ML21138A942

NRC Staffs Brief in Response to Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginias Appeal of LBP-21-4

ML21138A942
Person / Time
Site:	North Anna
Issue date:	05/18/2021
From:	Jones T, Naber A NRC/OGC
To:	NRC/OCM
SECY RAS
References
50-338-SLR, 50-339-SLR, ASLBP 21-970-01-SLR-01, LBP-21-4, RAS 56088
Download: ML21138A942 (32)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of VIRGINIA ELECTRIC AND POWER COMPANY (North Anna Power Station, Units and Docket No. --SLR

--SLR NRC STAFFS BRIEF IN RESPONSE TO BEYOND NUCLEAR, SIERRA CLUB, AND ALLIANCE FOR PROGRESSIVE VIRGINIAS APPEAL OF LBP--

Anita Ghosh Naber Travis Jones May,

TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES............................................................................................................ ii INTRODUCTION...........................................................................................................................

BACKGROUND............................................................................................................................

DISCUSSION................................................................................................................................

I.

Legal Standards for Review..............................................................................................

A.

Standards Applicable for Commission Review......................................................

B.

Contention Admissibility Standards.......................................................................

C.

Standards Governing Petitions for Waiver............................................................

D.

Environmental Review of Subsequent License Renewal Applications..................

II.

Petitioners Do Not Show Legal Error or Abuse of Discretion in the Boards Ruling on the Waiver Petition......................................................................................................

A.

Petitioners Do Not Show Error in the Boards Ruling on the Second Millstone Factor Regarding Whether Special Circumstances Previously Not Considered Exist............................................................................................

B.

Petitioners Do Not Show Error in the Boards Ruling on the Third Millstone Factor Regarding Whether There are Special Circumstances Unique to North Anna...........................................................................................

C.

Petitioners Do Not Show Error in the Boards Ruling on the Fourth Millstone Factor Regarding Whether a Waiver Was Needed to Reach a Significant Safety or Environmental Problem.......................................................

III.

Petitioners Do Not Demonstrate Error in the Boards Rejection of Petitioners Sole Contention............................................................................................

CONCLUSION............................................................................................................................

- ii -

TABLE OF AUTHORITIES Judicial Opinions Marsh v. Oregon Natural Resources Council, U.S., - ()...............................

Massachusetts v. NRC, F.d (st Cir. ).....................................................................

Commission Legal Issuances AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI--, NRC ()................................................................................................

Calvert Cliffs Nuclear Project, LLC and UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit ), CLI--, NRC ()....................,

Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units and ),

CLI--, NRC ()..............................................................................................

Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units and ),

CLI--, NRC ().................................................................................................

Dominion Nuclear Conn. (Millstone Nuclear Power Station, Unit ),

CLI--, NRC ()................................................................................................

Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units and ),

CLI--, NRC ()............................................................................................,

Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station),

CLI--, NRC ()................................................................................................

Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI--, NRC ().....................................................

Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), CLI--, NRC ()....................................

Exelon Generation Co. (Limerick Generating Station, Units and ),

CLI--, NRC ()......................................................................................,,,

Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units and ),

CLI--, NRC __ (Nov., ) (slip op.).............................................................,,

Fla. Power & Light Co. (Turkey Point Generating Units and ),

CLI--, NRC ().............................................................................................,

- iii -

Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units and ),

CLI--, NRC ()...........................................................................................,

Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units and ),

CLI--, NRC ()............................................................................................,,

Fla. Power & Light Co. (Turkey Point Nuclear Generating Units and ),

CLI--, NRC ().............................................................................................,

Fla. Power & Light Co. (Turkey Point Nuclear Generating Units and ),

CLI--, NRC ().......................................................................................,,

Holtec International (HI-STORE Consolidated Interim Storage Facility),

CLI--, NRC ()..............................................................................................,

International Uranium (USA) Corp. (White Mesa Uranium Mill),

CLI--, NRC ().................................................................................................

Pac. Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units and ),

CLI--, NRC ().................................................................................................

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units and ),

CLI--, NRC ()...................................................................................................

Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),

CLI--, NRC ()...................................................................................................

Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI--, NRC ()........................,,

USEC Inc. (American Centrifuge Plant), CLI--, NRC ().......................,,,

Atomic Safety and Licensing Appeal Board Decisions South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit ),

ALAB-, NRC ()..............................................................................................,

Atomic Safety and Licensing Board Decisions Carolina Power & Light Co. (Shearon Harris Nuclear Plant, Unit ),

LBP--, NRC ()..................................................................................................

Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units and ),

LBP--, NRC ()..................................................................................................

South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Unit ),

LBP--, NRC ()...............................................................................................

- iv -

South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Unit ),

LBP--, NRC ()..............................................................................................

Virginia Elec. & Power Co. (North Anna Power Station, Units and ),

LBP--, NRC __ (March, ) (slip op.).......................................................... passim Director's Decisions Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units and ),

DD--, NRC ()....................................................................................................

Statutes NEPA, U.S.C. § et seq............................................................................................ passim Regulations C.F.R. §.(f).................................................................................................................,

C.F.R. §.(f)()-()..............................................................................................................

C.F.R. §.(f)()(v) - (vi)....................................................................................................

C.F.R. §.(f)()...................................................................................................................

C.F.R. §.............................................................................................................................

C.F.R. §.(c)........................................................................................................................

C.F.R. §.(d).......................................................................................................................

C.F.R. §...........................................................................................................................

C.F.R. §.(a)......................................................................................................................

C.F.R. §.(b)......................................................................................................................

C.F.R. §.(c)......................................................................................................................

C.F.R. §.(d)......................................................................................................................

C.F.R. §...............................................................................................................................

C.F.R. §...........................................................................................................................

C.F.R. §.(a).....................................................................................................................

- v -

C.F.R. §.(c)().................................................................................................................

C.F.R. §.(c)()...................................................................................................................

C.F.R. §.(c)()(i)..........................................................................................................,

C.F.R. §.(c)()(i)-(ii).........................................................................................................

C.F.R. §.(c)()(ii)(O).......................................................................................................

C.F.R. §.(c)()(iv)..............................................................................................................

C.F.R. §.(d)...................................................................................................................,

C.F.R. §.(c)()..............................................................................................................,

C.F.R. Part, Appendix B..................................................................................................,

C.F.R. Part..........................................................................................................................

C.F.R. Part, Appendix A.....................................................................................................

Miscellaneous Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, Fed. Reg., (June, ).......................................................................

Final rule, Nuclear Power Plant License Renewal, Fed. Reg.,,,

(Dec., )........................................................................................................................

Final rule, Nuclear Power Plant License Renewal; Revisions, Fed. Reg.,

(May, )..........................................................................................................................

Final Rule, Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, Fed. Reg., (June, )................................................,

Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-, rev., vol. (May ).......................................................................... passim Generic Environmental Impact Statement for License Renewal of Nuclear Power PlantsFinal Report, NUREG-, rev., vol. (May )....................................... passim North Anna Power Station, Units and, Fed. Reg., (Sept., ).........................

North Anna Power Station, Units and, Fed. Reg., (Oct., )...........................

Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, Fed. Reg., (June, ).....................................................................

- vi -

Staff RequirementsSECY--Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal (Aug., )...............

May,

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of VIRGINIA ELECTRIC AND POWER COMPANY (North Anna Power Station, Units and Docket No. --SLR

--SLR NRC Staffs Brief in Response to Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginias Appeal of LBP--

INTRODUCTION The staff of the U.S. Nuclear Regulatory Commission hereby responds to the appeal filed by Beyond Nuclear, Inc., Sierra Club, Inc., and Alliance for Progressive Virginia, Inc.

(collectively, Petitioners) on April,,1 seeking review of the Atomic Safety and Licensing Boards decision in LBP--. In that decision, the Board found that Petitioners failed to demonstrate that their waiver petition and proposed contention met the applicable requirements; the Board therefore denied Petitioners intervention and waiver petitions and terminated the proceeding.2 As set forth below, the Staff submits that Petitioners have not shown that the Board committed any error of law or abuse of discretion in its decision. Accordingly, the Boards decision should be affirmed.

1 Brief on Appeal of LBP-- by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia (Apr.

, ) (Appeal).

2 Virginia Elec. & Power Co. (North Anna Power Station, Units and ), LBP--, NRC __ (Mar.,

) (slip op.)

BACKGROUND This proceeding concerns the subsequent license renewal application (SLRA) submitted by Virginia Electric and Power Company (VEPCO) in August 3 for Renewed Facility Operating License Nos. NPF-and NPF-to permit an additional years of operation of North Anna Units and. The current renewed operating licenses for Units and expire at midnight on April, and August,, respectively.4 Thus, VEPCO seeks to extend the renewed operating licenses to April,, and August,, respectively.5 The NRC published a notice of receipt of the North Anna SLRA on September,.6 Subsequently, the NRC determined that the application was acceptable for docketing and published a notice of opportunity to request a hearing and to petition for leave to intervene.7 Petitioners timely filed a request for hearing and petition for leave to intervene.8 A Board was subsequently established to rule on the petitions and preside over any contested proceeding.9 The Staff and VEPCO both responded to the petition for leave to intervene,10 to which 3 North Anna Power Station Units and, Application for Subsequent License Renewal (August )

(MLG) (SLRA). The application includes Appendix E, Applicants Environmental Report, Subsequent Operating License Renewal Stage, North Anna Power Station Units and (MLG)

(ER).

4 North Anna Power Station, Unit No., Renewed Facility Operating License No. NPF-at (ML); North Anna Power Station, Unit No., Renewed Facility Operating License No. NPF-at (ML); see also SLRA at -.

5 See SLRA at -.

6 North Anna Power Station, Units and, Fed. Reg., (Sept., ).

7 North Anna Power Station, Units and, Fed. Reg., (Oct., ).

8 Hearing Request and Petition to Intervene by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia and Petition for Waiver of C.F.R. §§.(c)()(i),.(d), and.(c)() to Allow Consideration of Category NEPA Issues (Dec., ) (Petition). Petitioners also submitted a request for a -day extension of the December, filing deadline. Their extension request was denied on December,. Order of the Secretary (Dec., ) (unpublished), at (MLA).

9 Virginia Electric and Power Co. (North Anna Power Station, Units and ), Establishment of Atomic Safety and Licensing Board (Dec., ) (MLA).

10 See 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., ) (VEPCO Answer); 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., ) (Staff Answer).

Petitioners replied on January,.11 Neither the Staff nor VEPCO challenged Petitioners standing to intervene, although both opposed the admissibility of Petitioners contention, and on February,, the Board conducted oral argument on contention admissibility and Petitioners waiver request.12 On March,, the Board issued LBP--, in which it denied Petitioners intervention and waiver petitions and terminated the proceeding. Petitioners now appeal the Boards decision, claiming that the Board erred in denying Petitioners hearing request.13 DISCUSSION In LBP--, the Board considered and addressed Petitioners waiver petition and the admissibility of their contention. On appeal, Petitioners argue that the Board erred in denying the waiver petition and in ruling that Petitioners contention fails to meet the contention admissibility standards in C.F.R. §.(f).14 Below, the Staff provides the applicable legal principles governing Petitioners appeal and explains why the Boards decision should be affirmed.

11 Reply by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia to Oppositions to Hearing Request and Waiver Petition, (Jan., ) (Petitioners Reply).

12 See Virginia Elec. & Power Co. (North Anna Power Station, Units and ), Official Transcript of Proceedings, at - (Feb., ); see also Licensing Board Memorandum and Order (adopting Transcript Corrections for Initial Prehearing Conference) (Feb., ) (unpublished).

13 Brief on Appeal of LBP-- by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia (Apr.

, ) (Appeal).

14 Id. at -. Petitioners also argue that the Board erred in adhering to the Commissions rulings in Turkey Point and Peach Bottom, that C.F.R. §.(c)() applies to the ER submitted by VEPCO as part of its SLRA. However, Petitioners assertions that the Board erred in this respect fail to demonstrate legal error or abuse of discretion. As Petitioners themselves acknowledge, the Boards ruling on this issue clearly recognized that the Commissions decisions in Fla. Power & Light Co. (Turkey Point Generating Units and ), CLI--, NRC () and Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units and ), CLI--, NRC __, __ (Nov., ) (slip op. at -), constitute binding precedent that the Board must follow in this proceeding. See, e.g., Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Unit ), LBP--, NRC, n. () (citing South Carolina Electric

& Gas Co. (Virgil C. Summer Nuclear Station, Unit ), ALAB-, NRC, ()) (noting that licensing boards are bound to comply with Commission adjudicatory decisions, whether they agree with them or not).

I.

Legal Standards for Review A. Standards Applicable to Commission Review Under C.F.R. §., a Board order denying a hearing request entirely is appealable by the requestor on the question as to whether the request should have been granted.15 On review, the Commission generally defers to a licensing boards threshold rulings on standing and contention admissibility unless it finds an error of law or abuse of discretion.16 Further, the Commission generally defer[s] to the board on questions pertaining to the sufficiency of factual support for the admission of a contention.17 The Commission has long held that it will not grant an appeal of a threshold determination on contention admissibility that does not point to an error of law or abuse of discretion by the board but simply restates the appellants prior positions or its general disagreement with the boards decision.18 A petitioner is not permitted to present[] arguments and evidence never provided to the Board.19 And an argument that was previously made before the presiding officer but is not reiterate[d] or explain[ed] on appeal is considered abandoned.20 For questions of law, the 15 C.F.R. §.(c), (d).

16 See, e.g., Holtec International (HI-STORE Consolidated Interim Storage Facility), CLI--, NRC

, (); see also Calvert Cliffs Nuclear Project, LLC and UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit ), CLI--, NRC, () (We give substantial deference to our boards determinations on threshold issues, such as standing and contention admissibility, and we will affirm decisions on the admissibility of contentions where the appellant points to no error of law or abuse of discretion.) (internal quotation marks omitted).

17 Holtec, CLI--, NRC at.

18 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Units and ), CLI--, NRC,

().

19 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI--, NRC, - () (quoting USEC Inc. (American Centrifuge Plant), CLI--, NRC, ()).

20 International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI--, NRC, ().

Commissions review is de novo.21 The Commission may affirm a boards decision on any ground finding support in the record, whether previously relied upon or not.22 B. Contention Admissibility Standards The legal requirements governing the admissibility of contentions are set forth in C.F.R. §.(f)()-(). A petition must set forth with particularity the contentions that a petitioner seeks to raise and, for each contention, the petition 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;23 (iii)

Demonstrate that the issue raised in the contention is within the scope of the proceeding;24 (iv)

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;25 (v)

Provide a concise statement of the alleged facts or expert opinions that support the petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue;26 and 21 See, e.g., Fla. Power & Light Co. (Turkey Point Nuclear Generating Units and ), CLI--, NRC

, ().

22 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI--, NRC, ().

23 Contentions cannot be based on speculation and must have some reasonably specific factual or legal basis. Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc., (Vermont Yankee Nuclear Power Station), CLI--, NRC, ().

24 All proffered contentions must be within the scope of the proceeding as defined by the Commission in its initial hearing notice and order referring the proceeding to the licensing board. See Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units and ), CLI--, NRC, (). Any contention that falls outside the specified scope of the proceeding must be rejected. See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units and ), CLI--, NRC, - ().

25 A dispute at issue is material if its resolution would make a difference in the outcome of the licensing proceeding. Holtec, CLI--, NRC at (internal quotations omitted).

26 The petitioner is obliged to present the facts and expert opinions necessary to support its contention.

See USEC Inc. (American Centrifuge Plant), CLI--, NRC, () (it is the petitioners responsibility to satisfy the basic contention admissibility requirements; Boards should not have to search

(vi)

Provide sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief.27 On issues arising under the National Environmental Policy Act, participants shall file contentions based on the applicants environmental report.28 Under the Commissions caselaw, and absent a waiver, a contention must be rejected if it challenges applicable statutory requirements, regulations, or the basic structure of the Commissions regulatory process.29 C. Standards Governing Petitions for Waiver In general, NRC regulations are not subject to attack in an adjudicatory proceeding;30 but the application of a specific regulation may be waived or an exception may be made for a particular proceeding, upon the Commissions grant of a petition for waiver.31 Because rules apply generically a waiver request must demonstrate that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or through a petition to uncover arguments and support for a contention, and may not simply infer unarticulated bases of contentions).

27 To show that a genuine dispute exists, the contention must include references to specific portions of the application that the petitioner disputes and the supporting reasons for each dispute and if the petitioner believes that the application fails to contain information on a relevant matter, the contention must identify each failure and the supporting reasons for the petitioners belief. Exelon Generation Co.

(Peach Bottom Atomic Power Station, Units and ), CLI--, NRC __, __ (Nov., ) (slip op.

at ).

28 C.F.R. §.(f)().

29 C.F.R. §.(a); see Dominion Nuclear Conn. (Millstone Nuclear Power Station, Unit ), CLI--,

NRC, ().

30 C.F.R. §.(a); see Millstone, CLI--, NRC at.

31 C.F.R. §.(a).

regulation (or a provision of it) would not serve the purpose for which the rule or regulation was adopted.32 If the presiding officer determines that the petitioner has failed to make a prima facie showing that the application of the specific Commission rule or regulation (or provision thereof) to a particular aspect of the proceeding would not serve the purposes for which the rule or regulation was adopted, and has failed to show that application of the rule or regulation should be waived or an exception should be granted, then the presiding officer may not further consider the matter.33 Moreover, even if the presiding officer determines that a prima facie showing has been made, then before ruling on the petition, the presiding officer is required to certify the matter directly to the Commission for a determination of whether application of the rule or regulation should be waived or if an exception should be made.34 The Commission has established a four-factor test for waiver applications:

(i) the rules strict application would not serve the purposes for which it was adopted; (ii) 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; (iii) those circumstances are unique to the facility rather than common to a large class of facilities; and (iv) waiver of the regulation is necessary to reach a significant safety or environmental problem.35 32 C.F.R. §.(b); see Pac. Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units and ),

CLI--, NRC, (). The petition must be accompanied by an affidavit that identifies the specific aspect or aspects of the subject matter of the proceeding as to which the application of the rule or regulation (or provision of it) would not serve the purposes for which the rule or regulation was adopted.

The affidavit must state with particularity the special circumstances alleged to justify the waiver or exception requested. C.F.R. §.(b). Other participants may file a response by counter-affidavit or otherwise. Id 33 C.F.R. §.(c).

34 Id. §.(d).

35 Diablo Canyon, CLI--, NRC at (citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units and ), CLI--, NRC, - ()). The Commission has clarified that the fourth factor also may apply to a significant environmental issue. Exelon Generation Co.

(Limerick Generating Station, Units and ), CLI--, NRC, ().

Petitioners must satisfy all four factors to obtain a waiver.36 The waiver standard is stringent by design, and the waiver petitioner faces a substantial burden.37 To challenge the generic application of a rule, a petitioner seeking waiver of the rule must show that there is something extraordinary about the subject matter of the proceeding such that the rule should not apply.38 D. Environmental Review of Subsequent License Renewal Applications The National Environmental Policy Act of, as amended (NEPA), U.S.C. § et seq., requires federal agencies to include in any recommendation or report on proposals for major Federal actions significantly affecting the quality of the human environment, a detailed statement on the environmental impacts of the action.39 The NRC has adopted regulations in C.F.R. Part that address the scope of environmental reviews for license renewal applications.40 Appendix B to Part delineates the issues that are to be considered in license renewal environmental reviews.41 The regulations in Appendix B divide the license renewal environmental review into Category generic issues and Category site-specific issues,42 based on and consistent with the Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG- (). The GEIS addresses the generic 36 Millstone, CLI--, NRC at.

37 Limerick, CLI--, NRC at,.

38 Id. at.

39 NEPA, § ()(C), U.S.C. §.

40 C.F.R. §.; see Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units and ),

CLI--, NRC, - ().

41 The regulations in Part and Appendix B were last updated in. See Final Rule, Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, Fed. Reg.,

(June, ).

42 See Generic Environmental Impact Statement for License Renewal of Nuclear Power PlantsFinal Report, NUREG-, rev., vol., at - (May ) (MLA) ( GEIS); Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-, rev., vol.

(May ) (ML) ( GEIS). The findings of the environmental impact analyses conducted for the GEIS (as revised in ) are listed in Table B-of Appendix B.

environmental impacts of operating a plant for an additional years that are common to all plants or to a specific subgroup of plants.43 A license renewal applicant is generally not required to discuss Category issues in its environmental report, but instead may reference and adopt the NRCs generic findings set forth in C.F.R. Part and the GEIS.44 And under C.F.R. §.(c)()(iv), an applicants environmental report must contain any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware. These requirements apply to both initial and subsequent license renewal applications.45 Thus, an applicant must provide a plant-specific review of the Category issues in its environmental report, along with any new and significant information that might render the Category determinations inapplicable in that proceeding.46 Like the applicant, the NRC staff is not required to address Category issues in its plant-specific supplemental EIS (SEIS), which it publishes as a supplement to the GEIS. But the Staff must address any new and significant information that might affect the applicability of the NRCs generic Category determinations in the proceeding.47 The Staff must also address any new 43 See GEIS, vols. - (MLA, MLA, and MLA). The Commission used the findings and analyses contained in the and iterations of the GEIS as the technical basis for its revisions of C.F.R. Part defining the scope of its environmental reviews of license renewal under NEPA. Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996); Final Rule, Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, Fed. Reg., (June, ). The Staffs license renewal environmental review is guided by the GEIS.

44 Turkey Point, CLI--, NRC at. The Commission has emphasized that generic analysis is an appropriate method of meeting the agency's statutory obligations under NEPA. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station),

CLI--, NRC, - () (citing Massachusetts v. NRC, F.d (st Cir. )).

45 Turkey Point, CLI--, NRC at -; accord, Peach Bottom, CLI--, NRC at __ (slip op. at

).

46 See, e.g., Limerick, CLI--, NRC at -; Turkey Point, CLI--, NRC at -; Pilgrim/

Vermont Yankee, CLI--, NRC at.

47 See, e.g., Limerick, CLI--, NRC at -; Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units and ), LBP--, NRC, ().

and significant information that might affect the Staffs previous severe accident mitigation alternatives (SAMA) analysis.48 Contentions raising environmental issues in a license renewal proceeding are limited to those issues that are affected by license renewal and have not been addressed by rulemaking or on a generic basis.49 As the Commission has stated, Category issues are not subject to site-specific review and thus fall beyond the scope of individual license renewal proceedings.50 Further, because the generic environmental analysis was incorporated into a regulation, the conclusions of that analysis may not be challenged in litigation unless the rule is waived by the Commission for a particular proceeding or the rule itself is suspended or altered in a rulemaking proceeding.51 Accordingly, a contention challenging a Category generic determination, even if based on new and significant information, can only be admitted if the Commission grants a waiver of its regulations.52 II. Petitioners Do Not Show Legal Error or Abuse of Discretion in the Boards Ruling on the Waiver Petition As discussed in Section III below, Petitioners contention raised concerns regarding the ERs failure to consider the environmental significance of a beyond-design-basis magnitude.

48 See Limerick, CLI--, NRC at, - (citing Marsh v. Oregon Natural Resources Council, U.S., - ()).

49 Turkey Point, CLI--, NRC at -; see C.F.R. §.(c)()(i)-(ii).

50 Turkey Point, CLI--, NRC. at ; see C.F.R. §.(c)()(i)-(ii). In Turkey Point, the Commission recognized that the rules provide a number of opportunities for individuals to alert the Commission to new and significant information that might render a generic finding invalid, either with respect to all nuclear power plants or for one plant in particular. In the hearing process, for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule." Turkey Point, CLI--, NRC at.

51 Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI--, NRC, (footnotes omitted), reconsid. denied, CLI--, NRC,

(); accord Massachusetts v. NRC, F.d at. This approach has been found to comply with NEPA. See, e.g., Id. at -.

52 Accord, Exelon Generation Co. (Limerick Generating Station, Units and ), CLI--, NRC,

() (a waiver is required to litigate new information concerning SAMA issues, where the plants SAMAs were previously considered in an EIS).

earthquake that took place in Mineral, Virginia on August,.53 Petitioners sought a waiver of the NRCs regulations in C.F.R. §§.(c)()(i),.(d), and.(c)(), to the extent they bar consideration of Category issues in this proceeding.54 In LBP--, the Board considered the waiver issue first and found that Petitioners did not meet their burden under C.F.R. §. and Commission caselaw to make a prima facie showing regarding three of the four Millstone factors.55 On appeal, Petitioners argue that the Board erred in denying the petition.56 The Boards decision should be affirmed because Petitioners do not show that the Board committed an error of law or abuse of discretion, and they raise arguments that are either new on appeal or merely restate Petitioners prior positions without showing Board error. In particular, as described below, Petitioners do not show legal error or an abuse of discretion in the Boards rulings regarding three of the Millstone factors: () whether special circumstances exist that were not considered in the rulemaking proceeding where the NRC adopted C.F.R.

Part, Appendix B; () whether the circumstances brought forward by Petitioners were unique to North Anna; and () if waiver of the regulation was necessary to reach a significant safety or environmental problem. Accordingly, the Boards decision should be affirmed.

53 Petition at -. For a summary of the North Anna design-basis earthquake (DBE) and the NRCs oversight activities related to seismic conditions at North Anna following the Mineral earthquake, see Staff Answer at -. See also LBP--, NRC at __ (slip op. at -).

54 Petition at. The NRC Staff and VEPCO agreed that a waiver is necessary to litigate Petitioners contention; but Petitioners failed to make the required prima facie showing under C.F.R. §. that the regulations should be waived because Petitioners did not meet any of the four Millstone factors. Staff Answer at -; VEPCO Answer at -.

55 LBP--, NRC at __ (slip op. at -).

56 Appeal at.

A. Petitioners Do Not Show Error in the Boards Ruling on the Second Millstone Factor Regarding Whether Special Circumstances Previously Not Considered Exist In their initial petition, Petitioners asserted that special circumstances exist that were previously not considered because the NRC has not considered the environmental significance of the Mineral earthquake at North Anna Units and.57 In LBP--, the Board found that Petitioners did not identify any special circumstances that were not considered explicitly or through bounding analyses in the GEIS, the GEIS, and the new and significant analyses in VEPCOs ER.58 On appeal, Petitioners argue that the Boards ruling was based on the erroneous assumption that the severe accident analysis in the GEIS, the Revised GEIS, and VEPCOs [ER] fully addressed the environmental significance of the Mineral Earthquake for North Anna Units and.59 Petitioners also argue that the Board disregarded the NRCs fundamentally different purposes and conceptual frameworks for NEPA design-basis accidents and severe accident analyses and assumed there is no significant distinction between the NRCs methods for the two analyses.60 Petitioners have not shown Board error. As the Board observed, Petitioners analysis misinterprets the scope of the GEIS conclusions the GEIS SMALL impact conclusions are not based solely on the plants design basis.61 In this regard, the Board noted that in the and GEIS rulemaking processes, the NRC addressed the environmental impacts associated with both design-basis and severe, i.e., beyond-design-basis, accidents and associated seismic 57 Petition at.

58 LBP--, NRC at __ (slip op. at -).

59 Appeal at.

60 Id. at -.

61 LBP--, NRC at __ (slip op. at )

events at domestic nuclear facilities, including North Anna.62 The Board also explained that VEPCOs ER addresses new and significant information with respect to the generic findings for design-basis accidents and severe accidents and for the North Anna SAMA analysis, which included consideration of a seismic probabilistic risk assessment that took into account the Mineral earthquake.63 On that basis, the Board determined that the environmental consequences of design-basis and severe accidents, including the risk of a beyond DBE, have been addressed by the pertinent evaluations, and that Petitioners did not identify any special circumstances that were not considered in those evaluations.64 Petitioners fail to demonstrate that the Board committed any legal error or abuse of discretion; the Boards decision clearly recognized that the GEIS contains separate analyses for design-basis accidents and severe accidents, based on distinct analytical methods.65 Petitioners also argue that the Board erred in assuming that probabilistic methods for severe accident analysis can be applied rationally or consistently to evaluate the continuing validity of a design-basis accident analysis because the analyses are based on completely different assumptions.66 As support, Petitioners assert that an earthquake that occurred in formed the basis for North Annas DBE and that a probabilistic approach and cost-benefit analysis were not used in the initial licensing process with respect to the earthquake.67 62 Id. at __ (slip op. at ) (noting that the GEIS expanded the scope of the severe accident evaluation in the GEIS by using more recent technical information, such as core damage frequencies associated with, among other things, seismic events).

63 Id. at __ (slip op. at -). A SAMA analysis was conducted for the North Anna initial license renewal application. ER at E-- - ; see Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 7, regarding North Anna Power Station, Units 1 and 2, Final Report, Section 5.2 (November 2002) (ML).

64 LBP--, NRC at __ (slip op. at ).

65 See id. at __ (slip op. at - n.) (quoting portions of the analyses in the GEIS for the design-basis accident and severe accident findings, as they relate to seismic hazards, and noting their distinct bases); Id. at __ (slip op. at n.).

66 Appeal at.

67 Id. Petitioners also assert that the NRCs findings for North Anna at initial licensing were based on the assumption that an earthquake more severe than the earthquake would not occur, and that an

Petitioners now argue, for the first time on appeal, that the Mineral earthquake should be treated like the historic earthquake in initial licensing (i.e., incorporated into the plants design basis). These assertions should be rejected because they raise new arguments that were not previously raised before the Board.68 These arguments should also be rejected because they impermissibly challenge North Annas current licensing basis69 and the NRC Staffs operating license determinations following the Mineral earthquake that North Anna could be safely restarted without requiring a modification to North Annas design basis.70 Accordingly, for the reasons discussed above, Petitioners have not shown that the Board erred or abused its discretion in finding that earthquake with severity of the earthquake would occur only once. Id. at,, -. These assertions, raised for the first time on appeal and unsupported by any expert opinion, should be rejected.

The Staff also notes that with respect to these assertions, Petitioners appear to mischaracterize the NRCs related safety findings and how the DBE was incorporated into North Annas design basis.

Petitioners assertions are based solely on design criteria specific to ASME Code Class piping, see Appeal at (quoting North Anna Updated Final Safety Analysis Report, rev., chap., at.- (Sept.

, ) (MLA) (North Anna UFSAR)), and fail to acknowledge, among other things, how the DBE was applied to other systems, structures, and components (SSCs), including Seismic Class I equipment. See, e.g., North Anna Power Station UFSAR, at.-.

68 Moreover, Petitioners do not show why these claims could not have been placed before the Board.

Shieldalloy, CLI--, NRC at - () (quoting USEC Inc. (American Centrifuge Plant),

CLI--, NRC, ()).

69 See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI--, NRC,

n. () ([A] challenge to the adequacy of the acceptance criteria (or any other component of the current licensing basis) is not within the scope of the license renewal proceeding); see generally Final rule, Nuclear Power Plant License Renewal, Fed. Reg.,,, (Dec., ) (the license renewal application should not include any changes to the current licensing basis other than those necessary to address age-related degradation unique to license renewal); Final rule, Nuclear Power Plant License Renewal; Revisions, Fed. Reg.,,, (May, ) (The intent of those provisions in the previous rule was to clarify that safety and environmental matters not unique to the period of extended operation would not be the subject of the renewal application or the subject of a hearing in a renewal proceeding absent specific Commission direction. Rather, issues that represent a current problem for operation would have been addressed in accordance with the Commissions regulatory process and procedures.).

70 The NRC Staffs determination was based on its finding that the licensee demonstrated that no functional damage occurred to those features necessary for continued operation. See generally North Anna Power Station, Units and, Technical Evaluation Related to Plant Restart after the Occurrence of an Earthquake Exceeding the Level of the Operating Basis and Design Basis Earthquakes, (Nov.,

) (MLB) (North Anna Power Station, Technical Evaluation Related to Plant Restart) (finding that North Anna could be safely restarted and operated without undue risk to the health and safety of the public).

Petitioners failed to demonstrate the existence of special circumstances that were not considered in the rulemaking proceeding for the rule sought to be waived.

B. Petitioners Do Not Show Error in the Boards Ruling on the Third Millstone Factor Regarding Whether There are Special Circumstances Unique to North Anna In their petition to intervene, Petitioners asserted that the circumstances of the Mineral earthquake are unique to North Anna because the unprecedented occurrence of the beyond-design-basis earthquake irrefutably disproves, uniquely for North Anna, the License Renewal GEIS conclusion that the environmental impacts of design-basis accidents are small because design and performance criteria for all operating reactors are acceptable.71 In LBP--, the Board found that Petitioners did not demonstrate unique special circumstances for North Anna, observing that: () the risk from severe accident externally initiated events, and specifically seismic hazards, are not unique to North Anna or to license renewal; and () while the probability of a plant undergoing a beyond-design-basis event is low, any plant can experience such a happenstance.72 On appeal, Petitioners take issue with the Boards characterization of the Mineral earthquake as a happenstance and assert that the Boards statement is inconsistent with the NRCs goal of ensuring that radiological accidents have a very low probability of occurrence.73 Petitioners further argue that the Mineral earthquake undermines the design assumptions that formed the basis for the NRCs prior licensing decisions at North Anna; and that if this earthquake had occurred before North Anna had begun operating, the plant would have been required to upgrade its SSCs.74 In addition, Petitioners assert that since this beyond-design-basis event has already occurred, it cannot fall into the GEISs severe accident category so as 71 Petition at.

72 LBP--, NRC at __ (slip op. at ).

73 Appeal at.

74 Id. at -.

to support a finding of no significant impact.75 Further, Petitioners assert that if the same Mineral earthquake were to occur at North Anna during the proposed SLR term, most or all of the reactors SSCsnow more than years old and already stressed by the Mineral Earthquakewould not have the qualified level of strength previously determined by the NRC to be necessary to withstand that earthquake.76 These arguments are unavailing for several reasons. First, Petitioners take the Boards statements out of context. Specifically, the Board used the term happenstance as part of a factual observation that the occurrence of a beyond-design-basis earthquake is not unique to North Anna, or to subsequent license renewala beyond-design-basis earthquake could occur in the vicinity of any plant, at any point in the plants operating life.77 Second, Petitioners arguments regarding the integrity of North Annas SSCs fail to demonstrate that the Board committed legal error or an abuse of discretion. The Board determined that such issues are out 75 Id. at. Petitioners appear to mischaracterize the NRCs environmental findings with respect to North Annas licensing decisions for initial licensing and license renewal as a finding of no significant impact.

See, e.g., id. at. However, the NRCs findings in these environmental documents are unrelated to the finding of no significant impact (FONSI) described in C.F.R. §., which is typically used for certain environmental assessments. To the extent Petitioners similarly mischaracterize the NRCs SMALL finding in the GEIS as a no significant impact finding, Appeal at, the Staff notes that the GEIS defines SMALL impacts as: Environmental effects are not detectable or are so minor that they will neither destabilize nor noticeably alter any important attribute of the resource. GEIS at S-.

76 Appeal at. Petitioners also make comparisons to North Anna Unit arguing that if it had operated, and a Mineral-scale earthquake had occurred, it would have had SSCs that were qualified to withstand the earthquake. Id.

77 LBP--, NRC at __ (slip op. at -). Petitioners also assert that the Board provides an erroneous interpretation of C.F.R. Part, Appendix A § (V)(a)() and the definition of an operating basis earthquake (OBE). Appeal at n.. However, a review of the Boards decision shows that the Board correctly describes and interprets the geologic and siting criteria in C.F.R. Part, Appendix A.

See LBP--, NRC at __ (slip op. at -; n.) (describing requirements in C.F.R. Part,

Appendix A, with respect to the OBE). Moreover, the Board correctly notes that the NRCs regulations anticipate[] that a facilitys OBE may be exceeded without causing a severe accident, directing in such a circumstance the actions that must be completed prior to resuming operation after such an incident. See C.F.R. Part, app. A § V(a)() (requiring that a nuclear power plant be shut down when the vibratory ground motion exceeds that of the OBE). Finally, to the extent Petitioners argue that an earthquake that reaches or exceeds the design basis may occur only once, Petitioners are impermissibly raising new arguments on appeal. See supra note.

of scope current licensing basis issues.78 Nevertheless, the Board found that: () VEPCO and the Staff have fully assessed the safety impact of the Mineral earthquake; () these evaluations resulted in a finding that the design basis of the facility remained suitable to support continued operation; and () these evaluations are consistent with the GEIS and GEIS conclusions regarding the environmental impacts of design-basis and severe accidents and the ERs discussion of new and significant information.79 Finally, Petitioners arguments essentially restate the position in their initial petition that the Mineral earthquake undermined North Annas design assumptions and its SSCs should have been revised to match those of North Anna Unit.80 Petitioners fail to demonstrate that the Board legally erred or abused its discretion in finding no special circumstances that are unique to North Anna.

C. Petitioners Do Not Show Error in the Boards Ruling on the Fourth Millstone Factor Regarding Whether a Waiver Was Needed to Reach a Significant Safety or Environmental Problem In their petition to intervene, Petitioners asserted that the beyond-design-basis Mineral earthquake established that the environmental impacts of earthquake-related accidents 78 LBP--, NRC at __ (slip op. at ).

79 Id. at __ (slip op. at -). Petitioners also argue that North Annas SSCs would not have the necessary qualified level of strength to withstand a Mineral-scale earthquake in the SLR term and that VEPCO committed to upgrading only equipment that might be replaced in the future instead of upgrading all of North Annas SSCs. Appeal at n.. But the fact that VEPCO has not revised all of North Annas existing SSCs does not demonstrate that those SSCs lack the qualified level of strength needed to withstand a similar earthquake.

80 To the extent Petitioners speculate that North Anna would have been required to revise its SSCs to meet a new design, the Staff notes that North Anna is not the only power reactor site where no change was made to the DBE after experiencing a seismic event that exceeded its OBE and DBE. See, e.g.,

Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units and ), DD--, NRC ()

(no change was made to Perrys design basis after an earthquake that exceeded Perrys OBE and DBE (safe shutdown earthquake) occurred during the operating license proceeding); CLI--, NRC,

() (Commission noted the lack of safety significance of the earthquake insofar as it affected or had the potential to affect the Perry plant in denying motion to reopen); CLI--, NRC ()

(Commission issuing Perry operating license); see also South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Unit ), LBP--, NRC () (no change was made to the DBE after an earthquake that exceeded the plants OBE and DBE (safe shutdown earthquake) occurred during construction); LBP--, NRC (), affd ALAB-, NRC () (licensing board found in favor of plant safety on seismic issues subject to applicants meeting certain conditions including continued seismic monitoring and a confirmatory program involving seismic safety margins of plant equipment and components).

at North Anna must be considered significant as a matter of law, because the occurrence of the earthquake upended the central conclusion of the original EIS for North Anna and the [

GEIS] that environmental impacts of most reactor accidents will be small.81 In LBP--, the Board rejected this claim and found that Petitioners did not demonstrate that the Mineral earthquake, in and of itself, created a significant safety or environmental issue that warrants consideration in the North Anna SLR proceeding.82 The Board also rejected Petitioners attempt to fashion a safety issue for subsequent license renewal, noting that the integrity of North Annas SSCs is a current licensing basis issue that is beyond the scope of this proceeding; and the safety impact of the Mineral earthquake has already been fully assessed by VEPCO and the Staff.83 The Board further determined that Petitioners provided no technical analysis or other relevant supporting information that would call into question the efficacy of any of VEPCOs and the Staffs evaluations, including the Staffs GEIS analyses.84 On appeal, Petitioners contend that they have not raised impermissible operating license safety issues in this proceeding, such as the integrity of SSCs.85 Rather, Petitioners assert that they challenged the continuing validity of the generic NEPA findings for North Anna, which they assert were based on safety findings.86 Petitioners argue that the agencys initial licensing decision was based on its AEA safety findings and the no significant impact findings under NEPA; Petitioners claim that the NRC may not now choose a different mode of analysis simply because an environmental/safety finding is allegedly undermined by the Mineral earthquake.87 Finally, Petitioners posit that a NEPA-compliant environmental analysis of the Mineral 81 Petition at.

82 LBP--, NRC at __ (slip op. at -).

83 Id. at __ (slip op. at ).

84 Id. at__ (slip op. at -).

85 Appeal at 86 Id. at -.

87 Id. at.

earthquake would acknowledge the methodology used for the NRCs findings in, assume the Mineral earthquake is now the historic earthquake whose probability must be incorporated into the environmental analysis, assess cost-effective measures for mitigation, and justify any departures.88 The Boards determinations in LBP-- undermine Petitioners assertions challenging the continuing validity of the generic NEPA findings for North Anna. In this regard, the Board found that: () VEPCO and the Staff have fully assessed the safety impact of the Mineral earthquake; () the and GEISs looked at design-basis and severe accidents broadly and determined that their environmental impacts were SMALL; () VEPCO concluded in its ER that there is no new and significant information regarding design-basis accidents and severe accidents relative to the GEIS and with respect to North Annas SAMA analysis; and ()

Petitioners provided no technical analysis or other relevant supporting information questioning the efficacy of VEPCOs and the Staffs evaluations, including the GEIS analyses.89 The Commission has consistently held that arguments, such as Petitioners, that simply restate the appellants prior positions and its general disagreement with the Boards decision are not sufficient to overturn a licensing boards decision.90 Further, Petitioners suggestions regarding the North Anna SLR environmental analysis should be rejected because they are based on new arguments not previously raised before the Board. Specifically, Petitioners assertions regarding () using the NRCs methodology in the environmental analysis that supported North Annas initial licensing decision,91 ()

assuming the Mineral earthquake as the historic earthquake, and () assuming the 88 Id. at -.

89 LBP--, NRC at __ (slip op. at -, -).

90 Turkey Point, CLI--, NRC at.

91 To the extent Petitioners argue that the NRC conflated reactor safety issues with NEPA and assert that the NRC may not now choose a different mode of analysis, this argument should be rejected as a new argument impermissibly raised for the first time on appeal. See also infra Section III.

probability of the earthquake to be one,92 are all new arguments that were raised for the first time on appeal. Further, these assertions do not demonstrate that the Board committed any error of law or abuse of discretion in finding that the waiver petition failed to meet the applicable standards.

III. Petitioners Do Not Demonstrate Error in the Boards Rejection of Petitioners Sole Contention Petitioners argued in their single contention that VEPCOs ER failed to satisfy NEPA and the NRCs regulations in C.F.R. §§.(c)() and.(a) because the ER did not address the environmental impacts of operating North Anna Units and under the significant risk of an earthquake that exceeds the design basis for the reactors.93 The Board rejected this contention and found that VEPCOs ER included a discussion of design-basis and severe accidents, including those induced by seismic events, in both the ERs discussion of new and significant information and in the GEISs that were incorporated by reference into the ER.94 The Board ruled that due to these environmental impact determinations, Petitioners generalized claims of missing or inadequate discussion, unsupported by any relevant technical analysis, fail[ed] 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.(f)()(v)-(vi).95 On appeal, Petitioners argue that it is irrelevant whether the and GEIS were incorporated by reference into VEPCOs ER because the GEISs do not bear on the assertions 92 Petitioners assertions here also appear to be based on their new arguments regarding the historic earthquake and how it was incorporated into North Annas design basis. See supra pp. -

and note.

93 Petition at.

94 LBP--, NRC at __ (slip op. at -).

95 Id. at.

in the proposed contention.96 This assertion is without merit. In their initial petition, Petitioners asserted that the ER contains no analysis of the probability or consequences of a reactor accident caused by or contributed to by an earthquake[.]97 In response, the Board explained that the NRC addressed environmental impacts of both design-basis and beyond-design-basis accidents at nuclear facilities, including North Anna, in the GEIS that was incorporated by reference into the ER.98 Petitioners do not claim that the Board erred in concluding that the GEIS was incorporated by reference into the ER.99 Rather, Petitioners simply state, in disagreement with the Board, and without any supporting analysis, that the GEISs are not relevant to their contention.100 Petitioners arguments lack any basis; moreover, without showing any error of law or an abuse of discretion by the Board, Petitioners fail to adequately challenge the Boards ruling.

In their initial petition, Petitioners also argued that the ER should address SECY--,101 which, according to Petitioners, identified significant knowledge gaps and uncertainties in predicting long-term aging behavior of a number of SSCs, including reactor pressure vessel 96 Appeal at.

97 Petition at.

98 See LBP--, NRC at __ (slip op. at, -). Further, the Board noted that the GEIS included a discussion of design-basis and severe accidents, including those related to seismic events, and the ER discussed design-basis and severe accidents in the context of its finding that there was no new and significant information; see also ER at E--, E--.

99 See Appeal at.

100 Id.

101 SECY-- addressed ongoing Staff activities to prepare for the anticipated receipt and review of subsequent license renewal applications and requested Commission approval to initiate the rulemaking process to update the regulatory framework in C.F.R. Part. See Memorandum from Mark A.

Satorius, NRC Executive Director for Operations (EDO), to NRC Commissioners, Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal, SECY--

(Jan., ) (ADAMS Accession No. MLA). The Board agreed with the Staff that Petitioners mischaracterized the nature of SECY--, as the Staffs request in that paper to initiate a rulemaking was disapproved in favor of alternatives such as updated guidance and generic communications. LBP-

-, NRC at __ (slip op. at - & n.); see Memorandum from Annette L. Vietti-Cook, Secretary, to Mark A. Satorius, EDO, Staff RequirementsSECY--Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal at (Aug., ) (ADAMS Accession No. MLA).

embrittlement, irradiation-assisted stress corrosion cracking of reactor internals, concrete structure and containments degradation, and electrical cable qualification and condition assessment.102 The Board dismissed this portion of the contention on the grounds that it was outside the scope of the proceeding, not material to the findings the NRC must make, and that it did not establish a genuine dispute with the application. Rather than attempt to challenge these determinations on appeal, Petitioners instead simply assert that the Generic Aging Lessons Learned for Subsequent License Renewal (GALL SLR) Report does not resolve uncertainties about the behavior and reliability of aging SSCs during the SLR term.103 Petitioners thus fail to show any error or abuse of discretion by the Board. Moreover, this assertion was first raised in Petitioners reply brief104 and Petitioners do not establish how the Board erred in disregarding this assertion. Accordingly, having failed to show an error of law or abuse of discretion in the Boards decision, Petitioners have failed to meet their burden on appeal.105 Petitioners also assert that the Boards ruling on contention admissibility rests on the erroneous assumption that the severe accident analysis in VEPCOs ER is sufficient to address Petitioners environmental concerns.106 However, as explained above, the Board determined that the environmental consequences of design-basis and severe accidents, including the risk of a beyond DBE, have been addressed by the pertinent evaluations,107 and Petitioners fail to 102 Petition at.

103 See Appeal at ; see also Petitioners Reply at.

104 Petitioners Reply at.

105 Calvert Cliffs Nuclear Project, LLC and UniStar Nuclear Operating Services, LLC (Calver Cliffs Nuclear Power Plant, Unit ), CLI--, NRC, () (We give substantial deference to our boards determinations on threshold issues, such as standing and contention admissibility, and we will affirm decisions on the admissibility of contentions where the appellant points to no error of law or abuse of discretion.) (internal quotation marks omitted).

106 Appeal at -.

107 LBP--, NRC at __ (slip op. at ).

demonstrate that the Board committed any legal error or abuse of discretion regarding this issue.108 Next, the Board held that Petitioners contention improperly conflat[ed] a reactor safety issue with the requirement to consider cumulative environmental impacts under C.F.R.

§.(c)()(ii)(O) and as such, this claim is neither material to the findings the NRC must make nor does it establish a genuine dispute with the application under section.(f)(iv) and (vi).109 The Board also held that Petitioners purported concerns fail to support the contentions admissibility under.(f)()(iii) as outside the scope of the proceeding[.]110 In addressing the Boards conclusion that their contention is outside the scope of the proceeding, Petitioners do not dispute the Boards determination that Petitioners have conflat[ed] a reactor safety issue with the requirement to consider cumulative environmental impacts under C.F.R. §.(c)()(ii)(O),111 Instead, Petitioners claim, for the first time, that the NRC itself conflated safety with environmental impacts long ago [and] having done that, as a matter of law [the NRC] must open, for consideration in this proceeding under NEPA, all issues including aspects nominally related to safety[.]112 Petitioners assertions should be rejected. First, Petitioners claims contravene the well-established principle that appellants are not permitted to present[] arguments and evidence 108 See supra Section II.A. Petitioners raise a similar argument in the waiver section of their appeal asserting that they have satisfied their obligation under C.F.R. §.(f) to show a genuine and material dispute with VEPCOs ER because they have identified the Mineral earthquake as a significant factor and described the conceptual differences between NRCs approaches to design-basis and severe accidents. Appeal at - n.. But, again, Petitioners appear to simply disagree with the Boards factual determinations, and thus fail to demonstrate legal error or abuse of discretion.

109 LBP--, NRC at __ (slip op. at -).

110 LBP--, NRC at __ (slip op. at n.).

111 Appeal at (quoting LBP--, NRC at __ (slip op. at )).

112 Id.

never provided to the Board.113 Second, Petitioners merely lodge their disagreement with the Boards decision and reiterate their claim that the contention does not challenge safety-related issues, without showing any error or abuse of discretion in the Boards rejection of this argument.114 Accordingly, the Boards decision should be affirmed.

CONCLUSION For the reasons set forth above, the Commission should affirm the Boards decision in LBP--.

Respectfully submitted,

/Signed (electronically) by/

Anita Ghosh Naber Counsel for NRC Staff Mail Stop: O--A U.S. Nuclear Regulatory Commission Washington, DC -

Telephone: () -

E-mail: Anita.Naber@nrc.gov Executed in Accord with CFR.(d)

Travis Jones Counsel for NRC Staff Mail Stop: O--A U.S. Nuclear Regulatory Commission Washington, DC -

Telephone: () -

E-mail: Travis.Jones@nrc.gov Dated in Rockville, Maryland this th day of May 113 Shieldalloy, CLI--, NRC at - () (quoting USEC Inc. (American Centrifuge Plant),

CLI--, NRC, ()).

114 Turkey Point, CLI--, NRC at.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of VIRGINIA ELECTRIC AND POWER COMPANY (North Anna Power Station, Units and Docket No. --SLR

--SLR Certificate of Service Pursuant to C.F.R §., I hereby certify that copies of the foregoing NRC Staffs Brief in Response to Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginias Appeal of LBP--, dated May,, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this th day of May.

/Signed (electronically) by/

Anita Ghosh Naber Counsel for NRC Staff Mail Stop: O--A U.S. Nuclear Regulatory Commission Washington, DC -

Telephone: () -

E-mail: Anita.Naber@nrc.gov Dated in Rockville, Maryland this th day of May