ML24141A287
| ML24141A287 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 05/20/2024 |
| From: | Curran D Beyond Nuclear, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Sierra Club |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57027, 50-338-SLR-2, 50-339-SLR-2 | |
| Download: ML24141A287 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
Virginia Electric Power Co. ) Docket Nos. 50 -338/339 SLR -2 North Anna Power Station Units 1 & 2 ) Ma y 20 , 2024
___________________________________ )
REPLY BY BEYOND NUCLEAR AND THE SIERRA CLUB TO OPPOSITIONS TO THEIR HEARING REQUEST AND PETITION TO INTERVENE
I. INTRODUCTION
Pursuant to 10 C.F.R. § 2.309 (i)(2) , the Atomic Safety and Licensing Boards
(ASLBs) Initial Prehearing Order (April 15, 2024 ), and the ASLBs Memorandum and Order
(Granting Motion for Extension of Time and Postponing Oral Argument) (May 14, 2024),
Petitioners Beyond Nuclear, Inc. (Beyond Nuclear) and the Sierra Club, Inc. (Sierra Club)
hereby reply to oppositions by Virginia Electric Power Company (VEPCO) and the U.S.
Nuclear Regulatory Commission (NRC or Commission) Staff to Petitioners Hearing Request and Petition to Intervene (March 28, 2024) (Hearing Request). 1 With support by the
expert declaration of nuclear engineer and risk analyst Jeffrey Mitman 2, Petitioners contentions
charge that the Draft Supplemental Environmental Impact Statement (Draft SEIS) 3 for the
1 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 (May 6, 2024) (VEPCO Answer); NRC Staff Answer in Opposition to Petition for Leave to Intervene Filed by Beyond Nuclear Inc. and Sierra Club Inc. (NRC Staff Answer).
2 Declaration of Jeffrey T. Mitman (March 27, 2024) (Mitman Declaration).
3 The Draft North Anna EIS is entitled: Site -Specific Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 7a, Subsequent License Renewal for North Anna Power Station Units 1 and 2, Draft Report for Comment (NUREG - 1437, Suppleme nt 7a, Dec. 2023).
NRCs proposed decision to extend the operating licenses for North Anna Units 1 and 2
(NAPS) for a twenty -year subsequent license renewal (SLR) term is inadequate because it
fails to address the environmental significance of 2011 Mineral Earthquake; provides
incomplete, inadequate, incorrect or misleading data and analyses in support of its general
conclusion that severe accident impacts are small; and fails to address the effects of climate
chang e on accident risk. Each of these categories of deficiencies is significant in its own right.
Taken together, they show a level of inadequacy that is grossly unacceptable.
Neither VEPCO nor the Staff opposes Petitioners standing to participate in this
proceeding .4 But both parties oppose the admissibility of Petitioners c ontentions regarding
omissions and inadequacies in the Draft SEIS. As discussed below in Section II, however,
VEPCOs and the NRC Staffs arguments against admission of Petitioners contentions are
without merit. The contentions should be admitted.
II. PETITIONERS CONTENTIONS MEET NRC ADMISSIBILITY REQUIREMENTS.
A. T he Staff s Interpretation of the Scope of This Proceeding is Inconsistent With CLI -22 -03 and CLI -22 -02 .
At the outset, the NRC Staff argues that Petitioners contentions are inadmissible because
they raise issues that are beyond the scope of this proceeding as established by the Commission
in Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), CLI -22 -03, 95 N.R.C. 40 (2022) (CLI -22 -03). 5 The Staff relies principally on the language of the hearing
notice, which states:
4 VEPCO Answer at 10 n.55; NRC Staff Answer at 12.
5 NRC Staff Answer at 13 -14.
2
As the Commission directed in CLI -22 -03, a new notice of opportunity to request a hearing and petition for leave to intervene - limited to contentions based on new information discussed in the DEIS - is being issued. 6
According to the Staff, the italicized language quoted above is consistent with the Commissions
alleg ed intent in CLI -22 -03 that it would not provide an opportunity for hearing on any
previously available information or any evaluations that were contained in the previous (August
2021) DSEIS. 7
But the Staffs interpretation of the hearing notice and CLI -22 -03 is erroneous and would
effectively eviscerate CLI -22 -03 and its companion decision in Florida Power and Light Co.
(Turkey Point Nuclear Generating Units 3 and 4), CLI -22 -02, 95 N.R.C. 26 (2022) (CLI -22 -
- 02) . As stated in CLI -22 -03:
As a general matter, in CLI -22 -2, the Commission found that the 2013 GEIS did not consider the impacts from operations during the subsequent license renewal period and applicants for subsequent license renewal must evaluate Category 1 impacts in their envi ronmental reports. Accordingly, these impacts must be addressed on a site -specific basis in the Staffs site -specific environmental impact statements. 8
This language establishes that in CLI -22 -02 and CLI -22 -03, the Commission viewed new
information as any information in the prospective Staffs site -specific environmental impact
statements (EISs) pertaining to environmental impacts designated as Catego ry 1. Petitioners
contentions lie within the scope of admissible issues because they address environmental impacts
of reactor accidents, which are designated as Category 1 issues in NRC regulations. 9
6 Id. (quoting 89 Fed. Reg. 960, 961 (Jan. 8, 2024) (emphasis supplied by NRC Staff).
7 Id.
8 CLI -22 -03, 95 N.R.C. at 42.
9 10 C.F.R. Part 51, Appendix B, Subpart A, Table B -1 (i ncluding both design - basis and severe accidents in Category 1, except for the limited issue of alternatives to mitigate severe accidents
. . . for all plants that have not considered such alternatives.) .
3
The Staffs argument is also inconsistent with CLI -22 -02 and CLI -22 -03 because it
would preclude Petitioners from challenging environmental data and findings in the 2013
Revised GEIS and the 2021 supplement to the 2013 Revised GEIS - despite the fact that the
Commission had found the Revised 2013 GEIS to be substantively inadequate fo r failing to consider the impacts from operation during the subsequent license renewal term. Contrary to
the Staffs argument, t he Commission deprived the 2013 Revised GEIS and the 2021 Draft SEIS
of any precedential effect by terminating the proceeding, dismiss ing all pending contentions, and
provid ing the Petitioners with a new opportunity to submit contentions on a site -specific EIS ,
includ ing refiled contentions. 10 And the Petitioners would be subject to the general
requirements of 10 C.F. R . § 2.309(a) for intervention, not the heightened pleading standard for
late -filed contentions. Thus, a s recently recognized by the ASLB in the SLR proceeding for
Turkey Point Units 3 and 4, Petitioners are entitled to challenge environmental findings that
pre -date the Draft SEIS if they remain unsatisfied with the Staffs treatment of these issues in th e Draft SEIS. 11
10 Petitioners note that in the Turkey Point SLR proceeding, where the Staff had reached the stage of issuing a final supplement to the 2013 GEIS, the Commission explicitly found that the Staff did not conduct an adequate NEPA analysis before issuing FPL licenses for the subsequent license renewal period and that the existing environmental analysis for Turkey Point would support only operation through the initial license renewal term ( i.e., until 2032 and 2033) and not subsequent license renewal. 95 N.R.C. at 36. Had the Staff reached the point of issuing a final supplement to the 2013 GEIS for North Anna, Petitioners presume the Commission would have made a similar determination.
11 Florida Power and Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP -24 -03, __
N.R.C. __ (slip op. at 14 -15) (March 7, 2024) (LBP -24 -03).
4
B. Contention 1 is Admissible.
Contention 1 (Draft SEIS Fails to Address Environmental Significance of the 2011
Mineral Earthquake ) asserts:
The Draft SEIS fails to satisfy NEPA or NRC implementing regulation 10 C.F.R. § 51. 71 because it does not address the environmental significance of the 2011 Mineral Earthquake, whose epicenter was a short distance from the two reactors and whose ground motion exceeded the design basis levels for both reactors. By exceeding the reactors design basis, the earthquake disproved the assum ption underlying the NRCs issuance of operating licenses in 1978 (for Unit 1) and 1980 (for Unit 2) and renewal of those lic enses 2003, that the reactors could be operated safely and without significant adverse environmental impacts because their SSCs were built to a design basis of sufficient rigor to protect against likely earthquakes. This assumption can also be found in the 2013 License Renewal GEIS and the Draft SEIS for the North Anna SLR application. [citing Mitman Declaration, ¶ 25 and Draft SEIS as cited therein ].
Because that assumption has been proven wrong, the NRC must explicitly address the question of whether the environmental impacts of operating North Anna Units 1 and 2 in non -compliance with its design basis for an additional twenty years will have significant impacts. As discussed in the attached Mitman Declaration, the NRC fails to acknowledge it 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 significan t impact that is based on a probabilistic analysis. In Mr. Mitmans expert opinion, the deterministic analysis is more conservative because it requires a robust design that provides reasonable assurance that an external event like an earthquake will not ha rm necessary safety systems. A probabilistic analysis, in comparison, does not assume safety related equipment will perform as designed and then calculates the likelihood of an accident occurring. The NRC should explain the difference and how its assessment of risk has changed as a result of the Mineral Earthquake. [citing Mitman Declaration, ¶ 27. ] As asserted by Mr. Mitman, the NRC should also explain what it has done to evaluate the potential that safety systems, which are assumed to survive a beyond -design -basis earthquake only once will be able to perform their safety functions when the next eart hquake occurs. [citing Mitman Declaration, ¶ 27. ]
Further, the Draft SEIS does not address, let alone reconcile, the significant disparity between the results of the seismic risk analyses for Unit 3 and Units 1 and 2. In both cases, the NRC and VEPCO were responding to the very same earthquake. Yet, while the NRC required seismic upgrades for Unit 3, it required no seismic upgrades for Units 1 and 2 which required only a set of nonpedigree commercial -grade FLEX components with significantly lower reliability. The NRC should explain the reason for this di sparate result. If the NRC considered significant safety grade improvements necessary for adequate protection of Unit 3, the obvious conclusion is that it thought the safety and
5
environmental impacts of an earthquake were significant. Why did it make a different finding for Units 1 and 2? [citing Mitman Declaration, ¶ 28 ].12
VEPCO and the NRC Staff both oppose admission of Contention 1 on various grounds .
VEPCO first argues that Contention 1 is too vague because it fails to identify the sections
of the National Environmental Policy Act (NEPA) and 10 C.F.R. § 51.71 on which the
contention relies , or the section of the Draft SEIS that is criticized by the contention .13 But
Petitioners Hearing Request quotes specific requirements in NEPA and 10 C.F.R. § 51.71 that
an EIS must consider the environmental impacts of an agencys proposed action. 14 Further, the
statement of Contention 1 specifically identifies the aspects of NEPA and 10 C.F.R. § 51.71 that
are not fulfilled by the Draft S EIS , i.e., the requirement to fully consider the environmental
impacts of the proposed action.
In particular, the contention asserts that the Draft SEIS fails to consider the
environmental impacts of the Mineral Earthquake because it ignores the occurrence of the
Mineral Earthquake and the significance of that event with respect to whether NAPS is operating
and will operate in compliance with its design basis . As discussed in Mr. Mitmans Declaration ,
the Class 1 piping systems in the North Anna reactors were designed to withstand only one design -basis earthquake (DBE). 15 If VEPCO conducted some alternative analysis that was
approved by the NRC, that analysis is by definition inconsistent with the licensing constraints
that a DBE may occur only once, and that after that point the reactor is not operating in
compliance with the design basis. Before the occurrence of the 2011 Mineral Earthquake, the
12 Hearing Request at 9 -11.
13 VEPCO Answer at 15 -16. The Staff makes a similar argument at page s 26 -27 .
14 Hearing Request at 11.
15 Mitman Declaration, ¶ 10 (citing Updated Final Safety Analysis Report (UFSAR) at 3.7 -35).
6
NRC may have had grounds to state in its EISs for North Anna initial licensing and license
renewal that the environmental impacts of accidents at North Anna would be SMALL because
the reactor would operate within their design basis. However, now that the Mineral Earthquake
has occurred, and now that the NRC has decided not to require any upgrade to the seismic design
of the reactors and/or revise their licenses , the NRC no longer has a basis to represent that the
North Anna reactors will operate in compli ance with their design bases.
VEPCO and the Staff also assert that Contention 1 is not specific regarding the language
in the Draft SEIS that it challenges. 16 But the basis statement for Contention 1 explicitly states
that Petitioners rely for their claims on Sections B and C.1 of Mr. Mitmans Declaration .17 And
in ¶ 25, Mr. Mitman quotes the exact language that Petitioners dispute as unfounded because it is
inconsistent with the occurrence of the 2011 Mineral Earthquake :
The Draft SEIS claim that the environmental impacts of design -basis accidents is SMALL is based on the incorrect assumption that NAPS is operating and will continue to operate in compliance with its design basis. On page 3 -169, the Draft SEIS states:
T he UFSAR design -basis accident analysis forms the technical bases for the North Anna Technical specifications for operation. In Section F.1.1 (Page F -2 at 41), the Draft SEIS also states: [T]he licensee is required to maintain the acceptable design and p erformance criteria (which includes withstanding design -basis accidents) throughout the operating life of the nuclear power plant, including any license -renewal periods of extended operation. And at page F -3, the Draft SEIS state: Because the requirements of the existing design basis and any necessary aging management programs will be in effect for SLR, the environmental impacts of design -basis accidents as calculated for the original operating license application should not differ significantly from the environmental impacts of design -basis accidents during other periods of plant operations, including during the initial license renewal and SLR periods.
As Mr. Mitman also states in paragraph s 26 -28, and as also stated in Contention 1, the Draft
SEIS assertion that environmental impacts of operating NAPS will be SMALL because the
reactors will operate within their design basis is incorrect in two significant respects : first,
16 VEPCO Answer at 15 -16 , NRC Staff Answer at 26 -27.
17 Hearing Request at 11.
7
because there is a significant difference between the deterministic conclusion that a reactor will
operate within its design basis and the probabilistic evaluation of environmental risks that is
common to NRC NEPA evaluations; and second, because the Draft SEIS does not address the
significant difference between its regulatory response to the Mineral Earthquake for Units 1 and
2 versus Unit 3. While the NRC required seismic upgrades for Unit 3, no seismic upgrades for
Unit 2 were required. Instead, the NRC required only a set of nonpedigree commercial grade FLEX components with significantly lower reliability. 18
VEPCO cites the ASLBs 2021 decision in the first North Anna SLR proceeding for the
proposition that 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 operation. 19 But neither LBP -21 -04 nor the portion of the UFSAR
cited therein states that the North Anna reactors will continue to operate within their design
bases. 20 And neither the NRC Staff nor VEPCO denies that the Mineral Earthquake exceeded the
design basis . Before the occurrence of the 2011 Mineral Earthquake, the NRC may have had
grounds to state in its EISs for North Anna initial licensing and license renewal that the
environmental impacts of accidents at North Anna would be SMALL because the reactor
wo uld operate within their design basis. However, now that the Mineral Earthquake has
occurred, and now that the NRC has decided not to require any upgrade to the seismic design of
the reactors, the NRC no longer has a basis to represent that the North Anna reactors will operate
18 Hearing Request at 10 -11 (citing Mitman Declaration, ¶¶ 27, 28).
19 VEPCO Answer at 19 -20 (citing Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), LBP -21 -04, 93 N.R.C. 179, 206 (2021)) (LBP -21 -04) .
20 As discussed above, the Class 1 piping systems in the North Anna reactors were designed to withstand only one design -basis earthquake (DBE) .
8
in compliance with their design bases during the SLR term or that they are currently operating
within their design bases . This fundamental defect in the Draft SEIS cannot be papered over by
referring to other analyses that do not directly address the fact that the North Anna design basis
was exceeded and yet the design was not upgraded.
For instance, LBP -24 -01 cites the UFSAR for the proposition that an evaluation of
existing plant structures, piping systems and pipe supports and equipment impacted by the
ground motion generated by the 2011 Mineral E arthquake showed that these items intended to
fulfill the plants existing DBE requirements had not suffered any damage or deformation. 21 If
this evaluation was intended to replace the design principle on which North Anna was licensed
and that the NRC relies on in the Draft SEIS to state that environmental impacts of accidents at
NAPS are SMALL, it should be explicitly stated , and the difference should be explained .
Similarly, the fact that new plant components that had not been subject to the 2011 Mineral
earthquake must now be qualified to seismic margins consistent with [the Mineral Earthquake] 22 says nothing about the question of whether existing equipment should be
replaced with new equipment that is similarly seismically qualified. This would be necessary
before the NRC could claim that the North Anna reactors would continue to operate within their
design bases. F urther, contrary to VEPCOs argument , the 2021 ASLB was simply wrong that
[a] similar approach was taken regarding seismic qualification for the 10 C.F.R. Part 52 combined op e rating license for North Anna Unit 3. 23 As stated above and in paragraph 28 of
Mr. Mitmans Declaration , while the NRC required seismic upgrades for Unit 3, it required no
21 LBP -21 -04, 93 N.R.C. at 206 n.46.
22 Id.
23 VEPCO Answer at 1 -20 (citing Dominion Virginia Power (North Anna Power Station, Unit 3),
CLI -17 -8, 85 N.R.C. 157, 176 -82 (2017)).
9
seismic upgrades for Units 1 and 2 which required only a set of nonpedigree commercial -grade
FLEX components with significantly lower reliability.
VEPCO also argues that the occurrence of the 2011 Mineral Earthquake itself, combined
with the fact that the North Anna reactors survived the earthquake, demonstrates that North
Anna can be operated safety and without adverse environmental impacts even under beyond -
design -basis circumstances - in other words, the exact opposite of what Petitioners are claiming (without any factual basis) here. 24
As a preliminary matter, VEPCOs assertion that NAPS survival of the Mineral
Earthquake shows the reactor is safe from any future beyond -design -basis earthquake is
disturbingly cavalier . By VEPCOs logic , the fact that NAPS survived a beyond -design -basis
earthquake somewhat greater than a design basis earthquake demonstrates that it could survive
any beyond -design -basis earthquake, e.g. , even one ten times the magnitude of the Mineral
Earthquake . There is no reason in the world to suppose that NAPS - which was designed to
withstand only one design -basis earthquake that was never expected to occur during the life of
the reactors - is now demonstrably safe from future earthquakes of any size.
In any event, the fact that the North Anna reactors survived the Mineral Earthquake is
just a factual observation, not even close to the Atomic Energy Act -based assumption that
reactors are reasonably safe because they operate within their design bases . This fundamental
regulatory assumption - now demonstrated to be false for NAPS -- undergirds the finding in the
Draft SEIS that environmental impacts risks of accidents at NAPS during a license renewal term
will be SMALL . Therefore, VEPCO and the Staff may not insist on retaining it in the Draft
SEIS . If they seek to substitute a different standard that is unrelated to compliance with the
24 VEPCO answer at 19 (emphasis in original) .
10
design basis - such as the conclusion that the design basis for NAPS is suitable to support continued operation 25 -- the Draft SEIS must explicitly address how this new suitability
criterion compares to the previous Atomic Energy Act -based standard of requiring and assuming
operation within the design basis for the purpose of concluding that NAPS accident risk will be
SMALL. Otherwise, the Draft SEIS may be fairly accused of improperly using false
assurances of compliance with minimum Atomic Energy Act -based safety standard in order to
represent to the public that the environmental impacts of continuing to operate NAPS in a second
license renewal term are SMALL.
VEPCO also argue that the Draft SEIS does evaluate the environmental significance of the 2011 Mineral Earthquake in Section 3.4.4 and in Appendix F. 26 But neither of these
discussions in the Draft SEIS alters the demonstrably incorrect assertion that environmental
impacts of accidents at NAPS will be SMALL because the reactors will operate within their
design bases ; nor does either discussion acknowledge that the assertion is no longer true .
Whatever else the Draft SEIS may say about the accident risks raised by continued operation of
the North Anna reactors, that false assurance of SMALL environmental impacts remains in the
Draft SEIS as an unsupported and baseless sop to public confidence regarding the degree to
which the human environment - including their health and safety - is protected from accident
risks. While Petitioners explicitly requested the NRC to address this issue in scoping comments submitted in 2022, 27 the Draft SEIS makes no attempt to address it.
25 See discussion above at 8 and note 1 9 and VEPCO Answer at 19 -20 (citing LBP -21 -04, 93 N.R.C. at 206).
26 VEPCO Answer at 16 -17.
27 In 2022, in response to an NRC Federal Register notice seeking comments on the scope of the Draft SEIS that they planned to prepare ( 87 Fed. Reg. 68,522 (Nov. 15, 2022) ), Petitioners responded as follows:
11
Finally, both VEPCO and the Staff argue that Contention 1 is inadmissible because it
concerns the safety of NAPS rather than presenting a challenge to the Staffs evaluation of the
environmental impacts of a beyond -design -bass earthquake. 28 In making this argument, they
overlook the fact that the Draft SEIS itself brings safety into the ambit of its environmental
analysis, by claiming that the environmental risks of accidents at NAPS will be SMALL due to
the fact that the reactors will operate within their design bases. In fact, as noted in Mr. Mitmans
Declaratio n, the NRC has based multiple environmental analysis for NAPS on this claim, both
before the Mineral Earthquake and after the earthquake. 29 The equating of no significant impacts
with design -basis compliance starts with the NRC, not with Petitioners. The NRC cant have it
both ways, by relying explicitly on demonstrably incorrect safety assurances under the Atomic
Energy Act at the same time that it declares such assurances to be beyond the scope of issues that
can be raised in challenging the adequacy of the Draft SEIS to comply with NEPA. While
VEPCO accuses Petitioners of confusing these issues, 30 Petitioners respectfully submit that it is
The EIS for North Anna must consider the environmental significance of the occurrence of the 2011 Mineral Earthquake, which exceeded the reactors design basis. By exceeding the reactors design basis, the earthquake disproved the assumption underlying the NRCs issuance of oper ating licenses in 1978 (for Unit 1) and 1980 (for Unit 2) and renewal of those licenses in 2003, that the reactors could be operated safely and without significant adverse environmental impacts because their SSCs were built to a design basis of sufficient rigor to protect against likely earthquakes. Because that assumption has been proven wrong, the new EIS must analyze this additional, proven risk. We note that in the 2022 Environmental Report Supplement, VEPCO has utterly failed to address the environment al significance of the Mineral Earthquake or even acknowledge the earthquakes occurrence.
Letter from Diane Curran to NRC Office of Administration re: Comments by Beyond Nuclear and the Sierra Club on Scoping of Environmental Impact Statement for North Anna Power Station, Unit Nos. 1 and 2, Docket ID NRC -2020 -0201 (Dec. 15, 2022) (ML22350A062)
(foo tnote omitted).
28 VEPCO Answer at 19 -20 , NRC Staff Answer at 24 -25.
29 Mitman Declaration, ¶ 25.
30 VEPCO Answer at 22.
12
the Draft SEIS itself which confusingly and misleadingly attempts to lull the public into a false
sense of confidence by using incorrect Atomic Energy Act -based safety assurances to claim that
environmental impacts of continuing to operate NAPS will be insignificant under NEPA.
C. Contention 2 is Admissible.
CONTENTION 2 (Draft SEIS does not contain a complete or adequately rigorous
evaluation of accident risks ) asserts:
The Draft SEIS 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. Therefore, the NRC lacks an adequate basis for concluding tha t the environmental impacts of accidents during a license renewal term are SMALL. [citing FEIS at 3 -169 - 3 -170 ]. In particular, and as set forth in detail in Section C.2 of Mr.
Mitmans Declaration:
- T he Draft SEIS is inadequate as a general matter for making broad generalizations about external event core damage frequency (CDF) based on extrapolations from internal event CDF values and limited actual plant -specific values for external event CDF.
- In finding that the environmental impacts of severe accidents are SMALL, the NRC ignores its own data regarding seismic and fire core damage frequency (CDF) that indicate these impacts are significant. The NRC also disregards the fact that the occurrence of the 2011 Mineral Earthquake, by itself, i ncreased the risk of an earthquake severe enough to damage safety equipment.
- The Draft SEIS assertion at page F -26 that there has been a substantial decrease in internal event CDF is erroneous. This error affects other estimates such as the estimate of population dose risk.
- T he Draft SEIS fails to demonstrate consideration of external flooding risk with subsequent ingress of water into the turbine building . As demonstrated by Mr.
Mitmans Declaration, flooding poses a significant accident risk that has not bee n addressed in the Draft SEIS.
- The Draft SEIS makes misleading statements about the NRCs review of Fukushima -
related information relevant to North Anna and risk improvements obtained by NRC and license efforts after September 2001.
- The Draft SEIS takes inappropriate credit for reductions in environmental risk that are not reflected in the PRA for NAPS .
13
- The Draft SEIS fails to demonstrate consideration of uncertainties with respect to the conclusion that severe accident impacts are small.
- The Draft SEIS does not address the environmental impacts of concurrent multi -unit accidents.
- The Draft SEIS severe accident mitigation alternatives ( SAMA ) analysis is deficient in multiple respects, including failure to consider SAMAs that meet criteria for consideration, and failure to provide documentation of an NRC audit relied on to conclude that VEPCOs approach to its SAMA analysis was methodical and reasonable. 31
VEPCO and the NRC Staff both oppose admission of Contention 2. The Staffs principal
argument is that it was entitled to rely for its accident analysis on the 2013 GEIS, as
supplemented for North Anna in 2021 and as addressed in VEPCOs 2020 Environmental Report
for the 2021 Supplement to the 2013 Revised GEIS; and t hat Petitioners could not challenge
those analyses without providing some new and significant information that would change the
outcome of those earlier analyses. 32 As discussed above in Section II.A, however, in CLI -22 -02
and CLI -22 -03, the Commission explicitly found that the 2013 GEIS was inadequate to address
the environmental impacts of subsequent license renewal and therefore could not be relied on.
Therefore, the Commission required the Staff to conduct a whole new analysis of the
environmental impacts of subsequent license renewal with respect to Category 1 issues such as
accident impacts. As a result, Petitioners are not required to show that the Draft SEIS departs in
some way from earlier environmental studies. They need do no more than to challenge the Draft SEIS. 33
31 Hearing Request at 12 -15 .
32 NRC Staff Answer at 30 -31.
33 Contrary to the Staffs suggestion at page 30, Contention 1 and Mr. Mitmans Declaration do not confuse the 2023 Draft SEIS with the 2021 supplement to the 2013 Revised GEIS.
Petitioners contentions clearly take issue with the 2023 Draft SEIS. If the Staf f believes that Petitioners erred in calling the 2023 document a draft supplemental EIS, it would be helpful to 14
VEPCO makes a number of general challenges to Contention 2, but none has traction.
F or instance, VEPCO asserts that none of the claims in Contention 2 are new because
they were previously made by Mr. Mitman in his technical review of the Draft SEIS that Petitioners submitted with their comments on the Draft SEIS in February of 2024. 34 As discussed
above in Section II.A, however, the standard established in CLI -22 -03 regarding whether
information is new is whether it pertains to a Category 1 analysis that could not have been
challenged previously in a SLR proceeding . Moreover, CLI -22 -03 s instructions related to the
adjudica tory process , not the Staff s process for commenting on the Dra ft SEIS. In fact, it would
be both bizarre and unproductive if petitioners in an NRC adjudication could be deemed to have
waived the ir rig ht to raise issues in that adjudication by first notifying the NRC Staff of their
concerns in the Staffs process for taking comments on a draft environmental analysis.
VEPCO also claims as a general matter that Contention 2 is too perfunctory to satisfy
the Commissions admissibility criteria. 35 In this context, VEPCO accuses Petitioners and Mr.
Mitman of failing to elaborate on legal theories or to show Mr. Mitmans legal expertise in providing support for the contention. 36 And VEPCO asserts that Petitioners failed to identify the
particular paragraphs of Mr. Mitmans Declaration on which they rely. 37
explain why the staff gave th at document the same number as the 2013 GEIS, i.e., NUREG -
1437, and why the cover page refers to the document as NUREG -1437, Supplement 7a.
Petitioners should not be faulted for using the same confusing nomenclature supplied by the Staff.
34 VEPCO Answer at 24 (citing 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 Technical Report).
35 VEPCO Answer at 25.
36 Id. at 25, 27.
37 Id. at 25, 27.
15
But VEPCO is incorrect on these points. Contention 2 is quite clear that the reason
Petitioners contend the Draft SEIS is inadequate under NEPA is that it is not based on an
adequate technical analysis of environmental risks. As stated in the contention:
The Draft SEIS 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. Therefore, the NRC lacks an adequate basis for concluding tha t the environmental impacts of accidents during a license renewal term are SMALL. 38
Petitioners have satisfied the NRCs criteria for admission of a contention challenging the
adequacy of the Draft SEIS environmental analysis by furnishing . . . the reasoned opinion of a
qualified expert regarding these technical inadequacies. 39
Further , the contention relies on Mr. Mitmans Declaration and Technical Report and his
considerable expertise as a nuclear reactor risk analyst. It is irrelevant that Mr. Mitman is not a
lawyer and does not claim legal expertise.
Finally , Contention 2 provided the ASLB and parties with adequate notice of their
concerns by providing a brief description of Mr. Mitmans criticisms of the Draft SEIS, with
reference to a specific section of Mr. Mitmans supporting Declaration (Section C.2 ). In Section
C.2 of his Declaration , Mr. Mitman refers in turn to the specific portion of his Technical Report
providing additional details for his criticisms, i.e. , pages 2 through 7. VEPCO does not explain,
and it is difficult to perceive, how it would have helped significantly for Petitioners to paste
Section C.2 and pages 2 through 7 of his Declaration into the contention , any more than
Petitioners could reasonably demand that the authors of the Draft SEIS paste in all of the
previous environmental and safety analyses on which they rely . Indeed, as the ASLB recognized
38 Hearing Request at 12.
39 U.S. Dept. of Energy (High -Level Waste Repository), LBP -09 -06, 69 N.R.C. 367, 409 (2006)
(LBP -09 -06).
16
in LBP -09 -06, that would exalt form over substance. 40 Petitioners respectfully submit that Mr.
Mitmans Declaration provides sufficient support for the contention by identifying the specific
assertions of the Draft SEIS with which he disagrees, the reasons he finds the Draft SEIS
inadequate, and the fact that the correction of the deficiency could affect the outcome of the
environmental analysis by demonstrating that accident risks are significant rather than
insignificant. Mr. Mitman also provides additional support for his claims in pages 2 through 7 of his Technical Report . 41 This is the opposite of a search for a needle that may be in a haystack
as erroneously characterized by VEPCO). 42
VEPCO s challenges to each of the nine points raised by Petitioners on pages 13 -14 of
their Hearing Request are also without merit.
40 LBP -09 -06, 69 N.R.C. at 408. In LBP -09 -06, over objections by the applicant and the NRC Staff, the ASLB accepted contentions wherein the expert opinion s supportin g the contentions were detailed in the contention s themselves and supported by a brief statement of adoption in the expert declaration. Petitioners could have taken that approach, but chose instead to provide detailed technical support for the main points of the contention in the expert declaration. In both cases, the contention and supporting declaration, taken together, put other parties on notice of the petitioners concerns and thereby satisfied the objective of 10 C.F.R. § 2.309 (f) (1)(v) and (vi) to ensure that only those contentions that have been demonstrated to have sufficient substance to warrant further consideration on the merits will be admitted .
41 Mitman Declaration, ¶ 31.
42 VEPCO Answer at 26 (quoting Pub. Serv. C o . of N.H. (Seabrook Station, Units 1 and 2), CLI -
89 -03, 29 N.R.C. 234, 240 -41 (1989)) (CLI -89 -03) . Petitioners note that the circumstances described in CLI -89 -03 are distinct from the circumstances here. In that case, the Intervenors submitted a late -filed contention that disputed decommissioning funding estimates without identifying evidence on which they rely in either the contention or the supporting expert declaration. 29 N.R.C. at 240. Instead, the Intervenors referred to a petition under 10 C.F.R. § 2.758, asserting that [a]ll of the facts and assertions contained in [that] petition are incorp orated by reference. Id. These references were sizable and massive according to the Commission. Id. Here, in contrast, Contention 2 explicitly incorporates six pages of Mr.
Mitmans expert declaration that is attached to the contention for the explicit purpose of supporting it.
17
First , VEPC O argues that Petitioners' contention that [t]he Draft SEIs is inadequate as a
general matter for making broad generalizations by external event core damage frequency
(CDF) based on extrapolations from internal event CDF values and limited actual plant -
specific values for eternal event CDF is too cursory to support an admissible contention .43 In
fact, Petitioners make this same argument for every one of the nine bullet points in Contention 2.
Petitioners do not contend that by itself, any of the nine bulleted statement s in C ontention 2
would be insufficient to support its admissibility. Instead, they explicitly rely on Section C.2 of
Mr. Mitman s Declaration and pages 2 through 7 of his Technical Report .44
VEPCO also argues that Mr. Mitmans Declaration does not support the contention. 45 But
notably, VEPCO does not dispute the accuracy of Mr. Mitmans assertion that the Draft SEIS -
along with the previous 1996 and 2013 License Renewal GEIS that estimated total CDF for
NAPS and other reactors -- extrapolated the likelihood of external events from its estimates of
the likelihood of internal events . Instead, VEPCO attempts to defend that practice on the merits
by asserting that the risks of severe accidents initiated by internal events have been found to
bound the risks of severe accidents initiated by external events in the 1996 and 2013 License
Renewal GEISs. 46 But paragraph 31 of Mr. Mitmans Declaration establishes a genuine and
material dispute with that practice by listing external events disregarded by the Draf t SEIS such
as flooding, external fires, and tornadoes; and by stating his expert opinion that [t]hese
additional external events, especially flooding, may not be ignored without serious[ly]
underestimating environmental impacts. And in ¶ ¶ 33 through 36, Mr. Mitman provides
43 VEPCO Answer at 13 (citing Hearing Request at 13).
44 Hearing Request at 12.
45 VEPCO Answer at 13 .
46 VEPCO Answer at 28.
18
additional support for his expert opinion that the Draft SEIS failure to explicitly address external
risks such as flooding, external fires, and high wind events has a significant effect on the quality
and reliability of the NRCs environmental impact ev aluation. 47 Mr. Mitmans Technical Report
provides further support for his criticism of the Draft SEIS method of extrapolating internal
CDF to external CDF by making three observations: first, that the Draft SEIS value for seismic
risk alone is greater than the NRCs calculated average for all hazards combined in the 2023
Draft License Renewal GEIS ; second, that the 2023 Draft License Renewal GEIS supports an
extremely high total CDF for North Anna of 1.1E -4; and third, that VEPCO has not completed a
fire probabilistic risk assessment (PRA) for North Anna and that it is very possible that
North Anna has a fire CDF higher or even significantly higher than the highest rate of 8.7E -5
reported .48
By seriously underestimating environmental impacts, the Draft SEIS violates NEPAs
requirement for a thorough investigation and forthright acknowledgement of environmental impacts. 49 Therefore, contrary to VEPCOs assertion that Petitioners have failed to explain how
the NRCs practice of extrapolating external CDF from internal CDF falls short of some
47 Mitman Declaration, ¶ 31.
48 Mitman Technical Report at 3 . As Mr. Mitman states : For NAPS the sum of internal events (1.36E -6), seismic (6.3E -5) and fire risk (4.5E -5) totals 1.1E -4 per year. This value (1.1E -4) is significantly above both the Draft License Renewal GEIS all ha zards value of 6.1E -5 and the 8.4E -5 internal event value used in the original 1996 License Renewal GEIS to make its decisions. Id.
Mr. Mitman also points out that the NRC has limited fire data, in part because VEPCO has not completed a fire PRA for NAPS . Id. But based on available information, he concludes that by itself, the fire CDF for NAPS may be significantly higher than the combined internal and external CDF sum of 1.1E -4 per year . Id.
49 Hearing Request at 7 (quoting National Audubon Society v. Dept of Navy, 422 F.3d 174, 185 4th Cir. 2005) ).
19
unspecified legal or regulatory requirement, 50 Petitioners have done so through Mr. Mitmans
Declaration .
Second , VEPCO argues that Mr. Mitman fails to support his assertion that the Draft SEIS ignores data regarding seismic and fire core damage frequency. 51 Due to a clerical error, Mr.
Mitman's Declaration mistakenly cite d page 5 of his Technical Report for this disregarded data.
But his concern is clearly presented on page 3 of the Declaration, which states:
At page F -10 (line 32) of Section F.3.2 External Events (Section E.3.2 of the 2013 LR GEIS), the Draft SEIS reports that the seismic CDF value for NAPS is 6E -5 per year.
(This is consistent with the NRCs 2019 letter to Dominion giving a value of 6.3E -5 per year. See letter from NRC to Dominion re: North Anna Power Station, Units 1 And 2 -
Staff Review of Seismic Probabilistic Risk Assessment Associated with Reevaluated Seismic Hazard Implementation of the Near -Term Task Force Recommendation 2.1:
Seismic, April 25, 2019 (ML19052A522)). In contrast, Table E.3 -12 in the Draft License Renewal GEIS (Page E -33) shows a mean all hazards CDF (i.e., including both internal events and external events) for PWRs of 6 .1E -5 per year.
As pointed out by Mr. Mitman, this data shows that the Draft SEIS value for seismic alone at
NAPS is greater than the NRCs calculated average for all hazards combined in the Draft
License Renewal GEIS. In his expert opinion, [t] his discrepancy should be addressed . In other
words, the NRC no longer has a basis to theoretically extrapolate the likelihood of external
events based on estimates of the likelihood of internal events. Now that the NRC and the nuclear
industry (including VEPCO) have developed more data on the specific question of the likelihood
of external events, that data must be incorporated into the risk analysis that is used for population
dose estimates and consideration of SAMAs.
VEPCO also argues that Mr. Mitman does not support his assertion that the Draft SEIS
fails to acknowledge that the Mineral Earthquake increased the risk of an earthquake severe
50 VEPCO Answer at 28.
51 Id.
20
enough to damage safety equipment. 52 VEPCO argues that it is circular to argue that the
occurrence of an earthquake per se increases the risk that the earthquake will happen again. 53 But
the likelihood of another earthquake of the same or larger magnitude as the Mineral Earthquake
is significantly higher than anticipated in the original licensing decision for NAPS, because an
earthquake of that magnitude was never expected to occur during the lif e of th e p lant , let alone
during the first 33 years of the operating life of the North Anna reactors . In deed, the increased
risk of an earthquake is reflected in the relatively high seismic CDF of 6.3 -5 estimated in the
Draft SEIS (although not incorporated into the Draft SEIS risk analysis). 54
And the Draft SEIS does not address the risk that safety equipment, having already been
weakened by the beyond design basis Mineral Earthquake, will be less able to withstand another
earthquake and potentially other hazards, e.g., high winds. As Mr. Mitman states, the Draft SEIS makes no attempt to quantity the increased risk. 55 To the contrary, as stated in Mr. Mitmans
Technical Report, the Draft SEIS vaguely takes credit for actions and experience gained after
the 2011 Mineral earthquake that assertedly provided additional assurance regarding North
Annas ability to handl e a beyond design basis seismic event without relating them to
quantitative risk reduction or resolving the design basis exceedance in 2011. 56
52 VEPCO Answer at 29 (quoting Mitman Declaration, ¶ 3 2 ).
53 VEPCO Answer at 2 9 .
54 Notably, VEPCO does not dispute Mr. Mitmans observation that the Mineral Earthquake was severe enough to damage safety equipment. Nor should it, because the equipment was qualified to withstand an earthquake that was less severe than the earthquake that occurred.
55 Mitman Declaration, ¶ 3 2 .
56 Mitman Technical Report at 3 -4 .
21
Third , VEPCO argues that Petitioners have not provided a basis to dispute the Draft SEIS assertion that the internal events CDF has gone down. 57 The petitioners do not dispute that
the internal events CDF has gone down but they do challenge the lack of conservatism in the
Draft SEIS reliance for external CDF values on extrapolated internal CDF values in light of
external CDF data showing that such an extrapolation is no longer conservatism or reasonable
because those external CDF v alues are so much higher than previously assumed. 58
Fourth , VEPCO argues that in criticizing the Draft SEIS failure to address the accident
potential caused by flooding of the Turbine Building, Mr. Mitman ignored the flooding focused
evaluation (FFE) that was conducted by VEPCO and assessed by the NRC Staff .59 But
VEPCO does not claim that the FFE consisted of or included a risk analysis that would be
consistent with the requirements of NEPA for quantifying or otherwise evaluating the likelihood
that this external flood would pose a significant accident risk to NAPS. Similarly, VEPCO does
not point to an adequate protection finding in the S taff s A ssess ment of the FFE , nor can one be found. 60 Instead, the Staff Assessment uses language not relevant to either a NEPA risk
analysis or an Atomic Energy Act safety evaluation:
A ssuming successful completion of the licensee's regulatory commitments identified in the FE, the North Anna flood protection features described above should be reliable and
57 VEPCO Answer at 2 9 .
58 See Mitman Declaration, ¶¶ 31 to 36 and Mitman Technical Report at 2 - 7.
59 VEPCO Answer at 30 -31 (citing Letter from F. Vega, NRC, to D.G. Stoddard, Innsbruck Technical Center, re: North Anna Power Station, Units 1 and 2 - Staff Assessment of Flooding Focused Evaluation (CAC Nos. MF9916 and MF99017) (Dec. 15, 2017) (ML17325B644)
(Vega Letter) ).
60 Staff Assessment by The Office o f Nuclear Reactor Regulation Related to the Focused Evaluation for North Anna Power Station, Units 1 And 2 a s A Result o f the Reevaluated Flooding Hazard Near -Term Task Force Recommendation 2.1 - Flooding (C AC Nos. M F 9916 and M F 9917: E PID L -2017 -Jld -0046) (Dec. 15, 2015) (ML17325B644).
22
able to maintain key safety functions, as described in Appendix B of NEI 16 -05, Revision
- 1. 61
The FFE does not even attempt to quantify or even qualitatively describe what degree of
likelihood is conveyed by the phrase should be reliable and able to maintain key safety
functions. Nor does the phrase convey any assurance that some minimum level of protection of
public health and safety that will be adequate, as would be required for Atomic Energy Act
compliance. Instead, it is more like a statement of hope. Thus, it is inadequate to satisfy either
NEPA or the Atomic Energy Act. And it gives the lie to the Draft SEIS assertion that:
The NRC completed its review of Fukushima -related information relevant to North Anna 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 . 62
Clearly, the Staff does not believe that North Anna is adequately protected against flooding as
required by the Atomic Energy Act, or it would say so. In the absence of an adequate protection
finding, NEPA requires that the NRC must now quantify the level of risk meant by the
alternative phrase s should be reliable and should be able. Otherwise, by trading on false
assurances that NAPS will operate with measures that provide some minimum level of protection
considered adequate by the NRC to protect their health and safety and thereby will minimize
environmental impacts , the Draft SEIS remains false and grossly misleading.
Fifth , VEPCO claims that Petitioners have not supported their claim that the Draft SEIS
makes misleading statements regarding Fukushima -related information relevant to North
61 Staff Assessment by The Office o f Nuclear Reactor Regulation Related to the Focused Evaluation for North Anna Power Station, Units 1 And 2 a s A Result o f the Reevaluated Flooding Hazard Near -Term Task Force Recommendation 2.1 - Flooding (C AC Nos. M F 9916 and M F 9917: E PID L -2017 -Jld -0046) (Dec. 15, 2015) (ML17325B644).
62 Mitman Declaration, ¶ 12 (quoting Draft SEIS at F -3, lines 10 -13) (emphasis supplied by Mr.
Mitman).
23
Anna. 63 In particular, VEPCO argues that Mr. Mitman fails to explain what is misleading about
the Draft SEIS assertion that the Staffs post -Fukushima review concluded that no further
regulatory actions were needed to ensure adequate protection or compliance wit h regulatory requirements, thereby reconfirming the acceptability of North Annas design basis. 64 In fact,
however, Mr. Mitman explains quite clearly that this sentence contains two misrepresentations
that are significant to the quality and integrity of the Staffs NEPA analysis.
First, as Mr. Mitman asserts the NRCs post -Fukushima closeout letter contains no
reference to adequate protection or a finding of adequate protection. 65 With respect to the
question of whether nuclear reactors - including North Anna -- were operating safely despite the
lessons of the Fukushima accident, all the NRC did was to decide not to revoke, suspend or
modify any license. A decision not to take enforcement action that is unaccompanied by an
adequate protection finding is simply a discretionary decision not to enforce the law - not an
affirmative conclusion that operation will meet the Atomic Energy Acts adequate protectio n
standard.
63 VEPCO Answer at 31 (quoting Petition at 13; Mitman Declaration, ¶ 39; Mitman Technical Report at 2 ).
64 NRC Letter from R.J. Bernardo to D.G. Stoddard, re: North Anna Power Station, Units 1 and 2
- Documentation of Completion of Required Actions Taken in Response to the Lessons Learned from the Fukushima Dai -Ichi Accident (June 9, 2020) (Bernardo Letter).
Thus, While the NRC may have intended the Staff to conduct an adequate protection review when it started the post -Fukushima review process, see Duke Energy Carolinas, L.L.C. (Oconee Nuclear Station, Units 1, 2 and 3), LBP -22 -01, 95 N.R.C. 49, 91 (2022) (cited in VEPCO Answer at 32), the final results of the review strayed far from that Atomic Energy Act -based safety standard.
65 Mitman Declaration, ¶ 39 (citing Bernardo Letter).
24
VEPCO s argument that there is no magic to either the presence or absence of the phrase adequate protection from the NRCs post -Fukushima correspondence 66 is
disingenuous. It is precisely the magic of that phrase that the Draft SEIS trades on -- without a
factual or legal basis -- for the purpose of giving the public a false sense of confidence that the
environmental impacts of continued operation of NAPS will be insignificant. While NEPA does
not set environmental protection standards, it does allow the NRC to rely for findings of no
significant impact on the assumption that licensees will comply with minimum safety standards,
including regulations, design requirements, and l icense terms, in order to ensure adequate
protection of public health and safety under the Atomic Energy Act. In effect, assurances of
Atomic Energy Act compliance are currency that both VEPCO and the NRC may use to obtain
public confidence that operation of nuclear reactors poses risks that are lower than the adequate
protection ceiling and therefore pose little quantitative risk of an accident. And for purposes of
NEPA compliance, the only remaining question is whether there are mitigative measures that would reduce the margi nal risk that remains after adequate protection is achieved. 67 The use of
adequate protection language in the Dr aft SEIS to give unsupported assurances to the pu blic is
egregiously misleading.
The second misleading misrepresentation in the Draft SEIS statement quoted above is
that the post -Fukushima review reconfirm[ed] the a cceptability of the design basis for North
Anna. As Mr. Mitman notes, the NRC Staffs closeout letter contains no representation
whatsoever about whether the design basis for North Anna is acceptable. Instead, [a]t best,
the correspondence confirmed the elements of the design of NAPS regarding seismic and
66 VEPCO Answer at 32 .
67 See Limerick Ecology Action v. NRC, 869 F.2d 719, 7 30 (3rd Cir. 1989) .
25
flooding hazards . 68 A ll that the NRC did was to decide not to change the design basis flood
height or the design basis ground motion . This is a far cry from confirming the adequacy of the
entire design basis to protect public health and safety .
Sixth , VEPCO disputes the significance of Mr. Mitmans observation that the Draft SEIS
takes credit for risk reductions resulting from post -9/11 security measures , at the same time the
NRC deems security to fall outside the scope of the NEPA review .69 VEPCO asserts that this
practical acknowledgement does not affect the Draft SEIS. 70 Yet, VEPCO fails to
acknowledge the Draft SEIS statement that the security -related information does not alter the
conclusions reached in the 2013 LR GEIS regarding the probability -weighted consequences of severe accidents for North Anna SLR. 71 Thus, the Draft SEIS misleadingly implies that the
NRC staff weighed the value of the security improvements in determining that its 2013
environmental findings need not be changed. This misleading implication should be clarified.
Seventh, VEPCO claims that Mr. Mitman disregards a whole section in the 2023 DSEIS (Section F.3.9) regarding uncertainties. 72 But VEPCO does not dispute Mr. Mitmans assertion
that the Draft SEIS never calculates probabilistic uncertainties. 73 As demonstrated in ¶¶ 43 -44
of Mr. Mitmans D eclaration , the Draft SEIS therefore fails to comply with NRC guidance on uncertainties as articulated in NUREG -1855 Rev. 1. 74
68 Mitman Technical Report at 2.
69 VEPCO Answer at 33 -34 .
70 Id .
71 Draft SEIS at F -20.
72 Id. at 34.
73 Mitman Declaration, ¶ 44.
74 Petitioners also note that most of the discussion in Section F.3.9 is not about uncertainty, but about the change in population expected over the SLR period of operation.
26
Eighth, VEPCO states that Mr. Mitman is incorrect in stating that the 2023 DGEIS does not address the environmental impacts of concurrent multi -unit accidents. 75 But VEPCO does
not actually point to any discussion of multi -unit accidents in the Draft SEIS. Instead, VEPCO
points to a response to comments on draft Revision 2 to the License Renewal GEIS, stating that
multi -unit accidents need not be considered because they would result in only modest increases
in severe accident risk. 76 But the revised GEIS for license renewal is not the subject of this
proceeding, and that GEIS has not even been issued in final form. The subject of this proceeding
is the Draft SEIS. And Petitioners have raised a genuine and material dispute with the NRC Staff
and VEPCO on this issue through ¶ 45 of Mr. Mitman s Declaration, and pages 9 - 10 of his
Technical Report as referenced therein.
Ninth , VEPCO argues that Mr. Mitman has no legal basis to criticize the Draft SEIS for failing to disclose the contents of a SAMA audit conducted by the NRC Staff. 77 VEPCO argues
that Mr. Mitman misunderstood the Draft SEIS, and that a summary of the audit is actually available in Reference NRC 202 0 -TN8100 .78 But Mr. Mitman is correct that the Draft SEIS
provides no access to the audit results.
As discussed in the A udit Plan prepared in advance by the NRC St aff, the SAMA audit
included the following significant and detailed inquiries into the SAMA evaluation process, such
as :
Specifically, the staff would like to briefly discuss the probabilistic risk assessment revisions and changes to the risk models since the 40 -to -60 -year license renewal application (focusing on changes made at the plant that have significantly reduced or
75 VEPCO Answer at 34 (citing Mitman Declaration, ¶ 45).
76 Id. (citing N UREG -1437, Re. 2, Generic Environmental Impact Statement for Lice nse Renewal of Nu c lear Plants, Vol. 2 (March 6, 2024) ).
77 VEPCO Answer at 3 5 (citing Mitman Declaration, ¶ 4 6 ).
78 Id.
27
increased risk). 79
And:
Explain how Other external events such as high wind events, external flooding, transportation and nearby facility accidents were considered in the North Anna SAMA New and Significant Evaluation? Discuss recommendations to reduce risk due to eac h of these external events.
Therefore, if external events were included, the absolute value reduction in maximum benefit (MB) of some SAMAs would be larger; however, there is confidence that the methodology of percentage reduction in MB due to internal events results in a conservative analysis. 80
And:
Was there any North Anna or other facility external event SAMAs evaluated? If so, briefly describe. If not, indicate the reason why not.
Describe any North Anna power uprates and impacts on risk at North Anna. What was the change in core damage frequency and large early release frequency as a result of any power uprate.
Did Dominion evaluate all of the items in the 2013 Generic Environmental Impact Statement SAMA Summary Table E -19 (including low power, uncertainties, and the Biological Effects of Ionizing Radiation (BEIR) Report)?
Tables E4.15 -1 and E4.15 -2 of the ER provides the groupings and reduction in maximum benefit of SAMAs. Please be prepared to discuss these results. 81
But Reference NRC 202 0 -TN8100 , the audit summary cited by VEPCO in its Answer , provides
absolutely no information in response to these questions. Instead, the letter merely states:
79 List of Audit Questions, North Anna Power Station, Units 1 and 2, Subsequent License Renewal Application, Review, In -Office Severe Accident Mitigation Alternatives Audit at 1 (Audit Questions) (The Audit Questions are enclosed with a letter from Tran Tam , NRC to Daniel G. Stoddard, Innsbrook Technical Center, re: License Renewal Severe Accident Miti g ation Alternatives Audit Plan Regarding the North Anna Power Station, Unit Numb er s 1 and 2, subsequent License Renewal Application (EPID Number: L -2020 -SLE -0000 (Docket Numbers: 50 -338 and 50339 (Dec. 4, 2020) (ML 20337A022).
80 Id. at 1 -2.
81 Id. at 2.
28
At the conclusion of the audit, the NRC staff summarized the status of the review with Dominion representatives. All of the NRCs questions identified in the audit plan or during the audit were satisfactorily addressed through the conduct of the audit. The staff did not identify any need for request for additional information (RAI). 82
It is inconceivable that such a thorough and searching audit would yield nothing but a
statement that the audit was completed. The Staff must have some summary that would provide
the public with the information gathered in the audit. Such disclosure is re quired by both NEPA
and the Freedom of Information Act (FOIA). Pacific Gas and Electric Co. (Diablo Canyon
Power Plant Independent Spent Fuel Storage Installation, CLI -08 -01, 67 N.R.C. 1, 15 (2008)
(requiring referencing and public disclosure of all docu ments relied on in an NRC environmental
analysis unless they are exempt from disclosure under the FOIA). Therefore, the Draft SEIS is
inadequate because it fails to provide any documentation of the SAMA audit that it relies on.
82 Letter from Robert B. Elliott, NRC to D. Stoddard, Innsbruck Technical Center re: North Anna Power Station, Units 1 and 2 - Summary of the Subsequent License Renewal Severe Accident Mitigation Alternatives Audit (EPID Number L -2020 -SLE -0000) (Dec. 17, 2020 )
(ML20351A388).
29
D. Contention 3 is Admissible.
C ontention ( Draft SEIS fails to address the effects of climate change on accident risk )
asserts:
The Draft SEIS fails to satisfy NEPA or NRC implementing regulation 10 C.F.R. § 51.71 because it does not address the effects of climate change on accident risk. No such discussion can be found in Section 3.11.6.9 or Appendix F. To the contrary, the NRC as serts that the effects of climate change are outside the scope of the NRC staffs SLR review. [citing FEIS at 3 -194]. In support of this assertion, the NRC claims to consider climate -related information in its licensing reviews and ongoing oversight. [ci ting FEIS at 3 -194]. But this is exactly the kind of blindered reasoning that was rejected in State of New York. The fact that NRC plans to address climate change risks in the future does not excuse the agency from addressing the risks as they are understood at this time. Only if the NRC can say that the effects of climate change are so small as to be remote and speculative can it avoid addr essing those effects in its environmental review. [citing 681 F.3d at 478]. And the Executive Branch of the U.S. government, including CEQ and other federal agencies, has stated in no uncertain terms that climate change poses a current and future threat to critical infrastructure that should be addressed now in NEPA reviews and all other decision -making processes. [citing discussion in Section III.C of Hearing Request].
Further, as set forth in Mr. Mitmans Declaration, the Draft SEIS failure to address climate change impacts on accident risk constitutes a significant deficiency because climate change demonstrably affects the frequency and intensity of some external even ts and therefore has the potential to significantly increase accident risks. Moreover, the frequency and intensity of climate change effects are increasing over time. [citing Mitman Declaration, ¶ 48 ].
Mr. Mitman also presents an illustration of how the reasonably foreseeable increase in the frequency and volume of flooding could significantly increase the risk of a serious accident at NAPS. [Citing Mitman Declaration, ¶ 51]. This is just one example of the increased accident risk that can be reasonably expected due to climate change and that should be addressed in the Draft SEIS. 83
In support of Contention 3, Petitioners relied in part on various government reports that identify climate change as a threat to critical infrastructure. 84 Petitioners also relied on State of
83 Hearing Request at 15 -16.
84 See Hearing Request,Section IV.B (Basis Statement) at 15 -16; and Hearing Request,Section III.C (Reasonably Foreseeable Harms Covered by NEPA Include Climate Change), citing guidance by the Presidents Council on Environmental Quality and statements by the Department 30
New York v. NRC, 681 F.3d 471, 476, 482 (D.C. Cir. 2012), holding that reasonable assurance
findings d o not excuse NEPA compliance unless the probability of impacts is so low as to
dismiss the potential consequences of such a failure. 85
On April 11, 2024, Petitioners moved to amend the basis statement for Contention 3 to add
support from a recent report by the Government Accountability Office (GAO) : GAO -106326,
Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change April 2024) (GAO -106326). 86 Petitioners sought to add the following text to
their basis statement:
A recently -issued report by the GAO, GAO -106326, contains that following observations and conclusions that support Petitioners Contention 3:
- Based on available data, GAO -106326 confirms Petitioners assertion that the effects on climate change are significant and reasonably foreseeable for NAPS and other reactors:
o Forty -seven nuclear plants, including North Anna Power Station (NAPS),
are located in areas with exposure to either Category 4 or 5 hurricane storm surge or high flood hazards. NAPS is identified in the report as vulnerable to a high flood hazard.
o Commercial nuclear power plants in the U.S., including NAPS, were licensed and built an average of 42 years ago, and weather patterns and climate -related risks to their safety and operations have changed since their construction.
o The National Climate Assessment (NCA) predicts that climate change will exacerbate flooding and other climate change -related hazards. GAO finds that [a]cross all regions of the United States, extremes, including heat, drought, flooding, wildfire, and hurricanes, are becoming more frequent and/or severe, with a cascade of effects in every part of the country.
of Defense, the Federal Emergency Management Agency, and the Critical Infrastructure Security Agency.
85 See Hearing Request,Section IV.B (Basis Statement) at 15 -16; and Hearing Request,Section III.C (Reasonably Foreseeable Harms Covered by NEPA Include Climate Change) (citing guidance by the Presidents Council on Environmental Quality and statements by the Department of Defense, the Federal Emergency Management Agency, and the Critical Infrastructure Security Agency ).
86 Motion By Beyond Nuclear and the Sierra Club to Amend Their Contention 3 Regarding Failure to Consider Environmental Impacts of Climate Change (April 11, 2024) (Motion to Amend).
31
- GAO -106326 confirms Petitioners assertion that the NRC does not systematically address the effects of climate change on nuclear reactors in license renewal decisions:
o The NRC does not use climate projections data to identify and assess risk in either its initial licensing process or its license renewal process.
o The NRC admits that it does not evaluate the safety significance of climate change in its licensing and license renewal reviews.
- GAO -106326 confirms Petitioners assertion that the NRC did not fully consider the effects of climate change on nuclear reactors in its post -Fukushima safety reviews.
- GAO -106326 demonstrates that NRCs refusal to consider the effects of climate change on reactor accident risks is not based on any technical evaluation of the reasonably foreseeable environmental impacts of climate change:
o NRC officials believe that historical data, rather than climate projections data, are reliable and sufficient for developing an adequate margin of safety for plants.
o But NRC has not conducted an assessment to demonstrate this is the case.
- The NRCs failure to fully address the effects of climate change on reactor safety in its regulatory process raises significant safety and environmental concerns:
Without incorporating the best available information into its licensing and oversight processes, it is unclear whether the safety margins for nuclear power plants established during the licensing period - in most cases over 40 years ago - are adequate to a ddress the risks that climate change poses to plants.
While the GAO Report describes this concern in terms of reactor safety rather than environmental impacts, it is relevant to the NRCs environmental review because accident risks are a lawful subject of that review. Further, as GAO notes, the NRCs statutor y mandate includes protection of the environment. As observed by GAO, however, the only aspect of climate change that is addressed in the NRCs environmental reviews for initial licensing or license renewal is the effect of greenhouse emissions associated with the life cycle of nuclear reactors. 87
The ASLB granted the Motion to Amend on May 7, 2024. 88 Therefore, GAO -106326 is
now part of the basis for Contention 3.
VEPCO and the Staff oppose the admission of Contention 3. VEPCO first argues that
Contention 3 is inadmissible because it is nearly identical to a contention whose admission was
87 Motion to Amend at 3 -6 (footnotes omitted).
88 Memorandum and Order (Granting Joint Intervenors Motion to Amend Contention 3).
32
denied in LBP -24 -03, the ASLBs recent decision in the Turkey Point SLR proceeding. 89 But
Contention 3 differs from the Turkey Point contention in two s ignificant respects:
- First, the Turkey Point ASLB faulted the petitioners for making bare assertions
regarding the significance of climate change impacts without tying them directly to the existing environmental impact analysis for Turkey Point SLR. 90 In contrast, Petitioners
in this proceeding identify and discuss a specific climate change -related accident scenario that was not considered in the Draft SEIS: flooding of the Turbine Building. 91
GAO -106326 provides critical and substantial support for Contention 3 that was not
previously available by documenting an independent U.S. government assessment,
prepared at the behest of the U.S. Congress, that confirms Petitioners assertion that the
effects of climate change on the safety and environmental impacts of nuclear reactor
operation, including accident risks, are significant and reasonably foreseeable for nuclear rea ctors, including NAPS. 92 GAO -106326 also contains specific findings with respect to
NAPS, noting that it is located in areas with exposure to either Category 4 or 5 hurricane storm surge or high flood hazards and is also vulnerable to a high flood hazard . 93
Contrary to VEPCOs characterization, therefore, the GAOs conclusions about NAPS
are not generalized, mere background information, or too broadly cited. 94
89 VEPCO Answer at 37 -38 (citing LBP -24 -3, slip op. at 31 -34).
90 LPB -24 -03, slip op. at 34.
91 Mitman Declaration, ¶¶ 34 -37, 51.
92 Motion to Amend at 4 (citing GAO -106326 at 18 -19 ).
93 GAO -106326 at 18 -19.
94 See Tenn. Valley Auth. (Bellefonte Nuclear Power Plant), LBP -08 -16, 68 N.R.C. 361, 388 (2008); Va. Elec. & Power Co. (North Anna Power Station, Unit 3), LBP -08 -15, 68 N.R.C. 294, 33
GAO -106326 also demonstrates that the NRC does not consider climate change projections in its risk assessments for initial licensing and license renewal. 95 In addition,
GAO -106326 concludes that the NRCs post -Fukushima review - while it considered
historic flooding, storm and hurricane risks - did not consider how those risks could increase over time due to climate change. 96 Further, the NRCs refusal to consider the
effects of climate change on reactor accident risks in its licensing decisions is not based on any technical evaluation of whether those effects are reasonably foreseeable. 97
Therefore, as a government -sponsored study that criticizes the NRCs failure to consider
climate change in licensing decisions, and that identifies NAPS as a climate change -vulnerable
nuclear plant, GAO -106326 provides strong and specific support for Petit ioners contention that
NEPA, CEQ guidance, and judicial precedents require the consideration of the effects of climate
change on accident risk in the SLR review for North Anna because they are reasonably
foreseeable environmental effects of operating th e reactors during their SLR term. 98
VEPCO and the Staff argue that Petitioners have failed to identify any specific risk evaluation in the Draft SEIS that is inadequate for its failure to address climate change impacts. 99
But Mr. Mitman identifies the portions of the Draft SEIS that should address climate change
impacts on accident risk: Section 3.11.6.9 and Appendix F, which address the environmental
312 n. 82 (2008); Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant and Big Rock Point Site), CLI -22 -08, 96 N.R.C. 1, 100 (2022), respectively (cited in VEPCOs Answer at 47).
95 Motion to Amend at 5 (citing GAO -106326 at 34 -36 ).
96 Motion to Amend at 5 (citing GAO -106326 at 36 ).
97 Motion to Amend at 5 (citing GAO -106326 at 36 and 40 ).
98 See State of New York, 681 F.3d at 477 (citing 40 C.F.R. §§ 1508.8, 1508.18; Dept of Transp.
- v. Public Citizen v. NRC, 541 U.S. 752, 763 (2004)).
99 VEPCO Answer at 38, NRC Answer at 35, 36 -37.
34
impacts of design -basis accidents and severe accidents. 100 Mr. Mitman also provides a detailed
criticism of Appendix F for failing to address increase the effects of increased local intense
precipitation (LIP) on flooding hazard to the Turbine Building. 101 Thus, VEPCOs claim is
without basis.
VEPCO next argues that Postulated Accidents (whether caused by climatological
phenomena or otherwise) are fully evaluated in the 2023 DEIS. 102 As Petitioners have
demonstrated, however, this assertion is factually incorrect. Despite multiple references to
climate change in the Draft SEIS (VEPCO counts 77), 103 it is impossible to find any analysis of
how the increased frequency of events such as floods and storms due to climate change will
affect accident risk during the SLR term. And VEPCO does not give one example of such a
discussion. The only discussion of climate change in the Draft SEIS relates to carbon emissions
from the reactors. While the Staff argues that this is the only legitimate climate change -related
subject matter of the Draft SEIS 104 , their logic is difficult to fathom. As the ASLB recognized in
LBP -24 -03, environmental impacts of reactor accidents caused by external events constitute a legitimate subject of NEPA analysis. 105
Both VEPCO and the NRC Staff also assert that the manner in which the NRC responds
to the effects of climate change on accident risk is not subject to this NEPA proceeding because
100 Mitman Declaration, ¶ 48.
101 Mitman Declaration, ¶¶ 33 -36, 51.
102 VEPCO Answer at 41 (citing Draft SEIS, App. F).
103 Id .
104 Staff Answer at 38.
105 Id., slip op. at 33 (citing Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI -11 -11, 74 N.R.C. 427, 442 -43 (2011)).
35
it constitutes a safety issue, not an environmental issue. 106 But NEPA contains no exception for
the Atomic Energy Act. 107 And NEPAs concern for the quality of the human environment
encompasses the public health and safety concerns of the Atomic Energy Act. 108 Thus, the NRC
must comply with NEPAs independent procedural obligations with respect to all reasonably
foreseeable and potentially significant environmental impacts of climate change on accident risks
posed by continued operation of NAPS.
106 VEPCO Answer at 40 -41, NRC Staff Answer at 35.
107 Calvert Cliffs Coordinating Comm. v. AEC, 449 F.2d 1109, 1125 (D.C. Cir. 1971) (agencies must comply with NEPA unless their obligations are mutually exclusive).
108 For instance, 42 U.S.C. § 4331(b) establishes the continuing responsibility of the Federal Government to assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surrounding. See also Hearing Request at 5 (citing Citizens for Safe Power v.
NRC, 524 F.2d 1291, 1299 (D.C. Cir. 1975); Limerick Ecology Action, 869 F.2d at 729 -31 , for the proposition that the concerns of NEPA and the Atomic Energy Act overlap and yet impose independent procedural obligations).
For insta nce, VEPCO contends that the effects of climate change are not covered by the license renewal -related safety review, because they relate only to the current licensing basis (CLB) and not the license renewal term . VEPCO Answer at 42, 46. While the Atomic Energy Act may provide the NRC with discretion to separately compartmentalize different types of safety reviews for current and renewed operation, NEPA provides no such discretion. Instead, the NRC must consider th e environmental impacts of relicensing NAPS to the fullest extent. Calvert Cliffs Coordinating Comm. ,449 F.2d at 1125 (agencies must comply with NEPA to the fullest extent. ).
36
III. CONCLUSION
For the foregoing reasons, VEPCOs and the NRC Staffs arguments in opposition to admission
of Petitioners contentions lack merit. Therefore, Petitioners Hearing Request and Petition to
Intervene should be granted.
Respectfully submitted,
__/signed electronically by/___
Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240 -393 -9285 dcurran@harmoncurran.com
Ma y 20 , 2024
37
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
Virginia Electric Power Co. ) Docket Nos. 50 -338/339 SLR -2 North Anna Power Station, Units 1 and 2 )
___________________________________ )
CERTIFICATE OF SERVICE
I certify that on May 20 , 2024 , I posted REPLY BY BEYOND NUCLEAR AND THE SIERRA CLUB TO OPPOSITIONS TO THEIR HEARING REQUEST AND PETITION TO INTERVENE on the NRCs Electronic Information Exchange.
___/signed electronically by/__
Paul Gunter
38