ML24029A259
| ML24029A259 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 01/29/2024 |
| From: | Sherwin Turk NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 56917, 50-339 SLR-2, 50-338 SLR-2 | |
| Download: ML24029A259 (0) | |
Text
January 29, 2024 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of VIRGINIA ELECTRIC AND POWER COMPANY (North Anna Power Station, Units 1 and 2)
Docket Nos. 50-338-SLR-2 and 50-339-SLR-2 NRC STAFFS ANSWER TO BEYOND NUCLEAR AND SIERRA CLUBS MOTION FOR WITHDRAWAL OF PREMATURE HEARING NOTICE Pursuant to 10 C.F.R. § 2.323(c), the Staff of the U.S. Nuclear Regulatory Commission hereby responds to the Motion for Withdrawal of Premature Hearing Notice (Motion) filed by Beyond Nuclear and the Sierra Club (Movants) on January 18, 2024, as corrected January 22, 2024. In their Motion, the Movants request that the Commission order the Secretary of the Commission to withdraw the prematurely issued hearing notice issued in this proceeding, based on their assertion that the Commission did not intend the hearing process... to begin until after publication of a final EIS [Environmental Impact Statement].1 For the reasons set forth below, the Staff submits that the Motion misconstrues the Commissions decision in CLI-22-3;2 and that the Staff has properly complied with the Commissions directives in CLI-22-3 by issuing the Notice of Opportunity for Hearing3 after it 1 Motion at 1 and 3-4.
2 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3), Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), NextEra Energy Point Beach, LLC (Point Beach Nuclear Plant, Units 1 and 2),
Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), CLI-22-3, 95 NRC 40 (2022).
3 Virginia Electric and Power Company; North Anna Power Station Units 1 and 2; Draft Environmental (continued...)
completed its environmental review and published its draft site-specific environmental impact statement for comment.4 Further, the Staffs publication of the Notice is consistent with the Commissions regulations; will not cause harm to the Movants; and is in the public interest.
Accordingly, the Staff opposes the Motion and recommends that it be denied.
INTRODUCTION Procedural History Prior to February 2022 This proceeding concerns the subsequent license renewal application (SLRA) submitted by Virginia Electric and Power Company (Applicant) for Renewed Facility Operating License Nos. NPF-4 and NPF-7, to permit an additional 20 years of operation for North Anna Units 1 and 2.5 The NRC published a notice of opportunity to request a hearing and to petition for leave to intervene in the proceeding on October 15, 2020.6 On December 14, 2020, three petitioners (including the Movants) filed a request for hearing and petition to intervene, in which they raised one contention; in addition, they filed a petition for waiver of the Commissions regulations establishing the environmental impacts of generic Category 1 issues for license renewal.7 On March 29, 2021, the Board issued LBP-21-4, in which it found that the Petitioners proposed contention and petition for waiver failed to meet applicable Commission requirements; the Board Impact Statement, Request for comment; public comment meetings; opportunity to request a hearing and to petition for leave to intervene, 89 Fed. Reg. 960 (Jan. 8, 2024).
4 NUREG-1437, Supplement 7a, Second Renewal, Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 7a, Second Renewal, Regarding Subsequent License Renewal for North Anna Power Station Units 1 and 2, Draft Report for Comment (December 2023)
(ML23339A047).
5 North Anna Power Station Units 1 and 2, Application for Subsequent License Renewal (August 2020)
(ML20246G696). The application included the Applicants Environmental Report (ER) (ML20246G698).
6 North Anna Power Station, Units 1 and 2, Subsequent license renewal application; opportunity to request a hearing and to petition for leave to intervene, 85 Fed. Reg. 65,438 (Oct. 15, 2020).
7 Hearing Request and Petition to Intervene by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia and Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.71(d), and 51.95(c)(1) to Allow Consideration of Category 1 NEPA Issues (Dec. 14, 2020) (Hearing Request).
therefore denied the intervention and waiver petitions, and terminated the proceeding. On April 23, 2021, the Petitioners filed a petition for Commission review of that decision.8 On August 25, 2021, while the Petitioners appeal was pending before the Commission, the Staff published a Federal Register Notice9 informing members of the public that it had issued for comment a draft supplement to the Generic Environmental Impact Statement (GEIS) for License Renewal of Nuclear Plants (DSEIS),10 regarding the subsequent license renewal of North Anna Power Station, Unit Nos. 1 and 2.11 The DSEIS relied upon the determinations in the 2013 GEIS and 10 C.F.R. Part 51, Appendix B, Table B-1, for Category 1 issues; considered any new and significant information on Category 1 issues; and evaluated the impacts of SLR for North Anna on Category 2 (site-specific) issues. On September 29, 2021, the Petitioners filed a motion before the Commission, seeking to reopen the proceeding and to amend their previous contention based on the DSEIS.
The Commissions February 2022 Decisions On February 24, 2022, the Commission issued its decisions in CLI-22-2,12 CLI-22-3,13 8 Notice of Appeal and Brief on Appeal of LBP-21-4 by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia (Apr. 23, 2021), as corrected (Apr. 28, 2021).
9 Virginia Electric and Power Company; Dominion Energy Virginia; North Anna Power Station, Unit Nos. 1 and 2, Draft Supplemental Environmental Impact Statement; Request for Comment, 86 Fed. Reg. 47,525 (Aug. 25, 2021).
10 NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report, (June 2013) (2013 GEIS) (ML13106A241). The 2013 GEIS revised the previous GEIS. See NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Main Report, Final Report (May 1996) (1996 GEIS) (ML040690705, ML040690738).
11 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Draft Supplement 7, Second Renewal, Draft Report for Comment (ML21228A084).
12 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-2, 95 NRC 26 (2022).
13 See n.2, supra.
and CLI-22-4.14 In CLI-22-2, the Commission reversed its prior decision in CLI-20-3,15 holding, instead, that 10 C.F.R. § 51.53(c)(3) only applies to an initial license renewal applicants environmental report (ER) and that the GEIS does not address subsequent license renewal.16 Further, the Commission held that the 2013 GEIS and Table B-1 to 10 C.F.R. Part 51, Appendix B, did not address SLR, and the Staffs environmental evaluation of the Turkey Point SLR application was therefore incomplete; and the Commission directed the Staff to shorten the Turkey Point license terms to match the end dates of the previous renewed licenses, until completion of the Staffs NEPA analysis.17 Likewise, in CLI-22-4, the Commission, inter alia, directed the Staff to shorten the terms of the subsequently renewed licenses for Peach Bottom Units 2 and 3, to match the end dates of the previous licenses...
until completion of the NEPA analysis.18 In CLI-22-3, the Commission issued several directives to the Staff and ruled on a number of procedural matters then pending in the Oconee, Peach Bottom, Turkey Point, Point Beach and North Anna SLR proceedings. Among other matters, the Commission stated that it will not issue any further SLR licenses until the Staff has completed an adequate NEPA review for each application;19 directed the Staff to prepare a rulemaking plan to update the 2013 GEIS and 10 CFR Part 51 to address the impacts of SLR operations;20 and dismissed without 14 Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-22-4, 95 NRC 44 (2022).
15 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-20-3, 91 NRC 133 (2020).
16 CLI-22-2, 95 NRC at 27, 31.
17 Id. at 36. The Commission later reaffirmed its decision to leave the licenses in place with shortened license terms, in Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-6, 95 NRC 111 (2022).
18 Peach Bottom, CLI-22-4, 95 NRC at 46.
19 Oconee, CLI-22-3, 95 NRC at 41.
20 See Id. at 41, citing Staff Requirements -- SECY-21-0066 -- Rulemaking Plan for Renewing Nuclear (continued...)
prejudice various environmental contentions, motions and appeals (including the motions and appeals in North Anna).21 Further, the Commission afforded SLR applicants an opportunity to expedite the review of their SLR applications by submitting a revised ER with site-specific information on the impacts of SLR, pending the issuance of a revised GEIS; and it stated that petitioners would have an opportunity to file new or amended contentions based on the revised GEIS or any new information in the Staffs site-specific environmental impact statements.22 NRC Staff Actions Implementing the Commissions Decisions Following the issuance of CLI-22-2, CLI-22-3, and CLI-22-4, the Staff took various actions to implement the Commissions directives. Consistent with the Commissions decisions, the Staff initiated a rulemaking proceeding to update the GEIS and 10 C.F.R. Part 51;23 and it amended the expiration dates of the Turkey Point and Peach Bottom subsequent renewed licenses to match the expiration dates of the previous renewed licenses.24 In addition, the Staff commenced site-specific environmental evaluations of issues that had been categorized as Category 1 issues in the GEIS, for SLR applications where the applicants submitted ER supplements addressing those issues on a site-specific basis.
In particular, for the North Anna SLR application, the Staff initiated a limited environmental scoping process and published a Federal Register Notice stating that it plans to Power Plant Operating Licenses -- Environmental Review (RIN 3150-AK32; NRC-2018-0296) (Feb. 24, 2022) (ML22053A308).
21 CLI-22-3, 95 NRC at 43.
22 Id. at 41-43. The Commission noted that members of the public will have an opportunity to comment during the development of the site-specific EISs, and that [a]fter each site-specific review is complete, a new notice of opportunity for hearing -- limited to contentions based on new information in the site-specific environmental impact statement -- will be issued. Id. at 42.
23 See Proposed rule, Renewing Nuclear Power Plant Operating Licenses-Environmental Review, 88 Fed. Reg. 13329 (Mar. 3, 2023).
24 See (1) Letter from Andrea D. Veil (NRC) to Bob Coffey (Florida Power & Light Co.) (Mar. 25, 2022)
(ML22073A122); (2) Letter from Andrea D. Veil (NRC) to David P. Rhoades (Constellation Energy Generation, LLC) (Mar. 25, 2022) (ML22073A207).
prepare a site-specific EIS.25 Further, in accordance with CLI-22-3, the Staff conducted a site-specific evaluation of the SLR impacts for North Anna and published the results of its review in a Draft EIS issued in December 2023. Then, having completed its site-specific environmental review, the Staff published the January 8, 2024, Federal Register Notice, affording members of the public an opportunity to comment on the Draft EIS and to request a hearing and petition to intervene limited to contentions based on new information in the DEIS.26 DISCUSSION The Movants argue that the Federal Register Notice of Opportunity for Hearing published on January 8, 2024 is premature, based on their assertion that in CLI-22-3, the Commission contemplated that hearings on site-specific EISs for SLR applications -- including the SLR application for North Anna -- must await completion of the entire environmental review process.27 In support of this claim, they quote the Commissions statements in CLI-22-3 that
[a]fter each site-specific review is complete, a new notice of opportunity for hearing limited to contentions based on new information in the site-specific environmental impact statement will be issued..28 They further assert that [t]he Commissions repeated use of the word complete to describe the status of the environmental review demonstrates unequivocally that the Commission did not intend the hearing process for these particular site-specific environmental 25 Notice of Intent To Conduct Scoping Process and Prepare Supplement To Draft Environmental Impact Statement; Virginia Electric and Power Company North Anna Power, Units 1 and 2, 87 Fed. Reg. 68,522 (Nov. 15, 2022). The Staff stated, in part, that [c]onsistent with Commission direction, the NRC staff intends to prepare a draft supplement to the North Anna DSEIS for public comment, in which it will review all applicable Category 1 (generic) issues listed in the 2021 DSEIS at Table 3-1, for the purpose of making site-specific findings on those issues, and will also review Category 2 (site-specific) issues listed in the 2021 DSEIS at Table 3-2 for any significant new information that may have arisen following the issuance of the DSEIS... Id. at 68,523.
26 89 Fed. Reg. at 960.
27 Motion at 2, 3.
28 Id. at 3, quoting CLI-22-3, 95 NRC at 42 (emphasis in original).
reviews to begin until after publication of a final EIS.29 The Movants, however, point to no authority to support this argument - and in fact, their argument is contrary to established practice and the Commissions regulations governing the preparation of an EIS and the issuance of hearing opportunity notices.
First, the Commission did not state that a notice of opportunity for hearing is to be published following issuance of either a final EIS or a draft EIS. Rather, as recited above, the Commission directed that [a]fter each site-specific review is complete, a new notice of opportunity for hearing... will be issued.30 The Staff has done that here. In accordance with 10 C.F.R. § 51.70 - 51.74, the Staff conducted a site-specific evaluation of the issues that were categorized as Category 1 issues in the GEIS, as well as any new and significant information concerning the Category 2 issues evaluated in the 2021 DSEIS for North Anna, and presented the results of its evaluation in the DEIS. At that point in time, the Staffs review was complete, such that publication of a notice of opportunity for hearing was appropriate, as required in CLI-22-3. To be sure, the DEIS was issued for public comment, and the Staffs evaluation could be revised in the Final EIS to address those comments; the Staffs treatment of any such comments could be challenged in new or amended contentions concerning the Final EIS. If no comments are filed, or the comments received do not cause the Staff to reconsider its previous findings, or no new information comes to light after the publication of the DEIS, the Final EIS would be published without changing the DEIS evaluation.31 29 Id. at 3-4.
30 CLI-22-3, 95 NRC at 42 (emphasis added).
31 Pursuant to 10 C.F.R. § 51.72 (Supplement to draft environmental impact statement) a supplement to the DEIS could be published if (1) there are substantial changes in the proposed action that are relevant to environmental concerns; (2) there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts; or (3) in the Staffs opinion, the preparation of a supplement will further the purposes of NEPA.
Second, while the Movants assert that the Staffs environmental review would be complete only after the Final EIS (FEIS) is issued, they ignore the fact that information presented in any hearings on environmental contentions could potentially cause the Staff to modify the findings in its FEIS. Thus, under the Movants logic, a notice of opportunity for hearing could not be issued until after a hearing is actually held and a Board decision is issued.
Similarly, if any significant information arises after publication of the final EIS, such that a supplement to the FEIS is required,32 any notice of hearing opportunity on the final EIS would have to be rescinded and a new notice of hearing opportunity would have to be issued after the Staff completes its review of the new information. The Movants have provided no reason to believe that this is what the Commission contemplated in issuing CLI-22-3.
Third, the Staffs issuance of January 2024 notice of hearing opportunity is consistent with NRC regulations governing the filing of contentions on environmental issues. Pursuant to 10 C.F.R. § 2.309(f), contentions are required to be filed in a timely manner. Significantly, 10 C.F.R. § 2.309(f)(2) provides:
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. On issues arising under the National Environmental Policy Act, participants shall file contentions based on the applicant's environmental report.
Participants may file new or amended environmental contentions after the deadline in paragraph (b) of this section (e.g., based on a draft or final NRC environmental impact statement, environmental assessment, or any supplements to these documents) if the contention complies with the requirements in paragraph (c) of this section.33 32 See 10 C.F.R. § 51.92.
33 10 C.F.R. § 2.309(f)(2) (emphasis added).
Thus, the regulations require the filing of environmental contentions as promptly as possible, based upon available information; here, while the Commission required the filing of contentions when the Staffs environmental review is complete (rather than when the applicants ER supplement is filed), it did not say that contentions could be delayed once that the Staffs review is complete, to await the issuance of a final EIS. The Staffs publication of the hearing opportunity notice upon completion of its environmental review and issuance of the DEIS is consistent with the Commissions expectation, codified in 10 C.F.R. § 2.309(f)(2), that contentions should be filed at the earliest opportunity, as modified by the directives in CLI-22-3.
Fourth, as stated in § 2.309(f)(2), petitioners (intervenors) will have an opportunity to file new or amended contentions based on any new information contained in the Staffs Final EIS.
Moreover, upon issuance of the FEIS, any admitted contentions could migrate and/or be amended to address the FEIS. Thus, the commencement of litigation now, following publication of the January 2024 notice of opportunity for hearing, will not cause harm to or prejudice the Movants, as they will have an opportunity to litigate any admitted contentions or to file new or amended contentions once the Final EIS is issued.
Finally, the Staffs issuance of the notice of hearing opportunity is in the public interest.
The Commission long ago expressed its view that the hearing process should be conducted in an efficient and expeditious manner, so as not to cause delay in the issuance of licensing decisions, while assuring that petitioners rights are protected.34 Here, the Staffs publication of 34 In its Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 19 (1998),
the Commission stated:
[T]he Commission's objectives are to provide a fair hearing process, to avoid unnecessary delays in the NRC's review and hearing processes, and to produce an informed adjudicatory record that supports agency decision making on matters related to the NRC's responsibilities for protecting public health and safety, the common defense and security, and the environment. In this context, the opportunity for hearing should be a meaningful one that focuses on genuine issues and real disputes regarding agency actions subject to adjudication. By the same token, however, applicants for a license are also entitled to a prompt resolution of disputes concerning their applications.
the notice of hearing opportunity upon the completion of its environmental review and publication of the Draft EIS, was consistent with the Commissions directives that the notice be published upon completion of the Staffs review, and was consistent with the public interest in achieving prompt resolution of any litigation concerning the applicants SLR application.
CONCLUSION The Staff submits that its publication of the North Anna notice of opportunity for hearing upon completing its environmental review and publishing its draft site-specific EIS is fully consistent with (a) the Commissions directives in CLI-22-3, and (b) the Commissions policy governing the filing of contentions and the requirements of 10 C.F.R. § 2.309(f). Moreover, the Staffs publication of the Notice is fundamentally fair, in that it affords members of the public (including the Movants) an opportunity to challenge the Staffs completed environmental evaluation in a meaningful and timely manner and does not prevent them from filing new and amended contentions at such time as a final EIS is published. Finally, the Staffs publication of the Notice at this time is in the public interest, in that it allows for the filing of contentions at the earliest opportunity consistent with the Commission directives in CLI-22-3, thus contributing to the early resolution of any issues that might affect a timely licensing decision.
For all of these reasons, as more fully set forth above, the Staff respectfully submits that the Movants request to withdraw the Notice of Opportunity for Hearing should be denied.
Respectfully submitted,
/signed electronically by/
Sherwin E. Turk Counsel for NRC Staff Dated at Rockville, Maryland this 29th day of January 2024 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of VIRGINIA ELECTRIC AND POWER COMPANY (North Anna Power Station, Units 1 and 2)
. Docket Nos. 50-338-SLR 50-339-SLR Certificate of Service Pursuant to 10 C.F.R. §2.305, I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO MOTION BY BEYOND NUCLEAR AND SIERRA CLUB FOR WITHDRAWAL OF PREMATURE HEARING NOTICE, dated January 29, 2024, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 29th day of January 2024.
/Signed (electronically) by/
Sherwin E. Turk Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: 301-287-9194 E-mail: Sherwin.Turk@nrc.gov Dated at Rockville, MD this 29th day of January 2024