ML24127A220

Applicants Answer to the Hearing Request and Petition to Intervene and Motion for Leave to Amend Contention 3 Filed by Beyond Nuclear and Sierra Club

ML24127A220
Person / Time
Site:	North Anna
Issue date:	05/06/2024
From:	Bessette P, Blair W, Lighty R Dominion Energy Services, Morgan, Morgan, Lewis & Bockius, LLP, Virginia Electric & Power Co (VEPCO)
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 57008, 0-338-SLR-2, 50-339-SLR-2
Download: ML24127A220 (0)

Text

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

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

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Docket Nos. 50-338-SLR-2 and 50-339-SLR-2 May 6, 2024 APPLICANTS ANSWER TO THE HEARING REQUEST AND PETITION TO INTERVENE AND MOTION FOR LEAVE TO AMEND CONTENTION 3 FILED BY BEYOND NUCLEAR AND SIERRA CLUB RYAN K. LIGHTY, Esq.

PAUL M. BESSETTE, Esq.

SCOTT M. CLAUSEN, Esq.

MORGAN, LEWIS & BOCKIUS LLP WILLIAM S. BLAIR, Esq.

DOMINION ENERGY SERVICES, INC.

Counsel for Virginia Electric and Power Company

ii TABLE OF CONTENTS I.

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

BACKGROUND............................................................................................................... 2 A.

License Renewal Reviews..................................................................................... 2

1.

Safety Review............................................................................................ 3

2.

Environmental Review............................................................................... 4

3.

Consideration of Environmental Influences on Plant Safety..................... 5 B.

Procedural History................................................................................................. 7 III.

THE PETITION SHOULD BE DENIED BECAUSE PETITIONERS HAVE NOT SUBMITTED AN ADMISSIBLE CONTENTION............................................... 10 A.

Legal Standards for Hearing Requests and Contention Admissibility................ 10

1.

Issues Must Be Within the Scope of the Proceeding............................... 11

2.

Disputes Must Be Pled in Sufficient Detail to Show That They Are Both Genuine and Material...................................................................... 12 B.

Proposed Contention 1 (2011 Mineral Earthquake) Is Inadmissible................... 14

1.

Proposed Contention 1 Lacks the Requisite Specificity for an Admissible Contention............................................................................. 15

2.

The Allegedly Omitted Analysis Is Presented in the 2023 DSEIS.......... 16

3.

Petitioners Claims Regarding the Acceptability of the North Anna Design Basis Are Illogical, Counterfactual, and Beyond the Scope of This Proceeding................................................................................... 19

4.

Petitioners Miscellaneous Commentary Fails to Support an Admissible Contention............................................................................. 22 C.

Proposed Contention 2 (Severe Accidents) Is Inadmissible................................ 24

1.

Petitioners Incorporation by Reference of Mr. Mitmans Declaration Is Improper and Insufficient to Demonstrate an Admissible Contention............................................................................. 25

2.

Petitioners Nine Bullets Do Not Demonstrate an Admissible Contention................................................................................................ 26 D.

Proposed Contention 3 (Climate Change / Accident Risk) Is Inadmissible........ 37

1.

Petitioners Vague Claims Fail to Demonstrate a Genuine Material Dispute..................................................................................................... 38

2.

Petitioners Reliance on New York v. NRC Does Not Provide a Basis For an Admissible Contention on Climate Change........................ 40

3.

Petitioners Collateral Attack on Part 54 Is Beyond the Scope of This Proceeding....................................................................................... 42

iii IV.

PETITIONERS MOTION FOR LEAVE TO AMEND PROPOSED CONTENTION 3 SHOULD BE DENIED...................................................................... 42 A.

The Commission Requires a Showing of Good Cause for Amended Contentions.......................................................................................................... 43 B.

The GAO Report Does Not Contain Any Information Materially Different From Information Previously Available.............................................................. 44 C.

Proposed Amended Contention 3 Is Still Inadmissible....................................... 46 V.

CONCLUSION................................................................................................................ 49

1 I.

INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(1) and the Atomic Safety and Licensing Boards (Board)

Amended Initial Prehearing Order,1 Virginia Electric and Power Company, on behalf of itself and Old Dominion Electric Cooperative (collectively, Applicants), submit this Answer to the Hearing Request and Petition to Intervene filed on March 28, 2024 (Petition),2 and the Motion to Amend Contention 3 filed on April 11, 2024 (Motion),3 by Beyond Nuclear and Sierra Club (Petitioners). Petitioners seek to intervene in the above-captioned proceeding and request a hearing to challenge the draft Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for North Anna Power Station Units 1 and 2, Supplement 7a, issued on December 28, 2023 (2023 DSEIS).4 As explained below, the Petition should be denied because Petitioners have not submitted an admissible contention as required by 10 C.F.R. § 2.309(a), and the Motion should be denied because it does not satisfy the requirements in 10 C.F.R. § 2.309(c) for out-of-time contentions.

In the Petition, Petitioners propose contentions on the following three topics: (1) the 2011 Mineral earthquake,5 (2) severe accidents, and (3) climate change and its impacts on accident risk.

But as discussed in Section III below, none of the contentions are admissible. As a general matter, 1

Memorandum and Order (Initial Prehearing Order (amended)) at 2 (Apr. 15, 2024) (unpublished)

(ML24107A696).

2 Beyond Nuclear and Sierra Clubs Hearing Request and Petition to Intervene (March 28, 2024) (ML24088A028).

3 Motion by Beyond Nuclear and the Sierra Club to Amend Their Contention 3 Regarding Failure to Consider Environmental Impacts of Climate Change (Apr. 11, 2024) (ML24102A199) (Motion).

4 NUREG-1437, Supp. 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 (Dec. 2023) (ML23339A047) (2023 DSEIS).

5 The earthquake in question, which the United States Geological Survey reported as having a Richter scale magnitude of 5.8, occurred on August 23, 2011, with its epicenter near Mineral, Virginia, approximately 10 miles from the North Anna facility. Va. Elec. and Power Co. (North Anna Power Station, Units 1 and 2), LBP-21-4, 93 NRC 179, 193 (2021).

2 all three contentions are exceedingly vague and fail to articulate their respective challenges with the requisite specificity for an admissible contention. Another common theme is Petitioners desire to use this limited-scope license renewal proceeding to litigate the sufficiency of North Annas current licensing basis (CLB), which is squarely beyond the scope of this proceeding. Furthermore, many of Petitioners claims are riddled with factual inaccuracies or rely on demonstrably incorrect readings of the relevant documents and analyses. Ultimately, none of the contentions allege adequate support, none demonstrate a genuine dispute on a material issue of law or fact, and none satisfy all six admissibility criteria in 10 C.F.R. § 2.309(f)(1).

Separately, the Motion proposes to amend Proposed Contention 3 to add certain assertions from a recent U.S. Government Accountability Office (GAO) report as additional bases for the contention. However, the Motion should be denied because it fails to satisfy the relevant criteria for late-filed contention amendments, namely because the cited GAO report is merely a compendium of information that has long been publicly available, rather than a source of materially new information. Alternatively, even if those threshold criteria have been satisfied, the Motion still should be denied for the separate reason that Proposed Contention 3 remains inadmissible even with the addition of those new bases.

Accordingly, the Board should DENY the Motion, DENY the Petition, and TERMINATE the proceeding.

II.

BACKGROUND A.

License Renewal Reviews The Nuclear Regulatory Commissions (NRC) license renewal reviews consist of two parts: (1) a safety review governed by 10 C.F.R. Part 54, and (2) an environmental review governed by 10 C.F.R. Part 51.

3

1.

Safety Review The objective of the NRCs license renewal safety review is limited. Namely, it is to ensure that the licensee can successfully manage the detrimental effects of aging during the period of extended operations.6 Thus, the NRCs license renewal regulations in 10 C.F.R. Part 54 focus on whether the licensee can manage the effects of aging on certain long-lived, passive components that are important to safety.7 To do so, applicants must include descriptions of their aging management programs (AMPs) for affected components in their subsequent license renewal applications (SLRAs).8 These AMPs are at the core of the NRCs license renewal safety framework. NRC guidance (known as the GALL Report) analyzes aging management issues generically and contains AMPs that applicants may use to satisfy the aging management requirements in Part 54.9 It is unequivocal that the NRCs safety review is not intended to duplicate the NRCs ongoing oversight of operating reactors.10 The NRCs safety review is therefore not an opportunity to re-examine a plants CLB, which the Commission has chosen, as a policy matter, to exclude from the scope of its license renewal proceedings:

In establishing its license renewal process, the Commission did not believe it necessary or appropriate to throw open the full gamut of provisions in a plants [CLB] to re-analysis during the license renewal review. The [CLB] represents an evolving set of requirements and commitments for a specific plant that are modified as necessary over the life of a plant to ensure continuation of an adequate level of safety. It is effectively addressed and maintained by ongoing agency oversight, review, and enforcement. Just as these oversight programs help ensure compliance with the [CLB] during the original 6

Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-15-6, 81 NRC 340, 347 (2015).

7 Id.; see also 10 C.F.R. §§ 54.21, 54.29(a).

8 Indian Point, CLI-15-6, 81 NRC at 348; see also 10 C.F.R. § 54.21(a)(3).

9 See NUREG-1801, Rev. 2, Generic Aging Lessons Learned (GALL) Report (Dec. 2010) (ML103490041)

(GALL Report).

10 Indian Point, CLI-15-6, 81 NRC at 347.

4 license term, they likewise can reasonably be expected to fulfill this function during the renewal term.11 In short, ongoing agency oversight and a plants CLB12 are beyond the limited scope of license renewal and beyond challenge in a license renewal adjudicatory proceeding.13 The Commission long ago determined that it would be unnecessary and wasteful14 to permit such challenges.

2.

Environmental Review The objective of the NRCs environmental review is to analyze the potential

[environmental] impacts of an additional 20 years of nuclear power plant operation[s].15 For license renewal, the NRCs environmental regulations in Part 51 are based, in large part, on the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS), which summarizes the findings of a systematic inquiry (accomplished through notice and comment rulemaking) into the potential environmental consequences of license renewal.16 Based on these analyses, the GEIS delineates two types of environmental issues:

• Generic Category 1 issues, for which the NRC made generic conclusions applicable to all existing nuclear power plants;17 and

• Plant-Specific Category 2 issues, for which site-specific analyses are required for each individual license renewal proceeding.18 11 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 8-9 (2001) (citation omitted).

12 See 10 C.F.R. § 54.3 (defining the CLB).

13 Turkey Point, CLI-01-17, 54 NRC at 7-9.

14 Id. at 7.

15 Id.

16 See NUREG-1437, Rev. 0, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996) (Vol. 1, ML040690705) (1996 GEIS); NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013) (Vol. 1, ML13106A241) (GEIS). As used in this brief, GEIS refers to Rev. 1 unless otherwise noted. The NRC is now working on Rev. 2 of the GEIS and corresponding changes to 10 C.F.R. Part 51, but that effort is only at the proposed rule stage and imposes no requirements here.

17 Turkey Point, CLI-01-17, 54 NRC at 11.

18 See id. at 11-12 (discussing Category 2 issues).

5 In 2022, the Commission determined that the GEIS and associated regulations in Part 51 applied only to initial license renewal and not SLR.19 The NRC staff is now engaged in an effort to revise the GEIS and update its Part 51 regulations to apply to one term of SLR.20 Petitioners submitted comments on the proposed rule and draft GEIS.21 Petitioners comments included a report by and comments from Jeffrey T. Mitman whom they also rely on to support their Petition.22 While the NRC staff have submitted the proposed final rule to Commission for approval,23 the updated GEIS and rule are not yet final and do not apply here.

3.

Consideration of Environmental Influences on Plant Safety As explained in the GEIS:

The NEPA process focuses on environmental impacts rather than on issues related to safety. Safety issues become important to the environmental review when they could result in environmental impacts, which is why the environmental effects of postulated accidents are considered in the GEIS and in plant-specific supplements to the GEIS. Since NEPA regulations do not provide for a safety review, the license renewal process includes an environmental review that is distinct and separate from the safety review. Since the two reviews are separate, operational safety issues and safety issues related to nuclear power plant aging are considered outside the scope for the environmental review, just as the environmental issues are not considered as part of the safety review.24 19 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), CLI-22-2, 95 NRC 26 (2022).

20 See generally NRC License Renewal Generic Environmental Review, https://www.nrc.gov/reactors/operating/

licensing/renewal/sled.html; see also Renewing Nuclear Power Plant Operating LicensesEnvironmental Review; Proposed rule, 88 Fed. Reg. 13,329 (Mar. 3, 2023).

21 Comment (0043) from Diane Curran on Behalf of Beyond Nuclear and the Sierra Club on PR Renewing Nuclear Power Plant Operating Licenses - Environmental Review (May 19, 2023) (ML23139A275).

22 See id. Attach. 1; Petition, Attach. 1.

23 See SECY-24-0017, Final Rule - Renewing Nuclear Power Plant Operating Licenses - Environmental Review (RIN3150-AK32; NRC-2018-0296) (Mar. 6, 2024) (ML23202A179).

24 GEIS at 1-8 (emphasis added); see also NUREG-1437, Rev. 2, Generic Environmental Impact Statement for License Renewal of Nuclear Plants at 1-9 to 1-10 (Feb. 2024) (Vol. 1, ML23201A224) (Rev. 2 is awaiting final Commission approval).

6 In other words, the safety aspects of environmental influences that may act upon a plant are evaluated as a matter of ongoing regulatory compliance, far beyond the limited scope of a license renewal proceeding. Whereas, the environmental impacts of hypothetical accidents resulting from such environmental influences are evaluated in license renewal proceedings under the topic of Postulated Accidents. The NRC has long used a two-pronged approach to evaluate the potential environmental impacts of postulated accidents.25 Design Basis Accidents: Design Basis Accidents are postulated accidents that a nuclear facility must be designed and built to withstand without loss to the systems, structures and components necessary to ensure public health and safety.26 Before the NRC issues an operating license, an applicant must demonstrate the ability of the proposed reactor to withstand all design-basis accidents.27 After licensing, the licensee must maintain acceptable design and performance criteria throughout the operating life of the nuclear plant, including any license-renewal periods of extended operations.28 In other words, a plants defined design basis is evaluated during initial licensing and re-evaluated, as necessary, during the life of the plant.

License renewal and SLR applicants are required to take adequate steps to account for aging during the period of extended operations through time-limited aging analyses or aging management plans. Because of these activities to manage aging, the NRC expects operations during an SLR term will continue to provide a level of safety equivalent to that provided during the initial operating license period.29 Similarly, because a licensee must meet the existing design basis 25 2023 DSEIS at 3-169, F-1.

26 Id. at F-1 27 Id. at F-2.

28 Id. at F-2.

29 Id. at F-3.

7 and manage aging, the NRC has long concluded that the environmental impacts of design-basis accidents should not differ significantly from the initial operating period.30 Severe Accidents: Severe accidents captures all other types of accidentsi.e., those that are beyond the plants designed defined design basis. Although severe accidents could result in more significant consequences, their potential environmental impact is tempered by their extremely low probability of occurrence. In addition to evaluating probability-weighted impacts, the NRC requires all plants to perform a site-specific analysis of potential mitigation measures (severe accident mitigation alternatives or SAMAs) that could further reduce the hypothetical impacts.31 B.

Procedural History The Subsequent License Renewal Application: Applicants filed their SLRA with the NRC on August 24, 2020, to renew North Annas operating licenses for an additional 20-year period.32 As part of the SLRA, Applicants submitted an environmental report (ER) that considered the potential environmental impacts of the requested extension.33 Under the prevailing interpretation of the NRCs regulations before February 2022, SLR applicants could rely on the GEISs analyses of Category 1 issues in an environmental report.34 More specifically, in April 2020, in a separate SLR proceeding for a different plant, the Commission held that the NRC staff and SLR applicants could rely on the GEIS and its corresponding generic impact conclusions for Category 1 issues as codified 30 Id. at F-3.

31 Id. at F-6.

32 See North Anna Power Station Units 1 and 2 Application for Subsequent License Renewal (Aug. 24, 2020)

(ML20246G696) (SLRA).

33 See SLRA, Appendix E (ML20246G698) (ER).

34 See 10 C.F.R. § 51.53(c)(3)(i) (The environmental report for the operating license renewal stage is not required to contain analyses of the environmental impacts of the license renewal issues identified as Category 1 issues in appendix B [to Part 51].). See id. § 51.53(a) (expressly authorizing environmental reports to incorporate GEIS analyses and conclusions by reference).

8 in 10 C.F.R. Part 51.35 Consistent therewith, Applicants ER relied on the GEIS for all applicable Category 1 issues and provided site-specific analyses for all applicable Category 2 issues.36 Adjudication of Initial Hearing Requests: In October 2020, the NRC published a notice in the Federal Register docketing the North Anna SLRA and providing an opportunity for interested persons to request a hearing.37 Beyond Nuclear, the Sierra Club, and the Alliance for Progressive Virginia (Joint Petitioners) filed a petition seeking to intervene and proposed one contention that claimed Applicants did not consider the risk of an earthquake that exceeds the design basis for the reactors.38 Because their claim challenged a Category 1 issue, Joint Petitioners also sought a waiver to challenge NRC regulations.39 The Board denied the waiver request because it did not meet the applicable waiver standards.40 And the Board separately held that the proposed contention itself was inadmissible even if Petitioners waiver request were found sufficient.41 Accordingly, the Board denied the Petition and terminated the proceeding.42 Joint Petitioners appealed the denial of their Petition to the Commission.43 35 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), CLI-20-3, 91 NRC 133 (2020).

36 See 10 C.F.R. §§ 51.41, 51.45, 51.53(c)(3)(ii); see also generally ER.

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

65,438 (Oct. 15, 2020).

38 See 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 at 28 (Dec. 14, 2020) (ML20349D952).

39 See id. at 30-37.

40 North Anna, LBP-21-4, 93 NRC at 199-208.

41 Id. at 208-212.

42 Id. at 213.

43 Notice of Appeal of LBP-21-04 by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia (Apr. 23, 2021) (ML21113A316); Brief on Appeal of LBP-21 by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia (April 23, 2021) (ML21113A317).

9 Orders Regarding Applicability of GEIS to SLR: In August 2021, the NRC staff published the Draft Supplemental Environmental Impact Statement for the North Anna SLRA (2021 DSEIS).44 Like the ER, the 2021 DSEIS relied on the GEIS and Part 51 for all Category 1 issues. But, in February 2022, the Commission issued two decisions that reversed the agencys course on this issue. In the first order (CLI-22-2), the Commission overturned its prior decision and held that 10 C.F.R. § 51.53(c)(3) only applies to initial license renewal and thus the GEIS did not address environmental impacts for SLR.45 In the second order (CLI-22-3), the Commission stated that it would not issue any licenses for subsequent renewal terms until the NRC staff completed an adequate environmental review for each application.46 The Commission also directed the NRC staff to review and update the GEIS so that it covers operation during the subsequent license renewal period.47 The Commission also recognized that SLR applicants may not want to postpone their applications until completion of the multi-year GEIS update proceeding. It thus gave applicants an option to submit a revised environmental report providing information on environmental impacts during the subsequent license renewal period,48i.e., an ER supplement with site-specific analyses of issues that previously had been analyzed generically as Category 1 issues in the GEIS. In those cases, the Commission stated that interested parties would be given an opportunity to submit new or amended contentions based on new information in the revised site-specific environmental impact 44 See generally NUREG-1437, Supp. 7, Second Renewal, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Subsequent License Renewal for North Anna Power Station Units 1 and 2, Draft Report for Comment (Aug. 2021) (ML21228A084) (2021 DSEIS).

45 Turkey Point, CLI-22-2, 95 NRC at 26.

46 Va. Elec. and Power Co. (North Anna Power Station, Units 1 and 2), CLI-22-3, 95 NRC 40 (2022).

47 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), CLI-22-3, 95 NRC 40, 41 (2022).

48 Id.

10 statement.49 Specifically as to the initial North Anna proceeding, the Commission dismissed the Joint Petitioners pending appeal (of the Boards denial of their petition) and terminated the adjudicatory proceeding.50 ER Supplement: Consistent with the option provided by the Commission, Applicants filed a supplemental ER on September 28, 2022.51 The NRC then issued a draft Site-Specific Environmental Impact Statement in December 2023 (2023 DSEIS).52 The 2023 DSEIS (1) addresses, on a site-specific basis, the issues that were previously treated as generic Category 1 issues in the 2021 DSEIS, and (2) updates and revises the evaluation of site-specific Category 2 issues in the 2021 DSEIS.53 After publication of the 2023 DSEIS, the NRC published a new hearing opportunity notice in the Federal Register.54 Petitioners filed the instant Petition in response thereto.

III.

THE PETITION SHOULD BE DENIED BECAUSE PETITIONERS HAVE NOT SUBMITTED AN ADMISSIBLE CONTENTION A.

Legal Standards for Hearing Requests and Contention Admissibility Pursuant to 10 C.F.R. § 2.309(a)(1), a hearing request and petition to intervene may be granted only if the presiding officer determines that the petitioner has established standing55 and has 49 Id. at 41-42 (emphasis added).

50 Id. at 43.

51 Letter from J. Holloway, Virginia Electric and Power Co. to NRC, Virginia Electric and Power Company, North Anna Power Station (NAPS Units 1 and 2, Subsequent License Renewal Application for Facility Operating Licenses NPF-4 and NPF-7, Appendix E Environmental Report Supplement 1 (Sept. 28, 2022) (ML22272A041)

(Supp. ER).

52 See generally 2023 DSEIS.

53 2023 DSEIS at iv.

54 Virginia Electric and Power Company; North Anna Power Station, Units 1 and 2; Draft Environmental Impact Statement; Request for Comment; Public Comment Meetings; Opportunity to Request a Hearing and Petition for Leave to Intervene, 89 Fed. Reg. 960 (Jan. 8, 2023).

55 Applicants do not contest Petitioners claim of administrative standing based on the Commissions proximity presumption.

11 proposed at least one admissible contention that meets all six of the threshold admissibility criteria in 10 C.F.R. § 2.309(f)(1).56 Failure to satisfy any one of these six admissibility criteria requires that a proposed contention be rejected.57 These criteria are strict by design.58 The rules were toughened... in 1989 because in prior years licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation.59 The petitioner alone bears the affirmative burden to satisfy these criteria.60 Thus, where a petition fails to do so on its face, the Board may not cure a deficiency or fill a gap by supplying the information that is lacking or making factual assumptions that favor the petitioner.61 Key aspects of the admissibility criteria are summarized below.

1.

Issues Must Be Within the Scope of the Proceeding The subject matter of all contentions is limited to the scope of the proceeding delineated by the Commission in its hearing notice and referral order delegating to the Licensing Board the 56 A proposed contention must: (i) [p]rovide a specific statement of the issue of law or fact to be raised or controverted; (ii) [p]rovide a brief explanation of the basis for the contention; (iii) [d]emonstrate that the issue raised is within the scope of the proceeding; (iv) [d]emonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) [p]rovide a concise statement of the alleged facts or expert opinions, including references to the specific sources and documents that support the petitioners position and on which the petitioner intends to rely; and (vi) provide sufficient information to show that a genuine dispute exists with the [applicant] on a material issue of law or fact. Id. § 2.309(f)(1).

57 See id.; Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182, 2,221 (Jan. 14, 2004); see also Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

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

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

60 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 325, 329 (2015) (The proponent of a contention is responsible for formulating the contention and providing the necessary support to satisfy the contention admissibility requirements and it is Petitioners responsibility, not the Boards, to formulate contentions and to provide the necessary information to satisfy the basis requirement for admission)

(citation omitted); see also DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 149 (2015) ([T]he Board may not substitute its own support for a contention or make arguments for the litigants that were never made by the litigants themselves.).

61 See Fermi, CLI-15-18, 82 NRC at 149.

12 authority to conduct the proceeding.62 Challenges to NRC rules are prohibited as outside the scope of a proceeding because, absent a waiver, no rule or regulation of the Commission... is subject to attack... in any adjudicatory proceeding.63 In license renewal proceedings, out-of-scope challenges include those directed at a plants CLB.64

2.

Disputes Must Be Pled in Sufficient Detail to Show That They Are Both Genuine and Material The NRCs contention admissibility criteria at 10 C.F.R. § 2.309(f)(1)(vi) require that a proposed contention provide sufficient information to demonstrate the existence of a genuine dispute on a material issue of law or fact.65 This requires pleading specificity, a reasoned explanation, and a demonstration of materiality.

Pleading Specificity: As provided in the regulations:

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....66 That is because the parties are entitled to be told at the outset, with clarity and precision, what arguments are being advanced and what relief is being sought.67 The contention admissibility 62 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-00-23, 52 NRC 327, 329 (2000); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-825, 22 NRC 785, 790 (1985).

63 10 C.F.R. § 2.335(a).

64 See supra Section II.A.1.

65 10 C.F.R. § 2.309(f)(1)(vi).

66 Id. (emphasis added).

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

(emphasis added).

13 requirements cannot be satisfied through mere notice pleading.68 Thus, petitioners must set forth their contentions with particularity.69 Reasoned Explanation: The Commission has stated that petitioners must read the pertinent portions of the license application... state the applicants position and the petitioners opposing view, and then explain why the petitioner disagrees with the applicant.70 In other words, a contention of sufficiency that does not directly controvert specific text within the application is subject to dismissal.71 And for contentions of omission, the petitioner must explain why the applicant allegedly had a legal obligation to provide such information, and then show that such information is, in fact, absent from the application.72 As particularly relevant here, conclusory assertions are not enough. Presiding officers must scrutinize pleadings, including the specifically-referenced portions of expert opinions and other documents, to confirm that they support a proposed contention and articulate a specific dispute.73 A petitioners imprecise reading of a document cannot support a litigable contention.74 Likewise, a pleading or expert opinion that merely states a conclusion, without providing a reasoned basis or explanation for that conclusion, cannot satisfy 68 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016) (cleaned up and citations omitted).

69 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-15, 71 NRC 479, 482 (2010) (citation omitted).

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

71 See, e.g., S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, 71 NRC 1, 21-22 (2010) (licensing board did not err in excluding portion of contention where expert report did not specifically challenge or expressly challenge the text of the relevant analysis).

72 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), LBP-04-15, 60 NRC 81, 95 (2004) (explaining that if the allegedly missing information is indeed in the license application, then the contention does not raise a genuine dispute).

73 See Vt. Yankee Nuclear Power Corp. (Vt. Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48-49 (1989),

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

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

14 this criterion.75 In sum, bare assertions and speculation, even by experts, are incapable of providing the requisite support to demonstrate the existence of a genuine dispute.76 Materiality: The purpose of an adjudicatory hearing is not to flyspeck documents.77 Thus, the admissibility criteria place the burden on the petitioner to demonstrate, as a threshold matter in the pleading, that the alleged dispute relates to a material issue of fact or law. A dispute is material only if it would make a difference in the outcome of the licensing proceeding.78 Mere suggestions of other ways an analysis could have been done do not provide this demonstration.79 B.

Proposed Contention 1 (2011 Mineral Earthquake) Is Inadmissible Proposed Contention 1 alleges that the 2023 DSEIS fails to satisfy NEPA or NRC implementing regulations at 10 C.F.R. § 51.71 because it does not address the environmental significance of the 2011 Mineral Earthquake.80 The proposed contention is inadmissible on multiple grounds. First, the claims presented in the Petition are simply too vague to satisfy the specificity requirements for an admissible contention. Second, Petitioners have framed their challenge as a contention of omission; but it is inadmissible because the allegedly missing information is, in fact, provided in the 2023 DSEIS.81 Finally, even if the Board disagrees with these first two reasons to reject the contention (and finds that the challenge was pled with clarity and precision, and is a contention of sufficiency rather than omission), it remains inadmissible for 75 See USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006).

76 Fansteel, Inc. (Muskogee, Okla. Site), CLI-03-13, 58 NRC 195, 203 (2003) (quoting GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000)).

77 System Energy Res., Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-05-4, 61 NRC 10, 13 (2005).

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

79 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 323 (2012) (quoting USEC, CLI-06-10, 63 NRC at 447).

80 Petition at 9.

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

15 two additional reasons: (1) because Petitioners desire to litigate the sufficiency of the plants CLB is beyond the scope of this proceeding and (2) because Petitioners remaining commentary identifies no material defect in the Staffs analysis. Thus, the proposed contention fails to satisfy one or more of the admissibility criteria in 10 C.F.R. § 2.309(f)(1)(iii), (v), and (vi).

1.

Proposed Contention 1 Lacks the Requisite Specificity for an Admissible Contention Petitioners cite NEPA and 10 C.F.R. § 51.71 as the authorities allegedly giving rise to their contention. However, these are broad legal constructs with multiple subparts imposing various obligations and requirements. NEPA is primarily codified in Chapter 55 of Title 42 of the United States Code, which contains four subchapters and dozens of code sections. And Section 51.71 of the NRCs NEPA implementing regulations globally prescribes the content for the entirety of a draft environmental impact statement; it contains six subsections that collectively cross-reference fifteen other sections of Part 51. Yet, nowhere in the remainder of Proposed Contention 1 (pages 9 through 12 of the Petition) do Petitioners offer any elaboration on which specific NEPA provision, or which specific requirement in Section 51.71, they allege is unmet here. The Board and the other parties are not required to guess which provisions are being invoked in Petitioners vague arguments.

Likewise, the Petition does not explain what portion of the 2023 DSEIS allegedly is required (by some unspecified requirement) to address the environmental significance of the 2011 Mineral earthquake.82 Once again, the Board and the other parties are not required to guess which 82 In a single footnote, Petitioners cite a paragraph in the Mitman Declaration for the limited proposition that an assumption regarding North Annas ability to operate safely can be found in the 2023 DSEIS. Petition at 9 n.16.

Therein, Mr. Mitman references certain pages of the 2023 DSEIS. Petition, Attach. 1, ¶ 25 (Mitman Decl.).

However, it is unclear whether those are the same discussions that, in Petitioners view, are required to address the environmental significance of the 2011 Mineral earthquake.

16 portion of the 2023 DSEIS is being challenged. That is a pleading burden that falls on Petitioners.83 And it remains unmet here.

Vague, unexplained challenges such as this are facially inadmissible because, to demonstrate a genuine dispute, a petition must include references to specific portions of the document being disputed and must detail the supporting reasons (including citations to specific legal authorities and explanations of how they support the arguments) for each and every dispute.84 Simply put, Proposed Contention 1 lacks the requisite clarity and precision85 for an admissible contention.

And it should be rejected for that reason alone.

2.

The Allegedly Omitted Analysis Is Presented in the 2023 DSEIS The central thrust of the proposed contention is Petitioners incorrect assertion that the 2023 DSEIS does not address the environmental significance of the 2011 Mineral Earthquake or its impact on the design basis for the North Anna reactors.86 As framed by Petitioners, this is a contention of omission. But the fundamental assertion is simply untrue. The 2023 DSEIS plainly discusses the 2011 Mineral earthquake, and the extensive regulatory reviews that followed, in Section 3.4.4. Moreover, the 2011 Mineral earthquake was expressly considered in the NRCs evaluation of the environmental significance of postulated severe accidents in Appendix F.

Because the allegedly omitted information is, in fact, provided, the contention is inadmissible.

More specifically, Section 3.4.4 of the 2023 DSEIS discusses the location and strength of the 2011 Mineral earthquake, the aftershocks that followed, and the earthquakes immediate effect 83 Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 331 (1983).

84 10 C.F.R. § 2.309(f)(1)(vi).

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

86 Petition at 9-10 (emphasis added).

17 on North Anna.87 At the time of the earthquake, both North Anna units were operating at full power; thus, as expected, the plants safety systems immediately shut down the reactors.88 The plant was then placed into a safe shutdown condition and, as required by NRC regulations, it remained in that state until the NRC confirmed there had been no functional damage to plant features necessary for continued safe operation.89 The 2023 DSEIS further describes the inspections, testing, and analysis performed after the earthquake to verify the lack of functional damage and show that North Anna could operate without undue risk to the health and safety of the public.90 The NRC also performed independent technical evaluations to confirm that North Anna could operate safely before approving the restart of both units.91 The 2023 DSEIS also states that, after restart, Dominion implemented a long-term seismic margin management plan as an additional measure to ensure the plant could operate safety and without undue risk if another earthquake occurred.92 In addition, the 2023 DSEIS discusses the specific steps the NRC took in response to the Fukushima earthquake (which occurred before the Mineral earthquake) and explains that North Anna implemented all mandated safety enhancements.93 Moreover, the 2011 Mineral earthquake was expressly considered in the NRCs evaluation of the environmental significance of postulated severe accidents in the 2023 DSEIS.94 Appendix 87 See 2023 DSEIS § 3.4.4 88 Id. at 3-24.

89 Id.

90 Id.

91 Id.

92 Id.

93 Id. (discussing NRC orders EA-12-049, EA-12-050, and EA-12-05).

94 See generally id. at App. F.

18 F includes an evaluation of both design-basis accidents and severe (i.e., beyond-design-basis) accidents. The 2011 Mineral earthquake was a beyond-design-basis event and was thus analyzed under the severe accidents topic. In the 2023 DSEIS, the NRC noted that the Applicants used a probabilistic model (North Anna-R07i) to determine the significance of new information regarding external events like earthquakes.95 This model includes a Seismic [Probabilistic Risk Assessment (PRA)], which takes into account the 2011 Mineral, Virginia, earthquake.96 The 2023 DSEIS then discusses the NRCs review of the PRA and the NRCs conclusion that the results and risk insights provided by the Seismic PRA supported its determination that no further response or regulatory action was required at North Anna in response to the Mineral earthquake.97 Overall, the NRC concluded that the probability-weighted offsite consequences of severe accidents initiated by external events during the SLR term would not exceed those reported in the 1996 GEIS and 2013 GEIS and would be SMALL during the SLR term.98 In sum, the above shows that the 2023 DSEIS contains the very analysis Petitioners claim is missing. The 2023 DSEIS discusses, at length, both the 2011 Mineral earthquake and the steps the NRC took to confirm that North Anna remained in compliance with all regulatory requirements.

The 2023 DSEIS also discusses the process by which the NRC evaluated the probability-weighted consequences of a postulated severe accident (including one initiated by an earthquake) and confirms that the probabilistic modeling expressly takes into account the 2011 Mineral earthquake. A contention of omission may be summarily rejected as inadmissible if... the topic 95 Id. at F-10.

96 Id. (emphasis added).

97 Id. at F-11.

98 Id. at F-11 to F-12.

19 that allegedly is omitted is, in fact, included in the document being challenged.99 Because that is the case here, Proposed Contention 1 should be summarily rejected.

3.

Petitioners Claims Regarding the Acceptability of the North Anna Design Basis Are Illogical, Counterfactual, and Beyond the Scope of This Proceeding Petitioners argue that the 2023 DSEIS must analyze a scenario in which North Anna operates in non-compliance with its design basis for an additional twenty years.100 That argument is based on an illogical claim that the mere occurrence of the 2011 Mineral earthquake somehow proves that North Anna cannot be operated safely and without significant adverse environmental impacts.101 But that claim is irreconcilable with well-documented facts. As noted above, even though the 2011 Mineral earthquake exceeded North Annas design basis, the safety features of the plant performed as expected, the plant achieved safe shutdown, and there were no environmental impacts associated with the event. As a practical matter, if the 2011 Mineral earthquake demonstrates anything, it is that North Anna can be operated safely and without adverse environmental impacts even under beyond-design-basis circumstancesin other words, the exact opposite of what Petitioners are claiming (without any factual basis) here. Because this line of argument is wholly unsupported, it provides no basis for an admissible contention.

Further, as the licensing board in the initial phase of this proceeding explained, the NRCs formal conclusion following its extensive technical and regulatory assessment of the 2011 Mineral earthquake was that the design basis for the facility remained suitable to support continued 99 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 6 and 7), LBP-11-6, 73 NRC 149, 234-235 (2011) (citing USEC, CLI-06-10, 63 NRC at 456).

100 Petition at 10.

101 Id. at 9.

20 operation.102 To the extent Petitioners seek an evidentiary hearing for the purpose of challenging that conclusion,103 they are raising their claim in the wrong forum.

It is settled law that a contention challenging a plants CLB is outside the limited scope of a license renewal proceeding, as codified in 10 C.F.R. Part 54.104 The Commission long ago determined that a reassessment of CLB safety issues at the license renewal stage would be unnecessary and wasteful105 because those issues are effectively addressed and maintained by ongoing agency oversight, review, and enforcement.106 The NRC has long considered its safety assessment of seismic hazards for existing nuclear power plants to be a separate and distinct process from license renewal.107 More broadly, [s]eismic conditions are attributes of the geologic environment that are not affected by continued plant operations.108 When new seismic hazard information becomes available, the NRC evaluates the new data and models to determine whether any changes to the plant or its licensing basis are needed under the Atomic Energy Act (AEA).109 As a safety matter, such issues are addressed on an ongoing basis as part of the plants CLB, which is beyond the limited scope of license renewal under 10 C.F.R. Part 54.110 102 North Anna, LBP-21-4, 93 NRC at 206.

103 See, e.g., Petition at 10 (suggesting that North Annas safety systems are assumed to survive a beyond-design-basis earthquake only once).

104 Turkey Point, CLI-01-17, 54 NRC at 7-9.

105 Id. at 7.

106 Dominion Nuclear CT, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004)

(citation omitted).

107 GEIS at 1-21 (reactor oversight process, which includes seismic safety, remains separate from license renewal);

2023 DSEIS at 3-26 (Reactor Oversight Process, which considers seismic safety, is separate and distinct from the NRC staffs license renewal environmental review.).

108 GEIS at 1-22.

109 See id. at 1-21; 2023 DSEIS at 3-26 (When new seismic hazard information becomes available, the NRC evaluates the new information to determine if any changes are needed at existing nuclear power plants.).

110 See GEIS at 1-21.

21 Thus, absent a waiver from the Commission,111 the acceptability of North Annas seismic design basis is beyond the scope of this proceeding. Petitioners never requested, and certainly have not received, any such waiver. And even if Petitioners had requested such a waiver, that request almost certainly would have been denied. As the Commission explained when affirming a licensing board rejection of a waiver request under nearly-identical circumstances:

our rules provide other mechanisms... to raise [] concerns that would not require us to redefine the scope of this proceeding. In particular, [a petitioner] may file a request to institute a proceeding... to modify, suspend, or revoke a license, or for any other action that may be proper, if it believes that [the licensees] seismic design and licensing basis is now invalid and that safe operation of the plant can no longer be assured. [A petitioner] also may file a petition for rulemaking to expand the scope of our license renewal regulations. We decline to set aside our license renewal regulations to conduct what would be an entirely different proceeding when there are more appropriate avenues available for [a petitioner] to seek relief.112 Likewise, there is no reason to transform this proceeding into something entirely different by litigating the acceptability of North Annas design basis; and, in any event, doing so would require a waiver that Petitioners have not obtained.

Third, just as the licensing board in the initial phase of this proceeding held, the precise contours of North Annas seismic design basis are not material to the evaluation of earthquake-related environmental impacts. In that proceeding, the licensing board noted that the petitioners contrary argument misinterpret[ed] the environmental evaluation in the GEIS as being based solely on the plants design basis.113 As the licensing board correctly explained, the evaluation, in fact, span[s] both design-basis and severe accidents.114 In other words, it is irrelevant whether a 111 See 10 C.F.R. § 2.335 (prohibiting challenges to NRC regulations, including the scope limitations in Part 54, absent a waiver, and prescribing the process for obtaining such waiver).

112 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-15-21, 82 NRC 295, 307-08 (2015) (citations omitted).

113 North Anna, LBP-21-4, 93 NRC at 205.

114 Id. (emphasis added).

22 given postulated seismic event is within or without the plants design basis because the environmental analysis covers both scenarios. That is also true as to the site-specific analysis of earthquake-related impacts in the 2023 DSEIS. Just as before, the proposed contention is inadmissible for the simple reason that Petitioners fail to identify any unanalyzed environmental impacts from the 2011 Mineral Earthquakemuch less, any that would materially undermine the seismic impact conclusions in the 2023 DSEIS.

4.

Petitioners Miscellaneous Commentary Fails to Support an Admissible Contention The statement of the contention contains miscellaneous assertions on two other topics. It is not entirely clear how those assertions support, or even relate to, the fundamental challenge in Proposed Contention 1 (that the 2023 DSEIS fails to address the environmental significance of the 2011 Mineral Earthquake). Nevertheless, the discussion below explains why they fail to support an admissible contention.

First, Petitioners complain that the NRC fails to acknowledge it [sic] or explain the fundamental difference between a finding of no significant or small impact that is based on a deterministic analysis and a finding of no significant impact that is based on a probabilistic analysis.115 They also mention Mr. Mitmans opinion that deterministic analysis is more conservative than probabilistic analysis and his view that the 2023 DSEIS should explain the difference.116 The purpose of this comment is unclear. Petitioners:

• provide no indication in what context this opinion is offered;

• identify no particular discussion in the 2023 DSEIS where this opinion allegedly is relevant; and 115 Petition at 10.

116 Id.

23

• offer no demonstration as to why it somehow raises a material dispute on some unidentified issue.

As a general matter, the Commission long-ago explained that the NRCs small impacts conclusion on the Design Basis Accidents issue is based on the largely deterministic conclusion that nuclear plants are designed and operated to successfully withstand design basis accidents, whereas, for the Severe Accidents issue, the Commission reached its small impacts conclusion because the probability of severe accidents is so low.117 The same framework is presented in the 2023 DSEIS. Mr. Mitmans vague opinion, and unexplained conclusion about what the 2023 DSEIS should discuss, offers nothing to dispute that explanation or show why anything more is required here.

Second, Petitioners claim that the NRC should explain the reason for an alleged disparity between the seismic risk analyses for North Anna Units 1 and 2 (the units that are the subject of this proceeding) versus those for Unit 3 (which was the subject of a different proceeding, under different regulatory requirements, and which was never built).118 But, yet again, they offer zero explanation as to why such an explanation is required here, what alleged requirement imposes such an obligation, or why the absence of that explanation is somehow material to the sufficiency of the 2023 DSEIS here.

Neither of these miscellaneous comments provide the requisite demonstration of an adequately supported genuine dispute on a material issue, contrary to 10 C.F.R. § 2.309(f)(1)(v)-

(vi).

117 Indian Point, CLI-15-6, 81 NRC at 372 (emphasis added).

118 Petition at 10.

24 At bottom, Petitioners speculative, conclusory, and objectively incorrect claims are unsupported, immaterial, out-of-scope, and fail to demonstrate a genuine dispute with the 2023 DSEIS, contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(iii)-(vi). Accordingly, Proposed Contention 1 is inadmissible.

C.

Proposed Contention 2 (Severe Accidents) Is Inadmissible Proposed Contention 2 challenges the analysis of postulated severe accidents in the 2023 DSEIS.119 In general terms, Petitioners allege that the 2023 DSEIS does not contain a complete or adequately rigorous evaluation of accident risks because essential data are missing and important analytical assertions are erroneous or misleading.120 More specifically, Petitioners proffer a bulleted list of nine alleged deficiencies.121 Petitioners claim that these alleged deficiencies deprive the 2023 DSEIS of an adequate basis to conclude that the environmental impacts of [severe]

accidents during a license renewal term are SMALL.122 As a general matter, none of these allegations are new. Every topic was addressed in Mr.

Mitmans written comments (styled as a Technical Review) on the 2023 DSEIS in February 2024 (the Mitman DSEIS Comments).123 And some topics were also addressed in Mr. Mitmans comments (also styled as a Technical Review) on the draft GEIS update in May 2023 (the 119 Id. at 12; Mitman Decl. § C.2 (Inadequate support for finding that Severe Accident impacts are Small) (emphasis added).

120 Petition at 12.

121 Id. at 13-14; Mitman Decl. § C.2.

122 Petition at 9.

123 Jeffrey T. Mitman, Technical Review of U.S. Nuclear Regulatory Commissions Draft Site-Specific Environmental Impact Statement for Subsequent License Renewal of North Anna Power Station Units 1 and 2 With Respect to Accident Analysis (Feb. 22, 2024) (ML24054A091) (Mitman DSEIS Comments).

25 Mitman GEIS Comments).124 As described below, none of these comments support an admissible contention.

1.

Petitioners Incorporation by Reference of Mr. Mitmans Declaration Is Improper and Insufficient to Demonstrate an Admissible Contention The first defect in the proposed contention is Petitioners attempt to incorporate an entire section of Mr. Mitmans Declaration, without further elaboration on any legal theories, and without any further explanation of how or why the cited content somehow satisfies the admissibility criteria in 10 C.F.R. § 2.309.125 In contrast, the Commission has squarely held that perfunctory pleadings such as this are insufficient in NRC adjudicatory proceedings. Accordingly, Proposed Contention 2 should be summarily rejected as a threshold matter.

Instead, Petitioners simply proffer nine bullets that purport to provide one-or two-sentence summaries of Section C.2 of Mr. Mitmans Declaration.126 However, those bullets do not identify which one or more of the 17 paragraphs in Section C.2 they claim as support. And many of those 17 paragraphs, themselves, further cross-reference pages from Mr. Mitmans 2023 DSEIS Comments.127 Yet, the pages of those 2023 DSEIS Comments contain multiple paragraphs with various claims, assertions, and subject matters; and the specific content being cross-referenced is not always apparent. Simply put, Petitioners arguments are unclear, confusing to follow, and occasionally indecipherable.

124 Jeffrey T. Mitman, Technical Review of U.S. Nuclear Regulatory Commissions Draft License Renewal GEIS With Respect to Section 4.9.1.2 (Environmental Consequences of Postulated Accidents) and Appendix E (Environmental Impact of Postulated Accidents) at 8 (May 2, 2023) submitted with Comments by Beyond Nuclear and the Sierra Club on Proposed Rule and Draft Generic Environmental Impact Statement for Renewing Nuclear Power Plant Licenses (May 2, 2023 and corrected on May 19, 2023) (ML23139A275) (Mitman GEIS Comments).

125 Petition at 12.

126 Compare Petition at 13-14 with Mitman Decl. at §C.2.

127 See Comments by Beyond Nuclear and the Sierra Club on Proposed Rule and Draft Generic Environmental Impact Statement for Renewing Nuclear Power Plant Licenses (May 2, 2023) (ML23123A411), corrected on May 19, 2023 (ML23139A275) (Mitman 2023 DSEIS Comments).

26 This is the exact scenario the Commission seeks to avoid by requiring that the parties and the Board be told at the outset, with clarity and precision, what arguments are being advanced.128 It is also why the Commission prohibits wholesale incorporation of more detailed analyses as alleged support for contention admissibility.129 As a matter of law, the Commission has held that this approach is insufficient to satisfy a petitioners pleading burden:

a wholesale incorporation by reference does not serve the purposes of a pleading....

The Commission expects parties to bear their burden and to clearly identify the matters on which they intend to rely with reference to a specific point. The Commission cannot be faulted for not having searched for a needle that may be in a haystack.130 Moreover, providing a document or an expert opinion as the foundation for a contention, without setting forth an explanation of its significance, is inadequate to support the admission of a contention.131 In short, the Commission has repeatedly refused to allow petitioners to shift their pleading burden to the presiding officer and other parties by requiring them to examine multiple overlapping expert affidavits or other attachments to identify potential threshold admissibility arguments for a contention when those arguments are not otherwise advanced in the petition.

Accordingly, Proposed Contention 2 is inadmissible for failing to satisfy these bare minimum pleading requirements.

2.

Petitioners Nine Bullets Do Not Demonstrate an Admissible Contention Even assuming the Board and the parties were obligated to search for the needle that may be in a haystack (they are not), they will find no such needle here. At best, Mr. Mitman 128 Wolf Creek, ALAB-279, 1 NRC at 576 (emphasis added).

129 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant and Big Rock Point Site), CLI-22-8, 96 NRC 1, 100 (2022) (citing Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), CLI-89-3, 29 NRC 234, 240-41 (1989)).

130 Seabrook, CLI-89-3, 29 NRC at 240-41.

131 S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 and 3), LBP-10-6, 71 NRC 350, 361 (2010)

(citing Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43, 63 (2008);

Fansteel, CLI-03-13, 58 NRC at 204).

27 flyspecks the NRC Staffs analysis of Severe Accidents, but fails to articulate any reason why the 2023 DSEIS falls short of some unexplained legal or regulatory obligation or how any alleged deficiency renders the NRCs analysis materially inadequate. To be clear, Mr. Mitman is not an attorney, does not claim to be an environmental expert, and professes no particular expertise in the requirements of NEPA, 10 C.F.R. Part 51, or NRC contention admissibility criteria.132 Indeed, his declaration mentions none of these things. Given that the discussion of Proposed Contention 2 in the Petition, itself, also is devoid of any meaningful engagement with NEPA, 10 C.F.R. Part 51, or NRC contention admissibility criteria, it is unclear how the Board could conclude that Petitioners have made an affirmative demonstration of admissibility, as required by 10 C.F.R. § 2.309(f)(1).

As detailed below, the conclusory statements offered in the nine bullets on pages 13 to 14 of the Petition, even taken at face value, fail to identify any material defect, deficiency, or omission in the 2023 DSEISs analysis of Severe Accidents. Generally speaking, Petitioners fail to acknowledge the full extent of the Severe Accidents analysis. And contrary to the threshold materiality requirement for admissible contentions, Petitioners fail to show how these comments would result in any change to the NRCs probability-weighted conclusion regarding Severe Accidents as applied to North Anna. And many of the bullets and underlying comments make demonstrably incorrect factual assertions, rely on demonstrably incorrect readings of source documents, or disregard publicly available information that resolves the alleged concern. Thus, Petitioners have not identified, with the requisite particularity, any material insufficiency in the NRCs analysis.

First Bullet: Petitioners claim that the 2023 DSEIS is inadequate as a general matter because it allegedly includes broad generalizations about external event core damage frequency 132 See Mitman Decl. ¶ 1.

28 (CDF) based on extrapolations from internal event CDF values and limited actual plant-specific values for external event CDF.133 However, Petitioners do not identify any specific alleged generalizations they seek to challenge; do not explain any reason this vague criticism raises a material issue; and do not cite any supporting source material.

To the extent that this statement is intended to criticize the longstanding framework in which the risks of severe accidents initiated by internal events have been found to bound the risks of severe accidents initiated by external events,134 it fails to demonstrate a material dispute. Petitioners offer no explanation as to why that approach falls short of some unspecified legal or regulatory requirement. Moreover, the Commission itself has endorsed this exact approach in two prior rulemakings to codify the analyses and conclusions in the GEIS regarding severe accidents.135 Far more than Petitioners unexplained conclusory statement is required to show a genuine dispute.

Second Bullet: Petitioners claim that the 2023 DSEIS ignores data regarding seismic and fire core damage frequency (CDF).136 However, they do not identify any particular data that allegedly has been disregarded; do not point to any specific portion of any analysis where that unidentified data should be considered; and do not explain why this vague circumstance somehow creates a material deficiency in that unidentified analysis. And Petitioners cite no supporting authority for this bare assertion.

To the extent that Petitioners assertion is based on paragraph 32 of Mr. Mitmans Declaration, that also fails to support an admissible contention. That paragraph, in turn, cross-133 Petition at 13.

134 See, e.g., 2023 DSEIS at F-10 (summarizing the 1996 LR GEIS and 2013 LR GEIS treatment of this issue).

135 See generally Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Final rule, 61 Fed.

Reg. 28,467, 28,480 (June 5, 1996); Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Final rule, 78 Fed. Reg. 37,282, 37,289 (June 20, 2013).

136 Petition at 13.

29 references page 5 of Mr. Mitmans 2023 DSEIS Comments. However, the cross-referenced page does not, on its face, appear to contain a discussion of either fire CDF or seismic CDF.

Petitioners also claim that it is a fact that the occurrence of the 2011 Mineral Earthquake, by itself, increased the risk of an earthquake severe enough to damage safety equipment.137 They also criticize the 2023 DSEIS for disregarding this alleged fact.138 But no further explanation is provided. Frankly, the logic for this seemingly circular assertionthat the occurrence of an earthquake per se increases the risk of an earthquakeis not at all clear. In any event, conclusory assertions such as this are facially insufficient for an admissible contention.

Third Bullet: Petitioners criticize as erroneous the statement on page F-26 of the 2023 DSEIS that there has been a substantial decrease in internal event CDF.139 The full statement from that page of the 2023 DSEIS references the substantial decrease in internal event CDF at North Anna from the previous SAMA analysis.140 That decrease is further detailed on page F-9 of the 2023 DSEIS, which explains that:

The North Anna internal events CDF in the initial license renewal SAMA was approximately 3.50 x 10-5/year (VEPCO 2001-TN8297). The current North Anna internal events PRA model of record has a CDF of approximately 1.36 x 10-6/year (VEPCO 2020-TN8099). This change represents a 96-percent reduction or a factor of 25 reduction in CDF for each unit.141 Based on a brief review of the source documents cited therein,142 this statement is accurate on its face. Petitioners do not explain why the statement on page F-26, regarding the substantial 137 Id.

138 Id.

139 Id.

140 2023 DSEIS at F-26 (emphasis added).

141 Id. at F-9.

142 See 2023 DSEIS at F-31, F-32 (showing VEPCO 2001-TN8297 and VEPCO 2020-TN8099 correspond to the environmental reports for North Annas initial license renewal and SLR, respectively); VEPCO, North Anna Power Station, Units 1 and 2, Appendix E - Applicants Environmental Report, Operating License Renewal Stage

30 decrease in internal event CDF is allegedly erroneous in any way. This counterfactual claim cannot sustain an admissible contention.

Fourth Bullet: Petitioners allege that the 2023 DSEIS fails to consider external flooding risk with subsequent ingress of water into the turbine building.143 Again, the Petition provides no further explanation, context, or citation to supporting authority for this statement. And as a general matter, this statement ignores the robust discussion in the 2023 DSEIS regarding the NRC-required enhancements in the wake of Fukushima to address external flooding risks.144 There is thus no basis for the claim that an analysis of external flooding risk was somehow omitted from the 2023 DSEIS.

To the extent that this assertion is derived from paragraphs 34 and 35 of Mr. Mitmans Declaration, it fares no better. Mr. Mitman points to an observation in a footnote in a 2015 NRC Staff assessment noting that a local intense precipitation (LIP) event could cause water to enter the Turbine Building.145 However, Mr. Mitman disregards the very next sentence in that footnote indicating the issue would be addressed in the focused evaluation.146 Indeed, that issue was addressed in the licensees focused evaluation. Yet, Mr. Mitman entirely disregards that focused evaluation and the NRC Staffs assessment thereof, in which the agency concluded that the licensee has demonstrated that effective flood protection exists for the LIP... during a beyond-design-basis external flooding event at North Anna, assuming appropriate implementation of the at G-27 (May 29, 2001) (ML011500475) (showing a base CDF of 3.5E-5/year from the internal events model);

ER at E-4-100, tbl. E4.15-2 (showing the Base Model Result for Internal Events CDF is 1.36E-06).

143 Petition at 13.

144 2023 DSEIS at 3-24 to 3-26 and F-21 (discussing post-Fukushima-required flooding re-evaluations).

145 Mitman Decl. ¶ 35 (citing Staff Assessment Related to Flooding Hazard Reevaluation Report Near-Term Task Force Recommendation 2.1 Related to the Fukushima Dai-ichi Accident North Anna, Units 1 and 2, tbl. 4.0-2, n.3 (Sept. 25, 2015) (ML15238A844).

146 Id. at 11, tbl. 4.0-2 n.3.

31 regulatory commitments identified in the licensees [focused evaluation].147 Mr. Mitmans incomplete review of, and selective citations to, the relevant regulatory history falls far short of demonstrating a genuine dispute.

Fifth Bullet: Petitioner claims the 2023 DSEIS makes misleading statements regarding Fukushima-related information relevant to North Anna.148 The Petition provides no further explanation for this claim and no citation or reference to any supporting material.

To the extent this claim corresponds to paragraph 39 of Mr. Mitmans declaration, which nit-picks the Staffs characterization of the Fukushima close-out letter for North Anna,149 it fails to articulate a genuine material dispute. As summarized in the 2023 DSEIS, that letter confirmed that the NRC completed its review of North Annas Fukushima-related information and concluded that no further regulatory actions were needed to ensure adequate protection or compliance with regulatory requirements, thereby reconfirming the acceptability of North Annas design basis.150 Mr. Mitman claims this statement is grossly misleading because the letter makes no reference to adequate protection or confirming the design basis.151 But Mr. Mitman provides no explanation of why the summary is, in any way, misleading, much less how the NRCs specific language in that letter is in any way material to this proceeding. Nevertheless, the Staffs summary is wholly accurate. As a general matter, there is reasonable assurance of adequate protection when a licensee 147 Letter from F. Vega, NRC, to D.G. Stoddard, Innsbrook Technical Center, Dec. 15, 2017, regarding North Anna Power Station, Units 1 And 2Staff Assessment of Flooding Focused Evaluation (CAC Nos. MF9916 and MF9917; EPID L-2017-JLD-0046) at 2 (Dec. 15, 2017) (ML17325B644).

148 Petition at 13; Mitman Decl. ¶ 39; Mitman DSEIS Comments at 2.

149 Letter from R.J. Bernardo, NRC, to D.G. Stoddard, VEPCO, June 9, 2020, regarding North Anna Power Station, Units 1 And 2Documentation of the completion of required actions taken in response to the lessons learned from the Fukushima Dai-Ichi accident (June 9, 2020) (ML20139A077).

150 2023 DSEIS at F-3.

151 Mitman Decl. ¶ 39.

32 demonstrates compliance with the Commissions regulations.152 Moreover, in rejecting similar claims by Mr. Mitman related to alleged wording... distinctions153 in a different proceeding, a licensing board explained that the sequence of events culminating in Fukushima close-out letters to licensees (such as the one referenced above):

were part of a major, agency order-instituted post-Fukushima effort intended to ensure that the NRC can continue to have reasonable assurance of adequate protection of public health and safety in mitigating the consequences of a beyond-design-basis external event. This included the related Commission-endorsed effort initiated by the March 2012 NRC Fukushima Section 50.45(f) Letter... to use current scientific methodologies and agency regulatory guidance to identify and mitigate seismic and flooding hazards.154 In other words, notwithstanding the absence of the magic words demanded by Mr. Mitman, the legal effect of the Fukushima close-out letter for North Anna is precisely as described in the 2023 DSEIS, and Staffs characterization is not misleading in any way.

Additionally, Petitioners claim that the 2023 DSEIS is misleading regarding risk improvements obtained by NRC and license [sic] efforts after September 2001.155 This, too, is entirely unexplained and unaccompanied by any alleged support. To the extent this assertion invokes paragraph 41 of Mr. Mitmans Declaration, it still does not support an admissible contention. Therein, Mr. Mitman speculates that the PRA for NAPS that was prepared in 2020 may have captured some unspecified measures; as a result, Mr. Mitman further speculates that some unspecified portion of the 2023 DSEIS somehow double-count[s] those measures.156 152 FirstEnergy Nuclear Op. Co. (Davis-Besse Nuclear Power Station, Unit 1), DD-04-1, 59 NRC 215, 221 (2004).

153 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), LBP-22-1, 95 NRC 49, 91 (2022).

154 Id. at 90.

155 Petition at 13.

156 Mitman Decl. ¶ 41.

33 Speculation is never a sufficient basis for an admissible contention; and that is doubly true for the vague, layered speculation proffered here.157 Sixth Bullet: Petitioners claim the 2023 DSEIS takes inappropriate credit for reductions in environmental risk that are not reflected in the PRA for NAPS.158 As with all of the other bullets, no explanation or citation to source material is provided.

To the extent this assertion pertains to paragraph 42 of Mr. Mitmans Declaration, it still does not support the proposed contention. Therein, Mr. Mitman suggests that Section F.4.1 of the 2023 DSEIS indicates that, even though the NAPS PRA does not include a quantification of baseline security risk, it nevertheless takes inappropriate credit for reductions in such risk.159 But Mr. Mitman simply misreads that portion of the 2023 DSEIS. It does not state or imply the use of any quantified consideration of security risk (baseline or reduction) in the PRA. Rather, this discussion notes that certain actions taken at North Anna for the primary purpose of complying with NRC security requirements also have a secondary or tertiary beneficial effect on plant accident risk.160 Mr. Mitman identifies no reason why that practical acknowledgement is, in any way, inappropriate. And his misreading of the relevant document cannot support an admissible contention.161 157 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-15-1, 81 NRC 15, 38-39 (2015) (citations omitted) (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 proffered contention.).

158 Petition at 13.

159 Mitman Decl. ¶ 42.

160 E.g., 2023 DSEIS at F-20 (noting that measures adopted to comply with [certain security requirements] also have a beneficial impact on the level of risk evaluated in a SAMA analysis.).

161 Interim Storage Partners, LLC (WCS Consol. Interim Storage Facility), CLI-20-14, 92 NRC 463, 477-78 (2020)

(misreading a document is not adequate support); Ga. Tech, LBP-95-6, 41 NRC at 300 (A petitioners imprecise reading of a document cannot support a litigable contention).

34 Seventh Bullet: Petitioners argue that the 2023 DSEIS fails to consider uncertainties in its evaluation of severe accident impacts.162 Again the Petition is devoid of an explanation or other supporting references. And, on its face, this claim of omission is demonstrably untrue. The 2023 DSEIS analysis of postulated accidents contains an entire section, F.3.9, devoted solely to the topic of Uncertainties.163 Neither Petitioners nor Mr. Mitman acknowledge, reference, or dispute even a single word of the relevant discussion.164 Thus, this counterfactual bullet cannot support an admissible contention.

Eighth Bullet: Next, Petitioners claim that the 2023 DSEIS does not address the environmental impacts of concurrent multi-unit accidents.165 However, the assertion that the 2023 DSEIS entirely omits any consideration of this issue is inaccurate. As the NRC Staff recently explained, SAMA analyses do address multi-unit risk.166 Thus, the 2023 DSEIS indeed addresses this issue.

Moreover, Petitioners offer no explanation as to why further consideration of multi-unit risk in some other (unspecified) context would be material to NEPA compliance. As the NRC Staff explained in response to this comment in the context of the GEIS, [w]hile multi-unit risk may result in modest increases in severe accident risk, other new information regarding these factors suggests that the probability-weighted environmental consequences of severe accidents may be, on 162 Petition at 13; Mitman Decl. ¶ 43; Mitman 2023 DSEIS Comments at 2-4.

163 2023 DSEIS at § F.3.9.

164 Mr. Mitmans commentary on this issue invokes NRC guidance related to the use of PRAs in safety-related decisionmaking under the Atomic Energy Act. Mitman Decl. ¶¶ 43-44. However, that guidance is inapplicable to environmental reviews under NEPA, which imposes an entirely different legal standard.

165 Petition at 14; Mitman Decl. ¶ 45; Mitman 2023 DSEIS Comments at 15-16; Mitman GEIS Comments at 15-16.

166 NUREG-1437, Rev. 2, Generic Environmental Impact Statement for License Renewal of Nuclear Plants; Vol. 2, Comment Response Document at A-190 (Mar. 6, 2024) (ML23201A225) (citing NEI-05-01, Severe Accident Mitigation Alternatives (SAMA) Analysis Guidance Document, Revision A (2005)).

35 average, substantially lower than previously estimated.167 Petitioners do not acknowledge or grapple with this other new information, and do not attempt to explain why or how some (unspecified) information regarding multi-unit accidents would materially alter the ultimate conclusion regarding the probability-weighted environmental consequences of severe accidents.168 That is an unmet pleading burden, not an evidentiary one. And it falls squarely on Petitioners. But they have not satisfied it here.

Ninth Bullet: Petitioners allege that the SAMA analysis in the 2023 DSEIS is deficient because it fail[s] to consider SAMAs that meet criteria for consideration, and because it fail[s] to provide documentation of an NRC audit.169 These statements are equally as conclusory as the previous eight bullets and are accompanied by no explanation or authority citation. To the extent these conclusory assertions were intended to reference paragraph 46 of Mr. Mitmans Declaration, which, in turn, cross-references page 7 of his comments on the 2023 DSEIS, they still fail to support an admissible contention.

As to the comment regarding audit documentation, these materials offer no explanation of what legal authority allegedly requires documentation of an NRC audit to be included in the 2023 DSEIS or why its alleged absence would be a material omission. Moreover, this claim is rooted in a misreading of the 2023 DSEIS. Specifically, Mr. Mitman points to a reference citation in the 2023 DSEIS that reads (NRC 2020-TN8100 see Appendix D).170 Reference NRC 2020-TN8100 corresponds to a document with an ADAMS Accession Number of ML20351A388.171 Because that 167 Id.

168 See 2023 DSEIS § F.2.

169 Petition at 14; Mitman Decl. ¶ 46; Mitman 2023 DSEIS Comments at 7.

170 Mitman DSEIS Comments at 7 (citing 2023 DSEIS at F-25 (lines 7-8)).

171 Id.

36 document (a four-page letter documenting the audit) contains no Appendix D, Mr. Mitman leaps to the conclusion that Appendix D of that document has been improperly omitted from the public record. But that claim does not survive even minimal scrutiny. The four-page letter references a single enclosure which is plainly included in the document itself, and the letter does not otherwise reference any appendices.172 Thus, the more logical reading of the reference citation is that it is an internal cross-reference to Appendix D of the 2023 DSEIS, which does include an Appendix D.173 And that appendix provides a chronology of the environmental review correspondence including the referenced 4-page letter.174 Mr. Mitmans misreading of the reference citation provides no basis for a contention.

Petitioners comment regarding consideration of SAMAs, too, is based on a misreading of a document by Mr. Mitman. Specifically, he challenges the 2023 DSEIS conclusion that no SAMAs were found to reduce the maximum benefit by 50 percent or more.175 The basis for his challenge is that the applicant found a SAMA with a Phase 1 risk reduction of 57%.176 The relevant text of the 2023 DSEIS states that the applicant identified a SAMA case that:

yielded an internal events[] LLRF (Large Late Release Frequency) reduction of 57 percent. However, Dominion explained that the total change in the Maximum Benefit for [that] case is well below 50 percent.177 172 Letter from R.B. Elliott, NRC, to D.G. Stoddard, Innsbrook Technical Center, Dec. 17, 2020, regarding North Anna Power Station, Units 1 and 2 - Summary of the Subsequent License Renewal Serve Accident Mitigation Alternatives Audit (EPID Number: L-2020-SLE-0000) (Docket: 50-338 AND 50-339) (Dec. 17, 2020)

(ML20351A388).

173 2023 DSEIS at App. D.

174 Id. at D-2.

175 Mitman DSEIS Comments at 7 176 Id.

177 2023 DSEIS at F-24 to F-25.

37 Risk and maximum benefit are entirely different concepts in the context of SAMA analysis.178 And Mr. Mitman obviously conflates those two issues here. Simply put, the 2023 DSEIS observation that no SAMAs were found to reduce the maximum benefit by 50 percent or more is entirely accurate. And Mr. Mitmans misreading of the document does not support an admissible contention.

Ultimately, these nine bullets do not, individually or collectively, support an admissible contention. First, many of the statements are conclusory and unsupported. Second, several statements fail to provide any rationale as to why the alleged deficiency would change the conclusions in the 2023 DSEIS. And finally, several of the statements are plainly contradicted by information in the 2023 DSEIS. Accordingly, Proposed Contention 2 in unsupported and does not demonstrate a genuine dispute on a material issue, as required by 10 C.F.R. § 2.309(f)(1)(v)-(vi).

D.

Proposed Contention 3 (Climate Change / Accident Risk) Is Inadmissible In Proposed Contention 3, Petitioners allege that the 2023 DSEIS does not satisfy NEPA or 10 C.F.R. § 51.71 because it does not address the effects of climate change on accident risk.179 But the Petitions scant discussion of the issue fails to challenge a single word of the relevant analysis in the 2023 DSEIS, which is considered in the Postulated Accidents portion of the 2023 DSEIS. Rather than engage with this analysis, Petitioners make an opaque references to climate change and speculative impacts on accident risk.180 As discussed belowand as another licensing 178 See generally NEI 05-01, Rev. A, Severe Accident Mitigation Alternative (SAMA) (Dec. 28, 2005)

(ML053500423).

179 Petition at 15.

180 See id. at 15-16.

38 board held a few months ago on a nearly identical proposed contention supported by matching assertions from Mr. Mitmanfar more is required for an admissible contention.181

1.

Petitioners Vague Claims Fail to Demonstrate a Genuine Material Dispute The potential environmental impacts of postulated accidents (including the risk of such accidents) are evaluated under the Postulated Accidents issue, which is divided into three distinct sub-issues: (1) Design Basis Accidents, (2) Severe Accidents, and (3) SAMAs. For North Anna, relevant information is spread across multiple environmental documents including the 2002 EIS for North Annas initial license renewal (which contains the original SAMA analysis),182 the 1996 and 2013 GEIS (presenting extensive generic analyses of Design Basis Accidents and Severe Accidents), the 2021 DSEIS (including an updated SAMA analysis and consideration of possible new and significant information on Design Basis Accidents and Severe Accidents), and the 2023 DSEIS (which presents another site-specific analysis of all three sub-issues). Despite the comprehensive evaluation provided across many pages of environmental documents, Petitioners do not engage with or attempt to dispute any specific risk evaluation that it claims is inadequate.

Indeed, it is not apparent which one (or more) of the sub-issues (Design Basis Accidents, Severe Accidents, or SAMAs) Petitioners dispute. The proposed contention should be rejected for that reason alone.

The Commission has long held that parties are entitled to be told at the outset, with clarity and precision, what arguments are being advanced.183 And the codified admissibility criteria specify that a contention must include references to specific portions of the analysis being 181 See Fla. Power & Light Co. (Turkey Point Generating Station Units 3 and 4), LBP-24-3, 99 NRC __, __ (Mar. 7, 2024) (slip op. at 31-34).

182 See generally NUREG-1437, Supp. 7, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 7, Regarding North Anna Power Station, Units 1 and 2, Final Report § 5.2 (Nov. 2002).

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

39 challenged.184 But rather than engage with any specific portion of the analysis (in one or more unspecified sub-issue), Petitioners merely offer the vague assertion that the failure to address climate change impacts on accident risk constitutes a significant deficiency in some unspecified aspect of the Postulated Accidents analysis because it demonstrably affects the frequency and intensity of some external events.185 Despite their use of the term demonstrably, Petitioners offer no corresponding demonstration. And they certainly do not take the next step to explain why the Postulated Accidents analysis somehow is materially deficient without the further information they demand. In fact, it is not even clear what, specifically, they are demanding.

At best, Petitioners offer a single generalized illustration from Mr. Mitman.186 But even that offers no support for an admissible contention. Therein, Mr. Mitman alleges that an example of the alleged deficiency is the LIP event described in paragraphs 34-37 of his Declaration. But, as explained above in Section III.C.2 (Fourth Bullet), Mr. Mitmans discussion of that event is wholly unsupported because he failed to review or evaluate the complete regulatory history of that issue, which undermines the entire basis for his purported analysis of that information.

This potpourri of vague assertions, speculative claims, and factual inaccuracies deprives the Board of the ability to make the necessary, reflective assessment of Petitioners claim.187 Whereas, far more is required for an admissible contention.

184 10 C.F.R. § 2.309(f)(1)(vi) (emphasis added).

185 Petition at 16.

186 Id. at 16.

187 Palisades, CLI-15-23, 82 NRC at 328 (citation omitted).

40

2.

Petitioners Reliance on New York v. NRC Does Not Provide a Basis For an Admissible Contention on Climate Change Petitioners argue that the decision by the D.C. Circuit in New York v. NRC188 requires the NRC to consider climate change impacts on accident risk in some unspecified way.189 According to Petitioners, the New York decision requires the NRC to evaluate the effects of climate change unless it can show those effects are so small as to be remote and speculative.190 Petitioners also claim that the NRCs reliance on its ongoing oversight to address climate risks is the blindered reasoning rejected in that decision.191 However, Petitioners stretch the New York decision far beyond its actual holding.

As brief background, in New York, several states, environmental groups, and a Native American community challenged the NRCs rulemaking to update its Waste Confidence Decision (WCD).192 The specific issue decided was whether the rulemaking was a major federal action under NEPA and whether there was sufficient evidence for the NRCs conclusion that a permanent repository would be available when necessary. On whether the NRCs conclusion was sufficiently supported, the court held that it was not. In particular, the court held that the NRC failed to examine the environmental consequences of failing to establish a repository when one is needed because the likelihood of nonavailability was not remote and speculative.193 Returning to North Anna and the 2023 DSEIS, the NRC is not claiming that the impacts of climate change are remote and speculative and thus need not be analyzed in an EIS. Rather, the 188 New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012) 189 Petition at 15-16.

190 Id. at 16 (citing New York, 681 F.3d at 478).

191 Id. at 15-16.

192 New York, 681 F.3d at 473.

193 Id. at 479.

41 NRC notes that each plants CLB requires it to be able to withstand the effects of natural phenomena, such as flooding, without loss of capability to perform safety functions.194 The NRC ensures compliance with this requirement through its ongoing oversight and its safety reviews of proposed operational changes.195 In other words, the radiological safety of a plant in light of natural phenomena is ensured through the NRCs continual and rigorous oversight of plant operations.

Separately, the NRC squarely considers the environmental effects of climate change across the full spectrum of environmental issues. The term climate change appears 77 times in the 2023 DSEIS. It contains an entire section devoted solely to a discussion of climate change.196 It discusses observed trends in climate change indicators.197 It evaluates climate change projections.198 And it provides specific discussions of climate change in the context of air quality and surface water resources.199 Furthermore, Postulated Accidents (whether caused by climatological phenomena or otherwise) are fully evaluated in the 2023 DSEIS.200 There simply is no basis for Petitioners to allege that the NRC is eschewing an analysis of climate change by claiming its effects are so small as to be remote and speculative.201 Taken together, Petitioners misplaced reliance on New York v. NRC does not demonstrate the existence of a genuine dispute as required by 10 C.F.R. § 2.309(f)(1)(vi).

194 2023 DSEIS at 3-194 (emphasis added).

195 Id.

196 Id. § 3.14.3.2.

197 Id. at 3-192 to 3-193.

198 Id. at 3-194 to 3-195 199 Id. at 3-195.

200 Id. at App. F.

201 Petition at 16.

42

3.

Petitioners Collateral Attack on Part 54 Is Beyond the Scope of This Proceeding Lastly, Petitioner cites, and purports to challenge, a passage from the 2023 DSEIS explaining that the [t]he effects of climate change [on North Anna structures, systems, and components] are outside the scope of the NRC staffs SLR environmental review.202 The license renewal safety review has long been limited to certain aging management matters under codified scope limitations in 10 C.F.R. Part 54.203 CLB safety issues are beyond that codified scope.204 Accordingly, to the extent that Petitioner is demanding the ability to challenge CLB safety issues such as the integrity of plant systems, structures, and components or their ability to withstand certain meteorological conditionsin this license renewal proceeding, its demand amounts to an impermissible collateral attack on NRC regulations.205 Such attacks are beyond the scope of this proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii).

Ultimately, Proposed Contention 3 is outside the scope of this proceeding and does not raise a genuine dispute on a material issue, contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(iii) and (vi).

IV.

PETITIONERS MOTION FOR LEAVE TO AMEND PROPOSED CONTENTION 3 SHOULD BE DENIED On April 11, 2024, Petitioners filed the Motion seeking leave to amend Proposed Contention 3 to add a recent report from the GAO as an additional basis for Proposed Contention 3. The GAOs report, entitled Nuclear Power Plants: NRC Should Take Actions to Fully Consider the 202 Petition at 15.

203 10 C.F.R. §§ 54.21, 54.29(a); see also Turkey Point, CLI-01-17, 54 NRC at 7-8.

204 The Commission determined that re-assessments of CLB safety issues at the license renewal stage would be unnecessary and wasteful because they are effectively addressed and maintained by ongoing agency oversight, review, and enforcement. Turkey Point, CLI-01-17, 54 NRC at 7-8; Millstone, CLI-04-36, 60 NRC at 638 (citation omitted).

205 10 C.F.R. § 2.335(a).

43 Potential Effects of Climate Change (GAO Report),206 was developed in response to a Congressional request for the GAO to review the climate resilience of energy infrastructure.207 While the GAO Report was issued after Petitioners filed their Petition, it contains no information that is materially different from information that has long been available to the public. Petitioners therefore cannot meet the Commissions good cause standard to amend a contention and the Motion should denied.

A.

The Commission Requires a Showing of Good Cause for Amended Contentions Because the initial deadline for filing contentions in this proceedingas extended by the Secretaryhas passed, Petitioners must meet the good cause standard in 10 C.F.R. § 2.309(c)(1) to amend Proposed Contention 3. To meet this good cause standard, Petitioners must show that:

(i) the information upon which the amended or new contention is based was not previously available; (ii) [t]he information upon which the filing is based is materially different from information previously available; and (iii) [t]he filing has been submitted in a timely fashion based on the availability of the subsequent information.208 If Petitioners cannot meet this good cause standard, then NRC rules state that their proposed amended contention should not be entertained.209 206 Id., Attach. A (April 2024) (GAO Report) (Government Accountability Office, GAO-24-106326, Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change).

207 GAO Report at 2.

208 10 C.F.R. § 2.309(c)(1) (emphasis added).

209 Id.

44 B.

The GAO Report Does Not Contain Any Information Materially Different From Information Previously Available Petitioners make little effort to explain why the amended proposed contention meets the good cause standard in 10 C.F.R. § 2.309(c)(1).210 Applicants do not dispute that the GAO Report was unavailable when the Petition was filed, nor that Petitioners filed their Motion in a timely manner.211 But Petitioners must also show that the information upon which the filing is based is materially different from information previously available.212 They have not done so here.

The materiality requirement is a crucial element of the good cause standard and serves as a check to prevent petitioners from filing new contentions based on new information that is insignificantly different from previously available information.213 Thus, [p]reviously available information that is newly acquired by the petitioner does not constitute good cause, as new and amended contentions must be based on new facts not previously available.214 As the Commission put it, to conclude otherwise would effectively allow a petitioner or intervenor to delay filing a contention until a document becomes available that collects, summarizes and places into context the facts supporting that contention, and turn on its head the regulatory requirement that new contentions be based on information... not previously available.215 210 As to the first and third criteria in 10 C.F.R. § 2.309(c)(1), Applicants do not dispute that the GAO Report was unavailable when the Petition was filed nor dispute that Petitioners filed the Motion in a timely fashion after the GAO Report was published.

211 10 C.F.R. § 2.309(c)(1)(i), (iii).

212 Id. § 2.309(c)(1)(ii).

213 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 6 & 7), LBP-17-6, 86 NRC 37, 48 n.9 (2017).

214 Holtec Intl (HI-STORE Consol. Interim Storage Facility), LBP-19-4, 89 NRC 353, 374 (2019) (citing Kan. Gas

& Elec. Co. (Wolf Creek Generating Station, Unit 1), LBP-84-17, 19 NRC 878, 886 (1984) and quoting Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 493 n.70 (2012) (emphasis in original)); see also DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-1, 81 NRC 1, 7 (2015) (requiring a material difference between the information on which the contention is based and the information that was previously available).

215 Amendments to Adjudicatory Process Rules and Related Requirements; Final Rule, 77 Fed. Reg. 46,562, 46,566 (Aug. 3, 2012) (quoting N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481, 496 (2010)) (2012 Part 2 SOC). Moreover, it would be inconsistent with [the Commissions]

45 A brief review of the GAO Report shows that the information therein is neither new nor materially different from information that has long been available to the Petitioners. Petitioners even concede that the GAO Report is [b]ased on available data.216 And the GAO Report states upfront that it is based on several publicly available data sources.217 In short, the GAO Report merely collects, summarizes and places into context already-available information, which the Commission has expressly held to be insufficient to satisfy Section 2.309(c)(1)(ii).218 Tellingly, Petitioners do not point to any data or information in the GAO report that was previously unavailable to them. Instead, they merely allege that they were unaware of any previous review by a federal government agency219 compiling such information, and allege that this compilation confirms their views.220 But those allegations, even if true, are irrelevant to the question of whether Section 2.309(c)(1)(ii) has been satisfied here. Ultimately, while it may be a new compilation of information that has long been publicly available, Petitioners have not shown that the GAO Report contains any materially different information that first became available on April 2, 2024. Accordingly, the Motion should be denied.

longstanding policy that a petitioner has an iron-clad obligation to examine the publicly available documentary material... with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention. Id.

216 Motion at 4.

217 GAO Report at 2-4 (citing: (i) 36 articles identified through a literature review; (ii) the most recent National Climate Assessment (NCA); (iii) relevant laws and NRC regulations; (iv) NRC guidance; (v) the NRCs 2022-2026 Strategic Plan; (vi) NRC office instructions; and (vii) the NRC Inspection Procedure 71111); see also GAO Report App. I Objectives, Scope, and Methodology; App. II Available Federal Data on Heat, Cold, Wildfires, Flooding, Storm Surge, and Sea Level Rise.

218 2012 Part 2 SOC, 77 Fed. Reg. at 46,566; accord Interim Storage Partners LLC (WCS Consol. Interim Storage Facility), LBP-19-11, 90 NRC 358, 362 (2019) (report relying on 150 earlier references but providing no new scientific or engineering research cannot support a finding of good cause for an amended contention).

219 Motion at 6-7.

220 Id. at 4-5 (repeatedly claiming that GAO-106325 confirms Petitioners assertion).

46 C.

Proposed Amended Contention 3 Is Still Inadmissible The Motion proposes to append a series of additional assertions from the GAO Report to the basis statement for Proposed Contention 3.221 But, even with these additional bases, the proposed contention still fails to challenge a single word of the relevant analysis in the 2023 DSEIS. Indeed, the GAO Report has no apparent connection to the 2023 DSEIS at all. Accordingly, even if the Motion had satisfied the good cause standard to amend the contention (it did not), that amendment would not rectify the multiple deficiencies that render Proposed Contention 3 inadmissible.

Appending a discussion of the GAO Report would do nothing to cure the fundamental failure of original Proposed Contention 3 to proffer a challenge that demonstrates a genuine dispute with the 2023 DSEIS. Not a single one of the new basis statements purports to engage with or attempts to dispute any specific portion of the 2023 DSEIS. Instead, many of those bases invoke generalized discussions of climate-change-driven extreme weather in the GAO Report.222 Not only do these assertions fail to dispute the 2023 DSEIS, they appear generally consistent with the discussion therein.223 Furthermore, the GAO Report pertains to CLB safety issues that are beyond the scope of this proceeding. As Petitioners admit, the GAO Report is framed in terms of reactor safety rather than environmental impacts.224 Collectively, nothing in the new proffered basis statements identifies a dispute with the 2023 DSEISmuch less a material one. Thus, Proposed Amended Contention 3 is still inadmissible.

221 See generally id.

222 Id. at 4.

223 Compare, e.g., id. at 4 (discussing hurricane hazards and changing weather patterns over the past 4 decades) with 2023 DSEIS at 3-193 (Since the 1980s, the intensity, frequency, and duration of North Atlantic hurricanes have increased.).

224 Motion at 6.

47 At best, the GAO Report presents little more than a generalized discussion of potential gaps in and dissatisfaction with the NRCs regulatory regime regarding climate change. But this sort of generalized discussion, that presents no criticisms specific to the 2023 DSEIS, falls well short of satisfying the admissibility requirements.225 Instead, Petitioners seek to use the GAO Report to shoehorn North Annas CLB into this proceeding and to attack the sufficiency of the NRCs environmental and safety regulations, both of which are improper. Thus, the addition of the GAO Report to the Basis Statement does not support the admission of the proposed contention.

In past adjudicatory proceedings, petitioners have cited GAO reports as purported bases for proposed contentions. Presiding officers have often found that such reports do not provide an independent basis for the admission of a contention because they do not pertain directly to the application being considered. For example, one licensing board found that a GAO report provided useful background on issues raised in a petition.226 But the board did not rely on the GAO report to admit a contention.227 The Commission has also not accorded much weight to generalized conclusions in GAO reports or claims extrapolated from these generalized conclusions. For example, in the recent license transfer proceeding for the Palisades Nuclear Power Plant, the Commission found that petitioners costs estimates, which were derived from industry-wide cost estimates in a GAO report, were too general to support an admissible contention.228 Moreover, 225 See Tenn. Valley Auth. (Bellefonte Nuclear Power Plant), LBP-08-16, 68 NRC 361, 388 (2008) (denying admission of a contention that relied on a GAO report because the contention failed to provide any evidence of environmental or safety concerns specific to the application and constituted no more than an inadmissible generalized grievance regarding NRCs enforcement and regulatory policies.).

226 Va. Elec. & Power Co. (North Anna Power Station, Unit 3), LBP-08-15, 68 NRC 294, 312 n.82 (2008) (discussing a GAO report on the status of low-level radioactive waste disposal availability and the pending closure of the Barnwell, South Carolina facility to non-Atlantic Compact states).

227 See id. at 293-325 (admitting a safety contention as a contention of omission but denying the environmental portion of the contention related to storage and disposal of low-level radioactive waste).

228 Palisades, CLI-22-8, 96 NRC 1. While the GAO table is broadly cited as support for Joint Petitioners ultimate estimate... none of these categories are specifically identified as forming the basis for the... estimate developed by Joint Petitioners. Id. at 84.

48 when, as here, petitioners seek to use a GAO report to raise a generalized grievance about the NRCs enforcement and regulatory policies without specific disputed facts relevant to the license application, the contention is inadmissible.229 In amending the proposed contentions basis to include the GAO report, Petitioners are attempting, improperly, and yet again, to reopen North Annas CLB in this license renewal proceeding. To do so, Petitioners rely on the GAO Reports statement that climate-related risks have changed since nearly every plants construction and that North Anna is among 47 plants the GAO Report identified as having an increased flood hazard risk.230 The subtext of these claims is that North Annas CLB is insufficient to address climate-change related flooding risks. But as discussed above, a plants CLB is beyond the scope of a license renewal proceeding and therefore, Petitioners attempt to reopen North Annas CLB here must be rejected.231 Petitioners also rely on GAO Report to challenge the sufficiency of the NRCs environmental and license renewal regulations, despite not having received a waiver to do so.232 Petitioners claim that the GAO report confirms their assertion that the NRC did not fully consider the effects of climate change in its post-Fukushima safety reviews.233 Petitioners also claim that the NRCs failure to fully address the effects of climate change on reactor safety casts doubt on whether the NRCs licensing and oversight processes are adequate to address climate-related risks.234 In other words, Petitioners imply that the NRCs current regulations are insufficient 229 Bellefonte, LBP-08-16, 68 NRC at 388.

230 Motion at 4 (citing GAO Report at 19, 39).

231 Turkey Point, CLI-01-17, 54 NRC at 8-9; see also GAO Report at 36, n.53 (Licensees are not required to reevaluate their plants design basis pertaining to natural hazards as part of the license renewal process.).

232 10 C.F.R. § 2.335.

233 Motion at 5 (citing GAO Report at 36).

234 Id. (citing GAO Report at 39).

49 and seek to rely on the GAO Report as support. But without a waiver from the Commission to challenge NRC regulations, such claims are outside the scope of an adjudicatory proceeding.235 Moreover, Petitioners assertions about the findings in the GAO Report go well beyond what the text of that document will bear. To be clear, the GAO Report did not conclude that there are any gaps, shortcomings, or insufficiencies in the NRCs existing regulatory framework. It simply suggests that the agency should conduct a self-assessment to determine whether its licensing and oversight processes are adequate.236 Taken together, the GAO Reports general recommendations are insufficient to support an admissible contention and do nothing to cure the admissibility defects in the original Proposed Contention 3. Moreover, Petitioners attempt to use the GAO Report to reexamine North Annas CLB and criticize the NRCs regulatory regime is improper and seeks to raise issues that are outside the scope of this proceeding.

Accordingly, Proposed Amended Contention 3 is inadmissible because it fails to satisfy 10 C.F.R. § 2.309(f)(1)(iii), (v), and (vi).

The Motion should be denied because Petitioners have not shown good cause to amend Proposed Contention 3, or because Proposed Amended Contention 3 is inadmissible, or for both of these reasons.

V.

CONCLUSION As established above, the Board should DENY the Motion, DENY the Petition, and TERMINATE the proceeding.

235 10 C.F.R. § 2.335.

236 GAO Report at 40.

50 Respectfully submitted, Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, Esq.

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

Washington, D.C. 20004 (202) 739-5274 Ryan.Lighty@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d)

PAUL M. BESSETTE, Esq.

SCOTT D. CLAUSEN, Esq.

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

Washington, D.C. 20004 (202) 739-5796 (202) 739-5402 Paul.Bessette@morganlewis.com Scott.Clausen@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d)

WILLIAM S. BLAIR, Esq.

DOMINION ENERGY SERVICES, INC.

120 Tredegar Street, RS-2 Richmond, VA 23219 (561) 267-7459 William.S.Blair@dominionenergy.com Counsel for Virginia Electric and Power Company Dated in Washington, DC this 6th day of May 2024

DB1/ 146007417 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:

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

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Docket Nos. 50-338-SLR-2 and 50-339-SLR-2 May 6, 2024 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing APPLICANTS ANSWER TO THE HEARING REQUEST AND PETITION TO INTERVENE AND MOTION FOR LEAVE TO AMEND CONTENTION 3 BY BEYOND NUCLEAR AND SIERRA CLUB was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.

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

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

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