ML24243A135
| ML24243A135 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 08/30/2024 |
| From: | Sherwin Turk NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 57093, 50-338 SLR-2, 50-339 SLR-2 | |
| Download: ML24243A135 (0) | |
Text
35YUNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION
In the Matter of
VIRGINIA ELECTRIC AND POWER COMPANY Docket Nos. 50-338-SLR-2 and 50-339-SLR-2
(North Anna Power Station, Units 1 and 2)
NRC STAFF BRIEF IN RESPONSE TO THE APPEAL FILED BY BEYOND NUCLEAR INC. AND SIERRA CLUB, INC. FROM THE ATOMIC SAFETY AND LICENSING BOARDS DECISION IN LBP-24-07
Sherwin E. Turk Counsel for NRC Staff
August 30, 2024
TABLE OF CONTENTS PAGE
INTRODUCTION.........................................................................................................................1
BACKGROUND......................................................................................................................... 2
DISCUSSION............................................................................................................................8
I. Applicable Legal Standards............................................................................................ 8
A. Standards for Commission Review..................................................................... 8
B. Principles Governing Contention Admissibility.....................................................9
C. Requirements for Environmental Review of License Renewal Applications......13
II. The Board Correctly Held That the Petitioners Failed to Present at Least One Admissible Contention as Required by 10 C.F.R. §§ 2.309(a) and (f)(1).....................15
A. Contention 1 Failed to Demonstrate a Genuine Dispute, Lacked Specificity, and Raised Safety Issues Concerning North Annas Seismic Design Basis That Are Beyond the Scope of This Proceeding..............15
B. Contention 2 Lacked Specificity, Failed to Demonstrate a Genuine Dispute, and Raised an Issue That Is Beyond the Scope of this Proceeding..................................................................................20
C. Contention 3 Failed to Identify Any Specific Deficiency in the Staffs Evaluation of Climate Change in the Draft EIS......................................25
CONCLUSION..........................................................................................................................30
ii
TABLE OF AUTHORITIES
JUDICIAL DECISIONS
Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989)...........................................14
COMMISSION DECISIONS
AmerGen Energy Co. (Oyster Creek Nuclear Generating Station),
CLI-06-24, 64 NRC 111 (2006)..............................................................................................11
Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), CLI-91-12, 34 NRC 149 (1991)................................................ 10, 12
Calvert Cliffs Nuclear Project, LLC and UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911 (2009)................................................................................................................. 9
Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207 (2003)..................................................................................12
Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349 (2001)......................................................................11
Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631 (2004)......................................................................19
Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3),
CLI-22-3, 95 NRC 40 (2022).......................................................................................... passim
Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3),
CLI-99-11, 49 NRC 328 (1999)..............................................................................................11
Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704 (2012)............................................ 9
Entergy Nuclear Operations, Inc. (Indian Point, Unit 2) CLI-16-5, 83 NRC 131 (2016).......................................................................................................... 11, 12
Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant and Big Rock Point Site), CLI-22-8, 96 NRC 1 (2008)..................................................................................21
Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc.
(Vermont Yankee Nuclear Power Station), CLI-15-20, 82 NRC 211 (2015)............................ 10
Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-22-4, 95 NRC 44 (2022)........................................................................... 5
Exelon Generation Co., LLC. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-20-11, 92 NRC 335 (2020)......................................................................10 iii
Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195 (2003).............................12
Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-00-23, 52 NRC 327 (2000)......................................................................10
Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-16-18, 84 NRC 167 (2016)................................................................................... 9
Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-20-3, 91 NRC 133 (2020)..................................................................................... 4
Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4),
CLI-22-2, 95 NRC 26 (2022).......................................................................................... passim
Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4),
CLI-24-1, 99 NRC 33 (2024)................................................................................................... 6
Florida Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7),
CLI-17-12, 86 NRC 215 (2017)............................................................................................... 9
Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),
CLI-01-17, 54 NRC 3 (2001)..................................................................................................19
Holtec International (Hi-STORE Consolidated Interim Storage Facility),
CLI-20-4, 91 NRC 167 (2020)................................................................................................10
Louisiana Energy Services, L.P. (Claiborne Enrichment Center),
CLI-98-3, 47 NRC 77 (1998)............................................................................................ 13, 14
Louisiana Energy Services, L.P. (National Enrichment Facility),
CLI-05-20, 62 NRC 523 (2005)..............................................................................................14
NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),
CLI-12-5, 75 NRC 301 (2012).......................................................................................... 13, 14
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427 (2011)......................................................................10
Private Fuel Storage L.L.C. (Indep. Spent Fuel Storage Installation),
CLI-04-22, 60 NRC 125 (2004)..............................................................................................11
Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),
CLI-05-1, 61 NRC 160 (2005)............................................................................................ 9, 24
Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2),
CLI-89-3, 29 NRC 234 (1989).......................................................................................... 21, 22
Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility),
CLI-07-20, 65 NR 499 (2007).................................................................................................. 9 iv
South Carolina Electric & Gas Co. and South Carolina Public Service Authority (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI-10-1, 71 NRC 1 (2010).....................11
Strata Energy, Inc. (Ross In Situ Recovery Uranium Project),
CLI-16-13, 83 NRC 566 (2016).......................................................................................... 9, 25
USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451 (2006).......................... passim
ATOMIC SAFETY AND LICENSING APPEAL BOARD
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
ALAB-156, 6 AEC 831 (1973)................................................................................................14
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13 (1974).................................................................... 11, 13
Vermont Yankee Nuclear Power Co. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29 (1989).......................................................................12
ATOMIC SAFETY AND LICENSING BOARD
Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, NE),
LBP-15-15, 81 NRC 598 (2015).............................................................................................11
Crow Butte Resources, Inc. (Marsland Expansion Area),
LBP-19-2, 89 NRC 18 (2019)........................................................................................... 13, 14
Holtec International (HI-STORE Consolidated Interim Storage Facility),
LBP-19-4, 89 NRC 353 (2019)...............................................................................................14
Private Fuel Storage, LLC. (Indep. Spent Fuel Storage Installation),
LBP-98-7, 47 NRC 142 (1998)......................................................................................... 21, 23
Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Unit 3),
LBP-20-8, 92 NRC 28 (2020).................................................................................................11
Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2),
LBP-10-7, 71 NRC 391 (2010)......................................................................................... 14, 15
Virginia Elec. & Power Co. (North Anna Power Station, Units 1 and 2),
LBP-24-07, 100 NRC ___ (July 10, 2024) (slip op.)...................................................... passim
Virginia Elec. & Power Co. (North Anna Power Station, Units 1 and 2),
LBP-21-4, 93 NRC 179 (2021)....................................................................................... passim
v
STATUTES
National Environmental Policy Act of 1969 (NEPA),
Section 102(2)(C), 42 U.S.C. § 4332................................................................................ 11, 13
REGULATIONS
10 C.F.R. § 2.309(a).................................................................................................................15
10 C.F.R. § 2.309(f)(1)(i)-(vi)............................................................................................. passim
10 C.F.R. § 2.309(f)(2)................................................................................................................10
10 C.F.R. § 2.311(b)......................................................................................................... 1, 8, 29
10 C.F.R. § 2.311(c)................................................................................................................... 8
10 C.F.R. § 2.335(a).................................................................................................................12
10 C.F.R. § 2.341(b)(2)(ii)-(iii)...................................................................................................29
10 C.F.R. § 2.341(c).............................................................................................................. 9, 29
10 C.F.R. § 51.20(b)(2).............................................................................................................14
10 C.F.R. § 51.53(c)................................................................................................................... 4
10 C.F.R. § 51.53(c)(2).............................................................................................................28
10 C.F.R. § 51.53(c)(3)(i)........................................................................................................... 3
10 C.F.R. § 51.53(c)(3)(ii)(L)............................................................................................... 24, 28
10 C.F.R. § 51.53(c)(3)(iv)........................................................................................................24
10 C.F.R. § 51.70......................................................................................................................14
10 C.F.R. § 51.71(d)............................................................................................................. 3, 14
10 C.F.R. § 51.90......................................................................................................................14
10 C.F.R. § 51.95(c)(1).............................................................................................................. 3
10 C.F.R. § 51.95(c)..................................................................................................................14
10 C.F.R. § 54.29......................................................................................................................19
10 C.F.R. Part 50, Appendix A, General Design Criterion 2......................................................28
vi
10 C.F.R. Part 51..................................................................................................... 3, 4-5, 14, 20
10 C.F.R. Part 51, Appendix B, Table B-1................................................................... 2, 4, 14, 28
10 C.F.R. Part 54.................................................................................................... 18, 19, 20, 29
MISCELLANEOUS
Changes to Adjudicatory Process; final rule, 69 Fed. Reg. 2182 (Jan. 14, 2004).......................................................................................................................11
Final rule and guidance; issuance, Renewing Nuclear Power Plant Operating LicensesEnvironmental Review, 89 Fed. Reg. 64166 (Aug. 6, 2024)........................................................................................................................14
Final rule; Nuclear Power Plant License Renewal; Revisions, 88 Fed. Reg. 22461 (May 8, 1995).........................................................................................19
GAO-106326, Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change (April 2024)..............................................30
Memorandum from Carrie M. Safford (NRC Secretary) to Raymond V.
Furstenau (Acting Executive Director for Operations),
Subject:
Affirmation Session - SECY-24-0017: Final Rule - Renewing Nuclear Power Plant Operating Licenses - Environmental Review (RIN 3150-AK32; NRC-2018-0296) (May 16, 2024)................................................................ 7
North Anna Power Station, Units 1 and 2, Subsequent license renewal application; receipt. 85 Fed. Reg. 59,334 (Sep. 21, 2020)....................................................... 3
North Anna Power Station, Units 1 and 2, Subsequent license renewal application; opportunity to request a hearing and to petition for leave to intervene, 85 Fed. Reg. 65,438 (Oct. 15, 2020)......................................................................... 3
Nuclear Power Plant License Renewal; Revisions, 88 Fed. Reg. 22,461 (May 8, 1995).........................................................................................................................19
NUREG-1437, Supplement 7a, Second Renewal, Site Specific Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 7a, Second Renewal, Regarding Subsequent License Renewal for North Anna Power Station Units 1 and 2, Draft Report for Comment (Dec. 2023)
(Draft EIS) (ML23339A047)...................................................................................................... 6
NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Draft Supplement 7, Second Renewal, Draft Report for Comment (Aug. 2021) (Draft SEIS) (ML21228A084)................................ 5, 24
vii
NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Rev. 1 (June 2013) (2013 GEIS)
(ML13107A023)................................................................................................................... 2, 5
NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Main Report, Final Report (May 1996)
(1996 GEIS) (ML040690705, ML040690738).......................................................................... 5
Renewing Nuclear Power Plant Operating LicensesEnvironmental Review, 89 Fed. Reg. 64,166 (Aug. 6, 2024)..........................................................................14
Staff Requirements --SECY-21-0066 "Rulemaking Plan for Renewing Nuclear Power Plant Operating Licenses - Environmental Review (RIN 3150-AK32; NRC-2018-0296) (Feb. 24, 2022) (ML22053A308).................................... 5
Virginia Electric and Power Co., North Anna Power, Units 1 and 2, Notice of Intent to Conduct Scoping Process and Prepare Supplement to Draft Environmental Impact Statement, 87 Fed. Reg. 68522 (Nov. 15, 2022).................... 6, 24
Virginia Electric and Power Co.; North Anna Power Station Units 1 and 2; Draft Environmental Impact Statement; Request for comment; public comment meetings; opportunity to request a hearing and to petition for leave to intervene, 89 Fed. Reg. 960 (Jan. 8, 2024)........................................................... 6, 26
Virginia Electric and Power Company; Dominion Energy Virginia; North Anna Power Station, Unit Nos. 1 and 2, Draft Supplemental Environmental Impact Statement; Request for Comment, 86 Fed. Reg. 47,525 (Aug. 25, 2021)................................ 5
August 30, 2024
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION
In the Matter of
VIRGINIA ELECTRIC AND POWER COMPANY Docket Nos. 50-338-SLR-2 and 50-339-SLR-2
(North Anna Power Station, Units 1 and 2)
NRC STAFF BRIEF IN RESPONSE TO THE APPEAL FILED BY BEYOND NUCLEAR INC. AND SIERRA CLUB, INC. FROM THE ATOMIC SAFETY AND LICENSING BOARDS DECISION IN LBP-24-07
INTRODUCTION
Pursuant to 10 C.F.R. 2.311(b), the staff of the U.S. Nuclear Regulatory Commission
(Staff) hereby responds to the appeal filed by Beyond Nuclear Inc. and Sierra Club, Inc.
(collectively, Petitioners) on August 5, 2024,1 seeking review of the Atomic Safety and Licensing
Boards (Board) decision in LBP-24-07.2 In that decision, the Board found that the Petitioners
had not shown that their March 28, 2024 petition to intervene3 presented at least one admissible
1 Notice of Appeal of LBP-24-07 by Beyond Nuclear and the Sierra Club (Aug. 5, 2024) (Notice)
(ML24218A285); Brief by Beyond Nuclear and the Sierra Club on Appeal of LBP-24-07 (Aug. 5, 2024)
(Pet. Brief) (ML24218A287).
2 Virginia Elec. & Power Co. (North Anna Power Station, Units 1 and 2), LBP-24-07, 100 NRC ___
(July 10, 2024) (slip op.).
3 See (1) Hearing Request and Petition to Intervene by Beyond Nuclear and the Sierra Club (Mar. 28, 2024) (Petition) (ADAMS Accession No. ML24088A028); (2) Hearing Request and Petition to Intervene by Beyond Nuclear and the Sierra Club (Mar. 28, 2024, corrected Apr. 8, 2024) (Corrected Petition)
(ML24099A146); and (3) 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) (Amended Contention) (ML24102A199).
contention, and it therefore denied the Petition and terminated the proceeding.4 As discussed
below, the Staff submits that the Petitioners have not shown that the Board committed any error
of law or abuse of discretion in its decision. Accordingly, Petitioners appeal should be denied.5
In the following discussion, the Staff (1) summarizes the background of this
proceeding; (2) discusses the applicable legal principles; and (3) demonstrates that the Board
correctly denied each of the Petitioners three contentions.
BACKGROUND
This proceeding concerns the application submitted by Virginia Electric and Power Company (Dominion or Applicant) in August 2020 for the subsequent license renewal of
Renewed Facility Operating License Nos. NPF-4 and NPF-7,6 to permit an additional 20 years
of operation of North Anna Units 1 and 2 until April 1, 2058, and August 21, 2060, respectively.7
North Anna Units 1 and 2 are located on an 1,803-acre (730-hectare) site in Louisa County,
Virginia, adjacent to Lake Anna in northeastern Virginia, approximately 40 miles (64 km) northwest of Richmond and seven miles (11 km) northeast of Mineral, Virginia.8
4 The Boards decision was joined in by Administrative Judges Dr. Arnold and Trikouros. Administrative Judge Gibson filed a separate opinion, in which he concurred in the Board majoritys rulings on standing and the admissibility of Contentions 1 and 2 but dissented from the majoritys ruling on Contention 3.
5 On August 28, 2024, the NRC Staff issued the North Anna subsequent renewed licenses. See Letter from Michele Sampson (Director, Division of New and Renewed Licenses, Office of Nuclear Reactor Regulation) to Eric S. Carr (President, Nuclear Operations and Chief Nuclear Officer),
Subject:
Issuance of Subsequent Renewed Facility Operating License Nos. NPF-4 and NPF-7 for North Anna Power Station, Units 1 and 2 (Aug. 28, 2024) (ML24215A262).
6 North Anna Power Station Units 1 and 2, Application for Subsequent License Renewal (August 2020)
(ML20246G696) (SLRA). The SLRA included an environmental report that relied, in part, on the generic determinations for Category 1 issues identified in 10 C.F.R. Part 51, Appendix B, Table B-1, and NUREG-1437, Generic Environmental Impact Statement for License Renew al of Nuclear Plants, Rev. 1 (June 2013) (2013 GEIS) (ML13107A023) (ADAMS Package). See Appendix E, Applicants Environmental Report, Subsequent Operating License Renewal Stage, North Anna Power Station Units 1 and 2 (ML20246G698) (2020 ER).
7 See SLRA at 1-7. The current renewed operating licenses for Units 1 and 2 were issued in March 2003 and expire at midnight on April 1, 2038 and August 21, 2040, respectively. See North Anna Power Station, Unit No. 1, Renewed Facility Operating License No. NPF-4 at 9 (ML052990145); North Anna Power Station, Unit No. 2, Renewed Facility Operating License No. NPF-7 (ML052990147).
8 ER at E-3-1, E-3-2. A portion of the site extends into Spotsylvania County, VA. Id.
Commencement of the North Anna SLR Proceeding
The NRC published a notice of receipt of the North Anna SLRA on September 21, 2020.9 On October 15, 2020, the Staff determined that the application was acceptable for
docketing, and published a notice of opportunity to request a hearing and petition for leave to intervene.10 On December 14, 2020, three organizations (including the Petitioners) filed (1) a
request for hearing and petition to intervene, in which they proffered a single contention
challenging the Environmental Reports alleged failure to consider the environmental
significance of a beyond-design-basis magnitude 5.8 earthquake that took place in Mineral, Virginia on August 23, 2011,11 and (2) a petition for waiver of certain rules in 10 C.F.R.
Part 51, to allow them to challenge the NRCs determinations on Category 1 environmental issues.12
An Atomic Safety and Licensing Board was established on December 21, 2020, to
preside over the proceeding.13 On January 8, 2021, the Applicant and Staff filed responses
to the petitions, to which the Petitioners replied. Oral argument on the petitions and
contentions was held on February 4, 2021. On March 29, 2021, the Board issued LBP-21-4,
in which it denied the intervention and waiver petitions and terminated the proceeding.14 The
9 North Anna Power Station, Units 1 and 2, Subsequent license renewal application; receipt, 85 Fed. Reg.
59,334 (Sep. 21, 2020).
10 North Anna Power Station, Units 1 and 2, Subsequent license renewal application; opportunity to request a hearing and to petition for leave to intervene, 85 Fed. Reg. 65,438 (Oct. 15, 2020).
11 For a summary of the design-basis earthquake and the NRCs oversight activities related to seismic conditions at North Anna following the 2011 Mineral earthquake, see Virginia Elec.& Power Co. (North Anna Power Station, Units 1 and 2), LBP-21-4, 93 NRC 179, 192-96 (2021), dismissed without prejudice sub nom, Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), CLI-22-3, 95 NRC 40 (2022).
12 Hearing Request and Petition to Intervene by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia and Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.71(d), and 51.95(c)(1), to Allow Consideration of Category 1 NEPA Issues (Dec. 20, 2020) (ML20349D952).
13 Virginia Elec.& Power Co. (North Anna Power Station, Units 1 and 2), Establishment of Atomic Safety and Licensing Board (Dec. 21, 2020) (ML20356A175).
14 North Anna, LBP-21-4, 93 NRC 179 (2021).
petitioners filed a petition for Commission review of the Boards decision, and they filed a
motion to reopen the proceeding and amend the contention to challenge the Staffs
August 2021 Draft Supplemental Environmental Impact Statement (Draft SEIS or DSEIS).
Issuance of the Commissions February 2022 Decisions
On February 24, 2022, the Commission issued two seminal decisions regarding the
environmental impacts of subsequent license renewal. First, in the Turkey Point proceeding, the Commission issued CLI-22-2.15 In that decision, the Commission reversed its previous
decision in CLI-20-3,16 and held that 10 C.F.R. § 51.53(c)(3) does not apply to SLR
applications; that the 2013 GEIS and Table B-1 to 10 C.F.R. Part 51, Appendix B, did not
address SLR; and that the Staffs environmental evaluation of the Turkey Point SLR application was therefore incomplete.17
Second, the Commission issued CLI-22-3 in the North Anna, Oconee, Peach Bottom, Point Beach, and Turkey Point SLR proceedings.18 In that decision, the Commission
(a) stated that it will not issue any further licenses for an SLR term until the Staff has completed an adequate NEPA review for each application;19 (b) directed the Staff to review
and update the 2013 GEIS so that it covers operation during the subsequent license renewal period;20 (c) directed the Staff to evaluate Category 1 impacts on a site-specific basis in its
15 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-2, 95 NRC 26 (2022) (majority decision). Recognizing that the Staff had already issued the subsequent renewed licenses for Turkey Point, the Commission left the licenses in place but with shortened terms to match the end dates of the previous licenses... until completion of the NEPA analysis. Commissioner Wright dissented from the majoritys decision, except with respect to the status of the licenses and the path forward to resolve the purported NEPA deficiency. Id. at 38.
16 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-20-3, 91 NRC 133 (2020), revd, CLI-22-2, 95 NRC 26 (2022).
17 Turkey Point, CLI-22-2, 95 NRC at 27, 31.
18 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), CLI-22-3, 95 NRC 40 (2022).
19 Id., 95 NRC at 41.
20 Also on February 24, 2022, the Commission issued a decision in the Peach Bottom proceeding and a Staff Requirements Memorandum instructing the Staff to submit a rulemaking plan to update 10 C.F.R.
(continued...)
EISs, pending the issuance of a revised GEIS; and (d) dismissed the environmental contentions, motions and appeals that were pending in those proceedings.21
In CLI-22-3, the Commission provided two possible paths forward for the North Anna
and other SLR proceedings. The Commission observed that the most efficient way to
proceed is to direct the Staff to review and update the 2013 GEIS, and to then update the plants EISs to consider the environmental impacts of SLR.22 But the Commission also
provided an alternative: It afforded applicants an opportunity to submit a revised environmental
report providing information on the site-specific environmental impacts of SLR for their plants
and stated that [a]fter each site-specific review is complete, a new notice of opportunity for
hearing, limited to contentions based on new information in the site-specific environmental impact statement, will be issued.23
The NRC Staffs Environmental Evaluations
On August 25, 2021, the Staff published a Notice in the Federal Register,24 informing the
public that it had issued for comment a draft supplement (Draft SEIS) to the 2013 GEIS,25
evaluating the environmental impacts of SLR for North Anna Units 1 and 2.26 Consistent with
Part 51 and the 2013 GEIS to address the environmental impacts of SLR. See (1) Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-22-4, 95 NRC 44 (2022); and (2) Staff Requirements --SECY-21-0066 "Rulemaking Plan for Renewing Nuclear Power Plant Operating Licenses - Environmental Review (RIN 3150-AK32; NRC-2018-0296) (Feb. 24, 2022) (ML22053A308).
21 Oconee, CLI-22-3, 95 NRC at 42. The Commission observed that because the NRC will be updating the GEIS and site-specific environmental analyses, it would be inefficient to continue litigating any of the pending environmental contentions based on environmental information that may change. Id. at 42 n.6.
22 Id., 95 NRC at 41.
23 Id., 95 NRC at 42 (emphasis added).
24 Virginia Electric and Power Company; Dominion Energy Virginia; North Anna Power Station, Unit Nos. 1 and 2, Draft Supplemental Environmental Impact Statement; Request for Comment, 86 Fed. Reg.
47,525 (Aug. 25, 2021).
25 NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report, (June 2013) (2013 GEIS) (ML13107A023) (ADAMS Package). The 2013 GEIS revised the 1996 GEIS. NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Main Report, Final Report (May 1996) (1996 GEIS) (ML040690705, ML040690738).
26 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Draft Supplement 7, Second Renewal, Draft Report for Comment (Aug. 2021) (Draft SEIS)) (ML21228A084).
prior practice, the Draft SEIS relied upon the determinations for Category 1 generic issues
contained in the 2013 GEIS, evaluated any new and significant information that was identified on
Category 1 issues, and evaluated the site-specific (Category 2) impacts of SLR for North Anna.
On September 28, 2022, following the Commissions issuance of CLI-22-2 and CLI-22-3,
the Applicant submitted a site -specific Environmental Report, replacing its previous ER for North
Anna SLR, in which it sought a site -specific evaluation of the environmental impacts of SLR for
North Anna.27 The Staff then published a notice of intent to conduct scoping and to prepare a
site-specific EIS,28 and in December 2023, the Staff issued a site-specific Draft Environmental
Impact Statement (DEIS or Draft EIS) for comment, which superseded the August 2021 Draft
SEIS.29 The DEIS presented a site-specific evaluation of all environmental issues that had been
treated as generic Category 1 issues in the 2013 GEIS; in addition, the DEIS reproduced the
Staffs evaluations of Category 2 issues that had appeared in the 2021 DSEIS, revised and updated to consider new information. In accordance with CLI-22-3, the Staff published a notice of
opportunity for hearing, limited to new information discussed in the DEIS.30
27 Letter from James E. Holloway (Vice President-Nuclear Engineering and Fleet Support) to NRC Document Control Desk,
Subject:
Virginia Electric and Power Company, North Anna Power Station (NAPS) Units 1 And 2, Subsequent License Renewal Application for Facility Operating Licenses NPF-4 and NPF-7, Appendix E, Environmental Report Supplement 1 (Sept. 28, 2022) (ML22272A041).
28 Virginia Electric and Power Co., North Anna Power, Units 1 and 2; Notice of Intent to Conduct Scoping Process and Prepare Supplement to Draft Environmental Impact Statement, 87 Fed. Reg. 68522 (Nov. 15, 2022). The Notice stated, in part, that the DEIS supersedes the August 2021 Draft SEIS, evaluates the environmental impacts of SLR on a site-specific basis for issues considered as Category 1 issues in the 2021 DSEIS, and considers any significant new information that would change the Staffs conclusions.
29 NUREG-1437, Supplement 7a, Second Renewal, Site Specific Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 7a, Second Renewal, Regarding Subsequent License Renewal for North Anna Power Station Units 1 and 2, Draft Report for Comment (Dec. 2023)
(ML23339A047).
30 Virginia Electric and Power Co.; North Anna Power Station Units 1 and 2; Draft Environmental Impact Statement; Request for comment; public comment meetings; opportunity to request a hearing and to petition for leave to intervene, 89 Fed, Reg, 960, 961 (Jan. 8, 2024). The Commission later upheld the Staffs publication of the notice of opportunity for hearing upon issuance of the DEIS, as a reasonable interpretation of CLI-22-3. Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4),
CLI-24-1, 99 NRC 33, 34 (2024); accord, Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), Order of the Secretary (Mar. 13, 2024) (unpublished).
The Petitioners Second Petition to Intervene
In response to the Staffs second notice of opportunity for hearing, the Petitioners filed a petition to intervene on March 28, 2024, as later corrected and amended. In their Petition, the
Petitioners presented three contentions challenging the analyses discussed in the December 2023 site-specific Draft EIS. Answers to the Petition were filed by the Applicant and Staff,31 to
which the Petitioners replied.32 An Atomic Safety and Licensing Board was established to
preside in this proceeding.33 The Board then issued a series of Orders in which it, inter alia,
(1) established general procedural requirements for the proceeding; 34 (2) scheduled oral argument
on the Petition;35 (3) granted the Petitioners motion to amend Contention 3;36 and (4) requested the
parties views37 on the effect of the Commissions May 16, 2024 adoption of a final rule revising
10 C.F.R. Part 51 and Appendix B, Table B-1 and its approval of a revision of the 2013 GEIS.38
31 See (1) Applicants Answer to the Hearing Request and Petition to Intervene and Motion for Leave to Amend Contention 3 Filed by Petitioners (May 6, 2024) (ML24127A220); and (2) NRC Staff Answer in Opposition to Petition for Leave to Intervene Filed by Petitioners (May 6, 2024) (Staff Answer)
(ML24127A233). The Staff filed a Compare Document with its Answer, providing a redline/strikeout comparison of relevant portions of the Draft EIS to the previous (August 2021) Draft SEIS. See to Staff Answer (May 6, 2024) (ML24127A234).
32 See Reply by Petitioners to Oppositions to Their Hearing Request and Petition to Intervene (May 20, 2024) (ML24141A287).
33 Virginia Elec. & Power Co. (North Anna Power Station, Units 1 and 2), Establishment of Atomic Safety and Licensing Board (Apr. 3, 2024) (ML24094A097).
34 Virginia Elec. & Power Co. (North Anna Power Station, Units 1 and 2), Memorandum and Order (Initial Prehearing Order) (Apr. 4, 2024), as amended and corrected April 15, 2024 (unpublished).
35 Virginia Elec. & Power Co. (North Anna Power Station, Units 1 and 2), Memorandum and Order (Scheduling Initial Prehearing Conference) (Apr. 10, 2024), as amended April 15, 2024 (unpublished).
36 Virginia Elec. & Power Co. (North Anna Power Station, Units 1 and 2), Memorandum and Order (Granting Joint Intervenors Motion to Amend Contention 3) (May 7, 2024), as corrected May 8, 2024 (unpublished).
37 Virginia Elec. & Power Co. (North Anna Power Station, Units 1 and 2), Memorandum and Order (Request to Address Contention Admissibility and Impacts of Final Rule Applying Generic Environmental Impact Statement to Subsequent License Renewal Period) (May 21, 2024) (unpublished).
38 See Memorandum from Carrie M. Safford (NRC Secretary) to Raymond V. Furstenau (Acting Executive Director for Operations),
Subject:
Affirmation Session - SECY-24-0017: Final Rule - Renewing Nuclear Power Plant Operating Licenses - Environmental Review (RIN 3150-AK32; NRC-2018-0296) (SRM)
(May 16, 2024) (ML24137A164).
Oral argument on contention admissibility was held on June 3, 2024.39
On July 10, 2024, the Board issued its decision in LBP-24-07. In its decision, the Board
(in a 2-1 decision) found that the Petitioners had established their standing to intervene,40 but
did not show that at least one of their contentions satisfied the requirements for contention admissibility.41 The Board therefore denied the Petition and terminated the proceeding.42
DISCUSSION
In their petition to intervene, the Petitioners presented three contentions, each of which
was rejected by the Board for failing to satisfy the Commissions contention admissibility
requirements. On appeal, the Petitioners challenge the Boards determination that their
proposed contentions were inadmissible. In the following discussion, the Staff presents, first, a
summary of (a) the legal principles applicable to Commission review of the Boards decision,
(b) the standards governing the admissibility of contentions, and (c) the environmental
evaluation required under NEPA for the review of an SLR application. Second, the Staff
provides an analysis showing that the Board correctly held that the Petitioners had not shown
that their proposed contentions were admissible.
I. Applicable Legal Standards
A. Standards for Commission Review
In accordance with 10 C.F.R. § 2.311(c), a Licensing Board decision denying a petition
to intervene and/or request for hearing is appealable by the requestor/petitioner on the question
as to whether the request and/or petition should have been granted. As stated in § 2.311(b),
39 See Virginia Elec. & Power Co. (North Anna Power Station, Units 1 and 2), Official Transcript of Proceedings (June 3, 2024) (ML24157A311).
40 North Anna, LBP-24-07, slip op at 5-8. As the Board noted, the Petitioners standing to intervene was not contested by the Applicant or Staff. Id., slip op. at 5.
41 Id. at 13-25.
42 Id. at 26.
the appeal must be initiated by filing a notice of appeal and supporting brief and must conform
to the requirements of 10 C.F.R. § 2.341(c)(3).
In reviewing a licensing boards decision, the Commission generally defers to the
boards threshold rulings on standing and contention admissibility unless it finds an error of law or abuse of discretion,43 and leaves to the boards judgment a determination whether a
proposed contention has a sufficient factual basis to be admitted for hearing.44 Therefore, an
appeal from a boards threshold determination on contention admissibility that does not point to
an error of law or abuse of discretion by the board, but simply restates the appellants prior
positions and its general disagreement with the boards decision, with or without additional
support, will not be granted.45 For questions of law, the Commissions review is de novo.46 The
Commission may affirm a boards decision on any ground supported in the record, whether previously relied upon or not.47
B. Standards Governing Contention Admissibility
The requirements governing the admissibility of contentions are set forth in 10 C.F.R.
§ 2.309(f)(1)-(2). Specifically, a petitioner must set forth with particularity the contentions that
the petitioner seeks to raise and, for each contention, the petitioner must:
(i) Provide a specific statement of the issue of law or fact to be raised or controverted;
43 See, e.g., Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 710 (2012); see also Calvert Cliffs Nuclear Project, LLC and UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 914 (2009) (We give substantial deference to our boards determinations on threshold issues, such as standing and contention admissibility, and we will affirm decisions on the admissibility of contentions where the appellant points to no error of law or abuse of discretion.) (internal quotation marks omitted).
44 Strata Energy, Inc. (Ross In Situ Recovery Uranium Project), CLI-16-13, 83 NRC 566, 574 (2016).
45 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NR 499, 503-05 (2007); Florida Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7), CLI-17-12, 86 NRC 215, 219 (2017).
46 See, e.g., Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-16-18, 84 NRC 167-171 (2016).
47 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 166 (2005).
(ii) Provide a brief explanation of the basis for the contention;48
(iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding;49 (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action involved in the proceeding;50 (v) Provide a concise statement of the alleged facts or expert opinions that support the petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely;51 and
(vi) Provide sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact.52
Further, contentions must be based on documents or other information available at the time the
petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document... or otherwise available to a petitioner.53
48 Contentions cannot be based on speculation and must have some reasonably specific factual or legal basis. Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc., (Vermont Yankee Nuclear Power Station), CLI-15-20, 82 NRC 211, 221 (2015).
49 The scope of the proceeding is defined by the Commission in its initial hearing notice and order referring the proceeding to the licensing board. See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-00-23, 52 NRC 327, 329 (2000). Any contention that falls outside the specified scope of the proceeding must be rejected. See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427, 435-36 (2011).
50 A dispute at issue is material if its resolution would make a difference in the outcome of the licensing proceeding. Holtec International (Hi-STORE Consolidated Interim Storage Facility), CLI-20-4, 91 NRC 167, 190 (2020) (internal quotations omitted).
51 See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006) (it is the petitioners responsibility to satisfy the basic contention admissibility requirements; boards should not have to search through a petition to uncover arguments and support for a contention, and may not simply infer unarticulated bases of contentions); see also Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), CLI-91-12, 34 NRC 149, 155 (1991).
52 To show that a genuine dispute exists, the contention must include references to specific portions of the application that the petitioner disputes and the supporting reasons for each dispute; if the petitioner believes that the application fails to contain information on a relevant matter, the contention must identify each failure and the supporting reasons for the petitioners belief. Exelon Generation Co., LLC. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-20-11, 92 NRC 335, 342 (2020).
53 10 C.F.R. § 2.309(f)(2). As a general rule, for issues arising under the National Environmental Policy Act of 1969 (NEPA), the petitioner shall file contentions based on the applicants environmental report.
Id. This general rule is not applicable here, as the Commission directed in CLI-22-3 that contentions are to be filed upon completion of the Staffs environmental evaluation.
The NRCs regulations governing contention admissibility are intended to focus litigation on concrete issues and result in a clearer and more focused record for decision. 54 The
Commission has explained that the contention admissibility rules are strict by design.55
Failure to satisfy any of the six pleading requirements renders a contention inadmissible.56
The rules require a clear statement as to the basis for the contentions and the submission of
supporting information and references to specific documents and sources that establish the validity of the contention.57 The basis requirements are intended to: (1) ensure that the
contention raises a matter appropriate for adjudication in a particular proceeding; (2) establish a
sufficient foundation for the contention to warrant further inquiry into the assertion; and (3) put other parties sufficiently on notice of the issues to be litigated.58 Although a petitioner does not
have to prove its contention at the admissibility stage,59 the contention admissibility standards
are meant to afford hearings only to those petitioners who proffer at least some minimal factual and legal foundation in support of their contentions.60 The petitioner must provide some
54 See, e.g., Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Unit 3), LBP-20-8, 92 NRC 28, 46 (2020) (quoting Changes to Adjudicatory Process; final rule, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004)); Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, NE), LBP-15-15, 81 NRC 598, 601 (2015).
55 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2) CLI-16-5, 83 NRC 131, 136 (2016) (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001) and South Carolina Electric & Gas Co. and South Carolina Public Service Authority (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI-10-1, 71 NRC 1, 7 (2010). The Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing. Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).
56 Indian Point, CLI-16-5, 83 NRC at 136; see also Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334-35 (1999) (the heightened contention admissibility rules are designed to preclude contentions based on little more than speculation).
57 AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006).
58 Oconee, CLI-99-11, 49 NRC at 333-34; see also Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974).
59 Private Fuel Storage L.L.C. (Indep. Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004).
60 Oconee, CLI-99-11, 49 NRC at 334.
support for the contention, either in the form of facts or expert testimony, and failure to do so requires that the contention be rejected.61 Any supporting material provided by the petitioner is
subject to scrutiny by the presiding officer,62 who must confirm that the proffered material
provides adequate support for the contention.63
If a petitioner neglects to provide the requisite support for its contentions, the presiding
officer should not make assumptions of fact that favor the petitioner or search for or supply information that is lacking.64 Moreover, providing any material or document as a basis for a
contention without explaining its significance is grounds for the presiding officer to reject the contention.65 In sum, the information, facts, and expert opinions provided by the petitioner must
be examined by the presiding officer to determine whether they provide adequate support for the proffered contentions.66
The Commission has held that, absent a waiver, a contention must be rejected if it
challenges applicable statutory requirements, regulations, or the basic structure of the Commissions regulatory process.67 Further, contentions that are nothing more than a
generalization providing the petitioners view of what applicable policies ought to be must also be rejected.68 And attempts to advocate for requirements stricter than those imposed by
61 Palo Verde, CLI-91-12, 34 NRC at 155; accord, Indian Point, CLI-16-5, 83 NRC at 136.
62 See Vermont Yankee Nuclear Power Co. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989), vacated in part on other grounds and remanded, CLI-90-4, 31 NRC 333 (1990).
63 Vermont Yankee, ALAB-919, 30 NRC at 48.
64 See American Centrifuge Plant, CLI-06-10, 63 NRC at 457.
65 See Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 205 (2003).
66 American Centrifuge Plant, CLI-06-10, 63 NRC at 457; see Bellefonte, LBP-10-7, 71 NRC at 421.
67 As set forth in 10 C.F.R. § 2.335(a), no rule or regulation of the Commission is subject to attack in any adjudicatory proceeding, in the absence of a waiver petition granted by the Commission. Further, any contention that amounts to an attack on applicable statutory requirements or represents a challenge to the basic structure of the Commissions regulatory process must be rejected. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 218 (2003).
68 Millstone, CLI-03-14, 58 NRC at 218.
regulation constitute collateral attacks on the NRCs rules and are therefore inadmissible.69
C. Requirements for Environmental Review of License Renewal Applications
Section 102(2)(C) of the National Environmental Policy Act of 1969, as amended (NEPA),
42 U.S.C. § 4321 et seq., 70 requires federal agencies to include in any recommendation or
report on proposals for legislation and other major federal actions significantly affecting the
quality of the human environment, a detailed statement by the responsible official on --
(i) The reasonably foreseeable environmental impact of the proposed agency action; (ii) Any reasonably foreseeable adverse environmental effects which cannot be avoided should the proposal be implemented; (iii) A reasonable range of alternatives to the proposed agency action, including an analysis of any negative environmental impacts of not implementing the proposed agency action in the case of a no action alternative, that are technically and economically feasible, and meet the purpose and need of the proposal; (iv) The relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and (v) Any irreversible and irretrievable commitments of Federal resources which would be involved in the proposed agency action should it be implemented.
In accordance with its NEPA responsibilities, the NRC is required to take a hard look at
the environmental impacts of a proposed major federal action that could significantly affect the environment, as well as reasonable alternatives to that action.71 This hard look is tempered
by a rule of reasonconsideration of environmental impacts need not address all theoretical
69 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 315 (2012)
(citations omitted); see Peach Bottom, ALAB-216, 8 AEC at 20-21 (explaining that a contention that seeks to raise an issue that is not proper for adjudication in the proceeding or that does not apply to the facility in question, or seeks to raise an issue that is not concrete or litigable must also be rejected).
70 National Environmental Policy Act of 1969 (NEPA), Section 102(2)(C), 42 U.S.C. § 4332, as amended by the Fiscal Responsibility Act of 2023.
71 See Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 87-88 (1998); Crow Butte Resources, Inc. (Marsland Expansion Area), LBP-19-2, 89 NRC 18, 40 (2019).
possibilities, but rather only those that have some possibility of occurring.72 An agency thus
need only address impacts that are reasonably foreseeable; the agency need not perform
analyses concerning events that would be considered worst case scenarios or those considered remote and highly speculative.73 NEPA does not call for certainty or precision, but
an estimate of anticipated (not unduly speculative) impacts.74 And NEPA gives agencies broad
discretion to keep their inquiries within appropriate and manageable boundaries.75 As the
Commission has observed, NEPA requires consideration of reasonable alternatives, not all conceivable ones.76
The regulations in 10 C.F.R. Part 51 establish the NRCs requirements for compliance
with NEPA, including the environmental review of license renewal applications. As set forth in
10 C.F.R. § 51.20(b)(2), an environmental impact statement is required for [i]ssuance or renewal
of a full power or design capacity license to operate a nuclear power reactor. The requirements
for preparation and distribution of draft and final EISs are set forth in 10 C.F.R. § 51.70 et seq.,
and § 51.90 et seq., respectively. Specific requirements for environmental evaluations of license renewal applications are included in 10 C.F.R. Part 51.77
72 Crow Butte Resources, Inc., LBP-19-2, 89 NRC at 40 (quoting Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-156, 6 AEC 831, 836 (1973)).
73 Holtec International (HI-STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC 353, 357 (2019) (quoting Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 754-55 (3d Cir. 1989)).
74 Crow Butte Resources, LBP-19-2, 89 NRC at 40 (quoting Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-05-20, 62 NRC 523, 536 (2005)).
75 Crow Butte Resources, LBP-19-2, 89 NRC at 40 (quoting Claiborne Enrichment Center, CLI-98-3, 47 NRC at 103).
76 Seabrook, CLI-12-5, 75 NRC at 338. Further, an EIS need only discuss those alternatives that will bring about the ends of the proposed actiona principle equally applicable to Environmental Reports. Id.
at 339 (footnotes and quotation marks omitted).
77 See, e.g., 10 C.F.R. §§ 51.71(d) & 51.95(c). 10 C.F.R. Part 51, Appendix B, Table B-1, sets forth a list of findings on NEPA issues for license renewal. As noted supra at 8, the Commission recently adopted revisions to 10 C.F.R. Part 51 and Appendix B, Table B-1, and approved a 2024 revision of the 2013 GEIS, addressing the environmental impacts of initial license renewal and one SLR term. The revised rule becomes effective on September 5, 2024; compliance by SL applicants is not required until one year from the date of publication. See Final rule and guidance; issuance, Renewing Nuclear Power Plant Operating LicensesEnvironmental Review, 89 Fed. Reg. 64166 (Aug. 6, 2024).
II. The Board Correctly Held That the Petitioners Failed to Present at Least One Admissible Contention as Required by 10 C.F.R. §§ 2.309(a) and (f)(1).
In their brief on appeal, the Petitioners contend that the Board erred in rejecting their
three contentions. As more fully set forth below, the Staff submits that the Board correctly
rejected all three of the contentions, and the Petitioners have not shown that the Board
committed any error or abuse of discretion in doing so. The Boards decision in LBP-24-07
should therefore be affirmed.
A. Contention 1 Failed to Demonstrate a Genuine Dispute, Lacked Specificity, and Raised Safety Issues Concerning North Annas Seismic Design Basis That Are Beyond the Scope of This Proceeding
In Contention 1, the Petitioners asserted that the Draft EIS fails to address [the]
environmental significance of the 2011 Mineral Earthquake.78 The Petitioners claimed that the
Draft SEIS79 fails to address the environmental significance of the 2011 Mineral Earthquake,
whose epicenter was a short distance from the two reactors and whose ground motion exceeded the design basis levels for both reactors.80 While the Petitioners described this as an
environmental contention, the contention actually raises a safety issue, claiming as follows:
By exceeding the reactors design basis, the earthquake disproved the assumption underlying the NRCs issuance of operating licenses in 1978 (for Unit 1) and 1980 (for Unit 2) and renewal of those licenses [in] 2003, that the reactors could be operated safely and without significant adverse environmental impacts because their SSCs were built to a design basis of sufficient rigor to protect against likely earthquakes. This assumption can also be found in the 2013 License Renewal GEIS and the Draft SEIS for the North Anna SLR application.81
The Petitioners asserted that the NRC must explicitly address... whether the environmental
78 Corrected Petition at 9 (capitalization omitted).
79 The Petitioners contentions incorrectly refer to the Staffs December 2023 site-specific Draft EIS as a Draft SEIS or DSEIS. That Draft EIS, however, was a site-specific EIS, published in accordance with the Commissions decision in CLI-22-3, and was not published as a supplement to any previous EIS.
80 Corrected Petition at 9.
81 Id. at 9-10.
impacts of operating North Anna Units 1 and 2 in noncompliance with its design basis for an
additional twenty years will have significant impacts, and they cited the Declaration of their
expert, Mr. Jeffrey Mitman, in support of various claims challenging the adequacy of the Staffs
previous safety analyses of the 2011 Mineral, VA Earthquake, and the sufficiency of actions taken by the NRC in response to the March 2011 Fukushima earthquake and tsunami.82
In LBP-24-07, the Board observed that Contention 1 could be viewed as a contention of
omission, insofar the Petitioners claimed that the Draft EIS fails to address the question of
whether the environmental impacts of operating North Anna Units 1 and 2 in noncompliance with its design basis for an additional twenty years will have significant impacts.83 The Board
correctly found, however, that Contention 1 is inadmissible because the Draft EIS in Section
3.4.4 does indeed discuss the 2011 Mineral earthquake and the extensive regulatory review that
followed it, and discusses the process by which the NRC evaluated the probability-weighted
consequences of a postulated severe accident (including one initiated by an earthquake) and
confirms that the probabilistic modeling expressly takes into account the 2011 Mineral
earthquake. Accordingly, the Board held that the Petitioners failed to show a genuine dispute with the Draft EIS on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(vi).84
The Board also identified a second reason for rejecting Contention 1. Citing the
contentions failure to point to specific requirements that were allegedly left unsatisfied by the
Draft EIS, the Board correctly concluded that Contention 1 is also inadmissible because it is so
vague and unparticularized that it fails to provide a specific statement of fact to be raised as required by 10 C.F.R. § 2.309(f)(1)(i).85
82 Id. at 9-11. The Staff notes that the Board addressed those matters at length in LBP-21-4, in rejecting the Petitioners previous contention concerning the Mineral Earthquake. See North Anna, LBP-21-4, 93 NRC at 204-08 and 209-12.
83 LBP-24-07, slip op. at 13.
84 Id., slip op. at 14.
85 Id., slip op. at 14-15.
Finally, and more fundamentally, the Board recognized that Contention 1 was
inadmissible as a contention of adequacy (claiming that the Draft EISs discussion of a
particular issue is inadequate), in that the issue raised in the contention concerned the
sufficiency of North Annas seismic design basis - a safety issue that is beyond the permissible
scope of issues that can be considered in a license renewal proceeding. The Board observed
that the NRC considers the effect of seismic hazards on plant safety for existing nuclear power
plants to be a separate and distinct process from license renewal, whereby such safety issues are addressed on an ongoing basis as a part of the plants current licensing basis. 86 In
addition, the Board took note of the previous Boards decision in LBP-21-4, which held that the
Petitioners nearly identical contention concerning this 2011 earthquake was inadmissible under the 10 C.F.R. § 2.309(f)(1) criteria.87
In their brief on appeal, the Petitioners assert, first, that the Board erroneously rejected
Contention 1 as a contention of omission, claiming that the Board relied on risk evaluations in the Draft EIS and the Applicants submittals that are exclusively probabilistic.88 However, the
Petitioners own argument demonstrates that the Draft EIS did, in fact, address the Mineral
Earthquake. Accordingly, as the Board found, Contention 1 should be rejected as a contention
of omission for failing to show a genuine dispute exists with the Draft EIS on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(vi).89
Second, the Petitioners claim that the Board erred in finding that Contention 1 is broad
and unparticularized.90 In their view, Contention 1 had adequately identified the location in the
Draft EIS of the incorrect assumption on which the Draft EIS relies, and had explained the
86 LBP-24-07, slip op. at 15.
87 Id.
88 Pet. Br. at 17; emphasis is original.
89 LBP-24-07, slip op. at 14.
90 Pet. Br. at 18.
environmental significance of relying on a probabilistic risk assessment rather than a deterministic judgment.91 The Petitioners conclusory assertions do not overcome the fact that
Contention 1 lacked the requisite specificity to be admissible. Thus, while Contention 1, itself,
does not point to any alleged deficiencies in the Staffs DEIS, it cites and relies upon Sections B and C.1 of Mr. Mitmans Declaration, 92 in which he presented concerns for the seismic safety of
North Anna Units 1 and 2, citing a technical report he had authored.93 Significantly, nowhere in
his Declaration or Report did Mr. Mitman identify any specific deficiencies in the DEIS. Instead,
his claims were general in nature, without reference to any specific assumption, input,
calculation, or methodology in the DEIS that he believes to be inadequate; nor did he provide
any specific assumption, input, calculation or methodology of his own, which he believe d would lead to a result different from the DEIS conclusions.94 And, nowhere did he provide any analysis
to support his claims that the Staff erred in concluding (a) that the environmental impacts of
design basis accidents are SMALL;95 (b) that the probability-weighted consequences of severe
accidents are SMALL;96 (c) that there are no additional SAMAs that warrant imposition;97 or
91 Id.
92 Corrected Petition at 11; See Mitman Declaration, §§ B and C.1 (¶¶ 8-30), at 3-8.
93 In support of his Declaration, Mr. Mitman cited and relied, in part, upon a technical report attached to his Declaration. See Technical Review of [NRCs] Draft Site-Specific Environmental Impact Statement for Subsequent License Renewal of North Anna Power Station Units 1 and 2 With Respect to Accident Analysis Submitted by Jeffrey T. Mitman to the [NRC] on behalf of Beyond Nuclear, Inc. (Feb. 22, 2024)
(Mitman Report).
94 For example, Mr. Mitman opined that some type of deterministic analysis should be performed - but he did not perform his own deterministic analysis, did not show that such an analysis would produce results different from those relied upon in the DEIS, and did not show how a deterministic analysis would apply to the Staffs customary probabilistic evaluation of severe accident mitigation alternatives. Nor did Mr. Mitman establish that a deterministic evaluation of seismic hazards is required to satisfy the Commissions safety standards for license renewal in 10 C.F.R. Part 54. Similarly, while Mr. Mitman questioned why the Staff treated the seismic hazard for North Anna Units 1 and 2 differently than the seismic hazard for a proposed Unit 3, Pet. Br. at 18, they point to no flaw in the Staffs analyses; and fail to establish that the design and seismic hazards for all three plants are identical.
95 DEIS, Appendix F, at F-5
96 Id. at F-18.
97 Id. at F F-27.
(4) that the DEISs determination of SMALL impact lacks adequate supporting factual data
and/or qualitative information and does not reflect the use of sufficiently rigorous or up-to-date
analytical methods with respect to... the 2011 Mineral Earthquake.98 Accordingly, the Board
correctly held that Contention 1 should be rejected in accordance with 10 C.F.R. § 2.309(f)(1)(i).
Finally, the Petitioners dispute the Boards finding that Contention 1 was inadmissible in that it raised a safety issue that is outside the scope of license renewal.99 Significantly, they do
not dispute the Boards finding that the contention raised a safety issue, or even that seismic
design basis concerns are beyond the scope of license renewal. Moreover, Contention 1 did
not challenge the Staffs evaluation of the environmental impacts of either a design -basis
earthquake or a beyond-design-basis earthquake such as the 2011 Mineral Earthquake ; rather,
Contention 1 challenged the Staffs seismic safety determinations - which were made years ago
concerning the safety of continued operation of the facility and which are wholly beyond the
scope of subsequent license renewal100 - and failed to confront the Staffs December 2023
DEIS evaluation of new and significant information that could affect its previous determinations
regarding accidents that might occur due to either design-basis or beyond-design basis events.
In their brief, the Petitioners make the unsupported assertion that the Board erroneously
assum[ed] that the concerns of NEPA and the Atomic Energy Act are completely separate.101
The Petitioners then argue that the two statutes overlap; and indeed, NEPA encompasses
98 Mitman Declaration ¶ 24, at 7-8.
99 Pet. Br. at 19-20.
100 To be admissible for litigation in a license renewal proceeding, safety contentions must address the applicants compliance with the safety standards for license renewal, as set forth in 10 C.F.R. § 54.29; these include (1) managing the effects of aging on the functionality of structures, systems and components within the scope of the rule, and (2) time-limited aging analyses. Issues concerning the safety of continued operation that are not unique to license renewal, are addressed as part of the NRCs oversight of operating reactors and are beyond the scope of the license renewal proceeding. See generally, Final rule; Nuclear Power Plant License Renewal; Revisions, 88 Fed. Reg. 22461, 22464-65 (May 8, 1995). Cf. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),
CLI-04-36, 60 NRC 631, 637-38 (2004); Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 6-10 (2001).
101 Pet. Br. at 19.
Atomic Energy Act-based safety concerns.102 Notwithstanding the novelty of their argument,
the Petitioners fail to show that the Board misunderstood both the proper scope of safety issues
for subsequent license renewal and the NRCs obligation to consider the environmental impacts
of SLR. Indeed, the Commissions dual obligations to consider both the safety and
environmental impacts of its license renewal decisions are well defined in 10 C.F.R. Part 54 and
10 C.FR. Part 51, respectively, and the Petitioners attempt to fuse the regulatory framework for
safety reviews with the framework for environmental reviews should be rejected. Moreover, the
Petitioners fail to provide any reason to believe that the Board erred in holding that Contention
1s challenge to the adequacy of the North Anna seismic design basis is not subject to
adjudication in a license renewal proceeding and is not material to the findings that the NRC
must make for SLR, as required by 10 C.F.R. § 2.309(f)(1)(iii) & (iv). For all the above reasons,
the Boards determination that Contention 1 was inadmissible should be affirmed.
B. Contention 2 Failed to Challenge the Staffs Evaluation of New and Significant Information Regarding North Annas Severe Accident Mitigation (SAMA) Analysis in the Draft EIS
In Contention 2, the Petitioners asserted 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, and that the Staff therefore lacks
an adequate basis for concluding that the environmental impacts of accidents during a license renewal term are SMALL.103 The Petitioners then proffered nine assertions, set out in bullet
points in Section C.2 of Mr. Mitmans Declaration, to support of this contention.104
In LBP-24-07, the Board considered each of the claims presented by the Petitioners, and
correctly concluded that Contention 2 falls short for (1) its failure to set forth with particularity
the [contention] sought to be raised, and (2) its failure to show that a genuine dispute exists
102 Id.
103 Corrected Petition at 12.
104 Id. at 12 and 13-14. See Mitman Declaration, § C.2, ¶¶ 31-47, at 9-14.
with the Draft EIS on a material issue of law or fact.105 With respect to the first issue, the Board
observed that the Petitioners sought to incorporate by reference Mr. Mitmans Declaration, but
failed to explain the significance or relevance of his nine bullet points, contrary to the
Commissions expectation that parties clearly identify the matters on which they intend to rely
with reference to a specific point, rather than forcing the Board itself to search for a needle that may be in a haystack.106 Thus, the Board correctly concluded that the Petitioners had failed to
set forth their contentions with particularity.107
In finding that the Petitioners failed to meet their obligation to demonstrate that a
genuine dispute exists with the Draft EIS on a material issue of law or fact, the Board properly
applied the Commissions prior decisions that held that an expert opinion that merely states a
conclusion (e.g., the application is deficient, inadequate, or wrong) without providing a
reasoned basis or explanation for that conclusion is inadequate because it deprives the Board
of the ability to make the necessary, reflective assessment of the opinion.108 The Board
examined the Petitioners summaries of Mr. Mitmans Declaration, and correctly found that they
fail to articulate any reason why the Draft EIS falls short of any legal or regulatory obligations or how this alleged deficiency renders the Draft EIS materially inadequate.109
With respect to the Petitioners nine bullet points, the Board found multiple reasons why
they failed to support admission of the contention. For example, the Board found that they
presented broad generalizations; did not establish a failure to meet a statutory or regulatory
obligation; did not identify the data that the NRC allegedly ignores or explain why such data is
105 LBP-24-07, slip op. at 16, citing 10 C.F.R. §§ 2.309(f)(1), (f)(1)(vi).
106 Id., citing Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant and Big Rock Point Site),
CLI-22-8, 96 NRC 1, 100 (2008); Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2),
CLI-89-3, 29 NRC 234, 240-41 (1989).
107 Id., citing 10 C.F.R. § 2.309(f)(1).
108 Id., at 16-17, citing American Centrifuge Plant, CLI-06-10, 63 NRC at 472 (quoting Private Fuel Storage, LLC. (Indep. Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 181 (1998)).
109 Id., at 17.
required; did not support their assertion; did not explain why the Draft EIS statements were
erroneous; did not confront statements in the Draft EIS that considered risks which they
claimed had been overlooked; did not explain how the Draft EIS was misleading; did not
explain why a Draft EIS discussion was incorrect or rendered the Draft EIS deficient; did not
identify the uncertainties that were not analyzed correctly, and did not confront the Draft EIS
discussion of uncertainties; did not acknowledge that the SAMA analysis challenged in the
contention had been performed for initial license renewal; and did not provide support for their claim regarding a Staff audit or say which SAMA was not evaluated properly.110 For all of these
reasons, the Board appropriately held that Contention 2 is inadmissible because it is out of
scope, fails to provide support for its assertions, and to demonstrate a genuine dispute with the Draft EIS on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(iii)-(vi).111
On appeal, the Petitioners assert that the Board erred in holding that Contention 2 was
deficient for seeking to incorporate a large volume of information contained in Mr. Mitmans Declaration, rather than stating their claims within the contention.112 The Petitioners argument
is without merit. A cursory examination of the Petition reveals that the Board described the
contentions shortcomings correctly. Rather than lay out the bases for the contention and the
significance or relevance of Mr. Mitmans assertions, the Petition generally directs the reader to
examine Mr. Mitmans Declaration - which, in turn, directs the reader to Mr. Mitmans technical
report. The Board was therefore justified in finding that the Petitioners had forced the Board to
search for a needle in a haystack,113 instead of clearly stating the bases for their contention.
110 See id., at 17-19.
111 Id., at 20.
112 Pet. Br. at 21.
113 Nor is there merit in the Petitioners effort to distinguish the Commissions decision in Seabrook. See Pet. Br. at 21, discussing LBP-24-07, slip op. at 16 (citing Seabrook, CLI-89-3, 29 NRC at 240-41 (rejecting a partys incorporation by reference of massive documents into a pleading)). Contrary to the Petitioners claim (Pet. Br. at 20), Contention 2 did, in fact, attempt to incorporate a large amount of material from other documents, including five pages of points made by Mr. Mitman in... his declaration, (continued...)
The Petitioners were obliged to set forth the bases for their contention, with specificity,
as is unambiguously required in 10 C.F.R. § 2.309(f)(1)(i), (ii) & (v). And, it is well established
that a Board should not have to search through a petition to uncover arguments and support for a contention, nor may a Board simply infer unarticulated bases of contentions.114 While
the Petitioners claim that Contention 2 was adequately framed because it provides a bulleted
summary of the points made in the five pages of Section C.2 of Mr. Mitmans Declaration, they
ignore the fact that Mr. Mitmans Declarati on, itself, relies upon lengthy portions of his technical
report, rendering it difficult to understand the precise bases for the claims in his Declaration.
Accordingly, the Petitioners challenge to the Boards finding that the contention failed to meet
the contention basis and specificity requirements in 10 C.F.R. § 2.309(f)(1) should be rejected.
Second, the Petitioners challenge the Boards determination that Mr. Mitmans
declaration was conclusory and failed to prov[id]e a reasoned basis or explanation for his
conclusions.115 However, the Petitioners misstate the Boards decision: The Board did not find
that Mr. Mitman lacked a reasoned basis or explanation for his conclusions, as the Petitioners
would infer; rather, the Board quoted this language from another NRC decision, finding that
Mr. Mitmans Declaration was inadequate insofar as it failed to articulate any reason why the
Draft EIS falls short of any legal or regulatory obligations or how this alleged deficiency renders the Draft EIS materially inadequate.116 Rather than point to any legal error or abuse of
discretion by the Board, the Petitioners argue that they had presented the reasoned opinion of
and many pages from his technical report - as the Petitioners concede. See Pet. Br. at 20. Nor did the Board require the Petitioners to paste the entirety of Mr Mitmans Section C.2 into the body of Contention 2, thus exalt[ing] form over substance. Id. at 21. Rather, the Board properly held that the Petitioners are responsible for explaining the bases for their contention without requiring the Board to sift through numerous pages of other documents to discern the contentions bases.
114 American Centrifuge Plant, CLI-06-10, 63 at 457.
115 Pet. Br. at 22, citing LBP-24-07, slip op. at 16.
116 LBP-24-07, slip op. at 16-17, citing American Centrifuge Plant, CLI-06-10, 63 NRC at 472 (quoting Private Fuel Storage, LBP-98-7, 47 NRC at 181.
a qualified expert, which should have sufficed for admission of the contention.117 However, the
Board examined each of Mr. Mitmans bullet points, and found them inadequate for many
reasons - none of which included the merits of Mr. Mitmans views or the sufficiency of his technical expertise.118 The Petitioners argument should therefore be rejected.
Third, the Petitioners argue that the Board rejected their nine bullet points because the
details are found in Mr. Mitmans Declaration rather than the text of the contention itself, which
they claim erroneously exalt[ed] form over substance.119 This claim should be rejected. The
Board rejected Mr. Mitmans claims, in general, because they lacked specificity and failed to
establish a genuine dispute with the Draft EIS - deficiencies that precluded admission of the
contention, regardless of wh ere those claims were presented.120
Finally, the Petitioners argue that for each point, 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.121 These conclusory assertions ignore the fact that the
117 Pet. Br. at 22
118 See discussion supra, at 21-22.
119 Pet. Br. at 22-23.
120 The Board also rejected one of Mr. Mitmans claims (in Bullet 8 of his Declaration) because it challenged the adequacy of the 2002 initial license renewal SAMA analysis treatment of multi-unit accidents, which the Board held was outside the scope of the current relicensing proceeding, failing to meet the contention admissibility criterion of 10 C.F.R. § 2.309(f)(1)(iii). LBP-24-07, slip op. at 19. The Petitioners do not appeal this portion of the Boards decision.
Indeed, the Board could have rejected Contention 2, in its entirety, on the grounds that it challenged North Annas SAMA analysis for initial license renewal - an issue that is beyond the scope of this SLR proceeding and the notice of hearing opportunity published for this proceeding. Under 10 C.F.R.
§ 51.53(c)(3)(ii)(L), a SAMA analysis is not required if the Staff previously considered a SAMA analysis for the facility - which the Staff did, for North Anna initial license renewal. See NUREG-1437, Supp. 7, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding North Anna, Units 1 and 2, Final Report (Nov. 2002) (ML023380542 and ML023380567), at 5-4 to 5-28. For SLR, the Staff considered any new and significant information that could affect its previous evaluation, consistent with 10 C.F.R. §§ 51.53(c)(3)(ii)(L) and 51.53(c)(3)((iv). See Draft SEIS (Aug. 2021) at F-18; Draft EIS (Dec. 2023) at F F-22. In sum, Contention 2 impermissibly challenged the SAMA analysis conducted for initial license renewal rather than the DSEISs evaluation of new and significant information for SLR. Thus, the Commission could affirm the Boards rejection of Contention 2 for this reason, as well. See Private Fuel Storage, CLI-05-1, 61 NRC at 166.
121 Pet. Br. at 23.
Board considered each of Mr. Mitmans points and found them inadequate to support the
contention. While the Petitioners disagree with the Boards findings, they do not show any legal
error or abuse of discretion by the Board.122 Their arguments should therefore be rejected.123
C. Contention 3 Failed to Identify Any Specific Deficiency in The Staffs Evaluation of Climate Change in the Draft EIS
In Contention 3, as amended, the Petitioners asserted that the Draft EIS fails to address the effects of climate change on accident risk.124 Further, the Petitioners claimed that [n]o
such discussion can be found in Section 3.11.6.9 or Appendix F [of the Draft EIS]. To the
contrary, the NRC asserts that the effects of climate change are outside the scope of the NRC staffs SLR review.125 Further, they asserted that the Council on Environmental Quality (CEQ)
and other federal agencies recognized that climate change poses a current and future threat to
critical infrastructure that should be addressed; and they cited Mr. Mitmans claims that the
DEISs purported failure to address climate change impacts on accident risk constitutes a
significant deficiency, the frequency and intensity of climate change effects are increasing over
time, and an increase in accident risk can be reasonably expected due to climate change.126
In LBP-24-07, the Board majority (referred to here as the Board) held that Contention 3
was inadmissible, because 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
122 See id., at 22-23.
123 See, e.g., Strata Energy, CLI-16-13, 83 NRC at 574.
124 Corrected Petition at 15-17. Contention 3 stated that it relies upon Mr. Mitmans Declaration, generally, and without specifying which of his statements it relies upon other than ¶¶ 48 and 51. See Corrected Petition at 16 and 17. The Staff assumes, however, that Contention 3 relies upon Section C.3 of the Declaration (Inadequate Discussion [of the] Effects of Climate Change on Accident Risk).
125 Amended Contention (Apr. 11, 2024), at 2. Significantly, the Petitioners quotation omitted important text from the DEIS; the complete statement in the DEIS was: The effects of climate change on North Anna structures, systems, and components are outside the scope of the NRC staffs environmental review. DEIS at 3-194 (emphasis added); the Corrected Petition (at 16) omitted the underlined language, which clearly indicated that the effects of climate change on plant safety are outside the scope of the NRCs environmental review.
126 Id. at 2-3 (footnotes omitted).
hearing.127 First, with respect to scope, the Board observed that the Federal Register notice of
opportunity for hearing limited the scope of this proceeding to contentions based on new
information in the DEIS.128 The Board noted that although the Petitioners claimed Contention 3
concerns a new reactor-specific accident analysis in the Draft EIS, they failed to identify that
analysis, explain how it is new information in the DEIS, or how it differs from previously available information.129 The Board then rejected the Petitioners attempt to expand the scope
of this proceeding, their claim that they need not demonstrate their issues are within the scope
of the proceeding, and their claim that the DEIS presented a new analysis that had not been presented previously.130
Second, with respect to the contentions speculation, the Board correctly found that
while Mr. Mitman provided numerous examples of how climate effects could impact the results
of the North Anna PRA, he never addressed whether expected climate change effects near
North Anna were sufficient to actually affect North Anna accident risk.131 In addition, the Board
observed that neither the Petition itself nor Petitioners expert engages with the climate change
projections provided in Section 3.14.3.2 of the Draft EIS. Absent such an analysis, the
contention did not present a seriously different picture of the environmental impact, which the
127 LBP-24-07, slip op. at 21,
128 Id., citing 89 Fed. Reg at 962. The Board observed that the language in the Notice was consistent with the language in CLI-22-3, 95 NRC 40, 42 (2022) (After each site-specific review is complete, a new notice of opportunity for hearing limited to contentions based on new information in the site-specific environmental impact statement will be issued.). Id. at 21 n.109.
129 Id. at 21.
130 Id. at 22. The Board observed, in part, that during oral argument, the Petitioners established that the new information referenced in Petitioners scope statement was the Probabilistic Risk Assessment (PRA) that was used to evaluate accident risk; the Board found, however, that the referenced PRA was also outside the scope of this proceeding, as it was part of the SAMA analysis performed for North Annas initial license renewal and is not at this time new information. The actual new analysis in the Draft EIS was an evaluation finding that no new information required reevaluation of the SAMA. Id. Moreover, the Board found that the Petitioners could have challenged the new evaluation of new information relative to the SAMA analysis, contained in section F.3 of the Draft EIS,... but they did not. Id. at 22 n.117.
131 Id. at 22-23.
Commission has held is necessary to provide grounds for an admissible Contention.132 The
Board correctly concluded that while the Petitioners provided reasonable support for the
proposition that climate change effects can alter accident risk, they have provided no factual or
expert opinion support for the assertion that climate change effects will affect accident risk at
North Anna in a way that provides the requisite seriously different picture of environmental
impacts. As such, Petitioners have not established that their contention raises a genuine
dispute on a material issue.133
Finally, with respect to the lack of specificity, the Board conducted a detailed
examination of the Petition and Mr. Mitmans Declaration, and appropriately found that while the
Petition claims that Mr. Mitmans Declaration provided the contentions specific bases, it
generally does so without specifying exactly what part of the declaration provides the required information.134 The Board also observed that providing a myriad of related information in a
declaration in a manner requiring the Board to root through that information to satisfy admissibility criteria is not adequate.135 Further, the Board correctly found that although one
could, from the plethora of information provided by Mr. Mitman, retrieve and arrange
information that appears to meet admissibility requirements, it could not guarantee that the
result would be what the Petitioners had intended.136 Accordingly, the Board held that
132 Id. at 23.
133 Id.
134 Id.
135 Id.
136 Id. at 23-24. The Board provided examples of the problems it encountered in the Petition, including the lack of a concise statement of the alleged facts or expert opinions, in that the Petition lacked such details and the Mitman Declaration it relied upon consists of 37 dense pages of information and opinions. The Board found that the petition improperly leaves it to the Board to determine what parts support the petition and how they do so, and concluded that the Board had no duty to do so, Id. at 24-25, citing American Centrifuge Plant, CLI-06-10, 63 NRC at 457 (boards may not simply infer unarticulated bases of contentions. It is a contentions proponent, not the licensing board, that is responsible for formulating the contention and providing the necessary information to satisfy the basis requirement.).
Contention 3 failed to satisfy 10 C.F.R. § 2.309(f)(1)(ii), (iii), (v), and (vi).137
On appeal, the Petitioners assert that the Boards decision is erroneous, and they state
that they rely on and incorporate by reference Judge Gibsons dissenting opinion on Contention 3.138 First, they claim that Contention 3 is within scope, because it concerns new
information, which they describe as the new reactor-specific accident analysis in the Draft EIS
... prepared in response to CLI-22-02 and CLI-22-03.139 However, they do not identify what
analysis they are referring to, even though they acknowledge that the board faults Petitioners
for failing to identify that analysis, explain how it is new information in the DEIS, or how it differs from previously available information.140 Instead, they argue that any information in the
Draft EIS is new, if it pertains to Category 1 issues, and claim the environmental impacts of reactor accidents...are designated as Category 1 issues in NRC regulations.141 Contrary to
the Petitioners claims, SAMA analyses (the subject of Contention 3) are treated as Category 2
issues by the NRC, and were evaluated as such by the Staff.142
Moreover, while Contention 3 challenged the adequacy of the Staffs evaluation of
accident risk resulting from climate change, the North Anna SAMA analysis was conducted over 20 years ago, considered the contribution to risk from external hazards,143 and was addressed in
the Staffs evaluation of that analysis for initial license renewal.144 Indeed, the only new analysis
performed for severe accidents in the Draft EIS (and thus, the only issue within the scope of this
137 Id. at 25.
138 Pet. Br. at 24.
139 Id.
140 Id. at 24-25, citing LBP-24-07, slip op. at 21.
141 Pet. Br. at 25; emphasis added.
142 See, e.g., 10 C.F.R. §§ 51.53(c)(2), 51.53(c)(3)(ii)(L) & Appendix B, Table B-1, Postulated Accidents; Draft EIS, § 3.11.6.9 at 3-170, and Appendix F, passim.
143 See generally, 10 C.F.R. Part 50, Appendix A, General Design Criterion (GDC) 2.
144 See, e.g., Draft EIS Appendix F, at F F-8, discussing the Applicants 2001 SAMA analysis and the Staffs evaluation thereof for initial license renewal.
proceeding) was the Staffs review and evaluation of Dominions analysis of new and potentially
significant information regarding SAMAs and the staffs independent analyses as documented in
Appendix F of this [2023 Draft] EIS145 - which Contention 3 altogether failed to challenge.
Moreover, the Petitioners did not identify any specific assumption, input, methodology, or
analysis that inadequately addressed the effects of climate change on accident risk, either in the
2002 EIS for initial license renewal or in the Staffs DEIS for SLR - and they did not show that
the accident risk posed by climate change constitutes new information that exceeds the risk evaluated in the initial license renewal SAMA analysis.146 Thus, the contention did not provide
the requisite basis or identify a genuine dispute with the DEIS on a material issue, as required
by 10 C.F.R. § 2.309(f)(1)(v) -(vi) and the Board correctly rejected it.147
The Petitioners attempt to incorporat e by reference Administrative Judge Gibsons dissenting opinion 148 does not satisfy their obligation to show that the Boards decision was
erroneous.149 Moreover, they fail to note that the dissenting opinion (a) would have improperly
admitted an out-of-scope safety issue (the risk of local intense precipitation-induced flooding of the turbine building) in this Part 54 SLR proceeding,150 (b) did not recognize that the existing
SAMA analysis considered the contribution to risk posed by external hazards,151 and (c) failed to
recognize that the contention did not show that the risk posed by climate change exceeded the
145 Id.; cf. Draft EIS, Appendix F, at F-6; see id. at F F-27.
146 See, e.g., Mitman Declaration, Section C.2, at 15-17.
147 See Corrected Petition at 16. Contention 3 raised numerous claims concerning plant safety, none of which addressed the requirements in 10 C.F.R. Part 54. Further, their safety claims were outside the scope of the Federal Register Notice establishing the limited scope of this proceeding in accordance with CLI-22-03 (requiring contentions to be based on new information in the site-specific [EIS]) and, indeed, were outside the scope of any license renewal proceeding - notwithstanding the Petitioners apparent interpretation of Administrative Judge Gibsons dissenting opinion to the contrary. See Pet. Br. at. 27.
148 Pet. Br. at 24.
149 10 C.F.R. §§ 2.311(b); 2.341(b)(2)(ii)-(iii). Moreover, the Petitioners attempt to incorporate the dissenting opinion by reference would cause their appeal brief (currently 28 pages long) to swell to 51 pages - far in excess of the 30-page limit mandated by 10 C.F.R. § 2.341(c)(3), as applied in § 2.311(b).
150 See Dissenting Opinion, slip op. at 18-22.
151 See id., slip op. at 14, 16, 21.
accident risks considered in the SAMA analysis.152 Further, their reliance on the 2024 GAO
Report153 is misplaced, because the GAO Report focused on the safety impacts posed by
climate change,154 did not address SAMA evaluations or mitigating factors or measures,155 and
did not provide a reason to believe the Draft EIS was deficient.156 For all of these reasons, the
Boards ruling that Contention 3 is inadmissible should be affirmed.
CONCLUSION
For the reasons set forth above, the Staff submits that the Board correctly denied the
Petitioners petition to intervene, for failing to proffer at least one admissible contention. The
Petitioners appeal from the Boards decision in LBP-24-07 should therefore be denied.
Respectfully submitted,
/Signed (electronically) by/
Sherwin E. Turk Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O14-A44 Washington, DC 20555 Telephone: (301) 287-9194 E-mail: Sherwin.Turk@nrc.gov
Dated at Rockville, Maryland this 30th day of August 2024
152 Id. at 3-4, 13-16.
153 Pet. Br. at 12-15 and 26, citing GAO-106326, Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change (April 2024) (GAO Report).
154 See, e.g., Amended Contention at 6 (GAO-106326 describes this concern in terms of reactor safety rather than environmental impacts)..
155 The GAO Report expressly states multiple times that [t]his analysis does not account for any protective measures plants may have taken to mitigate the risk of selected natural hazards. GAO Report at 17, 20, 22, 24.
156 Nor is there any merit in the Petitioners claim that, in ruling that Contention 3 lacks specificity, the Board erroneously considered Mr. Mitmans expertise or the substance of his views. Pet. Br. at 28-29.
See discussion supra, at 22-25.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION
In the Matter of
VIRGINIA ELECTRIC AND POWER Docket No. Docket Nos. 50-338-SLR-2 COMPANY 50-339-SLR-2
(North Anna Power Station, Units 1 and 2)
Certificate of Service
Pursuant to 10 C.F.R. §2.305, I hereby certify that copies of the foregoing NRC STAFF BRIEF
IN RESPONSE TO THE APPEAL FILED BY BEYOND NUCLEAR INC. AND SIERRA CLUB,
INC. FROM THE ATOMIC SAFETY AND LICENSING BOARDS DECISION IN LBP-24-07,
dated August 30, 2024, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 30th day of August, 2024.
/Signed (electronically) by/
Sherwin E. Turk Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: 301-287-9194 E-mail: Sherwin.Turk@nrc.gov
Dated at Rockville, MD this 30th day of August 2024