ML24152A213

Duke Energy Carolinas LLC, Answer Opposing the Hearing Request and Petition to Intervene Filed by Beyond Nuclear and Sierra Club

ML24152A213
Person / Time
Site:	Oconee
Issue date:	05/31/2024
From:	Bessette P, Leroy T, Lighty R, Mattison M Duke Energy Carolinas, Duke Energy Corp, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 57037, 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2
Download: ML24152A213 (0)

Text

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

DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2, and 3)

Docket Nos. 50-269-SLR-2 50-270-SLR-2 50-287-SLR-2 May 31, 2024 DUKE ENERGY CAROLINAS, LLCS ANSWER OPPOSING THE HEARING REQUEST AND PETITION TO INTERVENE FILED BY BEYOND NUCLEAR AND SIERRA CLUB RYAN K. LIGHTY, Esq.

PAUL M. BESSETTE, Esq.

MOLLY R. MATTISON, Esq.

MORGAN, LEWIS & BOCKIUS LLP TRACEY M. LEROY, Esq.

DUKE ENERGY CORPORATION Counsel for Duke Energy Carolinas, LLC

TABLE OF CONTENTS I.

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

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

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

1.

Safety Review............................................................................................ 2

2.

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

3.

Consideration of Environmental Influences on Plant Safety..................... 4 B.

Procedural History................................................................................................. 6 C.

Legal Standards for Hearing Requests & Contention Admissibility..................... 9 III.

THE ONGOING PART 51 RULEMAKING WILL HAVE NO IMPACT ON THIS ADJUDICATORY PROCEEDING...................................................................... 12 IV.

THE PETITION SHOULD BE DENIED BECAUSE PETITIONERS HAVE NOT SUBMITTED AN ADMISSIBLE CONTENTION............................................... 17 A.

Proposed Contention 1 (Design Basis Accidents) Is Inadmissible...................... 17

1.

Relevant Regulatory History.................................................................... 17

2.

Petitioners Semantic Criticisms Are Unsupported and Fail to Identify a Genuine Dispute...................................................................... 20

3.

Petitioners Arguments Regarding Alleged Omissions Are Unsupported and Fail to Demonstrate a Material Dispute....................... 25

4.

To the Extent Petitioners Seek to Litigate the Sufficiency of Oconees Current Licensing Basis, Their Arguments Are Beyond the Scope of This Proceeding.................................................................. 30 B.

Proposed Contention 2 (Severe Accidents) Is Inadmissible................................ 31

1.

The Petition Lacks Sufficient Information to Demonstrate a Genuine Dispute Regarding the DSEIS Analysis of Severe Accidents.................................................................................................. 31

2.

The Mitman Report Also Fails to Articulate an Admissible Contention................................................................................................ 35 C.

Proposed Contention 3 (Climate Change / Accident Risk) Is Inadmissible........ 45

1.

The Petition Lacks Sufficient Information to Demonstrate a Genuine Dispute Regarding the DSEIS Consideration of Climate Change..................................................................................................... 45

2.

The Mitman Report Also Fails to Articulate an Admissible Contention................................................................................................ 49 V.

CONCLUSION................................................................................................................ 54

I.

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

Initial Prehearing Order,1 Duke Energy Carolinas, LLC (Duke or Applicant) submits this Answer Opposing the Hearing Request and Petition to Intervene (Petition) filed by Beyond Nuclear and Sierra Club (Petitioners) on April 29, 2024.2 Petitioners seek to intervene in the above-captioned proceeding and request a hearing to challenge the draft Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 2, Second Renewal Regarding Subsequent License Renewal for Oconee Nuclear Station Units 1, 2 and 3, issued on February 13, 2024 (DSEIS).3 As explained below, the Petition should be denied because Petitioners have not submitted an admissible contention as required by 10 C.F.R. § 2.309(a).

In their Petition, Petitioners proposed three contentions purporting to criticize: (1) the DSEIS consideration of Design Basis Accidents (DBAs),4 (2) certain aspects of the DSEIS Severe Accidents analysis,5 and (3) the DSEIS consideration of climate change and accident risks.6 However, as detailed in Section IV below, none of the three proposed contentions are admissible.

1 Licensing Board Memorandum and Order (Initial Prehearing Order) at 1 n.1, 2 (May 8, 2024) (unpublished)

(ML24129A147).

2 See Hearing Request and Petition to Intervene by [Petitioners] (Apr. 29, 2024) (ML24120A381). Attachment 1 to that filing is the Declaration of Jeffrey T. Mitman, which in turn included Mr. Mitmans Curriculum Vitae as Exhibit 1 and a report by Mr. Mitman as Exhibit 2. Attachment 2 to that filing included eight standing declarations. On May 1, 2024, Petitioners filed a corrected version of their pleading, without the associated attachments (ML24122C623) (Petition) and an errata sheet showing the changes from the original pleading (ML24122C624). On May 15, 2024, Petitioners also submitted a corrected version of Exhibit 2 to Attachment 1 of the original filing (ML24136A251) (Mitman Report) and an errata sheet showing the changes from the original exhibit to the attachment (ML24136A250).

3 Duke Energy Carolinas, LLC; Oconee Nuclear Station, Units 1, 2, and 3; Draft Supplemental Environmental Impact Statement; Request for Comment; Public Comment Meetings; Opportunity to Request a Hearing and to Petition for Leave to Intervene, 89 Fed. Reg. 10,107 (Feb. 13, 2024).

4 Petition at 5-15.

5 Id. at 16-17.

6 Id. at 18-19.

2 As a general matter, all three contentionsas presented in the Petitionare exceedingly vague and fail to articulate their respective challenges with the requisite specificity for an admissible contention. Another common theme is the Petitioners desire to use this license renewal proceeding to litigate the sufficiency of Oconees current licensing basis (CLB), which is squarely beyond the scope of this proceeding. Furthermore, many of Petitioners claims are riddled with factual inaccuracies or rely on demonstrably incorrect readings of the relevant documents and analysesor disregard the relevant analyses altogether. Ultimately, none of the contentions satisfy all six admissibility criteria in 10 C.F.R. § 2.309(f)(1).

For the reasons set forth below, the Board should DENY the Petition, and TERMINATE the proceeding.

II.

BACKGROUND A.

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

1.

Safety Review The objective of the NRCs license renewal safety review is limited. Its purpose is to ensure that the licensee can successfully manage the detrimental effects of aging during extended operations.7 Thus, the NRCs license renewal regulations in 10 C.F.R. Part 54 focus on whether the licensee can manage the effects of aging on certain long-lived, passive components that are important to safety.8 Applicants must include descriptions of their aging management programs (AMPs) for affected components in their subsequent license renewal (SLR) applications 7

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

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

3 (SLRAs).9 These AMPs are at the core of the NRCs license renewal safety framework. NRC guidance (known as the GALL Report) analyzes aging management issues generically and contains AMPs that applicants may use to satisfy the aging management requirements in Part 54.10 It is unequivocal that the NRCs safety review is not intended to duplicate the NRCs ongoing oversight of operating reactors.11 The NRCs safety review is, therefore, not an opportunity to re-examine a plants CLB, which the Commission has chosen, as a policy matter, to exclude from the scope of its license renewal proceedings:

In establishing its license renewal process, the Commission did not believe it necessary or appropriate to throw open the full gamut of provisions in a plants [CLB] to re-analysis during the license renewal review. The [CLB] represents an evolving set of requirements and commitments for a specific plant that are modified as necessary over the life of a plant to ensure continuation of an adequate level of safety.

It is effectively addressed and maintained by ongoing agency oversight, review, and enforcement. Just as these oversight programs help ensure compliance with the [CLB] during the original license term, they likewise can reasonably be expected to fulfill this function during the renewal term.12 In short, ongoing agency oversight and a plants CLB13 are beyond the limited scope of license renewal and beyond challenge in a license renewal adjudicatory proceeding.14 The Commission long ago determined that it would be unnecessary and wasteful to permit such challengesbecause these issues are addressed through different regulatory pathways.15 9

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

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

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

12 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 8-9 (2001)

(citation omitted).

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

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

15 Id. at 7. See also Nuclear Fuel Services, Inc. (License Amendment Application), LBP-22-2, 96 NRC 129, 144 n.23 (2022) (questions about the appropriateness of a licensees past (or current) operational activities are more appropriately interposed in the context of a 10 C.F.R. § 2.206 petition....).

4

2.

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

[environmental] impacts of an additional 20 years of nuclear power plant operation[s].16 For license renewal, the NRCs environmental regulations in Part 51 are based, in large part, on the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS), which summarizes the findings of a systematic inquiry (accomplished through notice and comment rulemaking) into the potential environmental consequences of license renewal.17 Based on these analyses, the GEIS delineates two types of environmental issues:

• Generic Category 1 issues, for which the NRC made generic conclusions applicable to all existing nuclear power plants;18 and

• Plant-Specific Category 2 issues, for which site-specific analyses are required for each individual license renewal proceeding.19 As discussed below, in 2022, the Commission determined that the GEIS framework did not apply to SLR and directed the NRC Staff to engage in a rulemaking to ensure that it does so going forward.

3.

Consideration of Environmental Influences on Plant Safety As explained in the 2013 GEIS:

The [National Environmental Policy Act of 1969 (NEPA)] process focuses on environmental impacts rather than on issues related to safety. Safety issues become important to the environmental review when they could result in environmental impacts, which is why the environmental effects of postulated accidents are considered in the GEIS and in plant-specific supplements to the GEIS. Since NEPA 16 Turkey Point, CLI-01-17, 54 NRC at 7.

17 See NUREG-1437, Rev. 0, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996) (Vol. 1, ML040690705) (1996 GEIS); NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013) (Vol. 1, ML13106A241) (2013 GEIS); NUREG-1437, Rev.

2, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (Feb. 2024) (Vol. 1, ML23201A224) (2024 GEIS).

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

19 Id. at 11-12 (discussing Category 2 issues).

5 regulations do not provide for a safety review, the license renewal process includes an environmental review that is distinct and separate from the safety review. Since the two reviews are separate, operational safety issues and safety issues related to nuclear power plant aging are considered outside the scope for the environmental review, just as the environmental issues are not considered as part of the safety review.20 In other words, the safety aspects of environmental influences that may act upon a plant are evaluated as a matter of ongoing regulatory compliance, far beyond the limited scope of a license renewal proceeding. Whereas the environmental impacts of hypothetical accidents resulting from such environmental influences are evaluated in license renewal proceedings under the topic of Postulated Accidents. The NRC has long used a two-pronged approach to assess the potential environmental impacts of postulated accidents.21 Design Basis Accidents: DBAs are postulated accidents that a nuclear facility must be designed and built to withstand without loss to the systems, structures, and components necessary to ensure public health and safety.22 Before the NRC issues an operating license, an applicant must demonstrate the ability of the proposed reactor to withstand all [design-basis accidents].23 After licensing, the licensee must maintain acceptable design and performance criteria throughout the operating life of the nuclear plant, including any license renewal periods of extended operations.24 A plants defined design basis is evaluated during initial licensing and re-evaluated, as necessary, during the life of the plant. In other words, ensuring plant operation remains within its defined design basis is a continuous and ongoing process.

20 See 2013 GEIS at 1-8 (emphasis added); see also id. at 1-9 to 1-10.

21 NUREG-1437, Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Oconee Nuclear Station Units 1, 2, and 3: Draft Report for Comment at 3-177, F-1 (Feb. 2024) (ML24033A298) (DSEIS).

22 Id. at F-1.

23 Id. at F-2.

24 Id. at F-2.

6 License renewal and SLR applicants are required to take adequate steps to account for aging during the period of extended operations through time-limited aging analyses or aging management plans. Because of these activities to manage aging, the NRC expects that operations during an SLR term will continue to provide a level of safety equivalent to that provided during the initial operating license period.25 Similarly, because a licensee must meet the existing design basis and manage aging, the NRC has long concluded that the environmental impacts of design-basis accidents should not differ significantly from the initial operating period.26 Severe Accidents: Severe accidents capture all other types of accidentsi.e., those that are beyond the plants designed defined design basis. Although severe accidents could result in more significant consequences, their potential environmental impact is tempered by their extremely low probability of occurrence. In addition to evaluating probability-weighted impacts, the NRC requires all plants to perform a site-specific analysis of potential mitigation measures (severe accident mitigation alternatives or SAMAs) that could further reduce the hypothetical impacts.27 B.

Procedural History A fulsome and detailed discussion of the procedural history predating the Applicants SLRA submission is contained in Applicants Answer to Petitioners September 27, 2021, hearing request, contesting the Environmental Report (ER)28 portion of Dukes SLRA. For brevity, Applicant does not reiterate that history here.29 25 Id. at F-2.

26 Id. at F-3.

27 Id. at F-9.

28 Oconee Nuclear Station Units 1, 2, and 3; Application for Subsequent License Renewal; Appendix E - Applicants Environmental Report (June 7, 2021) (Within Package ML21158A193) (ER).

29 See Applicants Answer Opposing Request for Hearing, Petition to Intervene, and Petition for Waiver Submitted by [Petitioners] at 4-19 (Oct. 22, 2021) (Duke 2021 Answer).

7 The Subsequent License Renewal Application: The Applicant filed its SLRA with the NRC on June 7, 2021, to renew Oconees operating licenses for an additional 20-year period.30 As part of the SLRA, and as required by Part 51, the Applicant submitted an ER that considers the potential environmental impacts of the requested extension. Under the prevailing interpretation of the NRCs regulations before February 2022, SLR applicants could rely on the GEIS analyses of Category 1 issues in an environmental report.31 More specifically, in April 2020, in a separate SLR proceeding for a different plant, the Commission held that the NRC staff and SLR applicants could rely on the GEIS and its corresponding generic impact conclusions for Category 1 issues as codified in 10 C.F.R. Part 51.32 Consistent therewith, Dukes ER relied on the GEIS for all applicable Category 1 issues and provided site-specific analyses for all applicable Category 2 issues.33 Adjudication of Initial Hearing Requests: On July 28, 2021, the NRC published a notice in the Federal Register docketing the Oconee SLRA and providing an opportunity for interested persons to request a hearing by September 27, 2021.34 Petitioners filed a petition to intervene (2021 Petition) that proposed three contentions and included an accompanying waiver to challenge the GEIS conclusions codified in Appendix B.35 After oral argument and briefing by the 30 See Oconee Nuclear Station Units 1, 2, and 3 Application for Subsequent Renewed Operating Licenses (June 7, 2021) (ML21158A194) (SLRA).

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

32 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), CLI-20-3, 91 NRC 133, 134 (2020).

33 See 10 C.F.R. §§ 51.41, 51.45, 51.53(c)(3)(ii).

34 See Duke Energy Carolinas, LLC; Oconee Nuclear Station, Units 1, 2, & 3; [SLRA]; Opportunity to Request a Hearing and to Petition for Leave to Intervene, 86 Fed. Reg. 40,662 (July. 28, 2021) (Notice of Hearing Opportunity).

35 See Hearing Request and Petition to Intervene by [Petitioners] and Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.53(c)(3)(ii)(L), 51.71(d), and 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).

8 parties,36 the Board denied the waiver request because it did not meet the applicable waiver standards.37 The Board separately held that even had Petitioners waiver request been sufficient, the proposed contentions themselves failed to engage with the numerous post-Fukushima documents and reports that were exchanged between Duke and the NRC.38 Accordingly, the Board denied the 2021 Petition and the accompanying waiver request and terminated the proceeding.39 Orders Regarding Applicability of GEIS to SLR: In February 2022, the Commission issued two decisions that reversed the agencys course on this issue. In the first order (CLI-22-2), the Commission overturned its prior decision and held that 10 C.F.R. § 51.53(c)(3) only applies to initial license renewal and thus the GEIS did not address environmental impacts for SLR.40 In the second order (CLI-22-3), the Commission stated that it would not issue any licenses for subsequent renewal terms until the NRC staff completed an adequate environmental review for each application.41 The Commission also directed the NRC staff to review and update the GEIS so that it covers operation during the [SLR] period.42 The Commission also recognized that SLR applicants may not want to postpone their applications until completion of the multi-year GEIS update proceeding. It thus gave applicants an option to submit a revised environmental report providing information on environmental impacts during the [SLR] period,43i.e., an ER supplement with site-specific analyses of issues that 36 See Duke 2021 Answer; NRC Staffs Answer Opposing [Petitioners] Hearing Request (Oct. 22, 2021)

(ML21295A755); Tr. at 1-134 (ML21323A160); Licensing Board Memorandum and Order (Adopting Transcript Corrections for Initial Prehearing Conference) (Dec. 16, 2021) (unpublished) (ML21350A175).

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

38 Id. at 90.

39 Id. at 94.

40 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), CLI-22-2, 95 NRC 26 (2022).

41 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, & 3), CLI-22-3, 95 NRC 40 (2022).

42 Id. at 41.

43 Id.

9 previously had been analyzed generically as Category 1 issues in the GEIS. In those cases, the Commission stated that interested parties would be given an opportunity to submit new or amended contentions based on new information in the revised site-specific environmental impact statement.44 The prior adjudicatory proceeding up to the issuance of CLI-22-3 is referred to herein as the Initial Proceeding.

ER Supplement: Consistent with the option provided by the Commission, the Applicant filed a supplemental ER on November 7, 2022.45 The NRC then issued the DSEIS in February 2024.46 The DSEIS considers the impacts of all SLR issues applicable to Oconee [] SLR on a site-specific basis.47 On February 13, 2024, the NRC published a hearing opportunity notice in the Federal Register.48 Petitioners filed the instant Petition in response thereto.

C.

Legal Standards for Hearing Requests & Contention Admissibility Under 10 C.F.R. § 2.309(a)(1), a hearing request and petition to intervene may be granted only if the presiding officer determines that the petitioner has established standing and has proposed at least one admissible contention that meets all six of the threshold admissibility criteria in 10 C.F.R. § 2.309(f)(1).49 Failure to satisfy any one of these six admissibility criteria requires that a 44 Id. at 41-42 (emphasis added).

45 Letter from S. Snider, Duke Energy to NRC, Duke Energy Carolinas, LLC, Oconee Nuclear Station, Units 1, 2, and 3 (ONS Units 1, 2, and 3, [SLRA] for Facility Operating Licenses DPR-38, DPR-47, DPR-55, Appendix E Environmental Report Supplement 2 (Nov. 7, 2022) (ML21158A193).

46 See generally DSEIS.

47 Id. at iv.

48 Duke Energy Carolinas, LLC; Oconee Nuclear Station, Units 1, 2, and 3; Draft Supplemental Environmental Impact Statement; Request for Comment; Public Comment Meetings; Opportunity to Request a Hearing and to Petition for Leave to Intervene, 89 Fed. Reg. 10,107 (Feb. 13, 2024).

49 A proposed Contention 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; (iii) demonstrate that the issue raised is within the scope of the proceeding; (iv) demonstrate that the issue raised is material to the findings the NRC must make to support the action involved in the proceeding; (v) provide a concise statement of the alleged facts or expert opinions, referring to the specific sources and documents that support the petitioners position and on which the petitioner intends to rely; and (vi) provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. 10 C.F.R. § 2.309(f)(1).

10 proposed contention be rejected.50 These criteria are strict by design.51 The rules were toughenedin 1989 because in prior years licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation.52 The petitioner alone bears the affirmative burden to satisfy these criteria.53 Where a petition fails to do so on its face, the Board may not cure a deficiency or fill a gap by supplying the information that is lacking or making factual assumptions that favor the petitioner.54 Key aspects of the six admissibility criteria are summarized below.

Basis and Specificity: A contention must articulate the specific legal or regulatory requirement that it claims to be unsatisfied, and then it also must explain the basis for that claim.

That is because the parties are entitled to be told at the outset, with clarity and precision, what arguments are being advanced and what relief is being sought.55 Scope: The subject matter of all contentions is limited to the scope of the proceeding outlined by the Commission in its hearing notice and referral order delegating to the Board the authority to conduct the proceeding.56 Challenges to NRC rules are prohibited as outside the scope 50 See Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182, 2,221 (Jan. 14, 2004); see also Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

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

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

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

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

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

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

56 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-00-23, 52 NRC 327, 329 (2000); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-825, 22 NRC 785, 790 (1985).

11 of a proceeding because, absent a waiver, no rule or regulation of the Commission... is subject to attack... in any adjudicatory proceeding.57 Materiality: A material issue is one that would make a difference in the outcome of the licensing proceeding.58 The petitioner must show that the deficiency asserted in the contention would impact the grant or denial of the pending application.59 Adequate Support: Presiding officers must scrutinize documents and expert opinions to confirm that they support a proposed contention.60 A petitioners imprecise reading of a document cannot support a litigable contention.61 Genuine Dispute: Petitioners must read the pertinent portions of the document being challenged, state the applicants position and the petitioners opposing view, and explain why the petitioner disagrees with the applicant.62 In other words, a contention of sufficiency that does not directly controvert specific text within the document (here, the DSEIS) is subject to dismissal.63 For contentions of omission, the petitioner must show two things: (a) a legal obligation to provide the allegedly omitted information, and (b) that such information is, in fact, absent.64 Similarly, a document or expert opinion that merely states a conclusion, without providing a reasoned basis or 57 10 C.F.R. § 2.335(a).

58 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 333-34 (1999) (citation omitted).

59 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 62 (2008) (citation omitted).

60 See Vt. Yankee Nuclear Power Corp. (Vt. 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).

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

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

63 See S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, 71 NRC 1, 21-22 (2010);

Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-37, 36 NRC 370, 384 (1992),

vacated as moot, CLI-93-10, 37 NRC 192 (1993).

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

12 explanation for that conclusion, is not enough to demonstrate a material dispute.65 That is because, bare assertions and speculation, even by experts, are incapable of providing the requisite support and demonstration of a genuine dispute for a proposed contention.66 III.

THE ONGOING PART 51 RULEMAKING WILL HAVE NO IMPACT ON THIS ADJUDICATORY PROCEEDING On February 21, 2024, the NRC staff submitted SECY-24-0017 to the Commission to obtain the Commissions approval to publish a final rule to amend 10 C.F.R. Part 51.67 The final rule would update Part 51, Appendix B, Table B-1 to codify Category 1 and Category 2 issues, which is supported by the revised Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Revision 2 (GEIS).68 The Commission approved the publication of the final rule, subject to changes sought by the Commissioners, in a Staff Requirements Memorandum (SRM) dated May 16, 2024.69 On May 21, 2024,70 the Board directed the parties to address the potential substantive and procedural impacts of the Commissions adoption of the final rule. As directed by the Board, the Applicant addresses the five questions related to these impacts in the following matter.

65 See USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006).

66 Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003) (quoting GPU Nuclear, Inc.

(Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000)).

67 SECY-24-0017, Final Rule - Renewing Nuclear Power Plant Operating Licenses - Environmental Review (Feb.

21, 2024) (Package ML23202A179, includes SECY Paper and 3 Enclosures) 68 See 2024 GEIS.

69 SRM-M240516A, Staff Requirements - Affirmation Session - SECY-24-0017: Final Rule - Renewing Nuclear Power Plant Operating Licenses - Environmental Review (RIN 3150-AK32; NRC-2018-0296) (May 16, 2024)

(Package ML24137A213, includes SRM and 1 Enclosure) (SRM).

70 Licensing Board 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).

13 Q1. What Is the Applicability of the 2024 Rule to this Proceeding? When effective, will the 2024 Rule apply to a pending SLR application proceeding like this one, including any associated adjudication?

The Part 51 rulemaking does not affect this proceeding. For SLR applications pending at the time CLI-22-3 was issued, the Commission established, by order, an alternative procedural pathway. That pathway permitted such applicants to submit a site-specific environmental report supplement, upon which the NRC would perform a site-specific review, instead of waiting for the staff to complete the rulemaking.71 As the Commission explained, applicants could submit a revised [ER] providing information on environmental impacts [for Category 1 issues] during the

[SLR] period.72 The Commissions intent in CLI-22-3 is clear: it provided an alternative pathway for applicants, separate and apart from the Part 51 rulemaking.

Moreover, the Commission endorsed this interpretation in its recent SRM. Specifically, as explained in the Comment Response Document provided as Appendix A to the 2024 GEIS (which was attachment 2 to SECY-24-0017), Duke and other commenters requested clarification on this very issue. Duke expressed its concern that the rule could be construed as requiring the NRC to perform further environmental reviews to address the new final rule, potentially delaying the proceeding.73 As Duke further noted, that would be inconsistent with Commission order CLI-22-3, in which the Commission provided applicants the option of proceeding with a site-specific environmental review that is not subject to the new final rule. In its response, the NRC assuaged this concern, explaining that:

Any application for an initial LR received before the effective date of the final rule will be processed under the current rule and the 2013 LR GEIS. Any application for an SLR received before the effective date of 71 Oconee, CLI-22-3, 95 NRC at 41-42.

72 Id. at 41.

73 2024 GEIS, App. A at A-317.

14 the final rule will be processed in accordance with Commission direction contained in CLI-22-02 [] and CLI-22-03 [].74 In its SRM, the Commission did not alter this (or any other) comment response, which reflects the Commissions endorsement of this interpretation of its orders.

Here, as envisioned by the Commission in CLI-22-3, Duke opted to pursue this alternative pathway and submitted a revised ER that provided updated site-specific information on the environmental impacts associated with an Oconee SLR period in lieu of waiting until the issuance of the updated GEIS. The NRC Staff then conducted its site-specific review, considering that information, and prepared the DSEIS in accordance with CLI-22-03.75 Given the plain text of CLI-22-3 and the Commission-endorsed explanation of the intent of that order in the 2024 GEIS, the 2024 Rule cannot be interpreted as requiring the environmental review process for Oconee to begin anew or to somehow become subject to a whole new set of requirements. Accordingly, the 2024 Rule will continue to have no effect on this proceeding even after it becomes effective.

Q2. 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?

Duke is not aware of the NRC Staffs precise internal schedule for processing the Commissions direction in the SRM. However, as noted in Appendix G to the DSEIS, the final rule is expected to be published in or about August 2024.76 Similarly, the estimated Final Rule Publication Date shown on the NRCs online rulemaking dashboard for this rule is August 9, 74 Id.

75 DSEIS at iv.

76 DSEIS at G-2.

15 2024.77 As noted in the Commissions mark-up of the Federal Register notice, the rule will become effective 30 days after publication.

To the extent it may be helpful to the Board, Duke also provides the durations for corresponding events from the previous GEIS-update rulemaking in 2013:

Event Date SRM Approving Final Rule78 December 6, 2012 Federal Register notice document in ADAMS79 June 11, 2013 (187 days)

Federal Register notice publication80 June 20, 2013 (9 days)

However, Duke anticipates that the duration between the SRM and the final rule publication for the 2024 Rule will be significantly shorter than that for the prior rulemaking.

Q3. 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?

The Final Rules requirement for compliance within one year after publication in the Federal Register would have no practical effect on the present adjudicatory proceeding. As noted above, the 2024 Rule does not apply to this proceeding pursuant to CLI-22-3.

77 Planned Rulemaking Activities - Rule (Renewing Nuclear Power Plant Operating Licenses - Environmental Review; Docket ID NRC-2018-0296; RIN 3150-AK32), https://www.nrc.gov/reading-rm/doc-collections/rulemaking-ruleforum/active/ruledetails.html?id=96 (last visited May 30, 2024).

78 Staff Requirements, M20121206A, SECY-12-0063 - Final Rule: Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses (10 CFR Part 51; RIN 3150-AI42) (Dec. 6, 2012) (ML12341A134).

79 Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses (10 CFR Part 51)

(June 11, 2013) (ML13101A059).

80 Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 78 Fed. Reg. 37,282 (June 20, 2013).

16 Q4. 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?

No further actions are needed to proceed with adjudicating Petitioners contentions. As noted above, the 2024 Rule does not apply to this proceeding pursuant to CLI-22-3. Even assuming the 2024 Rule did apply to this proceeding, the NRC Staff already has proactively and voluntarily addressed the differing content requirements of the new rule in Appendix G to the DSEIS, whereas none of the contentions dispute the content of that appendix.

Q5. 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?

As noted above, the 2024 Rule does not apply to this proceeding pursuant to CLI-22-3. Even assuming the 2024 Rule did apply to this proceeding, the NRC Staff already has proactively and voluntarily addressed the differing content requirements of the new rule in Appendix G to the DSEIS, whereas none of the contentions dispute the content of that appendix.

No additional participant filings are necessary or appropriate.

17 IV.

THE PETITION SHOULD BE DENIED BECAUSE PETITIONERS HAVE NOT SUBMITTED AN ADMISSIBLE CONTENTION In their Petition, Petitioners propose three contentions. But as explained below, none of the proposed contentions satisfy all six admissibility criteria in 10 C.F.R. § 2.309(f)(1). Accordingly, the Petition must be denied.

A.

Proposed Contention 1 (Design Basis Accidents) Is Inadmissible Proposed Contention 1 is captioned Erroneous, Incomplete and Misleading Information Regarding Whether Duke Has Provided the Oconee reactors with Adequate Protection From Failure of the Upstream Jocassee Dam.81 Here, Petitioners assert that the [DSEIS] is inadequate to satisfy NEPAs requirement for a hard look at the environmental impacts of the proposed second license renewal decisions82 because the DSEIS allegedly is based on: (1) incorrect claims rooted in its design basis review and (2) the abandonment of [the NRCs] 2011 Safety Evaluation.83 As detailed below, Proposed Contention 1 should be rejected for multiple reasons, including Petitioners failure to address the relevant portions of the DSEIS and this proceedings regulatory history, their comingling of environmental and safety concerns, and apparent desire to litigate issues outside of this proceeding.

1.

Relevant Regulatory History In response to the March 2011 accident at the Fukushima Dai-ichi nuclear power plant in Japan, the NRC established a task force of senior agency officials, referred to as the Near-Term Task Force (NTTF), to conduct a systematic and methodical review of NRC regulations and processes.84 On March 12, 2012, in response to NTTF Recommendation 2.1, the NRC issued a 81 Petition at 5.

82 Id. at 6.

83 Id. at 9-12, 15.

84 See Dr. Charles Miller et al., Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident vii-x (July 12, 2011) (ML111861807).

18 letter to power reactor licensees pursuant to 10 C.F.R. § 50.54(f) (50.54(f) Letter).85 Among other things, that letter directed licensees to reevaluate the flooding hazards at their sites using updated hazard information and current regulatory guidance and methodologies.86 This process was divided into two phases. In Phase 1, the NRC issued the 50.54(f) Letter and, as necessary, directed certain licensees to perform further evaluations. In Phase 2, the NRC evaluated the results of Phase 1 information to determine whether additional regulatory actions [we]re necessary (e.g., updating the design basis and structures, systems, and components (SSCs) important to safety) to provide additional protection against the updated hazards.87 On September 29, 2015, the Director of the NRCs Office of Nuclear Reactor Regulation (NRR) issued a memorandum explaining the treatment of post-Fukushima... flooding hazard reevaluations within an operating nuclear power plants licensing basis.88 As the Director explained:

The reevaluations called for by the 10 CFR 50.54(f) letter do not revise the design basis of the plant even if such hazard information is estimated to exceed the plants current design basis.... There is the potential that as a result of the NRCs review of the reevaluated hazards, the agency may determine that these hazards should be considered design-basis events for a facility through the NRCs backfit process. The result would be a change in [] the design-basis flood []

event.... Otherwise the reevaluated flooding [] levels are beyond-design-basis events. Only if the NRC takes an action such as changing the design-basis event in accordance with 10 CFR 50.109 would the reevaluated hazards affect operability decisions for affected SSCs at the subject operating reactor.89 85 Letter from E. Leeds and M. Johnson, NRC, to All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status, 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 (Mar. 12, 2012) (ML12053A340) (50.54(f) Letter).

86 Id.

87 Memorandum from Craig G. Erlanger, Director, Office of Nuclear Reactor Regulation, to Ho K. Nieh, Office of Nuclear Reactor Regulation, Revision to the Regulatory Decision-Making process for Reevaluated Flooding and Seismic Hazards for Operating Nuclear Power Plants at 2 (Mar. 2, 2020) (ML20043D958) (Erlanger Memo).

88 Memorandum from W. Dean to D. Dorman et al., Treatment of Seismic and Flooding Hazard Reevaluations in the Design and Licensing Basis of Operating Power Reactors at 1 (Sept. 29, 2015) (ML15127A401).

89 Id. at 1-2.

19 That memorandum was accompanied by an attachment reiterating that:

only if the NRC takes an action such as requiring a licensee to treat the reevaluated seismic or flooding reevaluations as design-basis events would there be any change to SSC operability requirements. The NRC would have to address backfitting under 10 CFR 50.109, Backfitting, to impose this change on currently operating nuclear power plants.

Subsequent NRR guidance explained that the 50.54(f) Letter process would result in one of two courses of action. First, if the information provided in response to the 50.54(f) Letter demonstrates that additional regulatory actions are not warranted, the basis for the decision will be documented. 90 Second, if that information:

indicates that either 1) the risk presented to the public rises to a level to be undue risk it will consider regulatory actions to maintain or restore adequate protection, or 2) the risk presented to the public is substantial it will consider actions if supported by backift [sic] analysis. In short, the NRC staff will identify and assess the potential change using the NRCs backfit process.91 As required, Duke submitted all of the necessary information and evaluations regarding the updated flooding hazard for Oconee, which included consideration of a hypothetical failure of the Jocassee Dam.92 After reviewing this information, the NRC documented its ultimate conclusion that [n]o further regulatory actions are required.93 Implicit in this conclusion is the fact that the NRC did not reach the opposite conclusion. In other words, the NRC found that a backfit under 10 C.F.R. § 50.109 was unnecessary and that nothing further was needed to maintain or restore adequate protection because the updated flooding hazard for Oconee presented neither undue risk nor substantial risk. On November 17, 2020, the NRC issued its ultimate conclusion that 90 Erlanger Memo, Encl. at 7.

91 Id., Encl. at 8.

92 Closeout Letter, Encl. at 9-10, tbl. 6 (providing full chronology).

93 Id., Encl. at 9.

20 Dukes obligations under the 50.54(f) Letter had been fully and satisfactorily completed (Closeout Letter).94 In its discussion of DBAs in Appendix F of the DSEIS, the NRC Staff summarized this regulatory history. As relevant here, that summary explains that the NRC reviewed the Oconee Station design-basis as part of the 50.54(f) Letter process, and states that [o]n November 17, 2020, the NRC staff completed its review for Oconee Station and concluded that no further regulatory action [sic] were needed to ensure adequate protection.95

2.

Petitioners Semantic Criticisms Are Unsupported and Fail to Identify a Genuine Dispute Petitioners claim that the DSEIS conclusion of SMALL impacts related to postulated DBAs is flawed because it 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 catastrophic 2011 Fukushima Dai-Ichi accident in Japan.96 Specifically, Petitioners allege that description is erroneous, incomplete and misleading97 for three primary reasons.

a.

Adequate Protection Arguments First, in Petitioners view, the November 17, 2020 letter did not, in fact, conclude that no regulatory actions were needed to ensure adequate protection. Petitioners primary basis for that claim is their observation that the letter does not use the words adequate protection. However, this claim lacks the requisite support for an admissible contention because it rests on a selective 94 Closeout Letter.

95 DSEIS at F-4.

96 Petition at 5.

97 Id. at 6.

21 review of the relevant regulatory history and disregards the relevant documents that disprove the Petitioners assertion.

As noted above, the NRC issued guidance expressly articulating the possible outcomes of the 50.54(f) Letter process. That guidance provides relevant context for understanding the regulatory effect of the Closeout Letter. Yet, Petitioners ignore that guidance altogether. Reading the Closeout Letter in conjunction with the appropriate guidance, it is rather obvious that the NRC could have determined that some action was necessary to maintain or restore adequate protection.

But it did not. It reached the exact opposite determinationthat no further regulatory actions were needed. Petitioners cannot conjure a genuine dispute through a selective reading of the relevant materials. And they offer no support for their dubious claim that the absence of certain magic words constitutes a material issue.

b.

Requirements of Section 50.54(f)

Second, Petitioners assert that the DSEIS is materially defective because it mischaracterizes the nature of the 50.54(f) Letter. Petitioners point to a statement in the DSEIS that the review of external hazards information for all operating power reactors, including Oconee, was ordered by the Commission following the Fukushima accident.98 They allege this statement is incorrect because the 50.54(f) Letter did not order the submittal of external hazards information.99 According to Petitioners, the NRC merely requested the information, and therefore licensee responses were purely voluntary.100 Even if this claim were true, Petitioners make no attempt to explain why this would be a material defect. More importantly, this claim is patently false. Contrary to Petitioners baseless 98 Petition at 9; Mitman Report at 21 (citing DSEIS at F-4).

99 Petition at 9.

100 Id.

22 assertion that licensee responses to the 50.54(f) Letter were discretionary, the plain text of 10 C.F.R. § 50.54(f) says exactly the opposite: The licensee shall..., upon request of the Commission, submit... written statements, signed under oath or affirmation, to enable the Commission to determine whether or not the license should be modified, suspended, or revoked.

Petitioners untrue claim cannot support an admissible contention.

c.

Design-Basis Review Petitioners also contest the statement in the DSEIS noting that the NRC reviewed the Oconee Station design-basis during the 50.54(f) Letter process.101 According to Petitioners, this statement is incorrect because the absence of the words design-basis in the Closeout Letter purportedly shows there is no evidence that the 50.54(f) Letter process included such a review.102 But this claim is also unsupported and fails to raise a genuine dispute.

In fact, there is extensive evidence that plant design basis information was evaluated as part of the 50.54(f) Letter process. First and foremost, the 50.54(f) Letter itself expressly states that part of the impetus for this process was a statutory directive to perform such a review. As the letter explains:

On December 23, 2011, the Consolidated Appropriations Act, Public Law 112-074, was signed into law. Section 402 of the law also requires a reevaluation of licensees design basis for external hazards, and expands the scope to include other external events, as described below:

The [NRC] shall require reactor licensees to re-evaluate the seismic, tsunami, flooding, and other external hazards at their sites against current applicable Commission requirements and guidance for such licensees as expeditiously as possible, and thereafter when appropriate, as determined by the Commission, and require each licensee to respond to the Commission that the design basis for each reactor meets the requirements of its license, current applicable Commission requirements and guidance for such license. Based upon the evaluations 101 Petition at 9.

102 Id.

23 conducted pursuant to this section and other information it deems relevant, the Commission shall require licensees to update the design basis for each reactor, if necessary.103 The Action provision of the 50.54(f) Letter begins by explaining that [t]he NRC has concluded that it requires the information requested in the enclosures to this letter to verify the compliance with your plants design basis and to determine if additional regulatory actions are appropriate.104 The attachment to the 50.54(f) Letter for Recommendation 2.1: Flooding explains that one of its purposes is [t]o collect information to facilitate [the] NRCs determination if there is a need to update the design basis and systems, structures, and components (SSCs) important to safety to protect against the updated hazards at operating reactor sites.105 Altogether, the phrase design basis appears 54 times in the 50.54(f) Letter and its attachments.

Simply put, Petitioners assertion that there is no evidence that the 50.54(f) Letter process included a review of design basis information is demonstrably untrue.

Furthermore, the NRC expressly considered, as part of the 50.54(f) Letter process, whether each plants licensing basis should be modified via backfit to require that the reevaluated flooding hazard be treated as a design-basis event.106 As to Oconee, the NRC concluded that no such modification of the plants design basis was necessary to maintain or restore adequate protection.107 Ultimately, Petitioners simply disregard the wealth of evidence plainly demonstrating that design basis reviews were at the core of the entire 50.54(f) Letter process.

Petitioners contrary conclusion is entirely unsupported and fails to raise a genuine dispute.

103 50.54(f) Letter at 2.

104 Id. at 3.

105 Id., Encl. 2 at 1.

106 See supra Section IV.A.1.

107 See Erlanger Memo, Encl. at 8; Closeout Letter at 9-10.

24 More broadly, Petitioners claim that the DSEIS discussion of DBAs allegedly is based on,108 bases its conclusion on,109 relies heavily on,110 and reaches its conclusion by relying on purported adequate protection findings.111 However, the phrase adequate protection appears only one time, in a single sentence, in the entirety of Appendix F.112 And the conclusion of the DBA section does not mention adequate protection findings at all.113 Rather, Staff concludes that [b]ecause of the requirements for Oconee Station to maintain the licensing basis and implement aging management programs during the SLR term, the environmental impacts during the SLR term are not expected to differ significantly from those calculated for the DBA assessments conducted as part of the initial plant licensing process.114 So Petitioners characterization is dubious on its face. And perhaps more importantly, Petitioners offer no explanation of how the conclusion to the DBA section would differ if Staff had chosen not to provide a (completely accurate) summary of the Closeout Letter and instead had simply quoted its conclusion. Far more is required to raise a genuine dispute here.

As described in section F.1.1 of the DSEIS, before the NRC will issue an operating license for a new nuclear power plant, the applicant must demonstrate the ability of its proposed reactor to withstand all DBAs.115 After licensing, the licensee must maintain acceptable design and performance criteria throughout the nuclear plants operating life.116 Because a licensee must meet 108 Petition at 5, 6.

109 Id. at 6, 7 110 Id. at 5.

111 Id. at 14.

112 DSEIS at F-4.

113 Id. at F-5.

114 Id.

115 Id. at F-2 to F-3.

116 Id. at F-3.

25 its existing design basis and manage aging, the NRC has found that the environmental impacts of DBAs are of SMALL significance for all nuclear plants.117 Contrary to Petitioners unsupported claim that the DSEIS conclusions as to DBA are rooted in incorrect and misleading information stemming from conclusions in the Closeout Letter, the NRC reached this conclusion because plants were initially designed to successfully withstand these accidents, and a licensee is required to maintain the plant within acceptable design and performance criteria, including during the license renewal term.118 Without more, Petitioners baseless claims are in turn unsupported and fail to raise a genuine material dispute with the DSEIS as required by 10 C.F.R. § 2.309(f)(1)(v)-(vi).

3.

Petitioners Arguments Regarding Alleged Omissions Are Unsupported and Fail to Demonstrate a Material Dispute Petitioners criticize the DBA analysis for omitting details from various documents prepared between 2008 and 2015 that purportedly contain important facts and legal determinations that bear on the environmental impacts of re-licensing the Oconee reactors.119 This purportedly missing information relates to the regulatory history of the NRCs evaluation of a hypothetical failure of the Jocassee Dam. However, Petitioners identify no express requirement for such historical information to be provided in the DSEIS. And no such requirement exists. They also offer no explanation as to why the absence of such information in the DSEIS allegedly is material to the environmental analysis of DBAs. Thus, these claims fail to demonstrate a genuine dispute on a material issue of fact or law.

First, Petitioners complain that the DBA discussion fails to state that when the Oconee reactors were initially licensed by the NRC, neither Duke nor the NRC considered that failure of the 117 Id.

118 Id.

119 Petition at 12-14.

26 Jocassee Dam was credible.120 In other words, they fault the DBA discussion for not specifying that a hypothetical failure of the Jocassee Dam is a beyond-design-basis event. However, as framed by Petitioners, this contention seeks to challenge the DSEIS discussion of DBAs.121 Petitioners do not explain why this, or any other, beyond-design-basis event is required to be itemized in the DBA discussion. Part 51 contains no express requirement to do so. And Petitioners fail to explain why the absence of such information is in any way material to the analysis of DBAs.

Second, Petitioners criticize the DBA discussion for not including certain alleged details from the regulatory history of the NRCs CLB analysis of a hypothetical, beyond-design-basis Jocassee Dam failure. Specifically, they claim this DSEIS discussion should have recited details related to a 2008 information request and subsequent 2010 Corrective Action Letter (CAL) from the NRC. Again, however, Petitioners fail to explain why such details regarding historical CLB evaluations of beyond-design-basis events is required to be republished in the DSEIS DBA analysis.122 Part 51 contains no express requirement to do so. And Petitioners offer no explanation of how the absence of this information from the DBA analysis is in any way material.

Moreover, as the licensing board in the Initial Proceeding explained in great detail, this information was later superseded by regulatory action related to the post-Fukushima 50.54(f) Letter process.123 And, as noted above, the DBA discussion does summarize the results of the 50.54(f) 120 Id. at 12-13.

121 Petition at 5 (citing DSEIS at F-5), 6 n.6 (citing pages F-3 to F-4), 9 n.14 (citing F-4), 14 n.32.

122 Duke notes that the relevant regulatory history of the NRCs CLB analysis is readily available in the public regulatory record. See Letter from J. Giitter, NRC, to D. Baxter, Duke, Information Request Pursuant to 10 CFR 50.54(f) Related to External Flooding, Including Failure of the Jocassee Dam, at Oconee Nuclear Station, Units 1, 2, and 3, (TAC Nos. MD8224, MD8225, and MD8226) (Aug. 15, 2008) (ML081640244); Letter from D. Baxter, Duke, to NRC Document Control Desk, Oconee External Flood Commitments (June 3, 2010) (ML101610083);

Letter from L. Reyes, NRC, to D. Baxter, CAL 2-10-003, [CAL] - Oconee Nuclear Station, Units 1, 2, and 3 Commitments to Address External Flooding Concerns (TAC Nos. ME3065, ME3066, and ME3067) (June 22, 2010) (ML12363A086).

123 Oconee, LBP-22-1, 95 NRC at 70-76.

27 Letter process. Petitioners identify no reason why further specificity regarding the step-by-step chronology of the 2010 CAL would be relevant or necessary in the DBA analysis.

Petitioners arguments on these issues appear to be rooted in their claim that the 2011 NRC Safety Evaluation, prepared as part of the 2010 CAL process, remains effective and identifies an open and unresolved safety issue because the NRC allegedly has not repudiated the 2011 Safety Evaluation.124 That document presented a highly conservative and bounding analysis of a hypothetical failure of the Jocassee Dam.125 At the time, the NRC was considering relying on that evaluation to require Duke to take some further regulatory action to satisfy the 2010 CAL.

However, Petitioners claims misapprehend the full scope of the associated regulatory history and should be squarely rejected for the same reasons outlined by the licensing board in the Initial Proceeding.126 Petitioners fail to engage with relevant regulatory history and instead cherry pick language to support their position, which misconstrues the ultimate outcome of the 2010 CAL process and the 50.54(f) Letter process. Accordingly, these claims are unsupported and fail to raise a genuine dispute with the DBA discussion.

Petitioners assertions regarding the 2011 Safety Evaluation merely recycle arguments that the Board soundly rejected in LBP-22-1. There, like here, Petitioners maintained that the 2011 Staff Safety Evaluation establishe[d] an adequate protection issue that remains outstanding because post-Fukushima material d[id] not employ the necessary reasonable assurance of 124 Petition at 6-7.

125 Letter from E. Leeds, NRC to P. Gillespie, Duke, Staff Assessment off Dukes Response to Confirmatory Action Letter Regarding Dukes Commitments to Address External Flooding Concerns at the Oconee Nuclear Station, Units 1, 2, and 3 (ONS) (TAC Nos. ME3065, ME3066, ME3067), Encl. at 13 (Jan. 28, 2011) (ML110280153)

(the licensee has included conservatisms of the parameters utilized in the dam breach scenario. These conservatisms provide the staff with additional assurance that the above Case 2 scenario will bound the inundation at ONS) (emphasis added).

126 Oconee, LBP-22-1, 95 NRC 49.

28 adequate protection to public health and safety language.127 But, as noted above, the absence of the words adequate protection from the Closeout Letter does not support Petitioners claim. The NRC issued guidance explaining the 50.54(f) Letter process. Reading the Closeout Letter in conjunction with its associated guidance makes absolutely clear that, as to Oconee, the NRC concluded that no further actions were required to maintain or restore adequate protection.

However, Petitioners simply ignore that record.

Furthermore, the licensing board held that Petitioners fail[ed] to engage with the numerous post-Fukushima documents and reports that were exchanged between the Applicant and the NRC from 2012 through 2020128 and did not reference [] more recent information.129 So too here.

Petitioners still do not engage with the full post-Fukushima regulatory history (discussed throughout this answer and cataloged in the attachments to the Closeout Letter), including the agency records explaining the 50.54(f) Letter process, which squarely refute Petitioners assertions that the 2011 Safety Evaluation remains open.

As the licensing board noted, after the 50.54(f) Letter process was initiated, the NRC Staff specified that the 2010 CAL would only remain active until it can be superseded by regulatory action related to the [50.54(f) Letter process].130 As part of the 50.54(f) Letter process, Duke prepared an updated analysis of a hypothetical failure of the Jocassee Dam. As required by the NRC, that analysis used modern guidance and more accurate information and techniques. After reviewing the updated analysis, the NRC concluded that, for purposes of satisfying the 2010 CAL, the more modern analysis performed pursuant to the 50.54(f) Letter provided an acceptable 127 Id. at 89 (citing Petitioners Rely at 11-14; Tr. at 50-51 (Curran).

128 Id. at 90 (citations omitted).

129 Id. at 89.

130 Id. at 73 & n.46.

29 alternative to the prior analysis considered in the 2011 Safety Evaluation.131 In 2016, after confirming certain actions were taken by Duke based on the more modern analysis, the NRC ultimately confirmed that the 2010 CAL is now closed.132 In other words, the regulatory process for which the 2011 Safety Evaluation was prepared has been definitively dispositioned. And that disposition did not include the imposition of a backfit under 10 C.F.R. § 50.109. As part of that disposition, the NRC also noted that it was continuing to address other aspects of external flooding hazards as part of the 50.54(f) Letter process.133 But that process also did not result in a backfit under 10 C.F.R. § 50.109 because the NRC concluded that no further actions were needed to maintain or restore adequate protection for Oconee.

Lastly, contrary to Petitioners apparent assertion, an NRC safety evaluation standing alone lacks the legal capacity to require anything. As a basic principle of administrative law, federal agencies impose requirements through regulations and orders. In contrast, a safety evaluation is precisely thatan evaluation. This legal principle is also captured in a draft revision to the NRCs backfitting guidance that is currently pending before the Commission, which explains:

Staff positions in safety evaluations are not requirements; rather, they are the NRCs regulatory bases for its decisions or interpretations. A safety evaluation (or safety evaluation report) provides the staff position on why an affected entitys proposed means of implementing or complying with a governing requirement is acceptable and results in compliance with the requirement. The safety evaluation is not part of the licensing basis unless specifically incorporated by the licensee or required as a condition of approval by the staff.134 In sum, a safety evaluation is neither an order nor a regulation. Here, the requirement to take certain actions related to the reevaluated flooding hazard arises from the regulatory 131 Id. at 75 (citation omitted).

132 Id. (citation omitted).

133 Id. at 76.

134 NUREG-1409, Rev. 1, Backfitting Guidelines at 1-5 (Mar. 31, 2021) (ML21006A433).

30 commitments made by Duke.135 As approved by the NRC, those commitments are based on the more modern analysis performed under the 50.54(f) Letter process rather than the overly conservative analysis considered in the 2011 Safety Evaluation. Because the NRC closed both the 2010 CAL and the 50.54(f) Letter process without imposing a backfit through the 50.109 process, Petitioners assertion that the 2011 Safety Evaluation has ongoing regulatory significance is entirely unsupported.

Ultimately, Petitioners characterization of the 2011 Safety Evaluation lacks support, and their demand that the DBA analysis include a detailed recitation of the now-superseded regulatory history of the 2010 CAL fails to establish a genuine dispute on a material issue of fact or law.

4.

To the Extent Petitioners Seek to Litigate the Sufficiency of Oconees Current Licensing Basis, Their Arguments Are Beyond the Scope of This Proceeding It is settled law that a contention challenging a plants CLB is outside the limited scope of a license renewal proceeding, as codified in 10 C.F.R. Part 54. The license renewal safety review has long been limited to certain aging management matters under codified scope limitations in 10 C.F.R. Part 54.136 Accordingly, to the extent that Petitioners are demanding the ability to challenge the sufficiency of CLB safety issuessuch as Oconees design basis for flooding hazardsin this license renewal proceeding, its demand amounts to an impermissible collateral attack on NRC regulations.137 Such attacks are beyond the scope of this proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii).

135 See, e.g., NRC, Office of Nuclear Reactor Regulation, Office Instruction LIC-100, Control of Licensing Bases for Operating Reactors (Jan. 7, 2004) (ML033530249) (noting that licensee regulatory commitments are considered enforceable obligations); Letter from S. Batson, Duke, to NRC Document Control Desk, Establish the Fukushima Flood Response as the Basis to Govern Flood Mitigation Modifications from Postulated Upstream Dam Failure (Aug. 8, 2014) (ML14225A540) (based on the recognition that the flood basis in the FHRR for an upstream dam failure will supplant the 2010 CAL flood basis, the related flood mitigation modifications for ONS are now based on the FHRR rather than the CAL.).

136 10 C.F.R. §§ 54.21, 54.29(a); see also Turkey Point, CLI-01-17, 54 NRC at 7-8.

137 10 C.F.R. § 2.335(a).

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

B.

Proposed Contention 2 (Severe Accidents) Is Inadmissible In Proposed Contention 2, Petitioners claim that the DSEIS is deficient for several reasons articulated in Sections 3.2 and 3.3 of the Mitman Report.138 As explained below, Petitioners have failed to supply the requisite information to demonstrate the admissibility of these claims.

1.

The Petition Lacks Sufficient Information to Demonstrate a Genuine Dispute Regarding the DSEIS Analysis of Severe Accidents The first defect in Proposed Contention 2 is Petitioners attempt to incorporate several sections of Mr. Mitmans Declaration, without further elaboration on any legal theories, and without any further explanation of how or why the cited content somehow satisfies the admissibility criteria in 10 C.F.R. § 2.309.139 However, the Commission has squarely held that perfunctory pleadings such as this are insufficient in NRC adjudicatory proceedings. Accordingly, Proposed Contention 2 should be summarily rejected as a threshold matter.

a.

Petitioners Wholesale Incorporation Tactic Is Impermissible as a Matter of Law Instead of advancing substantive arguments in the Petition itself, Petitioners seek to conjure an admissible contention by merely incorporating several sections of an attachment. Namely, Proposed Contention 2which is barely over 1 page in lengthcontains a sentence that alleges a series of supposed deficiencies that purportedly are set forth in five subsections of the Mitman Report (Sections 3.2.1 to 3.2.5), which Petitioners apparently seek to incorporate by reference.

138 Petition at 16-17.

139 Id.

32 However, the Commission squarely prohibits wholesale incorporation of more detailed analyses as alleged support for contention admissibility.140 As a matter of law, the Commission has held that this approach is insufficient to satisfy a petitioners pleading burden because a wholesale incorporation by reference does not serve the purposes of a pleading.141 Moreover, providing a document or an expert opinion as the foundation for a contention, without setting forth [in the petition] an explanation of its significance, is inadequate to support the admission of a contention.142 Here, Proposed Contention 2 contains no such explanation. In fact, Petitioners fail, entirely, to communicate any specific legal theories for their claims. For example, the heading for Proposed Contention 2 alleges that the [2024 D]SEIS Risk Estimates Fail to Meet NEPA Requirements for Rigor, Accuracy, Completeness, and Consideration of Uncertainties.143 But, nowhere do Petitioners purport to identify or explain any specific NEPA requirements for rigor, nor accuracy, nor completeness, nor consideration of uncertainties. And Petitioners plainly do not engage with those unidentified and unexplained legal standards (in NEPA or elsewhere) or explain how or why the DSEIS allegedly falls short of satisfying them.

Instead, Petitioners offer a brusque reference to the NRCs general obligation under NEPA to take a hard look at the potential environmental impacts of a proposed action. But they offer no further elaboration of the hard look standard. And they do not offer a single argument or 140 See, e.g., S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, 71 NRC 1, 21-22 (2010) (licensing board did not err in excluding portion of contention where expert report did not specifically challenge or expressly challenge the text of the relevant analysis); see also Entergy Nuclear Operations, Inc.

(Palisades Nuclear Plant and Big Rock Point Site), CLI-22-8, 96 NRC 1, 100 (2022) (citing Pub. Serv. Co. of N.H.

(Seabrook Station, Units 1 and 2), CLI-89-3, 29 NRC 234, 240-41 (1989)).

141 Seabrook, CLI-89-3, 29 NRC at 240-41. The Commission has held that the oppositewhere an affidavit adopts by reference the content of a pleadingis acceptable to satisfy the unique affidavit provision in 10 C.F.R. § 51.109(a)(2), applicable only to geologic repository hearings, in the context of a legal contention. U.S. Dept. of Energy (High Level Waste Repository), CLI-09-14, 69 NRC 580, 589-90 (2009), affirming LBP-09-6, 69 NRC 367 (2009). However, none of those circumstances are present here.

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

(citing Indian Point,, LBP-08-13, 68 NRC at 63; Fansteel, CLI-03-13, 58 NRC at 204).

143 Petition at 16.

33 explanation of how the facts of this case apply to NEPAs hard look standard, nor why that information allegedly fails to satisfy that standard. Vague, unexplained challenges such as this are facially inadmissible because, to demonstrate a genuine dispute, the codified admissibility criteria state that petitioners must detail the supporting reasons (including citations to specific legal authorities and explanations of how they support the arguments) for each and every dispute.144 Simply put, the Petition itself lacks the requisite clarity and precision145 for an admissible contention. And Proposed Contention 2 should be rejected for that reason alone.

b.

Petitioners Plainly Misread Section 3.2.1 of the Mitman Report (PWR All Hazards CDF Comparison), Which Does Not Support the Claims in the Petition In Proposed Contention 2, Petitioners claim that the DSEIS is deficient because it relies on an inaccurate all hazards core damage frequency (CDF) estimate.146 They do not explain this any further, but instead claim that this inaccuracy is set forth in Section 3.2.1 of the Mitman Report.147 But a simple review of that section reveals that it does not support Petitioners claim.

Section 3.2.1 of the Mitman Report purports to dispute the manner in which certain current and historical CDF values are compared; it says nothing, whatsoever, about the accuracy of those values. Petitioners misreading of the Mitman Report cannot support an admissible contention.148 144 10 C.F.R. § 2.309(f)(1)(vi).

145 Wolf Creek, ALAB-279, 1 NRC at 576.

146 Petition at 16.

147 Id.

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

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

34

c.

Petitioners Conclusory Assertion That the DSEIS Fails to Address Uncertainties Is Untrue, Unsupported, and Fails to Demonstrate a Genuine Dispute In Proposed Contention 2, Petitioners allege that the DSEIS fails to address uncertainties, in violation of NEPA and NRC guidance for probabilistic risk assessments.149 As alleged support, Petitioners cite only two things: (1) the Limerick Ecology Action case, and (2) the NRC guidance cited in Mitman Report, Section 3.3.150 Although it is not expressly stated in the Petition, this criticism appears directed at the NRCs evaluation of severe accidents in Appendix F of the DSEIS.151 If so, then this contention of omission is inadmissible on its face. Appendix F does not fail[] to address uncertainties as Petitioners claim. Section F.3.9 is devoted exclusively to the topic of Uncertainties.152 Yet, the Petition does not acknowledge this analysis or attempt to dispute it in any way. Petitioners claim of omission is facially inadmissible because the allegedly-omitted analysis is, in fact, provided.153 As a result, Petitioners conclusory assertion that the DSEIS fails to address uncertainties with respect to severe accident risk is unsupported and fails to raise a genuine dispute.

In sum, the cursory information provided in the Petition regarding Proposed Contention 2 is wholly insufficient to satisfy the NRCs strict-by-design contention admissibility criteria.

149 Petition at 17.

150 Id. Notably, unlike Sections 3.2.1 to 3.2.5 of the Mitman Report, Petitioners do not express any desire to incorporate the entirety of Section 3.3only the guidance cited therein. Compare Petition at 16-17 (stating the deficiencies they allege are set forth in Sections 3.2.1 to 3.2.5) with id. at 17 (alleging a deficiency and citing as support a judicial decision and NRC guidance cited in Mitman Report, Section 3.3) (emphasis added).

151 The sections of the Mitman Report incorporated by reference into Petitioners Proposed Contention 2 purport to challenge sections contained in the DSEIS evaluation of the probability-weighted consequences of severe accidents at Oconee. See Mitman Report at 37 (critiquing the conservativism of UCB estimates for environmental impacts of severe accidents).

152 DSEIS at F-28.

153 See also Mitman Report at 37 (In Section F.3.9, the [DSEIS] discusses uncertainty...).

35

2.

The Mitman Report Also Fails to Articulate an Admissible Contention As noted above, the Commission has repeatedly refused to allow petitioners to shift their pleading burden to the presiding officer and other parties by requiring them to scour affidavits or other attachments to identify potential threshold admissibility arguments for a contention when those arguments are not otherwise advanced in the petition itself. But even if that were not the controlling law (it is), none of the subsections of the Mitman Report referenced in Proposed Contention 2 supply, individually or collectively, the requisite information needed to satisfy the six admissibility criteria in 10 C.F.R. § 2.309(f)(1).

As an overarching matter, the Mitman Report offers little more than conclusory advice regarding things the NRC should do, unaccompanied by the identification of some statutory or regulatory obligation that allegedly imposes some unmet requirement to do those things, or any theories of materiality. Indeed, NEPA is barely mentioned, and Part 51 is not mentioned at all. It also suffers from various misinterpretations or selective readings of documents that reveal the baseless nature of the arguments presented therein. Because things like unexplained expert conclusions and imprecise readings of documents cannot support the admissibility of a contention,154 the Mitman Report does not resuscitate the inadequate Petition.

a.

All Hazards CDF In Section 3.2.1 of his Report, Mr. Mitman offers two criticisms of the DSEIS analysis of postulated Severe Accidents. Neither criticism identifies a genuine dispute.

First, Mr. Mitman criticizes Table F-4. That table lists the All Hazards (Full Power) Core Damage Frequency values from the 1996 GEIS and initial license renewal supplements thereto for two plants (Oconee and Indian Point Unit 2), as well as mean and median values for pressurized 154 Ga. Tech, LBP-95-6, 41 NRC at 300; USEC, CLI-06-10, 63 NRC 472; Fansteel, CLI-03-13, 58 NRC at 203.

36 water reactors (PWR).155 Mr. Mitman criticizes that table because the value shown for Oconee is not the known current all hazard value.156 However, the table itself does not purport to show current values; it clearly provides historical information. Moreover, the current value for Oconee is shown in the following table, Table F-5. Simply put, the absence of the current value from Table F-4 is not a material defect and Mr. Mitman provides no basis to conclude otherwise.

Second, Mr. Mitman criticizes an observation by the NRC Staff that the current All Hazards CDF value for Oconee (as shown in Table F-5) is less than the highest estimated internal events CDF... used in the 1996 LR GEIS (associated with Indian Point Unit 2, as shown in Table F-4). Yet, the NRC Staffs statement is entirely accurate, and Mr. Mitman does not challenge that statement as a factual matter. Instead, he asserts that, by comparing the current value for Oconee to the highest value in the 1996 GEIS, instead of comparing it to the mean and median values, the DSEIS somehow significantly understates accident risks.157 But that claim is illogical. The purpose of the comparison is not to state accident risks as Mr. Mitman suggests; in fact, the risk is plainly quantified in Table F-5. As should be obvious, the point of the comparison is to demonstrate that Oconee remains bounded by the NRCs (codified) 1996 analysis. Mr. Mitman offers no explanation as to why that perfectly accurate and entirely reasonable observation is materially deficient or otherwise understates accident risks, which are expressly quantified in the same discussion. Accordingly, neither criticism identifies a material dispute.

155 DSEIS at F-15.

156 Mitman Report at 34.

157 Id.

37

b.

External Events Multiplier In Sections 3.2.2 and 3.2.3, Mr. Mitman purports to criticize the discussion of external events information related to fire and seismic events in the DSEIS. As explained below, Mr.

Mitmans commentary fails to raise a genuine dispute.

As to fire events, Mr. Mitman states that Section F.3.2.1 of the DSEIS discusses how the

[sic] Duke used an external events multiplier to calculate the estimated population dose risk.158 He further states that this multiplier was obtained by dividing the all-hazards CDF by the internal events CDF.159 According to Mr. Mitman, this methodology results in an underestimation of risk because certain information in Dukes 2021 ER shows that the [large early release frequency (LERF)] values for fire are disproportionally larger for fire then [sic] for internal events.160 In other words, Mr. Mitman argues that the DSEIS should have used a higher external events multiplier based on LERF values in Dukes 2021 ER. However, Mr. Mitman appears to conflate two different analyses.

First, the discussion of the external events multiplier in Section F.3.2.1 of the DSEIS pertains to Dukes 1998 Level 3 [probabilistic risk assessment (PRA)] analysis, which was conducted as part of Oconees initial license renewal.161 The updated values provided in Dukes 2021 ER obviously were not available in 1998; and Mr. Mitman offers no reason why the 1998 analysis is deficient for failing to consider such (then-non-existent) values. So, to the extent his commentary is intended to criticize the calculation of the external events multiplier in 1998, his claims are unsupported and fail to raise a genuine dispute.

158 Id.

159 Id. at 34-35.

160 Id. at 35.

161 DSEIS at F-18 to F-19 (emphasis added).

38 Second, the DSEIS analysis does not evaluate population dose risk by calculating an external events multiplier that divides the all-hazards CDF by the internal events CDF, as Mr.

Mitman implies. In fact, it does not calculate a new external events multiplier at all. As explained in Section F.3.2.1 of the DSEIS:

The NRC staff found that considering the substantial Oconee Station population dose risk reduction from the predicted 95 percent UCB population dose value from the 1996 LR GEIS population dose risk (reduction in population dose risk by a factor of 266),

higher external event multipliers using the more recent higher Oconee Station external event PRA values would not change the conclusions in the 1996 LR GEIS.

Section 3.2.2 of the Mitman Report does not acknowledge this conclusion. It does not grapple with the NRCs decision to not recalculate population dose risk using higher external event multipliers.

And it certainly does not explain why that approach is deficient in any way, much less materially so.

Simply put, Mr. Mitman proposes an alternate means of analysis, but fails to explain why the NRCs analysis falls short of any requirement. The mere presentation of an alternative method of analysis is insufficient to demonstrate a material dispute.

As to seismic events, Mr. Mitman purports to attack a quote from Section F.3.2.2 of the DSEIS.162 That section is titled Seismic Events.163 However, the block quote he provides does not discuss seismic events and is not from Section F.3.2.2; rather, it is from the discussion in Section F.3.2.1, which pertains to Fire Events.164 Otherwise, Mr. Mitman does not point to any other portion of Section F.3.2.2. Thus, he has not articulated any challenge to this section.

Furthermore, to the extent he presum[es]165 that the DSEIS analysis of seismic events relies upon the same external event multiplier discussed in the Fire Events section, Mr.

162 Mitman Report at 35.

163 DSEIS at F-20.

164 Mitman Report at 35 n.121 (citing DSEIS at F-19); see also DSEIS at F-18 to F-20 (discussing Fire Events).

165 Mitman Report at 35 (Presumably, this comparison....).

39 Mitmans speculation is insufficient for an admissible contention.166 And even assuming arguendo that his speculation was correct, his challenge would fail for the same reason noted above. That is because, aside from proposing an alternate means of analysis, Mr. Mitman fails to explain why the NRCs analysis is deficient. He merely observes that he is uncertain whether the NRCs conclusion is accurate.167 Far more is required to demonstrate a genuine dispute.

c.

Risk Aggregation In Section 3.2.4, Mr. Mitman attempts to criticize the NRCs evaluation of new information concerning the probability-weighted consequences of a hypothetical severe accident in Section F.3 of the DSEIS. As the NRC explained, consistent with the approach used in the 2013 GEIS, the DSEIS groups the new information into eight areas (e.g., internal event risk, external event risk, etc.).168 That information is then evaluated to determine whether the new information for any group is significant, i.e., would change the previous conclusions regarding the probability-weighted consequences of a hypothetical severe accident.169 Mr. Mitman claims that, by evaluating each scenario in isolation, without examining their compounding effects, the NRC somehow seriously underestimates the change in risk.170 He then purports to calculate an aggregate risk factor change value for Oconee and argues the NRC should do the same. However, these claims are fundamentally flawed for multiple reasons.

First, Mr. Mitmans segmentation theory overlooks the fact that, in addition to the group-by-group evaluation of new information, the DSEIS also considers whether the new information would, collectively, change the conclusion that the probability-weighted consequences of a severe 166 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 307 (2012).

167 Mitman Report at 35 (Thus, it is far from clear that the assumed margin in the population dose exists.).

168 DSEIS at F-10.

169 DSEIS at F-11.

170 Mitman Report at 36.

40 accident at Oconee Station are small.171 Indeed, the DSEIS evaluates the total combined plant risk for Oconee, inclusive of all hazards. And Mr. Mitman is plainly aware of this information.

Section 3.2.1 of his Report references the all hazards CDF value for Oconee. Section 3.2.2 of his Report references the more detailed information in Dukes 2021 ER, which further breaks down the Combined CDF, Combined STC LERF, and Combined STC LLRF values from Oconees updated PRA model, which the NRC also reviewed as potentially new and significant information.172 Thus, to the extent Mr. Mitman is alleging that Oconee-specific plant risk has not been evaluated collectively, this claim is unsupported and fails to raise a genuine dispute because it is factually incorrect.

Second, Mr. Mitman criticizes the DSEIS for not attempting to interweave the various evaluations of new information into a single numerical value. However, he fails to explain why that allegedly is required by law. Furthermore, aside from speculating that such a combination is possible, he fails to explain how it could be accomplished (given the disparate data types noted below) or why such an evaluation would be meaningful or material here.

Mr. Mitman then offers Table 6, which presents a hodge-podge of six different scenarios with various information. But those scenarios do not evaluate the same information and Mr. Mitman fails to explain any cogent theory of compatibility or interchangeability of this divergent data as it relates to this contention. As best the Applicant can decipher, four of the six items pertain to frequencies of different eventsthree pertaining to core damage and one considering large early release. The other two items do not evaluate event frequencies at all, but instead pertain to a conditional consequence measure: population dose risk. Some of the items consider Oconee-specific information from the plant PRA (seismic, fire). Whereas, other items 171 DSEIS at F-8 (emphasis added).

172 Mitman Report at 35 (citing ER at 4-89 to 4-109, tbl. 4.15-2 (ML21158A196)).

41 have nothing to do with Oconee, such as the Power Uprate and Higher Burnup Fuel scenarios which appear to reflect the worst-case increases of any plant in the country on those topics.173 And the scenario for Jocassee Dam Failure, for which Mr. Mitman claims a risk factor change of 30, does not represent an actual value from any plant, whatsoever. That number comes from a sensitivity analysis in which the NRC reviewer selected a factor of 30 as a purposefully conservative sensitivity multiplier.174 How one might mix these things together to some meaningful end is a question left entirely unaddressed by Mr. Mitman.

For extra measurein addition to using worst-case, non-Oconee, and purposefully overconservative hypothetical valuesMr. Mitman then chooses to multiply (rather than add)175 these mix-and-match scenarios. Not surprisingly, the result is an extraordinarily high value. But the result is entirely meaningless and demonstrates no defect in the DSEIS. Even Mr. Mitman acknowledges that Table 6 is wholly inaccurate and mathematically incorrect.176 Nevertheless, he speculates that such a Frankenstein-like concoction of facially incompatible risk information into a meaningful numerical value somehow may be possible.177 But he does not explain that assertion.

For that reason alone, these claims lack the requisite support to demonstrate a deficiency in the DSEIS. Furthermore, Mr. Mitman fails to engage with NEPA (or any other unspecified requirement) or otherwise explain why the absence of such an analysis in the DSEIS constitutes a material omission. Far more is required for an admissible contention.

173 DSEIS at F-24, F-25.

174 Id. at F-30.

175 Even if the various scenarios in Mr. Mitmans Table 6 were analytically compatible, the mathematically correct way to aggregate risk is addition, not multiplication. See generally Regulatory Guide 1.174, Rev. 3, An Approach for Using Probabilistic Risk Assessment in Risk-Informed Decisions on Plant-Specific Changes to the Licensing Basis at 23 (Jan. 2019) (ML17317A256).

176 Mitman Report at 37 (I recognize that the mathematical aggregation of these individual risks in this table is inaccurate because they multiply relate [sic] to different elements of a risk analysis that may not be compared directly to achieve an accurate result.).

177 Id.

42

d.

SOARCA In 2012 and 2022, respectively, the NRC published NUREG-1935 and NUREG/CR-7262, related to a project known as State-of-the-Art Reactor Consequence Analyses (SOARCA). The NRC initiated the SOARCA project to develop best estimates of the offsite radiological health consequences for potential severe reactor accidents for certain pilot plants. Section F.3.2.2 of the DSEIS, titled Seismic Events, discusses the published results of these analyses. In Section 3.2.5 of his Report, Mr. Mitman mentions Section F.3.2.2 of the DSEIS and its discussion of SOARCA.

He says that without additional analysis it is unclear whether SOARCA insights apply to Oconee (because it has a different design than the pilot plants).178 But this oblique statement, which does not pose a clear challenge to any particular statement or conclusion in Section F.3.2.2 of the DSEIS, fails to demonstrate a genuine dispute.

Contrary to the requirement in 10 C.F.R. § 2.309(f)(1)(vi), Mr. Mitman fails to point to any specific language in Section F.3.2.2 of the DSEIS that he purports to challenge. The SOARCA discussion in Section F.3.2.2 merely provides a matter-of-fact summary of those studies, which Mr.

Mitman does not appear to dispute.179 In fact, his only reference to the text is to note that it discusses SOARCA and specifies the types of plants that were studied. Mr. Mitman seems to imply (but does not specifically claim) that some unspecified insights from the SOARCA studies somehow have been applied to Oconee in DSEIS Section F.3.2.2. However, Mr. Mitman fails to identify those purported insights; he fails to explain how they allegedly were applied to the analysis in Section F.3.2.2; and he fails to explain how or why the alleged application of those unidentified insights somehow constitutes a material error. To the extent Mr. Mitman speculates 178 Id.

179 DSEIS at F-22.

43 that some additional analysis might clarify the applicability of those insights to Oconee, he fails to supply any such analysis, much less one that demonstrates a genuine material dispute.

Furthermore, Mr. Mitmans commentary fundamentally misconstrues the purpose of Section F.3.2.2 of the DSEIS, which is to describe the NRC Staffs evaluation of new and significant information.180 Because the SOARCA studies post-date the environmental review for Oconees initial license renewal, the DSEIS evaluates the corresponding information (because it is obviously new) to determine whether it provides any significant information in the context of seismic events. The NRC Staff ultimately concluded that the SOARCA studies are not significant, meaning that they do not alter the NRC Staffs conclusion regarding the probability-weighted consequences of a hypothetical severe accident.181 Mr. Mitman does not contradict that conclusion.

And his vague commentary otherwise fails to articulate a genuine material dispute with this portion of the DSEIS.

e.

Uncertainties Unlike the argument Petitioners present in the Petition, Section 3.3 of the Mitman Report does not claim that the DSEIS utterly omits an analysis of uncertainties. Mr. Mitman acknowledges that the DSEIS contains such a discussion, but he criticizes the adequacy of that analysis, claiming that it is not comprehensive.182 According to Mr. Mitman, the NRCs environmental analysis of severe accidents as presented in the DSEIS is deficient because it does not strictly follow NRC safety guidance for probabilistic risk assessments. However, these arguments fail to raise a genuine dispute for several reasons.

180 Id. at F-1.

181 Id. at F-17 (concluding that no new and significant information exists as to external events).

182 Mitman Report at 38.

44 First, Mr. Mitmans insistence that the NRCs analysis is per se insufficient because it does not strictly follow safety-related PRA guidance finds no support in fact or law. As a general matter, guidance is just thatit imposes no legal requirements whatsoever. For example, Mr. Mitman cites Regulatory Guide 1.174. As noted on page 3 of that document, Regulatory guides [RGs] are not substitutes for regulations and compliance with them is not required. Methods and solutions that differ from those set forth in RGs will be deemed acceptable if they provide a basis for the findings required.... Moreover, as clearly stated in the title of that document, it pertains to changes to a plants licensing basis. But the evaluation in the DSEIS is not being undertaken to effectuate a change in any licensing basis. In sum, Mr. Mitman offers no basis to conclude that this (non-mandatory) guidance is applicable to the DSEIS, and the document itself suggests otherwise.

More importantly, Mr. Mitmans sole criticism of the uncertainty methodology used in the DSEIS is that it does not constitute comprehensive uncertainty analysis. But nowhere does he identify any provision in NEPA, or any other requirement, that mandates a comprehensive uncertainty analysis. The NRC has long used very conservative 95th percentile UCB estimates for environmental impact. In other words, in lieu of conducting a comprehensive analysis, the NRC has chosen to analyze uncertainty through a bounding analysis that is highly conservative.183 The Commission has endorsed that approach in three separate rulemakings to codify its severe accident analysis.184 And Mr. Mitman offers no explanation as to why that long-accepted approach is somehow deficient here. Accordingly, these arguments fail to identify a genuine dispute with the DSEIS on any material issue of fact or law.

183 DSEIS at F-28 (citing Section 5.3.3.2.2 of the 1996 GEIS).

184 See 1996 GEIS; 2013 GEIS; 2024 GEIS.

45 C.

Proposed Contention 3 (Climate Change / Accident Risk) Is Inadmissible In Proposed Contention 3, Petitioners allege that the DSEIS is deficient because it does not address the effects of climate change on accident risk.185 As discussed below, Petitioners have not met their burden to show that this contention is admissible. As one licensing board recently held on a nearly identical proposed contention supported by similar assertions from Mr. Mitmanfar more is required for an admissible contention.186

1.

The Petition Lacks Sufficient Information to Demonstrate a Genuine Dispute Regarding the DSEIS Consideration of Climate Change For each proposed contention, the petition must... include references to specific portions of the [document] that the petitioner disputes and the supporting reasons for each dispute.187 However, the cursory, 1.5-page articulation of Proposed Contention 3 in the Petition fails to provide enough information to satisfy this threshold pleading burden. And the contention should be rejected accordingly.

As an initial matter, the only specific portion of the DSEIS mentioned in Contention 3 is a single statement that the need for safety-related changes to plant infrastructure (including in response to changing environmental conditions) is evaluated on an ongoing basis as part of the NRCs safety oversight of the plants CLB.188 But Petitioners do not dispute the accuracy of that statement. Likewise, Petitioners cite NEPA and 10 C.F.R. § 51.71 as the requirements that allegedly are unsatisfied in some unspecified portion of the DSEIS. Yet, nowhere in Proposed Contention 3 (pages 18 through 19 of the Petition) do Petitioners offer any elaboration on which specific NEPA provision or which specific requirement in Section 51.71 they allege is unmet.

185 Petition at 18.

186 See Fla. Power & Light Co. (Turkey Point Generating Station Units 3 and 4), LBP-24-3, 99 NRC __, __ (Mar. 7, 2024) (slip op. at 31-34).

187 10 C.F.R. § 2.309(f)(1)(vi) (emphasis added).

188 Petition at 18 (citing DSEIS at 3-35 to 3-36).

46 NEPA and 10 C.F.R. § 51.71 are broad legal constructs with multiple subparts imposing various obligations and requirements. NEPA is primarily codified in Chapter 55 of Title 42 of the United States Code, which contains four subchapters and dozens of code sections. And Section 51.71 of the NRCs NEPA implementing regulations comprehensively prescribes the content for the entirety of a draft environmental impact statement; it contains six subsections that collectively cross-reference fifteen other sections of Part 51. The Board and the other parties are not required to guess which portions of the DSEIS are being challenged and which legal requirements are being invoked in Petitioners vague arguments. That is a pleading burden that falls on Petitioners.189 And it remains unmet here.

Generously construing the limited information that is presented in the Petition, it is obvious that Petitioners have not proffered an admissible contention. For example, Petitioners state that the NRCs (factually accurate) observation that safety-related changes to plant infrastructure are evaluated as part of the CLB does not excuse the agency from addressing the risks of climate change.190 That is true. But the DSEIS does not seek to be excused from evaluating climate change. Petitioners also cite the D.C. Circuits decision in New York v. NRC191 for the proposition that climate change must be considered in the DSEIS and that the NRC cannot avoid that obligation absent a determination that such effects are so small as to be remote and speculative.192 Again, to the extent Petitioners imply that the DSEIS has not evaluated climate change, or that the DSEIS seeks to avoid evaluating climate change, those assertions are unsupported and fail to raise a genuine dispute.

189 Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 331 (1983).

190 Petition at 18.

191 New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012).

192 Petition at 18 (citing New York, 681 F.3d at 478).

47 Had Petitioners reviewed the relevant portions of the DSEIS, they would know that the NRC squarely considered the environmental effects of climate change. In fact, the phrase climate change appears 104 times in that document. The DSEIS contains an entire section devoted solely to a discussion of climate change.193 It details observed trends in climate change indicators;194 evaluates climate change projections; and provides specific discussions of climate change in the context of air quality and surface water resources.195 Far from seeking to be excused from the requisite environmental analysis, the DSEIS addresses climate change head-on and in detail. Thus, Petitioners assertion is unsupported. And because Petitioners have not acknowledged or engaged with the relevant analyses, they obviously have not identified a genuine dispute therewith.

Petitioners also state that an increased frequency and severity of extreme weather events is inevitable.196 That statement is fully consistent with the climate change discussion in the DSEIS that Petitioners entirely disregard.197 Petitioners then allege that climate change will inevitably affect the likelihood and severity of reactor accidents.198 But the Petition offers no explanation of how it will affect the likelihood or severity of postulated accidents. And it proffers no theory on how those unspecified effects purportedly challenge, or even relate to, some unspecified portion of the DSEIS. At a fundamental level, Petitioners vague statements fail to demonstrate a genuine dispute.

In any event, the DSEIS thoroughly evaluates the likelihood and severity of hypothetical reactor accidents (whether caused by climatological phenomena or otherwise) in the Postulated 193 DSEIS at 3-205 to 3-209.

194 Id. at 3-206.

195 Id. at 3-206 to 3-209.

196 Petition at 18.

197 See, e.g., DSEIS at 3-206 to 3-209.

198 Petition at 18.

48 Accidents discussion.199 That discussion is found in Section 3.11.6.9 and Appendix F of the DSEIS. But neither of those portions of the DSEIS are cited, referenced, acknowledged, or discussed in the Petition as to Contention 3. In other words, Petitioners offer no explanation of how or why those unacknowledged portions of the DSEIS are somehow insufficient in light of the alleged-but-unspecified climate change effects on the likelihood or severity of postulated accidents. Because the Petition fails to engage with the relevant portions of the DSEIS, it has not provided the requisite demonstration of a material dispute.

Instead of providing the requisite contention admissibility showing in the petition, as required by the black letter of 10 C.F.R. § 2.309(f)(1), Petitioners attempt to incorporate an entire section of Mr. Mitmans Report.200 That is impermissible for at least two reasons. First, the Commission prohibits this technique to demonstrate contention admissibility,201 holding that wholesale incorporation by reference does not serve the purposes of a pleading.202 Furthermore, merely citing a document or an expert opinion as the foundation for a contention, without setting forth an explanation of its significance, is inadequate to support the admission of a contention.203 Petitioners cannot simply shift their pleading burden to the presiding officer and other parties by requiring them to examine attachments to identify potential threshold admissibility arguments when those arguments are not otherwise advanced in the petition. But that is exactly what Petitioners are seeking to do here.

199 DSEIS, App. F.

200 Petition at 18 (incorporating the entirety of Section 3.4 of the Mitman Report).

201 Palisades, CLI-22-8, 96 NRC at 100 (citing Seabrook, CLI-89-3, 29 NRC at 240-41).

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

203 Summer, LBP-10-6, 71 NRC at 361 (citing Indian Point, LBP-08-13, 68 NRC at 63; Fansteel, CLI-03-13, 58 NRC at 204).

49 As explained above, the Petition fails to supply the information required by 10 C.F.R. § 2.309(f)(1), and Petitioners attempt to make the other parties search through the Mitman Report to find that information, in lieu of providing it in their pleading, is insufficient as a matter of settled law. Thus, Proposed Contention 3 should be rejected as a threshold matter.

2.

The Mitman Report Also Fails to Articulate an Admissible Contention Even if the Board and the parties were required to scour Section 3.4 of the Mitman Report to identify potential legal and factual arguments that may satisfy the contention admissibility criteria (they are not), that document falls short of providing the requisite information.

a.

CEQ Guidance and CLB Matters The only references to specific portions of the DSEISreferences which are expressly required by 10 C.F.R. § 2.309(f)(1)(vi)are found on pages 39 to 40 of the Mitman Report.

Specifically, Mr. Mitman cites two statements in the DSEIS acknowledging that safety matters related to component integrity from external hazards are addressed as part of Oconees CLB and are outside the scope of license renewal.204 Mr. Mitman argues that this position is arbitrary and ignore[s] [interim] guidance from the Council on Environmental Quality [(CEQ)].205 But these unsupported claims do not give rise to an admissible contention.

CEQ Guidance: As an initial matter, it is unclear why Mr. Mitman asserts that the DSEIS is inconsistent with this guidanceand he offers no explanation. The guidance indicates that agencies should consider increased risks with development in floodplains. In contrast, this license renewal proceeding involves no development because Oconee is an existing facility. So, the DSEIS does not appear to be inconsistent with this provision. The guidance also suggests that 204 Mitman Report at 39 (citing DSEIS at 3-35 to 3-36), 40 (citing DSEIS at 3-30).

205 Mitman Report at 40 (citing National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change; Notice of Interim Guidance; Request for Comments, 88 Fed. Reg 1,196, 1,207 (Jan. 9, 2023) (Interim CEQ Guidance)).

50 agencies should consider the likelihood of increased temperatures and more frequent severe storm events over the lifetime of the proposed action.206 The DSEIS does, in fact, consider those thingsalbeit in a portion of the document that Mr. Mitman ignores.207 Thus, Mr. Mitmans claim is unsupported, factually incorrect, and fails to dispute the relevant portion of the DSEIS.

Furthermore, even assuming for the sake of argument that the DSEIS was, somehow, inconsistent with this CEQ guidance, Mr. Mitman fails to explain why that creates a material dispute. As an independent agency, the NRC is only subject to the CEQ requirements that it voluntarily chooses to incorporate into its own Part 51 regulations.208 And, in any event, the cited document is merely guidanceit imposes no requirements on anyone. Mr. Mitman provides no basis to support his suggestion that alleged inconsistency with non-binding guidance that is inapplicable to the NRC somehow invokes a dispute on a material issue.

CLB Matters: To the extent Mr. Mitman asserts that the NRCs decision to exclude challenges to a plants CLB safety matters from the scope of its license renewal environmental reviews is arbitrary, he is simply wrong. The NRCs limitation on the scope of license renewal proceedings is a codified determination that was promulgated through notice-and-comment rulemaking with public participation as required by the Administrative Procedure Act. In simple terms, the NRCs position is the exact opposite of arbitrary.

Regardless, to the extent Mr. Mitman seeks to challenge that regulation here, or to relitigate Oconees CLB in this limited-scope license renewal proceeding, his claims are inadmissible. The license renewal safety review has long been limited to certain aging management matters under 206 Interim CEQ Guidance, 88 Fed. Reg. at 1,208.

207 See, e.g., DSEIS at 3-206 to 3-209.

208 10 C.F.R. § 51.10(a)(2).

51 those codified scope limitations in 10 C.F.R. Part 54.209 CLB safety issues are beyond that codified scope.210 As explained in the GEIS:

The NEPA process focuses on environmental impacts rather than on issues related to safety. Safety issues become important to the environmental review when they could result in environmental impacts, which is why the environmental effects of postulated accidents are considered in the GEIS and in plant-specific supplements to the GEIS. Since NEPA regulations do not provide for a safety review, the license renewal process includes an environmental review that is distinct and separate from the safety review. Since the two reviews are separate, operational safety issues and safety issues related to nuclear power plant aging are considered outside the scope for the environmental review, just as the environmental issues are not considered as part of the safety review.211 In other words, the safety aspects of environmental influences that may act upon a plant are evaluated as a matter of ongoing regulatory compliance, far beyond the limited scope of a license renewal proceeding. Whereas the environmental impacts of hypothetical accidents resulting from such environmental influences are evaluated in license renewal proceedings under the heading of Postulated Accidents.212 So, to the extent Mr. Mitman believes that the NRCs scope limitation precludes consideration of the environmental impacts of hypothetical accidents caused by climate-related phenomena, he is demonstrably incorrect. That analysis is expressly included in the DSEIS.

And to the extent Mr. Mitman is demanding the ability to challenge CLB safety issues related to climate-related phenomena in this limited-scope license renewal proceeding, his demand amounts to 209 10 C.F.R. §§ 54.21, 54.29(a); see also Turkey Point, CLI-01-17, 54 NRC at 7-8.

210 The Commission determined that re-assessments of CLB safety issues at the license renewal stage would be unnecessary and wasteful because they are effectively addressed and maintained by ongoing agency oversight, review, and enforcement. Turkey Point, CLI-01-17, 54 NRC at 7-9; Millstone, CLI-04-36, 60 NRC at 638 (citation omitted).

211 2013 GEIS at 1-8 (emphasis added); see also 2024 GEIS at 1-9 to 1-10.

212 DSEIS at 3-177, F-1; see also supra Section II.A.3.

52 an impermissible collateral attack on NRC regulations.213 Such attacks are beyond the scope of this proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii).

Ultimately, none of Mr. Mitmans claims related to CEQ Guidance or CLB matters demonstrate an admissible contention.

b.

Claims Without References to Specific Portions of the DSEIS Section 3.4 of the Mitman Report includes several other claims and assertions. However, not a single one is accompanied by references to specific portions of the DSEIS that purportedly are being challenged. Thus, all of these remaining claims and assertions are facially inadmissible for failing to satisfy the plain text of 10 C.F.R. § 2.309(f)(1)(vi). They are also inadmissible for the other various reasons explained below.

Internal Event Comparison: Mr. Mitman asserts that the DSEIS is somehow inadequate because it makes broad generalizations about external event [core damage frequency (CDF)]

based on extrapolations from internal event CDF values.214 Neither the specific portion of the DSEIS being challenged nor the criticism itself are further explained. However, to the extent Mr.

Mitman intends to criticize the longstanding framework in which the risks of severe accidents initiated by internal events have been found to bound the risks of severe accidents initiated by external events,215 his claims fail to demonstrate a material dispute.

The 1996 GEIS concluded that risks from severe accidents initiated by external events are adequately addressed by considering severe accidents initiated by an internal event.216 Therefore, an applicant for license renewal need only analyze the environmental impacts from an internal event 213 10 C.F.R. § 2.335(a).

214 Mitman Report at 42.

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

216 2013 GEIS at E-5 (emphasis added).

53 in order to adequately characterize the environmental impacts from either type of event.217 The 2013 GEIS reaffirmed the 1996 conclusion based on further evaluation of additional information, particularly regarding external events. It noted that the impacts from external events are comparable218 to those from internal events.219 Mr. Mitman offers zero explanation as to why that approachtwice codified by the Commission in its regulationssomehow falls short of some unspecified legal or regulatory requirement. Far more than this conclusory statement is required to show a genuine dispute.

Climate-Related External Event Frequency and Intensity: The bulk of Section 3.4 of the Mitman Report is devoted to Mr. Mitmans assertion that climate change will increase the frequency and intensity of severe weather events. Mr. Mitman also cites a report from the U.S.

Government Accountability Office (GAO) to support this proposition. Notably, these observations from Mr. Mitman and the GAO are fully consistent with the discussion in the DSEIS.220 Mr. Mitman then speculates that future climate conditions will automatically result in increased initiating event frequencies and component failure probabilities utilized in risk analyses.221 However, Mr. Mitman fails to connect this vague assertion with any particular analysis in the DSEIS. And he fails to explain why this information, if true, would somehow render that unidentified analysis materially deficient.

217 Id. (emphasis added).

218 Id. at E-47, tbl. E-19.

219 When the NRC updated the GEIS in 2013, it substantially re-evaluated the environmental impacts from externally initiated Severe Accidents based on new information and analysis techniques. See 2013 GEIS, Vol. 3, App. E at E-16 to E-24. As part of this re-evaluation, the NRC considered various analyses of accident risks (expressed in quantitative terms of CDF). Id. at E-16. The NRC staff focused its re-evaluation on those external events that contribute the most to plant risk[,] explaining that its position in the GEIS is consistent with the results obtained from the IPEEEs and the perspectives articulated in NUREG-1742. Id. at E-16 to E-17; see NUREG-1742, Perspectives Gained from the Individual Plant Examination of External Events (IPEEE) Program, Vol. 1, Final Report, at 4-20 (Apr. 2002) (ML021270070).

220 DSEIS at 3-205 to 3-209.

221 Mitman Report at 43.

54 Mr. Mitmans ultimate conclusion appears to be that climate change will increase CDF, LERF, and population dose values.222 But he does not identify any specific values that purportedly would increase as a result of climate change. He does not opine on how much those values might increase. He does not compare those speculative increases to any corresponding analysis currently provided in the DSEIS. And he does not explain why that comparison exposes a material deficiency in the current analysis or why the NRCs highly conservative approach to accounting for uncertainty in severe accident analyses is insufficient to account for potential future climate conditions. All of this information is required for an admissible contention. Yet none of it is provided here.

Ultimately, Mr. Mitmans generalized commentary on the ways in which climate change theoretically might influence risk analyses lacks the specificity needed to demonstrate a genuine dispute on a material issue of law or fact with the DSEIS.

Ultimately, the arguments presented in Proposed Contention 3 are variously unsupported, outside the scope of this proceeding, or fail to raise a genuine dispute on a material issue, contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(iii), (v), and (vi).

V.

CONCLUSION As established above, Petitioners have not proffered an admissible contention. Therefore, the Board should DENY the Petition and TERMINATE the proceeding.

222 Id. at 45.

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

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

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

PAUL M. BESSETTE, Esq.

MOLLY R. MATTISON, Esq.

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

Washington, D.C. 20004 (202) 739-5796 (202) 739-5540 Paul.Bessette@morganlewis.com Molly.Mattison@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d)

TRACEY M. LEROY, Esq.

DUKE ENERGY CORPORATION 4720 Piedmont Row Drive Charlotte, North Carolina 28210 (704) 382-8317 Tracey.LeRoy@duke-energy.com Counsel for Duke Energy Carolinas, LLC Dated in Washington, DC this 31st day of May 2024

DB1/ 147748732 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:

DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2, and 3)

Docket Nos. 50-269-SLR-2 50-270-SLR-2 50-287-SLR-2 May 31, 2024 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Duke Energy Carolinas, LLCs Answer Opposing the Hearing Request and Petition to Intervene Filed by Beyond Nuclear and Sierra Club was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.

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

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

Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Duke Energy Carolinas, LLC