ML070820022
| ML070820022 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 03/22/2007 |
| From: | Lathrop H K, William Sager, Austin Young Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-387-LR, 50-388-LR, ASLBP-07-851-01-LR-BD01, LBP-07-04, RAS 13286 | |
| Download: ML070820022 (71) | |
Text
LBP-07-04UNITED STATES OF AMERICARAS 13286NUCLEAR REGULATORY COMMISSIONDOCKETED 03/23/07ATOMIC SAFETY AND LICENSING BOARD PANELBefore Administrative Judges: SERVED 03/23/07Ann Marshall Young, ChairDr. Kaye D. LathropDr. William W. SagerIn the Matter of:PPL SUSQUEHANNA LLC(Susquehanna Steam Electric Station, Units 1 and 2)Docket No's. 50-387-LR, 50-388-LR ASLBP No. 07-851-01-LR-BD01 March 22, 2007MEMORANDUM AND ORDER(Ruling on Standing and Contentions of Petitioner Eric Joseph Epstein)PageI.Introduction.............................................................2II.Background.............................................................2III.Board Ruling on Standing of Petitioner to Participate in Proceeding..................6IV.Board Rulings on Pending Motions..........................................11A. Petitioner's Motion to Compel PPL to Apply for Direct License Transfer...........11B. PPL Motion to Strike Portions of Petitioner's Reply...........................14V.Standards for Admissibility of Contentions in License Renewal Proceedings..........19A.Regulatory Requirements and Commission Precedent on Contentions............19B. Scope of Subjects Admissible in License Renewal Proceedings.................241. Safety-Related Issues in License Renewal Proceedings....................252. Environmental Issues in License Renewal Proceedings.....................28VI. Board Analysis and Rulings on Petitioner's Contentions..........................32A.Contention 1: Alleged Inability of Applicant to Maintain Financial Obligations.......32B.Contention 2: Alleged Failure to Address Water Use Issues....................38 C.Contention 3: Alleged Flawed Demographic Profile...........................49D.Contention 4: Alleged Flawed Tax Analysis.................................53 E.Contention 5: Alleged Non-compliance with Emergency Preparedness Requirements60VII.Conclusion and Order....................................................67 1 We note that, despite the fact that in his Petition he discusses his standing not only onhis own behalf but also on behalf of the organization Three Mile Island Alert, Inc. [hereinafterTMI Alert], Mr. Epstein styles his Petition in his own name only, see infra n.6, and we findtherein no indication of any authorization for his representation of the group in this proceeding.
For this reason, even though we address representational standing in our ruling in section III ofthis Memorandum and Order, we refer generally herein to a singular petitioner rather than to multiple petitioners.
2 See infra n.286, for explanation and clarification of certain legal principles that underlieour rulings herein, provided in recognition of Petitioner's pro se status.3 Letter from Britt T. McKinney, PPL Susquehanna, LLC, to U.S. NRC, SusquehannaSteam Electric Station Application for Renewed Operating Licenses Numbers NPF-14 and NPF-22 PLA-6110 (Sept. 13, 2006). Agencywide Documents Access and Management System (ADAMS) Accession Nos. ML062620157, ML062630225, ML062630235.-2-I. IntroductionThis proceeding involves the application of PPL Susquehanna, LLC [PPL], to renew itsoperating licenses for Units 1 and 2 of the Susquehanna Steam Electric Station [SSES] for additional twenty-year periods. Eric Joseph Epstein has filed a petition to intervene, 1 in whichhe submits contentions raising certain financial, socioeconomic, water use, and emergency preparedness issues that are asserted to concern the proposed license renewal. In this Memorandum and Order, in addition to addressing two pending motions and summarizing some of the law that governs this proceeding and serves as context for our ultimate rulings on contention admissibility, we find that, while Petitioner Epstein has shown individual standing toparticipate in the proceeding, he has not submitted any admissible contentions. Thus, as weare required to do under relevant law, we dismiss his petition and terminate this proceeding.
2 II. BackgroundPPL submitted its application requesting renewal of Operating License Nos. NPF-14 andNPF-22 by letter dated September 13, 2006.
3 The current operating licenses expire on July 27,2022, and March 23, 2024, respectively; the renewals would extend these by additional 20-year 4 Notice of Acceptance for Docketing of the Application, Notice of Opportunity forHearing 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 (Nov. 2, 2006).
5 PPL Susquehanna, LLC; Notice of Correction to the Public Scoping Comment Periodfor the Environmental Impact Statement for the License Renewal of Susquehanna Steam Electric Station, Units 1 & 2, 71 Fed. Reg. 76,706 (Dec. 26, 2006). The deadline for filing a request for hearing/petition to intervene was stated correctly as January 2, 2007, in the first notice. 6 Eric Joseph Epstein's Petition for Leave to Intervene, Request for Hearing, andPresentation of Contentions with Supporting Factual Data (Jan. 2, 2007) [hereinafter Petition or Petition to Intervene].
7 Licensing Board Order (Regarding Schedule and Guidance for Proceedings) (Jan. 23,2007) (unpublished).
8 NRC Staff Response to Eric Joseph Epstein's Petition for Leave to Intervene, Requestfor Hearing, and Contentions (Jan. 29, 2007) [hereinafter Staff Response]. PPL Susquehanna's Answer to Eric Epstein's Petition for Leave to Intervene (Jan. 29, 2007)
[hereinafter PPL Answer].-3-periods. The NRC published a notice of acceptance and docketing and opportunity for hearingregarding this license renewal application (LRA or Application) on November 2, 2006, 4 and onDecember 21 published a correction to the notice, extending the comment period for public scoping for the Environmental Impact Statement to January 2, 2007.
5 Eric Joseph Epsteintimely filed his petition to intervene on January 2, 2007.
6On January 18, 2007, this Atomic Safety and Licensing Board (Board) was established topreside over this adjudicatory proceeding, and on January 23 the Board issued an order providing guidance for the proceeding.
7 On January 29, 2007, the NRC Staff and PPL filedresponses to the Petition to Intervene, 8 and on February 5, 2007, Petitioner Epstein filed a replyto these responses, along with a "Motion to Compel [PPL] to: (1) Apply for a Direct License Transfer (Or Incorporate Modifications from an NRC Approved Transfer Into The Relicensing Application) Prior to the Issuance of a Relicensing Application for the [SSES]; and, (2) Request 9 Eric Joseph Epstein's Response to PPL Susquehanna's Answer to Eric JosephEpstein's Petition to Intervene and Eric Joseph Epstein's Response to the NRC Staff's Response to Eric Joseph Epstein's Petition for Leave to Intervene, Request for Hearing and Contentions RE: PPL Susquehanna LLC Application for Susquehanna Steam Electric Stations Renewed Operating Licenses NPF-14 and NPF-22 Docket Nos. 50-387 PLA-6110 and 50-388 (Feb. 5, 2006) [hereinafter Epstein Reply]; Eric Joseph Epstein's Motion to Compel [PPL] to:
(1) Apply for a Direct License Transfer (Or Incorporate Modifications from an NRC Approved Transfer Into The Relicensing Application) Prior to the Issuance of a Relicensing Applicationfor the [SSES]; and, (2) Request and Receive a Schedular Exemption to Proceed With a Premature Relicensing Application for the [SSES] (Feb. 5, 2007) [hereinafter Motion to Compel].10 [PPL]'s answer to Eric Epstein's Motion to Compel Application for License Transfer(Feb. 13, 2007) [hereinafter PPL Answer to Motion to Compel]; [PPL]'s Motion to Strike Portions of Eric Epstein's Response to Answers to Petition to Intervene (Feb. 13, 2007) [hereinafter PPL Motion to Strike].
11 NRC Staff Response to Eric Joseph Epstein's Motion to Compel and Request forSchedular Exemption (Feb. 15, 2007) [hereinafter Staff Response to Motion to Compel].
12 Eric Joseph Epstein's Response to PPL Susquehanna's Motion to Strike Portions ofEric Epstein's Response to Answers to Petition To Intervene (Feb. 23, 2007).
13 Licensing Board Order (Scheduling Telephone Conference) (Feb. 28, 2007)(unpublished).
14 Tr. at 13.-4-and Receive a Schedular [sic] Exemption to Proceed With a Premature Relicensing Applicationfor the [SSES]."
9 PPL responded to Petitioner's Motion to Compel on February 13, 2007, andthe same day filed a "Motion to Strike Portions of Eric Epstein's Response to Answers to Petition to Intervene."
10 The NRC Staff responded to the Motion to Compel on February 15, 2007.11 Mr. Epstein filed his reply to PPL's Motion to Strike on February 23, 2007.
12 On February 28, 2007, the Board issued an order scheduling a telephone conference forMarch 8, to allow the participants to address various points in dispute.
13 During the conference,in addition to hearing limited argument on pending issues, the Board permitted the participants to submit certain additional information after the conference, namely, citations of : (1) any case law regarding standing and the "proximity presumption,"
14 and (2) any category 2 issues listed 15 Id. at 28-29.
16 Letter from David R. Lewis, Counsel for PPL Susquehanna LLC, to the LicensingBoard (Mar. 9, 2007) [PPL Citation Letter]; Letter from Jody C. Martin, Counsel for the NRC Staff, to the Licensing Board (Mar. 9, 2007) [Staff Citation Letter].
17 Letter from Eric Joseph Epstein, Petitioner, to the Licensing Board (Mar. 11, 2007)[Epstein Citation Letter].
18 Motion to Strike Portions of Mr. Epstein's Response to the Board's Request forInformation (Mar. 15, 2007) [hereinafter Staff Motion to Strike]; Eric Joseph Epstein's Response to the Nuclear Regulatory Commission Staff's Motion to Strikes [sic] Portions of Eric Joseph Epstein Response to the Atomic Safety and Licensing Board Panel's Request for Information (Mar. 20, 2007) [hereinafter Petitioner's Response to Staff Motion to Strike].
19 Notice of Related Filing by Three Mile Island Alert Incorporated, with attachments(Jan. 31, 2007).
20 E-mail from Eric Joseph Epstein, to Licensing Board, Notice of U.S. Department ofHomeland Security, Office of Inspector General's Response to the Government Accountability Office Referral of Mr. Eric Joseph Epstein's Motions "Re: Special Needs' Emergency Planning As A Condition For A License" (Feb. 28, 2007) [Epstein Homeland Security E-mail].-5-at 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1, that are argued to be applicable to anyof the contentions in the proceeding.
15 PPL and the Staff submitted filings on March 9, 2007, 16and Mr. Epstein submitted his filing on March 11, 2007.
17 Thereafter, on March 15, 2007, theStaff filed a Motion to Strike Portions of Mr. Epstein's Response to the Board's Request for Information, and on March 20 Petitioner filed a Response to this motion.
18The participants have also filed other information related to this case with the Board forinclusion in the record of this proceeding. On January 3, 2007, Petitioner Epstein filed a notice of his submission, on behalf of Three Mile Island Alert Incorporated [TMI Alert], of comments insupport of the Massachusetts Attorney General's Petition for Rulemaking to Amend 10 C.F.R. Part 51, Docket No. PRM-51-10, regarding the treatment of high-density spent fuel storage in NEPA decision-making documents.
19 On February 28, 2007, Mr. Epstein filed an e-mailindicating that the Department of Homeland Security had acknowledged receipt of information from TMI Alert that relates to the subject matter of one of the contentions in this proceeding.
20 21 Letter from Jody Martin, Counsel for the NRC Staff, to the Licensing Board (Mar. 15,2007) (citing 72 Fed. Reg. 11,383) [Staff EPU Letter].
22 42 U.S.C. § 2239(a)(1)(A) (2000).
23 Subsection (d)(1) of 10 C.F.R. § 2.309 provides in relevant part that the Board shallconsider three factors when deciding whether to grant standing to a petitioner: the nature of the petitioner's right under the AEA to be made a party to the proceeding; the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and the possible effect of any order that may be entered in the proceeding on the petitioner's interest. 10 C.F.R.
§ 2.309(d)(1)(ii)-(iv). The provisions of 10 C.F.R. § 2.309 were formerly found at 10 C.F.R. §2.714, prior to a major revision of the Commission's procedural rules for adjudications in 2004.
24 See, e.g., Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 48NRC 185, 195 (1998); Quivira Mining Co. (Ambrosia Lake Facility, Grants, New Mexico),CLI-98-11, 48 NRC 1, 5-6 (1998); Georgia Institute of Technology (Georgia Tech ResearchReactor, Atlanta, Georgia), CLI-95-12, 42 NRC 111, 115 (1995).
25 Yankee, CLI-98-21, 48 NRC at 195 (citing Steel Co. v. Citizens for a Better Env't, 523U.S. 83, 102-04 (1998); Kelley v. Selin, 42 F.3d 1501, 1508 (6th Cir. 1995)).-6-Finally, on March 15, 2007, counsel for the NRC Staff filed a letter informing the Board and theparties that a Notice of Opportunity for Hearing in the Susquehanna Extended Power Uprate (EPU) case was published in the Federal Register on March 13, 2007.
21III. Board Ruling on Standing of Petitioner to Participate in ProceedingA petitioner's standing, or right to participate in a Commission licensing proceeding, isderived from section 189a of the Atomic Energy Act (AEA), which requires the NRC to provide a hearing "upon the request of any person whose interest may be affected by the proceeding."
22 The Commission has implemented this requirement in its regulations at 10 C.F.R. § 2.309.
23When determining whether a petitioner has established the necessary "interest" underCommission rules, licensing boards are directed by Commission precedent to look to judicial concepts of standing for guidance.
24 Under this authority, in order to qualify for standinga petitioner must "allege (1) a concrete and particularized injury that is (2) fairly traceable to the challenged action and (3) likely to be redressed by a favorable decision" - three criteria commonly referred to as "injury in fact," causality, and redressability.
25 The requisite injury may 26 Id. (citing Wilderness Soc'y v. Griles, 824 F.2d 4, 11 (D.C. Cir. 1987)).
27 Id. at 195-196 (citing Ambrosia Lake Facility, CLI-98-11, 48 NRC at 6).
28 See Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329 (1989); Florida Power & Light Co. (Turkey Point Nuclear GeneratingPlants, Units 3 and 4), LBP-01-06, 53 NRC 138, 146-150 (2001); Virginia Elec. and Power Co.(North Anna Nuclear Power Station, Units 1 & 2), ALAB-522, 9 NRC 54, 56 (1979) ("close proximity [to a facility] has always been deemed to be enough, standing alone, to establish the requisite interest" to confer standing).
29 See Yankee, CLI-98-21, 48 NRC at 195.
30 See GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-06, 51NRC 193, 202 (2000).-7-be either actual or threatened, 26 but must arguably lie within the "zone of interests" protected bythe statutes governing the proceeding - here, either the AEA or the National Environmental Policy Act (NEPA).
27 Additionally, Commission caselaw has established a "proximitypresumption," whereby an individual may satisfy these standing requirements by demonstrating that his or her residence is within the geographical area that might be affected by an accidental release of fission products, and in proceedings involving nuclear power plants this area has been defined as being within a 50-mile radius of such a plant.
28An organization that wishes to establish standing to intervene may do so by demonstratingeither organizational standing or representational standing. In order to establish organizationalstanding it must show that the interests of the organization will be harmed by the proposed licensing action, while an organization seeking representational standing must demonstrate that the interests of at least one of its members will be so harmed.
29 To establish suchrepresentational standing, an organization must: (1) show that at least one of its members may be affected by the licensing action and, accordingly, would have standing to sue in his or her own right; (2) identify that member by name and address; and (3) show that the organization is authorized to request a hearing on behalf of that member.
30 31 As indicated above, Petitioner does not indicate that the organization took any actionto authorize his representation, but we nonetheless address herein the issue of its standing, assuming arguendo that such authorization was in fact actually given. Whether suchauthorization is a "curable" matter, such that a petitioner might show after the fact that such authorization was in fact given in some formal manner, would have likely been an issue that we would have requested argument and/or required briefing on, had it appeared likely that standing would otherwise have been found on the part of TMI Alert.
32 Petition at 4-7.
33 Petition at 8-10.
34 Epstein Reply at 11. Petitioner does not argue that he himself qualifies as such amember for purposes of representational standing.
35 Staff Response at 3-4.
36 Id. at 6-8.-8-Petitioner Epstein asserts standing both on his own behalf and on behalf of the organizationTMI Alert.
31 He argues that he is a residential customer and a shareholder of PPL, and that hehas participated as a party and as a witness in several other proceedings before state regulatory bodies.
32 Petitioner also argues that he has standing on behalf of TMI Alert bothbecause the organization's interests are affected by the proposed licensing action 33 andbecause certain unnamed members of the organization reside within fifty miles of the plant.
34 Both the NRC Staff and the Applicant disagree, claiming that Mr. Epstein does not havestanding either as an individual or as a representative of TMI Alert. According to the Staff,
"[t]he economic interests of a ratepayer are not within the zone of interests sought to be protected by the AEA" or of NEPA.
35 Additionally, argues the Staff, Mr. Epstein has not shownan injury-in-fact that can be traced to the proposed license renewal and has not even attempted to argue that he resides within the 50-mile radius required for the "proximity presumption" to apply.36 Furthermore, the Staff asserts, Mr. Epstein fails both to demonstrate that TMI Alert hasinstitutional interests that may be harmed by the licensing action and to identify organization members who live within fifty miles of the plant and who have authorized TMI Alert, and 37 Id. at 8-9.38 PPL Answer at 2-6.
39 Epstein Reply at 8.
40 Id. Petitioner states that his consulting business, EFMR Monitoring Group,established in 1992, "monitors radiation levels, invests in community development, and sponsors remote robotics research." Id. at n.3.41 Tr. at 14.
42 International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC247, 252 (2001).-9-Petitioner Epstein on its behalf, to represent them.
37 PPL presents essentially the samearguments in support of its claim that Mr. Epstein lacks standing.
38In his Reply, Petitioner states that he lives "just outside of the proximity zone (approximately56 miles from [SSES]), but works within 50 miles of the plant on a regular basis," providing as examples a date in January and two dates in February when he was in these locations.
39 Heindicates that his consulting business regularly takes him to Hazleton, 15 miles from the plant;Fogelsville, 45 miles from the plant; and Allentown, 47 miles from the plant.
40 Also, in hisargument during the March 8 telephone conference, Mr. Epstein provided additional information about the work he performs within fifty miles of the plant, stating that he makes four to six trips weekly to locations within the 50-mile radius in connection with his work for several organizations in the area, and that he has made such trips for the past eight years.
41 We find that Petitioner Epstein has not made the requisite showing to establish organizational or representational standing on the part of TMI Alert. General policy interests alone are not sufficient to establish organizational standing; rather, a petitioner seeking to show standing in this way must demonstrate a "discrete institutional injury" to the organization itself.
42 Petitioner has not done so here. Petitioner has also failed to make the case for representational standing because, although he asserts that TMI Alert has members who live 43 See Epstein Reply at 10 (asserting that TMI Alert's membership list is proprietary).
44 See Oyster Creek, CLI-00-6, 51 NRC at 202, and authorities cited therein.
45 See Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NEC 318, 323-25 (1999) (frequent recreational use of a specific parcel of land sufficient to establish standing); Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation).CLI-98-13, 48 NRC 26, 31-32 (1998) (frequent, extended visits to relatives sufficient to establish standing); Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), CLI-93-16, 38 NRC 25, 35 (1993) (residence in a location one week per month sufficient to establish standing).
46 See Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2; Watts BarNuclear Plant, Unit 1), LBP-02-14, 56 NRC 15 (2002) (occasional contact not sufficient to establish standing).
47 Epstein Reply at 8.-10-within fifty miles of the plant, he has failed to identify such individuals or to show that theorganization, or indeed he himself, is authorized to act on their behalf.
43 In order for anorganization to qualify for the proximity presumption, a bare assertion that a member lives within 50 miles is not sufficient; any such member must be identified by name and address, and it must be shown (preferably by affidavit) that the organization is authorized to request a hearing on behalf of that member.
44 Based on the preceding, we find that Petitioner has failedto establish standing on the part of TMI Alert to participate in this proceeding.We do, however, find that Petitioner Epstein has made a sufficient showing to establishstanding for himself under the "proximity presumption." Mr. Epstein admits that he resides more than fifty miles from the plant. However, significant contacts with an affected area can be sufficient to establish standing, even when full-time residence within the 50-mile zone is not shown.45 While not all such intermittent contacts are sufficient to establish standing, 46 theregularity of Mr. Epstein's trips to the area around the plant, for a number of years, weighs in his favor. In addition, he resides six miles outside the area in question 47 and can therefore beexpected to continue to conduct business there in the future. Because of this pattern of regular 48 PPL Susquehanna, LLC, is a subsidiary of PPL Generation, LLC, which is asubsidiary of PPL Energy Supply, LLC, which is an indirect wholly owned subsidiary of PPL Corporation, an energy and utility holding company.
See Motion to Compel at 4; Application at§ 1.1.3.49 Motion to Compel at 8, 10.
50 Id. at 6, 8, 9.-11-contacts within the 50-mile radius around the plant, we find that Mr. Epstein has standing on hisown behalf. With regard to the Staff's Motion to Strike, neither the information provided by Petitioner inhis March 11 letter, nor the fact that he provided more than the citations discussed in the March 8 telephone conference, alters our ruling on standing. Therefore there is no need for a ruling on this motion.IV. Board Rulings on Pending Motions A. Epstein Motion to Compel PPL to Apply for Direct License TransferAs indicated above, Petitioner Epstein on February 5, 2007, filed a "Motion to Compel [PPL]to: (1) Apply for a Direct License Transfer (Or Incorporate Modifications from an NRC Approved Transfer Into The Relicensing Application) Prior to the Issuance of a Relicensing Applicationfor the [SSES]; and, (2) Request and Receive a Schedular Exemption to Proceed With a Premature Relicensing Application for the [SSES]." This motion is premised primarily on the Petitioner's allegation that PPL has neither applied for nor received a license transfer from the preceding licensee for SSES, PPL Electric.
48 Petitioner also questions whether PPL qualifiesas an "electric utility,"
49 and asserts that PPL must seek a "schedular exemption" as a new licensee, 50 apparently believing that the transferred license in the hands of the new licensee is 51 Id. at 9.52 See id. at 7.53 Staff Response to Motion to Compel at 3.
54 PPL Response to Motion to Compel at 1. 10 C.F.R. § 2.323(b) requires any motion,other than one made orally on the record during a hearing or as otherwise directed by the presiding officer, to contain a certification that the movant has made a sincere effort to contact the other parties and resolve the matter, and that this effort was unsuccessful. 10 C.F.R.
§ 2.323(b).
55 See PP&L, Inc. Allegheny Electric Cooperative, Inc. (Susquehanna Steam ElectricStation, Units 1 and 2); Order Approving Transfer of Licenses and Conforming Amendments, 65 Fed. Reg. 37,418 (June 14, 2000). In approving the transfer the NRC found that, subject to the conditions spelled out in the Order, PPL met relevant requirements of Section 184 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2243 (2000), and 10 C.F.R. § 50.80, which governs license transfers. Id. at 37,419. Further, consistent with 10 C.F.R. § 2.1315(b),all of the conforming license amendments required for this transfer were approved. Id.-12-actually in the nature of a new license, with a term ending later than the original license.
51 Finally, Petitioner questions the financial impact of the license transfer on rate-payers.
52The NRC Staff opposes Petitioner's Motion, noting that the NRC has in fact approved thetransfer of the SSES operating licenses to PPL, that there is no requirement that an applicant be an electric utility, and that PPL's license renewal application is timely.
53 PPL also points outthe approval of the license transfer, and notes that Petitioner Epstein failed to make any effort to consult with the other parties prior to filing his motion, as required under 10 C.F.R.
§ 2.323(b), a step which, if taken, would have corrected his oversight of the transfer approval.
54We find that, indeed, such consultation should have provided Petitioner with knowledge ofthe true situation as regards the license transfer. As evidenced by publication in the FederalRegister, the transfer of the SSES operating licenses to PPL was granted by the NRC in 2000,subject to certain conditions requiring PPL to provide various decommissioning and other funding assurances.
55 Moreover, a corporate restructuring undertaken by PPL while theapplication for license transfer was pending, adding PPL Energy Supply, LLC, as an 56 PPL Susquehanna, LLC, Allegheny Electric Cooperative, Inc. (Susquehanna SteamElectric Station, Units 1 and 2); Order Approving Application Regarding Proposed Corporate Restructuring, 66 Fed. Reg. 30,492 (June 6, 2001).
57 See, respectively, PP&L, Inc., Susquehanna Steam Electric Station, Units 1 and 2;Notice of Consideration of Approval of Transfer of Facility Operating Licenses and Conforming Amendments, and Opportunity for Hearing, 65 Fed. Reg. 11,611 (Mar. 3, 2000); PPL Susquehanna, LLC, Susquehanna Steam Electric Station, Units 1 and 2; Notice of Consideration of Approval of Application Regarding Proposed Corporate Restructuring and Opportunity for Hearing, 66 Fed. Reg. 20,839 (Apr. 25, 2001).
58 See, respectively, 65 Fed. Reg. at 37,419; 66 Fed. Reg. at 30,492.
59 See Staff Response to Motion to Compel at 5; PPL Answer at 16-17.
60 See Safety Evaluation by the Office of Nuclear Reactor Regulation Proposed Transferof Licenses to the Extent Held by PP&L, Inc., to PPL Susquehanna, LLC, Section 2.0, Financial Qualifications Analysis (June 6, 2000) ADAMS Accession No. ML003720494; Staff Response to Motion to Compel at 5 & n.10; PPL Answer at 16 & n.6.-13-intermediary, indirect parent of PPL Susquehanna, was approved by the Commission in 2001.
56 We note, with regard to both the application for approval of the license transfer and that for approval of the restructuring, that notice was provided to the public of the right to request a hearing, 57 but that in neither instance was any hearing request or comment filed.
58Consultation with the NRC Staff and/or PPL would have also made clear, with regard toPPL's status as a non-electric utility, (1) that a licensee need not be an electric utility, but(2) that a non-electric utility license applicant must meet heightened financial qualifications under 10 C.F.R. § 50.33(f).
59 As noted by the Staff and PPL, the Staff in reviewing PPL'slicense transfer application in fact found that PPL was not an "electric utility" under 10 C.F.R.
§ 50.2 and as a result conducted a more detailed review of PPL's financial qualifications under
§ 50.33(f) before the license transfer was approved.
60 This information might also have beenprovided to Petitioner, had he consulted with the other participants before filing his motion.Finally, as the Staff points out, a license transfer does not result in a new license with a newterm, but results merely in an amendment of the original license, with the same term, and with 61 Staff Response to Motion to Compel at 6.
62 See supra Section II.
63 PPL Motion to Strike at 1.
64 Id.65 Petition at 23.
66 Under 10 C.F.R. § 2.309(h)(2), a petitioner may file a reply to any answer within sevendays after service of that answer.
67 PPL Motion to Strike at 3 (citing 69 Fed. Reg. 2182, 2203 (Jan. 14, 2004)).-14-the new licensee "stepping into the shoes" of the original licensee.
61 Under 10 C.F.R.§ 54.17(c), the time frame for filing a license renewal application is no more than 20 years prior to the expiration of the current operating license, and thus PPL's Application was timely.
62Based on the preceding, we find Petitioner's "Motion to Compel" lacks merit and deny it.B. PPL Motion to Strike Portions of Petitioner's ReplyPPL on February 13, 2007, filed a motion to strike portions of Petitioner's Reply to PPL'sAnswer and the Staff's Response to the Petition in this proceeding, focusing in particular on those portions "that seek to raise safety and aging management issues under the ambit of Mr. Epstein's Contention 2."
63 PPL contends that such issues are "entirely new" and "not foundin [Petitioner's] original contention."
64 We note that in Contention 2 Petitioner alleges that "PPLfailed to factor, consider and address numerous water use and indigenous aquatic challenges present and anticipated for the Susquehanna River."
65PPL observes that the Commission's rules 66 do not specify the content of a petitioner's replyto answers to a petition, but argues that "other provisions of Part 2, the Statement of Considerations published with the final rule, and Commission precedent make clear that a replyto an answer is to 'be narrowly focused on the legal or logical arguments presented' in the answers of the applicant/licensee and NRC Staff."
67 PPL also cites Commission case law to the 68 Id. (citing Louisiana Energy Services, L.P. (National Enrichment Facility) [
LES],CLI-04-25, 60 NRC 223, 225 (2004), reconsideration denied , LES, CLI-04-35, 60 NRC 619(2004)).69 Id. (citing LES, CLI-04-25, 60 NRC at 224).
70 Id. at 3-4 (citing LES, CLI-04-25, 60 NRC at 224).
71 Id. at 5 (citing LES, CLI-04-35, 60 NRC at 623).
72 Id. at 5.73 Id. at 7.-15-effect that "a reply to an answer may not be used as a vehicle to raise new arguments or claimsnot found in the original contention or be used to cure an otherwise deficient contention."
68 Thelicensing board in the LES case had, in rejecting four contentions filed by the State of New Mexico Environment Department and the New Mexico Attorney General, "declined to consider new 'purportedly material' information in support of the contentions that was first submitted as part of a reply pleading." 69 On appeal the Commission agreed with the board that "the replybriefs constituted a late attempt to reinvigorate thinly supported contentions by presenting entirely new arguments in the reply briefs." 70PPL quotes various portions of the Commission's rulings in the LES case, including itsadmonition that "[w]hat our rules do not allow is using reply briefs to provide, for the first time, the necessary threshold support for contentions."
71 Arguing that Petitioner's Reply "clearly runsafoul" of this precedent, 72 PPL moves that we "strike all portions of the Reply that attempt toraise aging management or safety issues under the ambit of Contention 2, including all claimsconcerning (1) aging management; (2) inspection of systems and components that contain radioactively contaminated water; (3) monitoring for leakage; and (4) a tritium action plan."
73Petitioner responds to PPL's motion by indicating that in his Reply he was in effect replyingto PPL's comments that he had been "vague" in his Petition, arguing that he had "cured all 74 Petitioner's Response to Motion to Strike at 4-5; see PPL Motion to Strike at 3-4.
75 Petitioner's Response to Motion to Strike at 6.
76 Id.77 Id. at 7.78 See id. at 8-10.79 Epstein Reply at 23; see Tr. at 23.
80 Petitioner's Response to Motion to Strike at 10.-16-three purported shortcomings [raised by PPL] , and now PPL seeks to strike what it requestedfrom Mr. Epstein."
74 As an example of this, he notes his "rhetorical Question 7, which PPLsought to have refined," and claims to have "presented a cogent presentation related to tritium monitoring in his Response (pp. 20-23) to PPL's concern about the 'vague' representations contained in his rhetorical questions."
75 Petitioner also argues that "[c]learly, water use andaquatic challenges have been a consistent thread in Mr. Epstein's representations dating back to the November 15, 2006 scoping hearing in Berwick, Pennsylvania."
76 Continuing, he assertsthat "[a]t the heart of . . . Contention 2 are acts of omission by the licensee during the filing of the SSES relicensing application," and makes various arguments about NRC licensees being required to meet NRC regulations, and related matters.
77Petitioner argues that the issues he raises in the contention are significant and refers tosome of the information he submitted in his Reply as evidence of this.
78 This informationincludes allegations that PPL's Application had failed to include certain information in a December 20, 2006, water use permit application to the Susquehanna River Basin Commission (SRBC) regarding "corrosion and fouling of [water] intake pipes,"
79 which Petitioner states hedid not "'discover' until after his January 2, 2007, Petition to Intervene was filed."
80 Petitionerstates that this matter, which "PPL has publicly announced," is a "significant technical problem 81 Id.82 Id. at 11.83 LES, CLI-04-25, 60 NRC at 224; see LES, CLI-04-35, 60 NRC at 625. We note thatthe Commission in both LES rulings pointed out that a petitioner may in instances of exigent orunavoidable circumstances file a request for an extension of time to file an original hearing petition and contentions, an action which, as in this proceeding, was not done in LES. LES ,CLI-04-25, 60 NRC at 225; LES, CLI-04-35, 60 NRC at 623 (citing 69 Fed. Reg. at 2200).
84 See LES, CLI-04-25, 60 NRC at 224 (citing LES, LBP-04-14, 60 NRC 40, 58 (2004)).
85 LES, CLI-04-35, 60 NRC at 625.-17-with health and safety implications that needs to be investigated prior to issuing a 20-yearextension,"
81 and urges the NRC not to "excuse PPL's omissions" or "penalize Mr. Epsteinbecause PPL withheld information in its possession that had a direct bearing on the issues he raised in Contention 2."
82We note in ruling on PPL's motion the determination upheld by the Commission in the LEScase that, although that board would take into account any information from reply briefs that "legitimately amplified" issues presented in original petitions in that case, it would not consider instances of what "essentially constituted untimely attempts to amend their original petitions."
83 Because the reply briefs in LES had not been accompanied by any attempt to address the late-and new-filing factors of sections 2.309(c), (f)(2), they were not considered in determining the admissibility of the contentions.
84 However, the Commission later remanded to the LicensingBoard a request to consider several previously-rejected contentions under the late- and new-filing criteria of 10 C.F.R. § 2.309(c), (f)(2), despite the fact that the Petitioner therein had addressed such criteria for the first time only in its interlocutory appeal to the Commission.
85 For this reason, in an abundance of caution and in order to give the Petitioner every appropriate benefit of the doubt, we have also considered in making our rulings herein whether any of the 86 It would be inappropriate actually to "strike" anything from the record in thisproceeding, as any part of the record, whether included in that which we do consider herein, or not, may become relevant in any appeal. Therefore, while we will not consider any information that would be inappropriate under relevant law, we will retain in the record other submitted information, for appeal purposes.
87 See LES, CLI-04-25, 60 NRC at 225 (quoting Final Rule, Changes to the AdjudicatoryProcess, 69 Fed. Reg. 2182, 2203 (Jan. 14, 2004) (reply must be "narrowly focused on the legal or logical arguments presented in the applicant/licensee or NRC Staff answer"));
NuclearManagement Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006) ("Repliesmust focus narrowly on the legal or factual arguments first presented in the original petition or raised in the answers to it.").
88 See 10 C.F.R. § 2.309(c), (f)(2).-18-later-filed support for Contention 2 might be admissible under the late- and new-filing criteria of10 C.F.R. §§ 2.309(c), (f)(2).Based on the Commission's rulings in LES, while we will not "strike from the record" anyportions of the Petitioners' Reply, 86 we also will not, in ruling on the admissibility of Contention2, consider anything in the Reply that does not focus on the matters raised in the Answers, as permitted by the Commission. It is appropriate, however, for a reply to respond to the legal, logical, and factual arguments presented in the answers, so long as new issues are not raised.87 Thus, except to the extent necessary to elucidate and explain specific rulingsregarding various pieces of information, in determining the admissibility of Contention 2 we have not considered any information in Petitioner's Reply other than that which would constitute "legitimate amplification," appropriate responses to arguments raised in the answers, or properly late- or newly-filed 88 material. The extent to which any part of the Reply has beenconsidered, and for what purposes, should be obvious in our discussion of the contention.
89 See , e.g., Entergy Nuclear Generation Company and Entergy Nuclear Operations,Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 272-74 (2006). An Appendix tothe Pilgrim decision provides a more detailed summary of relevant case law on contentionadmissibility than that found in this Memorandum and Order.
See id. at 351-59.
90 See 10 C.F.R. § 2.309(a). 10 C.F.R. § 2.309(f)(1) states that:(1) A request for hearing or petition for leave to intervene must set forthwith particularity the contentions sought to be raised. For each contention, the request or petition must:(i) Provide a specific statement of the issue of law or fact to be raised orcontroverted; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within thescope of the proceeding;(iv) Demonstrate that the issue raised in the contention is material to thefindings the NRC must make to support the action that is involved in the proceeding;(v) Provide a concise statement of the alleged facts or expert opinionswhich support the requestor's/petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and(vi) Provide sufficient information to show that a genuine dispute existswith the applicant/licensee on a material issue of law or fact. This information must include references to the specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief.91 See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),CLI-99-10, 49 NRC 318, 325 (1999); Arizona Pub. Serv. Co. (Palo Verde Nuclear GeneratingStation, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155-56 (1991).-19-V. Standards for Admissibility of Contentions in License Renewal ProceedingsA. Regulatory Requirements on ContentionsAs has previously been noted in a number of NRC adjudication proceedings, 89 to intervenein an NRC proceeding, a petitioner must, in addition to demonstrating standing, submit at least one contention meeting the requirements of 10 C.F.R. § 2.309(f)(1).
90 Failure of a contention tomeet any of the requirements of § 2.309(f)(1) is grounds for its dismissal.
91 Heightened 92 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in theHearing Process, 54 Fed. Reg. 33,168, 33,168 (Aug. 11, 1989); see also Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334 (1999).
93 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3),CLI-01-24, 54 NRC 349, 358 (2001) (citing Oconee, CLI-99-11, 49 NRC at 334).
94 See 69 Fed. Reg. at 2182.
95 For example, the current version of the rules no longer incorporate provisions formerlyfound at 10 C.F.R. §§ 2.714(a)(3), (b)(1), which permitted the supplementation of petitions and the filing of contentions after the original filing of petitions. Under the current rules, contentions must be filed with the original petition within 60 days of notice of the proceeding in the FederalRegister, unless a longer period is therein specified, an extension is granted, see supra n.83, orthe contentions meet certain criteria for late-filed or new contentions based on information that is available only at a later time, see 10 C.F.R. §§ 2.309(b)(3)(iii), (c), (f)(2), 96 In this connection we note that a challenge to the new rules by several public interestgroups (supported by several states including Massachusetts) was rejected in the case of Citizens Awareness Network, Inc. v. NRC [CAN v. NRC], 391 F.3d 338 (1st Cir. 2004). TheCourt denied the petitions for review, on the basis that the new procedures "comply with the relevant provisions of the [Federal Administrative Procedure Act (APA)] and that the Commission has furnished an adequate explanation for the changes," as well as on the basis of the NRC's representation that the opportunity for cross-examination under 10 C.F.R.
§ 2.1204(b)(3) of Subpart L is equivalent to the opportunity for cross-examination under the
[APA], 5 U.S.C. §556(d), i.e., that cross-examination is available whenever it is "required for afull and fair adjudication of the facts." Id. at 343, 351.-20-standards for the admissibility of contentions originally came into being in 1989, when theCommission amended its rules to "raise the threshold for the admission of contentions."
92 TheCommission has stated that the "contention rule is strict by design," having been "toughened
. . . in 1989 because in prior years licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation."
93 More recentamendments to the NRC procedural rules, 94 which went into effect in 2004, restricted thecontention admissibility rule even further, 95 and contain various changes to provisions relating tothe hearing process.
96 They contain essentially the same substantive admissibility standardsfor contentions, however.
97 Oconee, CLI-99-11, 49 NRC at 334.
98 Id. (citations omitted).
99 69 Fed. Reg. at 2189-90.
100 Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3),LBP-91-19, 33 NRC 397, 412 (1991), appeal denied on other grounds, CLI-91-12, 34 NRC 149(1991).-21-The Commission has explained that the "strict contention rule serves multiple interests."
97 These include the following (quoted in list form):First, it focuses the hearing process on real disputes susceptible of resolution in anadjudication. For example, a petitioner may not demand an adjudicatory hearing to attack generic NRC requirements or regulations, or to express generalized grievances about NRC policies.Second, the rule's requirement of detailed pleadings puts other parties in the proceedingon notice of the Petitioners' specific grievances and thus gives them a good idea of the claims they will be either supporting or opposing.Finally, the rule helps to ensure that full adjudicatory hearings are triggered only bythose able to proffer at least some minimal factual and legal foundation in support of their contentions.
98In its Statement of Considerations adopting the most recent revision of the rules, theCommission reiterated the same principles that previously applied; namely, that "[t]he threshold standard is necessary to ensure that hearings cover only genuine and pertinent issues of concern and that the issues are framed and supported concisely enough at the outset to ensure that the proceedings are effective and focused on real, concrete issues."
99 Additional guidancewith respect to each of the requirements of subsections (i) through (vi) of § 2.309(f)(1) is found in NRC case law, familiarity with which can be significant to the matter of whether a contention will be admitted or denied.Our rulings on the contentions submitted by Petitioner rest primarily on subsections (iii), (iv),and (vi) of 10 C.F.R. § 2.309(f)(1). Under subsection (iii), a contention must allege facts "sufficient to establish that it falls directly within the scope of a proceeding,"
100 and is not 101 See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC785, 790-91 (1985); Pub. Serv. Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1and 2), ALAB-316, 3 NRC 167, 170-71 (1976); see also Commonwealth Edison Co. (ZionStation, Units 1 and 2), ALAB-616, 12 NRC 419, 426-27 (1980); Commonwealth Edison Co.(Carroll County Site), ALAB-601, 12 NRC 18, 24 (1980).
102 10 C.F.R. § 2.335(a).
103 Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3),ALAB-216, 8 AEC 13, 20 (1974).-22-cognizable unless it is material to matters that fall within the scope of the proceeding for whichthe licensing board has been delegated jurisdiction.
101 The Commission has addressed thescope of license renewal proceedings in a number of contexts, which we discuss in some detail in section V.B below. Also, a contention that challenges any Commission rule is outside the scope of the proceeding because, absent a waiver, "no rule or regulation of the Commission . . .
is subject to attack . . . in any adjudicatory proceeding."
102 Similarly, any contention thatamounts to an attack on applicable statutory requirements must be rejected by a licensing board as outside the scope of the proceeding.
103 A petitioner may, however, within theadjudicatory context submit a request for waiver of a rule under 10 C.F.R. § 2.335, and outside the adjudicatory context file a petition for rulemaking under 10 C.F.R. § 2.802 or a request that the NRC Staff take enforcement action under 10 C.F.R. § 2.206.Under 10 C.F.R. § 2.309(f)(1)(iv), a petitioner must "[d]emonstrate that the issue raised inthe contention is material to the findings the NRC must make to support the action that is involved in the proceeding," and the standards defining the "findings the NRC must make to support" a license renewal are set forth at 10 C.F.R. § 54.29. This section, entitled, "Standards for issuance of a renewed license," provides that:A renewed license may be issued by the Commission up to the full term authorizedby § 54.31 if the Commission finds that:(a) Actions have been identified and have been or will be taken with respect to thematters identified in Paragraphs (a)(1) and (a)(2) of this section, such that there is reasonable assurance that the activities authorized by the renewed license will continue 104 "CLB" refers to a plant's current licensing basis.
See infra n.118. 105 10 C.F.R. § 54.29.
106 54 Fed. Reg. at 33,170; Millstone, CLI-01-24, 54 NRC at 358.
107 54 Fed. Reg. at 33,170; Palo Verde, CLI-91-12, 34 NRC at 156.
108 See Texas Utilities Elec. Co. (Comanche Peak Steam Electric Station, Unit 2),LBP-92-37, 36 NRC 370, 384 (1992) (emphasis added).-23-to be conducted in accordance with the CLB, 104 and that any changes made to theplant's CLB in order to comply with this paragraph are in accord with the Act and the Commission's regulations. These matters are:(1) managing the effects of aging during the period of extended operation on thefunctionality of structures and components that have been identified to require review under § 54.21(a)(1); and(2) time-limited aging analyses that have been identified to require review under§ 54.21(c).(b) Any applicable requirements of Subpart A of 10 CFR Part 51 have been satisfied.
(c) Any matters raised under § 2.335 have been addressed.
105We discuss the aging and environmental issues that fall under § 54.29 below in section V.B ofthis Memorandum.On the requirement of 10 C.F.R. § 2.309(f)(1)(vi) that a petitioner "provide sufficientinformation to show . . . a genuine dispute . . . with the applicant . . . on a material issue of law or fact," the Commission has stated that the petitioner must "read the pertinent portions of the license application, including the Safety Analysis Report and the Environmental Report, state the applicant's position and the petitioner's opposing view," and explain why it disagrees with the applicant.
106 If a petitioner does not believe these materials address a relevant issue, thepetitioner is to "explain why the application is deficient."
107 A contention that does not directlycontrovert a position taken by the applicant in the application is subject to dismissal.
108 Forexample, an allegation that some aspect of a license application is "inadequate" or 109 See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and4), LBP-90-16, 31 NRC 509, 521 & n.12 (1990).
110 See , e.g., Pilgrim, LBP-06-23, 64 NRC at 274-80.
111 10 C.F.R. § 54.31(b) provides that:[a] renewed license will be issued for a fixed period of time, which is the sum ofthe additional amount of time beyond the expiration of the operating license (not to exceed 20 years) that is requested in a renewal application plus the remaining number of years on the operating license currently in effect. The term of any renewed license may not exceed 40 years.10 C.F.R. § 50.51(a) states in relevant part that "[e]ach [original] license will be issued for afixed period of time to be specified in the license but in no case to exceed 40 years from date of issuance."
112 See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and4), CLI-01-17, 54 NRC 3, 6-13 (2001); see also Duke Energy Corp. (McGuire Nuclear Station,Units 1 and 2, Catawba Nuclear Station, Units 1 and 2), CLI-02-26, 56 NRC 358, 363-65 (2002); Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-14, 48 NRC 39, 41 (1998), motion to vacate denied, CLI-98-15, 48 NRC 45 (1998);
DukeEnergy Corp. (Oconee Nuclear Station, Units 1, 2 and 3), CLI-98-17, 48 NRC 123, 125 (1998);-24-"unacceptable" does not give rise to a genuine dispute unless it is supported by facts and areasoned statement of why the application is unacceptable in some material respect.
109 B. Scope of Subjects Admissible in License Renewal ProceedingsAs noted in previous NRC proceedings, 110 Commission regulations and case law address insome detail the scope of license renewal proceedings, which generally concern requests to renew 40-year reactor operating licenses for additional 20-year terms.
111 The regulatoryauthority relating to license renewal is found at 10 C.F.R. Parts 51 and 54. Part 54 concerns the "Requirements for Renewal of Operating Licenses for Nuclear Power Plants," and addresses safety-related issues in license renewal proceedings. Part 51, concerning "Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions," addresses, among other things, the environmental aspects of license renewal.
The Commission has interpreted these provisions in various adjudicatory proceedings, probably most extensively in a decision in the 2001 Turkey Point proceeding.
112 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-00-23,52 NRC 327, 329 (2000); Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units2 and 3), LBP-04-15, 60 NRC 81, 90, aff'd, CLI-04-36, 60 NRC 631 (2004).
113 10 C.F.R. § 54.4(a) describes those "systems, structures, and components" that arewithin scope as: (1) Safety-related systems, structures, and components which are those relied upon to remain functional during and following design-basis events (as defined in 10 CFR 50.49(b)(1)) to ensure the following functions--
(i) The integrity of the reactor coolant pressure boundary; (ii) The capability to shut down the reactor and maintain it in a safe shutdown condition; or (iii) The capability to prevent or mitigate the consequences of accidents which could result in potential offsite exposures comparable to those referred to in § 50.34(a)(1), § 50.67(b)(2), or § 100.11 of this chapter, as applicable.
(2) All nonsafety-related systems, structures, and components whose failure could prevent satisfactory accomplishment of any of the functions identified in paragraphs (a)(1)(i), (ii), or (iii) of this section.
(3) All systems, structures, and components relied on in safety analyses or plant evaluations to perform a function that demonstrates compliance with the Commission's regulations for fire protection (10 CFR 50.48), environmental qualification (10 CFR 50.49), pressurized thermal shock (10 CFR 50.61),
anticipated transients without scram (10 CFR 50.62), and station blackout (10 CFR 50.63).
114 See Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg.22,461, 22,463 (May 8, 1995).-25-1. Safety-Related Issues in License Renewal ProceedingsVarious sections of Part 54 speak to the scope of safety-related issues in license renewalproceedings. First, 10 C.F.R. § 54.4, titled "Scope," specifies the plant systems, structures, and components that are within the ambit of Part 54.
113 Sections 54.3 (containing definitions), 54.21(addressing technical information to be included in an application and further identifying relevant structures and components), and 54.29 (stating, as indicated above, the "Standards for issuance of a renewed license") provide additional definition of what is encompassed within a license renewal review, limiting the scope to aging-management issues and some "time-limited aging analyses" that are associated with the functions of relevant plant systems, structures, and components.
114 Applicants must "demonstrate how their programs will be effective in managing 115 Turkey Point, CLI-01-17, 54 NRC at 8 (quoting 60 Fed. Reg. at 22,462).
116 Id. at 7.117 Id.118 Id. at 9. "Current licensing basis" (CLB) is described by the Commission in Turkey Point as follows:["CLB" is] a term of art comprehending the various Commission requirementsapplicable to a specific plant that are in effect at the time of the license renewal application. The current licensing basis consists of the license requirements,including license conditions and technical specifications. It also includes theplant-specific design basis information documented in the plant's most recent Final Safety Analysis Report, and any orders, exemptions, and licensee commitments that are part of the docket for the plant's license, i.e., responses toNRC bulletins, generic letters, and enforcement actions, and other licensee commitments documented in NRC safety evaluations or licensee event reports.
See 10 C.F.R. § 54.3. The current licensing basis additionally includes all of theregulatory requirements found in Parts 2, 19, 20, 21, 30, 40, 50, 55, 72, 73, and-26-the effects of aging during the proposed period of extended operation," at a "detailed . . .'component and structure level,' rather than at a more generalized 'system level.'"
115The Commission in Turkey Point stated that, in developing 10 C.F.R. Part 54 beginning inthe 1980s, it sought "to develop a process that would be both efficient, avoiding duplicative assessments where possible, and effective, allowing the NRC Staff to focus its resources on the most significant safety concerns at issue during the renewal term."
116 Noting that the"issues and concerns involved in an extended 20 years of operation are not identical to the issues reviewed when a reactor facility is first built and licensed," the Commission found that requiring a full reassessment of safety issues that were "thoroughly reviewed when the facility was first licensed" and continue to be "routinely monitored and assessed by ongoing agency oversight and agency-mandated licensee programs" would be "both unnecessary and wasteful."
117 Nor did the Commission "believe it necessary or appropriate to throw open the fullgamut of provisions in a plant's current licensing basis to re-analysis during the license renewalreview."118 100 with which the particular applicant must comply. Id.. . . . The [CLB] represents an "evolving set of requirements andcommitments for a specific plant that are modified as necessary over the life of a plant to ensure continuation of an adequate level of safety." 60 Fed. Reg. at 22,473. It is effectively addressed and maintained by ongoing agency oversight, review, and enforcement.Id. See also 10 C.F.R. § 54.30.
119 Turkey Point, CLI-01-17, 54 NRC at 7.
120 Id. at 7-8.121 Id. at 10 (citing 60 Fed. Reg. at 22,469) (alteration in original).-27-The Commission chose, rather, to focus the NRC license renewal safety review "upon thosepotential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs," which it considered "the most significant overall safety concern posed by extended reactor operation."
119 The Commission in Turkey Point described some of the"Detrimental Effects of Aging and Related Time-Limited Issues" as follows:By its very nature, the aging of materials "becomes important principally during theperiod of extended operation beyond the initial 40-year license term," particularly since the design of some components may have been based explicitly upon an assumed service life of 40 years.
See [Final Rule, Nuclear Power Plant License Renewal, 56 Fed.Reg. 64,943, 64,946 (Dec. 13, 1991)];
see also Final Rule, "Nuclear Power PlantLicense Renewal; Revisions," 60 Fed. Reg. 22,461, 22,479 (May 8, 1995). Adverse aging effects can result from metal fatigue, erosion, corrosion, thermal and radiation embrittlement, microbiologically induced effects, creep, and shrinkage. Such age-related degradation can affect a number of reactor and auxiliary systems, including the reactor vessel, the reactor coolant system pressure boundary, steam generators, electrical cables, the pressurizer, heat exchangers, and the spent fuel pool. Indeed, a host of individual components and structures are at issue.
See 10 C.F.R. § 54.21(a)(1)(i). Leftunmitigated, the effects of aging can overstress equipment, unacceptably reduce safety margins, and lead to the loss of required plant functions, including the capability to shut down the reactor and maintain it in a shutdown condition, and to otherwise prevent or mitigate the consequences of accidents with a potential for offsite exposures.
120The Commission has also framed the focus of license renewal review as being on "plantsystems, structures, and components for which current [regulatory] activities and requirements may not be sufficient to manage the effects of aging in the period of extended operation."
121 An 122 Id. at 10 n.2.
123 Id.124 42 U.S.C. § 4332(c); see Robertson v. Methow Valley Citizens Council, 490 U.S. 332,348 (1989).
125 Robertson, 490 U.S. at 349 (citations omitted). The Court also noted that "NEPAitself does not mandate particular results, but simply prescribes the necessary process. . . . If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs." Id. at 350 (citations omitted). As the Court also observed, in thecompanion case of Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989), "byfocusing Government and public attention on the environmental effects of proposed agency-28-issue can be related to plant aging and still not warrant review at the time of a license renewalapplication, if an aging-related issue is "adequately dealt with by regulatory processes" on an ongoing basis.
122 For example, if a structure or component is already required to be replaced"at mandated, specified time periods," it would fall outside the scope of license renewal review.1232. Environmental Issues in License Renewal ProceedingsRegulatory provisions relating to the environmental aspects of license renewal arise out ofthe requirement that the National Environmental Policy Act (NEPA) places on Federal agencies to "include in every recommendation or report on . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on [ ] the environmental impact of the proposed action . . . ."
124 As has been noted by theSupreme Court, the "statutory requirement that a federal agency contemplating a major action prepare such an environmental impact statement [EIS] serves NEPA's 'action-forcing' purpose in two important respects":It ensures that the agency, in reaching its decision, will have available, and will carefullyconsider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.
125 action," NEPA "ensures that the agency will not act on incomplete information, only to regret itsdecision after it is too late to correct."
126 See , e.g., 10 C.F.R. § 51.70(b), which states among other things that "[t]he NRC staffwill independently evaluate and be responsible for the reliability of all information used in the draft environmental statement."
127 See 10 C.F.R. § 51.41.
128 10 C.F.R. § 51.53(c)(2);
see id. § 51.53(c)(1).
129 10 C.F.R. § 51.53(c)(3)(i).-29-10 C.F.R. Part 51 contains NRC's rules relating to and implementing relevant NEPArequirements, and § 51.20(a)(2) requires an environmental impact statement for issuance or renewal of a nuclear reactor operating license. Other sections relating to license renewal include, most significantly, 10 C.F.R. §§ 51.53(c), 51.95(c), and 51.103(a)(5), and Appendix B to Subpart A.Although the requirements of NEPA are directed to Federal agencies and thus the primaryduties of NEPA fall on the NRC Staff in NRC proceedings, 126 the initial requirement to analyzethe environmental impacts of an action, including license renewal, is directed to applicants under relevant NRC rules.
127 Accordingly, § 51.53(c) requires a license renewal applicant tosubmit with its application an environmental report (ER), which must "contain a description of the proposed action, including the applicant's plans to modify the facility or its administrative control procedures as described in accordance with § 54.21," and "describe in detail the modifications directly affecting the environment or affecting plant effluents that affect the environment."
128The ER is not required to contain analyses of environmental impacts identified as"Category 1," or "generic," issues in 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1.
129 The basis of this is the Commission's 1996 "Generic Environmental Impact Statement for License Renewal of Nuclear Plants" (GEIS), adopted as required under 10 C.F.R. § 51.95(c).
130 See NUREG-1437, Generic Environmental Impact Statement for License Renewal ofNuclear Plants (May 1996) [hereinafter GEIS]; Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996), amended by 61Fed. Reg. 66,537 (Dec. 18, 1996); 10 C.F.R. Part 51, Subpart A, App. B n.1.
131 Turkey Point, CLI-01-17, 54 NRC at 11.
132 Id. at 11 (citing 10 C.F.R. Part 51, Subpart A, App. B).
133 Id.134 Even though a matter would normally fall within a Category 1 issue, ERs are alsorequired to contain "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). The Commission has, however, ruled that such information is not a proper subject for a contention, absent a waiver of the rule at 10 C.F.R. § 51.53(c)(3)(i) that Category 1 issues need not be addressed in a license renewal. See Turkey Point, CLI-01-17, 54 NRC at 12; Pilgrim ,LBP-06-23, 64 NRC at 288, 294-300; Entergy Nuclear Vermont Yankee, LLC, and EntergyNuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131,155-59 (2006)-30-The GEIS is an extensive study of the potential environmental impacts of extending theoperating licenses for nuclear power plants, which was published as NUREG-1437 and provides data supporting the table of Category 1 and 2 issues in Appendix B.
130 Issuance of the1996 GEIS was part of an amendment of the requirements of Part 51 undertaken by the Commission to establish environmental review requirements for license renewals "that were both efficient and more effectively focused."
131Issues on which the Commission found that it could draw "generic conclusions applicable toall existing nuclear power plants, or to a specific subgroup of plants," were, as indicated above, identified as "Category 1" issues.
132 This categorization was based on the Commission'sconclusion that these issues involve "environmental effects that are essentially similar for all plants," and thus they "need not be assessed repeatedly on a site-specific basis, plant-by-plant."
133 Thus, under 10 C.F.R. § 51.53(c)(3)(i), license renewal applicants may intheir site-specific ERs refer to and adopt the generic environmental impact findings found in Appendix B, Table B-1, for all Category 1 issues.
134 135 Turkey Point, CLI-01-17, 54 NRC at 11 (citing 10 C.F.R. Pt. 51, Subpt. A, App. B).
136 10 C.F.R. § 51.53(c)(3)(ii).
137 Turkey Point, CLI-01-17, 54 NRC at 11.
138 Id. at 12.139 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1; see 10 C.F.R.§ 51.53(c)(3)(ii)(L). This requirement arises out of "NEPA's 'demand that an agency prepare a detailed statement on 'any adverse environmental effects which cannot be avoided should the proposal be implemented,' 42 U.S.C. § 4332(C)(ii)," implicit in which "is an understanding that the EIS will discuss the extent to which adverse effects can be avoided." Robertson, 490 U.S.at 351-52. The basis for the requirement is that "omission of a reasonably complete discussion of possible mitigation measures would undermine the 'action-forcing' function of NEPA.
Without such a discussion, neither the agency nor other interested groups or individuals can properly evaluate the severity of the adverse effects." Id. at 352.-31-Applicants must, however, address environmental issues for which the Commission was notable to make generic environmental findings.
135 An ER must "contain analyses of theenvironmental impacts of the proposed action, including the impacts of refurbishment activities, if any, associated with license renewal and the impacts of operation during the renewal term,"
for those issues listed at 10 C.F.R. § 51.53(c)(3)(ii) and identified as "Category 2," or "plant specific," issues in Table B-1.
136 These issues are characterized by the Commission asinvolving environmental impact severity levels that "might differ significantly from one plant to another," or impacts for which additional plant-specific mitigation measures should be considered.
137 For example, the "impact of extended operation on endangered or threatenedspecies varies from one location to another," according to the Commission, and is thus included within Category 2.
138 Another example is the requirement that "alternatives to mitigate severeaccidents must be considered for all plants that have not [previously] considered suchalternatives."
139 Again, although the initial requirement falls upon applicants, the ultimateresponsibility lies with the Staff, who must address these issues in a Supplemental 140 See 10 C.F.R. § 51.95(c).
141 See Turkey Point, CLI-01-17, 54 NRC at 12 (citing 10 C.F.R. §§ 51.70, 51.73-.74).
142 10 C.F.R. § 51.103(a)(5).
143 Petition at 15.-32-Environmental Impact Statement (SEIS) 140 that is specific to the particular site involved andprovides the Staff's independent assessment of the Applicant's ER.
141Finally, § 51.103 defines the requirements for the "record of decision" relating to anylicense renewal application, including the standard that the Commission, in making such a decision pursuant to Part 54, "shall determine whether or not the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decisionmakers would be unreasonable."
142VI. Board Analysis and Rulings on Petitioner's ContentionsWith the preceding context regarding contention admissibility requirements and licenserenewal scope principles in mind, we turn now to the Petitioner's contentions. While some may raise questions of interest in other contexts, none meet all of the requirements discussed in Section V above. Accordingly, as we explain below, all must be rejected as inadmissible.A.Contention 1: Alleged Inability of Applicant to Maintain Financial Obligations. Petitioner's Contention 1 states:PPL Susquehanna failed to provide the requisite data necessary to determine if it hasthe 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.
143The subject matter of this contention is similar to Petitioner's Motion to Compel, discussedabove in Section III. Petitioner ques tions the current owner/applicant's ability to meet "itsfinancial obligations associated with the operation, decontamination and decommissioning of 144 Id. at 16.145 See id. at 17-20.
146 Id. at 21.147 Id. at 15. Under the heading, "Demonstrate that the issue raised in the contention iswithin the scope of the proceeding," and following the language quoted in the text, Petitionerstates:Specifically, this contention addresses technical, environmental, safety concerns and socioeconomic [sic] raised in Application and Appendix E: Environmental Report and 5.0-5.1.1 and 6.1, and SAMA: E.3.2 Population, E.3.3 Economy, 3.4 EMPLOYMENT Current Workforce, and E.4.5 Replacement Power Cost, and Susquehanna MACCS2 Economic Parameters Variable Description SSES Value, et al.Id.-33-the [SSES]," as well as its status as an "electric utility," in the context of various utilityratemaking and related issues.
144 Petitioner is concerned about increased utility rates for PPL's customers, 145 and asks this Board to require PPL to "conduct a comprehensive financial duediligence to ascertain the ability of the nascent and emerging limited liability corporation to service its nuclear obligations under deregulation," to compel PPL to prove that it is an "electric utility," and to require it to provide an "action plan to address how the Company will finance nuclear debt load [sic], particularly the cost of decommissioning."
146 Petitioner asserts that thefinancial issues he raises are related to various financial matters discussed in several sections of the Application, including PPL's Environmental Report. He lists certain sections of the Application that are related to environmental issues, but does not dispute any specific part of any section, asserting instead, regarding the financial issues he raises, that PPL has "offered only cursory and superficial data, and omitted damaging material as a means of satisfying the license extension."
147PPL and the NRC Staff oppose this contention on the grounds that it is outside the scope ofa license renewal proceeding and raises no genuine dispute on a material issue of fact or 148 See PPL Answer at 14; Staff Response at 14.
149 Staff Response at 15; PPL Answer at 14.
150 PPL Answer at 16; Staff Response at 15.
151 Staff Response at 15.
152 Staff Response at 15 (quoting Final Rule, Nuclear Power Plant License Renewal;Revisions, 60 Fed. Reg. 22,461, 22,484 (May 8, 1995)).
153 PPL Answer at 14.-34-law.148 Both note that the Commission has specifically stated that financial questions are notwithin the scope of license renewal, 149 and also point out that the license transfer to PPL was infact approved by the NRC.
150 The Staff points out the provision of 10 C.F.R. § 50.33(f)(2) that "[a]n applicant seeking torenew 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,"
151 and also cites the1995 rule-making amending the license renewal rules, in which the Commission in its Statement of Considerations made the following observations:The economics of electrical power generation is the responsibility of the individual utilityand 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 the responsibility 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 generation as a basis for informing the Commission's licensing decisions. While it is true that theCommission currently addresses the economics of operating a nuclear power plant in the context of an environmental 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 for complying with the mandates of the National Environmental Policy Act (NEPA). However, NEPA does not require such economic analyses.
152As noted by PPL, the Commission later adopted additional amendments specifically relatingto the financial information requirements for license renewal applications.
153 PPL quotes the 154 PPL Answer at 14-15 (quoting Final Rule, Financial Information Requirements forApplications To Renew or Extend the Term of an Operating License for a Power Reactor, 69 Fed. Reg. 4439, 4440 (Jan. 30, 2004)).
155 See Epstein Reply at 15-19. Indeed, he suggests that "[t]here was no opportunity toreview the financial status of PPL Susquehanna at the time PPL was licensed to operate
[SSES]." Id. at 15.156 See Tr. at 1-39.-35-Statement of Consideration for this rule-making, in which the Commission, In explaining therule, stated: With this final rule, the NRC believes that review of financial qualifications of non-electricutility licensee applicants at license renewal is not necessary. The resulting process for oversight of financial qualifications is sufficient to ensure that the NRC has adequate warning of adverse financial impacts so that the NRC can take timely regulatory action to ensure public health and safety and the common defense and security. The resulting process has two components: (1) A formal review of major triggering events, and (2) monitoring of financial health between the formal reviews due at the "triggering events." The relevant triggering events are (1) initial operating license application, (2) license transfer, and (3) transition from an electric utility to a non-electric utility, either with or without transfer of control of the license. In addition, the NRC can review a licensee's financial qualifications at any point during the term of the license if there is evidence of a decline in the licensee's financial health. The NRC believes that there are no unique financial circumstances associated with license renewal because the NRC has no information indicating a licensee's revenues and expenses change due to license renewal.154Petitioner in his Reply to PPL and the Staff among other things requests an independentaudit of PPL, but does not directly address the points of PPL and the Staff relating to the scope of license renewal proceedings and whether this contention presents any genuine dispute on a material issue. Nor does he appear to acknowledge that there were opportunities to request a hearing with regard to both the license transfer and the corporate restructuring at issue.
155 However, subsequent to a March 8, 2007, telephone conference held to allow the participants to address certain matters relating to the petition, 156 Petitioner submitted a filing arguing that thecontention falls within the environmental Category 2 item found in 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1, under the heading "Socioeconomic[s]," designated as follows:
157 Epstein Citation Letter at 4.-36-Offsite land use (license renewal term) -SMALL, MODERATE, OR LARGE. Significant changes in land use may be associated with population and tax revenue changes resulting from license renewal.157We find, in light of 10 C.F.R. § 50.33(f)(2), the explanations of the Commission in theabove-quoted statements, and the case law discussed in Section V.B above on the scope of license renewal proceedings, that Contention 1 fails to meet the requirement of 10 C.F.R.
§ 2.309(f)(1)(iii) that a petitioner "[d]emonstrate that the issue raised in the contention is within the scope of the proceeding." Petitioner's mere listing of various sections of the Environmental Report of the Application cannot be said to bring this contention within scope. Nor can his recent reference to the Category 2 issue of offsite land use bring the contention within scope.
He not only makes no reference whatsoever to land use in his Petition (or indeed in his Reply),
he also fails to challenge or even mention Section 4.17 of the Application ER, which involves offsite land use. Thus, although this subject may, properly supported, be an appropriate one for an admissible environmental contention, and although the subject may involve tax revenue changes in an affected area, Contention 1 does not involve the subject lately posed by Petitioner, and in any event, he has shown no genuine dispute on the subject with any part of the actual Application that is at issue in this proceeding. Moreover, Petitioner has not shown how his contention is "material to the findings the NRC must make to support the action involved in the proceeding," as required by 10 C.F.R. § 2.309(f)(1)(iv).Nor, finally, can it be said that Petitioner has "[p]rovide[d] sufficient information to show thata genuine dispute exists with the applicant/licensee" on any "material issue of law or fact," asrequired by 10 C.F.R. § 2.309(f)(1)(vi). Apart from the lack of any material, in-scope issue being shown, it appears that Petitioner Epstein has, as discussed more fully above in Section 158 Tr. at 15-16.
159 Petitioner might have attempted to contest such financial issues in the licensetransfer proceeding; as we indicate above, there was an opportunity to petition for a hearing in that proceeding, but no such petition was filed.-37-IV.A, not taken into account the financial assurances that PPL was required to provide - andthat were evaluated by NRC Staff - in the PPL license transfer proceeding, of which we take judicial notice. Petitioner had opportunities to petition to intervene in the license transfer and restructure proceedings, but stated during the March 8, 2007, telephone conference that he "was engaged in a parallel proceeding at the Public Utility Commission [s]o I had made a decision not to intervene in that particular proceeding."
158 This does not, however, constitute avalid ground for raising issues concerning the license transfer and restructuring in thisproceeding.Even assuming that the sort of information Contention 1 concerns did fall within the limitedfinancial information called for in a NEPA context, Petitioner's lack of any reference to the actual facts with regard to financial assurances, as established in these earlier proceedings, 159as well as his failure to state any specific dispute he has with the substance of any specific partof the Application (providing only the very general allegation that the Application "offered only cursory and superficial data [in the Application], and omitted damaging material"), renders it impossible to find that he has met the requirements of 10 C.F.R. § 2.309(f)(1)(vi). Based on the failure to meet the requirements of 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi),we deny the admission of Contention 1.
160 Petition at 23.
161 Id.162 Id.-38-B. Contention 2: Alleged Failure to Address Water Use IssuesPetitioner in Contention 2 alleges:PPL failed to factor, consider and address numerous water use and indigenous aquaticchallenges present and anticipated for the Susquehanna River.
160As explanation, in satisfaction of 10 C.F.R. § 2.309(f)(1)(ii), Petitioner states:The Susquehanna River Basin Commission and the Pennsylvania Department ofEnvironmental Protection (PA DEP) are in the process of collecting, evaluating, and implementing a comprehensive water use plan for Pennsylvania, i.e., [Pennsylvania]
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.
161To demonstrate that the contention is within the scope of this proceeding, as required by10 C.F.R. § 2.309(f)(1)(iii), Petitioner states:The applicant raised and attempted to address water quality, water use, aquaticcommunities, groundwater use, entrainment and impingement, and impact microbiologic organisms throughout the license application, but offered only cursory and superficial data, and failed to address numerous issues that could adversely impact the license extension request. Specifically, this contention addresses technical, environmental and safety concerns raised in Application and Appendix E: Environmental Report 2.2.21-2.5, 2.91, 2.9.2, 4.0 to 4.8.1, 4.12, 4.15.1, 5.0-5.1.1 and 6.1, and SAMA: 4.15 PUBLIC UTILITIES: PUBLIC WATER SUPPLY AVAILABILITY and 5.16 Flood, et al.
162To demonstrate that the contention meets the final three subsections of 10 C.F.R.§ 2.309(f)(1), Petitioner begins:Nuclear power plants require large amounts of water for cooling purposes. PPL's Susquehanna Electric Steam Station power plant will remove water from the Susquehanna River, and it is likely fish and aquatic life will be harmed. Animals and people who depend on these aquatic resources will also be affected. PPL's planned uprate and application for relicensing will further place pressure on limited water resources. Freshwater water withdrawals by Americans increased by 8% from 1995-2000, and Americans per capita water withdrawal is three times above the international 163 Id. at 24.164 Id. at 25.165 Id. at 26.166 Id. at 27.167 Id. at 28. Petitioner states that the plant "draws 40.86 million gallons per day fromthe Susquehanna River. For each unit, 14.93 million gallons per day are lost as vapor out of the cooling tower stack while 11 million gallons per day are returned to the River as cooling tower basin blow down. On average, 29.86 million gallons per day are taken from the Susquehanna River and not returned."
Id.168 Id. at 29.-39-average. [Citing "U.S. National Report on Population and the Environment" (2006)published by the Center for Environment and Population, a nonprofit corporation based in Connecticut.]Question 1: How can the NRC approve the license renewal for of [sic] the SSES prior tothe adoption and implementation of the the Water Resources and Planning Plan plan under Act 220?Question 2: How many fish (game and consumable), fish eggs, shellfish and otherorganisms will be harmed or killed annually by the license renewal?
163Petitioner continues by discussing the impact of other nuclear power plants that are locatedon the Susquehanna River on fish and other organisms.
164 He follows this with additionalquestions, interspersed with references to: an EPA Clean Water Act rule, 165 how plantscommonly discharge chlorinated water and Clamtrol (used to minimize bacteria and defeat Asiatic clam infestation) into the river, 166 the amount of water drawn from the river by SSES, 167and the alleged failure of SSES to take any measures to conserve water during a drought in the summer of 2002.
168The additional questions posed by Petitioner concern "acceptable levels" of fish kills, theimpact of a power uprate, the impact of license renewal on sport and commercial fishing, the Commission's compliance reporting requirements with regard to onsite and offsite tritium monitoring and related issues, the amount of water that will be drawn from and returned to the 169 Id. at 26-29.
170 Id. at 29.171 Id.172 PPL Answer at 17-18.
173 Id. at 18.-40-Susquehanna River after the renewal and uprate, whether the water will be treated withchemicals, how PPL plans to "defeat Asiatic clam and/or Zebra mussel infestations," and what actions PPL will take to "curb water consumption during periods of conservation and drought."169Petitioner requests that PPL be required to "resubmit and revise its application to addressissues raised by Mr. Epstein ("after Act 220 has been implemented"), and to include astatement on the impact of the license renewal combined with "the synergetic impact of a 200 mw uprate."
170 This is necessary, according to Petitioner, because SSES is asserted to be a"menacing predator on the Susquehanna River, and a large industrial consumer of a valuable and limited commodity."
171PPL argues that Contention 2 is outside the scope of license renewal and asserts that it isvague and non-specific, failing to point to any particular deficiency in the Application or raise any genuine, material dispute with the Application.
172 Noting that the contention "does notdiscuss sections 3.1.2.1 and 4.1 of the Environmental Report, which analyze the consumptive use of water,"
173 PPL states that some of the sections cited by Petitioner either do not exist ordo not relate to the plant's use of water for cooling purposes, and that section 4.15 actually "demonstrates that the population increase attributable to license renewal will be small, on the 174 Id. at 18 n.8.
175 Id. at 19.176 Id. at 19 & n.9.
177 Id. at 19.178 Id.-41-order of 428 persons, in an area where the excess public water supply exceeds 5.1 milliongallons per day," which PPL asserts Petitioner provides no basis to dispute.
174PPL counters Petitioner's allegations and explanation by noting that the Application does, atsections 3.1.2.1 and 4.1 of the ER, discuss:the Susquehanna River Basin Commission's ("SBRC") [sic] regulation of consumptivewater use, including how SSES complies with SRBC regulations by compensating for the consumptive water use by sharing in the costs of the Cowanesque Lake Reservoir (ER at 3.1-4), which provides another source of water during low flow conditions (ER at 4.1.2).175According to PPL, the State Water Plan, which Act 220 requires to be updated by March 2008,"will not alter any requirements or [PPL]'s commitments relating to water use," as it gives the Pennsylvania Department of Environmental Protection no "authority to regulate, control, or require permits for the withdrawal or use of water."
176 While the update "may improve theknowledge of policymakers and regulators, which would allow for more informed rulemaking in the future," it is "not a prerequisite for any agency decisions today."
177 In any event, accordingto PPL, Petitioner provides no support - expert opinions, documents or other sources - for any allegation of error in the ER's assessment of consumptive water use.
178Regarding Petitioner's concern about Asiatic clams and Zebra mussels, PPL asserts theseare neither aging issues nor issues that fall under any Category 2 item in 10 C.F.R. Part 51, Subpart A, Appendix B, and the potential effects of any biocides that may be used to control 179 Id. at 19-20 (citing 10 C.F.R. Part 51, Subpart A, App. B, Table B-1; GEIS § 4.4.2.2and Table 4.4).
180 Id. at 20-23.
181 Id. at 22 (citing ER at 2.12-1).
182 Id. (citing ER at 4.1-1 to 4.1-2).
183 Id. at 20 (citing 10 C.F.R. § 51.53(c)(3)(ii)(B)).
184 Staff Response at 19 (citing 10 C.F.R. § 51.53(c)(3)(ii)(B)); PPL Answer at 20.-42-these organisms is a Category 1 issue outside the scope of license renewal.
179 PPL arguesthat Petitioner's questions, without any support, are inadequate to establish any genuine, material issue.
180With regard to the power uprate, PPL points out that the ER at § 2.12 in fact "clearly andexplicitly evaluates the impacts of license renewal coupled with the extended power uprate for which PPL Susquehanna has applied," stating that the "impacts evaluated in this [ER] consider extended operations at the increased power levels associated with this uprate.
181 In addition,PPL states, § 4.1 of the ER "evaluates the consumptive water use that would occur with the extended power uprate."
182Both PPL and the Staff point out that some of Petitioner's questions are irrelevant to SSESbecause, among other things, NRC rules require an analysis of entrainment and impingement of fish, and heat shock, only for plants with once-through cooling or cooling ponds, "having determined generically that such impacts are small for plants such as SSES that use cooling towers."183 Because SSES uses cooling towers rather than once-through cooling or coolingpond heat dissipation systems, it is, PPL and the Staff argue, not required to assess the impact of the facility on fish, early life stages of fish, or heat shock.
184 For plants such as 185 Staff Response at 19.
186 Staff Response at 17.
187 Id. at 18, 20.
188 Id. at 18.189 Id.190 Id. at 20.-43-Susquehanna, these are Category 1 issues, as is the discharge of biocides and chlorine,according to Staff.
185The Staff agrees with PPL that Contention 2 is not supported by sufficient bases under thecontention admissibility rule provisions, that its asserted bases do not demonstrate any genuine dispute on a material issue of law or fact, and that it is not sufficiently specific.
186 In addition,Staff urges, although applicants must provide the status of compliance with permits and licenses, including water use permits, Petitioner does not argue that this has not been done, nor does he provide any support for delaying license renewal until Act 220 is implemented, or for any other of his requested remedies.
187 In fact, according to Staff, PPL holds a NationalPollutant Discharge Elimination System (NPDES) permit for water discharge, issued by the Pennsylvania Department of Environmental Protection, and a consumptive use water approval, issued by the Susquehanna River Basin Commission, and the Application at Appendix E,
§ 3.2.1.2, "addresses all of the questions posed by the Petitioner in Proposed Contention 2."
188 As Petitioner "does not explain what he believes has been omitted or inadequately addressed,"
Staff insists the contention fails to meet the requirements of 10 C.F.R. § 2.309(f)(1)(vi).
189Nor, says the Staff, does the "mere mention" of tritium monitoring provide sufficientinformation to show any genuine dispute on a material issue.
190 On this issue, PPL points out 191 PPL Answer at 21 (citing Nuclear Management Co., LLC (Monticello NuclearGenerating Plant), LBP-05-31, 62 NRC 735, 754 (2005)).
192 Epstein Reply at 20-21.
193 Id. at 22.194 Id. at 23.195 See supra section IV.B.
196 See 10 C.F.R. § 2.309(c), (f)(2).-44-that SSES has no landfill producing tritium leachate, and in any event, radiological monitoring is"an operational program that is beyond the scope of license renewal."
191With regard to Petitioner's Reply - which discusses, among other things, various assertedinadequacies in the aging management program for SSES, 192 some issues related to the NRC'svoluntary program on addressing potential tritium leaks, 193 and some information aboutcorrosion of water intake pipes that was disclosed by PPL in a water use permit application 194- we discuss issues relating to the Reply in our ruling above on PPL's Motion to Strike.
195 Weconclude therein that, in making our ruling on Contention 2, although anything that might constitute "legitimate amplification," appropriate responses to arguments raised in the answers, or properly late- or newly-filed 196 material may appropriately be considered under relevant law,we will not consider any information that would fall outside that permitted by the Commission, except as necessary to explain our rulings here.In analyzing issues relevant to Contention 2, we note first that a review of Petitioner'soriginal Contention 2 reveals no references therein to aging management or inspection of systems and components that contain radioactively contaminated water. Petitioner does, however, mention tritium monitoring in his discussion in support of the contention, posing the following question:
197 Petition at 26.
198Id. at 26 n.28.
199 Id. at 23.200 See text accompanying n.162 supra.-45-Question 7: What will the Commission's compliance reporting requirements be in regardto onsite and offsite tritium monitoring? How will the Commission account for offsite masking as a result of landfill tritium leachate? Where will the results be published?
197He also provides the following footnote to this question:Re: Disposal and licensing of tritium exit signs, Letter from Thomas J. Fiddler, Pa DEP,Deputy Secretary to Nils. J. Diaz, Chairman, US NRC, January 17, 2006.
198Thus it might be said that Petitioner raised at least the issue of monitoring for tritium in hisPetition, even as he confuses the two issues of (1) monitoring for tritium in water that may have leaked from SSES, and (2) disposal of tritium exit signs, the latter of which would not seem to be related to SSES in any way. The question becomes, whether Petitioner implicitly raised an aging issue by posing his Question 7. An additional question is whether his learning about the information in the December 20, 2006, SRBC permit application only after he submitted his January 2, 2007, Petition, renders it permissible to raise in his Reply, or as part of a new contention filed within a reasonable time after he became aware of the information. The dates in question would support consideration of the new information - the one and a half to two week period between December 20 and January 2 is obviously short, particularly in the context of the holiday season, such that filing information after January 2, by February 5, 2007 (the date of Petitioner's Reply), might be considered reasonable.The problem with regard to whether there was any implicit reference to aging in Petitioner'soriginal Contention 2 is that, even though it included the question quoted above, the original contention was clearly focused on environmentally-related aquatic issues, including "water use" and "indigenous aquatic challenges."
199 Petitioner's recitation quoted above, 200 regarding 201 Epstein Reply at 20.
202 Id. at 20, 22.
203 Id. at 20.204 Id. at 21.205 Id. at 21-22.-46-whether the contention is within the scope of license renewal, mentions "water quality, wateruse, aquatic communities, groundwater use, entrainment and impingement, and impact microbiologic organisms," all of which are environmental issues and none of which are aging issues. In addition, several sections of the ER are mentioned, but there is, as indicated above, no reference to any parts of the Application relating to aging. Question 7, regarding monitoring for tritium, is the sole reference in Petitioner's original Contention 2 to any even arguably aging-related issue, and, as indicated above, it stands alone with only its footnote, on a similar - but clearly distinct - issue, offered as support.With regard to the timing issue relating to the December 20, 2006, information, the problemis that the information provided in Petitioner's February 2, 2007, Reply is quite general and somewhat scattered in its various references to, e.g.:- the aging management program not including "proactive action plans for waterchallenges resulting from natural and mechanical adversaries," and not recognizing "that it is initial [sic] manifest with the [SRBC] application has been grandfathered and must be resubmitted";
201- not including a "voluntary tritium action plan," along with references to tritium being a "national and localized issue of import" and to NRC's tritium task force and voluntary tritium program; 202- an alleged lack of "adequate monitoring to determine if and when leakage from [all systems and components that may contain radioactively contaminated water] occurs";
203 - the same issues from the original contention concerning Asiatic clams and relatedmatters;204- certain water shortages; 205 and 206 Id. at 23 (quoting Letter from Jerome S. Fields, Senior Environmental Scientist -Nuclear, to Paul O. Swartz, Executive Director, Susquehanna River Basin Commission, PPL Susquehanna, LLC, Application for Surface Water Withdrawal, Request to Modify Application 19950301, EPUL-0578 (Dec. 20, 2006)).
207 See discussion supra § V.A; Oconee, CLI-99-11, 49 NRC at 334.
208 Epstein Citation Letter at 5-6.-47-- the SRBC application and the reference therein to difficulty PPL was having meteringwithdrawal of water accurately "due mainly to corrosion and fouling of the intake pipes" and the fact that PPL was as a result evaluating replacement of sections of the pipe.
206Even if we considered the above information, along with other information of a similarnature in the Reply, we could not say that it provides either the focus necessary to support an admissible contention, or the "minimal factual and legal foundation" necessary to trigger a full adjudicatory hearing.
207Before stating our ultimate ruling on Contention 2, however, we note certain additionalinformation provided by Petitioner subsequent to the aforementioned March 8, 2007, telephone conference. As we permitted, Petitioner submitted a filing, arguing that the contention falls within several environmental Category 2 items found in 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1, including "Groundwater use conflicts (potable and service water, and dewatering; plants that use >100 gpm)"; "Groundwater use conflicts (plants using cooling towers withdrawing make-up water from a small river)"; "Public services: public utilities"; and "Microbiological organisms (public health) (plants using lakes or canals, or cooling towers or cooling ponds that discharge to a small river)."
208In ruling on this contention, we find, first of all, as argued by the Staff and PPL, that themere posing of questions does not provide sufficient support to admit a contention. Under 10 C.F.R. § 2.309(f)(1)(vi), "sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact" must be provided, and neither Petitioner's questions, nor his additional commentary in his original contention, provide the reasoned 209 Compare the ruling in Pilgrim, LBP-06-23, 64 NRC at 300-315. In the Pilgrimproceeding, the petitioners, in stark contrast to what the Petitioner herein has provided, among other things specifically discussed (1) relevant sections of the Application and how they were alleged to be inadequate; (2) the relevance of a number of exhibits and documents to specific points in their argument; (3) incidents at other plants and how leaks were detected in some instances by monitoring wells; and (4) the specific topography of the Pilgrim plant site and how monitoring wells should be placed there.-48-explanation and support necessary to satisfy this requirement. Nor, we find, even consideringthe information recounted above from his Reply, does the information he has provided satisfy the requirements of 10 C.F.R. § 2.309(f)(1)(vi).With regard to his references to water consumption and related issues, Petitioner does notdiscuss at all the sections of the ER that address consumptive use of water, and he fails to show any specific or genuine dispute with these or any other section of the Application.
Moreover, as pointed out by PPL and the Staff, Susquehanna is not the type of plant for which any of the Category 2 items listed under "Aquatic Ecology" in 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1, apply. As has also been pointed out, discharge of chlorine or other biocides is a Category 1, out-of-scope issue. With regard to the four additional Category 2 items more recently asserted to bring the contention within scope, although the sections of the ER that address these items are contained in Petitioner's list of section numbers quoted above from his original Petition, he nowhere demonstrates any specific dispute with any of the information contained in any of these sections.Regarding tritium monitoring, again, the mere posing of a question does not suffice forpurposes of contention admissibility; no mention is made of this subject elsewhere in the Petition, nor is any support provided for any challenge regarding tritium monitoring, nor is any genuine dispute shown regarding this issue, even taking into account the quite general information regarding this subject in Petitioner's Reply.
209 Nor, for that matter, does any of theother information provided by the Petitioner in the Reply so suffice. Even if we were to take all 210 See , e.g., Tr. at 30.
211 See Tr. at 21; Staff EPU Letter; Biweekly Notice Applications and Amendments toFacility Operating Licenses Involving No Significant Hazards Considerations, 72 Fed. Reg.11,383, 11,392 (Mar. 13, 2007). This notice pertains to a number of applications from various entities. Provisions on requesting hearings and petitioning to intervene are found at 72 Fed.
Reg. at 11,384-85, 11,402-03.
212 Petition at 30.-49-the allegations made therein to be true (which PPL strongly contests 210), Petitioner's failure totie any such alleged facts to any aging issues with any specificity, in order to show a genuine dispute on a material issue of law or fact, renders the contention insufficient in this regard as well. Nor, we would note, has any basis been shown to warrant any of the remedies requestedby Petitioner. As to the pending uprate application, as PPL points out, the license renewal application does take into account the pending uprate application, and, as Staff has pointed out, there will be an opportunity for a hearing on this, for any petitioner who files a properly supported request for hearing and petition to intervene.
211 In this proceeding, however, wemust dismiss this contention, as it fails to provide sufficient information to show a genuine dispute with the Application on a material issue of law or fact.C. Contention 3: Alleged Flawed Demographic ProfilePetitioner in Contention 3 alleges:PPL's demographic profile is flawed and incomplete and fails to consider the agingpopulation and workforce which impacts supports services, emergency planning, workforce replenishment and traffic patterns.
212By way of explanation of this contention, Petitioner states:Pennsylvania is the second oldest state in the nation after Florida and its fastest growingpopulation segment is octogenarians. (34) An aging population base has unique and sensitized needs that were not factored, considered, or analyzed in the licensee's 213 Id. (footnote omitted).
214 Id.215 Id. at 31.216 Id. at 33-34.
217 Id. at 34.218 Id.219 Id. at 35.-50-application. Moreover, PPL's intent to raise electric prices by at least 20% to 30% in thenear future hits fixed-income and aging population bases especially hard.
213Petitioner asserts, to demonstrate that this contention is within the scope of this proceeding,that it:addresses socioeconomic, environmental and safety concerns raised in [sic] Applicationand Appendix E: Environmental Report 2.6-2.7, 2.8, 2.9, 2.9.1-2.9.3, 3.4.1, 4.13 - 4.14, 4.18, 4.19, 5.0-5.1.1 and 6.1, and SAMA: E.3.2 Population, E.3.3 Economy, 3.4 EMPLOYMENT Current Workforce, and E.4.5 Replacement Power Cost, and Susquehanna MACCS2 Economic Parameters Variable Description SSES Value, et
al.214Petitioner goes on to discuss the reduction of the Applicant's workforce "through attrition,'out sourcing' and early retirements while the surrounding population base is growing older";
215the ratio of workers to households in the context of rates, costs, and the economic hardships of the community; 216 the low likelihood of older persons "to be absorbed into a nuclear workforce";217 the absence of polling to assess the impact of rate issues; 218 and the refusal of PPL tosupport special rate relief for special needs communities.
219 He requests that PPL be requiredto:resubmit portions of its application relating to an aging labor force and aging populationbase and the socioeconomic stress that these developments have on social services, the tax base, rate shock, existing poverty levels, and institutional memory. PPL and the 220 Id. at 35.221 PPL Answer at 23.
222 Id. at 23-25.
223 Id. at 25 n.21.
224 Id. at 25.225 Staff Response at 21-22.-51-NRC must reexamine the plant's demographics for operating the nation's 19th and 20thlargest nuclear reactors.
220PPL avers that Contention 3 is inadmissible because it is outside the scope of licenserenewal and fails to demonstrate a genuine, material dispute.
221 It neither relates to plant agingissues, nor provides any basis for concern over the adequacy of the staffing of SSES, nor falls within a Category 2 environmental issue, according to PPL.
222 PPL summarizes the mattersaddressed in the ER sections cited by Petitioner - having to do with transmission lines and electric shock hazard, the effect of potential increased staff on housing availability and transportation, and the effect of license renewal on historic or archaeological resources - and illustrates how they do not relate to the socioeconomic stress issues raised by Petitioner, urging also that the SAMA (severe accident mitigation alternatives) analysis does not relate to these
issues.223 PPL argues that Petitioner neither explains how the analysis of any particularCategory 2 impact in the Susquehanna ER is in error, nor shows any genuine dispute with the Applicant regarding any.
224The Staff opposes admission of Contention 3 as neither being material to any finding theNRC must make to support license renewal, nor demonstrating any genuine dispute on a material issue, nor being related to any NEPA finding the NRC must make.
225 Staff points outthat an ER need only consider economic costs and benefits as they relate to alternatives and mitigation, noting that the ER includes both an environmental justice and demographic analysis 226 Id. at 22.227 Id. at 23.228 Epstein Reply at 26.
229 Id. at 27.230 Epstein Citation Letter at 7.-52-of the communities within 50 miles of SSES, and argues that Petitioner specifies no deficienciesin these analyses.
226 In addition, the Staff urges, Petitioner identifies no failure of the ER tocontain information and provides no supporting reasons for his belief that the ER should contain such information, and Petitioner's concerns with "out sourcing" and SSES operating practices are not Category 2 issues and therefore outside the scope of license renewal.
227Petitioner in his Reply does not address the scope and "genuine dispute" issues raised byPPL and the Staff, but rather suggests that license renewal should address "the impact ofrelicensing on aging human beings who live within the shadow of the plant," and who "are not abstract hypotheticals that attorneys in DC can rework into a neat formula."
228 Again, he seeksthat we require PPL to resubmit portions of the application and to address the socioeconomic stress issues he presses in this contention.
229 Finally, in his March 11, 2007, filing, Petitionersubmits that Contention 3 falls within the same environmental Category 2 item found in 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1, as that provided for Contention 1, namely, "Offsite land use (license renewal term)."
230We find that, while Petitioner in this contention discusses an aging population, he does notaddress any issues involving the aging of any relevant plant systems, structures, or components, or any aging-management issues. Nor does he demonstrate how any of the issues he raises in this contention fall within any Category 2 items involving socioeconomics -
i.e., housing impacts, public services relating to water supply and education (impacts from 231 See our discussion below of Petitioner's Contention 4 for a more detailed treatmentof the socioeconomic issues that are within the scope of license renewal.
232 Petition at 36.
233 Id.234 Id. According to Petitioner, PURTA refers to the "Public Utility Realty TaxAssessment . . . tax sharing formula used prior to the deregulation of electric generating-53-refurbishment activities only), land use, transportation, and historic and archaeological resources.
231 With regard to his submission asserting that the contention falls under "Offsiteland use (license renewal term)," he fails to challenge or controvert in any way § 4.17 of theApplication ER, which specifically concerns this subject. The contention fails to meet therequirements of 10 C.F.R. § 2.309(f)(1)(vi) and must therefore be dismissed.D. Contention 4: Alleged Flawed Tax AnalysisPetitioner in Contention 4 alleges:PPL's tax analysis is fatally flawed and lacks historical perspective. The Company failedto assess the impact of Revenue Neutral Reconciliations [sic] at the SSES on local citizens, residents, taxpayers, and homeowners.
232As with other contentions, Petitioner here lists several sections of the Environmental Reportof the Application to demonstrate that the contention is within the scope of license renewal, alleging that PPL has "offered only cursory and superficial data" in the ER.
233 Petitioner alsoalleges that PPL "failed to address the negative impact that the Revenue Neutral Reconciliation tax assessment has had on the school district, municipalities and residential consumers"; states that the contention "addresses socioeconomic, environmental and safety concerns raised in the
[ER]"; and provides the following "brief explanation of the basis for the contention":By limiting their historic snapshot from 2001-2005, PPL provides a false and incompletefiscal 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.
234 stations," and RNR refers to the post-deregulation Revenue Neutral Reconciliation taxassessment formula used in Pennsylvania.
See id. at 37.235 Id.236 Id. at 37-39.
237 Id. at 39.238 Id.239 Id.-54-Petitioner asserts in support of the materiality of the contention the following:Relicensing a nuclear power plant should not impose economic hardships on the hostcommunity. PPL has successfully sued local taxing authorities and defended [sic] the school system while at the same time increasing capacity and requesting a license extension. Either the NRC must reexamine the economic impact of SSES on the 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.235As factual support and in an effort to show a genuine dispute on a material issue, Petitionerdiscusses various issues relating to Pennsylvania tax law, the effect of deregulation on tax revenue, property valuation, and tax rates for power plants.
236 He then urges that "[a] sense offair play and economic sanity require that the NRC compel PPL to revise and resubmit the tax impact of relicensing the SSES under current condition [sic]."
237 He wants PPL to submitdocumentation of the amount of taxes paid under the Pennsylvania tax laws in effect in 1995 and 2005, as well as the projected amount for 2015. He asks the NRC to "compel PPL" to provide information "relating to the socioeconomic stress that the RNR assessment has had on social services, the tax base, existing poverty levels."
238 He also asserts the NRC shouldreexamine the plant's economic impact based on "PPL's tax shifting policies," and that it "must compel PPL to explain how its tax policies benefit local communities as the SSES's capacity and environmental impact increase, while the Company's charitable contributions, social programing and revenue contributions steadily decline."
239 240 Id. at 40 241 Id.242 PPL Answer at 26-30; Staff Response at 24-26.
243 PPL Answer at 26.
244 Id.245 Id. at 26-27.-55-Petitioner concludes by discussing how utilities in the state influenced deregulation, claiming"that local communities would increase their revenues," while the utilities paid less taxes, which in the end "created a material adverse conditions [sic] for local communities."
240 He furtherasserts adverse impacts on "an aging population dependent on a fixed income levels [sic]" that is being "asked to absorb rising electric and property tax rates, in part due to the extended operation of the [SSES]."
241PPL and the Staff oppose Contention 4 as raising an issue outside the scope of this licenserenewal proceeding and failing to raise a genuine material dispute with the Application.
242 PPLargues that the contention, in advocating the analysis of the impacts of past changes in Pennsylvania's property tax laws resulting from deregulation, seeks to address "an impact that is not caused or affected by license renewal" and is therefore outside the scope of license renewal.243 Noting that its ER does provide information about property taxes paid to localitiesover the past five years, identifying "what percentage of the local jurisdiction's tax revenue the SSES payments represent," PPL points out that Petitioner in Contention 4 "identifies no inaccuracy in this information."
244 PPL notes further that the ER addresses "whether SSES'stax payments will drive significant land use changes in the renewal term," and asserts that Petitioner "identifies no error in this analysis" and thus fails to dispute any part of the Application as required under 10 C.F.R. § 2.309(f)(1)(vi).
245 PPL disputes Petitioner's understanding of 246 Id. at 27-28. Noting that NEPA "requires consideration only of 'the environmentalimpact of the proposed action,'"
id. at 28 (citing 42 U.S.C. § 4332(C)(i)), PPL cites Council onEnvironmental Quality (CEQ) regulations defining the effects that must be considered in an EIS as those "which are caused by the action,"
id. (citing 40 C.F.R. § 1508.8), as well as case lawinterpreting this provision as "requiring a reasonably close causal relationship between the proposed action and an alleged environmental effect or impact - similar to proximate cause in tort law - before that effect need be considered,"
id. (citing Metropolitan Edison Co. v. PeopleAgainst Nuclear Energy, 460 U.S. 766, 773-74 (1983)), and stating that "[a]n EIS is not required. . . when the proposed federal action will effect no change in the status quo." Id. (citingBurbank Anti-Noise Group v. Goldschmidt, 622 F.2d 115, 116-17 (9th Cir. 1980), cert. denied
,450 U.S. 965 (1981)). Consequently, PPL argues, since "[d]eregulation and the 1999 changes in Pennsylvania's tax laws are not caused by license renewal and will not be affected by license renewal," NEPA requires no analysis of them. Id. In addition, PPL cites the Supreme Courtdecision in the 2004 case of Department of Transportation v. Public Citizen, 541 U.S. 752(2004), in which the Court "held that 'where an agency has no ability to prevent a certain effect due to its limited statutory authority[,]' it cannot be 'considered a legally relevant 'cause' of theeffect.'" Id. at 28-29 (citing 541 U.S. at 770).PPL also disputes some of the factual allegations Petitioner makes, including thatlocalities receive less income as a result of SSES's current tax payments (stating that it now pays $4 million as compared to $1 million under PURTA for its property in the county in which SSES is located), id. at 29 & n.26, and that PPL somehow "refuses" to pay its taxes (noting withregard to the lawsuit referred to by Petitioner that this involved a different power plant and PPL's dispute of a property assessment, "as any property owner may do"). Id. at 30. Ofcourse, we do not address the merits of any allegations in our ruling on the admissibility of the contention, but include this to provide PPL's "side of the story" with regard to the Petitioner's allegations.
247 Staff Response at 24-25 (citing Final Rule, Environmental Review of Renewal ofNuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28471-72 (June 5, 1996) (quote in text is Staff's paraphrasing).-56-Pennsylvania tax law (asserting that he has mistakenly equated the RNR with cessation ofpayments under PURTA, and citing a section in its ER in which the tax situation is discussed in a more accurate manner), and urges that Petitioner's criticism of the change in Pennsylvania's tax laws "provides no demonstration that such change has any causal connection to license renewal."246The NRC Staff argues that "[p]ortions" of Contention 4 are outside the scope of thisproceeding, citing a 1996 amendment to the license renewal rules in which the Commission indicated that "issues relating to utility economics are outside the scope of an environmental analysis because they are state issues."
247 The Staff characterizes Petitioner's call for re-248 Id. at 25.249 Id. at 25-26.
250 Epstein Reply at 28-31.
251 Id. at 28 (emphasis added).
252 Id. at 29 (emphasis added).
253 Id. at 29, 31.-57-examination of the economic impact of SSES on the community" as a "novel claim," for whichno basis is offered.
248 Finally, the Staff criticizes Petitioner's failure to specify any parts of theApplication he disputes, his "unsubstantiated declarations" about the tax issues he raises, andhis failure to explain how these create any genuine dispute on any material issue of law or fact.249Again, Petitioner in his Reply does not address the issues raised by PPL and the Staff intheir responses to his contention, relating to the scope of license renewal and the need to show a genuine dispute on a material issue of law or fact.
250 Citing various other law, he does notmention the contention admissibility rules or any law on the scope of license renewal, arguing instead, e.g., that "[r]elicensing a nuclear power plant should not impose economic hardshipson the host community,"
251 and that the "impact of relicensing on the local community is materialand germane and the NRC should not sanction the relicensing of nuclear power plant [sic] thatwill result increased [sic] property taxes and electric rates and through [sic] up their hands and shout, 'Not my problem.'"
252The primary bases offered for Petitioner's argument, that the "NRC can and must considereconomic affects [sic] on a community," are "since they are interrelated with the natural physical effects of relicensing the SSES," and, again, because a "sense of fair play and economic sanity require" it.
253 Petitioner repeats his argument that PPL should be compelled to resubmit 254 Id. at 31.255 Epstein Citation Letter at 7.
256 See discussion supra § V.A; Oconee, CLI-99-11, 49 NRC at 334.
257 61 Fed. Reg. at 28,471.-58-information regarding socioeconomic stress on the community as well as regarding the amountof taxes it has paid.
254 And, finally, yet again with regard to this contention, Petitioner submits inhis March 11, 2007, filing that the contention falls within the same environmental Category 2 item found in 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1, as that provided for Contentions 1 and 3, namely, "Offsite land use (license renewal term)."
255In making our ruling, we note first, regarding Petitioner's recent March 11 submission, that,although the ER section dealing with offsite land use is among those listed by Petitioner, nothing is provided to show any genuine dispute with what is contained in that section of the ER. Land use is not discussed or even mentioned in the Petition or any other document apart from Petitioner's March 11 submission, nor indeed is any part of the Application specificallychallenged. With regard to the general arguments made in both the Petition and in Petitioner's Reply, these lack the focus as well as the "minimal factual and legal foundation" necessary to support an admissible contention.
256With specific regard to issues relating to utility economics, we note that the Commissionexplained its exclusion of consideration of this subject in the NEPA review associated withlicense renewal in its 1996 rule-making, indicating that it had included such issues in the original proposed rule but eliminated consideration of them in response to concerns expressed by State, Federal and utility representatives who argued that "regulatory authority over utility economics falls within the States' jurisdiction and to some extent within the jurisdiction of the Federal Energy Regulatory Commission."
257 Most concerned states had expressed concern 258 Id.259 Id.260 Id.261 Id. at 28,471-72.-59-that NRC's NEPA analysis not preempt their jurisdiction over the determination of need forgenerating capacity.
258The NRC decided to adopt an approach that, among other things, defined the "purpose andneed for the proposed action (i.e. license renewal)" as "preserving the continued operation of a nuclear power plant as a safe option that State regulators and utility officials may consider in their future planning actions."
259 The context for the Commission's approach was stated asbeing the NEPA analysis of "alternatives," in which the environmental review in license renewals "would include a comparison of the environmental impacts of license renewal with impacts of the range of energy sources that may be chosen in the case of 'no action.'"
260 The Commissioncontinued:The NRC's NEPA decision standard for license renewal would require the NRC todetermine whether the environmental impacts of license renewal are so great that preserving the option of license renewal for future decisionmakers would be unreasonable.The statement that the use of economic costs will be eliminated in this approachrefers to the ultimate NEPA decision regarding the comparison of alternatives and the proposed action. This approach does not preclude a consideration of economic costs if these costs are essential to a determination regarding the inclusion of an alternative in the range of alternatives considered (i.e., an alternative's exorbitant cost could render it nonviable and unworthy of further consideration) or relevant to mitigation of environmental impacts. Also, the two local tax issues and the two economic structure issues under socioeconomics in the table would be removed from consideration whenapplying the decision standard.
261Petitioner does not discuss alternatives at all in Contention 4, appearing instead to beprimarily concerned with issues of socioeconomic stress in the community, but he fails to 262 Petition at 41.
263 Id.264 Id.265 Id. at 42.-60-provide sufficient information to show any genuine dispute with the Application on this or anyother material issue of law or fact. We are thus obliged to find Contention 4 to be inadmissible.E. Contention 5: Alleged Non-compliance with Emergency Preparedness RequirementsPetitioner in Contention 5 asserts:PPL is in violation of the following Federal Regulations: 10 CFR § 50.47;10 CFR § 50.54; 10 CFR § Part 50 Appendix E; and 44 CFR § 350.
262The following explanation is provided:The Nuclear Regulatory Commission should hold a final decision for relicensing theSSES 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 CFR § 50.47 (Condition of Licenses).
263To demonstrate that the "issue raised in the contention is within the scope of theproceeding," Petitioner states that;The Susquehanna Steam Electric Station has failed to include child care facilities in theirRadiological Emergency Plans for the past 24 years. As such, all three [sic] facilities are in violation of Federal Laws put into place due to Presidential Executive Order 12148 which mandates the provision of "reasonable assurance" that the public, including preschool children, could be protected in the event of a Radiological Emergency as a condition to own and operate a nuclear power license, and SAMA: E.3.2 Population, E.3.3 Economy, 3.4 EMPLOYMENT Current Workforce, E.3.5 Nuclide Release, E.3.6 Evacuation, E.4.5 Replacement Power Cost, and Susquehanna MACCS2 Economic Parameters Variable Description SSES Value, et al.
264To show the materiality of Contention 5, Petitioner asserts:The NRC can not extend the license of a nuclear power plant that is in violation of thefollowing Federal Regulations: 10 CFR § 50.47; and 10 CFR § 50.54; 10 CFR § Part 50 Appendix E; and 44 CFR § 350.
265 266 Id.267 Id.268 Id. at 43.269 Id.270 Id. at 44.-61-Petitioner refers to a Federal Emergency Management Agency (FEMA) "GuidanceMemorandum EV-2 Protective Actions for School Children (GM EV-2)," stating that this "federal regulation" requires that:appropriate state and local government agencies provide all licensed childcare facilities(with more than 10 children) residing in Emergency Planning Zones (EPZs) with pre-planned radiological emergency services including notification, transportation and relocation centers.
266According to Petitioner, the preceding requirement has not been implemented within 10miles of SSES.
267 Petitioner has been in contact with the NRC, FEMA, and the State ofPennsylvania to address this issue, and says he has also "filed suit at the Department of Justice on August on 28, 2006 [sic]," seeking "to compel the Department of Justice to compel [FEMA]
and the [NRC] to review and assess the Special Needs' Emergency Preparedness Plans at Pennsylvania's nuclear generating stations to ensure that GM EV-2's Protective Measures are in place for preschoolers and day care centers through Pennsylvania."
268 Petitioner states thatthe NRC, FEMA and Pennsylvania have "steadfastly refused to provide or enforce the protective actions" of GM EV-2, and attaches a "Chronology of the Legal History" on these matters to his Petition, which refers among other things to contacts he has had with various officials and entities, including two rule-making petitions to the NRC with which he has been associated, on the same subject as raised in this contention.
269Petitioner seeks to have this proceeding "delayed until this legal challenge is resolved toensure that the NRC does no [sic] extend an out-of-compliance license."
270 Additionally, he 271 Id. In his later filing of February 28, 2007, Petitioner notified the Board and partiesthat the U.S. Department of Homeland Security (DHS) Inspector General's had acknowledged receipt of Mr. Epstein's "Motions 'Re: Special Needs' Emergency Planning As A Condition For A License,'" which had been forwarded by the Pennsylvania Attorney General's office. Epstein Homeland Security E-mail.
272 Petition at 45 (footnote omitted).
273 PPL Answer at 30.
274 Id. at 31.-62-indicates that the Pennsylvania Attorney General referred Petitioner's complaints with the Stateto the General Accounting Office, who according to Petitioner has since "forwarded the case to the Department of Homeland Security on November 20, 2006."
271 Finally, he states that "[n]oproof exists that [SSES] is in compliance for any special needs' populations within ten miles,"
questions whether the public and children "could be protected in the event of a Radiological Emergency," alleges that FEMA "is unable to properly implement GM EV-2 and has been submitting false finding to the NRC relating to [SSES] for 24 years," and asserts that it is "impossible for federal, state, and local government to verify that any of Pennsylvania's special needs' populations can subscribe to NUREG-0654 J-12 Reception Centers since these facilities have not been assigned a relocation center."
272PPL responds to Contention 5 by stating that it is outside the scope of license renewal andlacks any basis.
273 PPL refers us to SECY-06-0101, Emergency Preparedness for DaycareFacilities Within the Commonwealth of Pennsylvania; Update on Staff Actions and Request for Commission Approval for Related Staff Actions (May 4, 2006), which "demonstrates not only the absence of any real substance behind [Petitioner's] allegations," but also "how NRC's ongoing regulatory oversight ensures the adequacy of emergency preparedness, which is the very reason why emergency planning is beyond the scope of license renewal."
274 275 Staff Response at 27 (citing 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1;McGuire; Catawba, CLI-02-26, 56 NRC at 363-64; Dominion Nuclear Conn., Inc. (MillstoneNuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 560-61 (2005); Turkey Point
,CLI-01-17, 54 NRC at 9-10).
276 Epstein Reply at 33. Petitioner again insists that he "filed suit at" the Department ofJustice, and takes issue with PPL's characterization of the document he sent to DOJ as a "letter." Id. n.20.-63-The Staff agrees with PPL, emphasizing that evacuation planning is "not related to astructure or component which requires an aging management review, nor is it a Category 2 environmental issue which must be analyzed for a license renewal," and that the Commission "has specifically excluded emergency planning from license renewal proceedings because theissue is not germane to age-related degradation or unique to the period of time covered by the license renewal."
275Petitioner in his Reply, again, does not address the law and rules governing the scope oflicense renewal and the admissibility of contentions, but instead essentially repeats arguments made in his original contention.
276In ruling on Contention 5, we recognize that Petitioner raises a significant issue. Obviously,emergency evacuation of children in day care centers in the event of a radiological emergency is a matter of concern. The Commission, however, has categorically stated in the introductory language of 10 C.F.R. § 50.47 that emergency plans do not fall within the scope of license renewal. More specifically, 10 C.F.R. § 50.47, entitled "Emergency Plans," which Petitioner alleges PPL is in violation of, and which is a multi-page rule governing many aspects of the sort of protective measures that must be taken in the event of a radiological emergency, states the following at the second sentence thereof: "No finding under this section is necessary for issuance of a renewed nuclear power reactor operating license."Regarding the other regulations Petitioner alleges PPL to violate, 10 C.F.R. § 50.54 is aneven longer rule concerning "Conditions of licenses," and addresses a large number of 277 In comparison, we note that the licensing board in another license renewalproceeding, involving the Pilgrim Nuclear Power Station in Massachusetts, admitted a contention involving certain emergency evacuation issues, in the specific context of three of the specific input data for the severe accident mitigation alternatives (SAMA) analysis that license renewal applicants are required to perform.
See Pilgrim, LBP-06-23, 64 NRC at 323-41. In thatlimited context, based on a relatively well-supported and technical presentation in comparison to that made by Petitioner, the licensing board admitted a contention stating the following:Applicant's SAMA analysis for the Pilgrim plant is deficient in that the input data concerning (1) evacuation times, (2) economic consequences, and (3) meteorological patterns are incorrect, resulting in incorrect conclusions about the costs versus benefits of possible mitigation alternatives, such that further analysis is called for.Id. at 341. That contention thus fell squarely within the environmental aspect of license renewalas opposed to the safety aspect thereof (in which it has been ruled that emergency planning is an issue that need not be re-examined in a license renewal). Id. at 340 (citing Turkey Point
,CLI-01-17, 54 NRC at 9). Moreover, what was called for in that contention was "further analysis."
See id. at 341. We note that NEPA requires only analysis and consideration ofsignificant environmental impacts, not action on or "resolution" of any issues in the manner suggested by Petitioner. See supra n.125.278 See text accompanying n.264 supra.-64-conditions that "shall be deemed conditions in every license issued." 10 C.F.R. Part 50Appendix E governs "Emergency Planning and Preparedness for Production and Utilization Facilities" and has sections addressing the preliminary and final Safety Analysis Reports, the Content of Emergency Plans, Implementing Procedures, and an Emergency Response Data System. 44 C.F.R. § 350 is a rule of the Federal Emergency Management Agency (FEMA),
concerns "Review and Approval of State and Local Radiological Emergency Plans and Preparedness," and has 15 subsections ranging from "Purpose" to "Criteria . . ." to "Exercises" to "Appeal Procedures." Petitioner does not discuss any specific sections of any of these rules that PPL allegedly violates, again making only general references in this regard.
277We recognize that Petitioner in his discussion of Contention 5 uses the term "SAMA,"referring to the Category 2 issue of "Severe accidents" (and mitigation alternatives) that is listed in Table B-1 of 10 C.F.R. Part 51, Subpart A, Appendix B.
278 More than this is required,however. While 10 C.F.R. § 2.309(f)(1)(vi) requires that the information provided to support a 279 See id.280 See Proposed Rules, 10 CFR Part 50, Mr. Lawrence T. Christian, et al.; Denial ofPetition for Rulemaking, 70 Fed. Reg. 75,085 (Dec. 19, 2005); Proposed Rules, 10 CFR Part 50, Mr. Lawrence T. Christian, et al.; Denial of Petition for Rulemaking, 71 Fed. Reg. 44,593 (Aug. 7, 2006); Proposed Rules, 10 CFR Part 50, Mr. Eric Epstein; Denial of Petition for Rulemaking, 72 Fed. Reg. 9708 (Mar. 5, 2007).
281 72 Fed. Reg. at 9708 (citing Staff Requirements Memorandum (SRM), Oct. 26, 2005,ADAMS Accession No. ML052990321).-65-contention must "include references to specific portions of the application," this is but part ofwhat is required. As stated above, a Petitioner must provide "sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact." This Petitioner Epstein has not done. In contrast to the petitioners in the Pilgrim proceeding, 279Petitioner Epstein nowhere discusses, or challenges, any specific input data for the SAMAanalysis, nowhere discusses how the issue he wishes to raise fits into the Susquehanna SAMA analysis, and nowhere provides any supporting information to show any genuine dispute with the Applicant on such data. Therefore, even apart from the scope issue, the contention must be denied because it has not met the requirements of 10 C.F.R. § 2.309(f)(1)(vi).With regard to Petitioner's rule-making petitions on the subject of emergency planning forday care centers, the Commission denied both petitions.
280 We note that, in the denial of thelatter petition, which was apparently filed by Mr. Epstein alone, the Commission indicated that the "petition and information obtained during the review of the petition, raised questions about local implementation of relevant requirements and guidelines," and that it had accordingly "directed the NRC staff to undertake several actions to further assess these implementation questions and to provide appropriate recommendations for improvement."
281 In response to thisdirection, the NRC staff had met with DHS and the Pennsylvania Emergency Management Agency, who had "described a comprehensive program, mandated by Pennsylvania law, for licensed day care facilities that substantially enhances the existing emergency preparedness 282 Id. at 9709.283 Id.284 Id. at 9708.285 Id. at 9709 & n.3.-66-posture that was previously found by DHS to provide reasonable assurance that adequateprotective measures will be taken for the public, including children in day care facilities."
282 TheCommission in denying the petition indicated that the NRC staff had "provided the Commission the results of this assessment and other related initiatives" in SECY-06-0101, ADAMS Accession No. ML060760586.
283The Commission noted that it had considered a differing professional opinion (DPO)regarding the issue that was cited by Mr. Epstein in his rule-making petition, but that the DPO raised issues about "local implementation of the requirements and guidance, and DHS/ FEMA evaluation of local implementation, neither of which could be resolved by the petitioner's proposal that the GM EV-2 criteria be incorporated into NRC regulations."
284 Noting that"GM EV-2 is a guidance document developed by FEMA and utilized by the DHS, which has primary responsibility for assessing the adequacy of offsite emergency preparedness," and that the "NRC bases its own findings in part on a review of DHS's findings and determinations as to whether State and local emergency plans are adequate and whether there is reasonable assurance that they can be implemented," the Commission also stated, in a footnote, that it had on October 26, 2005, directed the staff to "develop guidance and expectations for the NRC review of FEMA's assessment and findings of offsite emergency preparedness," which activity "should address the petitioner's and the DPO's issues with respect to the adequacy of FEMA/DHS evaluation of local implementation of offsite emergency preparedness."
285 286 Because Petitioner Epstein appears pro se in this proceeding, we add an additionalnote of explanation and clarification at this point, centering on the observation that there are some basic legal principles that not only govern our actions herein but also protect the rights of petitioners such as himself to fair and neutral decision-making in such proceedings. These principles include the related requirements that we be independent in our decision-making, ruling without fear or favor, and that we base our rulings solely on the facts and the law applicable in any given case - no matter where this leads us, whether for or against any party, including the NRC Staff, a license applicant, or a petitioner such as Mr. Epstein.
See , e.g., ABAModel Code of Judicial Conduct (Feb. 2007), Canon 1; Rule 1.1; Canon 2; Rules 2.2, 2.4. While there may be varying views in some instances on what the result should be in a particular case, as administrative judges we are required to base our decisions on our own best reading of the facts and law of any given case, and not on any other factors or influences.The law that governs our actions in this proceeding includes, as we discuss in sectionsIII and V.A of our Memorandum, statutes, regulations and case law decisions relating to thestanding of petitioners to participate in NRC adjudicatory proceedings and to the admissibility of contentions submitted in such proceedings. It also, as illustrated in section V.B above, includes law specifically concerning license renewal proceedings, the scope of which has been narrowlyrestricted by the Commission in its regulations and decisions in other license renewal proceedings. We have summarized some of the relevant law on these subjects, as context for our rulings herein.We note that in some instances Petitioner herein appears to disagree strongly with a lawor rule, or alleged lack thereof. However, adjudication involves the resolution of disputes basedon existing law, which effectively sets the parameters of the dispute and governs how it is to beresolved. In contrast, to the extent one disagrees with existing law, including regulations governing matters at issue, this is best addressed through means other than adjudication; for example, through legislation or rule-making.One may petition the Commission for a rule-making to change an NRC rule of concern;one may also request waiver of a rule, seek an enforcement action by Commission staff, or approach other entities with relevant legislative, regulatory, or enforcement jurisdiction.
See ,e.g., section V.A & text accompanying nn.102-103 supra. It appears that Petitioner is familiarwith the rule-making approach, having been involved in the filing of at least two such petitions to the Commission.
See discussion of Contention 5 in section VI.E above. Also, it may be that-67-It thus appears that Pettioner's concerns are not being ignored, as he suggests. In addition,as he has informed us, he continues to press his issue before the Department of Homeland Security. As discussed above, however, under relevant law governing license renewal proceedings, this Licensing Board may not admit the contention submitted by Petitioner.VII. CONCLUSION and ORDERIn conclusion, although we find that Petitioner Epstein has established individual standing inthis proceeding, we further find that his petition may not be granted because he has not submitted an admissible contention, for the reasons we have stated above.
286 some entities will have greater discretion to consider some of the other sorts of approaches thatPetitioner proposes in his arguments to us. But with regard to adjudication, it may be helpful to observe that the limitation of judges' discretion to following relevant law, and applying it to the best of their ability to the individual facts of particular cases (as opposed to being open to arguments based on appeals to emotion, for example), better ensures decisions that are fair -
consistently applied to all similarly situated persons - rather than based on bias, prejudice, caprice, improper influence, or indeed sympathy, which may vary depending upon the individual inclinations and personalities of different judges.We would also observe that, while petitioners such as Mr. Epstein are to be commendedfor becoming involved as concerned citizens on public issues of concern, it is generally thecase in legal proceedings that the assistance of competent legal counsel is necessary in order to be as focused and effective as possible in pursuing one's case. Particularly in a proceeding (such as this one) involving relatively complex issues and law, a party without a lawyer will likely be at a disadvantage. But while we may reasonably accommodate pro se petitioners who arenot technically perfect in their pleading, such parties must still meet the basic requirements of the contention admissibility rules, and if these are not met, we may not "fill in" any missing support, but, rather, are legally required to deny the contention. See Arizona Public Service Co.(Palo Verde Nuclear Generating Station, Units 1,2, and 3), CLI-91-12, 34 NRC 149, 155 (1991);
Consolidated Edison Co. Of N.Y. (Indian Point, Unit 2) and Power Authority of the State of N.Y.(Indian Point, Unit 3), LBP-83-5, 17 NRC 134, 136 (1983); Private Fuel Storage (IndependentSpent Fuel Storage Installation), LBP-01-3, 53 NRC 84, 99 (2001); see also Duke CogemaStone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-01-35,54 NRC 403, 422 (2001); Georgia Institute of Technology (Georgia Tech Research Reactor,Atlanta, Georgia), LBP-95-6, 41 NRC 281, 305 (1995).Our responsibility to make our decisions based on existing law and on what is providedby a petitioner in support of a contention is, thus, not suspended in an instance in which a petitioner may have failed to comply with all relevant requirements as a result of not having a lawyer and not being skilled in the law himself. Indeed, the principles underlying the contention admissibility requirements of the NRC procedural rules include the need for a petitioner to show "at least some minimal factual and legal foundation" in order to trigger a full adjudicatoryhearing, which must be focused on "real disputes susceptible of resolution in an adjudication."
See discussion at section V.A above; Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2,and 3), CLI-99-11, 49 NRC 328, 334 (1999) (emphasis added). More broadly, only through our own best, good-faith efforts to follow and apply the law consistently can we aid in the realization of the broader public interest in fair proceedings generally. We endeavor herein to fulfill our duty in this regard.-68-Therefore, based on the preceding rulings, findings, and conclusion, it is, this 22nd day ofMarch, 2007, ORDERED that the Petition to Intervene of Eric Joseph Epstein be DENIED and this proceeding be TERMINATED.
287 Copies of this Order were sent this date by Internet e-mail transmission to allparticipants or counsel for participants.-69-Because we rule herein on an intervention petition, any appeal to the Commission from thisMemorandum and Order must be filed within ten (10) days after it is served, in accordance withthe provisions of 10 C.F.R. § 2.311.THE ATOMIC SAFETYAND LICENSING BOARD/RA/_______________________________
Ann Marshall Young, Chair ADMINISTRATIVE JUDGE/RA by E. Roy Hawkens for:/
_______________________________Dr. Kaye D. Lathrop ADMINISTRATIVE JUDGE/RA by E. Roy Hawkens for:/Dr. William W. SagerADMINISTRATIVE JUDGERockville, MarylandMarch 22, 2007 287 UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONIn the Matter of )
)PPL SUSQUEHANNA LLC )Docket No. 50-387/388-LR
)
)(Susquehanna Steam Electric Station, )
Units 1 and 2)CERTIFICATE OF SERVICEI hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (RULING ONSTANDING AND CONTENTIONS OF PETITIONER ERIC JOSEPH EPSTEIN) (LBP-07-04) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Administrative JudgeAnn Marshall Young, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Administrative JudgeKaye D. Lathrop Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Administrative JudgeWilliam W. Sager Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Susan L. Uttal, Esq.Molly L. Barkman, Esq.
Jody C. Martin, Esq.
Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Eric Joseph Epstein 4100 Hillsdale Road Harrisburg, PA 17112 2Docket No. 50-387/388-LRLB MEMORANDUM AND ORDER (RULING ON STANDING AND CONTENTIONS OF PETITIONER ERIC JOSEPH EPSTEIN)
(LBP-07-04) David R. Lewis, Esq.Pillsbury, Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037Marcia Carpentier, Esq.Law Clerk Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the CommissionDated at Rockville, Marylandthis 23 rd day of March 2007