ML24218A287

Brief by Beyond Nuclear and the Sierra Club on Appeal of LBP-24-07

ML24218A287
Person / Time
Site:	North Anna
Issue date:	08/05/2024
From:	Curran D Beyond Nuclear, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Sierra Club
To:	NRC/OCM
SECY RAS
References
RAS 57067, 50-339-SLR-2, 50-338-SLR-2, LBP-24-07
Download: ML24218A287 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of

)

Virginia Electric Power Co.

)

Docket Nos. 50-338/339 SLR-2 North Anna Power Station Units 1 & 2

)

___________________________________ )

BRIEF BY BEYOND NUCLEAR AND THE SIERRA CLUB ON APPEAL OF LBP-24-07 Submitted by:

Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com August 5, 2024

TABLE OF CONTENTS I.

INTRODUCTION..1 II.

LEGAL FRAMEWORK: ATOMIC ENERGY ACT AND NEPA...2 A. Atomic Energy Act and NRC Safety Regulations...3 B. NEPA General Requirements..4 C. Requirement for Hard Look at Potential Environmental Impacts4 D. Requirement to Consider Reasonably Foreseeable Harms, Including Climate Change.5 III.

STATEMENT OF THE CASE...6 A. Establishment of Design Basis Earthquake in Licensing of NAPS...6 B. 2011 Mineral Earthquake and Fukushima Daichii Earthquake.7 C. VEPCOs and NRC Staffs Responses to Mineral Earthquake.8

1. No seismic design basis upgrades imposed on Units 1 and 2..8

2. Post-earthquake seismic design upgrades at Unit 3.9 D. VEPCOs 2020 SLR Application, Appellants Hearing Request and Subsequent Commission Decisions..9 E. Draft Revised GEIS.10 F. GAO Issuance of Report Finding NRC Lacks Systematic Means to Evaluate Effects of Climate Change on Nuclear Plants in Licensing Decisions12 G. Appellants Amended Hearing Request...15 H. LBP-24-0715 IV. ARGUMENT16 A. Contention 1 is Admissible..16 B. Contention 2 is Admissible..20

ii C.

Contention 3 is Admissible24 V.

CONCLUSION.29

iii TABLE OF AUTHORITIES Judicial Decisions Citizens for Safe Power v. NRC, 524 F.2d 1291 (D.C. Cir. 1975)...2 Limerick Ecology Action v. NRC, 869 F.2d 719 (3rd Cir. 1989)...2, 3, 19 National Audubon Society v. Dept of Navy, 422 F.3d 174 (4th Cir. 2005)..5, 19 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)..4, 5 State of New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012)3, 5, 19, 28, 29 Town of Winthrop v. Federal Aviation Admin., 535 F.3d 1 (1st Cir. 2008)..19 Union of Concerned Scientists v. NRC, 735 F.2d 1435 (D.C. Cir. 1984).20 Statutes Atomic Energy Act, 42 U.S.C. § 2011, et seq.2 42 U.S.C. § 2133(d).3 42 U.S.C. § 2201(b).3 National Environmental Policy Act, 42 U.S.C. §§ 4321-4370h.2 42 U.S.C. § 4331.4 Administrative Decisions Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3),

CLI-22-03, 95 N.R.C. 40 (2022)10, 24, 25 Dominion Va. Power (North Anna Power Station, Unit 3), CLI-17-8, 85 N.R.C. 157 (2017)...9 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287 (2010)...19 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4),

CLI-22-02, 95 N.R.C. 26 (2022)9, 10, 24, 25

iv Florida Power and Light Co. (Turkey Point Nuclear Generating Units 3 and 4),

LBP-24-03, __ N.R.C. __ (March 7, 2024).25, 27 Hydro Resources, Inc. (P.O. Box 777, Crownpoint, New Mexico 87313),

LBP-04-23, 60 N.R.C. 441 (2004).19 Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-03, 47 N.R.C. 77 (1998)...14 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-17-07, 86 N.R.C. 59 (2017).4 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),

ALAB-455, 7 N.R.C. 41 (1978)19 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),

ALAB-781, 20 N.R.C. 819 (1984)16 Pac. Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1and 2),

LBP-10-15, 72 N.R.C. 257 (2010).17 Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 N.R.C. 33 (1977).16 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), CLI-89-23, 29 N.R.C. 234 (1989).21 Union Elec. Co. (Callaway Plant, Unit 1), ALAB-740, 18 N.R.C. 343 (1983).16, 18, 20 U.S. Dept. of Energy (High-Level Waste Repository),

LBP-09-06, 69 N.R.C. 367 (2006).21, 22, 23 Va. Elec. And Power Co. (North Anna Power Station, Units 1 and 2), LBP-21-04, 93 N.R.C. 179 (2021).9, 20 Regulations 10 C.F.R. § 2.311...1, 16 10 C.F.R. § 2.341(c)(3)1 10 C.F.R. Part 50, Appendix A3 General Design Criterion 2..3, 4, 6 10 C.F.R. Part 51, Subpart A, Appendix B9, 25

v 10 C.F.R. § 51.53(c)(3)9 10 C.F.R. § 51.71...5, 24 Miscellaneous National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change, 88 Fed. Reg. 1,196 (Jan. 9, 2023)5 Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change (April 2024)..12-15, 26-28 Regulatory Guide, 1.29, Rev. 5, Seismic Design Classification for Nuclear Power Plants at 5 (July 2016) (ML16118A148)4

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of

)

Virginia Electric Power Co.

)

Docket Nos. 50-338/339 SLR-2 North Anna Power Station Units 1 & 2

)

August 5, 2024

____________________________________)

BRIEF BY BEYOND NUCLEAR AND THE SIERRA CLUB ON APPEAL OF LBP-24-07 I.

INTRODUCTION Pursuant to 10 C.F.R. §§ 2.311 and 2.341(c)(3), Appellants Beyond Nuclear, Inc. and the Sierra Club hereby brief the Commissioners of the U.S. Nuclear Regulatory Commission (NRC or Commission) regarding their appeal of the majoritys decision in LBP-24-07, Memorandum and Order (Denying Request for Hearing and Terminating Proceeding).1 LBP-24-07 terminates the adjudicatory portion of this proceeding for consideration of Virginia Electric Power Co.s (VEPCOs) application to extend operating licenses for North Anna Units 1 and 2 (NAPS) for a twenty-year subsequent license renewal (SLR) term.

In LBP-24-07, the Atomic Safety and Licensing Board (ASLB or Board) denied the admission of three contentions challenging the adequacy of the NRC Staffs Draft Environmental Impact Statement (Draft EIS) to support the proposed license extension for North Anna.2 With support by the expert declarations of nuclear engineer and risk analyst 1 Va. Elec. And Power Co. (North Anna Power Station, Units 1 and 2), LBP-24-07, __ N.R.C. __

(July 10, 2024) (LBP-24-07). LBP-24-07 was not a unanimous decision. Judge Gibson dissented from the Boards ruling on Contention 3 and noted his disagreement with parts of the Boards rulings on Contention 1 and Contention 2. Judge Gibson, Concurring in Part, and Dissenting in Part (hereinafter Gibson Opinion). While Judge Gibsons dissenting and partially concurring opinion is not acknowledged in the majority opinion, it is attached to LBP-24-07.

2 The Draft EIS is entitled: Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 7a, Subsequent License Renewal for North Anna Power Station

2 Jeffrey Mitman, Appellants contentions charged that the Draft EIS is inadequate because it fails to address the environmental significance of 2011 Mineral Earthquake; provides incomplete, inadequate, incorrect or misleading data and analyses in support of its general conclusion that severe accident impacts are small; and fails to address the effects of climate change on accident risk.3 Each of these categories of deficiencies is significant in its own right; and taken together, they show a level of inadequacy that is grossly unacceptable.

As required by NRC regulations in 10 C.F.R. § 2.309(f), Appellants stated their claims with basis and specificity, demonstrated that they fall within the scope of admissible issues, and showed they are material to the NRCs licensing decision. Therefore, Appellants respectfully submit that the Boards decision to deny admission of their contentions was erroneous and arbitrary and capricious and should be reversed.

II. LEGAL FRAMEWORK: ATOMIC ENERGY ACT AND NEPA The NRCs regulation and licensing of reactors is governed by two statutes: the Atomic Energy Act, 42 U.S.C. § 2011, et seq.; and NEPA, 42 U.S.C. §§ 4321-4370h. While the substantive concerns of these statutes overlap4, they impose independent procedural obligations.5 Even where the NRC purports to have resolved safety issues through its Atomic Energy Act-Units 1 and 2, Draft Report for Comment (NUREG-1437, Supplement 7a, Dec. 2023).

Appellants note that recently, the NRC issued the Final Site-Specific EIS. See 89 Fed. Reg.

61,506 (July 31, 2024).

3 Hearing Request and Petition to Intervene by Beyond Nuclear and the Sierra Club (March 28, 2024) (Hearing Request) and supporting Declaration of Jeffrey T. Mitman (March 27, 2024)

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

4 Citizens for Safe Power v. NRC, 524 F.2d 1291, 1299 (D.C. Cir. 1975).

5 Limerick Ecology Action v. NRC, 869 F.2d 719, 729-31 (3rd Cir. 1989).

3 based regulatory process, it must nevertheless comply with NEPAs procedural obligations for addressing those issues in its decision-making processes.6 A. Atomic Energy Act and NRC Safety Regulations Under § 103(d) of the Atomic Energy Act, the NRC may not issue an operating license for a nuclear plant if it would be inimical to the common defense and security or to the health and safety of the public.7 Section 161 of the Atomic Energy Act also empowers the NRC to set standards to protect health or to minimize danger to life or property, inter alia.8 Among the many regulatory standards promulgated by the NRC for the safe construction and operation of nuclear power reactors, the General Design Criteria (GDCs) in Appendix A to 10 C.F.R. Part 50 are fundamentally important, because they establish minimum requirements for the principal design criteria for water-cooled nuclear power plants.9 These principal design criteria, in turn, establish:

the necessary design, fabrication, construction, testing, and performance requirements for structures, systems, and components important to safety; that is, structures, systems, and components that provide reasonable assurance that the facility can be operated without undue risk to the health and safety of the public.10 Pursuant to General Design Criterion (GDC) 2, [s]tructures, systems, and components important to safety shall be designed to withstand the effects of natural phenomena such as earthquakes, tornadoes, hurricanes, floods, tsunami, and seiches without loss of capability to 6 Limerick Ecology Action, 869 F.2d at 729-31. See also State of New York v. NRC, 681 F.3d 471, 478 (D.C. Cir. 2012) (a finding that reasonable assurance exists that sufficient mined geologic repository capacity will be available when necessary... does not describe a probability of failure so low as to dismiss the potential consequences of such a failure.).

7 42 U.S.C. § 2133(d).

8 42 U.S.C. § 2201(b).

9 Id., Introduction.

10 Id.

4 perform their safety functions. As the NRCs ASLB has recognized, safety structures and components (SSCs) must be able to withstand an earthquake and other natural disasters within the design basis of the plant.11 Design-basis structures that must remain functional in the event of a safe shutdown earthquake are referred to as Category I structures.12 Category I SSCs encompass a broad array of equipment and structures, including the pressure vessel internals, the reactor coolant pressure boundary, the steam generators, and the emergency core cooling system.13 B. NEPA General Requirements NEPA implements a broad national commitment to protecting and promoting environmental quality.14 NEPA has two key purposes: to ensure that the agency will have available, and will carefully consider, detailed information concerning significant environmental impacts before it makes a decision; and to guarantee that the relevant information will be made available to the larger audience that may also play a role in the decision-making process and implementation of that decision.15 C. Requirement for Hard Look at Potential Environmental Impacts In fulfilling NEPAs first purpose of evaluating the environmental impacts of its decisions, NEPA requires a federal agency to take a hard look at potential environmental 11 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-17-07, 86 N.R.C. 59, 79 (2017) (citing 10 C.F.R. Part 50, App. A, GDC 2).

12 Regulatory Guide, 1.29, Rev. 5, Seismic Design Classification for Nuclear Power Plants at 5 (July 2016) (ML16118A148) (Reg. Guide 1.29).

13 Id. at 5-6.

14 Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-03, 47 N.R.C. 77, 87 (1998) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989) and citing 42 U.S.C. § 4331).

15 Robertson, 490 U.S. at 349.

5 consequences by preparing an EIS prior to any major Federal action[] significantly affecting the quality of the human environment.16 The hallmarks of a hard look are thorough investigation into environmental impacts and forthright acknowledgment of potential environmental harms.17 The requirement to analyze environmental impacts in a draft EIS is codified in NRC regulation 10 C.F.R. § 51.71 (requiring that a draft EIS must include a preliminary analysis that considers and weighs the environmental effects, including any cumulative effects, of the proposed action; the environmental impacts of alternatives to the proposed action; and alternatives available for reducing or avoiding adverse environmental effects.).

D. Requirement to Consider Reasonably Foreseeable Harms, Including Climate Change A NEPA analysis must address harms that are reasonably foreseeable, even if they are indirect or unlikely.18 The analysis must address both the probabilities of potentially harmful events and the consequences if those events come to pass.19 The Presidents Council on Environmental Quality (CEQ) has concluded that climate change is a fundamental environmental issue, and its effects fall squarely within NEPAs purview.20 Among the climate-related environmental impacts that CEQ advises agencies to consider are the reasonably foreseeable effects of climate change on infrastructure investments.21 As stated by the CEQ:

16 Robertson, 490 U.S. at 349; 42 U.S.C. § 4332(c).

17 National Audubon Society v. Dept of Navy, 422 F.3d 174, 185 (4th Cir. 2005).

18 State of New York, 681 F.3d at 476, 482.

19 Id., 681 F.3d at 482.

20 National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change, 88 Fe3d. Reg. 1,196, 1,197 (Jan. 9, 2023).

21 Id.

6 The effects of climate change observed to date and projected to occur in the future include more frequent and intense heat waves, longer fire seasons and more severe wildfires, degraded air quality, increased drought, greater sea-level rise, an increase in the intensity and frequency of extreme weather events, harm to water resources, harm to agriculture, ocean acidification, and harm to wildlife and ecosystems. The IPCC [Intergovernmental Panel on Climate Change] Assessment Report reinforces these findings by providing scientific evidence of the impacts of climate change driven by human-induced GHG [greenhouse gas]

emissions, on our ecosystems, infrastructure, human health, and socioeconomic makeup.22 Consistent with this policy, multiple federal agencies have established programs for assessing the effects of climate change on critical infrastructure such as power plants, transmission systems, and dams.23 Notably, however, the NRC Staff has a policy against the consideration of climate change on nuclear plant infrastructure.24 The ASLBs refusal to grant Appellants a hearing on the inconsistency of this policy with NEPA is the subject of Appellants Contention 3.

III.

STATEMENT OF THE CASE A. Establishment of Design Basis Earthquake in Licensing of NAPS The NRC issued operating licenses for North Anna Units 1 and 2 in 1978 and 1980, respectively.25 As required by GDC 2, VEPCO based the reactors seismic safety design on the most severe earthquake historically reported for the site and the area surrounding the site, an 22 Id. at 1,200 (emphasis added).

23 See Hearing Request at 8-9 (citing statements by the Department of Defense, the Federal Emergency Management Agency (FEMA) and the Critical Infrastructure Security Agency.

24 See, e.g., the Draft EIS at Draft EIS at 3-194 (The effects of climate change on North Anna structures, systems, and components are outside the potential effects from continued nuclear power plant operation on the environment.) See also Generic Environmental Impact Statement for License Renewal of Nuclear Plants (NUREG-1437, Rev. 2, August 2024) (Final Revised GEIS) at A-222.

Petitioners note that the Commissions prior review and approval of the contents of the Final Revised GEIS indicates Commission approval. However, to Appellants knowledge the Commission has not previously responded to arguments in an adjudicatory proceeding that this position violates NEPA.

25 See Mitman Declaration, ¶ 3 at page 4 and citations therein.

7 earthquake that had occurred in 1875. Based on this historic earthquake, VEPCO established a design-basis earthquake with ground motions of 0.12g horizontal and 0.08g vertical for structures founded on rock. VEPCO also identified a set of Category I safety systems and components (SSCs) that must remain functional in the event of a design-basis earthquake. The Updated Final Safety Analysis Report (UFSAR) for North Anna Units 1 and 2 represents that Class I piping systems are qualified to withstand a total of five operational-basis earthquake (OBE) (one-half safe-shutdown earthquake) and one design-basis earthquake (DBE). Thus, the reasonable assurance/no undue risk finding for North Anna Unit 1 was based on the assumption that an earthquake with higher ground motion than the 1875 earthquake would not occur, and that an earthquake with the same ground motion as the 1875 earthquake would occur only once.26 B. 2011 Mineral Earthquake and Fukushima Daichii Earthquake On August 23, 2011, while North Anna Units 1 and 2 were operating at full power during their first license renewal terms, a Magnitude 5.8 earthquake occurred in Mineral Virginia, about ten miles from the reactors.27 As a result, the North Anna site lost offsite power, both reactors automatically tripped, and four emergency diesel generators were activated. The earthquake exceeded the reactors design basis in two respects: spectral and peak ground accelerations for the design basis earthquake and the operating basis earthquake.28 26 Id.

27 See Mitman Declaration, ¶ 12 at pages 3-4 and citations therein.

28 Id.

8 Coincidentally, in March 2011, a catastrophic earthquake-initiated accident occurred at the Fukushima Daiichi nuclear power plant complex in Japan. The Fukushima accident led the NRC to order further investigations and modifications of all reactors, including North Anna.29 C. VEPCOs and NRC Staffs Responses to Mineral Earthquake

1. No seismic design basis upgrades imposed on Units 1 and 2 Following the Mineral Earthquake and the Fukushima Daiichi earthquake, VEPCO and the NRC Staff assessed the earthquakes safety implications for North Anna Units 1 and 2. In response to the Mineral Earthquake, VEPCO upgraded its seismometers and committed to prospectively evaluating all future plant modifications to determine whether seismic upgrades were warranted. But VEPCO did not upgrade the existing seismic design basis, nor did the NRC Staff require any seismic design basis upgrades.30 In responding to the NRCs post-Fukushima orders, VEPCO noted that the 2011 Mineral Earthquake was somewhat unique and therefore evaluated the implications of the Mineral Earthquake and other new information about local earthquake risks to determine whether to revise its SSC model in its probabilistic seismic hazard analysis (PSHA).31 But VEPCO found no basis to revise or amend the SSC model for the North Anna PSHA.32 Instead, VEPCO provided non-safety-grade FLEX equipment such as a portable diesel generator and a portable reactor coolant system (RCS) pump.33 The NRC Staff approved VEPCOs response.34 29 Id., ¶ 15 at page 5.

30 Id., ¶¶ 14, 16 at pages 4-5.

31 Id., ¶ 19 at page 6.

32 Id., ¶ 20 at page 6.

33 Id.

34 Id., ¶ 21. See also id., ¶¶ 16-18 at pages 5-6.

9

2. Post-earthquake seismic design upgrades at Unit 3 At the time of the Mineral Earthquake, the NRC was reviewing VEPCOs combined license (COL) application for North Anna Unit 3, a new reactor proposed for the same site.

After the earthquake, VEPCO reviewed the adequacy of Unit 3s seismic design and made safety-related upgrades.35 D. VEPCOs 2020 SLR Application, Appellants Hearing Request and Subsequent Commission Decisions In 2020, VEPCO submitted a SLR application to the NRC, relying for its environmental analysis on its own environmental report and the NRC Staffs generic environmental analyses in the NRCs 2013 revised generic environmental impact statement (GEIS) for license renewal.36 Appellants submitted a hearing request and waiver petition that were denied in LBP-21-04.37 Appellants sought review of LBP-21-04, but the Commission never ruled on the appeal.

Instead, in CLI-22-02, the Commission found that 10 C.F.R. § 51.53(c)(3) applies only to initial license renewal and therefore the NRC must provide a new environmental analysis of environmental impacts designated as Category 1 in Appendix B to 10 C.F.R. Part 51.38 Simultaneously, in CLI-22-3, the Commission set forth procedures for preparing an updated 35 Dominion Va. Power (North Anna Power Station, Unit 3), CLI-17-8, 85 N.R.C. 157, 176 (2017). See also Mitman Declaration, ¶ 23 at page 7. VEPCO subsequently elected not to build Unit 3.

36 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437, Rev. 1 (June 2013) (ML13106A241) (2013 Revised GEIS) 37 Va. Elec. And Power Co. (North Anna Power Station, Units 1 and 2), LBP-21-04, 93 N.R.C.

179 (2021).

38 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-02, 95 N.R.C. 26 (2022) (CLI-22-02).

10 GEIS for subsequent license renewal as well as site-specific environmental impact statements EISs for SLR applicants who did not wish to await the publication of a GEIS.39 The Commission also dismissed without prejudice all motions and appeals in the then-pending SLR proceeding for NAPS and terminated the proceeding.40 The Commission also stated that after each site-specific environmental review had been completed, the NRC would issue a new notice of opportunity for hearing - limited to contentions based on new information in the site-specific environmental impact statement.41 Further, the NRC would not require intervenors to meet heightened pleading standards in 10 C.F.R. § 2.309(c) for newly filed or refiled contentions.42 E. Draft Revised GEIS In February of 2023, the NRC issued a draft of the License Renewal GEIS that had been revised for SLR and updated for initial license renewal.43 While VEPCO had elected not to rely on the Draft GEIS, Appellants were concerned that some of the findings of the Draft GEIS could be applied to NAPS and the Oconee reactors. Appellants had challenged both the NAPS and Oconee SLR applications when they were initially submitted prior to the Commissions rulings in CLI-22-02 and CLI-22-03, and they intended to renew those challenges. Therefore, they 39 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), CLI-22-03, 95 N.R.C. 40, 42 (2022) (CLI-22-03). These pending applications are for North Anna Units 1 and 2, Oconee Units 1, 2, and 3, and Peach Bottom Units 2 and 3, Turkey Point Units 3 and 4, and Point Beach Units 1 and 2.

40 CLI-22-03, 95 N.R.C. at 43.

41 Id., 95 N.R.C. at 42.

42 Id.

43 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Draft for Comment (NUREG-1437, Rev. 2, February 2023) (Draft Revised GEIS).

11 submitted comments demonstrating that the Draft GEIS was grossly inadequate to justify re-licensing of any reactor.44 As they summarized the deficiencies:

The NRC has failed utterly to justify its generic approach to accident risk analysis for the re-licensing of a broad and variable array of distinct operating nuclear power plants, or to support its finding that accident risks are not significant for a single reactor, let alone a whole fleet. The lumping together of environmental analyses for distinct reactors and reactor environments is not only technically indefensible, but perhaps the worst blow that could be delivered to environmental justice communities. Not only are the true risks to which they are subjected distorted, but a generic environmental analysis fails entirely to take into account the particular vulnerabilities of their communities to the effects of radiological contamination, relocation and economic disruption.45 Appellants note that the NRC recently issued the Final Revised GEIS.46 While Appellants have not finished their review of the document, it does not appear that the NRC Staff made any alterations to the Final GEIS in response to their comments on the Draft GEIS.

44 Comments by Beyond Nuclear And The Sierra Club on Proposed Rule And Draft Generic Environmental Impact Statement For Renewing Nuclear Power Plant Licenses (May 2, 2023; corrected May 12, 2023); attached Declaration of Jeffrey T. Mitman (May 2, 2023); attached Mitman report, Technical Review of U.S. Nuclear Regulatory Commissions Draft License Renewal GEIS With Respect to Section 4.9.1.2 (Environmental Consequences of Postulated Accidents) and Appendix E (Environmental Impact of Postulated Accidents) (May 2, 2023)

(hereinafter Technical GEIS Review) (NRC ADAMS Accession No. ML23123A411).

45 Id. at 2-3. Appellants note that sometime during the week of July 29, 2024, the NRC removed Appellants comments in their entirety - including the statement quoted above -- from the NRCs Agencywide Documents Access and Management System (ADAMS), without notifying Appellants explaining why. Appellants believe the NRCs unusual act relates to the Staffs attempt to re-classify as exempt under the Freedom of Information Act (FOIA) some publicly available information relevant to the SLR proceeding for the Oconee reactors. See Transcript of July 30, 2024 prehearing conference in the Oconee SLR proceeding at pages 212-13 (ML24213A102). Appellants respectfully submit that by removing public documents from the public record, the NRC is violating the FOIA and the First Amendment rights of Appellants and other members of the public. Appellants are now evaluating their legal options for seeking the return of their comments and other documents to the public record.

46 The Final Revised GEIS is posted on ADAMS at ML24086A526, ML24086A527 and ML24086A528.

12 F. VEPCO 2023 Update to SLR Application and Draft EIS In September of 2022, in response to CLI-22-03, VEPCO supplemented its SLR application with an updated site-specific environmental analysis for extended operation of NAPS.47 The NRC issued the Draft EIS for NAPS in late 2023.48 In March of 2024, Appellants submitted their Hearing Request and three contentions charging that (1) the Draft EIS is inadequate because it fails to address the environmental significance of 2011 Mineral Earthquake; (2) the Draft EIS provides incomplete, inadequate, incorrect or misleading data and analyses in support of its general conclusion that severe accident impacts are small; and (3) the Draft EIS fails to address the effects of climate change on accident risk.49 G. GAO Issuance of Report Finding NRC Lacks Systematic Means to Evaluate Effects of Climate Change on Nuclear Plants in Licensing Decisions.

In April of 2024, in response to a Congressional request to review the climate resilience of energy infrastructure, the Government Accountability Office (GAO) issued GAO-106326, a report that examines (1) how climate change is expected to affect nuclear power plants and (2)

NRC actions to address risks to nuclear power plants from climate change.50 To prepare its report, GAO officials interviewed NRC officials, officials of other related agencies such as 47 See LBP-24-07, slip op. at 2.

48 Id.

49 Hearing Request and Petition to Intervene by Beyond Nuclear and the Sierra Club (March 28, 2024) (Hearing Request) and supporting Declaration of Jeffrey T. Mitman (March 27, 2024)

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

50 Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change at 1 (April 2024) (GAO-106326 or GAO Report).

13 FEMA and NOAA, as well as representatives of the nuclear industry.51 In addition, the GAO reviewed government data bases and reports on natural hazards and used these data to identify nuclear power plants that may be affected by natural hazards.52 Finally, the GAO reviewed NRC regulations, guidance documents, and reports in order to examine NRCs actions to address risks to nuclear power plants from climate change.53 Based on available data, the GAO found that forty-seven nuclear plants, including NAPS, are located in areas with exposure to either Category 4 or 5 hurricane storm surge or high food hazards.54 NAPS is identified in the report as vulnerable to a high flood hazard.55 The GAO also noted that the National Climate Assessment (NCA) predicts that climate change will exacerbate flooding and other climate change-related hazards.56 Indeed, [a]cross all regions of the United States, extremes, including heat, drought, flooding, wildfire, and hurricanes, are becoming more frequent and/or severe, with a cascade of effects in every part of the country.57 Examining the manner and degree to which the NRC evaluated the effects of climate change on nuclear reactor safety, the GAO found that the NRC does not use climate projections data to 51 Id.

52 Id. at 2-4.

53 Id. at 4.

54 Id. at 18.

55 Id. at 19, Figure 6.

56 Id. at 18. As discussed in GAO-106326 at page 3 and n.2, the NCA, most recently conducted in 2023, is a product of the U.S. Global Change Research Program.

57 Id. at 40.

14 identify and assess risk in either its initial licensing process or its license renewal process.58 Instead, the NRC relies on historical data and assumes those trends will continue.59 But this assumption is not based on any technical evaluation of the reasonably foreseeable environmental impacts of climate change.60 Further, the GAO found that the NRC did not fully consider the effects of climate change on nuclear reactors in its post-Fukushima safety reviews.61 Contrary to the NRCs assumption, the GAO found that weather patterns and climate-related risks to [reactor] safety and operation have changed since commercial nuclear reactors were licensed an average of 42 years ago.62 And they will get worse:

Climate change is expected to exacerbate natural hazards - such as heat, drought, wildfires, flooding, hurricanes, sea level rise, and extreme cold weather events - that can affect nuclear power plant safety and operations in various ways. Some of these effects are already occurring, and many are expected to continue to worsen.63 Therefore, in light of the NRCs failure to take into account the current and future effects of climate change, the GAO questioned the adequacy of the NRCs safety margins in its licensing and oversight processes.64 58 Id. at 34, 35-36. See also id. at 39 (NRC does not use climate projections data to identify and assess risk as part of the safety reviews it conducts or the probabilistic risk assessments it reviews during the initial licensing process.).

As observed by GAO, the only aspect of climate change that is addressed in the NRCs reviews for initial licensing or license renewal is the environmental effect of greenhouse emissions associated with the life cycle of nuclear reactors. Id. at 36 n.54.

59 Id. at 35.

60 Id. at 36.

61 Id. at 36-37.

62 Id. at 39.

63 Id.

64 Id. (Without incorporating the best available information into its licensing and oversight processes, it is unclear whether the safety margins for nuclear power plants established during the licensing period - in most cases over 40 years ago - are adequate to address the risks that climate change poses to plants.) While the GAO Report described this concern in terms of

15 The NRC responded that the GAOs recommendation to establish processes for addressing the effects of climate change are consistent with actions that are either underway or under development.65 But the NRC also defended the adequacy of its current regulatory program to address climate change.66 The GAO observed, however, that the NRC has not conducted an assessment to demonstrate that the safety margins for nuclear power plants established during the licensing period are adequate to address the risks that climate change poses to plants.67 H. Appellants Amended Hearing Request On April 11, 2024, Appellants submitted a motion to amend Contention 3 to cite the GAO Report. The ASLB granted the motion on May 7, 2024.

I. LBP-24-07 On July 10, 2024, the ASLB issued LBP-24-07. While the ASLB found that Appellants have representational standing, they concluded that each of Appellants three contentions was inadmissible. Judge Gibson dissented from the Boards opinion with respect to Contention 3, and partially dissented from the decision with respect to Contentions 1 and 2.

reactor safety rather than environmental impacts, it also noted that the NRCs statutory mandate includes protection of the environment. Id. at 1.

65 Id. at 40.

66 Id.

67 Id.

16 IV. ARGUMENT The Commission should reverse LBP-24-07 because it is based on legal errors and reflects an abuse of discretion. Indeed, with respect to numerous issues, the decision fails to confront the facts and legal arguments presented by [Appellants] and articulate the reasons for its conclusions on disputed issues, i.e., take a hard look at the salient problems.68 Therefore, the Commission should admit Appellants contentions. 10 C.F.R. § 2.311(c).

A. Contention 1 is Admissible.

Contention 1 asserts that the Draft EIS fails to address the environmental significance of the 2011 Mineral Earthquake in the respect that the occurrence of the beyond-design-basis Mineral Earthquake disproved the Draft EIS assumption that NAPS could be operated safely and without significant adverse environmental impacts because their SSCs were built to a design basis of sufficient rigor to protect against likely earthquakes.69 Appellants contend that because that assumption has been proven wrong, the NRC must explicitly address the question of whether the environmental impacts of operating North Anna Units 1 and 2 in non-compliance with its design basis for an additional twenty years will have significant impacts, including the fundamental difference between a finding of no significant or small impact that is based on a deterministic analysis and a finding of no significant impact that is based on a probabilistic analysis.70 Appellants also assert that the Draft EIS should explain what the NRC Staff has done 68 Union Elec. Co. (Callaway Plant, Unit 1), ALAB-740, 18 N.R.C. 343, 366 (1983) (citing Pub.

Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 N.R.C. 33, 41 (1977); Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-781, 20 N.R.C. 819, 836 (1984) (affg in part LBP-82-70, 16 N.R.C. 756 (1982)).

69 Hearing Request at 9. As set forth in ¶ 25 of Mr. Mitmans Declaration, this assumption is found at pages 3-169, F-2, and F-3 of the Draft EIS.

70 Id. at 9-10. In Mr. Mitmans expert opinion, the deterministic analysis is more conservative because it requires a robust design that provides reasonable assurance that an external event like an earthquake will not harm necessary safety systems. A probabilistic analysis, in comparison,

17 to evaluate the potential that safety systems -- which are assumed to survive a design-basis earthquake only once -- will be able to perform their safety functions when the next earthquake occurs.71 Further, Appellants contend that the Draft EIS should explain why - in response to the very same earthquake -- the NRC required significant safety upgrades for Unit 3 but none for Units 1 and 2.72 The ASLB rejected Contention 1 on four principal grounds. First, the ASLB found that Contention 1 is inadmissible as a contention of omission because the Draft EIS does indeed discuss the 2011 Mineral earthquake and the extensive regulatory review that followed it.73 But the sections of the Draft EIS cited by the Board and by VEPCO (on whose opposition brief the Board relies for its ruling) all discuss risk evaluations for NAPS that are exclusively probabilistic.74 None of these discussions addresses the environmental significance of the Draft EIS demonstrably incorrect deterministic assumption, stated elsewhere in the document, that because NAPS will continue to operate within its design basis during the SLR term, it will not pose significant adverse environmental impacts. This assumption has been proven false by (a) the occurrence of the beyond-design-basis Mineral Earthquake and (b) the NRCs failure to upgrade the NAPS design in response to the Mineral Earthquake. Thus, the Board completely does not assume safety related equipment will perform as designed and then calculates the likelihood of an accident occurring. Id. at 10 (citing Mitman Declaration, ¶ 27).

71 Id. (citing Mitman Declaration, ¶ 27). See also discussion above in Section II.A.

72 Id. at 10-11 (citing Mitman Declaration, ¶ 28).

73 LBP-24-07, slip op. at 14 (citing Draft EIS § 3.4.4 at 3 3-24). The Board also faulted Appellants for not citing the specific portion of the Draft EIS they disputed. LBP-24-07, slip op.

at 14. But it is sufficient for a contention of omission to identify a deficiency or lack of information in the application. Pac. Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1and 2), LBP-10-15, 72 N.R.C. 257, 288 (2010).

74 See LBP-24-07, slip op. at 14 and note 71 (citing Draft EIS § 3.4.4 at 3 3-24); id. at note 72 (citing VECO Answer at 18, which in turn cites pages F F-12 of the Draft EIS).

18 failed to reckon with - or even acknowledge - Petitioners clearly-stated and well-supported claim that the Draft EIS fails to explain why it should be able to continue to rely on the assumption that accident risks are insignificant, when that assumption is based on adherence to a regulatory system with which VEPCO no longer complies and a set of facts that are no longer true. The Commission should therefore reverse the Boards ruling for its failure to take a hard look at the salient problems identified in Contention 1.75 Second, the Board ruled that Contention 1 is inadmissible because it is broad and unparticularized.76 Again, the Board failed to take a hard look at the claims of Contention 1.77 Contrary to the Boards opinion, Contention 1 identifies and cites the location in the Draft EIS of the incorrect assumption on which the Draft EIS relies and explains the environmental significance of the incorrect assumption by distinguishing the deterministic basis of the assumption from the probabilistic basis of the Draft EIS accident analysis.78 In addition, Contention 1 makes explicit demands for an impact analysis that explains (a) the difference between the deterministic assumptions and probabilistic analyses on which the Draft EIS relies, (b) the environmental implications of the disproval of the deterministic assumption by the Mineral Earthquake, and (c) an explanation of why the NRC Staff employed radically different risk reduction measures for the same environmental risk with respect to NAPS (Units 1 and 2) and Unit 3.79 75 Union Elec. Co., 18 N.R.C. at 366.

76 LBP-24-07, slip op. at 14.

77 Union Elec. Co., 18 N.R.C. at 366.

78 Hearing Request at 9-11.

79 Id. In this regard, the Board also faults Appellants for failing to cite a requirement that the Draft EIS include the information they seek. LBP-24-07, slip op. at 14. The requirement constitutes NEPAs requirement for a hard look at environmental impacts, thorough investigation into environmental impacts and forthright acknowledgment of potential

19 Third, the ASLB ruled that Contention 1 is outside the scope of admissible NEPA contentions because it raises safety instead of environmental concerns.80 But the Boards ruling is erroneous in two key respects:

a) The Boards ruling is based on the assumption that the concerns of NEPA and the Atomic Energy Act are completely separate. To the contrary, as explained in Appellants Hearing Request, they overlap; and indeed, NEPA encompasses Atomic Energy Act-based safety concerns.81 Thus, even where the NRC purports to have resolved safety issues through its Atomic Energy Act-based regulatory process, it must nevertheless comply with NEPAs procedural obligations for addressing those issues in its decision-making processes.

b) The Board also disregards the fact that the Draft EIS renders safety issues relevant by incorporating a safety determination into its environmental analysis of accident risks at NAPS. 82 By basing its finding of SMALL accident impacts on VEPCOs future compliance with NRCs Atomic Energy Act-based seismic safety requirements, the NRC Staff rendered the reasonableness of that assumption material to this NEPA proceeding. The environmental harms. National Audubon Society, 422 F.3d at 185. The standard for the hard look is NEPAs rule of reason. Hydro Resources, Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), LBP-04-23, 60 N.R.C. 441, 447 (2004) (citing Northern States Power Co.

(Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 N.R.C. 41, 48 (1978)).

See also Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 316 (Mar. 26, 2010) (quoting Town of Winthrop v. Federal Aviation Admin., 535 F.3d 1, 11-13 (1st Cir. 2008) (NEPA allows agencies to select their own methodology as long as that methodology is reasonable.)

80 LBP-24-07, slip op. at 15.

81 See Hearing Request at 5 and discussion above at pages 2-3 (citing Limerick Ecology Action, 869 F.2d at 729-31 and State of New York, 681 F.3d at 478). Thus, even where the NRC purports to have resolved safety issues through its Atomic Energy Act-based regulatory process, it must nevertheless comply with NEPAs procedural obligations for addressing those issues in its decision-making processes. See also Gibson Opinion at 1, 11-14 (concluding that only those safety concerns that are part of the current licensing basis of the plant are out of scope.).

82 See Draft EIS at pages 3-169, F-2, and F-3 (cited in ¶ 25 of Mr. Mitmans Declaration).

20 NRC cannot have it both ways: relying for NEPA purposes on a safety determination and then declaring the continued validity of that determination out-of-scope when it is challenged. The NRC must take the bitter with the sweet.83 Fourth, the ASLB relied for its decision on the fact that another Licensing Board rejected a similar contention in LBP-21-04.84 According to the Board, their independent determination that the contention is inadmissible is supported by the prior Boards decision.85 But LBP-24-04 is twenty-six pages long, and mostly dedicated to a discussion of why the Board found the standard for a regulatory waiver had not been satisfied. Appellants therefore have no idea what aspects of LBP-24-04 the Board relied on in LBP-24-07 for its admissibility ruling. The decision dismally fails to meet the NRCs requirement to confront the facts and legal arguments presented... and articulate the reasons for its conclusions on disputed issues.86 Because none of the Boards rationales has merit, Contention 1 should be admitted.

B. Contention 2 is Admissible.

In Contention 2, Appellants assert that the Draft EIS does not contain a complete or adequately rigorous evaluation of accident risks because essential data are missing and important analytical assertions are erroneous or misleading. Therefore, the NRC lacks an adequate basis for concluding that the environmental impacts of accidents during a license renewal term are 83 Union of Concerned Scientists v. NRC, 735 F.2d 1435, 1443 (D.C. Cir. 1984).

84 LBP-24-07, slip op. at 15.

85 Id.

86 Union Elec. Co., 18 N.R.C. at 366.

21 SMALL.87 The Board found the contention generally inadmissible and that each of nine subparts was inadmissible.88 The Board gave three separate rationales for its decision.

First, the Board rejected the contention and all of its subparts for relying on Mr.

Mitmans declaration, asserting that reviewing the contention was equivalent to searching for a needle that may be in a haystack.89 But the Boards conclusion is inconsistent with the plain text of Contention 2, which clearly constitutes a bulleted summary of the points made in the five pages of Section C.2 of Mr. Mitmans Declaration and explicitly refers the reader to Section C.2 for the details of their concerns.90 And contrary to the Boards assertion, the Seabrook decision does not support their ruling. In Seabrook, the Commission refused to allow a party to incorporate massive documents by reference into an evidentiary pleading. Here, in contrast, the nine bullet points in Petitioners contention summarize five pages of points made by Mr.

Mitman in Section C.2 of his declaration. To be sure, for some of those points, Mr. Mitman refers in turn to specific pages of his expert report on the North Anna Draft EIS. But all of the information on which Mr. Mitman relies is clearly identified, including the relevant sections of the Draft EIS and his reasons for disputing them. To require Appellants to paste the entirety of Mr. Mitmans Section C.2 into the body of Contention 2 would exalt form over substance.91 87 Hearing Request at 12-14.

88 LBP-24-07, slip op. at 15-20.

89 Id., slip op. at 16 (citing Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), CLI-89-23, 29 N.R.C. 234, 240-41 (1989).

90 Hearing Request at 12, 14.

91 U.S. Dept. of Energy (High-Level Waste Repository), LBP-09-06, 69 N.R.C. 367, 408 (2006).

In LBP-09-06, over objections by the applicant and the NRC Staff, the ASLB accepted contentions wherein the expert opinions supporting the contentions were detailed in the contentions themselves and supported by a brief statement of adoption in the expert declaration.

Appellants could have taken that approach, but chose instead to provide detailed technical support for the main points of the contention in the expert declaration. In both cases, the contention and supporting declaration, taken together, put other parties on notice of the

22 Second, the Board found that Mr. Mitmans declaration was conclusory and failed to prove a reasoned basis or explanation for his conclusions.92 Contrary to the Boards conclusion, Appellants furnished the Board with the reasoned opinion of a qualified expert, thereby supporting the admission of Contention 2.93 Section C.2 of Mr. Mitmans Declaration reflects the application of his professional expertise as a risk analyst to the specific facts of the Draft EIS. For instance, in ¶ 31, he states that the Draft EIS focuses exclusively on seismic issues and ignores external events such as flooding, external fires (e.g., forest and wildfires),

tornadoes, etc. 94 Mr. Mitmans Declaration expresses his professional opinion that [t]hese additional external events, especially flooding, may not be ignored without serious (sic) underestimating environmental impacts.95 He also cites the increased frequency and severity of weather-induced events as a factor that were not considered and should be considered.96 This is just one example of the manner in which Mr. Mitman identified specific statements in the Draft EIS, identified deficiencies or omissions with respect to their reasoning or support, and explained why the deficiencies or omissions are significant.

Third, the Board went through each of Appellants nine bullet points and rejected each assertion as unsupported because the details are found in Mr. Mitmans Declaration rather than the text of the contention itself. As discussed above, however, the Board erroneously exalt[ed]

Appellants concerns and thereby satisfied the objective of 10 C.F.R. § 2.309(f)(1)(v) and (vi) to ensure that only those contentions that have been demonstrated to have sufficient substance to warrant further consideration on the merits will be admitted.

92 LBP-24-07, slip op. at 16.

93 U.S. Dept. of Energy, 69 N.R.C. at 409.

94 Mitman Declaration, ¶ 31 (citing Draft EIS at page F-10).

95 Id.

96 Id.

23 form over substance.97 In each case, Mr. Mitman identified a deficiency in the Draft EIS with specificity and also explained how and why the deficiency resulted in an underestimate of accident risk to NAPS. The fact that the contention itself summarized Mr. Mitmans assertions and directed the reader to Section C.2 rather than repeating his assertions verbatim does not render the contention inadmissible.

For instance, Contention 2 includes the fourth bulleted assertion that:

The Draft EIS fails to demonstrate consideration of external flooding risk with subsequent ingress of water into the turbine building. As demonstrated by Mr. Mitmans Declaration, flooding poses a significant accident risk that has not been addressed in the Draft EIS.98 The Board found that Petitioners provide no support for this assertion, nor do they engage with the sections of the Draft EIS, namely sections 3-24 to 3-26 and F-21, that do indeed consider external flooding risk post-Fukushima.99 But the Board could only make this assertion by completely disregarding ¶¶ 34 - 36 in Section C.2 of Mr. Mitmans Declaration, which describes in great detail and with documented support the flooding risk that has been ignored in the Draft EIS, including in Section F as cited by the Board.100 With this ruling, as with all of its other rulings on the nine bulleted points in Contention 2, the Board exalt[ed] form over substance.101 97 Id., 69 N.R.C. at 408.

98 Hearing Request at 13.

99 LBP-24-07, slip op. at 18.

100 See Mitman Declaration, ¶ 33 (criticizing Appendix F for focusing exclusively on seismic issues to the exclusion of the specific flooding issue described in ¶¶ 34 - 36.).

101 U.S. Dept. of Energy, 69 N.R.C. at 408.

24 C.

Contention 3 is Admissible.

Contention 3 asserts that the Draft SEIS fails to satisfy NEPA or NRC implementing regulation 10 C.F.R. § 51.71 because it does not address the effects of climate change on accident risk. No such discussion can be found in Section 3.11.6.9 or Appendix F. To the contrary, the NRC asserts that the effects of climate change are outside the scope of the NRC staffs SLR review.102 A majority of the Board denied admission of Contention 3 on three grounds: that it is out of scope, based on speculation, and lacks the requisite specificity to provide other parties with notice of what they would have to defend against at a hearing.103 Appellants discuss below their reasons for asserting that the Boards decision is erroneous. In addition, Appellants rely on and incorporate by reference Judge Gibsons dissenting opinion on Contention 3.

First, Contention 3 is not out of scope because it concerns new information in the Draft EIS as described in the Hearing Notice. 104 As discussed in Appellants Hearing Request at page 17, Contention 3 concerns the new reactor-specific accident analysis in the Draft EIS. This new reactor-specific accident analysis was prepared in response to CLI-22-02 and CLI-22-03, which held that previous EIS that relied on the 2013 Revised License GEIS were inadequate to support subsequent license renewal. While the board faults Petitioners for failing to identify that 102 Draft EIS at 3-194.

103 LBP-24-07, slip op. at 21.

104 The hearing notice states:

As the Commission directed in CLI-22-03, a new notice of opportunity to request a hearing and petition for leave to intervene - limited to contentions based on new information discussed in the DEIS - is being issued.

89 Fed. Reg. 960, 961 (Jan. 8, 2024).

25 analysis, explain how it is new information in the DEIS, or how it differs from previously available information,105 these questions are answered as a matter of law by CLI-22-03:

As a general matter, in CLI-22-2, the Commission found that the 2013 GEIS did not consider the impacts from operations during the subsequent license renewal period and applicants for subsequent license renewal must evaluate Category 1 impacts in their environmental reports. Accordingly, these impacts must be addressed on a site-specific basis in the Staffs site-specific environmental impact statements.106 This language establishes that the Commission viewed new information as any information in the prospective Staffs site-specific EISs pertaining to environmental impacts designated as Category 1. Contention 3 is admissible because it addresses environmental impacts of reactor accidents, which are designated as Category 1 issues in NRC regulations.107 Further, the Commission deprived the 2013 Revised GEIS and the 2021 Draft Supplemental Environmental Impact Statement (SEIS) for North Anna of any precedential effect by (a) terminating the previous proceeding, dismissing all pending contentions, and providing the Appellants with a new opportunity to submit contentions on a site-specific EIS, including refiled contentions and (b) holding that contentions on the Draft EIS would be subject to the general requirements of 10 C.F.R. § 2.309(a) for intervention, not the heightened pleading standard for late-filed contentions.108 By implying that Appellants must seek a waiver 105 LBP-24-07, slip op. at 21.

106 CLI-22-03, 95 N.R.C. at 42.

107 10 C.F.R. Part 51, Appendix B, Subpart A, Table B-1 (including both design-basis and severe accidents in Category 1, except for the limited issue of alternatives to mitigate severe accidents

... for all plants that have not considered such alternatives.).

108 Thus, as recently recognized by the ASLB in the SLR proceeding for Turkey Point Units 3 and 4, Appellants are entitled to challenge environmental findings that pre-date the Draft EIS if they remain unsatisfied with the Staffs treatment of these issues in the Draft EIS. Florida Power and Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-24-03, __ N.R.C.

__ (slip op. at 14-15) (March 7, 2024) (LBP-24-03).

26 of the regulations to obtain admission of Contention 3, the Boards ruling is significantly out of step with CLI-22-03.109 Second, Contention 3 is not speculative. The ASLB erred on this issue in two major respects:

a) The ASLB erred in asserting that Mr. Mitman never addressed whether expected climate change effects near North Anna actually affect accident risk.110 At ¶¶ 34-36, Mr. Mitmans Declaration shows already-existing increases in the calculated Local Intense Precipitation (LIP) Protected Area, LIP West Basin Area, and Flooding Streams and Rivers.111 In Mr.

Mitmans expert opinion, this already-increased LIP for North Anna will be significantly exacerbated in both frequency and severity by climate change.112 Mr. Mitmans Declaration also demonstrates that essential safety equipment in the Turbine Building at NAPS is already vulnerable to incapacitat[ion] during an LIP event and expresses his expert opinion that flooding of the Turbine Building from an LIP event will be significantly exacerbated in both frequency and severity by climate change.113 Finally, Mr. Mitman describes in detail a scenario by which safety equipment in the Turbine Building would be disabled by an LIP event:

[A] a LIP event causes water to flow into the Turbine Building and flow over the top of the flood protection wall. This will overtop the Emergency Switchgear Room (ESGR) flood protection wall incapacitating the ESGR and the Emergency Core Cooling System (ECCS) and containment cooling systems.114 109 See also Gibson Opinion at 9-11.

110 LBP-24-07, slip op. at 23.

111 Mitman Declaration, ¶ 34 (citing NRC post-Fukushima review documents for North Anna).

112 Id., ¶ 51.

113 Id., ¶ 34 (citing NRC post-Fukushima review documents for North Anna). As noted by Judge Gibson, the GAO Report dovetails with Mr. Mitmans Declaration in predicting increased flood hazards at NAPS due to climate change. Gibson Opinion at 20 (citing GAO Report at 44-45 and note 10).

114 Id., ¶ 35 (internal quotations and citations omitted).

27 Thus, as stated by Judge Gibson, whether the environmental impact of climate change, during the period of subsequent license renewal, poses an accident risk of local intense precipitation-induced flooding of the turbine building at North Anna is a legitimate concern.115 b) The ASLB also erred in concluding that Appellants have demonstrated only that climate change effects can alter accident risk, but they have provided no factual or expert opinion support for the assertion that climate change effects will affect accident risk at NAPS in a seriously different way.116 As discussed in par. (a) above, Appellants provided Mr.

Mitmans expert professional opinion that Turbine Building flooding will be significantly exacerbated in both frequency and severity by climate change.117 The Board has given no reason to discount his qualifications for making this professional judgment. 118 Further, Appellants have provided substantial documentation of the general consensus among the CEQ, the GAO, and various federal agencies responsible for the safety of critical infrastructure that climate change will have a significant effect on critical facilities and 115 Gibson Opinion at 1. See also id. at 20-21.

116 LBP-24-07, slip op.at 23 (emphasis in original).

117 Mitman Declaration, ¶ 34 (emphasis added).

118 By supporting Contention 3 with the detailed scenario provided by Mr. Mitman, Appellants also filled a gap that led the ASLB to dismiss a contention seeking consideration of the effects of climate change on the Turkey Point reactors during a SLR term. See Gibson Opinion at 22 (citing LBP-24-03, slip op. at 34). As also noted by Judge Gibson, the GAO Report came out after the ASLB issued LBP-24-03. Id. at 20.

28 therefore must be planned for.119 Even if these harms are indirect or unlikely, the NRCs environmental analysis must address them if they are reasonably foreseeable.120 Third, Appellants have stated Contention 3 with the requisite specificity and basis. For instance, the ASLB is incorrect in asserting that the contention required them to go through 37 dense pages of information and opinions in Mr. Mitmans Declaration.121 To the contrary, the contention cites two paragraphs of Mr. Mitmans Declaration, ¶¶ 48 and 51.122 Paragraph 51, in turn, refers the reader to ¶¶ 34-37. This amounts to six paragraphs that are clearly-identified and concisely stated. The contention itself also cites New York v. NRC and the holding on which it relies.123 The ASLB errs in stating that the basis statement of a contention must show a train of logic for the contention.124 NRC regulations only require that a petitioner must provide a [b]rief explanation of the basis for the contention.125 Appellants met that requirement by explaining the basis for the contention in the same text with the statement of the contention. Thus, the statement of Contention 3 refers the reader to specific portions of Mr. Mitmans Declaration for his expert opinion on climate change effects, to Section III.C of the Hearing Request for a discussion of the 119 See, e.g., Hearing Request at 7-9. See also Motion to Amend Contention 3 at 3-6 and discussion above at pages __. As stated in the GAO Report, Climate change is expected to exacerbate natural hazards - such as heat, drought, wildfires, flooding, hurricanes, sea level rise, and extreme cold weather events - that can affect nuclear power plant safety and operations in various ways. Some of these effects are already occurring, and many are expected to continue to worsen. Id. at 39.

120 State of New York, 681 F.3d at 476, 482.

121 LBP-24-07, slip op. at 24.

122 Hearing Request at 16 and notes 30 and 31.

123 Id. at 16 and note 28.

124 LBP-24-07, slip op. at 25.

125 10 C.F.R. § 2.309(f)(ii).

29 CEQs conclusions and requirements regarding climate change, and to New York v. NRC for the judicial requirement to consider the reasonably foreseeable environmental impacts of climate change.126 This specific and documented support for Contention 3 is more than sufficient to satisfy the NRCs contention admissibility requirements.127 Finally, to the extent the Commission considers the question of whether climate change constitutes a safety issue that is not covered by NEPA, Appellants refer the Commission to Judge Gibsons well-reasoned discussion of this issue in his dissenting opinion.128 V.

CONCLUSION For the foregoing reasons, the Commission should reverse LBP-24-7 and admit Appellants three contentions.

Respectfully submitted,

__/signed electronically by/___

Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com August 5, 2024 126 Hearing Request at 16 and note 28.

127 See also Gibson Opinion at 18-21.

128 See Gibson Opinion at 11-18.

30 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of

)

Virginia Electric Power Co.

)

Docket Nos. 50-338/339 SLR-2 North Anna Power Station, Units 1 and 2

)

____________________________________)

CERTIFICATE OF SERVICE I certify that on August 5, I posted NOTICE OF APPEAL OF LBP-24-07 BY BEYOND NUCLEAR AND THE SIERRA CLUB and BRIEF BY BEYOND NUCLEAR AND THE SIERRA CLUB ON APPEAL OF LBP-24-07 on the NRCs Electronic Information Exchange.

___/signed electronically by/__

Diane Curran