ML12107A417

Exelon'S Notice of Appeal of LBP-12-08

ML12107A417
Person / Time
Site:	Limerick
Issue date:	04/16/2012
From:	Fewell J B, Jones A V, Polonsky A S, Sutton K M Exelon Generation Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
RAS 22271, 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01
Download: ML12107A417 (41)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: ) Docket Nos. 50-352-LR

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

)

(Limerick Generating Station, Units 1 and 2) ) April 16, 2012

) EXELON'S NOTICE OF APPEAL OF LBP-12-08 This appeal presents a threshold legal que stion of potentially wide-ranging impact; namely, whether the adequacy of an applic ant's consideration of "new and significant information" under 10 C.F.R. § 51.53(c

)(3)(iv), in this case related to an issue resolved by rule in Section 51.53(c)(3)(ii), may nonetheless be challenged in a proceeding before an Atomic Safety and Licensing Board ("Board" or "ASLB") absent a waiver from the Commission. The Commission addressed this i ssue with respect to Secti on 51.53(c)(3)(i) in CLI-07-03, 1 and held that a waiver is necessary. Pursuant to 10 C.F.R. § 2.311(d)(1), Exelon Generation Company, LLC ("Exelon") hereby appeals LBP-12-08 so that the Commission can address the issue with respect to Section 51.53(c)(3)(ii), as well as other clear errors made by the Board in this proceeding. In LBP-12-08, the Board presiding over the license renewal proceeding for the Limerick Generating Station, Units 1 and 2 ("Limerick") granted the peti tion to intervene filed by the

1 See Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station) and Entergy Nuclear Vermont Yankee, LLC. & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13, 16 (2007).

2 Natural Resources Defense Council ("NRDC"), 2 and admitted for litigation one National Environmental Policy Act-related contention.

3 Specifically, the Board admitted two parts of Contention 1-E that challenge the evaluation of new and significant information under 10 C.F.R. § 51.53(c)(3)(iv), related to severe accident mitigation alternatives

("SAMAs") in Exelon's Environmental Report ("ER").

Contention 1-E is not a conventional SAMA contention. Exelon is not required to prepare a SAMA analysis in support of the Li merick license renewal application, because the NRC Staff has already performed an analysis of severe accident mitigation design alternatives

("SAMDAs") as part of original plant licensing.

4 This specific exception is set forth clearly and unambiguously in 10 C.F.R. § 51.53(c)(3)(ii)(L).

Although Exelon need not perform a new SAMA analysis to support license renewal, it is required to determine if there is any "new and significant information regarding the environmental impacts of license renewal of which the applicant is aware" under 10 C.F.R. § 51.53(c)(3)(iv).

Thus, the threshold legal question on appeal is whether the adequacy of the applicant's consideration of new and significant information related to the NRC Staff's prior SAMDA analysis may be challenged in a license renewal proceeding absent a waiver from the Commission. Exelon argues that it cannot. This position is fully consistent with Commission decisions in Pilgrim and Vermont Yankee , which stand for the proposition that an intervenor may

2 [NRDC] Petition to Intervene and Notice of Intention to Participate (Nov. 22, 2011) ("Petition"), available at ADAMS Accession No. ML11326A320.

3 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2, LBP-12-08, 75 NRC __, slip op. (Apr. 4, 2012).

4 See 10 C.F.R. § 51.53(c)(3)(ii)(L); Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,481 (June 5, 1996) ("NRC staff considerations of [SAMAs] have already been completed and included in an EIS or supplemental EIS for Limerick, Comanche Peak, and Watts Bar. Therefore, [SAMAs] need not be reconsidered for these plants for license renewal.").

3 not challenge an applicant's an alysis of new and significant information for matters otherwise resolved by rule.

5 To allow otherwise would obviate the exceptions in Section 51.53(c)(3), and permit unfettered challenges to analyses that the Commission has expressly determined, by rule, need not be conducted again for license renewal, absent a waiver. Such a result is not confined to this proceeding, or even license renewal proceedings, but is germane to NRC adjudicatory proceedings in general. In addition, to the extent that Contention 1-E, as admitted by the Board, challenges Exelon's economic cost analysis, it fails to include sufficient support to show that Exelon's analysis was unreasonable, and thus fails to demonstrate a genuine dispute on a material issue, as required by 10 C.F.R. § 2.309(f)(1). Exelon expl ained in its Answer why NRDC's support for the Contention actually illustrates the reasonableness of Exelon's analysis 6 , but the Board failed to address this argument in LBP-12-08. Therefore, it was clear error for the Board to admit this part of Contention 1-E.

Exelon's Brief in Support of the Appeal of LB P-12-08 is attached. Exelon respectfully requests that the Commission expedite its review of this appeal, to minimize the expenditure by all parties of resources toward s litigation of Contention 1-E.

5 See Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station) and Entergy Nuclear Vermont Yankee, LLC. & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13, 17-18 (2007); see also Entergy Nuclear Generation Co. (Vt. Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 149 (2006); Entergy Nuclear Generation Co (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 288 (2006).

6 Exelon's Answer Opposing NRDC's Petition to Intervene at 47-49 (Dec. 20, 2011), available at ADAMS Accession No. ML11354A541.

4 DB1/ 69372657.3 Respectfully submitted, Signed (electronically) by Alex S. Polonsky Alex S. Polonsky Kathryn M. Sutton

Anna V. Jones

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

Phone: 202-739-5830

Fax: 202-739-3001 E-mail: apolonsky@morganlewis.com

J. Bradley Fewell

Vice President and Deputy General Counsel

Exelon Generation Company, LLC

200 Exelon Way

Kennett Square, PA 19348

Phone: 630-657-3769

Fax: 630-657-4335 E-mail: Bradley.Fewell@exeloncorp.com

COUNSEL FOR EXELON Dated in Washington, D.C.

this 16th day of April 2012

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: ) Docket Nos. 50-352-LR

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

)

(Limerick Generating Station, Units 1 and 2) ) April 16, 2012

) EXELON'S BRIEF IN SUPPORT OF THE APPEAL OF LBP-12-08

i TABLE OF CONTENTS I. INTRODUCTION 1II. BACKGROUND 2III. LEGAL STANDARDS 4 A. Standard of Review 4 B. Contention Admissibility Standards 4IV. ARGUMENT 6 A. Relevant Background 8 B. The Board Clearly Erred in Admitting a Contention Challenging New and Significant Information Related to An Issue Resolved by Rule, Absent a Waiver 11 C. The Board Also Clearly Erred When It Admitted a Contention That Does Not Demonstrate a Genuine Dispute of a Material Issue 22V. CONCLUSION 28 ii TABLE OF AUTHORITIES DECISIONS Page AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111 (2006).

4 Balt. Gas & Elec. Co. v.

[NRDC], 462 U.S. 87 (1983). 9Black & Decker Corp. v. Comm'r of Internal Revenue, 986 F.2d 60 (4th Cir.

1993). 17Citizens Against Burlington v. Busey , 938 F.2d 190 (D.C. Cir. 1991).

24 Crow Butte Res. Inc. (N. Trend Expansion Proj ect), CLI-09-12, 69 NRC 535, 552 (2009).

5 Crow Butte Res., Inc. (License Renewal for In Situ Leach Facility, Crawford, Neb.), CLI-09-9, 69 NRC 331 (2009).

4 Dominion Nuclear Conn., Inc. (Millstone Nuclear Powe r Station, Units 2 & 3), CLI-01-24, 54 NRC 349 (2001).

5 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CL I-02-17, 56 NRC 1 (2002).

24 Duke Energy Corp. (Oconee Nuclear Station, Un its 1, 2, & 3), CLI-99-11, 49 NRC 328 (1999).

5Entergy Nuclear Generation Co (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257 (2006).

1, 7, 12, 14, 15, 16, 17, 18, 20 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449 (2010).

20 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC __ (Feb. 9, 2012) .

6, 23, 26Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station) and Entergy Nuclear Vermont Yankee, LLC. & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13 (2007).

1, 7, 12, 14, 19-20 iii DECISIONS PageEntergy Nuclear Generation Co. (Vt. Yankee Nuclear Power Station), LBP 20, 64 NRC 131 (2006).

1, 7, 12, 14, 15, 16, 17, 18, 20 Exelon Generation Co. (Limerick Generating Station, Units 1 and 2), Sec'y Order (Oct. 17, 2011), available at ADAMS Accession No. ML11290A233.

2 Exelon Generation Co. (Limerick Generating Station, Units 1 and 2), Notice and Order (Scheduling Oral Argument) at 3-4 (Jan. 31, 2012).

3 Exelon Generation Co. (Limerick Generating Station, Units 1 and 2), LBP 08, 75 NRC __ (Apr. 4, 2012).

1, 3, 6, 7, 8, 11, 12, 14, 20, 21, 22, 23, 24, 25 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-08, 75 NRC __ (Mar. 27, 2012).

4, 6, 24, 26, 27 Fla. Power & Light Co. (Turkey Point Nuclear Genera ting Plant, Units 3 & 4), CLI-01-17, 54 NRC at 3 (2001).

20Hart v. McLucas, 535 F.2d 516 (9th Cir. 1976).

14 Hydro Resources, Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87120), CLI-99-22, 50 NRC 3 (1999).

23 Jay v. Boyd, 351 U.S. 345 (1956).

14 La. Energy Servs. L.P. (Nat'l Enrichment Facility), LBP-06-8, 63 NRC 241 (2006). 8 Limerick Ecology Action, Inc. v. U.S. NRC , 869 F.2d 719 (3rd Cir. 1989).

10 Marsh v. Oregon Natural Resources Council , 490 U.S. 360 (1989).

23 Massachusetts v. U.S. NRC, 522 F.3d 115 (1st Cir. 2008). 12,14, 20 NextEra Energy Seabrook (Seabrook Station, Unit 1), CLI-12-05, 75 NRC __ (Mar. 8, 2012).

4, 5, 6, 26 Pa'ina Haw., LLC (Material License Applicat ion), CLI-06-13, 63 NRC 508 (2006). 4, 10 iv DECISIONS PagePhil. Elec. Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681 (1985).

8Phil. Elec. Co. (Limerick Generating Station, Un its 1 and 2), CLI-86-5, 23 NRC 125 (1986).

8 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318 (1999).

5 Private Fuel Storage , L.L.C. (Indep. Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340 (2002).

27Russello v. United States

, 464 U.S. 16 (1983). 17 Sierra Club v. Froehlke, 816 F.2d 205 (5th Cir. 1987). 23 Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-05 (Sept. 9, 2011).

23Vt. Yankee Nuclear Power Corp. v.

[NRDC] , 435 U.S. 519 (1978).

24

FEDERAL REGISTER PageEnvironmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996).

9, 10, 11, 15, 18, 19, 24Notice of Acceptance for Docketing of th e Application and Notice of Opportunity for Hearing Regarding Renewal of Facil ity Operating License Nos. NPF-39 and NPF-85 for an Additional 20-Year Period; Exelon Generation Co., LLC, Limerick Generating Station, 76 Fed. Reg. 52,992 (Aug. 24, 2011).

2Proposed Rule, Rules of Practice for Domestic Licensing Proceedings-Procedural Changes in the Hearing Pr ocess, 51 Fed. Reg. 24,365 (July 3, 1986).

5

v FEDERAL STATUTES Page 42 U.S.C. § 4321, et seq. 8 FEDERAL REGULATIONS Page10 C.F.R. § 2.309 1, 2, 4, 5, 7, 22, 2710 C.F.R. § 2.311(d)(1) 1, 2, 3, 410 C.F.R. § 2.335 12, 13, 1510 C.F.R. Part 51 910 C.F.R. pt. 51, subpt. A, app. B, tbl. B-1. 9, 10, 1110 C.F.R. § 51.53 810 C.F.R. § 51.53(c)(3) 7, 12, 13, 14, 15, 17 10 C.F.R. § 51.53(c)(3)(i) 12, 13, 14, 15, 16, 17, 19, 2210 C.F.R. § 51.53(c)(3)(ii) 6, 8, 10, 11, 12, 13, 14, 15, 17, 19, 2210 C.F.R. § 51.53(c)(3)(iv) 6, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22 10 C.F.R. § 51.95(c) 1010 C.F.R. § 52.103(b) 5 vi

OTHER AUTHORITIES PageNUREG-0974 Supplement, "Final Environmental Statement related to the operation of Limerick Generating Station, Units 1 and 2" (Aug. 1989), available at ADAMS Accession No. ML11221A204.

8-9 NUREG-1437, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants," Vol. 1 (May 1996), available at ADAMS Accession No.

ML040690705.

9SECY-93-032, 10 CFR Part 51 Rulemaking on Environmental Review for Renewal of Nuclear Power Plant Operating Licenses (Feb. 9, 1993), available at ADAMS Accession No. ML072260444.

17, 18 1 I. INTRODUCTION In accordance with 10 C.F.R. § 2.311(d)(1), Exelon Generation Company, LLC ("Exelon" or the "Applicant") hereby timely appeals the Atomic Safety and Licensing Board's

("Board") April 4, 2012 Order (LBP-12-08) 1 granting a Petition to Intervene 2 in the license renewal proceeding for the Limerick Genera ting Station, Units 1 and 2 ("Limerick"). Specifically, the Board's Order admitted for litigation one contention (i.e., Contention 1-E), which challenges the analysis of new and significant information contained in Exelon's Environmental Report ("ER") related to severe accident mitigation alternatives ("SAMAs"),

even though Exelon is excepted by rule from considering SAMAs for Limerick in a license renewal proceeding. In summary and as demonstrated below, the Board made a clear error in admitting this contention. Commission preceden t and regulatory history recognize that an applicant's consideration of new and significant information, related to a matter resolved by rule, is not litigable in a license renewal proceeding absent a waiver.

3 In addition, the contention fails to demonstrate a genuine dispute of a material issue, contrary to the requirements of 10 C.F.R.

§ 2.309(f)(1).

For these reasons, Contention 1-E does not satisfy the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1). As a result, the Petition should have been wholly

1 Exelon Generation Co. (Limerick Generating Station, Units 1 and 2), LBP-12-08, 75 NRC __, slip op. (Apr. 4, 2012).

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

3 See Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station) and Entergy Nuclear Vermont Yankee, LLC. & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13, 16 (2007); see also Entergy Nuclear Generation Co. (Vt. Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 149 (2006); Entergy Nuclear Generation Co (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 288 (2006).

2 denied. Exelon hereby files this Appeal of the Board's Order, pursuant to 10 C.F.R.

§ 2.311(d)(1). II. BACKGROUND Limerick, located in Limerick Township, Pennsylvania, has safely generated 2,340 MWe of baseload electrical power for the Mid-Atlan tic region for more than 20 years, with only temporary breaks for refueling and outages.

4 On June 22, 2011, Exelon submitted an application to the NRC requesting the renewal of the Limeri ck operating licenses for an additional 20 years (i.e., until midnight on October 26, 2044, for Unit 1, and midnight on June 22, 2049, for Unit 2).

5 The NRC Staff accepted Exelon's applicati on for docketing and published a Hearing Notice in the Federal Register on August 24, 2011.

6 The Hearing Notice states that any person whose interest may be affected by this proceeding, and who wishes to participate as a party, must file a petition for leave to intervene in accordance with 10 C.F.R. § 2.309.

7 On November 22, 2011, Natural Resources Defense Council ("NRDC") timely filed its Petition, which contained four proposed contentions challenging portions of Exelon's ER.

8 None of the proposed

4 Applicant's Environmental Report - Operating License Renewal Stage, Limerick Generating Station, Units 1 and 2, at 2-3, 7-4 to 7-5, 7-10, 7-17 (Jun. 2011) ("ER"), available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/limerick/lgs-er-web.pdf; see also Tr. 22 (Polonsky).

5 See Letter from M. Gallagher, Exelon, to NRC, "Application for Renewed Operating Licenses" (June 22, 2011), available at ADAMS Accession No. ML11179A096.

6 See Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. NPF-39 and NPF-85 for an Additional 20-Year Period; Exelon Generation Co., LLC, Limerick Generating Station, 76 Fed. Reg. 52,992, 52,992-94 (Aug. 24, 2011) ("Hearing Notice").

7 Hearing Notice, 73 Fed. Reg. at 52,993.

8 See generally Petition. Although the Hearing Notice indicated that a Petition to Intervene would be timely if filed by October 24, 2011, NRDC requested an extension of time for filing its Petition until November 22, 2011. See Letter from G. Fetus, NRDC, to NRC Sec'y, "Extension of Time for Opportunity to Request a Hearing and Petition for Leave to Intervene in the NRC Notice of Opportunity for Hearing Regarding Renewal of [Limerick Station] for Additional 20-Year Period (Sept. 22, 2011), available at ADAMS Accession No. ML11266A083. By Order dated October 17, 2011, the Secretary for the Commission granted this request. Sec'y Order (Oct. 17, 2011), available at ADAMS Accession No. ML11290A233 (granting NRDC an extension of 30 days to file a petition to intervene).

3 contentions raised a safety concern. Exelon and the NRC Staff filed timely answers to the Petition on December 20 and 21, 2011, respectively.

9 Exelon and the NRC Staff did not challenge NRDC's standing, but they did challenge the admissibility of all of the contentions.

10 On January 6, 2012, NRDC filed its Combined Reply to Exelon's and the NRC Staff's Answers.

11 Shortly thereafter, the Board scheduled oral argument on the admissibility of the four contentions.

12 The Board's Order scheduling oral argument included a preliminary list of questions the hearing part icipants should be prepared to answer at oral argument, which was held on February 21, 2012.

13 Thereafter, on April 4, 2012, the Board issued LBP-12-08, ruling that NRDC has standing and admitting a limited and re-worded Contention 1-E. In accordance with the Board's Order 14 and 10 C.F.R. § 2.311(d)(1), Exel on hereby appeals that decision.

9 Exelon's Answer Opposing NRDC's Petition to Intervene (Dec. 20, 2011) ("Exelon Answer"), available at ADAMS Accession No. ML11354A541; NRC Staff's Answer to [NRDC] Petition to Intervene and Notice of Intention to Participate (Dec. 21, 2011) ("Staff Answer"), available at ADAMS Accession No. ML11355A174.

10 See generally Exelon Answer; Staff Answer.

11 [NRDC] Combined Reply to Exelon and NRC Staff Answers to Petition to Intervene (Jan. 6, 2012) ("Reply"), available at ADAMS Accession No. ML12006A224. Because the Reply provided new bases and supporting material for the contentions, the NRC Staff and Exelon separately moved to strike portions of the Reply on January 17, 2012. Exelon's Motion to Strike Portions of NRDC's Reply (Jan. 17, 2012), available at ADAMS Accession No. ML12017A258; NRC Staff's Motion to Strike Impermissible New Claims in [NRDC's] Reply Brief (Jan. 17, 2012), available at ADAMS Accession No. ML12017A202. NRDC responded to those motions on January 27, 2012. [NRDC] Combined Opposition to Motions to Strike (Jan. 27, 2012), available at ML12027A234. The Board denied the Motions to Strike, but because the Motions related to contentions that the Board rejected in LBP-12-08, the Motions to Strike are moot, and Exelon is not appealing their denial.

12 See Notice and Order (Scheduling Oral Argument) at 3-4 (Jan. 31, 2012).

13 Id. at 4 n.17; id. App. A. 14 Limerick , LBP-12-08, slip op. at 41.

4 III. LEGAL STANDARDS A. Standard of Review To intervene in an NRC licensing proceeding, a petitioner must demonstrate standing and propose at least one contention that satisfies the admissibility criteria set forth in 10 C.F.R.

§ 2.309(f)(1).

15 Under 10 C.F.R. § 2.311(d)(1), an a pplicant may appeal an order granting a petition to intervene, if "the re quest for hearing or petition to in tervene should have been wholly denied." In other words, the applicant must dispute the admissibility of all of the contentions admitted by the Board.

16 Although the Commission generally defers to board decisions on contention admissibility, it will reverse a decision if there is clear "error of law or abuse of discretion."

17 The Commission has explained that allowing boards "to entertai n contentions grounded on little more than guesswork would waste the scar ce adjudicatory resour ces of all involved."

18 B. Contention Admissibility Standards NRC regulations at 10 C.F.R. § 2.309(f)(1) spec ify that a hearing request "must set forth with particularity the contentions so ught to be raised."

19 In addition, each contention must:

(1) provide a specific statement of the legal or factual issue sought to be raised; (2) provide a brief explanation of the basis for the contention; (3) demonstrate that the issue raised is within the scope of the proceeding; (4) demonstrate that the issue raised is material to the findings the NRC must make to support the action that is i nvolved in the proceeding;

15 See 10 C.F.R. § 2.309(a).

16 See AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 119 (2006); Pa'ina Haw., LLC (Material License Application), CLI-06-13, 63 NRC 508, 509 (2006).

17 See, e.g., FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-08, 75 NRC __, slip op. at 5 (Mar. 27, 2012); NextEra Energy Seabrook (Seabrook Station, Unit 1), CLI-12-05, 75 NRC __, slip op. at 8 (Mar. 8, 2012).

18 Crow Butte Res. Inc. (N. Trend Expansion Project), CLI-09-12, 69 NRC 535, 552 (2009); see also Crow Butte Res., Inc. (License Renewal for In Situ Leach Facility, Crawford, Neb.), CLI-09-9, 69 NRC 331, 363-364 (2009).

19 10 C.F.R. § 2.309(f)(1) (emphasis added).

5 (5) provide a concise statement of the allege d facts or expert opinions, including references to specific sources and documents that support the petitioner's position and upon which the petitioner intends to rely; and (6) provide sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact.

20 Licensing boards must reject a proposed contention that fails to comply with any one of these six admissibility criteria.

21 The Commission's rules on contention admissibility are "strict by design."

22 The Commission "toughened [the rules] in 1989 because in prior years 'licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation.'"

23 The Commission designed its current contention pleading requirements to avoid the admission of "frivolous contentions" where the petitioner "may not fully understand a contention" or does not "adequately identify the issues that [it] seeks to litigate."

24 Quite recently, the Commission instructed that "'contentions shall not be admitted if at the outset they are not described with reasonable specificity or are not supported by some alleged fact or facts demonstrating a genuine material dispute' with the applicant. We properly 'reserve our hearing process for genuine, material controversies between knowledgeable litigants.'"

25 20 10 C.F.R. § 2.309(f)(1)(i)-(vi). The seventh contention admissibility requirement-10 C.F.R. § 2.309(f)(1)(vii)-is on ly applicable in proceedings arising under 10 C.F.R. § 52.103(b) and, therefore, has no bearing on the admissibility of NRDC's proposed contentions in this proceeding. Exelon provided a more thorough description of the legal principles governing the application of each of the six criterion in its December 20, 2011 Answer.

See Exelon's Answer at 5-10.

21 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

22 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001) (citing Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 334 (1999)).

23 Millstone, CLI-01-24, 54 NRC at 358 (citing Oconee, CLI-99-11, 49 NRC at 334).

24 Proposed Rule, Rules of Practice for Domestic Licensing Proceedings-Procedural Changes in the Hearing Process, 51 Fed. Reg. 24,365, 24,366 (July 3, 1986). The Commission also has emphasized that the "contention pleading rules are designed to ensure both that only well-defined issues are admitted for hearing and that parties admitted to litigate sophisticated technical issues are qualified to do so." North Trend , CLI-09-12, 69 NRC at 552.

25 Seabrook, CLI-12-05, slip op. at 7 (citation omitted).

6 IV. ARGUMENT The Board erred when it admitted Contention 1-E, which was reframed by the Board as follows: Applicant's [ER] § 5.3 erroneously concludes that new information related to its severe accident mitigation design alternatives [("SAMDAs")] analysis is not signif icant, in violation of 10 C.F.R.

§ 51.53(c)(3)(iv), and thus the ER fails to present a legally sufficient analysis in that: 1. Exelon has omitted from its ER a required analysis of new and significant information regard ing potential new [SAMAs]

previously considered for other

[boiling water reactor ("BWR")] Mark II Containment reactors.

2. Exelon's reliance on data from

[Three Mile Island ("TMI")] in its analysis of the significance of new information regarding economic cost risk constitutes an inadequate analysis of new and significant information.

26 As a threshold matter, Contention 1-E is not a conventional SAMA contention like those that other licensing boards and the Commission have seen in recent license renewal proceedings for Seabrook , 27 Pilgrim , 28 and Davis Besse

, 29 for example. As explai ned in the sections that follow, unlike the applicants in those proceedings, Exelon is not required to conduct a SAMA analysis to support Limerick's license renewal, because the NRC Staff performed an analysis of SAMDAs as part of Limerick's original plant licensing. This specifi c exception is set forth clearly and unambiguously in 10 C.F.R. § 51.53(c)(3

)(ii)(L). Although Exelon need not perform a new SAMA analysis to support Limerick's license renewal, Section 51.53(c)(3)(iv) does require Exel on to evaluate whether there is any "new and

26 Limerick, LBP-12-08, slip op. at 40.

27 See Seabrook, CLI-12-05, slip op. at 47 (reversing the licensing board's admission of a SAMA contention).

28 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC __, slip op. at 2, 31 (Feb. 9, 2012) (denying intervenor's appeal of the board's rejection of a SAMA contention).

29 See Davis-Besse, CLI-12-08, slip op. at 5 (reversing the licensing board's admission of two aspects of a SAMA contention).

7 significant information regarding the environmental impacts of license renewal of which the applicant is aware." It is Exelon's position that the adequacy of its c onsideration of new and significant information related to the prior Limerick SAMA analysis, however, may not be challenged in the instant license renewal proceeding absent a waiver. This position is consistent with the Commission's rulings in Pilgrim and Vermont Yankee , in which it upheld licensing board determinations that an intervenor may not challenge an applicant' s analysis of new and significant information for matters otherwise resolved by rule.

30 To allow otherwise would obviate the exceptions in Section 51.53(c)(3), and permit unfettered challenges to analyses that the Commission has expressly determined, by rule, need not be conducted again for purposes of license renewal. In addition, as admitted by the Board, Contention 1-E challenges Exelon's consideration of off-site economic costs related to a severe accident, as thos e costs pertain to SAMA cost-benefit analyses. But this part of Contention 1-E fails to include sufficient support to show that Exelon's analysis was unreasonable, and thus fails to demonstrate a genuine dispute on a material issue, as required by 10 C.F.R. § 2.309(f)(1). Exelon's Answer fully explains why NRDC's purported support for the Contention actually illustrates the reas onableness of Exelon's analysis of new and significant information.

31 The Board, however, fails to address the Exelon Answer's argument in LBP-12-08, which was a clear error.

30 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13, 17-18 (2007); see also Entergy Nuclear Generation Co. (Vt. Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 149 (2006); Entergy Nuclear Generation Co (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 288 (2006).

31 See Exelon's Answer at 47-49 (explaining that the economic cost ratios proffered by NRDC actually demonstrate that the value used by Exelon was reasonable).

8 A. Relevant Background NRC regulations expressly provi de that Exelon need not evaluate SAMAs for purposes of Limerick's license renewal.

32 The regulatory and procedural context underlying this regulatory provision-with which the Board correctly agrees 33-is summarized below. As a threshold matter, NRC regulations at 10 C.F.R. § 51.53, implementing the requirements of the National Environmental Policy Act, as amended ("NEPA"), 34 require that a license renewal application include an ER that analyzes the environmental impacts of the proposed action, as well as certain mitigation alternatives.

35 Among the mitigation alternatives that license renewal applicants may be required to address under 10 C.F.R. § 51.53(c)(3)(ii)(L), are SAMAs. The genesis of that requirement lies in the litigation over issuance of the original Limerick operating licenses, which ultimately reached the Third Circuit Court of Appeals.

36 As a result of that litigation, the NRC Staff prepared an analysis of SAMDAs as part of initial Limerick licensing.

37 In August 1989, the NRC Staff published its findings in the NUREG-0974 Supplement, "Final Environmental Statement related to the operation of Limerick Generating

32 See Exelon's Answer at 10-16.

33 See LBP-12-08, slip op. at 33-34.

34 See 42 U.S.C. § 4321, et seq. 35 See id. § 4332(2)(C). Issuance by NRC of a renewed operating license is a major federal action under NEPA. See La. Energy Servs. L.P. (Nat'l Enrichment Facility), LBP-06-8, 63 NRC 241, 258 (2006).

36 See Limerick Ecology Action, Inc. v. U.S. NRC, 869 F.2d 719, 726 (3rd Cir. 1989). In the licensing proceeding for the original operating license at Limerick, several intervenors challenged the applicant's failure to consider SAMAs in its ER.

See id. at 722-23. The licensing board did not admit that contention.

See id. at 732. An Appeal Board affirmed the licensing board's decision, see Phil. Elec. Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 696-97 (1985), and the Commission declined review. See Phil. Elec. Co. (Limerick Generating Station, Units 1 and 2), CLI-86-5, 23 NRC 125 (1986). Prior to the ruling by the U.S. Court of Appeals for the Third Circuit in that matter, the NRC reasoned that the probability of severe accidents was so low that consideration of the consequences under NEPA was unnecessary. See Limerick Ecology Action, 869 F.2d at 726; Answer at 11-12. The Third Circuit disagreed, however, and found that the NRC's failure to consider SAMAs in individual licensing proceedings violated NEPA. Limerick Ecology Action, 869 F.2d at 741 (remanding the matter for consideration of the SAMA contention).

37 See NUREG-0974, Supp., Final Environmental Statement Related to the Operation of Limerick Generating Station, Units 1 and 2 (Aug. 1989), available at ADAMS Accession No. ML11221A204 ("Limerick FES").

9 Station, Units 1 and 2" ("Limerick FES"), conclu ding that, based on its anal ysis of the cost of SAMDAs and the resulting cost per person-rem averted, no modifications to the plant were justified for mitigating severe accident risk.

38 In the years that followed, the NRC Staff evaluated the environmental impacts of licensing that it could address generically, c onsistent with NEPA.

39 The Commission reasoned that many environmental issues th at apply to license renewal app licants, in particular, could be resolved generically.

40 Thus, in 1996, the NRC published its generic findings in NUREG-1437, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants" ("GEIS").

41 The NRC also amended its environmental regul ations at 10 C.F.R. Part 51 to codify certain findings from the GEIS.

42 In this regard, Part 51 divides the environmental impacts from license renewal into Category 1 and Category 2 issues.

43 Category 1 issues are those resolved for all plants by the GEIS and as suc h, Category 1 issues need not be addressed in plant-specific license renewal ERs.

44 In comparison, Category 2 issues require plant-sp ecific review.

45 For each license renewal applicant, Part 51 requires that the NRC Staff prepare a plant-specific

38 See Limerick FES at vi.

39 See Balt. Gas & Elec. Co. v.

[NRDC], 462 U.S. 87, 97-98 (1983).

40 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,467-68 (June 5, 1996).

41 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Vol. 1 (May 1996), available at ADAMS Accession No. ML040690705.

42 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,467. 43 See generally, 10 C.F.R. pt. 51, subpt. A, app. B, tbl. B-1.

44 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,474. 45 See id.

10 supplement to the GEIS that adopts applicable generic impact fi ndings from the GEIS, evaluates any new and significant information, and discusses site-specific impacts.

46 As for mitigation of severe accidents, the Commission determined that SAMAs must be considered on a plant-specific basis, pursuant to the NRC's NEPA regulations and the Third Circuit's 1989 Limerick decision.

47 But the Commission expressly noted that the Staff had already conducted a plant-specific SAMDA analysis at the operating license stage for three plants-Limerick Units 1 and 2, Comanche Peak Units 1 and 2, and Watts Bar.

48 As a result, the Commission does not require another SAMA analysis to be conducted for purposes of license renewal for any of these plants.

49 Section 51.53(c)(3)(ii)(L) codifies this determination, requiring: If the staff has not previously considered severe accident mitigation alternatives for the applicant's plant in an environmental impact statement or in an environmental assessment, a consideration of alternatives to mitigate severe accidents must be

provided.50 46 See 10 C.F.R. § 51.95(c).

47 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,480; see also Limerick Ecology Action, 869 F.2d at 736-39.

48 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481 ("an NRC staff consideration of SAMDAs was specifically included in the [FES] for the Limerick 1 and 2 and Comanche Peak 1 and 2 operating license reviews, and in the Watts Bar Supplemental Final Environmental Statement for an operating license").

49 Id. ("NRC staff considerations of [SAMAs] have already been completed and included in an EIS or supplemental EIS for Limerick, Comanche Peak, and Watts Bar. Therefore, [SAMAs] need not be reconsidered for these plants for license renewal."). Statements of Consideration illustrate or explain rules that are legally binding.

See Exelon Answer at 19 n.107; Oral Arguments Tr. 134-136 (Polonsky), Feb. 21, 2012 (citing Pa'ina, CLI-08-03, for the premise that the Commission uses Statements of Consideration as an aid in interpreting NRC regulations, in response to questions posed by the Board in its January 31, 2012 Notice and Order (Scheduling Oral Argument)).

50 10 C.F.R. § 51.53(c)(3)(ii)(L);

see also 10 C.F.R. pt. 51, subpt. A, app. B, tbl. B-1; see also Tr. 166 ("the Commission recognized back in 1996 that future SAMA analyses could identify other cost beneficial mitigation measures, but that they still made the determination. They drew the line and made the determination that if a SAMA had been done for a plant, another one need not be for license renewal given the other generic and site specific studies that had been done and would continue to be done for that plant.") (Kanatas).

11 Because the Commission could not resolve the matter of SAMAs generically for all plants, it determined in the Part 51 rulemaking that "the issue of severe accidents must be reclassified as a Category 2 issue that requires a consideration of severe accident mitigation alternatives, provided this consideration has not already been completed

."51 In other words, consideration of severe accident mitigation alternatives is functionally a Category 1 issue for Limerick; that is, an issue that need not be addressed at license rene wal, and one that the Commission has resolved generically by rule for Limerick and other similarly situated plants.

52 In this procedural context, and within this regulatory framework, Ex elon prepared its ER for license renewal. For purposes of complian ce with Section 51.53(c)(3)(ii)(L), Exelon did not conduct another SAMA analysis.

53 But, as required by Sec tion 51.53(c)(3)(iv), Exelon did evaluate the significance of new information that post-dated the 1989 FES, relating to matters such as offsite economic cost risk.

54 Exelon concluded "that there is no new and significant information relevant to the conclusions codified in 10 C.F.R. § 51.53(c)(3)(ii)(L)."

55 B. The Board Clearly Erred in Admitting a Contention Challenging New and Significant Information Related to An Issue Resolved by Rule, Absent a Waiver The threshold legal issue on appeal is whethe r the adequacy of Exelon's analysis of new and significant information related to SAMAs is litigable in a license renewal proceeding, absent

51 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,480 (emphasis added); see also 10 C.F.R. pt. 51, subpt. A, app. B, tbl. B-1 (identifying severe accident mitigation as a Category 2 issue).

52 See Exelon's Answer at 14-16 (providing a more fulsome explanation of the relevant regulatory history).

53 See ER at 4-49. Nor did Exelon incorporate the Limerick 1989 SAMDA analysis in the Limerick license renewal ER, as NRDC erroneously suggests. See Petition at 16; ER at 5-4; see also Limerick, LBP-12-08, slip op. at 30.

54 See ER at 5-6 to 5-9; see also Tr. 72-73, 75, 98-99 (Polonsky).

55 ER at 4-49.

12 a waiver from the Commission under Section 2.335.

56 In LBP-12-08, the Board held that it is, and that a waiver is not necessary.

57 As explained below, that hol ding is inconsistent with NRC precedent in the license renewal proceedings for Pilgrim and Vermont Yankee 58 and misinterprets a dispositive legal argument posed by Exelon and the NRC Staff. To fully appreciate the question presented by Contention 1-E, it is helpful to review the regulatory construction of 10 C.F.R. § 51.53(c)(3). Secti on 51.53(c) contains the NRC's requirements for a license renewal applicant's environmenta l review. Section 51.53(c)(1) requires that a license renewal applicant submit an ER, and Section 51.53(c)(2) describes the required components of that ER. Section 51.53(c)(3) provides that the ER "shall include the information required in paragraph (c)(2) of this section subject to the following conditions and considerations." Emphasis added. Section 51.53(c)(3) th en lists four subsections defining the applicable "conditions and considerations

": (i), (ii), (i ii), and (iv).

Subsections (i), (ii), and (iv) are relevant to the instant anal ysis. Subsection (i) provides that "Category 1" issues need not be addressed in an ER. This is the subsection that the Commission explicitly addressed in Pilgrim and Vermont Yankee

.59 Subsection (ii) contains

56 The Board's description of Exelon's position as a "blanket assertion" that these issues are not litigable at license renewal is not accurate. See Limerick

, LBP-12-08, slip op. at 11. Both in its Answer and at oral argument, Exelon repeatedly made clear-as did the Staff-that such issues are not litigable absent a waiver. See, e.g., Exelon's Answer at 25 ("Commission precedent clearly requires that-absent a waiver-an [ASLB] must reject any contention");

id. at 26 ("NRDC's argument must fail given its failure to seek and obtain waiver");

id. at 27 ("because NRDC has not sought the requisite waiver . . .");

id. at 28 ("it is well-settled that, absent a waiver . . .");

id. at 33 ("contentions that challenge an applicant's consideration of new and significant information related to a Category 1 issue are inadmissible, absent a waiver."); Tr. at 24 (Polonsky) ("an existing NRC regulation cannot be challenged in a license renewal proceeding, absent a waiver"); Tr. at 54 (Polonsky) ("I tend to simplify and say it's not litigable. It's not litigable. But clearly, [10 C.F.R. §] 2.335 exists to everything I am saying, and if there is a waiver that it submitted and granted by the Commission then of course, it could be litigable, but we don't have those circumstances here.").

57 See Limerick

, LBP-12-08, slip op. at 11, 16.

58 See Vt. Yankee, LBP-06-20, 64 NRC at 155-61; Pilgrim, LBP-06-23, 64 NRC at 294-300; Pilgrim & Vt. Yankee, CLI-07-3, 65 NRC at 16; see also Massachusetts v. U.S. NRC, 522 F.3d 115 (1st Cir. 2008).

59 See Pilgrim

& Vt. Yankee, CLI-07-3, 65 NRC at 16.

13 specific analyses that must be included in an ER, and other analyses that-like Category 1 issues-need not be included in an ER. This is the subsection that contains the exception for Exelon from the requirement to prepare a SAMA analysis for Limerick as part of license

renewal. Finally, subsection (iv) requires the ER generally to include "any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware."

The threshold legal question before the Commission, then, is: how should the requirement at Subsection (iv) to consider new and significant information be understood in light of the other subsections of 51.53(c)(3) (i.e., Subsections (i) and (ii)) that exempt certain analyses from consideration in license renewal? In other words, what is a licensing board to do with a contention that challenges the adequacy of an applicant's analysis of new and significant information for an issue otherwise precluded by rule? The answer to this question reaches far beyond the Limerick license renewal proceeding.

Indeed, if the Board's ruling is allowed to stand, then license renewal applicants excluded from the requirements to consider any of the analyses listed under 10 C.F.R. §§ 51.53(c)(3)(ii)(A)-(D), (F)-(H), or (L), may nevertheless find those analyses at issue in license renewal litigation. Moreover, the Board's ruling could undermine the waiver requirement of 10 C.F.R. § 2.335, as it applies to NRC adjudicatory proceedings generally.

Even at the most superficial level, admission of Contention 1-E obviates the plain language exception in Section 51.53(c)(3)(ii)(L). It would be illogical for the rule to except Limerick from the requirement to include a SAMA analysis in its li cense renewal ER, but nonetheless subject the adequacy of such an analysis to litigation in a license renewal 14 proceeding.

60 And reading Section 51.53(c)(3)(iv) to eviscerate Sec tion 51.53(c)(3)(ii) violates Supreme Court instruction to "read the body of regulati ons . . . so as to give effect, if possible, to all of its provisions."

61 But the Commission need not decide this questio n on a superficial level, or even decide it anew. A series of NRC and federal court ho ldings pertaining to license renewal for Pilgrim and Vermont Yankee previously examined the fundamental legal question that is at issue here.

62 In those cases, and after a thorough examination of the regulatory hi story of Section 51.53(c)(3), Licensing Boards, the Commission, and the Court of Appeals for the First Circuit all concluded that a petitioner in a license renewal proceeding may not use Subsection (iv) to litigate matters excluded under Subsection (i), absent a waiver from the Commission.

63 The crux of those decisions was not the "Category 1" nomenclature covered by S ubsection (i). Rather, it was because the analyses at issue were expressly precluded by rule from cons ideration in a license renewal proceeding.

In LBP-12-08, the Board erroneously interpreted this precedent as being limited to whether Exelon could "establish that SAMAs are, indeed, Category 1 issues for Limerick."

64 60 See Tr. 106 (Polonsky) ("one of the concerns from a legal perspective is that the Commission created the exception, and that there not be some back door to eviscerate the exception . . . .).

61 Jay v. Boyd, 351 U.S. 345, 360 (1956); see also Hart v. McLucas, 535 F.2d 516, 519 (9th Cir. 1976) ("constructions which render regulatory provisions superfluous are to be avoided" ); see also Exelon's Answer at 26, 33.

62 See, e.g., Vt. Yankee, LBP-06-20, 64 NRC. at 156 ("assuming arguendo that an ER fails to include new and significant information (known to the applicant) relating to a Category 1 environmental issue and thus fails to comply with 10 C.F.R. § 51.53(c)(3)(iv), does this give rise to an admissible contention? Normally, the answer would be yes. Indeed, the essence of virtually all admissible contentions is an allegation that the applicant has failed to address, or has inadequately addressed, some legally required matter. In this case, however, the Commission has answered the question in the negative. The AG's contention is therefore inadmissible.").

63 See id., LBP-06-20, 64 NRC. at 155-61; Pilgrim, LBP-06-23, 64 NRC at 294-300; 65 NRC at 16; Pilgrim & Vt. Yankee, CLI-07-3, 65 NRC at 16; Massachusetts, 522 F.3d 115.

64 Limerick, LBP-12-08, slip op. at 13. Likewise, Counsel for NRDC depends on the conclusion that SAMA analyses are Category 2, but misses the larger point that for Limerick, this analysis is precluded by rule.

See Tr. 59-61, 84 (Roisman). And beyond arguing that SAMA analyses are Category 2, NRDC's counsel 15 But that is not what Exelon asserted. Although it is Exelon's position that SAMA analysis is a Category 1 issue for Limerick and certain other plants 65-by virtue of previous completion of NRC-approved SAMDA analyses for those plants-Exelon also made clear that a SAMA analysis for Limerick need not be a Category 1 issue for the legal principle in Pilgrim and Vermont Yankee to apply.66 As the NRC Staff noted at oral argument, whether or not SAMA analyses are a Category 1 issue for Limerick is "a distinction without a difference."

67 Either way, the analysis at issue is one that the Commission has expressly precluded by rule, which itself precludes litigation absent a waiver from the Commission under Section 2.335.

The following paragraphs explain the legal precedent at issue and its applicability to this proceeding. In the license renewal proceedings for both Pilgrim and Vermont Yankee , the Massachusetts Attorney General ("AG") proffere d one contention challenging Entergy's ERs on the basis that they failed to address new and significant information regarding a Category 1 issue; specifically, a seve re spent fuel pool fire.

68 The AG asserted that a "plain reading" of Section 51.53(c)(3)(iv) l eads to the conclusion that the new and significant information an

has no other basis or legal support for his assertion that Pilgrim and Vermont Yankee do not apply to the instant proceeding.

See Tr. 89 (Roisman).

65 See Exelon Answer at 27-28; Tr. at 47-49, 63-66, 83-84, 122-123 (Polonsky); see also Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,480 ("the issue of severe accidents must be reclassified as a Category 2 issue that requires a consideration of severe accident mitigation alternatives, provided this consideration has not already been completed.") (emphasis added); GEIS at xliv, 5-114 ("Staff evaluations of alternatives to mitigate severe accidents have already been completed and included in an EIS or supplement for Limerick, Comanche Peak, and Watts Bar; therefore, severe accident mitigation need not be reassessed for these plants for license renewal. . . . [S]evere accidents are a Category 2 issue for plants that have not performed a site-specific consideration of severe accident mitigation and submitted that analysis for Commission review.") (emphasis added).

66 See Exelon's Answer at 33 ("And the same result must ensue, even setting aside the 'Category' nomenclature. Given the construction of Section 51.53(c)(3), there is no basis to distinguish the Commission's holdings with respect to contentions based on Section 51.53(c)(3)(i), from contentions based on Section 51.53(c)(3)(ii)."); Tr. at 47-48 (Polonsky) ("the Board does not need to find that the SAMDA or SAMA issue is a Category 1 issue for Limerick.").

67 Tr. at 65-66 (Smith).

68 See Pilgrim, LBP-06-23, 64 NRC at 280; Vt. Yankee, LBP-06-20, 64 NRC at 152.

16 applicant provides must include Category 1 issues, and a petitioner is entitled to challenge the adequacy of the ER in this regard.

69 Both the Pilgrim and Vermont Yankee Boards disagreed with the AG, ruling that a petitioner may not challenge the applicant's consideration of new and significant information related to Category 1 issues.

70 The Pilgrim Board explained:

Section 51.53(c)(3)(iv) may well be viewed as being ambiguous, in that it clearly conflicts with S ection 51.53(c)(3)(i) and there is no

'plain language' explic itly stating that § 51.53(c)(3)(iv) creates an exception to Section 51.53(c)(3)(i) - in any context. From this perspective, the Commission . . . may be viewed as having the discretion to state its interpretati on of these regulatory provisions as it did in Turkey Point. And thus this Licensing Board would appear to be bound by the Comm ission's interpretation of

§ 51.53(c)(3)(iv) in Turkey Point , to the effect that

§ 51.53(c)(3)(iv) creates an exception to Section 51.53(c)(3)(i) in the context of the requirements for ERs and EISs but not with regard to the scope of issues permitted to be raised in contentions in a license renewal adjudication context, absent a waiver. . . .

71 In other words, reading Subsecti ons (i) and (iv) together, an applicant's ER must address new and significant information about even those matters otherwise precluded from consideration by rule. But the sufficiency of the applicant's evaluation of that new and significant information may not be litigated, absent a waiver.

72 69 See Pilgrim, LBP-06-23, 64 NRC at 298 n.170.

70 See Vt. Yankee, LBP-06-20, 64 NRC at 155-61; Pilgrim, LBP-06-23, slip op. at 294-300. Moreover, the Pilgrim Board reached this result despite finding the AG's interpretation to be "a reasonable reading of the rule." See Pilgrim, LBP-06-23, 64 NRC at 298 n.170.

71 Pilgrim, LBP-06-23 at 299 n.170.

72 Although Exelon and the NRC Staff have repeatedly asserted that Contention 1-E is inadmissible absent a waiver, see supra note 56, NRDC has not sought a waiver in this proceeding. In its Petition to Intervene, NRDC claims that it cannot seek a waiver until it has been admitted to the proceeding as a "party."

See Petition at 25 n.7. In response to Exelon's position that NRDC is "incorrect as a matter of law," Exelon's Answer at 20, NRDC asserts that a waiver petition would not be ripe unless the Board held that SAMAs are a Category 1 issue for Limerick. See NRDC Reply at 11 n.6. At the oral argument, counsel for Exelon or the NRC Staff raised NRDC's option of seeking a waiver well over a dozen times. See Tr. at 24 (Polonsky);

id. at 51 (Smith); id. at 52 (Smith);

id. at 54 (Polonsky);

id. at 81 (Polonsky);

id. at 84 (Polonsky);

id. at 108 (Smith);

id. at 117 (Smith);

id. at 121 (Polonsky);

id. at 154 17 Given the construction of Sec tion 51.53(c)(3), and as Exelon made clear in its Answer, there is no basis to distinguish the above holding for a contention based on Section 51.53(c)(3)(i) from contentions based on Section 51.53(c)(3)(ii).

73 Both subsections include limits to the "conditions and considerations" that a license renewal applicant must consider.

74 And both are equally positioned with resp ect to Section 51.53(c)(3)(iv).

75 Thus, although it is Subsection (ii), rather than Subsection (i), that is at issue for Limerick, the Pilgrim and Vermont Yankee logic applies: Section 51.53(c)(3)(iv) creates an exception to Section 51.53(c)(3)(ii) in the context of the requirements for ERs and EISs, but not with regard to the scope of issues permitted to be raised in contentions in a license renewal adjudication context, absent a waiver.

The Pilgrim and Vermont Yankee Boards concluded that this outcome was "consistent with the regulatory history of 10 C.F.R. § 51.53(c)(3)(iv)."

76 They explained that Section 51.53(c)(3)(iv) was not originally part of the proposed rule.

77 When the NRC Staff discussed the addition of Section 51.53(c)(3)(iv) in a memorandum to the Commission (SECY-93-032), it specifically proposed that litigation of Category 1 environmental issues in license renewal hearings would not be permitted, absent a waiver

.78 This proposal was vetted openly during the

(Polonsky);

id. at 163 (Kanatas);

id. at 168 (Kanatas);

id. at 172 (Polonsky);

id. at 173 (Polonsky);

id. at 176 (Kanatas);

id. at 257 (Polonsky). But the Board did not once ask counsel for NRDC why it had not sought a waiver, and counsel for NRDC did not offer that information. See generally, Tr. 73 See Exelon's Answer at 33-34.

74 See 10 C.F.R. § 51.53(c)(3).

75 Russello v. United States

, 464 U.S. 16, 22-23 (1983) (considering statutory structure an element of statutory interpretation); Black & Decker Corp. v. Comm'r of Internal Revenue, 986 F.2d 60, 65 (4th Cir. 1993) ("Regulations, like statutes, are interpreted according to the canons of construction.").

76 Pilgrim, LBP-06-23, 64 NRC at 295; Vt. Yankee, LBP-06-20, 64 NRC at 157.

77 Pilgrim, LBP-06-23, 64 NRC at 295-96; Vt. Yankee, LBP-06-20, 64 NRC at 157.

78 See Pilgrim, LBP-06-23, 64 NRC at 296; Vt. Yankee, LBP-06-20 64 NRC at 15 7-58. Specifically, as documented in SECY-93-032, the Staff assured the Commission that "[l]itigation of environmental issues in a hearing will be limited to [Category 2] issues unless the rule is suspended or waived." SECY-93-032, 10 CFR Part 51 Rulemaking on Environmental Review for Renewal of Nuclear Power Plant Operating Licenses at 4 (Feb. 9, 1993), available at ADAMS Accession No. ML072260444.

18 deliberations of the modifications to Part 51 that were supported by the 1996 GEIS and the recommendations of SECY-93-032. Notably, one Commissioner twice asked whether a petitioner could litigate a Categor y 1 issue, under Section 51.53(c)(3

)(iv) or any other regulation, on the claim that there was new and significant information on the issue.

79 And on both occasions, the NRC Deputy General Counsel responded that the claim could not be litigated unless the petitioner fi rst obtained a waiver from the Commission

.80 It was with this understandi ng of the regulations that the Commission approved and finalized the addition of Section 51.53(c)(3)(iv).

81 The regulatory history of Part 51 thus unequivocally demonstrates that the Commission did not intend S ection 51.53(c)(3)(iv) to allow petitioners to challenge issues precluded by rule from consideration in an ER, absent a waiver from the Commission. That regulatory history requires the same conclusion in the instant proceeding. As Exelon explained in its Answer, the NRC Deputy General Counsel's specific assu rance to the Commission was that "[l]itigation of environmental issues in a hearing will be limited to unbounded category 2 and category 3 issues unle ss the rule is suspended or waived."

82 At the time of those deliberations, the NRC divided environmental issues into three categories for the Part 51 rulemaking.

83 Under the three-category scheme, "C ategory 2" issues were those for which "[a] generic conclusion on the impact has b een reached for affected nuclear power plants

79 See Pilgrim, LBP-06-23, 64 NRC at 297; Vt. Yankee, LBP-06-20, 64 NRC at 158-59.

80 Pilgrim, LBP-06-23, 64 NRC at 297; Vt. Yankee, LBP-06-2064 NRC at 158.

81 Pilgrim, LBP-06-23, 64 NRC at 297; Vt. Yankee, LBP-06-20, 64 NRC at 158.

82 SECY-93-032, at 4;.

see also Exelon's Answer at 31 n.157.

83 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,474; Exelon's Answer at 31 n.157. Ultimately, the Commission employed the two category scheme described at page 9, above. See also Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,473-74 (explaining the transition from three categories to two).

19 that fall within defined bounds."

84 "[A]pplicants would have . . . not provided additional analyses if their plant falls within the bounds defined in the rule fo r a Category 2 issue."

85 In other words, "bounded Category 2" issues, like Ca tegory 1 issues, need not be considered at license renewal.

Under that three-category cons truct, SAMA analyses woul d be a "bounded Category 2" issue for Limerick; that is, Limerick need not provide additional SAMA analysis, because it falls within the bounds defined in the rule.

86 And according to the NRC Deputy General Counsel's assurance, upon which the Commission relie d in approving the a ddition of Section 51.53(c)(3)(iv), SAMA analyses-a "bounded Category 2" issue for Limerick-could not be litigated in a hearing.

87 The Commission and the U.S. Court of Appeals for the First Circuit affirmed the boards' rulings in Pilgrim and Vermont Yankee that Section 51.53(c)(3)(iv) does not permit petitioners to challenge issues precluded under Section 51.53(c)(3

)(i). After the Massachusetts AG appealed both licensing board determinations, the Commission denied the appeals and affirmed the

84 Id. at 28,473.

85 Id. 86 See 10 C.F.R. § 51.53(c)(3)(ii)(L) ("If the staff has not previously considered [SAMAs] for the applicant's plant . . . ."). Although the determination is not legally significant, the Statements of Consideration for Part 51 contain further evidence that SAMA analyses are a Category 1 issue for Limerick. In the final rule, the NRC merged the three categories into two categories.

See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,473-74. Category 1 issues become those that could be resolved for all plants, and Category 2 was reserved for everything else. See id. at 28,474. The NRC explained, "[i]f the [] Category 1 criteria apply to a subset of plants that are readily defined by a common plant characteristic, [

i.e., prior completion of a SAMA analysis], the population of plants is partitioned into the set of plants with the characteristic and the set of plants without the characteristic. For the set of plants with the characteristic, the issue is Category 1 . . . ."

Id. at 28,474.

87 See supra note 82.

20 licensing boards' decision s and underlying reasoning.

88 On further appeal by the Massachusetts AG, the First Circuit upheld the decisions of both licensing boards and the Commission.

89 The First Circuit noted that NEPA permits the NRC to streamline the license renewal process via rulemakings.

90 The court further reasoned th at prohibiting petitioners from challenging new and significant information pertaining to issues decided by rulemaking was permissible under NEPA, because the NRC has established "other means" to challenge those findings.91 Specifically, individuals may petition for rulemaking, comment on the NRC Staff's draft FES, or seek a waiver from the Commission.

92 The court concluded that denial of the Massachusetts AG's contention was "reasonable in context, and consistent with [NRC] rules."

93 Clearly then, reaching the same result in the instant proceeding would be a consistent application of the law. As the Boards in Pilgrim and Vermont Yankee noted, while NRC rules "provide a number of opport unities for individuals to alert the Commission to new and significant information that might render a generic finding invalid, either with respect to all nuclear power plants or for one plant in particular," individual licensing proceedings are not one such opportunity.

94 Likewise, NRDC has had multiple opportunities to challenge the SAMDA

88 Pilgrim & Vt. Yankee, CLI-07-3, 65 NRC at 16.

89 See generally Massachusetts, 522 F.3d 115. The Limerick Board correctly noted that a First Circuit decision is not binding on the Third Circuit, the jurisdiction in which Limerick is located.

Limerick , LBP-12-08, slip op. at 12 n.64. But this First Circuit decision does give weight to the underlying Commission decision. And that Commission decision was, of course, binding on the Limerick Board. 90 See Massachusetts, 522 F.3d at 119.

91 Id. at 120. 92 See id. at 120-21; see also Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC at 3, 12 (2001).

93 Massachusetts, 522 F.3d at 127.

94 Pilgrim, LBP-06-23, 64 NRC at 295 (citing Turkey Point, CLI-01-17, 54 NRC at 12); see also id. ("In [statements of the Commission in Turkey Point], the Commission has indicated that any new and significant information on matters designated as Category 1 issues in Part 51 may be initiated by petitioners only through means other than the submission of contentions."); see also Vt. Yankee, LBP-06-20, 64 NRC at 156-57; Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449, 475 (2010).

21 analysis for Limerick, as well as the NRC's rule that Limerick need not conduct an additional SAMA analysis at license renewal.

95 This licensing proceeding, however, is not another such opportunity. Accordingly, the same reasoning that dictated the outcome in Pilgrim and Vermont Yankee must apply in the instant proceeding: petitioners in license renewal proceedings may not litigate new and significant informa tion related to an issue precluded by rule absent a waiver. The Board incorrectly dismissed this precedent based on its conclusion that the Commission has not explicitly stated that SAMA analyses are Category 1 issues for Limerick.

96 But this was not the only argument that Exelon presented on this issue. The Board clearly erred in not fully considering Exelon's alternative position that SAMAs for Limerick cannot be challenged in a license renewal proceeding because they are excepted by rule, even absent a finding that SAMAs are Category 1 issues for Limerick.

97 In particular, despite Exel on's lengthy explanation of the applicability of this pr ecedent in its Answer and at oral argument, as summarized above, the Board dismissed this position in only three sent ences (and in so doing, de monstrated that it misunderstood Exelon's basis fo r citing this precedent):

Exelon argues that 10 C.F.R. § 51.53(c)(2)(iii)(L) [(sic)] exempts Limerick from performing a SA MA, and that this regulatory exception requires that SAMAs be treated as a Category 1 issue, even if they are categorized as a Category 2 issue. We find no regulatory basis for such a wide ranging argument.

98 95 See Tr. 24-25, 119-121, 171-172 (Polonsky) (identifying multiple ways in which NRDC may challenge the SAMA analysis for Limerick). There are also multiple ways in which the NRC ensures that Exelon's consideration of new and significant information related to SAMAs is adequate. As the NRC Staff explains in its Answer, the NRC has ongoing regulatory programs to identify plant vulnerabilities to severe accidents and consider cost beneficial improvements.

See NRC Staff Answer at 8-13. In addition, the NRC Staff takes "a hard look at new and significant information" related to SAMAs, as part of its NEPA review.

Id. at 13. 96 See Limerick

, LBP-12-08, slip op. at 14.

97 See Exelon's Answer at 33.

98 Limerick , LBP-12-08, slip op. at 16 (citations omitted).

22 The Board said nothing further in this regar

d. It did not explain why Section 51.53(c)(3)(i) should be construed any differently than S ection 51.53(c)(3)(ii), in relation to Section 51.53(c)(3)(iv). Nor did it explain why the regulatory history that formed the basis of the decisions in Pilgrim and Vermont Yankee did not apply equally to other issues precluded from consideration by rule, such as bounded Category 2 issues.

The Board's decision is thus clear error.

Section 51.53(c)(3)(iv) is not a "loophole" through which NRDC may litigat e matters that the NRC has resolved through rulemaking.

Contentions challenging Section 51.53(c)(3)(ii) u nder the guise of Sec tion 51.53(c)(3)(iv) are inadmissible absent a waiver from the Commission, which NRDC has not sought. C. The Board Also Clearly Erred When It Admitted a Contention That Does Not Demonstrate a Genuine Dis pute of a Material Issue In addition, to the extent that Contention 1-E, as admitted by the Board, challenges Exelon's economic cost analysis , the Contention altogether fails to demonstrate a genuine dispute of a material issue, as required by 10 C.F.R. § 2.309(f)(1)(iv). Specifically, the second part admitted by the Board in support of Contention 1-E asks "whether Exelon's use of data from [Three Mile Island] in its analysis provides an adequate considerati on of new and significant information regarding economic cost risk."

99 Yet this part of Contention 1-E fails to raise a "significant deficiency" in Exelon's ER, or demonstrate that the evaluation in the Limerick ER

99 Limerick , LBP-12-08, slip op. at 25. The Board clarified that "[t]o the extent that Contention 1-E challenges Exelon's reliance on data from TMI to evaluate the significance of economic cost risks, it is admissible."

Id. The Board also explained, consistent with Exelon's position, "to the extent the contention directly challenges the contents of the 1989 SAMDA, this portion of Contention 1-E is inadmissible."

Id. The Board further agreed with Exelon that under 10 C.F.R. § 51.53(c)(3)(ii)(L), Exelon need not conduct another SAMA analysis for license renewal.

See id. at 33-34; see also Exelon's Answer at 48 (maintaining that Exelon "is not legally obligated to conduct another SAMA analysis"). Accordingly, Exelon has not reiterated those positions in this Appeal.

23 was "unreasonable."

100 In fact, the support upon which the Petitioners and the Board rely shows that Exelon's analysis is reasonable. As a result, the Board clearly erred in admitting this basis for Contention 1-E. In admitting this part of the contention, the Board relied on NRDC's assertion that Exelon's use of economic cost data from TMI is inappropriate because: (1) TMI is a pressurized water reactor ("PWR"), rather than a BWR, and has "correspondingly different accident scenario source terms" 101; and (2) the economic center near TMI is "smalle r and less urban" than Philadelphia, near Limerick.

102 In particular, the Board relie d upon a table presented in Dr.

McKinzie's Declaration, listing the ratios of economic cost risk to exposure cost risk calculated for other BWR facilities.

103 The Board found that the table pr ovided the necessary support to render this part of the contention admissible.

104 NRDC provided, and the Board relied on, no further support for this basis, despite the Commission's instru ction that "the burden is on Petitioners to come forward with the support-th e 'reason to believe'-that reliance on the [data

100 Pilgrim, CLI-12-01, slip op. at 24-25; see also Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-05, slip op. at 31 (Sept. 9, 2011) (requiring that an admissible contention present "a seri ously different picture of the environmental impact of the proposed project from what was previously envisioned") (citing Hydro Resources, Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87120), CLI-99-22, 50 NRC 3, 14 (1999); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 373 (1989); Sierra Club v. Froehlke, 816 F.2d 205, 210 (5th Cir. 1987). In the SAMA context, the Commission focuses on whether a license renewal applicant has provided a "reasonable consideration" of SAMAs. Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481-82.

101 See Limerick

, LBP-12-08, slip op. at 24.

102 See id. (citing Declaration of Thomas B. Cochran, Ph.D., Matthew G. McKinzie, Ph.D. and Christopher J. Weaver, Ph.D., on Behalf of the Natural Resources Defense Council ¶ 33 (Nov. 22, 2011) ("Declaration"), available at ADAMS Accession No. ML11326A322.

103 See id. at 24-25 (citing Declaration ¶ 34).

104 See id. at 24 ("NRDC has also provided a table showing the ratio of economic cost risk to exposure cost for nine recently renewed BWRs.") (citing Declaration ¶ 34);

id. ("NRC regulations require a petitioner to provide 'a concise statement of the alleged facts or expert opinions which support" its position. NRDC has done this, as its Joint Declaration provides a set of alleged facts regarding the ratio of economic cost risk to exposure cost risk at other BWR facilities.") (citing Declaration ¶¶ 32-34);

id. at 24-25 ("NRC regulations also require a petitioner to make reference to 'specific sources and documents' on which it intends to rely. NRDC has done this, as well, as it has drawn its analysis from and cited to SAMAs performed by other BWRs") (citing Declaration ¶ 34).

24 in question] posed a

'significant defect.'"

105 Under NEPA, Exelon's economic cost risk an alysis is adequate if it is reasonable.

106 But in admitting this part of the contention, the Board failed to address Exelon's response to the data proffered by Dr. McKinzie, in which Exelon maintained that its reliance on economic cost data from TMI is reasonable.

107 As Exelon explained in its Answ er, NRDC not only failed to show that Exelon's economic cost analysis is not reasonable, but it actu ally demonstrates the reasonableness of the analysis.

108 Exelon's argument is not an attack on the merits. Rather, it is appropriate probing of an intervenor's affidavit, which the Commission itself has performed at the admissibility stage.

109 Therefore, the Board clearly erred in finding that this basis demonstrated a "genuine dispute on a material issue."

110 By way of background, Exelon stat ed in its Answer that, in evaluating whether off-site economic cost risks qualified as new and significant information, economic cost risk could be represented as a percentage of offsite exposure cost risk.

111 Exelon looked to TMI Unit 1, a plant

105 Davis-Besse, CLI-12-08, slip op. at 29.

106 Consideration of mitigation alternatives, including SAMAs, is governed by the NEPA "rule of reason." Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-17, 56 NRC 1, 12 (2002) (citing Vt. Yankee Nuclear Power Corp. v.

[NRDC] , 435 U.S.519, 551 (1978); Citizens Against Burlington v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991)). In the SAMA context, the Commission focuses on whether a license renewal applicant has provided a "reasonable consideration" of SAMAs. Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,481-82.

107 See Limerick

, LBP-12-08, slip op. at 23-25; Exelon's Answer at 47-49.

108 See Exelon's Answer at 48-49.

109 See Davis-Besse, CLI-12-08, slip op. at 26-27 (examining documents that the Board relied on in concluding the admitted contention was adequately supported);

id. at 28 ("At the contention admissibility stage, it is Petitioners' burden to come forward with factual or expert support for their argument that use of [different or additional data] could have altered the SAMA analysis to show . . . significantly different cost-benefit results").

110 Limerick, LBP-12-08, slip op. at 25.

111 See Exelon's Answer at 48 (citing ER at 5-4 to 5-7, 5-8).

25 also located in Pennsylvania, to obtain a value for that ratio of about 70%.

112 Using that value, Exelon calculated the effect of off-site economic cost risk and determined that, even for the most cost beneficial alternatives, it "would result in an adjusted cost per person-rem averted of $5,000, which remains well above . . . the currently used $2,000 per person-rem averted threshold."

113 In other words, new information about econom ic cost risks did not qualify as new and significant information.

114 To support NRDC's claim that the ratio of economic cost risk to exposure cost risk "exhibits a wide variation," Dr. McKinzie's Declaration provid es cost ratios for eight BWR units, as well as TMI.

115 Those nine cost ratios range from -16.0% to 238.4%.

116 But the median ratio of these nine units is 63.9%, the average ratio is 62.1%, and only two reactor units have a greater ratio than TMI (72.1%): Nine Mile Point Unit 1 (91.1%) and Hope Creek (238.4%).

117 Even considering only the data in Dr. McKinzie's table from BWRs, as NRDC would have Exelon do, 118 the median economic cost ratio is 48.2%, and the average ratio is 60.8%.

119 In 112 Exelon's Answer at 48 (citing ER at 5-8). The actual cost risk is 72.1%, but was rounded to 70%. See, e.g., Declaration ¶ 34.

113 ER at 5-8; see Exelon's Answer at 48. The ER explains, "the off-site economic cost risk is approximately 70% larger than the off-site exposure cost risk. Therefore, . . . a factor of 3 increase in the person-rem averted value for each SAMDA would provide an approximation for the impact due to economic cost." ER at 5-8. In other words, because off-site economic cost for TMI is 72% higher than off-site dose cost, off-site economic cost can be viewed as 1.72 times larger than off-site dose cost. Dose cost (a factor of 1) plus economic cost (a factor of 1.72) results in a factor of 2.72, which Exelon conservatively rounded to 3.

114 See Exelon's Answer at 48 (citing ER at 5-8).

115 Declaration ¶¶ 33-34.

116 Declaration ¶ 34.

117 Declaration ¶ 34.

118 Declaration ¶ 33 ("TMI is also an inappropriate example to use in estimating economic cost for Limerick because TMI is a [PWR] rather than a BWR"). In admitting Contention 1-E, the Board relied on NRDC's position that economic cost data from TMI are inappropriate for use at Limerick because TMI is a PWR. See Limerick

, LBP-12-08, slip op. at 24. But the Board ignores Exelon's argument that NRDC's own data demonstrate that the TMI value is reasonable, in light of values for the BWRs in Dr. McKenzie's table. The Board also relied upon NRDC's position that Exelon's use of TMI data was unreasonable because the economic center near TMI is smaller and less urban than that near Limerick. See Limerick

, LBP-12-08, slip op. at 24. Yet NRDC's own data fail to illustrate the materiality of proximate urban areas. For 26 other words, and as Exelon's Answer makes clear, for all but two of the eight BWRs referenced by NRDC, economic cost risks represented a lower (i.e., less conservative) ra tio of exposure cost risks than Exelon assumed in the Limerick ER.

120 It is clear error for the Board to ignore this argument. NRDC would have Exelon "fine tune" its economic cost analysis by conducting site-specific economic risk calculations for Limerick.

121 But NRDC has not shown that the economic cost risk value used by Exelon is not reasonable, or that it produced a "significant deficiency" in the NEPA analysis.

122 This basis is not admissible on the mere premise that another economic cost analysis might be superior. As the Commission re cently explained, To challenge an application, a petitioner must point with support to an asserted deficiency that renders the SAMA analysis unreasonable under NEPA. In other words, '[a] contention

proposing alternative inputs or methodologies must present some factual or expert basis for w hy the proposed changes in the analysis are warranted (e.g., why the inputs or methodology used is unreasonable, and the proposed changes or methodology would be

more appropriate).' Unless a pe titioner sets forth a supported contention pointing to an apparent error or deficiency that may have significantly skewed the environmental conclusions, there is no genuine material dispute for hearing.

123

example, the ratios for the Nine Mile Point units shown on Dr. McKinzie's table vary (22.8% and 91.1%), although the units are co-located.

See Declaration ¶ 34.

119 Declaration ¶ 34.

120 See Exelon's Answer at 47-49.

121 See Pilgrim, CLI-12-01, slip op. at 24-25 ("There is questionable benefit to spending considerable agency resources in an attempt to fine-tune a NEPA mitigation analysis.").

122 See Pilgrim, CLI-12-01, slip op. at 24-25 ("With respect to a SAMA analysis in particular, unless a contention, submitted with adequate factual, documentary, or expert support, raises a potentially significant deficiency in the SAMA analysis-that is, a deficiency that could credibly render the SAMA analysis altogether unreasonable under NEPA standards-a SAMA-related dispute will not be material to the licensing decision, and is not appropriate for litigation in an NRC proceeding.").

123 Davis-Besse, CLI-12-08, slip op. at 18 (citing Seabrook, CLI-12-05, slip op. at 29); see also Pilgrim, CLI-12-01, slip op. at 24-25.

27 Exelon does not dispute that the ratio of economic cost risk to exposure cost risk may vary between plants.

124 But NEPA requires only "reasonable" analyses.

125 Plainly, Dr.

McKinzie's data support a conclu sion that the use of the TMI value for the ratio of economic cost risk to exposure cost risk is "reasonable," and thus consistent with NEPA requirements. But the Board altogether failed to address this resu lt. And neither NRDC nor the Board relied on any other support for the premise that Exelon's analys is is unreasonable. Accordingly, the Board's admission of this aspect of Contention 1-E represents clear error, as it fails to raise a genuine dispute of a material issue, and thus fails to satisfy the contention admissibility requirement under Section 2.309(f)(1)(iv).

124 See Exelon's Answer at 49.

125 Davis-Besse, CLI-12-08, slip op. at 5 (NEPA requires consideration of 'reasonable' alternatives.");

Private Fuel Storage, CLI-02-25, 56 NRC 340, 348-49 (2002) ("It is well established that NEPA requires only a discussion of 'reasonably foreseeable' impacts. Grappling with this concept, various courts have described it as a 'rule of reason,' or 'rule of reasonableness,' which excludes 'remote and speculative' impacts or 'worst-case' scenarios.") (citations omitted).

28 DB1/ 69373013.8 V. CONCLUSION For the foregoing reasons, the Commission should reverse the Board's admission of Contention 1-E. Because this is the only contention admitted by the Board, the Commission also should terminate the proceeding.

Respectfully submitted,

Signed (electronically) by Alex S. Polonsky Alex S. Polonsky Kathryn M. Sutton

Anna V. Jones

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

Phone: 202-739-5830

Fax: 202-739-3001 E-mail: apolonsky@morganlewis.com

J. Bradley Fewell

Vice President and Deputy General Counsel Exelon Generation Company, LLC 200 Exelon Way

Kennett Square, PA 19348

Phone: 630-657-3769

Fax: 630-657-4335 E-mail: Bradley.Fewell@exeloncorp.com

COUNSEL FOR EXELON Dated in Washington, D.C.

this 16th day of April 2012

DB1/ 69546673.1 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket Nos. 50-352-LR EXELON GENERATION COMPANY LLC ) 50-353-LR

)

(Limerick Generating Station, Units 1 and 2) ) April 16, 2012

) CERTIFICATE OF SERVICE I hereby certify that on April 16, 2012 a copy of "Exelon's Notice of Appeal of LBP 08" and "Exelon's Brief In Support of the Appeal of LBP-12-08" was served by the Electronic Information Exchange on the following recipients: Administrative Judge William J. Froehlich, Chair Atomic Safety and Licensing Board

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: William.Froehlich@nrc.gov

Administrative Judge Dr. William E. Kastenberg Atomic Safety and Licensing Board

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: William.Kastenberg@nrc.gov

Administrative Judge

Michael F. Kennedy Atomic Safety and Licensing Board

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Michael.Kennedy@nrc.gov

Office of the Secretary U.S. Nuclear Regulatory Commission Rulemakings and Adjudications Staff

Washington, DC 20555-0001 E-mail: HearingDocket@nrc.gov

Office of Commission Appe llate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-16C1

Washington, DC 20555-0001 E-mail: OCAAMail@nrc.gov

Matthew Flyntz

Law Clerk Atomic Safety and Licensing Board

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Matthew.Flyntz@nrc.gov

DB1/ 69546673.1 2 Natural Resources Defense Council (NRDC) 1152 15th St., N.W.

Washington, D.C. 20005 Geoffrey H. Fettus, Se nior Project Attorney E-mail: GFettus@nrdc.org

National Legal Scholars Law Firm, P.C.

241 Poverty Lane, Unit 1

Lebanon, NH 03766 Anthony Z. Roisman, Managing Partner E-mail: ARoisman@nationallegalscholars.com

Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop O-15D21

Washington, DC 20555-0001

OGCMailCenter@nrc.gov Catherine Kanatas Catherine.Kanatas@nrc.gov Brian Newell

Brian.Newell@nrc.gov Maxwell Smith Maxwell.Smith@nrc.gov Mary Spencer

Mary.Spencer@nrc.gov Ed Williamson Edward.Williamson@nrc.gov Lauren Woodall Lauren.Woodall@nrc.gov

Signed (electronically) by Anna V. Jones Anna Vinson Jones Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., NW

Washington, DC 20004 Phone: (202) 739-5881 Fax: (202) 739-3001 E-mail: Anna.Jones@morganlewis.com Counsel for Exelon