On January 24, 2002, the ASLB issued LBP-02-04. The ASLB ruled that most of Contention 1.1.2 raises “generic” issues that were addressed in NUREG-1437, the Generic EIS for License Renewal of Nuclear Power Plants (1996). Therefore, the ASLB concluded:
NIRS Contention 1.1.2 raises issues that, while obviously quite serious, would seem to lie outside the scope of this license renewal proceeding as defined herein, which concerns only the four Duke units at issue and not nuclear plants generally.
Id., slip op. at 74. With respect to another issue, the proximity of the McGuire plant to the Charlotte airport, the ASLB found that the issue was not “new” and therefore was not admissible.
The ASLB did decide to admit one portion of Contention 1.1.2, relating to the impacts of using MOX fuel at the Catawba and McGuire plants:
With regard to the MOX fuel issues put forth by NIRS, we have admitted the contention and, depending upon what evidence is elicited with regard to the issue, there would appear to be issues related to MOX fuel use that might constitute “new information” and “special circumstances with respect to the subject matter of [this] particular proceeding” that NIRS has at least implicitly raised, as required by section 2.758 and suggested by the Commission in Turkey Point, CLI-01-17, 54 NRC at 12.
Id., slip op. at 77, citing Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-07, 54 NRC 3, 12 (2001). However, the ASLB certified the contention to the Commission for a determination of “whether such ‘special circumstances’ are ‘such that the application of the [rules in question] would not serve the purposes for which [they] were adopted.’ LBP-02-04, slip op. at 77.The ASLB admitted as part of BREDL / NIRS Contention 2, NIRS’s contention criticizing the lack of an adequate discussion of SAMAs for station blackout. In admitting the contention, however, the ASLB reworded it to remove any reference to the need to consider sabotage and terrorism as factors in a SAMA analysis.