ML21138A894

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Applicants' Brief in Opposition to Appeal of LBP-21-4 by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia
ML21138A894
Person / Time
Site: North Anna  Dominion icon.png
Issue date: 05/18/2021
From: Bessette P, Blair W, Lighty R, Sutton K
Dominion Energy Services, Morgan, Morgan, Lewis & Bockius, LLP, Virginia Electric & Power Co (VEPCO)
To:
NRC/OCM
SECY RAS
References
50-338-SLR, 50-339-SLR, ASLBP 21-970-01-SLR-01, LBP-21-4, RAS 56087
Download: ML21138A894 (33)
v • d • e


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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: )

) Docket Nos. 50-338-SLR and VIRGINIA ELECTRIC AND POWER COMPANY ) 50-339-SLR and OLD DOMINION ELECTRIC COOPERATIVE )

) May 18, 2021 (North Anna Power Station, Units 1 and 2) )

)

APPLICANTS BRIEF IN OPPOSITION TO APPEAL OF LBP-21-4 BY BEYOND NUCLEAR, SIERRA CLUB, AND ALLIANCE FOR PROGRESSIVE VIRGINIA William S. Blair, Esq. Kathryn M. Sutton, Esq.

DOMINION ENERGY SERVICES, INC. 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 ............................................................................................................... 2 A. Procedural History ................................................................................................. 2 B. NRC Requirements Regarding Consideration of Seismic Issues in License Renewal Environmental Reviews .......................................................................... 3 C. The Applicants Consideration of Seismic Issues in the ER ................................. 6 D. Brief Summary of the Petition and LBP-21-4 ....................................................... 7 III. STANDARD OF REVIEW ............................................................................................. 10 IV. THE COMMISSION SHOULD AFFIRM LBP-21-4 BECAUSE PETITIONERS FAIL TO IDENTIFY ANY ERROR OF LAW OR ABUSE OF DISCRETION IN THE BOARDS DECISION TO DENY THE PETITION ............................................. 11 A. Petitioners Fail to Identify Any Error of Law or Abuse of Discretion in the Boards Application of Controlling Precedent Regarding the Need for a Waiver .................................................................................................................. 12 B. Petitioners Fail to Identify Any Error of Law or Abuse of Discretion in the Boards Determination That the Waiver Request Failed to Meet the Section 2.335(b) Standards .................................................................................. 15

1. Petitioners Arguments Regarding Analytical Methods Fail to Identify Any Error of Law or Abuse of Discretion in LBP-21-4 ............ 17
2. Petitioners Objection to the Boards Use of the Word Happenstance Fails to Identify Any Error of Law or Abuse of Discretion in LBP-21-4 ............................................................................ 20
3. Petitioners Commentary on the CLB Fails to Identify Any Error of Law or Abuse of Discretion in LBP-21-4 ........................................... 21
4. Petitioners Views Regarding NEPA Fail to Identify Any Error of Law or Abuse of Discretion in LBP-21-4 ................................................ 23 C. Petitioners Fail to Identify Any Error of Law or Abuse of Discretion in the Boards Determination That the Proposed Contention Failed to meet the Section 2.309(f)(1) Contention Admissibility Standards..................................... 23 V. CONCLUSION ................................................................................................................ 27 ii

TABLE OF AUTHORITIES Cases AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 NRC 235 (2009) ........................................................................................... 11, 12 Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Nebraska),

CLI-09-9, 69 NRC 331 (2009) ................................................................................................. 11 Crow Butte Res., Inc. (Marsland Expansion Area),

CLI-14-2, 79 NRC 11 (2014) ................................................................................................... 11 Crow Butte Res., Inc. (North Trend Expansion Project),

CLI-09-12, 69 NRC 535 (2009) ............................................................................................... 11 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-04-36, 60 NRC 631 (2004) ............................................................................................... 12 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-05-24, 62 NRC 551 (2005) ............................................................................................... 17 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3),

CLI-15-6, 81 NRC 340 (2015) ............................................................................................. 6, 20 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station),

CLI-07-3, 65 NRC 13 (2007) ................................................................................................... 14 Exelon Gen. Co., LLC (Limerick Generating Station, Units 1 & 2),

CLI-13-7, 78 NRC 199 (2013) ............................................................................................. 6, 17 Exelon Gen. Co., LLC (Peach Bottom Atomic Power Station, Units 2 & 3),

CLI-20-11, 92 NRC __ (Nov. 12, 2020) (slip op.) ................................................................... 14 Fansteel, Inc. (Muskogee, OK Site),

CLI-03-13, 58 NRC 195 (2003) ............................................................................................... 10 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1),

CLI-12-8, 75 NRC 393 (2012) ................................................................................................. 18 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

ALAB-952, 33 NRC 521 (1991) .............................................................................................. 12 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

CLI-01-17, 54 NRC 3 (2001) ............................................................................................. 14, 23 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4),

CLI-20-3, 92 NRC __ (Apr. 23, 2020) (slip op.) ...................................................................... 14 GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station),

CLI-00-6, 51 NRC 193 (2000) ................................................................................................. 10 Hydro Res., Inc. (Crownpoint, NM),

CLI-06-1, 63 NRC 1 (2006) ..................................................................................................... 11 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility),

CLI-20-15, 92 NRC __ (Dec. 17, 2020) (slip op.).................................................................... 11 iii

Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-11-9, 74 NRC 233 (2011) ................................................................................................. 11 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-12-7, 75 NRC 379 (2012) ................................................................................................. 11 Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 & 2),

CLI-10-2, 71 NRC 27 (2010) ................................................................................................... 11 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2),

CLI-89-3, 29 NRC 234 (1989) ................................................................................................. 18 Shieldalloy Metallurgical Corp. (Newfield, N.J. Facility),

CLI-07-20, 65 NRC 499 (2007) ............................................................................................... 12 USEC Inc. (Am. Centrifuge Plant),

CLI-06-10, 63 NRC 451 (2006) ................................................................................... 12, 22, 24 Va. Elec. & Power Co. (North Anna Power Station, Units 1 & 2),

LBP-21-4, 93 NRC __ (Mar. 29, 2021) (slip op.) ............................................................. passim Statutes National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (1969) ................................................................................................ 3 Other Authorities Happenstance, Collins Dictionary, https://www.collinsdictionary.com (last visited Apr. 29, 2021) ....................................................................................................... 20 NUREG-1437, Rev. 0, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996) ................................................................................................. 4, 5, 8 NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013) ......................................................................................... 3, 4, 19, 23 Regulations 10 C.F.R. § 2.202 .......................................................................................................................... 13 10 C.F.R. § 2.309 .................................................................................................................... 11, 24 10 C.F.R. § 2.311 ...................................................................................................................... 1, 10 10 C.F.R. § 2.323 .......................................................................................................................... 14 10 C.F.R. § 2.335 ................................................................................................................... passim 10 C.F.R. § 2.345 .......................................................................................................................... 14 10 C.F.R. § 51.41 ............................................................................................................................ 4 10 C.F.R. § 51.53 ................................................................................................................... passim 10 C.F.R. § 54.23 ...................................................................................................................... 3, 12 10 C.F.R. Part 51.................................................................................................................... passim 10 C.F.R. Part 54....................................................................................................................... 3, 25 iv

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: )

) Docket Nos. 50-338-SLR and VIRGINIA ELECTRIC AND POWER COMPANY ) 50-339-SLR and OLD DOMINION ELECTRIC COOPERATIVE )

) May 18, 2021 (North Anna Power Station, Units 1 and 2) )

)

APPLICANTS BRIEF IN OPPOSITION TO APPEAL OF LBP-21-4 BY BEYOND NUCLEAR, SIERRA CLUB, AND ALLIANCE FOR PROGRESSIVE VIRGINIA I. INTRODUCTION Pursuant to 10 C.F.R. § 2.311(b), Virginia Electric and Power Company, on behalf of itself and Old Dominion Electric Cooperative (collectively, Applicants), submits this Brief in Opposition to the Appeal of LBP-21-4,1 filed by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia (collectively, Petitioners).2 In LBP-21-4, the Atomic Safety and Licensing Board (ASLB or Board) denied Petitioners December 14, 2020 hearing request and petition to intervene in this proceeding and petition for waiver of certain U.S. Nuclear Regulatory Commission (NRC) regulations (Petition).3 As explained more fully below, the Commission should affirm LBP-21-4 because Petitioners identify no error of law or abuse of discretion in the Boards well-reasoned decision.

1 Va. Elec. & Power Co. (North Anna Power Station, Units 1 & 2), LBP-21-4, 93 NRC __ (Mar. 29, 2021) (slip op.) (ML21088A364) as modified by Licensing Board Memorandum and Order (Correcting Text of Decision)

(Mar. 31, 2021) (unpublished) (ML21090A099) (LBP-21-4).

2 Brief on Appeal of LBP-21-04 by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia (Apr. 23, 2021) (ML21113A317) (Appeal).

3 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).

II. BACKGROUND A. Procedural History On August 24, 2020, Applicants filed with the NRC a subsequent license renewal (SLR) application (SLRA) to renew the operating licenses for North Anna Power Station, Units 1 and 2 (North Anna) for an additional 20-year period.4 As part of the SLRA, and as required by 10 C.F.R. Part 51, Applicants submitted an environmental report (ER) that considers the potential environmental impacts of the requested license 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, 2020.5 On December 14, 2020, Petitioners filed their Petition seeking to intervene in this SLR proceeding, requesting a hearing, and proposing a single contention challenging the ER (Hearing Request).6 More specifically, the proposed contention alleged that the ER failed to consider the environmental significance of a 2011 earthquake in Mineral, Virginia that exceeded North Annas seismic design basis (Mineral Earthquake).7 Further, acknowledging that certain provisions in 10 C.F.R. Part 51 preclude such seismic challenges from being raised in individual adjudicatory proceedings, Petitioners also requested a waiver under 10 C.F.R.

§ 2.335(b) to challenge those regulations (Waiver Request, and collectively with the Hearing 4

See Letter from M. Sartain, Virginia Electric and Power Company, 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).

5 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).

6 See generally Petition.

7 Id. at 13-14.

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Request, the Petition).8 Following briefing9 and oral argument,10 the ASLB denied the Hearing Request and the Waiver Request.11 Petitioners filed the instant Appeal of LBP-21-4 on April 23, 2021.12 Applicants hereby submit a timely Brief in Opposition to that Appeal.

B. NRC Requirements Regarding Consideration of Seismic Issues in License Renewal Environmental Reviews 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.13 The NRC evaluates seismic hazard information on an ongoing basis as part of a plants current licensing basis (CLB), which is beyond the scope of license renewal under 10 C.F.R. Part 54.14 However, the NRC considers seismic issues to the full extent required by the National Environmental Policy Act (NEPA)15 as part of its separate environmental review for license renewal under 10 C.F.R. Part 51.

In general terms, the NRCs Generic Environmental Impact Statement (GEIS) for license renewal summarizes the findings of a systematic inquiry into the potential environmental 8

Id. at 30-37.

9 Applicants Answer Opposing Request for Hearing, Petition to Intervene, and Petition for Waiver Submitted by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia (Jan. 8, 2021) (ML21008A531)

(Applicants Answer to Petition); NRC Staff Answer to Hearing Request, Petition to Intervene and Petition for Waiver Filed by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia (Jan. 8, 20201)

(ML21008A593); Reply by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia to Oppositions to Hearing Request and Waiver Petition (Jan. 15, 2021) (ML21015A605).

10 Official Transcript of Proceedings (proceedings held Feb. 4, 2021, transcript served Feb. 8, 2021)

(ML21039A546), as modified by the Licensing Boards Memorandum and Order (Adopting Transcript Corrections for Initial Prehearing Conference) (Feb. 25, 2021) (unpublished) (ML21056A213) (Tr.); see also Joint Motion for Correction of the Transcript for the Oral Argument Held on February 4, 2021 (Feb. 18, 2021)

(ML21049A129).

11 North Anna, LBP-21-4, 93 NRC at __ (slip op. at 36).

12 See Appeal.

13 NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Vol. 1, Main Report, at 1-21 (June 2013) (ML13106A241) (2013 GEIS).

14 See id.

15 10 C.F.R. § 54.23; National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (1969) (NEPA).

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consequences of license renewal.16 Both the GEIS and Appendix B to subpart A of 10 C.F.R. Part 51 identify two types of environmental issues: Category 1 issues, for which the NRC made generic conclusions applicable to all existing nuclear power plants, and Category 2 issues, for which site-specific analyses are required.17 For Category 1 issues, the GEIS assigns impact levels based on the GEIS analyses, which are codified in Appendix B. Although applicants for license renewal must submit an ER considering all Category 2 issues on a plant-specific basis, they need not include analyses of Category 1 issues and can incorporate by reference the generic analyses and impact findings from the GEIS and Appendix B.18 SLR applicants also must consider new and significant information regarding the environmental impacts of license renewal in the ER.19 The GEIS considers the environmental consequences of earthquakes under the broader topic of Postulated Accidents, which are subdivided into Design Basis Accidents and Severe Accidents.20 Design Basis Accidents are those that are postulated to occur due to triggering events within the parameters of a plants design basis.21 Based on the GEIS analysis, the NRC classified Design Basis Accidents as a Category 1 issue and codified its determination that the environmental impacts of design-basis accidents are of small significance for all plants.22 Notably, the NRCs generic impacts analysis for seismic issues did not stop there.

16 See 2013 GEIS, Vol. 1, Main Report (ML13106A241); Vol. 2, Public Comments (ML13106A242); and Vol. 3, Appendices (ML13106A244).

17 2013 GEIS at 1-6 to 1-7; 10 C.F.R. Part 51, App. B.

18 See 10 C.F.R. §§ 51.41, 51.53(a), 51.53(c)(3)(i), 51.53(c)(3)(ii).

19 10 C.F.R. § 51.53(c)(3)(iv).

20 See 2013 GEIS at 4-158.

21 See, e.g., NUREG-1437, Rev. 0, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Vol. 1, Main Report, at 5-1 (May 1996) (1996 GEIS) (explaining that design basis accidents are those that the plant is designed specifically to accommodate).

22 1996 GEIS at 5-114; 2013 GEIS at 2-15.

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Under the Severe Accidents issue, the NRC further analyzed the full range of postulated severe accidents without regard to design basis limitationsi.e., including those triggered by events beyond the parameters of a plants design basis.23 Based on that additional analysis, which was substantially updated with additional quantitative data in 2013, the NRC codified its conclusion that [t]he probability-weighted consequences of atmospheric release, fallout onto open bodies of water, releases to groundwater, and societal and economic impacts from severe accidents are small for all plants.24 The Commission has long recognized that the GEIS reached the same impact conclusions for both Design Basis Accidents and Severe Accidents (i.e., SMALL impacts)covering the full range of design-basis and beyond-design-basis seismic eventsbut for different reasons. For Design Basis Accidents, the agencys conclusion is based on the largely deterministic conclusion that nuclear plants are designed and operated to successfully withstand design basis accidents, whereas, for the Severe Accidents issue, the Commission reached its SMALL impacts conclusion because the probability of severe accidents is so low.25 Finally, although the NRC concluded that severe accident impacts could be analyzed generically for all plants, it separately concluded that mitigation measures for severe accidents should be analyzed on a plant-specific basis. Accordingly, the codified summary of the Severe Accidents issue in Appendix B also includes the following statement: However, alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives.26 Thus, for plants that have not previously considered severe accident mitigation 23 See, e.g., 1996 GEIS at 5-18 (analyzing beyond design basis earthquakes as part of Severe Accidents).

24 10 C.F.R. Part 51, App. B.

25 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-15-6, 81 NRC 340, 372 (2015) (emphasis added).

26 10 C.F.R. Part 51, App. B.

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alternatives (SAMAs), this is a Category 2 issue requiring a plant-specific SAMA analysis.

But, for plants such as North Anna that have considered SAMAs in previous licensing actions, the Commission has held that Section 51.53(c)(3)(ii)(L) renders this issue the functional equivalent of a Category 1 issue.27 For both the Design Basis Accidents issue and the Severe Accidents issue (including SAMAs), SLR applicants must still evaluate whether there exists any information beyond that included in the GEIS that would qualify as new and significant information (NSI) regarding the environmental impacts of license renewal.28 C. The Applicants Consideration of Seismic Issues in the ER In the ER, the environmental evaluation of seismic events is found in two contexts. The first is the ERs discussion of Postulated Accidents, in which the Applicants incorporated by reference the GEIS analyses of Design Basis Accidents and Severe Accidents. The Applicants also performed thorough evaluations to determine whether there existed any information beyond that included in the GEIS that would qualify as both new and significant regarding the environmental impacts of Design Basis Accidents and Severe Accidents, and concluded there was none.29 The second context is the Applicants consideration of SAMAs, including consideration of the possible existence of NSI regarding such alternatives. Based on a probabilistic risk assessment model, the Applicants concluded no such information existed.30 Collectively, these sectionswhich adopt the NRCs robust generic analyses of both design-27 Exelon Gen. Co., LLC (Limerick Generating Station, Units 1 & 2), CLI-13-7, 78 NRC 199, 203 (2013)

(citation omitted). 10 C.F.R. § 51.53(c)(3)(ii)(L) excuses plants that have already performed SAMAs from the need to do so again.

28 10 C.F.R. § 51.53(c)(3)(iv) (emphasis added).

29 ER at E-4-84 to -87 (discussing the Design Basis Accidents and Severe Accidents).

30 ER at E-4-88 to -92 (discussing SAMAs).

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basis and beyond-design-basis seismic events and consideration of NSIprovide all of the information required by Part 51 to be supplied by an applicant in an ER.

D. Brief Summary of the Petition and LBP-21-4 At the core of the Petition (including both the Waiver Request and the proposed contention) is Petitioners overarching assertion that the ER is deficient because neither the ER nor the GEIS contain a specific analysis of the actual occurrence of a beyond-design-basis earthquake at North Anna Units 1 and 2.31 Petitioners original theory was that the occurrence of a beyond-design-basis earthquake undermines the GEIS conclusion of SMALL seismic impacts because the sole basis for that conclusion is an NRC assumption that reactors will never experience a beyond-design-basis event.32 Thus, according to Petitioners, the beyond-design-basis Mineral Earthquake refuted that assumption and exposed an unanalyzed environmental scenario.33 In LBP-21-4, the Board correctly highlighted the fundamental flaws and clear factual errors in Petitioners theory. First, the Board explained that Petitioners analysis misinterprets the scope of the GEIS conclusions about the small earthquake-related environmental impacts, which are not based solely on the plants design basis.34 As the Board correctly noted, the GEIS seismic impacts analysis:

span[s] both design-basis and severe accidents, squarely acknowledges the possibility that external events may cause a facilitys design-basis to be exceeded, analyzes that scenario, and 31 See, e.g., Petition at 34.

32 Id. at 35.

33 Id.

34 North Anna, LBP-21-4, 93 NRC at __ (slip op. at 25) (citations omitted) (emphasis added).

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concludes that the potential impacts from that scenario are SMALL due to the low probability of occurrence.35 In essence, Petitioners misinterpret the Severe Accidents analysis in the GEIS as pertaining solely to mitigation (i.e., SAMAs). As the Board observed (with numerous citations to and examples from the GEIS), that is not the case; the Severe Accidents analysis also considers potential impacts from beyond-design-basis eventsbut Petitioners entirely disregarded, rather than disputed, that analysis.36 Furthermore, to the extent Petitioners characterized the Design Basis Accidents issue as relying on an assumption that plants will never experience a beyond-design-basis event, the Board explained why that assertion is meritless as well. As noted in the GEIS itself, a key assumption in the Design Basis Accidents issue is that impacts of accidents triggered by events within the design basis will be SMALL [b]ecause of the requirements that continuous acceptability of the consequences and aging management programs be in effect for license renewal.37 In other words, the GEIS does not include any type of per se assumption regarding the complete absence of any beyond-design-basis external events as Petitioners erroneously suggested. Nor does the Design Basis Accidents issue purport to articulate any assumptions regarding the probability or consequences of accidents triggered by events beyond the design basisbecause they are evaluated separately in the Severe Accidents analysis in the GEIS.38 35 Id. (emphasis added).

36 Id. at __ (slip op. at 21-25).

37 Id. at __ (slip op. at 6-7 n.15) (quoting 1996 GEIS at 5-12).

38 The Board acknowledged that, although the NRCs generic evaluation of Design Basis Accidents in the GEIS obviously considers plant design bases, Petitioners did 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, the Board recognized that Petitioners failed 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. Id. at __ (slip op. at 22-25).

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Petitioners also speculatedwithout explanation or supportthat the Mineral Earthquake somehow demonstrated that the North Anna seismic design basis is inadequa[te].39 As a general matter, the adequacy of the seismic design basis is a CLB issue beyond the scope of this proceeding. Nevertheless, even assuming it were subject to challenge in a license renewal proceeding, Petitioners supplied no basis for this speculative and conclusory assertion.40 Moreover, the genuinely meritless nature of this claim is refuted by the thousands of pages of detailed technical analyses performed by both Dominion and the NRC over the past decade following the Mineral Earthquake and as part of the Fukushima seismic reanalysis, following which the NRC recently concluded that North Annas existing design basis requires no modification and continues to provide adequate protection and comply with all existing requirements.41 Notwithstanding the availability of this extensive and robust technical analysis, Petitioners failed to acknowledge or dispute any of it.

In simple terms, the Board rejected the proposed contention and the Waiver Request for the same fundamental reasonsnamely, that Petitioners failed to identify any unanalyzed environmental impacts from the Mineral Earthquakemuch less, any that would undermine the 39 Petition at 37.

40 As alleged support, Petitioners submitted an affidavit of counsel that self-endorsed the assertions in the Petition. Even assuming arguendo this non-substantive affidavit checked the box for the affidavit required by 10 C.F.R. § 2.335(b), the Board correctly noted that it was not executed by a technical or scientific expert and contains no independent or otherwise meaningful factual representations. North Anna, LBP-21-4, 93 NRC at __ (slip op. at 28 n.51). Merely placing bare assertions and speculation in affidavit form does not suddenly render them probative. See Fansteel, Inc. (Muskogee, OK 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)).

41 See, e.g., North Anna, LBP-21-4, 93 NRC at __ (slip op. at 26-27); Letter from M. Sartain, Virginia Electric and Power Company, 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 Attachment at 72 (Mar. 28, 2018) (ML18093A445) (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 Applicants Answer to Petition §Section II.D.

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seismic impact conclusions in the GEIS or the ER.42 As detailed below, the Boards ruling is legally sound and factually accurate, and Petitioners identify no grounds to disturb LBP-21-4.

III. STANDARD OF REVIEW NRC regulations at 10 C.F.R. § 2.311(c) permit petitioners to appeal orders denying hearing requests and petitions to intervene, as of right, on the sole question of whether the request and/or petition should have been granted.43 The Commission generally defers to Board decisions on contention admissibility, but will reverse a Boards ruling if there has been an error of law or an abuse of discretion.44 The Commission has reversed Board decisions admitting speculative contentions because entertain[ing] contentions grounded on little more than guesswork would waste the scarce adjudicatory resources of all involved.45 The Commission affords licensing board rulings on contention admissibility substantial deference,46 absent an error of law or abuse of discretion.47 Thus, when a licensing board has reviewed the record in detail, the Commission generally is disinclined to upset its findings, particularly on matters involving fact-specific issues or consideration of expert affidavits or submissions.48 The Commission reviews questions of law de novo, and will reverse a licensing 42 North Anna, LBP-21-4, 93 NRC at __ (slip op. at 25) (emphasis added).

43 10 C.F.R. § 2.311(c).

44 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), CLI-12-7, 75 NRC 379, 386 (2012) (citing Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 & 2), CLI-10-2, 71 NRC 27, 29 (2010); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 259 (2009); Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-11-9, 74 NRC 233, 237 (2011)).

45 Crow Butte Res., Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 552 (2009); see also Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Nebraska), CLI-09-9, 69 NRC 331, 364 (2009) (arguments that are speculative do not form the basis for a litigable contention).

46 Crow Butte Res., Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 26 (2014).

47 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), CLI-20-15, 92 NRC __, __ (slip op. at 4) (Dec. 17, 2020) (ML20352A360) (citing Crow Butte, CLI-14-2, 79 NRC at 26).

48 Hydro Res., Inc. (Crownpoint, NM), CLI-06-1, 63 NRC 1, 2 (2006).

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boards legal rulings if they are a departure from[,] or contrary to[,] established law.49 To prevail on an abuse of discretion claim, the appellant must persuade the Commission that a reasonable mind could reach no other result to prevail.50 An appeal that does not point to an error of law or an abuse of discretion, but simply restates the petitioners arguments, does not constitute a valid appeal.51 When a licensing board holds that a contention is inadmissible for failing to meet more than one of the requirements specified in 10 C.F.R. § 2.309(f)(1)(i)-(vi), a petitioners failure to acknowledge and rebut each ground for the Boards ruling is sufficient justification for the Commission to reject the petitioners appeal.52 As the Commission has made clear, it will not consider new arguments raised for the first time on appeal that the Board never had an opportunity to consider.53 IV. THE COMMISSION SHOULD AFFIRM LBP-21-4 BECAUSE PETITIONERS FAIL TO IDENTIFY ANY ERROR OF LAW OR ABUSE OF DISCRETION IN THE BOARDS DECISION TO DENY THE PETITION On appeal, Petitioners assert that the Board erred in three ways: first, by ruling that 10 C.F.R. § 51.53 (c)(3) excuses [Applicants] from addressing the environmental significance of the Mineral Earthquake;54 second, by refusing to waive Section 51.53(c)(3) in order to consider

[Petitioners] contention;55 and third, by ruling that [Petitioners] contention fails to meet the 49 Oyster Creek, CLI-09-7, 69 NRC at 259 (citation omitted).

50 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), ALAB-952, 33 NRC 521, 532 (1991), affd, CLI-91-13, 34 NRC 185 (1991) (internal citation omitted).

51 Shieldalloy Metallurgical Corp. (Newfield, N.J. Facility), CLI-07-20, 65 NRC 499, 503-05 (2007).

52 See, e.g., Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004).

53 USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006) (quotations and citation omitted).

The purpose of an appeal is to point out errors made in the Boards decision, not to present arguments and evidence never provided to the Board. Id. (quotations and citation omitted).

54 Appeal at 1-2.

55 Id. at 2.

11

NRCs standards for admissibility in 10 C.F.R. § 2.309(f).56 But, as explained further below, Petitioners identify no error of law or abuse of discretion by the Board in any of these arguments.

Indeed, the Appeal is conspicuously devoid of any engagement with the relevant legal standards for waiver petitions and proposed contentions, much less the Boards application of law and fact in the context of those standards. Instead, Petitioners present vague and generalized commentary (including numerous statements raised for the first time on appeal) alongside conclusory assertions that the Boards decision is wrong. This approach, however, is insufficient to satisfy the standard of review on appeal, and wholly fails to justify abandoning the substantial deference the Commission typically affords licensing board decisions.

A. Petitioners Fail to Identify Any Error of Law or Abuse of Discretion in the Boards Application of Controlling Precedent Regarding the Need for a Waiver Pursuant to NRC regulations, an SLRA must include an ER that provides certain information to aid the agency in complying with NEPA.57 As noted in Section II.B, above, the agency has generically analyzed certain license renewal environmental topics, known as Category 1 issues, and has codified its corresponding findings.58 NRC regulations at 10 C.F.R.

§ 51.53(c)(3)(i) specify that that license renewal ERs are not required to contain duplicative analyses on these Category 1 issues. The Commission has held that 10 C.F.R. § 51.53(c)(3) applies both to initial and subsequent license renewal applications.59 56 Id.

57 10 C.F.R. § 54.23.

58 10 C.F.R. Part 51, App. B, Table B-1.

59 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), CLI-20-3, 92 NRC __ (Apr. 23, 2020)

(slip op.); Exelon Gen. Co., LLC (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-20-11, 92 NRC __

(Nov. 12, 2020) (slip op.).

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Commission case law also establishes that an adjudicatory challenge to a Category 1 issue (including a challenge regarding NSI) constitutes an attack on the agencys regulations.60 However, pursuant to 10 C.F.R. § 2.335(a), agency regulations generally are not subject to attack in individual adjudicatory proceedings. The preferred path for challenging the substance of codified regulations is through a rulemaking petition under 10 C.F.R. § 2.202. However, 10 C.F.R. § 2.335(b) provides a narrow exception whereby a petitioner may request a waiver to challenge NRC regulations in an adjudicatory proceeding. Here, Petitioners recognized that their proposed contention sought to challenge a Category 1 issue, and thus they included a Waiver Request in their Petition, which the Board denied.

On appeal, Petitioners argue that the ASLB erred in ruling that 10 C.F.R. § 51.53(c)(3) applies to SLRAs.61 But, the Boards ruling simply relied on and is fully consistent with the controlling Commission case law noted above. Indeed, in the very next sentence of their Appeal, Petitioners explicitly acknowledge that the Boards ruling was mandated by binding precedent and that the Board was precluded, as a matter of law, from reaching any other result.62 In essence, Petitioners refute their own claim of legal error.

Instead of identifying an error of law or abuse of discretion by the Board, Petitioners argue that those binding precedentsi.e., the Commissions previous rulings in other casesare erroneous and should be reconsidered.63 As an obvious procedural matter, Petitioners request 60 See Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 20 & n.26 (2007) (citing Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 11-13 (2001)).

61 Appeal at 18.

62 Id.

63 Id.

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for reconsideration of those orders is long overdue,64 and was not filed on the correct docket.65 Substantively, Petitioners fail to addressmuch less satisfythe legal standards applicable to reconsideration requests as codified in 10 C.F.R. Part 2.66 Additionally, a generalized request for reconsideration of past orders from other proceedings is not a proper subject for appeal. The Commissions role on appeal is to determine whether the appellant has demonstrated that the licensing board misapplied controlling law or abused its discretion (e.g., by failing to consider an argument). Here, Petitioners can demonstrate neither. Petitioners concede that the Board correctly applied controlling precedent.67 And Petitioners point to no argument the Board failed to consider. This is unsurprising because Petitioners did not even brief this topic in the pleadings before the Board.68 Petitioners made no attempt to distinguish the facts of this proceeding from the controlling precedent; and Petitioners advanced no new legal arguments asserting that the controlling precedent was wrongly decided.

At bottom, the Boards decision to follow binding precedent was the legally-required outcome. Petitioners do not demonstrateor even argueany error or abuse by the Board that can be appealed in this proceeding. In essence, Petitioners simply wish that the binding precedent reflected a different outcome and are pursuing an unauthorized work-around in 64 10 C.F.R. § 2.345(a)(1) (Any petition for reconsideration of a final decision must be filed by a party within ten (10) days after the date of the decision.). Given this requirement, Petitioners should have filed a petition for reconsideration of the Turkey Point and Peach Bottom decisions no later than May 3, 2020, and November 22, 2020, respectively. Petitioners failed to do so.

65 See Notice of Hearing Opportunity, 85 Fed. Reg. at 65,438 (limiting the scope of the instant proceeding on this docket to the North Anna SLRA).

66 See, e.g., 10 C.F.R. §§ 2.345(b), 2.323(e) (requiring petitions and motions for reconsideration to demonstrate a compelling circumstance, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid.).

67 Appeal at 2 n.2, 18.

68 Petition at 27 (Rather than brief the legal issues here, Petitioners rely on and incorporate by reference [the dissenting opinions in CLI-20-3, CLI-20-11, and LBP-19-3].).

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hopes of a different result. But this fails to identify any Board error or abuse, and provides no basis to overturn LBP-21-4.

Alternatively, the Commission need not rule on this issue to resolve the instant Appeal.

Even assuming arguendo that 10 C.F.R. § 51.53(c)(3) did not govern the ER in this proceeding, and Petitioners were not required to submit a waiver petition to challenge Category 1 issues, the Board correctly denied the Petition on other grounds. More specifically, the Board held that the proposed contention was inadmissible. As explained further in Section IV.C., below, Petitioners identify no error of law or abuse of discretion in the Boards contention admissibility ruling.

That, alone, provides sufficient grounds to affirm LBP-21-4.

B. Petitioners Fail to Identify Any Error of Law or Abuse of Discretion in the Boards Determination That the Waiver Request Failed to Meet the Section 2.335(b) Standards The NRCs regulations at 10 C.F.R. § 2.335(b) state that adjudicatory participants 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.69 The Commission has described this as a limited exception,70 and has long used the following four-part Millstone test for Section 2.335(b) waiver petitions.71 Under that test, a petitioner must 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 69 10 C.F.R. § 2.335(b).

70 Limerick, CLI-13-7, 78 NRC at 206.

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

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4. Waiver of the regulation is necessary to reach a significant safety (or environmental) problem.72 The licensing boards role in reviewing a waiver request is to determine whether the requester has made a prima facie showing as to each of these elements and, if so, to refer the waiver request to the Commission for a final determination on whether to grant the waiver.73 Here, the Board analyzed the Waiver Request under each of the Millstone elements and concluded that Petitioners did not satisfy their burden to make a prima facie showing as to elements 2, 3, or 4.74 Petitioners allege that the Board erred in concluding that [they] failed to satisfy the NRCs standard for granting a waiver,75 but they fail to explain with any specificity why that allegedly is so.

Simply put, although a background section of the Appeal correctly identifies the four Millstone elements, it otherwise contains no further discussion of those elements, and no reasoned explanation as to why or how the Board allegedly erred in analyzing those elements.

Instead, Petitioners advance four generalized lines of argument with no stated or apparent connection to the Millstone elements.

However, the Commission and the other parties are under no obligation to search for a needle that may be in a haystack or to mix-and-match assertions in a pleading to identify potential factual and legal arguments to support conclusory assertions of error.76 That is the appellants job, and they have not done so here; Petitioners various and vague assertions provide 72 See id.

73 10 C.F.R. §§ 2.335(c), (d).

74 North Anna, LBP-21-4, 93 NRC at __ (slip op. 18-29).

75 Appeal at 20.

76 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), CLI-89-3, 29 NRC 234, 241 (1989); see also FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC 393, 404 n.67 (2012) (The Commission should not be expected . . . to piece together and discern a partys argument and the grounds for its claims.) (quoting Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),

CLI-09-11, 69 NRC 529, 534 (2009)).

16

no such support. Further, as explained below, the Appeal is rife with mischaracterizations of LBP-21-4 and new substantive arguments raised for the first time on appealnone of which identify any error of law or abuse of discretion.

1. Petitioners Arguments Regarding Analytical Methods Fail to Identify Any Error of Law or Abuse of Discretion in LBP-21-4 Petitioners assert that [a] single legally and factually erroneous assumption undergirds the Boards conclusion on the Waiver Request: that the 1996 GEIS, 2013 GEIS, and the ER fully addressed the environmental significance of the Mineral Earthquake.77 However, this claim is unsupported and fails to identify any defect in the Boards analysis of any of the Millstone elements.

First, Petitioners assertion that the Board merely assumed that these documents fully addressed the Mineral Earthquake is a gross mischaracterization of LBP-21-4. As alleged support, Petitioners selectively quote various portions of LBP-21-4 in which the Board noted that the subject documents took into account, addressed, assess[ed], or looked at the potential environmental impacts of both design-basis and beyond-design-basis earthquakes.78 But these quotes fail to identify any improper assumption by the Board. The crux of the Waiver Request is Petitioners claim that neither the GEIS nor the ER addressed the potential impacts of beyond-design-basis seismic events. Indeed, Petitioners styled their sole contention as a contention of omission, titled Failure to Address Environmental Impacts of Reactor Accidents Caused or Contributed to by Earthquakes.79 In the portions of LBP-21-4 quoted by Petitioners, the Board was merely pointing out the wholly-meritless nature of this claim because 77 Appeal at 20.

78 Id. at 20 n.39 (quoting North Anna, LBP-21-4, 93 NRC at __ (slip op. at 22, 24, 26)).

79 Petition at 13; see also North Anna, LBP-21-4, 93 NRC at __ (slip op. at 31).

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these documents do, in fact, discuss at length the potential impacts of beyond-design-basis seismic events.

Additionally, Petitioners cite no portion of the decision in which the Board prejudicially assumed that these documents fully addressed seismic impactsbecause the Board said no such thing. Rather, the Board correctly observed that Petitioners failed to carry their burden to identify any material defect, deficiency, or omission in these prior analyses. For example, as to Millstone element 2, the Board noted that the environmental consequences of design-basis and severe accidents, including the risk of a beyond DBE, have been addressed by the pertinent evaluations. In contrast, Petitioners have not identified any special circumstances that were not considered explicitly or through bounding analyses in these appraisals.80 On appeal, Petitioners identify no error in the Boards conclusion. The Appeal contains no further discussion of the special circumstances element, cites no case law interpreting this element, and makes no attempt to explain how any of the vague, speculative, and unsupported arguments in the Petition allegedly could have satisfied that element, much less how the Boards ruling on this element allegedly is flawed.

Petitioners also claim that the Board expressed a stated view that there is no significant distinction between the NRCs methods for analyzing design-basis accidents and its methods for analyzing severe accidents.81 Similarly, Petitioners claim the Board assum[ed]

that the NRC applies the same analytical methods to design-basis accidents and severe accidents.82 Notably, Petitioners provide no citation to where, in LBP-21-4, the Board allegedly stated this view. But that is not surprising, because the Board did not do so. To the contrary, 80 North Anna, LBP-21-4, 93 NRC at __ (slip op. at 22).

81 Appeal at 20.

82 Id. at 21.

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the Board squarely acknowledged both the deterministic nature of the GEIS analysis of design-basis accidents and the probability-weighted method used in the GEIS for analyzing beyond-design-basis accidents.83 Indeed, the Board called-out the Commission precedent that succinctly summarizes this distinction.84 Petitioners unsupported assertions lack any basis in fact.

Next, Petitioners assert that the Board conflated the purpose of the GEIS analysis of Design-Basis Accidents versus that of Severe Accidents. According to Petitioners, the former considers impacts as required by NEPA, whereas the latter merely considers whether there are cost effective measures that would minimize the impacts of a beyond-design-basis accident if one were to occur.85 Petitioners are correct that the GEIS concluded, and Table B-1 requires, that alternatives to mitigate severe accidents [i.e., Severe Accident Mitigation Alternatives or SAMAs] must be considered for all plants that have not considered such alternatives.86 However, Petitioners fail to acknowledge the full extent of the Severe Accidents analysis in the GEIS, of which SAMAs are only one part. The remainder of the Severe Accidents analysis is devoted to analyzing the probability-weighted impacts of severe accidents, such as those caused by beyond-design-basis seismic events. More specifically, as summarized and codified in Table B-1, the GEIS concluded that [t]he probability-weighted consequences of atmospheric release, fallout onto open bodies of water, releases to groundwater, and societal and economic impacts from severe accidents are small for all plants.87 Petitioners simply disregard this crucial portion of the Severe Accidents analysis, which considers impacts as required by NEPAand which supplies the NEPA analysis that Petitioners claim was omitted. Simply put, this apparent 83 North Anna, LBP-21-4, 93 NRC at __ (slip op. at 25).

84 Id. (citing Applicants Answer to Petition at 21-22 (quoting Indian Point, CLI-15-6, 81 NRC at 372)).

85 Appeal at 21.

86 2013 GEIS at B-30, E-47; 10 C.F.R. Part 51, App. B.

87 10 C.F.R. Part 51, App. B.

19

misreading of the GEIS is the essence of the flawed premise upon which the Hearing Request and Waiver Request were based.

Finally, Petitioners assert that the Board erred in assuming that probabilistic methods for severe accident analysis can be applied to a design basis analysis.88 However, Petitioners offer no explanation as to how or where this allegedly has occurred, why it allegedly demonstrates some deficiency in some unspecified document or analysis, or how it purportedly demonstrates some error of law or abuse of discretion by the Board. In fact, this portion of the Appeal raises entirely new arguments never presented to the Board regarding an 1875 earthquake and the absence of cost-benefit analyses in the safety review of North Anna at initial licensing.89 In general, these arguments simply reflect Petitioners misunderstanding of the Severe Accidents analysis in the GEIS, and certainly do not identify any error by the Board, which never had a chance to consider and reject such arguments in the proceedings below.90 At bottom, Petitioners misreading of the GEIS and Table B-1 do not identify any error of law or abuse of discretion by the Board.

2. Petitioners Objection to the Boards Use of the Word Happenstance Fails to Identify Any Error of Law or Abuse of Discretion in LBP-21-4 In LBP-21-4, the Board twice uses the term happenstance to refer to the occurrence of a plant experiencing a beyond-design-basis event.91 Happenstance is typically understood to mean an accidental happening or a circumstance that was not planned by anyone.92 On appeal, 88 Appeal at 22.

89 Id.

90 See USEC, CLI-06-10, 63 NRC at 458 (absent extreme circumstances, we will not consider on appeal either new arguments or new evidence supporting the contention[s], which the Board never had the opportunity to consider.) (citations omitted).

91 North Anna, LBP-21-4, 93 NRC at __ (slip op. at 22, 25).

92 See generally Happenstance, Collins Dictionary, https://www.collinsdictionary.com/us/dictionary/english/happenstance (last visited Apr. 29, 2021).

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Petitioners take issue with the Boards use of this term.93 More specifically, Petitioners assert that the use of this term is utterly inconsistent with the NRCs regulatory premise of allowing North Anna to operate in the first place, and is inappropriate to describe [a] beyond-design-basis accident that has already occurred.94 These statements are illogical for many reasons, including that Petitioners have not identified any accident (or even an impact) that occurred as a result of the Mineral Earthquake. Likewise, the overall discussion in LBP-21-4 does not comport with Petitioners suggestion that the Board treated the Mineral Earthquake as an inconsequential event; the Board thoroughly discusses the NRCs extensive post-Mineral Earthquake seismic response.95 At bottomsemantical preferences asidePetitioners simply have not explained how the Boards word selection here relates to any of the Millstone elements, much less how it purportedly demonstrates any error of law or abuse of discretion.

3. Petitioners Commentary on the CLB Fails to Identify Any Error of Law or Abuse of Discretion in LBP-21-4 Next, Petitioners claim that the Board erred in characterizing Applicants Waiver Petition as an impermissible challenge to NRC safety determinations.96 However, Petitioners fail to identify any language in LBP-21-4 through which the Board broadly (or incorrectly) characterized the Petition in this manner or erred in reaching some unspecified conclusion on this basis. Petitioners cite a sentence from the ruling in which the Board observed that the integrity of plant systems, structures and components is a current licensing basis issue and so beyond challenge in this adjudication.97 As a general matter, the Boards statement is an accurate 93 Appeal at 23.

94 Id. at 23.

95 See, e.g., North Anna, LBP-21-4, 93 NRC at __ (slip op. at 16, 26-27).

96 Appeal at 25.

97 Id. at 25 n.47 (citing North Anna, LBP-21-4, 93 NRC at __ (slip op. at 26 & n.45)).

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summary of controlling law, as supported by the Turkey Point precedent cited by the Board.98 Petitioners do not claim or demonstrate otherwise.99 Moreover, even in the Appeal, Petitioners continue to advance claims regarding the adequacy of the CLB.100 This, alone, exposes the meritless nature of Petitioners assertion of error.

Furthermore, to the extent Petitioners assert that the existence of a relationship between safety and environmental issues in NRC licensing reviews somehow nullifies the license renewal scope limitation (as codified in the NRCs Part 54 regulations through notice and comment rulemaking), their argument fails to demonstrate an error of law or abuse of discretion for multiple reasons. First, this is a new argument raised for the first time on appeal, and therefore is incapable of demonstrating Board error.101 Second, it is an impermissible attack on duly-promulgated Commission regulations.102 Third, it disregards the Commissions explicit consideration of this very issue, as explained in the GEIS:

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 98 North Anna, LBP-21-4, 93 NRC at __ (slip op. at 26 n.45) (citing Turkey Point, CLI-01-17, 54 NRC at 7).

99 Indeed, Petitioners acknowledged this prohibition at the outset. See Petition at 37.

100 See, e.g., Appeal at 2 (arguing that North Annas design is inadequate). Petitioners state elsewhere in the Appeal that they are not challenging the design basis for any purpose governed by the [AEA]. Id. at 29.

But, given the existence of numerous conflicting statements on this issue, and the muddled nature of Petitioners arguments, the Board cannot be faulted for considering the possibility that Petitioners were attempting to challenge the CLB and holding (correctly so) that such a challenge would be impermissible.

101 See USEC, CLI-06-10, 63 NRC at 458.

102 See 10 C.F.R. § 2.335.

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environmental issues are not considered as part of the safety review.103 In sum, Petitioners do not even attempt to explain any purported connection between this line of argument and any alleged error of law or abuse of discretion in the Boards evaluation of one or more unspecified Millstone elements.

4. Petitioners Views Regarding NEPA Fail to Identify Any Error of Law or Abuse of Discretion in LBP-21-4 Finally, Petitioners include in their Appeal a section opining on what a NEPA-compliant environmental analysis would entail.104 This discussion of general issues and Petitioners views does not mention or discuss LBP-21-4, nor does it purport to identify any deficiency therein.

Accordingly, these statements provide no grounds to disturb the Boards decision.

C. Petitioners Fail to Identify Any Error of Law or Abuse of Discretion in the Boards Determination That the Proposed Contention Failed to meet the Section 2.309(f)(1) Contention Admissibility Standards Petitioners summarily state that the Board erred in denying admission of [Petitioners]

contention without demonstrating why that is the case under the NRCs regulations.105 Significantly, 10 C.F.R. § 2.309(f)(1) states that a hearing request must set forth with particularity the contentions sought to be raised, and that each contention must:

1. Provide a specific statement of the issue of law or fact to be raised or controverted;
2. Provide a brief explanation of the basis for the contention;
3. Demonstrate that the issue raised in the contention is within the scope of the proceeding;
4. Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; 103 2013 GEIS at 1-8 (emphasis added).

104 Appeal at 26-27.

105 Id. at 27-29.

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5. 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
6. Provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact.106 As the Board correctly noted, Petitioners must satisfy all six criteria, and a failure to comply with any of the requirements constitutes grounds for rejecting a proposed contention.107 Ultimately, the Board held that Petitioners generalized claims of missing or inadequate discussion, unsupported by any relevant technical analysis, fails to cross the threshold of providing sufficient factual or expert opinion support or of establishing a material dispute with the application, as required by section 2.309(f)(1)(v)-(vi).108 The Board also held that the contention demand[ed] an analysis that is not required by the agencys environmental regulations, such that it was inadmissible because it was neither material to the findings the NRC must make nor does it establish a genuine dispute with the application under section 2.309(f)(1)(iv) and (vi).109 As detailed below, the Appeal fails to identify any error of law in the Boards contention admissibility analysis. Notably,Section IV.C. of the Appealin which Petitioners purport to discuss the Boards alleged error in denying the contentiondoes not, even once, mention or discuss the Section 2.309(f)(1) criteria. It does not explain how the proposed contention allegedly satisfied all six of those unacknowledged criteria. It does not engage with any of the Boards specific legal and factual reasoning and conclusions as to those criteria. And it does not provide any explanation as to how any of those unacknowledged conclusions regarding the 106 10 C.F.R. § 2.309(f)(1).

107 North Anna, LBP-21-4, 93 NRC at __ (slip op. at 30) (citations omitted).

108 Id. at __ (slip op. at 33).

109 Id. at __ (slip op. at 34-35).

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2.309(f)(1) criteria constitutes an error of law or abuse of discretion. Instead, Petitioners offer generalized observations and platitudes that provide no grounds to justify overturning the Boards well-reasoned analysis.

In broad terms, the Appeal largely refers to Petitioners arguments regarding the Waiver Request as support for their claim that the Boards contention admissibility decision is erroneous.

However, as discussed above, those arguments are meritless and fare no better here.

For example, Petitioners claim the Boards rejection of the proposed contention rests primarily on the Boards assumption that the ER is sufficient.110 Petitioners then cross-reference their related arguments as to the Waiver Request.111 But, Petitioners failed to identify any improper assumptions by the Board.112 Similarly, Petitioners repeat their argument that the existence of a relationship between safety and environmental issues in NRC licensing reviews somehow nullifies the scope of license renewal as codified in 10 C.F.R. Part 54.113 As noted above, this line of argument fails to identify any error of law or abuse of discretion by the Board because it was raised for the first time on appeal.114 Moreover, even if it had been raised before the Board, it would have been rejected as an impermissible attack on Commission regulations and because it disregards the Commissions contrary determination in the GEIS.115 Petitioners also note the Boards conclusion that, to the extent the Petition was intended as a challenge to the Applicants incorporation of the GEIS by reference into the SLRA, it failed to establish a material factual dispute under Section 2.309(f)(1)(vi).116 Petitioners argue that this 110 Appeal at 27.

111 Id. at 28.

112 See supra Section IV.B.1.

113 Appeal at 29.

114 See supra Section IV.B.3.

115 See id.

116 Appeal at 28 (citing North Anna, LBP-21-4, 93 NRC at __ (slip op. at 32 n.59)).

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holding is irrelevant because the incorporated content does not resolve their concern.117 However, Petitioners do not dispute the fact that the Boards ruling on this issue is legally sound, and do not allege any abuse of discretion. Thus, Petitioners commentary in this regard is irrelevant to the instant appeal.

Next, Petitioners assert that the Board barred them from raising uncertainties about the behavior and reliability of aging SSCs.118 But that claim is unsupported. In their Petition, Petitioners cited certain safety-related technical studies that identified areas for further academic and industry inquiry regarding aging management. Petitioners unquestionably could have attempted to use this information to challenge one or more of the aging management programs (AMPs) submitted with the safety portion of the SLRAbut they chose not to do so. Instead, Petitioners chose to submit an environmental contention. In the language quoted by Petitioners,119 the Board simply observed that Petitioners off-topic safety arguments did not support their environmental contention. The Boards objectively-correct observation (which Petitioners do not dispute here) did not bar anything.

Finally, Petitioners claim the Board erred in finding that the aforementioned uncertainties had been adequately addressed by NRC guidance that post-dates the studies cited by Petitioners.120 However, Petitioners mischaracterize the Boards statement. The Board simply observedcorrectly sothat Petitioners failed to acknowledge the relevant guidance in their Petition, and thus had disregarded, rather than disputed, relevant information.121 On 117 Id.

118 Id.

119 Id. at 29 (quoting North Anna, LBP-21-4, 93 NRC at __ (slip op. at 34)).

120 Id.

121 North Anna, LBP-21-4, 93 NRC at __ (slip op. at 33 n.61).

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appeal, Petitioners now complain that the subject guidance did not resolve their criticisms.122 But this belated acknowledgement of relevant information, and after-the-fact challenge thereto, fail to identify any error by the Board on an argument it never had the opportunity to consider.

In sum, Petitioners failed to identify any error of law or abuse of discretion in the Boards application of controlling precedent regarding the need for a waiver, or in the Boards determination that the Waiver Request failed to meet the Section 2.335(b) standards. Thus, Petitioners have not carried their burden to justify disturbing LBP-21-4. Alternatively, even if a waiver was not required as a prerequisite to admission of the proposed contention, Petitioners failed to identify any error of law or abuse of discretion in the Boards contention admissibility analysis. This provides a second and independent basis affirm LBP-21-4.

V. CONCLUSION For any or all of the reasons set forth above, the Commission should affirm LBP-21-4.

122 Appeal at 28-29.

27

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

William S. Blair, Esq. Kathryn M. Sutton, Esq.

DOMINION ENERGY SERVICES, INC. Paul M. Bessette, Esq.

120 Tredegar Street, RS-2 MORGAN, LEWIS & BOCKIUS LLP Richmond, VA 23219 1111 Pennsylvania Avenue, N.W.

(561) 267-7459 Washington, D.C. 20004 william.s.blair@dominionenergy.com (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 18th day of May 2021 28

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: )

) Docket Nos. 50-338-SLR and VIRGINIA ELECTRIC AND POWER COMPANY ) 50-339-SLR and OLD DOMINION ELECTRIC COOPERATIVE )

) May 18, 2021 (North Anna Power Station, Units 1 and 2) )

)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Applicants Brief in Opposition to Appeal of LBP-21-4 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 DB1/ 121147115

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