ML21008A531

Applicants Answer Opposing Request for Hearing, Petition to Intervene, and Petition for Waiver Submitted by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia

ML21008A531
Person / Time
Site:	North Anna
Issue date:	01/08/2021
From:	Bessette P, Blair W, Lighty R, Sutton K Dominion Energy Services, Morgan, Morgan, Lewis & Bockius, LLP, Virginia Electric & Power Co (VEPCO)
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-338-SLR, 50-339-SLR, ASLBP 21-970-01-SLR-01, RAS 55940
Download: ML21008A531 (47)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:

VIRGINIA ELECTRIC AND POWER COMPANY and OLD DOMINION ELECTRIC COOPERATIVE (North Anna Power Station, Units 1 and 2)

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Docket Nos. 50-338-SLR and 50-339-SLR January 8, 2021 APPLICANTS ANSWER OPPOSING REQUEST FOR HEARING, PETITION TO INTERVENE, AND PETITION FOR WAIVER SUBMITTED BY BEYOND NUCLEAR, SIERRA CLUB, AND ALLIANCE FOR PROGRESSIVE VIRGINIA William S. Blair, Esq.

DOMINION ENERGY SERVICES, INC.

Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Ryan K. Lighty, Esq.

MORGAN, LEWIS & BOCKIUS LLP Counsel for Virginia Electric and Power Company

TABLE OF CONTENTS I.

INTRODUCTION............................................................................................................. 1 II.

BACKGROUND............................................................................................................... 3 A.

Procedural History................................................................................................. 3 B.

SLR Environmental Review Under 10 C.F.R. Part 51.......................................... 4 1.

General SLR Environmental Review Framework..................................... 4 2.

GEIS Consideration of Postulated Earthquake Impacts............................ 5 3.

ER Consideration of Postulated Earthquake Impacts................................ 9 C.

SLR Safety Review Under 10 C.F.R. Part 54...................................................... 11 D.

CLB Seismic Issues Governed by 10 C.F.R. Part 50........................................... 13 1.

Mineral Earthquake.................................................................................. 13 2.

Post-Fukushima Seismic Re-Evaluations................................................ 15 III.

THE BOARD SHOULD DENY THE WAIVER REQUEST BECAUSE IT FAILS TO SATISFY THE COMMISSIONS WAIVER STANDARD........................ 17 A.

Legal Standard for Waivers................................................................................. 18 B.

Fundamental Factual Errors and Misconceptions In the Petition........................ 20 1.

Part 51 NSI Provisions Ensure That NSI Is Considered to the Full Extent Required by NEPA....................................................................... 20 2.

The GEIS Evaluates the Potential Impacts of Postulated Beyond-Design-Basis Earthquakes....................................................................... 21 C.

Petitioners Fail to Identify Any Special Circumstances Specific to North Anna That Justify a Waiver................................................................................. 22 D.

Petitioners Fail to Identify Any Regulation That, If Applied Here, Would Defeat the Commissions Purpose For Enacting It.............................................. 24 E.

Petitioners Fail to Identify a Significant Environmental Problem................... 26 IV.

THE BOARD SHOULD DENY THE HEARING REQUEST BECAUSE IT DOES NOT PROPOSE AN ADMISSIBLE CONTENTION......................................... 28 A.

Legal Requirements for Hearing Requests and Petitions to Intervene................ 29 B.

The Proposed Contention Is Inadmissible Absent a Waiver of Appendix B....... 32 C.

The Proposed Contention Is Inadmissible Even If a Waiver is Granted............. 32 1.

The Proposed Contention Is Inadmissible Because the Allegedly-Omitted Analysis Is Presented in the GEIS and Incorporated by Reference in the ER................................................................................. 33

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To the Extent the Proposed Contention Is Viewed as a Contention of Sufficiency, It Still Is Inadmissible As Unsupported and for Failing to Dispute the ER......................................................................... 36 3.

Petitioners Other References to Cumulative Impacts and Aging Management Research Do Not Raise an Admissible Issue..................... 38 V.

CONCLUSION................................................................................................................ 42

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:

VIRGINIA ELECTRIC AND POWER COMPANY and OLD DOMINION ELECTRIC COOPERATIVE (North Anna Power Station, Units 1 and 2)

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Docket Nos. 50-338-SLR and 50-339-SLR January 8, 2021 APPLICANTS ANSWER OPPOSING REQUEST FOR HEARING, PETITION TO INTERVENE, AND PETITION FOR WAIVER SUBMITTED BY BEYOND NUCLEAR, SIERRA CLUB, AND ALLIANCE FOR PROGRESSIVE VIRGINIA I.

INTRODUCTION Pursuant to 10 C.F.R. §§ 2.309(i)(1) and 2.335(b), Virginia Electric and Power Company (Dominion Virginia Power or Dominion), on behalf of itself and Old Dominion Electric Cooperative (collectively, Applicants) submit this Answer opposing the Hearing Request and Petition to Intervene (Hearing Request) and Petition for Waiver (Waiver Request) (together, the Petition)1 filed by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia (Petitioners) on December 14, 2020, regarding the subsequent license renewal (SLR) application (SLRA) for North Anna Power Station, Units 1 and 2 (North Anna).2 The Hearing Request proposes one contention purporting to challenge Applicants environmental report (ER). Petitioners corollary Waiver Request asks that the application of certain U.S.

1 Hearing Request and Petition to Intervene by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia and Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.71(d), and 51.95(c)(1) to Allow Consideration of Category 1 NEPA Issues (Dec. 14, 2020) (ML20349D952) (Petition).

2 See Letter from M. Sartain, Dominion, to NRC Document Control Desk, Virginia Electric and Power Company, North Anna Power Station Units 1 and 2, Application for Subsequent Renewed Operating Licenses (Aug. 24, 2020) (Package ML20246G703). The application package contains multiple enclosures. The SLRA is Enclosure 3, which consists of two files: the Main Report and Appendices A-D (ML20246G696) and Appendix E, which is the Environmental Report (ER) (ML20246G698).

2 Nuclear Regulatory Commission (NRC) environmental regulations be set aside in this proceeding. Petitioners recognize that their proposed contention cannot be admitted unless the Waiver Request is granted. As explained in detail below, the Petition should be denied in its entirety.

In sum, the Proposed Contention claims that the ER does not consider the environmental implications of a 2011 earthquake in Mineral, Virginia (Mineral Earthquake) that exceeded the seismic design basis for North Anna,3 and therefore does not satisfy the National Environmental Policy Act of 1969, as amended (NEPA)4 or the NRCs NEPA-implementing regulations in 10 C.F.R. Part 51. However, the impacts of beyond-design-basis earthquakes were analyzed generically in the NRCs Generic Environmental Impact Statement (GEIS) for license renewal, which the ER incorporates by reference. Thus, the Proposed Contention actually seeks to challenge the GEIS analysis of that issue, which is codified in 10 C.F.R. Part 51, Subpart A, Appendix B (Appendix B). NRC regulations cannot be challenged in adjudicatory proceedings absent a waiver. Accordingly, Petitioners submitted the Waiver Request.

Neither the Waiver Request nor the Proposed Contention satisfies the legal requirements governing this Petition. As a general matter, the arguments that Petitioners seek to advance in the Petition are particularly vague and lack even the minimum clarity and precision required for adjudicatory challenges. Moreover, both the Waiver Request and the Hearing Request suffer from Petitioners fundamental misunderstanding of: (1) the scope of the analyses in the GEIS, which squarely evaluate both design-basis and beyond-design-basis earthquakes; and (2) the 3

See Petition at 30.

4 See Pub. L.91-190, §2, Jan. 1, 1970, 83 Stat. 852 (codified at 42 U.S.C. §§ 4321 et seq.).

3 legal framework for the identification and screening of new information for potential significance to the GEIS analyses and conclusions codified in Part 51.

In fact, given these clear fundamental defects, and various internal contradictions in the Petition, it is difficult to reconcile the arguments being advanced. For example, Petitioners recognize that safety issues governed by a plants current licensing basis (CLB) are squarely beyond the scope of this proceeding; yet, the Petition tries to bootstrap such arguments into an environmental contention, as explained below. Additionally, the Petition is laden with numerous misleading statements and mischaracterizations of fact and law. In sum, these central flaws in the Petition, among the many others discussed below, require that both the Waiver Request and the Hearing Request be denied.5 II.

BACKGROUND A.

Procedural History Applicants filed their SLRA with the NRC on August 24, 2020, to renew North Annas operating licenses for an additional 20-year period. As part of the SLRA, and as required by Part 51, Applicants submitted an ER that considers the potential environmental impacts of the requested extension. On October 15, 2020, the NRC published a notice in the Federal Register docketing the North Anna SLRA and providing an opportunity for interested persons to request a hearing by December 14, 2020.6 On December 14, 2020, Petitioners filed their Petition seeking to intervene in this SLR proceeding, requesting a hearing, and seeking a waiver to raise Category 1 NEPA issues.

5 Applicants do not challenge Petitioners standing claim in this proceeding.

6 See Virginia Electric and Power Company; North Anna Power Station, Units 1 and 2; Subsequent License Renewal Application; Opportunity to Request a Hearing and to Petition for Leave to Intervene, 85 Fed. Reg.

65,438 (Oct. 15, 2020) (Notice of Hearing Opportunity).

4 B.

SLR Environmental Review Under 10 C.F.R. Part 51

1.

General SLR Environmental Review Framework The NRCs license renewal environmental regulations in Part 51 are based in large part on the analyses in its GEIS for license renewal, which summarizes the findings of a systematic inquiry into the potential environmental consequences of license renewal.7 Based on these analyses, the GEIS and Appendix B delineate two types of environmental issues:

Generic / Category 1 issues for which the NRC made generic conclusions applicable to all existing nuclear power plants; and Plant-Specific / Category 2 issues for which site-specific analyses are required for each individual license renewal proceeding.

For Category 1 issues, the GEIS assigns impact levels (SMALL, MODERATE, or LARGE),

based on the GEIS analyses, which are codified in Appendix B. As part of an application for original or subsequent license renewal, applicants must submit an ER considering all Category 2 issues on a plant-specific basis.8 Applicants need not include analyses of Category 1 issues in the ER,9 but may incorporate by reference the generic analyses and impact findings from the GEIS and Appendix B.10 In promulgating this license renewal environmental regulatory framework, the NRC recognized that new information may need to be considered, to the extent it materially impacts the GEIS analyses and conclusions.11 Accordingly, the NRC promulgated a further requirement 7

See NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013); Vol. 1, Main Report (ML13106A241) (GEIS or 2013 GEIS); Vol. 2, Public Comments (ML13106A242); and Vol. 3, Appendices (ML13106A244) (2013 GEIS, Vol. 3).

8 See 10 C.F.R. §§ 51.41, 51.45, 51.53(c)(3)(ii).

9 See id. § 51.53(c)(3)(i).

10 See id. § 51.53(a).

11 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Final Rule, 61 Fed. Reg.

28,467, 28,470 (June 5, 1996) (1996 Final Rule) (noting a revised and expanded framework for consideration of significant new information following discussions with the U.S. Environmental Protection Agency and the Council on Environmental Quality after the proposed rule was published).

5 that license renewal ERs must consider any new and significant information (NSI) regarding the environmental impacts of license renewal of which the applicant is aware.12 The NRC Staff draws upon the ER, the GEIS, and any NSI, among other sources of information, to produce a plant-specific Supplemental Environmental Impact Statement (SEIS) for each license renewal application.13 The NRC publishes a draft version of the SEIS for public comment. This provides an opportunity for members of the public to raise information they deem to be NSI for the NRCs review and consideration in preparing the final SEIS.14

2.

GEIS Consideration of Postulated Earthquake Impacts The NRC has long taken the position that its safety assessment of seismic hazards for existing nuclear power plants is a separate and distinct process from license renewal.15 More broadly, [s]eismic conditions are attributes of the geologic environment that are not affected by continued plant operations.16 When new seismic hazard information becomes available, the NRC evaluates the new data and models to determine if any changes to the plant or its licensing basis are needed under the Atomic Energy Act (AEA).17 As a safety matter, such issues are 12 10 C.F.R. § 51.53(c)(3)(iv). See also Regulatory Guide 4.2, Supp. 1, Rev. 1, Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications at 7-8 (June 2013) (ML13067A354). In broad terms, the NSI requirement is rooted in NEPA, which is intended to ensure that agencies consider the significant environmental consequences of their proposed actions. See Balt. Gas & Elec. Co. v. Nat. Res. Def.

Council, Inc., 462 U.S. 87, 97 (1983).

13 See 10 C.F.R. §§ 51.20(a)(1), (b)(2).

14 See 1996 Final Rule, 61 Fed. Reg. at 28,470 ([T]he NRC will review comments on the draft SEIS and determine whether such comments introduce new and significant information not considered in the GEIS analysis.); id. at 28,485 (In both the public scoping process and the public comment process, the Commission will accept comments on all previously analyzed issues and information codified in Table B-1 of appendix B to 10 CFR part 51 and will determine whether these comments provide any information that is new and significant compared with that previously considered in the GEIS. If the comments are determined to provide new and significant information bearing on the previous analysis in the GEIS, these comments will be considered and appropriately factored into the Commissions analysis in the SEIS.).

15 2013 GEIS at 1-21 (the reactor oversight process, which includes seismic safety, remains separate from license renewal).

16 Id. at 1-22.

17 See id. at 1-21.

6 addressed on an ongoing basis as part of the plants CLB, which is beyond the limited scope of license renewal under 10 C.F.R. Part 54.18 As the GEIS explains:

The NEPA process focuses on environmental impacts rather than on issues related to safety. Safety issues become important to the environmental review when they could result in environmental impacts, which is why the environmental effects of postulated accidents are considered in the GEIS and in plant-specific supplements to the GEIS. Since NEPA regulations do not provide for a safety review, the license renewal process includes an environmental review that is distinct and separate from the safety review. Since the two reviews are separate, operational safety issues and safety issues related to nuclear power plant aging are considered outside the scope for the environmental review, just as the environmental issues are not considered as part of the safety review.19 The NRCs 2013 update to the GEIS also acknowledged the seismic hazard re-analyses that were ongoing at the time of the updateincluding further consideration of Generic Issue 199, Implications of Updated Probabilistic Seismic Hazard Estimates in Central and Eastern United States on Existing Plants, and various post-Fukushima actions, but noted that all of these efforts were CLB matters [u]nrelated to license renewal.20 Accordingly, for the separate environmental review required for license renewal under NEPA and 10 C.F.R. Part 51, the GEIS considers the environmental consequences of earthquakes under the broader topic of Postulated Accidents.21 The original 1996 GEIS assessed various impacts for two separate issues: Design Basis Accidents and Severe Accidents (i.e., beyond-design-basis accidents).22 The GEIS analyses for both types of accidents 18 See id.

19 Id. at 1-8 (emphasis added).

20 Id. at 1-21.

21 See id. at 4-158.

22 See id.

7 considered both internal accidents and those triggered by external events, such as earthquakes, and included specific conservatisms to account for uncertainty.23 Design Basis Accidents are those that occur within the parameters of the plants defined design basis, which is evaluated during initial licensing and re-evaluated, as necessary, during the life of the plant. The 1996 GEIS generically determined that the impacts of Design Basis Accidents are SMALL, largely based on the licensees obligation to maintain acceptable design and performance criteria throughout the renewal period.24 The NRCs 2013 update to the GEIS also noted that this conclusion is further based on requirements for plants with renewed licenses to implement aging management programs during the license renewal term.25 Notably, there is no requirementin the safety or environmental analysesto assume that the aging management programs, which are the foundation of license renewal, will somehow be ineffective. Design Basis Accidents, therefore, are treated as a Category 1 issue for all plants.

The Severe Accidents issue captures all other types of accidentsi.e., those that are beyond the plants defined design basis. The 1996 GEIS generically concluded that the probability-weighted impacts of Severe Accidents are also SMALL, given the extraordinarily low probability of a severe accident.26 More specifically, the NRC codified its generic conclusion that [t]he probability-weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to groundwater, and societal and economic impacts from severe accidents are small for all plants.27 Notwithstanding this generic impact conclusion, the NRC 23 See id.

24 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Vol. 1, Main Report, at 5-114 (May 1996) (ML040690705) (1996 GEIS).

25 2013 GEIS at S-17.

26 See 1996 GEIS at 5-114 to 5-116.

27 Appendix B, Tbl.B-1 (Severe accidents issue).

8 observed that not all plants had performed site-specific analyses of severe accident mitigation alternatives (SAMAs).28 Accordingly, it also codified a requirement that alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives.29 For plants that have already performed SAMAs, such as North Anna, this is the functional equivalent of a Category 1 issue;30 for all other plants, it is a Category 2 issue.31 Furthermore, all license renewal ERs (regardless of whether this is a Category 1 or 2 issue for a given plant) must consider new information potentially relevant to either the generic impact conclusion or the SAMAs to screen it for significance, consistent with the NSI requirement in 10 C.F.R. § 51.53(c)(3)(iv).32 Notably, when the NRC updated the GEIS in 2013, it performed a substantial re-evaluation of the environmental impacts from externally-initiated Severe Accidents based on new information and analysis techniques.33 As part of this re-evaluation, the NRC considered various analyses of accident risks from seismic events (expressed in quantitative terms of core damage frequency (CDF)).34 Notably, the NRC considered the results of the Individual Plant Examination: External Events (IPEEE) program documented in NUREG-1742.35 By way of 28 1996 GEIS at 5-115 to 5-116.

29 Appendix B, Tbl.B-1 (Severe accidents issue).

30 10 C.F.R. § 51.53(c)(3)(ii)(L) excuses plants that have already performed SAMAs from the need to do so again. The Commission has explained that this renders the issue the functional equivalent of a Category 1 issue for such plants. Exelon Generation Co., LLC (Limerick Generating Station, Units 1 & 2), CLI-13-7, 78 NRC 199, 203 (2013) (citation omitted). See also GEIS, Supp. 7, Re: North Anna Power Station, Units 1 and 2, Final Report § 5.2 (Nov. 2002) (ML023380542) (addressing SAMAs for North Anna as part of the plants initial license renewal).

31 Appendix B, Tbl.B-1 (Severe accidents issue).

32 The NRC has approved specific guidance for the SLR NSI review for SAMAs. See NEI-17-04, Model SLR New and Significant Assessment Approach for SAMA, Rev. 1 (Aug. 2019) (ML19316C718) (NEI 17-04);

Letter from A. Bradford, NRC, to C. Earls, NEI, Interim Endorsement of NEI 17-04, Model SLR New and Significant Assessment Approach for SAMA, Revision 1 (Dec. 11, 2019) (ML19323E740).

33 See 2013 GEIS, Vol. 3, App. E at E-16 to E-24.

34 Id. at E-16.

35 Id.

9 background, the IPEEE program required all operating plants to assess severe accidents initiated by external events.36 The GEIS analyzes the IPEEE results and other quantitative data and notes that the largest group of reported seismic CDFs [from the IPEEE] were in the range of 1 x 10-5 to 1 x 10-4.37 The GEIS further explains that the CDFs considered in this re-analysis are comparable to those from accidents initiated by internal events but lower than the CDFs that formed the basis for the 1996 GEIS.38 Accordingly, the NRC reaffirmed its conclusion from the 1996 GEIS that the probability-weighted impacts of Severe Accidents are SMALL.

3.

ER Consideration of Postulated Earthquake Impacts Consistent with the NRCs regulatory regime discussed in Sections II.B.1. and II.B.2.,

above, Applicants ER fully complies with 10 C.F.R. Part 51 and considers the full spectrum of environmental impacts from postulated earthquake-related accidentsboth design-basis and beyond-design-basisvia a comprehensive analysis that consists of both generic analyses from the GEIS and additional evaluations performed by the Applicants. The analysis consists of three primary components, as described below.

First, although 10 C.F.R. § 51.53(c)(3)(i) provides that license renewal ERs need not include analyses of Category 1 issues, Applicants nevertheless incorporated by reference such analyses from the GEIS into their ER. As relevant here, that includes the analyses and conclusions from the GEIS and Appendix B as to the Design Basis Accidents issue and the Severe Accidents issue.39 36 Id.

37 Id. at E-17.

38 Id. at E-24.

39 See ER at E-4-84 to E-4-87.

10 Second, Applicants undertook a comprehensive NSI review related to both of these issues. The process for this review is explained in detail in ER Section E5.40 More specifically as to the Severe Accidents issue, the ER explains as follows:

The assessment process for new and significant information related to the

[impact] conclusion included (1) interviews with subject matter experts on the validity of the conclusions 2013 GEIS as they relate to NAPS; and (2) review of documents related to predicted impacts of severe accidents at NAPS. Consideration was given to developments in plant operation and accident analysis that could have changed the assumptions made concerning severe accident consequences after SAMAs were previously evaluated by the NRC for NAPS during initial license renewal. Developments in the following areas included:

New internal events information External events New source term information Power uprates Higher fuel burnup Other considerations including population increase and risk-beneficial plant changes implemented in response to recommendations from the Fukushima Daiichi Near Term Task Force.

No new and significant information was identified. Core damage frequency (CDF) from internal events has followed a decreasing trend at both NAPS units since the previous SAMA analysis was performed. Physical changes in the plant (e.g., changes in the RCP seal design) have significantly reduced risk in all aspects of the PRA. Also, changes have been implemented at the site in response to Fukushima Daiichi Near Term Task Force recommendations and other plant-specific programs that are risk-beneficial but not all are credited in NAPS PRA models. Therefore, the NRC conclusion in the 2013 GEIS that the probability-weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to groundwater, and societal and economic impacts from severe accidents are small is considered appropriate for the NAPS SLR, is incorporated herein by reference, and no further analysis is needed.41 40 See id. at E-5-1 to E-5-4.

41 Id. at E-4-87 (citations omitted).

11 Finally, because Applicants performed a SAMA analysis as part of North Annas initial license renewal, they undertook a comprehensive analysis, consistent with NRC-approved guidance in NEI 17-04, to determine whether any NSI relevant to the original SAMA analysis for North Anna exists.42 To determine the level of significance of new information, Applicants used a probabilistic risk assessment (PRA) model reflecting the most up-to-date understanding of plant risk at the time of analysis, including a state-of-the-art seismic PRA

[(SPRA)] which takes into account the [Mineral Earthquake].43 This robust analysis, which is described across several pages of the ER, did not identify any NSI relevant to the original SAMA analysis for North Anna.44 Collectively, these analyses consider the full spectrum of potential impacts of postulated earthquake-related accidents, both design-basis and beyond-design-basis, to the full extent required by Part 51.

C.

SLR Safety Review Under 10 C.F.R. Part 54 The NRCs license renewal regulations at 10 C.F.R. Part 54 govern the health and safety matters that must be considered in a license renewal proceeding. The Commission has limited this safety review to the management of aging of certain systems, structures and components, and the review of time-limited aging evaluations.45 The Commission limited the scope of license renewal in this manner because it determined that re-assessments of CLB safety issues routinely monitored and assessed by ongoing agency oversight would be unnecessary and wasteful.46 42 See id. at E-4-85 to E-4-88.

43 See id. at E-4-89. See also infra,Section II.D.2. (describing the SPRA).

44 See id. at E-4-92.

45 10 C.F.R. §§ 54.21, 54.29(a); see also Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 7-8 (2001); Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-26, 56 NRC 358, 363 (2002).

46 Turkey Point, CLI-01-17, 54 NRC at 7.

12 Thus, license renewal does not focus on operational safety issues, because these issues are effectively addressed and maintained by ongoing agency oversight, review, and enforcement.47 In sum, CLB [i]ssues... which already are the focus of ongoing regulatory processes - do not come within the NRCs safety review at the license renewal stage.48 The NRC has issued guidance specific to SLR applications, including NUREG-2192, Standard Review Plan for Review of Subsequent License Renewal Applications for Nuclear Power Plants (SRP-SLR) and NUREG-2191, Generic Aging Lessons Learned for Subsequent License Renewal (GALL-SLR) Report (GALL-SLR Report). The GALL-SLR Report was developed partly as a result of the Commissions direction in response to SECY 0016,49 which identified certain technical areas for which the Staff had recommended further consideration, including issues discussed in a five-volume report titled Expanded Materials Degradation Assessment (EMDA).50 The GALL-SLR Report explicitly considered those issues.51 Notably, the NRC has concluded that the use of aging management programs (AMPs) consistent with those described in the GALL-SLR Report provides reasonable assurance that the effects of aging will be adequately managed during the period of extended operation.52 47 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004) (citation omitted).

48 Turkey Point, CLI-01-17, 54 NRC at 10 (quoting 56 Fed. Reg. 64,943, 64,945 (Dec. 13, 1991)).

49 See Memorandum from M. Satorius, EDO, to NRC Commissioners, SECY-14-0016 - Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal (Jan. 31, 2014) (ML14050A306) (SECY-14-0016).

50 See NUREG/CR-7153, Expanded Materials Degradation Assessment (EMDA) (Oct. 2014), available at https://www.nrc.gov/reading-rm/doc-collections/nuregs/contract/cr7153/index.html.

51 See NUREG-2191, Generic Aging Lessons Learned for Subsequent License Renewal (GALL-SLR) Report, Vols. 1 & 2 at xxvii (July 2017) (ML17187A031 and ML17187A204).

52 See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 468 (2008) (the license renewal applicants use of an aging management program identified in the GALL Report constitutes reasonable assurance that it will manage the targeted aging effect during the renewal period).

13 D.

CLB Seismic Issues Governed by 10 C.F.R. Part 50 As noted above, the NRC has long considered its assessment of seismic hazards for existing nuclear power plants to be a CLB issue governed by Part 50separate and distinct from both license renewal under Part 54, and environmental reviews under Part 51. Nevertheless, because Petitioners raise these issues in their Petition, a brief recitation of the relevant facts is provided below.

1.

Mineral Earthquake The Magnitude 5.8 Mineral Earthquake occurred on August 23, 2011, with an epicenter approximately 11 miles from North Anna, while both units were operating at 100% power.53 The Mineral Earthquake exceeded the spectral and peak ground accelerations for the Operating Basis Earthquake (OBE) and Design Basis Earthquake (DBE) for North Anna at certain frequencies and the station experienced a loss of offsite power.54 Nevertheless, required safety systems in the plant responded as expected, shutting down the plant automatically, and remained functionally undamaged and capable of performing their intended design functions during and following the event.55 The NRCs regulatory framework governing plant safety fully acknowledges the possibility that a plant may experience an earthquake that exceeds the OBE. Namely, 10 C.F.R. Part 100, Appendix A, paragraph V(a)(2), specifies that, if this happens, the plant must shutdown and, prior to resuming operations, the licensee must demonstrate that no functional damage has occurred to those features necessary for continued operation without undue risk to the health and 53 See Letter from E. S. Grecheck, Dominion, to NRC Document Control Desk, Virginia Electric and Power Company (Dominion), North Anna Power Station Units 1 and 2, North Anna Independent Spent Fuel Storage Installation, Summary Report of August 23, 2011 Earthquake Response and Restart Readiness Determination Plan, at 1 (Sept. 17, 2011) (ML11262A151).

54 See id.

55 Id.

14 safety of the public. The NRC also provides specific guidance discussing the restart of a nuclear power plant shut down by a seismic event.56 Accordingly, the NRC issued a Confirmatory Action Letter related to the plants readiness to restart (Restart CAL).57 After months of comprehensive inspections and analyses, the NRC in November 2011, determined that the requisite criteria had been satisfied and the plant could be restarted safely.58 In addition, Applicants committed to perform various long-term evaluations, characterizations, and procedural changes, and these actions were captured in a separate Confirmatory Action Letter (Long-Term Action CAL).59 Notably, as part of this effort, Applicants implemented a seismic margin management program (SMMP) to ensure adequate seismic margins60 are maintained at the plant.61 As part of the SMMP, Applicants revised the design control process for North Anna Units 1 and 2 to require explicit evaluation of plant modifications[,] including seismic qualification of new and replacement equipment for the 56 The relevant guidance at the time of the Mineral Earthquake was Regulatory Guide 1.167, Restart of a Nuclear Power Plant Shut Down by a Seismic Event (Mar. 1997) (ML003740093); that guidance has since been withdrawn and consolidated into Regulatory Guide 1.166, Pre-Earthquake Planning, Shutdown, and Restart of a Nuclear Power Plant Following an Earthquake (Rev. 1, Feb. 2020) (ML19266A616). See Restart of a Nuclear Power Plant Shut Down by an Earthquake, 85 Fed. Reg. 10,198, 10,198 (Feb. 21, 2020).

57 See Letter from V. McCree, NRC, to D. Heacock, Dominion, CAL 2-2011-001; Confirmatory Action Letter -

North Anna Power Station Unit Nos. 1 and 2, Commitments to Address Exceeding Design Bases Seismic Event (TAC Nos. ME7050 and ME7051) (Sept. 30, 2011) (ML11273A078) (Restart CAL).

58 See Letter from E. Leeds, NRC, to D. Heacock, Dominion, North Anna Power Station, Unit Nos. 1 and 2 -

Technical Evaluation of Restart Readiness Determination Plan (TAC Nos. ME7254 and ME7255), at 2 (Nov. 11, 2011) (ML11308B405) (Restart CAL Closeout).

59 See CAL No. NRR-2011-002, Letter from E. Leeds, NRC, to D. Heacock, Dominion, Confirmatory Action Letter Regarding North Anna Power Station, Unit Nos. 1 and 2, Long-Term Commitments to Address Exceeding Design Bases Seismic Event (TAC Nos. ME7254 and ME7255) (Nov. 11, 2011) (ML11311A201)

(Long-Term Action CAL).

60 In simplified terms, seismic margin refers to the capacity to withstand an earthquake similar to the Mineral Earthquake.

61 See Letter from D. Heacock, Dominion, to NRC Document Control Desk, Virginia Electric and Power Company, North Anna Power Station Units 1 and 2, Response to March 12, 2012 Information Request, Seismic Hazard and Screening Report (CEUS Sites) for Recommendation 2.1, Attach. at 37 (Mar. 31, 2014)

(ML14092A416).

15 effects of the August 23, 2011 earthquake.62 The NRC confirmed that all of these long-term actions were acceptably completed and closed the Long-Term Action CAL in December 2015.63 To the extent relevant, these efforts were incorporated into the Updated Final Safety Analysis Report and will continue into the SLR period.64 The Restart and Long-Term Action CAL closeout letters contain detailed chronologies of the extensive analyses and other actions taken in response to the Mineral Earthquake and are not repeated here.65

2.

Post-Fukushima Seismic Re-Evaluations Following the March 2011 Fukushima Dai-ichi nuclear accident in Japan, the NRC issued orders requiring nuclear power plants to take preventative measures to help mitigate against a similar beyond-design-basis event in the United States.66 It also issued a Request for Information under 10 C.F.R. § 50.54(f) to licensees, requiring them to, among other things, reevaluate the seismic hazards at their sites using updated NRC requirements and perform seismic walkdowns to verify compliance with the plants CLB.67 As part of this process, Applicants developed an SPRA for North Anna, which is summarized as follows:

The SPRA effort included performing a probabilistic seismic hazard analysis (PSHA) to develop seismic hazard and response spectra at the plant using the state-of-the-art seismic source model and attenuation equations; 62 Id.

63 See CAL No. NRR-2011-002, Letter from W. Dean, NRC, to D. Heacock, Dominion, Closure of Confirmatory Action Letter Regarding North Anna Power Station, Unit Nos. 1 and 2 (CAC Nos. MF1807 and MF1808), Encl. 1 at 2 (Dec. 24, 2015) (ML15015A575) (Long-Term Action CAL Closeout).

64 See id., Encl. 1 at 3.

65 See generally Restart CAL Closeout; Long-Term Action CAL Closeout.

66 See Letter from R. Bernardo, NRC, to D. Stoddard, Dominion, North Anna Power Station, Units 1 and 2 -

Documentation of the Completion of Required Actions Taken in Response to the Lessons Learned from the Fukushima Dai-ichi Accident, at 3-5 (June 9, 2020) (ML20139A077) (Fukushima Closeout Letter).

67 See id. at 6. See also NUREG-2122, Glossary of Risk-Related Terms in Support of Risk-Informed Decisionmaking at 4-50 (Nov. 2013) (ML13311A353) (A seismic hazard analysis expresses the seismic hazard in terms of the frequency of exceedance for selected ground motion parameters during a specified time interval. The analysis involves identification of earthquake sources, evaluation of the regional earthquake history, and an estimate of the intensity of the earthquake-induced ground motion at the site. As stated in Regulatory Guide 1.200 (Ref. 86): at most sites, the objective is to estimate the probability or frequency of exceeding different levels of vibratory ground motion.).

16 site response analyses; dynamic analyses of structures; fragility analyses of structures, systems and components (SSCs); developing a logic model; and performing risk quantification. Each element of the SPRA effort underwent an in-process independent expert review and a final peer review by a team of experts. The comments and suggestions of the reviewers were addressed and incorporated into the SPRA as applicable.

Sensitivity studies were performed to identify critical assumptions, test the sensitivity to quantification parameters and the seismic hazard, and identify potential areas to consider for the reduction of seismic risk. These sensitivity studies demonstrated that the model results are robust with respect to the modeling and assumptions used.68 In simple terms, SPRA is the nuclear industrys state-of-the-art approach to understand and quantify seismic risks at a nuclear facility. The North Anna SPRA demonstrates that the mean seismic CDF for North Anna is 6.3 x 10-5.69 Notably, the North Anna SPRA development process explicitly considered the Mineral Earthquake.70 In particular, an expert panel undertook a specific, peer-reviewed analysis related to the Mineral Earthquake to confirm that the basic data and interpretations used in the regional-scale seismic characterization models (used to determine the seismic hazard input to the SPRA) remained valid, including systematic data collection and evaluation of geological, seismological, and geophysical data.71 The NRC reviewed Applicants SPRA and ultimately concluded that no further response or regulatory actions (e.g., modifications to the plants seismic design basis) were needed for adequate protection or compliance with existing requirements.72 A more fulsome history of Applicants 68 Letter from D. Stoddard, Dominion, to NRC Document Control Desk, Virginia Electric and Power Company, North Anna Power Station Units 1 and 2, Response to March 12, 2012 Information Request, Seismic Probabilistic Risk Assessment for Recommendation 2.1, Attach. at 3 (Mar. 28, 2018) (ML18093A445)

(Dominion SPRA Letter).

69 Letter from L. Lund, NRC, to D. Stoddard, Dominion, North Anna Power Station, Units 1 and 2 - Staff Review of Seismic Probabilistic Risk Assessment Associated with Reevaluated Seismic Hazard Implementation of the Near-Term Task Force Recommendation 2.1: Seismic (EPID No. L-2018-JLD-0003),

Encl. 1 at 34 (Apr. 25, 2019) (ML19052A522) (NRC SPRA Review Letter).

70 See Dominion SPRA Letter, Attach. at 82-84.

71 Id.

72 See NRC SPRA Review Letter at 2.

17 and the NRCs extensive actions, entailing thousands of pages of technical analyses performed over the course of the past decade, are detailed in the North Anna Fukushima closeout letter.73 III.

THE BOARD SHOULD DENY THE WAIVER REQUEST BECAUSE IT FAILS TO SATISFY THE COMMISSIONS WAIVER STANDARD The NRCs regulations at 10 C.F.R. § 2.335(a) include a general prohibition that no rule or regulation of the Commission, or any provision thereof... is subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding subject to this part.74 However, Section 2.335(b) also provides that [a] participant to an adjudicatory proceeding subject to this part may petition that the application of a specified Commission rule or regulation or any provision thereof... be waived or an exception be made for the particular proceeding.75 As detailed in Section III.A., below, the Commissions threshold for granting such waivers is stringent by design.76 Petitioners acknowledge that a waiver is necessary for admission of their Proposed Contention.77 Accordingly, they request a waiver of three specified regulations10 C.F.R. §§ 51.53(c)(3)(i), 51.71(d), and 51.95(c)(1).78 In sum, the first regulation excuses a license renewal applicant from the need to consider Category 1 issues in its ER; and the other two regulations require the NRC Staff to consider the generic Category 1 analyses and conclusions from the GEIS (as codified in Appendix B), among other sources of information, in preparing the draft and final SEIS. As explained below, Petitioners have not satisfied the Commissions stringent 73 See Fukushima Closeout Letter.

74 10 C.F.R. § 2.335(a).

75 Id. § 2.335(b) (emphasis added).

76 Limerick, CLI-13-7, 78 NRC at 207.

77 Petition at 30.

78 See id. Notably, the Waiver Request does not include Appendix B among the specified regulations for which Petitioners are seeking a waiver. As explained further in Section IV.B., below, the Proposed Contention is inadmissible absent a waiver of Appendix B.

18 requirements to justify a waiver of these regulations and their Waiver Request must be rejected as a matter of law.

A.

Legal Standard for Waivers As the Commission has explained, Section 2.335(b) provides only a limited exception to the NRCs general prohibition against challenges to NRC rules or regulations in adjudicatory proceedings.79 As a general matter, when the Commission decides to carv[e] out issues from adjudication, it does so carefully and deliberately pursuant to its broad statutory discretion to transact its business broadly, through rulemaking, or case-by-case, through adjudication.80 Thus, to challenge the generic application of a rule, a petitioner seeking waiver must show that there is something extraordinary about the subject matter of the proceeding such that the rule should not apply.81 More specifically, to litigate an issue that otherwise would be outside the scope of an adjudication, a petitioner must show that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or a provision of it) would not serve the purposes for which... [it] was adopted.82 The waiver petitioner must include an affidavit that states with particularity the special circumstances that justify waiver of the rule.83 79 Limerick, CLI-13-7, 78 NRC at 206.

80 Id. at 207 (citations omitted).

81 Id. (citations omitted).

82 Id. at 206-07 (quoting 10 C.F.R. § 2.335(b)).

83 Id. at 207 (quoting 10 C.F.R. § 2.335(b)).

19 In 2005, in the Millstone license renewal proceeding, the Commission set forth a four-part test that it has long used in ruling on waiver petitions.84 That test requires the petitioner to show that:

(1)

The rules strict application would not serve the purposes for which it was adopted; (2)

Special circumstances exist that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived; (3)

Those circumstances are unique to the facility rather than common to a large class of facilities; and (4)

Waiver of the regulation is necessary to reach a significant safety (or environmental) problem.85 All four Millstone elements must be met to justify a rule waiver.86 The Commission has noted that this purposefully places a substantial burden on waiver petitioners because the agency will not set aside a duly-promulgated regulation lightly, and because the Commissions longstanding view is that in general, challenges to regulations are best evaluated through generic means.87 In the context of a Part 51 waiver, the Commission has held that a petitioner must present specific, fact-based claims... not mere allegations.88 In other words, a waiver petition is not an opportunity to embark upon a fishing expedition; rather, waiver petitioners must make the requisite presentation upfront.

84 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 559-60 (2005).

85 See id.

86 See Limerick, CLI-13-7, 78 NRC at 208.

87 Id. (citation omitted).

88 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), CLI-20-15 (slip op. at 22) n.111 (Dec. 17, 2020) (quoting Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 134 (2004)).

20 B.

Fundamental Factual Errors and Misconceptions In the Petition As a preliminary matter, there are several fundamental factual errors and misconceptions in both the Waiver Request and the Hearing Request, and accordingly afflict many of the arguments presented throughout the Petition. These defects are representative of the reasons the Petition should be summarily rejected.

1.

Part 51 NSI Provisions Ensure That NSI Is Considered to the Full Extent Required by NEPA Petitioners argue that the NRCs regulations bar consideration89 of the Mineral Earthquake in the environmental review for this proceeding. Petitioners assertion that Part 51 somehow excuses or prohibits the Applicants, the NRC Staff, or both, from considering the potential environmental implications of the Mineral Earthquake to the full extent required by NEPA is factually and legally incorrect.

As noted above in Section II.B.1, the GEIS analyses are not static. The Commission squarely recognized the possibility that circumstances could arise that may materially alter the generic analyses and codified impact conclusions in the GEIS and Appendix B. Accordingly, it also codified the NSI mechanism to require applicants90 and the NRC Staff91 to consider new information (and determine whether it is significant), and also provided an opportunity for the public to raise potential NSIwhich the Staff must consider.92 Far from barring consideration of new information material to NEPA compliance, the NRCs existing framework explicitly requires it.

89 Petition at 30.

90 See 10 C.F.R. § 51.53(c)(3)(iv).

91 See id. §§ 51.95(c)(3)-(4).

92 See 1996 Final Rule, 61 Fed. Reg. at 28,470, 28,485.

21 To the extent Petitioners repeated assertion that NRC regulations bar consideration93 of the Mineral Earthquake is intended as an acknowledgement that Part 51 bars adjudicatory challenges to the Applicants or Staffs evaluation of potential NSI without a waiver, that assertion is correct. However, the discussion in Sections III.B.2 and III.C.-E., below, explains that Petitioners have not identified, with requisite specificity, any circumstances necessitating an opportunity to do so.

2.

The GEIS Evaluates the Potential Impacts of Postulated Beyond-Design-Basis Earthquakes Petitioners claim the NRCs analysis of earthquake impacts, and its conclusion that such impacts are SMALL, relies on an assumption that reactors will only operate within their design bases. Indeed, Petitioners claim this is the sole basis for the NRCs evaluation of earthquake impacts.94 Importantly, this assertion undergirds Petitioners overarching claim throughout the Petitionnamely that, because North Anna experienced a seismic event beyond its design basis, the generic GEIS evaluation of earthquake impacts has been rendered invalid.95 But, Petitioners argument is plainly incorrect because it does not acknowledge, as explained in Section II.B.2, above, that the GEIS also analyzes beyond-design-basis earthquakes.

As the Commission has explained, and contrary to Petitioners claim, its conclusion that 93 Petition at 30.

94 Id. at 35 (The sole basis for the conclusion of insignificant impacts is the NRCs assumption that under its Atomic Energy Act-based licensing scheme, nuclear reactors will operate within their design bases.) (citations omitted).

95 See id. at 34-35 ([Applicants] and the NRC lack any rational basis to rely on the 1996 License Renewal GEIS conclusion that earthquake-related accident impacts during [the SLR] term for North Anna will be small because they are encompassed by the reactors design basis.); id at 33 (claiming the occurrence of a beyond design basis earthquake fundamentally disproved the assumption that original seismic design bases are bounding, and raises an issue that has not been considered in any previous site-specific or generic environmental study.).

22 earthquake-related environmental impacts are SMALL is not solely based on the plant design basis; rather it:

reflects the Commissions generic determination that the impacts from postulated accidents that might occur during the period of extended operation are small, because nuclear plants are designed and operated to successfully withstand design basis accidents and the probability of severe accidents is so low.96 In other words, the NRCs analyses and conclusions regarding earthquake impacts span two GEIS issues, Design Basis Accidents and Severe Accidents; and the GEIS reaches SMALL impact conclusions for both, but on separate grounds. As to the latter issue, the GEIS fully recognizes the possibility that a plant could experience external events, such as earthquakes, that exceed its design basis; and the GEIS explicitly evaluates the environmental impacts of that scenario for all plants on a generic basis.

C.

Petitioners Fail to Identify Any Special Circumstances Specific to North Anna That Justify a Waiver The entirety of Petitioners special circumstances argument is as follows:

This Waiver Petition raises special circumstances that were not previously considered, because no previous environmental impact statement has considered the environmental significance of the actual occurrence of a beyond-design basis earthquake at North Anna Units 1 and 2. Simply put, the NRC has prepared no EIS or GEIS relevant to North Anna Units 1 and 2 since before 2011, when the earthquake occurred.97 To the extent Petitioners are claiming that the GEIS does not evaluate beyond-design-basis earthquakes at all, that claim is plainly incorrect for the reasons explained in Section III.B.2, above. The second Millstone element requires demonstration of a circumstance that was not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to 96 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-15-6, 81 NRC 340, 372 (2015) (emphasis added).

97 Petition at 34.

23 the rule sought to be waived.98 The occurrence of a beyond-design-basis earthquake is not such a circumstance; thus, Petitioners argument fails to satisfy Millstone.

Alternatively, to the extent Petitioners theory of special circumstances is that the beyond-design-basis Mineral Earthquake was not explicitly evaluated in the GEIS, they offer zero explanation as to why that somehow would be required, or would constitute special circumstances. Petitioners do not engage withor even acknowledgethe relevant analyses in either the 1996 GEIS or the 2013 GEIS related to beyond-design-basis earthquakes. For example, the 2013 GEIS considered the probability-weighted consequences of accidents from beyond-design-basis earthquakes by examining seismic CDFs in the range of 1 x 10-5 to 1 x 10-4.99 Nor do they acknowledge or challenge the fact that the North Anna seismic CDF (as calculated by the SPRA, which accounts for the Mineral Earthquake) remains squarely within the range considered in the GEIS.100 Overall, Petitioners disregard the relevant analyses and offer zero explanation for the proposition that the GEIS analyses are in any way challenged by the occurrence of the Mineral Earthquake or need to explicitly evaluate the Mineral Earthquake.

A Commission ruling in the Diablo Canyon license renewal proceeding considered and rejected a waiver request presenting a very similar claim. The petitioners in that proceeding asserted that special seismic circumstances, including the recent discovery of a seismic fault near the plant, had not been considered in the 1996 GEIS.101 The Commission explained that the absence of an analysis of that specific information in the GEIS does not, without more, suggest 98 Millstone, CLI-05-24, 62 NRC at 559-60.

99 See 2013 GEIS, Vol. 3, App. E at E-17.

100 See NRC SPRA Review Letter, Encl. 1 at 34 (noting North Annas mean seismic CDF is 6.3 x 10-5).

101 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-11-11, 74 NRC 427, 451 n.133 (2011).

24 a deficiency in the GEIS.102 So too here. Petitioners fail to provide anything more. They provide no expert support and fail to engage with the relevant analyses.

Petitioners clearly have not identified any special circumstances that were not considered explicitly or through bounding analyses in the GEIS or the Part 51 rulemaking more broadly. Nor have they demonstrated that such (nonexistent) circumstances are unique to North Anna, rather than common to a large class of facilities.103 Accordingly, the Waiver Request should be denied for failing to satisfy the second and third Millstone elements.

D.

Petitioners Fail to Identify Any Regulation That, If Applied Here, Would Defeat the Commissions Purpose For Enacting It Petitioners argue that strict application of 10 C.F.R. §§ 51.53(c)(3)(i), 51.71(d), and 51.95(c)(1) would defeat the purposes for which these regulations were adopted. Petitioners quote from the 1996 statement of considerations for the Part 51 rulemaking and conclude that its purposes included increasing efficiency, saving costs, and improving the quality of both generic and site-specific environmental analyses.104 However, Petitioners fail to articulate a reasoned explanation as to how application of these regulations, here, would undermine this purpose.

102 Id.

103 Because Petitioners have not demonstrated special circumstances, as required by Millstone element two, they necessarily cannot demonstrate that such non-existent circumstances are specific to North Anna, as required by Millstone element three. Nevertheless, Applicants briefly address those arguments here. First, to the extent Petitioners repeat their claim that the sole basis for the GEIS conclusion has been irrefutably disprove[n],

Petition at 34, Applicants have already refuted that claim in Section III.B.2. Second, Petitioners claim that the seismic design of North Anna Units 1 and 2 is based on an assessment of an earthquake whose impacts are unique to the North Anna site. Id. To the extent Petitioners are highlighting the fact that seismic analyses are performed on a site-specific basis, there is no disagreement on that issue. Seismic analyses for all sites are site-specific. That is a circumstance common to a large class of facilities, not something unique to North Anna. Alternatively, to the extent Petitioners are claiming that North Annas seismic design basis relies on an earthquake specific to North Anna, its assertion is unsupportedand incorrect. Seismic analysis models at North Anna (and other plants) employ a regional-scale catalog of earthquakes. See, e.g., Dominion SPRA Letter, Attach. at 84.

104 Petition at 32.

25 The federal courts have approved the NRCs legitimate efficiency105 goal and acknowledged that requiring such issues to be analyzed afresh with each application would be counterproductive to administrative efficiency and consistency of decision.106 Here, Petitioners argue that application of these regulations would defeat the Commissions purposes by barring consideration of the Mineral Earthquake in the context of the SLR environmental review.107 But, as noted in Section II.B.1., above, that claim is factually and legally incorrect given the NSI requirements in Part 51.

Petitioners only further argument in this section is that the Mineral Earthquake constitutes NSI and should be used to inform the consideration of mitigation alternatives.108 However, Petitioners make no attempt to explain how this argument relates to any aspect of Millstone element 1. Moreover, this argument suffers from the same fundamental flaws as Petitioners special circumstances argument. More specifically, regardless of whether Petitioners are purporting to claim that the Mineral Earthquake must be considered NSI because the GEIS does not evaluate beyond-design-earthquakes, or because the GEIS analysis allegedly is not bounding, both claims are unsupported and counterfactual, as explained in Section III.C.,

above. Additionally, this argument fails to acknowledge that the ERs consideration of potential 105 As the Commission noted in 2013, the purpose of using generic analyses of Category 1 issues was to improve the efficiency of the license renewal process. Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, Final Rule, 78 Fed. Reg. 37,282, 37,314 (June 20, 2013).

106 The First Circuit has observed that the preparation of an EIS poses a significant task for the NRC, and noted that the NRC relies on generic analyses of Category 1 issues in order to streamline the license renewal process and dispense with the need to analyze broadly-applicable issues afresh with each license renewal application. Massachusetts v. United States, 522 F.3d 115, 119-120 (1st Cir. 2008). See also id. at 127 (quoting Balt. Gas & Elec. Co., 462 U.S. at 101) (noting Supreme Court precedent for the same premise).

107 Petition at 33.

108 See id. at 33-34.

26 NSI as to SAMAs employs the North Anna SPRAwhich accounts for the Mineral Earthquake.109 Petitioners fail to explain what more must be done.

Ultimately, consideration of the Mineral Earthquake within the existing Part 51 framework, as Applicants have done here, is in complete harmony with the Commissions stated purpose in adopting these regulations. Indeed, granting the requested waiver would actually undermine the agencys efficiency goal by requiring unnecessary re-analysis of generic issues afresh in this proceeding. That is exactly the inefficient result the Commission has sought to avoid. And Petitioners have not demonstrated why such a result is warranted here. Accordingly, the first Millstone element remains unsatisfied.

E.

Petitioners Fail to Identify a Significant Environmental Problem Petitioners theory that a waiver is necessary to address a significant environmental problem is based on their erroneous claim that the sole basis for the NRCs SMALL impact conclusion for potential environmental impacts from earthquakes is the NRCs assumption that under its Atomic Energy Act-based licensing scheme, nuclear reactors will operate within their design bases.110 As noted above, Petitioners assertion ignores the NRCs separate and fulsome evaluation of beyond-design-basis accidents, and its separate conclusion (which Petitioners neither acknowledge nor challenge) that the impacts from Severe Accidents are still SMALL, given their low likelihood.111 Petitioners discussion of Millstone element 4 also meanders into various CLB issues for the proposition that the NRCs safety review is a very significant component of the NRCs 109 ER at E-4-89.

110 Petition at 35 (citing 1996 GEIS at xliii-xliv) (emphasis added).

111 See supra,Section III.B.2

27 environmental analysis.112 Although the NRCs generic evaluation of Design Basis Accidents in the GEIS obviously considers plant design bases, Petitioners do not otherwise explain how the Mineral Earthquakea beyond-design-basis eventis relevant to the Design Basis Accidents issue, which clearly does not purport to analyze such events. Furthermore, Petitioners fail to articulate any connection between CLB matters and the Severe Accidents issue. Contrary to Petitioners apparent belief otherwise, the GEIS evaluation of Severe Accidents does not rely on an assumption that a plants design basis will bound all of the external events a plant may experience. Quite the oppositethe GEIS affirmatively assumes beyond-design-basis accidents could occurand it fully evaluates that possibility.

Overall, Petitioners argue that [t]he NRC must evaluate the probability... as well as the environmental consequences of beyond-design-basis earthquakes.113 But that is precisely what the NRC did in the GEIS.114 Petitioners simply disregard the relevant analysis, and certainly do not engage with it or articulate any specific, fact-based claims115 as to how it allegedly is inadequate,116 or somehow identifies a significant environmental problem.

112 Petition at 35. For example, Petitioners conclude (without basis) that the North Anna seismic design basis is inadequa[te]. Id. at 37. Notwithstanding this conclusory assertion, Applicants and the NRCs opposite conclusion is supported by thousands of pages of detailed technical analyses performed over the course of the past decade. See, e.g., NRC SPRA Review Letter at 2 (concluding that North Annas existing design basis requires no modification and continues to provide adequate protection and comply with all existing requirements); see also generally supra,Section II.D. Petitioners neither acknowledge nor dispute any specific aspect of the robust technical basis for this conclusion.

113 Petition at 37.

114 See, e.g., 2013 GEIS, Vol. 3, App. E.

115 WCS Consolidated Interim Storage Facility, CLI-20-15 (slip op. at 22) n.111 (citation omitted).

116 Petitioners also repeat their assertion that the NRC must evaluate the cost-effectiveness of measures to avoid or mitigate severe accidents caused by earthquakes (i.e., SAMAs). Petition at 37. As noted above, such an analysis was undertaken as part of the North Anna initial license renewal. See ER at E-4-87. Furthermore, Applicants considered potential NSI as to SAMAs using the North Anna SPRAwhich accounts for the Mineral Earthquake. See id. at E-4-89. As noted in Section III.D., above, Petitioners fail to articulate, with specificity, and deficiency in this analysis.

28 Ultimately, Petitioners have not satisfied anymuch less, all fourof the Millstone elements. Thus, the Waiver Request should be denied.

IV.

THE BOARD SHOULD DENY THE HEARING REQUEST BECAUSE IT DOES NOT PROPOSE AN ADMISSIBLE CONTENTION Petitioners sole Proposed Contention is stated as follows:

Dominions Environmental Report fails to satisfy NEPA or NRC implementing regulations 10 C.F.R. §§ 51.53(c)(2) and 51.45(a),

because it does not address the environmental impacts of operating North Anna Units 1 and 2 during the extended SLR term under the significant risk of an earthquake that exceeds the design basis for the reactors.117 As a preliminary matter, Petitioners correctly note that their Proposed Contention cannot be admitted absent a waiver.118 Because Petitioners have not satisfied the Commissions stringent waiver requirements, the Proposed Contention is inadmissible on its face. But even if the Waiver Request is granted, the Proposed Contention still falls short of satisfying all six admissibility criteria in 10 C.F.R. § 2.309(f)(1), as detailed in Section IV.C., below. Because Petitioners failed to propose at least one admissible contention, the Hearing Request must be denied.

117 Petition at 13.

118 See id. at 30. Petitioners also challenge the controlling case law regarding the need for a waiver here and purport to incorporate by reference the dissenting opinions in LBP-19-3, CLI-20-3, and CLI-20-11. See Petition at 26-27. Accordingly, Applicants rely on and incorporate by reference: the majority opinions in those cases; all pleadings from the applicants and NRC Staff cited in those opinions; and all pleadings of the United States and intervenor Florida Power & Light Company in the matter of Friends of the Earth v. NRC, Case No.

20-1026, currently pending before the U.S. Court of Appeals for the District of Columbia Circuit. Petitioners claim the latter case pertains to a petition for review of []CLI-20-03. Id. at 27 n.8. But that statement is untrue; the pending petition does not seek review of CLI-20-3, or any other adjudicatory decision of the NRC.

Indeed, that petition was filed well before CLI-20-3 was even issued, and has never been amended.

29 A.

Legal Requirements for Hearing Requests and Petitions to Intervene Under 10 C.F.R. § 2.309(f)(1), a hearing request must set forth with particularity the contentions sought to be raised. In addition, 10 C.F.R. § 2.309(f)(1) states that each contention must:

(i)

Provide a specific statement of the issue of law or fact to be raised or controverted; (ii)

Provide a brief explanation of the basis for the contention; (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, including references to the specific sources and documents that support the petitioners position and upon which the petitioner intends to rely; and (vi)

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

Failure to comply with any one of these six admissibility requirements is grounds for rejecting a proposed contention.119 Indeed, these requirements are strict by design.120 The rules were toughenedin 1989 because in prior years licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation.121 The purpose of the six criteria is to focus litigation on concrete issues and result in a clearer and more focused record for decision.122 The Commission has explained that it should not have to 119 See Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182, 2,221 (Jan. 14, 2004); see also Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

120 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).

121 Id. (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 334 (1999)).

122 Changes to Adjudicatory Process, 69 Fed. Reg. at 2,202; see also Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 61 (2008).

30 expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing.123 The petitioner alone bears the burden to meet the standards of contention admissibility.124 Thus, where a petitioner neglects to provide the requisite support for its contentions, the Board may not cure the deficiency by supplying the information that is lacking or making factual assumptions that favor the petitioner to fill the gap.125 At the most basic level, a contention must articulate the specific legal or regulatory requirement that it claims to be unsatisfied, and explain the basis for that claim because the parties are entitled to be told at the outset, with clarity and precision, what arguments are being advanced and what relief is being sought.126 The Board and the parties cannot be faulted for not having searched for a needle that may be in a haystack.127 A contention that merely states a conclusion, without reasonably explaining why the application is inadequate, cannot provide a basis for the contention.128 A material issue is one that would make a difference in the outcome of the licensing proceeding.129 The petitioner must demonstrate that the subject matter of the contention would impact the grant or denial of a pending license application.130 123 Changes to Adjudicatory Process, 69 Fed. Reg. at 2,202.

124 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 325, 329 (2015)

(stating [t]he proponent of a contention is responsible for formulating the contention and providing the necessary support to satisfy the contention admissibility requirements and it is Petitioners responsibility, not the Boards, to formulate contentions and to provide the necessary information to satisfy the basis requirement for admission) (citation omitted); see also DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2),

CLI-15-18, 82 NRC 135, 149 (2015) (the Board may not substitute its own support for a contention or make arguments for the litigants that were never made by the litigants themselves.) (citation omitted).

125 See id.

126 Kansas Gas & Elec. Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 NRC 559, 576 (1975)

(emphasis added).

127 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-89-3, 29 NRC 234, 241 (1989).

128 See USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006).

129 Oconee, CLI-99-11, 49 NRC at 333-34 (citation omitted).

130 Indian Point, LBP-08-13, 68 NRC at 62 (citation omitted).

31 Furthermore, as noted above, a contention that challenges an NRC rule is outside the scope of the proceeding because, absent a waiver, no rule or regulation of the Commissionis subject to attackin any adjudicatory proceeding.131 With respect to the requirement to provide adequate support, a licensing board should examine documents to confirm that they support the proposed contention(s).132 A petitioners imprecise reading of a document cannot be the basis for a litigable contention.133 Likewise, a contention will be ruled inadmissible if the petitioner has offered no tangible information, no experts, no substantive affidavits, but instead only bare assertions and speculation.134 Equally important, the Commission has stated further that the petitioner must read the pertinent portions of the license application... state the applicants position and the petitioners opposing view, and explain why it disagrees with the applicant.135 If a petitioner believes the license application fails to adequately address a relevant issue, then the petitioner is to explain why the application is deficient.136 A contention that does not directly controvert a position taken by the applicant in the application is subject to dismissal.137 For example, if a petitioner 131 10 C.F.R. § 2.335(a).

132 See Vt. Yankee Nuclear Power Corp. (Vt. Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989),

vacated in part on other grounds and remanded, CLI-90-4, 31 NRC 333 (1990).

133 See Ga. Inst. of Tech. (Ga. Tech Research Reactor, Atlanta, Ga.), LBP-95-6, 41 NRC 281, 300 (1995).

134 Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003) (quoting GPU Nuclear, Inc.

(Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000)).

135 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process; Final Rule, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989); see also Millstone, CLI-01-24, 54 NRC at 358.

136 Procedural Changes in the Hearing Process, 54 Fed. Reg. at 33,170; see also Ariz. Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, & 3), CLI-91-12, 34 NRC 149, 156 (1991).

137 See S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, 71 NRC 1, 21-22 (2010); Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-37, 36 NRC 370, 384 (1992), vacated as moot, CLI-93-10, 37 NRC 192 (1993).

32 submits a contention of omission, but the allegedly missing information is indeed in the license application, then the contention does not raise a genuine dispute.138 B.

The Proposed Contention Is Inadmissible Absent a Waiver of Appendix B The Proposed Contention purports to challenge the ERs consideration of Category 1 issues, which are codified in Appendix B. However, the Commission has squarely held that Appendix B must be waived for a petitioner to challenge Category 1 findings, including claims alleging a failure to consider NSI.139 Petitioners, here, did not request a waiver of Appendix B.140 Instead, they only requested a waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.71(d),

and 51.95(c)(1).141 Accordingly, because the Proposed Contention seeks to challenge Appendix B, and Petitioners lack a waiver to do so, the challenge is impermissible pursuant to 10 C.F.R. § 2.335(a). Therefore, the Proposed Contention also is inadmissible as immaterial and beyond the scope of the proceeding, and for failing to raise a genuine dispute with the ER, contrary to 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi).

C.

The Proposed Contention Is Inadmissible Even If a Waiver is Granted Even if the Board grants a waiver, the Proposed Contention must be rejected as inadmissible on multiple grounds. Petitioners sole contention is that the ER does not satisfy 138 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), LBP-04-15, 60 NRC 81, 95 (2004).

139 See Limerick, CLI-13-7, 78 NRC at 203 (Challenges to Category 1 findings based on new and significant information require a waiver of 10 C.F.R. Part 51, Subpart A, Appendix B, in order to be litigated in a license renewal adjudication.) (citation omitted). See also supra, note 78.

140 Petitioners are represented by experienced nuclear counsel, and thus clearly could have included this regulatory provision in their Waiver Request. But they did not. The Board cannot cure this defect. See Diablo Canyon, CLI-11-11, 74 NRC at 447 n.113 (cautioning licensing Boards against adding additional regulatory provisions to a waiver request sua sponte). And Petitioners cannot amend their Waiver Request via reply pleading. See USEC, Inc. (Am. Centrifuge Plant), CLI-06-9, 63 NRC 433, 439 (2006) (prohibiting new legal arguments in reply pleadings) (citation omitted).

141 See Petition at 30 (Section V., Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.71(d), and 51.95(c)(1));

id. (Pursuant to 10 C.F.R. § 2.335(b), Petitioners request a waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.71(d),

and 51.95(c)(1)....).

33 10 C.F.R. §§ 51.53(c)(2) and 51.45(a) because it does not address the environmental impacts of a possible beyond-design-basis earthquake during the SLR term.142 However, contentions of omission such as this must be rejected as inadmissible if the allegedly-missing information is, in fact, provided in the application.143 That is precisely the case here. The analysis that Petitioners allege to be missing is, in fact, included in the ER. Accordingly, the Proposed Contention lacks the support required by 10 C.F.R. § 2.309(f)(1)(vi), and fails to demonstrate a genuine dispute with the SLRA on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(vi).

Furthermore, even if the Proposed Contention somehow is construed as a challenge to the sufficiency of that (allegedly-missing) analysis, Petitioners assorted claims are variously unsupported, immaterial, and fail to dispute the ER on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(vi)-(vi).

Finally, the Petition contains a series of vague statements and conclusory assertions on the topic of cumulative impacts and documents discussing ongoing studies related to aging management. To the extent these references collectively could be viewed as presenting an additional challenge to the ER, they do not remotely satisfy all six admissibility criteria in 10 C.F.R. § 2.309(f)(1), and likewise should be rejected.

1.

The Proposed Contention Is Inadmissible Because the Allegedly-Omitted Analysis Is Presented in the GEIS and Incorporated by Reference in the ER The crux of the Proposed Contention appears to be Petitioners demonstrably incorrect assertion that the Applicants ER contains no discussion of earthquake or other accident impacts.144 Similar statements are found throughout the Petition, such as one claiming that 142 Id. at 13.

143 See Millstone, LBP-04-15, 60 NRC at 95.

144 Petition at 18.

34 Applicants completely failed to address the impacts of a beyond-design-basis earthquake.145 But elsewhere in the Petition, Petitioners seemingly contradict their own claim, noting that Dominion incorporates by reference all applicable Category 1 findings in [Appendix B],

including accident impacts, as well as its findings regarding beyond-design-basis earthquakes and other accidents.146 Petitioners do not reconcile these contradictory statements. But the parties are entitled to be told at the outset, with clarity and precision, what arguments are being advanced and what relief is being sought.147 The Board and the parties cannot be faulted for not having searched for a needle that may be in a haystack.148 Nevertheless, while not their burden, Applicants have made reasonable efforts to construe these contradictory claims, and considered three possible theories of the contention. As explained below, the Proposed Contention is inadmissible under any or all of these theories.

First, Petitioners claim could be viewed as an implied challenge to Applicants procedural compliance with the requirements for incorporation by reference in 10 C.F.R. § 51.53(a). However, the Petition does not expressly raise this claim.149 Nevertheless, if that is Petitioners theory of the contention, it is inadmissible. Applicants fully complied with the requirements for incorporation by reference in 10 C.F.R. § 51.53(a). Moreover, the Petition is entirely devoid of any support for a claim to the contrary, as required by 10 C.F.R. § 145 Id. at 28.

146 Id. at 18.

147 Wolf Creek, ALAB-279, 1 NRC at 576 (emphasis added).

148 Seabrook, CLI-89-3, 29 NRC at 241.

149 Given that Petitioners and their counsel are well aware that such an argument is possible (because they raised it very recently in a separate SLR proceeding), see Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-20-11 (slip op. at 4-5, 11-13) (Nov. 12, 2020), their decision not to advance such an argument here should be viewed as intentional.

35 2.309(f)(1)(v), and fails to identify any specific defect in the ER, as required by 10 C.F.R. § 2.309(f)(1)(vi). Accordingly, the Proposed Contention would be inadmissible under this theory.

Second, if Petitioners theory is that Applicants incorporation by reference is somehow invalid because 10 C.F.R. § 51.53(c)(3)(i) (which excuses license renewal applicants from the need to include analyses of Category 1 issues in an ER) either is inapplicable to SLR applicants, or is waived in this proceeding, that theory is unsupported. In fact, as the licensing board in the Peach Bottom SLR proceeding recently held,150 and the Commission recently affirmed,151 SLR applicants can still incorporate by reference the GEIS and Part 51 discussions of Category 1 issues regardless of the applicability of 10 C.F.R. § 51.53(c)(3)(i). Accordingly, the Proposed Contention would be inadmissible under this theory as well.

Finally, to the extent the Proposed Contention rests on the faulty premise that the GEIS does not analyze the potential environmental impacts of beyond-design-basis accidents caused by earthquakes, such a claim is unsupported and incorrect. As explained in Section III.B.2, above, the GEIS squarely analyzes this precise topic under the Severe Accidents issue.152 Thus, to the extent Petitioners theory of the Proposed Contention is based on their own misreading of the GEIS, it is inadmissible.153 More importantly, under all three theories of the contention,154 Petitioners claim that the ER does not address the environmental impacts of beyond-design-basis earthquakes is plainly 150 See Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 & 3), LBP-19-5, 89 NRC 483, 501-02 (2019).

151 See Peach Bottom, CLI-20-11 (slip op. at 12-13) (We find no error in the Boards conclusion).

152 See, e.g., 2013 GEIS, Vol. 3, App. E § E.3.2, Impact of Accidents Initiated by External Events.

153 See NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 312 (2012) (noting a petitioners ironclad obligation to review application materials thoroughly) (citation omitted); Ga. Tech Research Reactor, LBP-95-6, 41 NRC at 300 (holding that a petitioners imprecise reading of a document cannot serve to generate an issue suitable for litigation).

154 If Petitioners reply pleading presents a different theory of the Proposed Contention, then it should be rejected as an untimely amendment of a poorly-pled initial contention that failed to satisfy the basis and specificity

36 incorrect, unsupported, and fails to dispute the application on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(v) and (vi), and should be rejected.155

2.

To the Extent the Proposed Contention Is Viewed as a Contention of Sufficiency, It Still Is Inadmissible As Unsupported and for Failing to Dispute the ER As noted above, Petitioners chose to frame their Proposed Contention as a claim of omission. As that claim is demonstrably untrue, the Proposed Contention is inadmissible on its face. Nevertheless, even if the Board evaluates the Proposed Contention as a sufficiency challenge, it still would be inadmissible.

More specifically, to the extent the Proposed Contention is interpreted to claim that the (allegedly-missing) GEIS analyses of potential environmental impacts of design-basis and beyond-design-basis accidents caused by earthquakes are inadequate because they do not account for (or do not bound) the Mineral Earthquake, it still would be inadmissible. As explained in Section III.D., above, the Petition fails to provide adequate factual or expert support for such claims. Moreover, the Petition fails to demonstrate the materiality of these claims and fails to raise a genuine dispute with the ER on a material issue of law or fact.

As noted above, the GEIS evaluation of Severe Accidents does not rely on an assumption that a plants design basis is somehow bounding of the external events a plant may experience.

The GEIS assumes, and fully analyzes, the possibility of beyond-design-basis accidents.

Petitioners argue that [t]he NRC must evaluate the probability... as well as the environmental consequences of beyond-design-basis earthquakes.156 The GEISwhich Applicants requirements in 10 C.F.R. § 2.309(f)(1)(i)-(ii). Alternatively, the Board should issue a supplemental briefing schedule to provide the Applicant and the Staff an opportunity to respond to the different theory.

155 See Millstone, LBP-04-15, 60 NRC at 95.

156 Petition at 37.

37 incorporate by referencedoes precisely that. Petitioners simply disregard the relevant analysis.

And they certainly have not identified, with requisite specificity, any insufficiency in that analysis.

To the extent the Proposed Contention claims that the GEIS analysis of earthquake impacts is not sufficiently bounding (so as to encompass the Mineral Earthquake), Petitioners offer nothing more than mere speculation. While Petitioners need not prove their case at the admissibility stage of the proceeding, they must provide a modicum of supportsomething beyond mere speculationto support their claim.157 As the Commission has long held, a contention will be ruled inadmissible if the petitioner has offered no tangible information, no experts, no substantive affidavits, but instead only bare assertions and speculation.158 That is precisely the case here.

Moreover, as noted above, Petitioners argument is completely lacking the necessary bases to support its admissibility. For example, the GEIS considered the probability and consequences of beyond-design-basis accidents caused by earthquakes; and the corresponding analysis for North Anna, calculated using the plants state-of-the-art SPRA (which accounts for the Mineral Earthquake), remains squarely within the range of probability-weighted consequences evaluated in the GEIS.159 Petitioners neither acknowledge nor dispute these analyses. Nor do they challenge, with the requisite basis and specificity, any other discussion in the GEIS or the ER and explain their contrary view. Thus, Petitioners fail to establish that the GEIS is somehow insufficient, or that this alleged insufficiency somehow renders Applicants 157 See 10 C.F.R. § 2.309(f)(1)(v).

158 Fansteel, CLI-03-13, 58 NRC at 203 (citation omitted).

159 Compare 2013 GEIS, Vol. 3, App. E at E-17 (analyzing beyond-design-basis seismic CDFs in the range of 1 x 10-5 to 1 x 10-4) with NRC SPRA Review Letter, Encl. 1 at 34 (noting North Annas is 6.3 x 10-5).

38 evaluation of NSI inadequate. Notably, Applicants used the North Anna SPRA (which takes into account the Mineral Earthquake) to screen the significance of potential NSI for SAMAs.160 Petitioners fail to explain what more must be done. At bottom, their speculative, conclusory, and objectively incorrect claims are unsupported, immaterial, and fail to demonstrate a genuine dispute with the ER, contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(iv)-(vi).

3.

Petitioners Other References to Cumulative Impacts and Aging Management Research Do Not Raise an Admissible Issue Petitioners cite various documents discussing aging management researchspecifically, SECY-14-0016,161 the five-volume EMDA report,162 and two slide decks on the topic of reactor component harvesting163 (collectively, Documents)for the proposition that the NRC has identified certain uncertainties and knowledge gaps related to long-term aging effects.164 Petitioners then make a vague and conclusory assertion that [t]hese uncertainties must also be addressed.165 As a general matter, Petitioners fail to explain how these documents provide support for an environmental challenge. To the extent they suggest SECY-14-0016 or the EMDA supports a conclusion that the GEIS is somehow inadequate, they fail to disclose that SECY-14-0016, itself, says precisely the opposite; it explicitly concludes that nothing discussed therein casts doubt on the adequacy of the 2013 GEIS.166 160 See ER at E-4-87.

161 See Petition at 14.

162 See id.

163 See id. at 23-24 (citing M. Hiser et al., Slides, Harvesting of Aged Materials from Operating and Decommissioning Nuclear Power Plants at 5 (undated attachment to Oct. 16, 2017 email) (PDF page 82 of ML17285A484) & M. Hiser & A. Hull, Slides, Strategic Approach for Obtaining Material and Component Aging Information at 3 (June 2-4, 2015) (PDF page 130 of ML20332A097)).

164 Id. at 29 (referencing Section IV.B.2.a. of the Petition).

165 Id.

166 See SECY-14-0016 at 3.

39 Additionally, the Commission responded to SECY-14-0016 by directing Staff to address relevant safety considerations through guidance updates.167 Accordingly, Staff subsequently issued several new and updated guidance documents reflecting the agencys up-to-date views on aging management, based on its reasoned consideration of extensive data, operating experience, and expert analysis. Most notably, in 2017, Staff issued the Generic Aging Lessons Learned for Subsequent License Renewal (GALL-SLR) Report, NUREG-2192, explicitly noting that it had considered the issues raised in SECY-14-0016 and the EMDA.168 Petitioners fail to acknowledge this substantial effort and entirely disregard the more recent state of knowledge reflected in the GALL-SLR Report, upon which Applicants SLRA relies.

Furthermore, Petitioners vague and unsupported demands:

do not specify where these purported uncertainties must be, but allegedly are not, addressed (i.e., the safety portion of the SLRA or the ER);

do not identify any NRC regulation (or other authority) that requires the analysis they demand in an environmental document, but that purportedly is unmet here; and do not challenge the adequacy of any specific AMP or demonstrate any genuine material dispute with the robust process described in the SLRA for reviewing operating experience and maintaining the effectiveness of the AMPs to address long-term aging effects.169 167 See Memorandum from A. Vietti-Cook to M. Satorius, Staff Requirements - SECY-14-0016 - Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal, at 1 (Aug.

29, 2014) (ML14241A578).

168 See NUREG-2191 at xxvii.

169 As explained in ER § E2.4 (at E-2-52), [t]he programs for managing the effects of aging on certain structures and components within the scope of license renewal at the site are described in the body of the SLRA (see Appendix B of the NAPS SLRA). That document presents 45 issue-specific AMPs (SLRA, App. B §§ B2.1.1 to B2.1.45 (at B-15 to B-277), and describes Applicants systematic process for reviewing and addressing, as appropriate, plant-specific and industry operating experience concerning aging management and age-related degradation (see id., App B § B1.4 (at B-4 to B-9). Petitioners neither acknowledge nor allege any specific deficiency in any of this material, much less explain how that unspecified deficiency somehow challenges specific analyses or information in the ER at issue in this proceeding.

40 To the extent Petitioners vague assertions could be construed as alleging some omission or inadequacy in the SLRA, it must be rejected as inadmissible. These collective claims fail to satisfy essentially all of the Commissions admissibility criteria in 10 C.F.R. § 2.309(f)(1).

Moreover, Petitioners have framed their Proposed Contention as an environmental contention not a safety challenge. As Petitioners are fully aware, and indeed acknowledge in the Petition, they are prohibited from challenging the CLB in this proceeding.170 Thus, to the extent Petitioners are attempting to bootstrap a safety issue into an environmental contention, the Board should soundly reject that obvious maneuvering.

Notably, Beyond Nuclear raised a very similar challenge in the Peach Bottom proceeding, alleging the applicants ER failed to evaluate the Documents.171 Beyond Nuclear argued in that proceeding that CEQ regulations at 40 C.F.R. § 1502.22 (which provides guidance to federal agencies regarding the treatment of incomplete or unavailable information in an EIS) compelled such an analysis.172 But the Peach Bottom licensing board disagreed, concluding that this argument was inadmissible for failing to specify a legal basis requiring the ER to include such an analysis (and noting that the board, itself, could not find one).173 The Commission affirmed that decision, further noting that Beyond Nuclear failed to link the allegedly missing information to any specific, unconsidered environmental consequences during the SLR term.174 170 See Petition at 37.

171 See Peach Bottom, CLI-20-11 (slip op. at 5-6); Peach Bottom, LBP-19-5, 89 NRC at 496-97 (granting a motion to amend the contention to include discussion of component harvesting).

172 See id.

173 See Peach Bottom, LBP-19-5, 89 NRC at 504-05 & n.107.

174 See Peach Bottom, CLI-20-11 (slip op. at 14).

41 The Board should reach the same conclusionand should find Petitioners argument inadmissible for additional reasonshere. For example, Beyond Nuclears challenge in the Peach Bottom proceeding, unlike the one here, was at least accompanied by an expert report.175 No such support was supplied by Petitioners here. Thus, Petitioners vague and speculative claims also are unsupported. Furthermore, unlike Peach Bottom, Petitioners here do not cite any specific law or regulation that allegedly has not been satisfied. Thus, the argument here additionally fails to satisfy even the most basic requirements of basis and specificity in 10 C.F.R.

§ 2.309(f)(1)(i)9(ii).176 Nevertheless, it seems that Petitioners are attempting to recast the previously-rejected argument, this time under the heading of cumulative impacts.177 More specifically, the Petition:

includes passing assertions that the ER should include a discussion of the cumulative effects of operation during the SLR term;178 suggests that [c]umulative impacts reasonably include the effects of earthquakes on SSCs whose reliability to prevent or mitigate earthquake effects may be compromised by long-term aging effects; and demands that the issues raised in the Documents be addressed.179 This argument fares no better. First, Petitioners cite no legal authority or expert opinion for their view of cumulative impacts. This term historically has been defined as [t]he impact on the environment that results from the incremental impact of an action when added to other past, present, and reasonably foreseeable future actions, regardless of what agency (Federal or 175 See id at 6.

176 See 10 C.F.R. § 2.309(f)(1)(i)-(ii); Wolf Creek, ALAB-279, 1 NRC at 576.

177 Petition at 28-29.

178 Id. at 14.

179 Id. at 29.

42 non-Federal) or person undertakes such other actions.180 Petitioners statement about what cumulative impacts reasonably include merely references potential impacts from earthquakes during the period of extended operation (i.e., the proposed action)which are already addressed in the GEISbut, it fails to specify what other actions must be considered. To the extent Petitioners are attempting to characterize the Documents as an other action, they provide no support for such a claim. At bottom, Petitioners ill-defined view of cumulative impacts is unsupported and fails to supply the basis for an admissible issue.

Ultimately, the NRCs regulations at 10 C.F.R. § 51.53(c)(3)(ii)(O) detail the cumulative effects analysis required to be presented in a license renewal ER, and Applicants fully satisfy that requirement in Section E4.12, which Petitioners neither acknowledge nor dispute.181 To the extent Petitioners ambiguous references to cumulative impacts and the Documents could be construed as a claim that the ER fails to satisfy some unidentified requirement, they do not remotely satisfy all six criteria in 10 C.F.R. § 2.309(f)(1), and therefore fail to raise an admissible issue.

V.

CONCLUSION As established above, Petitioners have not satisfied the Commissions stringent waiver standard. Accordingly, the Board should DENY the Waiver Request. Additionally, regardless of whether the Waiver Request is granted, Petitioners have not proposed an admissible contention. Therefore, the Board also should DENY the Hearing Request.

180 See 2013 GEIS at 4-243 (quoting the former Council on Environmental Quality definition at 40 C.F.R. § 1508.7) (emphasis added).

181 See ER at E-4-62 to E-4-79.

43 Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

William S. Blair, Esq.

DOMINION ENERGY SERVICES, INC.

120 Tredegar Street, RS-2 Richmond, VA 23219 (561) 267-7459 william.s.blair@dominionenergy.com Executed in Accord with 10 C.F.R. § 2.304(d)

Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5796 kathryn.sutton@morganlewis.com paul.bessette@morganlewis.com Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Virginia Electric and Power Company Dated in Washington, DC this 8th day of January 2021

DB1/ 117787642.14 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:

VIRGINIA ELECTRIC AND POWER COMPANY and OLD DOMINION ELECTRIC COOPERATIVE (North Anna Power Station, Units 1 and 2)

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Docket Nos. 50-338-SLR and 50-339-SLR January 8, 2021 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Applicants Answer Opposing Request for Hearing, Petition to Intervene, and Petition for Waiver Submitted by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.

Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Virginia Electric and Power Company