ML24150A384

NRC Staff Response to the Atomic Safety and Licensing Boards Memorandum and Order of May 21, 2024

ML24150A384
Person / Time
Site:	North Anna
Issue date:	05/29/2024
From:	Sherwin Turk NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 57035, 50-338-SLR-2, 50-339-SLR-2
Download: ML24150A384 (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 (North Anna Power Station, Units 1 and 2)

Docket Nos. 50-338-SLR-2 and 50-339-SLR-2 NRC STAFF RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARDS MEMORANDUM AND ORDER OF MAY 21, 2024 On May 21, 2024, the Atomic Safety and Licensing Board (Board) issued a Memorandum and Order (Request to Address Contention Admissibility and Impacts of Final Rule Applying Generic Environmental Impact Statement to Subsequent License Renewal Period) (Order), in which it directed the participants in this proceeding to respond to several questions it posed regarding the impact of the Commissions recent adoption of a final rule revising 10 C.F.R. Part 51 and a revised Generic Environmental Impact Statement (GEIS) for license renewal.1 Specifically, the Board directed each party to file a Table of Legal and Factual Authorities it considers relevant to the Boards questions and to be prepared to address those matters in the oral argument scheduled for June 3, 2024.

In accordance with the Boards Order, the NRC Staff herewith provides the following Table in response to the Boards questions. In the following Table, the Staff includes a brief discussion of the applicability of each of the cited authorities.

1 Order at 2, citing (1) Staff Requirement Memorandum from Carrie M. Safford, NRC Secretary, to Raymond V. Furstenau, Acting Executive Director for Operations, NRC, at 1 (May 16, 2024) (ADAMS Accession No. ML24137A164) (SRM); and (2) NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report, Vol. 1 (Rev. 2 Feb. 2024) (ADAMS Accession No. ML23201A224) (2024 GEIS).

No.

Question NRC Staffs Response Topic 1 (a) The 2024 Rule language adopted by the Commission states that the rule will become effective 30 days after publication in the Federal Register. When is publication in the Federal Register anticipated?

The NRC Staff currently anticipates that a Notice of issuance of the final rule will be published in the Federal Register in or about the month of August 2024. See North Anna site-specific Draft environmental impact statement (EIS), Appendix G, at G-2; https://www.nrc.gov/reading-rm/doc-collections/rulemaking-ruleforum/active/ruledetails.html?id=96.

(b) In this interim period after the 2024 Rule has been approved by the Commission but before it is effective, how should the Board proceed with respect to Petitioners contentions?

The Staff submits that the Board should determine the admissibility of the Petitioners contentions, challenging the Staffs site-specific draft EIS, in accordance with the Commissions decision in CLI-22-3 and 10 C.F.R. § 2.309(f). The Board should not defer consideration of the pending contentions, as that would unnecessarily delay the proceeding in contravention of the Commissions stated interest in assuring the conduct of an efficient and expeditious adjudicatory process. See Policy Statement on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 19, 24 (1998) (noting that the Commission's objectives [in part] are to provide a fair hearing process, [and] to avoid unnecessary delays in the NRC's review and hearing processes, and reiterating the Commissions longstanding commitment to the expeditious completion of adjudicatory proceedings while still ensuring that hearings are fair and produce an adequate record for decision). The issuance of the final Rule and the date of its effectiveness would not affect a Board decision on the admissibility of the Petitioners currently pending contentions.

(c) The Board also notes that the deadline to comply with the 2024 Rule is one year after the 2024 Rules publication in the Federal Register. Is this one-year deadline of any consequence to this proceeding? Why or why not?

No. The deadline for compliance with the 2024 Rule is of no consequence to this proceeding. In CLI-22-3, the Commission afforded the impacted subsequent license renewal (SLR) applicants a choice: an applicant could either (1) await issuance of the final rule and revised GEIS and demonstrate compliance therewith, or (2) submit a site-specific environmental report (ER) and request that the environmental impacts of its SLR application (SLRA) be evaluated on that basis. Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), CLI-22-3, 95 NRC.40, 41 (2022).

The North Anna SLR applicant elected to follow the second approach afforded by the Commission in CLI-22-3, and submitted a site-specific supplemental Environmental Report (ER); the Staff then evaluated the Applicants supplemental ER in its site-specific draft EIS. The Staff will issue a site-specific final EIS upon completing its consideration of comments submitted on the draft EIS. The Staff currently expects to issue the final EIS in July 2024. See https://www.nrc.gov/reactors/operating/licensi ng/renewal/applications/north-anna-1 subsequent.html (last accessed May 24, 2024). If the Staff identifies any new and significant information in the final Rule or elsewhere, the Commissions regulations provide a path for the Staff to issue a supplement to the site-specific draft or final EIS, as set out in 10 C.F.R. §§ 51.72(a) and 51.92(a).

The deadline to comply with the 2024 Rule is of no consequence to completion of the site-specific evaluation or to the Boards adjudication of the pending contentions in this proceeding, because the pending contentions challenge the site-specific draft EIS and can be resolved now without needing to address the contentions admissibility under the final Rule and the 2024 GEIS. See Policy Statement on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC at 19 & 24.

Topic 2 (a) In evaluating the environmental impacts associated with the renewal of a license for a nuclear power plant, 10 C.F.R. § 51.95(c)(4) provides that the NRC staff, adjudicatory officers, and

[the] Commission shall integrate the conclusions in the [GEIS] for issues designated as Category 1 with information developed for those Category 2 issues applicable to the plant under 10 CFR § 53.51(c)(3)(ii) and any new and significant information. Before this Board can consider the admissibility of Petitioners contentions in this proceeding, must the NRC Staff first incorporate the provisions of the 2024 Rule and the 2024 GEIS into its December 2023 site-specific EIS?

No. As stated above, in CLI-22-3, the Commission afforded SLR applicants an opportunity to request that the environmental impacts of their applications be evaluated on a site-specific basis. Oconee, CLI-22-3, 95 NRC at 41.

The NRC Staffs draft EIS followed the site-specific approach, and that site-specific evaluation is the subject of Petitioners pending contentions. A ruling on the admissibility of those contentions, challenging the site-specific draft EIS, should be rendered without regard to how the contentions might be assessed under the Final rule and the 2024 GEIS, as the contentions do not challenge the adequacy of the North Anna SLRA under the final rule and 2024 GEIS. Nor should the Board delay its consideration of the pending contentions, to afford Petitioners an opportunity to file additional contentions based upon the issuance of the final Rule, because the final Rule and 2024 GEIS are not yet in effect, and delaying the resolution of these contentions to await future developments would cause unnecessary delay, contrary to Commission policy. See Policy Statement on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC at 19 & 24; Virginia Electric and Power Co. (North Anna Power Station, Unit 3), CLI-12-14, 75 NRC 692, 700 (2012)

(Board erred in holding proceeding open following the resolution of the last contention to await new information that might trigger new contentions, since a motion to reopen could later be filed to admit a new contention), citing Massachusetts v. NRC, 924 F.2d 311, 334 (D.C. Cir. 1990) (an unfettered ability to file a late contention may significantly undermine the efficiency of a proceeding even if the contention is based on newly discovered information.).

Even if the Petitioners decide to file a motion to admit new or amended contentions, those motions (and any petition for waiver of the final Rule and/or motion to reopen) can be addressed at that time, regardless of the Boards disposition of the pending contentions.

The Staff notes that it did not incorporate the provisions of the 2024 Rule and the 2024 GEIS into its December 2023 site-specific EIS, but it did provide an analysis of how its site-specific evaluation compares to the determinations in the proposed Rule and the revised (2024) GEIS. See Draft EIS, Appendix G. As noted in Appendix G, after finalization of the Rule, the NRC would have to consider and analyze in its initial license renewal and SLR environmental reviews, any potential significant impacts associated with the Category 2 issues and, to the extent that there is any new and significant information, the potential significant impacts associated with the Category 1 issues. In order to account for the proposed rule and 2023 LR GEIS and the possibility that the proposed rule and revised LR GEIS may be finalized in 2024, before a final determination is reached on the North Anna SLR application, the NRC staff analyzes in this appendix the new and revised environmental issues as they may apply to SLR for North Anna. Table G-1 lists the new and revised environmental issues that would apply to North Anna SLR. The sections that follow discuss how the NRC staff addressed each of these new and revised issues in this site-specific EIS and explains the staffs conclusion that this EIS covers all the issues in the proposed rule and 2023 LR GEIS. Id. at G G-3.

(b) If so, when will the NRC Staff complete these tasks?

Not applicable; as stated above, the NRC Staff need not incorporate the provisions of the 2024 Rule and the 2024 GEIS into its December 2023 site-specific EIS, and the Staff does not currently plan to do so.

Further, as stated in response to Question 2(a) above, the Staff provided an evaluation of how its site-specific evaluation compares with the draft rule and draft revised GEIS, in Appendix G of the site-specific draft EIS.

As stated above, the Staff is not required to update the site-specific draft EIS to address the final Rule and the 2024 GEIS since they are not yet in effect. Accordingly, at this time the NRC Staff does not intend to incorporate the provisions of the 2024 Rule and the 2024 GEIS into its December 2023 site-specific EIS as stated in Question 2(a).

Further, the Staff does not expect to set aside its existing site-specific evaluation and to replace it with a new evaluation based solely upon the final Rule and the 2024 GEIS. In the event that the final Rule and 2024 GEIS become effective prior to issuance of a decision on the North Anna SLR application, the Staff will consider whether to address those matters in the final EIS, in a supplement to the draft or final EIS, or in the Record of Decision, as appropriate.

Topic 3 Topic 3a Previously, the Commission has held that the admissibility of Category 1 license renewal contentions is to be governed by the applicable GEIS and associated updates to Table B-1. See Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),

CLI-12-19, 76 NRC 377, 385-87 (2012)

(indicating that, notwithstanding recognized opportunity in license renewal cases to contest matters involving new and significant environmental information, challenges to Table B-1 Category 1 issues require that petitioner submit a 10 C.F.R. § 2.335(b) waiver petition). As set forth immediately below, two of the Petitioners contentions appear to implicate Category 1 issues under the 2024 Rule.

In a previous contention admissibility proceeding involving the North Anna facility, Petitioners filed both a contention and a 10 C.F.R. § 2.335(b) waiver petition challenging the applicants Environmental Report for failing "to consider the environmental implications of an earthquake in 2011 that exceeded the design basis for North Anna. In that proceeding, North Anna, LBP-21-4, 93 NRC 179, 188 (2021), a previous licensing board denied both the contentions admissibility pursuant to 10 C.F.R. § 2.309(f)(1) and the associated waiver petition.

Petitioners appeal of that licensing boards decision in LBP-21-4 was dismissed without prejudice by the Commission in North Anna, CLI-22-3, 95 NRC 40, 41-42, 43 (2022), and Petitioners were invited to re-file this contention and to submit any other new or amended contentions that challenged the NRC Staffs revised site-specific environmental impact statement.

Nevertheless, Petitioners Contention 1 in this proceeding appears to be substantially the same contention that they proffered in LBP-21-4 and the just-No. The Board can and should adjudicate the admissibility of the Petitioners current contentions without delaying its decision to afford the Petitioners an opportunity to submit new or amended contentions and/or a waiver petition based on the final Rule.

Policy Statement on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC at 19 & 24; North Anna, CLI-12-14, 75 NRC at 700.

The NRC Staff evaluated postulated accidents (design basis accidents and severe accidents) on a site-specific basis in the draft EIS. The Petitioners filed contentions challenging the Staffs site-specific draft EIS. Those contentions were addressed by the Applicant and Staff in their Answers to the Petition, and the admissibility of those contentions should be determined by the Board at this time.

The final Rule and 2024 GEIS evaluate design basis accidents and severe accidents as generic Category 1 issues. If the Petitioners elect to file new or amended contentions to challenge the application of the final Rule, they would need to establish that the final Rule applies and that special circumstances exist (e.g., new and significant information), such that the Rule should be waived in this proceeding (possibly with a motion to reopen the proceeding, if necessary). See, e.g., Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2) CLI-13-07, 78 NRC 199, 211 (2013). Regardless of whether the Petitioners file new or amended contentions in the future, their existing contentions (challenging the site-specific draft EIS) should be adjudicated now. See Policy Statement on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC at 19 & 24; North Anna, CLI-12-14, 75 NRC at 700.

In addition, the North Anna site-specific Draft EIS considered the effect of the proposed Rule and 2024 GEIS on the Staffs severe accident analysis. A stated in Appendix G of the draft EIS, under the final Rule, the issue adopted 2024 Rule will retain the 2013 GEISs designation of Design basis accidents as a Table B-1 Category 1 issue during the SLR period.

Accordingly, before this Board can adjudicate the admissibility of Contention 1, should Petitioners be afforded the opportunity to submit an amended contention, as appropriate, and a waiver petition under section 2.335(b), to assert this Design-basis accident claim once the 2024 Rule becomes effective?

of severe accidents will be resolved generically for the vast majority, if not all, expected license renewal applicants because the applicants who will likely reference the LR GEIS have previously completed a SAMA analysis. The Staff noted that, [a]s discussed in Appendix F of this EIS, an analysis of SAMAs was performed for North Anna and evaluated by the NRC staff at the time of initial license renewal (NRC 2002-TN8296). In Section 3.11.6.9 and Appendix F of this EIS, the NRC staff evaluated the significance of new information related to the plant-specific SAMA analysis. Therefore, the environmental issue of severe accidents is addressed in this EIS. North Anna Draft EIS, Appendix G, at G-6.

Topic 3b Although CLI-22-2 and CLI-22-3 eliminated the applicability of the 2013 GEIS to Petitioners contentions here, it is nevertheless significant that the 2024 Rule makes a change with respect to Severe accidents. Under the 2013 GEIS, Severe accidents were classified as a Category 2 issue insofar as a petitioner challenged alternatives to mitigate severe accidents where the facility had not previously performed a severe accident mitigation alternatives analysis. However, it now appears that the 2024 Rule will direct that Table B-1 be updated to reclassify Severe accidents as a Category 1 issue.

Accordingly, before this Board can adjudicate the admissibility of Contention 2, should Petitioners be afforded the opportunity to submit an amended contention, as appropriate, and a waiver petition under section 2.335(b), to assert their Severe accident claim once the 2024 Rule becomes effective?

No. As stated in response to Topic 3a above, the Board can and should adjudicate the admissibility of the Petitioners current contentions without delaying its decision to afford the Petitioners an opportunity to submit new or amended contentions and/or a waiver petition based on the final Rule.

Policy Statement on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC at 19 & 24; North Anna, CLI-12-14, 75 NRC at 700.

The Petitioners chose to file contentions challenging the Staffs site-specific draft EIS.

Those contentions were addressed by the Applicant and Staff in their Answers to the Petition, and the admissibility of those contentions should be determined by the Board at this time.

If the Petitioners elect to file new or amended contentions and a petition for waiver of the final Rule, or to challenge the Staffs final EIS, issuance of a Board decision on the pending contentions would not prevent them from filing such a motion or petition (possibly along with a motion to reopen the proceeding, if necessary, to consider those filings). Those filings would be addressed then by the Board or the Commission, depending on the status of the proceeding at that time.

Topic 4 The 2024 Rule creates a new Table B-1 Category 2 issue, Climate change impacts on environmental resources that had not previously been delineated as an environmental issue in the 2013 GEIS.

(a) With this change, does the issue raised in Contention 3 fall within this Table B-1 Category 2 issue?

No. Contention 3 challenges the Staffs SAMA analysis with respect to its treatment of the impact of climate change on the probability of occurrence of an accident.

Under the final Rule, that is a Category 1 issue which could not be challenged without a waiver of the final Rule with a showing of special circumstances (e.g., the existence of new and significant information). Thus, if Contention 3 were to be admitted by the Board, upon implementation of the final Rule, the contention would properly be viewed to be an impermissible challenge to the final Rule absent a waiver of the Rule.

Indeed, the 2024 GEIS considered comments (including Mr. Mitmans views) concerning the effect of climate change on accident risk, and (a) determined that this issue is outside the scope of license renewal and is addressed through the reactor oversight process and compliance with the NRCs safety regulations, and (b) nonetheless considered the comments, and concluded that existing and updated information show continued large margins to the 95 percent UCB [upper confidence bound] from the 1996 LR GEIS and support the conclusion that the impact of severe accidents is SMALL. The information considered by the NRC staff reflected updated information about site-specific external events and hazards. The large margin can account for a variety of uncertainties, including imperfectly quantified factors in the risk analyses. 2024 GEIS, Appendix A, Comment A.2.13.26 (Comments Regarding LR GEIS Appendix E, General - Climate Change), at A-220 - A-221.

The separate issue of climate change impacts on environmental resources is identified as a new Category 2 issue in the final Rule and 2024 GEIS. This issue considers the impacts of climate change on environmental resources that are affected by continued nuclear power plant operations and refurbishment during the license renewal term. This issue was evaluated by the Staff in the December 2023 draft EIS for North Anna SLR on a site-specific basis. See Appendix G at G-7 (citing Section 3.14.3 of the Draft EIS). The final Rule would require this issue to be evaluated in the same manner, i.e., as a Category 2 (site-specific) issue. This issue is not raised within the scope of Petitioners Contention 3. Thus, issuance of the final Rule would not affect the Staffs evaluation of this issue or the Boards resolution of Contention 3.

The Staff notes that a further issue related to climate change (Greenhouse Gas Impacts on Climate Change) was determined to be a generic Category 1 issue in the 2024 GEIS.

That issue is not within the scope of Contention 3.

(b) On the other hand, if Contention 3 does not fall within this Category 2 issue, does it fall within any other Table B-1 issue as defined under the 2024 Rule?

As stated above, upon issuance of the final Rule, Contention 3 would present a challenge to the final Rules Category 1 issue regarding the consequences of severe accidents.

(c) Finally, if Contention 3 does not fall within any Table B-1 issue at all, does the 2024 Rule affect in any other way this Boards adjudication of Contention 3 in this proceeding?

Not applicable. As stated above, Contention 3 challenges the SAMA analysis, which is a Category 1 issue in the final Rule.

However, because the final Rule is not yet effective, the Rule does not affect the Boards current adjudication of Contention 3 (challenging the site-specific draft EIS) in this proceeding.

The NRC Staff appreciates having been afforded the opportunity to address these questions in advance of the oral argument scheduled for June 3, 2024.

Respectfully submitted,

/Signed (electronically) by/

Sherwin E. Turk Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O14-A44 Washington, DC 20555 Telephone: (301) 287-9194 E-mail: Sherwin.Turk@nrc.gov Dated at Rockville, Maryland this 29th day of May 2024 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of VIRGINIA ELECTRIC AND POWER COMPANY (North Anna Power Station, Units 1 and 2)

Docket No.

Docket Nos. 50-338-SLR-2 50-339-SLR-2 Certificate of Service Pursuant to 10 C.F.R. §2.305, I hereby certify that copies of the foregoing NRC STAFF RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARDS MEMORANDUM AND ORDER OF MAY 21, 2024, dated May 29, 2024, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 29th day of May, 2024.

/Signed (electronically) by/

Sherwin E. Turk Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: 301-287-9194 E-mail: Sherwin.Turk@nrc.gov Dated at Rockville, MD this 29th day of May, 2024