Text

2007/01/29- Susquehanna - NRC Staff Response to Eric Joseph Epstein'S Petition for Leave to Intervene, Request for Hearing and Contentions
	ML070300052
Person / Time
Site:	Susquehanna
Issue date:	01/29/2007
From:	Barkman M, Martin J; NRC/OGC
To:	; Atomic Safety and Licensing Board Panel
	Martin JC, NRC/OGC, 301-415-1569
Shared Package
ML070300105	List: ML070300052; ML070300099;
References
	50-387-LR, 50-388-LR, ASLBP 07-851-01-LR, RAS 12949
	Download: ML070300052 (29)
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1 See Eric Joseph Epstein's Petition for Leave to Intervene, Request for Hearing, and Presentation of Contentions with Supporting Factual Data, January 2, 2007 (Petition).

2 See Letter from Britt T. McKinney, PPL Susquehanna, LLC to U.S. NRC, Susquehanna Steam Electric Station Application for Renewed Oper ating Licenses Numbers NPF-14 and NPF-22 PLA-6110, September 13, 2006. Agencywide Documents Access and Management System (ADAMS) Accession Nos. ML062620157, ML062630225, ML062630235.

January 29, 2007 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARDIn the Matter of)

)PPL SUSQUEHANNA, LLC )Docket Nos. 50-387-LR

) 50-388-LR

)(Susquehanna Steam Electric Station ) ASLBP No. 07-851-01-LR Units 1 and 2))

NRC STAFF RESPONSE TO ERIC JOSEPH EPSTEIN'S PETITION FOR LEAVE TO INTERVENE, REQUEST FOR HEARING, AND CONTENTIONS INTRODUCTION Pursuant to 10 C.F.R. § 2.309(h)(1), the U.S. Nuclear Regulatory Commission Staff (Staff) hereby files its response to the request for hearing and petition to intervene filed by Eric

Joseph Epstein (Petitioner ).

1 For the reasons set forth below, Petitioner's intervention request should be denied.

BACKGROUND By letter dated September 13, 2006, PPL Susquehanna, LLC (PPL or Applicant) submitted an application for renewal of Operating License Nos. NPF-14 and NPF-22 for the

Susquehanna Steam Electric Station (SSES) Units 1 & 2 for an additional 20 years.

2 The current operating licenses expire on July 27, 2022 and March 23, 2024, respectively.

On November 2, 2006, NRC published a notice of acceptance and docketing and 3 Notice of Acceptance for Docketing of the App lication, Notice of Opportunity for Hearing and Notice of Intent To Prepare an Environmental Impact Statement and Conduct Scoping Process for Facility

Operating License Nos. NPF-14 and NPF-22 for an Additional 20-Year Period PPL Susquehanna LLC., Susquehanna Steam Electric Station, Units 1 and 2, 71 Fed. Reg. 64,566 (November 2, 2006).

4 PPL Susquehanna, LLC; Notice of Correction to the Public Scoping Comment Period for the Environmental Impact Statement for the Licens e Renewal of Susquehanna Steam Electric Station, Units 1 & 2, 71 Fed. Reg. 76,706 (December 26, 2006). The deadline for filing a request for hearing/

petition to intervene was stated correctly as January 2, 2007 in the first notice, supra n.3.5 On January 23, 2007 the Board issued its Order (Regarding Schedule and Guidance for the Proceedings) stating that requests for oral argument may be made in the answer or reply. The Staff does not believe oral argument is necessary.

opportunity for hearing regarding the License Renewal Application (LRA), 3 and on December 21, 2006, NRC published a correction to the notice, extending the comment period

for public scoping for the Environmental Impact Statement to January 2, 2007.

4 On January 2, 2007, Eric Joseph Epstein filed his Petition, alleging individual standing, and representational

and organizational standing on behalf of Three Mile Island Alert, Inc. (TMIA), and proffering five

proposed contentions. On January 18, 2007, this Atomic Safety and Licensing Board (Board)

was established to preside over this proceeding.

The Staff hereby files its response in opposition to Mr. Epstein's Petition.

5 DISCUSSIONI.Petitioner's StandingA.Legal Requirements Any person who requests a hearing or seeks to intervene in a Commission proceeding must demonstrate that he or she has standing to do so. Section 189a(1)(A) of the Atomic

Energy Act of 1954, as amended (AEA or Act), 42 U.S.C. § 2239(a)(1)(A), states:

In any proceeding under this Act, for the granting, suspending, or amending of any license . . . , the Commission shall grant a hearing upon the request of any

person whose interest may be affected by the proceeding, and shall admit any

such person as a party to such proceeding.

The Commission's regulations in 10 C.F.R. § 2.309(d)(1) provide that a request for hearing or petition to intervene must state: (I) The name, address and telephone number of the petitioner; (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; and (iv) The possible effect of any decision or order that may be issued in the proceeding on the requestor's/petitioner's interest.

The Commission has long applied contemporaneous judicial concepts of standing to determine whether a party has a sufficient interest to intervene as a matter of right in a licensing

proceeding.

Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111, 115 (1995);

Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610 (1976). To establish standing, there must be an "injury-in-fact"

that is either actual or threatened. Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 195 (1998) (citing Wilderness Soc'y v. Griles , 824 F.2d 4, 11 (D.C. Cir.

1987)). The injury must be "concrete and particularized," not "conjectural" or "hypothetical."

Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 72 (1994). As a result, standing will be denied when the threat of injury is too speculative.

Id. Furthermore, the alleged "injury-in-fact" must lie within the "zone of interests" protected by the

statutes governing the proceeding; either the AEA or the National Environmental Policy Act of

1969 (as amended) 42 U.S.C. §§ 4321, et seq. (2000) (NEPA).

Quivira Mining Co. (Ambrosia Lake Facility, Grants, New Mexico), CLI-98-11, 48 NRC 1, 6 (1998), aff'd sub nom. Envirocare of Utah, Inc. v. NRC , 194 F.3d 72 (D.C. Cir. 1999).

The economic interests of a ratepayer are not within the zone of interests sought to be protected by the AEA.

Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 1420-21 (1977); Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 & 2), ALAB-333, 3 NRC 804, 806 (1976). Similarly, general economic interests of ratepayers are not within the zone of interests protected by NEPA.

Pebble Springs, ALAB-333, 3 NRC at 806. Additionally, taxation rates do not fall within the zone of interests of

either NEPA or the AEA.

Watts Bar , ALAB-413, 5 NRC at 1420-21. These economic concerns are more appropriately raised before state economic regulatory agencies.

Public Service Co. ofNew Hampshire (Seabrook Station, Unit 2), CLI-84-6, 19 NRC 975, 978 (1984).

Further, a petitioner must establish a causal nexus between the alleged injury and the challenged action. Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), LBP-98-27, 48 NRC 271, 276 (1998), aff'd, CLI-99-4, 49 NRC 185 (1999). A determination that the injury is fairly traceable to the chall enged action, however, does not depend "on whether the cause of the injury flows directly from the c hallenged action, but whether the chain of causation is plausible."

Sequoyah Fuels , CLI-94-12, 40 NRC at 75. Finally, the redressability element of standing requires a petitioner to show that the claimed actual or threatened injury could be

cured by some action of the decisionmaker.

Sequoyah Fuels Corp. (Gore, Oklahoma Site Decommissioning), CLI-01-2, 53 NRC 9, 14 (2001).

Under the long-recognized "proximity presumption" principle, the commission will presume a petitioner has standing to intervene without the need specifically to plead injury, causation, and redressability if the petitioner lives within, or otherwise has frequent contacts

with, the zone of possible harm from the nuclear reactor or other source of radioactivity.

VirginiaElectric and Power Company, (North Anna Nuclear Power Station, Units 1 & 2

), ALAB-522, 9 NRC 54, 57 n.5 (1979). The Commission's general rule of thumb in reactor licensing proceedings (that persons who reside or frequent the area within a 50-mile radius of the facility

are presumed to have standing) has also been applied to license renewal proceedings by

several licensing boards.

See e.g. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-848, 61 NRC __ 6 The Commission has not ruled on this presum ption in the context of license renewal.

See Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 and 3) CLI-99-11, 49 NRC 328, 333 n. 2 (1999)

Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 20 n. 20 (2001).(October 16, 2006) (slip. op. at 8);

Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-01-06, 53 NRC 138, 146-50 (2001).

6 An organization may establish standing by demonstrating an injury-in-fact to: (1) its interests as an organization; or, (2) the interests of any of its members.

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26, 30-31 (1998)(PFS); Yankee Atomic Elec

., CLI-98-21, 48 NRC at 185. The organization must, in itself, and through its own membership fulfill the standing requirements.

Pebble Springs , CLI-76-27, 4 NRC at 613. The injury-in-fact must be a discrete institutional injury to the organization itself;

general policy interests are insufficient. International Uranium (USA) Corp., (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 252 (2001).

When an organization wishes to represent the interests of its members, "judicial concepts of standing" require a showing that: (1) its members would otherwise have standing to

sue in their own right; (2) the interests that the organization seeks to protect are germane to its

purpose; and (3) neither the claim asserted nor the relief requested requires an individual

member to participate in the organization's lawsuit.

Private Fuel Storage, L.L.C (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 323 (1999) (PFS).

Further, the organization must demonstrate that at least one of its members has authorized the organization to represent his/her interests.

Id. The organization must identify this member by name and address and demonstrate how that member may be affected (such

as by activities on or near the site) and show (preferably by affidavit) that the group is

authorized to request a hearing on behalf of the member.

GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 202 (2000);

Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), ALAB-549, 9 NRC 644, 646-47 (1979). It is incumbent on the organization to clearly demonstrate that a member has in fact authorized the

representation.

S. Tex. Project , ALAB-549, 9 NRC at 444; Sequoyah Fuels Corp. and GeneralAtomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 72 (1994). B.Mr. Epstein Lacks Individual Standing Mr. Epstein lacks individual standing because he fails to demonstrate any of the required standing elements. His petition contains a list of statements concerning activities associated

with SSES, but he never specifies an injury-in-fact. Petition at 4-7. A special interest in nuclear

power alone cannot convey standing; instead, Mr. Epstein must satisfy judicial standing

requirements.

Sierra Club v. Morton , 405 U.S. 727, 738-39 (1972);

see also 10 C.F.R.

§ 2.309(f)(1)(vi). Additionally, "any contention that fails directly to controvert the application or

that mistakenly asserts the application does not address a relevant issue can be dismissed."

LES , LBP-04-14, 60 NRC at 57.

More specifically, the scope of a license renewal proceeding is limited in both the safety and environmental areas. The scope of Commission review determines the scope of admissible

contentions in a renewal hearing absent a Commission finding under 10 C.F.R. § 2.335 (formerly § 2.758). "Nuclear Power Plant License Renewal; Revisions [1995 Final Rule],"

60 Fed. Reg. 22,461, 22,482 n. 2. Review of safety issues is limited to "a review of the plant

structures and components that will require an aging management review for the period of extended operation and the plant's systems, stru ctures 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-02-26, 56 NRC 358, 363-64 (2002) (citations

omitted) (emphasis in original); see also Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), LBP-04-15, 60 NRC 81, 90 (2004), aff'd, CLI-04-36, 60 NRC 631 (2004);

10 C.F.R. §§ 54.4, 54.21(a), (c). License renewal focuses on the potential detrimental effects of

aging that are not routinely addressed by ongoing regulatory oversight programs.

Florida Power

& Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 3-4 (2001).The scope of the environmental review is also limited in accordance with 10 C.F.R.

§§ 51.71(d) and 51.95(c).

See Turkey Point, CLI-01-17, 54 NRC at 11-13. Consideration of environmental issues in the context of license renewal proceedings is specifically limited by 10 C.F.R. Part 51 and by the NRC's "Generic Environmental Impact Statement (GEIS) for License Renewal of Nuclear Plants" (NUREG-1437).

Id. A number of environmental issues potentially relevant to license renewal are classified in 10 C.F.R. Part 51, Subpart A, Appendix B

as "Category 1" issues, which means that "the Commission resolved the[se] issues generically

for all plants and those issues are not subject to further evaluation in any license renewal

proceeding."

Turkey Point, LBP-01-06, 53 NRC 138, 152-53, aff'd, CLI-01-17, 54 NRC at 11.

The remaining issues, designated as "Category 2" in Appendix B, must be addressed by the

applicant in its environmental report (ER), and in the NRC's supplemental environmental impact statement for the facility at issue pursuant to 10 C.F.R. §§ 51.71(d) and 51.95(c).

Id.A petitioner also must "present the factual information and expert opinions necessary to support its contention adequately" and failure to provide such an explanation regarding the

basis of a proffered contention requires the Board to reject the contention.

LES, LBP-04-14, 60 NRC at 55. In this regard, "neither mere speculation nor bare assertions alleging that a

matter should be considered will suffice to allow the admission of a proferred contention."

Id. A petitioner is responsible for making clear what the bases for the contention are, and why the

cited references provide a basis for the contention.

USEC , CLI-06-10, 63 NRC at 457. The Board may not "'infer' unarticulated bases of contentions,"

id., nor can a Board "make assumptions of fact that favor the petitioner."

LES , LBP-04-14, 60 NRC at 56. Finally, "with limited exception, no rule or regulation of the Commission can be challenged in an adjudicatory

proceeding."

Id. at 54; see also 10 C.F.R. § 2.335.B.The Proposed Contentions are not Admissible The Staff submits that Mr. Epstein has not put forth an admissible contention. The contentions are discussed in the order in which Mr. Epstein asserted them. 1.Proposed Contention 1 PPL Susquehanna failed to provide the requisite data necessary to determine if it has the ability to maintain and service the financial obligations it inherited from

the original licensee, i.e., PP&L. Regulatory conditions have materially changed

and adversely affected PPL's ability to guarantee it can finance the "back-end" of

nuclear power production at the SSES.

Petition at 15. Mr. Epstein provides an explanation for the basis of the Proposed Contention as

follows: PPL Susquehanna LLC, the majority owner and operator of the Susquehanna Electric Station, is the corporate progeny of the original holding company, i.e.,

PP&L, that applied for, and obtained a license to operate the SSES, and the new

corporation warrants a comprehensive financial due diligence to ascertain the

ability of the nascent and emerging limited liability corporation to service its

nuclear obligations under deregulation.

Id. Mr. Epstein expands on Proposed Contention 1 by, inter alia , questioning PPL's status as a "utility," PPL's ability to finance decommissioning costs, and PPL's continued economic

solvency following Pennsylvania's deregulation of the utility industry. Petition at 16-22. For a

remedy, Mr. Epstein requests that this Board force PPL Susquehanna LLC to conduct a

comprehensive financial due diligence, to force PPL to prove it satisfies the NRC's "electric

utility" definition, and to compel PPL to "provide an action plan" for financing its nuclear debt

load and decommissioning costs. Petition at 21.

Staff's Response to Proposed Contention 1 The Staff opposes admission of this Proposed Contention on the grounds that it is outside the scope of license renewal, is not material to the findings the NRC must make to

support a license renewal application, and does not demonstrate that a genuine dispute exists

with the applicant on a material issue of law or fact. 10 C.F.R. §§ 2.309(f)(1)(iii), (iv), (vi).

First, Proposed Contention 1 is not admissible because it is outside the scope of license renewal. 10 C.F.R. § 2.309(f)(1)(iii). The scope of Commission review determines the scope of

admissible contentions in a license renewal hearing. 60 Fed. Reg. at 22,482 n.2. This review 8 See also Final Rule, Nuclear Power Plant Licens e Renewal; Revisions, 60 Fed. Reg. 22,461,22,484 (May 8, 1995). "The economics of electrical power generation is the responsibility of the individualutility and the Federal or State agencies that are given that authority and responsibility. Generally, a State public utility commission or the Federal Energy Regulatory Commission, along with the utility, have theresponsibility and the authority to address economic issues associated with power generation.

Furthermore, the Commission's regulatory responsibility (as defined by the Atomic Energy Act, the NRC's organic statute) does not confer upon the Commission primary authority for regulating the economics of nuclear power generation. Under these circumstances , the Commission does not believe that it should perform economic analyses of nuclear power generat ion as a basis for informing the Commission's licensing decisions. While it is true that the Commission currently addresses the economics of operating a

nuclear power plant in the context of an environment al impact statement (EIS), it should be recognized that these analyses have been conducted in the context of EISs as part of the Commission's process forcomplying with the mandates of the National Environmental Policy Act (NEPA). However, NEPA does not

require such economic analyses."

focuses on potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs.

Turkey Point , CLI-01-17, 54 NRC at 3. The Commission has specifically removed financial questions, including decommissioning concerns, from the scope

of a license renewal review. 10 C.F.R. § 50.33(f)(2) ("An applicant seeking to renew or extend

the term of an operating license for a power reactor need not submit the financial information

that is required in an application for an initial license.").

8 Mr. Epstein never specifies why his financial arguments are within the scope of license renewal. Mr. Epstein's concerns with the

corporate evolution of PPL, involve a matter already approved by the Commission.

See 66 Fed.Reg. 30,492 (June 6, 2001). Any concerns Mr. Epstein had with the nature of this corporate

restructuring should have been brought during the consideration of that application. His

remaining concerns cover a variety of financing and decommissioning topics; however, they

never include any demonstration that they are within the scope of license renewal. The

Commission's contention admissibility standards are deliberately strict.

USEC , 06-09, 63 NRC at 437. Mr. Epstein must provide more than "bald or conclusory allegations;" instead, he must demonstrate that his contention is within the scope of this hearing.

See LES , CLI-04-45, 60 NRC at 224-25. Mr. Epstein has not done this; therefore, this contention is wholly

outside the scope of license renewal and is, thus, inadmissible.

Second, Proposed Contention 1 fails because it is not material to a finding the NRC must make to support its decision regarding this license renewal application.

10 C.F.R. § 2.309(f)(1)(iv). Mr. Epstein asserts several reasons why he believes Proposed

Contention 1 is material to this proceeding. Petition at 16. First, he sets out the NRC's

definition of a utility.

Id. Second, Mr. Epstein states that "PPL's status as an 'electric utility' is in jeopardy and its ability to service financial, fiscal, and decommissioning obligations has been

eroded by the Company's removal from the rate base."

Id. Finally Mr. Epstein asserts that the application does not demonstrate that PPL can meet its future financial obligations.

Id. Lacking from Mr. Epstein's discussion is why any of these issues are material to this license renewal

proceeding. As discussed supra , none of these arguments are within the scope of license renewal; therefore, none of these issues are material to the findings necessary to support this

license renewal action.

Finally, Proposed Contention 1 must be denied because it does not demonstrate that a genuine issue of material fact exists between Mr. Epstein and PPL. 10 C.F.R. § 2.309(f)(1)(vi).

Mr. Epstein never points to a single regulation being violated or a specific portion of the

application which is deficient. For example, Mr. Epstein strongly argues that PPL is no longer

an "electric utility" under the NRC's definitions. Petition at 16-29. Nowhere, however, does Mr.

Epstein identify why this definition is relevant to PPL's license renewal application. In fact, there

is no requirement that an applicant for license renewal be an electric utility.

See e.g. 10 C.F.R.

§ 50.33(f). Properly formatted contentions "must focus on the license application in question, challenging either specific portions of or alleged omissions from the application."

LES , LBP-04-14, 60 NRC at 57. Mr. Epstein ignores this requirement by merely listing portions of the

application that mention financial issues, Petition at 15, but he never specifically states any

"genuine issue or material fact" in dispute between himself and the Applicant. For all of these

reasons, admission of Proposed Contention 1 must be denied. 2.Proposed Contention 2 PPL failed to factor, consider and address numerous water use and indigenous aquatic challenges present and anticipated for the Susquehanna River.

Petition at 23. Mr. Epstein provides an explanation for the basis of the contention as follows:

The Susquehanna River Basin Commission and the Pennsylvania Department of Environmental Protection (PA DEP) are in the process of collecting, evaluating, and implementing a comprehensive water use plan for Pennsylvania, i.e., Act

220. Moreover, recent and consistent droughts in Pennsylvania (2002) as well

as flooding (2006) have forced state and regulatory bodies to reexamine water as

a commodity in the Commonwealth of Pennsylvania.

In addition, a number of infestations, specifically Asiatic clams and Zebra mussels, have required power plants to prepare plans to defeat these aquatic

invasions.

Id.Staff's Response to Proposed Contention 2 Proposed Contention 2 is inadmissible. Proposed Contention 2 is not supported by bases that satisfy the pleading requirements of 10 C.F.R. § 2.309. First, the asserted bases fail

to demonstrate that a genuine dispute exists with the Applicant regarding a material issue of law

or fact.

See 10 C.F.R. § 2.309(f)(1)(vi). Additionally, Petitioner's reliance on vague data regarding nuclear power plants other than SSES, generic questions, and references to the

anticipated enactment of state regulations do not provide sufficient information to show that

there are material issues of fact in dispute.

Id. Second, Petitioner's asserted bases for Proposed Contention 2 lack sufficient facts and contain no supporting expert opinion to satisfy

10 C.F.R. § 2.309(f)(1)(v). Throughout his discussion of Proposed Contention 2 Petitioner

poses numerous, vague questions to the NRC and Applicant, but does not provide legal support

for why those questions must be addressed in this proceeding nor does he explain what would

constitute sufficient answers. Petition at 23-29. It is impermissible for Petitioner to rely on

generalized suspicions and vague references to alleged events at SSES and other plants and

equally unparticularized portions of general studies for providing a factual basis. 10 C.F.R. § 2.309(f)(1)(v);

Millstone , CLI-01-24, 54 NRC at 363. Petitioner's brief explanation of its bases for Proposed Contention 2 does not encompass all that is included in its discussion, and it is unclear exactly what bases Petitioner wi shes to rely on, so the Staff responds below to what it believes are Petitioner's main arguments.

First, Petitioner's insistence that the Applicant must resubmit its application after the enactment or implementation of Pennsylvania Act 220 is beyond the scope of this proceeding.

It is true that an applicant must provide the status of compliance with its permits and licenses in

its Environmental Report, and the Applicant here does that.

See, 10 C.F.R. § 51.45(d);

LRA Appendix E, §§ 9.0-9.1. Petitioner offers no support for his assertion that the Applicant

must anticipate a future law which may affect it, and resubmit its LRA if or when the law is

enacted, or its regulations implemented. PPL holds both a National Pollutant Discharge

Elimination System (NPDES) permit for water discharge into the Susquehanna River, as well as

consumptive use water approval, issued and enforced by the Susquehanna River Basin

Commission, Application 19950301, for SSES.

See LRA, Appendix E, §§ 9.0-9.1, Appendix F.

The Applicant also discusses its water use in its LRA, Appendix E § 3.2.1.2. That section

addresses all of the questions posed by the Petitioner in Proposed Contention 2, and Petitioner

does not explain what he believes has been omitted or inadequately addressed. Therefore the

contention does not meet the pleading requirements of 10 C.F.R. § 2.309(f)(1)(vi). The

Petitioner does not appear to contend that SSES is in violation of its permits, that it will violate

them if its license is renewed, or that it is or will be in violation of any other state or federal laws.

In order for NRC to issue the renewed license, SSES must explain the status of compliance with

its water use permits, but NRC does not rely on an independent analysis of water consumption

as a factor in its license renewal decision. 10 C.F.R. § 54.45(d); Dominion Nuclear Conn. Inc.(Millstone Nuclear Power Station Units 2 & 3) LBP-04-15, 60 NRC 81, 93 (2004); aff'd, CLI-04-36, 60 NRC 631 (2004). Therefore, compliance with Pennsylvania Act 220 as a basis for Proposed Contention 2 is outside the scope of this proceeding and not material to NRC's decision. 10 C.F.R. §§ 2.309(f)(1)(iii), (iv).

Petitioner's discussion of impingement and entrainment of organisms is not a basis for Proposed Contention 2. The Petitioner references other power plants on the Susquehanna

River which impinge and entrain organisms, and a fish kill at Brunner Island, but offers no

explanation for requiring impingement or entrainment assessment at SSES. Petition at 25-26.

Because SSES does not utilize once-through cooling or cooling pond heat dissipation systems, it is not required to assess the impact of the facility on fish, early life stages of fish, or heat

shock. 10 C.F.R. § 51.53(c)(3)(ii)(B). These are Category 1 issues.

See 10 C.F.R. Part 51, Appendix B. Therefore, an assessment of these issues is outside the scope of this proceeding, and not material to NRC's license renewal decision. 10 C.F.R. §§ 2.309(f)(1)(iii), (v).

In his discussion of Proposed Contention 2, Petitioner mentions invasive species in the Susquehanna River and asks how "PPL plans to defeat Asiatic clam and/or Zebra mussel

infestation." Petition at 28. Petitioner does not supply any legal support for why this is an

appropriate basis for his proposed contention. Petitioner does not explain what his concerns

are about the invasive species. He simply states in a footnote that those species are present in

the Susquehanna River.

Id. Therefore, the Petitioner has failed to provide sufficient information to show that a genuine dispute exists with the Applicant on a material issue of law or fact.

10 C.F.R. § 2.309(f)(1)(vi). Moreover, the discharge of chlorine or other biocides is a Category

1 issue, and thus not a part of the environmental review for license renewal. 10 C.F.R. Part 51, Subpart A, Appendix B. Therefore, this basis for Proposed Contention 2 also fails because it is

beyond the scope of this proceeding. 10 C.F.R. § 2.309(f)(1)(iii).

Petitioner poses a question about tritium monitoring, but does not specify what he sees as a flaw or omission in the LRA or ER. Petition at 26. Therefore, it does not even come close

to meeting the requirements of 10 C.F.R. § 2.309. Petitioner cannot just ask a question and expect the Staff, Applicant, or Board to discern what he is implying as a basis for his contention.

See, USEC , CLI-06-10, 63 NRC at 457; LES , LBP-04-14, 60 NRC at 56. This mere mention of tritium monitoring does not provide sufficient information to show that a genuine dispute exists

on a material issue of law or fact, and therefore fails to meet the admissibility requirements of 10

C.F.R. § 2.309(f)(1)(vi).

Petitioner's vague statements, questions, and unparticularized references to other power plants fail to provide adequate bases for Proposed Contention 2, with most of his assertions

beyond the scope of a license renewal proceeding. Furthermore, Petitioner does not offer any

support for the Board's imposition of his suggested remedies. Petition at 29. Mr. Epstein asks

that PPL be required to resubmit a revised LRA addressing the issues he raises in Proposed

Contention 2, id., but that remedy is not supported by bases, the issues he raises are beyond the scope of license renewal, not material to NRC's determination, and not supported by

sufficient information or an expert opinion. Petitioner asks PPL to include an impact statement

addressing the "synergetic impact of a 200 mw upr ate, coupled with a 20-year license extension on the environment." Petition at 29. The uprate is factored into the license renewal application, and Petitioner offers no legal support, nor expert opinion which shows that a genuine dispute

exists with the Applicant on a material issue of law or fact regarding that analysis.

See , LRA §1.2; Petition at 27-29. Therefore, Proposed Contention 2 does not satisfy the requirements of

10 C.F.R. § 2.309(f)(1)(vi) and is inadmissible. Finally, Petitioner does not support his request

that the Applicant resubmit its application after the implementation of Pennsylvania Act 220 with

any legal argument or expert opinion. Not only is that request not redressible by the Board, but

the basis fails to meet the requirements of 10 C.F.R. § 2.309(f)(1). Thus, for the

aforementioned reasons, Proposed Contention 2 is inadmissible. 3.Proposed Contention 3 PPL's demographic profile is flawed and incomplete and fails to consider the aging population and workforce which impacts supports services, emergency

planning, workforce replenishment and traffic patterns.

Petition at 30. Mr. Epstein's brief explanation of the basis for this Proposed Contention is as

follows.Pennsylvania is the second oldest state in the nation after Florida and its fastest growing population segment is octogenarians. An aging population base has

unique and sensitized needs that were not factored, considered, or analyzed in

the licensee's application. Moreover, PPL's intent to raise electric prices by at

least 20% to 30% in the near future hits fixed-income and aging population bases

especially hard.

Id. Mr. Epstein further supports Proposed Contention 3 by, inter alia , describing the aging workforce in the area surrounding SSES, documenting SSES' "out sourcing" and early

retirement trend, predicting probable increases in utility rates, and explaining the

disproportionate impact these rates will have on aging populations. Petition at 30-35. Mr.

Epstein seeks to have PPL resubmit the portions of its application that relate to an aging labor

and population base and the associated socioeconomic stress, and demands that PPL and the

NRC "reexamine the plant's demographics." Petition at 35.

Staff Response to Proposed Contention 3 The Staff opposes admission of this Proposed Contention on the grounds that it is not material to the findings the NRC must make to support a license renewal application and does

not demonstrate that a genuine dispute exists with the applicant on a material issue of law or

fact. 10 C.F.R. §§ 2.309(f)(1)(iv) and (vi).

First, Proposed Contention 3 is not material to the findings the NRC must make to support its decision regarding this license renewal application. 10 C.F.R. § 2.309(f)(1)(iv). Mr.

Epstein states generically that this Proposed Contention is material to the NRC staff's findings

because "these human components are critical ingredients in the infrastructure of any large industrial complex." Petition at 31. This unsubstantiated statement, standing alone, does not demonstrate why this Proposed Contention is material to the NRC staff's license renewal

findings. Indeed, Contention 3 appears to be wholly unrelated to any NEPA finding the NRC

must make. In license renewal, an Applicant's environmental report is not required to consider

the economic costs and benefits of the proposed action, except insofar as they relate to

alternatives or are relevant to mitigation. 10 C.F.R. § 51.53(c)(2).

Second, Proposed Contention 3 does not provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. 10 C.F.R.

§ 2.309(f)(1)(vi). Commission regulations require that contentions contain references to specific

portions of the applicant's environmental or safety report that the petitioner disputes or believes

omitted relevant information. 10 C.F.R. § 2.

309(f)(1)(vi). Mr. Epstein never provides this analysis. Instead, Mr. Epstein provides a long list of population statistics and compares them to

answers PPL employees have given in other cases and interviews. Petition at 32-35. While Mr.

Epstein lists the sections of the Application where demographics are mentioned, Petition at 30, he never identifies what the dispute is with the Application, nor what portion of PPL's analysis

he believes is wrong. PPL provided both an environmental justice and demographic analysis of

the communities within fifty miles of the SSES.

See LRA, Appendix E §§ 2.6, 2.7. Many of Mr.

Epstein's assertions concern SSES' aging population base and workforce, in one case

referencing the number of "low-income households" in Luzerne and Columbia counties. Petition

at 34. PPL specifically analyzed the impact of the license renewal of SSES on low income

populations in its environmental report. LRA, Appendix E § 2.6.2.2. Mr. Epstein never specifies

the deficiencies in this analysis. Properly formatted contentions "must focus on the license

application in question, challenging either specific portions of or alleged omissions from the

application."

LES , LBP-04-14, 60 NRC at 57. It is never clear from Mr. Epstein's assertions what specific analysis or fact contained in PPL's Application he is challenging.

Mr. Epstein further states that the "problems PPL faces moving forward, such as a declining and aging labor pool and aging population base were omitted from PPL's renewal

application." Petition at 33. To the extent that Mr. Epstein believes PPL's Application "fails to

contain information on a relevant matter as required by law," Mr. Epstein must identify each

failure and provide supporting reasons for his belief. 10 C.F.R. § 2.309(f)(1)(iv). Mr. Epstein

never provides support for his belief that there was an omission. Instead, he merely states that

PPL and the NRC have "spent large sums of money and countless hours examining the effect

of aging of reactor components and an aging management review," but that "neither entity has

examined the impact of relicensing on aging human beings who live within the shadow of the plant." Petition at 33. In fact, PPL did provide a demographic analysis in its environmental

review. LRA, Appendix E § 2.6. Mr. Epstein never demonstrates why PPL's existing analysis is insufficient, nor does he provide any legal basis for why more is required. Mr. Epstein has not

provided sufficient information to show that a genuine dispute exists with the applicant on a

material issue of law or fact.

Finally, Mr. Epstein alleges that PPL's practice of "out sourcing" work should have been addressed in the LRA. Petition at 30-33. Again, Mr. Epstein does not provide support for why

this must be included in PPL's analysis. Mr. Epstein's "out sourcing" arguments concern PPL's

current operating practice, as he is worried by the current amount of labor "contracted to 'work

by others'" and the ratio of "linesman to households." Petition at 31-33. Concerns with current

operating practices are outside the scope of license renewal as they are not Category 2

environmental issues nor related to a plant structure or component that will require an aging

management review.

See McGuire; Catawba , CLI-02-26, 56 NRC at 363-64.

Based on the foregoing, Proposed Contention 3 is not admissible. 4.Proposed Contention 4 PPL's tax analysis is fatally flawed and lacks historical perspective. The company failed to assess the impact of Revenue Neutral Reconciliations at the

SSES on local citizens, residents, taxpayers, and homeowners.

Petition at 36. Mr. Epstein's basis for Proposed Contention 4 is as follows.

By limiting their historic snapshot from 2001-2005, PPL provides a false and incomplete fiscal picture of the impact their property devaluations and legal suits

had on local taxing bodies. The transition from the PURTA to RNR has been a

disaster. PPL has conveniently omitted the tax strain it has caused the Berwick

Area School District, Salem Township, Luzerne County, residential consumers

and senior citizens living on fixed incomes.

Id. Mr. Epstein supports this Proposed Contention by analyzing the historic valuation of SSES and the different tax rates it paid throughout its history. Petition at 37-39. He also documents earlier tax court cases.

Id. For a remedy, Mr. Epstein asks the NRC to compel PPL to revise and resubmit the "tax impact" of SSES' license renewal using modern numbers, to compel PPL to resubmit portions of its application relating to socioeconomic stress and economic impact

"based on PPL's tax shifting policies," and for the NRC to compel PPL to explain how its tax

policies benefit local communities. Petition at 39.

Staff Response to Proposed Contention 4 The Staff opposes admission of this Proposed Contention on the grounds that it is outside the scope of license renewal, the issue raised is not material to the findings the NRC must make

to support a license renewal decision, and there is not sufficient information to show that a

genuine dispute exists on a material issue of law or fact. 10 C.F.R. §§ 2.309(f)(1)(iii), (iv), (vi).

Portions of Proposed Contention 4 are outside the scope of this proceeding. 10 C.F.R. § 2.309(f)(1)(iii). It is unclear precisely what remedy Proposed Contention 4 seeks. To the extent

it seeks to have the NRC provide a new property tax valuation for SSES, the Proposed

Contention is clearly outside the scope of license renewal.

See Environmental Review of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28467, 28471-72 (June 5, 1996) (Stating that issues relating to utility economics are outside the scope of an environmental analysis because they are state issues). If Proposed Contention 4 is requesting the NRC to

compel PPL to explain the impact of a state tax assessment or to develop a more community friendly tax policy (Petition at 36, 39) then this is also outside the scope of this proceeding.

Id.Secondly, Proposed Contention 4 is not material to the findings the NRC must make to support a license renewal decision. 10 C.F.R. § 2.309(f)(1)(iv). In support of materiality, Mr.

Epstein states that "relicensing a nuclear power plant should not impose economic hardships on

the host community." Petition at 37. Mr. Epstein further suggests that "either the NRC must

reexamine the economic impact of SSES on t he community, or address how relicensing a nuclear power plant while shifting the tax burden and increasing rates on an aging community is

incompatible with the NRC's mission."

Id. Mr. Epstein provides no authority to support this novel claim. While it is true that applicants include tax information in their applications, see LRA, Appendix E § 2.7, Mr. Epstein does not make it clear why this imposes a duty on the NRC

to examine shifting tax burdens that resulted from state deregulation. It is incumbent upon

petitioners to clearly state the bases for their contentions as a Board may not infer unarticulated

bases. USEC , CLI-06-10, 63 NRC at 457. Mr. Epstein's unsubstantiated arguments for materiality do not meet the Commission's stringent pleading requirements and are without merit.

Further, Proposed Contention 4 is inadmissible because it does not provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or

fact. 10 C.F.R. § 2.309(f)(1)(vi). Commission regulations require contentions to contain

references to specific portions of the applicant's environmental or safety report that the

petitioner disputes or believes omitted relevant information. 10 C.F.R. § 2.309(f)(1)(vi). While

Mr. Epstein lists the sections of the Application that mention socioeconomic and tax related

issues, Petition at 36, he never specifies which portion of this analysis he believes is flawed. PPL provided a tax analysis as part of its environmental report.

See LRA, Appendix E § 2.7.

Mr. Epstein never specifies which portion of this analysis he believes is incorrect. Instead, Mr.

Epstein merely lists past tax figures and tax related litigations and settlements, without

demonstrating the precise issue of law or fact disputed.

Id. At 37-39.

Additionally, Mr. Epstein makes numerous unsubstantiated declarations. For example, Mr. Epstein lists property valuation statistics from both before and after deregulation, speaks

about "stranded costs" that PPL collected "based on earlier miscalculations," and contends that

PPL purposefully devalued SSES because they "supposedly understood that in order for free-

enterprise to thrive, they would have to abandon their rate recovery dependency."

Id. Mr.Epstein never provides any citations or ex pert testimony to support these assertions nor provides any causal connection between the license renewal of SSES and these state tax

issues. It is the petitioner's duty to present the factual information and expert opinions

necessary to support his contention adequately.

See USEC , CLI-06-10, 63 NRC at 457.

Further, Mr. Epstein never specifies how these unsubstantiated assertions create a genuine

issue of law or fact with PPL. Mr. Epstein's bare assertions are not sufficient to satisfy the

Commission's stringent pleading requirements; therefore, Proposed Contention 4 is

inadmissible.

See Id.5.Proposed Contention 5 PPL is in violation of the following Federal Regulations: 10 C.F.R. § 50.47; 10 C.F.R. § 50.54; 10 C.F.R. § [sic] Part 50 Appendix E; and 44 C.F.R. § 350.

Petition at 41. Mr. Epstein's brief explanation of the basis for this contention is as follows:

The Nuclear Regulatory Commission should hold a final decision for relicensing the SSES in abeyance until such time that PPL can demonstrate and verify its

compliance with emergency preparedness measures at the Susquehanna Steam

Electric Station under the Radiological Emergency Protective Measures outlined

in 10 C.F.R. § 50.47 (Condition of Licenses).

Id. Staff Response to Proposed Contention 5 Proposed Contention 5 is inadmissible. It is outside the scope of license renewal and it does not provide enough information or support for Mr. Epstein's position on the issue.

10 C.F.R. §§ 2.309(iii), (vi). Evacuation planning is not related to a structure or component

which requires an aging management review, nor is it a Category 2 environmental issue which

must be analyzed for a license renewal.

See 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1; McGuire; Catawba , CLI-02-26, 56 NRC at 363-64. The Commission has specifically excluded emergency planning from license renewal proceedings because the issue is not

germane to age-related degradation or unique to the period of time covered by the license

renewal. Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 560-61 (2005);

Turkey Point , CLI-01-17, 54 NRC at 9-10. Thus, Proposed Contention 5 is inadmissible because it is outside the scope of this proceeding, and

should not be admitted. § 2.309(f)(1)(iii).

CONCLUSION For the reasons discussed above, Mr. Epstein has not demonstrated standing to intervene, on his own behalf or on behalf of TMIA, nor has he proffered an admissible

contention. Therefore, the Licensing Board should deny his Petition.

Respectfully submitted,/RA/__________________Molly L. Barkman

Jody C. Martin

Counsel for NRC Staff Dated at Rockville, Maryland this 29 th day of January, 2007

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

)PPL SUSQUEHANNA LLC )Docket Nos. 50-387-LR

) 50-388-LR

)(Susquehanna Steam Electric Station ) ASLBP No. 07-851-01-LR Units 1 and 2))

CERTIFICATE OF SERVICE I hereby certify that copies of the "NRC STAFF RESPONSE TO ERIC JOSEPH EPSTEIN'S PETITION FOR LEAVE TO INTERVENE, REQUEST FOR HEARING, AND CONTENTIONS" in

the above-captioned proceeding have been served on the following by electronic mail with

copies by deposit in the NRC's internal mail system or, as indicated by an asterisk, by electronic mail, with copies by U.S. mail, first class, this 29th day of January, 2007.

Ann Marshall Young, Chair Administrative Judge

Atomic Safety and Licensing Board Panel

Mail Stop: T-3F23