ML23086C101

NRC Staffs Answer Opposing Cfur Hearing Request

ML23086C101
Person / Time
Site:	Comanche Peak
Issue date:	03/27/2023
From:	Marcia Carpentier, Licon E NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 56682, 50-445-LR, 50-446-LR
Download: ML23086C101 (0)

Text

March 27, 2023 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of VISTRA OPERATIONS COMPANY, LLC Comanche Peak Nuclear Power Plant, Units 1 and 2 Docket No. 50-445 and 50-446 NRC STAFFS ANSWER OPPOSING CITIZENS FOR FAIR UTILITY REGULATIONS HEARING REQUEST INTRODUCTION In accordance with 10 C.F.R. § 2.309(i), the U.S. Nuclear Regulatory Commission Staff (the Staff) files its answer opposing the hearing request and amended petition to intervene (Petition) filed by Citizens for Fair Utility Regulation (CFUR, the Petitioner),1 concerning the license renewal application (Application) submitted by Vistra Operations Company, LLC (Vistra, the Applicant), for Comanche Peak Nuclear Power Plant, Units 1 and 2 (Comanche Peak).2 CFUR claims representational standing on behalf of its members and submits four contentions 1 Amended Petition for Leave to Intervene and Request for Hearing of Citizens for Fair Utility Regulation (Mar. 1, 2023) (ADAMS Accession No. ML23060A486) (Petition). An earlier version of this petition was submitted on January 30, 2023. See Petition for Leave to Intervene and Request for Hearing of Citizens for Fair Utility Regulation (Jan. 30, 2023) (ADAMS Accession No. ML23030B927). The Petition includes two maps, which are labeled as Attachment A and Attachment B (ADAMS Accession Nos. ML23060A487 and ML23060A493).

2 Comanche Peak Nuclear Power Plant, Units 1 and 2, Docket Numbers 50-445 and 50-446, Facility Operating License Numbers NPF-87 and NPF-89, License Renewal Application (Oct. 3, 2023) (ADAMS Accession No. ML22276A082) (Application). The Application comprises a cover letter with six enclosures: 1. License Renewal Application; 2. Appendix A - Final Safety Analysis Report Supplement; 3.

Appendix B - Aging Management Programs; 4. Appendix C - Not Used; 5. Appendix D - Technical Specification Changes; 6. Appendix E - Applicant's Environmental Report (ER).

2 in the Petition. CFUR has shown standing as required by NRC procedural regulations but has not submitted an admissible contention, and the Petition must therefore be rejected.

BACKGROUND The Comanche Peak units are pressurized-water reactors designed by Westinghouse Electric Company and located in Glen Rose, TX, approximately 65 miles southwest of the Dallas-Fort Worth, TX area.3 The current operating licenses for Comanche Peak Units 1 and 2 expire on February 8, 2030, and February 2, 2033, respectively, and have not been renewed previously.4 By letter dated October 3, 2022, Vistra applied to renew the Comanche Peak operating licenses for an additional 20 years, which, if approved, would extend the Unit 1 license to February 8, 2050, and the Unit 2 license to February 2, 2053.5 On December 1, 2022, the NRC published a notice of opportunity to request a hearing and to petition for leave to intervene on the Vistra Application.6 On January 30, 2023, CFUR submitted its initial petition to intervene, which it amended and resubmitted on March 1, 2023, as permitted by the Commission.7 CFUR asserts representational standing on behalf of its members and submits four contentions.8 DISCUSSION Under the Commissions Rules of Practice in 10 C.F.R. Part 2, Any person whose interests may be affected by a proceeding and who desires to participate as a party must file a written request for hearing and a specification of the contentions which the person seeks to have 3 Application at 1-9.

4 Id. at 1-5.

5 Application, Cover Letter at 1.

6 Vistra Operations Co. LLC; Comanche Peak Nuclear Power Plant, Units 1 and 2, License renewal application; opportunity to request a hearing and to petition for leave to intervene, 87 Fed. Reg. 73,798 (Dec. 1, 2022).

7 Order (Extend the Deadline for All Persons to File a Hearing Request until March 1, 2023) (Feb. 6, 2023) (ADAMS Accession No. ML23037A791).

8 Petition at 11-31.

3 litigated in the hearing.9 The presiding officer will grant the petition if it determines that the petitioner has standing under 10 C.F.R. § 2.309(d) and has proposed at least one admissible contention that meets the requirements of 10 C.F.R. § 2.309(f).10 In this case, CFUR has demonstrated standing to intervene, but has not submitted an admissible contention. The Petition should therefore be rejected.

I.

Standing A. Requirements for Standing Under the general standing requirements set forth in 10 C.F.R. § 2.309(d)(1), a petitioner must state:

(i)

The name, address, and telephone number of the petitioner; (ii)

The nature of the petitioners right under the Act to be made a party to the proceeding; (iii)

The nature and extent of the petitioners property, financial, or other interest in the proceeding; and (iv)

The possible effect of any decision or order that may be issued in the proceeding on the petitioners interest.11 NRC regulations state that in ruling on a petition, the presiding officer must determine, among other things, whether the petitioner has an interest affected by the proceeding considering the factors enumerated in § 2.309(d)(1).12 As the Commission has observed, the NRC has long applied contemporaneous judicial concepts of standing, which require an actual or threatened injury that is fairly traceable to the challenged action, is likely to be redressed by a favorable decision, and arguably falls within the 9 10 C.F.R. § 2.309(a). Person is defined in 10 C.F.R. § 2.4, as (1) any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, government agency other than the Commission..., any State or any political subdivision of, or any political entity within a State, any foreign government or nation..., or other entity; and (2) any legal successor, representative, agent, or agency of the foregoing.

10 10 C.F.R. § 2.309(d) and (f).

11 10 C.F.R. § 2.309(d)(1).

12 10 C.F.R. § 2.309(d)(2).

4 zone of interests protected by the Atomic Energy Act of 1954, as amended (AEA).13 While the Commission generally requires the elements of standing to be pled with specificity, standing to intervene has been found to exist in construction permit and operating license proceedings based upon a proximity presumption.14 In such proceedings, standing is presumed for persons who reside in, or have frequent contact with, the zone of possible harm around the nuclear reactor.15 In practice, the Commission has found standing based on the proximity presumption for persons who reside within approximately 50 miles (80 km) of the facility.16 An organization seeking to intervene must satisfy the same standing requirements as an individual seeking to intervene.17 The organization may establish standing based on organizational standing (showing that its own organizational interests could be adversely affected by the proceeding) or representational standing (based on the standing of its members).18 Where an organization seeks to establish representational standing, the organization must demonstrate that at least one of its members may be affected by the proceeding and that these members, who must be identified by name, have authorized the organization to represent them and to request a hearing on their behalf.19 Further, the member seeking representation must qualify for standing in [their] own right; the interests that the 13 El Paso Electric Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-20-7, 91 NRC 225, 230 (Sept. 15, 2020) (quoting Calvert Cliffs 3 Nuclear Project, LLC and UniStar Nuclear Operating Servs.,

LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009)).

14 See, e.g., Calvert Cliffs, CLI-09-20, 70 NRC at 915-17 (quoting Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 92 (1993)). Licensing boards have routinely applied the proximity presumption in reactor licensing renewal proceedings. See, e.g., Nextera Energy Point Beach, L.L.C. (Point Beach Nuclear Plant, Units 1 & 2), LBP-21-05, 94 NRC 1, 19 (2021) (citing Calvert Cliffs, CLI-09-20, 70 NRC at 915-918).

15 Calvert Cliffs, CLI-09-20, 70 NRC at 915.

16 Id. at 915-16.

17 Palo Verde, CLI-20-7, 91 NRC at 231.

18 Id.

19 FirstEnergy Nuclear Operating Co. and FirstEnergy Nuclear Generation, LLC (Beaver Valley Power Station, Units 1 and 2; Davis-Besse Nuclear Power Station, Unit 1; Perry Nuclear Power Plant, Unit 1),

CLI-20-5, 91 NRC 214, 220 (2020); Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 409-10 (2007).

5 representative organization seeks to protect must be germane to its purpose; and neither the asserted claim nor the requested relief must require an individual member to participate in the organizations legal action.20 B. Citizens for Fair Utility Regulation has satisfied its burden of demonstrating representational standing.

CFUR is a nonprofit organization made up of civically-minded volunteers who are also environmentally minded.21 CFUR seeks to establish representational standing to intervene in this proceeding based on the individual standing of several of its members.22 The Petition includes signed and dated declarations from several members, among them Mr. Lon Burnam.23 The Declaration of Mr. Burnam includes his home address and a statement that he lives within a 50-mile radius of Comanche Peak Nuclear Power Plant.24 Mr. Burnam also states that he authorizes CFUR to represent him in this proceeding.25 The declaration of Mr. Lon Burnam, as well as those of Mr. Terry McIntire, Ms. Janet Mattern, Ms. Suzanne Mabe, Ms. Anita Smith, Ms. Karen Hadden, Ms. Linda Hanratty, Mr. Reed Bilz, and Mr. John MacFarlane, demonstrate that at least one member of CFUR would have standing to intervene in their own right based on the proximity presumption. In keeping with Commission case law, the interests that CFUR seeks to protect in this proceeding are germane 20 Beaver Valley, CLI-20-5, 91 NRC at 220 (citing Entergy Nuclear Operations, Inc. and Entergy Nuclear Palisades, LLC (Palisades Nuclear Plant), CLI-08-19, 68 NRC 251, 258-59 (2008); Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 323 (1999)).

21 Petition at 2.

22 Id. at 3; see also Declaration of Lon Burnam (ADAMS Accession No. ML23060A496); see also Declaration of Terry McIntire (ADAMS Accession No. ML23060A497); see also Declaration of Janet Mattern (ADAMS Accession No. ML23060A498); see also Declaration of Suzanne Mabe (ADAMS Accession No. ML23060A499); see also Declaration of Anita Smith (ADAMS Accession No. ML23060A500); see also Declaration of Karen Hadden (ADAMS Accession No. ML23060A489); see also Declaration of Linda Hanratty (ADAMS Accession No. ML23060A490); see also Declaration of Reed Bilz (ADAMS Accession No. ML23060A491); see also Declaration of John MacFarlane (ADAMS Accession No. ML23060A492).

23 Declaration of Lon Burnam at 1.

24 Id.

25 Id.

6 to its purpose, and neither the asserted claim nor the requested relief require an individual member to participate in this proceeding.26 For these reasons, CFUR has satisfied its burden of demonstrating representational standing.

II.

Requirements for Contentions Admissibility The legal requirements governing the admissibility of contentions are set forth in 10 C.F.R. § 2.309(f)(1)-(2). Specifically, a petitioner must set forth with particularity the contentions that the petitioner seeks to raise and, for each contention, the petitioner 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;27 (iii)

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

Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action involved in the proceeding;28 (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;29 and (vi)

... [P]rovide 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 26 See discussion supra p. 5 and note 20.

27 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-15-20, 82 NRC 211, 221 (2015).

28 A dispute at issue is material if its resolution would make a difference in the outcome of the licensing proceeding. Holtec International (Hi-STORE Consolidated Interim Storage Facility), CLI-20-4, 91 NRC 167, 190 (2020) (internal quotations omitted).

29 See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006) (it is the petitioners responsibility to satisfy the basic contention admissibility requirements; boards should not have to search through a petition to uncover arguments and support for a contention, and may not simply infer unarticulated bases of contentions); see also Arizona Public Service Co., et. al. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), CLI-91-12, 34 NRC 149, 155 (1991).

7 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 petitioners belief.30 Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner.31 For environmental issues arising under the National Environmental Policy Act of 1969, as amended (NEPA), a petitioner must file contentions based on the environmental report (ER) included in the application.32 A contention is inadmissible if it fails to satisfy any of the six pleading requirements in 10 C.F.R. 2.309(f)(1).33 The NRCs regulations governing contention admissibility are strict by design34 and intended to focus litigation on concrete issues and result in a clearer and more focused record for decision.35 Although a petitioner does not have to prove its contention at the 30 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, then the contention must identify each failure and the supporting reasons for the petitioners belief. Exelon Generation Co., LLC. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-20-11, 92 NRC 335, 342 (Nov. 12, 2020).

31 10 C.F.R. § 2.309(f)(2).

32 10 C.F.R. § 2.309(f)(2).

33 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2) CLI-16-5, 83 NRC 131, 136 (2016); see also Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334-35 (1999) (the heightened contention admissibility rules are designed to preclude contentions based on little more than speculation).

34 Indian Point, CLI-16-5, 83 NRC at 136 (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001) and South Carolina Electric & Gas Co.

and South Carolina Public Service Authority (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI-10-1, 71 NRC 1, 7 (2010)). The Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing. Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).

35 See, e.g., Southern Nuclear Operating Co. Inc. (Vogtle Electric Generating Plant, Unit 3) LBP-20-8, 92 NRC 23, 46 (Aug. 10, 2020) (quoting Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004)).

8 admissibility stage,36 the contention admissibility standards are meant to afford hearings only to those who proffer at least some minimal factual and legal foundation in support of their contentions.37 Furthermore, the Commission has also held that, absent a waiver, a contention must be rejected if it challenges applicable statutory requirements, regulations, or the basic structure of the Commissions regulatory process.38 Showing that a contention is within the scope of the proceeding, as required by 10 C.F.R.

§ 2.309(f)(1)(iii), is of particular importance for license renewals because NRC regulations set the scope of such proceedings. In general, the scope of a proceeding is defined by the Commission in its initial hearing notice and order referring the proceeding to the licensing board,39 and any contention that falls outside the specified scope must be rejected.40 As discussed in Sections III and IV below, NRC regulations in 10 C.F.R. Part 54 set the scope for license renewals, and Appendix B of 10 C.F.R. Part 51 contains additional provisions applicable to environmental reviews. These regulations must be considered when evaluating whether a contention falls within the scope of a proceeding as required by Section § 2.309(f)(1)(iii).

III.

Scope of License Renewal Proceedings Under 10 C.F.R. Part 54 The Commissions regulations in 10 C.F.R. Part 54 limit the scope of license renewal proceedings to those matters that must be considered for the license renewal application to be 36 Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004).

37 Pacific Gas & Electric Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation),

CLI-08-1, 67 NRC 1, 8 (2008) (quoting Oconee, CLI-99-11, 49 NRC at 334).

38 As set forth in 10 C.F.R. § 2.335(a), no rule or regulation of the Commission... is subject to attack...

in any adjudicatory proceeding, in the absence of a waiver petition granted by the Commission. Further, any contention that amounts to an attack on applicable statutory requirements or represents a challenge to the basic structure of the Commissions regulatory process must be rejected. Dominion Nuclear Conn.

(Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 218 (2003).

39 See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-00-23, 52 NRC 327, 329 (2000).

40 See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427, 435-36 (2011).

9 granted and that have not been addressed by rulemaking or on a generic basis.41 Under 10 C.F.R. § 54.29(a), when determining whether to grant a license renewal application, the Commission requires actions be identified that have been or will be taken with regard to:

(1) managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified to require review under 10 C.F.R.

§ 54.21(a)(1); and (2) time-limited aging analyses that have been identified to require review under 10 C.F.R. § 54.21(c).42 These actions must provide reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the current licensing basis,43 and that any changes made to the plants current licensing basis are in accord with the Act [AEA] and the Commissions regulations.44 Additionally, a renewed license may be issued if the Commission finds that [a]ny applicable requirements of [Subpart A of 10 C.F.R. Part 51] have been satisfied and [a]ny matters raised under [10 C.F.R.] § 2.335 have been addressed.45 Adjudications on license renewal applications are bounded by the same rules and scope as the NRCs license renewal review.46 Under 10 C.F.R. Part 54, the NRC conducts a technical review of the license renewal application to ensure that public health and safety requirements are satisfied.47 However, the focus of NRCs license renewal safety review is on plant 41 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 117-18 (2006); see also 10 C.F.R. § 54.29; Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 8-10 (2001).

42 10 C.F.R. § 54.29(a).

43 The current licensing basis, as defined in 10 C.F.R. § 54.3, is the set of NRC requirements applicable to a specific plant and a licensees written commitments for ensuring compliance with and operation within applicable NRC requirements and the plant-specific design basis (including all modifications and additions to such commitments over the life of the license) that are docketed and in effect....

44 10 C.F.R. § 54.29(a).

45 10 C.F.R. § 54.29(b)-(c).

46 Turkey Point, CLI-01-17, 54 NRC at 8 (Adjudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review, for our hearing process (like our Staffs review) necessarily examines only the questions our safety rules make pertinent.).

47 Id. at 6.

10 systems, structures, and components for which current [regulatory] activities and requirements may not be sufficient to manage the effects of aging in the period of extended operation.48 The Commission has found it generally unnecessary, in the license renewal stage, to review issues already monitored and reviewed in ongoing regulatory oversight processes.49 Contentions falling outside the scope of the staffs review are inadmissible and must be rejected.50 IV.

Environmental Reviews in License Renewal Per 10 C.F.R. § 54.23, each license renewal application must include a supplement to the ER that complies with the requirements of Subpart A of 10 C.F.R. Part 51. The NRC has adopted the regulations in 10 C.F.R. Part 51 to implement the agencys responsibilities NEPA, and 10 C.F.R. § 51.53(c) governs the contents of an applicants ER at the operating license renewal stage. Under 10 C.F.R. § 51.53(c)(2), an applicant is required to discuss in [the environmental report] the environmental impacts of alternatives and any other matters described in § 51.45. The report is not required to include discussion of need for power or the economic costs and economic benefits of the proposed action or of alternatives to the proposed action except insofar as such costs and benefits are either essential for a determination regarding the inclusion of an alternative in the range of alternatives considered or relevant to mitigation.

The environmental report need not discuss other issues not related to the environmental effects of the proposed action and the alternatives.51 For all applicants seeking license renewal after June 30, 1995, 10 C.F.R. § 51.53(c)(3) requires further conditions and considerations.52 Among these are that applicants are not required to include analyses of the environmental impacts of the license renewal issues identified in 10 C.F.R. Part 51, Appendix B, as Category 1 issues, whereas they are required to 48 Id. at 10 (quoting Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,469 (May 8, 1995)).

49 See, e.g., Turkey Point, CLI-01-17, 54 NRC at 8-10 (holding that [i]ssues like emergency planning which already are the focus of ongoing regulatory processesdo not come within the NRC's safety review at the license renewal stage).

50 10 C.F.R. § 2.309(f)(1)(iii); see, e.g., Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 567 (2005).

51 10 C.F.R. § 51.53(c)(2).

52 10 C.F.R. § 51.53(c)(3).

11 so include them for Category 2 issues.53 The regulations in 10 C.F.R. Part 51, Appendix B, are supported by a generic environmental impact statement (2013 GEIS), which can be found in NUREG-1437.54 The 2013 GEIS identifies 78 environmental impact issues for license renewal, of which 59 are generic for all sites, 2 are uncategorized, and 17 are site-specific Category 2 issues.55 The 2013 GEIS addresses the generic environmental impacts of operating a plant for an additional 20 years that are common to all plants or to a specific subgroup of plants, and its findings are listed in Table B-1 of Appendix B to Part 51.56 Guidance for license renewal applicants preparing an ER is found in Regulatory Guide (RG) 4.2, Supplement 1.57 While a license renewal applicant is not required to reevaluate Category 1 issues in its ER, but instead may reference and adopt the Commissions generic findings set forth in Appendix B to Part 51, under 10 C.F.R. § 51.53(c)(3)(iv) an applicants environmental report must contain any new and significant information regarding the 53 10 C.F.R. § 51.53(c)(3)(i)-(ii).

54 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437, Rev. 1, Vol 1 (2013) (ADAMS Accession No. ML13106A241) (2013 GEIS). A 2023 version of the GEIS is currently under development. While it is not yet available for use, the Staff has compared the impact levels discussed in this pleading with public drafts of the 2023 GEIS and confirmed that if the publicly available draft of the 2023 license renewal GEIS is approved as currently written, no changes to the relevant issue categories or impact levels are currently anticipated. On March 3, 2023, the NRC announced an opportunity for interested parties to submit comments on a proposed rule, a draft revised GEIS, and associated draft guidance. See Renewing Nuclear Power Plant Operating LicensesEnvironmental Review, 88 Fed. Reg. 13,329 (proposed Mar. 3, 2023) (to be codified at 10 C.F.R. pt. 51). Although the proposed rule, draft GEIS, and draft guidance are not final, the staff considered the proposals and concluded that if the publicly available draft of the 2023 license renewal GEIS is approved as currently written, the Staff's views concerning the admissibility of the proffered contentions would not change.

With respect to the 2023 GEIS, the Commission has previously stated that it has long been agency policy that Licensing Boards should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission. Oconee, CLI-99-11, 49 NRC at 345. While the Staffs views concerning the admissibility of the proffered contentions are based on the 2013 GEIS, to the extent Proposed Contentions 1 and 3 challenge findings that are the subject of the 2023 license renewal GEIS rulemaking, the Board should reject these contentions based on this Commission policy as well.

55 2013 GEIS at Vol 1, 1-36.

56 See id.

57 RG 4.2, Suppl. 1, Rev. 1, Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications (June 2013) (ADAMS Accession No. ML13067A354).

12 environmental impacts of license renewal of which the applicant is aware. Thus, an applicant must provide a site-specific review of the Category 2 issues in its ER and must address any new and significant information that might render the Commissions Category 1 determinations inapplicable in that proceeding.58 The Staffs license renewal environmental review is guided by the 2013 GEIS and the Standard Review Plan for Environmental Review of Nuclear Power PlantsOperating License Renewal (ESRP).59 Like the Applicant, the NRC Staff is not required to address generic, Category 1 impacts in its site-specific environmental impact statement (EIS), which the Staff publishes as a supplement to the GEIS (SEIS). The Staff must, however, address any new and significant information of which it becomes aware that might affect either the generic or the site-specific findings in its draft or final SEIS.60 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 otherwise on a generic basis.61 As the Commission has stated, Category 1 determinations are not subject to site-specific review and thus fall beyond the scope of individual license renewal proceedings.62 Because these Category 1 determinations have been incorporated into 58 See, e.g., Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-13-7, 78 NRC 199, 212-13 (2013); Turkey Point, CLI-01-17, 54 NRC 3 at 11-12; Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-09-10, 69 NRC 521, 527 (2009).

59 Standard Review Plan for Environmental Review of Nuclear Power PlantsOperating License Renewal, NUREG-1555, Supp. 1, Rev. 1 (2013) (ADAMS Accession No. ML13106A246) (ESRP).

60 See, e.g., Limerick, CLI-13-7, 78 NRC at 216-17; Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-16-8, 83 NRC 417, 439 (2016). Following publication of a site-specific supplement to the GEIS, further supplementation is required only if there are significant new circumstances or information [that] paint[s] a dramatically different picture of impacts compared to the description of impacts in the EIS. Massachusetts v. NRC, 708 F.3d at 68-69 (quoting Town of Winthrop v.

FAA, 535 F.3d 1, 7, 12 (1st Cir. 2008)); accord, Limerick, CLI-13-7, 78 NRC at 211, 216-17.

61 Turkey Point, CLI-01-17, 54 NRC at 11-12; see 10 C.F.R. § 51.53(c)(3)(i)-(ii).

62 Turkey Point, CLI-01-17, 54 NRC at 12 (emphasis added); see 10 C.F.R. § 51.53(c)(3)(i)-(ii). In Turkey Point, the Commission recognized that the rules provide a number of opportunities for individuals to alert

13 a regulation, the conclusions of that analysis may not be challenged in litigation unless the rule is waived.63 Accordingly, a contention challenging a Category 1 determination, even if based on new and significant information, can be admitted only if the Commission grants a waiver of its regulations according to the provisions of 10 C.F.R. § 2.335.64 V.

CFUR has not met its burden of proposing at least one admissible contention.

A. Proposed Contention 1, which asserts that the Application lacks adequate data and analysis regarding radiological releases and emissions and potential health impacts, is not admissible.

In Contention 1, CFUR asserts that the license renewal application... lacks adequate data and analysis regarding radiological releases and emissions and potential health impacts.65 The Petition includes six bases supporting this contention. First, CFUR argues that the Application fails to include updated information on the release of tritium and other radionuclides.66 Second, CFUR argues that the Application fails to consider the cumulative radiological impacts and resulting potential health risks of operating Comanche Peak Units 1 and 2 for an additional 20 years.67 Third, CFUR further argues that the Application does not fully analyze the impact of discharging radioactive particulates and tritium into Squaw Creek Reservoir for an additional 20 years of operation.68 Fourth, CFUR asserts that the Application fails to provide analysis of an additional 20 years of gamma emitters and cumulative impacts to 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." Id.

63 Entergy Nuclear Vermont 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-07-3, 65 NRC 13, 17 (footnotes omitted), reconsid. denied, CLI-07-13, 65 NRC 211, 214 (2007). This approach has been found to comply with NEPA. See, e.g., Massachusetts v. NRC, 708 F.3d at 68-69.

64 10 C.F.R. § 2.335(b).

65 Petition at 11.

66 Id.

67 Id.

68 Id.

14 farms, crops, wildlife, and vegetation.69 Fifth, CFUR further argues that the Application must address the financial costs of remediation from an additional 20 years of plant operation.70 Finally, CFUR argues that the Application needs to include information on the potential for radioactive releases from pipe leaks in an aging nuclear reactor.71 In support of Contention 1, CFUR cites the Applicants 2021 Annual Radiological Environmental Operating Report (2021 Annual Radiological Report),72 which was submitted to the NRC in April 2022 to satisfy requirements of the current operating licenses for Comanche Peak Units 1 and 2.

Contention 1 as explained by its first five bases challenges the ER, but the contention as explained by its final basis includes elements of both an environmental contention submitted under NRC regulations in Part 51 and a safety contention under the AEA and Part 54. As discussed below, the specific claims in the first four of these bases are related, and all four are inadmissible in this proceeding because they are outside the scope of this proceeding and impermissibly challenge an NRC regulation. They must therefore be rejected under the provisions of 10 C.F.R. §§ 2.309(f)(1) and 2.335. The claim in the fifth basis does not challenge any specific part of the Application, and therefore fails to satisfy 10 C.F.R. § 2.309(f)(1)(vi).

Furthermore, regardless of whether it is considered as a challenge to the ER or a challenge to some other part of the Application, it falls outside the scope of this proceeding and fails to satisfy 10 C.F.R. § 2.309(f)(1)(iii). The claim in the final basis also lacks specificity and could be read in several ways. To the extent that it is intended as a contention regarding radionuclide releases to groundwater, it could be within the scope of this proceeding if it met the other requirements of 10 C.F.R. § 2.309(f)(1); however, it does not, and no other reading of this claim 69 Id. at 11.

70 Id.

71 Id.

72 Petition at 12-13, citing the Applicants Comanche Peak Nuclear Power Plant 2021 Annual Radiological Operating Report, Apr. 28, 2022 (ADAMS Accession No. ML22118A088).

15 makes it admissible. Therefore, because none of the bases of Contention 1 result in an admissible contention, Contention 1 must be rejected in its entirety.

1.

CFURs first four claims are outside the scope of this proceeding and impermissibly challenge an NRC regulation, and are therefore inadmissible.

The first four of the bases for Contention 1 all relate to radiological releases and to their effects on humans, aquatic organisms, and terrestrial organisms. For Contention 1 as explained by these four bases, CFUR satisfies the contention pleading requirements in 10 C.F.R.

§ 2.309(f)(1)(i) and (ii). By introducing the 2021 Annual Radiological Report, CFUR also satisfies the requirement of 10 C.F.R. § 2.309(f)(1)(v) to provide the sources or documents on which the petitioner intends to rely. However, CFUR fails to satisfy the other requirements of 10 C.F.R.

§ 2.309(f)(1) and of 10 C.F.R. § 2.335 because issues related to radiological releases and their effects are Category 1 issues that were resolved generically for license renewal in the 2013 GEIS. Appendix B to 10 C.F.R. Parts 51 lists radiation and radionuclide exposure to the general public, to plant workers, to aquatic organisms, and to terrestrial organisms as Category 1 issues for which the impacts are SMALL.73 The Applicant incorporates these impact levels into its ER,74 as the Commission explicitly permits.75 Because the Applicant has done so, the ER at the license renewal stage is not required to contain analyses of the environmental impacts of these Category 1 issues.76 As described in Section IV above, contentions that challenge Category 1 determinations fall outside the scope of individual license renewal proceedings77 and may not be challenged in litigation unless the relevant regulation is waived.78 Because Contention 1 as 73 10 C.F.R. Part 51, Appendix B, Table B-1.

74 ER at 4-2, 4-6 to 4-7.

75 See discussion supra p. 13 and note 63.

76 10 C.F.R. § 51.53(c)(3)(i). See also Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,483 (June 5, 1996) ([A]bsent new and significant information, the analyses for certain impacts codified by this rulemaking need only be incorporated by reference in an applicant's environmental report for license renewal).

77 See discussion supra pp. 12-13 and note 62.

78 See discussion supra p. 13 and note 63.

16 explained by the first four bases challenges Category 1 issues and does not include a waiver request, it falls outside the scope of this proceeding.

To apply for license renewal, an applicant must submit an ER that contain[s] any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware.79 A license renewal applicant is not, however, required to include analyses of the environmental impacts of Category 1 issues in its ER,80 and petitioners who wish to raise a contention related to a Category 1 issue must first seek a waiver of Appendix B to 10 C.F.R. Part 51.81 However, CFUR has neither requested a waiver nor provided information that might justify such a waiver. To the extent CFUR intends its citation of the 2021 Annual Radiological Report to serve as new information that might justify a waiver, it does not explain what new information is included or how it renders the generic impacts in Appendix B to 10 C.F.R. Part 51 inapplicable in this proceeding. The generic impact determinations found in the 2013 GEIS and Appendix B to Part 51 are based on data from many nuclear plants and include information on tritium, radioiodines, and gamma emitters,82 as well as analyses of radiological health impacts to plant workers and the general public,83 and analyses of effects on both terrestrial and aquatic organisms.84 CFUR has not challenged this information or otherwise attempted to justify a waiver of the relevant regulation.85 CFURs use of the word cumulative in the second and fourth bases of Contention 1 does not affect the admissibility of the contention because CFURs usage of the term cumulative is 79 10 C.F.R. § 51.53(c)(3)(iv).

80 See discussion supra pp. 11-12 and note 58.

81 Turkey Point, CLI-01-17, 54 NRC at 12.

82 See, e.g., 2013 GEIS at 3-122 to 3-124. See also Petition at 12.

83 2013 GEIS at 4-138 to 4-139 (radiation doses to plant workers) and 4-140 to 4-146 (radiation doses to the general public).

84 Id. at 4-61 to 4-64 (terrestrial organisms) and 4-105 to 4-107 (aquatic organisms).

85 The next annual report of this type, covering 2022, is due to the NRC in April 2023.

17 inconsistent with the definition of that term as used in federal NEPA analyses. Cumulative impact in the context of Federal NEPA analyses is defined as:

the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.86 In keeping with this definition, the NRC regulation in 10 C.F.R. § 51.53(c)(3)(ii)(O) requires that an applicant provide information about other past, present, and reasonably foreseeable future actions occurring in the vicinity of the nuclear plant that may result in a cumulative effect, and Appendix B to Part 51 lists cumulative impacts as a Category 2 issue requiring plant-specific analysis. Here, the ER includes a plant-specific analysis of cumulative impacts that considers impacts from other activities in combination with impacts from Comanche Peak Units 1 and 2,87 as required for Category 2 issues, and CFUR has not challenged this plant-specific analysis.

While CFUR refers to the cumulative radiological impacts of operating Comanche Peak Units 1 and 2 for an additional 20 years,88 the 2013 license renewal GEIS generically evaluates the environmental impacts of operating a facility over the initial 20-year license renewal period, Appendix B to 10 C.F.R. Part 51 incorporates the results into NRC regulations, and CFUR does not provide justification for a waiver that would allow it to challenge issues resolved generically by rule.89 Because the Petition merely uses the word cumulative in passing and neither challenges the Applicants cumulative impact analysis nor requests or provides justification for a waiver allowing it to challenge issues resolved generically by rule, the parts of Contention 1 that 86 40 C.F.R. § 1508.7.

87 See ER at 3-4 to 3-6, 4-35 to 4-43.

88 See Petition at 11-12.

89 2013 GEIS at S-4 (The 2013 GEIS documents the results of the systematic approach NRC used to evaluate the environmental consequences of renewing the licenses of commercial nuclear power plants and operating the plants for an additional 20 years beyond the current license term).

18 relate to radiological impacts and resulting potential health risks must be treated as impermissibly challenging Category 1 issues and therefore must be rejected.

For these reasons, the issues raised in Contention 1, as explained in the first four bases, are out of scope for a license renewal proceeding because they challenge issues for which environmental impacts have been determined generically by rule, and they therefore fail to satisfy 10 C.F.R. § 2.309(f)(1)(iii).90 Because these claims are outside the scope of a license renewal proceeding, they are necessarily immaterial to the licensing decision that must be made and do not represent genuine disputes with the Application, and they therefore fail to satisfy 10 C.F.R. § 2.309(f)(1)(iv) and (vi). They also challenge NRC regulations, which under 10 C.F.R. § 2.335 is impermissible in NRC adjudications absent a waiver. The portions of Contention 1 related to the first four bases must therefore be rejected.

2.

CFURs claim regarding financial consequences is outside the scope of this proceeding and therefore is inadmissible.

In the fifth basis for Contention 1, CFUR states that the Application fails to analyze the financial consequences of 20 more years of radiologic releases and the potential cost of remediation in the future.91 CFUR does not explain which part of the Application this part of the contention is meant to address. To the extent CFUR provides this basis to support an argument that the costs of environmental remediation at decommissioning must be included in the ER, Contention 1 as explained by the fifth basis is inadmissible for the same reasons as the first four. 92 The impacts of decommissioning are addressed in the 2013 GEIS93 and incorporated in Appendix B to 10 C.F.R. Part 51 as a Category 1 issue with an impact level of SMALL.

90 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-15-21, 82 NRC 295, 302 (2015) (Contentions that challenge an agency rule or regulation without a waiver, in addition to being expressly prohibited by 10 C.F.R. § 2.335(a), are outside the scope of the proceeding.).

91 Petition at 12.

92 See discussion supra pp. 15-17.

93 2013 GEIS at 2-4 to 2-6; 4-5.

19 Contention 1 as explained by this basis must therefore be rejected as outside the scope of this proceeding and as a challenge to NRC regulations.

To the extent that CFUR asserts that information concerning the potential cost of remediation of the site in the future must be incorporated elsewhere in the Application, this part of Contention 1 must also be rejected. License renewal regulations in 10 C.F.R. § 54.19, and the other regulations cited therein, address the financial information that a license renewal applicant must address. Under 10 C.F.R. § 50.33(k), all applicants for initial operating licenses or combined licenses, and all holders of such licenses in effect as of July 1990, must provide reasonable assurance... that funds will be available to decommission the facility.94 Detailed requirements related to decommissioning funding assurance are found in 10 C.F.R. § 50.75.

License renewal regulations in 10 C.F.R. § 54.19(a) reference certain other sections of 10 C.F.R. § 50.33, but do not require license renewal applicants to revisit the decommissioning funding demonstrations required by 10 C.F.R. § 50.33(k).95 License renewal applicants are, however, required to make any needed changes to the standard indemnity agreement, 10 CFR 140.92, Appendix B, to account for the expiration term of the proposed renewed license.96 The Application addresses this requirement,97 and CFUR has not challenged the Applicants treatment of this requirement or provided evidence of any other financial requirement that has not been met. Accordingly, this part of Contention 1 fails to demonstrate that CFURs statement regarding financial information is within the scope of a license renewal proceeding or material to the findings the NRC must make. Additionally, CFUR fails to provide supporting information for 94 10 C.F.R. § 50.33(k).

95 10 C.F.R. § 54.19(a) (Each application must provide the information specified in 10 CFR 50.33(a) through (e), (h), and (i). Alternatively, the application may incorporate by reference other documents that provide the information required by this section.).

96 10 C.F.R. § 54.19(b).

97 Application at 1-6 to 1-7.

20 this part of the contention or demonstrate that it represents a genuine dispute with the Applicant.

This part of Contention 1 therefore fails to satisfy 10 C.F.R. § 2.309(f)(1)(iii)-(vi) and must be rejected.

3.

CFURs claim regarding pipe leaks or breakage fails to satisfy 10 C.F.R.

§ 2.309(f)(1)(vi) and is therefore inadmissible.

As its final basis for Contention 1, CFUR argues that the Application fails to properly analyze pipe leaks or breakage that may occur in the future and the related radiation release increase that could result in aging nuclear reactors.98 The Petition cites to a section of the ER that addresses groundwater quality, and that describes two occasions when tritium was detected by Vistras Groundwater Protection Program.99 According to the ER, the source of the tritium was determined to be a leaking pipe from the water treatment plant on the first occasion and a leak from the filter water storage tank on the second; both leaks have been repaired.100 Tritium levels were well below reportable quantities in all cases.101 The ER further states that groundwater is monitored by Vistras Radiological Environmental Monitoring Program, and no radionuclides were detected between 2016 and 2020.102 Groundwater monitoring is an operating concern that is addressed by the current licensing basis for the two reactors, and any challenge to the monitoring programs themselves would be outside the scope of this proceeding.103 To the extent CFUR challenges groundwater impacts discussed in the ER, this portion of Contention 1 provides a brief statement of an issue that is within the scope of the proceeding and therefore meets the contention admissibility criteria in 10 C.F.R. § 2.309(f)(1)(i)-

(iii). But, for the reasons described below, Contention 1 does not address the plant-specific 98 Petition at 12.

99 Id., citing ER at 3-104 t0 3-105.

100 ER at 3-102.

101 Id.

102 Id. at 3-103 to 3-104.

103 See discussion supra p. 10 and note 49.

21 analysis in the ER, demonstrate that the issues raised in the contention are material to the findings the NRC must make to act on this Application, provide a concise statement of the alleged facts or expert opinions that support CFURs position, or provide sufficient information to show that a genuine dispute exists with the Applicant on a material issue of law or fact.

Contention 1 must therefore be rejected for failure to meet 10 C.F.R. § 2.309(f)(1)(iv)-(vi).

Rather than addressing the plant-specific analysis in the ER,104 CFUR cites a Scientific American article that mentions high tritium levels at another nuclear power plant.105 CFUR provides no information linking that article to Comanche Peak or anything in the Application, nor does it explain the relevance of the 2021 Annual Radiological Report.106 10 C.F.R.

§ 2.309(f)(1)(vi) requires that a petitioner provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact including references to specific portions of the application... that the petitioner disputes and the supporting reasons for each dispute. The Petitioner has not done so here, and this portion of contention must be rejected accordingly.

To the extent CFUR intends to address pipe leaks and plant aging more generally, beyond the groundwater issues discussed in the ER, this basis appears to stray considerably from the remainder of the contention. Such issues are not addressed in the ER but could be seen as related to the aging management review and aging management actions required for license renewal under 10 C.F.R. §§ 54.21 and 54.29. However, CFUR does not reference any of the aging management discussion in the Application or raise issues within the scope of this proceeding in relation to any portion of the Application other than the ER. To the extent this part of the contention is intended as a safety contention, it is missing the specificity required by 104 See ER at 4-39.

105 See Petition at 12.

106 See id. at 14-15.

22 10 C.F.R. § 2.309(f)(1). The NRCs contention admissibility standards are meant to afford hearings only to those who proffer at least some minimal factual and legal foundation in support of their contentions.107 CFUR has neither identified a dispute with a specific portion of the Application nor explained why current [regulatory] activities and requirements may not be sufficient to manage the effects of aging in the period of extended operation,108 as required for license renewal. For these reasons, Contention 1, as supported by this basis and considered as a safety contention, fails to meet the requirements of 10 C.F.R. § 2.309(f)(1) (iii)-(vi) and should be rejected.

B. Proposed Contention 2, asserting that the license renewal application fails to provide an adequate analysis of the seismic activity near the plant, is not admissible.

In Contention 2, CFUR asserts that [t]he [Application] fails to provide an adequate analysis of the magnitude of the seismic activity near the CPNPP.109 The bases for Contention 2 include three distinct challenges to the Application, two of which challenge the ER and one of which challenges other portions of the Application, as well as an implicit challenge to the Applicants 2014 seismic hazard reevaluation. The first of CFURs claims is that the ER is incomplete because it contains a list of historical earthquakes of magnitude 3.0 or greater but does not include smaller earthquakes.110 CFUR includes a map of these smaller earthquakes as Attachment A to its Petition. The second of CFURs claims is that the ER also fails to account for karst topography near the plant; CFUR includes a map related to this claim as Attachment B to its Petition. The third of CFURs claims is that smaller earthquakes could contribute to cracking of plant piping, structural supports, and concrete, as well as damage to earthen water-107 Oconee, CLI-99-11, 49 NRC at 334.

108 Turkey Point, CLI-01-17, 54 NRC at 10 (quoting Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. at 22,469).

109 Petition at 17.

110 Id., citing ER at 3-69 to 3-77.

23 control structures.111 As part of this discussion, CFUR cites portions of the Application outside the ER that discuss various issues related to aging management of plant structures, systems, and components.112 According to CFUR, earthquakes are becoming more frequent in the area of the plant due to hydrologic fracturing and related activities of the oil and gas industry, and this raises the risk of damage to Comanche Peak Units 1 and 2 and the potential for catastrophic effects on surrounding areas.113 Finally, Contention 2 quotes and implicitly challenges the most recent seismic hazard reevaluation for Comanche Peak Units 1 and 2, which was carried out in 2014 under the current operating licenses.114 However, regardless of whether Contention 2 is considered an environmental contention, a safety contention, or a challenge to the 2014 seismic hazard reevaluation, it fails to meet the contention pleading requirements in 10 C.F.R.

§ 2.309(f)(1)(iii)-(vi) and must be rejected.

1.

Contention 2s challenges to the Applicants ER are outside the scope of this proceeding and must be rejected.

Regarding the first two bases for Contention 2, CFUR asserts that the ER is incomplete because its list of earthquakes does not consider smaller earthquakes such as those identified in Attachment A to the Petition or the geologic formations described in Attachment B to the Petition.115 According to CFUR, this means that the Application fails to provide an adequate 111 Id. at 17-18.

112 Id. at 18-19, citing Application at 3.1-91 (summary of aging management evaluation for reactor vessel internals); 3.5-37, 3.5-49 to 3.5-50, and 3.5-52 (aging management programs for containment building and internal structural components), and 3.5-57 (aging management programs for earthen water control structures).

113 Id. at 18-19.

114 See Petition at 17. CFUR quotes this evaluation, without attribution, in the Petition at 19-20. For the full report, see Letter from Rafael Flores, Senior Vice President and Chief Nuclear Officer, Luminant Power, to the U.S. Nuclear Regulatory Commission, Comanche Peak Nuclear Power Plant, Docket Nos.

50-445 AND 50-446, Seismic Hazard and Screening Report (CEUS Sites), Response to NRC Request for Information Pursuant to 10 CFR 50.54(Regarding Recommendation 2.1 of the Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident (Mar. 27, 2014) (ADAMS Accession No. ML14099A197) (2014 Seismic Hazard Reevaluation).

115 See Petition at 17-18.

24 analysis of the magnitude of the seismic activity at the plant site.116 However, CFURs Petition fails to identify any requirement that a license renewal applicant conduct a seismic hazard evaluation as part of its ER, and no such requirement exists in 10 C.F.R. Part 51. With respect to guidance, the guidance for license renewal applicants in Regulatory Guide (RG) 4.2, Supplement 1, discusses including the seismic history of the site in a license renewal ER.117 Similarly, the Environmental Standard Review Plan (ESRP) in NUREG-1555 contains guidance related to NRC staff reviews of the seismic history of a site as part of the overall discussion of the geology of the site.118 Both of these guidance documents focus on the identifying the largest earthquakes that have occurred near the site, but they do not suggest that the full seismic hazard evaluation for the site be revisited or reproduced in the ER.119 In this case, the ER includes seismic history as part of its section on the geologic environment of the facility,120 as specified in NRC guidance.

CFUR does not identify any factual or legal requirement for including the information it requests in a license renewal ER, demonstrate that carrying out a new seismic hazard evaluation would be within the scope of an environmental review for license renewal or material to any findings the NRC must make, or show that its request for a reevaluation of the seismic hazard represents a genuine dispute with the Application. For these reasons, although the portion of Contention 2 related to the first two basesincluding additional earthquakes or geographical formations in the ER provides a brief statement of the issues and a brief explanation of its bases as required by 10 C.F.R. § 2.309(f)(1)(i)-(ii), Contention 2 must be rejected for failure to demonstrate that the issues it raises are within the scope of the 116 Id.

117 RG 4.2, Suppl. 1, Rev. 1 at 12.

118 See ESRP at 3.3-1 to 3.3-3.

119 See RG 4.2, Suppl. 1, Rev. 1 at 12; ESRP at 3.3-1 to 3.3-3.

120 See ER at 3-52, 3-57, and 3-69 to 3-77.

25 proceeding or material to the findings the NRC must make to act on the Application. Similarly, CFUR fails to provide a concise statement of the alleged facts or expert opinions that support its position or demonstrate that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Portions of Contention 2 that challenge the ER must therefore be rejected for failure to meet the contention admissibility requirements in 10 C.F.R.

§ 2.309(f)(1)(iii)-(vi).

2.

Contention 2s challenges to other portions of the license renewal application are outside the scope of this proceeding and must be rejected.

The third claim in Contention 2 is that smaller earthquakes could contribute to cracking of plant piping, structural supports, and concrete, as well as damage to earthen water-control structures.121 CFURs Petition lists plant structures, systems, and components for which the Applicant performed aging management evaluations and/or developed aging management programs as required by 10 C.F.R. § 54.21(a).122 However, CFUR does not challenge with specificity how the Applicant carried out the relevant aging management evaluations or developed aging management programs.123 As set forth in 10 C.F.R. §§ 54.3 and 54.21, the contents of a license renewal application must include an integrated plant assessment that demonstrates that a nuclear power plant facility's structures and components requiring aging management review in accordance with § 54.21(a)... have been identified and that the effects of aging on the functionality of such structures and components will be managed to maintain the

[current licensing basis] such that there is an acceptable level of safety during the period of extended operation.124 CFUR has not challenged any specific aging management issue 121 Petition at 18-19.

122 See id., citing Application at 3.1-91 (summary of aging management evaluation for reactor vessel internals); 3.5-37, 3.5-49 to 3.5-50, and 3.5-52 (aging management programs for containment building and internal structural components), and 3.5-57 (aging management programs for earthen water control structures).

123 Petition at 18-19.

124 10 C.F.R. § 54.3(a); 10 C.F.R. § 54.21(a)(3).

26 described in the Application, or included any information supporting a claim that the effects of aging will not be adequately managed.

For this reason, the third claim in Contention 2 does not provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact or 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, as required by 10 C.F.R. § 2.309(f)(1)(vi). Because the third claim in Contention 2 also generally lacks supporting information related to any intended challenge to the Application, this part of Contention 2 also fails to satisfy the basis and materiality requirements in 10 C.F.R. § 2.309(f)(1)(ii) and (iv) and the support requirements of 10 C.F.R.

§ 2.309(f)(1)(v).125 For these reasons, portions of Contention 2 challenging parts of the Application other than the ER must also be rejected.

3.

Contention 2s challenges to 2014 Seismic Hazard Reevaluation for the Comanche Peak site are outside the scope of this proceeding and must be rejected.

Finally, to the extent CFUR intended to challenge the most recent seismic hazard reevaluation for the Comanche Peak site, such a challenge is outside the scope of both environmental and safety reviews for license renewal. The Petition quotes the 2014 Seismic Hazard Reevaluation for the Comanche Peak site126 and, by claiming that a new reevaluation must be performed in the ER, implicitly challenges it. In support of this assertion, CFUR cites news articles about recent earthquakes and discusses hydraulic fracking and deep well injection.127 However, nowhere does the Petition discuss how seismic hazards evaluations are 125 In general, a contention challenging the aging management evaluations and aging management programs in an application could be within the scope of a license renewal proceeding and satisfy 10 C.F.R. § 2.309(f)(1)(iii). However, that contention would need to be argued and supported fully in order to satisfy other subsections of 10 C.F.R. § 2.309(f)(1).

126 See Petition at 19-20.

127 See id. at 20-22.

27 performed at reactor sites or why a challenge to the 2014 reevaluation is within the scope of a license renewal proceeding.

Seismic hazard evaluations for operating nuclear power plants are part of ongoing regulatory oversight processes, and such evaluations are not within the scope of a license renewal proceeding because, as discussed in Section III above, the focus of NRCs license renewal safety review is on plant systems, structures, and components for which current

[regulatory] activities and requirements may not be sufficient to manage the effects of aging in the period of extended operation.128 Issues already monitored and reviewed in ongoing regulatory oversight processes, such as the seismic hazard evaluations discussed here, therefore fall outside the scope of the license renewal safety review.129 The 2014 reevaluation was performed under the current licenses in response to an NRC request sent to all power reactor licensees and construction permit holders following the 2011 earthquake and tsunami that resulted in an accident at the Fukushima Dai-ichi nuclear power plant in Japan.130 of this request included specific direction to licensees to reevaluate the seismic hazards at their sites against present-day NRC requirements and guidance, and said that

[b]ased upon this information, the NRC staff will determine whether additional regulatory actions are necessary (e.g., update the design basis and SSCs important to safety) to protect against the updated hazards.131 The Applicant responded with its updated seismic hazard 128 Turkey Point, CLI-01-17, 54 NRC at 10 (quoting 60 Fed. Reg. at 22,469).

129 See, e.g., Turkey Point, CLI-01-17, 54 NRC at 8-10 (holding that [i]ssues like emergency planning which already are the focus of ongoing regulatory processesdo not come within the NRC's safety review at the license renewal stage).

130 See Letter from Eric J. Leeds, Director, Office of Nuclear Reactor Regulation and Michael R. Johnson, Director, Office of New Reactors, to All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status (Mar. 12, 2012) (ADAMS Accession No. ML12053A340) (2012 Seismic Request Letter). This request describes the history of Commission and Congressional direction on this matter.

See id. at 2.

131 Id. at Enclosure 1, p.1.

28 analysis in March 2014.132 The staff developed a safety evaluation of this analysis, which was cited in the ER but not incorporated by reference.133 As described in the documents related to this request, the Applicants response, and the NRCs safety evaluation, the seismic hazard evaluation was performed pursuant to 10 C.F.R. Part 100 and 10 C.F.R. Part 50, Appendix A, General Design Criterion 2, Design bases for protection against natural phenomena, and according to the guidance in Regulatory Guide (RG) 1.208.134 The seismic hazard evaluation is therefore not within either the scope of issues to be included in an ER for license renewal135 or the scope of the safety review that must be performed for license renewal.136 Accordingly, any contention challenging it must be rejected under 10 C.F.R. §§ 2.309(f)(1)(iii).

Although Contention 2 touches on both environmental and safety information found in the Application, as well as on seismic information related to Comanche Peak that was developed before the Application was submitted, it does not include a complete contention meeting all the pleading requirements of 10 C.F.R. § 2.309(f)(1) for any of these topics. For this reason, it must be rejected in full.

132 See generally 2014 Seismic Hazard Reevaluation.

133 See ER at 4-50 to 4-51, citing Comanche Peak Nuclear Plant, Units 1 and 2 - Staff Assessment of Information Provided Pursuant to Title 10 of the Code of Federal Regulations Part 50, Section 50.54(f),

Seismic Hazard Reevaluations for Recommendation 2.1 of the Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi Accident and Staff Closure of Activities Associated with Recommendation 2.1, "Seismic" (CAC NOS. MF3937 AND MF3938) (Jan. 6, 2016) (ADAMS Accession No. ML16014A125)

(2016 Seismic Hazard Safety Evaluation).

134 See 2012 Seismic Request Letter, Enclosure 1 at 2; 2014 Seismic Hazard Reevaluation at 2; 2016 Seismic Hazard Safety Evaluation at 2. See also Regulatory Guide (RG) 1.208, A Performance-Based Approach to Define the Site-Specific Earthquake Ground Motion (March 2007) (ADAMS Accession No. ML070310619).

135 See 10 C.F.R. § 51.53(c).

136 See 10 C.F.R. §§ 54.4 and 54.21.

29 C. Proposed Contention 3, which asserts that the Application fails to fully analyze climate change impacts that could decrease the supply of cooling water for Comanche Peak, is inadmissible.

Proposed Contention 3 states that [t]he [Application] fails to fully analyze predicted climate changes that could affect the ability of the Comanche Peak Nuclear Power Plant to have cooling water available at temperatures consistent with operational requirements.137 Specifically, CFUR claims that climate-change-induced temperature increases, could affect the capacity of the Squaw Creek Reservoir to maintain water temperatures consistent with Comanche Peak nuclear plant operational requirements, while drought and increased evaporation rates could potentially impact[ ] the ability to have enough cool water for the Comanche Peak Nuclear Power Plants to cool down.138 In support of Contention 3, CFUR cites an article from the Texas Tribune and information on the U.S. Environmental Protection Agency (U.S. EPA) website.139 The article reports on statewide drought conditions in Texas in August 2022.140 CFUR notes that state officials in Gunter, Texas expressed concerns that their city could run out of water.141 Additionally, CFUR cites the article for statements therein from a state climatologist expressing the opinion that drought conditions could get worse, could potentially last multiple years, could cost billions of dollars in economic impact, and could shift the impact from agricultural issues to water supply 137 Petition at 22.

138 Id.

139 Id. at 22-24 (first citing María Méndez, Texas is Facing its Worst Drought Since 2011. Heres What You Need to Know, THE TEXAS TRIBUNE (Aug. 19, 2022), https://www.texastribune.org/2022/08/19/texas-drought-water-conservation/; and then citing U.S. EPA, CLIMATE IMPACTS ON ENERGY, https://19january2017snapshot.epa.gov/climate-impacts/climate-impacts-energy_.html (last updated Dec.

22, 2016)).

140 Id. at 22-23 (citing Méndez, supra note 139).

141 Id. at 23. Note that Gunter, Texas is located roughly 50 miles north of Dallas, Texas and is over 100 miles away from Comanche Peak Nuclear Power Plant.

30 issues.142 As for the U.S. EPA website, Petitioner cites it for the propositions that more frequent and severe climate-change-induced heat waves will likely increase the demand for electricity in the Southeast and Southwest, that these areas are likely to experience reduced water supplies due to increased temperature and evaporation, as well as possible decreased rainfall, and that these combined effects could stress water resources.143 CFUR does not assert that the Application fails to comply with any specific regulation, statute, or other authority in Contention 3. Rather, CFUR asserts that the failure to consider these potential climate-change-induced impacts on plant operations has the effect of omitting material information concerning water usage and anticipated temperatures, and the potential effects on plant operations, which in turn has the effect of overstating advantages of nuclear power and understating environmental impacts.144 CFUR argues this is material because it bears on the suitability of the nuclear generation option when compared to other generation options... and on the ability of the reactors to operate when needed most, including peak demand times in the hottest months of the year.145 Like Contention 1, Contention 3 is primarily an environmental contention submitted under NEPA and NRC regulations in Part 51, but also includes a safety claim related to the AEA and Parts 50 and 54. In pleading Contention 3, CFUR has provided a brief statement of the issues and the bases for the contention as well as a concise statement of the alleged facts or expert opinions that support CFURs position on the issue, and therefore meets the requirements in 10 C.F.R. § 2.309(f)(1)(i), (ii), and (v). However, Contention 3 must be rejected for failing to meet the contention pleading requirements of 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi). That is, Contention 3 falls outside the scope of a license renewal proceeding, alleges facts that, even if 142 Id.at 22-23.

143 Id. at 24 (citing U.S. EPA, supra note 139).

144 Id. at 23.

145 Id. at 23-24.

31 taken as true, are not material to the findings the NRC must make to support the action involved in this proceeding, and raises no genuine dispute with the Applicant on a material issue of law or fact. In addition, because one portion of this contention challenges matters that have been resolved generically by rulemaking in 10 C.F.R. Part 51, Appendix B, and because CFUR did not seek or provide support for a waiver under 10 C.F.R. § 2.335 that would allow it to challenge the issues designated as Category 1, Contention 3 must also be rejected. The discussion below addresses these regulations as well as other portions of 10 C.F.R. § 2.309(f)(1) and the relevant portions of 10 C.F.R. Parts 51 and 54.

1.

CFURs claim under NEPA and Part 51 that the Applicants environmental report is inadequate for omitting certain material information concerning future water usage impacts and temperature increases due to climate change is inadmissible.

CFURs first claim asserts that the Applicants ER is inadequate because it omits material information concerning water usage and anticipated temperatures, and the potential effects on plant operations.146 However, this claim must be rejected because it raises an issue that has been resolved generically by rulemaking. To challenge this information, CFUR must obtain a waiver under 10 C.F.R. 2.335. CFUR has neither requested a waiver nor provided support for such a waiver, and Contention 3 must therefore be rejected as outside the scope of this proceeding.

As more thoroughly explained above in Section IV,147 the Commission has stated that Category 1 determinations are not subject to site-specific review and thus fall beyond the scope of individual license renewal proceedings, and may not be challenged in litigation unless the rule is waived.148 Relevant here is that Comanche Peak Nuclear Power Plant uses once-through cooling systems for dissipating reactor heat,149 Appendix B to 10 C.F.R. Part 51 lists 146 Petition at 23.

147 See discussion supra Section IV.

148 Turkey Point, CLI-01-17, 54 NRC at 12.

149 See ER at 2-5 to 2-6, 4-11.

32 surface water use conflicts for plants with once-through cooling systems as a Category 1 issue, and the Commission found generically by rule that the impact for these types of plants was SMALL.150 Moreover, the Applicant has incorporated these findings into its Application.151 As previously stated, the Commission permits applicants for license renewal to incorporate such findings in this manner.152 In making the generic finding that surface water use conflicts for plants with once-through cooling systems is a Category 1 issue, the NRC reasoned that

[c]onsumptive use by plants with once-through cooling systems during the license renewal term is not expected to change unless power uprates, with associated increases in water use, are proposed, and in that case, [s]uch uprates would require an environmental assessment by the NRC.153 Notably here, the Applicant has not proposed such a power uprate. Further, the NRC did in fact consider climate change, its associated effects on precipitation and temperature patterns, drought, and population growth changes in the 2013 GEIS.154 The NRC recognized that these could result in conflicts of water availability.155 However, the NRC also recognized that such situations would then necessitate decisions by local, State, and regional water planning officials, and that local water use planning is not within the NRCs jurisdiction.156 Accordingly, the portion of Contention 3 related to reevaluating this Category 1 issue is outside the scope of a license renewal proceeding, and thus, fails to meet the requirements of 10 C.F.R.

§ 2.309(f)(1)(iii).

150 10 C.F.R. Part 51, Appendix B, Table B-1. The proposed 2023 update to the 2013 GEIS states that there are no changes to the generic finding that surface water use conflicts for plants with once-through cooling systems are Category 1 issues. Renewing Nuclear Power Plant Operating Licenses Environmental Review, 88 Fed. Reg. at 13,336.

151 ER at 4-10 to 4-11. Notably, CFUR makes no reference to this section of the ER considering impacts on water resources, to the ER generally, or to the consideration of surface water impacts in the 2013 GEIS.

152 See discussion supra p. 13 and note 63.

153 2013 GEIS at 4-40.

154 2013 GEIS at 4-40.

155 Id.

156 Id.

33 Additionally, as in Contention 1, CFUR has not formally requested a waiver to Appendix B to 10 C.F.R. Part 51 and has not provided information that might justify such a waiver. Though CFUR has cited to statements reported in the Texas Tribune and general information on the U.S. EPA website, CFUR has not explained how this information might render the GEISs Category 1 finding inapplicable to the Comanche Peak facility or how it might otherwise justify a waiver. Therefore, CFURs claim that the Applicants ER is inadequate for omitting material information concerning future water usage impacts and temperature increases due to climate change and their corresponding effects on plant operations is outside the scope of this proceeding and does not meet the requirement of 10 C.F.R. § 2.309(f)(1)(iii). Furthermore, because this claim is outside the scope of a license renewal proceeding, it is necessarily not material to the findings the NRC must make to support its licensing decision on the Application, and therefore, this claim also fails to satisfy 10 C.F.R. § 2.309(f)(1)(iv).

Finally, CFURs first claim under Contention 3 is also not admissible for failing to provide information to show that a genuine dispute exists with the Applicant on a material issue of law or fact as required by 10 C.F.R. § 2.309(f)(1)(vi). 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 petitioners belief.157 Here, CFUR has not pointed to a specific part of the Application that it disputes and bases its claim on an claimed omission. However, the Applicant, in Section 4.12.4.3 of the ER, does in fact consider how climate change can affect the availability of water resources due to changes in temperature and precipitation patterns for operational purposes.158 In Section 4.12.4.3, the Applicant concludes that because Comanche Peak uses a once-through cooling system, does 157 10 C.F.R. § 2.309(f)(1)(vi).

158 ER at 4-39 to 4-40.

34 not require significant surface water consumption or any groundwater withdrawals, and operates in compliance with its permits for water withdrawals and discharges, its contribution to the cumulative impacts on water availability would be SMALL.159 In regard to the cooling water potentially increasing in temperature, the Applicant concludes that this could reduce the efficiency of thermal power plant cooling technologies and that discharge permit conditions could limit operations for some plants, but in any event, Comanche Peak would continue to operate within permitted conditions.160 Thus, because CFUR has made no specific reference to the applicable portion of the Applicationor any portion of the Applicationand has not provided any supporting reasons for its assertion that the Application omits the information in question, CFUR also fails to provide sufficient information to show that a genuine dispute exists with the Applicant on a material issue of law or fact pursuant to 10 C.F.R. § 2.309(f)(1)(vi).

Accordingly, this portion of CFURs claim is inadmissible and must be rejected for failure to satisfy the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi).

2.

CFURs claim that the Applicants environmental report is inadequate due to its alternatives analysis overstating the advantages of nuclear power and understating its environmental impacts is outside the scope of this proceeding, and accordingly, it is inadmissible.

CFURs second claim under NEPA and Part 51 is that, due to the omission asserted in the previous section,161 the Applicants ER is inadequate because the alternatives analysis in the ER overstat[es] advantages of nuclear power and understat[es] environmental impacts.162 Notwithstanding the above analysis, CFUR also argues that omitting consideration of potential climate-change-induced impacts on water usage and cooling water temperatures bears on the suitability of the nuclear generation option when compared to other generation options... and 159 Id. at 4-40.

160 Id.

161 That is, that the ER omits material information concerning water usage and anticipated temperatures, and the potential effects on plant operations. Petition at 23.

162 Id.

35 on the ability of the reactors to operate when needed most, including peak demand times in the hottest months of the year.163 That is, CFUR asserts that the alternatives analysis in the ER is inadequate because it does not consider whether Comanche Peak Units 1 and 2 will be able to meet energy demands when needed most164 and does not adequately compare its ability to meet energy demands to the ability of alternative power generating options. It is true that if cooling water is not available in acceptable quantities and at an acceptable temperature, the Comanche Peak units could be required to reduce power generation output or to shut down.165 The implications of this when treated as a safety contention under Part 50 and Part 54 are discussed later in Section V.C.3.166 However, considered as an environmental contention challenging the alternatives analysis in the ER, the second claim in Contention 3 is inadmissible under 10 C.F.R. § 2.309(f)(1).

CFUR has provided a brief statement of the issues in Contention 3, the bases that support it, and the facts that support CFURs position and therefore meets the contention admissibility requirements in of 10 C.F.R. § 2.309(f)(1)(i), (ii), and (v). However, CFURs arguments that the Applicant impermissibly omitted from the ER consideration of potential climate change-induced impacts on water usage and cooling water temperatures, and the suitability of and availability of nuclear power generation, raise issues that are outside the scope of this proceeding and immaterial to the findings the NRC must make to support action on the Application and that therefore do not satisfy 10 C.F.R. § 2.309(f)(1)(iii)-(iv). In addition, CFUR does not provide sufficient information to show that a genuine dispute exists with the Applicant on a material issue of law or fact as required by 10 C.F.R. § 2.309(f)(1)(vi). To the extent that 163 Id. at 23-24.

164 Petition at 24.

165 Appendix A to Operating License Nos. NPF-87 and NPF-89, Technical Specifications for Comanche Peak Nuclear Power Plant Units 1 and 2 at 3.7-23 to 3.7-24 (ADAMS Accession No. ML053180521).

166 See discussion infra Section V.C.3.

36 CFUR intends Contention 3 to assert that the ER omits a need for power analysis or omits consideration of economic costs and benefits, this is also outside the scope of this proceeding as an impermissible challenge to 10 C.F.R. § 51.53(c)(2) without the waiver required under 10 C.F.R. § 2.335.

Insofar as the Petitioner contends that the ER is inadequate because it omits discussion of the need foror economic costs and benefits ofComanche Peak Units 1 and 2 to meet the states energy demands, Petitioners contention is expressly contravened by the language of 10 C.F.R. § 51.53(c)(2) and the history of the rulemaking.167 That is, Section 51.53(c)(2) specifically states that for operating license renewal, unlike for initial licensing, the ER is not required to include discussion of need for power or the economic costs and economic benefits of the proposed action or of alternatives to the proposed action.168 The only exception within the plain text of the rule is for the purposes of determining whether an alternative is appropriate for inclusion within the range of alternatives.169 Here, CFUR does not challenge the range of alternatives included but instead argues that the suitability of the proposed action to meet energy demands is overstated and its environmental impacts understated in comparison to the alternatives. Thus, to the extent that CFUR intended its claim as a challenge to the absence of a need for power analysis, it is outside the scope of this proceeding, and thus, not material per 10 C.F.R. § 2.309(f)(1)(iii) and (iv).

167 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,467 (explaining that the amendment to Part 51 eliminates consideration of the need for generating capacity and of utility economics from the environmental reviews because these matters are under the regulatory jurisdiction of the States and are not necessary for the NRCs understanding of the environmental consequences of a license renewal decision).

168 10 C.F.R. § 51.53(c)(2).

169 10 C.F.R. § 51.53(c)(2).

37 Regarding CFURs implied claim that the alternatives discussion is not sufficiently complete for the purposes of 10 C.F.R. § 51.53(c), it is also outside the scope of this proceeding and immaterial. First, the NRC recognized in the 1996 rulemaking to amend Part 51 that the final decision on whether or not to continue operating the nuclear plant will be made by the utility, State, and Federal (non-NRC) decisionmakers. This final decision will be based on economics, energy reliability goals, and other objectives over which the other entities may have jurisdiction. The NRC has no authority or regulatory control over the ultimate selection of future energy alternatives.170 The claim that the ER overstates the suitability of Comanche Peaks continued operation to meet Texass energy demands speaks precisely to the kind of state and local energy planning decision that the NRC does not involve itself in. Accordingly, this claim is outside the scope of this proceeding and immaterial to the findings the NRC must make to support a decision on the Application, and CFUR has failed to meet the requirements of 10 C.F.R. § 2.309(f)(1)(iii) and (iv).

Second, CFURs claim that the Applicants ER understates the environmental impact of the proposed action is only supported in form, is conclusory, and consequently, the Petitioner has not demonstrated that the issue is within the scope of the proceeding, is material, or that it raises a genuine dispute with the Applicant for the purposes of 10 C.F.R. § 2.309(iii), (iv), and (vi). When properly drawn, the conclusion that the ER understates environmental impacts may be within the scope of a license renewal proceeding; however, CFUR has not provided any facts to support this conclusion. CFUR has only pointed to facts to support the assertion that climate change will affect the environment in which the plant resides, independent of whether its license is renewed.171 That is, the support CFUR has provided does not relate to the environmental impacts of the proposed action on the environment per 10 C.F.R. § 51.53(c), but reverses the language and instead relates to the impacts of the environment on the proposed action.

170 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,473.

171 See Petition at 22-24 (first citing Méndez, supra note 139; and then citing U.S. EPA, supra note 139).

38 Consequently, the claim is outside the scope of this proceeding and is immaterial to the findings the NRC must make to support a decision on the application. And though CFURs claim is couched as presenting an omission in the Application, CFUR has not provided supporting reasons as to why such a consideration might be required by law. Indeed, CFUR has neither presented any legal theory nor made reference to NRC regulations or statutory requirements at all.172 Accordingly, CFURs challenge to the alternatives analysis must be rejected for failing to satisfy 10 C.F.R. § 2.309(f)(1)(vi) as well.

That said, anything remaining of CFURs challenge can only amount to an attack on 10 C.F.R. § 51.53(c) itself, contrary to 10 C.F.R. § 2.335(a). As with Contention 1 and the first claim in Contention 3, CFUR has not formally requested a waiver and has not provided information that might justify such a waiver. The only information in support of Contention 3 bears on the potential effects of climate change on the environment in Texas or the Southwest and Southeast generally.173 CFUR has not explained how this information might render the explicit language of 51.53(c)(2) inapplicable to Comanche Peak. Accordingly, the portion of Contention 3 challenging 10 C.F.R. § 51.53(c) itself is inadmissible per 10 C.F.R. § 2.335(a) and thus raises an issue outside the scope of this proceeding, contravening 10 C.F.R.

§ 2.309(f)(1)(iii). Consequently, CFURs claim is also immaterial to the findings the staff must make to support a decision on the license renewal application and fails provide sufficient information to show that a genuine dispute exists with the Applicant on a material issue of law or fact. Accordingly, CFUR fails to meet the requirements governing contention admissibility set forth in 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi), and as a result, this portion of Proposed Contention 3 must also be rejected.

172 See Id.

173 See Petition at 22-24 (first citing Méndez, supra note 139; and then citing U.S. EPA, supra note 139).

39

3.

CFURs claim under the AEA and Parts 50 and 54 that the Applicants license renewal application is inadequate for omitting material information concerning future water usage impacts and temperature increases due to climate change is inadmissible.

CFUR asserts that the Application is inadequate because it omits consideration of the possibility that climate change may induce conditions that could leave Comanche Peak Nuclear Power Plant with an inadequate supply of cooling water so that it is unable to meet its operating requirements.174 When Contention 3 is considered as a safety contention proffered under the AEA and Parts 50 and 54, as when it is considered as an environmental contention, the Petitioner has satisfied 10 C.F.R. § 2.309(f)(1)(i), (ii), and (v). However, CFURs claim must be rejected for failing to meet the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1)(iii),

(iv), and (vi). That is, the Petitioner has not demonstrated that the issue is within the scope of the proceeding, has not demonstrated that the issue is material to the findings the NRC must make to support a decision on the Application, and has not provided sufficient information to show that a genuine dispute exists with the Applicant/licensee on a material issue of law or fact.

As discussed more fully in Section IV,175 the scope of the safety review in a license renewal proceeding is limited to actions that have been or will be taken with regard to managing the effects of aging and time-limited aging analyses.176 CFUR has provided no facts asserting that potential climate-change induced ambient conditions are an aging management issue, only the bare assertion that these conditions could potentially bear on the ability of Comanche Peak Units 1 and 2 to meet operating requirements. Issues associated with cooling water for operating nuclear power plants are routinely monitored and addressed in ongoing regulatory oversight processes and such evaluations are not within the scope of a license renewal 174 Petition at 22.

175 See discussion supra Section IV.

176 10 C.F.R. § 54.29(a).

40 proceeding because, as discussed in Section III above, the focus of NRCs license renewal safety review is on plant systems, structures, and components for which current [regulatory]

activities and requirements may not be sufficient to manage the effects of aging in the period of extended operation.177 The following paragraphs explain how the NRC routinely monitors and addresses a condition such as an adequate supply of cooling water at appropriate temperatures through its ongoing regulatory oversight processes, and why such issues are outside the scope of this license renewal proceeding.

Pursuant to 10 C.F.R. § 50.36(b), each operating license authorizing a production or utilization facility includes technical specifications which are derived from the analyses and evaluation included in the associated safety analysis report, as amended.178 Included in these technical specifications, are limiting conditions for operation (LCO) which are the lowest functional capability or performance levels of equipment required for safe operation of the facility.179 NRC regulations require that when a limiting condition for operation is not met, the licensee shall shut down the reactor or follow any remedial action permitted by the technical specifications until the condition can be met.180 Operating licenses for production and utilization facilities also contain surveillance requirements for the purpose of monitoring, among other things, whether the limiting conditions for operation are met.181 These requirements become part of the plants current licensing basis.182 The current operating licenses for Comanche Peak Units 1 and 2 are no exception. LCO 3.7.9 for Comanche Peak Units 1 and 2 states, The Safe Shutdown Impoundment (SSI) shall 177 Turkey Point, CLI-01-17, 54 NRC at 10 (quoting 60 Fed. Reg. at 22,469).

178 10 C.F.R. § 50.36(b).

179 10 C.F.R. § 50.36(c)(2)(i).

180 10 C.F.R. § 50.36(c)(2)(i).

181 10 C.F.R. § 50.36(c)(3).

182 See 10 C.F.R. § 54.3.

41 be OPERABLE 183 for Modes 1, 2, 3, and 4.184 When the SSI level is less than required, that is, less than 770 feet mean sea level and/or the station service water intake temperature is greater than 102 degrees Fahrenheit per the associated Surveillance Requirements 3.7.9.1 and 3.7.9.2, the required action the licensee must take is to restore the SSI level to within limits within 7 days, and failing that, to be in Mode 3 within six hours and finally in Mode 5, cold shutdown of the reactor, within 36 hours4.166667e-4 days <br />0.01 hours <br />5.952381e-5 weeks <br />1.3698e-5 months <br />. Moreover, Appendix D to Vistras Application states, no changes or additions to the Technical Specifications are required to manage the effects of aging during the [period of extended operation], that is, the period of up to twenty years beyond the current expiration dates of the operating licenses for which the plant operates should its license be renewed.185 To a similar end, the Application also states that, in accordance with 10 C.F.R. § 54.21(b), while the NRC is reviewing it, the Applicant will update the application annually to reflect any changes to the current licensing basis that materially affects its contents.186 Because the current licensing basis, by means of LCO 3.7.9 and the associated surveillance requirements, already accounts for the conditions that CFUR claims could cause Comanche Peak Units 1 and 2 to not meet its operating requirements, the safety claim in Contention 3 is a current operating concern outside the scope of this proceeding, is not material to the findings the NRC must make to support the license renewal action, and fails to raise a 183 The Technical Specification Bases for Comanche Peak Units 1 and 2 explain that the Safe Shutdown Impoundment, or SSI, has been defined as that water source, including necessary retaining structures (e.g., a pond with its dam), and the intake channel entering, but not including, the service water system intake structure.... The two principal functions of the SSI are the dissipation of residual heat after reactor shutdown, and dissipation of residual heat after an accident. Comanche Peak Technical Specification Bases, Revision 83 at B 3.7-44 (ADAMS Accession No. ML22038A164); see also ER at 3-

88.

184 Technical Specifications Comanche Peak Units 1 and 2, supra note 165. Modes 1, 2, 3, and 4 include power operation, startup, hot standby, and hot shutdown, respectively. Id. at 1.1-8. Mode 5 is cold shutdown, and Mode 6 is refueling. Id.

185 Application, Appendix D at D-1.

186 Application at 1-7.

42 genuine dispute with the Applicant. Thus, to the extent that CFUR intended to submit Proposed Contention 3 under the AEA and Parts 50 and 54, it must be rejected because it fails to satisfy the contention admissibility requirements under 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi).

Therefore, for all the reasons discussed in this section, Proposed Contention 3 is inadmissible whether considered as an environmental contention proffered under NEPA and Part 51 or under the AEA and Parts 50 and 54.

D. Proposed Contention 4, which combines and asserts several miscellaneous claims, is inadmissible.

CFURs amended Petition added Contention 4 to its initial hearing request. Specifically, Contention 4 states, The [Application] fails to consider Greenhouse Gas emissions as required by the Council of Environmental Qualitys National Environmental Policy Act (NEPA)

Guidance.187 Though the title for Contention 4 indicates that CFURs claims primarily deal with greenhouse gas emissions and NEPA guidance, Contention 4 also includes three claims that are related to Contention 3 concerning climate change impacts on water availability.

Nevertheless, those claims will also be addressed in this section with reference to the above discussion on Contention 3, as applicable.

1.

The first claim in Proposed Contention 4, which asserts that The [Application]

fails to consider Greenhouse Gas emissions as required by the Council of Environmental Qualitys National Environmental Policy Act (NEPA) Guidance, is inadmissible.

The main statement of Contention 4 is that [t]he [Application] fails to consider Greenhouse Gas emissions as required by the Council of Environmental Qualitys [CEQs]

National Environmental Policy Act (NEPA) Guidance (2023 CEQ Guidance).188 According to CFUR, the Application fails to follow this new CEQ guidance, which was published in the 187 Petition at 24.

188 Id.

43 Federal Register on January 9, 2023, for public comment and interim use.189 According to CFUR, this guidance requires applicants to [q]uantify the reasonably foreseeable GHG emissions (including direct and indirect emissions) of a proposed action, the no action alternative, and any reasonable alternatives; to [d]isclose and provide context for the GHG emissions and climate impacts associated with a proposed action and alternatives, including by, as relevant, monetizing climate damages; and to [a]nalyze reasonable alternatives, including those that would reduce GHG emissions relative to baseline conditions, and identify available mitigation measures to avoid, minimize, or compensate for climate effects.190 As an additional basis for this contention, CFUR claims that the alternatives selected for analysis were insufficient, and that [v]iable, affordable alternatives utilizing a combination of solar, wind and energy storage should have been analyzed, including power purchase options.191 Finally, CFUR asserts that [t]here was no monetizing of climate impacts included in these sections of the Environmental Report, although this is required by the new guidance.192 At its foundation, the portion of Contention 4 related to the 2023 CEQ Guidance is inadmissible because guidance does not create legal requirements for license renewal and CFUR has not provided the information required by 10 C.F.R. § 2.309(f)(1) for contention admissibility. This part of the contention rests on a claim that the ER is deficient because it does not follow the 2023 CEQ Guidance; however, compliance with the CEQ Guidance is not required. As noted above, the Application was submitted to the NRC on October 3, 2022.193 The 2023 CEQ Guidance was published for public comment and interim use on January 9, 189 Id., citing National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change, 88 Fed. Reg. 1196 (Jan. 9, 2023).

190 Petition at 25.

191 Id.

192 Id.

193 See supra note 2.

44 2023.194 Because the Application was submitted to the NRC three months before the 2023 CEQ Guidance was published in the Federal Register, it could not have referenced that guidance. Furthermore, even if the CEQ Guidance predated the Application, the guidance itself includes language explaining that it does not impose legally binding requirements. As explained in the associated Federal Register notice, This guidance is not a rule or regulation, and the recommendations it contains may not apply to a particular situation based upon the individual facts and circumstances. This guidance does not change or substitute for any law, regulation, or other legally binding requirement, and is not legally enforceable.

The use of non-mandatory language such as guidance, recommend, may, should, and can, describes CEQ policies and recommendations. The use of mandatory terminology such as must and required describes controlling requirements under the terms of NEPA and the CEQ regulations, but this document does not affect legally binding requirements.195 In the CEQ Guidance, the three elements of guidance the Petitioner invokes (quantification of reasonably foreseeable emissions, disclosing and providing context for emissions including by monetizing climate damage, and analyzing alternative) are introduced with should language appropriate for guidance.196 CFUR refers to these guidance elements as requirements;197 however, they are neither statutes nor regulations and therefore are not legal requirements. In NRC proceedings, any supporting material provided by the petitioner is subject to scrutiny by the presiding officer,198 who must confirm that the proffered material provides adequate support for the contention.199 Because the 2023 CEQ Guidance is not a 194 See supra note 189.

195 88 Fed. Reg. 1196, 1197 n.4.

196 Id. at 1200 (This section of the guidance identifies and explains the following steps agencies should take when analyzing a proposed actions climate change effects under NEPA) (emphasis added). See also Petition at 24 (quoting this language).

197 See Petition at 25, 26.

198 See Vermont Yankee Nuclear Power Co. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989), vacated in part on other grounds and remanded, CLI-90-4, 31 NRC 333 (1990); see also Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2), LBP-10-7, 71 NRC 391, 421 (2010).

199 See Vermont Yankee, ALAB-919, 30 NRC at 48; see also Bellefonte, LBP-10-7, 71 NRC at 421.

45 source of legal requirements, language in Contention 4 that relates to specific language in the 2023 CEQ Guidance (for example regarding monetization of climate damage) or asserts that compliance with it is required fails to demonstrate a genuine dispute with the Applicant or provide support for such a claim as required by 10 C.F.R. § 2.309(f)(1)(v)-(vi).

Although claims related to specific language in the 2023 CEQ Guidance are inadmissible, the Petition does provide a concise statement and a basis for its more general assertion that the ER must discuss greenhouse gas emissions for the alternatives considered.200 However, the Petition provides no support (other than incorrect statements that the elements of the 2023 CEQ Guidance are required) for the assertion that the discussion found in the ER is insufficient. Greenhouse gas impacts for Comanche Peak Units 1 and 2 are discussed in the ER and determined to result primarily from use of equipment on site and commuting by employees.201 An alternatives analysis in the ER discusses greenhouse gas emissions for the four alternatives Vistra identifies as viable replacements for the quantity of baseload power generated by Comanche Peak Units 1 and 2.202 The Petition does not challenge the substance of this information or argue that the impacts for the alternatives considered are described incorrectly. Because this portion of the contention does not challenge the application, it fails to satisfy 10 C.F.R. § 2.309(f)(1)(vi). And because nearly all of the arguments related to the contention are based on a document the Applicant was not required to address, and in any event could not have addressed, in its Application, Contention 4 fails to raise an issue that is within the scope of this proceeding or material to the findings the NRC must make to act on this license renewal application. For this reason, this portion of the contention does not satisfy 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi) and must be rejected.

200 See Petition at 24-25.

201 ER at 3-29, 3-42.

202 See ER at 7-9 to 7-45.

46 Rather than critiquing the alternative analysis found in the ER, CFUR appears to argue in this portion of Contention 4 that the ER must consider additional alternatives, including purchased power and renewables combined with energy storage.203 According to CFUR, there are abundant renewable resources in Texas and energy storage technology is improving.204 Additionally, CFUR states that:

Numerous combinations could have been considered, many of which would produce little to no GHG emissions, but this was not done. Instead, natural gas was included in the sole combination alternative, leading to a false conclusion that there would be more GHG emissions if renewables were used. Many viable combination options with little to no GHG emissions exist but were simply not analyzed.205 However, CFUR does not challenge the application in this respect, or provide any argument or information that would support such a challenge. CFUR has therefore failed to meet the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1)(v) and (vi).

According to the application, [t]he purpose and need for the proposed action (issuance of a renewed license) is to provide an option that allows for baseload power generation capability beyond the term of the current nuclear power plant operating license to meet future system generating needs.206 The ER considers and rejects a number of potential sources Vistra deems incapable of supplying a sufficient quantity of baseload power on the needed schedule; significantly, many of these were rejected for reasons other than greenhouse gas emissions (e.g., state of technological development, land use impacts).207 The Applicant then analyzed the four alternatives the Applicant found reasonable in relation to the purpose and need for the actionthat is, capable of providing replacement power for Comanche Peak Units 203 Petition at 26.

204 Id.

205 Id.

206 Application at 1-1.

207 ER at 7-3 to 7-9.

47 1 and 2 on the same schedule as renewed licenses for Units 1 and 2in the ER.208 CFUR asserts that other alternatives should have been considered fully, but does not characterize any such alternative or explain how it would meet the purpose and need for the action.209 The NRCs contention admissibility standards are meant to afford hearings only to those who proffer at least some minimal factual and legal foundation in support of their contentions.210 The Petitioner has not done so here, and so the assertion that other alternatives need to be considered fails to satisfy the requirements of 10 C.F.R. § 2.309(f)(1)(iii)-(vi) and must be rejected.

2.

CFURs claim that the license renewal application fails to consider climate impacts on Comanche Peak reactors and reactor safety is inadmissible.

Next, CFUR claims that the Applicant fails to consider climate impacts on Comanche Peak reactors and reactor safety.211 CFUR states that climate-change-induced impacts, including drought, torrential rains, and increased cooling water temperatures must be included in the license renewal application.212 As it did in Contention 3, CFUR again asserts that [t]here is no analysis in the application regarding potential lack of adequate cooling water and that it does not address... the safety or economic consequences of shutting down the plant due to insufficient cooling water.213 The assertion that the license renewal application omits discussion of a potential lack of cooling water and its implications for reactor safety and the assertion that it does not address the economic consequences of a shutdown due to insufficient cooling water are both addressed 208 ER 7-9 to 7-45.

209 Petition at 26.

210 Oconee, CLI-99-11, 49 NRC 328 at 334.

211 Petition at 26.

212 Id. at 27.

213 Id.

48 above in response to Contention 3.214 However, in Contention 4, CFUR also includes as a basis for its assertions a table from a publication by the Nuclear Energy Agency of the Organization for Economic Cooperation and Development (OECD) that provides examples of recent power plant critical incidents caused by drought.215 Again, by providing a statement of the issues and a brief description of the bases for the contention, CFUR has met the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1)(i) and (ii). But regardless of the examples provided here, CFURs claim is still inadmissible for the same reasons that Contention 3 is inadmissible. That is, the issue is not within the scope of the proceeding, is not material to the findings the NRC must make to support a decision on the license renewal application, and does not provide sufficient information to show that a genuine dispute exists with the Applicant on a material issue of law or fact.

To support the claims made in Contention 3, CFUR provides examples of reactors in the United States that have temporarily shut down, reduced power, or otherwise compensated for conditions caused by drought.216 Yet, CFUR does not assert or otherwise demonstrate that this is an issue within the scope of a license renewal proceeding. As discussed in Section V.C.3, accounting for the condition in which the Comanche Peak reactors lacks sufficient cooling water is an operating concern addressed by the current licensing basis and ongoing regulatory oversight.217 This is not changed by the fact that an analogous condition may have been triggered for other plants in the past or may be triggered for the Comanche Peak units in the future. As described in previous sections above, the focus of NRCs license renewal safety review is on plant systems, structures, and components for which current [regulatory] activities and requirements may not be sufficient to manage the effects of aging in the period of extended 214 See discussion supra Section V.C.2 and Section V.C.3.

215 Petition at 27. Note that the word critical here is used in the colloquial sense.

216 Id. at 27-28.

217 See discussion supra Section V.C.3.

49 operation.218 The Commission has found it generally unnecessary, in the license renewal stage, to review issues already monitored and reviewed in ongoing regulatory oversight processes.219 Contentions falling outside the scope of the staffs review for license renewal are inadmissible and must be rejected.220 Therefore, for the reasons explained above in Sections V.C.2 and V.C.3, and for the reasons explained in this section, CFURs claim is inadmissible for failing to meet the requirements of 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi).

3.

CFURs claim that the license renewal application specifically fails to consider anticipated water shortages is inadmissible.

CFUR next claims, again, that the license renewal application specifically fails to consider anticipated water shortages, and states that data regarding water availability must be included and analyzed in the [Application], especially considering the new guidance.221 Presumably, the guidance CFUR is referring to is the 2023 CEQ Guidance regarding greenhouse gas emissions discussed above.222 CFUR also supports its contention by citing to a December 2022 publication by the Texas State Comptroller predicting increasing water shortages through the year 2070.223 By providing a statement of the issues, descriptions of the bases for the contention, and a statement of the alleged facts that support its positions on the issues, CFUR has met the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1)(i), (ii), and (v) for this part of 218 Id. at 10 (quoting Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,469 (May 8, 1995)).

219 See, e.g., Turkey Point, CLI-01-17, 54 NRC at 8-10 (ongoing regulatory processes are not within the safety review at the license renewal stage).

220 10 C.F.R. § 2.309(f)(1)(iii); see, e.g., Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 567 (2005).

221 Petition at 29.

222 See discussion supra Section V.D.1.

223 Petition at 29 (citing Jess Donald & Spencer Grubbs, Drought in Texas: How Rain Scarcity Affects Texans and the Economy, THE TEXAS COMPTROLLER, December 2022, https://comptroller.texas.gov/economy/fiscal-notes/2022/dec/drought.php).

50 Contention 4, but it fails to meet the remainder. To the extent that this claim reiterates those discussed in Contention 3 and elsewhere in Contention 4, this part of Contention 4 is inadmissible for failure to meet the requirements of 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi) for the reasons described in Section V.C. and Section V.D.2.224 Next, it is unclear what nexus, if any, the cited 2023 CEQ Guidance regarding greenhouse gas emissions has to the possibility that Comanche Peak may not have adequate cooling water. As explained above, the guidance is not a requirement and the Applicant could not have considered or addressed it in its application, which preceded the guidance by several months.225 Regardless, the issue is not within the scope of a license renewal proceeding because the data that CFUR claims must be included in the license renewal application does not address aging management issues but rather concerns issues routinely addressed in ongoing oversight of an operating nuclear power plant. Moreover, if municipal water demands stressed water resources to the extent that Comanche Peak did not have enough cooling water at an acceptable temperature, this condition is accounted for in the current licensing basis as explained above in Section V.C.3, and the limiting conditions of operations would apply.226 Accordingly, and for the same reasons described in Section V.C.3, CFUR has failed to satisfy the contention admissibility requirements under 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi) and this part of Contention 4 must be rejected.

4.

CFURs claim that the license renewal application fails to consider increases in extreme weather in Texas is inadmissible.

Finally, CFUR argues that the license renewal application fails to consider increases in extreme weather in Texas.227 In support of this claim, CFUR references a publication by the Texas A&M University Office of the State Climatologist that analyzes historic observations of 224 See discussion supra Section V.C. and Section V.D.2.

225 See discussion supra Section V.D.I.

226 See discussion supra Section V.C.3.

227 Petition at 30.

51 temperature, precipitation, and extreme weather in Texas and identifies ongoing and likely future trends out to the year 2036.228 However, CFUR has only provided enough to meet the contention admissibility requirement of 10 C.F.R. § 2.309(f)(1)(v) and meets none of the remainder of 10 C.F.R. § 2.309(f)(1).

Petitioner cites the reports executive summary to show that (1) climate change can cause changes in local wildfire risk due to impacts in the amount of dry vegetation; (2) future changes in severe thunderstorms and tornados are unknown; (3) increasing temperatures, rainfall variability, and other factors will, on balance, decrease water availability but that these changes will also vary strongly across applications; and (4) the number of 100-degree days will nearly double by 2036.229 These selections from the executive summary of the Texas A&M publication are largely presented without explanation of their relevance. CFUR only states that the application fails to consider increases in extreme weather in Texas and that the report covers dates that fall within the currently licensed operating timeframe, provides a general reference to all the reasons given in its own Petition in its entirety, and then includes a photocopy of the executive summary highlights for the Texas A&M publication.230 In essence, CFUR has provided a statement of alleged facts it intends to rely on and merely states a conclusion rather than articulating for what factual or legal reason CFUR believes the information it presents must be included in the license renewal application. As the Commission has previously stated, neither mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a 228 Id. at 30-31 (citing JOHN NIELSON-GAMMON ET. AL., ASSESSMENT OF HISTORIC AND FUTURE TRENDS OF EXTREME WEATHER IN TEXAS, 1900-2036 (Texas A&M Univ. Off. of the Texas State Climatologist, 2021)).

229 Id. at 30.

230 Id. at 30-31.

52 proffered contention.231 Accordingly, CFUR has failed to plead this claim with the specificity required by 10 C.F.R. § 2.309(f)(1)(i), and it must be rejected.

Even if CFURs claim is not rejected for failing to meet the specificity requirements of the contention admissibility standards, it must likewise be rejected for CFURs failure to demonstrate that it is within the scope of the proceeding, that it is material to the findings the NRC must make, and that a genuine dispute exists per 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi).

CFUR has neither asserted nor provided any justification for the assertion that its claim pertains to aging management or time-limited aging analyses per 10 C.F.R. § 54.29(a). Therefore, CFUR has failed to demonstrate that its claim is within the scope of a license renewal proceeding, and as a result, has not demonstrated that it is material to the findings the NRC must make to support a decision on the license renewal application per 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi).

Thus, the claim a must be rejected on these grounds as well.

For all of the reasons explained in this section, Proposed Contention 4 together with all its bases are inadmissible for failing to satisfy the requirements of 10 C.F.R. § 2.309(f)(1).

Specifically, all the issues identified in Proposed Contention 4 are outside the scope of a license renewal proceeding, immaterial to the findings the staff must make to support a decision on the license renewal application, and do not raise a genuine dispute with the Applicant. Additionally, 231 S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 253 (2007)

(citing Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003)).

53 the fourth claim regarding the consideration of the Texas A&M publication also fails to meet its specificity requirements. Proposed Contention 4 must therefore be rejected in its entirety.

CONCLUSION For the reasons discussed above, while the Staff agrees that CFUR has demonstrated standing, the Board should deny the Petition for failure to proffer at least one admissible contention.

Respectfully submitted,

/Signed (electronically) by/

Marcia Carpentier Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: 301-287-9135 E-mail: marcia.carpentier@nrc.gov Executed in Accord with 10 CFR 2.304(d)

Ethan Licon Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: 301-415-1016 E-mail: ethan.licon@nrc.gov Dated in Rockville, MD this 27th day of March 2023

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of VISTRA OPERATIONS COMPANY, LLC Comanche Peak Nuclear Power Plant, Units 1 and 2 Docket No. 50-445 and 50-446 Certificate of Service Pursuant to 10 C.F.R §2.305, I hereby certify that copies of the foregoing NRC STAFFS ANSWER OPPOSING CITIZENS FOR FAIR UTILITY REGULATIONS HEARING REQUEST, dated March 27, 2023, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 27th day of March 2023.

/Signed (electronically) by/

Marcia Carpentier Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: 301-287-9135 E-mail: marcia.carpentier@nrc.gov Dated in Rockville, MD this 27th day of March 2023