ML24243A163

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Applicants Answer and Brief in Opposition to the Appeal of LBP-24-07 Filed by Beyond Nuclear and the Sierra Club
ML24243A163
Person / Time
Site: North Anna  Dominion icon.png
Issue date: 08/30/2024
From: Bessette P, Blair W, Clausen S, Lighty R
Dominion Energy Services, Morgan, Morgan, Lewis & Bockius, LLP, Virginia Electric & Power Co (VEPCO)
To:
NRC/OCM
SECY RAS
References
RAS 57094, 50-338-SLR-2, 50-339-SLR-2, LBP-24-07
Download: ML24243A163 (0)
v • d • e


Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the matter of:

VIRGINIA ELECTRIC AND POWER COMPANY and OLD DOMINION ELECTRIC COOPERATIVE (North Anna Power Station, Units 1 and 2)

Docket Nos. 50-338-SLR-2 and 50-339-SLR-2 August 30, 2024 APPLICANTS ANSWER AND BRIEF IN OPPOSITION TO THE APPEAL OF LBP-24-07 FILED BY BEYOND NUCLEAR AND THE SIERRA CLUB RYAN K. LIGHTY, ESQ.

PAUL M. BESSETTE, ESQ.

SCOTT D. CLAUSEN, ESQ.

MORGAN, LEWIS & BOCKIUS LLP Counsel for Virginia Electric and Power Company

ii TABLE OF CONTENTS I.

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

BACKGROUND & LEGAL STANDARDS.................................................................... 1 A.

The SLRA & Procedural History........................................................................... 1

1.

The SLRA & Procedural History Through February 2022....................... 1

2.

Procedural History After February 2022................................................... 2

3.

Oral Argument and the Boards Decision.................................................. 5 B.

Legal & Regulatory Standards............................................................................... 7

1.

Hearing Requests & Contention Admissibility.......................................... 7

2.

Standard of Review on Appeal.................................................................. 8 III.

THE COMMISSION SHOULD AFFIRM LBP-24-07 BECAUSE PETITIONERS IDENTIFY NO ERROR OF LAW OR ABUSE OF DISCRETION.................................................................................................................. 10 A.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Ruling on Proposed Contention 1........................................................................ 10

1.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Decision That Contention 1 Is Inadmissible as a Contention of Omission........................................................................... 11

2.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Decision That Contention 1 Is Vague and Unparticularized...... 13

3.

Petitioners Identify No Error of Law or Abuse of Discretion in The Boards Decision that Contention 1 Is Inadmissible as a Contention of Adequacy............................................................................................. 15 B.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Ruling on Proposed Contention 2........................................................................ 17

1.

Petitioners Identify No Error of Law or Abuse of Discretion in The Boards Decision That Contention 2 Lacked the Requisite Particularity.............................................................................................. 18

2.

Petitioners Identify No Error of Law or Abuse of Discretion in The Boards Decision That Contention 2 Fails to Demonstrate a Genuine Dispute....................................................................................... 21 C.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Ruling on Proposed Contention 3........................................................................ 23

1.

Petitioners Incorporation by Reference of Judge Gibsons Dissent Is Not a Valid Appeal.............................................................................. 24

2.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Decision that Contention 3 Is Based on Speculation................. 25

iii

3.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Decision That Contention 3 Lacks Specificity........................... 26

4.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Decision That Petitioners Failed to Demonstrate that Contention 3 Was Within the Scope of This Proceeding........................ 27 IV.

CONCLUSION................................................................................................................ 29

iv TABLE OF AUTHORITIES NRC Cases AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 NRC 235 (2009)............................................................................................... 8, 9 Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Nebraska),

CLI-09-9, 69 NRC 331 (2009)................................................................................................... 8 Crow Butte Res., Inc. (Marsland Expansion Area),

CLI-14-2, 79 NRC 11 (2014)..................................................................................................... 9 Crow Butte Res., Inc. (North Trend Expansion Project),

CLI-09-12, 69 NRC 535 (2009)................................................................................................. 8 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349 (2001)................................................................................................. 8 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-04-36, 60 NRC 631 (2004)................................................................................................. 9 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3),

CLI-99-11, 49 NRC 328 (1999)................................................................................................. 8 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3),

CLI-15-6, 81 NRC 340 (2015)........................................................................................... 16, 17 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant and Big Rock Point Site),

CLI-22-8, 96 NRC 1 (2008)..................................................................................................... 18 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant),

CLI-15-23, 82 NRC 321 (2015)........................................................................................... 8, 28 Entergy Nuclear Operations., Inc. (Indian Point, Unit 2),

CLI-16-5, 83 NRC 131 (2016)................................................................................................. 15 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4)

CLI-91-13, 34 NRC 185 (1991)................................................................................................. 9 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

ALAB-952, 33 NRC 521 (1991)................................................................................................ 9 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

CLI-01-17, 54 NRC 3 (2001)............................................................................................. 16, 17 Gen. Pub. Utils. Nuclear Corp. (Three Mile Island Nuclear Station, Unit 1),

ALAB-881, 26 NRC 465 (1987).............................................................................................. 29 Hydro Res., Inc. (Crownpoint, NM),

CLI-06-1, 63 NRC 1 (2006)....................................................................................................... 9 Intl Uranium (USA) Corp. (White Mesa Uranium Mill),

CLI-01-21, 54 NRC 247 (2001)............................................................................................... 21

v Interim Storage Partners, LLC (WCS Consol. Interim Storage Facility),

CLI-20-15, 92 NRC 491 (2020)................................................................................................. 9 Kan. City Gas & Elec. Co. (Wolf Creek Generating Station, Unit No. 1),

ALAB-279, 1 NRC 559 (1975).......................................................................................... 20, 25 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-11-9, 74 NRC 233 (2011)................................................................................................... 8 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-12-7, 75 NRC 379 (2012)................................................................................................... 8 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),

CLI-99-10, 49 NRC 318 (1999)................................................................................................. 8 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 & 3),

CLI-10-9, 75 NRC 245 (2010)................................................................................................. 21 Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 & 2),

CLI-10-2, 71 NRC 27 (2010)..................................................................................................... 8 Pub. Serv. Co. of Ind., Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2),

ALAB-461, 7 NRC 313 (1978)................................................................................................ 21 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2),

CLI-89-3, 29 NRC 234 (1989)..................................................................................... 18, 20, 22 S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3),

CLI-10-1, 71 NRC 1 (2010)..................................................................................................... 23 Shieldalloy Metallurgical Corp. (Newfield, N.J. Facility),

CLI-07-20, 65 NRC 499 (2007)................................................................................................. 9 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 & 4),

CLI-11-8, 74 NRC 214 (2011)................................................................................................. 24 Tenn. Valley Auth. (Watts Bar Nuclear Plant, Unit 1 et al.),

CLI-04-24, 60 NRC 160 (2004)............................................................................................... 29 Tex. Util. Elec. Co. (Comanche Peak Steam Electric Station, Unit 1),

ALAB-868, 25 NRC 912 (1987).............................................................................................. 24 U.S. Dept. of Energy (High-Level Waste Repository),

LBP-09-06, 69 NRC 367 (2006)............................................................................................... 19 USEC Inc. (Am. Centrifuge Plant),

CLI-06-10, 63 NRC 451 (2006)..................................................................................... 9, 21, 23 Va. Elec. & Power Co. (North Anna Power Station, Units 1 & 2),

LBP-21-4, 93 NRC 179 (2021)................................................................................................. 17 Va. Elec. & Power Co. (North Anna Power Station, Units 1 & 2),

LBP-24-07, 100 NRC __ (July 10, 2024).......................................................................... passim

vi ASLB Orders Memorandum and Order (Granting Joint Intervenors Motion to Amend Contention 3)

(May 7, 2024)............................................................................................................................. 4 Memorandum and Order (Granting Motion for Extension of Time and Postponing Oral Argument) (May 14, 2024)......................................................................................................... 4 Memorandum and Order (Initial Prehearing Order (amended)) (Apr. 15, 2024)........................... 3 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)................................................................................................ 5 Acts of Congress Atomic Energy Act of 1954, Pub. L.83-703, 69 Stat. 919 (codified as amended at 42 U.S.C. ch. 14)............................................................................... 16 National Environmental Policy Act of 1969, Pub. L.91-190, 83 Stat. 852 (codified as amended at 42 U.S.C. § 4321 et seq.)....................................................... 16, 19, 20 Regulations 10 C.F.R. § 2.309................................................................................................................... passim 10 C.F.R. § 2.311.................................................................................................................... 1, 8, 9 10 C.F.R. § 51.71................................................................................................................ 7, 11, 15 10 C.F.R. § 54.3............................................................................................................................ 16 10 C.F.R. § 54.4............................................................................................................................ 16 10 C.F.R. Part 51............................................................................................................. 4, 5, 19, 20 Federal Register Documents Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182 (Jan. 14, 2004)............................................................................................. 8 Virginia Electric and Power Company; North Anna Power Station, Units 1 and 2; Draft Environmental Impact Statement; Request for Comment; Public Comment Meetings; Opportunity to Request a Hearing and Petition for Leave to Intervene, 89 Fed. Reg. 960 (Jan. 8, 2023).................................................................................................. 2

vii Other Authorities Government Accountability Office, GAO-24-106326, Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change (Apr.

2024)........................................................................................................................................... 3 Mem. from C. Safford, Secretary, to R. Furstenau, Acting Executive Director for Operations, SECY-24-0017 - Final Rule: Renewing Nuclear Power Plant Operating Licenses-Environmental Review (RIN 3150-AK32; NRC-2018-0296) (May 16, 2024).......... 4 NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013)....................................................................................................... 17 NUREG-1437, Rev. 2, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (Aug. 2024).................................................................................................. 5, 17 NUREG-1437, Supp. 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)............................................................................. passim Transcript of North Anna Power Station, Units 1 and 2, Hearing, June 3, 2024 (June 5, 2024)........................................................................................................................................... 5

I.

INTRODUCTION Pursuant to 10 C.F.R. § 2.311(b), Virginia Electric and Power Company, on behalf of itself and Old Dominion Electric Cooperative (collectively, Applicants) submits this Brief in Opposition to the Appeal of LBP-24-07 (Appeal), filed by Beyond Nuclear and the Sierra Club (Petitioners).1 In LBP-24-07,2 the Atomic Safety and Licensing Board (ASLB or Board) denied Petitioners March 28, 2024 (as corrected on April 8, 2024, and amended on April 11, 2024) hearing request and petition to intervene in this proceeding (Petition).3 As explained more fully below, the Commission should affirm LBP-23-07 in its entirety because Petitioners identify no reason to disturb the Boards well-reasoned decision.

II.

BACKGROUND & LEGAL STANDARDS A.

The SLRA & Procedural History

1.

The SLRA & Procedural History Through February 2022 The background on Applicants subsequent license renewal (SLR) application and the procedural history through the Commissions two decisions (CLI-22-2 and CLI-22-3) in February 2022 is provided in Applicants Answer to the Hearing Request and Petition to Intervene and Motion for Leave to Amend Contention 3 Filed by Beyond Nuclear and Sierra Club (Answer), which Applicants incorporate into this brief by reference.4 1

Notice of Appeal and Brief on Appeal of LBP-24-07 (August 5, 2024) (Package No. ML24218A285) (Notice of Appeal (ML24218A286); Brief (ML24218A287)) (Appeal). References and citations to the Appeal are to the Brief.

2 Va. Elec. & Power Co. (North Anna Power Station, Units 1 & 2), LBP-24-07, 100 NRC __ (July 10, 2024)

(slip op.) (ML24192A320).

3

[Corrected] Hearing Request and Petitioner to Intervene by Beyond Nuclear and the Sierra Club (Apr. 8, 2024)

(ML24099A146) (Petition).

4 Applicants Answer to the Hearing Request and Petition to Intervene and Motion for Leave to Amend Contention 3 Filed by Beyond Nuclear and Sierra Club at 7-10 (May 6, 2024) (ML24127A220) (Answer).

2

2.

Procedural History After February 2022 Applicants Supplement Their ER: Consistent with the option provided by the Commission in CLI-22-3, Applicants filed a supplemental Environmental Report on September 28, 2022.5 The NRC then issued a draft Site-Specific Environmental Impact Statement in December 2023 (2023 DSEIS).6 The 2023 DSEIS (1) addresses, on a site-specific basis, the issues that were previously treated as generic Category 1 issues in the 2021 DSEIS, and (2) updates and revises the evaluation of site-specific Category 2 issues in the 2021 DSEIS.7 The 2023 DSEIS also analyzed the new and revised environmental issues identified by the NRC staff during its update of the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS).8 New Hearing Opportunity Notice & Petitioners Hearing Request: After publication of the 2023 DSEIS, the NRC published a new hearing opportunity notice in the Federal Register.9 Petitioners filed their Petition on March 28, 2024, to which they filed a corrected version on April 8, 2024. Petitioners proposed three contentions. Contention 1 alleged the 2023 DSEIS failed to address the environmental significance of the 2011 Mineral earthquake.10 Contention 2 alleged the 2023 DSEIS did not contain a complete or adequately rigorous evaluation of accident 5

Letter from J. Holloway, Virginia Electric and Power Co. to NRC, 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) (Supp. ER).

6 See generally NUREG-1437, Supp. 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)

(2023 DSEIS).

7 Id. at iv.

8 See id., App. G.

9 Virginia Electric and Power Company; North Anna Power Station, Units 1 and 2; Draft Environmental Impact Statement; Request for Comment; Public Comment Meetings; Opportunity to Request a Hearing and Petition for Leave to Intervene, 89 Fed. Reg. 960 (Jan. 8, 2023).

10 Petition at 9-12.

3 risks.11 Contention 3 alleged the 2023 DSEIS failed to address the effects of climate change on accident risk.12 Petitioners also submitted a declaration from Jeffrey Mitman in support of their Petition.13 Petitioners Move to Amend Contention 3: On April 11, 2024, Petitioners moved to amend Contention 3 to cite a newly issued report by the U.S. Government Accountability Office (GAO).14 The GAOs report, entitled Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change (GAO Report), examined how climate change is expected to affect nuclear power plants by compiling already existing government data.15 Petitioners motion also asked to amend the basis statement for Contention 3 to include several observations and conclusions from the GAO Report that they believed supported Contention 3.16 The Board set a briefing schedule on Petitioners motion to amend that extended Applicants and the NRC staffs time to answer.17 Applicants and NRC Staffs Answers: Applicants filed their answer on May 6, 2024, and opposed the admission of all three contentions and also opposed the motion to amend Contention 3.18 Applicants argued that all three contentions were exceedingly vague, lacked adequate support, and failed to demonstrate a genuine dispute on a material issue of law or fact.19 Applicants also argued that the contentions were outside the scope of this proceeding because 11 Id. at 13-15.

12 Id. at 16-18.

13 See id., Attach. 1 (Mitman Decl.).

14 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) (ML24102A199) (Motion to Amend).

15 Government Accountability Office, GAO-24-106326, Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change (Apr. 2024) (GAO Report).

16 Motion to Amend at 3.

17 Memorandum and Order (Initial Prehearing Order (amended)) (Apr. 15, 2024) (unpublished) (ML24107A696).

18 See generally Answer.

19 See id. at 14-42.

4 they all challenged various aspects of North Annas current licensing basis (CLB).20 As to Petitioners motion to amend, Applicants argued it should be denied because Petitioners did not satisfy the criteria for late-filed contention amendments.21 The NRC staff also filed its Answer on May 6, 2024, and argued that the three contentions did not challenge new information in the 2023 DSEIS and failed to satisfy all contention admissibility criteria.22 Although the NRC staff did not directly oppose Petitioners motion to amend Contention 3, the NRC staff argued that even with the amendment, Petitioners failed to provide sufficient support for the contention.23 The Board granted Petitioners motion to amend Contention 3 on May 7, 2024.24 After requesting and receiving an extension of time to file their Reply,25 Petitioners filed their Reply in further support of their Petition on May 20, 2024.26 The Commission Approves the GEIS Update and Part 51 Rulemaking: On May 16, 2024, the Commission approved a final rule to update Part 51 to apply to both initial and one term of subsequent license renewal.27 This final rule was supported by the Revision 2 of the 20 See id.

21 See id. at 42-49.

22 NRC Staff Answer in Opposition to Petition for Leave to Intervene Filed by Beyond Nuclear Inc., and Sierra Club, Inc. (May 6, 2024) (ML24127A233) (NRC Answer).

23 Id. at 40.

24 Memorandum and Order (Granting Joint Intervenors Motion to Amend Contention 3) (May 7, 2024)

(ML24128A209).

25 Unopposed Emergency Motion By Beyond Nuclear And The Sierra Club For Extension Of Time To Reply To Oppositions To Their Hearing Request And Petition To Intervene And Request For Postponement Of Oral Argument (May 13, 2024) (ML24134A194); Memorandum and Order (Granting Motion for Extension of Time and Postponing Oral Argument) (May 14, 2024) (ML24135A262).

26 Reply By Beyond Nuclear and Sierra Club To Oppositions To Their Hearing Request and Petition To Intervene (May 20, 2024) (ML24141A287).

27 Mem. from C. Safford, Secretary, to R. Furstenau, Acting Executive Director for Operations, SECY-24-0017 -

Final Rule: Renewing Nuclear Power Plant Operating Licenses-Environmental Review (RIN 3150-AK32; NRC-2018-0296) (May 16, 2024) (ML24137A164).

5 GEIS.28 After the Commissions approval of the final rule, the Board ordered to parties to address the effect of the final rule and updated GEIS, if any, on this proceeding.29 Petitioners,30 Applicants,31 and the NRC staff,32 all agreed that the final rule and revised GEIS had no impact on this proceeding.

3.

Oral Argument and the Boards Decision The Board held oral arguments on June 3, 2024.33 During oral arguments, the Board asked all parties about the effect of the Part 51 final rule on this proceeding. All parties agreed that the final rule had no impact on the proceeding.34 On July 10, 2024, the Board issued its decision denying Petitioners hearing request and terminating the proceeding.35 The Board Unanimously Found Contention 1 to be Inadmissible: The Board analyzed Contention 1 as both a contention of omission and a contention of adequacy. As a contention of omission, the Board found it to be inadmissible because the 2023 DSEIS discussed the 2011 Mineral earthquake and the extensive regulatory review that followed it.36 The Board also found Contention 1 to be inadmissible because it was vague and unparticularized, and Petitioners failed to cite to any requirement that the [2023 DSEIS] include the information they 28 See id.; see also NUREG-1437, Rev. 2, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (Aug. 2024) (Vol. 1, ML24086A526) (2024 GEIS).

29 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)

(ML24142A259).

30 Beyond Nuclears And The Sierra Clubs Table Of Authorities In Response To Board Order Of May 21, 2024 (May 29, 2024) (ML24150A190).

31 Applicants Tables of Legal and Factual Authorities in Response to the Boards May 21, 2024 Memorandum and Order (May 29, 2024) (ML24150A328).

32 NRC Staff Response To The Atomic Safety And Licensing Boards Memorandum And Order Of May 21, 2024 (May 29, 2024) (ML24150A384).

33 Transcript of North Anna Power Station, Units 1 and 2, Hearing, June 3, 2024 (June 5, 2024) (ML24157A311)

(Tr.).

34 Id. at 21-50.

35 See N. Anna, LBP-24-07, 100 NRC __.

36 Id. at __ (slip op. at 14).

6 seek.37 As a contention of adequacy, the Board found it to be inadmissible because it raise[d]

safety instead of environmental issues.38 The Board also noted that the prior licensing board rejected a nearly identical contention in 2021, and Petitioners offered no new evidence or support for the contention in this proceeding.39 The Board Unanimously Found Contention 2 to be Inadmissible: The Board found Contention 2 to be inadmissible for multiple, independent reasons. First, Petitioners failed to state the issue with particularity, and improperly relied on the wholesale incorporation of Mr. Mitmans expert declaration.40 As the Board observed, not only does the Commission prohibit such wholesale incorporation of documents but Petitioners failed to explain how the incorporated declaration satisfied the contention admissibility criteria.41 Second, the Board found that the statements pulled from the declaration and listed in the Petition as the statement of contention did not show a genuine dispute existed with the 2023 DSEIS on a material issue of law or fact.42 The Board observed that the expert declaration fail[ed] to articulate any reason why the [2023 DSEIS] falls short of any legal or regulatory obligations.43 A Majority of the Board Found Contention 3 to be Inadmissible: The Board found Contention 3 to be inadmissible because it is out of scope, based on speculation, and lacks the requisite specificity for an admissible contention.44 As to scope, the Board found that Petitioners failed to identify the new information in the 2023 DSEIS the contention sought to 37 Id.

38 Id. at __ (slip op. at 15).

39 Id.

40 Id. at __ (slip op. at 16).

41 Id.

42 Id.

43 Id. at __ (slip op. at 17).

44 Id. at __ (slip op. at 21).

7 challenge.45 As to speculation, the Board found that Petitioners failed to show that expected climate change effects would be sufficient to actually affect accident risk at North Anna, and Petitioners failed to engage with climate change projections in the 2023 DSEIS.46 As to the lack of specificity, the Board found that the contention impermissibly relied on the wholesale incorporation of Mr. Mitmans expert declaration.47 Judge Gibson filed a dissenting opinion on the Boards rejection of Contention 3.48 B.

Legal & Regulatory Standards

1.

Hearing Requests & Contention Admissibility Pursuant to 10 C.F.R. § 2.309(a)(1), a hearing request may be granted only if the presiding officer determines that the petitioner has established standing and has proposed at least one admissible contention that meets all of the requirements of 10 C.F.R. § 2.309(f)(1).

Thereunder, to be admissible, a proposed contention must: (i) provide a specific statement of the issue of law or fact to be raised or controverted; (ii) provide a brief explanation of the basis for the contention; (iii) demonstrate that the issue raised is within the scope of the proceeding; (iv) demonstrate that the issue raised is material to the findings the NRC must make to support the action involved in the proceeding; (v) provide a concise statement of the alleged facts or expert opinions, referring to the specific sources and documents that support the petitioners position and on which the petitioner intends to rely; and (vi) provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact.

45 Id. at __ (slip op. at 21-22).

46 Id. at __ (slip op. at 22-23).

47 Id. at __ (slip op. at 23-25).

48 Id. (J. Gibson, concurring in part, and dissenting in part) (Gibson Dissent).

8 Failure to satisfy any one of these six admissibility criteria requires that a proposed contention be rejected.49 These criteria are strict by design.50 The rules were toughened...

in 1989 because in prior years licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation.51 The petitioner alone bears the affirmative burden to satisfy these criteria.52

2.

Standard of Review on Appeal NRC regulations at 10 C.F.R. § 2.311(c) permit petitioners to appeal orders denying hearing requests and petitions to intervene, as of right, on the sole question of whether the request and/or petition should have been granted.53 The Commission generally defers to Board decisions on contention admissibility, but will reverse a Boards ruling if there has been an error of law or an abuse of discretion.54 The Commission has reversed Board decisions admitting speculative contentions because entertain[ing] contentions grounded on little more than guesswork would waste the scarce adjudicatory resources of all involved.55 49 See Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182, 2,221 (Jan. 14, 2004); see also Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

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

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

52 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 325, 329 (2015)

(The proponent of a contention is responsible for formulating the contention and providing the necessary support to satisfy the contention admissibility requirements and it is Petitioners responsibility, not the Boards, to formulate contentions and to provide the necessary information to satisfy the basis requirement for admission) (citation omitted).

53 10 C.F.R. § 2.311(c).

54 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), CLI-12-7, 75 NRC 379, 386 (2012) (citing Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 & 2), CLI-10-2, 71 NRC 27, 29 (2010)); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 259 (2009); Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-11-9, 74 NRC 233, 237 (2011).

55 Crow Butte Res., Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 552 (2009); see also Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Nebraska), CLI-09-9, 69 NRC 331, 364 (2009) (speculative arguments do not form the basis for a litigable contention).

9 The Commission affords licensing board rulings on contention admissibility substantial deference,56 absent an error of law or abuse of discretion.57 Thus, when a licensing board has reviewed the record in detail, the Commission generally is disinclined to upset its findings, particularly on matters involving fact-specific issues or consideration of expert affidavits or submissions.58 The Commission reviews questions of law de novo, and will reverse a licensing boards legal rulings if they are a departure from[,] or contrary to[,] established law.59 To prevail on an abuse of discretion claim, the appellant must persuade the Commission that a reasonable mind could reach no other result.60 An appeal that does not point to an error of law or an abuse of discretion, but simply restates the petitioners arguments, is not a valid appeal.61 When a licensing board holds that a contention is inadmissible for failing to meet more than one of the admissibility requirements in 10 C.F.R. § 2.309(f)(1)(i)-(vi), a petitioners failure to acknowledge and rebut each ground for the Boards ruling is sufficient justification for the Commission to reject the petitioners appeal.62 As the Commission has made clear, it will not consider new arguments raised for the first time on appeal that the Board never had an opportunity to consider.63 56 Crow Butte Res., Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 26 (2014).

57 Interim Storage Partners, LLC (WCS Consol. Interim Storage Facility), CLI-20-15, 92 NRC 491, 494 (2020)

(citing Crow Butte, CLI-14-2, 79 NRC at 26).

58 Hydro Res., Inc. (Crownpoint, NM), CLI-06-1, 63 NRC 1, 2 (2006).

59 Oyster Creek, CLI-09-7, 69 NRC at 259 (citation omitted).

60 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), ALAB-952, 33 NRC 521, 532 (1991), affd, CLI-91-13, 34 NRC 185 (1991) (internal citation omitted).

61 Shieldalloy Metallurgical Corp. (Newfield, N.J. Facility), CLI-07-20, 65 NRC 499, 503-05 (2007).

62 See, e.g., Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004).

63 USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006) (quotations and citation omitted).

The purpose of an appeal is to point out errors made in the Boards decision, not to present arguments and evidence never provided to the Board. Id. (quotations and citation omitted).

10 III.

THE COMMISSION SHOULD AFFIRM LBP-24-07 BECAUSE PETITIONERS IDENTIFY NO ERROR OF LAW OR ABUSE OF DISCRETION Petitioners argue the Board erred by finding all three contentions inadmissible. As to Contention 1, Petitioners argue the Board erred and failed to take a hard look at the seismic issue identified in the contention. As to Contention 2, Petitioners argue that the Board exalted form over substance by rejecting the contention because it relied on and incorporated by reference Mr. Mitmans declaration. And as to Contention 3, Petitioners incorporate by reference Judge Gibsons dissenting opinion and attempt to refute the Boards conclusions on the admissibility of the contention. As discussed below, Petitioners fail to identify an error of law or abuse of discretion in any portion of the Boards decision and therefore, the Commission should uphold LBP-24-07.

A.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Ruling on Proposed Contention 1 In Contention 1 (2011 Mineral Earthquake), Petitioners alleged that the 2023 DSEIS fails to satisfy NEPA or NRC implementing regulations at 10 C.F.R. § 51.71 because it does not address the environmental significance of the 2011 Mineral Earthquake.64 The Board analyzed Contention 1 as both a contention of omission and a contention of adequacy and found the contention was inadmissible for several reasons. On appeal, Petitioners largely repeat the arguments from their Petition and argue that the Board failed to take a hard look at their claims. But that is not enough. To raise a valid appeal, an appellant must show that the Boards decision is impacted by an error of law or abuse of discretion. Petitioners do neither here, and thus present no basis to overturn the Boards decision.

64 Petition at 9.

11

1.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Decision That Contention 1 Is Inadmissible as a Contention of Omission In their Petition, Petitioners claimed that the 2023 DSEIS does not address the environmental significance of the 2011 Mineral Earthquake.65 The Board reasonably read this allegation as a contention of omission.66 However, the Board found this claim inadmissible because Petitioners fundamental assertionthat the 2023 DSEIS omitted a discussion of the 2011 Mineral earthquakeis simply untrue. The Board correctly noted that Section 3.4.4 of the 2023 DSEIS discuss[ed] the 2011 Mineral earthquake and the extensive regulatory review that followed it.67 The Board also highlighted the indisputable fact that the 2023 DSEIS discussed the probability-weighted consequences of a postulated severe accident and confirmed that the probabilistic modeling expressly takes into account the 2011 Mineral earthquake.68 Because the 2023 DSEIS contained the allegedly missing information, the Board concluded that, as a contention of omission, Petitioners failed to show the existence of a genuine dispute with the 2023 DSEIS.69 On appeal, Petitioners do not refute the Boards conclusion that the 2023 DSEIS discusses the 2011 Mineral earthquake.70 Instead, Petitioners argue that the Commission should reverse the Boards ruling because the Board failed to take a hard look at the salient problems raised by the contention.71 The salient problems, according to Petitioners, are two-fold. But, neither argument exposes any error of law or abuse of discretion.

65 Id. at 9-10 (emphasis added).

66 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 14).

67 Id.

68 Id. (emphasis added).

69 Id.

70 Appeal at 16-20.

71 Id. at 18.

12 First, Petitioners argue that the Board overlooked their claim that the 2023 DSEIS did not address why it could assume North Anna would continue to operate within its design basis when it had already experienced a beyond-design-basis seismic event.72 However, this argument is counterfactual. The relevant discussion is found in Section 3.4.4 of the 2023 DSEIS, which the Board plainly cited. Therein, the NRC staff noted that, when the 2011 Mineral earthquake occurred, North Anna was operating at full power and the earthquake caused the plants safety features to respond as designed.73 Section 3.4.4 states that, after the earthquake, Dominion performed inspections, testing, and analyses to verify that earthquake caused no functional damage and that the plant could operate without undue risk to the health of the safety and public.74 Section 3.4.4 also states that NRC inspection teams performed independent technical evaluations and concluded that safety-related structures, systems, and components had not been adversely affected by the earthquake.75 Section 3.4.4 mentions the long-term seismic margin management plan implemented to further ensure that the nuclear power plant can continue to operate safety and without undue risk in the event of another earthquake, and the plan requires that the design change process and qualification of new and replacement equipment at North Anna account for the Mineral earthquake.76 In other words, Section 3.4.4 summarizes the NRC staffs conclusion, which was reached prior to restarting the reactors, that North Anna would continue to operate within its design basis following the 2011 Mineral earthquake. Petitioners appeal exposes no defectand certainly no error of law or abuse of 72 Id. at 17-18.

73 2023 DSEIS at 3-24.

74 Id.

75 Id.

76 Id. at 3-24 to 3-25.

13 discretionin the Boards manifestly correct factual finding that this discussion was, in fact, presented in the 2023 DSEIS.

Second, Petitioners concede on appeal that the Severe Accidents analysis in the 2023 DSEIS expressly accounted for the 2011 Mineral earthquake, but they complain that the analysis was exclusively probabilistic.77 It is unclear how this relates to the Boards analysis of Petitioners claim of omission. Moreover, Petitioners complaint about the type of analysis identified by the Board does not refute the Boards plainly correct observation that an analysis was, in fact, presented. Thus, this argument exposes no defect in the Boards ruling as to Petitioners claim that an analysis was entirely omitted.

In sum, the 2023 DSEIS contains the allegedly missing information. Thus, the Boards conclusion that Contention 1 fails as a contention of omission is correct and Petitioners provide no reason for the Commission to disturb this conclusion on appeal.

2.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Decision That Contention 1 Is Vague and Unparticularized The Board also found Contention 1 to be vague and unparticularized because Petitioners cited no requirement that the 2023 DSEIS address the information they seek, specifically: (1) the fundamental difference between a finding of no significant or small impact that is based on a deterministic analysis and a finding of no significant impact that is based on a probabilistic analysis or (2) an explanation of the purported significant disparity in the results of the Unit 3 seismic risk analysis compared with the same analysis for Units 1 and 2.78 Petitioners argue on appeal that the Board erred in this finding because it again failed to take a 77 Appeal at 17.

78 N. Anna., LBP-24-07, 100 NRC at __ (slip op. at 14-15).

14 hard look at the claims in Contention 1.79 However, Petitioners do not refute the Boards analysis and expose no error of law or abuse of discretion in its conclusion.

Petitioners appeal fails to address the pivotal omission the Board identified in its decision. In the proceedings before the Board, Petitioners neither cited any prescriptive requirement for the 2023 DSEIS to include the allegedly missing information nor articulated any legal theory for why some non-prescriptive requirement imposed such an obligation.80 And the Board correctly highlighted this failure in its ruling, finding that Petitioners had failed to carry their burden to plead a genuine dispute with the specificity required for an admissible contention.

On appeal, Petitioners do not refute the Boards plainly correct observation that they failed to cite some allegedly unmet requirement (and they still do not identify any such requirement on appeal).

Instead, Petitioners merely claim that Contention 1 identifies and cites the location in the

[2023 DSEIS] of the incorrect assumption on which the [2023 DSEIS] relies and explains the environmental significance of the incorrect assumption and cites pages 9-11 of their Petition.81 But those pages do not cite to a single page or section in the 2023 DSEIS. And beyond a passing reference to the NRCs NEPA implementing regulation in 10 C.F.R. § 51.71, Petitioners cite no requirement that the 2023 DSEIS address the difference between a deterministic assumption and probabilistic analyses. Nor could they because no such requirement exists. Petitioners simply argue that Contention 1 makes explicit demands for this information.82 It is all well and good that Petitioners make such demands. But, as the Board correctly observed, Petitioners 79 Appeal at 18.

80 See id.

81 Id. (citing Petition at 9-11).

82 Id. (emphasis in original).

15 identified no legal requirement that this information be provided.83 Thus, on appeal, Petitioners do not refute the Boards logic and expose no defect in its ruling.

To successfully appeal the Boards decision, Petitioners must do more than express disagreement with the Boards ruling and hope for a different result from the Commission.

Petitioners must identify an error of law or abuse of discretion by the Board. And when the Board identifies a failure to satisfy a contention admissibility factor, the Petitioner must explain why that admissibility factor was satisfied.84 Petitioners failed to do so and thus provide no grounds to disturb the Boards ruling that Contention 1 lacked the requisite specificity.

3.

Petitioners Identify No Error of Law or Abuse of Discretion in The Boards Decision that Contention 1 Is Inadmissible as a Contention of Adequacy Petitioners also argue that the Board incorrectly found that Contention 1, if considered a contention of adequacy, is inadmissible because it raised safety instead of environmental concerns.85 According to Petitioners, this conclusion was wrong for two reasons. First, the safety-based requirements in the Atomic Energy Act (AEA) and the procedural requirements in the National Environmental Policy Act (NEPA) overlap.86 Second, the 2023 DSEIS renders safety issues relevant by incorporating a safety determination into its environmental analysis of accident risks.87 Thus, according to Petitioners, the NRC (and by extension the Board) is trying to have it both ways: relying for NEPA purposes on a safety determination and 83 See N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 14-15).

84 See Entergy Nuclear Operations., Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 142 (2016) (Petitioners argument that a seismic analysis fail[ed] to consider the most up-to-date information misconstrues our contention admissibility standards and on appeal, the petitioner failed to identify any error of law or abuse of discretion with respect to the Boards ruling on the updated seismic studies.).

85 Appeal at 19.

86 Id.

87 Id.

16 then declaring the continued validity of that determination out-of-scope when it is challenged.88 Petitioners arguments misconstrue both the Boards decision and the NRCs license renewal and environmental regulations, however, and do not provide a basis for a valid appeal.

The Boards decision distinguished between ongoing seismic safety issues and the environmental impacts from a beyond-design-basis accident. Seismic safety, as the Board observed, is addressed on an ongoing basis as part of the plants [CLB].89 And NRC license renewal regulations and Commission decision make clear that a plants CLB is outside the scope of a license renewal proceeding.90 In contrast, the NRCs environmental review, focuses on environmental impacts.91 Safety issues become important to the environmental review when they could result in environmental impacts, which is why the environmental effects of postulated accidents are considered in the GEIS and in plant-specific supplements to the GEIS.92 The Board did not say, as Petitioners argument assumes, that all safety issues are outside the scope of a license renewal proceeding. Rather, the Board said that insofar as the contention raises purely safety issues, i.e., challenges the plants CLB, then those safety issues are outside the scope of this proceeding.93 Petitioners miss this critical distinction. And the Board is correct as a well-settled matter of law that challenges to a plants CLB are beyond the 88 Id. at 20.

89 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 15).

90 See 10 C.F.R. §§ 54.3 (defining CLB), 54.4 (defining the scope of license renewal); Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-15-6, 81 NRC 340, 347 (2015) (license renewal is not an opportunity to reexamine a plants CLB); Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 8-9 (2001) (citation omitted) (ongoing agency oversight and a plants CLB are beyond the limited scope of license renewal and beyond challenge in a license renewal adjudicatory proceeding).

91 See NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants at 1-8 (June 2013) (Vol. 1, ML13106A241) (2013 GEIS); see also 2024 GEIS at 1-9 to 1-10.

92 2013 GEIS at 1-8.

93 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 15) (emphasis added).

17 scope of a license renewal proceeding and challenges thereto cannot demonstrate a genuine dispute with the LRA on a material issue of fact or law.94 Accordingly, Petitioners appeal on this issue fails to identify an error of law or abuse of discretion to overturn the Boards decision.95 Lastly, Petitioners criticize the Boards reference to a prior licensing board decision, LBP-21-4. The Board found that prior decision to be consistent with its ruling on Contention 1 two reasons: (1) because LBP-21-4 rejected a nearly identical contention to the one presented in Contention 1, whereas (2) Contention 1 was not supplemented by any new evidence or support.96 On appeal, Petitioners do not dispute either of those factually correct observations.

Ultimately, nothing in the appeal demonstrates any error of law or abuse of discretion in the Boards well-reasoned decision on Contention 1, which the Commission should AFFIRM.

B.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Ruling on Proposed Contention 2 In Contention 2 (Severe Accidents), Petitioners alleged that the 2023 DSEIS 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.97 The Board found Contention 2 is inadmissible because it (1) failed to set forth with particularity the [contention]

sought to be raised, and (2) failed to show a genuine dispute exists with the [2023 DSEIS] on a 94 Indian Point, CLI-15-6, 81 NRC at 347; Turkey Point, CLI-01-17, 54 NRC at 8-9 (2001).

95 Petitioners also complain that the Boards reference to a prior licensing boards decision rejecting a nearly identical contention was misplaced because the majority of the prior licensing boards decision was dedicated to the statutory wavier issue. Appeal at 20. But Petitioners ignore the prior licensing boards determination that the similar contention was inadmissible because it failed to satisfy several of the admissibility criteria in 10 C.F.R. § 2.309(f)(1). See Va. Elec. & Power Co. (North Anna Power Station, Units 1 & 2), LBP-21-4, 93 NRC 179, 209-12 (2021).

96 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 15).

97 Petition at 13.

18 material issue of law or fact.98 As discussed below, Petitioners appeal provides no basis to overturn the Boards decision.

1.

Petitioners Identify No Error of Law or Abuse of Discretion in The Boards Decision That Contention 2 Lacked the Requisite Particularity The Commissions admissibility criteria require a petition to state with particularity the contentions sought to be raised including a specific statement of the issue of law or fact to be raised or controverted.99 In Contention 2, Petitioners sought to satisfy these requirements by incorporating an entire section of Mr. Mitmans declaration without explaining how or why the referenced content somehow satisfied the Commissions contention admissibility requirements.

The Board correctly held that the Commission prohibits this kind of wholesale incorporation of documents as alleged support for contention admissibility.100 On appeal, Petitioners provide no reasoned explanation for why this portion of the Boards decision should be overturned.

In Contention 2, Petitioners provided a bulleted list of nine statements or conclusions from Section C.2 of Mr. Mitmans declaration as part of their statement of the contention.101 But Petitioners cited no specific page or paragraph in Mr. Mitmans declaration for the statements in each bullet.102 This forced Applicants and the Board to guess at the specific support for the statements in every bullet. Moreover, Section C.2 of Mr. Mitmans declaration cross-references several pages from Mr. Mitmans comments on the 2023 DSEIS Comments.103 And those pages from the 2023 DSEIS Comments themselves contain multiple paragraphs with various claims, 98 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 16).

99 10 C.F.R. §§ 2.309(f)(1), (f)(1)(i).

100 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 16) (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 N.H. (Seabrook Station, Units 1 & 2), CLI-89-3, 29 NRC 234, 240-41 (1989)).

101 Petition at 13-14.

102 See id.

103 See Mitman Decl. at 9-14.

19 assertions, and subject matters; and so, the specific content being cross-referenced was not always apparent.104 Simply put, trying to follow the statements in the Petition to Mr. Mitmans declaration and then to his 2023 DSEIS Comments, and beyond, to discern each specific claim and its underlying support is at best confusing, and at times, wholly indecipherable. More importantly, the declaration made no attempt to engage with particular requirements in NEPA or Part 51; and it did not purport to analyze the various claims in the context of contention admissibility requirements. For all of these reasons, the Board found that neither the Petition nor the attachment satisfied the requirement to set forth with particularity the [contention] sought to be raised.105 On appeal, Petitioners primarily argue that the Boards decision effectively required Petitioners to paste the entirely of Mr. Mitmans Section C.2 into the body of Contention 2 and thus exalt form over substance.106 But Petitioners are trying to extend the Boards holding far beyond what it actually says. The Boards ruling on this point focused on the very substantive deficiencies in the arguments. Despite the presence of a technical discussion in the attachment, Petitioners (in the Petition and the attachment) failed to meaningfully engage with any legal requirements or contention admissibility criteria. The declarant, Mr. Mitman, professed no expertise as to NEPA, Part 51, environmental requirements generally, or NRC contention admissibility standardsand the declaration contained no meaningful discussion of those issues.

As the Board noted, the absence of any explanation of a purported connection between the declarants technical comments, the legal requirements for NEPA documents, and the NRCs 104 See Comments by Beyond Nuclear and the Sierra Club on Proposed Rule and Draft Generic Environmental Impact Statement for Renewing Nuclear Power Plant Licenses (May 2, 2023) (ML23123A411), corrected on May 19, 2023 (ML23139A275).

105 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 16).

106 Appeal at 21 (quoting U.S. Dept. of Energy (High-Level Waste Repository), LBP-09-06, 69 NRC 367, 408 (2006)).

20 contention admissibility criteria deprive[d] the Board of the ability to make the necessary, reflective assessment of the opinion.107 As a matter of settled law, the parties and the Board are entitled to be told at the outset, with clarity and precision, what arguments are being advanced.108 The Boards decision to apply that controlling precedent does not unreasonably place form over substance as Petitioners claim here. Therefore, they fail to demonstrate any way in which that decision was affected by any error of law or abuse of discretion.

Petitioners also argue that the Commissions Seabrook decision cited by the Board only prohibits the incorporation of massive documents but does not prohibit the incorporation of a section of an expert declaration.109 But Petitioners narrow focus on two words in Seabrook misses the Commissions broader point. The Commission does not allow wholesale incorporation by reference in a pleading because such incorporation does not satisfy the burden for a party to clearly identify the basis for their contention.110 Petitioners wholesale incorporation of Mr. Mitmans technical comments without further explanation, even if those technical comments were not a massive document, still failed to clearly identify the other information necessary to articulate a basis for Contention 2. Petitioners do not claim or demonstrate otherwise, and certainly have not identified any error of law or abuse of discretion in the Boards ruling.

107 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 17).

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

(emphasis added).

109 Id.

110 Seabrook, CLI-89-3, 29 NRC at 241.

21

2.

Petitioners Identify No Error of Law or Abuse of Discretion in The Boards Decision That Contention 2 Fails to Demonstrate a Genuine Dispute The Commissions contention admissibility criteria require Petitioners to show that a genuine dispute exists with the 2023 DSEIS on a material issue of law or fact.111 And an expert opinion that merely states a conclusion without providing a reasoned basis or explanation for that conclusion is inadequate to show a genuine dispute exists.112 With these standards in mind, the Board reviewed each of the nine bulleted statements in the Petition and found that they made either broad generalizations, lacked support, lacked any explanation for why certain statements were misleading or insufficient, failed to explain why certain data was legally required, or fell outside the scope of this proceeding.113 The Board reached individual conclusions as to each bullet point and found that they did not, individually or collectively, satisfy the requirements in 10 C.F.R. § 2.309(f)(1)(iii)-(vi).114 On appeal, Petitioners ignore the Boards specific analysis of eight of those nine bullet points. For that reason, they have waived any challenges thereto and essentially conceded that those eight rulings should be affirmed.115 The appeal only engages specifically with the Boards conclusion on the fourth bullet, which claimed:

The Draft EIS fails to demonstrate consideration of external flooding risk with subsequent ingress of water into the turbine building. As demonstrated 111 See 10 C.F.R. § 2.309(f)(1)(iv).

112 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 16-17) (citing USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006) (quoting citation omitted)).

113 Id. at 17-19.

114 Id. at 20.

115 See Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 & 3), CLI-10-9, 75 NRC 245, 257, n.70 (2010) (We deem waived arguments made before the Board that are abandoned on appeal.);

(citing Intl Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 253 (2001)); see also Pub. Serv. Co. of Ind., Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-461, 7 NRC 313, 315 (1978) (We generally follow the course charted by the Federal courts and disregard unbriefed issues as waived.).

22 by Mr. Mitmans Declaration, flooding poses a significant accident risk that has not been addressed in the Draft EIS.116 The Board found this argument inadmissible for two reasons: because Petitioners provided no support for this assertion, and because Petitioners did not engage with the sections of the Draft EIS, namely sections 3-24 to 3-26 and F-21, that do indeed consider external flooding risks post-Fukushima.117 On appeal, Petitioners confront only the first of those two reasons for finding the fourth bullet inadmissible. Petitioners say the Board could only reach its conclusion regarding the lack of support by completely disregarding ¶¶ 34-36 in Section C.2 of Mr. Mitmans Declaration.118 As a general matter, the Petition did not specifically identify those paragraphs (or any others) in the declaration as providing the alleged support for the fourth bullet, so the Board (and the parties) were forced to guess where to look for support for Petitioners claim.

Petitioners cannot fault the Board if it guessed incorrectly about where to look for potential support for Petitioners claim.119 More importantly, the appeal fails to confront the Boards second reason for finding the fourth bullet is inadmissible, i.e., because Petitioners failed to engage with or dispute specific, relevant content on pages 3-24 to 3-26 and F-21 of the 2023 DSEIS. To be clear, paragraphs 34 to 36 in Section C.2 of Mr. Mitmans Declaration do not cite, mention, analyze, discuss, or acknowledge pages 3-24 to 3-26 or page F-21 of the 2023 DSEIS. Because Petitioners disregard this portion of the ruling, they have waived any challenge thereto; and because they failed to 116 Appeal at 23 (quoting Petition at 13).

117 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 18).

118 Appeal at 23.

119 See Seabrook, CLI-89-3, 29 NRC at 241 (The Commission cannot be faulted for not having searched for a needle that may be in a haystack.).

23 address each reason for the Boards rejection of the fourth bullet, they have not identified any error of law or abuse of discretion by the Board.

Lastly, Petitioners present a generic argument that Mr. Mitmans declaration demonstrated the existence of a genuine dispute simply because it reflects the application of his professional expertise as a risk analyst to the specific facts of the [2023 DSEIS].120 But whether Mr. Mitman is a qualified risk expert, as Petitioners claim, does not confront the defect identified by the Boardthat the statements (regardless of whether they were made by an expert) were conclusory and unsupported.121 As a matter of settled law, conclusory statementseven by an expertcannot supply the basis for admissibility.122 Petitioners do not confront this settled law or explain why the Boards application thereof was in any way erroneous.

In sum, Petitioners identified no error of law or abuse of discretion in the Boards decision finding Contention 2 inadmissible, and the Boards decision should be upheld on appeal.

C.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Ruling on Proposed Contention 3 In Contention 3, Petitioners alleged that the 2023 DSEIS fails to consider the impact of climate change on accident risk at North Anna. The Board found that Contention 3 was inadmissible because Petitioners did not explain the basis for the contention, show that the contention is within the scope of the proceeding, provide a concise statement of facts or expert opinions that support the contention, or show the existence of a genuine dispute on a material 120 Appeal at 22.

121 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 16-19).

122 See S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, 71 NRC 1, 19 (2010)

(an experts merely conclusory statements, without supporting facts or detail does not demonstrate the existence of a genuine dispute.); USEC, CLI-06-10, 63 NRC at 472.

24 issue of law or fact.123 Thus, as the Board correctly held, the contention fails to satisfy the admissibility requirements in 10 C.F.R. § 2.309(f)(1)(ii), (iii), (v), and (vi).124 As explained below, on appeal, Petitioners identify no basis to overturn the Boards decision that Contention 3 is inadmissible.

1.

Petitioners Incorporation by Reference of Judge Gibsons Dissent Is Not a Valid Appeal To support their appeal, Petitioners rely on and incorporate by reference Judge Gibsons dissenting opinion on Contention 3.125 But the Commission disfavors such incorporation by reference. Instead, the Commission requires briefs to be comprehensive, concise, and self-contained.126 The Commission will not augment [an appellate] brief by incorporating by reference other pleadings or arguments contained in other pleadings and the Commissions decision will respond only to those arguments made explicitly in [Petitioners] appellate brief.127 Thus, Petitioners incorporation by reference of Judge Gibsons dissent is improper and does not provide the basis for a valid appeal of Contention 3.128 123 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 20-25).

124 Id. at __ (slip op. at 25).

125 Appeal at 24.

126 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 & 4), CLI-11-8, 74 NRC 214, 219 (2011) (citing Tex. Util. Elec. Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912, 924 n.42 (1987) (citations omitted)).

127 Id. (citing Shearon Harris, CLI-10-9, 71 NRC at 278 n.205 ) (emphasis added).

128 In any event, the dissent also fails to identify any defect in the Boards decision. At a fundamental level, it overlooks the fact that the term climate change (as used by Petitioners here) refers to meteorological phenomena such as rain, wind, and ambient temperature. The dissent would have admitted Contention 3 as a contention of omissionas if these phenomena had not been considered at all. But that is not the case. The Postulated Accidents discussion in the 2023 DSEIS relies on PRA-based risk analyses that certainly do evaluate those phenomena as potential contributors to accident risk. Petitioners did not attempt to dispute any particular portion of those obviously-not-omitted analyses; and the dissent points to no obligation (much less one identified by Petitioners) that those analyses be presented, duplicatively, under a separate climate change heading.

25

2.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Decision that Contention 3 Is Based on Speculation The Board found Contention 3 is inadmissible because it is based on speculation.129 According to the Board, Mr. Mitman, on whose opinion the contention relies, never addressed whether expected climate change effects near North Anna were sufficient to actually affect North Anna accident risk.130 The Board also found that neither the Petition nor Mr. Mitman engaged with the climate projections in 2023 DSEIS § 3.14.3.2 and thus, the contention did not present a seriously different picture of the environmental impact necessary for an admissible contention.131 On appeal, Petitioners argue the Board erred by ignoring the analysis and conclusions in paragraphs 34 to 36 of Mr. Mitmans declaration.132 But Petitioners never cited these paragraphs in their Petition.133 Petitioners cannot now fault the Board for overlooking uncited support for their claims. To hold otherwise would effectively repeal the requirement that parties be told at the outset, with clarity and precision, what arguments are being advanced.134 For this reason alone, Petitioners failed to identify an error of law or abuse of discretion in the Boards decision.

More importantly, the Board is manifestly correct that this contention relies on impermissible speculation. To start, Petitioners note that certain meteorological parameters (e.g.,

rainfall) are expected to change as a result of climate change. But that assertion is not disputed by any party here; in fact, it is entirely consistent with statements made in 2023 DSEIS

§ 3.14.3.2. However, the remainder of Petitioners theory is left unexplained:

129 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 22-23).

130 Id.

131 Id. at __ (slip op. at 23).

132 Appeal at 26.

133 See Petition at 16-17.

134 Wolf Creek, ALAB-279, 1 NRC at 576 (emphasis added).

26

  • Petitioners proffered no assertion (or support) about how much those meteorological parameters might change over the license renewal term;
  • Petitioners did not compare any speculative changes in those values to the values used in some unspecified analysis in the 2023 DSEIS;
  • Petitioners did not explain why a comparison of the unspecified values in those unidentified analyses reveals some alleged deficiency; and
  • Petitioners failed to demonstrate that this speculative deficiency would, in fact, be material to the underlying (but unspecified) analysis.

These gaps in Petitioners theory are filled-in by one thing: speculation.

As the Board noted, [w]hile Petitioners have 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 some material way that has not already been captured in the existing analyses presented in the 2023 DSEIS.135 Aside from citations to conclusory assertions from Mr. Mitman, which cannot supply the basis for a contention, nothing in the appeal confronts or disputes this conclusion. Thus, Petitioners demonstrate no error of law or abuse of discretion on this aspect of the Boards ruling.

3.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Decision That Contention 3 Lacks Specificity The Board found that Contention 3 lacks the specificity required for an admissible contention.136 In particular, the Board concluded that Contention 3 fails to provide the required concise statement of alleged facts or expert opinion which support the contention because Petitioners once again referred to Mr. Mitmans declaration without providing citations to the 135 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 23).

136 Id. at __ (slip op. at 23-25).

27 specific portions of the 37-page declaration that supports Contention 3.137 The Board also concluded that the basis statement for Contention 3 outlines no train of logic and legal foundation for the contention, and noted (consistent with controlling case law) that the Board would not infer any unarticulated bases for the contention.138 On appeal, Petitioners disagree with the Boards conclusion and argue that their reference to Mr. Mitmans declaration and citation to New York v. NRC were specific enough to satisfy the Commissions contention admissibility requirements.139 But they do not explain why that result is required as a matter of law. Simply put, more is required to show reversible error. Again, Petitioners merely repeat arguments they made before the Board and hope for a different result from the Commission. But that is insufficient for an appeal. Ultimately, Petitioners provide no grounds to disturb the Boards ruling on Contention 3.

4.

Petitioners Identify No Error of Law or Abuse of Discretion in the Boards Decision That Petitioners Failed to Demonstrate that Contention 3 Was Within the Scope of This Proceeding As the Board correctly held, the scope of this proceeding was limited by the notice of opportunity to intervene to contentions based on new information in the DEIS.140 At the same time, as noted above, Petitioners claims in Contention 3 were vague and failed to identify the specific analysis being challenged.141 So, in addition to being inadmissible for lacking the requisite specificity, the Board correctly held that Contention 3 was inadmissible for the separate reason that Petitioners failed to carry their affirmative burden to show that their contention 137 Id. at __ (slip op. at 24).

138 Id. at __ (slip op at 24-25).

139 Appeal at 28.

140 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 21) (citing 89 Fed. Reg at 962).

141 See supra Section III.C.3; see also Answer at 38-39.

28 (challenging an unspecified analysis) met the scope requirement imposed on this proceeding.142 Petitioners identify no reversible error in that determination.

In the proceedings before the Board, Petitioners argued that they had no obligation to demonstrate satisfaction of the scope criterion.143 But that is plainly incorrect as a matter of law; the petitioner alone bears the affirmative burden to satisfy the contention admissibility criteria.144 Moreover, Petitioners claimed they were seeking to challenge some unspecified new reactor-specific accident analysis in the 2023 DSEIS.145 But they were not clear on what, exactly, they were trying to challenge. Then, when Petitioners finally revealed at oral argument that the analysis they were purporting to challenge was the Probabilistic Risk Assessment (PRA) that was used to evaluate accident risk,146 they still failed to provide enough specificity for the Board to discern whether that challenge specifically pertained to new information in the 2023 DSEIS or whether it sought to challenge other information, such as the original SAMA analysis performed for North Annas initial license renewal (which is indisputably beyond the scope of the instant proceeding).

On appeal, Petitioners identify no error of law or abuse of discretion in the Boards ruling. As a matter of law, the Board is manifestly correct that the scope of a proceeding, and indeed its own jurisdiction, is limited by the text of the hearing opportunity notice. As explained in longstanding NRC appellate jurisprudence on this issue:

It is well settled that NRC licensing boards and administrative law judges do not have plenary subject matter jurisdiction in adjudicatory proceedings.

142 Id. at __ (slip op. at 21) (Petitioners failed to identify that analysis [or] explain how it is new information in the DEIS).

143 Id. at __ (slip op. at 22) (citing Tr. at 203).

144 See Palisades, CLI-15-23, 82 NRC at 325, 329 (The proponent of a contention is responsible for formulating the contention and providing the necessary support to satisfy the contention admissibility requirements.).

145 Appeal at 24.

146 N. Anna, LBP-24-07, 100 NRC at __ (slip op. at 22) (citing Tr. at 154).

29 Agency fact finders are delegates of the Commission who may exercise jurisdiction only over those matters the Commission specifically commits to them in the various hearing notices that initiate the proceedings. Thus, the scope of the proceeding spelled out in the notice of hearing identifies the subject matter of the hearing and the hearing judge can neither enlarge nor contract the jurisdiction conferred by the Commission.147 On appeal, Petitioners point to nothing that demonstrates any error of law in the Boards decision to comply with this controlling case law. And they fail to demonstrate that the Board somehow abused its discretion in finding that Petitioners did not carry their affirmative burden to demonstrate that their vague challenge (potentially encompassing out-of-scope issues), was affirmatively within the scope of this proceeding. Overall, Petitioners fail to identify anything that overcomes the substantial deference to which the Boards ruling on this issue is entitled.

IV.

CONCLUSION For all of the many reasons set forth above, the Commission should AFFIRM the Boards contention admissibility rulings in LBP-24-07.

147 Tenn. Valley Auth. (Watts Bar Nuclear Plant, Unit 1 et al.), CLI-04-24, 60 NRC 160, 204 (2004) (quoting Gen.

Pub. Utils. Nuclear Corp. (Three Mile Island Nuclear Station, Unit 1), ALAB-881, 26 NRC 465, 476 (1987)

(emphasis added).

30 Respectfully submitted, Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, ESQ.

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

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

PAUL M. BESSETTE, Esq.

SCOTT D. CLAUSEN, Esq.

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

Washington, D.C. 20004 (202) 739-5796 (202) 739-5402 Paul.Bessette@morganlewis.com Scott.Clausen@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d)

WILLIAM S. BLAIR, Esq.

Dominion Energy Services, Inc.

120 Tredegar Street, RS-2 Richmond, VA 23219 (561) 267-7459 William.S.Blair@dominionenergy.com Counsel for Virginia Electric and Power Company Dated in Washington, D.C.

This 30th day of August 2024

DB1/ 150265467.4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the matter of:

VIRGINIA ELECTRIC AND POWER COMPANY and OLD DOMINION ELECTRIC COOPERATIVE (North Anna Power Station, Units 1 and 2)

Docket Nos. 50-338-SLR-2 and 50-339-SLR-2 August 30, 2024 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the Applicants Answer and Brief in Opposition to the Appeal Of LBP-24-07 Filed by Beyond Nuclear and the Sierra Club was served on the Electronic Information Exchange (the NRCs E-Filing System),

in the above-captioned docket.

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

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

Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Virginia Electric and Power Company

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