ML24152A204
| ML24152A204 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 05/31/2024 |
| From: | Bernstein K, Mary Woods, Megan Wright NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57036, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2 | |
| Download: ML24152A204 (0) | |
Text
May 31, 2024
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
In the Matter of
DUKE ENERGY CAROLINAS, LLC Docket Nos. 50- 269-SLR-2, 50 -270- SLR-2, (Oconee Nuclear Station, Units 1, 2, and 3) 50 -287-SLR-2
NRC STAFF ANSWER TO HEARING REQUEST AND PETITION TO INTERVENE BY BEYOND NUCLEAR AND SIERRA CLUB
Mary Frances Woods Megan A. Wright Kevin D. Bernstein Counsel for NRC Staff
TABLE OF CONTENTS
Table of Contents...................................................................................................................- 0 -
Introduction............................................................................................................................- 2 -
Background............................................................................................................................- 2 -
Discussion.............................................................................................................................- 8 -
I. Standing.........................................................................................................................- 9 -
A. The Requirements for Standing............................................................................... - 9 -
B. Beyond Nuclear and the Sierra Club Have Demonstrated Standing....................... - 11 -
II. Contention Admissibility................................................................................................ - 13 -
A. Contention Admissibility Requirements...................................................................- 13 -
B. Requirements for Environmental Review of License Renewal Applications............- 16 -
III. The Petitioners Contentions Do Not Meet the Contention Admissibility Requirements in 10 C.F.R. § 2.309(f)(1)........................................................................ - 18 -
A. Contention 1 is inadmissible because it does not demonstrate that the issues raised are within the scope of the proceeding or demonstrate that the issues raised are material to the findings the NRC must make in a license renewal application..............................................................................................................- 18 -
B. Contention 2 is inadmissible because it does not show that a genuine dispute exists on a material issue of law or fact..................................................... - 30 -
C. Contention 3 is inadmissible because it does not raise issues that are within the scope of the proceeding or show a genuine dispute exists on a material issue of law or fact................................................................................................. - 39 -
Conclusion...........................................................................................................................- 45 -
May 31, 2024
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
In the Matter of
DUKE ENERGY CAROLINAS, LLC Docket Nos. 50- 269-SLR-2, 50 -270- SLR-2, (Oconee Nuclear Station, Units 1, 2, and 3) 50 -287-SLR-2
NRC STAFF ANSWER TO HEARING REQUEST AND PETITION TO INTERVENE BY BEYOND NUCLEAR AND SIERRA CLUB
INTRODU CTION
Pursuant to 10 C.F.R. § 2.309(i) and the Licensing Boards May 8, 2024, Initial
Prehearing Order, the U.S. Nuclear Regulatory Commission Staff (NRC Staff or Staff) files this
answer opposing the hearing request filed by Beyond Nuclear, Inc. and the Sierra Club, Inc.
(Petitioners) because they do not propose at least one admissible contention. Specifically, the
Petitioners (a) fail to meet the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1);
(b) raise issues that they previously raised in a prior challenge to this license renewal
application before another Licensing Board, which rejected them; and (c) do not contest the new
information presented in the Staffs 2024 draft site-specific environmental impact statement, and
are therefore outside the scope prescribed by the Commission in this proceeding. Accordingly,
the Petition should be denied.
BACKGROUND
The Oconee Station Units are pressurized-water reactors designed by Babcock and
Wilcox Company and are located on the shore of Lake Keowee in Oconee County, South
Carolina, approximately 8 miles (13 km) northeast of Seneca.1 The current renewed operating
licenses for Oconee Station Units 1, 2, and 3 expire at midnight on February 6, 2033, October 6,
2033, and July 19, 2034, respectively.2 By letter dated June 7, 2021, Duke Energy applied for
renewed licenses for Oconee Station for an additional 20 years, which would expire on
February 6, 2053, for Unit 1, October 6, 2053, for Unit 2, and July 19, 2054, for Unit 3. 3
Petitioners 2024 Hearing Request and Petition to Intervene
In their 2024 hearing petition, as corrected4, Petitioners present three contentions that
challenge Duke Energy Carolinas, LLCs (Duke Energy or Applicant) application for subsequent
license renewal (SLR) of Oconee Station, as supplemented in November 2022.5 More
specifically, Petitioners challenge the accident and various risk analyses discussed in the Staffs
evaluation of environmental impacts set forth in the February 2024 NUREG-1437,
Supplement 2, Second Renewal (draft site-specific Environmental Impact Statement (DEIS)) for
Oconee Station6. As discussed below, while the Petitioners have established standing to
intervene, they fail to demonstrate that at least one of their contentions is admissible for
litigation in this proceeding.
By way of background regarding the initial proceeding on the Oconee Station
subsequent license renewal ( SLR) application, on July 28, 2021, the NRC published a notice of
1 Letter from Steven M. Snider, Site Vice President, Oconee Nuclear Station, to NRC, Application for Subsequent Renewed Operating Licenses (June 7, 2021) (ADAMS Accession No. ML21158A194) (SLRA).
(Enclosures not cited). See SLRA at 1-9.
2 See id. at 1-1.
3 See id. at 1-5.
4 See (1) Hearing Request and Petition to Intervene by Beyond Nuclear and Sierra Club (Apr. 29, 2024)
(ML24120A381) (2024 Hearing Petition); (2) Hearing Request and Petition to Intervene by Beyond Nuclear and Sierra Club (corrected May 1, 2024) (ML24122C623) (2024 Corrected Petition); and (3) NRC Relicensing Crisis at Oconee Nuclear Station: Stop Duke from Sending Safety Over the Jocassee Dam, Updated Analysis of Neglected Safety, Environmental and Climate Change Risks, Jeffrey T. Mitman (corrected May 15, 2024) (ML24136A251) (2024 Corrected Mitman Report).
5 See Subsequent License Renewal-Appendix E Environmental Report Supplement 2, (Nov. 2022)
(ML22311A036) (2022 site-specific ER supplement).
6 NUREG-1437, draft Site-Specific Environmental Impact Statement, Supplement 2, Second Renewal, Draft Report for Comment, (Feb. 2024) (ML24033A298) (DEIS).
opportunity to request a hearing and to petition for leave to intervene in the Oconee Station SLR
proceeding. 7 On September 27, 2021, Petitioners submitted a timely petition, which asserted
that a hearing should be granted on three proposed contentions challenging Duke Energys SLR
application. 8 Petitioners overall contended that Duke Energys risk analysis underestimated the
potential for a core melt accident and containment failure as a result of a random failure of the
Jocassee Dam 9, located about 11 miles upstream from the Oconee Station facility.10 Petitioners
also alleged that Duke Energy failed to address the significance of a prior NRC Staff review
wherein the Staff stated that a Jocassee Dam failure constituted an adequate protection issue at
Oconee Station that needed to be addressed.11 The St a ff and applicant opposed the hearing
petition and the Licensing Board held oral argument on contention admissibility. 12 On
February 11, 2022, the Licensing Board issued LBP 1. 13
In LBP-22-1, the Licensing Board set forth with detail the history of the regulatory
concern regarding a breach of the Jocassee Dam.14 The Licensing Board found, inter alia, that
Petitioners did not engage with the full extent of the regulatory history regarding the Jocassee
7 Duke Energy Carolinas, LLC; Duke Energy; Oconee Nuclear Station, Units 1, 2, and 3, 86 Fed. Reg.
40,662 (July 28, 2021).
8 Hearing Request and Petition to Intervene By Beyond Nuclear And Sierra Club and Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.53(c)(3)(ii)(L), 51.71(d), 51.95(c)(1), and 10 C.F.R. Part 51 Subpart A, Appendix B, Table B-1 to Allow Consideration of Category 1 NEPA Issues (Sept. 27, 2021)
(ML21270A250) (2021 Petition).
9 See, e.g., 2021 Petition at 2-3.
10 See S L R A at 1-9.
11 See, e.g., 2021 Petition at 2-3 (citations omitted).
12 Following the November 16, 2021, initial prehearing conference, the initial Licensing Board issued a Memorandum and Order (Request to Provide Post-Initial Prehearing Conference Information) (Nov. 22, 2021) (ML21326A114) inquiring about statements in the January 2011 Nuclear Regulatory Commission (NRC) Staff assessment regarding external flooding concerns at the Oconee facility. The NRC Staff and the applicant provided responses to this Order on November 30, 2021 (ML21334A306), and November 29, 2021 (ML21333A055), respectively. Petitioners also responded on December 7, 2021 (ML21341B456).
13 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), LBP 1, 95 NRC 49 (2022),
dismissed, sua sponte, without prejudice, Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), CLI 3, 95 NRC 40 (2022).
14 See Oconee, LBP-22-1, 95 NRC at 65-77.
Dam, and that they failed to acknowledge and discuss the significance of Duke Energys
evaluations and NRC findings that occurred after the 2011 Safety Evaluation. 15 As such, the
Licensing Board determined that Petitioners issues with the Staffs treatment of the Jocassee
Dam analysis were taken out of context and imbued with a significance that was unwarranted,
given the full regulatory picture.16 The Licensing Board found that the Petitioners failed to raise a
significant environmental issue that would justify adjudicatory consideration and, as such, the
Licensing Board denied the petition and terminated the proceeding.17
The Commissions February 2022 Orders
After the Licensing Board dismissed Petitioners contentions in LBP 1, on
February 24, 2022, the Commission issued two decisions regarding the environmental impacts
of subsequent license renewal. First, in the Turkey Point proceeding, the Commission issued
CLI 2. 18 In that decision, the Commission reversed its previous decision in CLI 3, 19 and
held that 10 C.F.R. § 51.53(c)(3) does not apply to SLR applications; that the 2013 Generic
Environmental Impact Statement (2013 LR GEIS)20 and Table B-1 to 10 C.F.R. Part 51, Appendix
15 See, e.g., Oconee, LBP 1, 95 NRC at86, 93.
16 See id. at 91-93.
17 The Licensing Board evaluated the Petitioners proffered contentions using the 10 C.F.R. § 2.335 waiver requirements because Petitioners contentions challenged Category 1 issues in Appendix B, Table B-1, which is barred without first being granted a waiver by the Licensing Board. Because the Licensing Board found that Petitioners had not met the requirements for a waiver, it determined that it did not need to consider the admissibility of the contentions under 10 C.F.R. § 2.309(f)(1).
18 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI 2, 95 NRC 26 (2022) (majority decision).
19 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI 3, 91 NRC 133 (2020), revd, CLI 2, 95 NRC 26 (2022). In CLI 3, the Commission held that (1) the environmental impacts of SLR were addressed by the Generic Environmental Impact Statement for License Renewal of Nuclear Power PlantsFinal Report, NUREG -1437, rev. 1, vol. 1 (June 2013) (ML13106A241) (2013 LR GEIS) and 10 CFR Part 51, Appendix B, Table B-1, and that the Staff may rely on the 2013 LR GEIS and Appendix B, Table B-1, when evaluating the environmental impacts of Category 1 issues for SLR, absent new and significant information that would change those conclusions, and (2) any challenge to Category 1 issues would require the filing of a rule waiver petition). Commissioner Baran dissented from the decision.
See id. at 159-65.
20 Generic Environmental Impact Statement for License Renewal of Nuclear Power PlantsFinal Report, NUREG-1437, rev. 1, vol. 1 (June2013) (ML13106A241) (2013 LR GEIS).
B, did not address subsequent license renewal; and that the Staffs environmental evaluation of
the Turkey Point SLR application was therefore incomplete.21
Second, the Commission issued CLI-22-3 in the North Anna, Oconee Station, Peach
Bottom, Point Beach, and Turkey Point SLR proceedings. 22 Because the Commission issued its
decisions regarding environmental reviews of SLR applications during the time period in which
the parties could appeal the Licensing Boards decision in LBP 1, the Commission took sua
sponte review under 10 C.F.R. § 2.341(a)(2) of LBP 1. 23 In CLI-22-3, the Commission stated
that it will not issue any further licenses for an SLR term until the Staff had completed an
adequate NEPA [National Environmental Policy Act of 1969, as amended] review for each
application. 24 Further, the Commission directed the Staff to review and update the 2013 GEIS
so that it covers operation during the subsequent license renewal period, and to evaluate
Category 1 impacts on a site-specific basis in its EISs. 25 Additionally, the Commission dismissed
the environmental contentions, motions and appeals that were pending in the North Anna,
Oconee Station, Peach Bottom, Point Beach, and Turkey Point SLR proceedings. 26
21 Turkey Point, CLI 2, 95 NRC at 27, 31.
22 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3), Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), NextEra Energy Point Beach, LLC (Point Beach Nuclear Plant, Units 1 and 2),
Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), CLI-22-3, 95 NRC 40 (2022).
23 Id. at 42.
24 Id. at 41. In addition to issuing CLI 2 and CLI 3, the Commission issued CLI 4 in which it ruled on certain matters in the Peach Bottom SLR proceeding. Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3), CLI 4, 95 NRC 44 (2022). Finally, the Commission issued a Staff Requirements Memorandum (SRM), instructing the Staff to submit a rulemaking plan to update 10 C.F.R. Part 51 and the 2013 License Renewal Generic Environmental Impact Statement, to address the environmental impacts of subsequent license renewal. Staff Requirements-SECY-21-0066 "Rulemaking Plan for Renewing Nuclear Power Plant Operating Licenses - Environmental Review (RIN 3150- AK32; NRC-2018- 0296) (Feb. 24, 2022) (ML22053A308).
25 Id.
26 The Commission observed that because the NRC will be updating the GEIS and site-specific environmental analyses, it would be inefficient to continue litigating any of the pending environmental contentions based on environmental information that may change. Oconee, CLI 3, 95 NRC at 42 n.6.
In CLI-22-3, the Commission provided two possible paths forward for the Oconee Station
and other SLR proceedings. The Commission observed that the most efficient way to proceed
is to direct the Staff to review and update the 2013 GEIS, and to then update the plants EISs to
ensure that the environmental impacts of SLR are considered.27 But the Commission also
provided an alternative to waiting for the update of the 2013 LR GEIS: it afforded applicants an
opportunity to submit a revised environmental report providing information on the site-specific
environmental impacts of SLR for their plants and stated that [a]fter each site -specific review is
complete, a new notice of opportunity for hearing - limited to contentions based on new
information in the site-specific environmental impact statement - will be issued.28
The Staff s Environmental Review
On November 7, 2022, the Applicant submitted a site-specific Environmental Report
(ER), replacing its previous ER for the Oconee Station SLR application.29 In accordance with
CLI 3, the Staff reviewed the applicants site-specific ER and, upon completion of its review,
issued NUREG-1437, Supplement 2, Second Renewal (draft site-specific Environmental Impact
Statement (DEIS)) 30. This 2024 draft Site-Specific EIS is a supplement to the environmental
review of the proposed action of the continued operations of Oconee Nuclear Station, Units 1, 2,
and 3 (Oconee Station or ONS) for an additional 20 years, issued for public comment. 31
Consistent with CLI-22-3, the Staff provided the public with an opportunity to seek a hearing to
challenge the DEIS on February 13, 2024. 32 As the Commission directed in CLI 3, the scope
27 Oconee, CLI 3, 95 NRC at41.
28 Id. at 42.
29 See 2022 site-specific ER Supplement (ML22311A036).
30 NUREG-1437, draft Site-Specific Environmental Impact Statement, Supplement 2, Second Renewal, Draft Report for Comment, (Feb. 2024) (ML24033A298) (DEIS).
31 Duke Energy Carolinas, LLC; Oconee Nuclear Station, Units 1, 2, and 3; Draft Supplemental Environmental Impact Statement, 89 Fed. Reg. 10,107.
32 Id.
of this new hearing opportunity was limited to contentions based on new information 33 in the
site-specific environmental impact statement.34
Commission Approval of the 2024 Renewing Nuclear Power Plant Operating Licenses-Environmental Review Rule
On May 16, 2024, the Commission approved a final rule which amends Part 51 and
incorporates the revised Gener ic Environmental Impact Statement for License Renewal of
Nuclear Plants (LR GEIS) into Table B -1 in Appendix B to Part 51 (2024 Rule). 35 On May 21,
2024, the Licensing Board issued five questions to the parties regarding the impacts the 2024
Rule could have on this proceeding. 36 NRC Staff provides answers to those questions in NRC
Staff-Attachment A to this pleading. In sum, the 2024 Rule will have no impact on the
contention admissibility portion of this proceeding and the Licensing Board can adjudicate the
issues before it independent of the 2024 Rule.
DISCUSSION
Under the Commissions rules of practice, any person whose interest may be affected by
a proceeding and who desires to participate as a party must file a written request for a hearing;
this request must include the contentions that the person seeks to have litigated in the
hearing. 37 The presiding officer will grant the hearing request if they determine that the
requestor has standing under 10 C.F.R. § 2.309(d) and has proposed at least one admissible
33 See, Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 46,566 (Aug. 3, 2012) (When promulgating changes to the rules on hearings, the Commission provided a discussion of considerations used to determine if new information upon which a contention is based is materially different from previously available information.).
34 Oconee, CLI 3, 95 NRC at 41 -42.
35 SRM-M240516A: Affirmation Session-SECY 0017: Final Rule - Renewing Nuclear Power Plant Operating Licenses - Environmental Review (RIN 3150- AK32; NRC-2018- 0296) (May 16, 2024)
(ML24137A164).
36 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), LBP Memorandum and Order (Request to Address Impacts of Final Rule Applying Generic Environmental Impact Statement to Subsequent License Renewal Period) (May 21, 2024) (unpublished) (ML24142A273).
37 10 C.F.R. § 2.309(a).
contention that meets the requirements in 10 C.F.R.§ 2.309(f). 38 As discussed below, the
Petitioners have demonstrated standing to intervene but have not proposed at least one
admissible contention. Therefore, their hearing request and petition to intervene should be
denied.
I. Standing
A. The Requirements for Standing
Under the general standing requirements set forth in 10 C.F.R. § 2.309(d)(1), a petition
must state:
(i) The name, address, and telephone number of the petitioner;
(ii) The nature of the petitioner s right under the Atomic Energy Act of 1954, as amended (AEA), to be made a party to the proceeding;
(iii) The nature and extent of the petitioner s property, financial, or other interest in the proceeding; and
(iv) The possible effect of any decision or order that may be issued in the proceeding on the petitioner s interest.39
The regulations state that, in ruling on a petition, the presiding officer must determine,
among other things, whether the petitioner has an interest affected by the proceeding
considering the factors enumerated in 10 C.F.R. § 2.309(d)(1). 40 As the Commission has
observed, the NRC has long applied contemporaneous judicial concepts of standing, which
require an actual or threatened injury that is fairly traceable to the challenged action, is likely to
be redressed by a favorable decision, and arguably falls within the zone of interest protected by
the AEA. 41 The injury must be both concrete and particularized, not conjectural, or
38 10 C.F.R. § 2.309(a).
39 10 C.F.R. § 2.309(d)(1).
40 10 C.F.R. § 2.309(d)(2). The presiding officer may also consider a request for discretionary intervention when a petitioner is determined to lack standing to intervene as a matter of right, where a sufficient showing is made with respect to the factors enumerated in 10 C.F.R. § 2.309(e).
41 El Paso Elec. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI 7, 92 NRC 225, 230 (2020) (quoting Calvert Cliffs 3 Nuclear Project, LLC, and Unistar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009)).
hypothetical. 42 Further, at the heart of the standing inquiry is whether the petitioner has
alleged such a personal stake in the outcome of the controversy as to demonstrate that a
concrete adverseness exists [that] will sharpen the presentation of issues.43
While the Commission generally requires the elements of standing to be pled with
specificity, standing to intervene has been found to exist in construction permit and operating
license proceedings based upon a proximity presumption.44 In such proceedings, standing is
presumed for persons who reside in, or have frequent contact with, the zone of possible harm
around the nuclear reactor.45 In practice, the Commission has found standing based on the
proximity presumption for persons who reside within approximately 50 miles (80 km) of the
facility. 46 As noted by the Commission, licensing boards have also employed the proximity
presumption to establish standing to intervene in reactor operating license renewal
proceedings. 47
An organization seeking to intervene must satisfy the same standing requirements as
an individual seeking to intervene.48 The organization may establish standing based on
organizational standing (showing that its own organizational interests could be adversely
affected by the proceeding) or representational standing (based on the standing of its
42 Palo Verde, CLI-20-7, 92 NRC at 230 (quoting Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 72 (1994)).
43 Gore, Oklahoma Site, CLI 12, 40 NRC at 71 (citing Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72 (1978) and quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
44 See, e.g., Calvert Cliffs, CLI 20, 70 NRC at 915-17 (citing, e.g., Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-6, 53 NRC 138, 150 (2001), aff d on other grounds, CLI 17, 54 NRC 3 (2001) (applying proximity presumption in reactor operating license renewal proceeding).).
45 Calvert Cliffs, CLI 20, 70 NRC at 915.
46 Id. at 915-16.
47 Id. at 915 n.15 (noting that the Licensing Board in Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-6, 53 NRC 138, 150, aff d on other grounds, CLI-01-17, 54 NRC 3 (2001) was applying [the] proximity presumption in [a] reactor operating license renewal proceeding).
48 El Paso Electric Company (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI 7, 92 NRC 225, 231.
members). Where an organization seeks to establish representational standing, the
organization must demonstrate that at least one of its members may be affected by the
proceeding and that these members, who must be identified by name, have authorized the
organization to represent them and to request a hearing on their behalf.49 Further, the member
seeking representation must qualify for standing in [their] own right; the interests that the
representative organization seeks to protect must be germane to its purpose; and neither the
asserted claim nor the requested relief must require an individual member to participate in the
organizations legal action.50
B. Beyond Nuclear and the Sierra Club Have Demonstrated Standing
Beyond Nuclear is a nonprofit, nonpartisan membership organization that aims to
educate and activate the public about the connections between nuclear power and nuclear
weapons and the need to abolish both.... 51 The Sierra Club is a national environmental
organization whose purposes are to explore, enjoy, and protect the wild places of the earth; to
practice and promote the responsible use of the earths ecosystems and resources; to educate
and enlist humanity to protect and restore the quality of the natural and human environment;
and to use all lawful means to carry out these objectives.52 In support of their Petition, Beyond
Nuclear submitted Declarations of four of its members (Gordan Crain, Ken Marsh, Jane F.
49 FirstEnergy Nuclear Operating Co. and FirstEnergy Nuclear Generation, LLC (Beaver Valley Power Station, Units 1 and 2; Davis-Besse Nuclear Power Station, Unit 1; Perry Nuclear Power Plant, Unit 1),
CLI 5, 91 NRC 214, 220 (2020); Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 409-10 (2007).
50 Beaver Valley, CLI-20-5, 91 NRC at 220 (citing Entergy Nuclear Operations, Inc. and Entergy Nuclear Palisades, LLC (Palisades Nuclear Plant), CLI 19, 68 NRC 251, 258-59 (2008); Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 323 (1999)).
51 2024 Hearing Petition at 3-4.
52 Id. at 4.
Powell, and Frank M. Powell), 53 and the Sierra Club also submitted Declarations of four of its
members (Rosellen Aleguire, Eunice Lehmacher, Kathy Crain, and Frank M. Powell).54
In their Declarations, the Declarants provided their home addresses, and stated that they
live within the Oconee Station 50- mile emergency planning zone (EPZ). Further, they stated
their belief that continued operations at Oconee Station for 20 years beyond the current license
expiration dates could result in a severe nuclear accident, causing death, injury, illness,
dislocation, and economic damage to the Declarants and their families, as well as devastating
environmental damage. The Declarants also stated that they are members of their respective
organizations and that they each authorize their respective organizations to represent their
interests in this proceeding. 55
Based upon its review of the Petitioners Declarations, the Staff is satisfied that Beyond
Nuclear and the Sierra Club have established representational standing to intervene in this
proceeding. Each Petitioner provided the name and address of at least one of its members, who
stated that they are concerned about the environmental impacts of continued operations of
Oconee Station Units 1, 2, and 3. The Declarations demonstrate that these members reside
within 50 miles of the facility, and that they authorize their respective organizations to represent
their interests in this proceeding. As such, each of the Petitioners has shown that at least one of
its members would have standing to intervene on an individual basis, due to the proximity
presumption, and that those members have authorized their organizations to represent their
interests here. Accordingly, each of the Petitioners has satisfactorily established its
representational standing to intervene in the proceeding under the proximity presumption.56
53 2024 Hearing Petition at Attachment 2A-2D.
54 Id. at Attachment 2E-2H.
55 Id. at Attachment 2A-2H.
56 The Licensing Board in the prior Oconee Station SLR proceeding similarly found that the Petitioners had established representational standing to intervene. See Oconee, LBP-22-1, 95 NRC 49.
II. Contention Admissibility
A. Contention Admissibility Requirements
The requirements governing the admissibility of contentions are set forth in 10 C.F.R.
§ 2.309(f)(1)-(2). Specifically, a petitioner must set forth with particularity the contentions that
the petitioner seeks to raise and, for each contention, the petitioner must:
(i) Provide a specific statement of the issue of law or fact to be raised or controverted;
(ii) Provide a brief explanation of the basis for the contention;57
(iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; 58
(iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action involved in the proceeding; 59
(v) Provide a concise statement of the alleged facts or expert opinions that support the petitioner s position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely;60 and
(vi) Provide sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. 61
57 Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc., (Vermont Yankee Nuclear Power Station), CLI-15-20, 82 NRC 211, 221 (2015). (Contentions cannot be based on speculation but must have some reasonably specific factual or legal basis. (citation omitted).
58 The scope of the proceeding is defined by the Commission in its initial hearing notice and order referring the proceeding to the licensing board. See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI 23, 52 NRC 327, 329 (2000). As a consequence, any contention that falls outside the specified scope of the proceeding must be rejected. See Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427, 435-36 (2011).
59 A dispute at issue is material if its resolution would make a difference in the outcome of the licensing proceeding. Holtec International (Hi-STORE Consolidated Interim Storage Facility), CLI 4, 91 NRC 167, 190 (2020) (internal quotations omitted).
60 The petitioner is obliged to present the facts and expert opinions necessary to support its contention.
See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006) (it is the petitioner s responsibility to satisfy the basic contention admissibility requirements; boards should not have to search through a petition to uncover arguments and support for a contention, and may not simply infer unarticulated bases of contentions); see also Arizona Public Service Co., et. Al. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), CLI-91-12, 34 NRC 149, 155 (1991).
61 This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner s belief.
Further, to show that a genuine dispute exists the contention must include references to specific portions
Further, contentions must be based on documents or other information available at the
time the petition is to be filed, such as the application, supporting safety analysis report,
environmental report or other supporting document filed by an applicant or licensee, or
otherwise available to a petitioner.62
The NRCs regulations governing contention admissibility are intended to focus litigation
on concrete issues and result in a clearer and more focused record for decision.63 The
Commission has explained that the contention admissibility rules are strict by design.64
Failure to satisfy any of the six pleading requirements renders a contention inadmissible.65 As
noted above, the rules require a clear statement as to the basis for the contentions and the
of the application that the petitioner disputes and the supporting reasons for each dispute and if the petitioner believes that the application fails to contain information on a relevant matter, then the contention must identify each failure and the supporting reasons for the petitioner s belief. Exelon Generation Co., LLC. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-20-11, 92 NRC 335, 342 (2020).
62 10 C.F.R. § 2.309(f)(2). As a general rule, for issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicants environmental report. Id. This general rule is not applicable here, as the Commission directed in CLI-22-3 that contentions are to be filed upon completion of the Staffs environmental evaluation.
63 See, e.g., Southern Nuclear Operating Co. Inc. (Vogtle Electric Generating Plant, Unit 3) LBP-20-8, 92 NRC 28, 46 (2020) (quoting Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004)); Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, NE), LBP 15, 81 NRC 598, 601 (2015).
64 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2) CLI-16-5, 83 NRC 131, 136 (2016) (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 24, 54 NRC 349, 358 (2001) and South Carolina Electric & Gas Co. and South Carolina Public Service Authority (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI 1, 71 NRC 1, 7 (2010). The Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing. Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).
65 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2) CLI-16-5, 83 NRC 131, 136 (2016); see also Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334-35 (1999) (the heightened contention admissibility rules are designed to preclude contentions based on little more than speculation). The requirements are intended, among other things, to ensure that a petitioner reviews the application and supporting documents prior to filing contentions; that contentions are supported by at least some facts or expert opinion known to the petitioner at the time of filing; and that there exists a genuine dispute before a contention is admitted for litigation, to avoid the practice of filing contentions that lack any factual support and seeking to flesh them out later through discovery. Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-91-35, 34 NRC 163, 167 -68 (1991).
submission of... supporting information and references to specific documents and sources that
establish the validity of the contention.66
Although a petitioner does not have to prove its contention at the admissibility stage,67
the contention admissibility standards are meant to afford hearings only to those who proffer at
least some minimal factual and legal foundation in support of their contentions.68 The petitioner
must provide some support for the contention, either in the form of facts or expert testimony,
and failure to do so requires that the contention be rejected.69 Any supporting material provided
by the petitioner is subject to scrutiny by the presiding officer,70 who must confirm that the
proffered material provides adequate support for the contention.71 The Commission has long
held that the basis requirements are intended to: (1) ensure that the contention raises a matter
appropriate for adjudication in a particular proceeding; (2) establish a sufficient foundation for
the contention to warrant further inquiry into the assertion; and (3) put other parties sufficiently
on notice of the issues to be litigated.72
66 AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006).
67 Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004).
68 Duke Energy Corporation (Oconee Nuclear Station, Units 1, 2, and 3), CLI 11, 49 NRC 328, 334.
69 Arizona Public Service Co., et. Al. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991); accord, Entergy Nuclear Operations, Inc. (Indian Point, Unit 2) CLI-16-5, 83 NRC 131, 136 (2016). See Rules of Practice for Domestic Licensing Proceedings Procedural Changes in the Hearing Process, 54 Fed. Reg. at 33,170 (This requirement does not call upon the intervener to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time [that] provide the basis for its contention.).
70 See Vermont Yankee Nuclear Power Co. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989), vacated in part on other grounds and remanded, CLI-90-4, 31 NRC 333 (1990);
see also Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2), LBP 7, 71 NRC 391, 421 (2010).
71 See Vermont Yankee Nuclear Power Corporation, (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989); see also Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2),
LBP 7, 71 NRC 391, 421 (2010).
72 Duke Energy Corporation (Oconee Nuclear Station, Units 1, 2, and 3), CLI 11, 49 NRC 328, 328; see also Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20- 21 (1974).
If a petitioner neglects to provide the requisite support for its contentions, then the
presiding officer should not make assumptions of fact that favor the petitioner or search for or
supply information that is lacking.73 Moreover, providing any material or document as a basis for
a contention without explaining its significance is grounds for the presiding officer to reject the
contention. 74 In sum, the information, facts, and expert opinions provided by the petitioner are
examined by the presiding officer to determine whether they provide adequate support for the
proffered contentions.75
B. Requirements for Environmental Review of License Renewal Applications
Section 102(2)(C) of the National Environmental Policy Act of 1969, as amended (NEPA),
42 U.S.C. § 4321 et seq., 76 requires federal agencies to include in any recommendation or
report on proposals for legislation and other major federal actions significantly affecting the
quality of the human environment, a detailed statement by the responsible official on-
(i) The reasonably foreseeable environmental impact of the proposed agency action;
(ii) Any reasonably foreseeable adverse environmental effects which cannot be avoided should the proposal be implemented;
(iii) A reasonable range of alternatives to the proposed agency action, including an analysis of any negative environmental impacts of not implementing the proposed agency action in the case of a no action alternative, that are technically and economically feasible, and meet the purpose and need of the proposal;
(iv) The relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and
(v) Any irreversible and irretrievable commitments of Federal resources which would be involved in the proposed agency action should it be implemented.
In accordance with its NEPA responsibilities, the NRC is required to take a hard look at
the environmental impacts of a proposed major federal action that could significantly affect the
73 See USEC Inc. (American Centrifuge Plant), CLI 10, 63 NRC 451, 457 (2006).
74 See Fansteel, Inc. (Muskogee, Oklahoma Site), CLI 13, 58 NRC 195, 205 (2003).
75 American Centrifuge Plant, CLI-06-10, 63 NRC at 457; see Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2), LBP 7, 71 NRC 391, 421 (2010).
76 NEPA, Section 102(2)(C), 42 U.S.C. § 4332, as amended by the Fiscal Responsibility Act of 2023.
environment, as well as reasonable alternatives to that action.77 This hard look is tempered by
a rule of reasonconsideration of environmental impacts need not address all theoretical
possibilities, but rather only those that have some possibility of occurring.78 An agency thus
need only address impacts that are reasonably foreseeable; the agency need not perform
analyses concerning events that would be considered worst case scenarios or those
considered remote and highly speculative.79 Further, NEPA does not call for certainty or
precision, but an estimate of anticipated (not unduly speculative) impacts.80 NEPA similarly
does not require review when the circumstances render review impossible.81 And NEPA gives
agencies broad discretion to keep their inquiries within appropriate and manageable
boundaries. 82 As the Commission has observed, NEPA requires consideration of reasonable
alternatives, not all conceivable ones.83 Further, the Staffs EISs need only discuss those
alternatives that... will bring about the ends of the proposed actiona principle equally
applicable to Environmental Reports.84
77 See Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 87-88 (1998); Crow Butte Resources, Inc. (Marsland Expansion Area), LBP-19-2, 89 NRC 18, 40 (2019).
78 Crow Butte Resources, Inc. (Marsland Expansion Area), LBP-19-2, 89 NRC 18, 40 (quoting Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-156, 6 AEC 831, 836 (1973)).
79 Holtec International (HI-STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC 353, 357 (2019) (quoting Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 754-55 (3d Cir. 1989)).
80 Crow Butte Resources, LBP-19-2, 89 NRC at 40 (quoting Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-05-20, 62 NRC 523, 536 (2005)).
81 The Supreme Court has observed that where it is not possible for an agency to analyze the environmental consequences of a proposed action or alternatives to it, requiring such analysis would have no factual predicate and under those circumstances an EIS is not required. Kleppe v. Sierra Club, 427 U.S. 390, 401- 02 (1976).
82 Crow Butte Resources, LBP-19-2, 89 NRC at 40 (quoting Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 103 (1998).
83 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI 5, 75 NRC 301, 338 (2012).
84 Id. at 339 (footnotes and quotation marks omitted).
III. The Petitioners Contentions Do Not Meet the Contention Admissibility Requirements in 10 C.F.R. § 2.309(f)(1).
A. Contention 1 is inadmissible because it does not demonstrate that the issues raised are within the scope of the proceeding or demonstrate that the issues raised are material to the findings the NRC must make in a license renewal application.
Proposed Contention 1 attempts to adjudicate the sufficiency of a licensees compliance
with its current licensing basis regarding protection against flood hazards as part of a license
renewal proceeding. However, challenges to compliance with a licensees current licensing
basis are not within the scope of a subsequent license renewal review or the Commissions
direction in CLI-22-3, and, therefore, are not within the scope of the instant proceeding. 85
Specifically, the Statement of Contention for proposed Contention 1 states, in part:
The NRC Staffs conclusion that accident impacts of continuing to operate the Oconee reactors are insignificant, i.e., SMALL (Draft SEIS at F-5), is based on the assertion that Duke has provided the Oconee reactors with adequate protection from accident risks caused by external events, such as failure of the upstream Jocassee Dam. In support of this assertion, the Draft SEIS relies heavily on a description of the scope, nature and outcome of the NRC Staffs review of seismic and flooding risks (i.e., external hazards) to Oconee, conducted between 2012 and 2020 in response to the cat astrophic 2011 Fukushima Dai-Ichi accident in Japan. 86
The Petitioners attempt to relitigate the issues they previously raised in their first hearing
petition, which was denied87, despite the current hearing opportunity being limited to contentions
based on new information contained in the DEIS. Petitioners expert includes references to the
DEIS in his updated report, which Petitioners cite as support for their contentions. 88 But rather
than challenging new information in the DEIS, Petitioners and Petitioners expert reuse the
same or similar arguments that Petitioners previously raised in an attempt to continue to litigate
85 See Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI 21, 82 NRC 295, 304- 05 (citing 10 C.F.R. §§ 54.4, 54.21, and 54.29(a)).
86 2024 Corrected Petition at 5.
87 See, generally, Oconee, LBP 22 -1, 95 NRC at 77 (2022). However, the decision in CLI-22-3 dismissed these contentions without prejudice. See Oconee, CLI 3, 95 NRC at 43.
88 2024 Corrected Petition at 2.
issues that the previous Licensing Board in LBP 1 rejected. In LBP 1, the Licensing Board
provided a detailed history of the NRC Staffs extensive engagement with Duke Energy on
flood-related matters at Oconee Station, including the Jocassee Dam, which the Staff
incorporates here by reference for the sake of brevity in this answer.89 The Licensing Board in
LBP-22-1 reviewed the previous hearing request against this regulatory and historical
background and denied the petition for hearing.90 Because the Petitioners have raised in
proposed Contention 1 a contention that basically relitigates issues a previous Licensing Board
has already rejected, this Licensing Board should consider the analysis and conclusions
reached by the prior Licensing Board in adjudicating the current hearing petition. As explained
more fully below, proposed Contention 1 does not meet the contention admissibility
requirements and should be rejected here as well.
- 1. Petitioners in Contention 1 challenge the licensees current licensing basis and therefore raise issues that are not within the scope of license renewal.
Petitioners assert in proposed Contention 1 that Oconee Station does not have
adequate protection against a failure from the Jocassee Dam, and that, therefore, the NRC
Staffs finding that accident impacts of continuing to operate the [Oconee Station] reactors are
insignificant, i.e., SMALL is inadequate to satisfy NEPAs requirement for a hard look at the
environmental impacts of the proposed second license renewal decision.91 Petitioners are
attempting to adjudicate, as part of a subsequent license renewal proceeding, the sufficiency of
Oconee Stations compliance with its current licensing basis regarding protection against flood
hazards, specifically the failure of the Jocassee Dam. However, as discussed below, such a
89 Oconee, LBP 1, 95 NRC at 65-77, (Section I, Background, Subsection C, Consideration of Dam Breach-Related Events for ONS [Oconee Station] beginning in the second paragraph (starting at: A breach of the Jocassee Dam and the impact on ONS of a resulting flood has been a matter of evolving regulatory concern.)).
90 Id. at 77.
91 2024 Corrected Petition at 5-6 (citations omitted).
challenge is not within the scope of a license renewal review, and therefore does not meet the
requirements in 10 C.F.R. § 2.309(f)(1)(iii).
The regulations in 10 C.F.R. Part 54, Requirements for Renewal of Operating Licenses
for Nuclear Power Plants, govern the issuance of renewed operating licenses.92 In order to
distinguish between those issues identified during the license renewal process that require
resolution during the license renewal process and those issues that require resolution during the
current license term, the Commission added 10 C.F.R. § 54.30, Matters not subject to a
renewal review, 93 which states:
(a) If the reviews required by § 54.21 (a) or (c) show that there is not reasonable assurance during the current license term that licensed activities will be conducted in accordance with the CLB [current licensing basis], then the licensee shall take measures under its current license, as appropriate, to ensure that the intended function of those systems, structures or components will be maintained in accordance with the CLB throughout the term of its current license.
(b) The licensees compliance with the obligation under Paragraph (a) of this section to take measures under its current license is not within the scope of the license renewal review.94
This regulation describes the licensees responsibilities for addressing safety matters
under its current license, that are not within the scope of the renewal review.95 The Commission
opined that [s]eparating the subjects into two different sections should minimize any possibility
of misinterpreting the scope of the renewal review and finding.96 Therefore, in subsequent
license renewal proceedings, challenges to a licensees compliance with its current licensing
92 10 C.F.R. § Part 54, Requirements for Renewal of Operating Licenses for Nuclear Power Plants.
93 Nuclear Power Plant License Renewal; Revisions; Final Rule. 60 Fed. Reg. 22, 461, 22, 463 (1995).
94 10 C.F.R. § 54.30.
95 60 Fed. Reg. 22, 461 at 22,482.
96 Id.
basis (CLB), 97 including flood hazards as discussed below, are not within the scope of such
proceedings.
NRC regulations rely on the regulatory processes applicable to all currently operating
reactors to address most safety and security issues, limiting license renewal proceedings to
consideration of only certain issues related specifically to plant aging.98 In fact, in Section 3.1,
entitled, Failure to Ensure Adequate Protection from Failure of the Jocassee Dam or to
Adequately Evaluate Environmental Flooding Risks, of the Petitioners experts corrected
report, the Petitioners expert plainly states that,... the NRC regulations for license renewal
exclude [flooding risks] from the scope of safety issues that may be reviewed, because it does
not relate to the aging of Oconees safety equipment.99 Indeed, the Licensing Board in
Sequoyah found, in pertinent part, that a proposed contention100 related to Sequoyahs flood
risks was a safety-related contention, and that:
[L]icensees are required to protect their nuclear power plants against the risk of flooding as a part of their current regulatory obligations under the AEA (i.e., as part of the CLB [current licensing basis]) and any challenge to the adequacy of the licensees flood management measures is not with (sic) the scope of the license renewal process.101
97 10 C.F.R. § 54.3, Definitions, provides a definition of current licensing basis.
98 Diablo Canyon, CLI 21, 82 NRC at 304- 05 (citations omitted).
99 2024 Corrected Mitman Report at 23. (For context, the paragraph preceding this statement discusses various related issues, such as, Duke is now operating Oconee at an unacceptable risk to public health and safety, due to flooding risks identified by the regulatory process leading up to the 2011 Safety Evaluation, the NRC having not...withdrawn or repudiated the 2011 Safety Evaluation, and that NRC has not... made any finding that the flood height and mitigation measures that were determined to be appropriate in the NRCs post-Fukushima review are adequate to protect public health and safety).
100 Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2), LBP 8, 78 NRC 1, 9 (2013)
(Sequoyah). ( Contention A states, TVA's LRA fails to adequately address the risks from flooding at Sequoyah which could result from the failure of upstream dams. The consequences of such an event on the plant would be severe.).
101 Sequoyah, LBP-13-8, 78 NRC at 12 (The Licensing Board further stated:
The Commission's decision in Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3 (2001) is the seminal ruling. In it, the Commission stated that it has the ongoing responsibility to oversee the safety and security of operating nuclear reactors and asserted that the NRC maintains an aggressive and ongoing program to oversee plant operation and to maintain compliance with the CLB. Id. at 8. In light of this aggressive program the Commission stated that it would be unnecessary to
Accordingly, the Sequoyah Licensing Board determined that, contrary to 10 C.F.R.
§ 2.309(f)(1)(iii), the proposed contention in that case was not within the scope of the license
renewal proceeding, explaining that:
[T]he case law and the black letter of our regulations in 10 C.F.R. § 54.30(b) are plain that compliance with the [current licensing basis] CLB is not within the scope of a license renewal proceeding. The licensees compliance with the obligation under Paragraph (a) of this section to take measures under its current license is not within the scope of the license renewal review. 10 C.F.R. § 54.30(b). 102
Just like the rejected contention in the Sequoyah proceeding, proposed Contention 1
seeks, at bottom, to raise issues concerning the safety of continued operation at Oconee Station
and seeks to challenge the Staffs safety determinations regarding flood hazards protection.103
The Licensing Board in Sequoyah wrestled with whether the proposed contention was an
environmental or safety contention as the contention does not indicate what legal requirement,
if any, requires the LRA to address the risk of flooding. More specifically, [the contention] does
not specify whether it is the Atomic Energy Act and NRC's regulations thereunder (10 C.F.R.
Part 54), or the National Environmental Policy Act (NEPA) and NRC's regulations thereunder (10
C.F.R. Part 51), that require the LRA to add ress the risk of flooding.104 The same issue is
present here. For example, Petitioners assert that:
The Draft SEIS assertion that adequate protection of the Oconee reactors from external hazards is ensure[d] invokes Section 182(a) of the Atomic Energy Act, 42 U.S.C. § 2232(a), requiring the [NRC] to ensure that the utilization or production of special nuclear material will... provide adequate protection to the
include in our [license renewal] review all those issues already monitored, reviewed, and commonly resolved as needed by ongoing regulatory oversight. Id. )
102 Sequoyah, LBP-13-8, 78 NRC at 11-12 (emphasis added).
103 See Turkey Point, CLI-01-17, 54 NRC at 16 (The Commission found that the [t]he Licensing Board correctly concluded that [a contention was] outside of the scope of license renewal reviews and proceedings [because as] the Board found, the contention does not raise any aspect of the Applicants aging management review or evaluation of the plants systems, structures, and components subject to time-aging analysis. It does not, then, identify any issue encompassed by the NRC safety review for license renewal, conducted under 10 C.F.R. Part 54, that focuses on aging.) (internal citations omitted).
104 Sequoyah, LBP-13-8, 78 NRC at 11.
health and safety of the public. Adequate protection is the primary statutory standard relating to the [NRCs] mandate to ensure the safe operation of nuclear power plants. Thus, use of that phrase conveys a clear message that accident risks have been reduced to a level that is both acceptable under the Atomic Energy Act and insignificant or SMALL under NEPA. Under the Atomic Energy Act, no further action to reduce that acceptable level of risk is required; and under NEPA, the only required additional actions are disclosure of the impacts and consideration of alternatives to manage or avoid the residual risk of these unlikely accidents.
Here, the Draft SEIS claim that the adequate protection standard has been satisfied with respect to flooding protection from external events such as Jocassee Dam failure is erroneous because it is not supported by any safety analysis of whether that statutory standard has been satisfied.105
The Licensing Board in Sequoyah held that the difference between an environmental
contention and a safety contention is an important one because it establishes the legal criteria
that must be applied to determine admissibility.106 As stated by the Petitioners themselves in
their hearing petition and by the Petitioners expert in his report, the assertion that an adequate
protection finding has not been made with regard to flood protection and dam failure is tied to
Staffs safety findings under the AEA and not its environmental review under NEPA. Because
Petitioners are alleging noncompliance with NRC safety regulations, the contention cannot be
admissible because it is not within the scope of license renewal.107
At bottom, Petitioners assertions that Oconee Station does not have adequate
protection against a failure of the Jocassee Dam go to a current licensing basis matter that is
not within the scope of a license renewal review, and, accordingly, not within the scope of this
proceeding. In other words, even if Oconee Station were not currently in the process of a
license renewal, on a plain reading, Petitioners argument goes to how the site is currently
operating. This runs contrary to the Commissions regulations and to prior caselaw, which state
105 2024 Corrected Petition at 7-8 (emphasis added) (citations omitted).
106 See Sequoyah, LBP 8, 78 NRC at 11.
107 See Sequoyah at 12 (Section 54.30(b), combined with the requirement that contentions be within the scope of the license proceeding, 10 C.F.R. § 2.309(f)(1)(iii), are fatal to Contention A. TVA's current compliance with the NRC's safety requirements, as reflected in TVA's CLB, is outside of the scope of Part 54 and therefore cannot form the basis of an admissible contention).
that contentions are limited to concerns regarding the applicants aging management programs
and time-limited aging analyses. 108 Accordingly, proposed Contention 1 does not demonstrate
that the issue raised is within the scope of a subsequent license renewal proceeding. Because
proposed Contention 1 raises issues not germane to license renewal due to being not within the
scope of the proceeding, it consequently does not demonstrate that the issue raised is material
to the findings the NRC must make in a license renewal application, in contravention of 10
C.F.R. §§ 2.309(f)(1)(iii) and (iv).
- 2. Petitioners' assertion that the DEIS is inadequate to satisfy NEPA because it does not show that there is adequate protection against a failure from the Jocassee Dam is not within the scope of license renewal and does not raise issues material to the findings the NRC Staff must make.
The Petitioners further assert that the DEIS is inadequate to satisfy NEPAs requirement
for a hard look due to Oconee Station not being adequately protected against flooding risks caused by failure of the Jocassee Dam.109 Per 10 C.F.R. § 51.71 (d), in part, the draft
environmental impact statement will include a preliminary analysis that considers and weighs the environmental effects, including any cumulative effects, of the proposed action.110 Here, the
proposed action is a subsequent license renewal of Oconee Station. Licensees are required to
meet the current licensing basis under the current operating license, as well as during any license renewal period.111 As established above, protection against flooding by a licensee goes
to the current licensing basis, and is not within the scope of a license renewal review;
[L]icensees are required to protect their nuclear power plants against the risk of flooding as a
part of their current regulatory obligations under the AEA (i.e., as part of the CLB) and any
challenge to the adequacy of the licensees flood management measures is not with the scope
108 10 C.F.R. §§ 54.21 and 54.29; See, e.g., Turkey Point, CLI-01-17, 54 NRC at16.
109 2024 Corrected Petition at 6.
110 10 C.F.R. § 51.71, Draft environmental impact statementcontents, Paragraph (d), Analysis.
111 See DEIS at F-3.
of the license renewal process. 112 Petitioners are, at bottom, asking for the Staff to do an
environmental review of the subsequent license renewal application with an unrequested
change to the current licensing basis. This request is not within the scope of a license renewal
proceeding, as required by 10 C.F.R. § 2.309(f)(1)(iii).
In their corrected petition, Petitioners again assert that the Staffs 2011 Safety
Evaluation of the Oconee Station still requires pending action in an attempt to relitigate issues
another Licensing Board addressed and rejected in LBP 1. 113 Petitioners argue that:
While the NRC Staff claims to have closed the issues raised by the 2011 Safety Evaluation, the document relied on by the Staff for this purported closure does not use adequate protection language and therefore does not demonstrate that the NRC believes public health and safety is adequately protected in the absence of the requirements of the 2011 Safety Evaluation.114
In LBP-22-1, issued in response to the Petitioners first challenge to this subsequent
license renewal application, the Licensing Board considered the Petitioners arguments
concerning the NRC Staffs 2011 Safety Evaluation and did not agree with Petitioners
assertions, as discussed below. 115 The Licensing Board found that the Petitioners failed to
engage with information that was developed after the 2011 Safety Evaluation, stating that:
Petitioners do not reference the more recent information... in their hearing petition or the supporting Mitman Report. Nonetheless, they still claim that they did not ignore those interactions and reviews. According to Petitioners, this material is simply irrelevant because the language of the January 2011 Staff Safety Evaluation establishes an adequate protection issue, while the post-Fukushima material does not employ the necessary reasonable assurance of adequate protection to public health and safety language. According to Petitioners, even if the documents state that the June 2010 Staff CAL [Confirmatory Action Letter] is superseded or closed out, they have been unable to locate any documents addressing the close-out of the January 2011 Staff Safety Evaluation with its adequate protection issue.
This, they assert, establishes that the January 2011 Staff Safety Evaluation
112 See, e.g., Sequoyah at 12.
113 2024 Corrected Petition at 6 (In addition, the Draft SEIS fails to satisfy NEPA because it omits any discussion of the environmental significance of an outstanding 2011 Safety Evaluation... (citation omitted) ); compare with, Oconee, LBP 1, 95 NRC at 89.
114 2024 Corrected Petition at 7 (citation omitted).
115 See, e.g., Oconee, LBP-22-1, 95 NRC at 75-77, 89.
continues to be outstanding and, in the context of NRC regulatory practice, by its very nature must be considered a significant issue. 116
While the initial proceedings discussion was in the context of a 10 C.F.R. § 2.335 petition
for waiver 117, the Licensing Board in LBP-22-1 did not agree with Petitioners assertions
regarding the 2011 Safety Evaluation. 118 The Licensing Board in LBP 1 found that:
Petitioners have failed to engage with the underlying Duke and Staff post-Fukushima analyses that support those determinations [mitigative measures Duke implemented under the post-Fukushima evaluative process]. Instead, they have chosen to rely on purported distinctions in language associated with pre-Fukushima Staff evaluations, that, in this context, are of highly questionable regulatory significance. 119
Ultimately, the first Licensing Board, in LBP-22-1, to consider the Petitioners arguments
about the 2011 Safety Evaluation found that the Petitioners failed to satisfy Millstone factor
four whether waiver of the regulation is necessary to reach a significant safety [or
environmental] problem, and that, therefore, Petitioners were precluded from obtaining a
waiver for the purposed contentions.120 At bottom, the assertion that the 2011 Safety Evaluation
somehow still requires pending action and any omission of the environmental significance of it,
is a mischaracterization of the regulatory and historical background proffered in LBP-22-1 and is
contrary to the Licensing Board findings in that case.
116 See LBP-22-1, 95 NRC at 89 (emphasis added) (citation omitted).
117 10 C.F.R. § 2.335, Consideration of Commission rules and regulations in adjudicatory proceedings.
118 See Oconee, LBP-22-1, 95 NRC at 89.
119 Id. at 93 (emphasis added).
120 Id. at 85 (citation omitted).
Petitioners further reiterate their first challenge in this proceeding in their discussion on
the 50.54(f) letter121 to bolster their assertion regarding the lack of adequate protection.122
Specifically, Petitioners assert in proposed Contention 1, the following:
In fact, in the entire post-Fukushima review record for Oconee, no NRC document can be found that makes adequate protection findings with respect to the risk of flooding from failure of the Jocassee Dam or measures necessary to provide adequate protection from those risks. The only adequate protection findings relate to the adequacy of mitigation measures.123
However, as provided in the initial proceeding, according to Petitioners, the post -
Fukushima material does not employ the necessary reasonable assurance of adequate
protection to public health and safety language.124 The Licensing Board in LBP 1 also
opined on this matter, stating:
And clearly of significance in this circumstance is the sequence of events that were part of a major, agency order-instituted post-Fukushima effort intended to ensure that the NRC can continue to have reasonable assurance of adequate protection of public health and safety in mitigating the consequences of a beyond-design-basis external event. This included the related Commission-endorsed effort initiated by the March 2012 NRC Fukushima Section 50.45(f) (sic) Letter, of which the April 2016 Staff Final FHRR [Flood Hazard Reevaluation Report] Assessment was a part, to use current scientific methodologies and agency regulatory guidance to identify and mitigate seismic and flooding hazards.125
Accordingly, the root of Petitioners argument here is comparable to that proffered in the
initial proceeding 126 and is contrary to the Licensing Boards decision in LBP 1. As provided,
in the Petitioners corrected petition in Section b, entitled, Disregard of the Staffs own
121 See 2024 Corrected Petition at 9, citing, Letter from NRC to All Power Reactor Licensees and Construction Permit Holders re: Request for Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f) Regarding Recommendations 2.1.2.3 and 9.3 of the Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi Accident (March 12, 2012) (ML12053A340).
122 See generally, 2024 Corrected Petition, Section a, entitled, Incorrect claims with respect to design-basis review, legal effect of the 50.54(f) letter, and adequate protection findings at 9-12.
123 2024 Corrected Petition at 12.
124 Oconee, LBP 1, 95 NRC at 89.
125 Id. at 89-90 (citations omitted).
126 See, e.g., 2024 Corrected Petition at 9-12 (Petitioners provide examples of this asserted distinction in Section a).
documents that have concluded that failure of the Jocassee Dam is a credible accident that
must be addressed by safety measures in order to provide adequate protection to public health
and safety, Petitioners make several assertions focused on safety measures regarding flooding
discussed in 2008, 2009, and 2011.127 However, the Staff notes that these documents were
generally discussed in LBP 1 128 and, moreover, the issues raised by the Petitioners here in
the cited bullet points goes to a current licensing basis issue (i.e., flood hazards protection at
Oconee Station), which, as established above, is not within the scope of a license renewal
proceeding.
Section b of the Petitioners corrected petition also asserts that:
By relying on purported adequate protection findings to assert that the environmental impacts of continued operation of the Oconee reactors are SMALL, without actually demonstrating that any such findings were made, the NRC violates the cardinal rule that a NEPA analysis must show consideration of all relevant environmental concerns. State of New York, 681 F.3d at 476. Nothing in the record provided by the NRC here is relevant to the assertions of adequate protection that are made in support of the proposed finding that the environmental impacts of reactor accidents are SMALL. As discussed in the attached Mitman Declaration, these errors, omissions, and misleading statements have enormous safety and environmental significance because they obscure the fact that the NRC has failed to provide the basic level of protection to the Oconee reactors that is required by the Atomic Energy Act. 129
Although Petitioners do mention NEPA in this section, the documents to which the
Petitioners reference in the bullet points identified within Section b., preceding this paragraph,
127 See 2024 Corrected Petition at 12-14. To note, to the extent Petitioners reference on page 13 of the 2024 Corrected Petition to the 2011 Safety Evaluation implies that the safety evaluation imparted requirements onto the licensee, this is not the purpose of a safety evaluation, as was noted in Oconee, LBP 1, 95 NRC at 93 and the associated footnote 95.
128 See, e.g., Oconee, LBP-22-1, 95 NRC at 70, 72, and 73.
129 2024 Corrected Petition at 14 (citation omitted). As an aside, while not specifically pled in the body of the proposed contention, Section 2.10.3, entitled, Additional Sensitivity as it Relates to Population Dose Risk and the Jocassee Dam SAMA (Section F.4.1 of 2024 Draft ONS SEIS) of the 2024 Corrected Mitman Report indicates that the Staffs response in the DEIS to a comment he provided during the scoping period did not address [his] concern regarding his [attempt] to show the risk benefit of protecting Oconee from a Jocassee Dam failure. (2024 Corrected Mitman Report at 22). The NRC Staffs response is provided in Section F.4.1 of the DEIS, entitled, Additional Sensitivity as it Relates to Population Dose Risk and the Jocassee Dam SAMA (See DEIS at F-29-F-30), and it is not clear with what aspect Petitioners expert is taking issue or what is deficient with the DEIS in that section.
go to a current licensing basis issue, and also were included in the discussion as part of the
prior LBP-22-1 O r d e r. 130
Petitioners challenge, at bottom, the fact that the NRC Staffs DEIS does not show that a
finding of adequate protection was made regarding underlying safety-based issues 131, as
discussed at length above. Petitioners do not point to any requirement that would necessitate
the NRC S taff need provide such an adequate protection finding as part of the DEIS. There is
no requirement for a DEIS to reach an adequate protection finding regarding a safety-based
issue. Accordingly, the Petitioners have not demonstrated that the issues raised are material to
the findings the NRC Staff must make in this subsequent license renewal application, as
required 10 C.F.R. § 2.309(f)(1)(iv). Additionally, Petitioners challenge here again goes to a
current licensing basis issue, and therefore, is not within the scope of this proceeding, contrary
to 10 C.F.R. § 2.309(f)(1)(iii).
- 3.
Conclusion:
Proposed Contention 1 is inadmissible
In sum, proposed Contention 1 does not raise an issue that is within the scope of a
subsequent license renewal proceeding and does not raise an issue that is material to the
findings the NRC must make in a subsequent license renewal review, as required by 10 C.F.R.
§§ 2.309(f)(1)(iii) and (iv), respectively. Therefore, proposed Contention 1 should be found inadmissible.132
130 See, e.g., Oconee, LBP-22-1, 95 NRC at70, 72, and 73. (In Section F.4.1 of the DEIS, the NRC Staff performed a sensitivity analysis... to address [a] scoping comment [regarding the Jocassee Dam and severe accident mitigation alternatives.]. This sensitivity also addresses issues of uncertainty in the Oconee Station and staff analysis. (DEIS at F-29).
131 See, e.g., 2024 Corrected Petition at 7, 12, and 15.
132 To be clear, finding this proposed contention inadmissible in an adjudicatory hearing does not relieve the licensee nor the NRC Staff from ensuring the licensee is in compliance with the current licensing basis, nor does such denial remove the NRC Staffs ongoing oversight of flood protection issues. Further, denial of an out-of-scope contention does not relieve the NRC Staff of its duty to comply with NEPA and the NRCs implementing regulations for license renewal, as codified in 10 C.F.R. Part 51, Environmental Protection Regulations For Domestic Licensing And Related Regulatory Functions.
B. Contention 2 is inadmissible because it does not show that a genuine dispute exists on a material issue of l aw or fact.
The Statement of Contention for proposed Contention 2, states:
In addition to the deficiencies described above in Contention 1, the Draft SEIS is deficient in other significant respects, which result in the significant understatement of accident risk. These deficiencies, as set forth in Section 3.2 of Mr. Mitmans expert report, include an inaccurate all hazards core damage frequency (CDF) estimate (Section 3.2.1), significantly underestimating the probability of a large containment failure from fire (Section 3.2.2), making an unsupported assumption regarding the margin for population dose due to seismic events (Section 3.2.3),
underestimating risk by failing to aggregate changes in risk (Section 3.2.4), and relying on an invalid assumption that studies of boiling water reactors and Westinghouse pressurize (sic) water reactors are applicable to the Oconee reactors (Section 3.2.5). In addition, the Draft SEIS fails to address uncertainties, in violation of NEPA and NRC guidance for probabilistic risk assessments. See Limerick Ecology Action, 869 F.2d at 744 and NRC guidance cited in Mitman Report, Section 3.3. 133
Each individual aspect of proposed Contention 2 is not sufficient to show that a genuine
dispute exists on a material issue of law or fact in this matter as required by 10 C.F.R.
§ 2.309(f)(1)(vi). To show a genuine dispute exists, a contention must include references to
specific portions of the application that the petitioner disputes and the supporting reasons for
each dispute and if the Petitioner believes that the DEIS, in this case, fails to contain
information on a relevant matter, then the contention must identify each failure and the
supporting reasons for the petitioner s belief.134 The Staff analyzes the six aspects of proposed
Contention 2 against this standard, and concludes that it i s not met, as discussed below.
Proposed Contention 2, at the outset, simply provides a general statement of the purported
deficiencies and cites to certain sections of Section 3.2 of Mr. Mitmans expert report for the
apparent substance of the different issues in proposed Contention 2.135
133 2024 Corrected Petition at 16-17.
134 See Peach Bottom, CLI 11, 92 NRC at 342.
135 See 2024 Corrected Petition at 16-17.
- 31 -
- 1. Issue 1: Petitioners assertion that the all hazards core damage frequency estimate is inaccurate does not show that a genuine dispute exists on a material issue of law or fact.
The issue here is that Petitioners expert indicates that the comparison he takes issue
with is not based on the latest available information.136 Petitioners need to point to some
deficiency in the DEIS and not merely suggestions of other ways an analysis could have been
done, or other details that could have been included.137 The Petitioners expert is asserting that
the NRC Staff should apply the 2024 GEIS to this site-specific environmental review. The 2024
GEIS is not yet in effect, as explained in NRC Staff-Attachment A to this pleading. 138 Petitioners
expert is proffering that a different set of data or information should have been used in the
Staffs analysis, but the Commission has observe[d] that an application-specific NEPA review
represents a snapshot in time. 139 An alternative approach does not constitute identification of a
specific deficiency in the Staffs analysis. 140 Petitioners would need to identify a deficiency in the
136 2024 Corrected Mitman Report at 34 (Section 3.2.1, PWR All Hazards CDF Comparison).
137 Seabrook, CLI 5, 75 N RC a t 323 (citati on omitted) (Given the quantitative nature of the [severe accident mitigation alternatives] analysis, where the analysis rests largely on selected inputs, it may always be possible to conceive of alternative and more conservative inputs, whose use in the analysis coul d result in greater estimated accident consequences. But the proper question is not whether there are plausible alternative choices for use in the analysis, but whether the analysis that was done is reasonable under NEPA. We have long held that contentions admitted for litigation must point to a deficiency in the application, and not merely suggestions of other ways an analysis could have been done, or other details that c ould have been included.). While this cited case is in the context of severe accident mi tigation alternatives, a reasonable argument could be made that assertions proffering different ways a potential calculation could be altered to produce a different outcome is not sufficient, but rather must point to a deficiency in the analysis conducted.
138 Although not determinative on contention admissibility, Section 3.1.2 of the 2024 Corrected Mitman Report, entitled, Inadequate consideration of flooding risks from Jocassee Dam Failure states, The Draft SEIS parrots Dukes flooding CDF values (see Tabl e 1) without supplying any explanation. It cites no audit reports or internal verification calculations, it simply repeats Dukes values. See 202 4 Corrected Mitman Report at 32. P age 1-3 of t he DEIS states that t he NRC S taff conducted a virtual environmental and severe accident mitigation alternatives (SAMAs) audit of Oconee Station. (NRC 2021-TN8910).
References to a Staff audit is mentioned in the D EIS ( See, e.g., F-11, F-12, F-17, F-24, etc.).
139 Luminant Generation Company, LLC ( Comanche Peak Nuclear Power Plant, Units 3 and 4), CLI 7, 75 N RC 3 79, 391 (2012).
140 Seabrook, CLI 5, 75 N RC a t 323 (citati on omitted).
- 32 -
Staffs analysis, which they have not done.141 Therefore, this issue in proposed Contention 2
does not show that a genuine dispute exists with the DEIS on a material issue of law or fact, as
required by 10 C.F.R. § 2.309(f)(1)(vi).
- 2. Issue 2: Petitioners assertion that the probability of large containment failure from fire is significantly underestimated does not show that a genuine dispute exists on a material issue of law or fact.
Petitioners expert asserts that the process to calculate population dose risk for fire
events leads to unrepresentatively low population dose by a factor of four for fire and fire is the
largest external event contributor to risk. 142 However, Petitioners need to point to some
deficiency in the DEIS and not merely suggestions of other ways an analysis could have been
done, or other details that could have been included.143 The Commission has found that where
the analysis rests largely on selected inputs, it may always be possible to conceive of alternative
and more conservative inputs, whose use in the analysis could result in greater estimated
accident consequences. 144
Petitioners expert provides calculations but does not demonstrate a deficiency in the
Staffs analysis. Rather, he claims that if other variables were considered, the Staffs analysis
could potentially change. However, this alone does not identify a specific deficiency in the DEIS
but is rather proffering a different way in which these analyses could be calculated. 145
Accordingly, Petitioners have not shown that a genuine dispute on a material issue of law or fact
exists, as required by 10 C.F.R. § 2.309(f)(1)(vi).
141 See DTE Electric C ompany ( Fermi Nuclear Power Plant, Unit 3), CLI-15-10, 81 N RC 535, 543 (2015).
(Supplementation is required when the new information presents a seriously different picture of t he environmental impact of t he proposed project from what w as previously envisioned. (citation omitted).
142 2024 Corrected Mitman Report at 35 (Sec tion 3.2.2, entitled, Fire Events).
143 Seabrook, CLI-12-5, 75 NRC at 323 (citation omitted).
144 See id.
145 See id.
- 33 -
- 3. Issue 3: Petitioners assertion that the margin for population dose due to seismic events does not show that a genuine dispute exists on a material issue of law or fact.
Petitioners expert here asserts that it is not clear if the assumed margin in the
population dose risk for seismic events exists. 146 However, Petitioners need to point to some
deficiency in the DEIS and not merely suggestions of other ways an analysis could have been
done, or other details that could have been included.147 Additionally, neither mere speculation
nor bare or conclusory assertions, even by an expert, alleging that a matter should be
considered will suffice to allow the admission of a proffered contention.148
The Commission has found that where the analysis rests largely on selected inputs, it
may always be possible to conceive of alternative and more conservative inputs, whose use in
the analysis could result in greater estimated accident consequences. 149 At bottom, the
Petitioners expert asserts that if other variables were considered as part of the analysis, then
the analysis could potentially change. However, this alone does not identify a specific deficiency
in the DEIS but is rather proffering a different way in which these analyses could be calculated.
In sum, similar to Issue 2 above, Petitioners have not shown that there is a genuine dispute on a
material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(vi).
- 4. Issue 4: Petitioners assertion that failing to a ggregate changes in risk underestimates risk does not show that a genuine dispute exists on a material issue of law or fact.
In this issue, Petitioners expert asserts that the Staff evaluated the various accident/risk
scenarios in isolation, rather than aggregating them and compounding their effects, and that
Petitioners expert needs information that was not part of the application or DEIS to perform the
146 2024 Corrected Mitman Report at 35 (Section 3.2.3, entitled, Seismic Events).
147 Seabrook, CLI 5, 75 N RC a t 323 (citati on omitted).
148 See S. Nuclear Operating Co. (Early S ite Permit for V ogtle E SP Site), LBP-07-3, 65 NRC 237, 253 (2007) (citing Fansteel, Inc. (Muskogee, Oklahoma Site), CLI 13, 58 NRC 195, 203 (2003)).
149 Seabrook, CLI 5, 75 N RC at 323.
- 34 -
calculations he desires. 150 However, Petitioners need to show that there is a genuine dispute on
a material issue of law or fact, consistent with 10 C.F.R. § 2.309(f)(1)(vi). Petitioners need to
point to some deficiency in the DEIS and not merely suggestions of other ways an analysis
could have been done, or other details that could have been included.151 Here, Petitioners
expert asserts that the data provided in the various sources (i.e., 1996 GEIS, 1998 Oconee
SEIS, 1998 Oconee ER [Environmental Report], 2013 GEIS Rev. 1, 2021 Oconee ER and Draft
Oconee SEIS) is not enough to perform his calculations.152 However, Petitioners expert does
not identify what specific information he believes is missing. Rather, Petitioners experts
suggestion that the NRC Staff should provide the necessary data to conduct the analysis
regarding how changes in CDF estimates effect overall risk does not show a deficiency in the
DEIS, but is, instead, providing anot her approach to the analysis or other details that could have
been included. Accordingly, Petitioners experts assertions in this issue do not show that a
genuine dispute on a material issue of law or fact exists regarding the Staffs analysis in the
DEIS, contrary to 10 C.F.R. § 2.309(f)(1)(vi).
- 5. Issue 5: Petitioners assertion that the applicability of studies of boiling water reactors and Westinghouse pressurized water reactors to Oconee Station rely on an i nvalid assumption does not show that a genuine dispute exists on a material issue of law or fact.
The issue raised here is that Petitioners expert is not clear as to whether information
regarding the State-of-the-Art Reactor Consequence Analysis (SOARCA) is applicable or how
the information is used within the Staffs analysis without additional analysis. 153 However, the
rule for contention admissibility is that the Petitioners must show a genuine dispute on a
150 2024 Corrected Mitman Report at 35-37 (Section 3.2.4, entitled, Underestimating Risk by Failing to Aggregate Changes in Risk).
151 Seabrook, CLI 5, 75 N RC a t 323 (citati on omitted).
152 202 4 Corrected Mitman Report at 37.
153 Id.
material issue of law or fact exists. 154 As discussed below, the information presented does not
show a specific deficiency in the Staffs analysis. Specifically, this issue refers to Section 3.2.5,
entitled, Invalid assumption that studies of BWR [boiling water reactor] and Westinghouse PWR
is applicable to Oconee reactors of the Petitioners experts corrected report, which states:
In Section F.3.2.2, the Draft SEIS also discusses the State-of-the-Art Reactor Consequence Analysis (SOARCA) work. As stated in the text, the SOARCA work was performed on a BWR and two Westinghouse PWRs. [Draft SEIS page F-22.]
But Oconee, as a Babcock & Wilcox (B&W) PWR -- with once through steam generators (SG) in contrast to more common u-tube steam generators - is significantly different than the SOARCA plants.
In addition to the differences in reactor design, Oconee has other unique features.
It is the only plant in the nation without emergency diesel generators (EDG) as the required source of onsite emergency power, relying instead on the Keowee hydro units. SOARCA identified losses of offsite power (LOOP) as the dominant contributor to population dose. With a completely different approach to addressing LOOPs, it is unclear whether the SOARCA insights do or do not apply to Oconee absent the EDGs. Oconee also, does not have main steam isolation valves (MSIV) between the SG and the turbine. MSIV have an impact on population dose. Without additional analysis it is unclear how any useful insights obtained from the SOARCA work is relevant to Oconee. 155
The DEIS states, [t]he recent SOARCA studies (published 2012-2022) add to the NRC staffs
updated understanding of the consequences that may result from seismic initiators. These
studies provided no new analysis of quantifying CDFs but did analyze the conditional
consequences. 156 While Petitioners are not required to prove their contentions at the contention
admissibility stage 157, [c]ontentions cannot be based on speculation but must have some
reasonably specific factual or legal basis.158 Simply because the Petitioners expert cannot
identify what useful insights159 are relevant to the Oconee Station does not show that a
154See Peach Bottom, CLI 11, 92 NRC at 342.
155 2024 Corrected Mitman Report at 37.
156 See DEIS at F-22.
157 See Independent Spent Fuel Storage Installation, CLI 22, 60 NRC at 139.
158 See Vermont Yankee, CLI-15-20, 82 NRC at 221 (citation omitted).
159 2024 Corrected Mitman Report at 37.
genuine dispute on a material issue of law or fact exists. Thus, this aspect of proposed
Contention 2 does not show that a genuine dispute on a material issue of law or fact exists, as
required by 10 C.F.R. §§ 2.309(f)(1)(vi).
- 6. Issue 6: Petitioners assertion that the DEIS fails to address uncertainties in violation of NEPA and NRC guidance for probabilistic risk assessments does not show that a genuine dispute exists on a material issue of law or fact.
In this issue, Petitioners expert asserts that the NRC Staff should use a different
approach to calculating uncertainties in the DEIS.160 To have an admissible contention,
Petitioners need to point to some deficiency in the DEIS and not merely suggestions of other
ways an analysis could have been done, or other details that could have been included.161 The
assertions raised in this issue do not show that a genuine dispute on a material issue of law or
fact exists. Additionally, as discussed below, Petitioners reliance on Limerick Ecology Action,
Inc. v. NRC 162 is misplaced regarding consideration of uncertainties. 163 In part, Section 3.3,
entitled, Failure to Address Uncertainties of the Petitioners experts corrected report asserts
the following:
In Section F.3.9, the Draft SEIS discusses uncertainty in the 1996 GEIS. It states that the 1996 GEIS uses the very conservative 95th-percentile, UCB estimates for environment impact. [2024 Draft ONS SEIS, Page F-29 Line 1] These estimates are of the total population dose. But using the 95th percentile of the final results does not constitute comprehensive uncertainty analysis.164
The DEIS states:
For its severe accident environmental impact analysis for each nuclear power plant, the 1996 LR GEIS used very conservative 95th-percentile upper-confidence bound (UCB) estimates for environmental impact whenever available. When dealing with risk assessment, use of 95th percentile values provides a more conservative estimate than 50th percentile or mean values. Using the 95th percentile value reduces the likelihood of underestimating risk. This 95th percentile approach provides conservatism to cover uncertainties, as described in Section 5.3.3.2.2 of the 1996 LR GEIS. The 1996 LR GEIS concluded that the probability-
160 2024 Corrected Mitman Report at 37-39.
161 Seabrook, CLI 5, 75 NRC at323(citation omitted).
162 Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989).
163 2024 Corrected Petition at 17.
164 2024 Corrected Mitman Report at 37-38.
weighted consequences of severe accidents, as related to LR [license renewal],
are SMALL compared to other risks to which the populations surrounding nuclear power plants are routinely exposed. Since issuing the 1996 LR GEIS, the NRCs understanding of severe accident risk has continued to evolve. 165
Petitioners are, at bottom, disputing the uncertainty level used in the GEIS. Petitioners
expert's assertion that a different uncertainty analysis should be used does not identify a
deficiency in the Staffs analysis in the DEIS. Additionally, neither mere speculation nor bare or
conclusory assertions, even by an expert, alleging that a matter should be considered will
suffice to allow the admission of a proffered contention.166 Here, Petitioners expert suspect[s]
what a different uncertainty band might be, but that is not sufficient to show that a genuine
dispute on a material issue of law or fact exists. 167
Additionally, citing Limerick, Petitioners further assert that NEPA requires the Staffs
DEIS to address uncertainties in probabilistic risk assessments.168 However, the court in
Limerick did not make this finding and, indeed, the findings the court did make regarding the risk
analyses in NRC environmental documents undermines Petitioners claim that the Staff is
required to do more than it has. In Limerick, the court stated that NRC S taff appropriately
considered the risk of sabotage at facilities to be beyond the state of the art of probabilistic risk
assessment but within the uncertainties of risk presented for the severe accidents considered
[in the Final Environmental Statem ent]. 169 Despite the party in that case asserting that the risks
of sabotage were quantifiable and required to be addressed under NEPA, the court found that
the NRC concluded that current risk assessment techniques could not provide a meaningful
basis upon which to measure such risks and that the challenging party in that case should
165 DEIS at F F-7 (citation omitted).
166 See S. Nuclear, LBP- 07-3, 65 NRC at 253 (citation omitted).
167 2024 Corrected Mitman Report at 39.
168 2024 Corrected Petition at 17 (Citing, Limerick Ecology Action, 869 F.2d at 744 ).
169 Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 742. (quoting the Final Environmental Statement for Limerick Nuclear Power Generating Station at 5-74 (citation omitted)).
have advanced some method or theory by which the NRC could have entered into a meaningful
analysis of the risk of sabotage despite its asserted inability to quantify the risks.170 The court
held that, in analyses requiring application of the Staffs special expertise, the Staffs findings
should be given substantial deference.171 In the absence of credible evidence or theory that
would cast any serious doubt on the Commissions conclusion, the court found that the Staffs
finding regarding the uncertain risk of sabotage met NEPAs hard look requirement.172
So, the court in Limerick did not find that uncertainties are required to be considered in
probabilistic risk assessments, as Petitioners assert. The court was not even asked to consider
that question. The court instead found that, even though the party in that case provided an
expert opinion to raise challenges to the risk of sabotage analysis conducted by NRC, this
challenge did not render the Staffs analysis insufficient under NEPA or require reconsideration of the assessed risk of sabotage.173 The court held that they were required to be at [our] most
deferential when the NRC makes such a scientific determination and dismissed the partys claim.174
Like the expert in Limerick, Petitioners expert raises claims throughout the 2024
Corrected Mitman Report that attempt to challenge Staffs analyses. However, the court found
that such expert opinions must cast... serious doubt on the NRC Staffs analysis to be
litigable. 175 As discussed at length regarding proposed Contention 2, Petitioners expert has
failed to do that. Therefore, following the logic set forth by the court in Limerick, Petitioners
challenge to S taffs analysis should be denied. Accordingly, this aspect of proposed Contention
170 Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, at 743-744(citationomitted).
171 Id. at 744 ( citation omitted).
172 Id. at 743.
173 Id. at 744.
174 Id. at 743 ( citingBaltimore Gas Electric Co. v. Natural Resources Defense Council,462U.S. 87, 103 (1983).
175 Id. at 743 ( citation omitted).
2 does not show that a genuine dispute on a material issue of fact or law exists, as required by
10 C.F.R. § 2.309(f)(1)(vi).
- 7.
Conclusion:
Proposed Contention 2 is inadmissible
In sum, for the reasons discussed above, proposed Contention 2 does not proffer an
admissible contention because it does not show that a genuine dispute exists on a material
issue law or fact, contrary to the requirement in 10 C.F.R. § 2.309(f)(1)(vi).
C. Contention 3 is inadmissible because it does not raise issues that are w ithin the scope of the p roceeding or show a g enuine dispute exists on a material issue of law or f act.
Proposed Contention 3 alleges that the D EIS does not satisfy NEPA or 10 C.F.R. § 51.71
because it does not discuss the effects of climate change on accident risk. 176 However, to be
admissible, a contention must be within the scope of the proceeding and show that a genuine
dispute on a material issue of law or fact exists, consistent with 10 C.F.R. §§ 2.309(f)(1)(iii) and
(vi). As discussed below, Petitioners challenges regarding the effects of climate change on
accident risk are not within the scope of the environmental review for license renewal, and do
not provide specific claims of how the DEIS is insufficient under NEPA and 10 C.F.R. § 51.71,
thereby failing to show a genuine dispute on a material issue of law or fact.
- 1. The effects of climate change on accident risk are not within the scope of the environmental review for license renewal.
Petitioners assert that the DEIS does not discuss the effects of climate change on
accident risk. 177 However, as the Commission has explained, the effects of environmental
conditions on a nuclear power plant, as opposed to the effects of a facility on the environment,
are not within the scope of license renewal.178 The DEIS contains a section entitled, Climate
Change Projections, that specifically states that the effects of climate change on Oconee
176 2024 Corrected Petition at 18.
177 Id.
178 See, e.g., Diablo Canyon, CLI 21, 82 NRC at 304-305.
Station structures, systems, and components (SSCs) are not within the scope of the NRC
Staffs license renewal environmental review. 179
As stated in the D EIS, the ability for a nuclear power plant to cope with natural
phenomena hazards is an ongoing operational issue, for which any new information about
changing environmental conditions is evaluated as it becomes available to determine if any
safety-related changes are needed to ensure safe operating conditions or compliance with the
plants technical specifications.180 As noted at length above in the Staffs response to proposed
Contention 1, safety issues that are not limited to aging management programs and time-limited
aging analyses are not cognizable in a license renewal proceeding.181
Contrary to Petitioners assertions, the NRC S taff did not reject consideration of climate
change effects on Oconee Station SSCs in the DEIS because they are so small as to be
remote and speculative, 182 but because they are not within the scope of the environmental
review for license renewal as they are handled as a current licensing basis issue. 183 NRC
considers the impacts on plant safety of matters such as climate change as part of its ongoing
oversight of nuclear power plants, because such considerations are not unique to license
renewal. 184 However, license renewal safety reviews do address climate related topics, such as
freeze/thaw185, but that is not being challenged here. For example, in Section 3.4, the
179 DEIS at 3-206 (Climate Change Projections) and 3-208 (Lines 23-40).
180 DEIS at 3-208.
181 See 10 C.F.R. § 54.21, Contents of application--technical information; 10 C.F.R. § 54.29, Standards for issuance of a renewed license paragraph (a); 10 C.F.R. § 54.30, Matters not subject to a renewal review; See, e.g., Turkey Point, CLI-01-17, 54 NRC at 16.
182 State of New York V. NRC, 681 F3d 471, 478-79 (D.C. Cir. 2012). (Even though this is Petitioners argument, New York v. NRC stated, [a]n agency may find no significant impact [FONSI] if the probability is so low as to be remote and speculative, or if the combination of probability and harm is sufficiently minimal. (citation omitted). Here, the NRC Staff prepared a DEIS for the subsequent license renewal of Oconee Station and determined that the impacts of postulated accidents on the environment is SMALL.)
183 DEIS at 3-208; 10 C.F.R. § 54. 30(b).
184 DEIS at 3-208.
185 See, e.g., Safety Evaluation Report, Related to the Subsequent License Renewal of Oconee Nuclear Station, Units 1, 2, and 3 (Dec. 19, 2022) (ML22349A145) at 3-231 ( SLRA Section 3.5.2.2.1.7, associated
Petitioners experts report appears to raise issues regarding the frequency and intensity of
some external events, such as flooding. 186 However, the licensees ability to protect against
such events is a current licensing basis issue, and flooding concerns would involve more than
just the limited scope structures and components that perform an intended function, as
described in 10 C.F.R. § 54.4, Scope, without moving parts or without a change in
configuration or properties. 187
Additionally, Petitioners expert asserts that the DEIS does not reflect a rigorous
evaluation of all external hazards, does not consider uncertainties, and does not consider
reasonably foreseeable impacts of climate change on accident risks at Oconee Station.188
However, Petitioners experts concerns are tied to a safety-based issue (e.g., protection of
Oconee Station against flooding).189 As licensees are required to protect against the risk of
flooding as part of their current licensing basis, a challenge to the adequacy of flood
management by a licensee is not within the scope of the license rene wal process. 190 For the
reasons discussed above, the proposed contention should not be admitted as it fails to meet the
contention admissibility criteria of 10 C.F.R. § 2.309(f)(1)(iii) as the effects of climate change on
the SSCs of Oconee Station are deemed not within the scope of the environmental review.
with SLRA Table 3.5-1, [aging management review] Item 3.5.1-011, addresses loss of material (spalling, scaling) and cracking due to freeze-thaw of inaccessible areas of containment concrete components exposed to air-outdoor or groundwater/soil environments).
186 See, e.g., 2024 Corrected Mitman Report at 41-44 ((e.g., at 41 The NRC has focused on two types of flooding events at Oconee.... If the plant is not designed to handle this event (i.e., sufficient site drainage capability), there is the potential again for water to enter the plant cause damage including core damage and containment failure.) (e.g., at 44 So how could a Climate Change exacerbated flood impact Oconee?)).
187 See 10 C.F.R. § 54.21(a)( 1)(i).
188 2024 Corrected Mitman Report at 45.
189 See, e.g., Id. at 39-40, 44.
190 See Sequoyah, LBP 8, 78 NRC at 12; 10 C.F.R. § 54.30.
- 2. Petitioners fail to show that a genuine dispute exists with the DEIS on a material issue of law or fact.
Proposed Contention 3 lacks specific allegations of how the DEIS is insufficient under
NEPA and 10 C.F.R. § 51.71, beyond vague allegations that the DEIS fails to address the effects
of climate change on Oconee Station SSCs. 191 To have an admissible contention, Petitioners
are required to show that a genuine dispute exists on a material issue of law or fact, consistent
with 10 C.F.R. § 2.309(f)(1)(vi). For example, [b]are assertions and speculation, even by an
expert, are insufficient to trigger a full adjudicatory proceeding.192
The DEIS discusses the environmental impacts of design-basis accidents and severe
accidents in, for example, Appendix F, Environmental Impacts Of Postulated Accidents, which
contains a discussion of numerous analyses, including flooding risk at Oconee Station. 193 The
accident scenario Petitioners expert raises with some detail regards flooding risks at Oconee
Station. 194 To Petitioners experts probable maximum precipitation overtopping scenario, for
example, a dam failure caused by [o]vertopping of the Jocassee Dam is not considered a
credible event due to the multiple and diverse means of passing water and the large margin of
storage capacity associated with the reservoir. 195 However, Petitioners expert does not present
any data or argument supporting his assertion that climate change will cause a probable
maximum precipitation ( PMP) event to be a credible scenario, but instead speculates that
climate change could cause a flooding event due to overtopping and [m]aybe, the NRC should
191 2024 Corrected Petition at 18.
192 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 714 (2012) (citation omitted).
193 See, e.g., DEIS at Appendix F, Environmental Impacts Of Postulated Accidents.
194 2024 Corrected Mitman Report at 44.
195 See, e.g., Revision 1 to Flood Hazard Reevaluation Report Oconee Nuclear Station (201 5)
(ML16272A217) at 29-30.
look into it. 196 A statement that the NRC should look into something does not show a genuine
dispute of material law or facts exists.
In Turkey Point, a proposed contention in that proceeding similarly asserted that the
DEIS failed to consider the effects of climate change on accident risk, and relied on very similar
points set out in a similar declaration by Petitioners expert. 197 The Petitioner there also similarly
made what the Licensing Board described as only a passing reference to a portion of the
Staffs analysis, which the Licensing Board determined had failed to sufficiently tie the
Petitioner s claim directly to the Staffs DEIS and the contention was therefore inadmissible. 198
Just as the Licensing Board in Turkey Point rejected that contention as it had not provided
sufficient support to raise a genuine, material dispute, proposed Contention 3 should be
rejected here. 199
Petitioners cite to a Government Accountability Office (GAO) Report 200 and guidance
from the Council on Environmental Equality (CEQ) 201 that they claim supports their assertions
that the DEIS is insufficient with regard to climate change. However, Petitioners do not identify
any requirement that the DEIS must consider climate change impacts on accident risks and fail
to specifically identify any deficiencies in the Staffs analysis in the D EIS. While the GAO Report
alleges that the NRC does not fully address the risks of climate change to nuclear power plants,
the GAO Report disclaims multiple times that [t]his analysis does not account for any protective
measures plants may have taken to mitigate the risk of selected natural hazards.202 Although
196 See 2024 Corrected Mitman Report at 44-45.
197 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP 03, 99 NRC __,
__ (March 7, 2024) (slip op. at 32-34).
198 Id. at __ (slip op. at 33-34).
199 Id.
200 2024 Corrected Mitman Report at 40- 41 (citing GAO 106326, Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change (April 2024) (GAO Report) available at: H ttps://www.gao.gov/products/gao-24-106326.
201 2024 Corrected Mitman Report at 40.
202 GAO Report at 17, 20, 22, 24.
- 44 -
Petitioners expert cites the GAO Report to assert that the NRC does not fully consider the risks
to nuclear power plants from climate change during license renewal, the report makes no
substantive claims that NRC S taffs environmental reviews during license renewal should or
must account for the effects of climate change on the SSCs of a nuclear power plant.203 It is
important to note that the GAO R eport does not address any specific risks of climate change to
Oconee Station, and Oconee Station only occurs once in the report in an Appendix of a list of
operating nuclear power plants.204 Rather, the GAO report recommends the Chair of the NRC
direct internal assessment of whether its licensing and oversight processes adequately address
climate change, implement a plan to address any gaps identified, and develop and finalize
guidance to incorporate climate data, but does not identify any way in which Staffs license
renewal reviews are deficient under the current statutory requirements.205 Regarding guidance
from the CEQ, Petitioners expert indicates that the NRC has ignored guidance from the
[CEQ] 206, when the NRC stated that impacts of natural phenomena on plant SSCs are outside
the scope of NRC's license renewal environmental review.207 However, 10 C.F.R. § 54.30(a)- (b)
expressly excludes current licensing basis issues from renewal review, which is not modified by
either CEQ guidance or the GAO Report.208
203 Furthermore, as Acting Executive Director for Operations Raymond Furstenau provided in the NRCs official comments to the GAO report, in part, However, considering the description of the conservatisms, safety margins, and defense-in-depth policies described in the report, the NRC does not agree with the conclusion that the agency does not address the impacts of climate change. In effect, the layers of conservatism and defense in depth incorporated into NRCs processes provide reasonable assurance regarding any plausible natural hazard and combinations at a site for the licensed operational lifetime of the reactor, including those that could result from climate change. Specifically, the processes, tools, methods, models, data, and additional margins provide reasonabl e assurance of the ability to withstand or mitigate projected changes in natural hazards. GAO Report at 65.
204 GAO Report, Appendix III, Tabl e 1 at 59.
205 GAO R eport at 40 (Recommendations for Executive Action).
206 See 2024 Corrected Mitman Report at 40 (citation omitted).
207 See id. at 40 (citing, Draft SEIS Page 3-30, Lines 12-14).
208 See also Limerick Ecology Action, 869 F.2d a t 743 (As the NRC is an independent agency, CEQ guidance does not create any binding requirements on the NRC, except to the extent the agency has expressly adopted them.).
Petitioners expert cites to several Agency efforts at the NRC to better account for the
effects of climate change and a project to modernize the probable maximum precipitation
methodology lead by the National Oceanic and Atmospheric Administration (NOAA). 209
However, these updates do not show that a genuine dispute exists on a material issue of law or
fact with the DEIS and therefore do not form the basis for an admissible contention. Petitioners
expert apparently wishes the NRC to adopt these updates before they are completed by either
the NRC and NOAA, and incorporate them into the license renewal process for Oconee Station
because [c]limate change is here, the NRC and the licensee know it, steps should be taken
now to protect the plant and the public from its effects. 210 As noted before in proposed
Contention 2, Petitioners need to point to some deficiency in the DEIS and not merely
suggestions of other ways an analysis could have been done, or other details that could have
been included.211 Accordingly, Petitioners vague claims about the effects of climate change do
not show that a genuine dispute exists on a material issue of law or fact. Therefore, proposed
Contention 3 should not be admitted because it does not meet the contention requirements
pursuant to 10 C.F.R. § 2.309(f)(1)(v i).
- 3.
Conclusion:
Proposed Contention 3 is inadmissible
In sum, proposed Contention 3 is not within the scope of this proceeding and does not
show that a genuine dispute exists on a material issue of law or fact, as required by 10 C.F.R.
§§ 2.309(f)(1)(iii) and (vi). Proposed Contention 3, therefore, is inadmissible.
CONCLUSION
For the reasons set forth above, the NRC Staff submits that Beyond Nuclear and the
Sierra Club have failed to proffer at least one admissible contention. Accordingly, the Petitioners
request for hearing and petition for leave to intervene should be denied.
209 2024 Corrected Mitman Report at 42-43.
210 Id. at 43, 46.
211 Seabrook, CLI 5, 75 NRC at 323(citation omitted).
- 46 -
Respectfully submitted,
/Signed (electronically) by/
Mary Frances Woods Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555- 0001 Telephone: (301) 287-3514 E-mail: Mary.Woods@nrc.gov
Executed in Accord with 10 CFR 2.304(d)
Megan A. Wright Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555- 0001 Telephone: 516-765-6523 E-mail: Megan.Wright@nrc.gov
Executed in Accord with 10 CFR 2.304(d)
Kevin D. Bernstein Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555- 0001 Telephone: (301) 415-1001 E-mail: Kevin.Bernstein@nrc.gov
Dated in Rockville, Maryland this 31st day of May 2024
NRC Staff-Attachment A
Response to May 21, 2024, Licensing Board Order
NRC Staff-Attachment A
Response to May 21, 2024, Licensing Board Order
The Licensing Board issued an Order, dated May 21, 2024, providing five questions for
participants to answer and to incorporate into their respective pleadings.212 The NRC Staffs
responses to the Licensing Boards questions are provided below:
- 1. What Is the Applicability of the 2024 Rule to this Proceeding?
When effective, will the 2024 Rule apply to a pending SLR [subsequent licensing renewal] application proceeding like this one, including any associated adjudication?
(Licensing Board Question 1, internal citations omitted).
NRC Staff Response:
The 2024 Rule would not apply to the contentions at issue in the current
adjudicatory proceeding. The focus of this proceeding is limited to new information in
the draft site-specific Environmental Impact Statement (DEIS), which was conducted
using a site-specific evaluation. 213
In CLI-22-3, the Commission provided SLR applicants with pending applications
under Staff review with two approaches to continuing environmental reviews in light of
its decision: 1) the applicants could wait for the revised rulemaking and the Generic
Environmental Impact Statement for license renewal (LR GEIS) to be completed and
for the Staff to take appropriate action to consider the environmental impacts of the
SLR application; or 2) the applicant [could] submit a revised environmental report
providing information on environmental impacts during the subsequent license renewal
period. 214 Duke Energy Carolinas, LLC (Duke Energy) elected to submit a site-specific
212 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), LBP Memorandum and Order (Request to Address Impacts of Final Rule Applying Generic Environmental Impact Statement to Subsequent License Renewal Period) (May 21, 2024) (unpublished) (ML24142A273).
213 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), CLI 3, 95 NRC 40, 41-42 (2022).
214 Oconee, CLI 3, 95 NRC at 41.
environmental report (ER) supplement215, consistent with the second approach. As
such, the Staff appropriately considered the environmental impacts of the Oconee
Nuclear Station, Units 1, 2, and 3 (Oconee Station) SLR application on a site-specific
basis. Issuance of the 2024 Rule will not affect a Licensing Board decision on the
admissibility of the Petitioners currently pending contentions, which challenge the
Staffs site-specific DEIS.216
The 2024 Rule potentially could, however, impact future stages of this
adjudicatory proceeding regarding new and amended contentions. As discussed
further below, if the 2024 Rule becomes effective before issuance of the final
environmental impact statement (EIS), the Staff would consider whether the 2024
GEIS and final Rule contain any new and significant information, to confirm in the final
EIS that the site -specific analyses in the DEIS is consistent with the analyses in the
2024 Rule. This confirmation, however, would be part of the standard new and
significant information process that Staff always uses prior to issuance of the final
EIS. 217 Petitioners would have the opportunity to file new or amended contentions
upon issuance of the final EIS, in accordance with NRC regulations.
215 Subsequent License Renewal-Appendix E Environmental Report Supplement 2, (Nov. 2022)
(ML22311A036) (2022 site-specific ER supplement).
216 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI 1, 99 NRC ___,
___ (slip op. at 5-6) (Mar. 7, 2024) (Similarly, information developed during any hearing on environmental contentions would supplement the environmental record. As such, we find that the Staffs identification of the issuance of the draft site-specific EIS as the point of completion of its site-specific review reflects a reasonable interpretation of the Commissions direction in CLI 3 (citation omitted)).
217 See Fermi, CLI-15-10, 81 NRC 535, 543 (2015). (Supplementation is required when the new information presents a seriously different picture of the environmental impact of the proposed project from what was previously envisioned. (citation omitted).
- 2. When Does the NRC Staff Anticipate the 2024 Rule Will Be Effective?
What is the NRC Staffs schedule for submitting the 2024 Rule, as revised by the Commission, to the NRC Secretary for transmission to the Federal Register and when does the Staff anticipate that the 2024 Rule will become effective? (Licensing Board Question 2)
NRC Staff Response:
The NRC S taff estimates that the projected date of transmitting the 2024 Rule to
the NRC Secretary for transmission to the Federal Register to be in August 2024.218
The 2024 Rule will become effective 30 days after issuance. All applicants for license
renewal must use the 2024 GEIS in their applications no later than one year after the
2024 Rule becomes effective.
- 3. What Is the Relevance of the 2024 Rules Compliance Provision to this Proceeding?
What effect, if any, does the 2024 Rules requirement that there be compliance with the rule within one year after publication have upon its effectiveness or its potential application in this adjudicatory proceeding? (Licensing Board Question 3, internal citations omitted).
NRC Staff Response:
The one-year compliance requirement does not have any effect on this
proceeding. Per CLI-22-3, the Commission provided two options for subsequent
license renewal applicants, including proceeding with a site-specific analysis. 219
Because Duke Energy has already submitted its site-specific ER supplement to the
Oconee Station SLR application, the compliance provision has no impact on this
proceeding.
218 See Planned Rulemaking Activities-Rule website at: Https://www.nrc.gov/reading-rm/doc-collections/rulemaking-ruleforum/active/ruledetails.html?id=96.
219 Oconee, CLI 3, 95 NRC at 41.
- 4. What Is the Status of NRC Staffs Compliance with the 2024 Rule in this Proceeding?
10 C.F.R. § 51.95(c)(4) provides that in making a determination about license renewal environmental impacts, the NRC staff, adjudicatory officers, and [the] Commission shall integrate the conclusions in the generic environmental impact statement for issues designated as Category 1 with information developed for those Category 2 issues applicable to the plant under § 53.51(c)(3)(ii) and any new and significant information.
Given this provision, once the 2024 Rule becomes effective, in light of the discussion in Appendix G to its February 2024 draft site-specific environmental impact statement (SSEIS) for the Oconee facility, what additional actions, if any, must be taken by the NRC Staff to incorporate the provisions of the 2024 Rule and the 2024 GEIS into this licensing proceeding (including the 2024 draft SSEIS) before any adjudication of Petitioners contentions would be subject to the terms of the 2024 Rule and the 2024 GEIS?
(Licensing Board Question 4, internal citations omitted).
NRC Staff Response
The Licensing Board can adjudicate Petitioners contentions independent of the
2024 Rule, as discussed above in Staffs response to Licensing Board Question 1,
because the Staffs DEIS contains site-specific analyses based on a site-specific ER
submitted by Duke Energy. 220 Petitioners contentions were submitted on this site-
specific document and are therefore not subject to the terms of the 2024 Rule, which is
not yet effective. Also, Staff does not need to incorporate the provisions of the 2024
Rule into this proceeding; as noted previously, the Staff would update the final EIS and
confirm that the site-specific analyses in the DEIS are consistent with the 2024 LR GEIS
and 2024 Rule.
- 5. What Impact Does the 2024 Rule Have on This Proceeding Relative to Petitioners Contentions?
Assuming the 2024 Rule is applicable to this proceeding per item 1 above, Petitioners contentions could fall within the ambit of Table B-1s issue groupings and findings as well as the associated Category 1 and 2 designations. In light of the NRC Staffs responses to items 2 and 3 above regarding the 2024 Rules effective date and NRC Staff compliance with the 2024 Rule in this proceeding, what impact would the 2024 Rule have on this proceeding, including additional participant filings that would be appropriate and the schedule for such submissions? (Licensing Board Question 5, internal citations omitted).
220 Turkey Point, CLI 1, 99 NRC ___, ___ (slip op. at 5-6).
NRC Staff Response:
The 2024 Rule will have no impact on the contention admissibility portion of this
proceeding and the Licensing Board can adjudicate the issues before it independent of
the 2024 Rule. 221 Should the 2024 Rule become effective during the pendency of this
proceeding, as noted above in response to Licensing Board Question 1, the Petitioners
present contentions are not affected.
As the Licensing Board notes, the NRC Staff, in Appendix G to the DEIS 222,
recognized that the 2024 Rule and 2024 LR GEIS were pending and proactively
addressed changes in the 2024 Rule and 2024 LR GEIS in its DEIS. Specifically,
Appendix G to the DEIS, states:
Finalization and publication of the 2023 LR GEIS and the proposed rule (NRC 2023-TN7802) is expected to occur in or about August 2024. Upon being finalized, under the NRCs environmental protection regulations, the NRC staff would have to consider and analyze in its license renewal environmental reviews the potential significant impacts associated with the new Category 2 issues and, to the extent that there is any new and significant information, the potential significant impacts associated with the new Category 1 issues. To account for the proposed rule and 2023 LR GEIS and the possibility of their finalization in 2024, the NRC staff analyzes in this appendix, on a site-specific basis, their new and revised environmental issues as they may apply to the SLR for Oconee. Table G-1 lists the new and revised environmental issues that would apply to Oconee 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 how this site-specific EIS covers the issues in the proposed rule and 2023 LR GEIS.223
Therefore, the NRC S taff would confirm, upon the 2024 Rule becoming effective,
that its findings in the DEIS are in accordance with the 2024 Rule in its final EIS, which
would be part of the standard new and significant information process that Staff uses
221 Turkey Point, CLI 1, 99 NRC ___, ___ (slip op. at 5-6).
222 DEIS, Appendix G, Environmental Issues and Impact Findings Contained in the Proposed Rule, 10 CFR Part 51, Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions at G-1.
223 DEIS at G-2 (emphasis added).
to consider new information that arises between issuance of the DEIS and the final
EIS. 224
The Licensing Board also asked about any impact to the Petitioners contentions
in this proceeding. There are no impacts to the Petitioners current proposed
contentions. However, the final EIS could be challenged in new and amended
contentions by the Petitioners, consistent with Commission regulations. For any such
new or amended contention to be admissible, Petitioners must focus their contentions
on new and significant information in the final EIS and must meet the contention
admissibility requirements in 10 C.F.R. § 2.309(c), 10 C.F.R. § 2.309(f)(1), and, if
applicable, 10 C.F.R. § 2.326, to be admitted.225 To the extent the Petitioners opt to
challenge the 2024 Rule or 2024 LR GEIS, however, Petitioners must include a
request for waiver and meet the requirements for a waiver in 10 C.F.R. § 2.335 in order
to proceed with such a challenge.
224 Turkey Point, CLI 1, 99 NRC ___, ___ (slip op. at 5-6) (The Commission stated that, Even a final EIS can be supplemented before the agency issues its record of decision. For example, the Staff may issue a supplemental EIS based on new and significant circumstances or information arising after the publication of the final EIS. (citing 10C.F.R. § 51.92(a); Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), CLI-12-7, 75 NRC 379, 388 ( 2012)).
225 See 10 C.F.R. § 2.309(c), Filings after the deadline; submission of hearing request, intervention petition, or motion for leave to file new or amended contentions; 10 C.F.R. § 2.309(f), Contentions; 10C.F.R. § 2.326, Motions to reopen.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
In the Matter of
DUKE ENERGY CAROLINAS, LLC Docket Nos. 50- 269-SLR-2, 50 -270- SLR-2, (Oconee Nuclear Station, Units 1, 2, and 3) 50 -287-SLR-2
Certificate of Service
Pursuant to 10 C.F.R §2.305, I hereby certify that copies of the foregoing NRC STAFF
ANSWER TO HEARING REQUEST AND PETITION TO INTERVENE BY BEYOND NUCLEAR
AND SIERRA CLUB, dated May 31, 2024, have been served upon the Electronic Information
Exchange (the NRCs E-Filing System), in the captioned proceeding, this 31st day of May 2024.
/Signed (electronically) by/
Mary Frances Woods Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555- 0001 Telephone: (301) 287-3514 E-mail: Mary.Woods@nrc.gov Dated in Rockville, Maryland this 31st day of May 2024