New Jersey Environmental Federation v. United States Nuclear Regulatory Commission

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______

No. 09-2567
______

NEW JERSEY ENVIRONMENTAL FEDERATION;
SIERRA CLUB; NUCLEAR INFORMATION AND
RESOURCE SERVICE; NEW JERSEY PUBLIC
INTEREST RESEARCH GROUP;
GRANDMOTHERS, MOTHERS AND MORE
FOR ENERGY SAFETY,
Petitioners

v.

UNITED STATES NUCLEAR REGULATORY
COMMISSION; UNITED STATES OF AMERICA,
Respondents

EXELON GENERATION COMPANY, LLC,
Intervenor on behalf of Respondents
per Clerk Order of 7/1/09
______

On Petition for Review from an
Order of the Nuclear Regulatory Commission
(NRC Nos. CLI-09-07, CLI-08-23 and CLI-08-28)
______
 Argued January 5, 2011
Before: AMBRO and FISHER, Circuit Judges, and
SÁNCHEZ,* District Judge.

(Filed: May 18, 2011)

Julia A. LeMense
Kevin J. Pflug
William J. Schulte
Eastern Environmental Law Center
744 Broad Street, Suite 1525
Newark, NJ 07102

Richard Webster (Argued)
Public Justice
1825 K Street, N.W., Suite 200
Washington, DC 20006
Counsel for Petitioners, New Jersey Environmental
Federation; Sierra Club; Nuclear Information
and Resource Service; New Jersey Public Interest
Research Group

Julia A. LeMense
Eastern Environmental Law Center
744 Broad Street, Suite 1525
Newark, NJ 07102

*
The Honorable Juan R. Sánchez, District Judge for
the United States District Court for the Eastern District of
Pennsylvania, sitting by designation.

2
Richard Webster (Argued)
Public Justice
1825 K Street, N.W., Suite 200
Washington, DC 20006
Counsel for Petitioner, Grandmothers,
Mothers and More For Energy Safety

Robert M. Rader, I (Argued)
United States Nuclear Regulatory
Commission O14H13
11555 Rockville Pike
One White Flint North
Rockville, MD 20852-2738
Counsel for Respondent, United States
Nuclear Regulatory Commission

John E. Arbab
United States Department of Justice
Environment & Natural Resources Division
P.O. Box 23795
L'Enfant Plaza Station
Washington, DC 20026

Robert M. Rader, I (Argued)
United States Nuclear Regulatory
Commission O14H13
11555 Rockville Pike
One White Flint North
Rockville, MD 20852-2738
Counsel for Respondent, United

3
 States of America

Brad Fagg (Argued)
Morgan, Lewis & Bockius
1111 Pennsylvania Avenue, N.W.
Suite 800 North
Washington, DC 20004
Counsel for Intervenor on Behalf of
Respondents, Exelon Generation Company, LLC

______

OPINION OF THE COURT
______

FISHER, Circuit Judge.

New Jersey Environmental Federation, Nuclear
Information and Resource Service, New Jersey Public Interest
Research Group, New Jersey Chapter of the Sierra Club, and
Grandmothers, Mothers and More for Energy Safety
(collectively, “Citizens”)1 petition for review of three
decisions of the Nuclear Regulatory Commission (the
“NRC”) granting a license renewal for Oyster Creek Nuclear
Generating Station (“Oyster Creek”). Citizens intervened in
the license renewal proceedings and offered several
contentions challenging the licensee‟s plans to detect

1
Petitioners referred to themselves as “Citizens”
before the NRC and in their briefs before the Court. We
designate them accordingly here.

4
corrosion in a safety structure at Oyster Creek. The Atomic
Safety and Licensing Board (the “Board”) admitted one of
these contentions, denied several others, and ultimately
determined that the admitted contention lacked merit. The
NRC affirmed the Board‟s decisions and granted the license
renewal application. Citizens assert that the Board and the
NRC committed various procedural errors in denying their
contentions and failed to make the safety findings required to
issue a renewed license. For the reasons stated below, we
will deny the petition for review.2

I.

A. Factual Background

Oyster Creek is a nuclear generating plant located in
Ocean County, New Jersey. Originally licensed on April 9,
1969 for a forty-year term, Oyster Creek is the oldest
operating commercial nuclear power plant in the United
States. The operator and licensee of the plant, Exelon
Generation Co., LLC (“Exelon”), formerly AmerGen Energy

2
We sought comment from the NRC, Exelon, and
Citizens regarding the potential impact of the damage to the
Fukushima Daiichi Nuclear Power Station on the propriety of
granting a license renewal of Oyster Creek. After considering
the submissions from the parties (including the NRC‟s
indication that Oyster Creek‟s containment is adequate), it
appears that the events in Japan do not provide a basis to
grant the petition for review in this case.

5
Company, LLC (“AmerGen”),3 applied to extend its license
by another twenty years on July 22, 2005. During the
relicensing proceedings, Citizens raised issues regarding
corrosion in the steel containment shell, known as the drywell
shell or liner. The drywell shell is a steel safety structure that
encloses the reactor vessel. Standing about 100 feet tall, the
drywell shell is shaped like an inverted light bulb, and is
designed to withstand the potential pressure and temperature
associated with the break of any of the reactor‟s cooling
system pipes. The sand bed region supports the drywell shell
and is divided into circumferential bays that divert water
reaching the sand bed floor. If water does not drain properly,
corrosion may occur in the liner and lead to safety issues.

In the late 1980s, corrosion was discovered after water
had leaked into the outer wall of the drywell shell in the top
of the sand bed region. Various mitigating actions were
taken, including removal of the sand from the sand bed
region, cleaning the exterior of the drywell shell, applying an
epoxy coating to the exterior of the drywell shell, clearing the
sand bed drains, and taking ultrasonic testing (“UT”)
measurements. These UT measurements were used to
determine the damage caused by the corrosion. After
instituting these measures, AmerGen concluded that the
corrosion had stopped.

When Exelon applied for a license renewal, it made
numerous commitments to the NRC Staff (the “Staff”) that its
aging management program for the drywell shell would
3
We refer to Exelon and AmerGen interchangeably
throughout this opinion.

6
adequately manage corrosion throughout the renewal period.
For instance, Exelon committed to perform a full sand bed
region inspection prior to relicensing and every four years
thereafter. As part of this inspection, Exelon would take UT
measurements at various locations and perform visual
inspections of the epoxy coating. This original application,
however, did not provide for future UT measurements in the
sand bed region of the drywell liner specifically. Exelon did
not include such measurements because it determined that the
corrosion had ceased and periodic visual inspections would
be sufficient to detect any age-related corrosion. In addition,
Exelon committed to monitor the trenches inside the drywell
shell to ensure that no water was found, and to perform a 3-D
structural analysis of the drywell shell.

B. Statutory & Regulatory Framework

Pursuant to the Atomic Energy Act (“AEA”), a
commercial nuclear power plant may be licensed for a term of
up to forty years. 42 U.S.C. § 2133(c). A plant may apply to
renew its license for a fixed term of up to forty more years.
10 C.F.R. § 54.31(b). Section 189(a) of the AEA directs the
NRC to “grant a hearing upon the request of any person
whose interest may be affected by the proceeding, and []
admit any such person as a party to such proceeding.” Id.
§ 2239(a)(1)(A). Aside from this direction, the AEA does not
provide standards that the NRC must apply when issuing a
renewed license. Instead, the AEA grants the NRC discretion
to achieve its statutory purpose. See Nuclear Info. Res. Serv.
v. Nuclear Regulatory Comm’n, 969 F.2d 1169, 1177 (D.C.
Cir. 1992) (“The AEA has been consistently read . . . to give
the Commission broad regulatory latitude.”). In this regard,

7
“the NRC regulatory scheme is „virtually unique in the degree
to which broad responsibility is reposed in the administrative
agency, free of close prescription in its charter as to how it
shall proceed in achieving the statutory objectives.‟” In re
Three Mile Island Alert, Inc., 771 F.2d 720, 727-78 (3d Cir.
1985) (quoting Westinghouse Elec. Corp. v. Nuclear
Regulatory Comm’n, 598 F.2d 759, 771 (3d Cir. 1979)).

The NRC has codified comprehensive regulations
governing nuclear power plant license renewal proceedings.
See 10 C.F.R. Part 54. The scope of the NRC license renewal
process is limited. While the ongoing regulatory process
ensures that the current licensing basis (“CLB”) maintains an
acceptable level of safety, the license renewal proceeding
focuses exclusively on the detrimental effects of aging – the
most significant safety issue posed by long-term reactor
operation. The NRC may grant a license if there is
“reasonable assurance” that the licensee‟s plan to address
aging issues will maintain the CLB. 10 C.F.R. § 54.29(a). A
petitioner intervening in a license renewal proceeding must
establish standing and proffer a valid contention, a specific
issue of law or fact challenging the licensee‟s plan to handle
aging issues. The regulations set forth the contention
admissibility and timeliness requirements, as well as the
standards for filing late contentions and reopening the
administrative record. The NRC published a notice of
opportunity for hearing on September 15, 2005. See 70 Fed.
Reg. 54,585 (Sept. 15, 2005). Citizens had sixty days, until
November 14, 2005, to raise admissible contentions. See 10
C.F.R. § 2.309(b)(3)(i).

C. Procedural History

8
 1. Citizens’ Proposed Contentions

On November 14, 2005, Citizens filed their first
petition to intervene, containing a single contention: Exelon‟s
application was deficient due to its failure to provide for
periodic UT measurements in all levels of the drywell liner.
The Board admitted a narrower version of this contention and
allowed Citizens to challenge Exelon‟s plan for taking UT
measurements in the sand bed region only, not the entire
drywell liner (the “Initial Contention”). The Board issues the
initial decision regarding the admissibility of contentions and
the propriety of granting a license renewal. Thereafter,
petitioners may seek further review from the NRC. In
February 2006, Citizens filed a motion to add two new
contentions. The first contention challenged Exelon‟s UT
monitoring for the embedded region of the drywell, the region
of the shell below the sand bed region (the “Embedded
Region Contention”). The second contention alleged that
Exelon‟s UT monitoring program was insufficient to detect
corrosion on the interior of the drywell, as opposed to the
known historical corrosion on the exterior (the “Interior
Corrosion Contention”).

After filing its initial renewal application, Exelon
subsequently committed to carry out additional UT
measurements. On December 9, 2005, Exelon docketed a
commitment to perform a set of one-time UT measurements
in the sand bed region of the drywell prior to the period of
extended operation. On April 4, 2006, Exelon docketed a
further commitment to complete periodic UT measurements
in the sand bed region throughout the period of extended
operation. And, on June 20, 2006, Exelon committed to

9
perform additional UT measurements during the next two
refueling cycles. As a result of these commitments to conduct
UT measurements throughout the period of extended
operation, Exelon filed a motion to dismiss Citizens‟ Initial
Contention as moot. The Board granted Exelon‟s motion, but
allowed Citizens to file a new contention raising a substantive
challenge to Exelon‟s UT measurement program for the sand
bed region. See In the Matter of AmerGen Energy Co., LLC
(Oyster Creek Nuclear Generating Station), No. 50-0219-LR,
63 N.R.C. 737 (2006).

Citizens filed their new contention on June 23, 2006,
and the Board divided the contention into seven discrete
challenges.4 The Board admitted the contention in part and

4
Citizens raised the following challenges in its
contention:

1. AmerGen‟s acceptance criteria are inadequate
to ensure adequate safety margins.
2. AmerGen‟s scheduled UT monitoring
frequency in the sand bed region is insufficient to maintain an
adequate safety margin.
3. AmerGen‟s monitoring in the sand bed region
for moisture and coating integrity is inadequate.
4. AmerGen‟s response to wet conditions and
coating failure in the sand bed region is inadequate.
5. AmerGen‟s scope of UT monitoring is
insufficient to systematically identify and sufficiently test all
the degraded areas in the sand bed region.

10
denied it in part. Specifically, the Board allowed Citizens‟
contention that the scheduled UT monitoring frequency in the
sand bed region was insufficient to maintain an adequate
safety margin (the “Frequency Contention”). See In the
Matter of AmerGen Energy Co., LLC (Oyster Creek Nuclear
Generating Station), No. 50-0219-LR, 64 N.R.C. 229 (2006).
In their petition for review to this court, Citizens challenge
the denial of only two parts of the contention: (1) that
Exelon‟s acceptance criteria are inadequate to ensure
adequate safety margins (the “Acceptance Criteria
Contention”) and (2) that Exelon‟s scope of UT monitoring is
insufficient to identify and test all the degraded areas in the
sand bed region (the “Spatial Scope Contention”).5
“Acceptance criteria” is the minimum required thickness for
the drywell shell and is used to calculate the point where
corrosion is a threat to the shell‟s structure. In the
Acceptance Criteria Contention, Citizens argued that Exelon
failed to ensure that the safety margins will be maintained
throughout the period of extended operation. In the Spatial
Scope Contention, Citizens asserted that the scope of UT
monitoring was too narrow to allow meaningful comparison

6. AmerGen‟s quality assurance for the
measurements in the sand bed region is inadequate.
7. AmerGen‟s methods for analyzing UT results in
the sand bed region are flawed.
5
The Board denied the four other aspects of Citizens‟
contention. Citizens do not base their petition for review on
this denial and we do not address the propriety of the Board‟s
decision in this regard.

11
with the acceptance criteria. More specifically, Citizens
insisted that the monitoring program failed to include
proposed measurements of areas of the sand bed region
known to be thinner than other areas.

2. Decisions of the Board

On February 9, 2007, the Board denied Citizens‟
motion to add the Embedded Region Contention and the
Interior Corrosion Contention. The Board determined that
both contentions were untimely because they were filed after
the contention admissibility deadline and they were not based
on previously unavailable information. Alternatively, the
Board held that even if the contentions were timely, Citizens
did not demonstrate that a genuine dispute existed on a
material issue of law or fact. The Board also determined that
both the Acceptance Criteria and the Spatial Scope
Contentions were not based on previously unavailable
information, and thus were untimely.

After the administrative record was closed, the Board
convened an evidentiary hearing, focusing primarily on the
Frequency Contention. Exelon, Citizens, and the NRC
presented numerous witnesses. The central issue during the
proceedings was whether Exelon‟s scheduled UT monitoring
frequency in the sand bed region during the period of
extended operation was sufficient to maintain an adequate
safety margin. On December 18, 2007, the Board rejected the
Frequency Contention and found that Exelon demonstrated
that the frequency of its planned UT measurements would
maintain the necessary safety margin (the “Initial Decision”).
See In the Matter of AmerGen Energy Co., LLC (Oyster

12
Creek Nuclear Generating Station), No. 50-0219-LR, 66
N.R.C. 327 (2007). Judge Baratta concurred and would have
imposed additional requirements on the proposed 3-D
analysis. After the NRC directed the Board to address this
issue, it determined that Exelon‟s 3-D analysis would be
sufficient. Citizens filed a petition for review of the Initial
Decision to the NRC.

While the petition for review of the Initial Decision
was pending, Citizens filed a motion to reopen the
administrative record and to add a new contention after the
Staff informed the NRC that it was reviewing an analytical
approach called the “Green‟s function” method. Licensees of
nuclear power plants often used this method to calculate
certain cumulative usage factors, which quantify the fatigue
that a particular metal component experiences during plant
operation. The Staff reported that although the “safety
significance of using the [Green‟s function] is low,” it wanted
to alert the NRC. 68 N.R.C. at 10. Soon after, the Staff
issued a report addressing the potential problems with the
analysis, but ultimately concluded that the “Green‟s function
methodology is not in question” and applicants who rely on it
should “perform confirmatory analyses to demonstrate that
the simplified Green‟s function analyses provide acceptable
results.” Id. Exelon subsequently performed a confirmatory
analysis.

Based on the Staff‟s report and a newspaper article in
which an NRC spokesperson commented on the significance
of a break in a recirculation nozzle, Citizens sought to add
another contention to the motion – that Exelon‟s predictions
for metal fatigue for the circulation nozzles at Oyster Creek

13
were deficient, and a confirmatory analysis was necessary
(the “Metal Fatigue Contention”). On July 24, 2008, the
Board denied the motion and ruled that Citizens did not raise
a significant safety issue regarding use of the Green‟s
function analysis and, in any event, the contention was moot
because Exelon performed a confirmatory analysis. See In
the Matter of AmerGen Energy Co., LLC (Oyster Creek
Nuclear Generating Station), No. 50-0219-LR, 68 N.R.C. 5
(2008).

3. Decisions of the NRC

While review of the Initial Decision was pending,
Citizens filed a petition for review directly with the NRC
requesting that the proceedings be suspended entirely and that
the NRC conduct a comprehensive overhaul of the Staff‟s
review of license renewal applications (the “Supervision
Decision”). In support of their claim, Citizens relied on an
audit report issued by the NRC‟s Office of the Inspector
General (the “OIG Report”). The OIG Report described the
Staff‟s implementation of the comprehensive licensing
scheme, but also identified areas that could be improved such
as the transparency of the Staff‟s reporting and
standardization of the depth of its reviews. The Staff agreed
to implement the relevant recommendations.6 The NRC
denied Citizens‟ petition for review on the ground that the
petition impermissibly challenged the adequacy of the Staff‟s
review process and, even if the challenge were proper, the
6
The Staff declined to implement one of these
recommendations. As Citizens did not base its petition to the
NRC on that ground, it is not at issue here.

14
OIG Report did not establish any basis for relief. See In the
Matter of AmerGen Energy Co., LLC (Oyster Creek Nuclear
Generating Station), No. 50-219-LR, 68 N.R.C. 461 (2008).

Citizens also sought review of the Board‟s decision
denying Citizens‟ motion to reopen the administrative record
and motion to add the Metal Fatigue Contention. The NRC
affirmed the Board‟s decision, determining that Citizens
failed to demonstrate the existence of a significant safety
issue and that a materially different result would have
occurred. See In the Matter of AmerGen Energy Co., LLC
(Oyster Creek Nuclear Generating Station), No. 50-219-LR,
68 N.R.C. 658 (2008). Before the NRC issued a final
decision, Exelon notified the NRC that a visual inspection of
the drywell shell identified a rust stain and a small area where
the epoxy coating was blistered. The Staff determined that
this corrosion was of very low safety significance. Exelon
subsequently updated the NRC on the status of the corrosion,
reporting that small deposits of soluble salts, which often
draw moisture through the epoxy coating, were the most
likely cause. In addition, Exelon reported that the cracks in
the moisture seal were the result of uncured epoxy caulk. In
response, the Staff performed an inspection, reviewed the
technical information, and concluded that no significant
safety conditions relating to the drywell shell would prohibit
plant operation. According to the Staff, the problems Exelon
identified had a minimal impact on the drywell shell and the
corrosion rate was very small. The Staff issued an inspection
report to the NRC elaborating on these conclusions. As a
result, Citizens filed another motion to reopen the
administrative record. The NRC denied the motion.

15
 Lastly, Citizens sought review of the Board‟s denial of
the Embedded Region, the Interior Corrosion, the Acceptance
Criteria, and the Spatial Scope Contentions, as well as the
substantive ruling in the Initial Decision. Concluding that the
Board‟s decisions were well-founded, the NRC affirmed the
Initial Decision, refused to reopen the record to allow the
inspection report, and denied Citizens‟ petition for review
(the “Final Decision”). See In the Matter of AmerGen Energy
Co., LLC (Oyster Creek Nuclear Generating Station), No. 50-
219-LR, 69 N.R.C. 235 (2009). Commissioner Jaczko
dissented in part and would have allowed the inspection
report into evidence.

II.

Under the Administrative Procedure Act, we “hold
unlawful and set aside agency action, findings, and
conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A); see also Limerick Ecology Action, Inc. v.
U.S. Nuclear Regulatory Comm’n, 869 F.2d 719, 728 (3d Cir.
1989).7 We are charged with the “limited, albeit important,
task of reviewing agency action to determine whether the
agency conformed with controlling statutes.” Baltimore Gas
& Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97
(1983). “Administrative decisions should be set aside in this
context, as in every other, only for substantial procedural or
substantive reasons[.]” Vermont Yankee Nuclear Power
Corp. v. Natural Res. Def. Council, 435 U.S. 519, 558 (1978)
7
The NRC had jurisdiction pursuant to 10 C.F.R.
§ 2.341 and we have jurisdiction under 28 U.S.C. § 2342(4).

16
(internal citation omitted). “[W]e defer to the agency‟s
construction of . . . its own regulation, unless it is plainly
erroneous or inconsistent with the regulation.” Beazer East,
Inc. v. U.S. E.P.A., Region III, 963 F.2d 603, 606 (3d Cir.
1992) (internal quotations omitted). And, “[w]hen examining
this kind of scientific determination, as opposed to simple
findings of fact, a reviewing court must generally be at its
most deferential.” Baltimore Gas, 462 U.S. at 103.

III.

A. The NRC’s Denial of Citizens’ Embedded Region,
Interior Corrosion, Acceptance Criteria, and
Spatial Scope Contentions

Citizens argue that the NRC abused its discretion in
ruling that the Embedded Region, the Interior Corrosion, the
Acceptance Criteria, and the Spatial Scope Contentions were
untimely and inadmissible. The standard for contention
admissibility provides that “[a] request for hearing or petition
for leave to intervene must set forth with particularity the
contentions sought to be raised” and establishes several
threshold requirements. 10 C.F.R. § 2.309(f)(1). The
regulations direct a party to:

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

(ii) Provide a brief explanation of the basis for
the contention;

17
 (iii) Demonstrate that the issue raised is within
the scope of the proceeding;

(iv) Demonstrate that the issue raised is material
to the findings the NRC must make to support
the action that is involved in the proceeding;

(v) Provide a concise statement of the alleged
facts or expert opinions which support the
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;

(vi) Provide sufficient information to show that
a genuine dispute exists with the applicant on a
material issue of law or fact . . . .

10 C.F.R. § 2.309(f)(1)(i)-(vi). The standard for filing new
and amended contentions after the filing deadline is set forth
at 10 C.F.R. § 2.309(f)(2). Pursuant to these regulations,
“contentions may be amended or new contentions filed after
the initial filing only with leave of the presiding officer” and
the party must make a showing that:

(i) The information upon which the amended or
new contention is based was not previously
available;

18
 (ii) The information upon which the amended or
new contention is based is materially different
than information previously available; and

(iii) The amended or new contention has been
submitted in a timely fashion based on the
availability of the subsequent information.

10 C.F.R. § 2.309(f)(2)(i)-(iii). Because Citizens sought to
add these contentions after the initial contention deadline,
they needed to satisfy the standards for late-filed contentions,
as well as the general contention admissibility requirements.

1. Embedded Region & Interior Corrosion
Contentions

With respect to the Embedded Region Contention, the
Board determined that Citizens failed to demonstrate that the
information upon which the amended or new contention was
based was not previously available as required by 10 C.F.R.
§ 2.309(f)(2)(i) because an NRC Staff report published in
2005 had discussed this issue. Alternatively, the Board held
that Exelon‟s commitment to repeating UT measurements in
the embedded region in 2008 and thereafter was not new
information to support the contention. Because Citizens
alleged that Exelon‟s enhanced monitoring program for the
embedded region was inadequate, the unenhanced monitoring
program must also have been inadequate. Even assuming that
the contention was timely, the Board also found that the
Embedded Region Contention did not meet the admissibility
requirements. Citizens asserted that AmerGen improperly
chose to take UT measurements in Bay 5 of the drywell shell,

19
when it should have taken measurements in a bay that
experienced more corrosion. The Board rejected this
argument. It noted that “a principal purpose of AmerGen‟s
monitoring program was to obtain visual confirmation of
whether corrosion was occurring on the interior” and
“achievement of this goal does not require conducting UT
monitoring in any particular Bay.” (A.R. at 447.) The Board
further concluded that Citizens‟ argument regarding the rate
of corrosion in the embedded region did not raise a material
dispute. Rather, the Board rejected the opinion of Citizens‟
expert, Dr. Hausler, that groundwater could come into contact
with the embedded region. It noted that “[t]his assertion is
belied by the uncontradicted record evidence showing that
design features serve to prevent groundwater contact with the
exterior, embedded shell.” (Id. at 450.)

As to the Interior Corrosion Contention, the Board
found the contention untimely for the same reasons as was the
Embedded Region Contention. In addition, it also concluded
that Citizens failed to allege adequate facts or provide
supporting arguments demonstrating a material dispute.
Citizens argued that the UT measurements should focus on
the sand bed region below the interior floor, rather than the
exterior because interior corrosion had occurred at other
reactors. The Board dismissed this argument and determined
that “Citizens‟ speculative assertion that interior corrosion
might exist at Oyster Creek based on corrosion at other plants
does not raise a genuine dispute of material fact.” (Id. at
453.) (emphasis in original). Finding that Citizens had not
presented evidence of corrosion on the interior of the drywell
and that “the instant record does not support a conclusion that

20
Oyster Creek has experienced such corrosion,” the Board
determined that the contention did not satisfy the
requirements of 10 C.F.R. § 2.309(f)(1)(vi). (Id.)

Considering the Embedded Region Contention, the
NRC agreed with the Board‟s reasoning that an enhancement
to a program that already exists cannot be considered
previously unavailable information to support a new
contention. This is because “if . . . AmerGen‟s enhanced
monitoring program is inadequate, then AmerGen‟s
unenhanced monitoring program embodied in its [license
renewal application] was a fortiori inadequate.” 69 N.R.C. at
274 (emphasis in original). As to the Interior Corrosion
Contention, the NRC agreed that simply asserting that interior
corrosion was a possibility, without proffering supporting
evidence, did not raise a genuine dispute.

The NRC‟s decision to agree with the Board‟s ruling
was not an abuse of discretion. The NRC permissibly
concluded that information was available in 2005 upon which
Citizens could have lodged the Embedded Region
Contention. Citizens failed to demonstrate that “[t]he
information upon which the [Embedded Region Contention]
is based was not previously available.” 10 C.F.R.
§ 2.309(f)(2)(i).

Further, the NRC reasonably determined that if
AmerGen‟s enhanced monitoring program was insufficient, it
must have been insufficient beforehand too. The NRC and
the Board reached their decisions after analyzing technical
data, and ruling that Citizens had not raised a genuine dispute
on a material fact to challenge these conclusions. Likewise,

21
the NRC had a sufficient factual basis for adopting the
Board‟s conclusion that the existence of interior corrosion at
other reactor facilities was speculative and did not create a
genuine dispute that Oyster Creek experienced such
corrosion. The NRC adopted a reasonable construction of the
contention admissibility requirements that is entitled to
deference because it is not “plainly erroneous or inconsistent
with the regulation.” Beazer East, 963 F.2d at 606.

We are “particularly reluctant to second-guess agency
choices involving scientific disputes that are in the agency‟s
province of expertise,” New York v. U.S. Nuclear Regulatory
Comm’n, 589 F.3d 551, 555 (2d Cir. 2009) (internal quotation
marks omitted). Moreover, “when we consider a purely
factual question within the area of competence of an
administrative agency . . . we recognize the [NRC‟s] technical
expertise and experience, and defer to its analysis unless it is
without substantial basis in fact.” Id. (internal quotation
marks omitted). Having determined that the NRC based its
decisions on a credible rationale and a substantial factual
basis, we decline to disturb its ruling.

2. Acceptance Criteria Contention

Next, Citizens assert that the NRC abused its
discretion in ruling that the Acceptance Criteria Contention
was untimely. Specifically, Citizens claim that Exelon‟s
April 2006 commitment clarified its change to the acceptance
criteria and thus there was new information to support this
challenge that was unavailable in 2005. The Board disagreed
because “nothing in AmerGen‟s April 4 or June 20
commitments . . . adds to, or modifies, the acceptance criteria

22
that have been in effect for years.” 64 N.R.C. at 238.
Affirming the Board‟s ruling, the NRC remarked that “[t]he
Board correctly found that the acceptance criteria were not
new – even if expanded commitments to apply these criteria
were recent.” 69 N.R.C. at 272. Significantly, “[t]he
ultrasonic testing commitments AmerGen made in . . . 2006
did not alter the acceptance criteria themselves. The
acceptance criteria remained the same as they were in the
early 1990s.” Id.

Because Citizens sought to introduce this contention
after the initial filing deadline based on allegedly new
information, they must satisfy the requirements for late-filed
contentions. The NRC did not abuse its discretion in ruling
that Citizens failed to demonstrate that the information upon
which the Acceptance Criteria Contention is based was not
previously unavailable or materially different than
information that was available. See 10 C.F.R.
§ 2.309(f)(2)(i)-(iii). The record reveals that AmerGen‟s
predecessor used the acceptance criteria analysis to measure
the drywell shell in the 1990s and Citizens‟ original petition
to intervene referenced this practice. If Citizens wished to
challenge the adequacy of the acceptance criteria – when it
had been historically used to evaluate the effects of corrosion
as evaluated by UT measurements – the information was
available to raise the issue in their initial petition. As a result,
the NRC did not abuse its discretion in concluding that the
Acceptance Criteria Contention was not based on previously
unavailable information and it was inadmissible pursuant to
10 C.F.R. § 2.309(f)(2)(i). “Section 189(a) does not confer
the automatic right of intervention upon anyone.” Union of

23
Concerned Scientists v. U.S. Nuclear Regulatory Comm’n,
920 F.2d 50, 55 (D.C. Cir. 1990) (internal quotations
omitted). Rather, “a hearing must be held on material issues
that are specifically and timely raised.” Limerick Ecology,
869 F.2d at 724-25. Citizens fail to demonstrate that the
NRC‟s conclusion was an abuse of discretion.

3. Spatial Scope Contention

Citizens also argue that the NRC improperly affirmed
the Board‟s ruling that the correct time to raise its Spatial
Scope Contention was after Exelon docketed its December
2005 commitment. In this contention, Citizens sought to
challenge the various locations at which the UT
measurements would be taken. The Board determined that
Exelon‟s 2006 commitment did not provide any new
information that would serve as a basis for this contention.
Rather, Exelon‟s December 2005 commitment stated that
“one-time measurements will be taken from inside the
drywell at locations tested in the 1990s.” 64 N.R.C. at 250
(emphasis added). Thus, Citizens had prior knowledge of the
location of the one-time UT measurements, even before
Exelon committed in 2006 to perform the measurements
throughout the period of extended operation. The NRC
agreed. It noted that “[t]he locations on the drywell shell
where the ultrasonic testing measurements are made are
fixed.” 69 N.R.C. at 273.

The NRC properly affirmed the Board‟s rejection of
the Spatial Scope Contention because this information was
previously available, rendering the contention deficient under
10 C.F.R. § 2.309(f)(2). Citizens had notice of the spatial

24
scope of the measurements when Exelon docketed its
commitment to take UT measurements in December 2005.
The NRC properly affirmed the Board‟s rejection of the
Spatial Scope Contention because this information was
previously available and 10 C.F.R. § 2.309(f)(2) was not met.
The NRC‟s conclusion derives from adequate record support
and is not an abuse of discretion. See Limerick Ecology, 869
F.2d at 744.

B. The NRC’s Denial of Citizens’ Motion to Reopen
the Administrative Record to Admit the Metal
Fatigue Contention

Citizens insist that the NRC denied them their right to
a hearing under the AEA in applying the standards for
reopening the administrative record to their proffered Metal
Fatigue Contention when the contention had not been
previously litigated. Alternatively, Citizens maintain that
their motion satisfied the reopening requirements.

The regulations dictate that:

A motion to reopen a closed record to consider
additional evidence will not be granted unless
the following criteria are satisfied:

(1) The motion must be timely. However, an
exceptionally grave issue may be considered in
the discretion of the presiding officer even if
untimely presented;

25
 (2) The motion must address a significant safety
or environmental issue; and

(3) The motion must demonstrate that a
materially different result would be or would
have been likely had the newly proffered
evidence been considered initially.

10 C.F.R. § 2.326(a)(1)-(3). Reopening the administrative
record in an NRC proceeding is an “extraordinary action.” 51
Fed. Reg. 19,535, 19,538 (May 30, 1986). The proponent
must meet a very heavy burden and “present[] material,
probative evidence which either could not have been
discovered before or could have been discovered but is so
grave that, in the judgment of the presiding officer, it must be
considered anyway.” Id.

Citizens argue that the NRC may not apply the
standards for reopening the administrative record to a
contention that raises a new issue, as opposed to new
evidence about an issue that already has been heard. To
support this proposition, Citizens rely on Union of Concerned
Scientists v. U.S. Nuclear Regulatory Comm’n, 735 F.2d 1437
(D.C. Cir. 1984) (“UCS I”). In that case, the NRC
categorically barred contentions seeking to challenge the
results of emergency preparedness testing and forced the
intervenors to add the contention through a motion to reopen.
See id. at 1443. The D.C. Circuit ruled that the NRC violated
the AEA by applying the motion to reopen standard when it
should have applied the default contention admissibility
requirements. See id. Citizens‟ reliance on UCS I is
misplaced. The NRC did not categorically bar the Metal

26
Fatigue Contention. Rather, it applied the motion to reopen
standard because the administrative record was closed by the
time the contention was raised.

Citizens also rely on Deukmejian v. Nuclear
Regulatory Comm’n, 751 F.2d 1287 (D.C. Cir. 1984) (vacated
on other grounds). In Deukmejian, two licensing proceedings
were at issue, and the petitioners challenged deficiencies in
the low-power plant proceeding while simultaneously seeking
to reopen the administrative record in the full-power plant
proceeding on the same ground. See id. at 1311. The NRC
applied the motion to reopen standard to both challenges. See
id. at 1312. The D.C. Circuit ruled that automatically
funneling the contention challenging the low-power plant
proceeding into the motion to reopen process was
impermissible because each contention should have been
evaluated on its own. The NRC‟s refusal to distinguish
between the contentions violated the AEA because the
“criteria for reopening a closed record are higher than the
criteria for obtaining a hearing” and “the mere fact that a
party can seek reopening is not a sufficient substitute for the
hearing.” Id. (emphasis in original).

Citizens‟ emphasis on Deukmejian is also misplaced.
In that case, the NRC violated the AEA because it incorrectly
characterized a contention challenging the low-power plant
proceeding as a motion to reopen the full-power plant
proceeding. In the case at hand, there was one proceeding
and the NRC permitted Citizens to raise contentions. After
the record was closed, only then did it apply the motion to
reopen standard to the Metal Fatigue Contention.
Significantly, after Deukmejian, the NRC promulgated its

27
standards for reopening the record. Pursuant to 10 C.F.R.
§ 2.326(d), “[a] motion to reopen which relates to a
contention not previously in controversy among the parties
must also satisfy the requirements for nontimely contentions
in § 2.309(c).” (emphasis added). Thus, the regulations
explicitly allow for contentions alleging previously non-
litigated issues to be raised through a motion to reopen. To
accept Citizens‟ argument that the motion to reopen standard
may never be applied in situations where a petitioner seeks to
add previously unlitigated material would effectively render
the regulation meaningless. We have upheld the motion to
reopen standard and deferred to the NRC‟s application of its
rules, so long as it is reasonable. See In re Three Mile Island
Alert, 771 F.2d at 732. There is no basis to question the
NRC‟s application of its regulations here.

Having determined that the NRC properly applied the
motion to reopen standard, we evaluate whether the NRC
abused its discretion in concluding that Citizens failed to meet
the standard. Citizens first argue that the Board
impermissibly adjudicated the merits of its challenge to the
Green‟s function analysis. Second, Citizens claim that the
NRC should not have relied on an affidavit from the Staff
concluding that the use of the Green‟s function method did
not present a safety issue. Third, Citizens assert that the NRC
should not have disregarded the statement from the NRC
spokesperson.

The Board ruled that the motion did not raise a
significant safety issue. The Board pointed out that Citizens‟
expert, Dr. Hopenfeld, opined that “I expect that the
simplified method has under-estimated the [cumulative usage

28
function] of the recirculation nozzle at Oyster Creek.” 68
N.R.C. at 17 (internal quotation marks omitted). The
conjecture, the Board found, was pure speculation and devoid
of evidentiary support raising a significant safety issue.
Recognizing that the Staff concluded that the Green‟s
function analysis could result in a non-conservative
calculation if incorrectly applied, the Board determined that
“the Staff has taken what appear to be prudent steps to
confirm that AmerGen has conducted an adequate time
limited aging analysis” and this potential defect in the
analysis “does not itself establish the existence of a deficiency
in the license renewal application that warrants reopening the
record.” Id. at 18. Further, the Board rejected Citizens‟
argument that because cumulative usage function
measurements at the Vermont Yankee Facility were flawed,
the measurements at Oyster Creek were likely to be deficient
as well. The Board maintained that “Citizens provide no
factual evidence or expert testimony showing that the analysis
used at Oyster Creek employing the Green‟s function was
improperly performed.” Id. Further, the Board noted that
Citizens‟ reliance on the NRC spokesperson‟s statement was
misplaced because the comments simply acknowledged that
“breakage of certain components in a nuclear facility could
have severe consequences.” Id. at 19. It did not demonstrate
that the Green‟s function analysis itself was linked to a
significant safety issue. Moreover, the Board concluded that
Citizens could not demonstrate that reopening the record as to
the Metal Fatigue Contention would lead to “a materially
different result,” given that Exelon confirmed that the
calculations were correct.

29
 In reviewing the Board‟s decision, the NRC agreed
that Citizens had provided only speculation that the use of the
Green‟s function analysis was non-conservative. The NRC
did not abuse its discretion in refusing to reopen the
administrative record. First, Citizens‟ argument that the
Board and the NRC impermissibly weighed the evidence
lacks merit. The reopening rule requires Citizens to proffer
evidence demonstrating “safety significance” and that prior
admission of the evidence would have led to a “materially
different result.” 10 C.F.R. § 2.326(a)(1)-(3). The decisions
of the Board and the NRC reveal that both bodies applied this
regulation to Citizens‟ proffered contention and determined
that it did not warrant reopening. The NRC‟s construction of
the regulations in this regard is entitled to deference. See
Beazer East, 963 F.2d at 606.

Second, the NRC reasonably concluded that the Metal
Fatigue Contention did not present a significant safety issue
that would have led to a materially different result. Citizens
did not demonstrate that the original metal fatigue
calculations based on the Green‟s function analysis were
deficient. The NRC provided a sound basis for its decision
when it concluded that “Citizens provided no evidence to
support [their] argument that AmerGen‟s calculations were
based on non-conservative assumptions or methodologies, or
to support its premise that a change to a more conservative
analytical methodology would push the cumulative usage
factor over 1.0.” 68 N.R.C. at 671. Thus, Citizens did not
meet their burden under 10 C.F.R. § 2.326(a) to demonstrate
a significant safety issue and that a materially different result
would have been likely. There is substantial record support

30
for this reasoning and we will not disturb it. See Limerick
Ecology, 869 F.2d at 744.

Next, we determine that the NRC did not err in relying
on the Staff‟s affidavit asserting that no significant safety
issue was presented. We have held that “[i]f the Commission
has . . . information bearing on the subject matter of a motion
to reopen . . . it should be free to use that information.” Three
Mile Island Alert, 771 F.2d at 732. In addition, the NRC
correctly discounted the statements of the NRC spokesperson
because these comments did not address the Green‟s function
analysis, but rather generally discussed the consequences of a
break in the recirculation nozzle.

Overall, Citizens failed to meet the exacting standard
to justify reopening the administrative record. See
Deukmejian, 751 F.2d at 1317-18 (“Where as here the agency
has taken final action on a matter that is peculiarly within its
realm of expertise, we will not require the agency to reopen
its proceedings except upon a clear showing of abuse of
discretion or of extraordinary circumstances.” (internal
quotations and brackets omitted)). Our review of the record
reveals that the NRC “analyzed the relevant issues relying on
information from reliable sources, reasoned to a logical
conclusion, and articulated the reasons for its decision. As a
reviewing court, we can ask nothing more of the [NRC].”
Three Mile Island Alert, 771 F.2d at 735.

C. The NRC’s Safety Findings and the NRC’s Denial
of Citizens’ Motion to Reopen the Administrative
Record to Admit the Inspection Report

31
 Citizens next raise a host of arguments challenging the
NRC‟s decision to reject the Frequency Contention and to
find that Exelon had demonstrated “reasonable assurance”
that it would safely operate Oyster Creek. First, Citizens
claim that the NRC did not make a definitive finding, as is
required, see Power Reactor Dev. Co. v. Int’l Union of Elec.,
Radio, and Mach. Workers, 367 U.S. 396, 409-10 (1961), that
issuing a license renewal will not be dangerous to the health
and safety of the public. Citizens base this assertion on the
NRC‟s statement in the Final Decision that, “[s]ubject to the
considerations we discuss below . . . [,] we agree with the
Board‟s finding that the ultrasonic testing program provides
reasonable assurance that the drywell liner will not violate the
acceptance criteria.” 69 N.R.C. at 263. Citizens‟
interpretation of the NRC‟s decision is incorrect. The Final
Decision affirmed the Board‟s Initial Decision, rejected the
Frequency Contention, and the NRC took review of the
petition for two limited purposes: (1) it clarified that
Exelon‟s commitment to perform a 3-D analysis was
consistent with Judge Baratta‟s concerns, and (2) it directed
the Staff to ensure that Judge Baratta‟s objective was
achieved. The language Citizens rely on was not a
qualification on the NRC‟s safety findings, but rather a
qualification on the denial of the petition for review. The
NRC made clear that it rendered the requisite safety findings
when it noted: “Let us be clear: the Board‟s fundamental
conclusion in [the Initial Decision], authorizing issuance of
the renewed license, stands on its own.” Id. at 282 n.271.
The NRC upheld the Board‟s exhaustive factual findings and
we determine that there is no error in this ruling.

32
 Second, Citizens raise several issues concerning the
denial of their motion to reopen the administrative record to
add the inspection report. As a primary matter, Citizens
claim that the NRC improperly required them to demonstrate
a significant safety issue. Next, Citizens maintain that the
NRC impermissibly referred unresolved safety issues to the
Staff to develop more information post-hearing. Finally,
Citizens assert that the inspection report revealed unresolved
safety issues.

The NRC denied the motion to reopen, pointing out
that the Staff had determined that “no findings of significance
were identified.” Id. at 288. More specifically, the NRC
rejected Citizens‟ claim that because water was found in the
sand bed region during the course of the relicensing
proceedings, Exelon‟s commitment to detect corrosion was
deficient. The NRC pointed out that there were several
methods to uncover potential corrosion, despite any problems
identified in the inspection report, and Citizens provided no
expert support to contradict that finding. Instead, Citizens
offered an affidavit from Dr. Hausler in which he speculated
regarding causes for the observed corrosion. The NRC
concluded that affidavit did not meet the requirements of 10
C.F.R. § 2.326(b) because it did not contain specific factual
and/or technical bases to support Citizens‟ arguments.

The NRC‟s conclusions did not constitute an abuse of
discretion. As to Citizens‟ first argument, the regulations
place the burden on Citizens, the petitioner, to demonstrate
the existence of a significant safety issue in seeking to reopen
the administrative record. See 10 C.F.R. § 2.326(a)(1)-(3).
Citizens‟ argument regarding delegation to the Staff also

33
lacks merit. See Mass. v. U.S. Nuclear Regulatory Comm’n,
924 F.2d 311, 331 (1st Cir. 1991) (noting that the NRC may
refer minor safety matters not pertinent to its basic findings
for post-hearing resolution). Given that the Staff concluded
that the inspection report raised no significant safety issues,
this was an appropriate course of action.

Finally, Citizens‟ claim that there were unresolved
safety issues essentially boils down to their disagreement as
to the significance of the issues raised in the inspection report.
The NRC relied on the Staff‟s recommendation that the
inspection report did not present a significant safety issue, as
well as factual findings that there were other methods to
effectively detect future corrosion. Further, the NRC was
justified in finding that Dr. Hausler‟s affidavit was deficient
given that it only offered speculation as to the cause of the
corrosion and failed to offer supporting evidence, falling short
of the requirements in 10 C.F.R. § 2.326(b). The NRC had a
substantial basis to conclude that the inspection report did not
demonstrate a “significant safety or environmental issue” and
“that a materially different result . . . would have been likely”
had the report been admitted. 10 C.F.R. § 2.326(a)(1)-(3).
Although the NRC‟s decision was not unanimous, the
majority based their decision on facts in the record and
reasonably applied their technical expertise. Our role is not to
“weigh the evidence, but [rather] to determine whether
substantial evidence supports the Commission‟s decision.”
Limerick Ecology, 869 F.2d at 753. We determine that the
NRC properly exercised its discretion in ruling that Exelon
demonstrated “reasonable assurance” that it could operate

34
Oyster Creek, and that the inspection report did not raise a
significant safety issue justifying reopening of the record.

D. The NRC’s Rejection of Citizens’ Supervision
Petition

As a final matter, Citizens challenge the NRC‟s denial
of the Supervision Petition and claim that the OIG Report
demonstrates that the Staff‟s safety review was inadequate.
In essence, Citizens claim that the NRC should have
suspended the relicensing proceedings and conducted a
comprehensive overhaul of the Staff‟s review process. In
addition, Citizens sought to reopen the record to include the
OIG Report.

The NRC denied both of Citizens‟ requests. First, it
noted that Citizens may not challenge the adequacy of the
Staff‟s review. Rather, they may only proffer admissible
contentions alleging that a “genuine dispute exists with the
applicant/licensee on a material issue of law or fact.” 10
C.F.R. § 2.309(f)(1)(vi) (emphasis added). Thus, the NRC
concluded that Citizens‟ argument challenging the NRC‟s
supervision of its Staff was beyond the scope of the
relicensing proceedings. In any event, the NRC addressed
Citizens‟ arguments and ultimately determined that the OIG
Report did not establish a need for a complete overhaul of the
license renewal process. The NRC noted that, although the
OIG Report identified certain weaknesses, the Staff agreed to
implement the OIG Report‟s suggestions. More importantly,
however, the OIG Report did not characterize any of the
findings as posing a safety risk. Finally, the NRC denied
Citizens‟ motion to reopen the administrative record to

35
include the OIG report. In doing so, it concluded that
Citizens failed to provide supporting affidavits and offered
“only the speculation that the Staff may have failed to
identify such a [significant safety issue] because their review
may have been insufficiently thorough.” 68 N.R.C. at 468.

The NRC‟s refusal to grant the Supervision Petition
was well-founded. At the outset, the NRC‟s conclusion that
“the focus of the license proceeding must be the sufficiency
of the application, not the adequacy of the Staff‟s review,” is
proper in light of the regulations, see 10 C.F.R.
§ 2.309(f)(1)(vi), and we will not second-guess the NRC‟s
reasonable construction thereof. See Beazer East, 963 F.2d at
606. Even more dubious is our authority to review the NRC‟s
supervision of its own Staff, in light of the AEA‟s grant of
authority to the NRC to achieve its statutory purpose. See 5
U.S.C. § 701(a)(2) (judicial review is not appropriate where
“agency action is committed to agency discretion by law”).
Thus, we decline to review the NRC‟s decision not to
overhaul the licensing proceedings.

As to the motion to reopen the record, the NRC‟s
conclusion was amply supported. The regulations require a
petitioner to supply affidavits in support of such a motion, see
10 C.F.R. § 2.326(b), and Citizens failed to do so. Moreover,
the NRC reasonably concluded that the OIG Report did not
present a significant safety issue. In doing so, the NRC
explained that “the OIG Report did not conclude that the Staff
generally neglected to conduct necessary reviews, audits, and
inspections.” 68 N.R.C. at 474. Although the OIG Report
noted some deficiencies in the Staff‟s report writing, the NRC
expressed confidence in the substance of the Staff‟s decisions

36
by noting “we remain convinced that the agency‟s current
licensing renewal approach and process are sensible and
lawful.” Id. at 481. The NRC‟s conclusion that the motion to
reopen was deficient under 10 C.F.R. § 2.326(a)(2) derives
from adequate record support and we will uphold it.

IV.

After a thorough review of the comprehensive
decisions of the Board and the NRC, we conclude that the
NRC did not abuse its discretion in rejecting Citizens‟ various
challenges to Exelon‟s license renewal application for Oyster
Creek. We commend Citizens for their diligence in bringing
these issues to the attention of the Board and the NRC. We
also recognize that the Board and the NRC provided hundreds
of pages detailing their decision making and gave due
consideration to Citizens‟ concerns. We are confident that
the NRC‟s review of Exelon‟s application was well-reasoned,
and we will not second-guess technical decisions within the
realm of its unique expertise. For the foregoing reasons, we
will deny the petition for review.

37