ML11249A158

NRC Staff'S Answer in Opposition to Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima DAI-ICHI Accident

ML11249A158
Person / Time
Site:	Davis Besse
Issue date:	09/06/2011
From:	Harris B NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 20922, 50-346-LR, ASLBP 11-907-01-LR-BD01
Download: ML11249A158 (47)

Text

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

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FIRSTENERGY NUCLEAR OPERATING CO. ) Docket No. 50-346-LRA

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(Davis-Besse Nuclear Power Station, Unit 1) )

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NRC STAFFS ANSWER IN OPPOSITION TO MOTION TO ADMIT NEW CONTENTION REGARDING THE SAFETY AND ENVIRONMENTAL IMPLICATIONS OF THE NUCLEAR REGULATORY COMMISSION TASK FORCE REPORT ON THE FUKUSHIMA DAI-ICHI ACCIDENT Brian G. Harris Counsel for NRC Staff September 6, 2011

ii TABLE OF CONTENTS INTRODUCTION ................................................................................................................... BACKGROUND ..................................................................................................................... DISCUSSION......................................................................................................................... I. Intervenors Failed to Raise a Challenge to Davis-Besses License Renewal Application or Environmental Report........................................................... II. Intervenors Contention Raises Issues Beyond the Scope of This Proceeding .......... A. The Contention is Beyond the Scope of this Proceeding Because It Raises Issues that will be Addressed by the Commission Generically .................................................... B. The Contention is Beyond the Scope of the Proceeding Because it Challenges the Commissions Generic Determinations in Table B-1 on the Environmental Impacts of Design Basis and Severe Accidents ................................. C. The Contention is Beyond the Scope of this Proceeding Because it Challenges the Commissions Regulations in 10 C.F.R. §§ 51.45(c) and 51.53(c)........................... D. Emergency Planning Issues Raised by the Contention are Beyond the Scope of this Proceeding .............................................................................................................. E. The Contention is Beyond the Scope of the Proceeding Because it is a Generalized Attack on the Commissions Safety Regulations and the Adequacy of Davis-Besses Current Licensing Basis .............................................. III. The NEPA Contention Does Not Raise a Material Issue ......................................... A. The Task Force Report Makes Safety Recommendations That Do Not Relate to the NEPA Contentions Environmental Concerns ..................................... B. The NEPA Contention Does Not Identify the Specific Portions of the Application It Challenges ......................................................................................... C. The NEPA Contention Does Not Raise a Material Contention with Respect to Severe Accidents .................................................................................. D. The NEPA Contention Does Not Raise a Material Challenge to the SAMA Analysis ............................................................................. 1. NEPA Does Not Require Implementation of Mitigation Measures ........................ 2. The NEPA Contention Does Not Raise a Material Dispute on Any Specific SAMA .............................................................................................. E. The NEPA Contention Does Not Raise a Material Claim with Respect to Need for Power...................................................................................................................... IV. The NEPA Contention Does Not Rely on an Adequate Factual Basis ..................... A. None of the TFRs Recommendations Relate to SAMAs ......................................... B. Dr. Makhijani's Declaration Does Not Support the Petitions Claims ........................ C. The TFR Does Not Question Whether the NRC Can Continue to License Reactors D. Intervenors Reliance on Marsh v. Oregon is Misplaced ......................................... E. Conclusion ..............................................................................................................

iii V. The Contention is Untimely, Because the Issues Discussed in the Task Force Report Have Been Previously Available and Were Addressed in Intervenors Previous Petitions and in the Commonwealth of Massachusetts June 2, 2011 Filing ......................................................................... VI. Suspension Request ............................................................................................... CONCLUSION .....................................................................................................................

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

)

FIRSTENERGY NUCLEAR OPERATING CO. ) Docket No. 50-346-LRA

)

(Davis-Besse Nuclear Power Station, Unit 1) )

)

NRC STAFFS ANSWER IN OPPOSITION TO MOTION TO ADMIT NEW CONTENTION REGARDING THE SAFETY AND ENVIRONMENTAL IMPLICATIONS OF THE NUCLEAR REGULATORY COMMISSION TASK FORCE REPORT ON THE FUKUSHIMA DAI-ICHI ACCIDENT INTRODUCTION Pursuant to 10 C.F.R. § 2.309(h)(1), the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby files its answer to the Contention in Support of Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-ichi Accident, jointly filed by Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Don't Waste Michigan, and Green Party of Ohio (collectively Intervenors) 1 regarding FirstEnergy Nuclear Operating Companys (FENOC) license renewal application for Davis-Besse Nuclear Power Station, Unit 1 (Davis-Besse). 2 1

See Contention Regarding NEPA Requirement to Address Safety and Environmental Implications of The Fukushima Task Force Report (NEPA Contention) (Aug. 12, 2011) (Agencywide Document Access and Management System (ADAMS) Accession No. ML11224A000); Contention in Support of Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-ichi Accident (Aug. 12, 2011)

(ADAMS Accession No. ML11224A000). See also Motion to Admit New Contention Regarding the Safety And Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-ichi Accident (Motion to Admit New Contention) (Aug. 11, 2011) (ADAMS Accession No. ML11223A483).

2 Letter from Barry S. Allen, Vice President, dated August 27, 2010, transmitting the license renewal application for Davis-Besse (ADAMS Accession No. ML1024505650) (LRA).

Intervenors contention is inadmissible because (1) it fails to challenge the Davis-Besse LRA or environmental report (ER), (2) the issues raised are outside the scope of this license renewal proceeding, (3) the issues raised are immaterial to this proceedings, (4) the proffered basis is inadequate to support the contention, and (5) the contention is untimely.

BACKGROUND This proceeding concerns FENOCs August 27, 2010 application to renew its operating license for Davis-Besse for an additional twenty years from the current expiration date of April 22, 2017. 3 The Staff accepted the LRA for review, and on October 25, 2010, published a Federal Register Notice providing a Notice of Opportunity for Hearing. 4 On December 27, 2010, Joint Petitioners filed a petition to intervene. 5 On March 11, 2011, the Fukushima Dai-ichi site in Japan experienced an earthquake followed by a tsunami, which damaged some of the reactors located at the site. On April 26, 2011, the Atomic Safety and Licensing Board (Board) admitted in part two of four originally proffered contentions. 6 On April 14, 2011, multiple intervenors in numerous license renewal proceedings, COL proceedings, and rulemakings asked the Commission to stay all reactor licensing decisions. 7 The near-term task force publicly issued its report title Recommendations for Enhancing Reactor Safety in the 21st Century: The 3

LRA at 1.2-1. If the LRA is approved, Davis-Besses new license expiration date would be April 22, 2037.

4 Notice of Acceptance for Docketing of the Application, Notice of Opportunity for Hearing for Facility Operating License No. NPF-003 for an Additional 20-Year Period; FirstEnergy Nuclear Operating Company, Davis-Besse Nuclear Power Station, Unit 1, 75 Fed. Reg. 65,528 (Oct. 25, 2010).

5 Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio Request for Public Hearing and Petition for Leave to Intervene (Dec. 27, 2010).

6 Because the Staffs answer to the Petition to Intervene extensively discussed the contention admissibility standards, the Staff will not repeat them here.

7 Emergency Petition To Suspend All Pending Reactor Licensing Decisions And Related Rulemaking Decisions Pending Investigation Of Lessons Learned From Fukushima Daiichi Nuclear Power Station Accident (Emergency Peition) (April 14, 2011) (ADAMS Accession No. ML111040355).

The Emergency Petition was filed over multiple days by various parties involved in the disparate license renewal and COL proceedings and remains pending before the Commission.

Near-Term Task Force review of Insights from the Fukushima Dai-ichi Accident (TFR) on July 12, 2011. On August 11, 2011, Petitioners filed the present contention in the Davis-Besse license renewal proceeding. 8 The Davis-Besse Petitioners contention states:

The ER for Seabrook license renewal fails to satisfy the requirements of NEPA because it does not address the new and significant environmental implications of the findings and recommendations raised by the NRCs Fukushima Task Force Report. As required by NEPA and the NRC regulations, these implications must be addressed in the ER. 9 The Petition also references rulemaking petition seeking to suspend any regulations that would preclude full consideration of the environmental implications of the Task Force Report. 10 The Petition states that [a] copy of the rulemaking petition is attached. 11 No such rulemaking petition has been served on the parties to the Davis-Besse proceeding. 12 8

Similar contentions have been filed in other proceedings involving both COL and license renewal proceedings. But only the Davis-Besse Petitioners chose not to file a contention challenging the applicable plants LRA, ER, applicable EIS and incorporate by reference a contention filed in an unrelated proceeding.

9 NEPA Contention at 5. Petitioners contention simply attached the contention filed in the Seabrook Nuclear Power Plant License Renewal proceeding (Seabrook). Compare Contention in Support of Motion to Admit New Contention Regarding the Safety and Environmental implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-ichi Accident (Seabrook Contention) (Aug. 11, 2011) (ADAMS Accession No. ML11223A3760). For clarity, the Staff will address the Davis-Besse ER and LRA, even though Intervenors address the Seabrook ER and LRA.

10 NEPA Contention at 4.

11 Id.

12 While a Davis-Besse rulemaking petition was not served by the Davis-Besse Petitioners, for the sake of completeness, the Staff will briefly address the rulemaking petition served on the parties in the Seabrook proceeding in its argument. See, e.g., Petition for Rulemaking Pursuant to 10 CFR § 2.802; Rulemaking Petition to Rescind Prohibition against Consideration of Environmental Impacts of Severe Reactor and Spent Fuel Pool Accidents and Request to Suspend Licensing Decision (Petition for Rulemaking) (Aug 11, 2011) (ADAMS Accession No. ML11223A372) (served in the Seabrook license renewal proceeding).

DISCUSSION I. Intervenors Failed to Raise a Challenge to Davis-Besses License Renewal Application or Environmental Report Intervenors reliance on a contention filed in another proceeding 13 without any reference or challenge to Davis-Besses License Renewal Application (LRA) or the accompanying Environmental Report (ER) is misplaced and unsupportable under the Commissions admissibility standards. Under 10 C.F.R. § 2.309(f)(1)(vi), the petitioner must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief . 14 Here, Intervenors have essentially abandoned any attempt to comply with the NRCs regulations or challenge any specific portion of the Davis-Besse LRA or ER. 15 Intervenors contention consists simply of a single paragraph incorporating by reference a late-filed contention from the Seabrook license renewal proceeding. 16 Nowhere in the Intervenors filings or the incorporated Seabrook Contention do intervenors allege any dispute with the Davis-Besse LRA or ER. Intervenors do not even attempt to assert that the LRA and ER for each plant are so similar that a dispute with Seabrooks LRA is a dispute with Davis-13 NEPA Contention. Compare Seabrook Contention.

14 10 C.F.R. § 2.309(f)(1)(vi).

15 The Statement of the contention challenges Seabrooks ER but the bases address the Seabrooks Draft Supplementary Environmental Impact Statement (DSEIS), NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 46, Regarding Seabrook Station, Draft Report for Comment at 2-1 (July, 2011) (ADAMS Accession No. ML11213A024).

See Petition at 15 - 26. The Petitioners cannot challenge the Staffs DSEIS for Davis-Besse because it has not been issued.

16 Contention Regarding NEPA Requirement to Address Safety and Environmental Implications of the Fukushima Task Force Report, (Aug. 12, 2011) (ADAMS Accession No. ML11224A000).

Besses LRA. Careful review of the Seabrook contention shows that the Seabrook intervenors 17 ostensibly identified a dispute with the Seabrook DSEIS. 18 Intervenors, here, have not alleged any dispute with the Davis-Besse LRA and ER. 19 Intervenors seem to expect that the Board and the other parties will search the LRA and ER to identify similarities with the Seabrook documents and divine the dispute Intervenors meant to identify. The Commissions rules are explicit that this type of pleading could not support the basis of a valid contention. 20 The Commission has warned intervenors against this generalized, unspecific pleading. 21 The Commission cautioned parties that [I]t is not up to the boards to search through pleadings or other materials to uncover arguments and support never advanced by [intervenors] . It is a contentions proponent not the board, that is responsible for formulating the contention and providing the necessary information to satisfy the basis requirement for the admission of contentions. 22 Under Section 2.309(f)(1)(vi), a contention is inadmissible where it fails to contain sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact and does not include references to the specific portions of the application that petitioners may dispute. 23 As such, Intervenors simply failed to identify any dispute with Davis-Besses LRA and ER and the contention is inadmissible.

17 Beyond Nuclear is a party to both the Seabrook and Davis-Besse license renewal proceedings.

18 Seabrook Contention at 15 - 22.

19 The DSEIS is currently scheduled to be issued near the end of October 2011 20 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006).

21 Id.

22 Id. (citing Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998)); PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 304-05 (2007); Shieldalloy Metallurgical Corp. (Amendment Request for Decommissioning of the Newfield, New Jersey Facility), LBP-07-5, 65 NRC 341, 347 (2007).

23 Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-04-28, 60 NRC 548, 576 (2004); Texas Utilities Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-37, 36 NRC 370, 384 (1992).

Similarly, the Board has already warned Intervenors regarding the rigor of their filings using similar techniques. Intervenors original petition simply copied wholesale one of the contentions alleged in the Seabrook license renewal proceeding and then attempted to correct all the references 9 days later to identify its issues with FirstEnergy and the Davis-Besse LRA and ER. 24 Again, similar issues arose in Intervenors reply and the re-filing of their reply ordered by the Board. 25 Now, despite the Boards warning regarding the rigor of its filings, 26 Intervenors attached the contention filed in Seabrook apparently without making any attempt to identify any specific challenges to Davis-Besss LRA and ER. 27 The consistent lack of rigor in Intervenors latest filing undermines the proceedings fairness to other parties by essentially requiring the other parties to search through materials in an effort to divine actual disputes. 28 Since Intervenors have again not identified any actual disputes with Davis-Besses LRA or ER, this failure alone warrants that this contention is inadmissible.

24 See generally Request for a Public Hearing and Petition for Leave to Intervene in the Matter of FirstEnergys Application to Relicense the Davis-Besse Nuclear Power Plant (Facility Operating License No-NFP-003, Docket No. 50-346, NRC-2010-0299) for 20 Additional Years of Extended Operation (Dec.

27. 2010); Errata (January 5, 2011).

25 See Joint Intervenors Combined Reply in Support of Petition for Leave to Intervene Intervenors Reply) (January 28, 2011); Errata (February 9, 2011); Joint Intervenors Combined Reply in Support of Petition for Leave to Intervene (Corrected Version) (February 23, 2011); Joint Intervenors nd Combined Reply in Support of Petition for Leave to Intervene (2 , Final Corrected Version) (February 24, 2011).

26 See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP11-13, 73 NRC ___ (April 26, 2011) (slip op. at 7 - 8); Licensing Board Order (Granting Motion To Strike and Requiring Re-filing of Reply) (Feb. 18,2011) at 4 (unpublished). (granting motion to strike portions of Intervenors Reply).

27 One of the parties, Beyond Nuclear, is party to both the Seabrook license renewal proceeding and Davis-Besse. As shown by their filing, Beyond Nuclear was able to identify specific challenges to the Seabrook ER for the Board and parties in that proceeding but was unable to identify similar specific challenges to the Davis-Besse LRA and ER for the Board and parties in this proceeding.

28 USEC, CLI-06-10, 63 NRC at 457 (2006) (citing Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC at 22).

II. Intervenors Contention Raises Issues Beyond the Scope of This Proceeding Intervenors have not demonstrated that the issues raised by their Contention are within the scope of this proceeding as required by 10 C.F.R. § 2.309(f)(1)(iii). Instead, Intervenors proffer, in a single sentence, a generalized claim that the Contention is within scope because it requests compliance with National Environmental Policy Act (NEPA) and NRC regulations implementing NEPA. NEPA Contention at 27. As explained in detail below, the contention raises issues that are outside the scope of this proceeding and thus must be rejected.

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 567 (2005). Specifically, the Contention (1) seeks to litigate in an individual proceeding the TFRs recommendations, which are being addressed by the Commission generically; (2) impermissibly challenges the generic determinations in Table B-1 of Appendix B to Part 51 that the environmental consequences of design basis and severe (i.e., beyond design basis) accidents are small without requesting a waiver of those regulations in this proceeding; (3) challenges the Commissions regulations in 10 C.F.R. §§ 51.45 and 51.53(c); (4) raises emergency planning issues, which are outside the scope of license renewal; and (5) is a generalized attack on the Commissions safety regulations. Consequently, the Contention is inadmissible.

A. The Contention is Beyond the Scope of this Proceeding Because It Raises Issues that will be Addressed by the Commission Generically Intervenors assert that its Contention is based upon the TFRs findings and recommendations and concede that its contention would be moot if the Commission adopted all of the TFRs recommendations. NEPA Contention at 5, 29. Intervenors do not, however, assert that these recommendations must be resolved in individual proceedings and, in fact, Intervenors acknowledge that generic resolution may be more appropriate. See NEPA Contention at 5.

By their terms, the TFRs recommendations are intended to apply to all existing plants, regardless of their license renewal status. TFR at ix. Only recommendation 5 is limited to

plants with specific containment types - BWR Mark I and Mark II containments. 29 Id. The TFR also outlines a suggested approach to implement its recommendations. TFR at Appendix A.

The TFR envisions that many of its recommendations will ultimately be considered and may be implemented via the rulemaking process using orders, as appropriate, to implement new requirements while the rulemaking process is ongoing. Compare TFR Appendix A at 73 Recommended Rulemaking Activities with TFR Appendix A at 74-75 Recommended Orders.

Currently the TFRs recommendations are being considered by the Commission for application to all operating plants. See Staff Requirements Memorandum/SECY-11-0093, Near-Term Report and Recommendations for Agency Actions Following the Events in Japan, Aug. 18, 2011 (ADAMS Accession no. ML112310021).

In accordance with long-standing NRC policy, licensing boards are not to entertain contentions on topics that are or are likely to become the subject of general rulemaking.

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-10-19, 72 NRC__ (July 8, 2010) (slip op. at 2-3) (ADAMS Accession No. ML101890873). Further, if a party is not satisfied with the Commissions generic resolution of an issue, the remedy lies in the rulemaking process, not in an individual adjudicatory proceeding. Id. at 3. Because TFR recommendations are generic in nature and, if adopted by the Commission will likely become the topic of orders and general rulemaking, the Contention may not be litigated within the scope of any individual proceeding.

B. The Contention is Beyond the Scope of the Proceeding Because it Challenges the Commissions Generic Determinations in Table B-1 on the Environmental Impacts of Design Basis and Severe Accidents Intervenors Contention is an explicit, direct attack on the Commissions generic determinations in 10 C.F.R Part 51 Appendix A, Table B-1 (Table B-1), that the environmental 29 Davis-Besse is a pressurized water reactor with a dry, ambient pressure containment.

Therefore recommendations related to Mark I and Mark II containments are inapplicable to Davis-Besse.

impacts of design basis accidents and the probability-weighted consequences of severe accidents are small. Specifically, Intervenors assert that the TFR calls into question whether

[the conclusions in Table B-1] represent a full, accurate description and examination of all the design basis accidents having the potential for releases to the environment. NEPA Contention at 14. The petition for rulemaking accompanying the NEPA Contention and motion to admit the NEPA Contention provides further indication that the Contention is intended to challenge the Commissions generic determinations in Table B-1. The petition for rulemaking specifically requests that the Commission rescind regulations in 10 C.F.R. Part 51 that make generic conclusions about the environmental impacts of severe reactor accidents and spent fuel pool accidents and that preclude consideration of those issues in individual licensing proceedings.

Rulemaking Petition at 1. 30 The Commission has limited contentions raising environmental issues in license renewal proceedings to those issues that are affected by license renewal and have not been addressed by rulemaking or on a generic basis. Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 11, 16 (2001). While severe accident mitigation alternatives is a Category 2 issue, i.e., requires site-specific review, the Commission has made a generic determination that environmental impacts for both design basis and severe (i.e., beyond design basis) accidents are small for all plants. See 10 C.F.R. Part 51 Appendix A, 30 The Petition for Rulemaking does not request a waiver of Commission regulations pursuant to 10 C.F.R. § 2.335. The Petition for Rulemaking clearly requests that the Commission rescind, not waive, regulations in Part 51. Furthermore, the Petition for Rulemaking makes no attempt to address the Millstone factors for wavier of generic environmental findings in license renewal proceedings. Millstone, CLI-05-24, 62 NRC at 559-60. The four Millstone factors are: (i) the rules strict application would not serve the purposes for which [it] was adopted; (ii) the movant has alleged special circumstances that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived; (iii) those circumstances are unique to the facility rather than common to a large class of facilities; and (iv) a waiver of the regulation is necessary to reach a significant safety problem. Id. Thus, even if the Petition for Rulemaking on its own or in combination with the NEPA Contention is viewed as a request for waiver, Intervenors have not demonstrated, inter alia, special circumstances that are unique to Davis-Besse. In fact, Petitioners admit that it may be more appropriate for the NRC to consider [the TFRs conclusions and recommendations] in generic rather than site-specific environmental proceedings. NEPA Contention at 5.

Table B-1 (Jan. 1, 2011) at 65. With respect to spent fuel pools, the Commission has generically determined that the environmental impacts of spent fuel storage are small. Id. at 67.

Furthermore, the Commission has specifically stated, [B]ecause onsite storage of spent fuel during the license renewal term is a Category 1 issue, and as such explicitly has been found not to warrant any additional site-specific analysis of mitigation measures, the required SAMA analysis for license renewal is intended to focus on reactor accidents. Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Station), CLI 14, 71 NRC __ (Jun. 17, 2010) (slip op. at 32) (ADAMS Accession No. ML101680369). The Commission further explained, a SAMA that addresses [spent fuel pool] accidents would not be expected to have a significant impact on total risk for the site because the spent fuel pool accident risk level is less than that for a reactor accident. Id. at 37 (quotations omitted and alteration in original). Thus, these generic findings, codified in NRC regulations, are not subject to challenge absent a waiver of their application in a particular adjudicatory proceeding. See 10 C.F.R. § 2.335(a); Turkey Point, CLI-01-17, 54 NRC at 11, 16. Intervenors have not requested a waiver of the generic determinations in Table B-1 in this proceeding. Therefore, the Contention is inadmissible.

C. The Contention is Beyond the Scope of this Proceeding Because it Challenges the Commissions Regulations in 10 C.F.R. §§ 51.45(c) and 51.53(c)

Intervenors Contention is beyond the scope of this proceeding because it impermissibly challenges the Commissions regulations in 10 C.F.R. §§ 51.45(c) and 51.53(c)(2). Citing 10 C.F.R. § 51.45(c), Intervenors assert that the Davis-Besses ER must include consideration of the economic, technical, and other benefits and costs of the proposed actions an alternatives.

NEPA Contention at 11. Intervenors then assert, based on their reading of the TFRs recommendations, that severe accidents must be considered within the scope of design basis accidents and that all severe accident mitigation measures must be implemented without regard to cost. NEPA Contention at 15. The Intervenors then assert, based on Dr. Makhijanis

declaration, that the cost of implementing severe accident mitigation measures could be so significant that other alternatives such as the no-action alternative and other alternative electricity production sources could be more attractive and that these costs must be considered pursuant to 10 C.F.R. § 51.45(c). Id. at 23.

The Intervenors assertions are not supported under 10 C.F.R. § 51.45(c) because the portion of § 51.45(c). Intervenors rely upon does not apply to license renewal.

Section 51.45(c) clearly states: Environmental reports prepared at the license renewal stage need not discuss the economic or technical benefits and costs of either the proposed action or alternatives . Section 51.45(c) further states: environmental reports prepared under § 51.53(c) [i.e., at the license renewal stage] need not discuss issues not related to the environmental effects of the proposed action and its alternatives. Section 51.53(c)(2) reiterates this, stating:

The 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 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. The environmental report need not discuss other issues not related to the environmental effects of the proposed action and the alternatives.

Thus, to the extent that Intervenors contend that the costs (or benefits) of implementing the TFR recommendations need to be considered for license renewal, they are requesting that Davis-Besses ER consider matters they are not required by the regulations to consider. Thus, rather than the rule supporting the Intervenors claims, Intervenors are in fact challenging the rule, something it cannot do, absent a waiver, in an individual licensing proceeding. 10 C.F.R. § 2.335. Consequently, the Contention is beyond the scope of this proceeding.

D. Emergency Planning Issues Raised by the Contention are Beyond the Scope of this Proceeding The NEPA Contention asserts that the Davis-Besses ER fails to satisfy NEPA because it does not address the environmental implications of the TFRs recommendations. Later in the NEPA Contention, however, Intervenors assert that their Contention would be moot if all of the TFRs recommendations are adopted by the Commission. NEPA Contention at 29.

Recommendations 9-11 in the TFR are related to emergency planning. TFR at ix. The Commission has clearly stated that emergency planning issues are not within the scope of license renewal proceedings. Turkey Point, CLI-01-17, 54 NRC at 9. Therefore, to the extent the Contention seeks implementation of TFR recommendations related to emergency planning, it is inadmissible.

E. The Contention is Beyond the Scope of the Proceeding Because it is a Generalized Attack on the Commissions Safety Regulations and the Adequacy of Davis-Besses Current Licensing Basis Although the NEPA Contention focuses on compliance with NEPA, a number of assertions in the Petition generally challenge the adequacy of the Commissions safety regulations and thus the adequacy of Davis-Besses current licensing basis (CLB). These matters are beyond the scope of this license renewal proceeding. In this regard, Intervenors assert, based upon its reading of the TFR and its recommendations, that the Commissions current regulatory requirements do not provide reasonable assurance of adequate protection because the Commissions regulations do not include mandatory safety requirements on severe accidents. NEPA Contention at 8. 31 Intervenors assert that the Commissions current regulatory scheme requires significant re-evaluation and revision in order to expand or upgrade 31 This statement by the Intervenorsis not accurate. For example, as the TFR states, the Commission has regulatory requirements for some beyond-design basis accidents in 10 C.F.R. § 50.63, Loss of All Alternating Current Power, 10 C.F.R. § 50.62 Requirements for Reducing the Risk from Anticipated Transients without Scram (ATWS) for Light-Water-Cooled Nuclear Power Plants, and 50.54(hh), requiring procedures for mitigating beyond-design basis fires and explosions. See TFR at 16-17.

the design basis for reactor safety recommended by the Task Force Report. NEPA Contention at 9. It does not, however, assert that the TFRs recommendations involve aging management for structures, systems, or components within the scope of license renewal review. Their assertion that the contention would be moot if the Commission were to adopt all of the Task Forces Recommendations further indicates that Intervenors are challenging the general adequacy of the Commissions safety regulations, and are not simply seeking compliance with NEPAs procedural requirements. NEPA Contention at 29.

As discussed above, pursuant to 10 C.F.R. § 2.335(a), contentions challenging the adequacy of the Commissions regulations are beyond the scope of individual adjudicatory proceedings unless a waiver is requested and granted. [A] petitioner may not demand an adjudicatory hearing to attack generic NRC requirements or regulations, or to express generalized grievances about NRC policies. Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 334 (1999). Further, the scope of the license renewal safety review is narrow; it is limited to plant structures and components that will require an aging management review for the period of extended operation and the plants systems, structures and components that are subject to an evaluation of time-limited aging analyses.

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

2), CLI-01-20, 54 NRC 211, 212 (2001). For each structure or component requiring an aging management 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. Pilgrim, CLI-10-14, 71 NRC__ (slip op. at 4-8).

Challenges to the adequacy of a plants CLB, however, are beyond the scope of license renewal. See Turkey Point, CLI-01-17, 54 NRC 8-9 (stating the Commissions on-going regulatory oversight ensures the adequacy of the plants current licensing basis, thus there is no reason to reanalyze the adequacy of the CLB for license renewal). As stated above, Intervenors do not assert that the TFRs recommendations are related to aging management.

Thus, to the extent that the Contention seeks to challenge the adequacy of the Commissions safety regulations and the adequacy of Davis-Besses CLB to provide reasonable assurance of adequate protection of public health and safety, it is beyond the scope of this proceeding and must be rejected.

Moreover, as noted above, the TFR contains a series of recommendations including proposed rulemakings and orders, which could in turn lead to license amendments. TFR at Appendix A. Therefore, Many of these recommendations may require the NRC to conduct a NEPA review before implementing them. 10 C.F.R. §§ 51.85, 51.95. Consequently, in the event the Commission ultimately adopts any of the recommendations in the TFR, the agency will have an opportunity to fully consider the need to conduct an environmental impact assessment of those actions at that time.

III. The NEPA Contention Does Not Raise a Material Issue A. The Task Force Report Makes Safety Recommendations That Do Not Relate to the NEPA Contentions Environmental Concerns Pursuant to 10 C.F.R. § 2.309(f)(1)(iv), an admissible contention must [d]emonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding. See also 10 C.F.R. § 2.309(f)(1)(vi) (stating that a contention must provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact). As discussed above, the NEPA Contention raises several challenges to the environmental review of the impacts of relicensing under NEPA. NEPA Contention at 12-14, 22-28. The NEPA Contention rests its claims on the recently published TFR. But, the TFR addressed the safety, as opposed to the environmental, implications of the Fukushima accident. Consequently, the TFR is not material to the agencys environmental review. Moreover, as discussed below, to the extent it tangentially discusses environmental matters, the TFR supports the conclusion that the existing environmental analysis satisfies NEPA.

The NEPA Contention states, The ER for Seabrook (sic) fails to satisfy the requirements of NEPA because it does not address the new and significant environmental implications of the findings and recommendations raised by the NRCs Fukushima Task Force Report. NEPA Contention at 5. The NEPA Contention claims that the TFR is significant because it raises an extraordinary level of concern regarding the manner in which the proposed renewed operation of Seabrook (sic) impacts public health and safety. Id. at 13 (quotations omitted). The Intervenors therefore demand that the NRC comply with NEPA by addressing the lessons of the Fukushima accident in its environmental analysis for licensing decisions. Id.

at 4.

But, the NEPA Contention does not raise a material dispute with the environmental portions of the application because it relies on the TFR, which makes safety recommendations to the Commission. While the recommendations in the TFR represent a step in the NRCs response to the Fukushima accident, the Task Force was tasked with the assessment of safety issues, and its recommendations do not have any particular relevance to the Staffs environmental review. The Atomic Energy Act of 1954 (AEA) requires the NRC to ensure the safe operation of nuclear power plants. Union of Concerned Scientists v. NRC, 824 F.2d 108, 109 (D.C. Cir. 1987). Under Section 182.a of the AEA, the Commission must ensure that the utilization or production of special nuclear material will provide adequate protection to the health and safety of the public. Id. (quoting 42 U.S.C. § 2232(a)) (alterations in original). In contrast, NEPA requires that agencies take a hard look at environmental consequences of major federal actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)

(internal quotations omitted). While the NRC may review similar topics under the two acts, the NRCs reviews under the two acts are distinct from each other. Limerick Ecology Action, Inc. v.

NRC, 869 F.2d 719, 730-31 (3d Cir. 1989). Thus, the NRCs evaluation of an issue under one act will not necessarily impact the agencys consideration of the issue under the other. Id.

The Commission established the Task Force following the Fukushima Dai-ichi accident to conduct a methodical and systematic review of the NRCs process and regulations to determine whether the agency should make additional improvements to its regulatory system and to make recommendations to the Commission for its policy direction. TFR at 1. The Task Force first concluded that a sequence of events like the Fukushima accident is unlikely to occur in the United States[.] Therefore, continued operation and continued licensing activities do not pose an imminent risk to public health and safety. TFR at vii. Nonetheless, the Task Force chose to recommend significant reinforcements to NRC requirements and programs. Id. at 5.

Consequently, the Task Force proposed to redefine what level of protection of the public health is regarded as adequate. Id. at 4 (emphasis added). In short, the Task Force addressed safety issues, rather than the environmental consequences of agency actions. In line with this focus, the Task Force proposed a list of safety enhancements to reinforce the NRCs existing regulatory structure. Id. at ix. While the Task Force made extensive findings and recommendations under the AEA, the Task Force did not find that the Fukushima events have a direct impact on the NRCs environmental reviews of current licensing activities under NEPA nor did it recommend that the NRC alter those reviews to account for Fukushima.

Thus, the TFRs findings are directed towards improving the NRCs regulatory framework for providing reasonable assurance that existing reactors will operate safely under the AEA. But, NEPA, the statute governing the Staffs environmental licensing review, contains a very different standard: it only requires agencies to take a hard look at the environmental consequences of their actions. Methow Valley, 490 U.S. at 350. The TFRs recommendations leave in place the agencys existing regulatory requirements; the Task Forces recommendation that the NRC take additional steps to ensure adequate protection do not point to any inadequacy in the NRCs consideration of environmental impacts in this proceeding. As a result, the conclusions in the TFR are immaterial to the NRC Staffs environmental review, and

therefore the Board should deny admission of this contention, which is based exclusively on those findings. 10 C.F.R. § 2.309(f)(1)(iv), (vi).

Moreover, to the extent the TFR considers environmental consequences, the TFR supports the reasonableness of existing environmental reviews. The TFR states, The current NRC approach to land contamination relies on preventing the release of radioactive material through the first two levels of defense-in-depth, namely protection and mitigation. TFR at 21.

The TFR observes that land contamination cannot occur in the absence of a release of radioactive materials and concludes that the NRCs current approach to the issue of land contamination from reactor accidents is sound. Id. Additionally, the TFR concludes that the defense-in-depth philosophy should occupy a central place in the future regulatory framework.

Id. at 20. Therefore, if anything, the recommendations in the TFR support the NRCs existing approach to considering environmental impacts.

B. The NEPA Contention Does Not Identify the Specific Portions of the Application It Challenges Pursuant to 10 C.F.R. § 2.309(f)(vi), a proffered contention must provide 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 . .

. that the petitioner disputes or reasons why the application omits required information. On environmental matters this showing must include a reference to the specific portion of the applicants environmental report that the petitioner believes inadequate. Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-12, 37 NRC 355, 363 (1993).

If the Staff has published its own environmental documents, and the data and conclusions in those documents significantly differ from the information in the environmental report, then the Intervenors may also base a contention on errors or omissions in the Staffs environmental documents. Id. One purpose of these strict admissibility rules is to put other parties sufficiently on notice of the issues so that they will know generally what they will have to defend against or

oppose. Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 AEC 13, 20 (1974).

The Intervenors claims fail to reference the specific portion of the Davis-Besse application they dispute. The NEPA Contention raises claims challenging the analysis of severe accidents generically, NEPA Contention at 14-15, the requirement that only cost beneficial SAMAs be implemented, NEPA Contention at 22-25, the reliability of the site specific analysis of SAMAs on certain issues raised by the TFR, NEPA Contention at 25-26, and the determination of the need for power of the facility, NEPA Contention at 23. But, these claims do not identify the specific portions of the underlying license renewal application or the site-specific environmental analysis they dispute. Instead, they rely on general references to regulations, generic environmental determinations, and a portion of the Staffs Seabrook DSEIS that provides a summary description of the SAMA process. NEPA Contention at 12-16 & n. 7 (quoting from section 5.3 of the Seabrook DSEIS). 32 For example, these claims reference the entries on accidents in Appendix B to 10 C.F.R. Part 51 id. at 14, the introductory paragraph to the SAMA analysis, id. at 15, and 10 C.F.R. 51.45(c), id. at 14. But, the entries on accidents in Appendix B rest on an analysis in the GEIS that constitutes an entire chapter of often complex probabilistic risk analysis. GEIS at Chapter 5. The Intervenors failure to challenge a specific part of Chapter 5 of the GEIS results in a claim that is too vague to raise a material dispute with the application. Likewise, the SAMA analysis in the Davis-Besse ER incorporates a complex probabilistic risk assessment. The NEPA Contentionss vague reference to the general description of the analysis provides no real insight into what portions of the analysis the NEPA Contention seeks to challenge. Rather, the NEPA Contention requires the Board, Staff, and Applicant to guess how the safety recommendations in the TFR specifically impact the 32 The Davis-Beese DSEIS has not been completed yet and support from the Seabrook DSEIS is immaterial to the Davis-Besse license renewal proceeding.

environmental analysis of SAMAs in the DSEIS. Therefore, the NEPA Contention does not put other parties to this proceeding on sufficient notice of the issues it seeks to litigate. Peach Bottom, ALAB-216, 8 AEC at 20.

Consequently, the NEPA Contention does not provide sufficiently specific references to the portions of the application or Staff environmental documents that it seeks to contest. 10 C.F.R. § 2.309(f)(1)(iv). Instead, it refers to generic regulations and general portions of the DSEIS. As a result, the contention only vaguely suggests how the conclusions in the TFR, which as discussed above are safety recommendations with no inherent connection to environmental concerns, impact the Staffs or applicants environmental analysis. 33 Hence, it does not raise a material dispute. 10 C.F.R. § 2.309(f)(1)(vi).

C. The NEPA Contention Does Not Raise a Material Contention with Respect to Severe Accidents The NEPA Contention claims that the recommendations in the TFR question the determination that the environmental impacts of both design basis accidents and severe accidents are small in Appendix B to 10 C.F.R. Part 51 (Appendix B). NEPA Contention at

14. The NEPA Contention argues that because the TFR suggests that the Commission should expand the design basis of existing reactors to include additional accident scenarios, the existing analysis of accidents from an environmental perspective must be deficient. Id. at 14 (quoting Makhijani Declaration, pars. 7-10). As discussed above, this challenge to the Commissions regulations is outside the scope of this proceeding. See discussion supra, 33 A number of intervenors in other cases filed requests containing substantially similar claims to those in the NEPA Contention. NEPA Contention at 3-4. The filing of substantially similar contentions in numerous proceedings does not satisfy an intervenors obligation to comply with the Commissions strict requirement for specificity in pleading. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-89-3, 29 NRC 234, 241 (1989) (The Commission expects parties to bear their burden and to clearly identify the matters on which they intend to rely with reference to a specific point. The Commission cannot be faulted for not having searched for a needle that may be in a haystack.).

Section II.B. Moreover, even if this claim were within the scope of this license renewal proceeding, it is not material.

The conclusions in Appendix B rest on the data and analysis in the GEIS. The GEIS examines both design-basis accidents and severe accidents. GEIS at 5-11. [D]esign-basis accidents are those that both the licensee and the NRC staff evaluate to ensure that the plant meets acceptable performance criteria. Id. In contrast, severe accidents include those accidents involving multiple failures of equipment or function and, therefore, whose likelihood is generally lower than the design-basis accidents but where the consequences may be higher.

Id. at 5-1.

The TFR does recommend formally establishing, in the regulations, an appropriate level of defense-in-depth to address requirements for extended design-basis events. TFR at 20.

But, as discussed above, the purpose of the NRCs review under NEPA is to simply consider the environmental impacts of the particular proposed licensing action, not to form conclusions under the AEA. Methow Valley, 490 U.S. at 350. As currently written, the GEIS, which supports the NRCs determination on the environmental impacts of accidents in Appendix B, considers the environmental impacts of both design-basis accidents and severe accidents (i.e., beyond design-basis accidents). GEIS at 5-11. The TFR recommends expanding the scope of accidents explicitly considered in the regulations. TFR at 20. These recommendations include measures related to seismic events, floods, station blackouts, and spent fuel pools. TFR at ix.

But the NEPA Contention does not allege that the TFR identifies a fundamentally new type of accident or newly discovered consequence from already-considered accidents. NEPA Contention at 14-26. In fact the GEIS explicitly considered seismic events, flooding, station blackout, and spent fuel pools in its analysis of severe accidents. GEIS at 5-17 to 5-18, 5-9, 5-100. Therefore, regardless of whether a given accident is classified as severe or design-basis, the NRC has already considered its environmental impacts in the GEIS for NEPA purposes.

GEIS at 5-11. The recommendations in the TFR that the NRC expand the scope of design-basis accidents are not material to this environmental consideration.

In a related claim, the NEPA Contention asserts that the risks of operating Seabrook (sic) under a renewed license are higher than estimated in the ER. NEPA Contention at 3.

Additionally, the Intervenors claim that the TFR indicates that the NRC must reevaluate the seismic and flooding hazards at the Seabrook (sic) site. NEPA Contention at 25. In support, the Makhijani declaration asserts that the TFR indicates that seismic and flooding risks as well as risks of seismically-induced fires and floods may be greater than previously understood.

Makhijani Declaration, par. 11. Therefore in its environmental analyses, the NRC would have to revise its analysis to reflect the new understanding that the risks and radiological impacts of accidents are greater than previously thought. Id.

As discussed above, the NRC made a generic conclusion regarding the environmental impacts of accidents in Appendix B and these determinations cannot be challenged in individual proceedings absent a waiver. 10 C.F.R. § 2.335. The GEIS supports the conclusions in Appendix B. However, in considering the environmental impacts of severe accidents caused by external events, the GEIS did not rely on a quantitative assessment that was specific to external events. GEIS at 5-18. The GEIS noted that externally-initiated severe accidents have not traditionally been discussed in quantitative terms. GEIS at 5-17. But, the GEIS noted that where the NRC had evaluated severe accidents generated by external events, the risks were determined to be comparable to internal event risks. Id. Thus, the GEIS found that [s]evere accidents initiated by external phenomena such as tornadoes, floods, earthquakes, fires, and sabotage were adequately addressed by generic consideration of internally initiated severe accidents. GEIS at 5-18 to 5-19. In essence, whether a man-made event or an act of God results in a severe accident, the environmental impact is the same. Finally, the Commission noted that it would continue to evaluate methods to reduce the risk from nuclear power plants from external events. Id.

Therefore, the conclusions in the TFR questioning the frequency of some externally-generated accident scenarios, such as earthquakes and flooding, do not raise a material dispute with the conclusions in the GEIS. The TFR based its recommendations on whether existing regulations ensure adequate protection under the AEA. The GEIS, which does not consider adequate protection but rather, evaluates generic at environmental impacts, did not rely on a quantitative assessment of the specific risks posed by seismic and flooding events.

Consequently, recommendations in the TFR regarding the frequencies of those events cannot undermine the conclusions in the GEIS on those topics. Moreover, the GEIS contemplated that the NRC would continue to study, and reduce, the risk from external events. The TFR does precisely that. Therefore, the conclusions in the TFR do not dispute the conclusions in the GEIS but fulfill them. As a result, the Board should reject the arguments in the NEPA Contention that challenge the determination in the GEIS that the environmental impacts of accidents will be small because those arguments do not raise a material dispute with the GEISs analysis. 34 10 C.F.R. § 2.309(f)(1)(iv), (vi).

D. The NEPA Contention Does Not Raise a Material Challenge to the SAMA Analysis

1. NEPA Does Not Require Implementation of Mitigation Measures Next the NEPA Contention claims that the TFR recommends that severe accident mitigation measures should be adopted into the design basis . . . without regard to their cost.

NEPA Contention at 15. Thus, the values assigned to the cost-benefit analysis for SAMAs, as described in Seabrook (sic) ER, must be re-evaluated in light of the Task Forces conclusion that the value of SAMAs is so high that they should be elected as a matter of course. Id. As a 34 Intervenors have not shown how these generic issues would impact the NRCs consideration of severe accidents in the GEIS. Moreover, as discussed above, such challenges are outside the scope of this proceeding. See supra, Discussion Section II.B.

result, the NEPA Contention appears to assert that SAMAs should be imposed as mandatory measures. Id. at 22.

As discussed below, the NEPA Contention is incorrect in its assessment that the TFR actually recommends that the Commission should require licensees to implement all SAMAs, regardless of cost-benefit. 35 See discussion infra,Section IV.A. While the TFR reached conclusions regarding additional steps the NRC can undertake to improve safety, these conclusions were part of the TFRs safety evaluation. Thus, the TFR based its proposals on redefining what level of protection of the public health is regarded as adequate. 10 C.F.R. § 50.109(a)(4)(iii).

To be sure, in the event that the Commission should determine to expand the scope of design basis accidents to provide reasonable assurance of adequate protection, it would do so without regard to cost considerations. SAMA, however, are different. The NRC conducts its evaluation of an applicants SAMA analysis to satisfy the requirements of NEPA, not the AEA.

10 C.F.R. § 51.53(c)(3)(ii)(L); Limerick, 869 F.2d at 730-31. In contrast to adequate protection requirements, an analysis of costs and benefits is an integral part of a SAMA evaluation.

Nonetheless, the outcome of a SAMA cost-benefit analysis does not mandate the adoption of a SAMA. The Supreme Court directly considered whether NEPA requires mitigation in Robertson

v. Methow Valley Citizens Council, 490 U.S. 332 (1989). The Court noted that while NEPA announced sweeping policy goals, NEPA itself does not mandate particular results, but simply prescribes the necessary process. Id. at 350 (citing Strykers Bay Neighborhood Council, Inc.

v. Karlen, 444 U.S. 223, 227-28(1980) and Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558 (1978)). If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs. Id. (citing Strykers 35 In fact, the TFR does not mention SAMAs.

Bay Neighborhood Council, 444 U.S. at 227-28, (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976))). In light of these principles, the Court found a fundamental distinction between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated on the one hand, and a substantive requirement that a complete mitigation plan be actually formulated and adopted on the other.

Id. at 352. Thus, the Court concluded that the lower court erred in in assuming that NEPA requires that action be taken to mitigate the adverse effects of major federal actions. Id. at 353 (internal quotations omitted). As a result, contrary to the NEPA Contentions assertions, NEPA imposes no obligation on the NRC to require mitigation.

Consequently, to the extent the NEPA Contention claims that the current SAMA analysis is inadequate because it does not require the Applicant to implement all of the identified mitigation measures regardless of cost, the NEPA Contention does not raise a material dispute.

Therefore, the claim that the SAMA analysis must require mitigation of all identified SAMAs is not material to the NRCs review under NEPA, because NEPA contains no requirement that the agency impose mitigation.

2. The NEPA Contention Does Not Raise a Material Dispute on Any Specific SAMA Next, the NEPA COntention asserts that the SAMA analysis should consider what, if any, design measures could be implemented (i.e. through NEPAs requisite alternatives analysis) to ensure that the public is adequately protected from seismic and flooding risks.

NEPA Contention at 25. Additionally, the NEPA Contention asserts that the SAMA analysis should consider additional mitigation measures discussed by the TFR. Id. at 25-26. These mitigation measures include strengthening SBO mitigation capability, installing hardened vent designs at facilities with BWR Mark I and Mark II containments, 36 enhancing spent fuel pool 36 This claim is obviously immaterial to this proceeding because Davis-Besse is a pressurized water reactor. LRA at 1.2-1.

makeup capability and instrumentation for the spent fuel pool, improving emergency response capabilities, and addressing multi-unit accidents. Id. at 17.

But, the Intervenors have failed to show that the existing SAMA analysis is inadequate.

In this regard, the Commission has stressed, the ultimate concern for a SAMA analysis is whether any additional SAMA should have been identified as potentially cost beneficial, not whether further analysis may refine the details in the SAMA NEPA analysis. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI 11, 69 NRC 529, 533 (2009). Unless it looks genuinely plausible that inclusion of an additional factor or use of other assumptions or models may change the cost-benefit conclusions for the SAMA candidates evaluated, no purpose would be served to further refine the SAMA analysis, whose goal is only to determine what safety enhancements are cost-effective to implement.

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

CLI-10-11, 71 NRC __ (Mar. 26, 2010) (slip op. at 39) (ADAMS Accession No. ML100880136).

When intervenors propose consideration of an additional mitigation measure, the Commission has required them to provide a ballpark figure for what the cost of implementing this SAMA might be. Duke Energy Corporation (McGuire Nuclear Station, Units 1 and 2, Catawba Nuclear Station, Units 1 and 2), CLI-02-17, 56 NRC 1, 12 (2002). The Commission is unwilling to throw open its hearing doors to Petitioners who have done little in the way of research or analysis, provide no expert opinion, and rest merely on unsupported conclusions about the ease and viability of their proposed SAMA. Id. Thus, the Commission has found that a conclusory statement that an envisioned SAMA would not pose a great challenge is insufficient. Id. Such a statement provides no indication of what logistical or technical concerns might be involved in implementing the proposed SAMA. Id. In light of this holding, the Board in the Indian Point license renewal proceeding denied admission of a contention requesting consideration of a fire protection SAMA because the petitioner had not provided any

information indicating the potential costs associated with the upgrade in fire protection. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43, 104 (2008).

In this case, the NEPA Contention relies on the Makhijani Declaration to support its request that the SAMA analysis consider the use of these additional mitigation measures to reduce the projects environmental impacts. NEPA Contention at 26. But, the Makhijani Declaration only provides vague estimates on the cost of these potential SAMAs. With respect to seismic and flooding issues, the Makhijani Declaration states that a reassessment of those concerns may also involve increased costs due to required backfits. Makhijani Declaration at par. 19. Next, the Makhijani Declaration concludes that the TFRs recommendation to further analyze station blackout events could result in the imposition of costly prevention or mitigation measures. Id. at par. 20. With regard to hardened vents for the BWR Mark I and II reactors, the declaration speculates that the cost of such improvements is likely to be substantial. Id. at par. 21. Last, the declaration finds that implementing mitigation measures for multi-unit accidents could be significant. Id. at par. 24.

Notwithstanding these generalized assertions, the NEPA Contention and Makhijani Declaration do not raise a material SAMA contention, because the NEPA Contention asks the NRC to consider additional SAMAs without providing an adequate indication of what the additional SAMAs may cost. Rather, the Makhijani Declaration relies on vague assertions that the cost of certain mitigation measures may be significant. But, such conclusory statements do not amount to even a ballpark figure for what the proposed SAMAs may cost.

McGuire/Catawba, CLI-02-17, 56 NRC at 12. Rather, they are akin to the claims that a given SAMA would not pose a great challenge, which the Commission has explicitly rejected. Id.

Consequently, the statements do not provide sufficient support to show that the NEPA Contentions SAMA claim raises a material issue because they do not provide an adequate indication of what the cost of the mitigation measures may be. Without a quantitative estimate of the costs of a given SAMA, conducting a meaningful cost-benefit analysis of the SAMA under

NEPA is impossible. Moreover, the claims in the NEPA Contention and Makhijani Declaration do not specifically address any current SAMAs, let alone explain how the information in the TFR could lead to any of them becoming cost-beneficial. Because these claims do not provide sufficient information to demonstrate materiality, they should be rejected. 10 C.F.R. § 2.309(f)(1)(iv), (vi).

E. The NEPA Contention Does Not Raise a Material Claim with Respect to Need for Power Last, the NEPA Contention alleges that consideration of the costs of mandatory mitigative measures could affect the overall cost-benefit analysis for the reactor because these costs may be significant, showing that other alternatives such as the no-action alternative and other alternative electricity production sources may be more attractive. NEPA Contention at 22-23. As discussed above, these claims are outside the scope of license renewal. See discussion supra,Section II.C. Even if this claim was in scope, it would still not raise a material issue. If the NRC concludes that proposed mitigation measures in the TFR are necessary to provide a reasonable assurance of adequate protection, the NRC will require licensees to implement them as part of its ongoing oversight review of operating reactors, without regard to cost. These measures will apply to all facilities regardless of whether they are currently the subject of a pending license renewal application. As a result, the costs associated with complying with any TFR recommendations are immaterial to the decision of renewing an existing license.

Further, the fact that a license renewal proceeding is in progress does not render these issues admissible. In defining the scope of the license renewal rule, the Commission has previously explained, It is not necessary for the Commission to review each renewal application against standards and criteria that apply to newer plants or future plants in order to ensure that operation during the period of extended operation is not inimical to the public health and safety.

Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,945 (Dec. 13, 1991). Ongoing

regulatory processes provide reasonable assurance that, as new issues and concerns arise, measures needed to ensure that operation is not inimical to the public health and safety and common defense and security are backfitted onto the plants. Id.

As discussed above, the TFR includes several recommendations to enhance safety at existing and proposed nuclear reactors that relate to redefining the level of adequate protection.

See supra, Discussion Section II.A (citing TFR at ix). Consequently, to the extent the NRC ultimately adopts any specific recommendations from the TFR, it will do so under its on-going reactor regulatory oversight and rulemaking processes. Any such action would apply to both existing and renewed operating licenses.

Therefore, the NEPA Contentions claim that compliance with the TFR recommendations could change the cost-benefit analysis underlying the need for power analysis is not material to this proceeding. As discussed above, the NRC must have reasonable assurance of adequate protection for existing reactors. 42 U.S.C. § 2232(a). If the NRC changes the regulatory process to redefine the level of adequate protection, then the NRC will make those changes as part of its ongoing oversight of operating reactors. 10 C.F.R. § 50.109. Consequently, licensees must address those changes regardless of whether the NRC grants or denies their applications for license renewal or has already granted a renewed license. As a result, the costs of complying with any proposal in the TFR are irrelevant to the decision to renew the license. Therefore, even if this claim were within scope of this proceeding, it is immaterial and should be rejected. 10 C.F.R. § 2.309(f)(1)(iv)(vi).

IV. The NEPA Contention Does Not Rely on an Adequate Factual Basis The Intervenors contention is inadmissible because it lacks an adequate factual basis.

The NEPA Contention makes numerous misrepresentations of the TFR, including, inter alia, implying that the TFR questions whether the NRC can conduct reactor licensing activities in a manner that maintains public health and safety, claiming that the TFR effectively recommends that the process for considering Severe Accident Mitigation Alternatives (SAMAs) be

overhauled, and that all SAMAs be incorporated regardless of cost. Nowhere does the TFR make these recommendations, nor do the Intervenors point to any specific language in the TFR to support their claims. Additionally, although the NEPA Contention frequently refers to the accompanying Makhijani Declaration, that document does not provide sufficient information to support the NEPA Contentions claims. Finally, the NEPA Contention also misstates the standard for examining new information under the Supreme Court ruling in Marsh v. Oregon.

To present an admissible contention, the Petitioner must:

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

10 C.F.R. § 2.309(f)(1)(v). The Commission has stated that [m]ere notice pleading is insufficient under these standards. Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003). A petitioner meets its pleading burden by providing plausible and adequately supported claims. Id. While the Commission does not expect a petitioner to prove its contention at the pleading stage, the Commission does require a petitioner to show a genuine dispute warranting a hearing. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004). Thus, a petitioner, and its expert, must demonstrate how the relied-upon facts support its contention. See id; see also USEC Inc.

(American Centrifuge Plant), CLI-06-09, 63 NRC 433, 442-43 (2006) (dismissing as inadequate support expert testimony that merely outlined future research and did not describe any facts on a projects impacts to support an impacts contention); S. Carolina Elec. & Gas Co. (Virgil C.

Summer Nuclear Station, Units 2 & 3), CLI-10-01, 71 NRC 1, 18 n.84 (2010) (finding an expert opinion offering unsupported assertions and failing to provide a specific challenge to the applicants analysis insufficient for admissibility purposes).

A. None of the TFRs Recommendations Relate to SAMAs The Intervenors claim that the TFR effectively recommends overhauling how the NRC considers SAMAs. NEPA Contention at 14-15. However, the TFR makes no reference whatsoever to SAMAs. The TFR does make reference to levels of probable risk assessments (PRA), but that discussion does not reference PRA levels in the SAMA context. TFR at 21-22.

As NRC Staff experts have explained in other license renewal proceedings, PRAs have traditionally been divided into three levels: level 1 is the evaluation of the combinations of plant failures that can lead to core damage; level 2 is the evaluation of core damage progression and possible containment failure resulting in an environmental release for each core-damage sequence identified in level 1; and level 3 is the evaluation of the consequences that would result from the set of environmental releases identified in level 2. 37 All three levels of the PRA are required to perform a SAMA analysis. Bixler and Ghosh Testimony at 8. The TFR states that its recommendations could be implemented on the basis of full-scope Level 1 core damage assessment PRAs and Level 2 containment performance assessment PRAs. TFR at 21.

However, the TFR has not recommended including Level 3 PRA as a part of a regulatory framework. Id. at 22. Moreover, the Task Force specifically disclaimed any intent to require a Level 3 PRA as part of its recommendations at a subsequent public meeting with the Commission. Briefings on the Task Force Review of NRC Processes and Regulations Following the Events in Japan at 48 (Jul. 19, 2011) (ADAMS Accession No. ML112020051).

Since the TFR does not recommend a Level 3 PRA analysis and the Task Force specifically rejected the idea during its presentation to the Commission, the conduct of a Level 3 PRA is not part of its recommendations.

37 NRC Staff Testimony of Nathan E. Bixler and S. Tina Ghosh Concerning the Impact of Alternative Meteorological Models on the Severe Accident Mitigation Alternatives Analysis, at 78 (Jan. 3, 2011) (ADAMS Accession No. ML110030966) (Bixler and Ghosh Testimony).

Intervenors also claim, based on the TFR, that all SAMAs should be implemented regardless of cost. NEPA Contention at 15. The TFR does make some discrete recommendations, but none of those come close to recommending that SAMAs be implemented regardless of cost. Intervenors support its claim by stating that such measures are required to meet adequate health and safety requirements under the AEA. Id. As discussed above, this justification is inaccurate because the requirements for meeting the AEAs requirements for health and safety are distinct from NEPAs cost-benefit analysis requirements. See discussion supra,Section II.A.

B. Dr. Makhijani's Declaration Does Not Support the Petitions Claims In addition to relying on the TFR, the NEPA Contention also makes several references to a declaration from Dr. Makhijani. However, Dr. Makhijani's declaration provides no support for the Contention apart from its discussion of the TFR, and it provides no discussion of the Applicants environmental report.

Thus, Dr. Makhijani expresses his agreement with the TFR's conclusions regarding the need to expand the design basis accident requirements for reactors. Makhijani Decl. at 3, 4.

He sees the NRC's regulations as inadequate. Id. But, his concerns with the NRC's safety rules and his desire that the safety rules be changed are too far removed from the content of FirstEnergys environmental report. Rather, Dr. Makhijani provides a generalized opinion about the potential effects of the TFR's recommendations upon environmental analyses for new reactors, existing reactor license renewal, and standardized design certification. Makhijani Decl.

at 4. He claims that if the TFR's recommendations became requirements, then reactor designs would change and environmental analyses would change. Id. However, these statements are irrelevant to the proffered contention. Stating that under a different regulatory scheme, a different NEPA result may occur simply does not provide support for a claim that the environmental review at hand is deficient under the existing regulatory scheme.

Dr. Makhijani also states that the TFR finds that earthquake and flood risks might be greater than previously thought. Makhijani Decl. at 4. From this, he concludes that if the risks are found to be different, then the environmental documents must change. Id. But, this assertion amounts to speculation. The assertion is too far removed from the environmental documents at issue to provide support for the NEPA Contention. Moreover, even if the TFRs safety recommendations did affect the analysis in the environmental documents, nothing in the declaration suggests that the change would be large enough to alter any of the existing conclusions on the environmental impacts of relicensing.

Dr. Makhijani asserts that in the event the Commission adopts the recommendations in the TFR, reactor site selection and cost-benefit analysis could be affected. Id. at 4-5. Again, these forward looking statements are irrelevant to the proffered environmental contention; there are no new requirements that would impact site selection at this time. See discussion supra,Section II.C. Further, consideration of alternative sites is not required in the environmental documents for license renewal. 10 C.F.R. § 51.53(c)(2).

Finally, in some instances, Dr. Makhijani appears unfamiliar with the NRC's environmental review policy. For example, where Dr. Makhijani states that the NRC effectively disregarded a 1980 recommendation to modify the NRC's philosophy about reactor design and "Class Nine Accidents" (Makhijani Decl. at 3-4), the declaration appears unaware that of the fact that in June 1980, the NRC explicitly withdrew the previously-proposed "Class Nine Accident" philosophy for environmental reviews, 38 and announced that the agencys environmental assessments would include consideration of both the probability and consequences of radioactive releases associated with severe accidents, as described in the Commission's 38 As discussed in the Commissions Interim Policy Statement, a proposed Annex to 10 C.F.R. Part 50, Appendix D, published for comment on December 1, 1971, would have included consideration of Class 8 (design basis) accidents, and omitted consideration of Class 9 accidents in NRC environmental assessments. See Interim Policy Statement, 45 Fed. Reg. at 40102.

Statement of Interim Policy, Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969, 45 Fed. Reg. 40101, 40102 (June 13, 1980). The Interim Policy Statement withdrew the proposed generic omission of "Class Nine" accidents in NRC environmental impact statements. Id. at 40103. Consequently, the Makhijani declaration does not form a sufficient basis for the NEPA Contentions claims.

C. The TFR Does Not Question Whether the NRC Can Continue to License Reactors Intervenors state, as general support for its contention, that the Applicants ER must consider recommendations by the TFR because the TFR does not report a conclusion that licensing of reactors would not be inimical to public health and safety, whereas the TFR makes a finding that continued license activities are not inimical to the common defense and safety. Id. at 6 (quoting TFR at 18). On this issue, Intervenors are mistaken. The TFR explicitly states the Task Force concludes that continued operation and continued licensing activities do not pose an imminent risk to the public health and safety and are not inimical to the common defense and security. TFR at 18. The Intervenors base its argument on the TFRs use of the term imminent risk as opposed to not inimical. However, there is nothing in the report that implies that continued operation is and continued licensing activities are not inimical to the public health and safety. Therefore, Intervenors argument that the TFR did not make the requisite finding of not inimical to the public health and safety is inconsistent with the findings of the TFR.

D. Intervenors Reliance on Marsh v. Oregon is Misplaced Finally, Intervenors reliance on Marsh v. Oregon Natural Resources Council, 490 U.S.

360 (1989) to justify admission of their new contention is misplaced. While the Supreme Court in Marsh established that an agency must take a hard look at significant new information, the Court also stated that an agency need not supplement an EIS every time new information comes to light after the EIS is finalized. Marsh, 490 U.S. at 392. Such a requirement would

render agency decision making intractable, always awaiting updated information only to find the new information outdated by the time a decision is made. Id. at 373.

The D.C. Circuit further explained that if new information shows that the remaining action will affect the quality of the environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared. Natl Comm. for the New River

v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004) (emphasis added) (internal quotes and citations omitted). However, a supplemental EIS is only required where new information provides a seriously different picture of the environmental landscape. Id. (quoting City of Olmsted Falls v.

FAA, 292 F.3d 261, 274 (D.C. Cir. 2002)). The Commission additionally adopted this standard in Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-04, 53 NRC 31, 52 (2001), stating [t]he new circumstance must reveal a seriously different picture of the environmental impact of the proposed project.

In attempting to use Marsh to justify admission of their contention, the Intervenors are in effect claiming that the contention involves information that has not already been considered and provides a seriously different picture of the environmental landscape. As discussed above, the TFR is in essence a report on safety issues, and does not deal with environmental recommendations. See discussion supra,Section III.A. Since the Task Force doesnt purport to make environmental recommendations, the TFR does not change the environmental landscape. Therefore, the information does not satisfy the standard under Marsh. Nor do Intervenors present facts or expert opinion that a Fukushima type of event will occur at the licensing site or whether its impact will be the same or greater than that already considered in the GEIS.

E. Conclusion As discussed above, the quotations from the TFR and Makhijani declaration do not provide sufficient support for the claims in the NEPA Contention. The recommendations in the TFR do not relate to the NRCs environmental reviews in general or SAMA analyses in

particular. Moreover, the Makhijani declaration is too speculative and general to provide a sufficient factual basis for the proffered contention. As a result, the Board should find the proposed contention inadmissible. 10 C.F.R. § 2.309(f)(1)(v).

V. The Contention is Untimely, Because the Issues Discussed in the Task Force Report Have Been Previously Available and Were Addressed in Intervenors Previous Petitions and in the Commonwealth of Massachusetts June 2, 2011 Filing The criteria to be considered when determining the timeliness of amended or new contentions filed after the original petition for intervention and request for hearing are set forth in 10 C.F.R.§ 2.309(f)(2). Under this provision, an amended contention filed after the initial filing period may be admitted with leave of the Board only upon a showing that:

(i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information. 39 A contention that does not qualify as a timely new contention under 10 C.F.R.

§ 2.309(f)(2) may be admissible under the provision governing nontimely contentions, 10 C.F.R.

§ 2.309(c). Nontimely filings may only be entertained following a determination by the Board that a balancing of the eight factors in 10 C.F.R. § 2.309(c) weigh in favor of admission. 40 39 10 C.F.R. § 2.309(f)(2).

40 The eight factors listed at § 2.309(c)(1) are as follows:

(i) Good cause, if any, for the failure to file on time; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; (iv) The possible effect of any order that may be entered in the proceeding on the requestor's/petitioner's interest;

The requirements for untimely filings and late-filed contentions are stringent. 41 All eight factors must be addressed by the petitioner. 42 Failure to comply with the pleading requirements is sufficient grounds for denial of the motion to amend or admit a new contention. 43 Of all the eight factors, the first, good cause for failure to file on time, is most important. 44 The Commission has repeatedly addressed the issue of intervenors essentially waiting for the Staff to summarize the information into a convenient form to serve as the basis of a contention. Most recently in Prairie Island, the Commission stated that [b]y permitting

[intervenors] to wait for the Staff to compile all relevant information in a single document, the Board improperly ignored [intervenors] obligation to conduct its own due diligence. 45 The Commission emphasized in Oyster Creek that

[O]ur contention admissibility and timeliness rules require a high level of discipline and preparation by petitioners, who must examine the publicly available material and set forth their claims and the support for their claims at the outset. There simply would be no end to NRC licensing proceedings if petitioners could (v) The availability of other means whereby the requestor's/petitioner's interest will be protected; (vi) The extent to which the requestor's/petitioner's interests will be represented by existing parties; (vii) The extent to which the requestor's/petitioner's participation will broaden the issues or delay the proceeding; and (viii) The extent to which the requestors/petitioners participation may reasonably be expected to assist in developing a sound record.

41 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-07, 69 NRC 235, 260 (2009). See also Nuclear Management Co., LLC. (Palisades Nuclear Power Plant), (CLI-06-17),

63 NRC 727, 732 (2006).

42 Oyster Creek, CLI-09-07, 63 NRC at 260.

43 Id. at 260-61.

44 Id. at 261.

45 See, e.g., Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),

CLI-10-27, 72 NRC ___ (Sep. 30, 2010) (slip op. at 18) (ADAMS Accession No. ML1027307791).

disregard our timeliness requirements and add new contentions at their convenience during the course of a proceeding based on information that could have formed the basis for a timely contention at the outset of the proceeding. Our expanding adjudicatory docket makes it critically important that parties comply with our pleading requirements and that the Board enforce those requirements. 46 Finally, the Commission stressed that intervenors have an iron-clad obligation to examine the publicly available documentary material with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention. 47 In this case, Intervenors assert that the late-filed contention is timely because it is based upon information contained within the Task Force Report, which was not released until July 12, 2011. 48 The Motion claims that [b]efore issuance of the Task Force Report, the information material to the contention was simply unavailable. Nonetheless, Intervenors own declarant, Dr. Makhijani, contradicts this argument by stating that the Task Force Report provides further support for my opinions . 49 Dr. Makhijani has previously provided his opinions to the Commission in support of multiple intervenors requests to suspend licensing proceedings on April 19, 2011, more than four months prior to his most recent declaration. 50 46 Oyster Creek, CLI-09-7, 69 NRC 271-72 (footnotes and internal quotation marks omitted).

47 Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 135, 147 (1993) (internal quotation marks and footnote omitted). Accord Shaw Areva MOX Services, LLC (Mixed Oxide Fuel Fabrication Facility), CLI-09-2, 69 NRC 55, 65 n.47 (2009); Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 386 (2002); Turkey Point, CLI-01-17, 54 NRC at 24-25.

48 Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-ichi Accident at 3.

49 Declaration of Dr. Arjun Makhijani regarding Safety and Environmental Significance of NRC Task Force Report Regarding Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident at ¶ 6 (Aug. 8, 2011).

50 Declaration of Dr. Arjun Makhijani in Support of Emergency petition to Suspend All Pending Reactor Licensing decisions and Related Rulemaking Decisions pending Investigation of Lessons learned from Fukushima Daiichi Nuclear Power Station Accident (April 19, 2011).

The NEPA Contention asserts that the TFR refutes the concept that compliance with existing NRC safety regulations is sufficient to ensure that the environmental impacts of accidents are acceptable, and fundamentally question[s] the adequacy of the current level of safety provided by the NRCs program for nuclear reactor regulation. 51 Dr. Makhijanis Declaration focused on these issues over four months ago. 52 Dr. Makhijani stated that integration of the Fukushima data into NRC analyses of risks could lead to significant changes in design of new reactors and modifications at existing reactors as would be required for protection of public health and safety . 53 Dr. Makhijani concluded that [i]n the environmental and health arenas, consideration of this significant new information is likely to result in higher accident probability estimates, new accident mechanisms for spent fuel pools, higher accident costs estimates, and higher estimates of the health risk posed by light water reactor accidents. 54 Thus, the issues presented here in the proffered contention were readily available and discussed by Intervenors expert more than four months ago. At that time, Intervenors chose to forgo filing contentions. As such, the late filed contention is not timely and should be denied.

In addition, even putting aside Dr. Makhijanis previous declaration, the Commonwealth of Massachusetts filed a report in support of its June 1, 2011 request for the admission of a new contention based on the Fukushima Daiichi event on June 1, 2011, 42 days prior to the 51 Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-ichi Accident at 4.

52 See Declaration of Dr. Arjun Makhijani regarding Safety and Environmental Significance of NRC Task Force Report Regarding Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident at ¶ 24 (April 19, 2011).

53 Id. at ¶ 24.

54 Id. at ¶ 35. See also Id. at ¶¶ 29, 34, and 36.

publication of TFR. 55 The Commonwealths declarant, Dr. Gordon Thompson, questioned the adequacy of the NRCs current regulations. 56 Dr. Thompson asserted that the NRC has been obliged to extend the regulatory arena beyond the plants design basis. 57 He made this assertion based on the fact that core melt is a forseeable event 58 and the likelihood of core melts has been significantly underestimated by current PRA. 59 Dr. Thompsons June 1, 2011 declaration challenged the environmental analysis of environmental impacts under the current regulations. 60 Specifically, Dr. Thompson asserted that any accident-mitigation measure or SAMA should be incorporated in the plants design basis. 61 Since the issues asserted by Intervenors as new were available as least as early as the report filed by the Commonwealths expert, the late-filed contention should be dismissed as untimely, especially in light of the Commissions holding that Staffs documents which summarize information that has been 55 New and Significant Information From the Fukushima Daiichi Accident in the Context of Future Operation of the Pilgrim Nuclear Power Plant, (Thompson Report) (June 1, 2011) (ADAMS Accession No. ML111530339). In the response to Commonwealth of Massachusetts Contention Regarding New and Significant Information Revealed by the Fukushima Radiological Accident, the Staffs answer observed that the petition was likely premature because the Commonwealth had stated that its information was incomplete. In this regard, the reopening standard imposes significantly higher burden on the proponent to the contention than the late-filed contention requirements. In order to overcome the strict re-opening requirements, the Commonwealth needed to provide more than mere allegations; it must be tantamount to evidence, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-775, 19 NRC 1361, 1366 (1984), to overcome the strict requirements for reopening a closed record. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345, 350 (2005). The re-opening standard, of course, does not yet apply in the Davis-Besse proceeding 56 Thompson Report at 11.

57 Id.

58 Id.

59 Id. at 14 - 17.

60 Declaration of Dr. Gordon R. Thompson in Support of Commonwealth of Massachusetts Contention and Related Petitions and Motions, at ¶ 16 (June 1, 2011).

61 New and Significant Information From the Fukushima Daiichi Accident in the Context of Future Operation of the Pilgrim Nuclear Power Plant, at 17 - 18 (June 1, 2011) (ADAMS Accession No. ML111530339).

previously disclosed elsewhere cannot serve as the basis for new information to support a late-filed contention.

VI. Suspension Request 62 Additionally, the NEPA Contention notes that the Intervenors have also filed a rulemaking petition seeking to suspend any regulations that would preclude full consideration of the environmental implications of the Task Force Report. NEPA Contention at 4. The Seabrook rulemaking petition states that the NRC has a non-discretionary duty to suspend the relicensing proceeding while it considers the environmental impacts of that decision, including the environmental implications of the Task Force report with respect to severe reactor and spent fuel pool accidents. Rulemaking Petition to Rescind Prohibition Against Consideration of Environmental Impacts of Severe Reactor and Spent Fuel Pool Accidents and Request to Suspend Licensing Decision (Aug. 11, 2011) (ADAMS Accession No. ML11223A372). Unlike here, other parties in other proceedings filed the same (or substantially identical) rulemaking petitions before their boards and the Commission. Id.

The rulemaking petition and the corresponding suspension request are not properly before this Board. Rather, they are currently before the Commission as part of a regulatory process that is distinct from this license renewal adjudicatory proceeding. Under 10 C.F.R. § 2.802(a), Any interested person may petition the Commission to issue, amend or rescind any regulation. Section 2.802(d) states that the petitioner may request the Commission to suspend all or any part of any licensing proceeding to which the petitioner is a party pending disposition of the petition for rulemaking. 10 C.F.R. § 2.802(d). Under the regulations clear terms, only the Commission may grant a suspension request under 10 C.F.R. § 2.802(d).

62 As previously discussed, Petitioners did attach or otherwise serve the Petition for Rulemaking and Suspension Request in this proceeding, although it is referenced in their Petition. For completeness, the Staff is responding to Petition for Rulemaking served on parties to the Seabrook proceeding.

Moreover, the Commission has set a high standard for suspending a proceeding under section 2.802(d). In considering a previous request to suspend under section 2.802(d), the Commission found suspension of licensing proceedings a drastic action that is not warranted absent immediate threats to public health and safety. In the Matter of Petition for Rulemaking to Amend 10 C.F.R. § 54.17(c), CLI-11-01, 73 NRC __ (Jan. 24, 2011) (slip op. at 3) (ADAMS Accession No. ML110250087) (Seabrook Order) (quoting AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 484 (2008)). The Commission explained,

[O]ur longstanding practice has been to limit orders delaying proceedings to the duration and scope necessary to promote the Commission's dual goals of public safety and timely adjudication.

Absent extraordinary cause, however, seldom do we interrupt licensing reviews or our adjudications particularly by an indefinite or very lengthy stay as contemplated here on the mere possibility of change. Otherwise, the licensing process would face endless gridlock.

Id. at 2-3. The Commission concluded that because ample time existed before it would issue a renewed license for Seabrook, the requestors had not shown that proceeding with the adjudication would jeopardize the public health and safety, prove an obstacle to fair and efficient decisionmaking, or prevent appropriate implementation of any pertinent rule or policy changes that might emerge from our important ongoing evaluation. Id. at 4.

CONCLUSION For the reasons set forth above, the Board should find the contention inadmissible.

Respectfully submitted, Signed (electronically) by Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Date of signature: September 6, 2011

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

)

FIRSTENERGY NUCLEAR OPERATING CO. ) Docket No. 50-346-LRA

)

(Davis-Besse Nuclear Power Station, Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFFS ANSWER IN OPPOSITION TO MOTION TO ADMIT NEW CONTENTION REGARDING THE SAFETY AND ENVIRONMENTAL IMPLICATIONS OF THE NUCLEAR REGULATORY COMMISSION TASK FORCE REPORT ON THE FUKUSHIMA DAI-ICHI ACCIDENT in the above-captioned proceeding have been served on the following by Electronic Information Exchange this 6th day of September, 2011.

William J. Froehlich, Chair Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication Mail Stop: T-3F23 Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: william.froehlich@nrc.gov E-mail: OCAAmail.resource@nrc.gov Nicholas G. Trikorous, Administrative Judge Office of the Secretary Atomic Safety and Licensing Board Panel Attn: Rulemakings and Adjudications Staff Mail Stop: T-3F23 Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: nicholas.trikorous@nrc.gov E-mail: hearingdocket@nrc.gov William E. Kastenberg, Administrative Judge David W. Jenkins, Esq.

Atomic Safety and Licensing Board Panel First Energy Service Company Mail Stop: T-3F23 Mail Stop A-GO-15 U.S. Nuclear Regulatory Commission 76 South Main Street Washington, DC 20555-0001 Akron, OH 44308 E-mail: william.kastenberg@nrc.gov E-mail: djenkins@firstenergycorp.com

Ann Hove, Law Clerk Morgan, Lewis & Bockius Atomic Safety and Licensing Board Panel Pennsylvania Avenue, NW Mail Stop: T-3F23 Washington, D.C. 20004 U.S. Nuclear Regulatory Commission Stephen Burdick, Esq.

Washington, DC 20555-0001 E-mail: sburdick@morganlewis.com E-mail: ann.hove@nrc.gov Alex Polonsky, Esq.

E-mail: apolonsky@morganlewis.com Kathryn M. Sutton, Esq.

E-mail: ksutton@morganlewis.com Timothy Matthews, Esq.

E-mail: tmatthews@morganlewis.com Mary Freeze, Legal Secretary E-mail: mfreeze@morganlewis.com Derek Coronado Michael Keegan Citizens Environmental Alliance (CEA) Dont Waste Michigan of Southwestern Ontario 811 Harrison Street 1950 Ottawa Street Monroe, Michigan 48161 Windsor, Ontario Canada N8Y 197 E-mail: mkeeganj@comcast.net Email: dcoronado@cogeco.net Beyond Nuclear Anita Rios 6930 Carroll Avenue, Suite 400 Green Party of Ohio Takoma Park, MD 20912 2626 Robinwood Avenue Paul Gunter Toledo, Ohio 43610 E-mail: paul@beyondnuclear.com Email: rhannon@toast.net Kevin Kamps Email: Kevin@beyondnuclear.com

/Signed (electronically) by/

Brian G. Harris Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-1392 E-mail: Brian.Harris@nrc.gov