATION (10 C.F.R. § 51.53)

The Commission has held that 10 C.F.R. § 51.53(c)(3)(ii)(B) rests on the presumption that [NRC] need not indeed cannot review and judge environ-mental permits issued under the Clean Water Act by the EPA or an authorized state agency. Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Op-erations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371, 387 n.77 (2007). Once an applicant or licensee provides the information in section 51.53(c)(3)(ii)(B), the NRC is required by law to consider the [per-mitting agencys] decision [on thermal impacts] as binding. Id. at 388 (citing Carolina Power and Light Co. (H.B. Robinson, Unit 2), ALAB-569, 10 NRC 557, 558 (1979)); see Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 23-28 (1978).

EPA AUTHORITY: DETERMINATION; NUCLEAR PLANT COOLING SYSTEM FWPCA: EPA AUTHORITY; NRC AUTHORITY; STATE AUTHORITY REGULATIONS: INTERPRETATION (10 C.F.R. § 51.53)

The NRCs role in evaluating a plants cooling system is limited the permitting agency determines what cooling system a nuclear power facility may use[,] and NRC factors the impacts resulting from use of that system into the NEPA [ ] analysis. Vt. Yankee, CLI-07-16, 65 NRC at 389 (quoting Seabrook, 12

CLI-78-1, 7 NRC at 26). The NRC may not consider alternative cooling systems as that would improperly second-guess[ ] the cooling system approved by the permitting agency. Id. at 377.

EPA AUTHORITY: DETERMINATION; NUCLEAR PLANT COOLING SYSTEM FWPCA: EPA AUTHORITY; NRC AUTHORITY; STATE AUTHORITY LICENSING BOARD(S): AUTHORITY REGULATIONS: INTERPRETATION (10 C.F.R. § 51.53)

The Commission stated that [i]n future cases where EPA [or . . . a state permitting agency] has made the necessary factual findings for approval of a specific once-through cooling system for a facility after full administrative pro-ceedings, we expect our adjudicatory boards to do as we have done today, i.e.,

defer to the agency that issued the section 316(a) permit. Vt. Yankee, CLI 16, 65 NRC at 389 (quoting Seabrook, CLI-78-1, 7 NRC at 28 n.42) (quotations and citation omitted).

EPA AUTHORITY: DETERMINATION; NUCLEAR PLANT COOLING SYSTEM FWPCA: EPA AUTHORITY; NRC AUTHORITY; STATE AUTHORITY When Congress enacted CWA section 511(c)(2) it removed the broad re-sponsibility of multiple federal agencies for water quality standards and [ ] placed that responsibility solely in the hands of the EPA [or an authorized state agen-cy]. Vt. Yankee, CLI-07-16, 65 NRC at 388 (citing H.B. Robinson, ALAB-569, 10 NRC at 561); see Seabrook, CLI-78-1, 7 NRC at 25 (As Senator Baker ex-plained in introducing the floor amendment which was the forerunner of [CWA]

section 511(c)(2), duplication was to be avoided by leaving to EPA and the states the decision as to the water pollution control criteria to which a facilitys cooling system would be held. (quoting Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-366, 5 NRC 39, 51-52 (1977))).

LICENSING BOARD(S): AUTHORITY The Commission has made it clear that licensing boards may not entertain 13

arguments advanced for the first time in a reply brief. See USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 439 (2006).

OPERATING LICENSE(S): HEALTH AND SAFETY REGULATIONS REGULATIONS: INTERPRETATION (10 C.F.R. § 50.61; 10 C.F.R.

PART 50, APPENDIX G)

TECHNICAL ISSUE(S) DISCUSSED: NEUTRON EMBRITTLEMENT Section 50.61 and Part 50, Appendix G of 10 C.F.R. set forth the neutron embrittlement monitoring requirements. See 10 C.F.R. § 50.61; id. pt. 50, app.

G.

OPERATING LICENSE(S): HEALTH AND SAFETY REGULATIONS RULES OF PRACTICE: GENERIC ISSUES TECHNICAL ISSUE(S) DISCUSSED: NEUTRON EMBRITTLEMENT To monitor neutron embrittlement, licensees periodically withdraw capsules placed near the inside of the vessel wall. 2 Office of Nuclear Reactor Regu-lation (NRR), NRC, NUREG-2191, Generic Aging Lessons Learned for [SLR]

(GALL-SLR) Report, at XI.M31-1 (July 2017) (ADAMS Accession No. ML-17187A204). The capsules duplicate, as closely as possible, the neutron spec-trum, temperature history, and maximum neutron fluence experienced at the reactor vessels inner surface, while also typically receiv[ing] neutron fluence exposures that are higher than the inner surface of the reactor vessel. Id. This method ensures that the supplement A capsule is withdrawn and tested [for fracture toughness data] prior to the inner surface receiving an equivalent neu-tron fluence so that the surveillance test results bound the conditions at the end of the subsequent period of extended operation. Id.

OPERATING LICENSE(S): HEALTH AND SAFETY REGULATIONS REGULATIONS: INTERPRETATION (10 C.F.R. § 54.21)

Under 10 C.F.R. § 54.21(c)(1)(i)-(iii), the NRC permits licensees to address TLAAs in one of three ways: (i) demonstrating that existing analyses re-main valid for the period of extended operation; (ii) revising existing analyses to demonstrate their validity to the end of the period of extended operation; or (iii) demonstrating that [t]he effects of aging on the intended function(s) will be adequately managed for the period of extended operation. 10 C.F.R.

§ 54.21(c)(1)(i)-(iii).

14

RULES OF PRACTICE: REASONABLE ALTERNATIVES NEPA: CONSIDERATION OF ALTERNATIVES TECHNICAL ISSUE(S) DISCUSSED: ALTERNATIVE SOURCES OF ENERGY The NRC has defined the scope of reasonable alternatives that must be considered in a license renewal application. The GEIS states that [a] reasonable alternative [replacement power] must be commercially viable on a utility scale and operational prior to the expiration of the reactors operating license, or expected to become commercially viable on a utility scale and operational prior to the expiration of the reactors operating license. 1 NRR, NRC, NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, at 2-18 (rev. 1 June 2013) (ADAMS Accession No. ML13106A241).

RULES OF PRACTICE: REASONABLE ALTERNATIVES NEPA: CONSIDERATION OF ALTERNATIVES TECHNICAL ISSUE(S) DISCUSSED: ALTERNATIVE SOURCES OF ENERGY The Commission stated that to raise a genuine dispute, contentions regarding reasonable alternatives in license renewal proceedings must provide alleged facts or expert opinion sufficient to raise a genuine dispute as to whether the best information available today suggests that commercially viable alternative technology (or combination of technologies) is available now, or will become so in the near future, to supply baseload power. Seabrook, CLI-12-5, 75 NRC at 342.

RULES OF PRACTICE: REASONABLE ALTERNATIVES NEPA: CONSIDERATION OF ALTERNATIVES TECHNICAL ISSUE(S) DISCUSSED: ALTERNATIVE SOURCES OF ENERGY The Commission stated that its Seabrook ruling does not exclude the possi-bility that a contention could show a genuine dispute with respect to a technology that, while not commercially viable at the time of the application, is under de-velopment for large-scale use and is likely to be available during the period of extended operation. Seabrook, CLI-12-5, 75 NRC at 342 n.245 (citing Carolina Envtl. Study Group v. U.S., 510 F.2d 796, 800 (D.C. Cir. 1975)). Thus, while a petitioner may proffer future-oriented testimony to demonstrate a genuine 15

dispute with respect to commercially available technology, it must also show that the solar plus storage technology is under development for large-scale use

. . . . Id.

REGULATIONS: DEFINITIONS (ACTIVE/PASSIVE COMPONENT);

INTERPRETATION OF 10 C.F.R. § 54.21 RULES OF PRACTICE: GENERIC ISSUES TECHNICAL ISSUE(S) DISCUSSED: PLANT DESIGN Active components are not subject to an aging-management review, as stated in 10 C.F.R. § 54.21(a)(1)(i)-(ii). Turbine blades and shafts are active compo-nents not subject to an aging-management review. 1 NRR, NRC, NUREG-2191, Generic Aging Lessons Learned for [SLR] (GALL-SLR) Report, at VIII A-1 (July 2017) (ADAMS Accession No. ML17187A031).

MEMORANDUM AND ORDER (Denying Physicians for Social Responsibility Wisconsins Request for Hearing)

In this docket, licensee NextEra Energy Point Beach, LLC (NEPB, Next-Era) has filed an application seeking a twenty-year subsequent (second) license renewal (SLR) of its Renewed Facility Operating Licenses Nos. DPR-24 and DPR-27 to operate its Point Beach Nuclear Plant, Units 1 and 2. Physicians for Social Responsibility Wisconsin (PSR WI, Petitioner) filed a hearing request on March 23, 2021 proffering four contentions challenging NextEras application.1 NextEra and the NRC Staff oppose Petitioners hearing request.2 For the reasons set forth below, we find Petitioner has established represen-tational standing to intervene, but failed to meet the Commissions contention admissibility standards. Accordingly, the PSR WI hearing petition must be de-nied and this proceeding terminated before the Licensing Board.

1 Petition of Physicians for Social Responsibility Wisconsin for Leave to Intervene in Point Beach Nuclear Plant, Units 1 and 2 Subsequent License Renewal Proceeding, and Requesting an Adjudi-catory Hearing (Mar. 23, 2021) [hereinafter Petition].

2 NextEra Energy Point Beach, LLCs Answer Opposing the Physicians for Social Responsibility Wisconsins Petition for Leave to Intervene and Request for Hearing (Apr. 19, 2021) [hereinafter NEPB Answer]; NRC Staffs Answer Opposing Physicians for Social Responsibility Wisconsins Petition to Intervene (Apr. 19, 2021) [hereinafter Staff Answer].

16

I. BACKGROUND On November 16, 2020, NEPB submitted an SLR application to renew the Point Beach operating licenses for an additional 20 years, which would extend the Unit 1 license to October 5, 2050 and the Unit 2 license to March 8, 2053.3 On January 22, 2021, the Nuclear Regulatory Commission (NRC) published a Federal Register notice of opportunity to request a hearing and to petition for leave to intervene.4 The Federal Register notice permitted any person whose interest may be affected to file a request for hearing and petition for leave to intervene within 60 days.5 On March 23, 2021, PSR WI filed its petition seeking to intervene in this SLR proceeding, proffering four proposed contentions and requesting a hear-ing.6 On April 19, 2021, NEPB and the NRC Staff filed answers opposing the hearing request.7 NEPB and the NRC Staff did not challenge Petitioners claims of standing, but argued Petitioner failed to proffer an admissible contention.8 On April 26, 2021, Petitioner filed a reply and a motion to amend its proposed Contention 2.9 On May 21, 2021, NEPB filed an answer opposing the motion to 3 The Point Beach SLR application, which consists of a cover letter and five enclosures, can be found in an ADAMS package at ADAMS Accession No. ML20329A292. Of particular relevance here are enclosure 3, attachment 1 to the applications cover letter, which is the publicly available version of the application, and enclosure 3, attachment 2 to the applications cover letter, which is the environmental report (ER) appendix to the application. See NEPB, Point Beach Nuclear Plant Units 1 and 2 Subsequent License Renewal Application (Public Version), encl. 3, attach. 1 (rev. 0 Nov. 2020) (ADAMS Accession No. ML20329A247) [hereinafter SLRA]; NEPB, Appendix E Applicants Environmental Report Subsequent Operating License Renewal Point Beach Nuclear Plant Units 1 and 2, encl. 3, attach. 2 (rev. 0 Nov. 2020) (ADAMS Accession No. ML20329A248)

[hereinafter ER]. The SLR application seeks to extend the life of Point Beach Units 1 and 2 from 60 to 80 years, after having already had a license renewal extending operation from 40 to 60 years.

4 NextEra Energy Point Beach, LLC; Point Beach Nuclear Plant, Units 1 and 2, 86 Fed. Reg.

6,684 (Jan. 22, 2021).

5 Id. at 6,685.

6 See Petition at 1, 15-16. The petition is accompanied by several expert and standing declarations.

See Declaration of Arnold Gundersen (Mar. 23, 2021) [hereinafter Gundersen Decl.]; Declaration of Alvin Compaan, Ph.D. (Mar. 23, 2021) [hereinafter Compaan Decl.]; Declaration of Mark Cooper, Ph.D. (Mar. 23, 2021) [hereinafter Cooper Decl.]; Declarations in Support of Petition of Physicians for Social Responsibility Wisconsin for Leave to Intervene (Mar. 23, 2021).

7 See generally NEPB Answer; Staff Answer.

8 NEPB Answer at 3; Staff Answer at 6-7.

9 Physicians for Social Responsibility Wisconsins Reply in Support of Petition for Leave to In-tervene in Point Beach Nuclear Plant, Units 1 and 2 Subsequent License Renewal Proceeding, and Requesting an Adjudicatory Hearing (Apr. 26, 2021) [hereinafter Petitioner Reply]; Physicians for Social Responsibility Wisconsins Motion to Amend Contention 2 (Inadequately Tested Reactor Coolant Pressure Boundary) (Apr. 26, 2021) [hereinafter Petitioner Motion to Amend]; Petitioner (Continued) 17

amend.10 On the same day, the NRC Staff filed an answer that did not oppose the motion to amend, but argued the amended contention is inadmissible.11 On May 28, 2021, Petitioner filed a reply to those answers.12 On June 22, 2021 oral argument was held, via WebEx, on the four proposed contentions and Pe-titioners motion to amend Contention 2.13 II. LEGAL STANDARDS To participate in an SLR proceeding as an intervenor, a petitioner must es-tablish standing and proffer at least one admissible contention.14 We summarize the applicable legal standards below.15 A. Legal Requirements for Standing In determining whether a petitioner has established standing, the Commission applies contemporaneous judicial concepts of standing that require a petitioner to (1) allege an injury in fact that is (2) fairly traceable to the challenged action and (3) is likely to be redressed by a favorable decision.16 Under section 189a of the Atomic Energy Act, the NRC is required to grant a hearing upon the request of any person whose interest may be affected by the proceeding

. . . .17 Pursuant to the agencys regulation implementing this general standing requirement, a petitioners hearing request must state:

Motion to Amend., unnumbered attach., Supplemental Declaration of Arnold Gundersen, Nuclear Engineer (Apr. 26, 2021) [hereinafter Gundersen Supp. Decl.]; Petitioner Motion to Amend., un-numbered attach., Letter to Document Control Desk, NRC, from Nathan Palm, EPRI Boiling Water Reactor Vessel and Internals Project (BWRVIP) Program Manager and Timothy Hanley, BWRVIP Chairman, Exelon (Mar. 22, 2021) [hereinafter EPRI letter].

10 NextEra Energy Point Beach, LLCs Answer Opposing the Physicians for Social Responsibility Wisconsins Amendment of Contention 2 (May 21, 2021) [hereinafter NEPB Answer to Motion to Amend].

11 NRC Staffs Answer to Physicians for Social Responsibility Wisconsins Motion for Leave to File Amended Proposed Contention 2 at 1-2 (May 21, 2021) [hereinafter Staff Answer to Motion to Amend].

12 Physicians for Social Responsibility Wisconsins Combined Reply in Support of Motion to Amend Contention 2 (Inadequately Tested Reactor Coolant Pressure Boundary) (May 28, 2021).

13 See Tr. at 1-142; Licensing Board Order (Scheduling Oral Argument) (May 26, 2021) (unpub-lished).

14 10 C.F.R. § 2.309(d)(1), (f)(1).

15 See id. § 2.309(a).

16 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-15-25, 82 NRC 389, 394 (2015).

17 Atomic Energy Act § 189(a)(1)(A), 42 U.S.C. § 2239(a)(1)(A).

18

(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] 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 (iv) The possible effect of any decision or order that may be issued in the proceeding on the requestors/petitioners interest.18 However, in the context of certain reactor licensing proceedings (e.g., reactor construction permit proceedings and new reactor operating license proceedings),

the Commission has expressly authorized the use of a proximity presumption, which presumes that a petitioner has standing if they reside, or otherwise have frequent contacts, within approximately 50 miles of the facility in question.19 Th[is] presumption rests on [the] finding . . . that persons living within the roughly 50-mile radius of [a] facility face a realistic threat of harm if a release from the facility of radioactive material were to occur.20 Licensing boards routinely have applied the 50-mile proximity presumption in reactor license renewal proceedings, reasoning that a license renewal allows operation of a reactor over an additional period of time during which the re-actor could be subject to the same equipment failures and personnel errors as during operations over the original period of the license.21 The Commission endorsed this approach when it found no conflict between the basic require-ments for standing, as applied in the federal courts, and the NRCs proximity presumption22 and held that the [licensing b]oard correctly applied the prox-imity presumption.23 18 10 C.F.R. § 2.309(d)(1)(i)-(iv).

19 See PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 NRC 133, 138-39 (2010); Calvert Cliffs 3 Nuclear Project, LLC, and UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915-17 (2009).

20 Calvert Cliffs, CLI-09-20, 70 NRC at 917 (quotations omitted).

21 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), LBP-12-8, 75 NRC 539, 547, revd in part on other grounds, CLI-12-19, 76 NRC 377 (2012); see Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), LBP-21-4, 93 NRC 179, 197 & n.32 (2021), appeal pending (citing Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3), LBP-19-5, 89 NRC 483, 490-91 (2019), affd on other grounds, CLI-20-11, 92 NRC 335 (2020); Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4),

LBP-19-3, 89 NRC 245, 258-59 (2019), appeal dismissed and referred ruling affd, CLI-20-3, 91 NRC 133 (2020)).

22 Calvert Cliffs, CLI-09-20, 70 NRC at 917 (footnote omitted); see id. at 915 n.15 (citing with approval Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-6, 53 NRC 138, 150 (2001), affd on other grounds, CLI-01-17, 54 NRC 3 (2001) (applying proximity presumption in reactor operating license renewal proceeding)).

23 Id. at 918 (footnote omitted).

19

B. Legal Requirements for Contention Admissibility To intervene in a license renewal proceeding, a petitioner must set forth with particularity24 a timely-filed admissible contention that fulfills the requirements set forth in 10 C.F.R. § 2.309(f)(1)(i)-(vi), which require a petitioner to:

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

(ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the find-ings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the peti-tioner 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 ap-plicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the ap-plication fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief.25 The Commissions contention admissibility requirements are strict by design.26 If any of the six requirements in 10 C.F.R. § 2.309(f)(1) are not met, a con-tention must be rejected.27 The petitioner alone bears the burden to satisfy each contention admissibility requirement.28 24 10 C.F.R. § 2.309(f)(1).

25 Id.

§ 2.309(f)(1)(i)-(vi).

26 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 24, 54 NRC 349, 358 (2001).

27 Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI 12, 34 NRC 149, 155 (1991) (citation omitted); see USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 437 (2006) (These requirements are deliberately strict, and we will reject any contention that does not satisfy the [contention admissibility] requirements. (footnotes omitted)).

28 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 329 (2015) ([I]t is Petitioners responsibility . . . to formulate contentions and to provide the necessary information to satisfy the basis requirement for admission. (quoting Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998))); DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 149 (2015) ([T]he Board may not substitute its own (Continued) 20

A petitioner must propose contentions that contain some reasonably spe-cific factual or legal basis.29 An admissible contention must explain, with specificity, particular safety or legal reasons requiring rejection of the contested

[application].30 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.31 A petitioner need not prove its contention at the contention admissibility stage,32 but the contention admissibility standards require that pe-titioners proffer at least some minimal factual and legal foundation in support of their contentions.33 For issues arising under the National Environmental Policy Act [(NEPA)], participants shall file contentions based on the applicants environmental report.34 To be admissible, the issue raised in a contention must fall within the scope of the proceeding and be material to the findings the NRC must make on the application.35 A material issue is one where resolution of the dispute would make a difference in the outcome of the licensing proceeding.36 Contentions that challenge NRC regulations,37 seek to impose requirements stricter than those imposed by the agency,38 or challenge the manner in which the NRC Staff support for a contention or make arguments for the litigants that were never made by the litigants themselves. (citation omitted)).

29 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 213 (2003) (citation omitted).

30 Millstone, CLI-01-24, 54 NRC at 359-60.

31 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006) (quoting Palo Verde, CLI-91-12, 34 NRC at 155-56).

32 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004).

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

34 10 C.F.R. § 2.309(f)(2).

35 Id. § 2.309(f)(1)(iii)-(iv).

36 Rules of Practice for Domestic Licensing Proceedings Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989).

37 As stated in 10 C.F.R. § 2.335(a), no rule or regulation of the Commission . . . is subject to attack . . . in any adjudicatory proceeding without a successful waiver petition. See Dominion Nu-clear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 559-60 (2005). Therefore, a contention that challenges a statutory requirement or the Commissions regulatory process without a waiver must be rejected.

38 See, e.g., Calvert Cliffs 3 Nuclear Project, LLC, and UniStar Nuclear Operating Services, LLC, et al. (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-8, 80 NRC 71, 79 n.27 (2014)

(Contentions that are the subject of general rulemaking by the Commission may not be litigated in individual license proceedings. (citations omitted)); NextEra Energy Seabrook, LLC (Seabrook (Continued) 21

performs its duties39 are outside the scope of NRC adjudicatory proceedings.40 In addition, issues addressed and decided in Commission rulemaking may not be challenged in an adjudicatory proceeding (absent the filing and granting of a waiver),41 as the Commission has deemed such actions impermissible collateral attacks on NRC rules.42 In addition, a petitioner must explain the basis for each proffered contention by providing alleged facts or expert opinions which support the [ ]petitioners position . . . and on which the petitioner intends to rely [in litigating the con-tention] at hearing.43 However, [b]are assertions and speculation, even by an expert, are insufficient to trigger a full adjudicatory proceeding.44 Indeed, an expert opinion that merely states a conclusion . . . without providing a rea-soned basis or explanation for that conclusion is inadequate because it deprives the Board of the ability to make the necessary, reflective assessment of the opin-Station, Unit 1), CLI-12-5, 75 NRC 301, 315 (2012) (This proposition contravenes our longstanding practice of rejecting, as a collateral attack, any contention calling for requirements in excess of those imposed by our regulations. (footnote omitted)); GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 206 (2000) (rejecting an attempt[ ] to impose . . . a requirement more stringent tha[n] the one imposed by the regulations).

39 See, e.g., Millstone, CLI-05-24, 62 NRC at 570 ([Licensing] boards lack the authority to supervise the NRC Staff in the performance of its regulatory duties. (footnote omitted)); Balt.

Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 350 (1998), affd sub nom., Natl Whistleblower Ctr. v. NRC, 208 F.3d 256 (D.C. Cir. 2000), cert.

denied, 531 U.S. 1070 (2001) ([I]t is the license application, not the NRC Staff review, that is at issue in our adjudications. (citation omitted)); Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-80-12, 11 NRC 514, 516 (1980) (Boards do not direct staff in performance of their administrative functions.).

40 See 10 C.F.R. § 2.309(f)(1)(iii).

41 Id. § 2.335(b).

42 See North Atlantic Energy Service Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 217 n.8 (1999) (We wish to make clear, however, that a petitioner in an individual adjudication cannot challenge generic decisions made by the Commission in rulemakings. (citations omitted));

Curators of the University of Missouri, CLI-95-1, 41 NRC 71, 170 (1995) ([T]he Intervenors are, in essence, contending that those regulatory provisions are themselves insufficient to protect the public health and safety. This assertion constitutes an improper collateral attack upon our regulations. (footnote omitted)); American Nuclear Corp. (Revision of Orders to Modify Source Materials Licenses), CLI-86-23, 24 NRC 704, 709-10 (1986); id. at 707 ([T]he Commission adheres to the fundamental principle of administrative law that its rules are not subject to collateral attack in adjudicatory proceedings.).

43 10 C.F.R. § 2.309(f)(1)(v).

44 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 714 (2012) (quoting AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 674 (2008)).

22

ion . . . .45 A licensing board must review the petitioners information, facts, and expert opinions provided to determine whether they provide adequate support for the proffered contentions.46 C. Scope of License Renewal Under 10 C.F.R. § 54.29, the NRC may grant a license renewal if it finds that specific safety and environmental requirements are satisfied. The NRC review of a license renewal application consists of two simultaneous reviews a safety review and an environmental review.

1. License Renewal Safety Review The Commission has limited the safety review of license renewal applications conducted by the NRC to the matters described in 10 C.F.R. § 54.29:

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

(a) Actions have been identified and have been or will be taken with respect to . . .

(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 un-der § 54.21(c).47 The actions with regard to aging management and time-limited aging analyses (TLAAs) must provide reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the [current licensing basis (CLB)], and that any changes made to the plants CLB . . . are in accord with the [Atomic Energy Act] and the Commissions regulations.48 45 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006) (citation omit-ted); see Power Authority of the State of New York (James A. Fitzpatrick Nuclear Power Plant; Indian Point, Unit 3), CLI-00-22, 52 NRC 266, 315 (2000) (Unsupported hypothetical theories or projections, even in the form of an affidavit, will not support invocation of the hearing process.).

46 American Centrifuge Plant, CLI-06-10, 63 NRC at 457.

47 10 C.F.R. § 54.29(a)(1)-(2); see Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-26, 56 NRC 358, 363 (2002); Florida Power &

Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-01-17, 54 NRC 3, 7-8 (2001).

48 10 C.F.R. § 54.29(a). The CLB is a term of art comprehending the various Commission requirements applicable to a specific plant that are in effect at the time of the license renewal (Continued) 23

The Commission has stated that [a]djudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff re-view, for our hearing process (like our Staffs review) necessarily examines only the questions our safety rules make pertinent.49 More to the point, the Commission declared that [t]o require a full reassessment of [safety issues] at the license renewal stage . . . would be both unnecessary and wasteful. Accord-ingly, the NRCs license renewal review focuses on those potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs.50 NRCs license renewal safety review focuses on plant systems, structures, and components for which current [regulatory] activities and requirements may not be sufficient to manage the effects of aging in the period of extended op-eration.51 License renewal does not address operational issues, because these issues are effectively addressed and maintained by ongoing agency oversight, review, and enforcement.52 Issues that are addressed on an ongoing basis need not be addressed during license renewal.53 The adequacy of a plants CLB is not addressed during the license renewal safety review.54 With respect to each structure, system, or component requiring aging man-agement review, a license renewal applicant must demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the CLB for the period of extended operation.55 The application. The current licensing basis consists of the license requirements, including license conditions and technical specifications. It also includes the plant-specific design basis information documented in the plants most recent Final Safety Analysis Report, and any orders, exemptions, and licensee commitments that are part of the docket for the plants license, i.e., responses to NRC bulletins, generic letters, and enforcement actions, and other licensee commitments documented in NRC safety evaluations or licensee event reports. See 10 C.F.R. § 54.3. The current licensing basis additionally includes all of the regulatory requirements found in Parts 2, 19, 20, 21, 30, 40, 50, 55, 72, 73, and 100 with which the particular applicant must comply. Turkey Point, CLI-01-17, 54 NRC at 9 (citation omitted).

49 Turkey Point, CLI-01-17, 54 NRC at 10; see Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,482 n.2 (May 8, 1995).

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

51 60 Fed. Reg. at 22,469.

52 Turkey Point, CLI-01-17, 54 NRC at 9.

53 See Oyster Creek, CLI-06-24, 64 NRC at 117-18; Turkey Point, CLI-01-17, 54 NRC at 8-10.

54 Turkey Point, CLI-01-17, 54 NRC at 23; see 10 C.F.R. § 54.30(b) (The licensees compliance with the obligation under Paragraph (a) of this section to take measures under its current license [to ensure that the intended function of those systems, structures or components will be maintained in accordance with the CLB throughout the term of its current license] is not within the scope of the license renewal review.).

55 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449, 456 (2010) (quoting 10 C.F.R. § 54.21(a)(3)).

24

NRC has limited the scope of the aging management reviews to those structures and components [t]hat perform an intended function, as described in § 54.4, without moving parts or without a change in configuration or properties and

[t]hat are not subject to replacement based on a qualified life or specified time period.56 As such, [o]nly passive, long-lived structures and components are subject to an aging management review for license renewal.57

2. License Renewal Environmental Review 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,58 as well as reasonable alternatives to that action.59 The NRCs environmental review is limited by a rule of reason in that consideration of environmental impacts need not address all theoretical possibilities, but rather only those that have some reasonable possibility of occurring.60 In evaluating reasonable im-pacts, an agency need not perform analyses concerning events that would be considered worst case scenarios . . . or those considered remote and highly speculative.61 As such, NEPA affords agencies . . . broad discretion to keep their inquiries within appropriate and manageable boundaries.62 The Com-mission has echoed this principle stating that NEPA requires consideration of reasonable alternatives, not all conceivable ones.63 The NRC adopted regulations in 10 C.F.R. Part 51 to implement its NEPA responsibilities.64 These regulations direct a focused environmental review, de-lineating certain environmental issues as generic, known as Category 1 issues, 56 10 C.F.R. § 54.21(a)(1)(i)-(ii).

57 60 Fed. Reg. at 22,463.

58 See Crow Butte Resources, Inc. (Marsland Expansion Area), LBP-19-2, 89 NRC 18, 40 (2019)

(citing Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 87-88 (1998)).

59 See Seabrook, CLI-12-5, 75 NRC at 338.

60 Marsland, LBP-19-2, 89 NRC at 40 (quoting Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-156, 6 AEC 831, 836 (1973)).

61 Holtec International (HI-STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC 353, 375 (2019) (quoting Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-02-25, 56 NRC 340, 352 (2002); Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 754-55 (3d Cir. 1989)).

62 Marsland, LBP-19-2, 89 NRC at 40 (quoting Claiborne, CLI-98-3, 47 NRC at 103).

63 Seabrook, CLI-12-5, 75 NRC at 338 (quoting Nat. Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 834, 837, 838 (D.C. Cir. 1972)).

64 See 10 C.F.R. §§ 51.53(c), 51.71, 51.95(c), pt. 51, subpt. A, app. B; see also Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996).

25

which need not be addressed by an applicant, unless there is new and signif-icant information.65 Based on the supporting analysis provided in an agency-prepared Generic Environmental Impact Statement (GEIS), the Category 1 is-sues are summarized and codified in Table B-1 to Appendix B to 10 C.F.R.

Part 51.66 Conversely, the Commission has defined other environmental issues as site-specific that must be addressed by an applicant or licensee in its environ-mental report. These issues, known as Category 2 issues, are found at 10 C.F.R.

§ 51.53(c). Under this framework, the NRC can satisfy its NEPA obligations for license renewal by combining the site-specific analysis of the Category 2 issues with the generic analysis of the Category 1 issues, including consideration of any new and significant information.67 The agencys NEPA regulations require that an applicant include in its envi-ronmental report analyses of the environmental impacts of the proposed action

. . . for those issues identified as Category 2 issues . . . .68 An environmental report is not required to contain analyses of the environmental impacts of the license renewal issues identified as Category 169 unless there is any new and significant information regarding the environmental impacts . . . of a Category 1 issue.70 In addition, an applicant or licensee must discuss the environmental impacts of alternatives and any other matters described in [10 C.F.R.] § 51.45, but an environmental report is not required to include discussion of need for power or the economic costs and economic benefits of the proposed action or of alterna-tives to the proposed action unless such a discussion is essential to determine whether an alternative should be included in the ER.71 In sum, an applicant or licensee must provide a plant-specific review of the Category 2 issues in its environmental report and must address any new and 65 10 C.F.R. § 51.53(c)(3)(iv). The generic issues are codified in the Generic Environmental Impact Statement (GEIS) in Appendix B to 10 C.F.R. Part 51.

66 See 1 Office of Nuclear Reactor Regulation (NRR), NRC, NUREG-1437, Generic Environ-mental Impact Statement for License Renewal of Nuclear Plants, at S-1 to -2 (rev. 1 June 2013)

(ADAMS Accession No. ML13106A241) [hereinafter GEIS]; see also Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 78 Fed. Reg. 37,282 (June 20, 2013).

67 See Mass. v. NRC, 522 F.3d 115, 119-21 (1st Cir. 2008).

68 10 C.F.R. § 51.53(c)(3)(ii).

69 Id. § 51.53(c)(3)(i).

70 Id. § 51.53(c)(3)(iv).

71 Id. § 51.53(c)(2); see 61 Fed. Reg. at 28,468 ([T]he issue of need for power and generating capacity will no longer be considered in NRCs license renewal decisions.)

26

significant information that might render the Commissions generic Category 1 determinations inapplicable.72 To supplement the GEIS the NRC Staff uses the environmental report to create a Supplemental Environmental Impact Statement (SEIS).73 The SEIS in-tegrate[s] the conclusions in the [GEIS] for issues designated as Category 1 with information developed for those Category 2 issues applicable to the plant . . .

and any new and significant information.74 Since the Category 1 generic environmental determinations have been codi-fied in Table B-1 of Appendix B to Subpart A of 10 C.F.R. Part 51, a petitioner may only challenge the Category 1 generic conclusions if the rule is waived by the Commission after filing a successful waiver petition.75 Otherwise Category 1 conclusions may not be challenged in litigation . . . .76 III. ANALYSIS Petitioners participation is not challenged by either the NRC Staff or NEPB.77 As explained in Section A, infra, we find Petitioner has demonstrated represen-tational standing. However, we find each of the four proffered contentions inadmissible.

A. Standing We conclude, as have other licensing boards, that the 50-mile proximity presumption should apply in all reactor license renewal proceedings, including SLR proceedings.78 An organization that seeks to intervene on behalf of one or more of its mem-bers must demonstrate representational standing. To do so, the organization 72 See Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-13-7, 78 NRC 199, 212-13 (2013).

73 10 C.F.R. § 51.95(c); see NRR, NRC, NUREG-1555, Standard Review Plans for Environmental Reviews for Nuclear Power Plants, Supp. 1: Operating License Renewal, Final Report (rev. 1 June 2013) (ADAMS Accession No. ML13106A246); see also NRR, NRC, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supp. 23, Regarding Point Beach Nuclear Point Units 1 and 2, Final Report (Aug. 2005) (ADAMS Accession No. ML052230490).

74 10 C.F.R. § 51.95(c)(4).

75 Id. § 2.335(b).

76 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 17-18, reconsid. denied, CLI-07-13, 65 NRC 211, 215 (2007).

77 NEPB Answer at 3; Staff Answer at 6-7.

78 See supra note 21.

27

must show that (1) at least one of its members would have standing to sue in their own right; (2) the member has authorized the organization to represent their interest; (3) the interests that the organization seeks to protect are germane to its purpose; and [(4)] neither the claim asserted nor the relief requested requires the member to participate in the adjudicatory proceeding.79 Petitioner has provided declarations from members who live within 50 miles of the Point Beach facility and therefore have standing in their own right pursuant to the proximity presumption.80 The members declarations authorize Petitioner to represent their interests in this proceeding, thus rendering it unnecessary for them to participate as individuals.81 Further, Petitioner has demonstrated that the interests it seeks to protect in this proceeding are germane to its organizational purposes.82 We conclude that Petitioner has met the requirements for standing.

B. Contention 1

1. Background Contention 1 alleges that the Environmental Report [(ER)] fails to consider a reasonable range of alternatives to the proposed action because of a failure to analyze thermal pollution mitigation as a means of reducing aquatic biota and migratory bird impingement, entrainment and damage from thermal pollution as required by NEPA and the NRC.83 Petitioner argues that [t]he ER unlawfully fails to consider replacement of the once-through cooling system with cooling towers as a reasonable alterna-tive that would reduc[e] or avoid[ ] adverse environmental effects relating to

[certain] Category 2 issues,84 such as the thermal impacts and impacts of im-pingement and entrainment of aquatic organisms associated with once-through cooling systems.85 Petitioner contends the analysis included in the ER of two alternatives, license renewal and the no-action alternative, is insufficient.86 Labeling Point Beach Units 1 and 2 as super predators, Petitioner claims that there are the recurring effects of killing aquatic organisms and occasional 79 See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 323 (1999).

80 See generally Declarations in Support of Petition of Physicians for Social Responsibility Wis-consin for Leave to Intervene (Mar. 23, 2021).

81 See generally id.

82 See Petition at 2.

83 Id. at 17.

84 Id. at 18 (quoting 10 C.F.R. § 51.45(c)).

85 Id. at 19.

86 Id. at 19-20.

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birds from the once-through cooling system.87 Petitioner asserts [m]itigation in the form of mechanical draft or passive cooling tower systems would sharply reduce the thermal pollution discharges to Lake Michigan, and may reduce wa-ter withdrawal by about 95% and result in far fewer animals and plants . . .

sacrificed for the generation of electricity.88 Petitioner states the ER provides very limited historical data on the plants aquatic and wildlife killing in Lake Michigan as a result of impingement and entrainment at the plant intakes.89 Pe-titioner also contends NEPB failed to consider the cumulative impacts of thermal pollution,90 incorrectly considered impacts to Lake Michigan rather than to lo-calized site conditions,91 and relied on ancient [ ] data.92 Further, Petitioner references several nuclear reactors that were required to switch to closed-cycle cooling from a once-through cooling system.93 NEPB counters that Contention 1 is inadmissible on several grounds.94 NEPB argues Contention 1 impermissibly challenges NRC rules and is unsupported by information showing that conversion to closed-cycle cooling (the alterna-tive that Petitioner proposes) is reasonable and commercially feasible or that aquatic impacts are significant enough to warrant redesigning and retrofitting the plant.95 Citing 10 C.F.R. § 51.53(c)(3)(ii)(B),96 NEPB asserts that no further analysis of thermal impacts is required and that Commission caselaw has made clear that the NRC may not evaluate alternatives to the chosen cooling system.97 Even if Contention 1 were not barred as an impermissible attack on an NRC rule, NEPB contends, it is still inadmissible because it is insufficiently supported and fails to demonstrate a genuine dispute with the applicant.98 NEPB argues that Petitioner does not address the pertinent sections of the SLR application that discuss entrainment and impingement impacts.99 NEPB further asserts that Pe-titioner fails to provide[ ] information indicating that retrofitting the plant with 87 Id.

at 20.

88 Id.

89 Id.

at 21.

90 Id.

at 24.

91 Id. at 24-25; Tr. at 16 (Lodge).

92 Petition at 25.

93 Id. at 26-27.

94 NEPB Answer at 12.

95 Id.

96 Although section 51.53(c)(3) states that it applies to applicants for an initial renewed license, the Commission has determined this applies to SLR applicants as well. See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-20-3, 91 NRC 133, 141 (2020).

97 NEPB Answer at 12-15.

98 See id. at 15-25.

99 Id. at 15.

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cooling towers is a reasonable alternative to mitigate environmental impacts.100 Nor does Petitioner, according to NEPB, provide a reference or source showing that the number of aquatic organisms entrained, impinged, or affected by thermal discharges represents a significant environment impact101 such that the duty to analyze mitigation should be greater than small.102 NEPB generally disputes Pe-titioners expert, Arnold Gundersen, and argues the information Mr. Gundersen referenced does not support the contention and fails to demonstrate a genuine dispute.103 NEPB concludes by stating Petitioners allegations are nothing more than a combination of generalizations unrelated to Point Beach and recitation of undisputed data from the ER, sprinkled with rhetoric and devoid of meaningful analysis or expert support.104 Likewise, the NRC Staff opposes admission of Contention 1, which it cat-egorizes as a contention of omission, arguing it fails to demonstrate a genuine dispute with the applicant on a material issue of law or fact.105 The NRC Staff contends that Petitioner has not presented sufficient support for its assertion that consideration of the cooling tower alternative is reasonable and must be included under NEPA or that it is required under NRC regulations.106 The NRC Staff also argues that Petitioner fails to show why NEPB cannot rely on its Clean Water Act (CWA) permit, as required by 10 C.F.R. § 51.53(c)(3)(ii)(B),

since Petitioner did not show that cooling towers are required by the National Pollution Discharge Elimination System (NPDES) permit or by the Wisconsin Department of Natural Resources (WDNR).107 In addition, the NRC Staff asserts that Petitioners references to the required installation of cooling towers at other reactors are misplaced, since in those cases the installation was required by the state agency while WDNR imposed no such requirement for Point Beach.108 Despite the fact that Petitioner referenced an Environmental Protection Agency (EPA) Inspector General report and information on past power uprates from the ER,109 the NRC Staff concludes stating that [w]hile Petitioner raises a site-specific issue, identifies adverse impacts, and correctly states that an applicants Environmental Report needs to consider mitigation alternatives (i.e., means to 100 Id. at 16.

101 Id. at 17.

102 See id. (citing Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-16-7, 83 NRC 293, 323 n.156 (2016)).

103 See id. at 15-25.

104 Id. at 24-25.

105 Staff Answer at 18-20.

106 Id. at 20-24.

107 Id. at 25-26.

108 Id. at 27-28.

109 Id. at 28.

30

reduce or avoid adverse impacts), Petitioner does not provide sufficient infor-mation to show a genuine dispute on a material issue of law or fact.110

2. 10 C.F.R. § 2.309(f)(1)(iii), (iv), (vi) Impermissible Challenge to an NRC Rule Contention 1 is inadmissible because it constitutes a collateral attack on an NRC rule. The Commission has held that 10 C.F.R. § 51.53(c)(3)(ii)(B) rests on the presumption that [NRC] need not indeed cannot review and judge environmental permits issued under the Clean Water Act by the EPA or an au-thorized state agency.111 The NRCs role in evaluating a plants cooling system is limited the permitting agency determines what cooling system a nuclear power facility may use[,] and NRC factors the impacts resulting from use of that system into the NEPA [ ] analysis.112 The NRC may not consider alternative cooling systems as that would improperly second-guess[ ] the cooling system approved by the permitting agency.113 Moreover, section 51.53(c)(3)(ii)(B)114 only requires an assessment of en-trainment, impingement, and thermal impacts if an applicant or licensee cannot provide a current determination under Clean Water Act (CWA) section 316(b)115 and, if necessary, a variance under CWA section 316(a).116 NEPB provided both a section 316(b) determination and a section 316(a) variance in its ER. Further, if the WDNR issues an update to any of these documents, NEPB is obligated to inform the NRC.117 Therefore, in the absence of any facts provided by Petitioner 110 Id.

at 29.

111 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yan-kee Nuclear Power Station), CLI-07-16, 65 NRC 371, 387 n.77 (2007). Petitioner did not seek a waiver to challenge an NRC rule that would be required to waive 10 C.F.R. § 51.53(c)(3)(ii)(B).

See 10 C.F.R. § 2.335(b); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-07-8, 65 NRC 124, 133 (2007).

112 Vt. Yankee, CLI-07-16, 65 NRC at 389 (quoting Public Service Co. of New Hampshire (Sea-brook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 26 (1978)).

113 Id. at 377.

114 Section 51.53(c)(3)(ii)(B) provides:

If the applicants plant utilizes once-through cooling or cooling pond heat dissipation systems, the applicant shall provide a copy of current Clean Water Act 316(b) determinations and, if necessary, a 316(a) variance in accordance with 40 CFR part 125, or equivalent State permits and supporting documentation. If the applicant cannot provide these documents, it shall assess the impact of the proposed action on fish and shellfish resources resulting from thermal changes and impingement and entrainment. 10 C.F.R. § 51.53(c)(3)(ii)(B).

115 Clean Water Act § 316(b), 33 U.S.C. § 1326(b).

116 Id. § 316(a), 33 U.S.C. § 1326(a).

117 See 10 C.F.R. §§ 54.13(a)-(b), 51.41, 54.35; Tr. at 71-72 (Young).

31

to suggest that NEPB is operating contrary to its permit, further assessment of entrainment, impingement, or thermal impacts is not required in connection with this SLR proceeding.

Section 1.3 of the Point Beach NPDES permit contains the CWA section 316(b) determination.118 The WDNR, the state NPDES-permitting authority, con-cluded that [t]he cooling water intake . . . represents interim [best technology available] for minimizing adverse environmental impact in accordance with the requirements in s. 283.31(6), Wis. Stats., and section 316 (b) of the [CWA].119 Section 8 of the Fact Sheet accompanying the NPDES permit contains the CWA section 316(a) variance determination. There, the WDNR concluded that the discharge at the maximum heat load of 8,273 MBTU/hr is protective of the balanced, indigenous community of shellfish, fish, and wildlife in and on Lake Michigan and that no temperature limit is needed.120 Thus, NRC rules require no further documentation or analysis with respect to the impacts associated with Point Beachs cooling system.121 A petitioner may not attempt to impose stricter requirements than those required by NRC rules doing so constitutes a prohibited collateral attack on NRC rules.122 Notably, the Commission rejected a substantively similar contention in the Vermont Yankee license renewal proceeding.123 There, a petitioner proffered a contention asserting that the [e]nvironmental [r]eport contains an insufficient analysis of the thermal impacts on an adjacent water body.124 The Commission reversed the licensing board ruling that admitted the contention, concluding that CWA section 511(c)(2)125 precludes us from either second-guessing the con-118 Permits issued by WDNR are referred to as Wisconsin Pollution Discharge Elimination System (WPDES) but carry the same legal effect as NPDES permits. ER, attach. B, WPDES Permit No.

WI-0000957-08-0 § 1.3 (July 1, 2016) [hereinafter WPDES Permit].

119 Id. Although this is an interim determination, it is still the current determination as required by 10 C.F.R. § 51.53(c)(3)(ii)(B).

120 WPDES Permit, Letter from Amanda Minks, Water Quality Standards Specialist, WDNR, to Steve Jaeger, Wastewater Engineer, WDNR at 3 (Aug. 29, 2012). Petitioner acknowledged that WDNR approved Point Beachs once-through cooling system. See Petition at 24.

121 Petitioners argument that the NPDES permit will expire within about 60 days and its renewal is speculation is not relevant. Petitioner Reply at 3. The Commission has held that the expiration of a NPDES permit before the end of the license renewal term does not affect compliance with 10 C.F.R. § 51.53(c)(3)(ii)(B). See Vt. Yankee, CLI-07-16, 65 NRC at 383 (citing Clean Water Act

§ 332(b)(1)(B), 33 U.S.C. § 1342(b)(1)(B)). In addition, as NEPB counsel noted, the timely renewal doctrine will ensure that the current permit will remain valid until a new permit is issued. Tr. at 26-27 (Lewis).

122 See supra note 38.

123 See Vt. Yankee, CLI-07-16, 65 NRC at 375.

124 Id. at 381 (citations omitted).

125 When Congress enacted CWA section 511(c)(2) it removed the broad responsibility of multi-(Continued) 32

clusions in NPDES permits or imposing our own effluent limitations thermal or otherwise.126 The CWA, according to the Commission, was specifically in-tended to deprive the NRC of the authority to review and judge environmental permits issued under the [CWA] by the EPA or an authorized state agency.127 Therefore, the Commission indicated, it is beyond NRCs authority to deter-mine[ ] what cooling system a nuclear power facility may use . . . .128 The Commission made clear how future boards should handle this issue, stating129 In future cases where EPA [or . . . a state permitting agency] has made the neces-sary factual findings for approval of a specific once-through cooling system for a facility after full administrative proceedings, we expect our adjudicatory boards to do as we have done today, i.e., defer to the agency that issued the section 316(a) permit.130 Once an applicant, or in this case a licensee, provides the information in 10 C.F.R. § 51.53(c)(3)(ii)(B), the NRC is required by law to consider the [per-mitting agencys] decision [on thermal impacts] as binding.131 ple federal agencies for water quality standards and [ ] placed that responsibility solely in the hands of the EPA [or an authorized state agency]. Vt. Yankee, CLI-07-16, 65 NRC at 388 (citing Carolina Power and Light Co. (H.B. Robinson, Unit 2), ALAB-569, 10 NRC 557, 561 (1979)); see Seabrook, CLI-78-1, 7 NRC at 25 (As Senator Baker explained in introducing the floor amendment which was the forerunner of [CWA] section 511(c)(2), duplication was to be avoided by leaving to EPA and the states the decision as to the water pollution control criteria to which a facilitys cooling system would be held. (quoting Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-366, 5 NRC 39, 51-52 (1977))).

126 Vt. Yankee, CLI-07-16, 65 NRC at 377 (footnote omitted).

127 Id. at 387 n.77.

128 Seabrook, CLI-78-1, 7 NRC at 26.

129 Commission precedent is binding on licensing boards.

130 Vt. Yankee, CLI-07-16, 65 NRC at 389 (quoting Seabrook, CLI-78-1, 7 NRC at 28 n.42)

(quotations and citation omitted). In its reply, Petitioner asserts that the WDNR has not at this point made the necessary factual findings for approval of a specific once-through cooling system for a facility after full administrative proceedings. Petitioner Reply at 4 (quoting Vt. Yankee, CLI-07-16, 65 NRC at 389). This assertion is unsupported and, indeed, contrary to the facts. As NEPBs ER demonstrates, WDNR explicitly made a section 316(b) determination and granted a section 316(a) variance. See supra notes 118-120 and accompanying text.

131 Vt. Yankee, CLI-07-16, 65 NRC at 388 (citing H.B. Robinson, ALAB-569, 10 NRC at 558);

see Seabrook, CLI-78-1, 7 NRC at 23-28.

At oral argument, the NRC Staff suggested it may rely on the determinations made by the state agency if there is a section 316(b) determination and/or a section 316(a) variance, and that the NRC Staff may consider state permitting agency concerns raised by a petitioner. Tr. at 64-66 (Young). It is not clear, however, how this position can be reconciled with CWA section 511 and (Continued) 33

For the above reasons, we find Contention 1 inadmissible as it constitutes a collateral attack upon an NRC rule and because the NRCs consideration of alternative cooling system impacts after an applicant has satisfied 10 C.F.R.

§ 51.53(c)(3)(ii)(B) is contrary to CWA section 511(c)(2) and Commission pre-cedent. Contention 1 is inadmissible because it impermissibly challenges NRC rules, is not within the scope of the proceeding, does not raise an issue that is material to the findings the NRC must make, and fails to demonstrate a genuine dispute with the applicant in contravention of 10 C.F.R. § 2.309(f)(1)(iii), (iv),

and (vi).

C. Contention 2

1. Background Contention 2, as submitted on March 23, 2021, alleges that Point Beachs continued operation violates 10 CFR Part 50, Appendix A, Criterion 14 because the reactor coolant pressure boundary has not been tested so as to have an extremely low probability of abnormal leakage, of rapidly propagating failure, and of gross rupture, and the aging management plan does not provide the requisite reasonable assurance.132 According to Petitioner in recent years, the NRC has systematically removed conservative calculational aspects of the embrittlement process to allow contin-ued operation.133 Petitioner further alleges that the NRC has allowed Point Beach and its cohorts to use analytical techniques that ignore the data from sample coupons it could readily test.134 Petitioner concludes that as a conse-quence [t]here is no scientific basis by which the Point Beach reactors should continue operating without a complete physical analysis of the coupons from its reactors . . . .135 Petitioner contends that the Point Beach reactors present a clear and present danger, because the NRC and Point Beach have relied upon error-prone analytical calculations rather than performing metallurgical tests on coupons/capsules.136 Petitioner further contends that Point Beach is one of the remaining five worst embrittled atomic power reactors in the country, allegedly (at least in Commission precedent indicating a state agencys decision on thermal impacts is binding and cannot be second-guess[ed] by the NRC. Vt. Yankee, CLI-07-16, 65 NRC at 377, 388.

132 Petition at 31.

133 Id.

134 Id. at 32.

135 Id.

136 Id. at 37.

34

part) due to the removal of conservatisms from the neutron embrittlement mon-itoring process.137 Petitioner claims that Point Beach does not contain enough coupons to test for neutron embrittlement throughout the SLR operating pe-riod.138 Therefore, to compensate for the alleged lack of coupons, Petitioner alleges the NRC has instead modified its calculations to allow aging, embrit-tled nuclear power reactors to continue to operate well past their lifespans and certainly into risky uncharted territory.139 These calculations, according to Pe-titioner, are error-prone and are used by the NRC to avoid testing [ ] actual embrittlement through the measurement of [ ] actual metallurgical coupons.140 The lack of capsules and error-prone analytical calculations are concerning, Petitioner maintains, because in a seriously embrittled reactor there is the risk of pressurized thermal shock, that could cause the reactor vessel to break open and release massive radioactivity into the surrounding area and the environ-ment.141 Further, Petitioners expert, Arnold Gundersen, states that there is no scien-tific basis by which the Point Beach reactors should continue operating unless there is a complete physical analysis of the coupons from its reactors and the five other reactors that are its embrittled cohorts.142 Mr. Gunderson states that Point Beach, [d]uring the last 50 years of operation . . . has been violating [General Design Criterion] 14 by not testing coupons . . . .143 As such, Petitioner contends this aging-related issue is not adequately dealt with by regulatory processes and warrants denial of the SLR application.144 In its reply, Petitioner reiterates its previous arguments and adds new arguments.145 137 Id.

at 31-32; Tr. at 17 (Lodge).

138 Petition at 35 (citing Gundersen Decl. ¶ 7.4.6).

139 Id. at 37 (citing Gundersen Decl. ¶ 7.7.3).

140 Id.; Gundersen Decl. ¶ 7.8.2 (Instead of evaluating Point Beachs specific metallurgy, the NRC has allowed Point Beach and its cohorts to use analytical techniques that ignore the data from sample coupons it could readily test.).

141 Petition at 35 (citing Gundersen Decl. ¶ 7.4.5). Pressurized thermal shock is an event or transient that causes severe overcooling (thermal shock) concurrent with or followed by significant pressure in the reactor vessel. 10 C.F.R. § 50.61(a)(2).

142 Gundersen Decl. ¶ 7.8.2.

143 Gundersen Decl. ¶ 7.8.4; Tr. at 84 (Lodge). General Design Criterion 14 requires that [t]he reactor coolant pressure boundary shall be designed, fabricated, erected, and tested so as to have an extremely low probability of abnormal leakage, of rapidly propagating failure, and of gross rupture.

10 C.F.R. pt. 51, subpt. A, app. A, § II, Criterion 14.

144 Petition at 38 (quoting PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2), LBP-07-4, 65 NRC 281, 309 (2007)).

145 See Petitioner Reply at 6-13. The Commission has made it clear that licensing boards may not entertain arguments advanced for the first time in a reply brief. See American Centrifuge Plant, (Continued) 35

NEPB maintains Contention 2 is inadmissible because it impermissibly chal-lenges NRCs regulations and the CLB, lacks adequate support, and fails to raise a genuine dispute with the application.146 NEPB asserts that Petitioners references to NRCs calculations to determine neutron embrittlement constitute an impermissible challenge to the CLB.147 Similarly, NEPB contends the various allegations attacking NRCs overall approach to monitoring neutron embrittle-ment impermissibly challenges NRC Staff decision-making and NRC rules.148 NEPB argues that Petitioners assertion that Point Beach does not contain enough capsules to test through the end of the SLR period lacks adequate sup-port and fails to demonstrate a genuine dispute with the applicant.149 NEPB states that Petitioner fails to address the Reactor Vessel Material Surveillance Program in the SLR application, which discusses testing of the vessel material.150 Further, to the extent Petitioner suggests NEPB will not test capsules, NEPB notes that the SLR application explicitly states capsule A will be removed and tested.151 NEPB also asserts the vague Petitioner references to new operator administrator controls and error-prone analytical calculations lack specificity and are not material to the SLR application.152 The NRC Staff opposes admission of Contention 2, arguing that Petitioner fails to reference the specific portions of the SLR application it is challeng-ing.153 The NRC Staff explains that Contention 2 refers to reactor pressure vessel (RPV) neutron embrittlement, which results from the neutron irradiation of the reactor pressure vessel during reactor operation . . . .154 Because severe neu-tron embrittlement can cause brittle failure,155 10 C.F.R. Part 50, Appendix H requires licensees to monitor neutron embrittlement to ensure the RPV contin-CLI-06-9, 63 NRC at 439 (stating that the Commission will not permit, in a reply, the filing of new arguments or new legal theories that opposing parties have not had an opportunity to address (footnote omitted)). Contrary to Petitioners assertion, a licensing board is not obliged to address new arguments raised in a reply if no motion to strike is filed. Tr. at 124 (Lodge).

146 See NEPB Answer at 25-35.

147 Id. at 26-27.

148 Id. at 27-29; id. at 28 (As is plainly apparent from these claims, the Petitioners real quarrel is with generic NRC policies and past decision-making regarding reactor vessel safety, not the Point Beach SLR Application.); see Tr. at 29 (Leidich).

149 See NEPB Answer at 29-35.

150 Id. at 29-30.

151 Id. (citing SLRA, app. A, at A-25).

152 Id. at 33-34 (citing Petition at 36, 37).

153 Staff Answer at 31-33.

154 Id. at 30 (citing NRR, NRC, NUREG-2192, Standard Review Plan for Review of [SLR] Ap-plications for Nuclear Power Plants, at 4.2-1 (July 2017) (ADAMS Accession No. ML17188A158)

[hereinafter NUREG-2192]).

155 Id. (citing NUREG-2192 at 4.2-1).

36

ues to have adequate fracture toughness to prevent brittle failure.156 10 C.F.R.

§ 50.61 and 10 C.F.R. Part 50, Appendix G set forth the neutron embrittlement monitoring requirements.157 To monitor neutron embrittlement, licensees peri-odically withdraw capsules158 placed near the inside of the vessel wall.159 The capsules duplicate, as closely as possible, the neutron spectrum, temperature history, and maximum neutron fluence experienced at the reactor vessels inner surface, while also typically receiv[ing] neutron fluence exposures that are higher than the inner surface of the reactor vessel.160 This method ensures that the supplement A capsule is withdrawn and tested [for fracture toughness data] prior to the inner surface receiving an equivalent neutron fluence so that the surveillance test results bound the conditions at the end of the subsequent period of extended operation.161 Specifically, the NRC Staff contends that Petitioners reference to an un-named aging management program is insufficient, as the SLR application con-tains several aging management programs, none of which were addressed by Petitioner.162 In addition, the NRC Staff asserts that Petitioner impermissibly challenges NRC rules without a waiver when it seeks a complete physical analysis of the coupons from its reactors and the five other reactors that are its embrittled cohorts.163 The NRC Staff states that the coupon analysis sought by Petitioner is not required by NRC rules.164 Further, the NRC Staff argues that Contention 2 impermissibly challenges current operating issues, contrary to 10 C.F.R. § 2.309(f)(1)(iii).165

2. Motion to Amend Contention 2 Before we address the admissibility of Contention 2, we must address Peti-tioners motion to amend the contention.166 Petitioner seeks to amend Contention 156 Id.

(citing NUREG-2192 at 4.2-1; 2 NRR, NRC, NUREG-2191, Generic Aging Lessons Learned for [SLR] (GALL-SLR) Report, § XI.M31 (July 2017) (ADAMS Accession No. ML17187-A204) [hereinafter NUREG-2191, Vol. 2]).

157 See 10 C.F.R. § 50.61; id. pt. 50, app. G.

158 Petitioner refers to capsules as coupons. See Petition at 31-38.

159 NUREG-2191, Vol. 2 at XI.M31-1.

160 Id.

161 Id.

162 Staff Answer at 31-33.

163 Id. at 33 (quoting Petition at 38).

164 Id. at 33-34.

165 Id. at 35.

166 See generally Petitioner Motion to Amend.

37

2 to include three additional sentences, so that amended Contention 2 would read:

Point Beachs continued operation violates 10 CFR Part 50, Appendix A, Criterion 14 because the reactor coolant pressure boundary has not been tested so as to have an extremely low probability of abnormal leakage, of rapidly propagating failure, and of gross rupture, and the aging management plan does not provide the requisite reasonable assurance. The Electric Power Research Institute has recently admitted that its computer software for predicting embrittlement in boiling water reactors is nonconservative. Physical specimens and coupons at Point Beach may indeed prove that embrittlement calculations made at Point Beach are not conservative.

Without testing the physical specimens and coupons at Point Beach, NextEra is severely risking public safety.167

[M]otions for leave to file . . . amended contentions . . . after the [hearing request] deadline . . . will not be entertained absent a determination by the presiding officer that a participant has demonstrated good cause . . . .168 Good cause may be shown where (i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously available; and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.169 Once a movant satisfies the motion to amend requirements, a new or amended contention must still satisfy the contention admissibility standards in 10 C.F.R.

§ 2.309(f) to be admitted.

The basis for the amendment request was the public release of a February 2021 Electric Power Research Institute letter (EPRI letter) to its membership that stated that its software for monitoring neutron embrittlement in a Boiling Water Reactor (BWR) is non-conservative in a specific fluence range.170 Petitioner asserts its Amended Contention 2 meets the three-prong test un-der section 2.309(c) for good cause required to amend contentions after the 167 Id. at 7.

168 10 C.F.R. § 2.309(c).

169 Id. § 2.309(c)(i)-(iii). The Commission and licensing boards typically consider 30 to 60 days from the initiating event a reasonable deadline for proposing new or amended contentions. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),

CLI-12-21, 76 NRC 491, 499 (2012) (footnote omitted).

170 EPRI letter attach. 1, at 1.

38

hearing request deadline has passed.171 Turning to the first prong in section 2.309(c)(i), Petitioner asserts that since the EPRI letter was not publicly avail-able in ADAMS until April 2, 2021, the amendment is based on information not previously available.172 Second, Petitioner asserts that [t]he unexpected EPRI admissions . . . strengthens and supplements the material issue of poten-tial nonconservatism in computer modeling that may be undermining the aging management of the [Point Beach] reactor vessels and internals.173 According to Petitioner, this constitutes information that is materially different from infor-mation previously available174 as mandated under section 2.309(c)(ii). Third, Petitioner contends the motion to amend is timely under section 2.309(c)(iii),

because it was filed within thirty days of Petitioner becoming aware of the EPRI letter.175 NEPB opposes the motion to amend and argues Amended Contention 2 should be rejected because it contains untimely allegations and fails to demon-strate a genuine dispute with the applicant.176 Specifically, NEPB states that Petitioners references to baffle-former plates are untimely because those claims could have been raised earlier.177 In addition, NEPB contends the last two sen-tences in proposed Amended Contention 2 bear no connection to the EPRI letter and instead constitute an impermissible and untimely expansion in the wording of the original contention.178 Further, NEPB argues proposed Amended Con-tention 2 fails to demonstrate a genuine dispute and must be rejected.179 The NRC Staff does not oppose the motion to amend but instead contends that proposed Amended Contention 2 is inadmissible.180 The NRC Staff con-cedes that Petitioner met the good cause requirements set forth in 10 C.F.R.

§ 2.309(c) because (i) the EPRI letter was not available before the hearing re-quest deadline;181 (ii) the EPRI Letter appears to be materially different from information previously available;182 and (iii) the motion was filed within thirty days of the public availability of the EPRI letter.183 Nevertheless, the NRC Staff 171 Petitioner Motion to Amend at 7-8.

172 Id.

at 7.

173 Id.

174 Id. (quoting 10 C.F.R. § 2.309(c)(ii)).

175 Id. at 8 (citation omitted).

176 NEPB Answer to Motion to Amend at 1.

177 Id. at 4-5.

178 Id. at 6.

179 Id. at 7-12.

180 Staff Answer to Motion to Amend at 1-2.

181 Id. at 6-7.

182 Id. at 7.

183 Id.

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asserts proposed Amended Contention 2 is inadmissible because the new infor-mation in proposed Amended Contention 2 is not material to the findings the NRC must make, does not raise a genuine dispute with the applicant, raises is-sues outside the scope of the proceeding, does not support Petitioners position, and impermissibly challenges NRC rules without a waiver.184 The availability of new information may provide good cause for the amend-ment of a contention. Good cause may be found when a petitioner acts promptly after learning of materially new information. [N]ewly arising information has long been recognized as providing good cause for acceptance of a late con-tention.185 In this case, Petitioner has demonstrated good cause by timely mov-ing to amend its Contention 2 after receiving a public version of the EPRI let-ter.186 For the reasons expressed by the NRC Staff, we agree that the EPRI Letter was not previously available, contains information that is materially different from information previously available and was submitted in a timely fashion.187 Accordingly, we grant the motion to amend Contention 2. However, a new or amended contention must still satisfy the contention admissibility standards in 10 C.F.R. § 2.309(f)(1) to be admitted. We now analyze Contention 2, as amended, against the standards in 10 C.F.R. § 2.309(f)(1).

3. 10 C.F.R. § 2.309(f)(1)(iii), (iv), (vi) Impermissible Challenge to NRC Rules Under 10 C.F.R. § 54.21(c)(1)(i)-(iii), the NRC permits licensees to address TLAAs (of which the RPV is one)188 in one of three ways: (i) demonstrating that existing analyses remain valid for the period of extended operation; (ii) revising existing analyses to demonstrate their validity to the end of the period of extended operation; or (iii) demonstrating that [t]he effects of aging on the intended function(s) will be adequately managed for the period of extended operation.189 In the Point Beach SLR application, NEPB addressed the require-ments in 10 C.F.R. § 54.21(c)(1) for each TLAA.190 And in accordance with 10 184 Id. at 2, 7-13.

185 Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-82-63, 16 NRC 571, 577 (1982)

(citing Ind. & Mich. Electric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2), CLI-72-75, 5 AEC 13, 14 (1972); Cincinnati Gas & Electric Co. et al. (William H. Zimmer Nuclear Station),

LBP-80-14, 11 NRC 570, 574 (1980), appeal dismissed, ALAB-595, 11 NRC 860 (1980)).

186 Petitioner Motion to Amend at 8.

187 The PSR WI April 26, 2021 motion to amend was filed within 30 days of the EPRI letter being made available to the public. Id. at 1 (The [EPRI] letter was docketed . . . on April 2, 2021[.]).

188 See 10 C.F.R. § 54.21(a)(1)(i).

189 Id. § 54.21(c)(1)(i)-(iii).

190 See SLRA at 1-8, 4.2-4, 4.2-6, 4.2-14, 4.2-18, 4.2-24; see generally id. § 4.2.

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C.F.R. § 54.3, all TLAA from the initial license renewal have been incorpo-rated into the CLB, so only if a TLAA were being created or revised during SLR would a petitioner be able to challenge it.191 Petitioner did not identify any new or revised TLAA. Thus, Petitioners suggestion that the existing analysis is inadequate, is error-prone, or may not be used challenges the requirements set forth in section 54.21(c)(1), and thus constitutes a collateral attack on NRC rules.192 Contention 2 is inadmissible because it constitutes a collateral attack on NRC rules regarding neutron embrittlement calculations.

4. 10 C.F.R. § 2.309(f)(1)(iii), (iv), (vi) Impermissible Challenge to Current Operating Issues Contention 2 also is inadmissible because it challenges Point Beachs compli-ance with General Design Criterion (GDC) 14, which sets forth requirements for the plants design. This constitutes an impermissible challenge to Point Beachs current operation and its CLB. The Commission has held that the adequacy of the CLB is not an issue within the scope of a license renewal proceeding.193 As such, Petitioners assertions regarding the CLB and GDC 14 are beyond the scope of this proceeding, not material to the decision the NRC must make, and fail to demonstrate a genuine dispute with the applicant.

On its face, Contention 2 and its bases challenge operations during the current (renewed) operating period and original operating period.194 In Contention 2 Petitioner argues, not that testing during the SLR term may be insufficient, but rather that the reactor coolant pressure boundary has not been tested . . . .195 191 See 10 C.F.R. § 54.3.

192 To challenge an NRC rule in an adjudicatory proceeding, a petitioner must seek a waiver under 10 C.F.R. § 2.335. Petitioner did not file such a waiver request. See supra notes 37-42 and accompanying text.

193 Turkey Point, CLI-01-17, 54 NRC at 23.

194 Petition at 31 ([T]he reactor cooling pressure boundary has not been tested.); id. at 37 (neutron embrittlement is a present danger); id. at 37 (Point Beach [has] relied upon error-prone analytical calculations . . . .); id. at 37 (stating that there is no record of coupon samples being tested at Point Beach for at least ten years); id. at 38 (During the last 50 years of operation, Point Beach has failed to develop an adequate coupon program to physically test the integrity of the

[reactor pressure vessel] . . . . (quoting Gundersen Decl. ¶ 7.8.4)); id. at 38 (There is inadequate coupon data specific to Point Beach to justify its continued operation beyond its 50th year . . . .

(quoting Gundersen Decl. ¶ 7.8.4)); id. at 38 ([Point Beach] has been violating GDC-14 by not testing coupons . . . . (quoting Gundersen Decl. ¶ 7.8.4)); id. at 40-41 (stating that the Point Beach reactor vessels [have] not been tested so as to have an extremely low probability of abnormal leakage, of rapidly propagating failure, and of gross rupture for perhaps more than 20 years . . .

(quoting 10 C.F.R. pt. 51, subpt. A, app. A, § II, Criterion 14)); Tr. at 84, 86-87 (Lodge).

195 Petition at 31. Although Petitioner does provide support for its assertion that capsule testing (Continued) 41

Further, Mr. Gundersen asserts that Point Beach has violated GDC 14 for the past 50 years, which is, again, an impermissible challenge that is outside the scope of this proceeding.196 In addition, with regard to Petitioners claim that there are not enough capsules, this assertion appears to attack the SLR term as an afterthought and instead focuses on the alleged historical, and present, lack of capsule testing.197 These assertions are beyond the scope and not material to this proceeding, and do not demonstrate a genuine dispute with the applicant. For the above reasons, amended Contention 2 impermissibly raises issues that challenge the current operating license period, contrary to 10 C.F.R. § 2.309(f)(1)(iii), (iv),

and (vi).

5. 10 C.F.R. § 2.309(f)(1)(v), (vi) Lack of Adequate Support, and Failure to Demonstrate Genuine Dispute Petitioners remaining claims supporting Contention 2 lack specificity and ad-equate support and fail to demonstrate a genuine dispute with the applicant. For example, while Petitioner contends that there are not enough sample coupons to remove from the reactor and test for embrittlement during the 60-year period of operations, let alone for an additional 20 more years out to 80 years,198 it fails to cite to the SLR application that discusses capsule testing. The Reactor Vessel Material Surveillance Program, which is described in the SLR applica-tions Appendix A providing the updated final safety analysis report supplement, states This [Aging Management Program] includes withdrawal and testing of the Supple-mental A surveillance capsule, identified in [Technical Requirements Manual]

2.2. This capsule will receive between one to two times the peak reactor vessel neutron fluence of interest at the end of the [subsequent period of operation] in the TLAAs for [upper shelf energy], [pressurized thermal shock], and [pressure-temperature] limits. The surveillance program adheres to the requirements of 10 CFR Part 50, Appendix H, as well as the American Society for Testing Materials (ASTM) standards incorporated by reference in 10 CFR Part 50, Appendix H.199 This capsule contains weld materials representative of Point Beach Units 1 and will be insufficient during the SLR term, the overall focus of Petitioners assertions impermissibly challenge the current operating period. See Petition at 35 (citing Gundersen Decl. ¶ 7.4.6).

196 Gundersen Decl. ¶ 7.8.4.

197 Petition at 35-36.

198 Id. at 36 (citing Gundersen Decl. ¶ 7.7.2).

199 SLRA, app. A, at A-25; see id., app. A, at A-158; id., app. B. at B-148 to -149.

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2,200 and once removed, the neutron fluence it received will bound the projected fluence at the end of the SLR operating term.201 Further, as stated in the SLR application, NEPB receives supplemental data from other Babcock & Wilcox re-actors to (a) monitor irradiation embrittlement to neutron fluences greater than the projected neutron fluence at the end of the [subsequent period of operation],

and (b) provide adequate dosimetry monitoring during the [subsequent period of operation].202 Petitioner fails to address any of this information. Since Peti-tioner does not address NEPBs Reactor Vessel Material Surveillance Program, Contention 2 fails to demonstrate a genuine dispute with the applicant and fails to identify the specific sections of the application it is challenging.203 Further, Petitioners contention that NEPB will not conduct an analysis of the capsules or will ignore the data from sample coupons,204 lacks adequate support and fails to demonstrate a genuine dispute with the application. In the SLR application, NEPB states that [t]he [Reactor Vessel Material Surveillance Aging Management Program] withdraws, and subsequently tests, the capsule at an outage in which the capsule receives a neutron fluence of between one and two times the peak reactor vessel neutron fluence of interest at the end of the

[subsequent period of operation].205 The explicit language of the application demonstrates that NEPB will conduct a capsule analysis. Further, NEPBs cap-sule analysis will be conducted in accordance with 10 C.F.R. Part 50, Appendix H, which provides that [f]or each capsule withdrawal, the test procedures and reporting requirements must meet the requirements of the ASTM E 185 to the extent practicable for the configuration of the specimens in the capsule.206 Thus, the plain language of the SLR application indicates NEPB will both conduct an analysis of the capsules207 and do so in accordance with NRC regulations.208 Accordingly, Petitioners assertions fail to demonstrate a genuine dispute with the application.

200 NRR, NRC, NUREG-1839, Safety Evaluation Report Related to the License Renewal of the Point Beach Nuclear Plant, Units 1 and 2, at 3-97 (Dec. 2005) (ADAMS Accession No. ML-053420137).

201 SLRA, app. B, at B-150.

202 NEPB Answer at 30 (citing SLRA, app. A, at A-26; id., app. B at B-148 to -149).

203 See Susquehanna Nuclear, LLC (Susquehanna Steam Electric Station, Units 1 and 2), CLI 4, 85 NRC 59, 74 (2017) (citing 10 C.F.R. § 2.309(f)(1)(vi)).

204 Petition at 32; Gundersen Decl. ¶ 7.8.2.

205 SLRA, app. B, at B-149.

206 10 C.F.R. pt. 50, app. H, § III.B.1.

207 See Tr. at 100-01 (Lewis).

208 A petitioner may not support a contention by assuming a licensee will violate agency regu-lations. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-9, 53 NRC 232, 235 (2001) ([T]he NRC does not presume that a licensee will violate agency regulations wherever the opportunity arises.).

43

In Contention 2, Petitioner also references an unspecified aging manage-ment plan [that] does not provide the requisite reasonable assurance.209 Yet, Petitioner does not cite the specific AMP in the SLR application it disputes.210 This omission is fatal to the contention as it does not demonstrate a genuine dispute with the applicant or identify the specific section of the application in dispute.

Petitioners remaining allegations are vague and unsupported. The reference to new administrative controls that will cause the RPV to crack unless the operators implement these controls perfectly is unsupported.211 It does not con-tain the requisite specificity required nor does it demonstrate a genuine dispute with the applicant, contrary to 10 C.F.R. § 2.309(f)(1)(v) and (vi).

Petitioners assertion of error-prone analytical calculations are likewise fa-tally vague and fail to satisfy 10 C.F.R. § 2.309(f)(1)(vi).212 Petitioner provides no detail about which calculation it references or what is error-prone about that calculation. This argument consists of the type of [b]are assertions and speculation that do not support an admissible contention, even if supported by an expert.213 Further, at oral argument it was made clear that the Point Beach calculations being questioned are those specified by 10 C.F.R. § 50.61, and a challenge to those calculations is an impermissible challenge to that rule.214 Turning to the amended portion of Contention 2, we observe that the EPRI letter addresses boiling water reactors (BWRs), and thus has no obvious rel-evance to the reactors at Point Beach, which are pressurized water reactors (PWRs). Further, Petitioner does not explain how the EPRI letter applies here.

Petitioner admits that the EPRI letter refers only to BWRs,215 but suggests the non-conservatism is symptomatic of an industry-wide issue in monitoring neu-209 Petition at 31.

210 The SLR application includes several AMPs, including the Neutron Fluence Monitoring AMP and the Reactor Vessel Material Surveillance AMP. SLRA at 3.1-1 to -2. We may not assume which AMP Petitioner was referring to, absent the requisite specificity. See Fermi, CLI-15-18, 82 NRC at 149 & n.74 (citing Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, Neb.),

CLI-09-9, 69 NRC 331, 353-54 (2009); Crow Butte Resources, Inc. (N. Trend Expansion Project),

CLI-09-12, 69 NRC 535, 565-71 (2009)).

211 We need not decipher vague pleadings, and we may not create legal arguments for a petitioner.

See supra note 28.

212 Petition at 37.

213 Oyster Creek, CLI-08-28, 68 NRC at 674.

214 See Tr. at 97-99 (Leidich, Trikouros); see also NEPB Answer to Motion to Amend at 10; Staff Answer to Motion to Amend at 11.

215 Tr. at 20 (Lodge).

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tron embrittlement.216 This assertion lacks adequate support and fails to demon-strate a genuine dispute with the applicant.

Therefore, Amended Contention 2 is inadmissible because it impermissibly challenges NRC rules, lacks adequate support and specificity, is not within the scope of the proceeding, is not material to the finding the NRC must make, and fails to demonstrate a genuine dispute with the applicant in contravention of 10 C.F.R. § 2.309(f)(1)(iii), (iv), (v), and (vi).

D. Contention 3

1. Background Contention 3 alleges that [t]he . . . Environmental Report fails to adequately evaluate the full potential for renewable energy sources, such as solar electric power (photovoltaics) to offset the loss of energy production from [Point Beach and, therefore,] the requested license renewal action from 2030 to 2053 [is]

unnecessary.217 Petitioners expert, Dr. Alvin Compaan, contends that the SLR application should be denied because NEPB fail[ed] to adequately assess the solar option.218 Dr. Compaan states that the declining cost of solar will make the power generated at Point Beach superfluous,219 and that solar plus storage is a viable alternative to replace Point Beach Units 1 and 2.220 Dr. Compaan pro-vides several options on how solar plus storage could be installed on residential, commercial, and federal conservation land at a sufficient volume to replace the baseload power of Point Beach.221 Petitioners other expert, Dr. Mark Cooper, asserts that [n]uclear power is far too costly,222 and concludes that the SLR 216 Petitioner suggests that since EPRI developed software for both light [pressurized] water reactors and boiling water reactors, the conclusions in the EPRI letter regarding BWRs should prompt very serious discussions and formal inquiry into the adequacy of the software that is used to project the integrity of the reactor vessels at Point Beach. Tr. at 19-20 (Lodge). This is both speculative and irrelevant. As was noted during oral argument, rather than employing software to monitor neutron embrittlement, Point Beach uses the embrittlement curve found at 10 C.F.R.

§ 50.61. Tr. at 98 (Leidich). Nor does Petitioner provide any support for the assertion that an issue with PWR software exposes an issue with BWR software.

217 Petition at 41.

218 Compaan Decl. ¶ 5.

219 Id. ¶ 33.

220 See id. ¶¶ 5-37.

221 Id. ¶¶ 20-24.

222 Cooper Decl. at 2. Dr. Cooper dedicates much of his declaration to the argument that nuclear energy should be abandoned as a feature of the American energy generation portfolio. Id. at 5-6; see generally id. However, Dr. Cooper addresses the ERs discussion of solar power only once. Id.

at 20.

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application should be denied for economic reasons223 and that nuclear energy should be discarded in favor of distributed and renewable resources.224 Peti-tioner further contends that solar is technically feasible on a commercial scale, and therefore must be reviewed as a reasonable alternative in the ER.225 Petitioner asserts that solar generation is preferable to SLR due to the harsh economic realities226 of nuclear power, the dramatically-changing circumstances in the regional energy mix,227 and the associated low greenhouse gas emissions and environmental impacts from solar energy generation.228 NEPB opposes admission of Contention 3, arguing that Petitioner fails to dispute the ERs conclusion that solar plus storage was not a reasonable alterna-tive due to acreage requirements.229 Instead, NEPB argues, Petitioner generally assert[ed] that solar power is low cost and available, growing rapidly as an energy source, and capable of being coupled with batteries to provide more reliable power,230 albeit without disputing the conclusions in the ER.231 NEPB notes that Petitioners expert, Dr. Compaan, provides several options on how the large acreage requirement could be met, but contends those options fail to dispute the underlying conclusion in the ER and therefore fails to demonstrate a genuine dispute.232 NEPB contends that several aspects of Dr. Compaans tes-timony demonstrate the unreasonableness of the solar plus storage option, such as the questionable legality of using U.S. Conservation Reserve Program land for solar power233 and the fact that either 87% of suitable residential rooftop space or 68% of commercial rooftop space from the entire state [of Wisconsin]

would be needed (together with storage) to replace the power output of Point Beach.234 In addition, NEPB contends Dr. Compaans theoretical model of solar plus storage is akin to a contention rejected by the Commission in the Davis-Besse proceeding in which the Commission stated that [t]he mere potential for, or 223 Id.

at 8-9.

224 Id.

at 2; Compaan Decl. ¶ 37.

225 Petition at 55; see Compaan Decl. ¶¶ 32-34, 37.

226 Petition at 53.

227 Compaan Decl. ¶ 3.

228 Petition at 48-49; Compaan Decl. ¶¶ 35-37. Petitioner also raises several new arguments in its reply, such as NEPBs discussion of waste management. Petitioner Reply at 20-22. We will not address arguments raised for the first time in a reply brief. See supra note 145.

229 NEPB Answer at 35-49.

230 Id. at 35.

231 See id. at 35-36.

232 See id.

233 Id. at 37-38.

234 Id. at 40 (citing Compaan Decl. ¶ 21).

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theoretical capacity of, [an alternative] is insufficient to show . . . commercial viability as a source of baseload power in the [region of interest by license expiration].235 In addition, NEPB contends Dr. Compaan focuses solely on the mere existence of sufficient rooftops and ignores commercial viability alto-gether.236 NEPB further argues that Petitioner fails to demonstrate the adverse environ-mental impacts of license renewal are so great, compared with their proposed solar alternative, that preserving the option of license renewal for energy plan-ning decisionmakers would be unreasonable.237 NEPB contends that Petitioners expert, Dr. Cooper, impermissibly raises economic arguments.238 NEPB states that 10 C.F.R. § 51.45(c) does not require consideration of the economic or technical benefits and costs of either the proposed action or alternatives except if these benefits and costs are either essential for a determination regarding the inclusion of an alternative in the range of alternatives considered or relevant to mitigation.239 In this instance, NEPB asserts that [b]ecause this Contention does not relate to mitigation alternatives, and economics are not essential for the inclusion of the SMR alternative, no discussion of economics is required.240 As such, NEPB concludes, none of Dr. Coopers claims are within the scope of this proceeding or demonstrate a genuine dispute.241 The NRC Staff also opposes Contention 3, asserting that it is outside the scope of the proceeding and fails to demonstrate a genuine dispute with the ap-plicant on a material issue of law or fact.242 The NRC Staff contends that to the extent Petitioner disputes the need for power, such an argument is beyond the scope of the proceeding because 10 C.F.R. § 51.53(c)(2) states that an environ-mental report need not include a discussion of the need for power.243 Further, to challenge the need for power, Petitioner would first have to request a waiver of 10 C.F.R. § 51.53(c)(2) and would have to demonstrate special circumstances unique to Point Beach.244 As the NRC Staff notes, Petitioner did not file a waiver petition.245 235 Id. at 41-42 (quoting FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC 393, 402 (2012)).

236 Id. at 43 (citing Compaan Decl. ¶ 21).

237 Id. at 45 (quoting 10 C.F.R. § 51.95(c)(4)).

238 Id. at 46-49.

239 Id. at 46 (quoting 10 C.F.R. § 51.45(c)).

240 Id. (citing Petition at 42).

241 Id. at 49.

242 Staff Answer at 36-41.

243 Id. at 36 (quoting 10 C.F.R. § 51.53(c)(2)).

244 Id. at 37 n.178 (citing Millstone, CLI-05-24, 62 NRC at 559-60).

245 Id.

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In addition, the NRC Staff asserts that Contention 3 fails to raise a genuine dispute with the applicant on a material issue of law or fact because it does not provide sufficient information to demonstrate that the solar plus storage alternative is commercially viable on a utility scale or that it will become so in the near future.246 The NRC Staff notes that NEPB listed several reasons why solar plus storage was not a reasonable option, including large land requirements and solars lower generation capacity than nuclear.247 Along the same lines, the NRC Staff argues that Petitioner failed to address the [ER]s conclusion that the solar alternative is unreasonable due to the environmental impacts of installing such a large solar array,248 ignore[d] the practical and legal realities of such a proposal,249 and does not explain how [NEPB] . . . would have access to the residential and commercial rooftops or the conserved farmlands required for installation of solar arrays.250 The NRC Staff contends Petitioners expert analysis using optimally tilted [solar] panels is a minor difference . . . not sufficient to create a genuine dispute with the [ERs] conclusion that solar energy in Wisconsin has less generation capacity than the U.S. average.251

2. 10 C.F.R. § 2.309(f)(1)(v), (vi) Lack of Adequate Support and Failure to Demonstrate Genuine Dispute Petitioners assertion that the solar plus storage alternative should have been considered as a reasonable alternative in the ER lacks adequate support and fails to demonstrate a genuine dispute with NEPBs conclusion that solar plus storage would not be commercially viable on a utility scale and operational prior to expiration of the current Point Beach licenses.252 The NRC has defined the scope of reasonable alternatives that must be considered in a license renewal application. The GEIS states that [a] reasonable alternative [replacement power] must be commercially viable on a utility scale and operational prior to the expiration of the reactors operating license, or expected to become commercially viable on a utility scale and operational prior to the expiration of the reactors operating license.253 The Commission stated that to raise a genuine dispute, contentions regarding reasonable alternatives in license renewal proceedings must provide alleged facts or expert opinion 246 Id. at 39.

247 Id. at 39-41.

248 Id. at 39.

249 Id.

250 Id. at 40.

251 Id. (citing Compaan Decl. ¶ 5).

252 10 C.F.R. § 2.309(f)(1)(v), (vi).

253 GEIS at 2-18.

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sufficient to raise a genuine dispute as to whether the best information available today suggests that commercially viable alternative technology (or combination of technologies) is available now, or will become so in the near future, to supply baseload power.254 In line with the GEIS delineation of reasonable replacement power alter-natives, NEPB considered three substitutions: (1) an [Advanced Light-Water Reactor (ALWR)] with mechanical draft cooling towers located at the [Point Beach nuclear] site[;] (2) a [c]luster of small modular reactors (SMRs) with mechanical draft cooling towers located at the [Point Beach nuclear] site[;]

and (3) a [c]onfiguration of natural gas combined cycle units with mechanical draft cooling towers located at the [Point Beach nuclear] site [along with the]

[e]xpansion of the Point Beach solar facility . . . .255 In its ER, NEPB concluded that a number of alternatives requiring new gen-eration capacity, including onshore and offshore wind, hydropower, geothermal, biomass, and fuel cell, wave and current energy, petroleum-fired, coal-fired, so-lar only, and solar plus storage, were not commercially viable alternatives.256 With respect to solar plus storage, NEPB found it not to be a commercially vi-able alternative to renewal of Point Beach Units 1 and 2 because the land use disturbances could result in MODERATE to LARGE impacts on wildlife habi-tats, vegetation, land use, and aesthetics.257 For context, NEPB noted that its existing solar array has approximately 565 acres of solar panels which amounts to 100 megawatts of capacity (and no on-site energy storage).258 NEPB con-cluded it would take 6,780 acres, plus additional acreage for energy storage, to match the current generating capacity of the Point Beach units.259 As such, NEPB recognized that solar plus storage could be a reasonable alternative but its generation capacity is far less than nuclear generation and is not a commercially viable alternative due to the acreage requirements.260 In contrast, Petitioners assertions that NEPB should have discussed the costs and benefits of solar plus storage to fulfill 10 C.F.R. § 51.53(c)(2) lacks ade-254 Seabrook, CLI-12-5, 75 NRC at 342 (quotations and footnote omitted); see id. (Except in rare cases where there is evidence of unusual predictive reliability, it is not workable to consider, for purposes of NEPA analysis, what are essentially hypothetical or speculative alternatives as a source of future baseload power generation. (footnote omitted)).

255 ER at 7-3 to -4.

256 Id. at 7-6 to -11.

257 Id. at 7-8.

258 Id.

259 Id.

260 Id. at 7-9.

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quate support and does not directly challenge information in the ER.261 Section 51.53(c)(2) states that an ER is not required to include discussion of . . . the economic costs and economic benefits . . . of alternatives to the proposed action except insofar as such costs and benefits are either essential for a determination regarding the inclusion of an alternative in the range of alternatives considered or relevant to mitigation.262 Petitioner and its experts fail to proffer adequate support for its argument that a discussion of the costs and benefits of solar plus storage is essential to determine whether it should be included as an alternative.263 As noted, NEPB concluded the solar plus storage should not be included as a reasonable alter-native due to the acreage requirements.264 Petitioner does not explain why a discussion of costs and benefits is essential if NEPB dismissed the alternative due to the large acreage requirements that could result in MODERATE to LARGE impacts on wildlife habitats, vegetation, land use, and aesthetics.265 Petitioner alleges that 10 C.F.R. § 51.53(c)(2) oblige[s] [NEPB] to perform a cost-benefit analysis of solar plus storage if the environmental impacts of license renewal are great enough to tip the balance against license renewal.266 Section 51.53(c)(2) contains no such obligation.

Notably, Petitioner does not dispute the reason NEPB cites for concluding solar plus storage is not a reasonable alternative in fact, it agrees that over 6,000 acres would be needed for the solar plus storage alternative.267 Petitioner (and its experts) thus have proffered no information to dispute the large acreage requirement for the solar plus storage alternative and the significant environ-mental impacts of such an allotment that were the basis of NEPBs conclusion 261 Petitioner Reply at 15-16.

262 10 C.F.R. § 51.53(c)(2) (emphasis added).

263 Petitioner did not argue that a discussion of the costs and benefits is relevant to mitigation.

Id.

264 ER at 7-9.

265 Id. at 7-8.

266 Petitioner Reply at 19.

267 Compaan Decl. ¶ 7. This admission suggests that Petitioner agrees that NEPB relied on the best information available to conclude that the solar plus storage alternative requires a significant amount of land, thereby fulfilling the requirements of NEPA. See Seabrook, CLI-12-5, 75 NRC at 342; Tr. at 132 (Lodge) (Yes, we agree and admit that theres a large amount of acreage necessary for the photovoltaic collection.).

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that solar plus storage was not a reasonable alternative.268 This defect is fatal to Contention 3.269 In several respects, Petitioners assertions bolster NEPBs conclusion that solar plus storage is not a reasonable alternative due to acreage requirements.

For instance, Dr. Compaan states that 42,000 acres (or 65.7 square miles) is needed to replace the baseload 1200 [megawatts] produced by Point Beach.270 That is six times the amount of land NEPB stated it would require.271 While Dr.

Compaan does outline several options by which the acreage requirement can be met the underlying acreage requirement itself is undisputed.272 In its reply, in support of Dr. Compaan and the admissibility of Contention 3, Petitioner cites the Commissions 2012 Seabrook decision, stating that it stands for the proposition that the Board may rely on Dr. Compaans future-oriented testimony as added evidence of the likelihood of industrial-scale photovoltaic availability during the subsequent license renewal period 2030-2053.273 Peti-tioner misinterprets the Commissions decision in Seabrook. The Commission stated that its Seabrook ruling does not exclude the possibility that a con-tention could show a genuine dispute with respect to a technology that, while not commercially viable at the time of the application, is under development for large-scale use and is likely to be available during the period of extended operation.274 Thus, while a petitioner may proffer future-oriented testimony to demonstrate a genuine dispute with respect to commercially available tech-nology, it must also show that the solar plus storage technology is under de-268 Petitioner also references other forms of renewable energy, such as wind. See Petition at 47, 48, 50, 52; Gundersen Decl. ¶¶ 5.2, 10.6-10.11. Given the ER discussion regarding such alternatives, see supra note 256 and accompanying text, this claim also fails to demonstrate a genuine dispute with the applicant.

269 The Commission rejected an identical contention in the Davis-Besse proceeding, in which Dr.

Compaan also submitted an expert declaration. The Commission held that Dr. Compaan had not identified a solar plus storage combination that can, as a practical matter, produce baseload power either now, or in time to constitute a reasonable alternative to relicensing Davis-Besse. Davis-Besse, CLI-12-8, 75 NRC at 405. At oral argument, Petitioner attempted to distinguish this case. Tr. at 106-07 (Lodge). Even if it were timely, we see no reason to depart from the Commissions holding in Davis-Besse.

270 Compaan Decl. ¶¶ 16-17.

271 See supra note 259 and accompanying text.

272 Compaan Decl. ¶¶ 20-24. In addition, NEPB did not state that the required acreage in Wisconsin does not exist, only that the land use disturbances [from solar photovoltaic systems] could result in MODERATE to LARGE impacts on wildlife habitats, vegetation, land use, and aesthetics. ER at 7-8. Petitioner did not dispute this analysis.

273 Petitioner Reply at 15 (citing Seabrook, CLI-12-5, 75 NRC at 342 n.245).

274 Seabrook, CLI-12-5, 75 NRC at 342 n.245 (citing Carolina Envtl. Study Group v. U.S., 510 F.2d 796, 800 (D.C. Cir. 1975)) (emphasis added).

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velopment for large-scale use . . . .275 Petitioner does not make this showing, and thus Seabrook does not support its position.

Likewise, Petitioners focus on the decreasing cost and low greenhouse gas emissions of the solar plus storage alternative misses the mark.276 NEPB did not conclude the solar plus storage alternative would be prohibitively expensive, only that, due to acreage requirements, it was not a reasonable alternative.277 Nor did it conclude this alternative was unreasonable based on greenhouse gas emissions.278 NEPB concluded solar plus storage was not a reasonable alternative due to acreage requirements and the associated environmental impacts,279 and Petitioner failed to demonstrate a genuine dispute with the applicant on that matter.

Contention 3 is also inadmissible because it lacks adequate support for the proposition that the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decision-makers [is] unreasonable.280 Indeed, Petitioner cites the incorrect legal standards when describing the process for analyzing alternatives, suggesting [t]here must be [an] examination of every alternative within the nature and scope of the proposed action sufficient to permit a reasoned choice.281 The NRCs envi-ronmental review does not require a determination of the best method for electricity generation, rather the review is limited to the adverse environmental effects of the proposed action, as well as analyses of reasonable alternatives.282 Section 51.95(c)(4) states that only if the adverse environmental impacts of license renewal are so great as to warrant depriving energy planners of the op-tion of a facilitys continued operation may the NRC consider denying license renewal altogether.283 Petitioner made no such showing.284 275 Id.

276 See Compaan Decl. ¶¶ 27, 31, 35-37; Cooper Decl. at 9-20, 23-24; Tr. at 55-56, 117 (Lodge).

277 ER at 7-8 to -9.

278 Id.

279 Id.

280 10 C.F.R. § 51.95(c)(4).

281 Petition at 54 (citing Cal. v. Block, 690 F.2d 753, 761 (9th Cir. 1982); quoting Methow Valley Citizens Council v. Regl Forester, 833 F.2d 810, 815 (9th Cir. 1987)).

282 See supra notes 58-63 and accompanying text; see also 61 Fed. Reg. at 28,473 ([T]he NRC has no regulatory power to ensure that environmentally superior energy alternatives are used in the future.).

283 10 C.F.R. § 51.95(c)(4).

284 Petitioner does address 10 C.F.R. § 51.95(c)(4) in its reply, but concludes, without support, that NEPBs ER skirts evidence tending to show that the adverse environmental effects of renewing

[Point Beachs] operating license are so great[, compared with the set of alternatives,] that preserv-ing the option of license renewal for [energy planning] decisionmakers would be unreasonable.

(Continued) 52

In sum, Contention 3 is inadmissible because, contrary to 10 C.F.R.

§ 2.309(f)(1)(v) and (vi), it lacks adequate support and fails to demonstrate a genuine dispute with NEPBs conclusion in the ER that the solar plus storage alternative is not a reasonable alternative.

E. Contention 4

1. Background Contention 4 alleges that [Point Beach] has an elevated risk of a turbine missile accident owing to the poor alignment of its major buildings and struc-tures.285 Petitioner contends that Point Beach has a turbine hall that is dan-gerously aligned relative to the reactor buildings and control rooms and that this design is unsafe, because a turbine failure will send 600 [pound] pieces of shrapnel hurtling at 600 [miles per hour] into the containment, safety-related components, and the control room.286 Petitioner further asserts that the ER fails to discuss missiles from steam turbine shafts or blades.287 Mr. Gundersen con-clude[s] that to reduce the risk of damage to safety-related systems, structures, and components, [Point Beach] should be required to install an energy-absorbing turbine missile shield around its turbine.288 NEPB argues Contention 4 is inadmissible because it is outside of the scope of the proceeding and fails to demonstrate any genuine material dispute with the application.289 Specifically, NEPB asserts that Contention 4 challenge[s] the existing design of the plant and therefore represent[s] an impermissible chal-lenge to the plants CLB.290 Further, NEPB notes that the turbine blades and shafts mentioned in Contention 4 are active components not subject to aging management review.291 Alternatively, NEPB contends that extending the aging management review to active components would constitute an impermissible challenge to 10 C.F.R. § 54.21(a)(1)(i)-(ii).292 NEPB argues that a review of Petitioner Reply at 19 (quoting 10 C.F.R. § 51.95(c)(4)). We need not address this argument raised for the first time on reply. See supra note 145.

285 Petition at 56.

286 Id. (citing Gundersen Decl. ¶ 7.3.4).

287 Petition at 58.

288 Gundersen Decl. ¶ 7.3.9.

289 NEPB Answer at 50; see id. at 50-53.

290 Id. at 50.

291 Id. (citing 1 NRR, NRC, NUREG-2191, Generic Aging Lessons Learned for [SLR] (GALL-SLR) Report, at VIII A-1 (July 2017) (ADAMS Accession No. ML17187A031) [hereinafter NUREG-2191, Vol. 1]).

292 Id. at 50-51.

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such active components is beyond the scope of the proceeding since Petitioner did not file a section 2.335 waiver request showing special circumstances.293 NEPB also contends Petitioner inaccurately portrayed 10 C.F.R. § 54.21(a)(3),

by claiming it requires a demonstration that the effects of aging will be ad-equately managed so that the intended function(s) will be maintained consis-tent with the CLB for the period of extended operation,294 but failed to note that this requirement applies only to passive, not active components.295 Nor, NEPB contends, does Petitioners citation to 10 C.F.R. § 54.4(a)(1)(i)-(iii) sup-port Contention 4,296 because 10 C.F.R. § 54.4(a)(1) discusses [s]afety-related systems, structures, and components,297 but the turbine is not safety-related, and is otherwise excluded from this review as an active component under 10 C.F.R. § 54.21(a)(1)(i).298 NEPB also asserts that, even if the CLB were subject to challenge in this proceeding, Petitioner failed to speak to any of the measures in Point Beachs CLB addressing turbine missile risk . . . .299 Similarly, the NRC Staff opposes admission of Contention 4 on the grounds that it addresses a current operating issue . . . not unique to the SLR term.300 Thus, the NRC Staff asserts, Contention 4 raises an issue outside the scope of the proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii).

2. 10 C.F.R. § 2.309(f)(1)(iii), (iv), (vi) Impermissible Challenge to NRC Rules, Beyond the Scope of this Proceeding, Not Material, and Fails to Demonstrate Genuine Dispute The scope of license renewal is limited to certain age-related issues,301 and Contention 4 raises an issue outside the scope of those age-related issues. Specif-ically, Petitioner impermissibly challenges the original design of the facility.302 Indeed, Petitioner admits it is challenging a current operating issue303 (i.e., the CLB) and recognizes that the physical alignment of the facility stems from its 293 Id.

at 51.

294 10 C.F.R. § 54.21(a)(3); see Petition at 60-61.

295 NEPB Answer at 52 (citing 10 C.F.R. § 54.21(a)(1), (3)).

296 See Petition at 60.

297 10 C.F.R. § 54.4(a)(1).

298 NEPB Answer at 52-53.

299 Id. at 53.

300 Staff Answer at 42 (quoting Pac. Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-15-21, 82 NRC 295, 304 (2015)).

301 See supra notes 49-57 and accompanying text.

302 Petition at 56 (referring to the design of Point Beach as [h]istorically being dangerously aligned and stating the design [of Point Beach] is unsafe).

303 Petitioner Reply at 22; Tr. at 137-38 (Lodge).

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original construction.304 Contention 4 does not address age-related degradation, nor does it raise an issue unique to the SLR period.305 Petitioner does not attempt to argue the danger is unique to the SLR term, but instead focuses on the present (and past) danger stating that the [Point Beach] design is unsafe and has been so since the late 1960s when [Point Beach] was constructed.306 Therefore, Contention 4 raises an impermissible challenge to a current operating issue not unique to the SLR period.307 Further, active components are not subject to an aging-management review, as stated in 10 C.F.R. § 54.21(a)(1)(i)-(ii). The allegedly inadequate turbine blades and shafts are active components not subject to an aging-management review.308 Petitioner impermissibly challenges 10 C.F.R. § 54.21(a)(1)(i)-(ii).309 Contention 4 constitutes an impermissible challenge to both the CLB and the rule limiting aging management review to passive components, seeks to raise issues outside the scope of this proceeding, is not material to the findings that the NRC Staff must make, and is not supported by any information demonstrating a genuine material dispute, contrary to 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi).

IV. ORDER For the reasons set forth above, we deny Petitioners hearing request. Under 10 C.F.R. § 2.311, any appeal to the Commission from this Memorandum and Order must be taken within twenty-five (25) days after service.

304 See Petition at 56.

305 Petitioners assertion that the turbine shafts in Units 1 and 2 are aging and will continue to do so for a score more years in a subsequent license renewal period does not raise an admissible age-related issue. Petitioner Reply at 22. An assertion that part of the reactor facility will age during the SLR term is an insufficient basis for an admissible contention since, as common sense dictates, all parts of the reactor necessarily will age during the SLR term. The scope of license renewal, however, is narrower. In this regard, an admissible contention must address an age-related issue reviewed as part of NRCs license renewal process. See supra notes 49-57 and accompanying text.

306 Petition at 56, 61 (emphasis added); see Gundersen Decl. ¶¶ 6.7, 7.3.1.

307 See Diablo Canyon, CLI-15-21, 82 NRC at 304 (citation omitted).

308 The steam turbine performs its intended functions with moving parts. Pursuant to [10 C.F.R.

§§ ] 54.2(a)(1), therefore, it is not subject to an aging management review (AMR). NUREG-2191, Vol. 1 at VIII A-1. The turbine system is also not within the scope defined by 10 C.F.R. § 54.4.

See SLRA at 2.2-5 tbl.2.2-1. At oral argument, Petitioner conceded that the turbine shields and turbine blades are active components. Tr. at 138 (Lodge).

309 With this explanation, it is apparent Petitioners remaining assertions misstate the law and have no relevance to the SLR term. Petition at 58-61.

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It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD William J. Froehlich, Chairman ADMINISTRATIVE JUDGE Dr. Gary S. Arnold ADMINISTRATIVE JUDGE Nicholas G. Trikouros ADMINISTRATIVE JUDGE Rockville, Maryland July 26, 2021 56

Cite as 94 NRC 57 (2021) CLI-21-10 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Christopher T. Hanson, Chairman Jeff Baran David A. Wright In the Matter of Docket No. 50-320-LT FIRSTENERGY COMPANIES and TMI-2 SOLUTIONS, LLC (Three Mile Island Nuclear Station, Unit 2) August 31, 2021 PETITION FOR RECONSIDERATION Our rules of practice governing petitions for reconsideration are found in 10 C.F.R. §§ 2.323(e), 2.345, and 2.341(d). A petition for reconsideration may not be filed except upon leave of the adjudicatory body that rendered the decision.

The petition must demonstrate a compelling circumstance, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid. 10 C.F.R. § 2.345(b).

PETITION FOR RECONSIDERATION A petition for reconsideration should be based on an elaboration of an ar-gument already made, an overlooked controlling decision or principle of law, or a factual clarification. Virginia Electric and Power Co. (North Anna Power Station, Unit 3), CLI-12-17, 76 NRC 207, 209-10 (2012) (citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-19, 62 NRC 403, 410 (2005)). It should not simply reargue matters which we have already considered but rejected. Id. at 210 (citing Dominion Nuclear Connecti-cut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-18, 58 NRC 433, 434 (2003)).

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MEMORANDUM AND ORDER Today we address a Petition for Reconsideration of our decision in CLI-21-8, and a Motion to Amend the Petition, both filed by Eric Epstein, Chairman of Three Mile Island Alert (TMIA).1 For the reasons discussed below, we find that the Petition does not meet the standards for a petition for reconsideration, and we therefore deny it.

In CLI-21-8, we denied TMIAs motion to hold the Three Mile Island Nuclear Station, Unit 2 (TMI-2) license transfer in abeyance, and found that we no longer had jurisdiction over the adjudicatory proceeding and that TMIAs motion did not meet our requirements for reopening a closed record or for staying the license transfer.2 We also found that this license transfer did not require a new certification under section 401 of the Clean Water Act (CWA).3 TMIA asks us to reconsider our decision in CLI-21-8. Our rules of prac-tice governing petitions for reconsideration are found in 10 C.F.R. §§ 2.323(e),

2.345, and 2.341(d). A petition for reconsideration may not be filed except upon leave of the adjudicatory body that rendered the decision.4 The petition must demonstrate a compelling circumstance, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid.5 Such a petition should be based on an elaboration of an argument already made, an overlooked controlling decision or principle of law, or a factual clarification.6 It should not simply reargue matters which we have already considered but rejected.7 TMIA does not raise a compelling circumstance for us to reconsider our de-cision in CLI-21-8. TMIA argues that the NRC and Applicants8 did not comply 1 Petition for Reconsideration (July 1, 2021) (Petition); Motion to Amend the Petition for Re-consideration (July 30, 2021) (Motion to Amend). TMI-2 Solutions, LLC, opposed both. TMI-2 Solutions, LLCs Answer Opposing Three Mile Island Alerts Petition for Reconsideration of CLI-21-08 (July 12, 2021); TMI-2 Solutions, LLCs Answer Opposing Three Mile Island Alerts Motion to Amend the Petition for Reconsideration of CLI-21-08 (Aug. 9, 2021) (TMI-2 Solutions Answer to Motion to Amend).

2 CLI-21-8, 93 NRC 237, 239-41 (2021).

3 Id. at 241-42.

4 See 10 C.F.R. § 2.323(e).

5 Id. § 2.345(b).

6 Virginia Electric and Power Co. (North Anna Power Station, Unit 3), CLI-12-17, 76 NRC 207, 209-10 (2012) (citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-05-19, 62 NRC 403, 410 (2005)).

7 Id. at 210 (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-18, 58 NRC 433, 434 (2003)).

8 The Applicants in this proceeding are GPU Nuclear, Inc., Metropolitan Edison Company, Jersey Central Power & Light Company, Pennsylvania Electric Company, and TMI-2 Solutions, LLC.

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with the CWA with regards to this license transfer, an argument that we ex-plicitly considered and found unavailing in CLI-21-8.9 In CLI-21-8 we held that

[b]ecause this license transfer does not authorize an activity that could result in a new discharge, the CWA does not require a certification under section 401.10 While TMIA raises generalized concerns that more water will be used during the decommissioning process, it does not refute with any specificity our holding on the CWA or demonstrate error in our prior decision.11 In its Mo-tion to Amend, TMIA points to emails it received from the Susquehanna River Basin Commission in a records request as further support for its arguments.12 However, as noted by TMI-2 Solutions, the attached emails do not appear to support the arguments in the Motion to Amend.13 The emails state that water will be provided by Unit 1s approved groundwater withdrawals and that the anticipated use is less than 100,000 gallons per day.14 There is no indication that there will be a new discharge.

TMIA also supports its Petition by pointing to Commissioner Barans Addi-tional Views, in which he disagreed with the jurisdictional holding in CLI 8.15 While Commissioner Baran disagreed with the jurisdictional findings in that case, he agreed with the majoritys position that the abeyance motion should be denied.16 In CLI-21-8 the entire Commission found that [o]ur rules do not allow for a motion to hold a closed proceeding in abeyance and found that TMIAs motion failed to meet the standards for a motion to reopen the record 9 CLI-21-8, 93 NRC at 241-42.

10 Id.

11 Petition at 7. TMIA states that [t]hese areas will require large quantities of water which nec-essarily creates radioactive wastewater that has to be isolated and disposed or discharged directly into the Susquehanna River. Id. But this statement alone, with no support, does not show an error in our reasoning in CLI-21-8. See North Anna, CLI-12-17, 76 NRC at 210 (finding that reiterating an argument without new reasoning or support does not make a compelling case for reconsideration).

12 Motion to Amend at 7-12, Attach. 1. On August 26, 2021, TMIA submitted additional emails and other records obtained from the Susquehanna River Basin Commission but provided no ac-companying motion or explanation of these filings. These filings do not provide a basis to grant TMIAs petition for reconsideration.

13 TMI-2 Solutions Answer to Motion to Amend at 4-6. We also agree with TMI-2 Solutions that the Motion to Amend suffers from several other defects. Id. at 1-6 (noting that this type of motion is not provided for in the Commissions regulations, the Motion to Amend exceeds the page limits, and TMIA did not consult with the other parties).

14 Motion to Amend at Attach. 1.

15 Petition at 4-5.

16 CLI-21-8, 93 NRC at 243. Notably, Commissioner Baran joined the rest of the Commission in the conclusion that section 401 of the CWA does not require a new certification for this license transfer because it does not authorize an activity that could result in a new discharge.

59

or to stay the license transfer.17 TMIA does not address or show error in this reasoning.

Because TMIA has not shown any compelling circumstance that would render our decision in CLI-21-8 invalid, it has not met the requirements for a petition for reconsideration. The Petition is therefore denied.

IT IS SO ORDERED.

For the Commission Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 31st day of August 2021.

17 Id. at 241.

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Cite as 94 NRC 61 (2021) LBP-21-6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Paul S. Ryerson, Chairman E. Roy Hawkens Dr. Sue H. Abreu In the Matter of Docket Nos. EA-20-006 EA-20-007 (ASLBP No. 21-969-01-EA-BD01)

TENNESSEE VALLEY AUTHORITY (Enforcement Action) November 3, 2021 In this proceeding concerning an enforcement action against the Tennessee Valley Authority (TVA) the Board grants TVAs motion for summary disposi-tion of Violations 1, 2, and 3 and of Violation 4 in part.

RULES OF PRACTICE: MOTIONS FOR

SUMMARY

DISPOSITION The standards for summary disposition are set forth in 10 C.F.R. § 2.710 and are based upon those the federal courts apply to motions for summary judg-ment under Rule 56 of the Federal Rules of Civil Procedure. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 297 (2010); see Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98, 102-03 (1993). A Board may grant summary disposition if the relevant pleadings show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law. 10 C.F.R. § 2.710(d)(2).

61

RULES OF PRACTICE: MOTIONS FOR

SUMMARY

DISPOSITION As the Commission directs, [c]aution should be exercised in granting sum-mary disposition, which may be denied if there is reason to believe that the better course would be to proceed to a full [hearing]. Pilgrim, CLI-10-11, 71 NRC at 298 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)).

RULES OF PRACTICE: MOTIONS FOR

SUMMARY

DISPOSITION In ruling on a motion for summary disposition, a licensing board must con-strue all facts in the light most favorable to the nonmoving party, and any doubt as to the existence of a genuine issue of material fact should be resolved against summary disposition. Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473 (1962); Pilgrim, CLI-10-11, 71 NRC at 297-98; Advanced Med. Sys., CLI 22, 38 NRC at 102; Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2), LBP-10-20, 72 NRC 571, 579 (2010).

RULES OF PRACTICE: MOTIONS FOR

SUMMARY

DISPOSITION (RESPONSES)

In response to a motion for summary disposition, an opposing party may not rest upon . . . mere allegations or denials, but must set forth specific facts showing that there is a genuine issue of fact for hearing. 10 C.F.R. § 2.710(b).

ENERGY REORGANIZATION ACT: EMPLOYEE PROTECTION Energy Reorganization Act section 211 states that [n]o employer may dis-charge . . . or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because of the employees participation in protected activity. Energy Reorganization Act

§ 211(a)(1), 42 U.S.C. § 5851(a)(1). Section 50.7(a) of 10 C.F.R. states that

[d]iscrimination includes discharge and other actions that relate to compen-sation, terms, conditions, or privileges of employment. 10 C.F.R. § 50.7(a).

Therefore, ERA section 211 and 10 C.F.R. § 50.7 prohibit only retaliation that takes the form of an adverse change in the terms and conditions of employment, and not every type of retaliation that might be possible.

ENERGY REORGANIZATION ACT: EMPLOYEE PROTECTION Courts have consistently ruled that a violation of ERA section 211 must in-volve a personnel action that has a tangible impact, such as termination of em-ployment, failure to hire, demotion, or an unwanted transfer. See, e.g., English 62

v. Gen. Elec. Co., 496 U.S. 72 (1990) (involving termination of employment);

Tamosaitis v. URS Inc., 781 F.3d 468 (9th Cir. 2015) (involving involuntary transfer with lost compensation); Hasan v. U.S. Dept of Labor, 400 F.3d 1001 (7th Cir. 2005) (involving failure to hire); Hasan v. U.S. Dept of Labor, 298 F.3d 914 (10th Cir. 2002) (involving failure to hire); Doyle v. U.S. Secy of Labor, 285 F.3d 243 (3d Cir. 2002) (involving failure to hire); Am. Nuclear Res., Inc. v. U.S. Dept of Labor, 134 F.3d 1292, 1294 (6th Cir. 1998) (in-volving termination of employment); DeFord v. Secy of Labor, 700 F.2d 281 (6th Cir. 1983) (involving a transfer deemed a demotion); Consol. Edison Co.

of N.Y., Inc. v. Donovan, 673 F.2d 61 (2d Cir. 1982) (involving termination of employment).

ENERGY REORGANIZATION ACT: EMPLOYEE PROTECTION As the United States Court of Appeals for the Third Circuit recently ob-served, when applying the substantive antidiscrimination provision of Title VII (the provision that is essentially identical to ERA section 211), other courts of appeals have unanimously concluded that placing an employee on paid admin-istrative leave where there is no presumption of termination is not an adverse employment action. Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir.

2015) (quoting Jones v. Se. Pa. Transp. Auth., No. 12-CV-6582-WY, 2014 WL 3887747, at *4 (E.D. Pa. Aug. 7, 2014)).

ENERGY REORGANIZATION ACT: EMPLOYEE PROTECTION Courts of appeals in at least five circuits have affirmed summary judgment on the ground that placing an employee on leave, with full pay and benefits, is not an adverse employment action. See, e.g., Michael v. Caterpillar Fin. Servs.

Corp., 496 F.3d 584, 594 (6th Cir. 2007); Dendinger v. Ohio, 207 F. Appx 521, 527 (6th Cir. 2006); Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006);

Singletary v. Mo. Dept of Corr., 423 F.3d 886, 891-92 (8th Cir. 2005); Peltier

v. United States, 388 F.3d 984, 988 (6th Cir. 2004); Von Gunten v. Md., 243 F.3d 858, 869 (4th Cir. 2001); Bowman v. Shawnee State Univ., 220 F.3d 456, 461-62 (6th Cir. 2000).

MEMORANDUM AND ORDER (Granting Summary Disposition of Violations 1, 2, and 3 and of Violation 4 in Part)

Before the Board, in this enforcement proceeding, are motions by the Ten-nessee Valley Authority (TVA) for: (1) summary disposition of Violations 1, 63

2, and 3; and (2) summary disposition of Violation 4.1 The NRC Staff opposes the motions.2 We grant TVAs motion to summarily dispose of Violations 1, 2, and 3 for failure to assert an adverse action as a matter of law. For the same reason, we grant TVAs motion for summary disposition of Violation 4 in part, insofar as Violation 4 is based on TVAs decision to place Beth Wetzel on paid admin-istrative leave. We deny the motion insofar as Violation 4 is based on TVAs decision to terminate Ms. Wetzels employment, because material facts are in dispute.

I. BACKGROUND A. Factual Background The facts concerning the NRC Staffs enforcement action against TVA have been previously described in orders of this Board,3 of another licensing board,4 and of the Commission.5 Although the parties disagree about motivation and intent, important facts are not otherwise disputed.

On March 9, 2018, Erin Henderson (then TVAs Director of Corporate Nu-clear Licensing) submitted a written complaint to her supervisor, Joseph Shea (then TVAs Vice President of Regulatory Affairs and Support Services), and to TVAs Corporate Director of Nuclear Human Resources, Amanda Poland.6 Ms.

Henderson alleged that individuals in the organization she directly supervised (including Beth Wetzel) and one individual in the onsite licensing organization at the Sequoyah Nuclear Power Plant (Michael McBrearty) had exhibited inap-propriate and unprofessional workplace behavior toward her.

Specifically, Ms. Henderson asserted that these individuals have either di-rectly or indirectly acted in [an] attempt to intimidate and undermine me in 1 Tennessee Valley Authoritys Motion for Summary Disposition of Violations 1, 2, and 3 (Lack of Adverse Employment Action) (Aug. 16, 2021) [hereinafter TVA Motion Violations 1, 2, and 3];

Tennessee Valley Authoritys Motion for Summary Disposition of Violation 4 (Lack of Nuclear Safety-Related Protected Activity) (Aug. 16, 2021) [hereinafter TVA Motion Violation 4].

2 NRC Staffs Consolidated Response in Opposition to TVAs Motions for Summary Disposition (Sept. 15, 2021) [hereinafter NRC Staff Response].

3 See LBP-21-3, 93 NRC 153, 155-58 (2021).

4 See Joseph Shea (Order Prohibiting Involvement in NRC-Licensed Activities Immediately Ef-fective), LBP-20-11, 92 NRC 409, 411-14 (2020).

5 See Joseph Shea (Order Prohibiting Involvement in NRC-Licensed Activities Immediately Ef-fective), CLI-21-3, 93 NRC 89, 91-94 (2021).

6 See TVA Motion Violations 1, 2, and 3, attach. 6, Formal Complaint of Erin Henderson (Mar. 9, 2018) [hereinafter Henderson Complaint].

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my role as a senior regulatory leader.7 Among other things, she expressed her belief that Mr. McBrearty, in particular, intentionally targeted her because she had previously initiated an investigation into whether Mr. McBreartys relation-ship with another TVA employee was inappropriately close.8 She claimed that the named employees were creating a hostile work environment such that her ability to fully perform the responsibilities outlined in [her] job description ha[d] been impacted.9

1. Mr. McBreartys Resignation TVA decided that its Office of General Counsel (TVA OGC) would conduct an investigation, which was assigned to and carried out by TVA OGC attor-ney John Slater. His initial report, dated May 25, 2018, concluded, as to Mr.

McBrearty, that Ms. Hendersons allegation of harassment and retaliation is substantiated, and Mr. McBreartys conduct and behavior violated two Federal statutes, a Federal regulation, and three TVA policies.10 After reviewing the initial report, TVA management placed Mr. McBrearty on paid administrative leave, pending further steps.

Mr. Slaters final investigative report was released on August 10, 2018.11 Before TVA could consider further steps, however, on August 16, 2018, Mr.

McBrearty resigned to take another position.12

2. Termination of Ms. Wetzels Employment Mr. Slaters May 25, 2018 report did not reach any conclusions concerning Ms. Wetzels actions. However, his final investigative report addressed actions that Ms. Wetzel took after Ms. Henderson submitted her March 9, 2018 com-plaint.

On May 7, 2018 approximately one week after Ms. Wetzel began an 7 Id.

at 1.

8 Id. at 4.

9 Id. at 1.

10 TVA Motion Violations 1, 2, and 3, attach. 7, Report of Investigation of Erin Hendersons Allegations of Harassment and Hostile Work Environment at 32 (May 25, 2018) [hereinafter Initial Slater Report].

11 See TVA Motion Violations 1, 2, and 3, attach. 8, Report of Investigation of Erin Hendersons Allegations of Harassment and Hostile Work Environment (Aug. 10, 2018) [hereinafter Final Slater Report].

12 TVA Motion Violations 1, 2, and 3, attach. 1, Statement of Undisputed Material Facts ¶ 5

[hereinafter TVA Violations 1, 2, and 3 Statement of Undisputed Material Facts]; TVA Motion Violations 1, 2, and 3, attach. 5, Resignation Letter of Michael McBrearty (Aug. 16, 2018).

65

18-month loanee assignment at the Nuclear Energy Institute in Washington, D.C. she emailed Mr. Shea concerning Ms. Henderson.13 According to Ms.

Wetzel, Ms. Henderson used HR to investigate people, reported people to [the Employee Concerns Program], threatened to have people for cause drug tested, pulled badging gate records and probably a lot more actions that Im not aware of.14 Ms. Wetzel claimed Ms. Henderson has demonstrated a longstanding pattern of using TVA processes as punitive and retaliatory tools.15 Ms. Wetzel made similarly critical comments about Ms. Henderson to Mr. Shea in an email dated June 9, 2018,16 and in text messages later that month and the next.17 In his August 10, 2018 investigative report, Mr. Slater addressed the criti-cisms of Ms. Henderson in Ms. Wetzels May 7, 2018 email.18 He found some criticisms to be unsubstantiated and others to be merely more of the same, with no details that did not warrant further investigation, and concluded that Ms.

Wetzel continues to make the same allegations regarding Ms. Henderson to Mr.

Shea to the point that it rises to the level of disrespectful conduct.19 On August 30, 2018, TVA OGC provided Mr. Shea with a memorandum that evaluated Ms. Wetzels conduct by TVA lawyers other than Mr. Slater and rec-ommended that Ms. Wetzels employment with TVA be terminated as a result of her involvement in a pattern of harassment and retaliation directed at Erin Henderson.20 Mr. Shea decided to separate Ms. Wetzel from her employment by TVA in accordance with TVA OGCs recommendations.

On September 19, 2018, Mr. Shea presented a proposed disciplinary action concerning Ms. Wetzel to a TVA Executive Review Board. The purpose of such reviewing boards is to ensure that a proposed personnel action is consistent with company practices and not taken in retaliation for protected activities.21 An Ex-ecutive Review Board consists of TVA employees who are independent of the proposed action; typically, it includes a Senior Vice President; representatives from Human Resources, TVA OGC, and the Employee Concerns Program; and 13 TVA Motion Violation 4, attach. 5, Email from Beth Wetzel to Joseph Shea at 2-3 (May 7, 2018).

14 Id. at 2.

15 Id.

16 See TVA Motion Violation 4, attach. 7, Email from Beth Wetzel to Joseph Shea (June 9, 2018).

17 See TVA Motion Violation 4, attach. 8, Text Messages from Beth Wetzel to Joseph Shea.

18 Final Slater Report at 19 n.69.

19 Id. at 20 n.69.

20 TVA Motion Violation 4, attach. 11, Investigation into Harassment and Hostile Work Environ-ment Allegations in Nuclear Licensing Organization - Involvement of Beth Wetzel at 1 (Aug. 30, 2018).

21 TVA Motion Violation 4, attach. 2, Wetzel Executive Review Board Package at 4 (Sept. 19, 2018) [hereinafter Wetzel ERB Package].

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the Chairperson of TVAs Nuclear Safety Culture Monitoring Panel.22 The pro-posal under consideration was first to provide Ms. Wetzel [a]n offer of a no fault separation agreement, but [i]f not accepted, termination will be imple-mented.23 The Executive Review Board expressly considered whether Ms. Wetzels involvement in a protected activity contributed in any way to the proposed action recommendation, and concluded that it did not.24 It further found that terminating Ms. Wetzels employment was based on legitimate, non-retaliatory reasons, and compliant with TVA policies, procedures and/or past practices.25 On October 15, 2018, TVA placed Ms. Wetzel on paid administrative leave and offered her a no-fault separation agreement.26 Ms. Wetzel signed such an agreement on December 5, 2018, but rescinded her signature on December 11, 2018.27 An Executive Review Board update took place in December 2018, which again did not raise any objection to the proposed personnel action.28 TVA ter-minated Ms. Wetzels employment on January 14, 2019.29 B. Procedural History The NRC Staff claims that TVAs actions were really a pretext to punish Mr. McBrearty and Ms. Wetzel for raising various safety concerns.30 After con-ducting its own investigation, the NRC Staff initiated three separate enforcement actions that resulted in enforcement orders or notices of violations.

First, based on his role in the termination of Ms. Wetzels employment, the NRC Staff issued an order, effective immediately, banning Mr. Shea from any involvement in NRC-licensed activities for five years.31 The NRC Staff justified making the Shea Enforcement Order immediately effective even before a licensing board could conduct a hearing to which Mr. Shea was entitled 22 Id.

at 10-12.

23 Id.

at 1.

24 Id. at 8.

25 Id. at 23.

26 TVA Motion Violation 4, attach. 1, Statement of Undisputed Material Facts ¶ 8 [hereinafter TVA Violation 4 Statement of Undisputed Material Facts].

27 Id. ¶ 9.

28 Id. ¶ 10; see TVA Motion Violation 4, attach. 12, Wetzel Executive Review Board Package Update (Dec. 18, 2018).

29 TVA Violation 4 Statement of Undisputed Material Facts ¶ 11.

30 TVA Order for Civil Penalty, Appendix at 2, 4 (Oct. 29, 2020) (ADAMS Accession No. ML20297A552) [hereinafter TVA Order Appendix].

31 Order Prohibiting Involvement in NRC-Licensed Activities Immediately Effective (Aug. 24, 2020) (ADAMS Accession No. ML20219A676) [hereinafter Shea Enforcement Order].

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because of the significance of the underlying issues, Mr. Joseph Sheas position within TVA that has a very broad sphere of influence, and the deliberate nature of the actions.32 The Shea Enforcement Order concluded that the NRC lacks the requisite reasonable assurance that licensed activities can be conducted in compliance with the Commissions requirements and that the health and safety of the public will be protected if Mr. Joseph Shea were permitted at this time to be involved in NRC-licensed activities.33 The Licensing Board assigned to Mr. Sheas request for a hearing on the Shea Enforcement Order disagreed.34 Ruling at the outset only on whether the NRC Staff had justified making the Shea Enforcement Order immediately effective, the Board majority concluded that the [NRC] Staff ha[d] not provided any evidence to support its inference that the [Executive Review Board] and [TVA]

OGC acted as cover to hide deliberate misconduct by Mr. Shea.35 Without such evidence, the Licensing Board ruled the conclusions of the Executive Re-view Board and TVA OGC support Mr. Sheas assertions that he believed he was taking the proper action.36 On review, the Commission affirmed unani-mously.37 Thereafter, rather than defend its Shea Enforcement Order in a hearing on the merits, the NRC Staff decided to abandon its case against Mr. Shea completely.

On January 22, 2021, the NRC Staff informed Mr. Shea that, [u]pon further review of the facts of your case and in light of the Commissions ruling [in CLI-21-3], we are hereby rescinding the August 24, 2020, Order in its entirety.38 Second, the NRC Staff issued a notice of violation to Ms. Henderson, charg-ing her with deliberate misconduct based on her role concerning Mr. McBrearty and Ms. Wetzel.39 The NRC Staff stated that it declined to issue an order pro-hibiting Ms. Henderson from involvement in NRC-licensed activities, however, because [she was] not the decisionmaker that placed the former employees on paid administrative leave or terminated the former corporate employee.40 Nonetheless, the notice publicly identified Ms. Henderson by name and warned 32 Id.

at 3.

33 Id. at 3-4.

34 See Shea, LBP-20-11, 92 NRC at 418-22.

35 Id. at 421-22.

36 Id. at 422.

37 See Shea, CLI-21-3, 93 NRC at 96-99.

38 Letter from George A. Wilson, NRC, to Joseph Shea at 1 (Jan. 22, 2021) (ADAMS Accession No. ML21021A351).

39 Cover Letter and Notice of Violation to Ms. Erin Henderson re: Notice of Violation, NRC Office of Investigations Report Nos. 2-2018-033 and 2-2019-015 (IA-20-009) (Aug. 24, 2020) (ADAMS Accession No. ML20218A584).

40 Id. at 2.

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that additional deliberate violations could result in more significant enforce-ment action or criminal penalties.41 After the Commissions ruling in Mr. Sheas case,42 the NRC Staff likewise decided to abandon its claims against Ms. Henderson. On January 22, 2021, the NRC Staff informed Ms. Henderson that, [u]pon further review of the facts of your case and in light of the January 15, 2021, Commission ruling in CLI-21-03, we are hereby rescinding the August 24, 2020, Notice of Violation.43 Third, on October 29, 2020, the NRC Staff issued an Order to TVA assessing a Civil Penalty of $606,942 (the Order) the matter that remains pending before this Board.44 As explained in the Appendix to the Order,45 the penalty imposed on TVA is based on four alleged violations of 10 C.F.R. § 50.7 and section 211 of the Energy Reorganization Act.46 Violation 1 charges that Ms. Hendersons March 9, 2018 complaint discrim-inated against Mr. McBrearty for engaging in protected activity. Violation 1 further charges that her complaint triggered an investigation by the TVA OGC based, at least in part, on Mr. McBreartys engaging in protected activity.47 Violation 2 charges that TVA discriminated against Mr. McBrearty when, on May 25, 2018, it placed him on paid administrative leave based, at least in part, on his engaging in protected activity.48 Violation 3 charges that Ms. Hendersons March 9, 2018 complaint discrim-inated against Ms. Wetzel for engaging in protected activity.49 It further charges that her complaint triggered an investigation by TVA OGC that resulted in Ms.

Wetzel being placed on paid administrative leave followed by termination of her employment based, at least in part, on her engaging in protected activity.50 (Insofar as Violation 3 addresses Ms. Wetzels administrative leave and termi-nation of her employment, it duplicates Violation 4.)

Violation 4 charges that TVA discriminated against Ms. Wetzel when it 41 Id.

42 See Shea, CLI-21-3, 93 NRC at 96-99.

43 Letter from George A. Wilson, NRC, to Erin Henderson at 1 (Jan. 22, 2021) (ADAMS Accession No. ML21021A368).

44 In the Matter of Tennessee Valley Authority, Chattanooga, TN, 85 Fed. Reg. 70,203 (Nov. 4, 2020); TVA Order for Civil Penalty (Oct. 29, 2020) (ADAMS Accession No. ML20297A544)

[hereinafter TVA Order].

45 See TVA Order Appendix at 1-6.

46 Energy Reorganization Act § 211, 42 U.S.C. § 5851.

47 TVA Order Appendix at 1-2.

48 Id. at 2-3.

49 Id. at 3-4.

50 Id.

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placed her on paid administrative leave and terminated her employment, based, at least in part, on her engaging in protected activity.51 Notwithstanding the NRC Staffs decision to abandon its claims of deliberate misconduct against Mr. Shea and Ms. Henderson individually, the NRC Staff acknowledges that it pursues civil monetary penalties against TVA on the same theory: that is, that the TVA OGC investigation and Executive Review Board process were merely cover for TVAs unlawful discrimination against Mr.

McBrearty and Ms. Wetzel for engaging in protected activity.52 TVAs internal investigations, the NRC Staff claims, were not objective, serious inquiries, but instead sought from the outset to validate pre-formed conclusions in order to substantiate Ms. Hendersons complaint.53 According to the NRC Staff, TVA intended to gather evidence in a biased and incomplete manner to use as reasons to terminate both Mr. McBreartys and Ms. Wetzels employment.54 TVA disputes the NRC Staffs claimed violations and has exercised its right to demand an evidentiary hearing.55 After the close of discovery, including sub-stantial document disclosures, interrogatories, and depositions of some nineteen individuals, TVA submitted its pending motions, which together seek summary disposition of all four asserted violations.56 The Board heard oral argument on October 14, 2021.57 II. LEGAL STANDARDS A. Summary Disposition In this Subpart G proceeding, the standards for summary disposition are set forth in 10 C.F.R. § 2.710 and are based upon those the federal courts ap-ply to motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.58 The Board may grant summary disposition if the relevant 51 Id.

at 4.

52 Tr. at 77 (Ms. Kirkwood).

53 NRC Staff Response at 3.

54 Id.

55 See Tennessee Valley Authoritys Answer and Request for Hearing (Nov. 30, 2020).

56 To permit consideration of TVAs summary disposition motions, the Board briefly paused the hearing schedule. See Licensing Board Order (Suspending Scheduling Order and Directing Re-sponses to Summary Disposition Motions) (Aug. 18, 2021) (unpublished).

57 Tr. at 142-212.

58 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 297 (2010); see Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98, 102-03 (1993).

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pleadings show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law.59 In response to a motion for summary disposition, an opposing party may not rest upon . . . mere allegations or denials, but must set forth specific facts showing that there is a genuine issue of fact for hearing.60 At the same time, however, all facts must be construed in the light most favorable to the nonmov-ing party, and any doubt as to the existence of a genuine issue of material fact should be resolved against summary disposition.61 As the Commission directs,

[c]aution should be exercised in granting summary disposition, which may be denied if there is reason to believe that the better course would be to proceed to a full [hearing].62 B. Retaliation for Protected Activity To understand the scope of the NRCs authority and responsibility, [w]e look first to the statute.63 Section 211 of the Energy Reorganization Act of 1974 (ERA) (42 U.S.C.

§ 5851) and the NRCs implementing regulation (10 C.F.R. § 50.7) are not as broad as the antiretaliation provisions in some other statutes. ERA section 211 states that [n]o employer may discharge . . . or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because of the employees participation in protected activity.64 Likewise, 10 C.F.R. § 50.7(a) states that [d]iscrimination includes discharge and other actions that relate to compensation, terms, conditions, or privileges of employment.65 Therefore, ERA § 211 and 10 C.F.R. § 50.7 prohibit only retaliation that takes the form of an adverse change in the terms and conditions of employment, and not every type of retaliation that might be possible.

Other statutes that are not at issue make additional kinds of retaliatory conduct unlawful. For example, the antiretaliation provisions of the False Claims Act 59 10 C.F.R. § 2.710(d)(2).

60 Id. § 2.710(b).

61 Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473 (1962); Pilgrim, CLI-10-11, 71 NRC at 297-98; Advanced Med. Sys., CLI-93-22, 38 NRC at 102; Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2), LBP-10-20, 72 NRC 571, 579 (2010).

62 Pilgrim, CLI-10-11, 71 NRC at 298 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)).

63 U.S. Department of Energy (High-Level Waste Repository), LBP-10-11, 71 NRC 609, 618 (2010).

64 Energy Reorganization Act § 211(a)(1), 42 U.S.C. § 5851(a)(1).

65 10 C.F.R. § 50.7(a).

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expressly protect an employee who is suspended, threatened [or] harassed.66 On their face, ERA section 211 and 10 C.F.R. § 50.7 do not address such con-duct. Likewise, the provisions of Title VII of the Civil Rights Act of 1964 provide broader protection for victims of retaliation than for those who are vic-tims of discrimination itself.67 Yet it is the latter provision in Title VII the narrower prohibition against employment discrimination itself that is virtually identical to the language of ERA section 211 and 10 C.F.R. § 50.7.68 A non-exhaustive list of protected activity is set forth in 10 C.F.R. § 50.7(a)(1) that includes such actions as providing information about alleged violations to the Commission or to an NRC licensee, testifying in Commission and other proceedings, and refusing to engage in an unlawful practice.69 The touchstone for protected activity is that it must implicate safety definitively and specifically.70 III. DISCUSSION A. Violation 1 Violation 1 is based on two separate but related actions: (1) Ms. Hendersons March 9, 2018 complaint (insofar as it addressed Mr. McBreartys conduct);

and (2) TVAs investigation of Mr. McBreartys conduct in response to Ms.

Hendersons complaint. It therefore raises two issues.

First, did Ms. Hendersons act of complaining about Mr. McBreartys con-duct, in itself, change his compensation, terms, conditions, or privileges of employment, as required to violate ERA section 211 and 10 C.F.R. § 50.7?

We conclude that it did not.

When Ms. Henderson submitted her complaint on March 9, 2018, although it led to a subsequent investigation, it did not at that moment affect the terms or conditions of Mr. McBreartys employment in any way. To our knowledge, no federal court or administrative tribunal has ever interpreted the act of an 66 31 U.S.C. § 3730(h)(1).

67 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).

68 Compare Civil Rights Act of 1964 § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1), with Energy Reor-ganization Act of 1974 § 211(a)(1), 42 U.S.C. § 5851(a)(1).

69 See 10 C.F.R. § 50.7(a)(1)(i)-(v).

70 Am. Nuclear Res., Inc. v. U.S. Dept of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998); see Hoffman

v. NextEra Energy, Inc., 2013 WL 6979709, ARB No.12-062, ALJ No. 2010-ERA-011, at *6 (ARB Dec. 17, 2013) (noting that courts have construed the ERAs catch-all provision as requiring, in light of the ERAs overarching purpose of protecting acts implicating nuclear safety, that an employees actions must implicate safety definitively and specifically to constitute whistleblower protected activity under [42 U.S.C. § 5851(a)(1)(F)]).

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employee complaining about another employee as impacting compensation, terms, conditions, or privileges of employment, and the NRC Staff cites none.

The NRC Staffs theory that an employees complaint might constitute a violation of ERA section 211 and 10 C.F.R. § 50.7 is novel and unprecedented, and it has no support in the language of those provisions. In contrast, courts have consistently ruled that a violation of ERA section 211 must involve a personnel action that has a tangible impact, such as termination of employment, failure to hire, demotion, or an unwanted transfer.71 Second, did TVAs investigation of Ms. Hendersons complaint about Mr.

McBreartys conduct change his compensation, terms, conditions, or privileges of employment? Again, we conclude that it did not.

TVA policy requires employees to cooperate with such investigations.72 As the United States Court of Appeals for the Sixth Circuit (which includes Ten-nessee, where the alleged retaliation in this case occurred) ruled in Kuhn v.

Washtenaw County, an investigation cannot be a violation when its subject suf-fered no disciplinary action, demotion, or change in job responsibilities during the course of the investigation.73 Apart from TVAs decision to place Mr. McBrearty on paid administrative leave after the investigations preliminary findings (which we address below),

the NRC Staff does not explain how TVAs investigation of Mr. McBrearty impacted his employment in the tangible way necessary to violate ERA section 211 and 10 C.F.R. § 50.7. Mr. McBrearty voluntarily resigned from TVA, to accept another position, before the investigation was concluded.

Moreover, as a practical matter, how would an employer know whether pro-tected activity is the basis for a complaint before investigating it? On their face, a small number of Ms. Hendersons allegations suggest that she was un-happy with Mr. McBreartys possible role in prompting an NRC safety in-spection.74 But, more broadly, Ms. Henderson claimed that various individuals were creating a hostile work environment that was adversely affecting her job 71 See, e.g., English v. Gen. Elec. Co., 496 U.S. 72 (1990) (involving termination of employment);

Tamosaitis v. URS Inc., 781 F.3d 468 (9th Cir. 2015) (involving involuntary transfer with lost compensation); Hasan v. U.S. Dept of Labor, 400 F.3d 1001 (7th Cir. 2005) (involving failure to hire); Hasan v. U.S. Dept of Labor, 298 F.3d 914 (10th Cir. 2002) (involving failure to hire);

Doyle v. U.S. Secy of Labor, 285 F.3d 243 (3d Cir. 2002) (involving failure to hire); Am. Nuclear Res., 134 F.3d at 1294 (involving termination of employment); DeFord v. Secy of Labor, 700 F.2d 281 (6th Cir. 1983) (involving a transfer deemed a demotion); Consol. Edison Co. of N.Y., Inc. v.

Donovan, 673 F.2d 61 (2d Cir. 1982) (involving termination of employment).

72 TVA Motion Violations 1, 2, and 3, attach. 14, Employee Discipline Policy, TVA-SPP-11.316, Rev. 0005 appx B at 3 (Effective Date July 2, 2017).

73 709 F.3d 612, 626 (6th Cir. 2013).

74 NRC Staff Response at 11.

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performance.75 She expressed her belief that Mr. McBrearty, in particular, in-tentionally targeted her because she had previously initiated an investigation into whether Mr. McBreartys relationship with another TVA employee was inappropriately close.76 Thus, Ms. Henderson herself alleged retaliatory conduct that it was incumbent on TVA to investigate.

The NRC Staffs arguments that Ms. Hendersons complaint and TVAs in-vestigation nonetheless violate ERA section 211 and 10 C.F.R. § 50.7 are not per-suasive. According to the NRC Staff, the relevant legal inquiry is not whether an employee was ultimately discharged or demoted, but instead, whether the challenged action would deter a reasonable worker from engaging in protected activity.77 That may be the relevant legal inquiry under other statutes, but not under the statute with which the NRC Staff has charged TVA. In asserting that the impact on other employees is the only relevant inquiry under ERA section 211 and 10 C.F.R. § 50.7, the NRC Staff ignores the language of these provisions and misreads relevant caselaw.

For example, the NRC Staff purports to rely on the Supreme Courts decision in Burlington Northern & Santa Fe Railroad Co. v. White, which interpreted the antiretaliation provision of Title VII of the Civil Rights Act of 1964, for the proposition that a prohibition limited to employment-related actions would not deter many other forms of retaliation.78 But the Supreme Court did not say that this Board should rewrite ERA section 211 to cover additional forms of retaliation. The Supreme Court said just the opposite: that normally we should presume that Congress intended its different words to make a legal difference.79 Precisely because [t]he language of the substantive [antidiscrimination] pro-vision differs from that of the antiretaliation provision in important ways,80 the Supreme Court ruled that the antiretaliation provision81 of Title VII reaches con-duct not covered by the substantive antidiscrimination provision. Specifically, the Supreme Court held that the substantive antidiscrimination provision of Title VII is limited in scope to actions that affect employment or alter the conditions 75 Henderson Complaint at 1.

76 Id. at 4.

77 NRC Staff Response at 17 (citing Vander Boegh v. EnergySolutions, Inc., 536 F. Appx 522, 529 (6th Cir. 2013)).

78 Id. at 16-17.

79 Burlington N., 548 U.S. at 62-63.

80 Id. at 61.

81 See Civil Rights Act of 1964 § 704(a), 42 U.S.C. § 2000e-3(a).

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of the workplace, while [n]o such limiting words appear in the antiretaliation provision.82 The language of ERA section 211 and 10 C.F.R. § 50.7 is virtually identical to the language of the substantive antidiscrimination provision of Title VII, not to the broader antiretaliation provision.83 Thus, when confronted with virtually the same language as in ERA section 211 and 10 C.F.R. § 50.7, the Supreme Court interpreted such language to reach only actions that affect employment or alter the conditions of the workplace.84 The NRC Staffs contention that the Board should disregard these limitations in the relevant statutory language is not at all supported by the Supreme Courts decision, which directs the opposite.

Similarly unsupported is the NRC Staffs claim that controlling caselaw in the United States Court of Appeals for the Sixth Circuit now applies the broader antiretaliation test of Title VII to determine whether an action is adverse under ERA section 211.85 Purportedly in support, the NRC Staff cites Vander Boegh

v. EnergySolutions, Inc.86 But Vander Boegh does not support the NRC Staffs claim for several reasons.

First, as an unpublished decision, Vander Boegh is not binding precedent under the Sixth Circuits rules.87 Regardless what the case says, it cannot accu-rately be described as the most recent caselaw in the Sixth Circuit that governs the interpretation of ERA section 211, as the NRC Staff claims.88 Second, Vander Boegh involved not only ERA claims, but also claims un-der the False Claims Act and various environmental statutes.89 As NRC Staff counsel conceded at oral argument,90 the courts unpublished decision does not distinguish among these differing causes of action when it speaks of an adverse employment action.

Yet, as explained above, other statutes address broader categories of retalia-82 Burlington N., 548 U.S. at 62.

83 Compare Civil Rights Act of 1964 § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1) (It shall be an unlaw-ful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, con-ditions, or privileges of employment, because of such individuals race, color, religion, sex, or national origin[.]), with Energy Reorganization Act of 1974 § 211(a)(1), 42 U.S.C. § 5851(a)(1)

(No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee

[engaged in protected activity.]).

84 Burlington N., 548 U.S. at 62.

85 NRC Staff Response at 16-18.

86 536 F. Appx at 529.

87 6 Cir. R. 32.1(b).

88 NRC Staff Response at 16.

89 Vander Boegh, 536 F. Appx at 527.

90 Tr. at 184 (Mr. Gillespie).

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tion than ERA section 211 does. Indeed, the provisions of the False Claims Act expressly protect an employee who is suspended, threatened [or] harassed,91 regardless whether retaliation takes the form of a concrete employment action.

So, because it lumped various causes of action together, one cannot tell how the Vander Boegh court would have interpreted ERA section 211 standing alone.

Third, whether Mr. Vander Boegh had suffered an adverse employment action was not even disputed.92 As the Sixth Circuit explained: Undisputedly, the decision not to hire Vander Boegh constitutes an adverse employment action.93 On its facts, Vander Boegh says nothing at all about whether an employees complaint or an employers investigation of that complaint can violate ERA section 211.

Likewise unsupported is the NRC Staffs claim that the Department of Labor Administrative Review Board holds that the sole test for a violation of ERA section 211 is whether an employers action could well have dissuaded a rea-sonable worker from engaging in protected activity.94 Purportedly in support, the NRC Staff cites Overall v. Tennessee Valley Authority.95 But that is not what Overall says. Rather, in applying ERA section 211 (and ruling in TVAs favor), the Overall Administrative Review Board said that the test for an adverse employment action is (1) whether the employer (TVA) took a tangible employment action that resulted in a significant change

[in Mr. Overalls] employment status;96 and (2) whether TVAs actions were harmful to the point that they could well have dissuaded a reasonable worker from engaging in protected activity.97 By focusing on the second part of the test and simply ignoring the first the NRC Staff misreads Overall and misapprehends what it stands for.

The NRC Staff cites several cases98 for the proposition that, in appropriate circumstances, a retaliatory investigation can be a violation of other statutes, such as the broader antiretaliation provision of Title VII, discussed above, or the even broader prohibitions of the Whistleblower Protection Act.99 But the NRC 91 31 U.S.C. § 3730(h)(1).

92 Vander Boegh, 536 F. Appx at 528.

93 Id. at 529.

94 NRC Staff Response at 18 (citing Overall v. Tenn. Valley Auth., ARB No.04-073, ALJ No.

1999-ERA-025, slip op. at 11 (ARB July 16, 2007)).

95 Overall, 1999-ERA-025, slip op. at 11.

96 Id.

97 Id.

98 See NRC Staff Response at 37-44.

99 Compare 5 U.S.C. § 2302(a)(2)(A)(i)-(xiii) (listing more than a dozen prohibited personnel actions), with Energy Reorganization Act of 1974 § 211(a)(1)(A)-(F), 42 U.S.C. § 5851(a)(1)(A)-

(F).

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Staff cites no case that interprets the language of ERA section 211 and 10 C.F.R.

§ 50.7 (or similar provisions in any other statute) to create a violation based on an employees complaint or an employers investigation of that complaint.

As a matter of law, we grant summary disposition of Violation 1 in favor of TVA.

B. Violation 2 Violation 2 is based on TVAs placing Mr. McBrearty on administrative leave, with full pay and benefits, for 83 days. It therefore raises this issue:

Did Mr. McBreartys administrative leave change his compensation, terms, conditions or privileges of employment, as required to violate ERA section 211 and 10 C.F.R. § 50.7?

Overwhelming caselaw most of it decided by federal courts of appeals affirming summary judgments in favor of employers directs that it did not. As the United States Court of Appeals for the Third Circuit recently observed, when applying the substantive antidiscrimination provision of Title VII (the provision that is essentially identical to ERA section 211), other courts of appeals have unanimously concluded that placing an employee on paid administrative leave where there is no presumption of termination is not an adverse employment action.100 As the Third Circuit explained, [a] paid suspension is neither a refusal to hire nor a termination, and by design it does not change compensation.101 Likewise, the Third Circuit ruled, it does not effect a serious and tangible alteration of the terms, conditions, or privileges of employment.102 As the court concluded:

We therefore agree with our sister courts that a suspension with pay, without more, is not an adverse employment action.103 For the same reasons, courts of appeals in at least four other circuits (in-cluding the Sixth Circuit, where the relevant events took place) have affirmed summary judgment on the ground that placing an employee on leave, with full pay and benefits, is not an adverse employment action.104 In the face of this 100 Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015) (quoting Jones v. Se. Pa.

Transp. Auth., No. 12-CV-6582-WY, 2014 WL 3887747, at *4 (E.D. Pa. Aug. 7, 2014)).

101 Id.

102 Id. (quoting Storey v. Burns Intl Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004)).

103 Id. (quoting Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006)).

104 See, e.g., Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 594 (6th Cir. 2007); Dendinger

v. Ohio, 207 F. Appx 521, 527 (6th Cir. 2006); Joseph, 465 F.3d at 91; Singletary v. Mo. Dept of Corr., 423 F.3d 886, 891-92 (8th Cir. 2005); Peltier v. United States, 388 F.3d 984, 988 (6th Cir.

2004); Von Gunten v. Md., 243 F.3d 858, 869 (4th Cir. 2001); Bowman v. Shawnee State Univ., 220 (Continued) 77

unanimous authority, the NRC Staff cites not a single appellate decision that interprets the language of ERA section 211 and 10 C.F.R. § 50.7 (or similar pro-visions of any other statute) to create a violation based on placing an employee on administrative leave with full pay and benefits.105 The only cited case that involved statutory language similar to ERA section 211, in which summary judgment was denied, is Richardson v. Petasis.106 In Richardson, the district court denied summary judgment based not solely on the imposition of administrative leave, but also its conditions.107 Specifically, the court determined that continued employment was explicitly conditioned upon [plaintiffs] completion of certain tasks, and uncontroverted evidence demonstrated that the employer had prevented the plaintiff from completing those necessary tasks.108 Richardson does not challenge the well-established rule that paid administrative leave, without more, is not a violation of the provisions of ERA section 211.

In the absence of supporting precedents, the NRC Staff nonetheless contends that determination of what constitutes an adverse action is dependent on the context.109 It is true that courts have implied that the imposition of adminis-trative leave must be reasonable,110 and have cautioned that an exceptionally dilatory investigation while an employee is on leave might give rise to a vio-lation.111 But no such facts were found to prevent summary judgment in other cases, and no such facts exist here. Indeed, almost half the administrative leave cases discussed in the NRC Staffs brief involved administrative leave that lasted as long as or longer than Mr. McBreartys 83 days.112 Like the many federal courts of appeals that have affirmed summary judgment on this issue, we do not conclude that the NRC Staff has raised a genuine dispute for hearing on Violation 2.

As a matter of law, we grant summary disposition of Violation 2 in favor of TVA.

F.3d 456, 461-62 (6th Cir. 2000). Although some of these decisions failed to anticipate the Supreme Courts ruling in Burlington Northern, 548 U.S. at 62, insofar as they address the language of the substantive antidiscrimination provision of Title VII (which is virtually identical to the language of ERA section 211), and not the broader language of Title VIIs antiretaliation provision, their reasoning remains sound.

105 See NRC Staff Response at 20-29.

106 160 F. Supp. 3d 88 (D.D.C. 2015).

107 Id. at 118.

108 Id.

109 NRC Staff Response at 22 (citing Burlington N., 548 U.S. at 69).

110 Joseph, 465 F.3d at 91-92.

111 Id. at 92.

112 See NRC Staff Response at 20-29; Tr. at 163-65 (Mr. Lepre).

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C. Violation 3 Much like Violation 1, Violation 3 is based on two separate but related actions: (1) Ms. Hendersons March 9, 2018 complaint (insofar as it addressed Ms. Wetzels conduct); and (2) TVAs investigation of Ms. Wetzels conduct.

For the same reasons we grant summary disposition of Violation 1, as explained above, we grant summary disposition of Violation 3 in favor of TVA as a matter of law.

Insofar as Violation 3 also addresses Ms. Wetzels administrative leave and termination of her employment, it duplicates Violation 4 and is dismissed for that reason.

D. Violation 4 Violation 4 charges that TVA discriminated against Ms. Wetzel when it placed her on administrative leave and terminated her employment, allegedly based, at least in part, on her engaging in protected activity. Insofar as Viola-tion 4 is based on placing Ms. Wetzel on paid administrative leave, we grant summary disposition in favor of TVA as a matter of law for the same reasons we grant summary disposition of Violation 2, as explained above.

We deny summary disposition of Violation 4 with respect to TVAs ter-mination of Ms. Wetzels employment. Although to date the NRC Staff has come forward with scant evidence of TVAs having terminated Ms. Wetzels employment for engaging in protected activity, we cannot say (construing the evidence in favor of the NRC Staff, as we must at this stage) that there can be no doubt as to the existence of genuine issues of material fact.

For example, Ms. Hendersons March 9, 2018 complaint to Mr. Shea con-tained at least one allegation that mentioned Ms. Wetzels protected activity:

that is, that Ms. Wetzel might have initiated an NRC inspection of her organiza-tion.113 Also undisputed is that Ms. Hendersons complaint was the reason that Mr. Shea asked TVA OGC to investigate. Mr. Shea denies that the allegations in Ms. Hendersons complaint ultimately were the grounds for terminating Ms.

Wetzels employment,114 but that necessarily raises issues of witness credibility and inferences to be drawn from the evidence.

Similar issues are raised as to whether Ms. Wetzels complaints about Ms.

Henderson after March 9, 2018 were related to safety. TVA contends that, 113 NRC Staff Response, attach. 1, Statement of Disputed Material Facts ¶ 14 [hereinafter NRC Staff Statement of Disputed Material Facts]; Henderson Complaint at 6-7.

114 See TVA Motion Violation 4 at 28 (citing TVA Motion Violation 4, attach. 15, Excerpts from Joseph Sheas Pre-Decisional Enforcement Conference Transcript at 144-46 (June 25, 2020)).

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on their face, they were not related to safety at all.115 Yet the NRC Staff re-sponds with the charge that TVA presents Ms. Wetzels protected activities as individually siloed occurrences.116 According to the NRC Staff, Ms. Wetzels protected activities were interrelated: They build on each other and should be considered in their proper context as a series of linked complaints addressing Ms. Wetzels persistent concerns about a chilled work environment at TVA.117 Whether this is so, the Board concludes, would best be decided on the facts developed at an evidentiary hearing.

Additional fact issues exist concerning Mr. Sheas role with the Executive Review Board. Mr. Sheas evaluation was presented to the Executive Review Board as the basis for decision.118 Although TVA claims that the undisputed facts show that the [Executive Review Board] was unaware that Ms. Wetzel had allegedly contacted the NRC,119 in actuality the NRC Staff does dispute this conclusion, based on Mr. Sheas involvement in the process and his familiarity with the content of Ms. Hendersons March 9, 2018 complaint.120 Finally, we are not persuaded to dismiss Violation 4, at this time, based on the difference between Violation 4 as originally noticed and as later clarified or expanded in the TVA Order Appendix. Specifically, the TVA Order Appendix alleges protected activity by Ms. Wetzel alleged contact with the NRC121 that is not explicitly mentioned in either TVAs notice of violation or in the restatement of Violation 4 set forth in the TVA Order Appendix itself.

TVA contended at oral argument that the difference deprived TVA of its full right to present its case to the NRC enforcement staff prior to a formal hearing, as guaranteed by section 234(b) of the Atomic Energy Act of 1954, 42 U.S.C.

§ 2282(b).122 Likewise, TVA claimed its notice of violation failed to include all information required by 10 C.F.R. § 2.205.123 As TVA counsel acknowledged, it advanced these arguments for the first time at oral argument.124 Yet TVA was previously aware of the basis for them.125 Because TVA failed to make these arguments in its summary disposition motion or to seek permission to make them in a reply brief and because 115 See id. at 14-23.

116 NRC Staff Response at 54.

117 Id.

118 TVA Motion Violation 4 at 7; NRC Staff Statement of Disputed Material Facts ¶ 60.

119 TVA Motion Violation 4 at 29; Wetzel ERB Package at 5.

120 NRC Staff Response at 56.

121 TVA Order Appendix at 4.

122 Tr. at 156 (Ms. Leidich).

123 Tr. at 206-07 (Ms. Leidich).

124 Tr. at 157 (Ms. Leidich).

125 TVA Motion Violation 4 at 15 n.70, 26-29.

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these issues also might be better decided on the facts developed at an evidentiary hearing we do not decide them now. If it chooses, TVA may raise these arguments again in its hearing briefs or in motions to exclude evidence.

Otherwise, the evidentiary hearing on Violation 4 shall address two issues:

(1) whether the NRC Staff can demonstrate by a preponderance of the evidence that TVA terminated Ms. Wetzels employment based, at least in part, on her engaging in protected activity; and (2) if so, whether TVA can demonstrate by clear and convincing evidence that it would have terminated her employment regardless of the protected activity.126 IV. ORDER For the foregoing reasons:

TVAs motion for summary disposition of Violation 1 is granted.

TVAs motion for summary disposition of Violation 2 is granted.

TVAs motion for summary disposition of Violation 3 is granted.

TVAs motion for summary disposition of Violation 4 is granted in part, insofar as Violation 4 is based on TVAs decision to place Ms. Wetzel on paid administrative leave.

TVAs motion for summary disposition of Violation 4 is denied insofar as Violation 4 is based on TVAs decision to terminate Ms. Wetzels employment.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD Paul S. Ryerson, Chairman ADMINISTRATIVE JUDGE E. Roy Hawkens ADMINISTRATIVE JUDGE Dr. Sue H. Abreu ADMINISTRATIVE JUDGE Rockville, Maryland November 3, 2021 126 See Shea, CLI-21-3, 93 NRC at 93 n.18.

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Cite as 94 NRC 82 (2021) LBP-21-7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Paul S. Ryerson, Chairman E. Roy Hawkens Dr. Sue H. Abreu In the Matter of Docket Nos. EA-20-006 EA-20-007 (ASLBP No. 21-969-01-EA-BD01)

TENNESSEE VALLEY AUTHORITY (Enforcement Action) November 10, 2021 In this proceeding concerning an enforcement action against the Tennessee Valley Authority the Board grants the parties joint motion for termination.

ORDER (Granting Joint Motion for Termination)

Before the Board is the parties joint motion to terminate this enforcement proceeding.1 On November 8, 2021, after the Boards Memorandum and Order of Novem-ber 3, 2021 granting summary disposition in part,2 the NRC Staff rescinded 1 Joint Motion for Termination of Enforcement Proceeding (Nov. 8, 2021).

2 LBP-21-6, 94 NRC 61, 64 (2021).

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entirely the Notice of Violation3 and civil monetary penalty Order4 that it had issued to the Tennessee Valley Authority.5 Because there is no longer a live controversy, the parties joint motion is granted, and this proceeding is terminated.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD Paul S. Ryerson, Chairman ADMINISTRATIVE JUDGE E. Roy Hawkens ADMINISTRATIVE JUDGE Dr. Sue H. Abreu ADMINISTRATIVE JUDGE Rockville, Maryland November 10, 2021 3 Notice of Violation and Proposed Imposition of Civil Penalty to TVA, NRC Office of Investi-gations (EA-20-006 & EA-20-007) (Aug. 24, 2020) (ADAMS Accession No. ML20232B803).

4 In the Matter of Tennessee Valley Authority, Chattanooga, TN, 85 Fed. Reg. 70,203 (Nov. 4, 2020); TVA Order Imposing Civil Monetary Penalty (Oct. 29, 2020) (ADAMS Accession No. ML20297A544).

5 Letter from Mark Lombard, NRC, to Jim Barstow, TVA (Nov. 8, 2021) (ADAMS Accession No. ML21312A380).

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CASE NAME INDEX FIRSTENERGY COMPANIES LICENSE TRANSFER; MEMORANDUM AND ORDER; Docket No. 50-320-LT; CLI-21-10, 94 NRC 57 (2021)

NEXTERA ENERGY POINT BEACH, LLC SUBSEQUENT OPERATING LICENSE RENEWAL; July 26, 2021; MEMORANDUM AND ORDER (Denying Physicians for Social Responsibility Wisconsins Request for Hearing); LBP-21-5, 94 NRC 1 (2021)

TENNESSEE VALLEY AUTHORITY ENFORCEMENT; MEMORANDUM AND ORDER (Granting Summary Disposition of Violations 1, 2, and 3 and of Violation 4 in Part); Docket Nos. EA-20-006, EA-20-007 (ASLBP No.

21-969-01-EA-BD01); LBP-21-6, 94 NRC 61 (2021)

ENFORCEMENT; ORDER (Granting Joint Motion for Termination); Docket Nos. EA-20-006, EA-20-007 (ASLBP No. 21-969-01-EA-BD01); LBP-21-7, 94 NRC 82 (2021)

TMI-2 SOLUTIONS, LLC LICENSE TRANSFER; MEMORANDUM AND ORDER; Docket No. 50-320-LT; CLI-21-10, 94 NRC 57 (2021)

I-1

LEGAL CITATIONS INDEX CASES Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98, 102 (1993) all facts must be construed in the light most favorable to the nonmoving party, and any doubt as to the existence of a genuine issue of material fact should be resolved against summary disposition; LBP-21-6, 94 NRC 61, 71 (2021)

Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98, 102-03 (1993) summary disposition standards in Subpart G proceeding are based on those applied by federal courts to motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure; LBP-21-6, 94 NRC 61, 70 (2021)

Am. Nuclear Res., Inc. v. U.S. Dept of Labor, 134 F.3d 1292, 1294 (6th Cir. 1998) violation of ERA section 211 must involve a personnel action that has a tangible impact, such as termination of employment, failure to hire, demotion, or an unwanted transfer; LBP-21-6, 94 NRC 61, 73 n.71 (2021)

Am. Nuclear Res., Inc. v. U.S. Dept of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998) touchstone for protected activity is that it must implicate safety definitively and specifically; LBP-21-6, 94 NRC 61, 72 (2021)

AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 117-18 (2006) issues that are addressed on an ongoing basis need not be addressed during license renewal; LBP-21-5, 94 NRC 1, 24 (2021)

AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006) contention admissibility rules require a clear statement of the basis for the contentions and submission of supporting information and references to specific documents and sources that establish validity of the contention; LBP-21-5, 94 NRC 1, 21 (2021)

AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 133 (2007) petitioner must seek a waiver to challenge an NRC rule; LBP-21-5, 94 NRC 1, 31 n.111 (2021)

AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 674 (2008) bare assertions and speculation do not support an admissible contention, even if supported by an expert; LBP-21-5, 94 NRC 1, 44 (2021) bare assertions and speculation, even by an expert, are insufficient to trigger a full adjudicatory proceeding; LBP-21-5, 94 NRC 1, 22 (2021)

American Nuclear Corp. (Revision of Orders to Modify Source Materials Licenses), CLI-86-23, 24 NRC 704, 707 (1986)

NRC adheres to the fundamental principle of administrative law that its rules are not subject to collateral attack in adjudicatory proceedings; LBP-21-5, 94 NRC 1, 22 n.42 (2021)

American Nuclear Corp. (Revision of Orders to Modify Source Materials Licenses), CLI-86-23, 24 NRC 704, 709-10 (1986) challenges to generic decisions made by NRC in rulemakings constitute an improper collateral attack upon its regulations; LBP-21-5, 94 NRC 1, 22 n.42 (2021)

Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986) caution should be exercised in granting summary disposition, which may be denied if there is reason to believe that the better course would be to proceed to a full hearing; LBP-21-6, 94 NRC 61, 71 (2021)

I-3

LEGAL CITATIONS INDEX CASES Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991) if any of the six requirements of 10 C.F.R. 2.309(f)(1) are not met, a contention must be rejected; LBP-21-5, 94 NRC 1, 20 (2021)

Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155-56 (1991) contention admissibility rules require a clear statement of the basis for the contentions and submission of supporting information and references to specific documents and sources that establish validity of the contention; LBP-21-5, 94 NRC 1, 21 (2021)

Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 350 (1998), affd sub nom., Natl Whistleblower Ctr. v. NRC, 208 F.3d 256 (D.C. Cir. 2000), cert.

denied, 531 U.S. 1070 (2001) it is the license application, not the NRC Staff review, that is at issue in NRC adjudications; LBP-21-5, 94 NRC 1, 22 n.39 (2021)

Bowman v. Shawnee State Univ., 220 F.3d 456, 461-62 (6th Cir. 2000) placing an employee on leave, with full pay and benefits, is not an adverse employment action; LBP-21-6, 94 NRC 61, 77-78 (2021)

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61 (2006) because language of substantive antidiscrimination provision differs from that of the antiretaliation provision in important ways, antiretaliation provision of Title VII of the Civil Rights Act reaches conduct not covered by the substantive antidiscrimination provision; LBP-21-6, 94 NRC 61, 74 (2021)

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006) substantive antidiscrimination provision of Title VII of the Civil Rights Act is limited in scope to actions that affect employment or alter the conditions of the workplace, while no such limiting words appear in the antiretaliation provision; LBP-21-6, 94 NRC 61, 74-75 (2021)

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62-63 (2006) board should presume that Congress intended its different words to make a legal difference; LBP-21-6, 94 NRC 61, 74 (2021)

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)

Title VII of the Civil Rights Act provides broader protection for victims of retaliation than for those who are victims of discrimination itself; LBP-21-6, 94 NRC 61, 72 (2021)

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006) determination of what constitutes an adverse action is dependent on the context; LBP-21-6, 94 NRC 61, 78 (2021)

Cal. v. Block, 690 F.2d 753, 761 (9th Cir. 1982) there must be an examination of every alternative within the nature and scope of the proposed action sufficient to permit a reasoned choice; LBP-21-5, 94 NRC 1, 52 (2021)

Calvert Cliffs 3 Nuclear Project, LLC, and UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 n.15, 917 (2009) no conflict exists between the basic requirements for standing, as applied in federal courts, and NRCs proximity presumption; LBP-21-5, 94 NRC 1, 19 (2021)

Calvert Cliffs 3 Nuclear Project, LLC, and UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915-17 (2009)

NRC has authorized use of a proximity presumption, which presumes that petitioner who resides, or otherwise has frequent contacts, within approximately 50 miles of the facility has standing; LBP-21-5, 94 NRC 1, 19 (2021)

Calvert Cliffs 3 Nuclear Project, LLC, and UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 917 (2009) proximity presumption rests on the finding that persons living within the roughly 50-mile radius of a facility face a realistic threat of harm if a release from the facility of radioactive material were to occur; LBP-21-5, 94 NRC 1, 19 (2021)

Calvert Cliffs 3 Nuclear Project, LLC, and UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 918 (2009) licensing board correctly applied the proximity presumption; LBP-21-5, 94 NRC 1, 19 (2021)

I-4

LEGAL CITATIONS INDEX CASES Calvert Cliffs 3 Nuclear Project, LLC, and UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-8, 80 NRC 71, 79 n.27 (2014) contentions that are the subject of general rulemaking by the Commission may not be litigated in individual licensing proceedings; LBP-21-5, 94 NRC 1, 21 n.38 (2021) contentions that challenge NRC regulations seeking to impose requirements stricter than those imposed by the agency are inadmissible; LBP-21-5, 94 NRC 1, 21 n.38 (2021)

Carolina Envtl. Study Group v. U.S., 510 F.2d 796, 800 (D.C. Cir. 1975) petitioner may proffer future-oriented testimony to demonstrate a genuine dispute about commercially available technology, but it must show that the technology is under development for large-scale use; LBP-21-5, 94 NRC 1, 51 (2021)

Carolina Power and Light Co. (H.B. Robinson, Unit 2), ALAB-569, 10 NRC 557, 558 (1979)

NRC is required by law to consider the permitting agencys decision on thermal impacts as binding; LBP-21-5, 94 NRC 1, 33 (2021)

Carolina Power and Light Co. (H.B. Robinson, Unit 2), ALAB-569, 10 NRC 557, 561 (1979)

EPA or authorized state agency has sole responsibility for water quality standards; LBP-21-5, 94 NRC 1, 33 n.125 (2021)

Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-80-12, 11 NRC 514, 516 (1980) boards do not direct NRC Staff in performance of their administrative functions; LBP-21-5, 94 NRC 1, 22 n.39 (2021)

Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Station), LBP-80-14, 11 NRC 570, 574 (1980),

appeal dismissed, ALAB-595, 11 NRC 860 (1980) newly arising information has long been recognized as providing good cause for acceptance of a late contention; LBP-21-5, 94 NRC 1, 40 (2021)

Consol. Edison Co. of N.Y., Inc. v. Donovan, 673 F.2d 61 (2d Cir. 1982) violation of ERA section 211 must involve a personnel action that has a tangible impact, such as termination of employment, failure to hire, demotion, or an unwanted transfer; LBP-21-6, 94 NRC 61, 73 n.71 (2021)

Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-82-63, 16 NRC 571, 577 (1982) newly arising information has long been recognized as providing good cause for acceptance of a late contention; LBP-21-5, 94 NRC 1, 40 (2021)

Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, Nebraska), CLI-09-9, 69 NRC 331, 353-54 (2009) board may not assume what petitioner is referring to, absent the requisite specificity; LBP-21-5, 94 NRC 1, 44 n.210 (2021)

Crow Butte Resources, Inc. (Marsland Expansion Area), LBP-19-2, 89 NRC 18, 40 (2019)

NEPA affords agencies broad discretion to keep their inquiries within appropriate and manageable boundaries; LBP-21-5, 94 NRC 1, 25 (2021)

NRC is required to take a hard look at environmental impacts of a proposed major federal action that could significantly affect the environment; LBP-21-5, 94 NRC 1, 25 (2021)

NRCs environmental review is limited by a rule of reason in that consideration of environmental impacts need not address all theoretical possibilities, but rather only those that have some reasonable possibility of occurring; LBP-21-5, 94 NRC 1, 25 (2021)

Crow Butte Resources, Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 565-71 (2009) board may not assume what petitioner is referring to, absent the requisite specificity; LBP-21-5, 94 NRC 1, 44 n.210 (2021)

Curators of the University of Missouri, CLI-95-1, 41 NRC 71, 170 (1995) challenges to generic decisions made by NRC in rulemakings are, in essence, contending that those provisions are insufficient to protect the public health and safety; LBP-21-5, 94 NRC 1, 22 n.42 (2021)

DeFord v. Secy of Labor, 700 F.2d 281 (6th Cir. 1983) violation of ERA section 211 must involve a personnel action that has a tangible impact, such as termination of employment, failure to hire, demotion, or an unwanted transfer; LBP-21-6, 94 NRC 61, 73 n.71 (2021)

I-5

LEGAL CITATIONS INDEX CASES Dendinger v. Ohio, 207 F. Appx 521, 527 (6th Cir. 2006) placing an employee on leave, with full pay and benefits, is not an adverse employment action; LBP-21-6, 94 NRC 61, 77 (2021)

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 213 (2003) petitioner must propose contentions that contain some reasonably specific factual or legal basis; LBP-21-5, 94 NRC 1, 21 (2021)

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-18, 58 NRC 433, 434 (2003) petition for reconsideration should not simply reargue matters already considered but rejected; CLI-21-10, 94 NRC 57, 58 (2021)

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001) contention admissibility requirements are strict by design; LBP-21-5, 94 NRC 1, 20 (2021)

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 359-60 (2001) admissible contention must explain, with specificity, particular safety or legal reasons requiring rejection of the contested application; LBP-21-5, 94 NRC 1, 21 (2021)

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 559-60 (2005) contention that challenges a statutory requirement or NRCs regulatory process without a waiver must be rejected; LBP-21-5, 94 NRC 1, 21 n.37 (2021) to challenge need for power, petitioner would first have to request a waiver of 10 C.F.R. 51.53(c)(2) and demonstrate special circumstances unique to the facility; LBP-21-5, 94 NRC 1, 47 (2021)

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 570 (2005) licensing boards lack authority to supervise NRC Staff in performance of its regulatory duties; LBP-21-5, 94 NRC 1, 22 n.39 (2021)

Doyle v. U.S. Secy of Labor, 285 F.3d 243 (3d Cir. 2002) violation of ERA section 211 must involve a personnel action that has a tangible impact, such as termination of employment, failure to hire, demotion, or an unwanted transfer; LBP-21-6, 94 NRC 61, 73 n.71 (2021)

DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 149 (2015) board may not substitute its own support for a contention or make arguments for the litigants that were never made by the litigants themselves; LBP-21-5, 94 NRC 1, 20-21 n.28 (2021)

DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 149 & n.74 (2015) board may not assume what petitioner is referring to, absent the requisite specificity; LBP-21-5, 94 NRC 1, 44 n.210 (2021)

Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2),

CLI-02-26, 56 NRC 358, 363 (2002) safety review of license renewal applications conducted by NRC is limited to matters described in 10 C.F.R. 54.29(a)(1)-(2); LBP-21-5, 94 NRC 1, 23 (2021)

Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334 (1999) contention admissibility standards require that petitioners proffer at least some minimal factual and legal foundation in support of their contentions; LBP-21-5, 94 NRC 1, 21 (2021)

English v. Gen. Elec. Co., 496 U.S. 72 (1990) violation of ERA section 211 must involve a personnel action that has a tangible impact, such as termination of employment, failure to hire, demotion, or an unwanted transfer; LBP-21-6, 94 NRC 61, 73 n.71 (2021)

Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),

CLI-10-11, 71 NRC 287, 297 (2010) summary disposition standards in Subpart G proceeding are based on those applied by federal courts to motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure; LBP-21-6, 94 NRC 61, 70 (2021)

I-6

LEGAL CITATIONS INDEX CASES Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),

CLI-10-11, 71 NRC 287, 297-98 (2010) all facts must be construed in the light most favorable to the nonmoving party, and any doubt as to the existence of a genuine issue of material fact should be resolved against summary disposition; LBP-21-6, 94 NRC 61, 71 (2021)

Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),

CLI-10-11, 71 NRC 287, 298 (2010) caution should be exercised in granting summary disposition, which may be denied if there is reason to believe that the better course would be to proceed to a full hearing; LBP-21-6, 94 NRC 61, 71 (2021)

Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),

CLI-10-14, 71 NRC 449, 456 (2010) license renewal applicant must demonstrate that effects of aging will be adequately managed so that the intended function(s) of structures, systems, or components requiring aging management review will be maintained consistent with the CLB for the period of extended operation; LBP-21-5, 94 NRC 1, 24 (2021)

Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),

CLI-12-15, 75 NRC 704, 714 (2012) bare assertions and speculation, even by an expert, are insufficient to trigger a full adjudicatory proceeding; LBP-21-5, 94 NRC 1, 22 (2021)

Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),

CLI-12-21, 76 NRC 491, 499 (2012) reasonable deadline for proposing new or amended contentions is typically considered to be 30 to 60 days from the initiating event; LBP-21-5, 94 NRC 1, 38 n.169 (2021)

Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-16-7, 83 NRC 293, 323 n.156 (2016) petitioner must provide a reference or source showing that the number of aquatic organisms entrained, impinged, or affected by thermal discharges represents a significant environmental impact such that the duty to analyze mitigation should be greater than small; LBP-21-5, 94 NRC 1, 30 (2021)

Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 329 (2015) petitioner alone bears the burden to satisfy each contention admissibility requirement; LBP-21-5, 94 NRC 1, 20 n.28 (2021)

Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 17-18, reconsideration denied, CLI-07-13, 65 NRC 211, 215 (2007)

Category 1 conclusions may not be challenged in litigation absent a waiver of the rule; LBP-21-5, 94 NRC 1, 27 (2021)

Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371, 375, 381 (2007) contention asserting that environmental report contained an insufficient analysis of the thermal impacts on an adjacent water body was inadmissible; LBP-21-5, 94 NRC 1, 32 (2021)

Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371, 377 (2007) duplication is to be avoided by leaving to EPA and the states the decision as to the water pollution control criteria to which a facilitys cooling system would be held; LBP-21-5, 94 NRC 1, 33 (2021)

NRC may not consider alternative cooling systems as that would improperly second-guess the cooling system approved by the permitting agency; LBP-21-5, 94 NRC 1, 31 (2021)

Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371, 377, 388 (2007)

NRC precedent indicates a state agencys decision on thermal impacts is binding and cannot be second-guessed by NRC; LBP-21-5, 94 NRC 1, 33-34 n.131 (2021)

Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371, 383 (2007) expiration of an NPDES permit before the end of the license renewal term does not affect compliance with 10 C.F.R. 51.53(c)(3)(ii)(B); LBP-21-5, 94 NRC 1, 32 n.121 (2021)

I-7

LEGAL CITATIONS INDEX CASES Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371, 387 n.77 (2007)

NRC cannot review and judge environmental permits issued under the Clean Water Act by the EPA or an authorized state agency; LBP-21-5, 94 NRC 1, 31, 33 (2021)

Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371, 388 (2007)

EPA or authorized state agency has sole responsibility for water quality standards; LBP-21-5, 94 NRC 1, 33 n.125 (2021) once applicant or licensee provides the information required by 10 C.F.R. 51.53(c)(3)(ii)(B), NRC is required by law to consider the permitting agencys decision on thermal impacts as binding; LBP-21-5, 94 NRC 1, 33 (2021)

Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371, 389 (2007)

NRC adjudicatory boards are expected to defer to the agency that issued the section 316(a) permit; LBP-21-5, 94 NRC 1, 33 (2021) permitting agency determines what cooling system a nuclear power facility may use and NRC factors impacts resulting from use of that system into the NEPA analysis; LBP-21-5, 94 NRC 1, 31 (2021)

Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-13-7, 78 NRC 199, 212-13 (2013) license renewal applicant or licensee must provide a plant-specific review of Category 2 issues in its environmental report and address any new and significant information that might render NRCs generic Category 1 determinations inapplicable; LBP-21-5, 94 NRC 1, 26-27 (2021)

Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), LBP-12-8, 75 NRC 539, 547, revd in part on other grounds, CLI-12-19, 76 NRC 377 (2012) license renewal allows operation of a reactor over an additional period of time during which the reactor could be subject to the same equipment failures and personnel errors as during operations over the original period of the license; LBP-21-5, 94 NRC 1, 19 (2021)

Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3), LBP-19-5, 89 NRC 483, 490-91 (2019), affd on other grounds, CLI-20-11, 92 NRC 335 (2020) license renewal allows operation of a reactor over an additional period of time during which the reactor could be subject to the same equipment failures and personnel errors as during operations over the original period of the license; LBP-21-5, 94 NRC 1, 19 (2021)

FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC 393, 402 (2012) mere potential for, or theoretical capacity of, an alternative is insufficient to show commercial viability as a source of baseload power in the region of interest by license expiration; LBP-21-5, 94 NRC 1, 47 (2021)

FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC 393, 405 (2012) petitioner failed to identify a solar plus storage combination that can practically produce baseload power either now, or in time to constitute a reasonable alternative to relicensing; LBP-21-5, 94 NRC 1, 51 (2021)

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 7-8 (2001) safety review of license renewal applications conducted by NRC is limited to matters described in 10 C.F.R. 54.29(a)(1)-(2); LBP-21-5, 94 NRC 1, 23 (2021)

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 8-10 (2001) issues that are addressed on an ongoing basis need not be addressed during license renewal; LBP-21-5, 94 NRC 1, 24 (2021)

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 9 (2001) current licensing basis includes all of the regulatory requirements found in Parts 2, 19, 20, 21, 30, 40, 50, 55, 72, 73, and 100 with which the particular applicant must comply; LBP-21-5, 94 NRC 1, 24 n.48 (2021)

I-8

LEGAL CITATIONS INDEX CASES license renewal does not address operational issues because these issues are effectively addressed and maintained by ongoing agency oversight, review, and enforcement; LBP-21-5, 94 NRC 1, 24 (2021)

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 10 (2001) adjudicatory hearings in individual license renewal proceedings will share the same scope of issues as NRC Staff review; LBP-21-5, 94 NRC 1, 24 (2021)

NRCs license renewal review focuses on those potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs; LBP-21-5, 94 NRC 1, 24 (2021)

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 23 (2001) adequacy of a plants current licensing basis is not addressed during the license renewal safety review; LBP-21-5, 94 NRC 1, 24, 41 (2021)

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-15-25, 82 NRC 389, 394 (2015) contemporaneous judicial concepts of standing require petitioner to allege an injury in fact that is fairly traceable to the challenged action and is likely to be redressed by a favorable decision; LBP-21-5, 94 NRC 1, 18 (2021)

NRC applies contemporaneous judicial concepts of standing; LBP-21-5, 94 NRC 1, 18 (2021)

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-20-3, 91 NRC 133, 141 (2020) section 51.53(c)(3) applies to applicants for subsequently renewed licenses; LBP-21-5, 94 NRC 1, 29 n.96 (2021)

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-6, 53 NRC 138, 150 (2001), affd on other grounds, CLI-01-17, 54 NRC 3 (2001) no conflict exists between the basic requirements for standing, as applied in federal courts, and NRCs proximity presumption applied in reactor operating license renewal proceeding; LBP-21-5, 94 NRC 1, 19 n.22 (2021)

Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-3, 89 NRC 245, 258-59 (2019), appeal dismissed and referred ruling affd, CLI-20-3, 91 NRC 133 (2020) license renewal allows operation of a reactor over an additional period of time during which the reactor could be subject to the same equipment failures and personnel errors as during operations over the original period of the license; LBP-21-5, 94 NRC 1, 19 (2021)

GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 206 (2000) attempt to impose a requirement more stringent than the one imposed by regulations will be rejected; LBP-21-5, 94 NRC 1, 22 n.38 (2021)

Hasan v. U.S. Dept of Labor, 298 F.3d 914 (10th Cir. 2002) violation of ERA section 211 must involve a personnel action that has a tangible impact, such as termination of employment, failure to hire, demotion, or an unwanted transfer; LBP-21-6, 94 NRC 61, 73 n.71 (2021)

Hasan v. U.S. Dept of Labor, 400 F.3d 1001 (7th Cir. 2005) violation of ERA section 211 must involve a personnel action that has a tangible impact, such as termination of employment, failure to hire, demotion, or an unwanted transfer; LBP-21-6, 94 NRC 61, 73 n.71 (2021)

Hoffman v. NextEra Energy, Inc., 2013 WL 6979709, ARB No.12-062, ALJ No. 2010-ERA-011, at *6 (ARB Dec. 17, 2013) courts have construed ERAs catch-all provision as requiring that employees actions must implicate safety definitively and specifically to constitute whistleblower protected activity; LBP-21-6, 94 NRC 61, 72 n.70 (2021)

Holtec International (HI-STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC 353, 375 (2019) in evaluating reasonable environmental impacts, NRC need not analyze worst-case scenarios or those considered remote and highly speculative; LBP-21-5, 94 NRC 1, 25 (2021)

Indiana & Michigan Electric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2), CLI-72-75, 5 AEC 13, 14 (1972) newly arising information has long been recognized as providing good cause for acceptance of a late contention; LBP-21-5, 94 NRC 1, 40 (2021)

I-9

LEGAL CITATIONS INDEX CASES Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015) paid suspension does not effect a serious and tangible alteration of the terms, conditions, or privileges of employment; LBP-21-6, 94 NRC 61, 77 (2021) paid suspension is neither a refusal to hire nor a termination, and by design it does not change compensation; LBP-21-6, 94 NRC 61, 77 (2021) placing an employee on paid administrative leave where there is no presumption of termination is not an adverse employment action; LBP-21-6, 94 NRC 61, 77 (2021) suspension with pay, without more, is not an adverse employment action; LBP-21-6, 94 NRC 61, 77 (2021)

Jones v. Se. Pa. Transp. Auth., No. 12-CV-6582-WY, 2014 WL 3887747, at *4 (E.D. Pa. Aug. 7, 2014) placing an employee on paid administrative leave where there is no presumption of termination is not an adverse employment action; LBP-21-6, 94 NRC 61, 77 (2021)

Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006) placing an employee on leave, with full pay and benefits, is not an adverse employment action; LBP-21-6, 94 NRC 61, 77 (2021) suspension with pay, without more, is not an adverse employment action; LBP-21-6, 94 NRC 61, 77 (2021)

Joseph v. Leavitt, 465 F.3d 87, 91-92 (2d Cir. 2006) imposition of administrative leave must be reasonable; LBP-21-6, 94 NRC 61, 78 (2021)

Joseph v. Leavitt, 465 F.3d 87, 93 n.18 (2d Cir. 2006) exceptionally dilatory investigation while an employee is on leave might give rise to a violation; LBP-21-6, 94 NRC 61, 81 (2021)

Joseph Shea (Order Prohibiting Involvement in NRC-Licensed Activities Immediately Effective), CLI-21-3, 93 NRC 89, 93 n.18 (2021) licensee must demonstrate by clear and convincing evidence that it would have terminated employment regardless of the protected activity; LBP-21-6, 94 NRC 61, 81 (2021)

NRC Staff must demonstrate by a preponderance of the evidence that licensee terminated employment based, at least in part, on employees engaging in protected activity; LBP-21-6, 94 NRC 61, 81 (2021)

Kuhn v. Washtenaw County, 709 F.3d 612, 626 (6th Cir. 2013) discrimination investigation cannot be a violation when its subject suffered no disciplinary action, demotion, or change in job responsibilities during the course of the investigation; LBP-21-6, 94 NRC 61, 73 (2021)

Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 754-55 (3d Cir. 1989) in evaluating reasonable environmental impacts, NRC need not analyze worst-case scenarios or those considered remote and highly speculative; LBP-21-5, 94 NRC 1, 25 (2021)

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

NRCs environmental review is limited by a rule of reason in that consideration of environmental impacts need not address all theoretical possibilities, but rather only those that have some reasonable possibility of occurring; LBP-21-5, 94 NRC 1, 25 (2021)

Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 87-88 (1998)

NRC is required to take a hard look at environmental impacts of a proposed major federal action that could significantly affect the environment; LBP-21-5, 94 NRC 1, 25 (2021)

Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 103 (1998)

NEPA affords agencies broad discretion to keep their inquiries within appropriate and manageable boundaries; LBP-21-5, 94 NRC 1, 25 (2021)

Mass. v. NRC, 522 F.3d 115, 119-21 (1st Cir. 2008)

NRC can satisfy its NEPA obligations for license renewal by combining site-specific analysis of Category 2 issues with generic analysis of the Category 1 issues, including consideration of any new and significant information; LBP-21-5, 94 NRC 1, 26 (2021)

Methow Valley Citizens Council v. Regl Forester, 833 F.2d 810, 815 (9th Cir. 1987) there must be an examination of every alternative within the nature and scope of the proposed action sufficient to permit a reasoned choice; LBP-21-5, 94 NRC 1, 52 (2021)

I-10

LEGAL CITATIONS INDEX CASES Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 594 (6th Cir. 2007) placing an employee on leave, with full pay and benefits, is not an adverse employment action; LBP-21-6, 94 NRC 61, 77 (2021)

NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 315 (2012) longstanding NRC practice is to reject, as a collateral attack, any contention calling for requirements in excess of those imposed by its regulations; LBP-21-5, 94 NRC 1, 21-22 n.38 (2021)

NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 338 (2012)

NEPA requires consideration of reasonable alternatives, not all conceivable ones; LBP-21-5, 94 NRC 1, 25 (2021)

NRC is required to take a hard look at environmental impacts of a proposed major federal action that could significantly affect the environment as well as reasonable alternatives to that action; LBP-21-5, 94 NRC 1, 25 (2021)

NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 342 (2012) applicant relied on best information available to conclude that the solar plus storage alternative requires a significant amount of land, thereby fulfilling the requirements of NEPA; LBP-21-5, 94 NRC 1, 50 n.267 (2021) contentions regarding reasonable alternatives in license renewal proceedings must provide alleged facts or expert opinion sufficient to raise a genuine dispute about commercially viable alternative technology for baseload power generation; LBP-21-5, 94 NRC 1, 49 & n.254 (2021)

NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 342 n.245 (2012) petitioner may proffer future-oriented testimony to demonstrate a genuine dispute about commercially available technology, but it must show that the technology is under development for large-scale use; LBP-21-5, 94 NRC 1, 51 (2021)

North Atlantic Energy Service Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 217 n.8 (1999) petitioner in an individual adjudication cannot challenge generic decisions made by NRC in rulemakings; LBP-21-5, 94 NRC 1, 22 n.42 (2021)

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

NEPA requires consideration of reasonable alternatives, not all conceivable ones; LBP-21-5, 94 NRC 1, 25 (2021)

Overall v. Tenn. Valley Auth., ARB No.04-073, ALJ No. 1999-ERA-025, slip op. at 11 (ARB July 16, 2007) test for an adverse employment action is whether employer took a tangible employment action that resulted in a significant change in employment status; LBP-21-6, 94 NRC 61, 76 (2021) test for an adverse employment action is whether employers actions were harmful to the point that they could well have dissuaded a reasonable worker from engaging in protected activity; LBP-21-6, 94 NRC 61, 76 (2021)

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-15-21, 82 NRC 295, 304 (2015) contention that addresses a current operating issue that is not unique to the subsequent license renewal term is inadmissible; LBP-21-5, 94 NRC 1, 54 (2021)

Peltier v. United States, 388 F.3d 984, 988 (6th Cir. 2004) placing an employee on leave, with full pay and benefits, is not an adverse employment action; LBP-21-6, 94 NRC 61, 77 (2021)

Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473 (1962) all facts must be construed in the light most favorable to the nonmoving party, and any doubt as to the existence of a genuine issue of material fact should be resolved against summary disposition; LBP-21-6, 94 NRC 61, 71 (2021)

Power Authority of the State of New York (James A. Fitzpatrick Nuclear Power Plant; Indian Point, Unit 3),

CLI-00-22, 52 NRC 266, 315 (2000) unsupported hypothetical theories or projections, even in the form of an affidavit, will not support invocation of the hearing process; LBP-21-5, 94 NRC 1, 22-23 & n.45 (2021)

PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 NRC 133, 138-39 (2010)

NRC has authorized use of a proximity presumption, which presumes that petitioner who resides, or otherwise has frequent contacts, within approximately 50 miles of the facility has standing; LBP-21-5, 94 NRC 1, 19 (2021)

I-11

LEGAL CITATIONS INDEX CASES Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 323 (1999) organization seeking to intervene on behalf of one or more of its members must demonstrate representational standing; LBP-21-5, 94 NRC 1, 27-28 (2021)

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-9, 53 NRC 232, 235 (2001)

NRC does not presume that a licensee will violate agency regulations wherever the opportunity arises; LBP-21-5, 94 NRC 1, 43 n.208 (2021) petitioner may not support a contention by assuming a licensee will violate agency regulations; LBP-21-5, 94 NRC 1, 43 n.208 (2021)

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 352 (2002) in evaluating reasonable environmental impacts, NRC need not analyze worst-case scenarios or those considered remote and highly speculative; LBP-21-5, 94 NRC 1, 25 (2021)

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004) contention admissibility rules require a clear statement of the basis for the contentions and submission of supporting information and references to specific documents and sources that establish validity of the contention; LBP-21-5, 94 NRC 1, 21 (2021)

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-19, 62 NRC 403, 410 (2005) petition for reconsideration should be based on an elaboration of an argument already made, an overlooked controlling decision or principle of law, or a factual clarification; CLI-21-10, 94 NRC 57, 58 (2021)

Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2), LBP-10-20, 72 NRC 571, 579 (2010) all facts must be construed in the light most favorable to the nonmoving party, and any doubt as to the existence of a genuine issue of material fact should be resolved against summary disposition; LBP-21-6, 94 NRC 61, 71 (2021)

Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-366, 5 NRC 39, 51-52 (1977) duplication is to be avoided by leaving to EPA and the states the decision as to the water pollution control criteria to which a facilitys cooling system would be held; LBP-21-5, 94 NRC 1, 33 n.125 (2021)

Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 23-28 (1978)

NRC is required by law to consider the permitting agencys decision on thermal impacts as binding; LBP-21-5, 94 NRC 1, 33 (2021)

Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 25 (1978) duplication is to be avoided by leaving to EPA and the states the decision as to the water pollution control criteria to which a facilitys cooling system would be held; LBP-21-5, 94 NRC 1, 33 n.125 (2021)

Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 26 (1978) it is beyond NRCs authority to determine what cooling system a nuclear power facility may use; LBP-21-5, 94 NRC 1, 33 (2021) permitting agency determines what cooling system a nuclear power facility may use and NRC factors impacts resulting from use of that system into the NEPA analysis; LBP-21-5, 94 NRC 1, 31 (2021)

Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 28 n.42 (1978)

NRC adjudicatory boards are expected to defer to the agency that issued the section 316(a) permit; LBP-21-5, 94 NRC 1, 33 (2021)

Richardson v. Petasis, 160 F. Supp. 3d 88, 118 (D.D.C. 2015) summary judgment was denied based not solely on imposition of administrative leave, but also its conditions; LBP-21-6, 94 NRC 61, 78 (2021)

I-12

LEGAL CITATIONS INDEX CASES summary judgment was denied where continued employment was explicitly conditioned on plaintiffs completion of certain tasks that employer prevented plaintiff from completing; LBP-21-6, 94 NRC 61, 78 (2021)

Singletary v. Mo. Dept of Corr., 423 F.3d 886, 891-92 (8th Cir. 2005) placing an employee on leave, with full pay and benefits, is not an adverse employment action; LBP-21-6, 94 NRC 61, 77 (2021)

Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998) it is petitioners responsibility to formulate contentions and to provide necessary information to satisfy the basis requirement for admission; LBP-21-5, 94 NRC 1, 20 n.28 (2021)

Storey v. Burns Intl Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004) paid suspension does not effect a serious and tangible alteration of the terms, conditions, or privileges of employment; LBP-21-6, 94 NRC 61, 77 (2021)

Susquehanna Nuclear, LLC (Susquehanna Steam Electric Station, Units 1 and 2), CLI-17-4, 85 NRC 59, 74 (2017) contention fails to demonstrate a genuine dispute with the applicant and fails to identify the specific sections of the application it is challenging; LBP-21-5, 94 NRC 1, 43 (2021)

Tamosaitis v. URS Inc., 781 F.3d 468 (9th Cir. 2015) violation of ERA section 211 must involve a personnel action that has a tangible impact, such as termination of employment, failure to hire, demotion, or an unwanted transfer; LBP-21-6, 94 NRC 61, 73 n.71 (2021)

U.S. Department of Energy (High-Level Waste Repository), LBP-10-11, 71 NRC 609, 618 (2010) to understand the scope of the NRCs authority and responsibility, Commission looks first to the statute; LBP-21-6, 94 NRC 61, 71 (2021)

USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 437 (2006) contention admission requirements are deliberately strict, and any contention that does not satisfy the requirements of 10 C.F.R. 2.309(f)(1) will be rejected; LBP-21-5, 94 NRC 1, 20 n.27 (2021)

USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 439 (2006) licensing boards may not entertain arguments advanced for the first time in a reply brief; LBP-21-5, 94 NRC 1, 35-36 n.145 (2021)

USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006) licensing board must review petitioners information, facts, and expert opinions to determine whether they provide adequate support for the proffered contentions; LBP-21-5, 94 NRC 1, 23 (2021)

USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006) expert opinion that merely states a conclusion without providing a reasoned basis or explanation for that conclusion is inadequate because it deprives the Bboard of the ability to make the necessary, reflective assessment of the opinion; LBP-21-5, 94 NRC 1, 22-23 (2021)

Vander Boegh v. EnergySolutions, Inc., 536 F. Appx 522, 529 (6th Cir. 2013) relevant legal inquiry is not whether an employee was ultimately discharged or demoted, but instead, whether the challenged action would deter a reasonable worker from engaging in protected activity; LBP-21-6, 94 NRC 61, 74 (2021)

Virginia Electric and Power Co. (North Anna Power Station, Unit 3), CLI-12-17, 76 NRC 207, 209-10 (2012) petition for reconsideration should be based on an elaboration of an argument already made, an overlooked controlling decision or principle of law, or a factual clarification; CLI-21-10, 94 NRC 57, 58 (2021)

Virginia Electric and Power Co. (North Anna Power Station, Unit 3), CLI-12-17, 76 NRC 207, 210 (2012) petition for reconsideration should not simply reargue matters already considered but rejected; CLI-21-10, 94 NRC 57, 58, 59 n.11 (2021)

Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), LBP-21-4, 93 NRC 179, 197

& n.32 (2021) license renewal allows operation of a reactor over an additional period of time during which the reactor could be subject to the same equipment failures and personnel errors as during operations over the original period of the license; LBP-21-5, 94 NRC 1, 19 (2021)

I-13

LEGAL CITATIONS INDEX CASES Von Gunten v. Md., 243 F.3d 858, 869 (4th Cir. 2001) placing an employee on leave, with full pay and benefits, is not an adverse employment action; LBP-21-6, 94 NRC 61, 77 (2021)

I-14

LEGAL CITATIONS INDEX REGULATIONS 10 C.F.R. 2.309(c) motions for leave to file amended contentions after the hearing request deadline will not be entertained absent a determination by the presiding officer that a participant has demonstrated good cause; LBP-21-5, 94 NRC 1, 38 (2021) 10 C.F.R. 2.309(c)(i)-(iii) showing of good cause for filing an amended contention is described; LBP-21-5, 94 NRC 1, 38 (2021) 10 C.F.R. 2.309(d)(1) intervention petitioner must establish standing and proffer at least one admissible contention; LBP-21-5, 94 NRC 1, 18 (2021) 10 C.F.R. 2.309(d)(1)(i)-(iv) hearing request must state name, address, and phone number of petitioner, nature of petitioners right under the AEA to be made a party to the proceeding, nature and extent of the petitioners interest in the proceeding, and possible effect of any decision or order issued in the proceeding on petitioners interest; LBP-21-5, 94 NRC 1, 19 (2021) 10 C.F.R. 2.309(f)(1) assertion that solar plus storage alternative should have been considered as a reasonable alternative in the environmental report is inadmissible; LBP-21-5, 94 NRC 1, 48-53 (2021) if any of the six requirements are not met, a contention must be rejected; LBP-21-5, 94 NRC 1, 20 (2021) intervention petitioner must establish standing and proffer at least one admissible contention; LBP-21-5, 94 NRC 1, 18 (2021) new or amended contention must still satisfy the contention admissibility standards; LBP-21-5, 94 NRC 1, 40 (2021) 10 C.F.R. 2.309(f)(1)(i)-(vi) intervention petitioner must set forth with particularity a timely filed admissible contention that fulfills the requirements set forth in this regulation; LBP-21-5, 94 NRC 1, 20 (2021) 10 C.F.R. 2.309(f)(1)(iii) contention alleging that environmental report fails to analyze alternative of thermal pollution mitigation as a means of reducing threats to aquatic biota and migratory birds is inadmissible; LBP-21-5, 94 NRC 1, 34 (2021) contention challenging the manner in which the NRC Staff performs its duties is outside the scope of NRC adjudicatory proceedings; LBP-21-5, 94 NRC 1, 22 (2021) contention is inadmissible because it constitutes a collateral attack on an NRC rule; LBP-21-5, 94 NRC 1, 31-34 (2021) contention that licensees continued operation violates 10 C.F.R. Part 50, Appendix A, Criterion 14 because the reactor coolant pressure boundary has not been tested for abnormal leakage, rapidly propagating failure, and gross rupture is inadmissible; LBP-21-5, 94 NRC 1, 38, 41-42 (2021) contention that plant has an elevated risk of a turbine missile accident owing to the poor alignment of its major buildings and structures is inadmissible; LBP-21-5, 94 NRC 1, 54 (2021) physical analysis of coupons from reactors to determine embrittlement is not required by NRC rules; LBP-21-5, 94 NRC 1, 37 (2021) 10 C.F.R. 2.309(f)(1)(iii)-(iv) to be admissible, the issue raised in a contention must fall within the scope of the proceeding and be material to the findings NRC must make on the application; LBP-21-5, 94 NRC 1, 21 (2021)

I-15

LEGAL CITATIONS INDEX REGULATIONS 10 C.F.R. 2.309(f)(1)(iv) contention alleging that environmental report fails to analyze alternative of thermal pollution mitigation as a means of reducing threats to aquatic biota and migratory birds is inadmissible; LBP-21-5, 94 NRC 1, 34 (2021) contention is inadmissible because it constitutes a collateral attack on an NRC rule; LBP-21-5, 94 NRC 1, 31-34 (2021) contention that licensees continued operation violates 10 C.F.R. Part 50, Appendix A, Criterion 14 because the reactor pressure vessel has not been tested for abnormal leakage, rapidly propagating failure, and gross rupture is inadmissible; LBP-21-5, 94 NRC 1, 41-42 (2021) contention that plant has an elevated risk of a turbine missile accident owing to the poor alignment of its major buildings and structures is inadmissible; LBP-21-5, 94 NRC 1, 54 (2021) 10 C.F.R. 2.309(f)(1)(v) assertion that solar plus storage alternative should have been considered as a reasonable alternative in the environmental report is inadmissible; LBP-21-5, 94 NRC 1, 48-53 (2021) contention that there are not enough sample coupons to remove from the reactor and test for embrittlement during the 60-year period of operations is inadmissible; LBP-21-5, 94 NRC 1, 42-45 (2021) petitioner must explain the basis for each proffered contention by providing alleged facts or expert opinions that support petitioners position and on which the petitioner intends to rely at hearing; LBP-21-5, 94 NRC 1, 22 (2021) 10 C.F.R. 2.309(f)(1)(vi) contention alleging that environmental report fails to analyze alternative of thermal pollution mitigation as a means of reducing threats to aquatic biota and migratory birds is inadmissible; LBP-21-5, 94 NRC 1, 34 (2021) contention fails to demonstrate a genuine dispute with the applicant and fails to identify the specific sections of the application it is challenging; LBP-21-5, 94 NRC 1, 43 (2021) contention is inadmissible because it constitutes a collateral attack on an NRC rule; LBP-21-5, 94 NRC 1, 31-34 (2021) contention that licensees continued operation violates 10 C.F.R. Part 50, Appendix A, Criterion 14 because the reactor pressure vessel has not been tested for abnormal leakage, rapidly propagating failure, and gross rupture is inadmissible; LBP-21-5, 94 NRC 1, 41-42 (2021) contention that plant has an elevated risk of a turbine missile accident owing to the poor alignment of its major buildings and structures is inadmissible; LBP-21-5, 94 NRC 1, 54 (2021) contention that there are not enough sample coupons to remove from the reactor and test for embrittlement during the 60-year period of operations is inadmissible; LBP-21-5, 94 NRC 1, 42-45 (2021) 10 C.F.R. 2.309(f)(2) for issues arising under the National Environmental Policy Act, participants shall file contentions based on applicants environmental report; LBP-21-5, 94 NRC 1, 21 (2021) 10 C.F.R. 2.323(e) petition for reconsideration may not be filed except upon leave of the adjudicatory body that rendered the decision; CLI-21-10, 94 NRC 57, 58 (2021) 10 C.F.R. 2.335 to challenge an NRC rule in an adjudicatory proceeding, petitioner must seek a waiver of the rule; LBP-21-5, 94 NRC 1, 41 (2021) 10 C.F.R. 2.335(a) no NRC rule or regulation is subject to attack in any adjudicatory proceeding without a successful waiver petition; LBP-21-5, 94 NRC 1, 21 n.37 (2021) 10 C.F.R. 2.335(b) issues addressed and decided in Commission rulemaking may not be challenged in an adjudicatory proceeding absent the filing and granting of a waiver; LBP-21-5, 94 NRC 1, 22, 31 n.111 (2021) petitioner may only challenge Category 1 generic conclusions if the rule is waived by the Commission after filing a successful waiver petition; LBP-21-5, 94 NRC 1, 27 (2021)

I-16

LEGAL CITATIONS INDEX REGULATIONS 10 C.F.R. 2.345(b) petition for reconsideration must demonstrate a compelling circumstance, such as existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid; CLI-21-10, 94 NRC 57, 58 (2021) 10 C.F.R. 2.710 summary disposition standards in Subpart G proceeding are based on those applied by federal courts to motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure; LBP-21-6, 94 NRC 61, 70 (2021) 10 C.F.R. 2.710(b) party opposing summary disposition may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue of fact for hearing; LBP-21-6, 94 NRC 61, 71 (2021) 10 C.F.R. 2.710(d)(2) board may grant summary disposition if the relevant pleadings show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law; LBP-21-6, 94 NRC 61, 70-71 (2021) 10 C.F.R. 50.7 administrative leave, with full pay and benefits did not change employees compensation, terms, conditions, or privileges of employment and thus did not violate this section; LBP-21-6, 94 NRC 61, 77 (2021) language of this section is virtually identical to language of the substantive antidiscrimination provision of Title VII of the Civil Rights Act, not to its broader antiretaliation provision; LBP-21-6, 94 NRC 61, 75 (2021) only actions that affect employment or alter the conditions of the workplace are covered; LBP-21-6, 94 NRC 61, 75 (2021) 10 C.F.R. 50.7(a) discrimination includes discharge and other actions that relate to compensation, terms, conditions, or privileges of employment; LBP-21-6, 94 NRC 61, 71 (2021) only retaliation that takes the form of an adverse change in the terms and conditions of employment is prohibited, not every type of retaliation that might be possible; LBP-21-6, 94 NRC 61, 72 (2021) 10 C.F.R. 50.7(a)(1)(i)-(v) protected activity includes providing information about alleged violations to the Commission or to an NRC licensee, testifying in Commission and other proceedings, and refusing to engage in an unlawful practice; LBP-21-6, 94 NRC 61, 72 (2021) 10 C.F.R. 50.61 challenge to calculations specified by this rule is an impermissible challenge to the rule; LBP-21-5, 94 NRC 1, 45 (2021) neutron embrittlement monitoring requirements are provided; LBP-21-5, 94 NRC 1, 37 (2021) rather than employing software to monitor neutron embrittlement, licensee uses the embrittlement curve found in this regulation; LBP-21-5, 94 NRC 1, 45 (2021) 10 C.F.R. 50.61(a)(2) pressurized thermal shock is an event or transient that causes severe overcooling concurrent with or followed by significant pressure in the reactor vessel; LBP-21-5, 94 NRC 1, 35 (2021) 10 C.F.R. Part 50, Appendix G neutron embrittlement monitoring requirements are provided; LBP-21-5, 94 NRC 1, 37 (2021) 10 C.F.R. Part 50, Appendix H licensees must monitor neutron embrittlement to ensure that the reactor pressure vessel continues to have adequate fracture toughness to prevent brittle failure; LBP-21-5, 94 NRC 1, 35-36 (2021) 10 C.F.R. Part 50, Appendix H, § III.B.1 for each capsule withdrawal, test procedures and reporting requirements must meet ASTM E 185 to the extent practicable for the configuration of the specimens in the capsule; LBP-21-5, 94 NRC 1, 43 (2021) 10 C.F.R. 51.41 if state issues an update to any of water discharge permit documents, it is obligated to inform the NRC; LBP-21-5, 94 NRC 1, 31 (2021)

I-17

LEGAL CITATIONS INDEX REGULATIONS 10 C.F.R. 51.45 license renewal applicant or licensee must discuss environmental impacts of alternatives; LBP-21-5, 94 NRC 1, 26 (2021) 10 C.F.R. 51.45(c) contention alleging that environmental report fails to analyze alternative of thermal pollution mitigation as a means of reducing threats to aquatic biota and migratory birds is inadmissible; LBP-21-5, 94 NRC 1, 28 (2021) 10 C.F.R. 51.53(c)

Category 2 issues are site-specific environmental issues that must be addressed by license renewal applicant or licensee in its environmental report; LBP-21-5, 94 NRC 1, 26 (2021) 10 C.F.R. 51.53(c)(2) assertions that licensee should have discussed costs and benefits of solar plus storage lacks adequate support and does not directly challenge information in the environmental report; LBP-21-5, 94 NRC 1, 49-50 (2021) cost-benefit analysis of solar plus storage is not required if environmental impacts of license renewal are great enough to tip the balance against license renewal; LBP-21-5, 94 NRC 1, 50 (2021) license renewal environmental report is not required to discuss need for power or economic costs and benefits of the proposed action or of alternatives unless such a discussion is essential to determine whether an alternative should be included in the ER; LBP-21-5, 94 NRC 1, 26 (2021) need for power is beyond the scope of a subsequent license renewal proceeding; LBP-21-5, 94 NRC 1, 47 (2021) 10 C.F.R. 51.53(c)(3)(i) environmental report is not required to contain analyses of the environmental impacts of the license renewal issues identified as Category 1; LBP-21-5, 94 NRC 1, 26 (2021) 10 C.F.R. 51.53(c)(3)(ii) license renewal applicant must include in its environmental report analyses of the environmental impacts of the proposed action for those issues identified as Category 2; LBP-21-5, 94 NRC 1, 26 (2021) 10 C.F.R. 51.53(c)(3)(ii)(B) expiration of an NPDES permit before the end of the license renewal term does not affect compliance with this section; LBP-21-5, 94 NRC 1, 32 n.121 (2021)

NRC cannot review and judge environmental permits issued under the Clean Water Act by the EPA or an authorized state agency; LBP-21-5, 94 NRC 1, 31 (2021) petitioner must seek a waiver to challenge an NRC rule; LBP-21-5, 94 NRC 1, 31 n.111 (2021) regulation applies to subsequent license renewals; LBP-21-5, 94 NRC 1, 29 (2021) regulation only requires an assessment of entrainment, impingement, and thermal impacts if applicant or licensee cannot provide a current determination under Clean Water Act section 316(b); LBP-21-5, 94 NRC 1, 31 n.114 (2021) 10 C.F.R. 51.53(c)(3)(iv)

Category 1 issues need not be addressed by license renewal applicants, unless there is new and significant information; LBP-21-5, 94 NRC 1, 25-26 (2021) environmental report is not required to contain analyses of the environmental impacts of the license renewal issues identified as Category 1 unless there is any new and significant information regarding the environmental impacts of a Category 1 issue; LBP-21-5, 94 NRC 1, 26 (2021) 10 C.F.R. 51.95(c)

NRC Staff uses the environmental report to create a supplemental environmental impact statement; LBP-21-5, 94 NRC 1, 27 (2021) 10 C.F.R. 51.95(c)(4) consideration of economic or technical benefits and costs of either the proposed action or alternatives is not required unless they are essential for a determination regarding inclusion of mitigation alternatives; LBP-21-5, 94 NRC 1, 47 (2021) contention is inadmissible because it lacks adequate support for the proposition that the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decisionmakers is unreasonable; LBP-21-5, 94 NRC 1, 52 & n.284 (2021)

I-18

LEGAL CITATIONS INDEX REGULATIONS supplemental environmental impact statement integrates conclusions in the GEIS for issues designated as Category 1 with information developed for those Category 2 issues applicable to the plant and any new and significant information; LBP-21-5, 94 NRC 1, 27 (2021) 10 C.F.R. pt. 51, subpt. A, app. A, § II, Criterion 14 reactor coolant pressure boundary must be designed, fabricated, erected, and tested so as to have an extremely low probability of abnormal leakage, of rapidly propagating failure, and of gross rupture; LBP-21-5, 94 NRC 1, 35 n.143 (2021) reactor vessels must be tested so as to have an extremely low probability of abnormal leakage, of rapidly propagating failure, and of gross rupture; LBP-21-5, 94 NRC 1, 41 n.194 (2021) 10 C.F.R. 54.2(a)(1) steam turbine performs its intended functions with moving parts and thus is not subject to an aging management review; LBP-21-5, 94 NRC 1, 55 n.308 (2021) 10 C.F.R. 54.3 all time-limited aging analyses from the initial license renewal are incorporated into the current licensing basis; LBP-21-5, 94 NRC 1, 40-41 (2021) current licensing basis is a term of art comprehending various Commission requirements applicable to a specific plant that are in effect at the time of the license renewal; LBP-21-5, 94 NRC 1, 24 n.48 (2021) only if a time-limited aging analysis were being created or revised during a subsequent license renewal would a petitioner be able to challenge it; LBP-21-5, 94 NRC 1, 41 (2021) 10 C.F.R. 54.13(a)-(b) if state issues an update to any of water discharge permit documents, it is obligated to inform the NRC; LBP-21-5, 94 NRC 1, 31 (2021) 10 C.F.R. 54.21(a)(1)(i) reactor pressure vessel is subject to time-limited aging analysis; LBP-21-5, 94 NRC 1, 40 (2021) turbine is not safety-related and is otherwise excluded from review as an active component; LBP-21-5, 94 NRC 1, 54 (2021) 10 C.F.R. 54.21(a)(1)(i)-(ii) active components are not subject to an aging-management review; LBP-21-5, 94 NRC 1, 55 (2021) scope of the aging management reviews is limited to structures and components that perform an intended function, as described in § 54.4, without moving parts or without a change in configuration or properties and that are not subject to replacement based on a qualified life or specified time period; LBP-21-5, 94 NRC 1, 25 (2021) 10 C.F.R. 54.21(a)(3) license renewal applicant must demonstrate that effects of aging will be adequately managed so that the intended function(s) of structures, systems, or components requiring aging management review will be maintained consistent with the CLB for the period of extended operation; LBP-21-5, 94 NRC 1, 24 (2021) 10 C.F.R. 54.21(c)(1) petitioners suggestion that the existing time-limited aging analysis is inadequate or error-prone constitutes a collateral attack on NRC rules; LBP-21-5, 94 NRC 1, 41 (2021) 10 C.F.R. 54.21(c)(1)(i)-(iii)

NRC permits licensees to address time-limited aging analyses in one of three ways; LBP-21-5, 94 NRC 1, 40 (2021) 10 C.F.R. 54.29 NRC may grant a license renewal if it finds that specific safety and environmental requirements are satisfied; LBP-21-5, 94 NRC 1, 23 (2021) 10 C.F.R. 54.29(a) actions regarding aging management and time-limited aging analyses must provide reasonable assurance that activities authorized by the renewed license will continue to be conducted in accordance with the current licensing basis; LBP-21-5, 94 NRC 1, 23 (2021) 10 C.F.R. 54.29(a)(1)-(2) safety review of license renewal applications conducted by NRC is limited to matters described in this regulation; LBP-21-5, 94 NRC 1, 23 (2021)

I-19

LEGAL CITATIONS INDEX REGULATIONS 10 C.F.R. 54.30(b) adequacy of a plants current licensing basis is not addressed during the license renewal safety review; LBP-21-5, 94 NRC 1, 24 (2021) 10 C.F.R. 54.35 if state issues an update to any water discharge permit documents, it is obligated to inform NRC; LBP-21-5, 94 NRC 1, 31 (2021)

I-20

LEGAL CITATIONS INDEX STATUTES Atomic Energy Act, 189(a)(1)(A), 42 U.S.C. § 2239(a)(1)(A)

NRC is required to grant a hearing upon the request of any person whose interest may be affected by the proceeding; LBP-21-5, 94 NRC 1, 18 (2021)

Civil Rights Act, 703(a)(1), 42 U.S.C. § 2000e-2(a)(1) employer may not fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals race, color, religion, sex, or national origin; LBP-21-6, 94 NRC 61, 75 n.83 (2021) prohibition against employment discrimination itself is virtually identical to the language of ERA section 211 and 10 C.F.R. § 50.7; LBP-21-6, 94 NRC 61, 72 (2021)

Civil Rights Act, 704(a), 42 U.S.C. § 2000e-3(a) antiretaliation provision of Title VII reaches conduct not covered by the substantive antidiscrimination provision; LBP-21-6, 94 NRC 61, 74 (2021)

Civil Rights Act, Title VII broader protections are provided for victims of retaliation than for those who are victims of discrimination itself; LBP-21-6, 94 NRC 61, 72 (2021)

Clean Water Act, 316(b), 33 U.S.C. § 1326(b) section 51.53(c)(3)(ii)(B) of 10 C.F.R. only requires an assessment of entrainment, impingement, and thermal impacts if applicant or licensee cannot provide a current determination under this statute; LBP-21-5, 94 NRC 1, 31 (2021)

Wisconsin state NPDES-permitting authority concluded that the cooling water intake represents interim best technology available for minimizing adverse environmental impact; LBP-21-5, 94 NRC 1, 32 (2021)

Clean Water Act, 332(b)(1)(B), 33 U.S.C. 1342(b)(1)(B) expiration of an NPDES permit before the end of the license renewal term does not affect compliance with 10 C.F.R. 51.53(c)(3)(ii)(B); LBP-21-5, 94 NRC 1, 32 n.121 (2021)

Clean Water Act, 410 license transfer that does not authorize an activity that could result in a new discharge does not require a certification under this section; CLI-21-10, 94 NRC 57, 59 (2021)

Clean Water Act, 511(c)(2)

NRC is precluded from either second-guessing the conclusions in NPDES permits or imposing its own effluent limitations; LBP-21-5, 94 NRC 1, 32-33 n.125 (2021)

Energy Reorganization Act, 211 administrative leave, with full pay and benefits did not change employees compensation, terms, conditions, or privileges of employment and thus did not violate this section; LBP-21-6, 94 NRC 61, 77 (2021) language of this section is virtually identical to language of the substantive antidiscrimination provision of Title VII of the Civil Rights Act, not to its broader antiretaliation provision; LBP-21-6, 94 NRC 61, 75 (2021) only actions that affect employment or alter the conditions of the workplace are covered; LBP-21-6, 94 NRC 61, 75 (2021) only retaliation that takes the form of an adverse change in the terms and conditions of employment is prohibited, not every type of retaliation that might be possible; LBP-21-6, 94 NRC 61, 72 (2021)

I-21

LEGAL CITATIONS INDEX STATUTES Energy Reorganization Act, 211(a)(1), 42 U.S.C. § 5851(a)(1) no employer may discharge or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because of the employees participation in protected activity; LBP-21-6, 94 NRC 61, 71, 75 n.83 (2021) prohibition against employment discrimination itself is virtually identical to the language of Civil Rights Act § 703(a)(1); LBP-21-6, 94 NRC 61, 72 (2021)

Energy Reorganization Act, 211(a)(1)(A)-(F), 42 U.S.C. § 5851(a)(1)(A)-(F) prohibited personnel actions do not include violation based on employees complaint or an employers investigation of that complaint; LBP-21-6, 94 NRC 61, 76 (2021)

Energy Reorganization Act, 211(a)(1)(F), 42 U.S.C. § 5851(a)(1)(F) catch-all provision requires that employees actions must implicate safety definitively and specifically to constitute whistleblower protected activity; LBP-21-6, 94 NRC 61, 72 n.70 (2021)

False Claims Act, 31 U.S.C. § 3730(h)(1) employee who is suspended, threatened, or harassed is protected regardless of whether retaliation takes the form of a concrete employment action; LBP-21-6, 94 NRC 61, 72, 76 (2021)

Whistleblower Protection Act, 5 U.S.C. § 2302(a)(2)(A)(i)-(xiii) more than a dozen prohibited personnel actions are listed; LBP-21-6, 94 NRC 61, 76 (2021)

Wis. Stats. s. 283.31(6)

Wisconsin state NPDES-permitting authority concluded that the cooling water intake represents interim best technology available for minimizing adverse environmental impact; LBP-21-5, 94 NRC 1, 32 (2021)

I-22

LEGAL CITATIONS INDEX OTHERS 6 Cir. R. 32.1(b) unpublished decision is not binding precedent under Sixth Circuits rules; LBP-21-6, 94 NRC 61, 75 (2021)

Fed. R. Civ. P., Rule 56 summary disposition standards in Subpart G proceeding are based on those applied by federal courts to motions for summary judgment; LBP-21-6, 94 NRC 61, 70 (2021)

I-23

SUBJECT INDEX ACCIDENTS contention that plant has an elevated risk of a turbine missile accident owing to poor alignment of its major buildings and structures is inadmissible; LBP-21-5, 94 NRC 1 (2021)

ADJUDICATORY PROCEEDINGS individual license renewal proceedings will share the same scope of issues as NRC Staff review; LBP-21-5, 94 NRC 1 (2021)

See also Operating License Renewal Proceedings AFFIDAVITS unsupported hypothetical theories or projections, even in the form of an affidavit, will not support invocation of the hearing process; LBP-21-5, 94 NRC 1 (2021)

AGING MANAGEMENT actions must provide reasonable assurance that activities authorized by the renewed license will continue to be conducted in accordance with the current licensing basis; LBP-21-5, 94 NRC 1 (2021) applicant must demonstrate that effects of aging will be adequately managed so that the intended function(s) of structures, systems, or components requiring aging management review will be maintained consistent with the CLB for the period of extended operation; LBP-21-5, 94 NRC 1 (2021)

NRCs license renewal review focuses on those potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs; LBP-21-5, 94 NRC 1 (2021) only passive, long-lived structures and components are subject to an aging management review for license renewal; LBP-21-5, 94 NRC 1 (2021) scope of review is limited to structures and components that perform an intended function, as described in 10 C.F.R. § 54.4, without moving parts or without a change in configuration or properties and that are not subject to replacement based on a qualified life or specified time period; LBP-21-5, 94 NRC 1 (2021) steam turbine performs its intended functions with moving parts and thus is not subject to an aging management review; LBP-21-5, 94 NRC 1 (2021)

AMENDMENT OF CONTENTIONS amended contention must still satisfy the contention admissibility standards; LBP-21-5, 94 NRC 1 (2021) motions for leave to file amended contentions after the hearing request deadline will not be entertained absent determination by the presiding officer that participant has demonstrated good cause; LBP-21-5, 94 NRC 1 (2021) reasonable deadline for proposing new or amended contentions is typically considered to be 30 to 60 days from the initiating event; LBP-21-5, 94 NRC 1 (2021)

APPROVAL OF LICENSE NRC may grant a license renewal if it finds that specific safety and environmental requirements are satisfied; LBP-21-5, 94 NRC 1 (2021)

ATOMIC ENERGY ACT NRC is required to grant a hearing upon the request of any person whose interest may be affected by the proceeding; LBP-21-5, 94 NRC 1 (2021)

BENEFIT-COST ANALYSIS analysis of solar plus storage is not required if environmental impacts of license renewal are great enough to tip the balance against license renewal; LBP-21-5, 94 NRC 1 (2021)

I-25

SUBJECT INDEX license renewal environmental report is not required to discuss need for power or economic costs and benefits of the proposed action or of alternatives unless such a discussion is essential to determine whether an alternative should be included in the ER; LBP-21-5, 94 NRC 1 (2021)

CERTIFICATION license transfer that does not authorize an activity that could result in a new discharge does not require a certification under section 410 of the Clean Water Act; CLI-21-10, 94 NRC 57 (2021)

CLEAN WATER ACT expiration of NPDES permit before the end of the license renewal term does not affect compliance with 10 C.F.R. 51.53(c)(3)(ii)(B); LBP-21-5, 94 NRC 1 (2021) license transfer that does not authorize an activity that could result in a new discharge does not require certification under section 410 of the Clean Water Act; CLI-21-10, 94 NRC 57 (2021)

NRC adjudicatory boards are expected to defer to the agency that issued the section 316(a) permit; LBP-21-5, 94 NRC 1 (2021)

NRC cannot review and judge environmental permits issued under the CWA by the EPA or an authorized state agency; LBP-21-5, 94 NRC 1 (2021) section 51.53(c)(3)(ii)(B) only requires an assessment of entrainment, impingement, and thermal impacts if applicant or licensee cannot provide a current determination under Clean Water Act section 316(b);

LBP-21-5, 94 NRC 1 (2021)

COMPLIANCE expiration of NPDES permit before the end of the license renewal term does not affect compliance with 10 C.F.R. 51.53(c)(3)(ii)(B); LBP-21-5, 94 NRC 1 (2021)

See also Presumption of Compliance CONSIDERATION OF ALTERNATIVES assertion that solar plus storage alternative should have been considered as a reasonable alternative in the environmental report is inadmissible; LBP-21-5, 94 NRC 1 (2021) contention alleging that environmental report fails to analyze alternative of thermal pollution mitigation as a means of reducing threats to aquatic biota and migratory birds is inadmissible; LBP-21-5, 94 NRC 1 (2021) contention that environmental report fails to adequately evaluate the full potential for renewable energy sources to offset loss of energy production is inadmissible; LBP-21-5, 94 NRC 1 (2021) cost-benefit analysis of solar plus storage is not required if environmental impacts of license renewal are great enough to tip the balance against license renewal; LBP-21-5, 94 NRC 1 (2021) license renewal applicant or licensee must discuss environmental impacts of alternatives; LBP-21-5, 94 NRC 1 (2021) license renewal environmental report is not required to discuss need for power or economic costs and benefits of proposed action or alternatives unless such a discussion is essential to determine whether an alternative should be included in the ER; LBP-21-5, 94 NRC 1 (2021)

NEPA requires consideration of reasonable alternatives, not all conceivable ones; LBP-21-5, 94 NRC 1 (2021)

NRC has no regulatory power to ensure that environmentally superior energy alternatives are used in the future; LBP-21-5, 94 NRC 1 (2021)

NRC may not consider alternative cooling systems as that would improperly second-guess the cooling system approved by the permitting agency; LBP-21-5, 94 NRC 1 (2021)

NRCs environmental review does not require a determination of the best method for electricity generation, but rather limits the review to the adverse environmental effects and analyses of reasonable alternatives; LBP-21-5, 94 NRC 1 (2021) petitioner may proffer future-oriented testimony to demonstrate a genuine dispute about commercially available technology, but it must show that the technology is under development for large-scale use; LBP-21-5, 94 NRC 1 (2021) there must be an examination of every alternative within the nature and scope of the proposed action sufficient to permit a reasoned choice; LBP-21-5, 94 NRC 1 (2021)

CONTENTIONS, ADMISSIBILITY adequacy of current licensing basis is not an issue within the scope of a license renewal proceeding; LBP-21-5, 94 NRC 1 (2021)

I-26

SUBJECT INDEX allegation that environmental report fails to analyze alternative of thermal pollution mitigation as a means of reducing threats to aquatic biota and migratory birds is inadmissible; LBP-21-5, 94 NRC 1 (2021) assertion that solar plus storage alternative should have been considered as a reasonable alternative in the environmental report is inadmissible; LBP-21-5, 94 NRC 1 (2021) bare assertions and speculation do not support an admissible contention, even if supported by an expert; LBP-21-5, 94 NRC 1 (2021) board may not assume what petitioner is referring to, absent the requisite specificity; LBP-21-5, 94 NRC 1 (2021) contention admission requirements are deliberately strict, and any contention that does not satisfy the requirements of 10 C.F.R. 2.309(f)(1) will be rejected; LBP-21-5, 94 NRC 1 (2021) contention alleging that environmental report fails to analyze alternative of thermal pollution mitigation as a means of reducing threats to aquatic biota and migratory birds is inadmissible; LBP-21-5, 94 NRC 1 (2021) contention is inadmissible because it lacks adequate support for the proposition that adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decisionmakers is unreasonable; LBP-21-5, 94 NRC 1 (2021) contention that environmental report fails to adequately evaluate the full potential for renewable energy sources to offset loss of energy production is inadmissible; LBP-21-5, 94 NRC 1 (2021) contention that licensees continued operation violates 10 C.F.R. Part 50, Appendix A, Criterion 14 because the reactor coolant pressure boundary has not been tested for abnormal leakage, rapidly propagating failure, and gross rupture is inadmissible; LBP-21-5, 94 NRC 1 (2021) contention that licensees continued operation violates 10 C.F.R. Part 50, Appendix A, Criterion 14 because the reactor pressure vessel has not been tested for abnormal leakage, rapidly propagating failure, and gross rupture is inadmissible; LBP-21-5, 94 NRC 1 (2021) contention that plant has an elevated risk of a turbine missile accident owing to the poor alignment of its major buildings and structures is inadmissible; LBP-21-5, 94 NRC 1 (2021) contention that there are not enough sample coupons to remove from the reactor and test for embrittlement during the 60-year period of operations is inadmissible; LBP-21-5, 94 NRC 1 (2021) failure to demonstrate a genuine dispute with applicant and to identify specific sections of the application it is challenging renders a contention inadmissible; LBP-21-5, 94 NRC 1 (2021) intervention petitioner must set forth with particularity a timely filed admissible contention that fulfills the requirements set forth in 10 C.F.R. 2.309(f)(1)(i)-(vi); LBP-21-5, 94 NRC 1 (2021) licensing board must review petitioners information, facts, and expert opinions to determine whether they provide adequate support for the proffered contentions; LBP-21-5, 94 NRC 1 (2021) need for power is beyond the scope of a subsequent license renewal proceeding; LBP-21-5, 94 NRC 1 (2021) new or amended contention must still satisfy the contention admissibility standards; LBP-21-5, 94 NRC 1 (2021) only if a time-limited aging analysis were being created or revised during a subsequent license renewal would a petitioner be able to challenge it; LBP-21-5, 94 NRC 1 (2021) petitioner failed to identify a solar plus storage combination that can practically produce baseload power either now, or in time to constitute a reasonable alternative to relicensing; LBP-21-5, 94 NRC 1 (2021) petitioner may not support a contention by assuming a licensee will violate agency regulations; LBP-21-5, 94 NRC 1 (2021) petitioner may proffer future-oriented testimony to demonstrate a genuine dispute about commercially available technology, but it must show that the technology is under development for large-scale use; LBP-21-5, 94 NRC 1 (2021) petitioner must provide a reference or source showing that the number of aquatic organisms entrained, impinged, or affected by thermal discharges represents a significant environment impact such that the duty to analyze mitigation should be greater than small; LBP-21-5, 94 NRC 1 (2021) petitioners suggestion that existing time-limited aging analysis is inadequate or error-prone constitutes a collateral attack on NRC rules; LBP-21-5, 94 NRC 1 (2021) to challenge the need for power, petitioner would first have to request a waiver of 10 C.F.R. 51.53(c)(2) and demonstrate special circumstances unique to the facility; LBP-21-5, 94 NRC 1 (2021)

I-27

SUBJECT INDEX CONTENTIONS, LATE-FILED new or amended contention must still satisfy the contention admissibility standards; LBP-21-5, 94 NRC 1 (2021) newly arising information has long been recognized as providing good cause for acceptance of a late contention; LBP-21-5, 94 NRC 1 (2021) reasonable deadline for proposing new or amended contentions is typically considered to be 30 to 60 days from the initiating event; LBP-21-5, 94 NRC 1 (2021)

See also Amendment of Contentions COOLING SYSTEMS duplication is to be avoided by leaving to EPA and the states the decision as to water pollution control criteria to which a facilitys cooling system would be held; LBP-21-5, 94 NRC 1 (2021)

NRC may not consider alternative cooling systems as that would improperly second-guess the cooling system approved by the permitting agency; LBP-21-5, 94 NRC 1 (2021) permitting agency determines what cooling system a nuclear power facility may use and NRC factors impacts resulting from use of that system into the NEPA analysis; LBP-21-5, 94 NRC 1 (2021) section 51.53(c)(3)(ii)(B) only requires an assessment of entrainment, impingement, and thermal impacts if applicant or licensee cannot provide a current determination under Clean Water Act section 316(b);

LBP-21-5, 94 NRC 1 (2021) state NPDES-permitting authority concluded that the cooling water intake represents interim best technology available for minimizing adverse environmental impact; LBP-21-5, 94 NRC 1 (2021)

See also Reactor Cooling Systems CURRENT LICENSING BASIS actions regarding aging management and time-limited aging analyses must provide reasonable assurance that activities authorized by the renewed license will continue to be conducted in accordance with the CLB; LBP-21-5, 94 NRC 1 (2021) adequacy of a plants CLB is not addressed during the license renewal safety review; LBP-21-5, 94 NRC 1 (2021) adequacy of CLB is not an issue within the scope of a license renewal proceeding; LBP-21-5, 94 NRC 1 (2021) all applicable regulatory requirements with which the particular applicant must comply are found in Parts 2, 19, 20, 21, 30, 40, 50, 55, 72, 73, and 100; LBP-21-5, 94 NRC 1 (2021) all time-limited aging analyses from the initial license renewal are incorporated into the CLB; LBP-21-5, 94 NRC 1 (2021) term comprehends various Commission requirements applicable to a specific plant that are in effect at the time of the license renewal; LBP-21-5, 94 NRC 1 (2021)

DEADLINES reasonable deadline for proposing new or amended contentions is typically considered to be 30 to 60 days from the initiating event; LBP-21-5, 94 NRC 1 (2021)

DEFINITIONS current licensing basis is a term of art comprehending various NRC requirements applicable to a specific plant that are in effect at the time of the license renewal; LBP-21-5, 94 NRC 1 (2021) pressurized thermal shock is an event or transient that causes severe overcooling concurrent with or followed by significant pressure in the reactor vessel; LBP-21-5, 94 NRC 1 (2021)

DISCRIMINATION administrative leave with full pay and benefits did not change employees compensation, terms, conditions, or privileges of employment and thus did not violate ERA section 211; LBP-21-6, 94 NRC 61 (2021) because language of substantive antidiscrimination provision differs from that of the antiretaliation provision in important ways, antiretaliation provision of Title VII reaches conduct not covered by the substantive antidiscrimination provision; LBP-21-6, 94 NRC 61 (2021) determination of what constitutes an adverse action is dependent on context; LBP-21-6, 94 NRC 61 (2021) discharge and other actions that relate to compensation, terms, conditions, or privileges of employment are included; LBP-21-6, 94 NRC 61 (2021)

I-28

SUBJECT INDEX exceptionally dilatory investigation while an employee is on leave might give rise to a violation; LBP-21-6, 94 NRC 61 (2021) imposition of administrative leave must be reasonable; LBP-21-6, 94 NRC 61 (2021) investigation cannot be a violation when its subject suffered no disciplinary action, demotion, or change in job responsibilities during the investigation; LBP-21-6, 94 NRC 61 (2021) no employer may discharge or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee engaged in protected activity; LBP-21-6, 94 NRC 61 (2021)

NRC Staff must demonstrate by a preponderance of the evidence that licensee terminated employment based, at least in part, on employees engaging in protected activity; LBP-21-6, 94 NRC 61 (2021) only retaliation that takes the form of an adverse change in the terms and conditions of employment is prohibited, not every type of retaliation that might be possible; LBP-21-6, 94 NRC 61 (2021) placing an employee on paid administrative leave where there is no presumption of termination is not an adverse employment action; LBP-21-6, 94 NRC 61 (2021) substantive antidiscrimination provision of Title VII is limited in scope to actions that affect employment or alter the conditions of the workplace, while no such limiting words appear in the antiretaliation provision; LBP-21-6, 94 NRC 61 (2021) test for an adverse employment action is whether the employer took a tangible employment action that resulted in a significant change in employment status; LBP-21-6, 94 NRC 61 (2021)

EMBRITTLEMENT licensees must monitor neutron embrittlement to ensure that the reactor pressure vessel continues to have adequate fracture toughness to prevent brittle failure; LBP-21-5, 94 NRC 1 (2021) neutron embrittlement monitoring requirements are provided in 10 C.F.R. 50.61 and Part 50, Appendix G; LBP-21-5, 94 NRC 1 (2021) physical analysis of coupons from reactors to determine embrittlement is not required by NRC rules; LBP-21-5, 94 NRC 1 (2021) rather than employing software to monitor neutron embrittlement, licensee used the embrittlement curve found in 10 C.F.R. 50.61; LBP-21-5, 94 NRC 1 (2021)

EMPLOYEE PROTECTION antiretaliation provisions of the False Claims Act expressly protect an employee who is suspended, threatened, or harassed; LBP-21-6, 94 NRC 61 (2021) discrimination includes discharge and other actions that relate to compensation, terms, conditions, or privileges of employment; LBP-21-6, 94 NRC 61 (2021) no employer may discharge or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because of the employees participation in protected activity; LBP-21-6, 94 NRC 61 (2021) protected activity includes providing information about alleged violations to the Commission or to an NRC licensee, testifying in Commission and other proceedings and refusing to engage in an unlawful practice; LBP-21-6, 94 NRC 61 (2021)

Title VII of the Civil Rights Act provides broader protection for victims of retaliation than for those who are victims of discrimination itself; LBP-21-6, 94 NRC 61 (2021) violation of ERA section 211 must involve a personnel action that has a tangible impact, such as termination of employment, failure to hire, demotion, or an unwanted transfer; LBP-21-6, 94 NRC 61 (2021)

EMPLOYMENT determination of what constitutes an adverse action is dependent on the context; LBP-21-6, 94 NRC 61 (2021) exceptionally dilatory investigation while an employee is on leave might give rise to a violation; LBP-21-6, 94 NRC 61 (2021) imposition of administrative leave must be reasonable; LBP-21-6, 94 NRC 61 (2021) licensee must demonstrate by clear and convincing evidence that it would have terminated employment regardless of the protected activity; LBP-21-6, 94 NRC 61 (2021)

NRC Staff must demonstrate by a preponderance of the evidence that licensee terminated employment based, at least in part, on employees engaging in protected activity; LBP-21-6, 94 NRC 61 (2021)

I-29

SUBJECT INDEX paid suspension is neither a refusal to hire nor a termination, and by design it does not change compensation; LBP-21-6, 94 NRC 61 (2021) placing an employee on paid administrative leave where there is no presumption of termination is not an adverse employment action; LBP-21-6, 94 NRC 61 (2021) summary judgment has been denied based not solely on imposition of administrative leave, but also its conditions; LBP-21-6, 94 NRC 61 (2021) summary judgment has been denied where continued employment was explicitly conditioned on plaintiffs completion of certain tasks that employer prevented plaintiff from completing; LBP-21-6, 94 NRC 61 (2021)

ENERGY REORGANIZATION ACT administrative leave with full pay and benefits did not change employees compensation, terms, conditions, or privileges of employment and thus did not violate ERA section 211; LBP-21-6, 94 NRC 61 (2021) employees actions must implicate safety definitively and specifically to constitute whistleblower protected activity; LBP-21-6, 94 NRC 61 (2021) only retaliation that takes the form of an adverse change in the terms and conditions of employment is prohibited, not every type of retaliation that might be possible; LBP-21-6, 94 NRC 61 (2021) violation of section 211 must involve a personnel action that has a tangible impact, such as termination of employment, failure to hire, demotion, or an unwanted transfer; LBP-21-6, 94 NRC 61 (2021)

ENFORCEMENT PROCEEDINGS board grants the parties joint motion for termination of enforcement proceeding after Staff rescinds notice of violation and imposition of civil penalty; LBP-21-7, 94 NRC 82 (2021)

ENVIRONMENTAL ANALYSIS permitting agency determines what cooling system a nuclear power facility may use and NRC factors impacts resulting from use of that system into the NEPA analysis; LBP-21-5, 94 NRC 1 (2021)

ENVIRONMENTAL EFFECTS state NPDES-permitting authority concluded that the cooling water intake represents interim best technology available for minimizing adverse environmental impact; LBP-21-5, 94 NRC 1 (2021)

ENVIRONMENTAL IMPACT STATEMENT NRC can satisfy its NEPA obligations for license renewal by combining site-specific analysis of Category 2 issues with generic analysis of the Category 1 issues, including consideration of any new and significant information; LBP-21-5, 94 NRC 1 (2021)

See also Generic Environmental Impact Statement; Supplemental Environmental Impact Statement ENVIRONMENTAL PROTECTION AGENCY duplication is to be avoided by leaving to EPA and the states the decision as to water pollution control criteria to which a facilitys cooling system would be held; LBP-21-5, 94 NRC 1 (2021) sole responsibility for water quality standards rests with EPA or authorized state agency; LBP-21-5, 94 NRC 1 (2021)

ENVIRONMENTAL REPORT Category 1 issues need not be addressed by license renewal applicants, unless there is new and significant information; LBP-21-5, 94 NRC 1 (2021)

Category 2 issues are site-specific environmental issues that must be addressed by license renewal applicant or licensee; LBP-21-5, 94 NRC 1 (2021) license renewal applicant is not required to discuss need for power or economic costs and benefits of the proposed action or of alternatives unless such a discussion is essential to determine whether an alternative should be included in the ER; LBP-21-5, 94 NRC 1 (2021) license renewal applicant or licensee must discuss environmental impacts of alternatives; LBP-21-5, 94 NRC 1 (2021)

ENVIRONMENTAL REVIEW in evaluating reasonable environmental impacts, NRC need not analyze worst-case or remote and highly speculative scenarios; LBP-21-5, 94 NRC 1 (2021)

NRC is required to take a hard look at environmental impacts of a proposed major federal action that could significantly affect the environment; LBP-21-5, 94 NRC 1 (2021)

I-30

SUBJECT INDEX NRCs review does not require a determination of the best method for electricity generation, but rather limits review to adverse environmental effects and analyses of reasonable alternatives; LBP-21-5, 94 NRC 1 (2021)

NRCs review is limited by a rule of reason in that consideration of environmental impacts need not address all theoretical possibilities, but rather only those that have some reasonable possibility of occurring; LBP-21-5, 94 NRC 1 (2021) there must be an examination of every alternative within the nature and scope of the proposed action sufficient to permit a reasoned choice; LBP-21-5, 94 NRC 1 (2021)

ERROR reconsideration motion must demonstrate a compelling circumstance, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid; CLI-21-10, 94 NRC 57 (2021)

EVIDENCE licensee must demonstrate by clear and convincing evidence that it would have terminated employment regardless of the protected activity; LBP-21-6, 94 NRC 61 (2021)

NRC Staff must demonstrate by a preponderance of the evidence that licensee terminated employment based, at least in part, on employees engaging in protected activity; LBP-21-6, 94 NRC 61 (2021) unsupported hypothetical theories or projections, even in the form of an affidavit, will not support invocation of the hearing process; LBP-21-5, 94 NRC 1 (2021)

GENERIC ENVIRONMENTAL IMPACT STATEMENT petitioner may only challenge Category 1 generic conclusions if the rule is waived by the Commission after filing a successful waiver petition; LBP-21-5, 94 NRC 1 (2021)

GOOD CAUSE motions for leave to file amended contentions after the hearing request deadline will not be entertained absent a determination by the presiding officer that participant has demonstrated good cause; LBP-21-5, 94 NRC 1 (2021) newly arising information has long been recognized as providing good cause for acceptance of a late contention; LBP-21-5, 94 NRC 1 (2021)

HEARING REQUESTS unsupported hypothetical theories or projections, even in the form of an affidavit, will not support invocation of the hearing process; LBP-21-5, 94 NRC 1 (2021)

HEARING RIGHTS NRC is required to grant a hearing upon the request of any person whose interest may be affected by the proceeding; LBP-21-5, 94 NRC 1 (2021)

INTERVENTION petitioner must establish standing and proffer at least one admissible contention; LBP-21-5, 94 NRC 1 (2021)

INTERVENTION PETITIONS request must state name, address, and phone number of petitioner, nature of its right under the AEA to be made a party to the proceeding, nature and extent of its interest in the proceeding, and possible effect of any decision or order issued in the proceeding on its interest; LBP-21-5, 94 NRC 1 (2021)

INVESTIGATION discrimination investigation cannot be a violation when its subject suffered no disciplinary action, demotion, or change in job responsibilities during the course of the investigation; LBP-21-6, 94 NRC 61 (2021) prohibited personnel actions do not include violation based on employees complaint or an employers investigation of that complaint; LBP-21-6, 94 NRC 61 (2021)

LICENSE TRANSFERS transfer that does not authorize an activity that could result in a new discharge does not require certification under section 410 of the Clean Water Act; CLI-21-10, 94 NRC 57 (2021)

LICENSEE CHARACTER petitioner may not support a contention by assuming a licensee will violate agency regulations; LBP-21-5, 94 NRC 1 (2021)

I-31

SUBJECT INDEX LICENSING BOARDS, AUTHORITY board may not assume what petitioner is referring to, absent the requisite specificity; LBP-21-5, 94 NRC 1 (2021) licensing board must review petitioners information, facts, and expert opinions to determine whether they provide adequate support for the proffered contentions; LBP-21-5, 94 NRC 1 (2021)

NRC adjudicatory boards are expected to defer to the agency that issued the section 316(a) permit; LBP-21-5, 94 NRC 1 (2021)

MONITORING licensees must monitor neutron embrittlement to ensure that the reactor pressure vessel continues to have adequate fracture toughness to prevent brittle failure; LBP-21-5, 94 NRC 1 (2021) neutron embrittlement monitoring requirements are provided in 10 C.F.R. 50.61 and Part 50, Appendix G; LBP-21-5, 94 NRC 1 (2021) physical analysis of coupons from reactors to determine embrittlement is not required by NRC rules; LBP-21-5, 94 NRC 1 (2021) rather than employing software to monitor neutron embrittlement, licensee uses the embrittlement curve found in 10 C.F.R. 50.61; LBP-21-5, 94 NRC 1 (2021)

MOTIONS FOR RECONSIDERATION reconsideration motion may not be filed except upon leave of the adjudicatory body that rendered the decision; CLI-21-10, 94 NRC 57 (2021) reconsideration motion must demonstrate a compelling circumstance, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid; CLI-21-10, 94 NRC 57 (2021) reconsideration motion should be based on an elaboration of an argument already made, an overlooked controlling decision or principle of law, or a factual clarification; CLI-21-10, 94 NRC 57 (2021) reconsideration motion should not simply reargue matters already considered but rejected; CLI-21-10, 94 NRC 57 (2021)

MOTIONS TO STRIKE licensing board is not obliged to address new arguments raised in a reply if no motion to strike is filed; LBP-21-5, 94 NRC 1 (2021)

NATIONAL ENVIRONMENTAL POLICY ACT agencies are afforded broad discretion to keep their inquiries within appropriate and manageable boundaries; LBP-21-5, 94 NRC 1 (2021)

NEPA requires consideration of reasonable alternatives, not all conceivable ones; LBP-21-5, 94 NRC 1 (2021)

NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMIT expiration of NPDES permit before the end of the license renewal term does not affect compliance with 10 C.F.R. 51.53(c)(3)(ii)(B); LBP-21-5, 94 NRC 1 (2021) if state issues an update to any of water discharge permit documents, it is obligated to inform the NRC; LBP-21-5, 94 NRC 1 (2021) once applicant or licensee provides the information required by 10 C.F.R. 51.53(c)(3)(ii)(B), NRC is required by law to consider the permitting agencys decision on thermal impacts as binding; LBP-21-5, 94 NRC 1 (2021) state NPDES-permitting authority concluded that the cooling water intake represents interim best technology available for minimizing adverse environmental impact; LBP-21-5, 94 NRC 1 (2021)

NEED FOR POWER license renewal environmental report is not required to discuss need for power or economic costs and benefits of the proposed action or of alternatives unless such a discussion is essential to determine whether an alternative should be included in the ER; LBP-21-5, 94 NRC 1 (2021) scope of a subsequent license renewal proceeding does not include need for power; LBP-21-5, 94 NRC 1 (2021) to challenge the need for power, petitioner would first have to request a waiver of 10 C.F.R. 51.53(c)(2) and would have to demonstrate special circumstances unique to the facility; LBP-21-5, 94 NRC 1 (2021)

I-32

SUBJECT INDEX NOTIFICATION if state issues an update to any water discharge permit documents, it is obligated to inform the NRC; LBP-21-5, 94 NRC 1 (2021)

NRC STAFF REVIEW adequacy of a plants current licensing basis is not addressed during the license renewal safety review; LBP-21-5, 94 NRC 1 (2021) in evaluating reasonable environmental impacts, NRC need not analyze worst-case scenarios or those considered remote and highly speculative; LBP-21-5, 94 NRC 1 (2021) license renewal does not address operational issues because they are effectively addressed and maintained by ongoing agency oversight, review, and enforcement; LBP-21-5, 94 NRC 1 (2021) license renewal review focuses on those potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs; LBP-21-5, 94 NRC 1 (2021)

NEPA affords agencies broad discretion to keep their inquiries within appropriate and manageable boundaries; LBP-21-5, 94 NRC 1 (2021)

NEPA requires consideration of reasonable alternatives, not all conceivable ones; LBP-21-5, 94 NRC 1 (2021)

NRCs environmental review does not require a determination of the best method for electricity generation, but rather limits the review to the adverse environmental effects and analyses of reasonable alternatives; LBP-21-5, 94 NRC 1 (2021)

NRCs environmental review is limited by a rule of reason in that consideration of environmental impacts need not address all theoretical possibilities, but rather only those that have some reasonable possibility of occurring; LBP-21-5, 94 NRC 1 (2021) review of a license renewal application consists of simultaneous safety and environmental reviews; LBP-21-5, 94 NRC 1 (2021) safety review of license renewal applications conducted by NRC is limited to matters described in 10 C.F.R. 54.29(a)(1)-(2); LBP-21-5, 94 NRC 1 (2021)

Staff is required to take a hard look at environmental impacts of a proposed major federal action that could significantly affect the environment; LBP-21-5, 94 NRC 1 (2021)

NUCLEAR REGULATORY COMMISSION, AUTHORITY Clean Water Act was specifically intended to deprive NRC of the authority to review and judge environmental permits issued by the EPA or an authorized state agency; LBP-21-5, 94 NRC 1 (2021)

NEPA affords agencies broad discretion to keep their inquiries within appropriate and manageable boundaries; LBP-21-5, 94 NRC 1 (2021)

NRC adjudicatory boards are expected to defer to the agency that issued the section 316(a) permit; LBP-21-5, 94 NRC 1 (2021)

NRC cannot review and judge environmental permits issued under the Clean Water Act by the EPA or an authorized state agency; LBP-21-5, 94 NRC 1 (2021)

NRC has no regulatory power to ensure that environmentally superior energy alternatives are used in the future; LBP-21-5, 94 NRC 1 (2021) to understand the scope of the NRCs authority and responsibility, Commission looks first to the statute; LBP-21-6, 94 NRC 61 (2021)

OPERATING LICENSE RENEWAL adequacy of a plants current licensing basis is not addressed during the safety review; LBP-21-5, 94 NRC 1 (2021)

Category 1 issues need not be addressed by applicants unless there is new and significant information; LBP-21-5, 94 NRC 1 (2021)

Category 2 issues are site-specific environmental issues that must be addressed by license renewal applicant or licensee in its environmental report; LBP-21-5, 94 NRC 1 (2021) current licensing basis is a term of art comprehending various Commission requirements applicable to a specific plant that are in effect at the time of the license renewal; LBP-21-5, 94 NRC 1 (2021) environmental report is not required to discuss need for power or economic costs and benefits of the proposed action or of alternatives unless such a discussion is essential to determine whether an alternative should be included in the ER; LBP-21-5, 94 NRC 1 (2021) issues that are addressed on an ongoing basis need not be addressed during license renewal; LBP-21-5, 94 NRC 1 (2021)

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SUBJECT INDEX license renewal allows operation of a reactor over an additional period of time during which the reactor could be subject to the same equipment failures and personnel errors as during operations over the original period of the license; LBP-21-5, 94 NRC 1 (2021) license renewal does not address operational issues because these issues are effectively addressed and maintained by ongoing agency oversight, review, and enforcement; LBP-21-5, 94 NRC 1 (2021)

NRC can satisfy its NEPA obligations for license renewal by combining site-specific analysis of Category 2 issues with generic analysis of the Category 1 issues, including consideration of any new and significant information; LBP-21-5, 94 NRC 1 (2021)

NRC may grant a license renewal if it finds that specific safety and environmental requirements are satisfied; LBP-21-5, 94 NRC 1 (2021)

NRC review of a license renewal application consists of simultaneous safety and environmental reviews; LBP-21-5, 94 NRC 1 (2021)

NRCs license renewal review focuses on those potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs; LBP-21-5, 94 NRC 1 (2021) safety review of license renewal applications conducted by NRC is limited to matters described in 10 C.F.R. 54.29(a)(1)-(2); LBP-21-5, 94 NRC 1 (2021)

See also Subsequent Operating License Renewal OPERATING LICENSE RENEWAL PROCEEDINGS adjudicatory hearings in individual license renewal proceedings will share the same scope of issues as NRC Staff review; LBP-21-5, 94 NRC 1 (2021)

PERMITS Clean Water Act was specifically intended to deprive NRC of the authority to review and judge environmental permits issued by EPA or an authorized state agency; LBP-21-5, 94 NRC 1 (2021) permitting agency determines what cooling system a nuclear power facility may use and NRC factors impacts resulting from use of that system into the NEPA analysis; LBP-21-5, 94 NRC 1 (2021)

See also National Pollutant Discharge Elimination System Permit PRESSURIZED THERMAL SHOCK event or transient that causes severe overcooling concurrent with or followed by significant pressure in the reactor vessel is discussed; LBP-21-5, 94 NRC 1 (2021)

PRESUMPTION OF COMPLIANCE NRC does not presume that licensee will violate agency regulations wherever the opportunity arises; LBP-21-5, 94 NRC 1 (2021)

PROTECTED ACTIVITY employee who is suspended, threatened, or harassed is protected under False Claims Act regardless of whether retaliation takes the form of a concrete employment action; LBP-21-6, 94 NRC 61 (2021) licensee must demonstrate by clear and convincing evidence that it would have terminated employment regardless of the protected activity; LBP-21-6, 94 NRC 61 (2021) more than a dozen prohibited personnel actions are listed in the Whistleblower Protection Act; LBP-21-6, 94 NRC 61 (2021) no employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee engaged in protected activity; LBP-21-6, 94 NRC 61 (2021)

NRC Staff must demonstrate by a preponderance of the evidence that licensee terminated employment based, at least in part, on employees engaging in protected activity; LBP-21-6, 94 NRC 61 (2021) prohibited personnel actions do not include violation based on employees complaint or an employers investigation of that complaint; LBP-21-6, 94 NRC 61 (2021) relevant legal inquiry is not whether an employee was ultimately discharged or demoted, but instead, whether the challenged action would deter a reasonable worker from engaging in protected activity; LBP-21-6, 94 NRC 61 (2021) touchstone for protected activity is that it must implicate safety definitively and specifically; LBP-21-6, 94 NRC 61 (2021)

PROXIMITY PRESUMPTION no conflict exists between the basic requirements for standing, as applied in federal courts, and NRCs proximity presumption; LBP-21-5, 94 NRC 1 (2021)

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SUBJECT INDEX NRC has authorized use of a presumption that petitioner who resides, or otherwise has frequent contacts, within approximately 50 miles of the facility has standing; LBP-21-5, 94 NRC 1 (2021) presumption rests on finding that persons living within the roughly 50-mile radius of a facility face a realistic threat of harm if a release from the facility of radioactive material were to occur; LBP-21-5, 94 NRC 1 (2021)

REACTOR COOLING SYSTEMS coolant pressure boundary must be designed, fabricated, erected, and tested so as to have an extremely low probability of abnormal leakage, of rapidly propagating failure, and of gross rupture; LBP-21-5, 94 NRC 1 (2021)

REACTOR PRESSURE VESSEL for each capsule withdrawal, test procedures and reporting requirements must meet ASTM E 185 to the extent practicable for the configuration of the specimens in the capsule; LBP-21-5, 94 NRC 1 (2021) licensees must monitor neutron embrittlement to ensure that the reactor pressure vessel continues to have adequate fracture toughness to prevent brittle failure; LBP-21-5, 94 NRC 1 (2021) rather than employing software to monitor neutron embrittlement, licensee uses the embrittlement curve found in 10 C.F.R. 50.61; LBP-21-5, 94 NRC 1 (2021)

RPVs must be tested so as to have an extremely low probability of abnormal leakage, of rapidly propagating failure, and of gross rupture; LBP-21-5, 94 NRC 1 (2021) time-limited aging analysis is required for the RPV; LBP-21-5, 94 NRC 1 (2021)

REASONABLE ASSURANCE actions regarding aging management and time-limited aging analyses must provide reasonable assurance that activities authorized by the renewed license will continue to be conducted in accordance with the current licensing basis; LBP-21-5, 94 NRC 1 (2021)

REGULATIONS current licensing basis includes all of the regulatory requirements found in Parts 2, 19, 20, 21, 30, 40, 50, 55, 72, 73, and 100 with which the particular applicant must comply; LBP-21-5, 94 NRC 1 (2021)

REGULATIONS, INTERPRETATION section 51.53(c)(3) applies to applicants for subsequent renewed licenses; LBP-21-5, 94 NRC 1 (2021)

RENEWABLE ENERGY SOURCES contention that environmental report fails to adequately evaluate the full potential for renewable energy sources to offset loss of energy production is inadmissible; LBP-21-5, 94 NRC 1 (2021)

See also Solar Power REPLY BRIEFS licensing board is not obliged to address new arguments raised in a reply if no motion to strike is filed; LBP-21-5, 94 NRC 1 (2021) licensing boards may not entertain arguments advanced for the first time in a reply brief; LBP-21-5, 94 NRC 1 (2021)

REVIEW See Environmental Review; NRC Staff Review; Safety Review; Standard of Review RULE OF REASON hearing request must state name, address, and phone number of petitioner, nature of petitioners right under the AEA to be made a party to the proceeding, nature and extent of the petitioners interest in the proceeding, and possible effect of any decision or order issued in the proceeding on petitioners interest; LBP-21-5, 94 NRC 1 (2021) intervention petitioner must establish standing and proffer at least one admissible contention; LBP-21-5, 94 NRC 1 (2021)

NRCs environmental review is limited by a rule of reason in that consideration of environmental impacts need not address all theoretical possibilities, but rather only those that have some reasonable possibility of occurring; LBP-21-5, 94 NRC 1 (2021) reconsideration motion may not be filed except upon leave of the adjudicatory body that rendered the decision; CLI-21-10, 94 NRC 57 (2021) reconsideration motion must demonstrate a compelling circumstance, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid; CLI-21-10, 94 NRC 57 (2021)

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SUBJECT INDEX RULES OF PRACTICE party opposing summary disposition may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue of fact for hearing; LBP-21-6, 94 NRC 61 (2021) summary disposition standards in Subpart G proceedings are based on those applied by federal courts to motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure; LBP-21-6, 94 NRC 61 (2021)

SAFETY REVIEW adequacy of a plants current licensing basis is not addressed during the license renewal safety review; LBP-21-5, 94 NRC 1 (2021) only passive, long-lived structures and components are subject to an aging management review for license renewal; LBP-21-5, 94 NRC 1 (2021) review of license renewal applications conducted by NRC is limited to matters described in 10 C.F.R. 54.29(a)(1)-(2); LBP-21-5, 94 NRC 1 (2021) turbine is not safety-related and is otherwise excluded from review as an active component; LBP-21-5, 94 NRC 1 (2021)

SOLAR POWER assertion that solar plus storage alternative should have been considered as a reasonable alternative in the environmental report is inadmissible; LBP-21-5, 94 NRC 1 (2021) cost-benefit analysis of solar plus storage is not required if environmental impacts of license renewal are great enough to tip the balance against license renewal; LBP-21-5, 94 NRC 1 (2021)

SPECIAL CIRCUMSTANCES to challenge need for power, petitioner would first have to request a waiver of 10 C.F.R. 51.53(c)(2) and demonstrate special circumstances unique to the facility; LBP-21-5, 94 NRC 1 (2021)

STANDARD OF PROOF NRC Staff must demonstrate by a preponderance of the evidence that licensee terminated employment based, at least in part, on employees engaging in protected activity; LBP-21-6, 94 NRC 61 (2021)

STANDARD OF REVIEW licensing board must review petitioners information, facts, and expert opinions provided to determine whether they provide adequate support for the proffered contentions; LBP-21-5, 94 NRC 1 (2021)

STANDING TO INTERVENE contemporaneous judicial concepts require petitioner to allege an injury in fact that is fairly traceable to the challenged action and is likely to be redressed by a favorable decision; LBP-21-5, 94 NRC 1 (2021) no conflict exists between the basic requirements for standing, as applied in federal courts, and NRCs proximity presumption; LBP-21-5, 94 NRC 1 (2021)

NRC applies contemporaneous judicial concepts of standing; LBP-21-5, 94 NRC 1 (2021)

NRC has authorized use of a proximity presumption, which presumes that petitioner who resides, or otherwise has frequent contacts, within approximately 50 miles of the facility has standing; LBP-21-5, 94 NRC 1 (2021) proximity presumption rests on finding that persons living within the roughly 50-mile radius of a facility face a realistic threat of harm if a release from the facility of radioactive material were to occur; LBP-21-5, 94 NRC 1 (2021)

STANDING TO INTERVENE, ORGANIZATIONAL organization seeking to intervene on behalf of one or more of its members must demonstrate representational standing; LBP-21-5, 94 NRC 1 (2021)

STANDING TO INTERVENE, REPRESENTATIONAL organization seeking to intervene on behalf of one or more of its members must demonstrate representational standing; LBP-21-5, 94 NRC 1 (2021)

STATE REGULATORY REQUIREMENTS if state issues an update to any of water discharge permit documents, it is obligated to inform the NRC; LBP-21-5, 94 NRC 1 (2021)

STATUTORY CONSTRUCTION because language of substantive antidiscrimination provision differs from that of the antiretaliation provision in important ways, antiretaliation provision of Title VII of the Civil Rights Act reaches conduct not covered by its substantive antidiscrimination provision; LBP-21-6, 94 NRC 61 (2021)

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SUBJECT INDEX board should presume that Congress intended its different words to make a legal difference; LBP-21-6, 94 NRC 61 (2021) substantive antidiscrimination provision of Title VII of the Civil Rights Act is limited in scope to actions that affect employment or alter the conditions of the workplace, while no such limiting words appear in its antiretaliation provision; LBP-21-6, 94 NRC 61 (2021)

SUBSEQUENT OPERATING LICENSE RENEWAL applicant must demonstrate that effects of aging will be adequately managed so that the intended function(s) of structures, systems, or components requiring aging management review will be maintained consistent with the CLB for the period of extended operation; LBP-21-5, 94 NRC 1 (2021) expiration of NPDES permit before the end of the license renewal term does not affect compliance with 10 C.F.R. 51.53(c)(3)(ii)(B); LBP-21-5, 94 NRC 1 (2021) only if a time-limited aging analysis were being created or revised during a subsequent license renewal would a petitioner be able to challenge it; LBP-21-5, 94 NRC 1 (2021) only passive, long-lived structures and components are subject to an aging management review for license renewal; LBP-21-5, 94 NRC 1 (2021) scope of the aging management review is limited to structures and components that perform an intended function, as described in 10 C.F.R. § 54.4, without moving parts or without a change in configuration or properties and that are not subject to replacement based on a qualified life or specified time period; LBP-21-5, 94 NRC 1 (2021) section 51.53(c)(3) applies to applicants for subsequent renewed licenses; LBP-21-5, 94 NRC 1 (2021)

SUBSEQUENT OPERATING LICENSE RENEWAL APPLICATION adequacy of the current licensing basis is not an issue within the scope of a license renewal proceeding; LBP-21-5, 94 NRC 1 (2021) contention that environmental report fails to adequately evaluate the full potential for renewable energy sources to offset loss of energy production is inadmissible; LBP-21-5, 94 NRC 1 (2021) need for power is beyond the scope of the proceeding; LBP-21-5, 94 NRC 1 (2021) turbine is not safety-related and is otherwise excluded from review as an active component; LBP-21-5, 94 NRC 1 (2021)

SUMMARY

DISPOSITION all facts must be construed in the light most favorable to the nonmoving party, and any doubt as to the existence of a genuine issue of material fact should be resolved against summary disposition; LBP-21-6, 94 NRC 61 (2021) board may grant summary disposition if the relevant pleadings show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law; LBP-21-6, 94 NRC 61 (2021) caution should be exercised in granting summary disposition, which may be denied if there is reason to believe that the better course would be to proceed to a full hearing; LBP-21-6, 94 NRC 61 (2021) opponent may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue of fact for hearing; LBP-21-6, 94 NRC 61 (2021) standards in Subpart G proceeding are based on those applied by federal courts to motions for summary judgment; LBP-21-6, 94 NRC 61 (2021)

SUMMARY

JUDGMENT denial of summary judgment has not been based solely on imposition of administrative leave, but also its conditions; LBP-21-6, 94 NRC 61 (2021) where continued employment was explicitly conditioned on plaintiffs completion of certain tasks that employer prevented plaintiff from completing, summary judgment was denied; LBP-21-6, 94 NRC 61 (2021)

SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT NRC Staff uses the environmental report to create a supplement; LBP-21-5, 94 NRC 1 (2021)

TERMINATION OF PROCEEDING board grants the parties joint motion for termination of enforcement proceeding after NRC Staff rescinds notice of violation and imposition of civil penalty; LBP-21-7, 94 NRC 82 (2021)

TESTIMONY bare assertions and speculation do not support an admissible contention, even if supported by an expert; LBP-21-5, 94 NRC 1 (2021)

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SUBJECT INDEX expert opinion that merely states a conclusion 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; LBP-21-5, 94 NRC 1 (2021)

TESTING for each capsule withdrawal, test procedures and reporting requirements must meet ASTM E 185 to the extent practicable for the configuration of the specimens in the capsule; LBP-21-5, 94 NRC 1 (2021) reactor vessels must be tested so as to have an extremely low probability of abnormal leakage, of rapidly propagating failure, and of gross rupture; LBP-21-5, 94 NRC 1 (2021)

THERMAL POLLUTION contention alleging that environmental report fails to analyze alternative of thermal pollution mitigation as a means of reducing threats to aquatic biota and migratory birds is inadmissible; LBP-21-5, 94 NRC 1 (2021) once applicant or licensee provides the information required by 10 C.F.R. 51.53(c)(3)(ii)(B), NRC is required by law to consider the permitting agencys decision on thermal impacts as binding; LBP-21-5, 94 NRC 1 (2021) section 51.53(c)(3)(ii)(B) only requires an assessment of entrainment, impingement, and thermal impacts if applicant or licensee cannot provide a current determination under Clean Water Act section 316(b);

LBP-21-5, 94 NRC 1 (2021)

TIME LIMITED AGING ANALYSES actions regarding TLAA must provide reasonable assurance that activities authorized by the renewed license will continue to be conducted in accordance with the current licensing basis; LBP-21-5, 94 NRC 1 (2021) all TLAAs from the initial license renewal are incorporated into the current licensing basis; LBP-21-5, 94 NRC 1 (2021)

NRC permits licensees to address TLAAs in one of three ways; LBP-21-5, 94 NRC 1 (2021) only if a TLAA were being created or revised during a subsequent license renewal would a petitioner be able to challenge it; LBP-21-5, 94 NRC 1 (2021) petitioners suggestion that existing TLAA is inadequate or error-prone constitutes a collateral attack on NRC rules; LBP-21-5, 94 NRC 1 (2021) reactor pressure vessel is subject to time-limited aging analysis; LBP-21-5, 94 NRC 1 (2021)

TURBINES contention that plant has an elevated risk of a turbine missile accident owing to the poor alignment of its major buildings and structures is inadmissible; LBP-21-5, 94 NRC 1 (2021) steam turbine performs its intended functions with moving parts and thus is not subject to an aging management review; LBP-21-5, 94 NRC 1 (2021) turbine is not safety-related and is otherwise excluded from review as an active component; LBP-21-5, 94 NRC 1 (2021)

VIOLATIONS administrative leave with full pay and benefits did not change employees compensation, terms, conditions, or privileges of employment and thus did not violate ERA section 211; LBP-21-6, 94 NRC 61 (2021) discrimination investigation cannot be a violation when its subject suffered no disciplinary action, demotion, or change in job responsibilities during the investigation; LBP-21-6, 94 NRC 61 (2021) exceptionally dilatory investigation while an employee is on leave might give rise to a violation; LBP-21-6, 94 NRC 61 (2021) paid suspension is neither a refusal to hire nor a termination, and by design it does not change compensation; LBP-21-6, 94 NRC 61 (2021) placing an employee on paid administrative leave where there is no presumption of termination is not an adverse employment action; LBP-21-6, 94 NRC 61 (2021) prohibited personnel actions do not include violation based on employees complaint or an employers investigation of that complaint; LBP-21-6, 94 NRC 61 (2021)

WAIVER OF RULE petitioner may only challenge Category 1 generic conclusions if the rule is waived by the Commission after filing a successful waiver petition; LBP-21-5, 94 NRC 1 (2021)

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SUBJECT INDEX to challenge the need for power, petitioner would first have to request a waiver of 10 C.F.R. 51.53(c)(2) and would have to demonstrate special circumstances unique to the facility; LBP-21-5, 94 NRC 1 (2021)

WATER QUALITY duplication is to be avoided by leaving to EPA and the states the decision as to the water pollution control criteria to which a facilitys cooling system would be held; LBP-21-5, 94 NRC 1 (2021)

EPA or authorized state agency has sole responsibility for standards; LBP-21-5, 94 NRC 1 (2021)

WHISTLEBLOWERS more than a dozen prohibited personnel actions are listed in the Whistleblower Protection Act; LBP-21-6, 94 NRC 61 (2021) only retaliation that takes the form of an adverse change in the terms and conditions of employment is prohibited, not every type of retaliation that might be possible; LBP-21-6, 94 NRC 61 (2021) protected activity includes providing information about alleged violations to the Commission or to an NRC licensee, testifying in Commission and other proceedings, and refusing to engage in an unlawful practice; LBP-21-6, 94 NRC 61 (2021)

WILDLIFE contention alleging that environmental report fails to analyze alternative of thermal pollution mitigation as a means of reducing threats to aquatic biota and migratory birds is inadmissible; LBP-21-5, 94 NRC 1 (2021)

WITNESSES, EXPERT bare assertions and speculation do not support an admissible contention, even if supported by an expert; LBP-21-5, 94 NRC 1 (2021) expert opinion that merely states a conclusion 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; LBP-21-5, 94 NRC 1 (2021)

WORK ENVIRONMENT relevant legal inquiry is not whether an employee was ultimately discharged or demoted, but instead, whether the challenged action would deter a reasonable worker from engaging in protected activity; LBP-21-6, 94 NRC 61 (2021)

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FACILITY INDEX POINT BEACH NUCLEAR PLANT, Units 1 and 2); Docket Nos. 50-266-SLR, 50-301-SLR SUBSEQUENT OPERATING LICENSE RENEWAL; July 26, 2021; MEMORANDUM AND ORDER (Denying Physicians for Social Responsibility Wisconsins Request for Hearing); LBP-21-5, 94 NRC 1 (2021)

THREE MILE ISLAND NUCLEAR STATION, Unit 2; Docket No. 50-320-LT LICENSE TRANSFER; August 31, 2021; MEMORANDUM AND ORDER; CLI-21-10, 94 NRC 57 (2021)

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